CIVIL ACTION NO. 88-2716, C/W 88-2747; SECTION:E/1
July 30, 2003
RULING ON PETITION FOR CONTEMPT
RULING ON PETITION FOR CONTEMPT
Defendant UAW Local Union No. 1805 (hereinafter "Union") filed this Petition asking that the court find plaintiff, The Folger Coffee Company ("Folger"), in contempt of this court's order entered on January 19, 1989, upholding an arbitration award in favor of the Union and against Folger in AAA# 71 300 0234 87. Folger opposes the Petition. The matter came on for a hearing on the record on July 29, 2003. For the reasons that follow, the Union's Petition is dismissed.
FACTS AND PROCEDURAL BACKGROUND
Folger first attempted to sub-contract out its grounds maintenance work in 1986. The Union filed a grievance at that time. The labor dispute was submitted to arbitration pursuant to the "CONTRACT BETWEEN THE FOLGER COFFEE COMPANY U.A.W. LOCAL 1805" ("Agreement") dated 4/17/84 — 4/16/87. Stipulated Joint Exhibit ("J.E.") 1. On April 12, 1988, Samuel J. Nicholas, Jr., Chairman of the Board of Arbitration, issued an opinion upholding the Union grievance and requiring that Folger continue to use union labor for the grounds maintenance work. J.E. 2. The arbitration opinion was upheld by the district court's Order and Reasons, and a Judgment in favor of the Union was entered on Jan. 19, 1989. J.E. 3 4. The Judgment was affirmed on appeal to the Fifth Circuit. J.E. 5.
In December, 2002, after the Union employee who had been performing the grounds maintenance work retired, Folger again notified the Union that it intended to sub-contract out the grounds maintenance work and the Union again filed a grievance, J.E. 7, pursuant to the current Agreement between the parties, dated 5/30/2002 — 5/29/2005. J.E. 6. The Union then filed this Petition for Contempt claiming that Folger is in contempt of this court's prior order and judgment upholding the arbitration decision in favor of the Union. The Union argues that there are no new facts and the Agreement language now in effect "remains the same" as that in the prior Agreements, therefore Folger's sub-contracting of the grounds maintenance is in violation of the court order and in contempt of court. The Union also argues that because of the prior order and judgment of this court, it is collaterally estopped from proceeding through the grievance procedure again.
Folger argues that the 1988 arbitration award did not create a "position in perpetuity" for bargaining unit members to perform maintenance work, and did not provide for prospective application of the award. Folger further argues that pursuant to the Agreement in effect at that time, as well as the current Agreement, arbitration awards can not extend beyond the termination date of the Agreement in place at the time of the award.
I. CONTEMPT OF COURT
The parties do not dispute that this court has the authority to enter an order of contempt. To prove contempt, the Union must prove by clear and convincing evidence: 1) that a valid court order was in effect; 2) that the court order clearly required certain conduct of the respondent; and 3) that the respondent failed to comply with the court's order.Piggly Wiggly Clarksville v. Mrs. Baird's Bakeries, 177 F.3d 380, 382 (5th Cir. 1999) ("`A party commits contempt when he violates a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court's order.'" (citations omitted)) .
1) Was a valid court order in effect?
There is no doubt that the court order was valid and enforceable at the time it was issued. However, the Agreement between Folger and the Union at the time of the arbitration award, as well as the current Agreement, provides as follows:
The Board of Arbitration shall have no power or authority . . . to grant any remedy or monetary award for any period prior to the effective date of this Agreement . . . or for any period extending beyond the termination date of this Agreement.
J.E. 1 6, Art. VI, Sec. 3. The contract in effect at the time of the grievance expired 4/16/87. Even assuming that the arbitration award applied to the subsequent contract period (the contract period in effect at the time the arbitration award in favor of the Union was issued), that contract expired in 1990.
The Union argued at the hearing that enforcing the contractual time limitation on the application of an arbitration award would effectively eviscerate any arbitration award. That, however, is not an issue for this court to decide. Obviously, the Union (as well as Folger) bargained for the terms of the contract, and cannot not now eschew those terms. The Union next argues that Folger abided by the award for many years beyond the expiration of the applicable contractual limitation period, and that it should not be able to avail itself of the contractual limitation at this late date. That Folger decided to voluntarily abide by the award for several years after it was no longer contractually obligated to do so is not a waiver of its right to claim the benefits of that bargained for contractual provision.
2) Did the court order clearly require certain conduct of the respondent?
On review of an arbitration award in a labor dispute, the district court and the appellate court are prohibited from reviewing the merits of the award. Folger Coffee v. Intern. Union, UAW, Local 1805, C.A. No. 89-3082, 4839-40 (5th Cir. 7/11/1990) (citations omitted). A reviewing court is limited to a determination of whether the award "draws its essence from the collective bargaining agreement."Id. In affirming the district court's judgment, the Fifth Circuit expressly held simply that the award met the "essence" standard.Id. at 4842.
The Union grievance in 1986 requested that the job of yard maintenance "be given back to the bargaining unit." Nicholas' Opinion at p. 13 (J.E. 2) stated as follows:
The fact that the instant case concerns only one employee and that Union brought the grievance on to arbitration rather than the subject worker himself, and who was not displaced by Management's action, does not make the issue any less volatile; or for that matter a lesser concern relative to the principles seen herein and the parties' rights under the Agreement But in the case that we have here, where Company and Union has been saddled to a longstanding practice of allowing grounds work to be maintained and performed by one or more members of the bargaining unit, and in accordance with duly recognized work classifications and positions therein, it takes more than a showing of good faith to nullify Union's right as grieved in the instant complaint. This is not to say,
however, that Company may never alter its course relative to the matter of subcontracting; but if such is to be done it must pass the aforementioned tests and give the proper notice to Union as provided in Article XI supra. . . . .AWARD
The grievance is sustained. The relief requested shall be granted.
In its prior order and judgment, the court did not order Folger to employ union labor and forgo sub-contracting the grounds maintenance work in perpetuity. The court's order and judgment did no more than confirm the terms of the arbitrator's opinion and award upholding the Union's grievance filed in 1986. It did not alter or extend the terms of the award, nor did it take on a life of its own superceding the contractual limit on the arbitration award, nor did it alter the terms of the contract on which that arbitration award was based.
3) Did respondent fail to comply with the court order?
The Union cannot show that Folger failed to comply with the terms of the court order. Folger complied with the arbitration award in favor of the Union for 12 years beyond the "sunset" provision for the arbitration award in the Agreement between Folger and the Union. When that union employee retired recently, Folger gave proper notice to the Union, as provided for in the arbitration award and the Agreement, that it intended to "alter its course relative to the matter of sub-contracting." The remaining issue is whether its move to sub-contract the grounds maintenance at this point in time can "pass the aforementioned tests" cited by Arbitrator Nichols in his opinion and award. That is an issue for the arbitrator. The court concludes that Folger has abided by both the letter and the spirit of the prior arbitration award.
The Union next argues that the award is "inherently prospective", and should be given prospective application by this court. The Union cites two cases as support: Baldwin Piano Organ Co. v. Internat'l Chemical Workers Union, 564 F. Supp. 1262 (N.D. Miss. 1983) andBoston Shipping Assoc. Inc. v. Internat'l's Longshoremen's Ass'n, 659 F.2d 1 (1st Cir. 1981). Neither case is applicable. In Boston Shipping, the arbitration award defined the geographic boundaries of a loading berth in a terminal facility. As here, the contract term expired before the arbitration award was decided. The Union argued only that because the contract term had expired, it need not comply with the award. The BSA argued that the award should have a "mandatory precedential effect" as included in the district court's order granting BSA's motion for summary judgment. Finding that the arbitrator's award contained no such provision, the First Circuit held that "[w]hen enforcement requires an interpretation of the arbitrator's award, the proper course is to remand to the arbitrator for clarification. . . ." Id. at 2-3. It further reasoned that "because the subject of the award was not a discrete historical incident but rather the definition of a physical location", the award was "inherently prospective as to the dimensions of Berth 13 existing at the time of the award, " and that a new contract term standing alone was not a sufficient justification to void the award. Id. at 4.
In Baldwin Piano, the district court relied on Boston Shipping's reference an "inherently prospective" award, and extended that concept to include prior arbitrators' decisions interpreting the contractual term "only for just cause" in reference to the company's discipline of various employees for various alleged infractions. 564 F. Supp. at 1271. This district court declines the Union's invitation to further extend the concept of an "inherently prospective" arbitration award to this case.
As additional support for its argument for prospective enforcement, the Union invokes the burden-shifting analysis set forth by the Fifth Circuit in Oil, Chemical Atomic Workers v. Ethyl Corp., 644 F.2d 1044, 1050-52 (5th Cir. 1981). In that case, the arbitration award itself expressly forbade "like violations", seeid. at 1051, and the only issue before the court was whether the new alleged violation was a "like violation". Id. at 1047. The arbitration award at issue does not address "like violations".
II. COLLATERAL ESTOPPEL
In essence, the Union argues that it is collaterally estopped from refiling and processing a grievance in this instance because the issue of Folger's right to sub-contract the grounds maintenance work vis-a-vis the Union's right to have that work performed by bargaining unit labor has been litigated, and a judgment rendered in favor of the Union. This is inaccurate.
The judgment of this court, and ultimately, of the Fifth Circuit, merely upheld the arbitration award. "The issues submitted to an arbitrator, or the grievance itself when no submission agreement is used, define the limits of the arbitration award." Oil, Chemical Atomic Workers International Union, Local 4-367 v. Rohm Haas Texas, Inc., 677 F.2d 492, 493 (5th Cir. 1982) (citation omitted) . The issue before the court in Rohm Haas Texas was whether the union was entitled to prospective enforcement of an arbitration award so as to apply that award to other future similar occurrences. Id. The Fifth Circuit held that absent a specific arbitration award of prospective enforcement, the issue of whether an arbitration award should be given prospective enforcement is "a proper subject for arbitration." Id. at 494, (citation omitted).
The issue submitted for arbitration in this case, in 1986, was as follows:
Did the Company violate the Contract, Article II, Recognition; Article X, Seniority; Article XI, Managements Rights, by sub-contracting yard work which had previously been performed within the bargaining unit? If so, what shall the remedy be?
While the issue of prospective enforcement was not before the arbitrator, the arbitration award itself is not exactly silent on the issue. The language of the award specifically provides that the Company may at some future time, with proper notice to the Union and if the move passes the applicable tests, "alter its course on the matter of sub-contracting", the very issue on which the Union now demands prospective enforcement. The issue is for the arbitrator to decide pursuant to the terms of the current Agreement.
IT IS ORDERED that the UAW Local 1805's Petition for Contempt be and is hereby DISMISSED with prejudice.