LIN Television Corporation d/b/a WIVB-TV/WNLO-TV v. National Association of Broadcast Employees and Technicians - Communications Workers of America, AFL-CIO et al
Filing
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DECISION AND ORDER GRANTING Defendants' 26 Motion for Summary Judgment; DENYING Plaintiff's 31 Motion for Summary Judgment; CONFIRMING the Arbitration Award; DIRECTING the Clerk of Court to close this case. Signed by William M. Skretny, United States District Judge on 11/6/2016. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LIN TELEVISION CORP. d/b/a
WIVB-TV/WNLO-TV,
Plaintiff,
v.
DECISION AND ORDER
14-CV-1048S
NATIONAL ASSOCIATION OF BROADCAST
EMPLOYEES AND TECHNICIANS –
COMMUNCATIONS WORKERS OF
AMERICA, AFL-CIO, et al.,
Defendants.
I. INTRODUCTION
Plaintiff LIN Television Corporation d/b/a WIVB-TV/WNLO-TV commenced this
action against Defendants National Association of Broadcast Employees and
Technicians - Communications Workers of America, AFL-CIO and National Association
of Broadcast Employees and Technicians - Communications Workers of America, Local
25, seeking to vacate a labor arbitration award under § 301 of the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185. (Docket No. 1.) Defendants filed a counterclaim, seeking enforcement of the arbitration award and attorney’s fees. (Docket No. 8.)
Currently pending before this Court are the parties’ cross motions for summary
judgment. (Docket Nos. 26, 31.) For the following reasons, Defendants’ motion is
granted and Plaintiff’s motion is denied.
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II. BACKGROUND 1
Timothy Flynn was employed by the Plaintiff television station in Buffalo, NY,
where he worked as a television technician for more than 21 years. During that period,
Flynn’s colleagues were aware that Flynn suffered from mental health issues, including
a prior threat of suicide. However, Flynn had not been violent toward others and had no
record of workplace discipline.
On July 23, 2013, Flynn was recorded making a number of threats to his
immediate supervisor and the supervisor’s family, including threats on his supervisor’s
life. The supervisor was not present during the threats. Employees who were either
present or later heard the recording, including the supervisor, did not deem the threats
to be serious, but instead thought Flynn was having a bad day. The following day,
Flynn admitted to making the remarks and apologized. He was initially suspended from
employment, and later terminated on the grounds that he posed a serious safety
concern. Flynn now maintains that he was blacked out during this period and has no
recollection of what occurred.
Defendants grieved the discharge pursuant to the parties’ collective bargaining
agreement (“CBA”).
Article 8.0 of the CBA states that Plaintiff may “discipline or
discharge an employee only for just cause.” Article 8.0(d) states:
Any disciplinary action taken by the company against an Employee under
Section 8.0 will be arbitrable and will be processed under Article 15. The
parties agree that the arbitrator in such cases shall be empowered to
determine an appropriate remedy if he sustains the disciplined employee’s
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The facts and procedural background are taken from Docket No. 1-1, Arbitration Opinion and Award
dated December 2, 2014, Docket No. 26-1, Defendants’ Rule 56.1 Statement, and Docket No. 31-2,
Plaintiff’s Rule 56.1 Statement. With respect to the facts determined in the arbitration award, “the
Supreme Court has unambiguously stated that a reviewing court is bound by . . . the arbitrator’s factual
findings.” Int’l Bhd. of Elec. Workers v. Niagara Mohawk Power Corp., 143 F.3d 704, 715 (2d Cir. 1998)
(“Niagara Mohawk I”) (citing Misco, 484 U.S. at 37-38).
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grievance.
The parties stipulated that there were two issues to be decided by the arbitrator: (1)
“Was [Flynn] terminated for just cause?” and (2) “If not, what shall the remedy be?” The
arbitrator issued his Opinion and Award on December 2, 2014. In it, the arbitrator
carefully reviewed the testimony of witnesses who testified at the arbitration hearing
regarding the events leading to Flynn’s discharge, the arguments made by the parties,
and relevant precedent.
The arbitrator found that, in light of the totality of the mitigating factors present in
the case, Plaintiff was without just cause to discharge Flynn under the CBA.
Specifically, the arbitrator relied on the facts that the target of the threats was not
present during Flynn’s remarks, Flynn had no weapons, the relative lack of gravity
Flynn’s colleagues attributed to the threat, Flynn’s unblemished prior work record and
lack of a propensity for violence, the minimal interference that Flynn’s mental illness had
previously had with his ability to do his job, and Flynn’s length of service. The arbitrator
found that the termination should be converted to a suspension without pay through the
date of the award.
The arbitrator did not order Flynn’s immediate return to work.
Instead, although Flynn could apply for Short-Term Disability Leave following the award,
he could not return to work until he had received a positive evaluation from a
psychiatrist mutually agreed by the parties. If the evaluation was not favorable, Flynn
could be summarily discharged.
Defendants have moved for summary judgment confirming the award. Plaintiff
filed a cross-motion for summary judgment, seeking to vacate the award on the grounds
that it does not draw its essence from the CBA, and that it violates a public policy for
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workplace safety.
III. DISCUSSION
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v.
Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court’s function on a summary
judgment motion “is not to resolve disputed questions of fact but only to determine
whether, as to any material issue, a genuine factual dispute exists.” Kaytor, 609 F.3d at
545 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986)). “A dispute regarding a material fact is genuine ‘if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.’” Weinstock
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2003) cert. denied, 540 U.S. 811 (2003)
(quoting Anderson, 477 U.S. at 248). Where both parties move for summary judgment,
“each party’s motion must be examined on its own merits, and in each case all
reasonable inferences must be drawn against the party whose motion is under
consideration.” Morales v. Quintel Entm’t, 249 F.3d 115, 121 (2d Cir. 2001).
1. Special Deference Must Be Given to Labor Arbitration Awards
As the Second Circuit recently re-affirmed:
“[A] federal court’s review of labor arbitration awards is narrowly
circumscribed and highly deferential—indeed, among the most deferential
in the law.” Nat’l Football League Mgmt. Council v. Nat’l Football League
Players Ass’n, 820 F.3d 527, 532 (2d Cir. 2016) (“NFL”). A court is “not
authorized to review the arbitrator’s decision on the merits”; its role is
simply to determine “whether the arbitrator acted within the scope of his
authority as defined by the collective bargaining agreement.” Id. at 536.
Thus, as long as “the arbitrator was even arguably construing or applying
the contract and acting within the scope of his authority and did not ignore
the plain language of the contract,” the award should ordinarily be
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confirmed. Id. (internal quotation marks omitted).
N.Y. City & Vicinity Dist. Council of United Bhd. of Carpenters & Joiners of Am. v. Ass’n
of Wall-Ceiling & Carpentry Indus. of N.Y., Inc., 826 F.3d 611, 618 (2d Cir. 2016).
Therefore, a court should vacate an award only where it “contradicts an express and
unambiguous term of the contract or . . . so far departs from the terms of the agreement
that it is not even arguably derived from the contract.” United Bhd. of Carpenters v.
Tappan Zee Constructors, LLC, 804 F.3d 270, 275 (2d Cir. 2015) (internal quotation
omitted). Courts may not “reconsider the merits of an award even though the parties
may allege that the award rests on errors of fact or on misinterpretation of the contract.”
United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36, 108 S. Ct.
364, 98 L. Ed. 2d 286 (1987) (“Misco”). When a Court exceeds this limited role, “it
usurps a function which . . . is entrusted to the arbitration tribunal,” Major League
Baseball Players Ass’n v. Garvey, 532 U.S. 504, 510, 121 S. Ct. 1724, 1728, 149 L. Ed.
2d 740 (2001), and frustrates Congress’s “preference for private settlement of labor
disputes,” Misco, 484 U.S. at 37 (quotations omitted).
In addition to the instances where an award does not “draw[ ] its essence from
the collective bargaining agreement” but reflects instead “the arbitrator’s own brand of
industrial justice,” NFL, 820 F.3d at 536 (internal quotation marks omitted), “[t]he
Supreme Court has also recognized a second circumstance warranting vacatur of a
labor arbitration award: ‘[i]f the contract as interpreted by [the arbitrator] violates some
explicit public policy,” such as “obedience to judicial orders.’” N.Y. City & Vicinity Dist.
Council of United Bhd. of Carpenters & Joiners of Am., 826 F.3d at 618 (quoting W.R.
Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum &
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Plastic Workers, 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983)). The
Second Circuit has construed the public policy ground for vacatur to be “extremely
limited.” Local 97, Int’l Bhd. of Elec. Workers v. Niagara Mohawk Power Corp., 196
F.3d 117, 125 (2d Cir. 1999) (“Niagara Mohawk II”). Accordingly, a court’s task in
applying that principle is limited to determining “whether the award itself, as contrasted
with the reasoning that underlies the award, creates an explicit conflict with other laws
and legal precedents and thus clearly violates an identifiable public policy.”
Id.
(alterations and internal quotation marks omitted).
“The showing required to avoid summary confirmation of an arbitration award is
high, and a party moving to vacate the award has the burden of proof.” See Willemijn
Houdstermaatschappij, BV v. Standard Microsystems Corp., 103 F.3d 9, 12 (2d Cir.
1997) (internal citations and punctuation omitted). Plaintiff does not meet this high
burden.
a. The Award Draws its Essence from the CBA
Plaintiff contends that the award does not draw its essence from the CBA
because the arbitrator did not make a just cause determination, and because the
arbitrator exceeded the scope of his authority under the CBA by directing Flynn to apply
for Short-Term Disability. However, the arbitration award clearly states that there was
not just cause to discharge Flynn in the matter employed by Plaintiff, and Article 8.0(d)
of the CBA unambiguously authorizes the arbitrator to shape an “appropriate remedy.”
Moreover, the CBA makes no limitations on the power to shape a remedy: “The parties
agree that the arbitrator in such cases shall be empowered to determine an appropriate
remedy if he sustains the disciplined employee’s grievance.”
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Plaintiff’s motion,
therefore, urges this Court to overturn the arbitrator’s interpretation of the CBA.
An award should be overturned where “the arbitrator ‘must have based his award
on some body of thought, or feeling, or policy, or law that is outside the contract.” In re
Marine Pollution Serv., Inc., 857 F.2d 91, 94 (2d Cir. 1988) (emphasis in original)
(quoting Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 184-85 (7th Cir. 1985)).
However, “Courts are not empowered to reexamine the merits of an arbitration award,
even though the parties to the agreement may argue that the award arises out of a
misinterpretation of the contract” as “[t]he federal policy of settling labor disputes by
arbitration would be undermined if courts had the final say on the merits of the awards.”
Niagara Mohawk I, 143 F.3d at 714 (internal quotation marks and citations omitted). A
court is to “inquire only as to whether the arbitrator acted within the scope of his
authority as defined by the collective bargaining agreement.” NFL, 820 F.3d at 536.
Giving appropriate deference to the broad wording of Article 8.0(d) of the CBA, this
Court finds that the award is “plausibly grounded in the parties’ agreement.”
See
Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32 (2d Cir. 1997).
Accordingly, the arbitrator acted within the scope of his authority and there is no basis to
overturn the award.
b. The Award Does Not Violate Public Policy for Workplace Safety
Plaintiff further contends that the award, which would allow Flynn to return to
work following a positive mental health evaluation, must be vacated because it violates
a public policy for workplace safety. Courts may vacate an award if it conflicts with an
explicit and well-defined public policy. See Misco, 484 U.S. at 43; E. Associated Coal
Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62-63, 121 S. Ct. 462, 148
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L. Ed. 2d 354 (2000); Newsday, Inc. v. Long Island Typographical Union, 915 F.2d 840,
844 (2d Cir. 1990). However, the public policy asserted “must be well defined and
dominant, and is to be ascertained by reference to the laws and legal precedents and
not from general considerations of supposed public interests.” W.R. Grace & Co., 461
U.S. at 766 (quotations omitted). The public policy exception is “extremely limited, and
the party seeking the benefit of the exception must establish its existence.” Niagara
Mohawk II, 196 F.3d at 125.
In support of its argument, Plaintiff relies primarily on G.B. Goldman Paper Co. v.
United Paperworkers Int’l Union, Local 286, 957 F. Supp. 607 (E.D. Pa. 1997). In that
case, as here, an employer moved to vacate an arbitration award reinstating an
employee who had harassed, intimidated, and threatened a co-worker. The Eastern
District of Pennsylvania held “safety in the work environment” to constitute a “welldefined and dominant public policy,” id. at 618, and set forth the following test for
evaluating whether an award violates that policy:
In addressing whether to vacate an arbitration award on workplace safety
public policy grounds, a court must first accept the facts as found by the
arbitrator to gauge how dangerous the grievant-in-question is. Secondly,
the court must then determine on the facts of that case the chance of
harm that the grievant might pose to other people in the workplace if
reinstated.
Id. at 620. Applying the test to the facts found by the arbitrator, the court found that,
despite the arbitrator’s conclusion that the employee had purposefully menaced another
employee with a truck and had harassed and threatened him directly, “the risk of harm
to others [was not] so significant that the reinstatement of [the employee] would violate
the public policy of workplace safety.” Id. at 621.
Assuming Plaintiff is correct and that workplace safety is considered a “well8
defined and dominant public policy” in this Circuit, 2 the test set forth in G.B. Goldman
Paper Co. would support confirmation of the award in this case as well. Based on the
facts as determined by the arbitrator, “[Flynn’s] records do not demonstrate a propensity
or risk for violence towards others,” and Plaintiff failed to “provide[ ] any medical
testimony or records during the hearing that would paint [Flynn] as violent or incapable
of performing his job functions.”
(Docket No 1-1 at 15, 20.)
Owing to the strong
deference due to an arbitrator’s findings, “improvident, even silly[ ] factfinding” by an
arbitrator is insufficient to overturn an award. Misco, 484 U.S. at 39. This Court defers
to the arbitrator’s finding that Flynn is not a danger to others, and that the “chance of
harm that the grievant might pose to other people in the workplace” is minimal. See
G.B. Goldman Paper Co., 957 F. Supp. at 620.
Plaintiff also contends that it is counter to public policy to compel an employer to
reinstate an employee who may expose the employer to liability.
This argument,
however, would invalidate reinstatement of virtually any employee found to violate basic
safety protocol. The Supreme Court has previously upheld the reinstatement of a truck
driver who twice tested positive for marijuana, United Mine Workers, 531 U.S. at 65,
and the Second Circuit has upheld the reinstatement of an employee who reported for
work intoxicated and carrying a gun, First Nat’l Supermarkets, Inc. v. Retail, Wholesale
& Chain Store Food Emps. Union Local 338, 118 F.3d 892, 894, 898 (2d Cir. 1997),
regardless of the employer’s potential exposure to liability. There is thus no error in
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The only Second Circuit case construing G.B. Goldman Paper Co. concluded that “[a]lthough . . . OSHA,
and employers in general, are concerned about workplace violence, . . . no agency has implemented any
specific legal regulations governing the issue,” and, therefore, the decision to reinstate an employee who
had made threats of violence “violated no specific provision of any law or regulation.” N.Y. State Elec. &
Gas Corp. v. Sys. Council U-7 of Int'l Bhd. of Elec. Workers, 328 F. Supp. 2d 313, 317 (N.D.N.Y. 2004)
(confirming arbitration award). This follows the Supreme Court’s warning that “formulation of public policy
based only on general considerations of supposed public interests is not the sort that permits a court to
set aside an arbitration award.” Misco, 484 U.S. at 44 (quotations omitted).
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confirming the reinstatement of Flynn after a positive mental health evaluation, and the
award is not a violation of public policy.
2. The Award is Confirmed
Confirmation of a labor arbitration award under LMRA § 301 is “a summary
proceeding that merely makes what is already a final arbitration award a judgment of
the Court.” New York City Dist. Council of Carpenters Pension Fund v. E. Millennium
Const., Inc., No. 03 CIV. 5122, 2003 WL 22773355, at *2 (S.D.N.Y. Nov. 21, 2003)
(citing Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984)). If the party
opposing confirmation fails to persuade the court that the award should be vacated or
modified, the award must be confirmed. See Niagara Mohawk II, 196 F.3d at 125.
Plaintiff has failed to demonstrate that the award must be vacated, and is equally unable
to meet the high burden of blocking Defendants’ motion to confirm. Accordingly, that
motion is granted. 3
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is denied,
Defendants’ motion is granted, and the award is confirmed.
3
Defendants’ counterclaim seeks attorney’s fees (see Docket No. 8); the motion for summary judgment
does not explicitly request them. To the extent that Defendants intended to seek fees through this
motion, that request is denied. Attorney’s fees cannot ordinarily be recovered in a federal action “in the
absence of statutory authority, and . . .Section 301 of the LMRA . . . [does not] provide for attorney’s fees
in actions to confirm an arbitration award.” See Carpenters Pension Fund, 2003 WL 22773355, at *2
(citing Int’l Chem. Workers Union v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir. 1985)).
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V. ORDERS
IT HEREBY IS ORDERED that Defendants’ Motion for Summary Judgment
(Docket No. 26) is GRANTED;
FURTHER, that Plaintiff’s Motion for Summary Judgment (Docket No. 31) is
DENIED;
FURTHER, that the Arbitration Award is confirmed;
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.
Dated: November 6, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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