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BALARK v. ETHICON

December 27, 1983

CHESTER BALARK, PLAINTIFF,
v.
ETHICON, INC., DEFENDANT.



The opinion of the court was delivered by: Bua, District Judge.

MEMORANDUM ORDER

Plaintiff brought the instant lawsuit seeking to have the court confirm and enter judgment upon an arbitration award. In addition, plaintiff seeks to obtain damages under theories of retaliatory discharge and intentional infliction of emotional distress. Jurisdiction over the instant matter is based on diversity of citizenship. 28 U.S.C. § 1332. Before the Court is defendant's Motion to Dismiss. For the reasons stated herein, defendant's Motion to Dismiss is granted.

On May 11, 1982, because of unexcused absences, plaintiff was discharged from his employment with defendant. Plaintiff grieved the discharge under the collective bargaining agreement and on November 24, 1982 received an arbitrator's decision directing that plaintiff be reinstated upon a finding of medical fitness for work by an orthopedic physician mutually agreeable to the parties. On January 24, 1983, plaintiff was deemed to be medically fit and, on the following day, was reinstated to the employment roll. Immediately thereafter, however, he was discharged under a different section of the collective bargaining agreement. In connection with this discharge he was told, by letter dated February 7, 1983, that he had violated defendant's standards of behavior by exhibiting "the most reprehensible of employee conduct by deliberately and intentionally creating a significant work place disturbance and by making false and malicious statements against Supervisor Richard Owens which culminated in (plaintiff's) . . . filing against Supervisor Owens totally unwarranted false criminal assault charges which in turn were not sustained in trial proceedings."

On April 21, 1983 the instant lawsuit was filed in state court. The case was subsequently removed to this Court.

Plaintiff's complaint is in three counts. In Count I, plaintiff asks the Court to confirm and enter judgment on the arbitration award. Count II is based on a theory of retaliatory discharge. Finally, in Count III, plaintiff attempts to assert a claim based on intentional infliction of emotional distress. The Court will address each count separately as it relates to the Motion to Dismiss.

Count I

In Count I, plaintiff asks this Court to confirm and enter judgment on the arbitration award, thus permitting enforcement of the award as any other judgment or decree. Ill.Rev.Stat. ch. 10 ¶¶ 111, 114 (1981).

Plaintiff's grievance dealt solely with the issue of whether he was properly terminated under Article III, Section D2(a) of the applicable collective bargaining agreement, which provides:

    An employee shall be deemed to have quit his/her job
  voluntarily if (a) he/she is absent from work for three
  consecutive days without good cause.

Plaintiff's absence from work on May 7, 8 and 10 allegedly caused his termination. Plaintiff argued to the arbitrator that his absence from work was not without good cause as two physicians had diagnosed him as being unable to work during the period of his absence, despite the fact that various company physicians had deemed him fit to return to work on those dates and that X-rays revealed no abnormalities or other objective findings of disability.

The arbitrator ruled that plaintiff's absence was not without good cause and ordered that plaintiff could not be terminated based on such absence. Upon a finding of medical fitness by a physician agreeable to both parties, plaintiff was to be reinstated to his position. Plaintiff was in fact reinstated, only to be terminated immediately thereafter because of his previously having violated defendant's standards of behavior.

Plaintiff's second termination was for grounds wholly independent of those contained in the grievance. Confirmation and enforcement of the arbitrator's decision would therefore be ineffective as to those grounds which form the basis of plaintiff's most recent termination.

Defendant fully complied with the arbitrator's decision. Indeed, in his verified complaint, plaintiff admits that he was reinstated by defendant. In essence, plaintiff seeks relief on issues never submitted to arbitration. It is well settled that a court's function in confirming an arbitration award is severely limited. Amiciza Societa Navegazione v. Chilean Nitrate & Iodine Sales Corp., 274 F.2d 805 (2nd Cir. 1960). The court's power of enforcement is restricted to those matters dealt with in the arbitrator's award. As plaintiff here seeks to have the Court enter judgment on matters outside of the arbitrator's decision, Count I must be dismissed. Such matters must first be presented to the arbitrator as provided in the collective bargaining agreement.*fn1 Only upon the arbitrator's decision as to these matters, here concerning plaintiff's discharge for misconduct under Article II, Section E of the collective bargaining agreement, may the Court confirm the award and enter judgment on those issues.

  The Court's decision in this regard envelopes plaintiff's
arguments regarding both the reinstatement and back-pay issues,
the latter of which is not mentioned in either the arbitrator's
decision or the plaintiff's complaint but which arises for the
first time in plaintiff's response to defendant's motion to
dismiss. Even were the back-pay issue properly raised in the
plaintiff's complaint, it is apparent that this remedy was not
provided for by the arbitrator and therefore cannot be implied
by this Court. If a back-pay award is desired, it may only be
provided by the arbitrator and cannot be imposed by ...

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