Sindical v. Pepsiamericas, Inc.
| Decision Date | 04 September 2009 |
| Docket Number | Civil No. 08-1510(DRD). |
| Citation | 652 F.Supp.2d 189 |
| Parties | Movimiento Solidario SINDICAL, Plaintiff, v. PEPSIAMERICAS, INC., Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Manuel A. Rodríguez-Banchs, Rio Piedras, PR, for Plaintiff.
Enrique R. Padró, Juan J. Casillas-Ayala, Fiddler, González & Rodríguez, San Juan, PR, for Defendant.
The above captioned case constitutes an appeal of an arbitration award rendered by an arbitrator of the Conciliation and Arbitration Bureau of the Department of Labor of the Commonwealth of Puerto Rico. (Case A-07-2402, Award, Docket No. 13-4.) The arbitrator was Jorge L. Torres, the current chief of the Bureau. The arbitration award was issued on January 25, 2008 and notified via regular mail to the Human Resources Department of Pepsiamericas, Inc., hereinafter referred to as "Pepsi" or "Pepsiamericas," counsel José Silva Cofresí and counsel Juan J. Casillas-Ayala at the firm of Fiddler González & Rodríguez, and to Manuel Rodríguez Banchs, legal counsel for the union, Movimiento Solidario Sindical, hereinafter referred to as the "Union" or "Movimiento Solidario."
As set forth in the arbitration award, the arbitration award constituted a resolution by the arbitrator of a controversy as to the justification for the termination of an employee, Mr. José Rodríguez. (See Award, Docket No. 13-4.) The arbitrator found that the employee's termination was justified as the employee was terminated pursuant to a Rule and Regulation established by the company, Rule (3)(c), "providing" a false [dishonest] statement whether verbal or written ["to his supervisor"], (Docket No. 19-10). The employee asked for some time off work during a morning for a specific reason, which was false, from his superior only to use the time granted by the company for a totally different reason. He provided a material false statement to his supervisor at least for a false reason against Rule (3)(c), therefore a "false statement". The union urged the arbitrator the applicability of another rule, Rule 12(c), that the employee was off route (Docket No. 13-4 p. 8). The union also alleged a disparate treatment as to the application of Rule 3(c). The arbitrator rejected the union's allegations. "The evidence offered by the union in no way shows any type of disparate treatment."
The arbitrator also rejected the allegation that this case was not one of work abandonment. "Obviously this case before us is another; in this case, we are before a false statement to its supervisor." (Docket No. 13-4 p. 8, Award.) The arbitrator found that pursuant to the Management Rights, Article 30 of the Collective Bargaining Agreement, Rule (3)(c), was validly established by the company. The arbitrator found the facts simple in nature. The court explains.
The employee asked his supervisor to grant him some hours in the morning to pick up his daughter in school as she was sick. However, the company later verified that he was at the NLRB to handle a matter "which had nothing to do with the company [Pepsi]." (Docket No. 13-4 p. 4.) The parties stipulated that on the day in question "... plaintiff José Rodríguez was at the National Labor Relations Board from 9:15 a.m. to 12:15 p.m." (Arbitration Award, Docket No. 13-4, p. 3.) The arbitrator using jurisprudence of Puerto Rico as to dishonesty and the labor arbitration treatise of Elkouri & Elkouri, How Arbitration Works, 4th Ed., BNA, Washington, D.C. (1985), as his underlying foundation found the termination justified.1
The Union timely challenged the arbitration award on February 25, 2008 before the Commonwealth of Puerto Rico, Superior Court, San Juan Section, on February 25, 2008. The Petition to Review in the last page certifies by counsel that a copy of the Petition to Review was sent on the same date to the Arbitration and Conciliation Bureau and to counsels José A. Silva Cofresí, Enrique R. Padró, and Juan J. Casillas at Fiddler González & Rodríguez. (Docket No. 1-2, Opposition to Award, an appeal to the Award filed originally in state court).2
The company, Pepsi, removed the case to federal court on May 2, 2008 (Docket No. 2). The employer and the union are an "employer" and a "union" as defined under the Labor Management Relations Act, 29 U.S.C. 152(2) and 29 U.S.C. 152(5). Hence, a suit to challenge an arbitration award falls within § 301 of the Labor Management Act, 29 U.S.C. 185. Fant v. New England Power Service, 239 F.3d 8, 14 (1st Cir.2001).
The union, "Movimiento Solidario," moved to remand (Docket No. 7) alleging that the thirty days established by the statute, 28 U.S.C. 1446(b), to remove to federal court had elapsed since they had sent a copy of the complaint via regular mail on the same date of filing the complaint in the Superior Court of the Commonwealth of Puerto Rico; further forty-five days had elapsed since the local court requested them to respond to the Petition of Review, which is also notified via regular mail by the local court. Plaintiff, the union, further alleged that the defendant, Pepsi, submitted to the jurisdiction of the local court when "sixty days after service of the complaint" the employer filed a Motion to Dismiss in state court on April 28, 2008 (Docket No. 1-5). (But the Motion to Dismiss in state court was precisely due to lack of jurisdiction alleging that Pepsi had not been timely served with the Petition to Review the award.)
The employer Pepsi filed an opposition to plaintiff's request to remand basically alleging that they never timely received the Petition to Review before the Commonwealth court filed by the union. The company alleged to have received a copy only after counsel Juan J. Casillas requested a copy from counsel for the union, only after receipt of an order from the local court referring to an apparent review of the award filed in state court; all deducted from the received court order. The employer alleged not to have notice nor to be obligated to remove as the order of the court did not attach a copy of the Petition to Review. The union finally sent a copy of the Petition for Review of the award to the counsel which was received by counsel for Pepsi on April 29, 2008. The company alleges in the opposition to remand (Docket No. 9) that the removal period of thirty days begins to run from actual receipt of the Petition to Review the award on April 29, 2008. As to the union alternate allegation that the term begins after the order of the state court on March 18, 2008, the employer simply states that the request of the union is against the clear language of the statute since the order of the state court does not constitute service of the complaint as the court order never included the Petition to Review. The company annexed three sworn statements by all counsel handling the case at the Arbitration Bureau that the firm received the state court order on April 25, 2008 referenced to an appeal to an award. Counsel Silva Cofresí then made a request to his secretary to attempt to find a file with the captioned no. KAC 2008-0253 in the labor law office of the firm. None was found. The same was requested from co-counsels Juan J. Casillas and Enrique R. Padró. Casillas spoke on the phone on that day, April 25, 2008, via a phone call to counsel for the union Manuel Rodríguez Banchs. Attorney Rodríguez Banchs informed of the Petition to Review arbitration award A-07-2402. A copy of the Petition for Review was received on April 29, 2008 in the offices of counsel Silva Cofresí after the phone call of counsel Casillas with counsel Rodríguez Banchs.
The case presents two issues. First, is the removal timely pursuant to federal law; if not, the court must remand. Second, should the district court not remand, should the court then reverse or affirm the award.
The union alleges, in the Motion to Remand (Docket No. 7), that they filed the case in the Superior Court of Puerto Rico on February 25, 2008. The local court further ordered the Pepsiamericas on March 17, 2008 to respond to the petition within forty-five days. The company subsequently filed a Motion to Dismiss in the local court on April 29, 2008 alleging that since they had not received a copy of the complaint in timely fashion, within thirty (30) days of the arbitration decision, the appeal had not been timely perfected and hence, the local court lacked jurisdiction.3 The union acknowledged a phone call from counsel for the defendants on April 25, 2008 asking if a Petition to Review the award had been filed. Counsel for the union was shocked when he was advised that counsel for the employer had not received the request to review. As a courtesy, the counsel for the union sent a copy of the Petition to Review to the counsel for the company Silva Cofresí on Monday, April 29, 2008.
The union balks alleging that they notified the Petition for Review via regular mail on February 25, 2008. The union alleges lack of jurisdiction as the company did not file the removal request until May 2, 2008.
As stated above, the company Pepsiamericas claims not receiving the Petition for Review until April 29, 2008 and hence the "removal" is timely within the required thirty days under 28 U.S.C. § 1446. The company also, as stated above, provided three sworn statements; one in particular providing a statement as to ordering the secretary to provide a search in the offices for a file of the Petition to Review relating to the court order received.
The court referred the matter to the Magistrate Judge on October 27, 2008, (Docket No. 28). The Magistrate Judge rendered a reasonable opinion recommending that the court hold a hearing on the matter. (R & R at Docket No. 38.) But the court need not make any credibility determination. The court explains.
Precisely, to avoid issues on credibility of receipt of service, the Supreme Court of the United States issued a...
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