*1 given he should have been plaintiff insists suggests no evidence by jury, trial be ma- have been offered that would could letter. legal sufficiency of the terial to the judgment The is affirmed. Kortenhof, M. Ely, Joseph Kortenhof & Louis, Mo., appellee. for
St. Brown, Jr., Hale W.
Hale W. and Brown
Kirkwood, Mo., appellant. for McMILLIAN, HEANEY, and AR- between the Matter of the Arbitration
NOLD, INC., Appellant, GRAHAMS SERVICE PER CURIAM. Missouri ser This is an action under the (Richard D. LOCAL 975 TEAMSTERS statute,
vice-letter 290.140. Mo.Ann.Stat. § Larson), Appellee. is whether the rea question presented No. 82-1180. discharge, stated in the plaintiff’s son for given employer, service letter to him his Appeals, United States Court with the sufficiently specific comply was Eighth Circuit. Court,* F.Supp. statute. The District 14, 1982. Sept. Submitted given held that the reason was suffi Nov. Decided
ciently specific, granted summary judg ment for the defendant. We affirm. stated, in pertinent
The service letter
part:
Mr. Newton was terminated ... due to handling in the
improprieties
salvage. District Court observed that generali-
courts of Missouri held
ties do not meet the standards of the ser- statement,
vice-letter statute. A for exam-
ple, employee given that an has “unsatisfac- service” is insufficient. In the instant
tory
case, however, the service letter is more previous than involved in
detailed those of reasons
cases that have held statements discharge Although insufficient. certainly gone
letter could have into more
detail, accept appli- we the District Court’s a service
cation of Missouri law. Whether sufficiently
letter is on its face is a specific
question of law suitable for decision on Although summary judgment.
motion for * Meredith, James H. Senior United Missouri. Hon. Judge States District for the Eastern District of *2 Minn., Grossman, Minneapolis, L.
Robert appellant. for Hoffman, Lindgren, Larkin, Daly & Ltd. Deitzen, Nordby, Jack Christopher J. S. Minn., appellee. Minneapolis, BRIGHT, LAY, Judge, and Chief GIBSON, JOHN R.
LAY, Judge. Chief Inc., ap- petitioner, Grahams Service of sum- from the district court’s order peals affirming an arbitrator’s mary judgment respondent Union. award in favor of The arbitrator held and or- discharged employee, an wrongfully pay. and back dered reinstatement respon- and the petitioner company into a collective bar- dent Union entered in part: which stated agreement, gaining Discharge: and Discipline Article 4— discharge any shall not Employer shall just cause and employee without notice to the warning least one give at A complaint. of the writing employee must also be warning notice copy of Union, warning no except that sent to the employee given to the notice need be cause of discharged if the before he is dishonesty, major viola- discharge is such conflict rules that do not tion of drinking while Agreement, with this request an may Any employee duty. on and discharge his as to investigation that an prove investigation should employee, been done injustice has at compensated reinstated shall be while he has been pay his usual rate out of work. words, the company discharged legiti- an em- arbitrator’s decision “is
ployee, D. Larson. Larson filed a only long Richard so as it draws its essence mate grievance against company; the matter bargaining agreement.” from the collective eventually was submitted to.an arbitrator v. Enterprise United Steelworkers Wheel & pursuant to bargaining agree- the collective 593, 597, Corp., Car U.S. S.Ct. *3 ment. 1361, (1960). E.g., 4 1424 United L.Ed.2d Workers, Local Food and Commercial No. The arbitrator decided in favor of Larson Inc., Processors, 222 v. Iowa Beef 683 F.2d Union, and the and ordered reinstatement 283, (8th Cir.1982); 285 Vulcan-Hart Corp. pay. and back that arbitrator reasoned Stove, Appliance Furnace & Allied Work- the company prove did not that Larson 110, ers International Union Local No. 671 violated the collective bargaining agree- 1182, (8th Cir.1982); F.2d 1184 Rainbow ment, and therefore that Larson was enti- 610, Glass Co. v. Local Union No. 663 F.2d tled to at least one written warning before 814, Service, (8th Cir.1981); he 817 Ford Parcel justifiably discharged. could be Since the company gave Helpers Larson no written warn- Inc. v. Miscellaneous Drivers and ing regarding 610, 387, the (8th offense for which he was F.2d 390 Union No. 656 Cir. discharged, the arbitrator concluded' that 1981). company the bargain- violated the collective review, Recognizing our limited of scope
ing agreement.
company
argues
the
nonetheless
that
the
The company
petitioned
then
the United
pertinent
arbitrator’s refusal
to hear
evi-
States District Court for the
of
District
postpone
dence and his refusal to
the hear-
vacating
Minnesota for an order
modify-
or
ing constitute misconduct under 9 U.S.C.
ing the arbitrator’s
The company
award.
10(c),
the
and therefore
award should be
§
alleged that
the
guilty
arbitrator was
of
vacated.
refusing
misconduct
in
to
the
postpone
10(c)
may
Section
states that a court
va-
hearing
refusing
and in
to hear certain evi-
cate an arbitrator’s award:
dence,
therefore, pursuant
to 9 U.S.C.
guilty
Where the arbitrators were
of
10(c), the award should be vacated.
§
refusing
postpone
misconduct
in
to
the
However, the district court concluded that
shown,
hearing, upon sufficient cause
petitioner
the
had failed to “submit suffi-
in
hear evidence
refusing
pertinent
to
cient extrinsic evidence to make a threshold
controversy;
and material
to the
or of
misconduct”;
showing of
the
accordingly,
any
by
other misbehavior
which the
district court quashed
company’s
the
sub-
rights
any party
prejudiced.
of
been
arbitrator,
poena
depose
to
the
and ulti-
10(c).
9 U.S.C. §
granted
mately
the Union’s motion for sum-
mary judgment.
10(c)
the
passing on section
Third Cir
cuit
an
the
requires
has held that
error that
appeal,
On
the company alleges that
“must
one that
is
vacation of
award
be
dispute
there was a sufficient factual
re-
law,
not
an error of
but which so
simply
garding the
alleged
arbitrator’s
misconduct
rights
affects
a
that it
party
may
the
be
summary judgment
so that
should not have
fair
deprived
said that he was
of a
hear
granted.
been
company
argues
also
Stereotypers’
18
ing.” Newark
Union No.
prejudiced by
it was
the fact that the
Co.,
Morning Ledger
v. Newark
397 F.2d
represented
law firm that
the
in
Union
this
594,
denied,
954,
(3d Cir.),
599
cert.
393 U.S.
represented
company
case has
the
previous-
378,
(1968).
365
89 S.Ct.
L.Ed.2d
ly on unrelated matters. We affirm the
Inc. v.
Tug
Barge,
also Totem Marine
&
judgment of the district court.
Inc.,
Towing,
North American
607 F.2d
The Arbitrator’s Award.
(5th Cir.1979);
Aerospace
Bell
Co. v.
is
Our review limited to a determi
Cir.1974).
(2d
Local
500 F.2d
the
bargaining
nation
collective
whether
agreement
happened
the
this
in this
gave
say
arbitrator
the authori
We cannot
that at
the
ty
company alleges
to make the decision he did.
In other
case. The
hearing,
counsel,
the arbitrator
cation of the
although
excluded notarized
Union’s
letters, offered by
company
the
in lieu of
the issue
judge
did raise
before the trial
at
testimony,
work
pertaining
hearing
to
rec-
the
on the
Larson’s
Union’s motion for sum-
ord. The arbitrator
to post- mary judgment.
also refused
The district
judge
court
pone
hearing
the
to allow
to
felt
apparently
potential
the
the
conflict of in-
produce
replace
witnesses to
evidentiary
terest was resolved when he
received
let-
However,
value of the
president
excluded letters.
ter from the
of the company ad-
or testimony
counsel,
letters
to
dressed
the Union’s
relating
Larson’s
in which the
president
work record
waived
may
any potential
be said to have been of
conflict of
little relevance when
before
interest
Union’s counsel.
the issues
arbitrator were whether
conduct
Larson’s
Counsel
company argues
a major
constituted
of company
violation
counsel
Union’s
also acted
improperly
rules, and,
not,
if
whether
letter,
the waiver
obtaining
since it commu
*4
warned Larson in
it
writing before
dis-
nicated with
adverse
to
party it knew be
charged him. Company representatives
represented by
lawyer.4
a
The district
were allowed to testify regarding the na-
court apparently felt
that disqualification
offense,
ture of Larson’s
was
which
the was
Regarding
not warranted.
both of
primary issue before the arbitrator.
allegations,
these
we
on
cannot
the
say
of
light
these
cannot
considerations it
be
presented
sparse record
here that
the dis
complains
said that the acts the company
of
trict
decision
court’s
was an abuse of discre
it of a fair
deprived
hearing.1
tion.
company may
The
have had suffi
of
Conflict
Interest.
to discharge
cient cause
Larson in this case.
company finally
contends that
the
However,
of the
arbitra
because
nature of
Union’s counsel acted
when it
improperly
purpose
serves,
tion and the
it
be
it would
matter,
represented the Union in
since
this
improper for either this court or
district
the
it
previously represented
had
the company
court to vacate the arbitrator’s
that
decision
on various matters
litiga-
unrelated to this
the
erred
procedurally
discharg
in
tion.2
and,
ing
according
Larson
to the terms of
Even if it were found that
the
the
agreement,
must be reinstated.
Union’s counsel
of
violated the Code
Profes
Judge Learned Hand’s statement
in Ameri
(and
sional
no
Responsibility
we make
as
can Almond Products Co. v. Consolidated
that
sumption
did), disqualification
counsel
Sales,
Cir.1944),
144
(2d
Pecan
F.2d 448
is
not be
would
the automatic result. The
here:
appropriate
whether
decision
to
rests
disqualify counsel
may may
not be a desira-
Arbitration
court,
in the sound discretion of the district
courts;
for trials in
as to
ble substitute
decision
and its
not be overturned ab
will
parties must decide in each in-
showing
sent
of a
of discret
clear abuse
it,
adopted
they
stance. But when
ion.3
be
they must
content with its informali-
ties;
record on
this
with
they may
hedge
this issue in
case is
not
it about
sparse.
apparent-
Counsel for the
limitations which it is
procedural
those
ly
formally
disqualifi-
They
never
must
purpose
moved for the
its
to avoid.
precisely
Sentry
Coop.
company’s
Food
3. Central Milk Producers
the letters
contention that
Inc.,
Stores,
988,
improperly
by
Cir.1978);
(8th
573
were
excluded is weakened
F.2d
Spencer
Investigators
company general manager
Meat Price
Ass’n v.
statement
Inc.,
Foods,
163,
Cir.1978);
secretary
(8th
corporate
in her
that she
572 F.2d
affidavit
Weber,
Co.,
considered,
although
Fred
Inc. v. Shell Oil
the letters
566 F.2d
believed
were
denied,
discussed,
Cir.1977),
by
(8th
cert.
his decision.
436 U.S.
not
arbitrator
(1978).
mations to the enforcement of their
rights than those that the law accords
them, when they resort to its machinery.
Id. at 451. GIBSON,
JOHN R. Circuit Judge, con-
curring.
I concur in the result reached
majority. However, I would make clear the Court is squarely deciding not
issue of whether the United States Arbitra- applies
tion Act to the review of labor arbi- awards,
tration an issue on which courts are
presently divided. MacDougall, Richard G. City, Salt Lake America, UNITED STATES Utah, defendant-appellant Wells. *5 Plaintiff-Appellee, Brass, Utah, Edward K. Lake City, Salt brief, filed a for defendant-appellant Lee. Walz, Stewart C. Asst. Atty., U.S. Salt and Donald Lee Edward LEE
Charles City, (Brent Ward, Lake Utah D. U.S. Wells, Defendants-Appellants. Atty., Utah, City, Salt Lake with him on brief), for plaintiff-appellee. 81-2086, 81-2084, 81-2380 Nos. and 81-2381. McWILLIAMS, LOGAN and SEYMOUR, Circuit Appeals, United Court States Tenth Circuit. SEYMOUR, Judge. Jan. 1983. Charles Edward Lee and Donald Lee Wells were convicted a jury of armed March 1983. Rehearing Denied bank under robbery 2113(a), 18 U.S.C. §§ 13, 1983. Certiorari Denied June (d) (1976). appeal On they challenge the S.Ct. admission of certain evidence from an al- legedly search, unconstitutional the use of a photo array, and the district court’s failure to order a new trial on newly the basis of discovered evidence. We affirm. Defendants were robbing accused of Ogden South Branch of the Bank of Utah. robbery took place morning of De- 5, 1980, cember when men two demanded from money Tracy tellers Laura Rackham Judy Ann Burt. The robber at Rack- cage ham’s pulled gun from his overcoat counter, pocket and rested it on the aiming $2,126,
it at her. The robbers took includ- ing in “bait money” ($20-bills whose $500 recorded) serial had numbers been and sev- eral hundred dollars in one-dollar bills. Meanwhile, officers of the Marshal’s U.S. Denver, Colorado, office in had been seek-