supervisor Nagle that the term "assault" in the CBA means "fighting." Respondent argues that "the Arbitrator's determination is wholly unfounded because there is no basis in the Agreement for his finding that to be discharged for an assault, one must have been either the aggressor or unduly violent." (Resp. Mem. of Law at 17) Thus, the Respondent argues the Arbitrator acted beyond his authority by modifying unambiguous contractual language.
The Petitioner points out, however, that rather than rely on Mr. Nagle's testimony as to the meaning of assaulting another person, Petitioner relied in the arbitration proceeding on a dictionary definition of the noun "assault" contained in Webster's New Universal Unabridged Dictionary, Second Edition, Copyright 1979, defining the noun "'assault' as 'an attack or violent onset, as with blows or weapons, whether by individual, a company or an army.'" (Pet. Mem. of Law at 10) Petitioner goes on to point out that on June 1, 1992 the arbitrator showed a desire to determine "'Who was the aggressor? Was there an assault within the meaning of the Collective Bargaining Agreement." (Pet. Mem. of Law at 10) The Petitioner also points out (1) that in the only prior discharge of a union employee for "fighting" the worker discharged had been the aggressor and (2) that the other discharges testified to by Mr. Nagle did not involve union employees protected by the CBA. The Petitioner urges that the interpretation of the arbitrator was based on the plain meaning of the CBA and prior history under the CBA concerning discharges of union employees protected by the CBA. In view of this record, the Court cannot find that the arbitrator's interpretation of the CBA did not draw its essence from the CBA or that the arbitrator acted beyond his authority. See Cobec Brazilian Trading, 524 F. Supp. at 9; United Steelworkers, 363 U.S. at 597.
Lastly, Respondent argues that the award should be vacated because the arbitrator failed to adopt the ALJ's findings and conclusions and that the doctrine of collateral estoppel precluded the relitigation in the AAA discharge arbitration of issues necessarily decided in the NLRB proceeding. Woodlawn Cemetery v. Local 365, Cemetery & Greens Attendants Union, 930 F.2d 154, 156 n.2 (2d Cir. 1991) (noting that while an adverse Board decision would not preclude Grosso from pursuing his contractual claims in arbitration he "would be bound by the Board's findings of fact and law.")
The arbitrator indicated that he had tried "to the extent practicable" to comply "with Judge Cannella's order requiring collateral estoppel effect be given to disputed issues . . . when the parties have had an opportunity to litigate those issues." Arbitration Opinion and Award at 4. Thus, the arbitrator acknowledged he was bound by those issues determined by the ALJ.
Respondent, however, fails to state the issue determined by the administrative adjudication, namely, whether Respondent would be found to have committed an unfair labor practice, i.e., taking action against Grosso due to his union activities and position. In that proceeding, the ALJ found that, although Respondent had committed other unfair labor practices, Respondent had not discharged Grosso in retaliation for his union activities but had discharged him because he had engaged in a fight, a discharge the ALJ found consistent with Respondent's prior disciplinary actions and thus not a pretext for committing an unfair labor practice.
In his Arbitration Opinion and Award the arbitrator did not take issue with the ALJ's findings but found that under the CBA immediate discharge for "assaulting another person" required the employee to have been the aggressor and that the facts decided by the ALJ and the evidence presented to the arbitrator were not sufficient to establish that Grosso was the aggressor.
The Arbitrator has articulated the reasons for his decision and findings. They do not reflect manifest disregard of the law, and the Court will not set the award aside.
The motion of Petitioner is granted, the motion of Respondent is denied, and the award is confirmed.
IT IS SO ORDERED.
Dated: New York, New York
June 8, 1994
ROBERT P. PATTERSON, JR.
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