Burns Intern. Sec. Services, Inc. v. International Union, United Plant Guard Workers of America (UPGWA) and Its Local 537

• Decision Date: 07 February 1995
• Docket Number: D,No. 415,415
• Citation: 47 F.3d 14
• Parties: 129 Lab.Cas. P 11,275 BURNS INTERNATIONAL SECURITY SERVICES, INC., Plaintiff-Counter-Defendant-Appellant, v. INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA (UPGWA) AND ITS LOCAL 537, Defendant-Counter-Claimant-Appellee. ocket 94-7001.
• Court: U.S. Court of Appeals — Second Circuit

Page 14

47 F.3d 14

129 Lab.Cas. P 11,275

BURNS INTERNATIONAL SECURITY SERVICES, INC., Plaintiff-Counter-Defendant-Appellant, v. INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA

(UPGWA) AND ITS LOCAL 537,

Defendant-Counter-Claimant-Appellee.

No. 415, Docket 94-7001.

United States Court of Appeals, Second Circuit.

Argued Oct. 27, 1994.

Decided Nov. 14, 1994.

Opinion Filed Feb. 7, 1995.

Stewart J. Katz, Keller, Thoma, Schwarze, Schwarze, DuBay & Katz, P.C., Detroit, MI, for appellant.

Scott A. Brooks, Gregory, Moore, Jeakle, Heinen, Ellison & Brooks, P.C., Detroit, MI (Lisa S. Lane, of counsel); Gregg D. Adler, Gould, Livingston, Adler and Pulda, Hartford, CT, for appellee.

Before: VAN GRAAFEILAND, McLAUGHLIN, and LEVAL, Circuit Judges.

PER CURIAM:

Burns International Security Services ("Burns") provides security workers to Northeast Utilities' Millstone Nuclear Power Plant, located in Waterford, Connecticut. Pursuant to a collective bargaining agreement between Burns and the United Plant Guard Workers of America, Local 537 (the "Union"), the Union represents the security employees. The agreement requires that Burns have "just cause" before discharging a Union employee, and calls for arbitration of any disputes that cannot be resolved internally. Northeast Utilities is not a party to the collective bargaining agreement; its plant is merely the work site for the Burns employees. Northeast Utilities does, however, determine who has access to its plant.

Burns employed Jonathan Gomez, a member of the Union, as a security officer at the Millstone site. Burns suspended Gomez on March 21, 1990 following an incident of suspected theft at Millstone. Although Burns' investigation into the incident was inconclusive, Northeast Utilities rescinded Gomez's clearance. Five months later, Burns fired Gomez. The Union brought a grievance on behalf of Gomez, and the matter proceeded to arbitration.

Arbitrator Michael Stutz heard the case. He issued his award on May 15, 1992:

1) The Company violated the provisions of the collective bargaining agreement by its August 15, 1990 removal of Jonathan Gomez from the payroll of the Company.

2) As remedy, the Company shall reinstate Jonathan Gomez to the payroll with full back pay and other benefits under the Contract, minus interim earnings, plus interest at the legal rate. The grievant shall take reasonable steps to minimize the costs of this award to the Company by continuing, or seeking, interim employment, and/or accepting a reasonable offer of employment by the Company.

3) At the Union's request, the undersigned arbitrator hereby retains jurisdiction over the implementation of the remedy for a period of 90 days.

Burns never reinstated Gomez. Instead, on August 12, 1992, it filed a petition in the United States District Court for the District of Connecticut (Dorsey, Judge ) to vacate the arbitration award. The district court granted the Union judgment on the pleadings under Fed.R.Civ.P. 12(c) and summary judgment on its counterclaim to enforce the arbitration award. Burns appeals.

(1) Timeliness of Burns' petition

Judgment on the pleadings is appropriate if, from the pleadings, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 12(c); see George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 n. 2 (1977).

Section 301(a) of the Labor Management Relations Act, 29 U.S.C. Sec. 185, provides subject matter jurisdiction for an action to vacate an arbitration award. See Harry Hoffman Printing, Inc. v. Graphic Communications, International Union, Local 261, 912 F.2d 608, 610-13 (2d Cir.1990). Since Sec. 301 does not specify a statute of limitations for commencing an action to vacate an arbitration award, the relevant state statute is borrowed. United Automobile, Aerospace & Agricultural Implement Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966); Harry Hoffman Printing, 912 F.2d at 612-13. The Connecticut Arbitration Act establishes a thirty-day statute of limitations on motions to vacate an arbitration award. Conn.Gen.Stat. Sec. 52-420(b).

The arbitrator in this case issued his award on May 15, 1992. Burns received it on or about May 18, 1992. Since Burns did not file its petition to vacate the award until August 12, 1992, Burns was well beyond the thirty-day statute of limitations, and Judge Dorsey properly dismissed the petition under ...