The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
Local 338, RWDSU (the "Union") moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting it summary judgment and confirming an arbitration award dated December 11, 2001 (the "Opinion and Award"). Farmland Dairies, Inc. ("Farmland Dairies") opposes the motion.
The Court has considered thoroughly the record and all written submissions made in connection with this motion. For the following reasons, the Union's motion for summary judgment is granted.
The Court has jurisdiction of this proceeding pursuant to 29 U.S.C. § 185, 9 U.S.C. § 9 and 28 U.S.C. § 1337.
The following facts are uncontested.
The Union represents employees in the dairy, retail supermarket and health care industries in New York and New Jersey. (Plaintiff's Rule 56.1 Statement, at I.A.1.) Farmland Dairies employs union members as drivers. (Plaintiff's Rule 56.1 Statement at I.A. 4 and Certification of Shelly Budhar.) The Union and Farmland Dairies are parties to a collective bargaining agreement effective March 20, 2001 (the "Collective Bargaining Agreement"), which provides that any disputes between the Union and Farmland Dairies concerning the application or interpretation of the Collective Bargaining Agreement must be resolved through arbitration. (See Collective Bargaining Agreement, 34-35, Ex. A to Declaration of William Anspach "Anspach Decl.") Article 28(b) of the Collective Bargaining Agreement provides that arbitration decisions are "final and binding and conclusive upon the Employer, the Union and the employees." (Id. at 34-35.) The Collective Bargaining Agreement further provides that attorneys' fees and costs shall be awarded to the prevailing party. (Id. at 35-36.)
Article 29 of the Collective Bargaining Agreement provides as follows:
The Employer [Farmland Dairies] may utilize a total
number of owner-operators and their employees in an
amount not to exceed 25% of the number of route
drivers in the bargaining unit. The Employer may
utilize an unlimited number of owner-operators to make
(Id. at 37.)
In April of 2001, a dispute arose concerning Farmland Dairies' use of owner-operators. The parties submitted the dispute to arbitration. (See Complaint, ¶¶ 8, 9.) The parties stipulated that the issue in question was whether Farmland Dairies had complied with the above-quoted Article 29. (See Opinion and Award, Ex. B to Anspach Decl., at 1-2.)
In the Opinion and Award, the arbitrator ruled that: "[t]he Company [Farmland Dairies] has violated Article 29 of the [Collective Bargaining Agreement] by failing to maintain the proper ratio of owner-operators to employee route drivers. The Company shall fully comply with the terms of Article 29 of the [Collective Bargaining Agreement.]" (Id. at 3.)
The Union contends that Farmland Dairies has failed to comply with the Opinion and Award and alleges that, as of July 2002, Farmland Dairies' ratio of owner-operators to union drivers was 57.5%. Farmland Dairies asserts that is had made good faith efforts to comply with the Opinion and Award but that, due to circumstances beyond its control, it could not achieve the ratio set forth in Article 29 of the Collective Bargaining Agreement.
Farmland Dairies asserts that, in its efforts to comply with Article 29, it ran 25 classified advertisements seeking drivers. (See Budhar Certification, ¶ 3.) In September of 2001, Farmland Dairies informed its employees that it was searching for qualified drivers and offered a bonus to employees who recommended a person who was subsequently employed as driver. (See id. ¶ 4.) Between December 11, 2001 and September 30, 2002, Farmland Dairies interviewed 49 applicants, but only 7 persons were hired because the remaining applicants were not qualified, not interested, or rejected or did not respond to offers of employment. (See id. ¶ 5.) Farmland Dairies also sought to employ drivers from a company that had gone out of business. None of the drivers of the defunct company who were contacted by Farmland Dairies' representatives ...