Labor Relations Division of Construction Industries of Massachusetts, Inc. v. International Brotherhood of Teamsters, Local 379

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2122

LABOR RELATIONS DIVISION OF CONSTRUCTION
INDUSTRIES OF MASSACHUSETTS, INC., ET AL.,

Plaintiffs-Appellees,

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFERS,
WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL #379,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]

Before

Breyer,* Chief Judge,

Coffin, Senior Circuit Judge,

and Torruella, Circuit Judge.

Paul F. Kelly, with whom Anne R. Sills and Segal, Roitman &

Coleman were on brief for appellant.

John D. O'Reilly III, with whom O'Reilly & Grosso was on

brief for appellees.

July 19, 1994

* Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel's opinion. The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C. 46(d).

TORRUELLA, Circuit Judge. The circumscribed role of

federal courts reviewing arbitration awards in labor contract

disputes is now well established. As the Supreme Court found in

United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36-

45 (1987), courts must resist the temptation to substitute their

own judgment about the most reasonable meaning of a labor

contract for that of the arbitrator and avoid the tendency to

strike down even an arbitrator's erroneous interpretation of such

contracts. Instead, courts must confine themselves to

determining whether the arbitrator's construction of the contract

was in any way plausible.

The issue in this case is whether any plausible reading

of a collective bargaining agreement supports an arbitrator's

ruling in a dispute over fringe benefit contributions.

Plaintiffs-appellees, J.M. Cashman, Inc. and R. Zoppo Co., Inc.

(the "plaintiffs" or "Cashman and Zoppo"), challenged the

arbitration order, which favored the defendant-appellant,

International Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of American, Local 379 (the "Union"), in the district

court. The district court vacated the arbitration award and

remanded the dispute to the arbitrator for a new resolution of

the case. Because we find that the district court stepped

outside of its highly circumscribed role of assessing the

plausibility of the arbitrator's interpretation of the agreement

between the parties, we reverse the court's holding.

Nevertheless, we agree with the district court that the case

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should be remanded to the arbitrator for resolution of a related

issue of federal law.

I. BACKGROUND

This case arises out of the arbitration of a dispute

between the Union and a group of contractor-employers, including

plaintiffs Cashman and Zoppo, involved in the construction of

waste water treatment facilities in Boston Harbor (the "Boston

Harbor Project"). On March 2, 1992, the Union filed grievances

against Cashman, Zoppo, and six other project employers, claiming

that truck drivers on the Boston Harbor Project who owned and

drove their own trucks, so called "owner-operators," should

receive certain fringe benefit contributions that the employers

were already paying on behalf of other Boston Harbor Project

employees. The grievances asserted that the Boston Harbor

Project Labor Agreement ("Project Agreement"), signed by the

Union and the employers, required that the same "health and

welfare contributions and all pension contributions" made on

behalf of other employees must also be made on behalf of the

owner-operators.

The employers claimed that they did not have to pay

fringe benefits on behalf of owner-operators because the contract

did not require it and, more importantly, because the Union and

many of the employers had a long-standing practice of not paying

such owner-operator benefits going back at least twenty-six

years. According to the employers, this practice was established

after the Union and certain employer-contractors on a number of

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state construction projects (not including Cashman and Zoppo

themselves) agreed that, to the extent a nucleus of owner-

operator truck drivers would be present on any individual

construction project, the employers would not be required to pay

fringe benefits for the owner-operators. The employers working

on the Boston Harbor Project, who were required to sign the

Project Agreement in order to bid initially on the work, see

Building & Constr. Trades Council v. Associated Builders &

Contractors, Inc., 113 S. Ct. 1190 (1993), rev'g, 935 F.2d 345

(1st Cir. 1991) (en banc), maintained that they expected this

established practice to continue as in previous projects.

Cashman and Zoppo, however, had never entered into a contractual

relationship with the Union before the Boston Harbor Project.

Consequently, no past practices had been established between the

Union and the plaintiffs themselves.

Pursuant to the Project Agreement, the dispute over the

fringe benefits was brought before an arbitrator for resolution.

On January 20, 1993, the arbitrator found in favor of the Union

and ordered the plaintiffs and the other employers to pay,

retroactively, post-grievance benefits and to pay future fringe

benefit contributions on behalf of the owner-operator truck

drivers. In his accompanying opinion, the arbitrator explained

that certain provisions of the Massachusetts Teamsters' Heavy

Construction Agreement ("Teamsters Agreement"), which was

incorporated into the Project Agreement, in conjunction with the

Project Agreement itself, explicitly obligated employers to make

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health insurance and pension contributions on behalf of the

owner-operators in question.

At issue in this appeal is the arbitrator's finding

that the past practice of not paying the fringe benefits for

owner-operators did not bind the parties in this case because the

Project Agreement "wiped the slate clean" of such past practices.

The arbitrator relied on the following language in the preamble

of the Project Agreement to support his finding:

No practice, understanding or agreement
between a Contractor and a Union party
which is not explicitly set forth in this
Agreement shall be binding on any other
party unless endorsed in writing by the
Project Contractor.

By interpreting this language as negating all past practices and

understandings not explicitly set forth within the Project

Agreement, the arbitrator disregarded the voluminous evidence

presented by the employers of the established practice of

excluding owner-operators from fringe benefit contributions. As

a result, the language of the Project Agreement granting such

benefits was found to be controlling.

Also at issue on appeal is the related question of

whether the owner-operator truck drivers are independent

contractors or employees. If they are independent contractors,

Section 302 of the Labor Management Relations Act ("LMRA"), 29

U.S.C. 186, would prohibit fringe benefit payments on their

behalf. The arbitrator acknowledged that the employers had

argued that fringe benefit payments for the owner-operators would

be illegal under Section 302, but he made no explicit legal or

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factual findings on the issue in his opinion. While a rejection

of the employers' contention was implicit in the arbitrator's

award favoring the Union, nothing indicates that the arbitrator

actually determined whether the owner-operators were employees or

independent contractors for purposes of the LMRA.

Following the entry of the arbitrator's award, Cashman

and Zoppo filed a complaint in the district court on February 19,

1993, requesting that the court vacate the award. On summary

judgment, the district court held that the arbitrator had

impermissibly exceeded his authority by misapplying the plain and

unambiguous language of the Project Agreement preamble concerning

past practices, thereby failing to duly consider the evidence

that the parties had a practice of not paying fringe benefits for

owner-operators. The district court found that the past

practices provision of the preamble -- particularly the words,

"no practice . . . shall be binding on any other party" (emphasis

added) -- clearly and unambiguously meant that established

practices between parties A and B are not meant to bind outside

party C. The court found that the phrase could not reasonably be

interpreted to mean that all established practices, even those

between parties A and B, are completely wiped out by the Project

Agreement. Consequently, the court held that the Union could

still be bound by the past practice of not requiring fringe

benefit contributions for owner-operators. The district court

vacated the arbitrator's award and remanded the case to the

arbitrator to determine the merits, giving proper consideration

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to the evidence of past practices.

The court also left for the arbitrator the issue of

whether, in light of the court's holding that past practices

could be considered, the owner-operators are independent

contractors, thus rendering the payment of benefits on their

behalf illegal.

II. ANALYSIS

A. Standard Of Review

It is well established that federal court review of

labor arbitral decisions, particularly on matters of contract

interpretation, is extremely narrow and "extraordinarily

deferential." Dorado Beach Hotel Corp. v. Uni n de Trabajadores

de la Industria Gastron mica Local 610, 959 F.2d 2, 3-4 (1st Cir.

1992); see, e.g., Misco, 484 U.S. at 36-45 (1987); Berklee

College of Music v. Berklee Chapter of Mass. Fed. of Teachers,

Local 4412, 858 F.2d 31, 32 (1st Cir. 1988), cert. denied, 493

U.S. 810 (1989). The court may not supplant the arbitrator's

determination of the merits of a contract dispute, even if it

finds that determination to be erroneous. Rather, the court's

task is limited to determining if the arbitrator's interpretation

of the contract is in any way plausible. Misco, 484 U.S. at 36-

38; United Steelworkers of America v. Enterprise Wheel & Car

Corp., 363 U.S. 593, 599 (1960) ("[S]o far as the arbitrator's

decision concerns construction of the contract, the courts have

no business overruling him because their interpretation of the

contract is different from his."); El Dorado Technical Servs.,

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Inc. v. Uni n General de Trabajadores de Puerto Rico, 961 F.2d

317, 319 (1st Cir. 1992) ("[A] court should uphold an award that

depends on an arbitrator's interpretation of a collective

bargaining agreement if it can find, within the four corners of

the agreement, any plausible basis for that interpretation.");

Dorado Beach, 959 F.2d at 4; Bacard Corp. v. Congreso de Uniones

Industriales de Puerto Rico, 692 F.2d 210, 211 (1st Cir. 1982).

"[A]s long as the arbitrator is even arguably construing or

applying the contract and acting within the scope of his

authority, that a court is convinced he committed serious error

does not suffice to overturn his decision." Misco, 484 U.S. at

38.

Only in a few, exceptional circumstances are courts

able to vacate an arbitration award. When an arbitrator has

exceeded his authority by ignoring the clear and unambiguous

mandates or plain language of the contract or by construing the

contract in a way that cannot possibly be described as plausible

or rational, a court can overturn the arbitrator's judgment.

Misco, 484 U.S. at 38 (an arbitrator's award "must draw its

essence from the contract and cannot simply reflect the

arbitrator's own notions of industrial justice"); Dorado Beach,

959 F.2d at 4; Air Line Pilots Ass'n Int'l v. Aviation Assocs.

Inc., 955 F.2d 90, 93 (1st Cir.), cert. denied, 112 S. Ct. 3036

(1992); Strathmore Paper Co. v. United Paperworkers Int'l Union,

900 F.2d 423, 426 (1st Cir. 1990); Georgia-Pacific Corp. v. Local

27, United Paperworkers Int'l Union, 864 F.2d 940, 944 (1st Cir.

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1988).

We reject plaintiffs' contention that our review of the

district court's vacation of an arbitration award, based on an

alleged impermissible interpretation of a contract, is made under

the clearly erroneous standard. In this case, all deference is

due to the arbitrator's interpretation of the contract, not to

the interpretation of the district court. The district court

ruled that the arbitrator exceeded his authority as a matter of

law by ignoring plain and unambiguous language in the contract.

We review this finding de novo and make our own determination,

according to the standards described above, of whether the

arbitrator's application of the contract was plausible. See,

e.g., Upshur Coals Corp. v. United Mine Workers, Dist. 31, 933

F.2d 225, 228 (4th Cir. 1991); Delta Queen Steamboat Co. v.

District 2 Marine Engs. Beneficial Ass'n, 889 F.2d 599, 602 (5th

Cir. 1989), cert. denied, 498 U.S. 853 (1990); see also Berklee,

858 F.2d at 32-34 (vacating district court's reversal of

arbitrator's interpretation of labor contract without affording

deference to the district court's findings); Bacard , 692 F.2d at

211-14 (implicitly applying de novo review in vacating district

court's finding that arbitrator erroneously interpreted

collective bargaining agreement).

B. The Past Practices Clause

With this circumscribed standard for reviewing

arbitration awards in mind, there is little question that the

arbitrator's interpretation of the Project Agreement -- at least

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to the extent that he found that the past practices clause bars

consideration of the plaintiffs' evidence of prior fringe benefit

arrangements -- must be upheld as a plausible reading of the

contract. This result is compelled because the arbitrator's

holding comports with the district court's own interpretation of

the past practices clause when properly applied to the facts of

this case. Thus, even if the arbitrator exceeded his authority

in finding that the past practices clause wiped the slate clean

of all established practices between all parties, an issue we do

not decide, he certainly did not exceed his authority by wiping

the slate clean between the Union and the plaintiffs in this

particular case.

The district court apparently failed to consider the

possibility that plaintiffs in this case are "other parties" and

therefore not privy to the past practice of excluding owner-

operators from the payment of fringe benefits. According to the

district court, the plain language of the past practices

provision in the preamble provides merely that past practices

established between parties A and B shall not be binding on party

C, although they will continue to be binding on A and B

themselves. Applying this interpretation to the present case

reveals that fringe benefit practices between the Union and other

employer-contractors (parties "A" and "B" respectively) are not

binding on the plaintiffs (both party "C's"), who did not have an

established past practice with the Union and are thus "any other

parties" under the past practices clause. As a result, the

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contract could be read to require the arbitrator to ignore

evidence of past practices between the Union and other parties

when applying the provisions of the Project Agreement to disputes

between the Union and the plaintiffs. Because such an

interpretation is a plausible one, we must reverse the district

court's vacation of the arbitration ruling with respect to the

arbitrator's construction of the Project Agreement.

The plaintiffs take issue with such an application of

the past practices clause to the facts of this case. They argue

that because the Union itself was privy to the practice of not

requiring fringe benefit payments for owner-operators, the Union

can still be held to that practice, regardless of the fact that

plaintiffs cannot in any way be bound by such a practice.

Plaintiffs point to the language of the clause, which states that

"[n]o practice . . . between a Contractor and a Union party . . .

shall be binding on any other party," to argue that the clause

itself concerns only the effects of past practices on new parties

to the project agreement but in no way limits the effect of past

practices on the Union itself.

The plaintiffs' interpretation is certainly reasonable,

but, for our purposes, it is also irrelevant. Our task is to

determine whether the arbitrator exceeded his authority by

failing to apply the contract in a plausible manner, not to seek

out the most reasonable meaning of the contract. Interpreting

the past practices clause to bar consideration of plaintiffs'

evidence of past practice in this case is clearly plausible. The

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clause can be read to preclude application of all established

past practices to "any other party," even if that practice is in

the "other party's" favor. Such a reading stems from one of

several plausible constructions of the language in the clause:

(1) no practice between parties A and B shall be binding between

parties A and C; (2) practices not binding on party C are

likewise unavailable to C for use against parties A or B (i.e., C

is not entitled to rely on or benefit from a practice which is

not binding on itself); and (3) no practice shall be binding

unlessalreadyestablished betweenaUnion andaparticular contractor.

In this case, the arbitrator could plausibly find that

the practice of excluding fringe benefits for owner-operators,

established between the Union and other contractors, is not

binding between the Union and the plaintiffs. Alternatively, the

arbitrator could find that plaintiffs cannot benefit from the

past fringe benefit practice because each plaintiff is an "any

other party" and thus could not be bound by the practice were it

beneficial to the Union instead of to the employer.

Plaintiffs protest that we cannot now employ such

reasoning to retroactively salvage an otherwise unsustainable

arbitration award. They point out that even if the Union's

interpretation of the past practices clause is plausible, the

arbitrator did not arrive at that interpretation himself, but

instead, arrived at an interpretation that ignored the plain

language of the contract. The arbitrator found that the past

practices clause wiped the slate clean of all practices between

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all parties, not just practices between parties A and C as

discussed above. The arbitration award cannot be upheld,

plaintiffs argue, on the basis of an interpretation of the

contract that the arbitrator did not even make, because, in this

case at least, the arbitrator might have come to a different

conclusion as to whether past practice evidence could be

considered if he adopted the district court's interpretation of

the past practices clause at the time of his decision.

We see no problem with upholding the arbitrator's

decision on grounds or reasoning not employed by the arbitrator

himself. To begin with, an arbitrator has no obligation to give

his or her reasons for an award. Raytheon Co. v. Automated

Business Sys., 882 F.2d 6, 8 (1st Cir. 1989). Once an arbitrator

chooses to provide such reasons, courts should upset the award,

or remand for clarification, only when "the reasons that are

given strongly imply that the arbitrator may have exceeded his or

her authority." Randall v. Lodge No. 1076, 648 F.2d 462, 468

(7th Cir. 1981); see also Cannelton Indus. v. District 17, UNWA,

951 F.2d 591, 594 (4th Cir. 1991) (remanding portion of

arbitration award because it may have been based on a grant of

punitive, as opposed to compensatory, damages, in which case the

award did not draw its essence from the contract). Absent a

strong implication that an arbitrator exceeded his or her

authority, the arbitrator is presumed to have based his or her

award on proper grounds. Saturday Evening Post Co. v. Rumbleseat

Press, Inc., 816 F.2d 1191, 1197 (7th Cir. 1987); see also

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Chicago Newspaper Publishers' Ass'n v. Chicago WEB Printing

Pressman's Union, 821 F.2d 390, 394-95 (7th Cir. 1987) ("'[i]t is

only when the arbitrator must have based his award on some body

of thought, or feeling, or policy, or law that is outside the

contract . . . that the award can be said not to 'draw its

essence from the collective bargaining agreement.''") (quoting

Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 185 (7th Cir.

1985)) (emphasis in original).

In this case, despite the arbitrator's allegedly

erroneous reasoning, there is nothing to indicate the arbitrator

exceeded his authority by not "arguably construing or applying

the contract." Misco, 484 U.S. at 38; see General Teamsters,

Auto Truck Drivers & Helpers, Local 162 v. Mitchell Bros. Truck

Lines, 682 F.2d 763 (9th Cir. 1982) (upholding arbitrator for

"doing the right thing for the wrong reason"). The arbitrator's

interpretation of the past practices clause in the preamble as

precluding the use of past practice evidence in determining

plaintiffs' obligations under the Project Agreement is a

plausible interpretation of the contract and as such, must be

upheld. El Dorado, 961 F.2d at 319. The fact that the

arbitrator's "wipe-the-slate-clean" construction of the past

practices clause might indicate that the arbitrator exceeded his

authority if he had applied that construction to other parties

not present in this litigation does not mean that he might have

exceeded his authority in this particular case. Rather, we know

the arbitrator did not exceed his authority because his

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application of the past practice clause to the plaintiffs' claims

drew its essence from the collective bargaining agreement.

Therefore, we need not speculate how the arbitrator might have

resolved this case had he considered the district court's

construction of the contract language at issue.

C. Section 302 of the LMRA

Unlike the dispute over the Project Agreement, the

issue of whether fringe benefit contributions on behalf of the

owner-operators is illegal under federal law does not involve the

same type of circumscribed judicial review that we afford

arbitration decisions grounded in interpretations of a contract.

Although the arbitrator's factual findings regarding the status

of the owner-operators under Section 302 of the LMRA, 29 U.S.C.

186, may deserve a certain amount of deference, the issue of

illegality is ultimately one for federal court review. Misco,

484 U.S. at 42-43. Given that a determination under 302 could

have criminal consequences, the plaintiffs deserve a thorough

judicial review of an arbitrator's decision as to this issue.

Neither party disputes that the plaintiffs' payment of

fringe benefits on behalf of the owner-operators is illegal under

302 if the owner-operators are independent contractors rather

than employees. The parties do disagree, however, on whether the

issue was properly decided by the arbitrator and, if not, how the

issue should now be resolved. The plaintiffs argue that the

arbitrator did not properly decide the issue and that we, or the

district court, should find that the owner-operators are

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independent contractors, effectively nullifying the arbitration

award. The Union argues that the arbitrator correctly found that

the owner-operators were employees and that we should uphold this

finding.

The arbitrator did, at the very least, implicitly

decide the 302 issue by granting an award in favor of the

Union. However, we are not satisfied that the arbitrator

conducted the appropriate statutory analysis for making the

required factual determination of the owner-operator's status.

Distinguishing between employees and independent contractors for

purposes of the LMRA is governed by general principles of agency

law. National Labor Relations Bd. v. Amber Delivery Serv., Inc.,

651 F.2d 57, 60 (1st Cir. 1981). Courts have spelled out a

number of factors to be considered in making the determination of

a party's status, including various indicia of the employer's

"right to control" certain aspects of that party's work. Amber,

651 F.2d at 61; Construction, Bldg. Material, etc., Local No. 221

v. National Labor Relations Bd., 899 F.2d 1238, 1240 (D.C. Cir.

1990); North Am. Van Lines, Inc. v. N.L.R.B., 869 F.2d 596, 599-

600 (D.C. Cir. 1989); H. Prang Trucking Co. v. Local Union No.

469, 114 L.R.R.M. 3617 (D.N.J. 1983). Although the intent of the

parties when they entered into a contractual relationship may be

relevant to determining an employer's "right to control" or to

other aspects of the agency test, no one factor is decisive.

Todd v. Benal Concrete Constr. Co, 710 F.2d 581, 584 (9th Cir.

1983), cert. denied, 465 U.S. 1022 (1984); Amber, 651 F.2d at 61

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(citing N.L.R.B. v. United Ins. Co, 390 U.S. 254, 258 (1968)).

Rather, all of the incidents of the relationship between the

employer and the alleged employee must be assessed. Amber, 651

F.2d at 61.

Given the arbitrator's exclusive focus on the past

practices issue and on provisions of the contract dealing with

fringe benefit contributions, we have serious doubts that the

arbitrator actually conducted a proper 302 agency test analysis

in this case. There is no reason to believe, as the Union seems

to suggest, that the arbitrator's decision regarding the past

practices clause, which we uphold in this opinion, is dispositive

not only of the underlying contractual dispute, but of the 302

issue as well. Past practices are only one facet of the complete

agency test under 302. Consequently, the arbitrator's

discussion of the Project Agreement and the import of past

practices concerning the owner-operators, while relevant to the

parties' intended working relationship and thus to the status of

the owner-operators in this case, is not itself sufficient to

convince us that a complete 302 agency test analysis was

undertaken. We cannot, therefore, defer to the arbitrator's

implicit factual finding on the owner-operators' status to uphold

the arbitration award until a more complete 302 analysis is

conducted.

We are not prepared, however, to conduct that analysis

ourselves without first giving the arbitrator the opportunity to

reexamine the factual circumstances of this case. Plaintiffs

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asserted in their action before the district court that the

arbitration award is unenforceable because it violates federal

law. The district court declined to review this claim because

the court vacated the arbitration award on the issue of past

practices. Because we now reverse the district court's ruling,

we are left with plaintiffs' 302 allegations, which have yet to

be properly adjudicated. In turn, we are not disposed toward

making factual findings in the first instance, given the absence

of explicit factual findings from the district court or the

arbitrator, that are required for a proper determination of the

owner-operators' status. Although a largely uncontradicted

record exists in this case that would allow us to resolve the

302 issue if we needed to, we consider ourselves too far removed

from the dispute to properly weigh the various factors involved

in this fact-intensive determination. In other words, we refuse

to uphold the arbitrator's finding because plaintiffs have raised

a claim meriting federal judicial review yet we, as a federal

appeals court, are not in a suitable position to conduct that

review.

Unfortunately, the district court is in the same

position that we are in with respect to determining the status of

owner-operators. Consequently, we decline to remand the case

directly to the district court for a resolution of the 302

issue. The district court itself chose to remand the proceedings

instead of deciding the merits of the case and we think it is the

court's prerogative to do so. Although federal courts have a

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duty to scrutinize such federal issues with potential criminal

consequences, the arbitrator can play an important role in

providing first-hand factual findings for the benefit of the

reviewing court. Therefore, we remand this case to the

arbitrator for a separate determination of the status of the

owner-operators under 302.

The plaintiffs do not dispute our authority to remand

actions to the arbitrator; however, they claim it is

inappropriate to do so when the issue on remand is one of federal

law. We disagree with their contention that it is inappropriate

for an arbitrator to apply federal statutes. On the contrary, it

is well established that certain statutory claims may be decided

through arbitration. See Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20, 26 (1991); Page v. Moseley, Hallgarten,

Estabrook & Weeden, Inc., 806 F.2d 291, 295 (1st Cir. 1986). We

see no reason why the arbitrator cannot make the factual findings

necessary to resolve the 302 issue in this case. Determining

the status of owner-operators is particularly within the

arbitrator's domain since it involves analyzing various aspects

of the working relationship between the parties. Such a

determination involves consideration of precisely the type of

issues that the parties originally agreed to refer to the

arbitrator under the arbitration clause of the Project Agreement.

We do, nevertheless, retain jurisdiction so that the district

court can review the final determination of the arbitrator, if

requested to do so by one of the parties.

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On remand, we expect the arbitrator will conduct the

appropriate agency test analysis as described in the relevant

caselaw. See, e.g., Amber, 651 F.2d at 60-61; Local No. 221,

899 F.2d at 1240; North Am. Van Lines, 869 F.2d at 599-600;

Prang, 114 L.R.R.M. at 3617-19; see also Restatement (Second) of

Agency 220 (1957). We leave it to the arbitrator to decide

what effect, if any, the past practices clause of the Project

Agreement and the evidence of past practice regarding the

treatment of owner-operators has on his determination of the

owner-operators' status under 302. Although we upheld the

arbitrator's interpretation of the contract as barring

consideration of past practices in resolving contractual

disputes, we express no opinion on how the past practices clause

in the contract and the evidence of past practices figure into

the various factors enumerated under the agency test used to

ascertain a party's status under 302.

Accordingly, we reverse the district court's judgment

vacating the arbitration award and remand this case to the

district court with instructions to remand the case to the

arbitrator for further proceedings consistent with this opinion.

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