Opinion
Civil Action No. 03-10421-GAO.
September 30, 2004
MEMORANDUM AND ORDER
The plaintiff, Johnson Controls, Inc., brought this action seeking to vacate an arbitration award ordering the reinstatement of a member of the defendant union, International Union of Operating Engineers, Local 877. The union cross-claimed for affirmation of the arbitration award. The parties have cross-moved for judgment on the pleadings. For the reasons set forth below, I conclude that Johnson Controls's motion for judgment on the pleadings ought to be denied, and the union's cross-motion ought to be granted.
I. Background
Johnson Controls has a contract with the owner of the Copley Place mall and office building in Boston pursuant to which Johnson Controls provides certain maintenance services at the site. Johnson Controls and the union are parties to a collective bargaining agreement ("CBA") governing the terms and conditions of employment of union members. Johnson Controls employed James Carr, a union member, as an operating engineer, and his duties involved maintenance of the building's heating and air conditioning systems. The CBA, § 18.5(e), provides that Johnson Controls may discipline or discharge employees "for just cause."
In July 2002, the mall's building manager notified Johnson Controls's that Carr was believed to have engaged in "peeping," that is, it was alleged that Carr had been using binoculars to look into nearby apartment buildings from the roof of the mall while at work. Carr was notified of the allegations and placed on leave with pay pending an investigation. Shortly after placing him on leave, Johnson Controls terminated Carr, and the union filed a grievance with respect to the discharge under the CBA.
The grievance was referred to arbitration, and both parties appeared and were represented by counsel at the arbitration hearing. The arbitrator issued a written Arbitration Opinion and Award, in which she found that there was insufficient evidence to sustain the allegations made against Carr. Consequently, the arbitrator concluded that Carr had not been discharged for just cause, ordered him reinstated, and awarded him back pay and contractual entitlements.
II. Discussion
Arbitration is the product of a contractual obligation between the parties. "Where a collective bargaining agreement commits the parties to arbitration, the arbitrator's interpretation of the agreement is the one they have `bargained for' and must abide by." Keebler Co. v. Truck Drivers, Local 170, 247 F.3d 8, 10 (1st Cir. 2001) (citation omitted). Thus, "[j]udicial review of an arbitrator's decision is extremely narrow and deferential."Poland Spring Corp. v. United Food and Commercial Workers Int'l Union, Local 1445, 314 F.3d 29, 33 (1st Cir. 2002). "Unless the arbitral decision does not `dra[w] its essence from the collective bargaining agreement,' a court is bound to enforce the award and is not entitled to review the merits of the contract dispute." W.R. Grace Co. v. Local Union 759, Int'l Union of the United Rubber, Cork, Linoleum and Plastic Workers, 461 U.S. 757, 764 (1983) (citation omitted) (alteration in original). Under these standards, an arbitration award may be vacated if the arbitrator has acted outside the scope of her contractual authority or if the award violates public policy.See Keebler, 247 F.3d at 10; Boston Med. Ctr. v. Serv. Employees Int'l Union, Local 285, 260 F.3d 16, 23 (1st Cir. 2001).
In this Court, Johnson Controls argues that the arbitration award should be vacated because the arbitrator exceeded the scope of her authority by committing various procedural errors. For example, it argues that there was sufficient evidence to sustain the peeping charge and that the arbitrator erred because she (1) did not give proper consideration to Johnson Controls's hearsay evidence; (2) declined to draw a negative inference from Carr's silence; (3) held Johnson Controls to an improper standard of proof, i.e., beyond a reasonable doubt; and (4) failed to shift the burden to Carr to disprove Johnson Controls's evidence. Johnson Controls also argues that the arbitration award must be vacated because the order of reinstatement violates the public policy against voyeurism in the workplace. Its arguments are unconvincing.
In reviewing the arbitrator's decision, it is not my role to determine whether the arbitrator reached the correct decision on the merits but, rather, to determine whether the arbitrator properly construed and applied the terms of the contract.Keebler, 247 F.3d at 10 ("The job for a reviewing court `ordinarily is limited to determining whether the arbitrator's construction of the collective bargaining agreement is to any extent plausible.' Even if a court strongly disagrees with the arbitrator's decision, that is not enough to vacate the arbitral award `as long as the arbitrator is even arguably construing or applying the contract.'") (citations omitted). An arbitrator's decisions concerning procedural issues, such as the standard or burden of proof, will not be reversed unless the procedures are inconsistent with the terms of the contract or are fundamentally unfair. Id. at 11 ("Where an arbitration agreement is silent, court customs do not stand as binding default rules. Rather, the arbitrator is free to set his own rules of procedure so long as he stays within the bounds of fundamental fairness.") (citations omitted).
Here, the arbitration agreement is silent on the procedural issues that Johnson Controls complains of. The agreement does not address what quantum of proof is needed to show that a termination was for just cause, who bears the burden of proof, if or when the burden of proof shifts to an accused, whether a negative inference may or should be drawn from the accused's silence, or what weight may be accorded to hearsay evidence. In the absence of any controlling principles established under the parties' agreement, it was within the scope of the arbitrator's authority to determine these issues.
The procedures the arbitrator followed were not fundamentally unfair. In Keebler, the First Circuit considered whether the arbitrator erred in holding an employer to a heightened standard of proof — clear and convincing evidence. The court concluded: "Applying a heightened standard of proof to terminations resulting from potentially criminal conduct, while judicially unorthodox, is not fundamentally unfair. Thus, given the agreement's silence on the issue, the choice of standard was within the arbitrator's discretion." Id. at 11-12. Here, each of the procedural decisions that Johnson Controls identifies was within the arbitrator's discretion. Whether taken individually or collectively, the procedures followed by the arbitrator were not fundamentally unfair. Accordingly, there is no basis for reversing the arbitrator's conclusion that "[t]here simply is not enough evidence to support the Employer's claim that just cause exists in this case to find that the Grievant did in fact commit the alleged offense." Arbitration Op. and Award, Feb. 10, 2003.
Johnson Controls's second argument — that the reinstatement award violates the public policy against voyeurism in the work place — also is unconvincing. The Supreme Court has stated, "A court's refusal to enforce an arbitrator's award under a collective-bargaining agreement because it is contrary to public policy is a specific application of the more general doctrine, rooted in the common law, that a court may refuse to enforce contracts that violate law or public policy." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 42 (1987). "However, the public policy exception is limited to instances `where the contract as interpreted [by the arbitrator] 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.'" Boston Med. Ctr., 260 F.3d at 23 (quotingMisco, 484 U.S. at 43) (alteration in original). Further, the relevant question is not whether Carr's conduct violated a public policy against voyeurism in the workplace, but whether the order to reinstate him violates public policy. Id.; see also Eastern Associated Coal Corp. v. United Mine Workers, Dist. 17, 531 U.S. 57, 62-63 (2000) ("the question to be answered is not whether [the employee's] drug use itself violates public policy, but whether the agreement to reinstate him does so").
Johnson Controls's public policy argument depends upon a predicate which is lacking. It cannot violate a public policy against voyeurism in the workplace to order reinstated an employee who has not been found to have engaged in such conduct. It is not necessary to decide whether Carr's reinstatement would violate public policy if he had been found to have engaged in peeping. Nevertheless, it is worth noting that Johnson Controls has offered little (by way of reference to legal principle or precedent) to compel such a ruling.
III. Conclusion
Accordingly, Johnson Controls's motion for judgment on the pleadings (no. 8) is denied, and the union's cross-motion (no. 10) is granted. Judgment shall enter confirming the arbitrator's award.
It is SO ORDERED.