NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________

No. 10-3044 _________

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 701

v.

CBF TRUCKING, INC., Appellant

________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-09-cv-05525) District Judge: Honorable Anne E. Thompson _______

Argued July 11, 2011

Before: SLOVITER, FUENTES, and VANASKIE, Circuit Judges

(Filed: July 28, 2011) ______

Meredith R. Murphy John A. Ridley (Argued) Drinker, Biddle & Reath Florham Park, NJ 07932

Attorneys for Appellant

David B. Beckett Roosevelt Porter Mets, Schiro & McGovern Woodbridge, NJ 07095

Paul A. Montalbano Matthew G. Connaughton (Argued) Cohen, Leder, Montalbano & Grossman Kenilworth, NJ 07033

Attorneys for Appellee

_____________

OPINION _____________

SLOVITER, Circuit Judge.

CBF Trucking appeals the District Court’s decision confirming the arbitration

award entered against CBF and in favor of Michael Mickens, a CBF-employed member

of the International Brotherhood of Teamsters, Local 701 union. We will affirm. 1

CBF provides shipping services to the United States Postal Service. On

November 25, 2008, Mickens failed to perform an assigned pick-up and delivery.

Following CBF’s investigation, it called a meeting with Mickens and his union

representatives at which Mickens insisted he had completed the assigned run.

Notwithstanding his insistence, CBF concluded that Mickens failed to complete the

assignment and, on that basis, terminated Mickens. Mickens and the union grieved the

termination, leading to a second meeting. Once again, Mickens insisted that he

1 The District Court had jurisdiction under

and we have jurisdiction under

. We review de novo a district court’s legal conclusions in an order confirming an arbitration award. Century Indem. Co. v. Certain Underwriters at Lloyd’s, London,

(3d Cir. 2009). 2 completed the assigned run. CBF was unaware at the time of the meetings that Mickens

was tape recording the proceedings.

Pursuant to the collective bargaining agreement, the union filed a demand for

arbitration. At the arbitration hearing, Mickens, for the first time, offered an explanation

for his failure to perform the assigned trip, asserting that a security guard relayed a

message from CBF that he did not need to complete the assignment. The security guard

was called to testify and he did not contest Mickens’ explanation, testifying that it was

“possible” he had provided such an instruction to Mickens. CBF introduced the minutes

from the first meeting which reported Mickens’ initial, and ultimately false, claim that he

had completed the assignment. Despite the evidence that Mickens had changed his story

and initially lied to CBF, the arbitrator concluded that Mickens was wrongfully

terminated and ordered that he be reinstated with full back-pay.

Shortly after issuance of the arbitration award and during discovery in a separate

state lawsuit, Mickens produced to CBF the covert recordings he had made of the two

meetings between CBF, Mickens, and the union. The union does not contest that the

recordings depict Mickens’ original adamancy that he completed the assigned run. The

tapes were not produced before this late date despite the fact that CBF had repeatedly

requested that Mickens and the union produce all relevant documents.

When the union filed the action in the District Court to enforce the arbitration

award, CBF moved to vacate the award on the ground that it was procured by fraud or

undue means. The District Court denied the motion, holding that while Mickens had lied 3 and surreptitiously withheld the tapes, thereby committing fraud, the fraud was not

material to the outcome of the arbitration proceeding.

Given the strong presumption in favor of arbitration, federal law provides that a

district court may vacate an arbitration award “only under exceedingly narrow

circumstances.” Dluhos v. Strasberg,

(3d Cir. 2003). Those

circumstances are delineated in the Federal Arbitration Act (“FAA”) itself. Pursuant to

Section 10(a)(1) of the FAA, one such circumstance is when the award was “procured by

corruption, fraud, or undue means.” Courts have applied a three-part test to determine

whether an award was procured by fraud. Under the test, CBF must establish (1) the

existence of fraud by clear and convincing evidence, (2) that the fraud was not

discoverable with the exercise of due diligence, and (3) that the fraud materially relates to

an issue in the arbitration. See, e.g., A.G. Edwards & Sons, Inc. v. McCollough,

(9th Cir. 1992); Bonar v. Dean Witter Reynolds, Inc.,

(11th Cir 1988).

Applying this test, the District Court correctly concluded that “Mickens’ failure to

provide CBF with the tape recordings until after the arbitration award had been finalized

is fraudulent or undue conduct that could be grounds for vacating the arbitration award.”

Int’l Bhd. of Teamsters, Local 701 v. CBF Trucking, Inc., No. 09-5525,

, at *6 (D.N.J. June 10, 2010). However, as the District Court noted, the

arbitrator was already aware of the essential facts contained on the tapes—that is, that

Mickens originally lied and insisted that he completed the job assignment. Accordingly, 4 the District Court did not err in reasoning that the recordings were not material to the

arbitrator’s decision and their nondisclosure did not deprive CBF of a fair proceeding.

See Envtl. Barrier Co., LLC v. Slurry Sys., Inc.,

(7th Cir. 2008) (there

must be “a nexus between the purported fraud and the arbitrator’s final decision”). 2

For the foregoing reasons and substantially for the reasons explained in the

District Court’s opinion, we will affirm the judgment of the District Court.

2 We also reject CBF’s argument that the arbitrator manifestly disregarded the law by not applying the “clock stops” doctrine. Assuming, without deciding, that manifest disregard for the law remains a valid ground for vacatur, it is not clear that the clock stops doctrine is the governing law in New Jersey. Nor do we think the arbitrator erred by not reducing the back-pay award by the amount of unemployment benefits Mickens received. 5