Union de Tronquistas de Puerto Rico, Local 901 v. Mendez & Compania
Filing
34
OPINION AND ORDER granting 9 motion for summary judgment, denying the petition to vacate the arbitration award and dismissing the case with prejudice. Judgment shall be entered forthwith. Signed by Judge Juan M. Perez-Gimenez on 07/12/2017. (NNR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Union de Tronquistas
Rico, Local 901
Plaintiff,
de
Puerto
CIVIL NO. 14-1903 (PG)
v.
Mendez & Company, Inc.,
Defendant.
OPINION AND ORDER
Pending before the court is defendant Mendez & Company’s (“Defendant” or
“Mendez”) unopposed motion for summary judgment. Docket No. 9. For the reasons
set forth below, the court GRANTS the motion for summary judgment and DISMISSES
the case WITH PREJUDICE.
I. BACKGROUND1
Mendez and Teamsters Local 901 (“Union de Tronquistas de Puerto Rico,” in
Spanish) (herein, the “Union”) are parties to a collective bargaining agreement
(“CBA”) that governs the labor-management relations between them. The CBA sets
forth a mandatory grievance procedure through which all disputes related to the
interpretation, application and administration of the agreement are to be
resolved. See Docket No. 17-1 (“Exhibit I,” Cert. Translation of CBA).
Isaac Fernandez (“Fernandez” or the “grievant”) worked for Mendez as a
Forklift Operator from 2006 until July of 2011, when he was terminated from his
employment after incurring in several violations to the CBA and Mendez’s
workplace rules. The court summarizes the facts relevant below.
The Employment Manual
As part of his employment with Mendez, Fernandez received a copy of Mendez’s
Employee Manual (the “Manual”) on November 3, 2006. By acknowledging its receipt,
1 As noted above, the Union did not file an opposition to Mendez’s motion for summary
judgment. See Perez-Cordero v. Wal-Mart P.R., 440 F.3d 531, 534 (1st Cir. 2006) (“In most cases,
a party’s failure to oppose summary judgment is fatal to its case.”). Having closely scrutinized
Defendant’s moving papers, the court finds that Defendant has met its burden under Fed.R.Civ.P.
56(a). See Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 13 (1st Cir. 2007) (citing Velez v. Awning
Windows, Inc., 375 F.3d 35, 41 (1st Cir. 2004)) (noting that “even an unopposed motion for summary
judgment should not be granted unless the record discloses that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law”). The court
will thus cull the relevant facts from Defendant’s statement of uncontested material facts
(“SUMF”), which are in turn based on, and supported by the pertinent arbitration materials. See
Docket No. 9-5.
Civil No. 14-1903 (PG)
Page 2
he agreed that any violation of Mendez’s policies, rules or procedures would
constitute
just
cause
for
disciplinary
action
against
him,
including
termination. The Manual prohibits the use of cellular phones during working
hours. See Docket No. 17-4 (“Exhibit V,” Cert. Translation of Employee Manual)
at pp. 3-4. It also includes various norms pertaining to the proper use of
company equipment, as well as the obligations of employees with respect to the
notification and investigation of workplace accidents. Id. at pp. 4-8. Finally,
the Manual sanctions disciplinary action against an employee who incurs in
insubordination, the definition of which includes the failure to perform the
employee’s corresponding duties or the duties assigned by his or her supervisors.
Id. at pp. 6-7.
Relevant Workplace Incidents
On August 23, 2010, Fernandez received a written disciplinary action after
flouting his supervisor’s instructions on three occasions, in violation of the
Manual’s insubordination rule.2 See Docket No. 17-4 at page 7 (Rule 31, ¶ 11);
see also Docket No. 17-3 (“Exhibit IV,” Cert. Translation of Written Disciplinary
Action).
On June 27, 2011, Fernandez was involved in a workplace accident.3 The
internal investigation that ensued revealed that Fernandez was using his cell
phone while operating the company forklift around the warehouse’s basement,
where he went to stow two pallets of beer. As he was driving out of the basement,
Fernandez collided with another forklift operator. Upon the impact, several
cases of beer fell on the ground and broke, thus resulting in economic losses
for Mendez.
As part of the investigation conducted thereafter, Fernandez was asked to
submit a written statement setting forth his version of the facts. On July 1,
2011, Fernandez submitted his statement, indicating that he “was not present
2 The Arbitration Award specifies that on August 11, 2010, Fernandez was loading a company
truck when his supervisor, Jorge Arzuaga, instructed him to stop that task and take fifteen boxes
of merchandise to one Mendez’s promoters. When Fernandez refused to do so, Arzuaga repeated the
instruction for a second time to no avail. After Arzuaga repeated the instruction for a third
time, Fernandez complied under protest. See Docket No. 9-5 (“Exhibit III,” Cert. Translation of
Arbitration Award) at page 5.
3 The incident was captured on Mendez’s video surveillance cameras and the security footage
for that day, perforce, was eventually examined by Mendez’s management. It was also presented at
the arbitration hearing. See Docket No. 9-5; see also Docket No. 17-5 (“Exhibit VI,” Cert.
Translation of Transcript of Arbitration Hearing).
Civil No. 14-1903 (PG)
Page 3
when [his] co-worker … dropped the beer[,]” and that the merchandise was already
on the ground when he arrived at the area. See Docket No. 9-5 at page 6; Docket
No. 17-7 (“Exhibit X,” Cert. Translation of Fernandez’s Statement). However,
upon viewing the security footage, Fernandez’s supervisors and Mendez’s Director
of Human Resources confirmed that Fernandez was in fact using his cell phone
while driving the forklift into the basement and that he crashed into another
forklift on his way back.
Based on the investigation, Mendez determined that Fernandez violated
several
provisions
of
the
CBA
and
the
Manual,
including
Mendez’s
safety
standards. Mendez also concluded that in submitting false information, Fernandez
contravened his obligation to “[f]ully cooperate with any investigation carried
out by the [c]ompany[,]” and “to give true and complete information to the
[c]ompany,” be it verbally or in writing. See Docket No. 17-4 at pp. 4-8.
Consequently, on July 12, 2011, Fernandez was terminated from his employment.
See Docket No. 17-2 (“Exhibit II,” Cert. Translation of Termination Letter).
Arbitration
Pursuant to the CBA’s mandatory grievance procedure, the Union filed two
grievances before the Bureau of Conciliation and Arbitration of the Puerto Rico
Department
of
Labor
and
Human
Resources,
challenging
Fernandez’s
written
disciplinary action and termination from employment, respectively.4 See Docket
No. 9-5 at page 1. The arbitration hearing was held on January 31, 2014, with
Arbitrator Ruth Couto Marreo presiding. See Docket No. 17-5. On June 6, 2014,
the matter was deemed submitted for adjudication after the parties presented
their respective post-hearing briefs. Id.
The Arbitrator rendered the Arbitration Award (the “Award”) on November
16, 2014, upholding the two employment decisions challenged by the Union. See
Docket No. 9-5. She found that the August 23, 2010 written warning was warranted
given that Fernandez incurred in insubordination when he refused to carry out
his supervisor’s instructions, which disrupted and delayed Mendez’s operations
for that day. See id. at page 8. The Arbitrator also held that Fernandez’s
termination was justified, as the evidence demonstrated that he violated Mendez’s
safety standards, and in particular, Policy VII and Rules 11 and 16 of the
4 The two cases (A-10-3078 and A-12-412) were consolidated and scheduled for final and
binding arbitration, in accordance with Article X of the CBA. See Docket Nos. 9-5 and 17-1.
Civil No. 14-1903 (PG)
Page 4
Manual by making unauthorized use of his cellphone while operating the forklift.
Id. at pp. 9-10. Finally, the Arbitrator found that Fernandez’s written statement
was contradicted by the evidence on record (e.g., the security footage), thus
demonstrating the grievant violated Rules 17 and 18 of the Manual. Id.
Petition to Vacate
On December 5, 2014, the Union filed a Petition for Review of Arbitration
Award in the Puerto Rico Court of First Instance, San Juan Part, but Mendez soon
removed it to this court under 28 U.S.C. § 1441(b) and Section 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). See Docket No. 1.
Succinctly, the Union argues that the Award in question should be set aside
because it is (1) based on the Arbitrator’s faulty evaluation of the evidence
and (2) not “in accordance with the law.” See Docket No. 9-9. In its motion for
summary judgment, Mendez asserts that under the applicable scope of review, the
Union has failed to establish a valid ground upon which this court may vacate
the Award.5 See Docket No. 9 at page 2.
II.
DISCUSSION
A. Scope of Review
“It is a firm principle of federal labor law that where parties agree to
submit a dispute to binding arbitration, absent unusual circumstances, they are
bound by the outcome of said proceedings.” Asociacion de Empleados del Estado
Libre Asociado de Puerto Rico v. Union Internacional de Trabajadores de la
Industria de Automoviles, Aeroespacio e Implementos Agricolas, U.A.W. Local
1850, 559 F.3d 44, 47 (1st Cir. 2009) (quoting Posadas de Puerto Rico Assocs.,
Inc. v. Asociacion de Empleados de Casino de Puerto Rico, 821 F.2d 60, 61 (1st
Cir. 1987)). A federal court's review of an arbitrator's decision is “extremely
narrow and exceedingly deferential.” Airline Pilots Ass'n, Int'l v. Pan Am.
Airways Corp., 405 F.3d 25, 30 (1st Cir. 2005) (quoting Bull HN Info. Sys., Inc.
v. Hutson, 229 F.3d 321, 330 (1st Cir. 2000)). “Indeed, it is ‘among the narrowest
known in the law.’” Ramos-Santiago v. United Parcel Service, 524 F.3d 120, 123
(1st Cir. 2008) (citing Maine Cent. R.R. Co. v. Bhd. of Maint. of Way Employees,
873 F.2d 425, 428 (1st Cir. 1989)).
5
As Mendez points out, the Union failed to present any arguments concerning the Arbitrator’s
conclusions as to the written warning received by Fernandez, thus waiving the same. See Glob. NAPs,
Inc. v. Verizon New England, Inc., 706 F.3d 8, 16 (1st Cir. 2013) (citing United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990)).
Civil No. 14-1903 (PG)
Page 5
“[W]hen
the
arbitration
concerns
the
interpretation
of
a
collective
bargaining agreement, a court should uphold the view of the arbitrator so long
as ‘it can find, within the four corners of the agreement, any plausible basis
for that interpretation.’” Wheelabrator Envirotech Operating Servs. Inc. v.
Massachusetts Laborers Dist. Council Local 1144, 88 F.3d 40, 44 (1st Cir. 1996)
(citing El Dorado Technical Servs. v. Union Gen. De Trabajadores de Puerto Rico,
961 F.2d 317, 319 (1st Cir. 1992)). “That a reviewing court is convinced that
the arbitrators committed error -even serious error- does not justify setting
aside
the
arbitral
decision...This
remains
true
whether
the
arbitrators'
apparent error concerns a matter of law or a matter of fact.” Cytyc Corp. v.
DEKA Products Ltd. P'ship, 439 F.3d 27, 32 (1st Cir. 2006) (citations omitted).
“Nevertheless, there are limits to that deference.” Eastern Seaboard Const.
Co., Inc. v. Gray Const., Inc., 553 F.3d 1, 3 (1st Cir. 2008) (citing Kashner
Davidson Sec. Corp. v. Mscisz, 531 F.3d 68, 70 (1st Cir. 2008)). In order to
overturn the award, the movant must show “that the award was (1) unfounded in
reason and fact; (2) based on reasoning so palpably faulty that no judge, or
group of judges, ever could conceivably have made such a ruling; or (3)
mistakenly based on a crucial assumption that is concededly a non-fact.” UMass
Mem'l Med. Ctr., Inc. v. United Food And Commercial Workers Union, 527 F.3d 1,
4 (1st Cir. 2008) (citations and quotation marks omitted).
B. Analysis
Here, the record shows that during the arbitration hearing held on January
31, 2014, the Arbitrator heard the testimony of seven witnesses, including
Mendez’s Director of Human Resources, as well as several managers, supervisors
and directors who supervised the grievant and/or participated –directly or
indirectly- in the employment decisions challenged by the Union. See Docket No.
17-5. As part of the evidence proffered by Mendez, the Arbitrator received the
security video and various photographs depicting the June 27, 2011 forklift
accident in which Fernandez was involved. She also heard the testimony of several
witnesses in regards to that evidence. Finally, the court notes that Fernandez
himself testified at the hearing and admitted that he had in fact used his
cellphone during working hours on the day of the incident, in violation of
Mendez’s safety rules. See id. at page 66.
In her Award, the Arbitrator acknowledged the parties’ diverging positions
concerning Fernandez’s dismissal. For the sake of clarity, the court summarizes
Civil No. 14-1903 (PG)
Page 6
them here. On the one hand, Mendez argued that Fernandez’s dismissal was
warranted because he disregarded the company’s safety standards and employment
rules
by
making
unauthorized
use
of
his
cellphone
and
submitting
false
information during the investigation of the accident. The Union, on the other
hand, argued that the dismissal was not justified, as Fernandez was neither
involved in nor caused the accident. It also asserted that Fernandez’s written
statement contained the correct version of the facts. Nonetheless, the Arbitrator
ultimately adopted Mendez’s position and concluded that the evidence presented
by Mendez was sufficient to prove Fernandez’s violations, and thus, the just
cause for his dismissal under Puerto Rico law.6 See Docket No. 9-5 at pp. 8-10.
The Union now complains that the Arbitrator erred in her decision insofar
as the evidence presented by Mendez did not demonstrate that Fernandez provoked
the forklift accident, which (in its view) was the reason for his termination.
Docket No. 9-9. However, whether or not Fernandez caused the accident is
inapposite because neither Mendez nor the Arbitrator concluded so. See Docket
No. 9-5 at page 10. In any case, “[i]t is well settled that it is the arbitrator
who determines ‘the truth’ respecting material matters in controversy as he
believes it to be.” Union De Tronquistas De Puerto Rico, Local 901 v. United
Parcel Serv., Inc., No. 16-1098 (PG), 2016 WL 4194242, at *2 (D.P.R. Aug. 8,
2016) (quoting Union De Tronquistas De Puerto Rico, Local 901 v. United Parcel
Service, Inc., Civil Case 15-1364 (PAD) (citing Hoteles Condado Beach, La Concha
& Convention Ctr. v. Union de Tronquistas Local 901, 763 F.2d 34, 39 (1st Cir.
1985)). Simply put, it is the arbitrator’s task “to determine the weight,
relevancy and credibility of the evidence.” Union De Tronquistas De Puerto Rico,
Local 901 v. United Parcel Serv., Inc., 149 F.Supp.3d 246, 250–51 (D.P.R. 2016).
Thus, this court will not disrupt the Award merely because the Union believes
that the Arbitrator “erred in her evaluation of the evidence….”7 See Docket No.
9-9 at page 4.
6 The CBA mandates that the arbitration award be issued “in accordance with the law.” Docket
No. 17-1 at page 10 (or Art. X, § 6 of the CBA). In this case, that “law” is Puerto Rico’s Wrongful
Discharge Statute, P.R. Laws Ann. Tit. 29 § 185a et seq. (“Law 80”). For brevity’s sake, the court
refers to, and adopts by reference the Arbitrator’s analysis of the facts and issues submitted
for her consideration against the provisions of Law 80. See Docket No. 9-5 at pp. 8-10.
7 The court notes that the Union has failed to present or develop any challenge to the
Arbitrator’s conclusion that Fernandez violated Rules 17 and 18 of the Manual by submitting false
information to Mendez during the investigation of the incident. Any argument concerning this
matter is therefore waived. See Glob. NAPs, Inc., 706 F.3d at 16 (citing Zannino, 895 F.2d at
17).
Civil No. 14-1903 (PG)
Page 7
The Union also claims that the Arbitrator committed error in her legal
conclusions, mainly, in determining that Fernandez’s termination was justified
under Puerto Rico law. Id. But as Mendez points out in its motion for summary
judgment, the Union did not elaborate or explain the basis for its contention.
And
as
the
adage
goes,
“[i]ssues
adverted
to
in
a
perfunctory
manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”
Glob. NAPs, Inc., 706 F.3d at 16 (citing Zannino, 895 F.2d at 17). The same
conclusion holds true with respect to the Union’s claim that the Arbitrator’s
decision affected Fernandez’s due process rights. See Docket No. 9-9 at page 6.
The Union’s arguments on both matters are vague and fail to place the court in
a position to adjudge the purported issues. The court will thus close the door
on these seriously nebulous claims.
III. CONCLUSION
After careful review of the Arbitration Award, the court finds that the
Arbitrator considered the language of the CBA and the Employment Manual against
the framework of Puerto Rico law and determined that Fernandez’s dismissal was
justified. See Docket No. 9-5. Her interpretation, no doubt, falls within the
four corners of the CBA. See Wheelabrator Envirotech Operating Servs. Inc., 88
F.3d at 44. In sum, the Union has failed to show the existence of any ground
upon which this court may overturn the Arbitrator’s decision. See e.g. UMass
Mem'l Med. Ctr., Inc., 527 F.3d at 4. Defendant, on the other hand, has met its
burden under Fed.R.Civ.P. 56. Consequently, the court GRANTS Defendant’s motion
for summary judgment (Docket No. 9), DENIES Plaintiff’s petition to vacate, and
DISMISSES the case WITH PREJUDICE. Judgment shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, July 12, 2017.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
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