Holodnak v. AVCO CORP., AVCO-LYCOMING D., STRATFORD, CONN.

Decision Date15 August 1974
Docket NumberCiv. A. No. B-15.
Citation381 F. Supp. 191
CourtU.S. District Court — District of Connecticut
PartiesMichael HOLODNAK, Plaintiff, v. AVCO CORPORATION, AVCO-LYCOMING DIVISION, STRATFORD CONNECTICUT and Local 1010, United Auto Workers of America, Stratford, Connecticut, Defendants.

COPYRIGHT MATERIAL OMITTED

Eugene N. Sosnoff, Sosnoff, Cooper & Whitney, New Haven, Conn., for plaintiff.

Robert J. Cooney and Edward Maum Sheehy, Pullman, Comley, Bradley & Reeves, Bridgeport, Conn., for defendant, Avco-Lycoming Div. of Avco Corp.

Daniel Shepro, Goldman & Rosen, Bridgeport, Conn., for defendant, Local 1010, United Auto Workers of America.

LUMBARD, Circuit Judge:*

Michael Holodnak brings this action against Avco-Lycoming Division of Avco Corporation and Local 1010 of the United Auto Workers of America, challenging his dismissal on May 28, 1969, for publishing an article critical of company and union practices. He claims $79,569.88 in damages with interest and counsel fees of $50,000.

In his first cause of action, Holodnak argues that the award of arbitrator Burton Turkus, upholding his discharge, should be vacated under § 10 of the Federal Arbitration Act, 9 U.S.C. § 10, because of the "evident partiality" of the arbitrator and because the arbitrator exceeded his power, principally by making an award in disregard of Holodnak's First Amendment rights.1 In his second cause of action, Holodnak maintains that his discharge violated his contractual rights under the collective bargaining agreement, and he should therefore be reinstated and fully compensated for losses suffered, pursuant to § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. In his final cause of action, Holodnak asserts that Local 1010 breached its duty of fair representation, thereby entitling him to reinstatement and monetary damages, also under § 301 of the LMRA.2

Holodnak's allegations were substantially denied by both defendants, who also raised three special defenses: that the plaintiff had failed to state a claim upon which relief could be granted; that the suit was barred by the statute of limitations; and that, under the contract between Avco and Local 1010, the arbitrator's conclusion that there was "just cause" for Holodnak's discharge was final and binding.

On July 17, 1970, Judge Zampano denied motions by the defendants Avco and Local 1010 to dismiss. After discovery and a pre-trial conference, cross motions for summary judgment by the plaintiff and the defendant Avco were heard by Magistrate Latimer who recommended denial, which was so ordered by Judge Zampano. A two-day trial without a jury then commenced before this court on April 29, 1974.

I.

On May 28, 1969, at approximately 9:30 a. m., Holodnak received a written notice that he was to report to Avco's labor relations office for a "disciplinary hearing." At 10 a. m., accompanied by his shop steward, Frank Guida, and committeeman Joe Mezick, Holodnak entered the labor relations office, where several management officials were present. William Ashlaw, a company representative showed Holodnak a copy of an article written by the plaintiff and published in the AIM Newsletter of May 15, 1969. The article is reproduced as an appendix to this opinion. The newsletter, a biweekly, was published in New Haven by the American Independent Movement, whose activities included running a candidate for Congress. The AIM Newsletter's circulation was approximately 750. There was no evidence concerning how many, if any, of Avco's employees received this publication.3

Ashlaw informed Holodnak that this article violated plant conduct rule 19 which provided:

The below listed rules constitute prohibited conduct. Offenses under these rules may be cause for suspension or discharge.
. . . . . .
19. Making false, vicious or malicious statements concerning any employee or which affect the employee's relationship to his job, his supervisors, or the Company's products, property, reputation, or good will in the community.4

Ashlaw read several paragraphs from the article aloud. The article, which was two printed pages, generally criticized both Avco and Union officials. Holodnak wrote that the "current course of moderation, charted by the Shop Committee, is alienating and frustrating the membership to no end." He accused the company, "like all large corporations," of engaging in "union busting tactics, which run the gamut from sweet talk, giving special privileges to company oriented candidates, . . . to making it miserable for and sometimes firing the really dedicated unionists, and last but not least, buying off whatever other effective opposition may be left with a foremanship." Turning then to the tactics which the workers might employ, the plaintiff noted that it is "probably true that wildcat strikes are not the answer, but wildcats wouldn't even be tempting if we had a good solid union that knows where it's at and that does not, through the grievance procedure, compromise away our rights. Yet it is comforting to have wildcats in our arsenal of weapons, just in case."

The process for resolving grievances came under particular attack. Holodnak wrote that "the company gets away with its devious and unfair labor practices because the company is above the law, (even the more naive realize this) and the biased judges and arbitrators, for all practical purposes, belong to the company. The most recent example was the firing of the twenty-two so-called `hard core of miscreants.' From his Heavenly perch the `impartial' Arbitrator, backing up the company, pronounced his God-like opinion upon us poor sinful mortals while praising the pure-as-the-snow `patient company' to the high heavens."

Holodnak concluded by emphasizing "that nothing has ever been accomplished by so-called `reasonable people' . . . The labor movement itself would have never been born if the workers had been `reasonable.'"

Ashlaw asked Holodnak whether he subscribed to the views expressed in the article and Holodnak said he did. Ashlaw then questioned a company security officer about the American Independent Movement and asked whether it was on the Attorney General's subversive list. The security officer answered that it was not. At the end of the meeting, despite a request by committeeman Joe Mezick to have a lesser charge carrying a reduced penalty brought against Holodnak, Ashlaw asked for Holodnak's badge and informed him that he was discharged. Holodnak had worked at the Avco plant for nine years, first as a tool-and-die maker and then as a small-parts inspector.

Following his discharge, the plaintiff contacted George Johnson, an attorney for AIM. It was agreed that Holodnak should permit the union to pursue the normal three-stage grievance procedure and then, if necessary, resort to arbitration. The grievance procedure proved unsuccessful and an arbitration hearing at the union's request was scheduled. Prior to this hearing, Holodnak asked that Edward Burstein, the attorney for Local 1010, represent him. Although union members were usually represented by a committeeman at arbitration proceedings, the union attorney did so from time to time. On July 8, 1969, Johnson, the AIM attorney who was advising Holodnak, spoke with Burstein on the phone and offered his assistance. Burstein expressed his pleasure at Johnson's offer, but never communicated with him again.

On July 17, 1969, the arbitration was held before arbitrator Burton Turkus at the Howard Johnson Motor Inn in West Haven, Connecticut. Here Burstein met the plaintiff for the first time. In the course of their ten or fifteen minute meeting, Burstein read the controversial article for the first time.

When the arbitration began, Burstein asked to be informed which rule Holodnak had been accused of violating.5 After being informed, Burstein indicated Holodnak's right of free speech was at stake. But later when the arbitrator asked whether Holodnak would be attacking Plant Conduct Rule 19 on First Amendment grounds, Burstein agreed that rule 19 was a "fair and reasonable rule, regulation, policy requirement" and that the rule did not infringe on "the exercise of free speech."6

As the arbitration proceeded, the company representative, along with arbitrator Turkus, inquired into the plaintiff's political and social views as well as his personal background. He was asked about the books he read, the candidates he supported for political office, and his views on "corporatism." Most striking was the extent to which the arbitrator participated in this irrelevant and, at times, offensive questioning. Thus, at one point he asked Holodnak whether he had travelled to Cuba in 1960 and had written articles based on his experiences and his views of the "Castro system." He questioned Holodnak repeatedly about his motives for writing the article which had led to his discharge.

Emphasis throughout the proceeding seemed to be on instructing Holodnak on the mistake of his ways. At one point the arbitrator told him, referring to Holodnak's comments suggesting that the union was not doing all that it might, "Now you know differently, don't you." At another point, the arbitrator instructed him:

"Well, don't you know, as a fact, when you wrote the article, that you have here a very militant and zealous union that seeks the protection of the rights of its membership and seeks to endorse (sic) all Company obligations under the contract. Didn't you know that when you wrote the article?"

Throughout this line of questioning the union attorney made no objection. Indeed, the record of the arbitration reveals only the most half-hearted efforts on his part to object to the irrelevant and improper statements made by the arbitrator and the counsel for Avco.

Testimony at the trial revealed that Holodnak's article was less vituperative and critical of company and union practices than numerous other articles and leaflets, many of which had been distributed at the plant by the union. These leaflets...

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