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Bemis Company Inc. v. Graphic Communication Union Local Number 735-S

September 15, 2008


The opinion of the court was delivered by: Judge James M. Munley United States District Court


Before the court for disposition are cross-motions for summary judgment in this labor relations case. The motions have been fully briefed and argument. The matter is thus ripe for disposition.


The following background facts are largely undisputed. Plaintiff Bemis Company Inc. ("Bemis" or "plaintiff") is a business with a Polyethylene Packaging facility located in West Hazleton, Pennsylvania. Plaintiff has entered into a collective bargaining agreement ("CBA") with Defendant Graphic Communication Union Local Number 735-S, ("Union" or "defendant") covering various employees including James Elswick, who Bemis employed for approximately twenty years. Bemis had some issues with Elswick regarding their attendance policy.

On May 17, 2006, the union and Bemis entered into a Last Chance Agreement ("LCA") regarding Elswick. The LCA provided that Elswick had accumulated sufficient warnings to be discharged for violation of the attendance policy. Instead of terminating Elswick, the employer offered the LCA, which provided that Elswick could remain employed as long as for a twelve-month period he was not late, absent or leave work early. Several exceptions, including hospitalization, were included in the LCA.

On August 3, 2006, Elswick was on his way to work when he stopped to purchase gasoline for his vehicle. He tripped over the fueling hose and injured his back. He called into work to report his injury and went to see a doctor. The doctor referred him to the Hazleton Imaging Center for additional diagnostic testing - - a CT scan to determine the extent of his injury. Elswick was placed under restrictions that prohibiting him from lifting and/or pushing.

He contacted Bemis to obtain forms in order to apply for Family and Medical Leave Act leave. He was told that he would not be eligible for such leave. Then on August 10, 2006, Elswick was notified that he was terminated for violating the LCA. The defendant union filed a grievance with regard to the termination. The grievance asserted that the termination was wrongful and based upon Elswick's ongoing medical condition and in violation of the CBA. It requested that Elswick be reinstated with full back pay. On September 8, 2006, the Bemis human relations manager denied the grievance. The CBA provides that such disputes then be submitted to arbitrators from the American Arbitration Association ("AAA").

The matter then proceeded to arbitration before an AAA arbitrator selected by the parties, Patrick McFadden. On May 25, 2007, the arbitrator issued an award sustaining the grievance in full and ordering Elswick's reinstatement. The arbitrator found that Elswick's treatment at the Hazleton Imaging Center was "hospitalization" as provided in the LCA, and he should not have been terminated for missing work on August 3, 2006.

Bemis appeals this decision to this court. The union counterclaims for enforcement of the arbitration award and attorney's fees and costs. The parties have filed cross-motions for summary judgment bringing the case to its present posture.


The parties agree that we have federal question jurisdiction under 28 U.S.C. § 1331 and pursuant to 29 U.S.C. § 185(c), which provides:

For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.

Standard of review

Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the ...

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