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December 27, 1996


The opinion of the court was delivered by: SCULLIN

 Plaintiff, International Brotherhood of Electrical Workers, Local 97 ("Local 97"), *fn1" commenced this action against defendant, Niagara Mohawk Power Corporation ("Niagara Mohawk"), *fn2" pursuant to 29 U.S.C. ยง 185, *fn3" to confirm the July 23, 1995 arbitration award rendered by a tripartite arbitration panel (the "Award"). Niagara Mohawk counterclaimed to vacate the Award on the grounds that it violates public policy. Plaintiff moves for summary judgment to confirm the Award, dismiss Niagara Mohawk's counterclaim, and seeks an award of attorneys' fees and costs. Niagara Mohawk cross-moves for summary judgment to vacate the Award, dismiss the complaint in its entirety, and seeks an award of costs and fees.


 The underlying dispute involves Niagara Mohawk's decision to discharge employee Patrick J. Rando ("grievant"), who was employed in Niagara Mohawk's Nuclear Division under a collective bargaining agreement between Niagara Mohawk and Local 97. *fn4" Grievant was hired by Niagara Mohawk on January 19, 1988 to work in the Nuclear Division at Nine Mile Point nuclear power plant in Lycoming, New York as a radiation protection technician. At the time he was discharged grievant held the position of Chemistry Technician at Nine Mile Point, Unit 2.

 As a Chemistry Technician, grievant was responsible for ensuring that the plant chemistry was maintained within the technical specifications required by the Nuclear Regulatory Commission ("NRC"). In particular, grievant was charged with "testing air effluence, influence, water effluence, pump oils, [and] things of that nature." Award at 4. To perform these duties, grievant was granted unescorted access to areas of the facility that are considered to be critical to the safe operation of a nuclear power plant.

 On February 4, 1993, grievant was asked to produce a urine specimen in accordance with the random drug screening mandated by the NRC Fitness For Duty Program regulations. *fn5" In accordance with Niagara Mohawk's Nuclear Division drug testing, prior to submitting to the drug test, grievant certified "that the urine specimen to be provided by me is mine and not adulterated or altered in any manner." *fn6" Award at 4. Grievant then provided a urine sample. Later that day, Robert LaDue, Niagara Mohawk's General Supervisor of Labor Relations for the Nuclear Division, was contacted by the Fitness For Duty technician who had tested grievant's sample. The technician told LaDue that the urine sample had a strong odor of chlorine. Subsequent tests and laboratory analysis of the specimen confirmed the presence of chlorine.

 On February 5, 1993, grievant produced a second urine specimen under observation and this sample tested positive for cocaine. Later that day, during a meeting with a Local 97 representative and LaDue, grievant admitted that he had adulterated the first urine specimen, but denied that he had ever used illegal drugs. A subsequent search of grievant's locker revealed a ten ounce bottle of chlorine solution, a small vile of urine, and another small vial of chlorine solution.

 On February 8, 1993, a disciplinary meeting under Article XVI of the collective bargaining agreement was held among grievant, representatives of Local 97, and Niagara Mohawk. During this meeting, grievant admitted that he was a drug abuser, but requested leniency during the proceeding. Nevertheless, Niagara Mohawk terminated grievant that day "on the basis of [1] his intentional behavior to defraud the company as far as his drug test was concerned and [2] his falsification of the document when he certified that it was not altered in any way." Award at 5.

 Local 97 filed a grievance, challenging Niagara Mohawk's decision to discharge grievant. (Grievance No. 21-N-93). The parties were unable to resolve the grievance, and therefore, pursuant to Article XXII of the Agreement, entitled "Grievances," the matter was submitted to arbitration. Arbitration hearings were held on July 1, November 29, December 21, 1994 and February 16, 1995, before a tripartite panel consisting of neutral arbitrator Tia Schneider Denenberg, Local 97 arbitrator Alex T. Kurilovitch, and Niagara Mohawk arbitrator Richard L. Byrnes (the "Panel"). *fn7"

 On July 23, 1995, the Panel issued, over the dissent of Byrnes, its opinion and award, finding that grievant had been terminated without just cause. *fn8" The Panel found that grievant did not have full and unmistakable notice of the disciplinary penalty which was "alien to the concept of due process," one of the "first of the canonical seven tests" of just cause. Award at 9. In addition, the Panel found that the consent form could not be likened to a falsified work record because the "offense occurred subsequently when, in turning in an adulterated sample, [grievant] failed to comply with the undertaking he gave on the form - a failing akin to insubordination." Id.

 The Panel ordered that the grievant be reinstated, with back pay from the date of discharge to the date of reinstatement, less eighteen months, provided that he produce a negative drug test and satisfy any requirements that may be imposed by Niagara Mohawk's Employee Assistance Program following an evaluation. Despite the Award, Niagara Mohawk has refused to reinstate the grievant or render back pay as required by the Award.

 Plaintiff commenced this action on October 13, 1995, seeking confirmation of the Panel's decision, as well as costs and reasonable attorney's fees. Defendant contends that the Award violates public policy and seeks vacatur of the Award. As stated, presently before the Court is plaintiff's motion for summary judgment to confirm the Award and dismiss defendant's counterclaim, and defendant's cross-motion for summary judgment to vacate the Award.


 Under Rule 56(c), summary judgment is warranted if, when viewing the evidence in a light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 457, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). A genuine issue of material fact is one that a reasonable fact finder could decide in favor of either party. Anderson v. Liberty Lobby, 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court is mindful that it must view the evidence in a light most favorable to the non-movant, drawing all reasonable inferences and resolving ambiguities in its favor. Anderson, 477 U.S. at 255; United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam).

 Where, as here, cross motions for summary judgment are before the Court:

neither side is barred from asserting that there are issues of fact sufficient to prevent the entry of judgment as a matter of law, against it. When faced with cross-motions for summary judgment, a district court is not required to grant judgement as a matter of law for one side or the other. "Rather the court must evaluate each party's motion on its own merits, taking care in each ...

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