Opinion
Employees who were not hired by purchaser of warehouse facilities from former employer brought action alleging that union breached its duty of fair representation in not protecting their seniority and that employer breached collective bargaining agreement. After arbitration proceeding in which arbitrator's opinion was issued in which all grievances were denied, employees filed supplemental complaint in which they alleged that union had undermined arbitration process so as to deny them fair hearing. Union employer brought motion seeking to have court disqualify employees' counsel because firm in which arbitrator was partner merged with firm which had been representing employees since inception of lawsuit. The United States District Court for the Western District of Michigan, 583 F.Supp. 1471, denied motion. Subsequently, union sought to depose arbitrator. Plaintiffs and arbitrator filed motions to quash subpoena, and union sought reconsideration of prior opinion. The District Court, Benjamin F. Gibson, J., held that deposition of arbitrator would not be compelled.
Motion to quash granted, motion for reconsideration denied.
Dennis C. Kolenda, Varnum, Riddering, Wierengo & Christenson, Grand Rapids, Mich., for plaintiffs.
H. Rhett Pinsky, Pinsky, Smith & Soet, Grand Rapids, Mich., for Local 406.
Gordon J. Quist, Miller, Johnson, Snell & Cummiskey, Grand Rapids, Mich., for Kroger Co.
MEMORANDUM AND ORDER
BENJAMIN F. GIBSON, District Judge.
By its Opinion and Order of April 12, 1984, this Court denied the defendants' motions to disqualify plaintiffs' counsel. The motions were based on the fact that the defendants planned to call Arbitrator Robert Howlett as a witness and, after a merger between two law firms, Howlett is now of counsel to the firm representing the plaintiffs. The denial of the motions was based on the Court's ruling that arbitrators are not competent to testify at trial regarding, inter alia, the thought processes that went into their decisions. Wood v. General Teamsters Union, Lo. 406, 583 F.Supp. 1471, (W.D.Mich.1984).
At the pretrial held on May 25, 1984 in Hight v. General Teamsters Union, Lo. 406, 583 F.Supp. 1471, a companion case to Wood, the two cases were consolidated.
On May 30, 1984, Arbitrator Howlett was served by defendant Kroger with a subpoena ordering him to appear at a deposition. The plaintiffs and Arbitrator Howlett filed motions to quash the subpoena and, on June 15, 1984, the Court granted the motions and issued a protective order. This Opinion is for the purpose of explaining the Court's rationale for granting the motions.
The defendants state that the issue of Howlett's competency to testify will be appealed if the plaintiffs prevail in this matter, and put forth two reasons for deposing Howlett. First, since Howlett is 78 years old, the defendants fear he may be unavailable to testify at a second trial should the Court of Appeals reverse on this issue. Deposing Howlett would perpetuate his testimony in case he is unavailable. Second, the defendants cite the plaintiffs' argument, first raised in connection with the motion to disqualify counsel, that even if Howlett is a competent witness, the defendants' need for his testimony would be outweighed by the hardship to the plaintiffs of having to replace counsel at such a late stage in the litigation. See Code of Professional Responsibility, Disciplinary Rule 5-101(B)(4). The defendants argue that having Howlett's testimony available in deposition form will facilitate the Court's balancing of these interests.
The defendant union already has filed a motion asking the Court to reconsider its April 12, 1984 decision in light of Hellums v. Quaker Oats Co., 115 L.R.R.M. 3959 (W.D.Mo. March 29, 1984). For the reasons discussed more fully below, the Court does not find Hellums persuasive and reaffirms its reasoning in the April 12 Opinion. The motion to reconsider therefore is denied.
The defendants also rely on Hellums v. Quaker Oats Co., 115 L.R.R.M. 3595 (W.D.Mo. March 29, 1984), in support of their argument that they should be permitted to depose Howlett. There, in a case which also was brought pursuant to § 301 of the National Labor Relations Act, 29 U.S.C. § 185, the court allowed an arbitrator to testify as to whether he had considered certain evidence in reaching his decision. For two reasons, the Court finds Hellums distinguishable and therefore unpersuasive.
The Court also found significant the fact that the Hellums opinion itself notes that there is a good deal of contrary caselaw. 115 L.R.R.M. at 3600.
Most important, the arbitrator in Hellums apparently testified only as to whether he had considered certain evidence. In the instant case, the defendants seek to examine Howlett regarding, inter alia, " the reasons for his decision." See Wood, at 1473 n. 3. This clearly calls for much more far-reaching examination than in Hellums.
Second, in the instant case Arbitrator Howlett himself opposes the taking of the deposition. The court in Hellums noted that this fact raises " more serious questions" as to whether examination should be allowed. 115 L.R.R.M. at 3600
The Court also is mindful of the fact that, if Howlett's deposition is taken, it may lead to the disqualification of plaintiffs' counsel. The Court shall not place in motion this set of events based on a double contingency-first, of the earlier decision being reversed and second, of Howlett not being available to testify at a retrial.
Because allowing the deposition of Howlett would conflict with the policy explained in the April 12 Opinion, the Court issued the Protective Order on June 15, 1984 and shall not let the deposition of Arbitrator Howlett be taken under any circumstances. In addition, for the reasons discussed above, the union's motion to reconsider the April 12, 1984 Opinion and Order is denied.
IT IS SO ORDERED.