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LOCAL UNION 1160, MILLMEN v. BUSY BEAVER BLDG. CTR

August 29, 1985

LOCAL UNION 1160, MILLMEN, affiliated with the UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO, Plaintiff
v.
BUSY BEAVER BUILDING CENTERS, INC., Defendant



The opinion of the court was delivered by: WEBER

 Plaintiff's Motion for Summary Judgment is DENIED.

 Defendant's Motion for Summary Judgment is GRANTED, and the Arbitrator's decision is AFFIRMED.

 WEBER, D.J.

 Plaintiff filed this suit on behalf of one of its members, Frank Calcagno, defendant's former employee. Calcagno was suspended from employment on July 11, 1983. The suspension ultimately evolved into a dismissal. The matter proceeded to arbitration according to the party's labor agreement and the arbitrator upheld the dismissal. There is no dispute about the events at the heart of this matter, and both sides properly have moved for summary judgment.

 FACTS

 Calcagno had worked at defendant's New Kensington Distribution Center for five years prior to his suspension on July 11, 1983. That day, Gary Swart, a Busy Beaver security employee, observed him delivering company merchandise which had not been paid for to another man. Later that day, Swart saw Calcagno collect payment for the materials at a local bar called the Plug & Piston. Swart then asked Calcagno to step outside where he was informed of the company's action and accused of theft.

 Based on this information, the company suspended Calcagno. At defendant's prompting, criminal charges were twice filed in the Court of Common Pleas. The first set was dismissed; non-jury trial on the second resulted in Calcagno's acquittal. At the same time Calcagno filed a grievance against the company regarding his suspension. Though he never received written notice of his discharge, all parties considered the suspension as such and do not contest its ultimate effect.

 As provided by the collective bargaining agreement, the propriety of Calcagno's dismissal was decided by an arbitrator after a hearing. Citing the contract provisions establishing theft as a basis for dismissal, *fn1" the arbitrator upheld Busy Beaver's actions. The arbitrator's decision unquestionably hinged on testimony from defendant's security man about prior occasions when Calcagno had been overheard discussing the removal of merchandise from Busy Beaver's stock. See Complaint, Exhibit A at 8. The Union knew nothing about this earlier surveillance until Swart testified at the hearing. The issue here is whether the arbitrator properly considered this and other evidence.

 SCOPE OF REVIEW

 In deference to a system of prompt, predictable, local settlement of day-to-day labor disputes, our scope of review is, as described by the Court of Appeals for the Third Circuit, "narrow in the extreme." Amalgamated Meat Cutters v. Cross Brothers Meat Packers, Inc. 518 F.2d 1113, 1121 (3d Cir. 1975). According to 9 U.S.C. ยง 10, we may vacate an arbitrator's award only where there is fraud, corruption, partiality, or prejudicial misbehavior by the arbitrator. The Court of Appeals construes this standard as follows:

 
Accordingly, we hold that a labor arbitrator's award does "draw its essence from the collective bargaining agreement" if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its ...

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