The opinion of the court was delivered by: Terrence F. McVerry United States District Judge
Plaintiff, United Steel, Paper & Forestry, Rubber, Manufacturing, Energy Allied Industrial & Service Workers International Union (Union), brought this action under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (LMRA), to enforce an arbitration award entered on January 19, 2006. The case arose out of Union member Gregory McCann's discharge by his employer, Defendant Neville Chemical Company (Neville), following two incidents at the workplace. The Union asserted that Neville was refusing to comply with the arbitrator's decision that McCann be reinstated to his former position, from which he was discharged on March 23, 2005.
On May 29, 2007, an order was entered (Docket No. 42), denying Defendant's motion for summary judgment, granting Plaintiff's motion for summary judgment and adopting a Report and Recommendation dated March 28, 2007 (Docket No. 35). Presently before the Court are Plaintiff's request for damages (Docket Nos. 47-49), Defendant's response thereto (Docket No. 51), Plaintiff's reply brief (Docket No. 53) and Defendant's sur-reply brief (Docket No. 55). Plaintiff requests damages in the following amounts: backpay and other make-whole remedies (including unemployment insurance for a period during which employees were locked out of the facility and the company's cost of hourly insurance benefits) from March 23, 2005 until December 4, 2006 (the date McCann returned to work) in the amount of $80,007.90, prejudgment interest from the date of the arbitration awards to the eventual date of payment at the rate of 4.95%, attorney's fees in the amount of $22,500.00 and costs in the amount of $462.24. Defendant does not dispute the amounts submitted by Plaintiff, although it does contend that some of the requested amounts are not specific enough and are not supported by appropriate documentation. In addition, it argues that McCann is not entitled to receive any damages for the following reasons.
Defendant argues that: 1) McCann is entitled to no damages because he could not be employed from March 23, 2005 until December 4, 2006 as a result of a permanent injury which rendered him disabled; 2) McCann failed to mitigate his damages by refusing to accept Neville's offers to "bump" him into a Forklift Operator position; 3) the claimed damages are too speculative; 4) McCann cannot receive unemployment compensation because he applied for it and his claim was denied and further litigation over this issue would violate the Rooker-Feldman doctrine; 5) he cannot receive Neville's cost of hourly insurance benefits, a cost he never incurred, because this figure also includes payroll taxes, workers' compensation payments, pension benefits and other costs; and 6) attorney's fees are inappropriate because Neville's conduct was reasonable, counsel guesses at the number of hours spent and did not submit an affidavit of hourly rates customarily charged in the relevant market, and counsel -- who has only been in practice for two years -- proffers the rates earned by 20-year practitioners.
Defendant argues that it should not be required to pay damages for a period during which McCann was disabled from performing the requirements of his former position (Senior Packager), specifically repetitive lifting of 50-pound bags of resin. Defendant notes that McCann's physicians concluded in 2005 that he could not perform this duty and that McCann stated at his workers' compensation hearing on August 25, 2005 that he believed he could not do so. (McDowell Dep. at 14, 17-18;*fn1 Kandabarow Dep. at 12-13;*fn2 Docket No. 20 Tab G (Proposed Findings Third, Eleventh).)
"As a general rule, [backpay] will not be allowed ... during any periods of disability." Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1101 (3d Cir. 1995) (citation omitted). Thus, Defendant contends that McCann is precluded from receiving backpay because of his disability.
This argument was presented by Defendant in its motion for summary judgment. Specifically, Defendant argued that it could not reinstate McCann to his former position after the arbitration award was issued because he was unable to perform the physical requirements of the job, namely the repetitive lifting of 50-pound bags. The Court concluded that, by failing to raise this issue during the arbitration or even in a motion to vacate the arbitration, Defendant could not raise it in this proceeding. "In order to preserve the efficiency and integrity of the arbitral process, the Company ought to be, and therefore is precluded from relief from the enforcement of the arbitrator's order on the ground that [the employee's] reinstatement [was] not possible."
United Steel Workers of America, AFL-CIO, CLC v. Dayton-Walther Corp., Muncie Div., 657 F. Supp. 50, 55 (S.D. Ind. 1987). This conclusion also applies to the damages phase of the litigation. Therefore, this argument will not be considered.
Defendant argues that McCann failed to mitigate his damages by refusing to accept Neville's offers to "bump" him into a Forklift Operator position. Plaintiff responds that the issue of "bumping" McCann into a junior Forklift Operator position is irrelevant to this case.
Neville offered the Union and McCann the opportunity for him to "bump" into a junior Forklift Operator position on two occasions. First, in 2003, his position as a Sweeper Operator was abolished and he became a Packager. On August 7, 2003, he filed a grievance to "bump" into other positions, which was denied. On April 6, 2004, Neville offered to resolve this grievance without proceeding to arbitration by allowing him to "bump" into a junior Forklift Operator position, an offer to which McCann and the Union did not respond. (Pesce Decl. ¶¶ 3-5 & Exs. 1, 2.)*fn3
These events predate McCann's injury (which occurred on May 19, 2004), the incidents that led to his discharge (which occurred on February 15 and February 20, 2005), the grievances resulting from the discharge (filed on March 15, 2005), the arbitration hearings held on the grievances (on October 18, 2005 and November 9, 2005) and the arbitration awards (January 19, 2006) that the Union brought this case to enforce. In addition, this issue was the subject of a separate grievance and is not being raised in this case. McCann's non-response to an offer to "bump" into the junior Forklift Operator position in 2004 does not demonstrate his failure to mitigate damages in this case.
The second time the issue of allowing McCann to "bump" into the junior Forklift Operator position was raised was during settlement discussions that occurred after this case was filed. Neville states that, on September 22, 2006, it again made the offer to McCann and the Union and that it was never accepted or rejected. (Pesce Decl. ¶ 14.)*fn4
This argument is rejected for two reasons. First, it is not clear that Defendant can introduce the fact that McCann and the Union did not respond to its offer into evidence. Federal Rule of Evidence 408 provides that:
(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or ...