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TEAMSTERS, LOCAL UNION NO. 506 v. E.D. CLAPP CORP.

November 29, 1982

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 506, Petitioner,
v.
E.D. CLAPP CORPORATION, Respondent



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION AND ORDER

 HOWARD G. MUNSON, C.J.

 By their very nature, disputes requiring judicial resolution are adversary proceedings. Despite this adversary quality, the vast majority of lawsuits are conducted with a high degree of respect for both the Court and the opposing parties. Because most controversies are simply attempts to determine the truth, the parties usually strive to provide the forum with an accurate picture of the relevant facts. This factual presentation, although painted in the light most favorable to the respective parties, allows the Court to make an informed decision about the facts of the case under consideration. Once the facts are known, the Court, with the help of the parties through their legal briefs and memoranda, can resolve the dispute by applying the proper legal principles to facts before the Court.

 There are occasions, however, when this search for the truth is hampered by the zealousness of the parties. The Court is hesitant to characterize this zealousness in a more serious tone, but the instant case is most unusual. It appears that the parties have become so involved and convinced of the correctness of their positions that the Court has been presented with diametrically opposed versions of the same incidents. It is in this light that the Court renders this Memorandum-Decision and Order.

 This action was brought by petitioner, Local 506 [Union], seeking a vacatur of arbitration awards rendered on November 12, 1981. The Union contends that the awards were procured by corruption, fraud, or undue means within the meaning of 9 U.S.C. § 10(a), that there was evident partiality or corruptness on the part of the arbitrator within the meaning of 9 U.S.C. § 10(b), that the arbitrator was guilty of misconduct within the meaning of 9 U.S.C. § 10(c), and that the arbitrator exceeded his powers within the meaning of 9 U.S.C. § 10(d). Respondent E.D. Clapp Corporation [Company] denies these allegations and requests that the Petition to Vacate be denied in all respects.

 The Union and the Company were party to a Collective Bargaining Agreement [CBA] dated August 1, 1979, effective from August 1, 1979 through July 31, 1981. Pursuant to Article 10 of the CBA, disputes arising under the agreement are subject to a four step grievance procedure culminating in binding arbitration. During the course of the CBA, a strike by members of the Union occurred and the parties were directed by the Honorable John R. Tenney of the New York State Supreme Court to submit all current disputes to binding arbitration. Thereafter, the New York State Mediation Board appointed John Beich "to convene a meeting of the parties to effect an expeditious and amicable resolution of these disputes."

 Arbitrator Beich communicated frequently with Union President Paul Bush and Company President Spencer S. Berger from the date of his appointment on February 6, 1981 to the first of the alleged "hearings" on July 1, 1981. On this date, the parties gathered in Auburn, New York. Although this fact is undisputed, the events of that day are subject to varied interpretation. According to the Company, the parties agreed that Beich could decide the question of whether the subject disputes were arbitrable before proceeding to the merits. This view is supported by the affidavits of Company President Spencer S. Berger, Assistant to the President William C. Lavery, and Company counsel Stephen J. Vollmer. The Union argues, however, that no agreement was reached allowing the arbitrator to first decide the arbitrability question. This position is supported by the affidavits of Union counsel Peter P. Paravati, and Union President Paul Bush.

 After this alleged "stipulation" was entered into, the Company contends that a hearing was held on the arbitrability issue. At this hearing, the Company claims that it presented its case on the arbitrability issue, and in so doing, also substantially presented its case on the merits. This view is supported by the affidavits of Company President Spencer S. Berger, Assistant to the President William C. Lavery, and Company counsel Stephen J. Vollmer. To the contrary, the Union asserts that no formal hearing was held. Instead, the Union claims that at this July 1 meeting, Company President Berger refused to allow consideration of anything but the arbitrability issue despite the prior understanding that all issues were to be presented. Berger's conduct, according to the Union, created turmoil, disorder, and chaos, and that under no stretch of the imagination, could that July 1 meeting be considered a hearing. No witnesses were called and the dischargees were never heard from. This position is supported by the affidavits of Company counsel Peter P. Paravati and Union President Paul Bush.

 Due to the high degree of acrimony between the parties, it was allegedly agreed that arbitrator Beich be allowed to conduct independent investigations of the disputes and engage in ex parte contacts with the parties and their representatives. According to the Company, this stipulation was signed by the Company as an accommodation to the arbitrator even though it was understood that the arbitrability issue would be reached first. This view is supported by the affidavits of Company President Spencer S. Berger, Assistant to the President William C. Lavery, and Company counsel Stephen J. Vollmer. The Union asserts, however, that the stipulation was entered into for different reasons. It is claimed that arbitrator Beich requested the parties to sign the stipulation in order to "cover" for the arbitrator's past ex parte meetings with the parties. This stipulation, signed by Union President Paul Bush, was understood by Bush to only cover past conduct by the arbitrator. Moreover, Bush charges that the stipulation was altered after he signed it so that Beich could have ex parte contacts in the future. This position is supported by the affidavit of Union President Paul Bush.

 After the stipulation was entered into, it appears that the parties agreed to another meeting with the arbitrator. On September 1, 1981, the parties gathered again in Auburn, New York. Once again the events of that day are subject to dispute. According to the Union, Paul Bush objected to certain procedural matters, namely, the sequestration of witnesses. The Union claims that it continually objected to ex parte meetings between the Company and arbitrator Beich and attributes any and all delays to the Company. This view is supported by the affidavits of Union President Paul Bush and Union organizer Donald Oltz. Needless to say, the Company's version of this episode is quite different. According to the Company, when the sequestration of witnesses was requested by the Company, Paul Bush objected on the grounds that it would prevent him from preparing his cases and would be detrimental to the interest of the grievants. When Bush's objections were overruled, he verbally assaulted the arbitrator and was "personally insulting and provoking." This view is supported by the affidavits of Company President Spencer S. Berger, Assistant to the President William C. Lavery, and Company counsel Stephen J. Vollmer. In a supplemental affidavit, Paul Bush specifically denied the Company's account of his "tirade."

 At some point in the proceedings on September 1, 1981, arbitrator Beich attempted to question Union witness Bruce Bergeron. According to the Union, Beich tried to coerce Bergeron into signing an agreement stipulating to certain facts before asking any questions. The Union further alleges that these facts by stipulation were prepared by the Company. This view, of course, is supported by the affidavits of Union President Paul Bush and Union organizer Donald Oltz. The Company asserts that all arbitrator Beich asked Bergeron was whether he had left the Company's plant on a given date. At this point, according to the Company, Bush "exploded" again and renewed his tirade against the arbitrator. Not surprisingly, this view is supported by the affidavits of Company President Spencer S. Berger and Assistant to the President William C. Lavery.

 The manner in which the September 1, 1981 proceedings concluded is also the subject of a controversy. According to the Union, and of primary importance to the instant Petition to Vacate, arbitrator Beich withdrew from his role as arbitrator and stormed out of the proceedings. As stated in the Union's Petition:

 
26. At that point, Beich stood up and stated, "[expletive deleted] it, I quit, I'm prejudiced, I never wanted these cases, they are making a patsy out of me." (deletion in original).
 
27. Bush responded that Beich was acting like a fool, that Bush had never heard of an arbitrator quitting like this, that if he did not sit down and stop this nonsense Bush would call Chairman Healy. Beich responded "I don't give a ...

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