INTERNATIONAL U. OF DIST. 50, UMW v. Bowman Transp., Inc.

• Decision Date: 26 January 1970
• Docket Number: No. 28197 Summary Calendar.,28197 Summary Calendar.
• Citation: 421 F.2d 934
• Parties: INTERNATIONAL UNION OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA, Plaintiff-Appellee, v. BOWMAN TRANSPORTATION, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

421 F.2d 934 (1970)

INTERNATIONAL UNION OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA, Plaintiff-Appellee, v. BOWMAN TRANSPORTATION, INC., Defendant-Appellant.

No. 28197 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

January 26, 1970.

William M. Pate, Mitchell, Pate & Anderson, Atlanta, Ga., for defendant-appellant.

James W. Dorsey, Nall, Miller, Cadenhead & Dennis, Atlanta, Ga., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CARSWELL, Circuit Judges.

PER CURIAM:

This is an appeal from a judgment of the district court ordering the enforcement of an arbitration award in an action brought by the union under Section 301 of the Labor Management Relations Act as amended, 29 U.S.C.A. § 185, and the award of costs and attorneys fees incurred by the union.¹

For the reasons well stated by the district court in its unpublished memorandum order reprinted here, we affirm the order enforcing the arbitration award.

On the question of the award of attorneys' fees, we also affirm. The district court has authority to award attorneys' fees where it determines that a party has without justification refused to abide by the award of an arbitrator. Local No. 149 I.U.A., A. & A.I.W. v. American Brake Shoe Co., 4th Cir. 1962, 298 F.2d 212.

Under all the facts and circumstances of this particular case, we are unable to hold that the district court abused its discretion in awarding costs and attorneys' fees incurred by the union. See Dallas Typographical Union No. 173 v. A. H. Belo Corp., 5th Cir. 1967, 372 F.2d 577, 583.

Affirmed.

APPENDIX

ORDER FOR JUDGMENT IN FAVOR OF UNION

Both parties have moved for judgment on the pleadings, under Rule 12(c), Fed. R. Civ.P.

The International Union of District 50, United Mine Workers of America (hereafter the Union) has sued Bowman Transportation, Inc. (hereafter the Company) under Section 301 of the Labor Management Relations Act, as amended, 29 U.S.C.A. § 185, for enforcement of an arbitration award. The Company and the Union entered into a collective bargaining agreement which provided for the final resolution of disputes as to the interpretation and application of the agreement by impartial arbitration. On December 10, 1968, the Union and the Company submitted the following issue to arbitration:

Was the discharge of Elmer O. Cox on July 18, 1968, for cause? If not, what is the remedy?

Following a hearing on December 26, 1968, the arbitrator ordered Cox reinstated with seniority from the date of employment, without back pay. The Company has refused to comply with this award.

In its answer, the Company admits that it has refused to comply with the award of the arbitrator, but it denies this refusal is a violation of the collective bargaining agreement. The Company claims that the arbitrator's award conflicts with his findings and with the contract, therefore the award was beyond the arbitrator's authority.

Both the Company and the Union agree that no question of fact is involved here, only a question of law involving the correct interpretation of the arbitrator's award. This is an appropriate matter to be resolved on the pleadings pursuant to Fed.R.Civ.P. 12(c).

Upon consideration of all pertinent matters, the court orders judgment in favor of the Union, enforcing the arbitrator's award, and denies the Company's motion for judgment. This decision is based both on the collective bargaining agreement and on national policy.

First, the court finds that the arbitrator's award does "draw its essence from the collective bargaining agreement" as required by United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L. Ed.2d 1424 (1960). The arbitration clause is not narrowly drawn except as to employee discharges for violation of Article XII which contains a no-strike agreement. There is no similar restriction of the arbitrator's power in the case of an Article XI discharge such as presently is before the court. Since the Company was able to bargain for restrictions on the arbitrator's power in Article XIII violations it must be assumed they could also have sought the same limitations for Article VI violations. Applying the principle expressio unius est exclusio alterius, the court concludes here the arbitrator's function and power was not limited to determining if the Company was justified in concluding that the grievant was negligent. Rather, the collective bargaining agreement in this case envisaged that the arbitrator would "bring his informed judgment to bear in order to reach a fair solution" of a problem, "especially in formulating remedies." Enterprise, supra at 597, 80 S.Ct. at 1361. Discharge is often referred to as industry's capital punishment and in the absence of a restriction clause expressly limiting the function and power of the arbitrator, it is within the arbitrator's power to modify this ultimate sanction. See International Association of Machinists, District No. 8, AFL-CIO v. Campbell Soup Company, 406 F.2d 1223 (7th Cir. 1969).

A second reason for upholding the award is found in a possible ambiguity in the arbitrator's findings. The Company claims the grievant was found guilty of negligence by the arbitrator. This is not accurate. It was stated that without...