Alabama Gas Corporation v. Gas Fitters Local Union No. 548 of the United Association, AFL-CIO-CLC

Filing 32

MEMORANDUM OPINION AND ORDER directing that: (1) Local 548's Motion to Exclude Affidavit and Opinion of Carol S. Dodgen (Doc. # 20 ) is GRANTED; (2) Alagasco's Motion for Summary Judgment (Doc. # 14 ) is DENIED, and Alagasco's request for vacatur of the arbitration award is DENIED; (3) Local 548's Motion for Summary Judgment (Doc. # 16 ) is DENIED in part, with respect to its request for sanctions in the form of attorney's fees and expenses;(4) Local 548's Motion fo r Summary Judgment (Doc. # 16 ) is otherwise GRANTED, and Local 548's request for confirmation of the arbitration award is GRANTED; and(5) The arbitration award dated May 16, 2013, is CONFIRMED, as further set out. Signed by Chief Judge William Keith Watkins on 7/23/14. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALABAMA GAS CORPORATION,
Plaintiff,
v.
GAS FITTERS LOCAL UNION NO. 548
OF THE UNITED ASSOCIATION,
AFL-CIO-CLC,
Defendant.

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CASE NO. 2:13-CV-580-WKW

MEMORANDUM OPINION AND ORDER
This case is before the court on the plaintiff/counter-defendant Alabama Gas
Corporation’s (“Alagasco”) Motion for Summary Judgment (Doc. #14), the
defendant/counter-claimant Gas Fitters Local Union No. 548 of the United
Association, AFL-CIO-CLC’s (“Local 548”) Motion for Summary Judgment (Doc.
#16), and Local 548’s Motion to Strike an Evidentiary Submission (Doc. #18). The
parties have briefed these motions, and they are ripe for resolution. Local 548’s
motions are due to be granted in part and denied in part, and Alagasco’s motion is
due to be denied.

I. JURISDICTION AND VENUE
The court has original jurisdiction over the actions brought by the parties
pursuant to section 301 of the Labor Management Relations Act, 29 U.S.C. § 185.
The parties do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
The parties agree that summary judgment is especially appropriate in a
review of an arbitration award in which there is no material factual dispute. To
succeed on summary judgment, the movant must demonstrate “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and the
inferences from that evidence in the light most favorable to the nonmovant. JeanBaptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This responsibility includes

identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id. Or a movant who does not have a trial burden of production
can assert, without citing the record, that the nonmoving party “cannot produce
admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see
also Fed. R. Civ. P. 56 advisory committee’s note (“Subdivision (c)(1)(B)
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recognizes that a party need not always point to specific record materials. . . . [A]
party who does not have the trial burden of production may rely on a showing that
a party who does have the trial burden cannot produce admissible evidence to carry
its burden as to the fact.”). If the movant meets its burden, the burden shifts to the
nonmoving party to establish – with evidence beyond the pleadings – that a
genuine dispute material to each of its claims for relief exists. Celotex, 477 U.S.
at 324.

A genuine dispute of material fact exists when the nonmoving party

produces evidence allowing a reasonable fact finder to return a verdict in its favor.
Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
III. BACKGROUND
This is an action for review of an arbitration award rendered pursuant to a
labor-management collective bargaining agreement. Alagasco sued to vacate the
arbitration award, and Local 548 countersued to enforce.

(Def.’s Mot. Stay

Settings, at ¶1.) There is no dispute as to any material fact, and the Arbitrator’s
findings of fact below will not be disturbed by this court. (Id. at ¶¶2-4.) The facts
are briefly summarized here.
Moseley had been employed by Alagasco since July 5, 1989, and had risen
to the position of Senior Mechanic and been designated as a Working Foreman. In
July 2012, Alagasco received a complaint from a co-worker about troubling
statements allegedly made by Moseley that indicated a potential for workplace
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violence, and an investigation ensued. Alagasco managers interviewed Moseley,
in the presence of his union representative, some days later on August 1, 2012. In
that interview, Moseley admitted to the statements attributed to him and to the
possession of a firearm in his personal vehicle in Alagasco’s parking lot. Alagasco
suspended him that day, and then terminated him on August 6, 2012.
Moseley and Local 548 followed the grievance procedure in the governing
Collective Bargaining Agreement, and Moseley’s grievance was referred to
binding arbitration. Arbitrator Jack Clarke held the arbitration hearing on February
22, 2013, to determine if there was just cause for Moseley’s suspension and
discharge, and if any remedy was due. Several Alagasco managers testified, as did
Moseley. Notably, Moseley’s co-workers, including those reporting the troubling
statements, did not testify. Therefore, the Arbitrator did not permit their hearsay
testimony, as reported to Alagasco during the investigation, for the truth of the
matter asserted. The Arbitrator found that Moseley’s “remarks were made in
contexts in which they were not threatening and most [were] not noteworthy with
respect to a propensity for violence.” (Arbitrator’s Op. & Award, at 10.) He
further found that Alagasco conceded that the “main factor” for the discharge was
that Moseley had a loaded handgun in his vehicle in the company’s parking lot,
and such possession was a violation of Alagasco’s employment rules set out in

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Policy No. 401, of which Moseley had been made aware in 2010 and 2011. (Id. at
17-18.) For this reason, he denied the grievance in part.
An element of the just cause standard is that “there is a reasonable
relationship between an employee’s misconduct and the punishment imposed.”
(Id. at 16.) In determining the reasonableness of the punishment, the Arbitrator
considered all relevant factors, including Moseley’s work record and the
seriousness of the misconduct. He found that the misconduct was serious, as “guns
have the potential to inflict serious and indeed mortal injury and have no place in
the workplace.” (Id. at 19.) However, considering Moseley’s “clean disciplinary
record and an outstanding work record developed over 23 years of service” and the
fact that Alagasco learned about the firearm in the vehicle only when Moseley
responded truthfully to Alagasco’s questions, the Arbitrator found that the
discharge “was so excessive a punishment as to exceed the bounds of
reasonableness.” (Id. at 19.) For this reason, the grievance was granted in part.
On May 16, 2013, the Arbitrator directed Alagasco to reduce the discharge to a 30calendar-day suspension, beginning on August 1, 2012, and to reinstate Moseley to
his former job with backpay and full seniority.
Alagasco now challenges the arbitration award on the ground that Moseley’s
reinstatement violates public policy as a matter of law and that Local 548’s
counterclaim is barred by the statute of limitations. Local 548 seeks enforcement
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of Moseley’s reinstatement. Local 548 also moves to exclude the affidavit and
expert opinion of Carol S. Dodgen, which were submitted by Alagasco in support
of summary judgment.
IV. DISCUSSION
A.

Statute of Limitations Has Not Run
In its response to Local 548’s summary judgment motion, Alagasco claims

that Local 548’s counterclaim is filed outside the three-month limitations period set
forth in United Steel v. Wise Alloys, 642 F.3d 1344 (11th Cir. 2011). That threemonth limitations period, however, governs actions to vacate arbitration awards
and thus is inapplicable to Local 548’s counterclaim. The statute of limitations for
actions to enforce arbitration awards is six months. Samples v. Ryder Truck Lines,
755 F.2d 881, 888 (11th Cir. 1985). Assuming the limitations period begins on the
date of the arbitration award, the counterclaim is not barred, as Local 548 filed its
answer and counterclaim on October 2, 2013, less than six months from the date of
the arbitration award on May 16, 2013.

Accordingly, Alagasco’s summary

judgment motion will be denied in part.
B.

Expert Opinion is Excluded
Local 548 filed a motion to exclude the affidavit and expert opinion of Carol

S. Dodgen (Doc. #20) submitted by Alagasco in support of its motion for summary
judgment.

Local 548 argues that the expert evidence is inadmissible as an
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arbitrator’s findings of fact cannot be disturbed on review; new and/or expert
evidence cannot be considered on review; a public policy challenge must be
founded on laws and legal precedents rather than on a factual inquiry; and it is
irrelevant and unhelpful under the Federal Rules of Evidence. The court agrees
with all of the above. Local 548’s motion (Doc. #20) will be granted, and Exhibit
2 to Alagasco’s motion for summary judgment is excluded from consideration.
C.

Public Policy Challenge Fails
Alagasco seeks vacatur of the Arbitration Award on the grounds that

Moseley’s reinstatement violates public policy. Courts play a very limited role in
reviewing arbitral awards, due to the congressionally-mandated preference for
private settlement of grievances under the Labor Management Relations Act.
Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001); United
Paperworkers Int’l Union v. Misco, 484 U.S. 29, 36-37 (1987). Although courts
generally cannot consider arbitration awards on their merits or otherwise second
guess the arbitrator, the question whether an arbitrator’s interpretation of a
collective bargaining agreement is contrary to public policy is one for the courts to
decide. Misco, 484 U.S. at 36-40, 43; W.R. Grace & Co. v. Local Union 759, Int’l
Union of United Rubber Workers, 461 U.S. 757, 766 (1983). However, such
authority is not “a broad judicial power to set aside arbitration awards as against
public policy.” Misco, 484 U.S. at 43. To prevail on the claim of vacatur on
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public policy grounds, Alagasco has the burden to prove three general elements.
First, the arbitrator’s interpretation of the collective bargaining agreement (i.e.,
Moseley’s reinstatement) violates “some explicit public policy that is well defined
and dominant.” Misco, 484 U.S. at 43 (quotation marks omitted). Second, that
policy is ascertainable “by reference to the laws and legal precedents and not from
general considerations of supposed public interests.” Id. at 43 (quotation marks
omitted). Third, the violation of the public policy must be “clearly shown” and not
be based on “speculation or assumption.” Id. at 44.
Alagasco identifies the relevant public policy as its duty to provide a “safe
working environment for Alagasco’s employees and its customers.” (Pl.’s Br.
Supp. Summ. J., at 20.) Alagasco contends that this public policy is ascertained by
reference to the Occupational Safety and Health Act (“OSHA”), which inter alia
imposes an affirmative duty to provide a workplace that is “free from recognized
hazards that are causing or are likely to cause death or serious physical harm.” 29
U.S.C. § 654(a)(1).

To the extent the arbitration award reinstates Moseley’s

employment, Algasco claims that it violates public policy. “Alagasco cannot allow
him to return to the workplace and to serve customers without compromising a safe
environment.” (Pl.’s Br. Supp. Summ. J., at 21).
However, this statute, referred to as the “general duty clause,” does not
constitute an explicit, well-defined, and dominant public policy justifying the
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vacatur of the arbitration award in the case at bar. Of course, there is a general
public interest in maintaining a violence-free workplace, but this is not the type of
public policy that would make Moseley’s reinstatement a violation of the collective
bargaining agreement. Supreme Court precedent is instructive. An arbitration
award requiring an employer to violate judicial orders or to violate the
requirements of Title VII of the Civil Rights Act of 1964 would justify vacatur.
W.R. Grace, 461 U.S. at 766-72. Such violations are not present in Moseley’s
reinstatement. There is no public policy in American law (and certainly not in
current Alabama law, see Ala. Code § 13A-11-90) that requires all employees who
have a gun in their personal vehicle parked on their employer’s property to be
terminated from their employment. Moseley’s reinstatement is more akin to those
in Misco and Eastern Associated. Vacatur of an award to reinstate an employee in
possession of marijuana in another’s car in the parking lot during work hours was
not justified by a general public policy against the operation of dangerous
machinery by persons under the influence of drugs or alcohol. Misco, 484 U.S. at
42-44. Similarly, vacatur of an award to reinstate an employee truck driver who
twice tested positive for marijuana use was not justified by public policy found in
transportation regulations that require sanctions for positive drug tests. Eastern
Associated Coal Corp. v. United Mine Workers of America, 531 U.S. 57, 65-67.

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Even if OSHA’s general duty clause was sufficient to establish public
policy, Alagasco still fails to show that Moseley’s reinstatement is a “clear”
violation of that policy. Misco, 484 U.S. at 44. The arbitrator did not find
Moseley’s employment to be a recognized hazard that has caused or is likely to
cause death or serious physical harm, per 29 U.S.C. § 654(a)(1). The arbitrator did
not even find that Moseley threatened his co-workers, although one would not
know it from a casual reading of Alagasco’s briefing. Alagasco does not argue that
the mere presence of a firearm in the workplace parking lot is the hazard about
which it is concerned. Instead, Alagasco relies on the sensational argument that
the presence of firearms, coupled with threatening behavior, is correlated with
widely-publicized, horrific acts of mass murder. It is axiomatic that correlation is
not causation. Moreover, Alagasco chose not to prove the alleged threats by direct,
reliable evidence.
Absent some reliable evidence of Moseley’s threatening behavior, and some
evidence that his employment will actually or probably cause serious injury or
death, Alagasco is asking this court to engage in “speculation and assumption”
prohibited by Misco.

The parties agreed to binding arbitration conducted by

Arbitrator Clarke, who took the testimony and adjudged the credibility of
witnesses, including Moseley. Although he recognized that firearms have the
potential to inflict serious injury or death and do not belong in the workplace
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(except in the hands of trained security personnel), Arbitrator Clarke did not find
nor conclude that Moseley was a danger to his co-workers. (Arbitrator’s Op. &
Award, at 18-19). To vacate the arbitration award, this court would have to ignore
Arbitrator Clarke’s factual findings and conclusion, assume that Moseley engaged
in threatening behavior despite there being no credible evidence of that fact, and
speculate that the assumed threats would translate into actual violence in the
workplace. The court is simply not authorized to do these things per Misco and
other Supreme Court precedent.
Alagasco relies heavily on Delta Air Lines. Delta had discharged a pilot
who flew a passenger airliner while intoxicated. Although such action was in
violation of Delta procedures, FAA regulations, and the criminal law, the
arbitration panel found no just cause for the discharge and reinstated the pilot. The
Eleventh Circuit vacated the arbitration award, reasoning that the pilot’s
misconduct was “inextricably related to the performance of employment duties,”
and thus Delta had a duty to prevent the wrongdoing by discharging the pilot.
Delta Air Lines v. Air Line Pilots Ass’n, 861 F.2d 665, 674 (11th Cir. 1988).
However, Moseley’s misconduct is unlike that of Delta’s pilot in at least three
significant ways. First, Moseley’s misconduct was not integral to the performance
of his employment duties. Second, Moseley may have violated Alagasco’s Policy
No. 401, but he did not violate federal agency regulations and the criminal law that
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formed the basis of a well-defined and dominant public policy. Third, Moseley’s
reinstatement was not a clear violation of any public policy. Delta Air Lines is not
controlling here.1
The court is not unsympathetic to Alagasco’s concerns about workplace
violence and about violations of its clear and well-founded rules against guns in the
workplace. Moseley earned discipline; the arbitrator’s determination that his
termination was unreasonable and that a lesser penalty was due, however, cannot
be vacated for the reasons stated. Alagasco’s motion for summary judgment will be
denied, Local 548’s motion for summary judgment will be granted, and the
arbitration award will be confirmed.
D.

Attorney’s Fees Are Not Due
Local 548 claims that it is entitled to an award of attorney’s fees and

expenses. The Eleventh Circuit has indicated a willingness to sanction “those who
attempt to salvage arbitration losses through litigation that has no sound basis in
the law applicable to arbitration awards.” B.L. Harbert Int’l v. Hercules Steel Co.,
441 F.3d 905, 914 (11th Cir. 2006), questioned on other grounds as stated in
Frazier v. Citifinancial Corp., 604 F.3d 1313, 1321 (11th Cir. 2010). In light of
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Several cases citing Delta point out Delta’s disagreement with Misco, or they otherwise
disagree with, doubt, decline to follow, or distinguish the holding and rationale in that case.
Borrowing a phrase from another court, “it is difficult to reconcile either the rationale or result,”
Am. Postal Workers Union v. United States Postal Serv., 789 F.2d 1, 9 (D.C. Cir. 1986), in Delta
Air Lines with Supreme Court precedent. See also Stead Motors of Walnut Creek v. Auto.
Machinists Lodge No. 1173, 886 F.2d 1200, 1215 (9th Cir. 1989). Regardless, the case at bar is
distinguishable from Delta Air Lines.
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the Delta Air Lines precedent in this circuit, which arguably supports Alagasco’s
position despite ultimately being inapposite to the facts in this case, the court finds
that Alagasco did not take a wholly unreasonable position in challenging the
arbitration award. Thus, sanctions against Alagasco are unfounded and Local 548’s
claim for attorney’s fees and expenses will be denied.
V. CONCLUSION
Accordingly, it is ORDERED that:
(1) Local 548’s Motion to Exclude Affidavit and Opinion of Carol S.
Dodgen (Doc. #20) is GRANTED;
(2) Alagasco’s Motion for Summary Judgment (Doc. #14) is DENIED, and
Alagasco’s request for vacatur of the arbitration award is DENIED;
(3) Local 548’s Motion for Summary Judgment (Doc. #16) is DENIED in
part, with respect to its request for sanctions in the form of attorney’s fees and
expenses;
(4) Local 548’s Motion for Summary Judgment (Doc. #16) is otherwise
GRANTED, and Local 548’s request for confirmation of the arbitration award is
GRANTED; and
(5) The arbitration award dated May 16, 2013, is CONFIRMED. Final
Judgment in favor of Local 548 and against Alagasco will be entered in accordance
therewith.
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DONE this 23rd day of July, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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