Park Lawn Capital Limited, Inc. v. United Steelworkers Local 13702
Filing
24
OPINION and ORDER Denying 15 Plaintiff's MOTION for Summary Judgment and Granting 14 Defendant's MOTION for Summary Judgment. Signed by District Judge Stephanie Dawkins Davis. (THal)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PARK LAWN CAPITAL LIMITED, INC.,
v.
Plaintiff,
Case No. 19-13741
Stephanie Dawkins Davis
United States District Judge
UNITED STEELWORKERS LOCAL 13702,
Defendant.
________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (ECF No. 15) AND GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No. 14)
I.
PROCEDURAL HISTORY
Plaintiff, Park Lawn Capital Limited, Inc. (Park Lawn), filed the present suit
to vacate the arbitration award reducing the discipline it imposed on several
employees, who are members of the local bargaining unit, United Steelworkers
Local 13702 (the Union). (ECF No. 1). Park Lawn claims that grievances were
untimely as to all unit members except one and that the arbitration award must be
vacated as violative of public policy. The parties filed cross-motions for summary
judgment, which are fully briefed. (ECF Nos. 15-19). Pursuant to notice, the court
held a hearing, via video, on January 20, 2021. (ECF No. 23).
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For the reasons set forth below, the Court GRANTS defendant’s motion for
summary judgment, DENIES plaintiff’s motion for summary judgment, and
AFFIRMS the arbitration award.
II.
FACTUAL BACKGROUND
Park Lawn owns Forest Lawn Memorial Park in Detroit, Michigan. It took
over the day-to-day management and supervision of Forest Lawn in January 2019.
At the time that Park Lawn took over the management of Forest Lawn Cemetery,
Park Lawn agreed to assume the collective bargaining agreement (CBA) between
MMG, its predecessor, and the Union. Local 13702 represents the Forest Lawn
cemetery “grounds crew” unit. There are five full-time unit workers. The unit is
governed by a CBA that includes a grievance-arbitration procedure, requires
advance labor-management discussion of “new working rules,” and requires “just
cause” for discipline. (ECF No. 14-2, Award at 5, 11-13, 19; ECF No. 14-3, CBA
Art. V and IX, Sec. 1). On January 11, 2019, shortly after Park Lawn bought
Forest Lawn Cemetery and assumed the CBA, unit members and cemetery
workers, David Messingham and Tom Vanicelli, met with Superintendent Jeffrey
Teal. Vanicelli is also the Local 13702 Steward, with CBA authority for
“negotiating the settlement of grievances or disputes arising between the parties.”
(ECF No. 14-2, Award at 5-6; ECF No. 14-3, CBA Art. IV, Sec. 1). Messingham
and Vanicelli protested to Teal that the “N-word” was being used “loosely” in the
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workplace. They asked that Park Lawn “stop this practice which had been going
on for several years.” (ECF No. 14-2, Award at 5-6, 8, 21).
In his decision, the arbitrator characterized such workplace conversation at
Forest Lawn as “shop talk” and “barracks language,” which included the “F-word”
and on “several occasions,” the “N-word,” although it was “not directed toward
each other, but just in general.” The “N-word” was “never used against an
individual.” (ECF No. 14-2, Award at 8, 21-22, 24). Three of the unit employees,
Messingham, Vanicelli, and Juan Huertas, are not black. Two of the unit
employees, Anthony Williams and Wilmer “Pete” Austin are black.
Superintendent Teal participated in the “shop talk” and “barracks language.”
Some unit employees used the “N-word,” but not “everyone.” (ECF No. 14-2,
Award at 8, 21-24). More specifically, as detailed in HR Director Fielder’s
interview notes, the two black unit members—not “anyone else”—used the “Nword” as banter in “the break room, listening to music” or “on the phone.” The
one “occasion” specified in Fielder’s notes was when a black employee quoted his
wife, who used the word to scold her husband—for emphasis, not racial
derogation. (ECF No. 17-4, Ex. C, J9 at 13-19). The notes show that the “shop
talk” was only among the “guys,” including “the supervisor,” and never around
“families” patronizing Forest Lawn. (ECF No. 17-4, Ex. C, J9 at 2, 5, 8, 16, and
18). Teal was aware that this language was “inappropriate,” but he never
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disciplined anyone for its use. According to Teal, management told him not to do
so. The arbitration decision makes clear that tolerance for this language was “a
long past practice” at Park Lawn’s predecessor, Forest Lawn. (ECF No. 14-2,
Award at 8, 21-24).
Teal apparently failed to follow up on the complaint lodged by Messingham
and Vanicelli. Messingham and Vanicelli met twice more with Superintendent
Teal, again requesting action. After the third protest, Steward Vanicelli told Teal
that he would lodge a grievance if no action was taken. The parties then entered
into an Extension Agreement, which gave Park Lawn additional time to answer the
union complaint. Teal, Vanicelli, and Messingham all signed the Agreement.
(ECF No. 14-2, Award at 6, 21; ECF No. 14-4, PageID.212).
In response to the complaint, Park Lawn’s Human Resources Director
Suzette Fielder visited Forest Lawn on January 29 and 30, 2019 to interview the
unit employees. (ECF No. 14-2, Award at 6, 9, 21-22). Of the five unit
employees, only the two black employees, acknowledged using the “N-word” in
the workplace at some time in the past. They specified that they used it “in
general,” but not directed at other employees or any other individual. (ECF No.
14-2, Award at 8-9 and 22). The investigation also revealed that all unit members
had openly and regularly “look[ed] at pictures of women,” often commenting on
women’s “titties, butt, [and] body.” (ECF No. 15-11, JX-9 at 16 and 18).
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Fielder told unit employees that their interviews were confidential and there
would be no retaliation from Park Lawn. Fielder did not tell the employees that
they were accused of conduct that would subject them to discipline. Park Lawn
had no “work rules” or handbook addressing workplace language and had never
given the employees guidelines or expectations. Fielder did not give the
employees the opportunity to respond to others’ accounts of the employees’ past
language or tell the employees that the interviews could lead to discipline. (ECF
No. 14-2, Award at 9-10, 17-18, 22, 24-25; ECF No. 14-4, Ex. J9). Arbitrator
McDonald found that Park Lawn did not give any notice of its expectations and, by
not warning of potential discipline, that Park Lawn deprived the employees of due
process. (ECF No. Award at 9-10, 17, 21-22, 25).
On February 21, 2019, Park Lawn Vice President of Operations, Mat
Forastiere, disciplined all five employees for their use of race and gender-based
language. He gave each employee a “first and final” written warning. He wrote
that “further participation” in “inappropriate or unprofessional conduct” or
“violations” of the CBA “and/or federal law will result in immediate termination of
your employment.” (ECF No. 14-2, Award at 3; ECF 14-4, PageID.216-225, J3J7). Park Lawn delivered the “final” warnings to four of the unit members on
February 21, 2019 while Vanicelli was on vacation. Park Lawn delivered the
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warning letter to Vanicelli after he returned to work on March 18, 2019. (ECF No.
14-2, Award at 4, 6-7, 23).
Vanicelli filed a grievance on behalf of the entire unit on March 21, 2019.
In the grievance, the union challenged the “unjust writeup-discipline” imposed on
the five members of the unit. The union alleged that the discipline imposed
violated the CBA. Three members, Vanicelli, Austin, and Williams, signed the
grievance “for the union.” The grievance requested that Park Lawn “remove [the]
first and final written warning.” (ECF No. 14-2, Award at 19-20; ECF No. 14-4,
J2). During the grievance process, the union contended that Park Lawn lacked just
cause, that Park Lawn imposed the discipline without fair notice, and that the union
itself had raised the issue of the offending language and, in response, Park Lawn
retaliated against the unit members. (ECF No. 14-2, Award at 7, 17-18, 20).
The grievance proceeded through the pre-arbitration steps without
resolution. Park Lawn and the union then jointly selected Arbitrator McDonald,
one of three CBA-approved arbitrators, “to receive evidence and render a final and
binding decision.” (ECF No. 14-2, Award at 2, 11). Arbitrator McDonald
conducted an evidentiary hearing on August 7, 2019. The parties had the
opportunity to present testimony and exhibits at the hearing. Arbitrator McDonald
issued his Award on September 23, 2019. He concluded that Park Lawn violated
“due process,” “abused its discretion,” and lacked “just cause” for the final
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warnings. (ECF No. 14-2, Award at 25). Arbitrator McDonald sustained the
grievance in part and denied the grievance in part. He concluded that Park Lawn
had cause to impose “first” warnings but lacked just cause to impose the “final”
warnings. (ECF No. 14-2, Award at 25-26).
III.
DISCUSSION
A.
Standard of Review
Review of an arbitration award “is one of the narrowest standards of judicial
review in all of American jurisprudence.” Way Bakery v. Truck Drivers Local No.
164, 363 F.3d 590, 593 (6th Cir. 2004) (internal quotation and citation omitted);
Fed. Dep’t Stores, Inc. v. J.V.B. Indus., Inc., 894 F.2d 862, 866 (6th Cir.1990)
(describing the court’s role as “extremely limited”). Indeed, “[a]s long as the
arbitrator’s award draws its essence from [an agreement], and is not merely [the
arbitrator’s] own brand of ... justice, the award is legitimate.” United
Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36 (1987) (internal quotation
and citation omitted). The standard of review of an arbitrator’s decision is so
liberal, that the Supreme Court has held, “if an arbitrator is even arguably
construing or applying the contract and acting within the scope of his authority, the
fact that a court is convinced he committed serious error does not suffice to
overturn his decision.” Major League Baseball Players Ass’n v. Garvey, 532 U.S.
504, 509 (2001) (quotations and citations omitted). The Sixth Circuit has held,
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“we will consider only the questions of ‘procedural aberration’ outlined by the
Supreme Court.” See Truck Drivers Local No. 164 v. Allied Waste Systems, Inc.,
512 F.3d 211, 216 (6th Cir. 2008) (6th Cir. 2008) (citing United Paperworkers
International Union v. Misco, Inc., 484 U.S. 29 (1987), and Major League
Baseball Players Association v. Garvey, 532 U.S. 504, (2001)).
The standard of review on a motion to vacate an arbitration award was set
forth by the Sixth Circuit in Michigan Family Resources, Inc. v. Service Employees
International Union Local 517M, 476 F.3d 746, 753 (6th Cir. 2007). The
reviewing court must consider the following three questions: (1) “[d]id the
arbitrator act ‘outside his authority’ by resolving a dispute not committed to
arbitration? (2) Did the arbitrator commit fraud, have a conflict of interest or
otherwise act dishonestly in issuing the award? (3) And in resolving any legal or
factual disputes in the case, was the arbitrator ‘arguably construing or applying the
contract’?” The Sixth Circuit went on to say, “[s]o long as the arbitrator does not
offend any of these requirements, the request for judicial intervention should be
resisted even though the arbitrator made “serious,” “improvident” or “silly” errors
in resolving the merits of the dispute.” Id. As to the “arguably construing”
inquiry, the Sixth Circuit had made clear that only the “most egregious” awards
will be vacated under this standard. Michigan Family Resources, 475 F.3d at 753.
In such circumstances, an arbitrator’s “interpretation of a contract thus could be ‘so
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untethered to’ the terms of the agreement, … that it would cast doubt on whether
the arbitrator indeed was engaged in interpretation.” Id. (internal citation
omitted).
B.
Timeliness of Grievance
Park Lawn first argues that the arbitration award must be vacated because
the arbitrator failed to recognize the strict time limits in which a grievance may be
filed, as set forth in the CBA. As Park Lawn explains, it raised two procedural
issues before the Arbitrator: (1) whether the scope of the Union’s grievance can be
extended to capture the purported claims of those who were not named and did not
sign the face of the grievance; and (2) whether the procedurally untimely claims of
the grievants who received their disciplinary letters on February 21, 2019, were
properly before the Arbitrator. Park Lawn argues that, while the Arbitrator
acknowledged the timeliness issue, he failed to address or analyze it under the
terms of the CBA. Accordingly, Park Lawn maintains that the Arbitrator failed to
“arguably construe or apply the contract.” Michigan Family Resources, supra.
According to Park Lawn, had the arbitration decision properly drawn its essence
from the contract, the Arbitrator would have either recognized the “time limits []
are of the essence” and found that the underlying grievance was untimely for the
majority of the bargaining unit or the Arbitrator would have explained why the
contractual time limits were inapplicable or could be ignored in this case.
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The Union maintains that the Arbitrator arguably construed or applied the
contract when he concluded that the grievance was procedurally “ready” for a
“final and binding decision.” (ECF 14-2, Award at 4, 19-20). The Union argues
that the Arbitrator’s “honest judgment” on this “procedural” question is entitled to
judicial deference. Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38 (1987).
Article V of the CBA sets forth the grievance procedure. At step one, the
employee, with or without the Union steward shall take up the grievance with the
superintendent within three working days of the date of “its occurrence” (the
alleged violation of the CBA) and the supervisor shall respond within three
working days. (ECF No. 14-3, PageID.190). 1 It is clear, and the parties do not
dispute, that the grievance was timely as to Vanicelli because it was submitted
within three days of his receipt of the disciplinary letter. The question before the
Court is whether the Arbitrator made any factual findings regarding the timeliness
of the grievance as to the remaining unit members. Pertinent case law teaches that
there is a presumption that disputes over timeliness are for an arbitrator decide,
even where the collective bargaining agreement is silent on the issue. United
1
The Union seems to suggest that the step one occurrence is when Vanicelli and
Messingham first raised the racial language matter with Teal. (ECF No. 17, PageID.522). It is
clear, however, that the grievance submitted to the arbitrator was for the “unjust write-up –
discipline”, the first step of which is dated March 21, 2019. (ECF 14-4, PageID.214-215). “Its
occurrence” refers back to the prefatory language in Article V, Section 1: “Any grievance
involving an alleged violation of a specific article or section of the Agreement, raising during
this agreement, shall be settled in the following manner…” (ECF No. 14-3, PageID.190).
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Steelworkers of America, AFL-CIO-CLC v. Saint Gobain Ceramics & Plastics,
Inc., 505 F.3d 417 (6th Cir. 2007). Here, nothing in the CBA suggests that the
issue is one for the court, and thus the issue of timeliness was properly before the
arbitrator. There is also no question that the issue of timeliness was raised before
the Arbitrator, as is evident in the decision.
In the present case, the arbitration award “cannot be said to be so untethered
from” the CBA as to warrant its reversal. As was the case in Michigan Family
Resources, the award here “has all the hallmarks of interpretation[, in that it]
quotes from and analyzes the pertinent provisions of the contract, and at no point
does [it] say anything to indicate that the [arbitrator] was doing anything other than
trying to reach a good-faith interpretation of the contract.” Id. at 754. As
discussed in Alcoa, Inc. v. Int’l Union, Automobile, Aerospace, Agricultural
Implement Workers of America, 2013 WL 6903762 (N.D. Ohio Dec. 31, 2013), an
arbitration award that “applie[s] context to interpret seemingly explicit language,”
will be enforced as one where “the arbitrator appeared to be engaged in
interpretation.” Id. (quoting Appalachian Regional Healthcare, Inc. v. Ky. Nurses
Ass’n, 2007 WL 4269063, at *2 (6th Cir. Dec. 4, 2007). The Alcoa decision goes
on to explain that, as to what constitutes “explicit contract language,” the Sixth
Circuit suggests in Kroger Company v. United Food & Commercial Workers
Union Local 876, 284 Fed. Appx. 233, 239 (6th Cir. 2008) that only such “cut-and11
dry numerical” contract language as a precise wage amount will be considered to
have such plain meaning that no interpretation is needed. Id. at 240 n. 3 (citation
omitted).
Here, Park Lawn’s argument suggests that it believes the grievance
procedure found in Article V constitutes such cut-and-dried contractual language.
In the court’s view, the language at issue is open to interpretation. As set forth
above, Step I of the grievance says that the employee, “with or without the Union
steward” shall take up the grievance with the superintendent within three working
days of the date of the alleged violation of the CBA. What is not clear from this
language is what happens when an employee wants the Union steward to take up
the grievance, but the steward is not available (as was the case here) during that
three-day period. The grievance procedure further provides that the supervisor’s
response to a Step I grievance shall be made to the steward. (ECF No. 14-3,
PageID.14-3). Further, Step II of the grievance procedure requires the written
grievance to be submitted by the steward and response made to the steward. Id.
Given the timing of the disciplinary letters, even if the unit members had pursued a
grievance within three days of their issuance (which Park Lawn chose to issue
while the steward was unavailable), the grievance process could not be continued
until Vanicelli returned from vacation, several weeks later. The arbitrator could
have reasonably concluded that the CBA permits an employee to wait until the
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steward is available, so the employee is able to exercise his choice to pursue with
the grievance with the steward, a conclusion which is further supported by the need
for the availability of the steward throughout the grievance process. See e.g., Solo
Cup Operating Corp. v. Int’l Bro. of Teamsters, Local 528, 226 F.Supp.3d 1374,
1380 (S.D. Ga. 2017) (“A contract may be susceptible to interpretation when it is
not facially ambiguous.”) (quoting Wiregrass Metal Trades Council v. Shaw Envtl.
& Infrastructure, Inc., 837 F.3d 1083, 1091-92 (11th Cir. 2016)). Importantly,
case law does not require the arbitrator to explain his reasoning or to have made
such express findings. Id. (citing Wiregrass, at 1091-1092). Instead, when
interpreting a collective-bargaining agreement, an arbitrator is permitted to
“discover” and apply implied terms in the agreement. Id. (citing Wiregrass, at
1088). Thus, when an arbitrator fails to specifically state his reasoning for an
award, the award may be reasonably viewed as an interpretation or as a
modification. Id. (citing Wiregrass, at 1091-92). In those instances, “the court
must resolve the ambiguity by finding that the award is an interpretation of the
contract and enforcing it.” Id. at 1092.
In Solo Cup, the CBA vested Solo with the exclusive right to change or
eliminate existing methods of operation, equipment, and facilities. The CBA also
established a grievance procedure and if the parties were unable to resolve their
differences, an arbitrator would do so. The arbitrator’s decision was final and
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binding, the CBA provided that the arbitrator had no power to add to, subtract
from, or modify the terms of the CBA. The CBA also prohibited discrimination
based on disability, among other bases, and incorporated the Americans With
Disabilities Act. Id. at 1377. Ms. Wells was a Solo employee and forklift
operator, who had used a sit-down forklift. Solo transitioned to using stand-up
forklifts and soon, Ms. Wells began suffering adverse effects, including swollen
ankles, back pain, and numbness in her feet. Her physician recommended that she
be allowed to use a sit-down forklift or take a 15-minute break for every hour she
spent on the stand-up forklift. Solo allowed her to spend 15 minutes performing
other duties for every hour she spent on the stand-up forklift. Her physician
subsequently recommended 30-minute breaks for every hour spent on the stand-up
forklift or the use of sit-down forklift. Solo denied these requests and when she
reported her physician offered no other accommodations, Solo terminated her
employment. The grievance was denied, and the parties proceeded to arbitration.
Id. at 1377.
At the arbitration, Solo argued that its decision to implement the stand-up
forklifts fell within the express provision of the CBA allowing it to choose
equipment and that providing Wells with a sit-down forklift was not a reasonable
accommodation under the ADA. The arbitrator determined that Solo had violated
the CBA by not providing a reasonable accommodation. Wells was awarded back
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pay and reinstatement, along with a sit-down forklift accommodation. Id. at 1378.
Solo filed suit and claimed that the award should be modified because the
arbitrator usurped Solo’s power to implement new equipment under the CBA,
among other reasons. The union argued that the arbitrator’s award constituted a
permissible interpretation of the CBA. Id. at 1379. In the decision, the arbitrator
outlined the parties’ arguments, the background facts, and the relevant provisions
of the CBA, including the equipment provision. The arbitrator did not expressly
rely on any particular principle of contract interpretation or specifically state why
the CBA allowed him to issue the award. Instead, he acknowledged Solo’s right to
move to the use of stand-up forklifts, but concluded that Solo was still required to
accommodate Wells with a sit-down forklift. Id. at 1380. Solo argued that the
decision was contrary to its “incontrovertible right to eliminate sit-down style
forklifts.” The court disagreed, concluding that while it could be argued that the
award infringed on Solo’s rights under the CBA, the arbitrator’s lack of
explanation “is just as easily perceived as a permissible interpretation of the
contract.” Id. The court’s conclusion was not based on the express analysis of the
arbitrator. Instead, the court found that the arbitrator’s mention of Solo’s rights
under the equipment provision “arguably shows” that he analyzed any potential
conflict between that provision and the ADA provision and “may have
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determined” that Solo had duty to provide a reasonable accommodation, regardless
of its general power to manage equipment. Id. at 1381.
Here, the arbitrator’s decision also “arguably shows” that he reviewed the
grievance procedure, evaluated Park Lawn’s argument that the grievance was
untimely as to all but Vanicelli, and concluded that the grievance was timely as to
all unit members. Notably, the arbitrator here emphasized in his factual summary
that the union steward, Vanicelli, was on vacation when the other employees in the
unit received their “first and final warning” letters and that he filed the grievance
on his return from vacation, when he received his own disciplinary letter. (ECF
No. 14-2, PageID.163). As the Union points out, Vanicelli was the unit member
with authority to negotiate “the settlement of grievances or disputes arising
between the parties.” (ECF No. 14-3, PageID.190, Art. IV, § 1). The arbitrator
also outlined the pertinent provisions of the CBA, including the grievance
procedure, which requires the participation of the union steward throughout. (ECF
No. 14-2, PageID.168). He then summarized Park Lawn’s claim that only
Vanicelli’s grievance was timely, that only three employees signed the grievances,
and two did not sign it and therefore did not intend to the join the grievance. (ECF
No. 14-2, PageID.170-171). The arbitrator extensively discussed the evidence
relating to whether the grievance was filed on behalf of the entire unit, including
those who were not signatories. In the Discussion and Decision section of the
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Award, the arbitrator again acknowledged Park Lawn’s timeliness challenge and
its claim that the grievance was not submitted on behalf of the entire unit. The
arbitrator concluded that there was sufficient evidence of an intent to file the
grievance on behalf of all unit members. While he did not expressly say so, this
discussion would not have been relevant or necessary unless the arbitrator had also
determined that the grievance was timely as all unit members. (ECF No. 14-2,
PageID.176-177). This conclusion is buttressed by the arbitrator’s statement that
“this matter” was “ready for Decision and Award.” (ECF No. 14-2, PageID.161).
Accordingly, regardless of whether the court agrees or disagrees with the
correctness of the arbitrator’s conclusion, the court finds that the arbitrator
considered and rejected Park Lawn’s timeliness argument and that conclusion
arguably draws its essence from the CBA. See Major League Baseball Players
Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (“[I]f an arbitrator is even arguably
construing or applying the contract and acting within the scope of his authority, the
fact that a court is convinced he committed serious error does not suffice to
overturn his decision.”) (quotations and citations omitted); Bhd. of Locomotive
Engineers and Trainmen v. Union Pac. R.R. Co., 719 F.3d 801, 807 (7th Cir. 2013)
(A court’s task is “limited to determining whether the arbitrator’s award could
possibly have been based on the contract.”) (emphasis added); United Steelworkers
of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598 (1960) (“A mere
17
ambiguity in the opinion accompanying an award, which permits the inference that
the arbitrator may have exceeded his authority, is not a reason for refusing to
enforce the award.”).
C.
Public Policy
Park Lawn also argues that the Award must be vacated as contrary to public
policy because the actions of the unit members violated Title VII by creating a
hostile work environment. “[A] court’s refusal to enforce an arbitrator’s
interpretation of such contracts is limited to situations where the contract as
interpreted would violate some explicit public policy that is well defined and
dominant,” which, in turn, must be “ascertained by reference to the laws and legal
precedents and not from general considerations of supposed public interests.”
Columbia Gas of Ohio, Inc. v. Utility Workers Union of America, 329 Fed. Appx.
1, 2 (6th Cir. 2009) (quoting United Paperworkers Int’l Union v. Misco, Inc., 484
U.S. 29, 43 (1987) (internal quotation marks and citation omitted). Whether the
contract, as interpreted by the arbitrator, is contrary to public policy is a question to
be resolved by the courts. Id. (citing Misco, 484 U.S. at 43). As the Sixth Circuit
went on to explain, the “Supreme Court has made clear that the pertinent question
at this juncture is whether the contract, as interpreted—i.e., a contractual
agreement to suspend rather than discharge Rose—falls ‘within the legal exception
that makes unenforceable ‘a collective-bargaining agreement that is contrary to
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public policy.’” Columbia Gas, Fed. Appx. at 4 (E. Associated Coal Corp. v.
United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62 354 (2000) (quoting W.R.
Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983). Notably, “the issue is
not whether the grievant’s conduct violates public policy, but whether enforcement
of the contract, as interpreted, would be contrary to public policy.” Id. (citing E.
Associated Coal Corp., 531 U.S. at 62-63).
Here, Park Lawn contends that the conduct at issue “constitutes both a plain
violation of federal workplace discrimination laws and a transgression of generally
accepted standards of social norms.” (ECF No. 15, PageID.286). Park Lawn
contends that reducing the discipline to a first warning “flies in the face of that
well-defined public policy behind Title VII.” Id. Park Lawn maintains that
implementing what is characterizes as “progressive discipline” is an improper
modification of the CBA and asserts that the public policy underpinning Title VII
“leaves no room for such misconduct in the workplace.” Id. at 287.
In response, the Union contends that there was no hostile work environment
present. The Union explains that the “N-word” was used by two black employees,
“in general”—never directed at any individual—and the “behaviors” regarding
“race and/or gender” were not hostile. HR Director Fielder’s interview notes show
that the two black unit members—not “anyone else”—used the “N-word” as banter
in “the break room, listening to music” or “on the phone.” The one occasion
19
specified in Fielder’s notes was when a black employee quoted his wife, who used
the word to scold her husband—for emphasis, not racial derogation. (ECF No. 174, Ex. C, J9 at 13-19). The notes show that the “shop talk” was only among the
“guys,” including “the supervisor,” and never around “families” patronizing Forest
Lawn. (ECF No. 17-4, Ex. C, J9 at 2, 5, 8, 16, and 18). The Union also contends
that it was management who failed to respond to the complaints about the use of
the N-word, and then broke its promises about confidentiality and retaliated by
punishing the protestors with a “final” discipline.
The present issue is controlled by Way Bakery, supra. In Way Bakery, the
Sixth Circuit affirmed the enforcement of an arbitration award that required an
employee who made a racist remark to a black co-worker to be allowed to return to
work. Id. at 596 (“Zentgraf, a white employee, told Diana Thomas, an African–
American coworker, to ‘relax Sambo.’”). The employee was discharged for the
racist remark, but the arbitrator reduced his discharge to an unpaid six-month
suspension and reinstatement to his job subject to five-years of probation. Id. at
592. The employer argued that the arbitrator’s award should be set aside because
his reinstatement violated Title VII’s policy of ridding the workplace of racial
harassment. Id. at 594. The Sixth Circuit observed, “the question to be answered
is not whether the [employee’s conduct] itself violates public policy, but whether
the agreement to reinstate him does so.” Id. at 596 (quoting E. Assoc. Coal Corp.,
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531 U.S. at 62-63). The Sixth Circuit found that the discipline imposed by the
arbitrator – the six-month suspension and the five-year probation – comported with
Title VII’s policy of maintaining a harassment-free workplace, and no case
established “a public policy of flatly prohibiting the reinstatement of a worker who
makes a racially offensive remark.” Id. Importantly, the court found that the
arbitrator’s award did not condone or fail to discourage the hostile workplace
behavior at issue. Instead, the award recognized that a serious offense had
occurred and subjected the offending employee to serious penalties. Id. at 595596.
Similarly, the award here recognized that so-called “shop talk” or “barracks
language” does not permit the use of the N-word or other divisive or demeaning
language and that continued use of such language would result in further
disciplinary action. (ECF No. 14-2, PageID.183). But, the arbitrator also found
that Park Lawn should have notified the unit employees that the past practice of
using such language would no longer be tolerated and that their conduct and
language could subject them to warnings, discipline, and termination under the
CBA. By not warning the employees, the award found that the employer placed all
unit members in immediate danger of termination, without due process. Id. at
PageID.181-182. And, in contrast to the racist language used in Way Bakery, the
language here was not used affirmatively against anyone, as detailed above. The
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context in which the N-word was used by the two black unit employees here stands
in stark contrast to the racist language used by a white employee against a black
co-worker in Way Bakery. Thus, if the reduced discipline in Way Bakery did not
violate public policy, then it surely does not do so here. Indeed, the reduced
disciplinary award balances the public policy underpinning Title VII with the
rights of the unit employees to receive due process. Accordingly, in the court’s
view, Park Lawn has not shown that the reduced discipline, which is still
disciplinary action against all the unit members, violates the public policy
underpinnings of Title VII.
IV.
CONCLUSION AND ORDER
For the reasons set forth above, the Court GRANTS defendant’s motion for
summary judgment, DENIES plaintiff’s motion for summary judgment, and
AFFIRMS the arbitration award.
IT IS SO ORDERED.
Date: March 31, 2021
s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States District Judge
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