United Food & Commercial Workers Local 100A, AFL-CIO & CLC v. John Hofmeister and Son, Inc.

• Citation: 950 F.2d 1340
• Decision Date: 27 December 1991
• Docket Number: AFL-CIO,No. 91-1049,91-1049
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: 139 L.R.R.M. (BNA) 2110, 60 USLW 2480, 120 Lab.Cas. P 11,097 UNITED FOOD & COMMERCIAL WORKERS LOCAL 100A,& CLC, Plaintiff-Appellant, v. JOHN HOFMEISTER AND SON, INCORPORATED, an Illinois corporation, Defendant-Appellee.

Page 1340

950 F.2d 1340

139 L.R.R.M. (BNA) 2110, 60 USLW 2480,

120 Lab.Cas. P 11,097

UNITED FOOD & COMMERCIAL WORKERS LOCAL 100A, AFL-CIO & CLC, Plaintiff-Appellant, v. JOHN HOFMEISTER AND SON, INCORPORATED, an Illinois

corporation, Defendant-Appellee.

No. 91-1049.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 31, 1991.

Decided Dec. 26, 1991.

As Corrected Dec. 27, 1991.

Herbert V. Adams, Chicago, Ill. (argued), for plaintiff-appellant.

Carol B. Manzoni (argued), Carol L. O'Brien, Ross & Hardies, Chicago, Ill., for defendant-appellee.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and WISDOM, Senior Circuit Judge. ¹

BAUER, Chief Judge.

This case arises from disputes between Local 100A of the United Food & Commercial Workers International Union ("the Union") and John Hofmeister and Son, Inc. ("Hofmeister"), a Chicago meat packing company. The Union filed a two count complaint under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185-187 (1988). In the first count, the Union sought to enforce an arbitration award benefitting Luis Hernandez, a wrongfully discharged Hofmeister employee. In the second count, the Union sought to compel Hofmeister to arbitrate Arturo Chavez' (another employee) grievance.

The district court granted Hofmeister's motion for summary judgment on both counts, and the Union appealed. We reverse the district court as to count one, and remand the case to the arbitrator for further proceedings. We affirm the district court's holding on count two. Because counts one and two concern two completely independent disputes, we shall deal with each separately.

I.

Luis Hernandez worked as a meat shoveler for Hofmeister. In this capacity he was required to move about 18,000 pounds of meat per day, 50 to 100 pounds at a time. On June 1, 1988, Hernandez injured his back while shoveling meat. He was unable to return to work for several months after his injury. Hernandez was certified by his doctor as being sufficiently recovered to return to work on December 5, 1988. When he returned to work on December 11, 1988, his supervisor informed him that he had been terminated for failing to follow company rules and regulations for reporting work injuries. During the first two months following Hernandez' injury, Hofmeister paid him health, welfare, and pension benefits, as required by the collective bargaining agreement. Yet the company fired him on September 4, 1988, "for failing to report in to the Company to explain his subsequent three month absence from work." Appellee's Br. at 6. In other words, the company paid Hernandez health benefits during July and August of 1988 on account of his injury, but fired him on September 4, 1988, for failing to explain his absence from work.

The Union filed a grievance on Hernandez' behalf, and the matter was presented to an arbitrator on November 6, 1989 pursuant to the terms of the collective bargaining agreement. The arbitrator "carefully reviewed and studied all of the testimonial and documentary evidence submitted" and found that Hofmeister violated the collective bargaining agreement by firing Hernandez without just and sufficient cause. Decision of Arbitrator at 7, 11, Appellee's Supp.App., Ex. 6. The arbitrator found that the Company knew Hernandez was absent because of his back injury and it received valid medical evidence regarding the injury. The arbitrator also found that Hernandez had complied with Hofmeister's reporting procedures.

Based on these findings the arbitrator held on January 3, 1990, that "[t]he grievant must be reinstated and made whole." The dispute in count one centers on the meaning of this award. Hofmeister reinstated Hernandez in February 1990. After a few days, Hernandez had difficulty performing his duties. It is not clear whether he then resigned or was discharged. Hofmeister refused to pay Hernandez any back pay for the period between his dismissal on September 4, 1988 and his reinstatement in February 1990. Hofmeister contends that Hernandez is not entitled to the back pay under the "make whole" award because, even if he had not been terminated wrongfully, Hernandez would have been unable to perform his duties. Because it paid him all the health benefits due him under the contract during July and August of 1988, Hofmeister contends that it has complied fully with the arbitrator's award. Thus, its position is that its wrongful discharge of Hernandez is basically irrelevant, and any back pay award would be a windfall to Hernandez.

It does not appear that Hofmeister raised any of these arguments before the arbitrator. In fact, the only evidence bearing upon Hernandez' condition during the period between discharge and reinstatement that the arbitrator considered was the medical disability certificate prepared by a Dr. Byla. This certificate indicated that Hernandez could return "to regular work duties" on May 30, 1989, if he wore "lumbo-sacral support." Disability Certificate, Appellant's Appendix C.

The Union filed suit in district court, contending that Hernandez, regardless of his condition in February 1990, was entitled to $13,074.40 in lost wages and vacation pay, health, welfare, and pension benefits under the arbitration award. Complaint at 4. It is unclear from the record, however, what period of time this claim for wages covers. In some of its pleadings and on appeal, the Union appears to contend that based upon a doctor's certificate, Hernandez was fit to return to his regular duties on May 30, 1989. Therefore he is entitled to pay and benefits from that date until his reinstatement in February 1990. The Union's position is basically that without some back pay award, the arbitrator's award would be a nullity.

After the Union filed suit, Hofmeister took discovery on Hernandez' injury. On its motion for summary judgment, it submitted evidence it contended established that Hernandez could not have performed his duties at any time after his injury. This evidence included Hernandez' deposition testimony that he could no longer work as a meat shoveler.

In deciding the summary judgment motion, the district court refused to consider the Disability Certificate prepared by Dr Byla. The certificate was not accompanied by an authenticating affidavit, so the district court concluded that it was inadmissible. The court similarly refused to admit other medical documents the Union submitted because it believed they were unauthenticated, and even if properly authenticated, they were illegible and therefore inadmissible on that basis. Hofmeister's evidence, which the court found was properly authenticated, therefore stood unrebutted. Consequently, the district court entered summary judgment in Hofmeister's favor. Based upon our decision, we find it unnecessary to determine the propriety of the district court's evidentiary rulings.

II.

We review the district court's grant of summary judgment de novo to decide whether the record as a whole establishes that Hofmeister was entitled to judgment as a matter of law. See, e.g., Santella v. Chicago, 936 F.2d 328, 331 (7th Cir.1991); First Wisconsin Trust Co. v. Schroud, 916 F.2d 394, 398 (7th Cir.1990). Moreover, judicial review of an arbitration award is extremely limited. E.I. Du Pont de Nemours & Co. v. Grasselli Employees Indep. Ass'n, 790 F.2d 611, 614 (7th Cir.), cert. denied, 479 U.S. 853, 107 S.Ct. 186, 93 L.Ed.2d 120 (1986).

This low standard of review is essential to prevent a 'judicialization' of the arbitration process. Arbitration is an alternative to the judicial resolution of disputes, and an extremely low standard of review is necessary to prevent arbitration from becoming merely an added preliminary step to judicial resolution rather than a true alternative.

Id. (citations omitted).

The issue in count one is whether Hofmeister has complied with the arbitrator's award requiring that Hernandez be reinstated and made whole. Hofmeister contends that it complied with the award based on its assumption that the award only required that Hernandez be reinstated to the position he would have been in had there been no wrongful discharge. This contention is remarkably similar to the employer's position in Chicago Newspaper Guild v. Field Enterprises, Inc., 747 F.2d 1153 (7th Cir.1984).

In Chicago Newspaper, the Union filed a grievance on behalf of a discharged employee. After holding hearings, an arbitrator ordered the employee reinstated and paid back pay. Id. at 1155. After the employee was discharged, but while the arbitration proceeding was pending, the employer laid off 550 employees. Neither party informed the arbitrator of the layoffs. After the award issued, the employer sent the employee a letter stating that he had been reinstated as of February 1, 1977 (the day after his discharge) and laid off as of March 7, 1978 (the date of the other layoffs). Thus, the employer contended, had the employee been on the active payroll, he would have been laid off. The employer paid the employee back pay and vacation benefits only for the period between the retroactive reinstatement and layoff. Id. The union sued the employer to enforce the arbitration award, alleging that the employer's actions failed to comply with the award. The union argued that the employer was required to return the employee to the active payroll, and to provide back pay for the entire period between the discharge and reinstatement.

This court refused to accept the employer's argument and affirmed the district court's grant of summary judgment in favor of the union. We stated:

[E]ven if [the employer] were able to prove that [the employee] would have been laid off in March 1978, we would not accept such an argument in this enforcement proceeding because it was not presented to the arbitrator below. The long-established federal policy of settling labor disputes by arbitration would be seriously undermined if parties kept available information from the arbitrator and then attempted to use...