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IN RE LOCAL 365, CEMETERY WORKERS v. WOODLAWN CEME

June 8, 1994

In the Matter of the Application of LOCAL 365, CEMETERY WORKERS AND GREEN ATTENDANCE WORKERS UNION, Petitioner,
v.
THE WOODLAWN CEMETERY, Respondent.



The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

 ROBERT P. PATTERSON, JR., U.S.D.J.

 Petitioner moves to confirm an arbitration award dated August 19, 1993 (the "Award"), which reinstated John Grosso "to his former position with seniority rights unimpaired but without back pay" (Award, p. 6). Respondent cross moves to vacate that part of the Award ordering reinstatement. For the reasons set forth below, Petitioner's motion is granted, Respondent's cross-motion is denied, and the award is confirmed.

 The arbitral proceeding was conducted pursuant to a Collective Bargaining Agreement between Respondent The Woodlawn Cemetery and Petitioner Local 365, Cemetery Workers and Green Attendants Union, dated December 3, 1987 (the "CBA"), in effect during the period January 1, 1988 through December 31, 1990. The CBA requires arbitration of all disputes which may arise between the parties which are not resolved through grievance procedures. Grosso was discharged by Respondent on May 24, 1990 for fighting with William Tiernan on May 19, 1990. Tiernan, who was not represented by Petitioner, was also discharged. On May 25, 1990, Grosso, a union shop steward, filed an unfair labor practice charge with the National Labor Relations Board ("NLRB") charging he had been discharged by Respondent because he had engaged in protected and concerted activities as a shop steward for the Union and in retaliation for previous charges he had filed with the NLRB. On May 30, 1990, Petitioner filed a demand for arbitration with the American Arbitration Association ("AAA") charging that Respondent had discharged Grosso without just cause in violation of Article VII of the CBA.

 On September 20, 1990, Respondent moved in this Court for a stay of the AAA arbitration proceeding on the grounds that the NLRB's proceeding involved the same factual issues as the arbitral proceeding. Respondent's motion was granted by Judge Cannella on October 2, 1990. Woodlawn Cemetery v. Local 365, 90 Civ. 6071 (JCM) (Exh. A to Verified Answer and Countercl.). Petitioner appealed and the Second Circuit affirmed on April 4, 1991. 930 F.2d 154 (2d Cir. 1991).

 On April 23, 1991, Administrative Law Judge James F. Morton issued a decision ("J. Morton Decision") concluding that Respondent had engaged in some unfair labor practices against John Grosso but found that Grosso had not been discharged by Respondent for his union activities, but had been terminated by Respondent for fighting. (Exh. C to Verified Answer and Countercl.) Judge Morton stated:

 
The evidence is clearly insufficient to establish, as General Counsel contends, that Respondent had no basis to support its conclusion that Grosso participated in a fight at the cemetery with Tiernan on May 19. I therefore cannot find that the reason for Grosso's discharge was clearly pretextual on the ground that there was no probative basis for Respondent to believe he took part in the fight. (J. Morton Decision, p. 12)

 In his decision, Judge Morton then considered whether or not Respondent had treated John Grosso differently from other employees who had fought in the past. He found that the evidence was insufficient to show that Respondent had treated Grosso in a disparate manner and thus the evidence did not support the General Counsel's contention that Respondent's reason for Grosso's discharge was a pretext. Judge Morton went on to state that if the NLRB were to find on review that the General Counsel had made out a prima facie case, he would find that Respondent had discharged John Grosso for fighting consistent with Respondent's discharge of prior employees in similar incidents (J. Morton Decision, p. 13), and that Respondent had satisfied its burden under Wright Line, a Division of Wright Line Inc., 251 N.L.R.B. 1083 (1980). On November 20, 1991, the NLRB affirmed Judge Morton's rulings, findings and conclusions in pertinent part. Woodlawn Cemetery, 305 N.L.R.B 84 (1991) (Exh. D to Verified Answer and Countercl.).

 The AAA Arbitration hearing on John Gross's discharge commenced on March 4, 1992 and ended on May 12, 1993. The issue presented to the arbitrator for determination was as follows:

 
Was the discharge of John Grosso for just and sufficient cause? If not, what shall the remedy be? (Verified Answer and Countercl. P 29)

 On August 19, 1993 the arbitrator, Harold M. Weston, rendered an Opinion and Award ("Arbitration Opinion and Award") finding that discharge was an extreme disciplinary action, unwarranted under the circumstances and ordered that John Grosso "be reinstated to his former position with seniority rights unimpaired but without back pay." Mr. Weston found that John Grosso and William Tiernan had engaged in a fist fight on May 19, 1990 but that, although both had required medical attention, there was "no evidence on record that either man was the aggressor or unduly violent or acted only in self defense." Arbitration Opinion and Award at 4.

 The arbitrator acknowledged that Article VII of the CBA is controlling in this case, but found that "Nothing in Article VII . . . establishes that Grosso must be considered as 'assaulting' any person. He merely took part in the Tiernan fight and so far as this arbitrator is concerned, will not be held to have assaulted Tiernan. He is not subject ...


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