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NATIONAL WRECKING CO. v. INTERNATIONAL BHD. OF TEA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


April 20, 1992

NATIONAL WRECKING COMPANY, Plaintiff/Counter-defendant,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL NO. 731, Defendant/Counter-plaintiff.

The opinion of the court was delivered by: MILTON I. SHADUR

MEMORANDUM OPINION AND ORDER

 National Wrecking Company ("National") has sued International Brotherhood of Teamsters, Local No. 731 ("Union") seeking to vacate an arbitration award (the "Award"), and Union has in turn counterclaimed for enforcement of the Award plus some related additional relief. National now moves under Fed. R. Civ. P. ("Rule") 56 for summary judgment on its claim, while Union moves for summary judgment on its counterclaim. *fn1" For the reasons stated in this memorandum opinion and order:

 

1. National's Rule 56 motion is denied, and its action to vacate the Award is dismissed.

 

2. Summary judgment is granted in Union's favor on its counterclaim to enforce the Award, but only as originally rendered.

 Facts

 National and Union entered into a Collective Bargaining Agreement ("CBA") that required them to follow certain grievance and arbitration procedures (Ex. J-1, CBA §§ 6.1-6.12). National was also subject to United States Department of Transportation ("DOT") regulations requiring truck drivers in its employ to meet certain vision standards (49 C.F.R. § 391.41(b)(10)). Where the CBA and the DOT regulations intersect, this case begins.

 On March 8, 1990 National fired truck driver Joseph Barnett ("Barnett") based on the oral report of an ophthalmologist who said that Barnett's vision fell short of DOT requirements (Tr. 145-46; Ex. C-8). Barnett filed a grievance with Union the same day, challenging his dismissal (Ex. C-2, the "March 8 grievance"). On March 28 the Joint Area Committee designated to hear Barnett's grievance held a hearing, but it deadlocked. Barnett learned of that result the same day from Union's president James Lisner ("Lisner") (Tr. 148-49). Barnett was formally advised of the deadlock by a letter dated April 20 (Ex. C-1).

 Barnett then filed for arbitration. There is some dispute about whether he did so within the 30-day time frame set by CBA § 6.10. National says that it first received notice of the request for arbitration in an undated letter from Lisner that it claims to have received on or about June 13, well beyond the 30-day limit (Ex. C-3). Union counters with evidence that the request was timely filed (Tr. 184-87; Exs. U-6 to U-8; Max Becker Aff. § 3). As will be shown below, that factual dispute does not bear on the outcome of the case.

 Along with the undated letter Lisner enclosed a second grievance relating to Barnett's dismissal. Apparently that later grievance merely restated the claims made in the first. No grievance committee ever considered the second grievance, nor did the arbitrator evaluate it on the merits. Hence this opinion will not mention the second grievance again.

 Barnett underwent four eye exams in the eight months leading up to the arbitration hearing. Two of those exams, each apparently commissioned by National, indicated that Barnett's eyesight fell short of DOT requirements (Exs. C-5, C-8). Two other exams, each apparently conducted at Union's behest, indicated that Barnett's eyesight was adequate (Exs. U-2, U-4). Another exam conducted two years earlier had also found his eyesight adequate (Ex. C-6).

 Arbitrator Albert Epstein conducted a hearing on October 19 and 29, 1990, then issued his Award on January 30, 1991. In a 30-page opinion he reviewed the case thoroughly, noting the conflicting evidence on timeliness and on visual acuity. Arbitrator Epstein found that the March 8 grievance had been timely filed, citing the principle that an arbitrator should generally resolve disputes over timeliness in the grievant's favor (Award 26-27):

 

This principle is established upon the general basis that the merits of a grievance should be considered by an arbitrator whenever possible and that the Grievant should not be disenfranchised by virtue of a technical disqualification.

 Thus Arbitrator Epstein did not actually resolve the evidentiary conflict. Instead he took note of the conflict and drew upon a general rule to choose a winner on the timeliness issue.

 Next Arbitrator Epstein referred to the "barrage of conflicting diagnoses" on visual acuity, but he declined to choose among the diagnoses himself (id. 27-28). Instead he ordered that Barnett undergo yet another examination, this time by a neutral ophthalmologist to be selected by the parties within ten days. If the parties could not agree on a new ophthalmologist, Arbitrator Epstein would appoint one (id. 28). In either case the findings of the neutral ophthalmologist would bind the parties. If the doctor found Barnett's vision adequate he would win his job back, with restoration of seniority and pension rights but no back pay. If the doctor found that Barnett's vision fell short of DOT regulations, then the grievance would be resolved in National's favor (id. 30).

 National and Union could not agree on an ophthalmologist, so Arbitrator Epstein appointed Dr. Robert Levine. On March 18, 1991 Barnett visited Dr. Levine's office in downtown Chicago for the sixth and last exam relevant to this case. In a letter summarizing the results of that exam (National Ex. Mar. 30, 1991 Letter), Dr. Levine did not say outright whether Barnett's vision met DOT standards. Nor was any clear answer to that question evident on the face of the letter. Arbitrator Epstein responded by asking the doctor point-blank, in writing and over the phone, for an opinion on whether Barnett's visual acuity met DOT standards (National Exs. May 13, 1991 Letter (requesting an opinion) and July 9, 1991 Letter (reflecting phone conversations to the same effect)).

 Dr. Levine finally rendered an unequivocal written opinion to the effect that Barnett saw well enough to drive a truck under the federal regulations (National Ex. June 27, 1991 Letter). Arbitrator Epstein forwarded that opinion to the parties, adding that they were to "share [its cost] according to the terms of my award in the arbitration proceeding" (National Ex. July 9, 1991 Letter). Rather than grant Barnett reinstatement and back benefits, National filed its motion to vacate. Union responded with its motion for confirmation and enforcement.

 Rule 56 Principles

 Familiar Rule 56 doctrine imposes on the movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Hence this Court must draw all "reasonable inferences, not every conceivable inference" in the light most favorable to the nonmovant ( De Valk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987)). Where cross-motions are involved (and what the parties present here are cross-motions in substance, though not in form), that principle demands a dual perspective that sometimes causes the denial of both motions--though as this opinion's substantive discussion will reflect, that result does not obtain here.

 To avoid confusion from the cross-motion structure, the bulk of this opinion is cast in the form of a review of National's motion. At the end Union's motion is taken up separately. On each motion Rule 56 requires this Court to rule in the movant's favor if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." To demonstrate that an issue is genuine the moving party must cite to some evidence in the record sufficient to suggest that its view of the issue might be adopted by a reasonable factfinder ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1304 (7th Cir. 1991)). To demonstrate that an issue is material the moving party must show that the issue is outcome-determinative under the applicable substantive law ( Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir. 1991)). Accordingly this opinion next outlines the principles governing judicial review of arbitration awards.

 What Statute Governs?

 Two statutes conceivably apply to this case. National has brought suit under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, which explicitly authorizes judicial review of arbitration awards. That statute applies primarily to commercial arbitration--indeed, its language expressly forbids judicial review of arbitration arising out of "contracts of employment of . . . workers engaged in interstate commerce" (id. § 1). *fn2" More to the point, Labor Management Relations Act § 301, 29 U.S.C. § 185 ("Section 301") expressly provides for judicial review of any "violation of contracts between an employer and a labor organization[.]" As was true in this case, the duty to arbitrate typically arises from the CBA itself. Hence when an arbitrator improperly discharges his or her duties or when a party to the CBA refuses to honor an arbitrator's ruling, there has been a "violation of contract[]" actionable under Section 301 and a federal cause of action exists.

 Miller Brewing, 739 F.2d at 1162 makes it plain that National has sued under the wrong law:

 

But section 301 was enacted long after the Arbitration Act and deals specifically, as the Arbitration Act does not, with labor contracts; it therefore supersedes, within its domain, the standards of the earlier act.

 Thus no award arising from a CBA-mandated arbitration proceeding is reviewable under the Arbitration Act.

 But that marks the beginning rather than the end of the analysis. Courts have construed Section 301 and the Arbitration Act to embody largely similar doctrines of judicial deference to the decisions of arbitrators. If the two statutes are not identical twins, they are at least kissing cousins--"federal courts have often looked to the [Arbitration] Act for guidance in labor arbitration cases" ( United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 40, 108 S. Ct. 364, 98 L. Ed. 2d 286 n.9 (1987)). Courts routinely cite decisions under one statute as authority for decisions under the other.

 Ordinarily a court has no business searching out the proper statute to supply a plaintiff's cause of action. But rights of action are a function of the facts of a case, not of the legal theories that may or may not have been advanced by the plaintiff ( Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992); see Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)). Certainly when (as in this case) the legal principles supplied by the properly applicable statute so closely resemble the principles supplied by the inapplicable statute cited by the plaintiff, the better course is to go ahead and review the claim as if National had brought suit under the right law: here Section 301. Because relief under that section proves unavailable to National in all events, no prejudice to Union can result from this lenient approach.

 Section 301 Standards

 When parties agree to arbitration they consciously trade the safeguards of full-fledged adjudication in the courts for the greater speed and lower costs of alternative dispute resolution ( E.I. DuPont de Nemours & Co. v. Grasselli Employees Independent Ass'n of East Chicago, Inc., 790 F.2d 611, 614 (7th Cir. 1986)). Courts extend extraordinary deference to the decisions of arbitrators, thus "preventing a 'judicialization' of the arbitration process" (id.) that would allow the losing party to evade the consequences of this initial bargain. Misco, 484 U.S. at 36 (citation omitted) teaches, quoting from one case in the Steelworkers Trilogy ( United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960)):

 

As long as the arbitrator's award "draws its essence from the collective bargaining agreement," and is not merely "his own brand of industrial justice," the award is legitimate.

 That principle holds true even if the arbitrator makes plain errors of fact or law (id. at 38).

 National offers three arguments in support of its attempt to defeat the general policy of deference to the arbitrator's award. Brief analysis shows each contention to be unpersuasive.

 Delegation

 National first asserts that Arbitrator Epstein went beyond the "essence of the contract" when he chose to rely on a neutral ophthalmologist to break the logjam of competing diagnoses. CBA § 6.10 bound the parties to accept the final decision of "the arbitrator"--not the final decision of a doctor designated by the arbitrator.

 Legal technicalities aside, Arbitrator Epstein's job was to decide how well Barnett could see. According to the first five eye exams, Barnett seemed to see better or worse depending in part on whether Union or National commissioned the exam. And so it was that Arbitrator Epstein chose to commission a sixth report from a neutral expert, whose findings would control the outcome of the case.

 Arbitrator Epstein was clearly within the scope of his authority to commission a report from a neutral expert on issues essential to the case ( Sunshine Mining Co. v. United Steelworkers of America, 823 F.2d 1289, 1295 (9th Cir. 1987)). But he had an obligation to "carefully evaluate[] and weigh[]" the expert's ultimate submission (id.). Accordingly the question becomes whether Arbitrator Epstein properly evaluated and weighed Dr. Levine's report, or whether he merely punted to the neutral doctor.

 It is not entirely clear from the record just how carefully Arbitrator Epstein reviewed Dr. Levine's report. But without question, in at least one letter and in more than one phone conversation Arbitrator Epstein did press Dr. Levine for a more specific explanation of his findings. It is also reasonable to infer (granting the pro-Union inferences mandated by Rule 56 on National's motion) that in light of the general thoroughness reflected by his written opinion, Arbitrator Epstein must have reviewed Dr. Levine's report carefully enough to determine that it was intrinsically reliable.

 Moreover, the extent of an arbitrator's obligation to evaluate and weigh must depend on the sort of evidence at issue. Where technical medical evidence is in dispute and the arbitrator lacks the scientific skills necessary to reconcile the conflicting evidence on the merits, greater reliance on a neutral expert becomes not only permissible but very nearly necessary. Otherwise the arbitrator must play ophthalmologist, and it would distort the notion that the parties have vested the decisionmaking function in their chosen arbitrator to hold that by doing so they have appointed a lawyer-cum-doctor. For that reason arbitration agreements occasionally mandate reliance on the findings of a neutral doctor, and binding reports by neutral doctors are occasionally requested by arbitrators (either sua sponte or with the parties' permission) where the agreement does not so mandate (Frank Elkouri & Edna Asper Elkouri, How Arbitration Works 339 (4th ed. 1985)).

 All in all, two reasons appear to make it eminently reasonable for Arbitrator Epstein to have used an independent expert in the way that he did:

 

1. At least for purposes of National's motion (see n.5), with its compelled inferences in favor of Union, he adequately discharged his duty to evaluate (as prescribed by Sunshine Mining) in light of the technical nature of the evidence.

 

2. Reliance on a neutral doctor seems to be the sort of approach that the parties might well have approved had they dealt with the problem at the time of contracting.

 On the latter point, for an arbitrator to resolve a contract dispute just as the parties would likely have done ex ante is to do what judges do every day when interpreting contracts (cf. Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987) (arbitrator empowered to interpret both implicit and explicit contract terms)). Thus even if Arbitrator Epstein had effectively redesignated Dr. Levine as a subarbitrator, that would not have gone beyond the "essence of the contract."

 But this Court need not travel any such inferential path to reach the destination of National's defeat. Even if it were to be assumed arguendo that Arbitrator Epstein had crossed the line between permissible consultation with an expert and forbidden delegation, National nonetheless failed to raise that objection in the original proceedings before Arbitrator Epstein. And that failure is fatal to National's motion to vacate.

 It is well settled that a district court may not consider objections or legal theories not raised before the arbitrator ( United Food & Commercial Workers Local 100A v. John Hofmeister & Son, Inc., 950 F.2d 1340, 1343-44 (7th Cir. 1991)). *fn3" National seeks to avoid that rule by contending that the error in Arbitrator Epstein's reliance on Dr. Levine became apparent only at the end of the process, when Arbitrator Epstein demanded that Dr. Levine produce an opinion on whether Barnett's vision met DOT regulations (National R. Mem. 5). National therefore urges that the waiver rule of Hofmeister and innumerable other cases should not apply.

 Yet Arbitrator Epstein made clear in his January 30, 1991 written opinion that he intended to rely completely on Dr. Levine "to issue a final determination" (Award at 28) as to whether Barnett was "visually qualified under the Department of Transportation regulations" (id. at 30). Thus National knew from January 30 onward that Arbitrator Epstein intended that Dr. Levine render a binding opinion tailored to the DOT regulations--making what National now characterizes as an impermissible "legal" judgment.

 If National thought that such a degree of reliance on a neutral expert constituted legal error, it had an obligation to raise that argument directly to Arbitrator Epstein at some point during the five full months that elapsed between issuance of the written opinion and the July 9, 1991 letter in which Arbitrator Epstein adopted Dr. Levine's pro-Barnett conclusion. But far from objecting to the procedure adopted by Arbitrator Epstein, instead National openly cooperated with Dr. Levine: Ex. C to Union's Statement under this District Court's General Rule 12(m) is a February 27, 1991 letter from National's lawyers to Dr. Levine forwarding a number of materials to him at Arbitrator Epstein's request, explaining Barnett's job requirements as background for Dr. Levine's determination and--most importantly--beginning with an express recognition of the contemplated finality of Dr. Levine's determination as to Barnett's meeting or not meeting the DOT standards:

 

We have been informed of your appointment by Arbitrator Albert A. Epstein to examine Mr. Joseph Barnett. It is our understanding that you will issue a final determination as to Mr. Barnett's qualifications under the U.S. Department of Transportation's vision requirements for drivers. *fn4"

 That means that National is engaged here in an impermissible effort at second-guessing--having lost in a procedure in which it participated without any objection, it now seeks to quarrel with Dr. Levine's conclusion. It cannot thus belatedly dispute the concept of the arbitrator's reliance on a neutral expert. By failing to make the delegation argument below, National has waived the right to make it in this Court.

 Public Policy

 National next argues that the Award in favor of Barnett violated public policy. That sort of argument is much favored by losing parties in arbitration cases for reasons explained in E.I. DuPont, 790 F.2d at 615, quoting W.R. Grace & Co. v. Rubber Workers Local 759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 103 S. Ct. 2177 (1983):

 

Unlike a review of the merits of the award itself, where, as illustrated above [in a host of cited cases], there must be strong deference to the arbitrator, the question of whether the award violates public policy "is ultimately one for resolution by the courts."

 Arbitrator Epstein's Award allegedly violated the public policy in favor of having big trucks driven by people with good eyesight. By adopting Dr. Levine's conclusions, Arbitrator Epstein in effect decided that Barnett could indeed see well enough to drive a truck. That decision constituted a simultaneous finding of fact (that Barnett could see as well as Dr. Levine said he could) and conclusion of law (that the level of visual acuity reported by Dr. Levine corresponded with DOT regulations). To evaluate National's public-policy argument, therefore, this Court would have to begin by rejecting Arbitrator Epstein's finding of fact.

 Unfortunately for National, E.I. DuPont, 790 F.2d at 615 forbids such a maneuver:

 

Where an arbitration award has been overturned on public policy considerations, the court has not questioned the factual findings of the arbitrator. Rather, the court has found that, assuming all of the facts found below are true, the enforcement of the award will violate a public policy.

 Just this month our Court of Appeals has reaffirmed this principle in Chrysler Motors Corp. v. Internat'l Union, Allied Industrial Workers of America, 959 F.2d 685, 1992 U.S. App. LEXIS 6052, at *13 n.4 (7th Cir. 1992).

 In other words, the losing party in an arbitration proceeding cannot use public policy arguments to stage a backdoor attack on the arbitrator's factual findings. Speaking in just such a public-policy-attack context, Misco, 484 U.S. at 39 makes that crystal clear:

 

No dishonesty is alleged; only improvident, even silly, factfinding is claimed. This is hardly a sufficient basis for disregarding what the agent appointed by the parties determined to be the historical facts.

 National's public-policy argument too must fail.

 Timeliness

 Finally, National asserts that Arbitrator Epstein went beyond the "essence of the contract" by deciding an untimely claim. There is some dispute, noted above, about whether Union timely filed its request for arbitration. Arbitrator Epstein considered the conflicting evidence on that issue and decided in Union's favor, citing the general rule favoring resolution of a grievant's substantive claims despite procedural default. In reaching his decision Arbitrator Epstein undeniably drew on the "essence of the contract" in the sense that the CBA must be said to embody general principles of arbitral law.

 More importantly, this Court cannot disturb Arbitrator Epstein's decision on timeliness under the straightforward rule of Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 860 F.2d 1420, 1424 (7th Cir. 1988) (emphasis added in part):

 

Procedural issues, including the standing of a party to the arbitration, the res judicata effect of a prior arbitration award and the timeliness of filing a grievance, are for the arbitrator, so long as the subject matter of the dispute is within the arbitration clause.

 National does not contend that the subject matter of this dispute fell outside the scope of the CBA's arbitration clause. Hence the arbitrator's decision on timeliness must stand.

 * * *

 In sum, none of National's arguments in favor of vacating the Award calls for that result. Its motion for summary judgment must be denied, and its action to vacate the Award must be dismissed.

 Union's Motion for Confirmation and Enforcement

 Union has moved under Section 301 for confirmation and enforcement of Arbitrator Epstein's Award, and it seeks summary judgment on that motion. Ordinarily the winning party is entitled to judicial enforcement of an arbitration award, on the theory that the loser's failure to honor the award constitutes a breach of the CBA's arbitration provisions ( Evans v. Einhorn, 855 F.2d 1245, 1253 (7th Cir. 1988) (District Judge Rovner's opinion, aff'd per curiam). Judicial enforcement of the award forms the labor law equivalent of specific performance in an ordinary contract action ( Textile Workers Union v. Lincoln Mills of Alabama, 353 U.S. 448, 451, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957)).

 In their briefs on Union's motion, the parties pretty much repeat the debate just described in dealing with National's motion to vacate. Essentially all of the conclusions reached in this opinion's discussion of National's motion apply to Union's motion as well. *fn5" In short, Arbitrator Epstein's Award is valid. Therefore Union is entitled to judicial enforcement as a matter of law. Only the scope of relief remains to be considered.

 In that respect Arbitrator Epstein ordered that Barnett (Award at 30):

 

be promptly restored to his previous position with restoration of full seniority and with restoration of pension rights and contributions but there will be no compensation for any loss of back pay.

 Those remedies are clearly appropriate and are hereby made part of this Court's order of enforcement. However, Union also seeks two additional remedies that require discussion: back pay and its attorneys' fees and costs.

 1. Back pay. Arbitrator Epstein denied any award of back pay because he found that National had acted in the good-faith belief that Barnett's vision fell short of DOT requirements (Award at 28). Though Union accepts that ruling, it asks for back pay from July 9, 1991 forward because that is the date as of which Barnett should have been reinstated. But Union offers no authority (nor has this Court unearthed any in its own brief research) for the proposition that a district court may so enlarge an arbitrator's award. Nor does Union argue, as it might perhaps have contended, that a grant of back pay post-dating the Award is implicit in Arbitrator Epstein's order that Barnett "be promptly restored to his previous position" (id. at 30)--a remedy that would perform somewhat the same function as post-judgment interest (that is, compensating for the delay sustained by the prevailing party in obtaining the benefit of his, her or its entitlement) if the Award were to be viewed as the arbitral equivalent of a judgment.

 Enforcement actions, as noted, are in the nature of actions for specific performance. This Court will not take it upon itself--at least in the absence of cited authority--to add what would amount to compensatory damages to the courts' remedial arsenal in such actions. If Union seriously expected an award of post-Award back pay (even in the nature of adjusting for the delay in enforcement of a proper Award), it should have cited some cases. This Court of course expresses no opinion as to whether the arbitration agreement, or arbitration law generally, would permit Union to pursue such an implicit-relief theory of damages by returning to Arbitrator Epstein.

 2. Attorneys' fees. Attorneys' fees may be awarded when the position of the party resisting enforcement "has no merit or is 'frivolous,' that is, [maintained] in bad faith to harass rather than to win" ( Chrysler Motors, 959 F.2d 685, 1992 U.S. App. LEXIS 6052, at *15). Does National fail that test?

 In one sense National pursued this litigation with the best of motives: It wanted to keep a driver with allegedly bad eyesight off the road. But it is the likelihood of success, and not just salutary motives, that makes a case non-frivolous for fee award purposes. In that sense National has a much less attractive position, for it is charitable indeed to describe its legal arguments as non-starters. Perhaps National's lawyers, not grasping the substantive law, mistakenly advised their client that the case was winnable. Any number of colorful labels might apply to such behavior, but "bad faith" is not among them. One such label (though this Court renders no ruling on the subject) would be to hold such conduct a violation of Rule 11, which requires counsel to make a reasonable prefiling inquiry into the state of the law and also eliminates the "pure heart, empty head" defense just described in favor of an objective standard. But Union has not brought a Rule 11 motion--and although there may be occasions when it is in order for a court to impose Rule 11 sanctions of its own accord (and this Court has sometimes done just that), this is not on its face the case to do so.

 National's counsel also could have advised it that the case was a sure loser, but nonetheless agreed to pursue the matter in the hope (for themselves) of some fees and the hope (for the client) of delaying the inevitable rehiring of Barnett--or in the hope of preventing his rehiring altogether by entangling Union in litigation so costly that it would choose to drop the matter. Any such scenario, if true, would surely violate not only the bad-faith test of Chrysler Motors but also the less demanding objective test of Rule 11.

 National has not shown any facts to support any such sinister theory. Of course, if facts of that nature existed they might well prove undiscoverable in light of the attorney-client privilege. For that reason among others, subjective bad faith (like other questions of someone's intent) may most often be inferred from the objective facts--in this case, the frivolousness of a litigant's legal theories. This Court will not draw such an inference. National's arguments, while unpersuasive, were just colorable enough to withstand the charge of bad faith. That conclusion rests primarily on National's delegation argument. As n.4 reflects, this Court has no information that National's current lawyers tendered that argument with knowledge of the original counsel's effective total waiver of the point by counsel's letter to Dr. Levine. Moreover, the current lawyers' contention that the full scope of Arbitrator Epstein's claimed error did not become apparent until July 1991 does not appear to rise--or fall--to the malum fides level either. Union's request for attorneys' fees is therefore denied.

  Conclusion

 There is no issue of material fact, and Union is entitled to a judgment as a matter of law. National's motion for summary judgment is denied, and its action to vacate the Award is dismissed. Union's motion for confirmation and enforcement of the Award as made is granted. Its further requests for back pay and for attorneys' fees are denied.

 Milton I. Shadur

 United States District Judge

 Date: April 20, 1992


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