Axiall Corporation v. International Chemical Workers Union Council Of The United Food And Commercial Workers et al

Filing 32

MEMORANDUM OPINION AND ORDER: Plaintiffs 25 Motion for Summary Judgment is DENIED; Defendant 23 Unions Motion for Summary Judgment is GRANTED. This Court ORDERS the Arbitration Award be ENFORCED. The Clerk is directed to enter judgment in favor of the defendants and STRIKE this matter from the active docket. Signed by District Judge John Preston Bailey on 2/16/2021. (nmm)

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 1 of 12 PageID #: 1218

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling

AXIALL CORPORATION,

Plaintiff,
Civil Action No. 5:20-CV-117
Judge Bailey

V.

INTERNATIONAL CHEMICAL
WORKERS UNION COUNCIL
OF THE UNITED FOOD AND
COMMERCIAL WORKERS AND
THE INTERNATIONAL CHEMICAL
WORKERS COUNCIL OF THE
UNITED FOOD AND COMMERCIAL
WORKERS, LOCAL UNION NO. 45C,

Defendants.
MEMORANDUM OPINION AND ORDER

Pending before this Court are two competing motions—defendant Unions’ Motion for
Summary Judgment [Doc. 23], flIed on December 8,2020; and Plaintiffs Motion forSummary
Judgment [Dcc. 25], flIed on December 8, 2020. The parties filed attached Memoranda in

Support of their respective Motions. See [Docs. 24 & 26]. The parties filed respective
Responses [Docs. 27 & 281 on January 5,2021, and respective Replies [Docs. 29 & 30] on
January19, 2021. The parties also filed a Joint Stipulation of Record [Dec.22] and a Joint
Stipulation of Supplementto Record IDoc. 31]. Forthe reasons contained herein, this Court
will grant defendants’ motion and deny plaintiff’s motion.

1

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 2 of 12 PageID #: 1219

BACKGROUND
The underlying facts of this litigation are largely uncontested.

Plaintiff Axiall

Corporation, a Westlake Company, operates a chemical manufacturing plant in Natrium, West
Virginia. See [Dcc. 22-1 at 10]. The plant sits on a salt bed, and plaintiff extracts the saltfrom
the ground to make various chemical products. lid.]. Plaintiff employed Michael McGovern
as an ‘E-Man” in the Cal-Hypo-Department at the subject plant. [Id. at 11].
On January 22,2019, McGovern pled guilty to the following charges stemming from an
incident in which he intentionally set fire at his bar: (1) Second Degree Arson; (2) Conspiracy
to Commit Second Degree Arson; (3) Fourth Degree Arson; (4) Buming orAttempting to Bum
Insured Property; and (5) Attempted Insurance Fraud. [Id. at4l 6—417; 468—487]. As a result,
Marshall County Circuit Court Judge David Hummel sentenced McGovern to a term of
imprisonment, and McGovern was incarcerated from March 19, 2019, till August 13, 2019.
[Id. at 433—435].
Upon learning of McGovern’s sentencing, plaintiff placed him on paid suspension
pending an internal investigation, lid. at436]. Afterconducting an investigation and consulting
with corporate human resources and in-house counsel, plaintiff discharged McGovern from
his employment at the plant. [Id. at 11]. In addition to identifying each of McGovern’s five
criminal charges, a termination letter sent to McGovern by plaintiff provided as follows:
Judge Hummei, who sentenced you, rejected youraftorney’s proposal fora less
severe sentence and found thatyourconductwas abhorrentand repugnant. He
found that you committed a violent crime. You intended to burn the bar, while
leaving the natural gas on, so that it would bum to the ground or blow up. The
judge did not view this as a regular arson,” but rather, he pointed out that the
gas valves were all open, and it was going to be “explosive.” The judge found
that you planned this to happen. This exposed at least two dozen volunteer
2

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 3 of 12 PageID #: 1220

firefighters--and an unknown numberofdeputyshehffs and first responders—ta
the risk of serious injury or death. Even you conceded at your sentencing
hearing that your actions were drastic and detrimental to all involved,” and
“people... could have been injured.” Importantly, the judge noted that ‘[n]ot
incarcerating you may or could encourage similar criminal activity.”
As you also know, the health and safety of ouremployees and ourcommunities
is one of Westlake’s core values. Westlake is obligated to protect the safety
of its employees, vendors, contractors and visitors that enter its propertyas well
as the general public against harm that could be caused by damage to its
manufacturing facilityorfrom anyotherthreat of harm. The underlying intentional
and criminal acts for which you have been sentenced make you unqualified and
unfit to work at our plant. You have admitted to committing arson and to
attempting to financially benefit from the same. Therefore, Westlake cannot
continue to employa known, admitted arsonist in its own chemical plant, where
flammable and dangerous chemicals are present, due to the safety concerns
and liability risks created.
Additionally, and as an independent second reason for discharge, Westlake
has the right to protect its business reputation, which would very likely be
harmed by employing an admitted arsonist, who put lives in jeopardy, as part
of a scheme to defraud an insurance carrier. Judge Hummel rightly observed
that the firefighters who reported to the fire, which you intended to be
explosive,” left theirfamilies, didn’t know if they were coming back home, and
didn’t get paid for their efforts to stop the fire while you wanted to cash out.
Westlake’s reputation would be harmed for employing a known, admitted
arsonist in our chemical plant who exposed innocent lives in the community to
serious injury or death.
A third independent reason for discharge is the public display of dishonesty in
pleading guilty to your attempt to defraud an insurance carder. Indeed, the judge
observed that even in your three-and-a-half hour interview during the state’s
investigation of the fire, you lied for 2% hours. We depend upon the honesty
of our employees in running our chemical plant.
Yoursentence also renders you unqualified forthe position as E-Man. Under
the Rules Covering The Operation of the Plant—Rules forAbsentee Control, you
are subject to termination upon incurring nine (9) chargeable occurrences,
which will occur upon your reporting to prison to serve your sentence, or
alternatively, you are subject to termination when you are ‘absent...from work for
a period of seven (7) consecutive days and without justifiable cause [do] not
personally or in writing notify [your] supeMsoror the Personnel Department.”
(CBA Article XIII, Section A. Seniority, paragraph 4(d).
3

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 4 of 12 PageID #: 1221

While your felonious actions did not occur atwork, they most assuredly affect
your employment as outlined above, and they constitute just cause for
discharge. Accordingly, you have given us no choice by to terminate your
employment.
[Id. at 602—603].
Plaintiff and defendants were parties to a collective bargaining agreement (“CBA”),
which provides for a grievance procedure ultimately resulting in binding arbitration. [Id. at
465—4711. Given that McGovern was a bargaining-unit member, defendants filed a grievance
on his behalf concerning the propriety of his termination. [Id. at 6271. The parties did not
resolve the grievance and, as a result, an arbitration hearing took place on February 5,2020,
before Arbitrator Charles S. Dunn (“arbitrator”). See [Doc. 22-1]. On May 13, 2020, the
arbitrator rendered his Opinion and Award, which sustained defendants’ grievance and
ordered McGovern to be reinstated with back pay and benefits. [Id.].
On or around June 3, 2020, plaintiff invoked the arbitrator’s retained jurisdiction in
order to seek clarification of the remedy, and the parties submitted supplemental briefing.
[Id.]. However, prior to ruling on the supplemental briefing, the arbitrator passed away. [Id.].
To date, plaintiff has not complied with the award and has filed its Complaint [Doc. 1] seeking
this Courtto vacate the award. Defendants then filed theirAnswerand Counterclaim [Doc. 11]
arguing that this Court should confirm and enforce the award.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
togetherwith the affidavits, if any, show that there is no genuine issue as to any material fact
4

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 5 of 12 PageID #: 1222

and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see Celotex Corp. v. Catreft, 477 U.S. 317, 322 (1986). A genuine issue exists “if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986). Thus, the Court must conduct

“the threshold inquiry of determining whether there is the need for a trial whether, in other
—

words, there are any genuine factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favorof either party.” Anderson, 477 U.S.
at 250.
Additionally, the party opposing summaryjudgment “must do more than simplyshow
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,586(1986). That is, once the movant has
met its burden to show absence of material fact, the party opposing summaryjudgment must
then come forward with affidavits orother evidence demonstrating there is indeed a genuine
issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323—25; Anderson, 477
U.S. at 248. “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted).
When cross-motions for summary judgment are before a district court, as here, the
same standards of review are applied. ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42,45
n.3 (4th Cir. 1983). Each motion must be considered individually on its own merits, and the
facts relevant to each must be viewed in the light most favorable to the non-movant. Mellen
v. Bunting, 327 F.3d 355,363(4th Cir. 2003) (citing Rossignoi v. Voorhaar, 316 F.3d 516,
523(4th Cir. 2003)). When considering each individual motion, the court must take care to
5

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 6 of 12 PageID #: 1223

“resolve all factual disputes and any competing, rational inferences in the light mostfavorable”
to the party opposing that motion. Rossignol, 316 F.3d at 523 (quoting Wightman

it.

Springfield TerminalRy. Co., 100 F.3d 228, 230 (1st Cir. 1996)).
DISCUSSION
A review of the pleadings indicates that plaintiff seeks this Court to overturn the
arbitrator’s award. The Fourth Circuit “has repeated, time and again, that, judicial review of
arbitration awards is extremely limited—in fact, it is among the narrowest known to the law.”
Washington Gas Light Co. v. Int’l Brotherhood of Teamsters, Local 96, 594 F. App’x
774,779 (4th Cir. 2014) (quotations omitted) (citing U.S. Postal Sen.’.

it.

American Postal

Workers Union, AFL-CIO, 204 F.3d 523, 527 (4th Cir. 2000)).
Indeed, the Supreme Court has recently explained that “Ujudicial review of a laborarbitration decision” is not merely limited but “very limited.” MajorLeague Baseball Players
Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (per cuflam). A court must “determine only
whetherthe arbitratordid his job—notwhether he did itwell, correctly, or reasonably, but simply
whether he did it.” Mountaineer Gas Co. v. Oil, Chem. & Atomic Workers Int’l Union, 76
F.3d 606, 608 (4th Cir. 1996).
In another case involving the subject plant, the Fourth Circuit explained:
We have consistently observed that “arbitration must be final to be effective.
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.”

6

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 7 of 12 PageID #: 1224

ICWUC & Its Local Union 45C v. PPG Industries, Inc., 97 F. App’x 400, 403 (4th Cir.
2004) (citations omitted).
In deciding whether the arbitrator “did his job,” any reasonable doubt on this matter
“must be resolved in favor of enforcing the award.” Ethyl Corp. v. USWA, 768 F.2d 180, 185
(7th Cir. 1985) (citing USWv. Enterprise Wheel & Car, 363 U.S. 593, 597—598 (1960)).
Applying this principle, the Fourth Circuit has recognized that “[e]very presumption is in favor
of the validity of the award.” Richmond, Fredericksburg & Potomac R.R. Co. v. Transp.

Comm’ns Int’l Union, 973 F.2d 276, 278 (4th Cir. 1992).
When reviewing an arbitrator’s award entered pursuant to a collective bargaining
agreement, “[a)s long as the arbitratoris even arguablyconstming orapplying the contract and
acting within the scope of his authority, the court cannot overturn his decision simply because
it disagrees with his factual findings, contract interpretations, or choice of remedies.” United
Paperworkers Intl Union, AFL-CIO v. Misco, Inc., 484 U.S.29, 30 (1 987). “It is only when

the arbitrator strays from interpretation and application of the agreement and effectively
‘dispense[s] his own brand of industrial justice’ that his decision may be unenforceable.”
Garvey, 532 U.S. at 509 (quoting Steelworkers i.’. Enterprise Wheel & CarCorp., 363 U.S.

593, 597 (1960).
This Court has reviewed the motions before it and the arbitrator’s opinion and finds no
basis for vacating the arbitrators award. Although plaintiff asserts several arguments in
support of its position, it is clear that plaintiff is merely attempting to relitigate the matter
because it disagrees with the findings of the arbitrator.

7

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 8 of 12 PageID #: 1225

A.

Plaintiff’s Arguments
Public Policy
First, plaintiff asserts that the arbitrator’s award should be overturned because the

arbitrator’s decision °clearly violates public policy.” See [Doc. 26 at 16]. More specifically,
plaintiff asserts that reinstating defendant, a convicted arsonist, to its facility containing
flammable and dangerous chemicals creates a dangerous and unsafe situation for its other
employees. [Id.]. However, the arbitrator considered these factors surrounding defendant’s
reinstatement and determined that McGovern had never been shown to be a safety hazard at
work. See [Doc. 27 at 5]. Moreover, the arbitrator concluded that McGovern did not pose a
unique risk to plaintiff’s business due to his criminal conviction. [Id.]. In making such
conclusions, the arbitratoracted within the scope of his authority in applying the CBA, and this
Court will not overturn the award based on plaintiff’s public policy argument.
II.

The Arbitrator’s Personal Opinion

Next, plaintiff asserts thatthis Court should overturn the arbitrator’s award because it
“fails to draw its essencefrom the collective bargaining agreement” and “reflects merely the
arbitrator’s personal notions of right and wrong.” See [Doc. 26 at 22]. In support, plaintiff
argues thatthe arbitratordisregarded Judge Hummel’s findings that McGovern’s underlying
criminal conduct was “abhorrent and repugnant.]” [Id. at 231. According to plaintiff, it relied
on Judge Hummel’s findings when it determined to discharge McGovern. [Id,]. Plaintiff
contends that the arbitrator improperly dismissed Judge Hummel’s findings and substituted
his own notions of right and wrong when entering the award. [Id.]. This Court disagrees.

8

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 9 of 12 PageID #: 1226

As identified by defendants, the evidentiary and procedural backgrounds underlying
this case, including Judge Hummel’s findings related to the underlying criminal matter, were
considered by the arbitrator. However, the record indicates that the arbitrator considered
those findings and found them unpersuasive when considering other work-related
evidence—namely, that plaintiff allowed McGovern to return to work after the underlying criminal
conduct but prior to his plea. As identified by defendants, this Court does not sit to hear
claims of factual or legal error by an arbitrator as an appellate court does in reviewing
decisions of lower courts, and this Court declines to revisit the arbitrator’s findings in this
regard. See United Papenworkers Intern. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29,
37—38 (1987) (7o resolve disputes about the application of a collective-bargaining
agreement, an arbitrator must find facts and a court may not reject those findings simply
because it disagrees with them.”).
B.

Clarification of the Award
Having rejected plaintiff’s arguments concerning the validity of the award, this Court

turns to plaintiff’s argument concerning the purported need for clarification of the award.
Specifically, the arbitrator concluded that McGovern was to be reinstated with back pay and
benefits for the time he ought to have been working. However, plaintiff contends that
McGovern’s five-month incarceration from March 19,2019, until August 13,2019, is evidence
of post-discharge conductwhich precludes the award of back pay during this time frame. See
[Doc. 28 at 1 5J. As such, plaintiff contends it is entitled to a set-off in back pay based on

9

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 10 of 12 PageID #: 1227

McGovern’s period of incarceration. [Id.]. This Court declines to revisitthe award concerning
reinstatement and back pay.
As identified by defendants, plaintiff had the opportunity to raise these arguments
during the arbitration hearing and post-hearing briefing, and the award cannot be modified or
clarified based on these arguments. See [Doc. 29 at 14—15]; see also Barranco v. 3d
Systems Corp., 734 F.App’x. 885, 889 (4th Cir. 2018) (“[Am arbitrator may correct clerical,
typographical, or computational errors in a final award, [but] has no powerto revisit the merits
of the award after it has issued.”).
C.

Attorney Fees
Having determined that the arbitrator’s award is sufficiently final and subject to

enforcement in full, this Court now turns to defendants’ requestforattorneyfees. Generally,
attorney fees are not recoverable. The so-called American Rule does not allow for awards
ofaftomeyfees unless there is a fee-shifting statute or an enforceable contract providing for
attorneys’ fees. See Summit Valley Indus. Inc. v. Local 112, United Brotherhood of
Carpenters & Joiners ofAm., 456 U.S. 717,721(1982); Fieischmann Distilling Corp. v.

MaierBrewing Co., 386 U.S. 714, 717 (1967). When and where awards for attorney fees
are appropriate are “matters for Congress to determine.” Alyeska Pipeline Sew. Co. v.
Wilderness Soc’y, 421 U.S. 240, 262 (1975). In the absence of a statute pertaining to
attorney fees, however, the Supreme Court and the Fourth Circuit have endorsed certain
exceptions based on courts’ inherent equitable powers for imposing attorney fee awards.
See Summit Valley, 456 U.S. at 721; United Food & Corn. Workers, Local400 v. Mawal

10

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 11 of 12 PageID #: 1228

Poultry Co., 876 F.2d 346, 350 (4th Cir. 1989). Awards for fees are appropriate in labor

relations actions “against a partywho, without justification1 refuses to abide by an arbitrator’s
award.” Local 149, Auto. Workers of America v. American Brake Shoe Co., 298 F.2d

212, 216 (4th Cir.1962); see also Marval, 876 F.2d at 350 (holding that Aleyska did not
prohibit courts from awarding attorneyfees based on the courts’ inherent equitable power as
established in American Brake Shoe). The Fourth Circuit has defined “without justification”
as “vexatious” or “willful disobedience of a court order.” See Marval, 876 F.2d at 350.
Determining whether a challenge to an arbitration award is “without justification”
depends on the focus of that challenge.
Where a challenge goes to the fundamental issues of arbitrabilityorof whether
an arbitration award “draws its essence” from the contract, the standard for
assessing its justification is indeed the relatively lenient one of whether it has
“any arguable basis in law.”.

.

.

Where, however, the challenge goes not to

issues of the fundamental power of an arbitrator to make an award but to the
merits of an arbitrator’s award as made, the standard of justification is much
more stringent. Indeed, because such challenges, if undeterred, inevitably
thwart the national labor policy favoring arbitration, they must be considered
presumptively unjustified.
Id. at 351. Precedentwithin the Fourth Circuit shows that even though challenges to the merits

of arbitration awards are “presumptively unjustified,” the actual burden to prove justification is
lower than the standard seems. See Storck Baking Co. v. Bakers Local 57,847 F. Supp.

11

Case 5:20-cv-00117-JPB Document 32 Filed 02/16/21 Page 12 of 12 PageID #: 1229

43, 44 (S.D. W.Va. 1994) (Haden, C.J.) (holding that even where a party filed suit in court
when they had a duty to arbitrate, that did not rise to the level of vexatiousness to award
aftorneyfees). Although this Court has rejected plaintiffs arguments, it finds that plaintiff has
met the aforementioned standard of justification in bringing the pending suit. As such, this
Court declines to award attorney fees to defendants.
CONCLUSION
For the aforementioned reasons, Plaintiff’s Motion for Summary Judgment [Doc. 25]
is DENIED. Defendant Unions’ Motion for Summary Judgment IDoc. 23] is GRANTED.
Accordingly, this Court ORDERS the Arbitration Award be ENFORCED. The Clerk is
directed to enterjudgment in favorof the defendants and STRIKE this matterfrom the active
docket of the Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: February

là, 2021.
JO
TON BAILEY
UNITED STATES DISTRICT JUDGE

12