476 F. Supp. 165 | E.D. Pa. | 1979
MEMORANDUM AND ORDER
Mack Transportation Company (“Mack”) instituted this action pursuant to Section 301 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185, Sections 10 and 11 of the Federal Arbitration Act, 9 U.S.C. §§ 10 and 11, and the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, in order to vacate or modify an award of the Joint Local City Grievance Committee (“JLC”) of Allentown, Pennsylvania. The material facts in this case are not in dispute, and Mack, the employer, and defendant Local 773 have moved for summary judgment.
The underlying dispute arose when Mack discharged Bruce Bowman (“Bowman”), a member of defendant union, on June 21, 1977. Bowman worked at Mack’s Philadelphia terminal from June 11, 1973 until February, 1976. In February, 1976, following his submission of a successful bid, Bowman was transferred to Mack’s Fogelsville operation which was opened to serve a single customer, Cotter & Co. In June, 1977, Mack investigated Bowman’s performance after receiving certain complaints from Cotter & Co. As a result of its investigation, Mack discharged Bowman for his alleged falsification of logs, violation of Department of Transportation hours, abuse of time, travel at excessive speeds, unauthorized use of equipment, and delay of equipment. Exhibit B to Complaint. Bowman and the Union grieved the discharge. Because the grievance was not resolved, it was submitted to the JLC pursuant to Article 43, Section 1(f) of the Central Pennsylvania Over-the-Road and Local Cartage Supplemental Agreement (“the Agreement”).
The JLC is composed of four persons, two of whom are named by the union and two of whom are named by the Motor Carriers Conference members. Article 43, Section 1(a). The Agreement provides that “a majority decision of the Committee shall be final and binding on all parties.” Article 43, Section 1(f). On July 8, 1977 the JLC announced its unanimous decision that “[b]ased on the facts presented, in lieu of discharge [Bowman] be returned to work with a 30 day suspension. To return to work on July 20,1977.” Exhibit C to Complaint. The JLC further listed its award as follows: “30 day suspension and returned to work with all seniority and benefits.” Id.
Unwilling to reinstate Bowman at Fogelsville,
On July 6, 1978, the JLC issued its clarification:
Bruce Bowman be reinstated by Mack Transportation Co. in seniority order at Fogelsville today (July 6, 1978). Based on the facts presented Bruce Bowman is to receive all back fringe benefits from July 20,1977 and all money due him that was earned by the next man junior to him minus unemployment and any money he earned from other employers.
Exhibit D to Complaint. Mack thereafter filed this action seeking to vacate or modify the JLC’s second unanimous award.
The scope of review of a labor arbitration award is narrow.
Mack’s most fundamental attack upon the JLC’s award is that the JLC exceeded its authority in reducing Bowman’s discharge to a suspension.
Even if the Agreement could not be read to grant the JLC such expansive powers, we believe that the award in this case would have to be upheld nonetheless. The JLC’s award in this case is not accompanied by a written explanation of its reasoning or a listing of its findings.
We have considered plaintiff’s other attacks upon the JLC’s award, see note 3 supra, and we find them to be without merit. We note that although Mack now challenges the JLC’s authority to determine whether Bowman was to be reinstated in Philadelphia or Fogelsville, Mack itself previously contended that the JLC’s original award was defective in that it failed to specify where he should be returned to work. See note 2 supra. Moreover, our Order of April 24, 1978 clearly requested
We also reject Mack’s contention that the JLC erred in refusing to consider the earnings Bowman would have earned had he accepted Mack’s offer of employment in Philadelphia. The JLC’s award does deduct from Bowman’s back pay amounts that he has earned from other employers. The issue of employment in Philadelphia, however, was one of the very items contested by the parties on which the JLC was eventually required to rule. Because the JLC specifically decided that Bowman was to be reinstated in Fogelsville, we do not believe that Bowman’s refusal to accept the offer of reinstatement in Philadelphia by itself requires that his back pay award be reduced. We note that this is not a case in which Bowman’s former position in Fogelsville ceased to. exist. Rather, Mack’s reluctance to reinstate Bowman in Fogelsville was based on its own dealings with its customer, Cotter & Co., who is neither a party to the Agreement between Mack and Local 773 nor a party to this lawsuit. Although we do not minimize the practical import of these considerations, they do not rise to such a level that it can be said that Bowman’s former position no longer exists.
We shall therefore grant defendant’s motion for summary judgment and enforce the award of the JLC that Bowman be reinstated at Fogelsville and be awarded back pay and fringe benefits. Although we enforce the JLC’s award, it is necessary to remand to the JLC for a determination of the exact amount due Bowman. See United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 599, 80 S.Ct. 1358. The formula devised by the JLC deducts from Bowman’s award the amounts derived from unemployment compensation and other employment. The JLC must now determine what those amounts are.
In the absence of any specific statutory authorization for the award of attorneys’ fees in cases of this type, and because we find that plaintiff’s attempt to vacate or modify the JLC’s award was not brought in bad faith, the union’s request for attorneys’ fees will be denied. General Telephone Co. v. IBEW Local 89, 554 F.2d 985 (9th Cir. 1977); Machinists & Aerospace Workers Lodge 335 v. Chicago Pneumatic Co., 452 F.Supp. 592 (W.D.Pa.1978).
. At the time of Bowman’s discharge, Mack’s Fogelsville employees serviced Cotter & Co. exclusively on a common carrier basis. Hanlon Affidavit ¶ 7. Cotter informed Mack that “it did not want and would not permit Mr. Bowman to haul any of its goods or otherwise perform services for it.” Id. at ¶ 12. Mack therefore argues that it is necessary that Bow
. In its memorandum in support of its motion for summary judgment in the earlier action, Mack contended: “The ‘Award’ is defective in that, it fails to specify, inter alia, ...(e) how, where and to what position Mr. Bowman should be returned . . . .” Defendant’s Memorandum in Support of Motion for Summary Judgment at 13. Local 773, International Brotherhood of Teamsters v. Mack Transportation Co., C.A. No. 77-3804 (E.D.Pa.).
. Mack attacks the JLC award on the following grounds:
(1) The JLC exceeded the scope of its power and authority under the collective bargaining agreement;
(2) The Report does not draw its essence from the collective bargaining agreement;
(3) The JLC manifestly and arbitrarily disregarded the collective bargaining agreement, as well as established principles of labor and industrial common law;
(4) The Report of July 6, 1978 is arbitrary, capricious and without rationale [sic] basis;
(5) The JLC so imperfectly executed its powers that a final and definite Report upon the subject matter was not made;
(6) The Report of July 6, 1978 is so egregiously in error that it must be set aside, vacated and declared to be null and void and of no legal effect.
Plaintiffs Motion for Summary Judgment at 2-3.
. The scope of review is not altered by the fact that we are reviewing 'the award of a joint committee rather than that of a single arbitrator. General Drivers, Warehousemen & Helpers Local Union No. 89 v. Riss & Co., 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963). The Agreement in this case establishes that a majority decision of the JLC is final and binding. Article 43, Section 1(f).
. Article 44 of the Agreement, which regulates discharges and suspensions, provides:
The Employer shall not discharge nor suspend any employee without just cause but in respect to discharge or suspension shall give at least one (1) warning notice of the complaint against such employee to the employee, in writing, and a copy of the same to the Union affected, except that no warning notice need be given to any employee before he is discharged if the cause of such discharge is dishonesty, proven theft, drunkenness, drinking alcoholic beverages, or while under the influence of alcoholic beverages, or narcotics, the use of narcotics (as described in the Federal Pure Food and Drug Act), barbiturates, or amphetamines, or the possession of narcotics named above during a tour of duty, refusal to submit to a Sober-Meter, other sobriety or blood alcohol test, recklessness resulting in a serious accident while on duty, failure to report an accident, unprovoked assault on an Employer or management supervisor, carrying of unauthorized passengers or willful abuse of Company equipment. The warning notice as herein provided shall not remain in effect for a period of more than nine (9) months from the date of said warning notice. Discharge or suspension must be .by proper written notice to the employee and the Local Union at the time discharge or suspension is imposed. Any employee discharged away from his home terminal shall be provided the fastest available transportation to his home terminal at the Employer’s expense. Any employee may request an investigation as to his discharge or suspension. Should such investigation prove that an injustice has been done an employee, he shall be reinstated. The Joint Local City Grievance Committee and the Joint Area Grievance Committee shall have the authority to order full, partial or no compensation for time lost. Appeal from discharge, suspension, or warning notice must be taken within three (3) days by written notice, and a decision reached within seven (7) days from the date of discharge, suspension or warning notice. If the employee involved is not within the home terminal area when the action of discharge, suspension or warning notice is taken the three (3) day period will start from the date of his return to his home terminal. If no decision has been rendered on the appeal within seven (7) days, the case shall then be taken up as provided for in Article 43, Section 1 of this Agreement.
Uniform rules and regulations with respect to disciplinary action may be drafted but must be approved by the Joint Area Grievance Committee. Such approved uniform rules and regulations shall prevail in the application and interpretation of this Article.
. There is, of course, no requirement that the arbitrator give reasons for an award. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358 (1960), In a case such as this, however, in which counsel have represented to the court that no record was made of the proceedings before the JLC, a more detailed report would assist a court required to review the award and would undoubtedly enhance the respect of the contracting parties for the dispute resolution mechanism.
. On remand, the JLC must also specify the back fringe benefits to which Bowman is entitled.
. In general, a back pay award is computed by subtracting actual interim earnings from what the employee would have earned had he not been discharged. A discharged employee, however, must make reasonable efforts to obtain other employment to mitigate his losses. Cf. Oil, Chemical & Atomic Workers International Union v. N. L. R. B., 178 U.S.App.D.C. 301, 547 F.2d 598 (D.C.Cir.1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). This duty may include, in certain circumstances, the obligation to accept an offer of reinstatement. We have already determined that Bowman was not required on the facts of this case to accept Mack’s offer of reinstatement in Philadelphia. On remand, however, the JLC should determine whether Bowman made reasonable efforts to obtain other suitable employment during periods in which he was unemployed. If he did not, his award should be reduced accordingly.