Airgas West, Inc. v. Hawaii Teamsters and Allied Workers, Local 996
Filing
38
ORDER CONFIRMING IN PART AND REVERSING IN PART ARBITRATION AWARDS re: 1 , 19 . Signed by JUDGE LESLIE E. KOBAYASHI on 4/29/2013. ~ Order follows hearing on Motion for Summary Judgment held February 25, 2013, minutes: doc no. 28 and the Court's Minute Order filed March 28, 2013, doc no. 32 . ~ (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
AIRGAS WEST, INC.,
)
)
Plaintiff,
)
)
vs.
)
)
HAWAII TEAMSTERS AND ALLIED
)
WORKERS, LOCAL 996,
)
)
Defendant.
)
_____________________________ )
CIVIL NO. 12-00454 LEK-KSC
ORDER CONFIRMING IN PART AND
REVERSING IN PART ARBITRATION AWARDS
Before the Court in these matters are: (1) Petitioner
Airgas West, Inc.’s (“Airgas”) Petition to Vacate Arbitration
Award (“Airgas Petition”), filed August 8, 2012 in CV 12-454;
(2) Airgas’ Motion for Summary Judgment, filed December 14, 2012
in CV 12-454 (“Airgas Motion”); and (3) Hawaii Teamsters and
Allied Workers, Local 996’s (“Teamsters” or “union”) Complaint to
Confirm Arbitration Award, filed September 17, 2012 in CV 12-517
(“Teamsters Motion”).
Teamsters filed a memorandum in opposition
to the Airgas Motion on January 24, 2013, and Airgas filed a
reply on February 13, 2013.
Teamsters filed a memorandum in
support of its motion on January 16, 2013.
Airgas filed a
memorandum in opposition to the Teamsters Motion on February 5,
2013, and Teamsters filed a reply on February 10, 2013.
matters came on for hearing on February 25, 2013.
These
Appearing on
behalf of Airgas were Ernest C. Moore, III, Esq., and Thomas J.
Kennedy, Esq.
Esq.
Appearing on behalf of Teamsters was Sean Kim,
On April 1, 2013, the Court granted Airgas’ request to file
supplemental authorities, and on April 11, 2013, the Court
granted Airgas’ Motion to Stay Enforcement until after a final
appealable order or judgment is entered by the Court.
The motions address the Arbitrator’s Findings, Decision
and Award dated June 21, 2012 (“Award”), and the Arbitrator’s
Supplementary Findings and Decision, dated July 10, 2012.
(“Supplementary Award”).1
After careful consideration of the
motions, supporting and opposing memoranda, and the relevant
legal authority, the Arbitration Award and Supplementary Award
are CONFIRMED IN PART and REVERSED IN PART as follows:
The
Airgas Petition and Airgas Motion are GRANTED IN PART AND DENIED
IN PART.
They are DENIED with respect to Airgas’ request to
vacate the Award in its entirety, and GRANTED with respect to the
Supplementary Award on the issue of grievant’s entitlement to
back pay for the entire period.
The Teamsters Motion is GRANTED
in that the Court confirms the arbitration award to the extent it
granted the grievance, but does not confirm the Award or
Supplementary Award in their entirety.
1
The Award is attached as Exhibit 2 to the Airgas Petition,
and as Exhibit 2 to the Teamsters Motion. The Supplemental Award
is attached as Exhibit 5 to the Airgas Petition and as Exhibit 3
to the Teamsters Motion.
2
BACKGROUND
Airgas and the union are parties to a collective
bargaining agreement (“CBA”), and the arbitration awards were
rendered pursuant to the grievance and arbitration provision of
the CBA.2
The following facts are not disputed and are drawn
from the Award.
On April 23, 2012, the parties participated in
an arbitration regarding the termination of Teamsters member
Gordon Oamilda.
Airgas terminated Mr. Oamilda on August 19, 2011
for violation of its sexual harassment policy.
Mr. Oamilda’s co-
worker, Gena Fretty, filed an internal sexual harassment
complaint following a telephone conversation she had with Mr.
Oamilda on August 1, 2011.
service representative.
Ms. Fretty worked as a customer
Mr. Oamilda called the Kapolei Customer
Service Desk from his duty station at the Will Call Dock.
When
Ms. Fretty answered the line, Mr. Oamilda asked to speak to her
co-worker, Tammy Bradshaw.
The Arbitrator set forth the entirety
of the conversation, as reported by Ms. Fretty, as follows:
Gena:
[Gordon], how was your weekend?
Gordon:
Good.
Gena:
Hanging, tired because I went holoholo
Kona this weekend.
Gordon:
Whoa, you went aloha Kona?
Gena:
No, I went holoholo in Kona.
How was your weekend?
2
The CBA is attached as as Exhibit 1 to the Airgas
Petition, and as Exhibit 1 to the Teamsters Motion.
3
Gordon:
I know all the guys you went aloha must
be all happy. Sharing your manapua with
every one. Hahaha.
Gena:
No, Gordon, I went with my boyfriend to
drop off his son.
Gordon:
Oh, your boyfriend, huh. . . .
talk to Tammy.
[Award at 3.]
Let me
Ms. Fretty understood Mr. Oamilda’s remarks, in
this context, to mean that she had indiscriminate sexual
relations, and filed an internal complaint.
Peggy Grzywacz, Director of Human Resources, conducted
an investigation into Ms. Fretty’s complaint.
Ms. Grzywacz is
based on the mainland and was not familiar with the alleged local
slang meanings of “holoholo,” “aloha,” and “manapua,” which
Ms. Fretty found offensive in this context.
Ms. Grzywacz
interviewed Ms. Fretty’s supervisor, Ms. Vivian Lima, who told
her that she believed the comments were sexual in nature, and
that “manapua” can refer to female genitalia and that “aloha”
could mean “sleeping around.”
had such meaning.
Mr. Oamilda denied that the words
Ms. Lima reported to Ms. Grzywacz that, “he’s
full of it,” and that Mr. Oamilda “said things to lots of people
because he’s in the Union and feels he is untouchable.”
8.]
[Id. at
At the hearing, Ms. Grzywacz testified that another employee
confirmed the sexual meaning of these terms.
Ms. Grzywacz conferred with senior management and legal
counsel and determined that termination was the appropriate
4
penalty.
Airgas company policy bans “[v]erbal conduct such as
making or using derogatory comments, epithets, slurs, sexually
explicit jokes, or comments about any individual’s body or
dress.”
[Id. at 7.]
Company policy provides that “appropriate
disciplinary action, up to and including discharge, will be
taken,” commensurate with the severity of the offense.
[Id.]
Teamsters filed a grievance on behalf of Mr. Oamilda, alleging
violations of the CBA and seeking reinstatement.
At the arbitration, the issue was whether Mr. Oamilda
was terminated for “just cause.”
The Arbitrator determined that
the interpretation of the remarks made by Mr. Oamilda to
Ms. Fretty was in dispute.
[Id. at 2, 9.]
He noted that, while
Ms. Fretty and some of her co-workers acknowledge that the words
“aloha,” “manapua,” and “holoholo” are common in Hawai‘i, they
contend that they have indecent meanings as well.
The Arbitrator
stated that he has lived in Honolulu for over 50 years, but is
not familiar with these indecent interpretations.
[Id. at 10.]
To determine whether these words had sexual meanings in slang
usage, he researched the terms in statutes, articles, and
conducted online searches (“googled”).
Notably, he also asked
his adult daughters about the purported meanings and “inquired of
other long time Hawaii residents, ladies (and one gentleman) as
to this ‘Hawaiian common slang’,” but none of them was familiar
with an alternative meaning.
[Id. at 10-11.]
5
The Arbitrator called into question Ms. Fretty’s
credibility and motivation, noting that she previously had a “bad
misunderstanding in 2005,” involving Mr. Oamilda, and that the
two employees had not spoken for several years following that
incident.
[Id. at 11.]
The Arbitrator stated that he was “not
willing to attribute [Ms. Fretty’s] meanings and inferences to
[Mr. Oamilda] or that the ‘obscene’ meanings and definitions
could be attributed to him when he used the Hawaiian words Aloha,
manapua, holoholo, etc.”
[Id. at 12.]
He ruled that, “[u]nder
the circumstances and facts of this case, he is compelled to
conclude that Employer has not met its burden of proof to
establish sexual harassment, indeed not to the extent so to
justify discharge of a long term employee[.]”
[Id. at 13.]
The Award granted the grievance and stated that
Mr. Oamilda was to be “reinstated with full pay, allowances and
seniority.”
[Id. at 14.]
On June 27, 2012, Airgas filed a Motion to Clarify the
Award on the issue of “full pay.”
It argued that “full pay” and
“back pay” are mutually exclusive and the Award did not include a
grant of back pay.
It also argued that Mr. Oamilda failed to
mitigate his damages and did not seek to obtain any employment
upon his discharge.
Further, Mr. Oamilda conceded that he had no
medical records to support his claim that he was too depressed to
seek employment.
The union argued that the Arbitrator did not
6
retain jurisdiction to explain or clarify the Award with respect
to “full pay.”
In the Supplementary Award, the Arbitrator ruled that
Mr. Oamilda is “entitled to be ‘made whole’, that is reinstated
with full back pay, allowances, seniority, including all
contractual benefits (excluding overtime he would have received
had he not been taken off the payroll.”
[Suppl. Award at 2.]
He
also ruled that, while Mr. Oamilda introduced no medical evidence
to support his claim that he was too depressed to seek
employment, Airgas failed to “counter [Mr. Oamilda’s] explanation
as to why he did not attempt to ‘mitigate’ his loss,” and that
“the defense of mitigation must fail.”
[Id. at 4.]
Arbitrator thereby affirmed the Award as clarified.
I.
The
[Id. at 5.]
Airgas Petition and Motion
Airgas seeks summary judgment to vacate the Award and
Supplementary Award on the grounds that the Arbitrator:
(1) committed procedural misbehavior within the meaning of the
Federal Arbitration Act, 9 U.S.C. § 10(a)(3) (“FAA”), by
questioning his daughters and other unidentified individuals
about the meaning of key critical terms in the arbitration
post-hearing, following the closing of the record, and outside
the presence of the parties; and (2) violated due process when he
ruled that Mr. Oamilda was entitled to back pay and ruled that
Airgas had the burden to prove failure to mitigate.
7
[Mem. in
Supp. of Airgas Mot. at 12-13, 17-19.]
vacate the awards.
It asks the Court to
[Id. at 34.]
Airgas argues that the Arbitrator did not properly
interpret the CBA because the Award incorporates evidence outside
of and beyond the record.
Section 17.13 of the CBA states:
The complainant in every hearing before the
arbitrator shall present a prima facie case. In
general, judicial rules of procedure shall be
followed in every hearing, but the arbitrator need
not follow the technical rules of evidence
prevailing in a court of law or equity. The
arbitrator shall make his decision in the light of
the whole record and shall decide the case upon
the weight of all substantial evidence presented.
[Id. at 8-9 (quoting CBA).]
Airgas argues that it could not confront these
witnesses, question them, or submit arguments to the Arbitrator
on the probative value of such evidence.
Airgas maintains that
the evidence obtained in ex parte conversations with the
Arbitrator’s daughters “is particularly significant and
influential because of the understandable tendency of a father to
value highly and share an affinity for solicited statements of
his own daughters.”
[Id. at 12-13.]
It also faults the
Arbitrator for engaging in an independent investigation by
“googling” the meaning of “manapua” and “aloha,” outside of the
record.
[Id. at 13.]
With respect to Mr. Oamilda’s failure to mitigate his
damages, Airgas argues that the Arbitrator refused to acknowledge
8
that Airgas stated at the outset of its briefing that no
remedy was appropriate in this proceeding.
It argues that
Mr. Oamilda failed to mitigate his damages in refusing to seek
other employment, which would have mitigated the amount of back
pay.
[Id. at 17-18.]
It contends that the naked claim of
“depression” was unsubstantiated by the record.
Airgas notes
that the issue of mitigation was raised during the proceedings,
but that the Arbitrator incorrectly ruled that there was some
“burden” on the part of the employer beyond highlighting the
absence of proof for the union’s claim.
A.
[Id. at 18-19.]
Teamsters Memorandum in Opposition
In its opposition, the union states that, while an
arbitrator’s ex parte communication may be grounds to vacate an
award, the burden is on the moving party to demonstrate that it
was prejudiced by the Arbitrator’s action.
It argues that the
Arbitrator’s factual findings were independent of and not
affected by any ex parte communications.
The Arbitrator found
that the indecent meanings were not common knowledge to him, and
the union argues that it was reasonable for the Arbitrator to
credit Mr. Oamilda’s testimony that he did not either.
[Mem. in
Opp. to Airgas Mot. at 5-6, 8-10.]
With respect to the Supplementary Award, the union
argues that there is no basis to review the decision because
errors of fact or law are not grounds to overturn an arbitrator’s
9
decision.
Teamsters argue that failure to mitigate is not a
universal basis to deny back pay, and that the Arbitrator’s
clarification that “full pay” meant “full back pay” is entitled
to deference.
B.
[Id. at 13-15.]
Airgas Reply
In its reply, Airgas contends that the Arbitrator was
not free to use “his personal knowledge” to act as a surrogate
for the developed record, and that his personal knowledge is not
“substantial evidence presented” or “the record within the
meaning of Section 17.13” as set forth in the CBA.
[Reply to
Airgas Mot. at 2-3.]
Airgas asserts that the Arbitrator did rely on his
post-hearing investigation, which is explicitly set forth in the
Award, and that the Court should not ignore this language.
[Id.
at 10-15.]
II.
Teamsters Motion
The union makes many of the same arguments in support
of its Motion.
It argues that Airgas cannot show that it was
prejudiced by the Arbitrator’s misconduct.
It contends that the
Arbitrator made a factual finding that Mr. Oamilda’s termination
was not reasonable even if the meanings were vulgar.
According
to the union, the Arbitrator would have reached the same decision
with or without the ex parte discussions and independent
research.
[Mem. in Supp. of Teamsters Mot. at 7-8, 11-12.]
10
It also argues that the Arbitrator reasonably credited
Mr. Oamilda’s testimony that he was not aware of any obscene
meanings because the Arbitrator himself was not aware of such
meanings.
The union argues that the Arbitrator made a factual
finding that Mr. Oamilda was ignorant of any “Hawaiian slang
meaning” and that there are no grounds to vacate the Award based
on such a factual resolution.
[Id. at 10.]
Teamsters state that the CBA does not prohibit the
Arbitrator from using his own personal knowledge regarding what
is or is not “common knowledge” of language in the jurisdiction.
[Id. at 12.]
A.
Airgas Memorandum in Opposition
In its opposition, Airgas asserts that the Arbitrator
is not authorized under the CBA to consider information that is
not in the record, and may not use “personal knowledge” as a
surrogate for the record developed.
It argues that such
“personal knowledge” is not “substantial evidence presented” or
“within the meaning of Section 17.13” as set forth in the CBA.
Airgas asserts that the Arbitrator effectively altered or amended
section 17.12 of the CBA by refusing to comply with section
17.13.
[Mem. in Opp. to Teamsters Mot. at 2-3.]
Airgas argues that United Food and Commercial
Workers Union Local 1119 v. United Markets, Inc., 784 F.2d 1433
(9th Cir. 1986), and Pacific Motor Trucking Co. v. Automotive
11
Machinists Union, 702 F.2d 176 (9th Cir. 1983), support vacating
an arbitration award that does not draw its essence from the
labor agreement.
Airgas asserts that the Arbitrator disregarded
sections 17.12 ad 17.13 of the CBA “in a misguided quest to do
his own independent, extra-record investigation on an ex parte
basis and then consider, discuss, and incorporate the results of
this investigation in to his award.”
[Id. at 5-6.]
It asserts that, unlike in United States Life Insurance
v. Superior National Life Insurance, 591 F.3d 1167, 1173 (9th
Cir. 2010), the parties here had no notice and opportunity to be
heard regarding the Arbitrator’s independent investigation.
[Id.]
Airgas contends that it was prejudiced here because the
Arbitrator did rely on his post-hearing investigation, which is
set forth in the Award.
B.
[Id. at 12.]
Teamsters Reply
In its reply, the union argues that there was
“substantial evidence” to support the Arbitrator’s decision,
including that Mr. Oamilda denied knowing the alleged slang
meanings of “manapua” and “aloha” or making the statements to
Ms. Fretty in the context that she alleged.
It also argues that
the Arbitrator used his own knowledge and Mr. Oamilda’s testimony
to judge the credibility of Airgas’ witnesses.
Teamsters Mot. at 2-4.]
12
[Reply to
DISCUSSION
I.
Standard of Review
This Court’s review of the Award and Supplementary
Award is limited.
“Plenary review of the merits of an
arbitration award would undermine the federal policy of settling
labor disputes by arbitration.”
McClatchy Newspapers v. Central
Valley Typographical Union No. 46, 686 F.2d 731, 733 (9th Cir.
1982) (citing United Steelworkers of America v. Enterprise Wheel
& Car Corp., 363 U.S. 593, 596 (1960)).
Nevertheless, a court
may determine whether the parties “‘agree(d) to give the
arbitrator the power to make the award he made,’ and whether the
award drew its essence from the agreement submitted for
arbitration.”
Id. (quoting United Steelworkers of America v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)
(alteration in original)).
See also Haw. Teamsters & Allied
Workers Union, Local 996 v. United Parcel Serv., 241 F.3d 1177,
1180 (9th Cir. 2001) (“Our review of labor arbitration awards is,
however, extremely deferential because courts do not sit to hear
claims of factual or legal error by an arbitrator as an appellate
court does in reviewing decisions of lower courts.” (internal
citations and quotations omitted)).
An arbitration award is entitled to great
deference “[b]ecause the parties have contracted
to have disputes settled by an arbitrator chosen
by them rather than by a judge, [and] it is the
arbitrator’s view of the facts and of the meaning
of the contract that they have agreed to accept.”
13
United Paperworkers Int’l Union, AFL-CIO v. Misco,
Inc., 484 U.S. 29, 37-38, 108 S. Ct. 364, 98 L.
Ed. 2d 286 (1987).
“As long as the award ‘draws its essence’
from the contract, meaning that on its face it is
a plausible interpretation of the contract, then
the courts must enforce it.” Sheet Metal Workers’
Int’l Ass’n Local Union No. 359 v. Madison Indus.,
Inc. of Ariz., 84 F.3d 1186, 1190 (9th Cir. 1996).
See also Sunshine Mining Co. v. United
Steelworkers of Am., AFL-CIO, CLC, 823 F.2d 1289,
1293 (9th Cir. 1987). In other words, this
court’s “task is to determine whether the
arbitrator interpreted the collective bargaining
agreement, not whether he did so correctly.” Haw.
Teamsters, 241 F.3d at 1178. See also Major
League Baseball Players Ass’n v. Garvey, 532 U.S.
504, 509, 121 S. Ct. 1724, 149 L. Ed. 2d 740
(2001) (per curiam) (“Courts are not authorized to
review the arbitrator’s decision on the merits
despite allegations that the decision rests on
factual errors or misinterprets the parties’
agreement. . . . [I]f an arbitrator is even
arguably construing or applying the contract . . .
the fact that a court is convinced he committed
serious error does not suffice to overturn his
decision.” (internal quotations and citations
omitted)).
The Ninth Circuit has recognized only three
narrow exceptions to the general rule of deferring
to an arbitrator’s decision: 1) when the
arbitrator’s award does not draw its essence from
the CBA; 2) when the arbitrator exceeds the
boundaries of the issues submitted to him; and 3)
when the award is contrary to public policy.
United Food & Commercial Workers Int’l Union,
Local 588 v. Foster Poultry Farms, 74 F.3d 169,
173 (9th Cir. 1995).
McCabe Hamilton & Renny Co., Ltd. v. Int’l Longshore & Warehouse
Union, Local 142, AFL-CIO, 624 F. Supp. 2d 1236, 1243-44 (D.
Hawai‘i 2008).
14
With this framework in mind, the Court turns to its
analysis of the Award and Supplementary Award.
II.
Analysis
A.
Award
The parties agree that an arbitrator’s ex parte
communication may be grounds to vacate an award, but dispute its
effect in this instance.
“Ex parte evidence to an arbitration
panel that disadvantages any of the parties in their rights to
submit and rebut evidence violates the parties’ rights and is
grounds for vacation of an arbitration award.”
Pac. Reins. Mgmt.
Corp. v. Ohio Reins. Corp., 935 F.2d 1019, 1025 (9th Cir. 1991)
(arbitration pursuant to FAA).
Airgas argues that its rights were prejudiced because
it had no notice of the receipt or consideration of the posthearing evidence solicited by the Arbitrator.
The Court agrees
that it is procedurally questionable for an arbitrator to consult
with family members or to conduct independent internet research
in order to define the meaning of disputed words.
The Court,
however, agrees with the union that the Arbitrator’s ex parte
investigation does not invalidate his finding here that
Mr. Oamilda was not fired for “just cause,” and finds that
neither party was disadvantaged by the evidence acquired outside
of the arbitration.
15
The Court is sympathetic to Airgas’ argument that
evidence obtained in ex parte conversations with the Arbitrator’s
daughters is particularly significant because of the
understandable tendency of a father to value highly and share
an affinity for solicited statements of his own daughters.
These
communications, however, did not ultimately change the outcome.
This is because the Arbitrator addressed whether Mr. Oamilda
should have been terminated even if the obscene meanings were
applied to the disputed terms.
The Award states:
Assuming arguendo such “alternate” [obscene]
meanings, the Arbitrator concurs with Arbitrator
Franckiewicz in Mead Corp, 113 LA 1169, 1182,
cited by Grievant in his Post Arbitration Brief:
It is true that the Employer has a duty to
keep the workplace free of sexual harassment.
This does not mean, however, that every
employee who engages in any form of sexual
harassment, no matter how minor, necessarily
is to be discharged. Tot the extent that S’s
conduct is characterized as sexual
harassment, it seems to me that this behavior
falls at the less sever end of the spectrum.
Without exception, all the behavior
attributed to him was verbal, rather than
involving unwelcomed touching. For the most
part, his statements involved sexual
innuendos and banter, rather than requests
for sexual favors, . . . . (Emphasis added).
[Award at 12-13.]
That is, the Arbitrator found that, even if
Airgas’ position was fully credited, Mr. Oamilda still should not
have been terminated.
He also concluded that there was “some
issue as to Ms. Fretty’s credibility and motivation.”
11.]
16
[Id. at
The Court finds that there was “substantial evidence”
to support the Arbitrator’s decision, including his
determinations of witness credibility.
To the extent Airgas
argues that it was denied due process or that the Award otherwise
violates the FAA or Section 301 of the Labor Management Relations
Act, 29 U.S.C. § 185, the Airgas Motion is denied.
Given the
Court’s deferential review of labor arbitration awards, and
because the Court concludes that the Award “draws its essence”
from the CBA, the Court must enforce the Award.
B.
Supplementary Award
The Court next turns to whether Mr. Oamilda is entitled
to “full back pay” for the time he was not employed.
The
Arbitrator found that Mr. Oamilda, “discharged without due or
proper cause, is entitled to be ‘made whole’, that is reinstated
with full back pay, allowances, seniority, including all
contractual benefits (excluding overtime) he would have received
had he not been taken off the payroll.”
[Suppl. Award at 2.]
He
also concluded that Airgas failed to counter Mr. Oamilda’s
“explanation as to why he did not attempt to ‘mitigate’ his
loss,” and that “the defense of mitigation must fail.”
[Id. at
4.]
Under the CBA, the “arbitrator shall make his decision
in the light of the whole record and shall decide the case upon
the weight of all substantial evidence presented.”
17
[CBA
§ 17.13.]
It not disputed that Mr. Oamilda made no attempt to
mitigate his damages.
At the hearing, Airgas adduced
uncontroverted testimony from Mr. Oamilda that he had no
documentation or evidence supporting his claim that he was unable
to work during the pendency of the arbitration.
There was
substantial evidence before the Arbitrator, based on the briefing
and testimony below, that Mr. Oamilda did not seek to mitigate
his damages, but the Supplementary Award stated that Airgas did
not “counter or contradict Grievant’s claim that due to
[depression], he was unable to seek other employment.”
[Suppl.
Award at 3.]
The Court concludes that the Arbitrator’s decision to
award “full back pay,” under the circumstances, was not a
plausible interpretation of the contract.
Sheet Metal Workers’
Int’l Ass’n Local Union No. 359 v. Madison Indus., Inc. of Ariz.,
84 F.3d 1186, 1190 (9th Cir. 1996) (“[T]he industrial common
law-the practices of the industry and the shop-is equally a part
of the collective bargaining agreement although not expressed in
it.” ) (citation omitted).
“It is within an arbitrator’s
authority to award back pay once he or she has concluded that an
employer improperly laid off employees.”
Id. at 1191.
The
Arbitrator was presented with evidence that Mr. Oamilda did not
seek employment following his termination because he was
“depressed,” and admittedly made no attempt to mitigate his
18
damages.
To the extent the Arbitrator ruled that Airgas had some
additional “burden” to prove the defense of failure to mitigate,
the Court finds that the Supplementary Award does not draw its
essence from the CBA.
That is, the Arbitrator’s refusal to
consider the clear evidence of failure to mitigate and to then
impose an additional evidentiary burden on Airgas is not a
plausible interpretation of the CBA, which requires the
Arbitrator to make his decision in light of the whole record and
decide the case upon the weight of all substantial evidence
presented.
Nor did the Supplementary Award address the generally
well-settled principle that employees have a duty to mitigate
damages.
The Court agrees that some reasonable effort to find
other employment is necessary to support a claim for full back
pay under arbitral precedent, common law, and other statutory
sources of labor and employment law.
See, e.g., NLRB v. Mercy
Peninsula Ambulance Serv., Inc., 589 F.2d 1014, 1017-1818 (9th
Cir. 1979) (Under Section 10(c) of the NLRA, 29 U.S.C. s 160(c),
“[m]itigation will result not only where the worker has taken in
earnings from another source after discharge, but also for
‘losses willfully incurred’ such as when the discriminatee fails
to secure comparable employment without excuse.
A discharged
worker is not held to the highest standard of diligence in his or
her efforts to secure comparable employment; ‘reasonable’
19
exertions are sufficient.”) (citation omitted); In re P&O Ports
Louisiana, Inc., 129 LA 1712, 1713 (2012) (“Whatever the
theoretical underpinnings of the duty to mitigate, that duty
exists in the world of labor-management arbitration, and its
discharge requires that an effort be made to locate comparable
work for which an aggrieved party is qualified by skill,
training, experience, and physical ability.”).
For these reasons, the Court HEREBY VACATES the
Supplementary Award to the extent it held that Mr. Oamilda was
entitled to “full back pay.”
The Court does not rule further
with respect to any other remedy awarded under either the Award
or Supplementary Award.
CONCLUSION
On the basis of the foregoing, the Arbitration Award is
CONFIRMED and the Supplementary Award is VACATED IN PART.
The
Airgas Petition and Airgas Motion are GRANTED IN PART AND DENIED
IN PART.
They are DENIED with respect to Airgas’ request to
vacate the Award in its entirety, and GRANTED with respect to the
Supplementary Award on the issue of grievant’s entitlement to
back pay for the entire period.
The Teamsters Motion is GRANTED
in that the Court confirms the Arbitration Award to the extent it
granted the grievance, but does not confirm the awards in their
entirety.
The Clerk’s Office is directed to terminate these
cases.
20
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 29, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
AIRGAS WEST, INC. V. HAWAII TEAMSTERS AND ALLIED WORKERS LOCAL
996; CIVIL NO. 12-00454 LEK-KSC; ORDER CONFIRMING IN PART AND
REVERSING IN PART ARBITRATION AWARDS
21
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