Union de Tronquistas de Puerto Rico, Local 901 v. United Parcel Service, Inc.
Filing
29
OPINION AND ORDER granting 10 motion for summary judgment; denying 17 motion for summary judgment. Judgment shall be entered dismissing case with prejudice. Signed by Judge Juan M. Perez-Gimenez on 8/8/2016. (PMA)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
UNION DE TRONQUISTAS DE PUERTO RICO,
LOCAL 901,
Plaintiff,
v.
CIVIL NO. 16-1098 (PG)
UNITED PARCEL SERVICE, INC.,
Defendant.
OPINION AND ORDER
Pending now before the court is defendant United Parcel Service Inc.’s
(“UPS” or “Defendant”) motion for summary judgment (Docket No. 20) and Union de
Tronquistas de Puerto Rico, Local 901’s response and cross-motion (Docket
No. 17). For the reasons set forth below, the court GRANTS the Defendant’s
motion for summary judgment and the case is DISMISSED WITH PREJUDICE.
I. BACKGROUND
UPS and the Union de Tronquistas de Puerto Rico, Local 901 (hereinafter
the “Union”) are parties to a collective bargaining agreement (hereinafter
referred to as the “CBA”), which contains a mandatory grievance procedure,
through which all disputes related to the interpretation, application and/or
administration of the agreement are to be resolved. On January 12, 2016, the
Union filed a Petition for Review of an Arbitrator’s Award in the courts of the
Commonwealth of Puerto Rico. See Docket No. 6-1. In essence, the Union seeks to
set aside and annul the arbitration award dismissing a grievance filed by the
Union on behalf of grievant Walter Borges (“Borges”) after his dismissal from
UPS. The arbitrator held that Borges failed to comply with the grievance
procedure set forth in the CBA, and thus, the complaint was not arbitrable.
According to the Union, the award was in error and violated public policy. See
id.
On January 20, 2016, defendant UPS filed a Notice of Removal claiming this
court has jurisdiction over the matter in controversy pursuant to Section 301
of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. See Docket
No. 1. Subsequently, UPS moved for summary judgment in its favor arguing that
the Union failed to set forth any valid ground upon which the court may set
aside and vacate the award in question. See Docket No. 10. The Union responded
Civil No. 16-1098 (PG)
Page 2
and also moved for summary judgment, see Docket No. 17, which UPS timely
opposed, see Docket No. 22.
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) (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)). “[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)). “So far
as the arbitrator’s decision concerns construction of the [CBA], the courts have
no business overruling him because their interpretation of the contract is
different from his.” Dorado Beach Hotel Corp. v. Union de Trabajadores de la
Industria Gastronomica de Puerto Rico, 959 F.2d 2, 4 (1st Cir.1992) (citations
and quotation marks omitted). “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
Civil No. 16-1098 (PG)
Page 3
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
On February 3, 2014, UPS terminated Borges’ employment for an alleged
violation of the CBA and the “Workplace Violence Policy.” See Docket No. 10-4.
Article 16 of the CBA establishes that “[w]hen an employee has a complaint about
the administration or interpretation of the [CBA], it shall be discussed with
his supervisor, and if they do not reach a satisfactory agreement, the employee
will bring the case in writing to the delegate, … , within ten (10) days of the
occurrence.” See Docket No. 6-1 at page 21 (emphasis ours). Said article also
states that “[a]ny grievance not presented, taken to the next step or answered
within the established timeframe will be resolved based on the company’s last
position … .” See id.
The record shows that the arbitrator in this case held a hearing on
September 10, 2015 before rendering his award on December 14, 2015. See Docket
No. 6-1. During said hearing, both Borges and his supervisor Daina Torres
(hereinafter “Torres”) testified. See Docket No. 6-1 at pages 28-72. Borges
testified during the hearing that as he was escorted out of his employer’s
premises, he went by Torres and told her that he “did not agree with the
decision of dismissal.” Docket No. 6-1 at pages 43, 52-53. But it was Torres’
testimony that Borges never discussed his termination with her. See id. at page
37. The arbitrator ultimately adopted UPS’s position that the claim was not
procedurally arbitrable because Borges did not properly “discuss” his complaint
with Torres after his termination or present his case in writing to the delegate
within ten (10) days from his discharge, as established and required by the CBA.
See Docket No. 6-1 at page 24.
The Union now complains that the arbitrator’s determination that Borges’
claim was not arbitrable was in error because Borges indeed complied with the
steps
set
forth
in
the
CBA’s
established
procedure,
contrary
to
his
determination. See Docket No. 6-1 at page 11. However, UPS argues that the
arbitrator had a reasonable basis for his final award after holding a hearing
where both parties presented evidence, including Borges and Torres’ testimony,
Civil No. 16-1098 (PG)
Page 4
and his credibility determinations are not proper grounds for review. See Docket
No. 10. The court agrees with UPS.
In fact, this court has already addressed and adjudged this same issue in
Union De Tronquistas De Puerto Rico, Local 901 v. United Parcel Service, Inc.,
Civil Case 15-1364(PAD), where another member of the Union was dismissed from
his employment at UPS and sought to vacate an arbitration award that held that
the former employee’s grievance was not procedurally arbitrable. See Civil Case
No. 15-1364(PAD) at Docket No. 27. Much like in the present case, the grievant
had also testified before the arbitrator that he had told his immediate
supervisor that he did not agree with the company’s decision, but the supervisor
contradicted this claim. See id. at page 2. Citing First Circuit Court of
Appeals caselaw, the presiding judge in said case stated that “[i]t is well
settled that is the arbitrator who determines ‘the truth’ respecting material
matters in controversy as he believes it to be.” Id. (citing Hoteles Condado
Beach, La Concha & Convention Ctr. v. Union de Tronquistas Local 901, 763 F.2d
34, 39 (1st Cir. 1985); Union de Periodistas de Artes Gráficas y Ramas Anexas
v. Telemundo de Puerto Rico, Inc., 926 F.Supp.2d 410, 418 (1st Cir. 2013)). Like
here, the arbitrator simply believed the Union member’s supervisor.
The undersigned agrees with this court’s prior ruling on an identical
legal question between the same parties. “The arbitrator heard the testimony and
is in the best position to judge credibility.” Int’l Bhd. of Firemen & Oilers,
Local 261 v. Great N. Paper Co., 765 F.2d 295, 296 (1st Cir. 1985). “[T]hat the
arbitrator made a credibility finding or reached a conclusion different from
that which might have been made by a court, is not ground for interfering with
the award.” Id. (citations omitted). Accordingly, the court here will not
disrupt the arbitrator’s award on the grounds that he believed - mistakenly or
not - that Borges did not discuss his complaint with Torres within the meaning
and the time limit set by the CBA.
The Union also claims that UPS waived its defense that the claim was not
procedurally arbitrable because it was not raised “at the precise moment,” see
Docket No. 6-1 at page 15. However, the court is at a loss to know when was the
exact time frame in which the Union now claims UPS could have timely raised said
defense. As UPS notes in its motion for summary judgment, the Union’s argument
is vague and fails to place the court in a position to properly adjudge the
matter. See Docket No. 10-1 at page 13. “[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed
waived.” Glob. NAPs, Inc. v. Verizon New England, Inc., 706 F.3d 8, 16 (1st Cir.
Civil No. 16-1098 (PG)
Page 5
2013) (citing•United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). The
court will not do counsel’s work and instead bypass the issue.1
The Union also complains that the arbitrator’s award violates public
policy establishing that an employer must justify its dismissal of an employee
with “crystal clear” evidence. See Docket No. 6-1 at page 16. In turn, UPS first
notes that the Union barely elaborates the foundation for this argument. See
Docket No. 10-1 at pages 13-14. Second, UPS also points out that the arbitrator
never reached the merits of Borges’ termination insofar as the claim was
dismissed on procedural grounds, to wit, Borges’ failure to comply with the
CBA’s established procedures. Id. As a result, the argument is inapposite.
The court agrees that the Union’s attack against the arbitration award on
these grounds is clearly off target. A court’s power to vacate an arbitration
award where the arbitration agreement as interpreted would violate public policy
“is limited ‘to situations where the contract as interpreted would violate ‘some
explicit public policy’ that is ‘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.’” Prudential-Bache Sec., Inc. v.
Tanner, 72 F.3d 234, 241 (1st Cir. 1995)(citing United Paperworkers Int’l Union
v. Misco, Inc., 484 U.S. 29, 43 (1987); W.R. Grace & Co. v. Local Union 759,
United Rubber Workers, 461 U.S. 757, 766 (1983)). The Union simply failed to
make this showing and its claim that the arbitration award should be vacated on
public policy grounds is also rejected.
Finally, the Union argues in passing in its opposition that the “Award
violated Plaintiff’s due process rights as it did not contain any basis, or
facts in support of its conclusions.” Docket No. 18 at page 2. After review of
the arbitration award in question, however, the court must differ. It is
uncontested that the arbitrator held a hearing where he listened to testimony
and allowed the parties to present other documentary evidence. Thereafter, the
arbitrator entered an 8-page award discussing the foundations for his holding
that the controversy was not procedurally arbitrable based on the proof set
forth before him. The court, thus, cannot concur with the Union’s contention.
1
At any rate, “[i]ssues of procedural arbitrability are for the arbitrator to decide.
‘Once it is determined [by a court] that the parties are obligated to submit the subject
matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and
bear on its final disposition should be left to the arbitrator.’” Local 285, Serv. Employees
Int’l Union, AFL-CIO v. Nonotuck Res. Associates, Inc., 64 F.3d 735, 739 (1st Cir. 1995)
(citing John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964)).
Civil No. 16-1098 (PG)
Page 6
And even if there was a grain of truth to the Union’s claim, “an arbitrator has
no obligation to give his or her reasons for an award.” Int’l Shipping Agency,
Inc. v. Respondent Empleados De Muelles De Puerto Rico, AFL-CIO, LOCAL 1901,
ILA, No. CIV. 11-1724 JAG, 2012 WL 2052145, at *4 (D.P.R. June 5, 2012) (citing
Labor Relations Div. of Constr. Indus. v. Int’l Bhd. of Teamsters, 29 F.3d 742,
746 (1st Cir.1994)). “[I]t has long been settled that arbitrators are not
required to make formal ‘findings of fact’ to accompany the awards they issue.
Indeed, ‘[a]rbitrators have no obligation … to give their reasons for an award
at all.’” Raytheon Co. v. Automated Bus. Sys., Inc., 882 F.2d 6, 8 (1st Cir.
1989)(citing United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363
U.S. 593, 598 (1960)). “[W]e cannot set aside an arbitration award merely
because the arbitrators chose not to provide the parties with the reasons for
their decision.” Raytheon Co., 882 F.2d at 8.
III. CONCLUSION
For the reasons stated above, this court GRANTS defendant UPS’s motion
for summary judgment (Docket No. 10) and DENIES the Union’s motion for summary
judgment and opposition (Docket No. 17). Judgment DISMISSING WITH PREJUDICE the
Union’s claims will be thus entered.
IT IS SO ORDERED.
In San Juan, Puerto Rico, August 8, 2016.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE
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