Frontier Communications of the Carolinas LLC v. International Brotherhood of Electrical Workers Local 1431
Filing
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AMENDED OPINION AND ORDER: The defendant's motion for summary judgment (ECF No. 37 ) is DENIED and the plaintiff's motion for summary judgment (ECF No. 38 ) is GRANTED. The decision of the Arbitrator is VACATED as inconsistent with the public policy of the State of South Carolina. Signed by Honorable Bruce Howe Hendricks on 6/15/2015. (prou, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Frontier Communications of the
Carolinas, LLC,
)
)
)
Plaintiff, )
)
v.
)
)
International Brotherhood of Electrical )
Workers, Local 1431,
)
)
Defendant. )
______________________________ )
Civil Action No.: 4:14-367-BHH
AMENDED OPINION AND ORDER
This matter is before the Court on cross-motiond for summary judgment (ECF No.
37, 38), both filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Frontier
Communications of the Carolinas LLC filed a complaint against International Brotherhood
of Electrical Workers, Local 1431 on February 10, 2014, asking the Court to vacate an
arbitration award issued under a collective bargaining agreement (“CBA”) between Frontier
Carolinas and Local 1431, which mandates that disputes concerning the interpretation and
application of the CBA be resolved by final and binding arbitration.
BACKGROUND
The plaintiff and defendant are party to a collective bargaining agreement (“CBA”),
effective from March 27, 2011 through March 29, 2014. (ECF No. 1-2.) The CBA contains
a procedure for adjusting “grievances.” The CBA defines a “grievance” to include “any
alleged action by the plaintiff or its representatives which causes an employee to lose
his/her job or any benefits arising out of his/her job.” (CBA § 6.1.) The CBA further
provides for “final and binding” arbitration of any such disputes not settled through the
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grievance process. Id. §7.4.
On December 13, 2012, the defendant filed a grievance alleging that the plaintiff had
terminated the employment of Jason Cambest without just cause in violation of the CBA.
The parties were unable to resolve the dispute through the grievance process. The parties,
through the Federal Mediation and Conciliation Service, selected arbitrator Hoyt N. Wheeler
to determine their dispute. Arbitrator Wheeler held a hearing on the parties’ stipulated
issue: “Was the discharge of Jason Cambest in violation of the collective bargaining
agreement and, if so, what should be the remedy?” (ECF No. 1-1 at 1, 5.) On November
18, 2013, Arbitrator Wheeler issued his decision, finding the discharge of Cambest was in
violation of the CBA and ordering the plaintiff to reinstate Cambest and pay backpay from
the time of his termination until he resumed his employment. Id. The Company has
refused to comply with the arbitrator’s award.
It is undisputed that, on June 27, 2011, Cambest, a Sales and Service Technician
performed a service call at a residence in Myrtle Beach, South Carolina, while a mother and
her eight-year-old daughter were in the home. On July 11, 2011, the plaintiff received a
warrant for the identity of the technician who had serviced the home. It is further undisputed
that the warrant stated that the technician had exposed his genatalia and fondled himself
in front of an eight-year-old girl. The child’s mother contended that he “was either adjusting
himself or adjusting his belt, that his private part came out and . . . he messed with it and
put it back in” and that he did not say anything to her. (ECF No. 1-1 at 5.) After the plaintiff
identified Cambest as the technician, he was arrested and charged with Solicitation of a
Minor. He was released on $3,500 bail.
The Myrtle Beach Police Department directed the plaintiff not to contact the family
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of the alleged victim to avoid interference with the investigation or prosecution of the
alleged crime. (Compl. ¶ 14; Answer ¶ 14.) The plaintiff suspended him. Cambest’s trial
date was delayed several times, but he ultimately pled guilty on November 13, 2012, in
accordance with North Carolina v. Alford, 400 U.S. 25 (1970), to the offense of Contributing
to the Delinquency of a Minor, which makes it a crime for “any person over eighteen years
of age to knowingly and willfully . . . injure or endanger [a minor’s] morals or health.”
(Compl. ¶¶ 9, 18.)
Upon learning of Cambest’s guilty plea, the Company resumed its internal
investigation and conducted an interview with Cambest, on November 20, 2012. The
Company concluded its investigation and decided to terminate Cambest’s employment, on
November 29, 2012. (Compl. ¶ 19; Answer ¶ 19.)
The plaintiff emphasizes that the Solicitor, in the underlying prosecution, admitted
that the case had been “aggressively overcharged” and reduced the charge to the
misdemeanor of contributing to the delinquency of a minor, “removing all sexual aspects
of the case.” (ECF No. 1-1 at 4, 5.) The Arbitrator noted that the Solicitor also described
the alleged conduct as “ambiguous as to both what occurred and what was [the] Grievant’s
intent.” Id. at 9. Cambest did not plead guilty to a sexual offense. Rather, to resolve the
matter, Cambest entered an Alford plea to the misdemeanor charge of contributing to the
delinquency of a minor. During the sentencing hearing, the Solicitor stated on the record
that the reduced charge had taken “all of the sexual nature of the offense out of the
picture.” Id. at 4, 5. Cambest was “sentenced” to pay a $200 fine, which he paid. He did
not receive any jail time other than the one day he had served when he was arrested. He
was not placed on the sex offender registry, and Cambest’s record was expunged of all
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charges. Id. at 5, 8.
STANDARD OF REVIEW
The court shall grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that
summary judgment is appropriate; if the movant carries its burden, then the burden shifts
to the non-movant to set forth specific facts showing that there is a genuine issue for trial.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 23 (1986). If a movant asserts that a fact
cannot be disputed, it must support that assertion either by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials;” or “showing . . . that an
adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must
demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is
entitled to judgment as a matter of law. As to the first of these determinations, a fact is
deemed “material” if proof of its existence or non-existence would affect disposition of the
case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An
issue of material fact is “genuine” if the evidence offered is such that a reasonable jury
might return a verdict for the non-movant. Id. at 257. In determining whether a genuine
issue has been raised, the court must construe all inferences and ambiguities against the
movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654,
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655 (1962).
Under this standard, the existence of a mere scintilla of evidence in support of the
plaintiff’s position is insufficient to withstand the summary judgment motion. Anderson, 477
U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to
preclude the granting of the summary judgment motion. Ross v. Communications Satellite
Corp., 759 F.2d 355, 365 (4th Cir. 1985). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248.
DISCUSSION
Remarkably, the parties have written to the limits of the local rule briefing
requirement, on cross motions for summary judgment, some 80-plus pages. The Court
would like its own brevity to make the strongest statement about the quality of this case.
The Court is fully aware not only of the liberties and interests at stake, the right to work and
the rule of law, and, additionally, the deep systemic value of adversarial process that
justifies the controversy. Cambest, in the most technical sense, is due the defense of his
employment and reputation here. The Union is legally so bound. At the same time, it is
a seemingly unacceptable result, and indicative in some sense of the fault in our system,
the energy applied by these litigants, and now the Court in necessary review, to decide
what should be the most obvious result – that the plaintiff has every legal, business, moral,
and public policy interest that it err on the side of this individual never representing it,
unsupervised, in South Carolina homes again. That is not a statement about Cambest as
a person or his freedom to work elsewhere or even really about the actual quality of his
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prior conduct. But, rather the Court means to emphasize the narrowest point that the
circumstances here scream the plaintiff’s right, over any prior agreement in collective
bargaining, to discontinue the employment relationship for the extraordinarily rational public
policy grounds of concern for public safety. This is not a great legal controversy. Said
differently, the Court itself, unlike the arbitrator below, is unequivocally not reevaluating the
truthfulness of the underlying allegation against the plaintiff, whether willful or incidental.
Rather, the question is whether the plaintiff, subject to arbitration in collective bargaining,
should be forced to reinstate an employee who has pled guilty to an offense, which does
say something very specific about the underlying allegation of risk to minors. In other
words, is it not the public policy of this State that the plaintiff should be able to so rely on
the guilty plea under the circumstances?
Of course, as is true in a 100% of the cases before the Court, clever lawyering has
made sophisticated that which the law should be able to treat plainly. The Court will deflect
with these brief words.
The Court would simply start with the most salient fact in this case. There is no
debate. Cambest pled guilty to S.C. Code § 16-17-490(10), pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970). Section 16-17-490(10) makes it unlawful for a person over
eighteen years of age to “knowingly and wilfully encourage, aid or cause or to do any act
which shall cause or influence a minor . . . . (10) To so deport himself or herself as to
wilfully injure or endanger his or her morals or health or the morals or health of others.”
See S.C. Code § 16-17-490(10); (see also ECF No. 38-5 at 13-14 (showing solicitor
explained that Cambest’s plea was to the provision of S.C. Code Section 16-17-490 on
injuring or endangering the morals of a child)). By entering an Alford plea, the defendant
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waives a trial and accepts punishment, but he does not admit guilt, and the prosecutor’s
proffer of what the State would have proved at trial does not amount to an admission or
acceptance of the facts by the defendant. See Alford, 400 U.S. at 38. Rather, it serves the
role of providing the court with a basis by which to evaluate the voluntariness of the
defendant's plea. See id.
Notwithstanding, the Arbitrator found that the Alford plea was an insufficient basis
to justify the plaintiff’s decision to terminate Cambest’s employment, as it was somehow
no indication of his conduct and, therefore, the plaintiff was left with no good cause as
required by the CBA. In so doing, the Arbitrator, inartfully, referred to the plaintiff as having
pled no contest. (ECF No. 1-1 at 9.) The plaintiff reasonably has concerns about the
misnomer. In one sense, the Arbitrator’s casual characterization of the plea as one in no
contest is irrelevant. Through improper nomenclature, he cannot change its legal effect.
In another, it is literally the entire problem: He cannot change its legal effect.
The “entry of an Alford plea at a criminal proceeding has the same preclusive effect
as a standard guilty plea” so that defendants “must likewise accept the collateral
consequences of that decision.” Zurcher v. Bilton, 666 S.E.2d 224, 227 (2008). Namely,
that the defendant is foreclosed from relitigating his or her guilt or innocence in a
subsequent judicial or quasi-judicial forum. See id.; see also United States v. King, 673
F.3d 274, 282 (4th Cir. 2012); United States v. Guzman-Alvarado, 457 F. App’x 296, 298
(4th Cir. 2011). A court’s acceptance of an Alford plea, like an acceptance of a guilty plea,
indisputably qualifies as an “adjudication of guilt.” King, 673 F.3d at 281-82. “[A]n Alford
plea can only be accepted when the record ‘contains strong evidence of actual guilt.’” Id.
at 282 (quoting United States v. Mastrapa, 509 F.3d 652, 659 (4th Cir.2007) (quoting
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Alford, 400 U.S. at 37, 91 S.Ct. 160)).
The defendant has not challenged these
indisputable aspects of an Alford plea, which were not recognized by the Arbitrator.
The plaintiff asks this Court to set aside the arbitral decision as violative of public
policy. The Court readily does. In applying the public policy exception, the Fourth Circuit
has held that the policy must be “one that specifically militates against the relief ordered by
the award.” Dist. 17, United Mine Workers of Am. v. Island Creek Coal Co., 179 F.3d 133,
139 (4th Cir. 1999). The award, itself, in this case, violates two public policies of the State
of South Carolina. First, it violates the express and jurisprudentially affirmed policy interest,
expressed in S.C. Code §§ 63-1-20, 16-17-490(10), that the State has a public interest in
the protection of children and their families. The arbitral decision refuses the plaintiff’s
ability to prioritize the interest of children and families, and thereby threatens it, insofar as
the decision disallows the discharge of an employee who has pled guilty to contributing to
the delinquency of a minor. Second, and related to the first, the decision violates the
State’s public policy that its criminal adjudications be given proper legal effect.
The Fourth Circuit is defensive of arbitration decisions. It has recognized that
“arbitration must be final to be effective.” Westvaco Corp. v. United Paperworkers Int'l
Union, AFL-CIO ex rel. Local Union 676, 171 F.3d 971, 974 (4th Cir. 1999) (citing
Richmond, Fredericksburg & Potomac R.R. v. Transportation Communications Int’l Union,
973 F.2d 276, 278 (4th Cir.1992). “Permitting judicial second-guessing of arbitral awards
‘would transform a binding process into a purely advisory one, and ultimately impair the
value of arbitration for labor and management alike.’” Westvaco, 171 F.3d at 974 (quoting
Transportation Communications, 973 F.2d at 278); see also Remmey v. PaineWebber, Inc.,
32 F.3d 143, 146 (4th Cir.1994). Thus, judicial review of an arbitration award has been
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characterized as “among the narrowest known to the law.” Union Pac. R.R. v. Sheehan,
439 U.S. 89, 91 (1978) (internal quotation marks omitted). Absent the most unusual of
circumstances, courts must uphold and enforce arbitral awards. See Westvaco, 171 F.3d
at 974.
In reviewing an arbitrator’s interpretation, a court examines only whether that
interpretation “draw[s] its essence from the contract and [does not] simply reflect the
arbitrator's own notions of industrial justice.” Id. at 975 (quotations omitted).
A court, however, may refuse to enforce “an arbitrator’s award under a
collective-bargaining agreement because it is contrary to public policy.”
United
Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 42, 108 S. Ct. 364, 373, 98
L. Ed. 2d 286 (1987) Generally, an arbitration award may be overturned if it “violates
well-settled and prevailing public policy, fails to draw its essence from the collective
bargaining agreement, or reflects the arbitrator's own notions of right and wrong.”
Mountaineer Gas Co. v. Oil, Chem. & Atomic Workers Int'l Union, 76 F.3d 606, 608 (4th Cir.
1996) (citing Misco, Inc., 484 U.S. at 36). The Supreme Court, however, has noted that
there is no “broad judicial power to set aside arbitration awards as against public policy.”
Misco, 484 U.S. at 43, 108 S.Ct. 364. Instead the power is a narrow one. See Westvaco,
171 F.3d at 976. And, as the defendant contends, both the United States Supreme Court
and this circuit have been reluctant to upset, on public policy grounds, the contractual
commitments of parties to arbitrate their grievances. See, e.g., id. at 766-72; Misco, 484
U.S. at 42-45; Westvaco, 171 F.3d at 977; Remmey v. PaineWebber, Inc., 32 F.3d 143,
146 (4th Cir.1994).
As the Court has already indicated, this otherwise narrow exception has application
here. S.C. Code § 63-1-20 states, “It shall be the policy of this State to concentrate on the
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prevention of children’s problems as the most important strategy which can be planned and
implemented on behalf of children and their families.” See, e.g., S.C. Code § 63-1-20. The
public policy reflected in this statute, and the one to which Cambest pled guilty, have been
recognized by the South Carolina Supreme Court. See Jensen v. Anderson Cnty. Dep’t
of Soc. Servs., 403 S.E.2d 615, 618 (S.C. 1991) (“The statutes [including Contributing to
the Delinquency of a Minor] are contained in a section entitled ‘Offenses Against Public
Policy’ and . . . their purpose is primarily the protection of the public.” (emphasis added));
Whitner v. State, 492 S.E.2d 777, 780 (S.C. 1997) (“The abuse or neglect of a child at any
time during childhood can exact a profound toll on the child herself as well as on society
as a whole.”). The Court is not commenting on the threat of the underlying conduct alone.
The arbitral decision, itself, enables, directly, a threat to this public policy by its failure to
permit the plaintiff from recognizing the legal quality and implications of Cambest’s plea.
Additionally, the Arbitrator’s decision offends the State’s public policy that its
adjudications of guilt be recognized and not reassessed. As already quoted, the “entry of
an Alford plea at a criminal proceeding has the same preclusive effect as a standard guilty
plea” so that defendants “must likewise accept the collateral consequences of that
decision.” Zurcher, 666 S.E.2d at 227. The defendant is foreclosed from relitigating his or
her guilt or innocence in a subsequent judicial or quasi-judicial forum. Id. But, that is what
the Arbitrator effectively, did; he deemed Cambest functionally innocent where the State
deemed him not. Maybe worse yet, he ordered that the plaintiff treat him thusly.
The Court would succinctly distinguish Westvaco, relied upon by the defendant, as
ineffective to foreclose application of the public policy exception. First, Westvaco did not
involve adjudicated criminal conduct but rather an alleged violation of the employer’s
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workplace policy against sexual harassment. See Westvaco, 171 F.3d at 973. Second,
Westvaco did not involve a criminal proceeding. In fact, the Fourth Circuit explicitly
distinguished such conduct and noted that “criminal misconduct may raise concerns not
present here.” Id. at 977 n.2. Third and necessarily, Westvaco did not involve a dispute
over whether a guilty plea conclusively established an employee’s guilt and, therefore, was
not threatening to the integrity of any state adjudication of the same. Other cases cited by
the defendant fail for similar reasons. The defendant has not cited a single authority where
an employer was forced, by collective bargaining, to reinstitute an employee over a guilty
plea, of any kind.
The Court would make only a few other observations. First, it a strange position to
rely on the post-mortem explanations of the Solicitor, as the Arbitrator did, to render the
plea meaningless evidence of dischargeable conduct. (See ECF No. 1-1 at 9.) No matter
what the solicitor says retrospectively, the State prosecuted Cambest to plea. And, in so
doing, the Solicitor actually remains the best evidence of the plaintiff’s conduct. The State
was free to drop charges altogether. But, it did not. Cambest made a reasonable
calculation in defense strategy. The Court does not mean to blame or second guess. But,
there are actual consequences to that decision to plea, about which he was expressly
apprised.
(ECF No. 38-5 at 6-7, 10-11 (“THE COURT: Now, you understand that
regardless of how you plead guilty, whether it be an Alford plea or an admission of guilt,
under both guilty pleas you’re going to have the same record, you’re subject to the same
sentence, there’s really no legal distinction between the two guilty pleas. Do you
understand that? MR. CAMBEST: Yes, sir.”) But, that is not the plaintiff’s burden to
accommodate or, rather, credit. The arbitral award says that the plaintiff must accept the
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subjective litigation strategy of Cambest over the legal meaning of the plea. It does not.
Lastly, the defendant would argue that the plaintiff did not argue its public policy
basis to the Arbitrator and, therefore, has waived his right to upon judicial review. As an
initial matter, the plaintiff did argue concerning the legal effect the Arbitrator must pay the
Alford plea. The argument is identical here. More importnatly, the plaintiff could not have
raised such bases. The public policy exception is to the arbitral decision. It is a collateral
challenge to the decision made and not on the merits. The plaintiff cannot waive the right
to challenge the arbitration award on public policy grounds before the arbitration award
comes into existence.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment (ECF No.
37) is DENIED and the plaintiff’s motion for summary judgment (ECF No. 38) is GRANTED.
The decision of the Arbitrator is VACATED as inconsistent with the public policy of the
State of South Carolina.
IT IS SO ORDERED.
s/ Bruce Howe Hendricks
United States District Judge
Greenville, South Carolina
June 15, 2015
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