EXQUISITO SERVICES v. Restaurant Workers Local, C-3-83-742.

• Decision Date: 01 February 1984
• Docket Number: No. C-3-83-742.,C-3-83-742.
• Citation: EXQUISITO SERVICES v. Restaurant Workers Local, 579 F.Supp. 873 (S.D. Ohio 1984)
• Parties: EXQUISITO SERVICES, INC., Plaintiff, v. BARTENDERS, MOTEL, HOTEL AND RESTAURANT WORKERS LOCAL UNION NO. 222, Defendant.
• Court: U.S. District Court — Southern District of Ohio

579 F. Supp. 873

EXQUISITO SERVICES, INC., Plaintiff, v. BARTENDERS, MOTEL, HOTEL AND RESTAURANT WORKERS LOCAL UNION NO. 222, Defendant.

No. C-3-83-742.

United States District Court, S.D. Ohio, W.D.

February 1, 1984.

Robert E. Portune, Dayton, Ohio, for plaintiff.

Bruce E. Pence, Dayton, Ohio, for defendant.

DECISION AND ENTRY SUSTAINING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DEFENDANT'S REQUEST FOR ATTORNEY'S FEES OVERRULED; PLAINTIFF'S MOTION TO VACATE ARBITRATION AWARD OVERRULED; TERMINATION ENTRY

RICE, District Judge.

Plaintiff Exquisito Services, Inc., brought suit to vacate an arbitration award rendered in favor of an employee represented by Defendant Bartenders, Motel, Hotel and Restaurant Workers Union No. 222 (Union). Defendant has moved for summary judgment, contending that this Court should not disturb the arbitrator's decision, and for an award of attorney's fees. For the following reasons, the Court sustains the Defendant's motion for summary judgment but declines to grant attorney's fees.

I. Background

The parties do not dispute the relevant facts although, as will be noted below, Plaintiff suggests that greater factual development of the record is in order. Plaintiff provides cafeteria services to Wilberforce University in Wilberforce, Ohio, and is a party to a collective bargaining agreement (CBA) with the Union, covering nonsupervisory cafeteria employees. On November 24, 1982, one Shirley Day, a cafeteria employee (and union steward) engaged in a verbal confrontation with a supervisor, refused to work, and walked off the job, apparently followed by virtually all other employees. By a letter dated December 10, 1982, Plaintiff notified Ms. Day of her termination for "gross insubordination," and for causing a "work stoppage," in violation of Arts. VI and IV, § 1, respectively, of the CBA.

The CBA in question contains a grievance procedure culminating in "final and binding" arbitration. Art. V, § 4. The provisions which the Company accused Ms. Day of violating are as follows:

ARTICLE IV—NO STRIKE—NOT LOCK OUT—Section 1. During the life of this Agreement, the Union shall not cause, authorize, participate, nor condone any strike, slowdown, sitdown, work stoppage, nor any other employees meeting during working hours, or other concerted interruption or interference with the business of company, including picketing of the Company's premises; nor will the Company lock out item employees in connection with any labor dispute. Section 2. Any violation of this Article by an employee or employees shall constitute cause for discharge of the employee or employees who participate therein provided the Company has not locked out its employees.

. . . . .

Section 4. Any violation of Section 1 above by any employee shall constitute just cause for disciplinary penalty as the Company may determine, subject to the grievance and arbitration procedure of this Agreement. However, if an arbitrator finds that any employee has violated Section 1 herein, he shall have no power to modify the disciplinary action taken by the Company with respect to such employee.

ARTICLE VI—EMPLOYEE DISCIPLINE —It is understood and agreed that the Company shall have the right to make and enforce work rules which are not in conflict with this Agreement, for the purpose of governing the conduct of its employees. Serious violations of the Company rules, such as dishonesty, fighting on Company or Client property, use of intoxicating beverages or drugs, gross insubordination, etc., shall be grounds for immediate discharge. It is also understood that the Company and the Union subscribe to the principle of progressive discipline. When an employee is found to be in violation of Company rules, of a less nature than is outlined above, he shall be given a written warning for the first such violation. In the event that an employee's conduct should continue to be unacceptable, he may be given a disciplinary layoff as a result of such unacceptable conduct or violation of the Company rules. All write-ups and warnings are to be brought to the attention of the Union Steward. Copies of all written warnings or disciplinary actions shall be given to the employees, the Union Steward, the Union, and a copy will be placed in the employee's personnel file.

As per the CBA, the Union grieved the discharge. The matter went to arbitration, and after a hearing, an arbitrator on June 22, 1983, sustained the grievance and ordered Ms. Day reinstated with full back pay. More specifically, the arbitrator first related the facts as he found them. In brief, he found that a supervisor requested Ms. Day, after she returned from a Union meeting, to clean a certain oven, to which she refused. They then exchanged some words. The arbitrator then found:

At that time, the Union officials who were in the process of departing were called by the other employees and came to the Grievant's work area and observed her throw a cold cup to the floor and express that she was tired of the "damned" place. The other employees that had witnessed this confrontation, escorted the crying Grievant from the area. After the Manager finished cleaning the oven, he went through the cafeteria and observed only two employees in any of the other areas.

Award at 2. The arbitrator then held that the grievance had been filed in a timely manner, id. at 6-8, and that while Ms. Day's "refusal to perform the work" made her "a proper subject for discipline," it did not constitute "gross insubordination," and a lesser penalty than discharge was in order. Id. at 8-9. Finally, the arbitrator addressed Plaintiff's position that Ms. Day's actions violated Art. IV, § 1, of the CBA by "causing" a strike or work stoppage:

Such an interpretation of this provision in the Contract is untenable. Almost every act of insubordination will draw the attention of other workers and interfere with their labor and, although this cannot be condoned, it is not tantamount to a work stoppage. Article IV must be read to infer an overt effort to seek or slow work or at least direct encouragement to do so, not mere distraction.

Id. at 9-10.

Plaintiff thereafter filed suit in the Greene County (Ohio) Court of Common Pleas, seeking to vacate the arbitrator's decision pursuant to Ohio Rev.Code § 2711.10. The Union removed the case to this Court, under 28 U.S.C. § 1441, contending that the action arose under Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Plaintiff did not oppose removal, and the removal appears to be proper. See, Franchise Tax Board v. Construction Laborers Vacation Trust, ___ U.S. ___, 103 S.Ct. 2841, 2853-54, 77 L.Ed.2d 420 (1983).

II. Issues

According to Plaintiff, the arbitrator decided three issues, only the last of which it challenges in this lawsuit. The arbitrator "correctly" held that the grievance was filed in a timely manner. Plaintiff's Memorandum Contra, Doc. # 5, p. 3. Next, the arbitrator held that Ms. Day was not guilty of "gross insubordination," an incorrect decision according to Plaintiff, but "because the standards for judicial review prohibit challenge to `factual' determinations of an arbitrator, no challenge is made thereto." Id. Finally, Plaintiff does challenge the "blatant failure of the arbitrator to apply a clear contractual requirement," id., namely, Art. IV, § 1 of the CBA, covering whether a grievant "caused an interference with the Company's business." Id.

In addition, Plaintiff contends that this Court should not rule on the motion for summary judgment filed by the Union until a more "complete record" is before the Court, including notes taken by the arbitrator (as a transcript of the arbitration hearing is unavailable). Id. at 6. The Court does not agree. The Union argues in its motion that the arbitrator's decision should be upheld, and has provided a copy of the grievance, the CBA, and the arbitrator's decision. As will be outlined below, an arbitrator's factual findings can be challenged in Court, to the limited extent they have "no support whatever" in the record. Inasmuch as Plaintiff does not challenge the arbitrator's factual findings, the Court finds it unnecessary to order further expansion of the record.

Most challenges to arbitration decisions under LMRA § 301 are decided on cross-motions for summary judgment on a paper record, see, Storer Broadcasting Co. v. American Federation of Television and Radio, 600 F.2d 45, 49 n. 15 (6th Cir.1979), although, as Plaintiff correctly points out, a district court can order further discovery (such as requiring the arbitrator to clarify his award), id. at 47-48, or hold a trial to resolve disputed issues of fact. Such procedures are not in order herein, since Plaintiff is only challenging the arbitrator's construction of the CBA, not his factual findings. While in some circumstances review of extrinsic evidence may be appropriate to discern the intent of the drafters of a CBA, cf. United States Steel Corp. v. NLRB, 711 F.2d 772, 779 n. 7 (7th Cir.1983), the additional evidence Plaintiff refers to would have no impact on the meaning of the CBA herein. Pursuant to Fed.R.Civ.P. 56, the Union has properly supported its motion for summary judgment, demonstrated that there are no genuine issues of material fact, and the motion is properly before the Court for decision. Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319, 1324 (6th Cir. 1983).

III. Review of Arbitrator's Decision

The parties agree on the law applicable to Court review of an arbitrator's decision. Recently, this Court summarized that law.

It is well settled that a federal court's review of an arbitration decision, derived from the provisions of a CBA, is quite narrow. Courts may not review the merits of an arbitration, and can only determine if the arbitral award drew "its essence from" the CBA. W.R. Grace & Co. v. Rubber Workers Local 759, ___ U.S. ___, 103 S.Ct. 2177, 2182 76 L.Ed.2d 298 (1983) (quoting, Steelworkers v. Enterprise Wheel &

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