1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

ROBERT (BOB) ROSS, § 

§ 

 Plaintiff/Counterclaim Defendant, § 

§ 

v. § Civil Action No. 4:22-CV-00343-Y 

§ 

ASSOCIATION OF PROFESSIONAL § 

FLIGHT ATTENDANTS, § 

MCGAUGHEY, REBER AND § 

ASSOCIATES, INC., JULIE § 

HEDRICK, AND ERIK HARRIS, § 

§ 

 Defendants/Counterclaim Plaintiffs § 

APPENDIX TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANT 

COUNTERCLAIM PLAINTIFF APFA FOR ENFORCEMENT 

OF THE ARBITRATOR’S DECISIONS IN THIS CASE 

Defendant Counterclaim Plaintiff Association of Professional Flight Attendants 

(“APFA”), by its undersigned counsel, pursuant to Local Rules 7.1(i) and 56.3((a)(2), 56.5(c) 

and 56.6, submits the following appendix to its motion and brief in support for summary 

judgment in its favor (Docs. ___ and ___) on its counterclaim (Doc. 8 at PageID 107-117) to 

confirm and enforce the decisions of the arbitrator against Plaintiff Counterclaim Defendant 

Robert Ross (“Ross”) at issue in this case. Pursuant to this Court’s requirements, the portion of 

each page of this appendix on which APFA relies in its brief in support of its motion have been 

either underlined or bracketed in the margin. 

TAB DESCRIPTON APFA APP. 

PAGES 

A Constitution and Policy Manual of the Association of Professional 

Flight Attendants (Excerpts) 

001 – 019 

B Arbitrator’s Decision issued on March 19, 2022 020 – 043 

C Arbitrator’s Supplemental Decision issued on August 24, 2022 044 – 046 

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D Ross’s Post-Hearing Brief to the Arbitrator 047 - 048 

E Ross’s Resignation as San Francisco (SFO) Base President 049 

F Non-Published Cases (Lexis or WestLaw) 

Allied Waste Systems Inc. v. Teamsters Local 767, 2007 U.S. 

Dist. LEXIS 43035, 2007 WL 1703634 at *11-13, 19-21 

(N.D. Tex. 2007) (J. Means) 

Ball Metal Container Corp. v. UAW Local 129, 2022 U.S. 

App. LEXIS 33214, 2022 WL 340573 at *7-8 (5th Cir. 2022) 

(unpublished). 

Bldg. Materials Mfg. Co. v. Steelworkers, 2020 U.S. Dist. 

LEXIS 37075, 2020 WL 1047895 at *7-8 (N.D. Tex. 2020)

Hampton v. Int’l Longshoreman’s Ass’n, 2017 U.S. Dist. 

LEXIS 218154 at *5-6 (S.D. Tex. 2007). 

050 – 057 

058 – 070 

071 – 077 

078 - 083 

Date: September 20, 2022 Respectfully Submitted, 

/s/ Sanford R. Denison

SANFORD R. DENISON 

Tex. Bar No. 05655560 

Baab & Denison, LLP 

6301 Gaston Ave., Suite 550 

Dallas, TX 75214 

Tel.: (214) 637-0750 

Fax.: (214) 637-0730 

Email: denison@baabdenison.com 

WILLIAM W. OSBORNE JR.* 

D.C. Bar No. 912089 

Osborne Law Offices P.C. 

5335 Wisconsin Avenue N.W., Suite 440 

Washington, D.C. 20015 

Tel.: (202) 243-3200 

Fax: (202) 686-2977 

Email: b.osborne@osbornelaw.com 

Counsel for Defendant Counterclaim Plaintiff 

Association of Professional Flight Attendants, and 

Defendants Julie Hedrick and Erik Harris 

*Admitted Pro Hac Vice

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CERTIFICATE OF SERVICE 

I certify that on this 20th day of September 2022 a true and correct copy of the foregoing 

document was served on the below listed counsel of record by a means permitted by Rule 5(b)(2) 

of the Federal Rules of Civil Procedure (“F.R.C.P.”). 

KERRI PHILLIPS 

HEATHER ABREU 

K.D. Phillips Law Firm, PLLC 

5700 Tennyson Parkway, Suite 300 

Plano, Texas 75024 

Phone: (972) 327-5800 

Fax: (940) 400-0089 

Email: kerri@KDphillipslaw.com 

Email: Heather@KDphillipslaw.com

MICHAEL R RAKE 

Michael R. Rake, Attorney at Law 

PO Box 1556 

Lake Dallas, TX 75065 

Tel.: (940) 498-2103 

Fax: (940) 498-2103 

Email: mrake1@mrakeattorney.com 

/s/ Sanford R. Denison

SANFORD R. DENISON 

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Exhibit A 

Constitution and Policy Manual of the APFA (Excerpts) 

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Exhibit A

APFA App. 001

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APFA App. 002

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APFA App. 003

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APFA App. 004

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APFA App. 005

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APFA App. 006

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APFA App. 007

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APFA App. 008

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APFA App. 009

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APFA App. 010

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APFA App. 011

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APFA App. 012

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APFA App. 013

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APFA App. 014

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APFA App. 015

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APFA App. 016

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APFA App. 017

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APFA App. 018

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APFA App. 019

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Exhibit B 

Arbitrator’s Decision issued on March 19, 2022 

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In the Matter of Arbitration Between__ 

) 

Melissa Chinery ) 

Sandra Lee ) RE: Article VII Charges 

) Violations of APFA Constitution 

APFA Charging Party Members ) and APFA Policy Manual 

(Plaintiff) ) 

) 

And ) 

) 

Robert Ross, Former APFA National ) 

President ) 

) 

APFA Charged Party Member ) 

(Defendant) ) 

) 

__________________________________ 

Before: Alternate Article VII Arbitrator Ruben R. 

Armendariz 

Place and Dates of Hearing: The Westin Irving Convention Center at Las 

Colinas, 400 West Las Colinas Boulevard, 

located in the City of Irving, Texas.

June 16, 2021, continued to November 17 and 18, 

2021 

Appearances: 

For Charging Party Members: Melissa Chinery, Representative 

(Plaintiff’s) Sandra Lee, Representative 

For Charged Party Member: Kit Gomez Alba, Esq. 

(Defendant) Gina Guidry, Representative 

Robert Ross, Representative 

Exhibit B

APFA App. 020

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INTRODUCTION 

This is an Article VII Hearing that was heard at the Westin Irving Convention Center at 

Las Colinas, Irving, Texas on June 16, 2021 and continued to November 17 and 18, 2021. The 

arbitration hearing was transcribed by Carson Reporting & Associates. 

Charging Party Melissa Chinery and Sandra Lee, will be hereinafter referred to as the 

“Plaintiff.” Charged Party Robert Ross, will be hereinafter referred to as the “Defendant.” 

Plaintiff presented for testimony Cathy Lukensmeyer, Erik Harris, Michael Trapp, John 

Nikides and Melissa Chinery. 

Defendant presented for testimony Casey Veloso, Anthony Thuriault and Robert Ross. 

All of these witnesses were afforded full opportunity to be heard, to be examined, and to 

be cross-examined. The parties were allowed to introduce evidence on the issues. Based on the 

entire record, my observation of the witnesses, examination of the evidence, exhibits presented, 

post-hearing briefs1 submitted, and arguments presented therein, this arbitrator makes the 

following findings and renders the following Discussion, Opinion, and Award. 

THE ISSUES 

Plaintiff submits the issue to be addressed by the Alternate Article VII Arbitrator is stated 

as follows: 

Did Bob Ross, the Defendent herein violate the APFA Policy Manual and the 

APFA Constitution by engaging in malfeasance, fraud, misappropriation of funds 

while he was in office during the term of April 1, 2016 to March 2, 2018. If so, 

what shall be the appropriate remedy? 

Defendant submits the issue to be addressed by the Alternate Article VII Arbitrator is stated as 

follows: 

Whether the Plaintiff’s allegations raised against him are true or false? Did former 

National President Ross knowingly or “willfully” violate any express Article of the 

APFA Constitution or Policy Manual? If so, what is the appropriate remedy? 

FACTS 

The facts in this matter center on Defendant Ross assuming office as the APFA National 

President and moving to Dallas, TX during the months of April 2016 through October 2016. 

1

 The parties agreed to submit post-hearing briefs by e-mail to arbruben@gmail.com on January 31, 2021 and extended 

to February 18, 2021. The post-hearing briefs were timely emailed and received. Thus, the arbitrator finds the record 

in this matter closed on February 18, 2021. 

APFA App. 021

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Defendant Ross is alleged to have misused the APFA credit card on several matters during his 

term in office. 

Plaintiff alleged in the Article VII grievance and heard are described as follows: 

Defendant is charged with eight (8) specific violations of the Policy Manual and the APFA 

Constitution. 

(1) Misuse of Credit Card:

As APFA National President, Plaintiff Ross was provided an APFA credit card. 

a. Defendant Ross spent thousands on purchasing sheets, blankets, pillows, 

mattresses, furniture as well as smaller items such as toilet paper and candy. 

b. Defendant Ross purchased over $3600 in furniture on his APFA credit card and had 

it delivered to his personal residence in South Lake, Texas. 

c. Defendant Ross charged an APFA rental truck in August 2016. 

(2) Rental Car: 

Defendant Ross is charged with billing APFA for a rental car for six months at a cost of 

over $6200.00 Ross was considered living in the DFW area and was not entitled to a 

rental car. 

(3) Reimbursement: 

Defendant Ross claimed mileage that he was not entitled to, including the period when he 

had a rental car. 

(4) SAF/MEA and meal expenses--Change of formula to include Meal Expense 

Allowance (MEA) and Special Assignment Fee (SAF): 

Defendant Ross and his fellow officers changed the longstanding formula for Vacation 

reimbursement. Defendant Ross also violated the detailed language of the APFA expense 

policy by charging thousands of dollars of unauthorized meals to his APFA credit card. 

(5) Payout of Vacation-Change of Formula to include MEA and SAF and an office stipend 

in with wages when considering the reimbursement of sick and vacation time. This was 

discovered when the pay for the Vice President, Secretary and Treasurer was looked at 

more closely by the next administration long after the Ross Administration had left office. 

(6) Maintaining an Office: 

Defendant Ross claimed thousands for maintaining an office he was not entitled to. 

(7) Payout of Vacation Days: 

Defendant Ross received compensation for expense payments beyond his term in office. 

(8) Buyout: Defendant Ross collected compensation in two forms. (1) MEA and SAF (2) 

Maintaining an office outside Residence. 

Defendant argued at the hearing that these Article VII charges were filed by the Charging 

Party (Plaintiff) as a weapon against Ross and the Officers of the Ross Administration. 

This matter was submitted to this Alternate Article VII Arbitrator to make a decision on 

the charges cited herein. 

APFA App. 022

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THE RELEVANT PORTIONS OF THE APFA CONSTITUTION AND POLICY 

MANUAL 

THE APFA CONSTITUTION 

Article I. Section 7. DEFINITIONS: 

As used in this Constitution, the following words or terms shall mean: 

E. "Duty" means an obligation of performance, care or observance 

which rests upon a person in any position or fiduciary capacity with 

or as a member of the APFA. 

M. "Privilege" means a benefit or advantage enjoyed by a person in 

any position or fiduciary capacity with or as a member of the APFA. 

O. "Responsibility" means an obligation to answer for a duty to act or a 

failure to act by a person in any position or fiduciary capacity with or as 

a member of the APFA. 

Q "Rights" means those powers and/or privileges inherent to a person 

in any position or fiduciary capacity with or as a member of the 

APFA. 

Article II. Section 2. OBLIGATIONS OF MEMBERS: 

Members of the Association do accept and agree to abide by this Constitution 

of the APFA as it is in force or as it may be altered, added to, deleted from, or 

amended in accordance with the provisions of this Constitution. Ignorance of 

this Constitution will not be considered a proper excuse for any violation of the 

provisions contained herein. Inherent in the rights, privileges, duties, and 

responsibilities of membership in the APFA is the obligation to responsibly 

exercise these rights, privileges, duties, and responsibilities. 

Section 3. BILL OF RIGHTS OF MEMBERS 

B. All members of the APFA shall have access to all administrative and 

financial reports and records except as provided in Section 5.B(1) of 

this Article II. 

Article III, GOVERNMENT OF THE APFA 

Section 3 Board of Directors

A. The Board of Directors is authorized and empowered to take any and all 

lawful action consistent with this Constitution to safeguard and protect 

the APFA, and the rights and privileges, duties and responsibilities of 

the officers, representatives and members of the APFA. The Board of 

Directors is authorized to interpret this constitution and to establish, 

prescribe and adopt such other policies which may be consistent with 

this constitution as required for the direction and management of the 

affairs of the APFA. 

APFA App. 023

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L. Jurisdiction and Duties: The Board of Directors shall have the following rights, 

privileges, duties and responsibilities; 

1. Set policy for the APFA; 

2. Modify the APFA Policy Manual as it deems appropriate; 

3. Approve the annual budget; 

4. Set annual goals for the APFA as it deems appropriate; 

5. Assign to each Ad Hoc Member of the Executive Committee those Presidents 

with whom s/he shall maintain regular contact and communication; 

6. Determine the number of administrative, committee, and support positions as 

may be required under Article IX of this Constitution to meet the needs of the 

membership; 

7. Nominate and appoint members of the National Balloting Committee and 

Budget Committee when appointments are appropriate; 

8. Review the base assignment of any OAL Operation or satellite and, when 

necessary alter operation or satellite assignments. 

While not limited to the following, the Board of Directors may: 

9. Review the dues structure of the Association; 

10. Override the Executive Committee rejection of a proposed Collective 

Bargaining Agreement; 

11. Establish the Regions and the National Vice President will assign the 

Regional Representatives; 

12. Establish, combine, delete or change the duties, responsibilities and specific 

job descriptions of administrative, committee and support personnel in 

accordance with the provisions of Article IX of this Constitution for budgetary 

or policy reasons, taking into consideration the recommendations of the 

National Officers; 

13. Direct special mailings to the membership; 

14. Recognize the accomplishments and achievements of members of the APFA; 

15. Give annual awards; 

16. Confer Honorary membership; 

17. Approve hardship dues forgiveness and review other hardship requests that 

may be brought before the Board; 

18. Appoint special committees; 

19. Appoint or change the Article VII Arbitrator or Alternate Article VII 

Arbitrator(s); 

20. Approve Article VII administrative changes; 

21. Suspend officers or representatives pursuany to Article VII; 

22. Take any and all appropriate action deemed necessary by the Board and in 

accordance with this Constitution to promote the welfare of the members of 

the APFA, and this shall include the right to reverse an action or decision of 

the Executive Committee, National Officers or other representatives, except as 

provided in this Article III, Section 4.J.11 or Article VIII, Section 6.Bof this 

Constitution. 

Article VII. Section 1. Grounds For Charges: 

APFA App. 024

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Any member is subject to fine, suspension or expulsion, or suspension from or 

removal from office, for any of the following acts: 

A. Failure to pay dues, assessments or penalties levied by the Association. 

B. Advocating, or working toward, the displacement of the APFA as 

bargaining representative (providing that advocating, or working toward an 

affiliation, merger or federation of the APFA pursuant to Article XII of this 

Constitution shall not be grounds for discipline); 

C. Willfully acting as a strike breaker during any work stoppage duly 

authorized by the Association; (1) Notwithstanding Section 1.C., above 

(which provides as a grounds for charges willfully acting as a strike breaker 

during any work stoppage duly authorized by the Association) APFA shall 

not process any charge of willfully acting as a strike breaker during the 

November 1993 strike against American Airlines. 

D. Willful violation of a Flight Attendant's Collective Bargaining Agreement 

E. Theft or embezzlement of Association monies or property 

F. Willful violation of an express Article of this Constitution, or of a proper 

and express written resolution or policy of the Board of Directors or the 

Executive Committee 

G. Willfully acting in a manner that causes the Association to violate its legal 

obligations; or 

H. Willfully bringing charges without reasonable basis against another 

member, officer, or representative of the Association, should such charges 

be dismissed for any reason by the Article VII Arbitrator designated herein, 

or should such charges not be sustained by the Article VII Arbitrator. 

APFA POLICY MANUAL 

Section 5.G.1. Trip Removal and Expense Policy – Other Expenses 

1. Actual out-of-pocket expenses incurred by a member in conducting APFA 

business will be reimbursed to the extent provided in this policy. In all cases, 

receipts must be submitted to verify the expense and to substantiate 

reimbursement. Expense reimbursement is not intended to be for the 

personal profit of the APFA member, but to compensate him / her for actual 

expenses and losses and is exclusive of other applicable reimbursement 

provisions in this policy. 

Section 5.F.5.a. Trip Removal and Expense Policy–Meal Expense/Allowance 

APFA App. 025

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a. Representatives are authorized to pay for and to be reimbursed for the meal, 

snack or beverage of a guest(s) or other business associate(s) on those 

occasions when the representative would reasonably be considered the host 

of an authorized APFA function or meeting. 

(1) Discretion and good judgment should be used when exercising this privilege 

and when incurring such legitimate and necessary Business-Related 

Expense. Abuse, as determined by the Executive Committee, may lead to 

limitation or revocation of this privilege. 

(2) The reimbursement of a Business-Related Expense shall not count against 

a representative's MEA. 

Section 5.H. Relocation 

1. Upon assuming office/appointment, National Officer(s)/Chairs shall 

be expected and, for the purpose of this policy, shall be considered 

to reside in the DFW area. The DFW area, for purposes of this 

policy, shall not exceed a seventy-five (75) mile radius from APFA 

Headquarters. 

2. If, on the date of his/her election, a National Officer does not reside 

in the DFW area, s/he shall be reimbursed for actual moving 

expenses for relocation from/to his/her place of permanent primary 

residence by a certified mover as a condition of employment with 

the APFA, to a maximum of ten thousand ($10,000) per round trip 

move. 

a. The provisions of H.2 above must be exercised within six (6) 

months following the end of the last term of office of the 

National Officer and must be substantiated by invoice or bill. 

3. A National Officer may choose not to relocate to the DFW area but 

may, instead, choose to accept suitable furnished accommodations 

paid for by the APFA as provided in H.7. below. If a National 

Officer accepts such accommodations in lieu of relocation expenses 

as provided in H.2. above, the following will apply: 

.... 

7. Incoming National Officers incoming and other Representatives 

shall normally be able to use outgoing National Officers or 

Representatives furniture and furnishings rather than replace these 

items with each change of National Officer or Representative, 

subject to the right to reasonably refuse furniture and furnishings. 

PLAINTIFF’S ARGUMENT 

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Plaintiff argued the violations center on Defendant Ross assuming office as the APFA 

National President and moving to Dallas, TX during the months of April 2016 through October 

2016. Defendant Ross misused the APFA credit card on several matters during his term in office. 

The APFA Policy Manual provides that National Officers will be provided up to $10,000 in 

moving expenses or, provided they can demonstrate a permanent residence outside of DFW, the 

officer can get a corporate apartment furnished by APFA. Defendant Ross leased an apartment at 

the Bear Creek complex on June 1, 2016, thus he chose both options for relocation when he is only 

to choose one option. Defendant Ross purchased $3600 of furniture from Ashley Furniture to be 

delivered to his home in South Lake, Texas. Defendant Ross had a rental car for six months at a 

cost of $6,200.00. He was living in the DFW area and was not entitled to a rental car. Defendant 

Ross claimed mileage when he was not entitled to claim mileage. Defendant Ross and his fellow 

officers changed the longstanding formula for Vacation reimbursement. Defendant Ross violated 

the detailed language of the APFA expense policy by charging thousands of dollars of 

unauthorized meals to his APFA credit card. The change of formula to include MEA and SAF with 

an office stipend in wages when considering the reimbursement of sick and vacation time. This 

was discovered when the pay for the Vice President, Secretary and Treasurer was looked at more 

closely by the next administration long after the Ross Administration had left office. Defendant 

Ross claimed for maintaining an office he was not entitled to. Defendant Ross received 

compensation for expense payments beyond his term in office. Defendant Ross collected 

compensation in two forms. (1) MEA and SAF (2) and maintaining an office outside Residence 

when he was not working. 

DEFENDANT’S ARGUMENT 

Defendant Ross argued the alleged violations were the direct result of the “Ross Transition 

Agreement.” Defendant argued that charged violation No. 5: Payout of Vacation, Charged 

Violation, No. 6: Maintaining an Office, Charged Violation No. 7: Payout of Vacation Days and 

Charged Violation No. 8: Buyout are a part of the Transition Agreement (TA). 

Defendant Ross argued the “Ross Transition Agreement” was deemed to be a legally 

authorized by Arbitrator Valverde in the Arbitration case, Moyer vs BOD (2018) dated September 

21, 2021. Arbitrator Valverde ruled the dispute that Ross received a benefit was “without merit.” 

The charges in that case were dismissed. Defendant argued that it stands to reason the accusers 

(Plaintiff) would have no claim that Defendant Ross received a benefit from the “Ross Transition 

Agreement” that he was not entitled to and any alleged violation stemming from his acceptance of 

the agreement, should be dismissed. 

Defendant Ross argued the arbitrator, designated in these Article VII proceedings, has the 

jurisdiction and authority to rule on the validity of charges and the remedy sought by the Plaintiff 

to the allegation. Did former National President Ross knowingly or “willfully” violate an express 

Article of the APFA Constitution or Policy Manual, and did Ross “willfully” violate any express 

Article of the Constitution and/or Policy Manual when he accepted the terms of the “Ross 

Transition Agreement”? The arbitrator also has the jurisdiction and authority to dismiss the Article 

VII Charges against the Defendant. 

APFA App. 027

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Defendant Ross argued with respect to the misuse of the APFA credit card that multiple 

alleged purchases violated Policy Manual 5.G – Business Related Expenses. Defendant argued 

Business Related Expenses are actually defined in Policy Manual Section 5.F.5. Section 5.G, 

“Other Expenses” where it states, 

5.G Other Expenses – Actual out-of-pocket expenses incurred by a member 

conducting APFA business will be reimbursed to the extent provided in this policy. 

In all cases, receipts must be submitted to verify the expense and to substantiate 

reimbursement. Expense reimbursement is not intended to be for personal profit of 

the APFA member, but to compensate him/her for actual expenses and losses and 

is exclusive of other applicable reimbursement provisions in this policy. 

Defendant Ross argued the Plaintiff cited the wrong policy in their support of these charges, 

evidence of their lack of understanding the process and policy. No purchases were made on the 

APFA union credit card were submitted for reimbursement on the weekly/monthly expenses. 

Receipts were submitted for each credit card charge and reviewed per policy by the appropriate 

accounting and legal departments. Plaintiff admitted they did not review any other administrations 

union credit card charges for similar purchases or past practice or for expenses when said officers 

relocated to DFW. 

Defendant Ross argued with respect to the misuse of a Rental Car was billed to the National 

President’s department during the timeframe according to the Plaintiff allegation, is coincidental 

to the timeframe of the Ross relocation, but was not as a condition of the relocation. 2016 APFA 

Policy Manual Section 5.H – Relocation – was silent on the use of rental cars in connection with 

or during the timeframe of a relocation. This issue was previously reviewed by the APFA BOD at 

the time the email was sent to the National Treasurer in March 2019. The APFA BOD and Budget 

Committee members tasked with this review took no action on this matter and the issue was closed. 

Defendant argued that several rental cars were rented through the President’s office for numerous 

representatives during this time frame and not specifically to Bob Ross for personal use. 

Department representatives having access to rental cars during this timeframe included, but is not 

limited to, uniform committee members, toxic fume events and other committee representatives. 

At no time did the Plaintiff cite evidence that a rental car was provided for Ross’ sole personal use. 

Defendant Ross argued with respect to mileage the following that he did not fail in his 

responsibility to act in accordance with the APFA Policy Manual by citing a violation of Section 

5.G. – Other Expenses / Mileage. 

5.G.1.b. (1).(a) Mileage: 

[2]. Mileage shall not be reimbursed for travel between the representatives’ residence and 

an APFA office that has been provided for the primary use of the representative for a 

period in excess of 31 days. 

Defendant Ross states that the Plaintiff have formed their own theory and alleged that 

former APFA National President, Bob Ross is in violation for claiming mileage for attending 

meetings with the Company or claiming mileage for any event outside of APFA headquarters 

while conducting APFA business while using a rental car. At no time did Ross file for 

reimbursement for mileage from his residence to the APFA headquarters. The Plaintiff did not 

APFA App. 028

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present evidence that Ross claimed a mileage reimbursement while using a rental car and not his 

own vehicle. Defendant Ross submits Section 5.G.b.1.a.1., is silent on a specific vehicle to be used 

in the reimbursement of mileage. At any given time, an APFA Representative could be subject to 

using their personal vehicle or a “Rental Car” for conducting APFA business. 

Defendant Ross argued with respect to SAF/MEA and meal expenses that he did not fail in 

his responsibility to act in accordance with the APFA Policy Manual by citing a violation of 

Section 5.F: Business Related Expenses. He states that the APFA had no policy on how to 

differentiate or separate any amounts from the guaranteed MEA/SAF totals when National 

Officers, Regional Representatives, National Chairs, or other Representatives, who are authorized 

a full month trip removal pay and are receiving guaranteed stipends of MEA/SAF and are 

considered a host of an authorized APFA meeting. APFA also had no policy in place until 2021, 

for a National Officer in relation to one’s union credit card practice. 

Special Assignment Fee (SAF) Policy: 

The intent of the SAF is explained in Section 5.E.1 

5.E.1.a. – The intent of the Special Assignment Fee (SAF) is to offer payment to the representatives 

for the days that they conduct APFA business in excess of their normal scheduled bid line. 

Amounts paid under this arrangement are reportable as wages on the representative’s W-2 and are 

subject to withholding and payment of employment taxes. 

5.E.4.a.(1) – If a Representative performs work for the APFA, and is not otherwise paid for that 

day’s work by means of an APFA Paid Trip Removal.......such representative shall receive the 

Daily SAF for work performed in accordance with the following schedule. 

Calculation for the National Officers’ SAF is specifically delineated in Section 5.E.4.c – SAF 

Rates – Monthly – 

(c)National Officers and Regional Representatives: $400 minimum, but not to exceed $500 

maximum. 

Meal Expense/Meal Expense Allowance (MEA) 

Defendant Ross argued with respect to the payout of vacation that he did not fail in his 

responsibility to act in accordance with the APFA Policy Manual by citing a violation of 5.E.4 

Special Assignment Fee (SAF) above and 5.F.1 Meal Expense Allowance (MEA) rates. 

Guaranteed MEA at Residence is explained in Section 5.F.3.a 

5.F.3.a – On days a representative is both trip removed and performing work for the APFA at 

his/her residence city, such representative will receive a “Guaranteed MEA at Residence” in lieu 

of any actual MEA at residence as provided in F.2. 

APFA App. 029

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5.F.3.d – National Officers, Regional Representatives, National Chairs and other representatives 

who are authorized full month trip removal or the equivalent shall receive a “Guaranteed MEA at 

Residence” of Three Hundred dollars ($300) per month. 

Section 5.F.4.a – Calculation of MEA 

National Officers, Regional Representatives, National Chairs and other representatives who are 

authorized full month trip removal or the equivalent (e.g. “Payback as provided in D above) shall 

receive a minimum MEA of Three Hundred dollars ($300) per month 

Maintaining an Office Outside of Residence (MOOR) 

Maintaining an Office outside of residence is required of APFA President, as the office is located 

and maintained at APFA Headquarters and is paid in addition to SAF. 

5.E.4.c.(3).(a) – A National Officer, Regional Representative, National Chair, Base President 

and/or Base Vice-President who is required to maintain an APFA office outside of his/her place 

of residence shall be paid an additional two hundred fifty dollars ($250) per month over and above 

the minimum monthly SAF provided above, or the actual SAF subject to reimbursement, 

whichever is greater. 

5.F.1.a.(1) – Per Diem Rate (Accountable Plan) 

(1) All members shall be entitled to an APFA Meal Expense Allowance (MEA) while 

performing work for the APFA. Also required for the purposes of calculating how much Special 

Assignment Fee (SAF) an officer receives, it is imperative that the officer fill out the required 

weekly paperwork that would ascertain how many hours were worked for the APFA. 

Defendant Ross argued that all payouts and formula used to calculate the payout for 

vacation, sick and end of term buyout of accrued and unused Sick and Vacation days occurred 

after former APFA President Ross had left office and was the product of a Transition Agreement 

and not specific to APFA Policy. Through sworn testimony, former APFA National Treasurer, 

Eugenio Vargas, used full salary vs basic salary in these calculations, which include MEA and 

SAF in compliance with the terms of the controlling document, the Ross TA. 

Defendant Ross argued that a National Officer or Regional Representative on a full month 

trip removal shall receive per policy a $500 maximum of SAF payment. National Officers, 

Regional Representatives, National Chairs and other APFA Representatives on a full month trip 

removal shall receive a minimum Guaranteed MEA of $300 per month. Each National Officer, per 

policy, each month received the guaranteed amount of $1050 ($500 SAF, $300 MEA and $250 

MOOR) in addition to basic salary. This amount was determined by the APFA Accounting 

Department. and was the combined stipend included as Salary and Benefits per the Ross TA used 

by the former APFA Treasurer, after Ross left office, to calculate the daily rate of unused Sick and 

Vacation Days that Ross was not allowed to use during his final 5 months as National President to 

“make him whole.” These amounts were paid after Ross left office and as a condition of the Ross 

TA. It is irrational for the Plaintiff to request that weekly timesheets were required to receive these 

payments for the months after Ross left office. 

APFA App. 030

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Defendant Ross argued that on January 14, 2022, an APFA document surfaced that was 

withheld from document retrieval that corroborates the Policy Manual was not the controlling 

document to the Ross TA and therefore Ross was paid in compliance with the TA. This document 

would have been exculpatory to the defense of Mr. Ross on this and other matters pertaining to the 

Ross TA had it been provided. 

Defendant Ross with respect to “maintain an office outside of residence” that he did not 

fail in his responsibility to act in accordance with the APFA Policy Manual by citing a violation 

of Section 5.E.3 Maintaining an Office Outside of Residence. The maintaining an office outside 

of residence is required of APFA President, as the office is located and maintained at APFA 

Headquarters and is paid in addition to SAF. 

5.E.4.c.(3).(a) – A National Officer, Regional Representative, National Chair, Base President 

and/or Base Vice-President who is required to maintain an APFA office outside of his/her place 

of residence shall be paid an additional two hundred fifty dollars ($250) per month over and above 

the minimum monthly SAF provided above, or the actual SAF subject to reimbursement, 

whichever is greater. 

Defendant Ross argued that each National Officer, per policy, each month received the 

guaranteed amount of $1050. This amount included $500 for SAF, $300 for MEA and $250 for 

office outside of residence. This amount was determined by the APFA Accounting Department 

and provided to all National Officers as part of their salary. This charge also should be dismissed 

as Ross did not pay himself the payments under the terms of the Ross TA. 

Defendant Ross argued with respect to the payout of vacation days that he did not fail in 

his responsibility to act in accordance with the APFA Policy Manual by citing a violation of 

Section 6.B.1: National Officer Salary and Benefits. Defendant Ross states that any change to the 

formula used to calculate the payout for vacation, sick and end of term buyout occurred after 

former APFA President Ross had left office. Through sworn testimony, former APFA National 

Treasurer, Eugenio Vargas, used full salary vs basic salary in these calculations, in compliance 

with the Ross TA. 

Defendant Ross argued the Ross Transition Agreement stated Ross would be paid any 

and all accrued and unused sick and vacation from April 1, 2016 – July 31, 2018. The calculation 

of the unused days was to be paid as though Ross was able to use any of those days while in 

office as President for his remaining 5 months had he not resigned. There was no agreement that 

these days were to be paid per Policy as the Plaintiff insists. An investigation into the payout of 

the Sick and Vacation days paid, brought about by Plaintiff’s allegations that it was discovered 

Ross was not properly paid “All” of his accrued and unused Sick days from April 1, 2016 – July 

31, 2018. Ross earned and did not use 18 Sick days in each of the fiscal years April 2016-March 

2017 and April 2017-March 2018. Ross was only paid Per Policy 6.B.3.d Offset/Loss of Sick 

Time, of 12 days for each fiscal year. The additional 12 days, (6) days Apr. 2016-2017 and (6) 

days Apr. 2017-2018 have still not been acknowledged or paid to Ross in accordance with the 

Ross TA. The value of these lost Sick days, depending on the calculation used, is in excess of 

$3400 still owed to Ross. 

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Defendant Ross argued that he received a buyout but it is cited as the Ross Transition 

Agreement. The charging party submits that Ross collected more money than if he had remained 

in office for the four (4) months left in his term. However, once Ross left office, he asked for and 

collected from the APFA compensation in two forms he was not entitled to per the “agreement.” 

One form of compensation which he received every month was MEA and SAF and Maintaining 

an Office Outside Residence. Mr. Ross continued to collect one thousand and fifty dollars ($1050) 

a month.” 

“He collected these payments for the months of: March, April, May, June and July of 2018. This 

stipend is clearly hinged on reimbursement related to work and not part of the National Officer 

salary. To accept this money is in clear violation of the intent of the Policies written that allows a 

representative extra compensation for working hours above and beyond their scheduled workload. 

By taking this money this is another violation of the Section 5 policies outlined above.” 

Defendant Ross argued in Item no. 3 of the Ross Transition Agreement states “APFA 

agrees that Ross will continue to receive from APFA his current full salary and benefits, including 

full insurance coverage, through July 31, 2018. Full Salary for a National Officer, per the APFA 

Policy Manual, Section 5 entitles the officer to receive guaranteed MEA, SAF, and Office Outside 

of Residence payment. This guaranteed payment is $1050, which is considered gross wages and 

recorded in “Box 1” of the National Officers W-2 tax form. 

Defendant Ross argued that former APFA National Treasurer Vargas has stated in sworn 

testimony he used full salary vs basic salary for all calculations in compliance with the Ross 

Transition Agreement. This full salary calculation would include the benefits of MEA, SAF and 

any accrued and unused sick and vacation that he would have coming to him as President for those 

5 months (4/1/16-7/31/18), as if he remained in office. 

DISCUSSION AND OPINION 

Defendant Ross assumed office on April 1, 2016 as National President of the APFA. In 

that position he is entrusted with a Fiduciary duty to the APFA for cost and expenditures. This 

report revealed that Defendant Ross abused his fiduciary duty to the members of the APFA. The 

arbitrator has consolidated certain violations in this report. 

1. Misuse of the APFA Credit Card and 

2. SAF/MEA and Meal Expense Policy 

Plaintiff argued in these allegations that Defendant Ross moved into the South Lake home 

during the week of August 11, 2016. Defendant Ross used the APFA credit card for his personal 

use and was not for any Union related business activities and abused his fiduciary duty to the 

APFA. He charged the renting of a moving truck on August 20, 2016 to move furniture after being 

reimbursed for moving his belongings from Sacramento. He has purchased tools, sheets, blankets, 

pillows, mattresses, furniture and even smaller items such as toilet paper and candy. None of the 

larger items were ever inventoried or returned to the APFA upon cessation of his term of office. 

Defendant Ross elected to relocate to the DFW area and was afforded a moving expense 

reimbursement, he was not entitled to buy any furnishings using APFA funds. Plaintiff argued 

Defendant Ross violated Section 5.G. Other Expenses of the Policy Manual. Kim Ross, wife of 

APFA App. 032

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the Defendant packed up the California house in August 2016. Defendant Ross’s wife and kids 

stayed in 5 different hotels as they drove across the country, including vacation stops at the Grand 

Canyon and Flagstaff. They used the union credit card for these hotels, except for one hotel stay 

on August 2nd that Ross expensed in his weekly report to the APFA. It also appears in the 

documentation that APFA paid for all of Ross’s family meal expenses. (CLX-17, CLX-37, and 

CLX-42) All of these expenses were billed to APFA as part of the cost of moving the Ross family 

from California to Texas. Defendant Ross was not present for any of these hotel stays. 

The arbitrator finds that if his family was driving directly from California to Dallas, Texas, 

the APFA would not have incurred additional costs for hotels, meals and mileage. It appears APFA 

paid for Ross’s family vacation in the Grand Canyon with Defendant Ross’ APFA credit card. The 

cost of this vacation to include meals and hotels should be borne by Defendant Ross. This is an 

abuse of Ross’s fiduciary duty to the APFA membership. This is a per se violation of the Policy 

Manual. 

On August 9, 2016 Defendant Ross bought tools at Home Depot on the APFA credit card. 

On this same date, the APFA handyman delivers APFA furniture to the South Lake home. (CLX4). On August 12, 2016 the moving pods that Ross had rented arrived to the South Lake house. On 

this same date, Defendant Ross charges $64.30 for gas at Shell Oil in South Lake on the union 

credit card and bills it to the move but he also claimed mileage and was paid. On August 13, 2016 

Defendant Ross purchased $3,637 in furniture on the APFA credit card from Ashley Furniture 

(CLX-40) and had it delivered to his personal residence at the South Lake home. The furniture 

was delivered to Kim Ross at the South Lake home in two installments – on August 18, 2016 and 

August 25, 2016. Defendant Ross claimed the family did not move until September 2016 but the 

record evidence clearly revealed they actually moved in August, 2016. A couple of bed frames and 

small items were returned costing $331.28 to Ashley Furniture on August 24, 2016 (CLX-40). 

John Nikides testified that Defendant Ross was ordered by APFA to repay $3600.00 to APFA for 

this furniture and he did so through payroll deduction. Here, Defendant Ross abused his fiduciary 

duty to the members of the APFA. 

Plaintiff argues Defendant Ross used the APFA credit card for his own personal use. 

Several meals were charged on the credit card and the participants were National Officers, the 

Officers and their Regional Representatives as well as himself eating alone. This violates Section 

5.F. Meal Expenses/Meal Expense Allowance (MEA), 5. Business Related Expenses, a.1.2. 

Plaintiff argues this violates the following: 

Section 5 Business Related Expenses: 

a. Representatives are authorized to pay for and to be reimbursed for the meal, 

snack or beverage of a guest(s) or other business associate(s) on those 

occasions with a representative would reasonably be considered the host of an 

authorized APFA function or meeting. 

1. Discretion and good judgment should be used when exercising this privilege and 

when incurring such a legitimate and necessary business-related expense. Abuse, 

as determined by the executive committee, may lead to the limitation of revocation 

of this privilege. 

APFA App. 033

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2. In no case may an individual who is otherwise receiving an APFA MEA in any 

manner be considered the “guest” for the purposes of this provision. 

Section 5.G of the Policy Manual provides the following: 

Actual out-of- pocket expenses incurred by a member in conducting APFA business 

will be reimbursed to the extent provided in this policy. In all cases, receipts must 

be submitted to verify the expense and to substantiate reimbursement. Expense 

reimbursement is not intended to be for the personal profit of the APFA member, 

but to compensate him /her for actual expenses and losses, and is exclusive of other 

applicable reimbursement provisions in this policy. 

Additionally, the items Defendant Ross purchased were for his personal benefit such as dry 

cleaning, trips to the gas station, 7-eleven, and a monthly GOGO internet subscription. 

Plaintiff argued Defendant Ross violated the Meal Expense provisions of the APFA Policy 

Manual during his term in office. Ross claimed per diem and actual meals. He used the APFA 

credit card for meals at fast food restaurants by himself. As a National Officer Defendant Ross 

received a guarantee MEA ($300.00 per month). The APFA Policy Manual does not permit 

National Officers to charge actual meals in their city of residence. National Officers are provided 

Guaranteed MEA instead of actual meal expense. There are no provisions for National Officers to 

receive actual meals. Actual meals are covered in F.2 of the Policy Manual and do not include the 

National Officers or other full-time representatives nor is there a working lunch exception. The 

only time an APFA National Officer can purchase actual meals is the hosting exception. 

Defendant Ross argued with respect to SAF/MEA and meal expenses that he did not fail in 

his responsibility to act in accordance with the APFA Policy Manual by citing a violation of 

Section 5.F: Business Related Expenses. He states that the APFA had no policy on how to 

differentiate or separate any amounts from the guaranteed MEA/SAF totals when National 

Officers, Regional Representatives, National Chairs, or other Representatives, who are authorized 

a full month trip removal pay and are receiving guaranteed stipends of MEA/SAF and are 

considered a host of an authorized APFA meeting. APFA also had no policy in place until 2021, 

for a National Officer in relation to one’s union credit card practice. 

Defendant Ross additionally argued the parties cited the wrong policy in support of these 

charges, evidence of their lack of understanding of the process and policy. No purchases were 

made on the APFA union credit card were submitted for reimbursement on the weekly/monthly 

expenses. Receipts were submitted for each credit card charge and reviewed per policy by the 

appropriate accounting and legal departments. 

The arbitrator finds the Plaintiff provided sufficient evidence to establish merit and a 

violation of the Policy Manual to reveal Defendant Ross abused his fiduciary duty to the 

membership of the APFA. Under these circumstances, the APFA will hire an Independent Auditor 

to perform the task of auditing Defendant Ross purchase of meals and other items on the APFA 

credit card from April 1, 2016 through July 31, 2018. Record evidence revealed that he had 

purchased meals and used the APFA credit card for a personal vacation for his family at the Grand 

APFA App. 034

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Canyon and other items that are not business related. The Independent Auditor will have to 

determine if such meal(s) or other purchases were for conducting union business or not. Defendant 

Ross as the National President was required to submit documentation to support all credit card 

expenses for meals as well as other expenses. If no documentation was provided to support the 

expenses were for union related business, then Defendant Ross will be required to repay APFA for 

all of those expenses not substantiated. Moreover, the audit must comply with federal income tax 

guidelines which distinguish between personal and nonpersonal expenses. Additionally, 

Defendant Ross is hereby Ordered to repay all of the Independent Auditor’s fee to the APFA. 

3. Rental Car

Plaintiff argued Defendant Ross violated the APFA Policy Manual by having a rental car 

in DFW for six months. The Policy Manual in Section 5.G.1 does not allow a National Officer to 

have a rental car in base. Defendant Ross upon assuming office is considered for all expenses to 

be living in Dallas. The only way a rental car would be approved is if the APFA Representative 

was renting it away from their city of residence per 5.G.1.b. If it is used for personal reasons, it is 

considered income. Moreover Section 8.D governs the use of APFA provided vans and cars, 

“Automobiles owned or leased by the APFA are to be used primarily to conduct APFA business 

during normal business hours. After hours, they may be reserved on a first-come, first served basis 

for the use of representatives who reside outside of the DFW metropolitan area,” Section 8.D.1. in 

Section 8.D.2 a Regional Representative whose residence is outside of DFW may get a rental car 

when leased cars are not available. Cathy Lukensmeyer testified that National Officers should not 

be getting a rental car in Dallas for their personal use. Defendant Ross received a rental car from 

March 2016 until October 16, 2016. He booked a rental on March 28, 2016 for 24 days. On May 

5, 2016, Defendant Ross upgraded the car to a luxury car. The car rentals were updated several 

times into October 2016. At hearing, Defendant Ross denied having a rental car but when 

confronted with rental car receipts, he then claimed it was for his department and not for him. 

Several emails (June 16, 2016 extended the rental to July 29, 2016, July 18, 2018, September 30, 

2016 extended to October 3, 2016) from APFA secretaries disclosed it was for Bob’s rental car 

(CLX-45). Additionally, ross did not have a personal car in DFW to commute to APFA 

headquarters. Here, the arbitrator finds Defendant Ross abused his Fiduciary duty to the 

membership of the APFA by renting cars for his personal use to commute to work. 

Defendant Ross did not move his wife's car to Dallas until August, 2016 so Ross was using 

APFA rental cars exclusively during that period. He charged APFA for the mileage, hotels, gas 

and meals. Ross admitted he did not have a vehicle to get to work so he used the rental car. Plaintiff 

argued that if an Employer provides an automobile to an employee, including for commuting to 

and from work, that is considered a fringe benefit and is considered taxable income by the IRS. 

(26 CFR § 1.61-21(a)(1) - Taxation of fringe benefits.) Under the LMRDA the governing body is 

the APFA Board of Directors and they have an obligation to recover the money. (29 U.S.C. 501) 

So Defendant Ross saying the Board looked into the matter in 2019 does not resolve the matter. If 

it is determined Defendant Ross received over $6200 in unlawful compensation in the form of a 

rental car he was not entitled to under federal labor law, the money must be paid back to the APFA. 

Defendant Ross argued with respect to the misuse of a Rental Car was billed to the National 

President’s department during the timeframe according to the Charging party’s allegation, is 

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coincidental to the timeframe of the Ross relocation, but was not as a condition of the relocation. 

2016 APFA Policy Manual Section 5.H – Relocation – was silent on the use of rental cars in 

connection with or during the timeframe of a relocation. 

The arbitrator finds the Plaintiff has supported their charge to establish merit and a 

violation of the Policy Manual over the use of rental cars, thus, Defendant Ross abused his 

Fiduciary duty to the membership of the APFA. the Independent Auditor will audit Defendant 

Ross’ use of a rental car from April 2016 through October 2016 and determine the cost of the 

rental from April 2016 through October 16, 2016. If Defendant Ross did not support the use of a 

rental car with documentation for Union related business matters, Defendant Ross will be required 

to repay APFA for the use of the rental cars. Whatever the amount of dollars the Independent 

Auditor has determined Defendant Ross owes for using a rental car for his personal use in lieu of 

a union business, he shall be Ordered to repay that amount to the APFA. 

4.Mileage

Plaintiff argued Defendant Ross claimed mileage that he was not entitled to, including the 

period he had a rental car. The AFPA Policy Manual has detailed language to a National Officer 

assuming office. 

Relevant Provisions 

Upon assuming office/appointment, National Officer(s) / Chair(s) 

shall be expected and, for the purposes of this policy, shall be 

considered to reside in the DFW area per 5.H.1. 

5.G.1.b. Ground Transportation

“[1] A representative shall be reimbursed for mileage at the IRS 

standard mileage rate for travel to conduct APFA business, not to 

exceed a monthly maximum of one thousand (1000) miles. All 

mileage must be recorded on an “APFA Mileage Log” and 

submitted per Section 5.I.5. of this Policy Manual,” per Section 

5G.1.b.1. 

“ S/he is not authorized to claim any other expenses as provided in 

this policy for the purpose of personal travel between DFW and 

his/her permanent residence,” per Section H.5.c. 

The mileage logs are included in CLX-13-19 and specify that Ross drove the following 

mileage: 

March 2016 336 miles 

April 2016 294 miles 

May 2016 294 miles 

June 2016 336 miles 

July 2016 294 miles 

APFA App. 036

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Plaintiff argued Defendant Ross violated the APFA Policy Manual by claiming mileage to 

and from his permanent residence in Sacramento and the Sacramento airport. He claimed mileage 

between his Sacramento permanent residence and the Sacramento Airport at 42 miles each way. 

The APFA Policy Manual states that a National Officer may not claim expenses for his commute 

home. All commuting back to your home city is on your own money. But Defendant Ross charged 

mileage, parking and meals at the airport. Defendant Ross also charged APFA $105 a month for 

parking his vehicle at the Sacramento Airport. This is not an authorized expense as no additional 

expenses for commuting home were authorized. All of this occurred at the same time Defendant 

Ross had a rental car. 

Defendant Ross states Plaintiff’s have formed their own theory and alleged that former 

APFA National President, Bob Ross is in violation for claiming mileage for attending meetings 

with the Company or claiming mileage for any event outside of APFA headquarters while 

conducting APFA business while using a rental car. At no time did Ross file for reimbursement 

for mileage from his residence to the APFA headquarters. The Charging Party did not present 

evidence that Ross claimed a mileage reimbursement while using a rental car and not his own 

vehicle. Defendant Ross submits Section 5.G.b.1.a.1., is silent on a specific vehicle to be used in 

the reimbursement of mileage. At any given time, an APFA Representative could be subject to 

using their personal vehicle or a “Rental Car” for conducting APFA business.

The arbitrator finds the plaintiff has supported their charge to establish merit and a violation 

of the Policy Manual. Thus, Defendant Ross abused his Fiduciary duty to the membership of the 

APFA by claiming mileage to and from his residence and parking his personal vehicle in the 

Sacramento Airport. The arbitrator requests the Independent Auditor to look at the mileage logs 

or statements from April 1, 2016 through October, 2016 and determine the amount of money 

Defendant Ross was paid for claiming mileage from the Sacramento airport and return. Defendant 

Ross’ claimed 42 miles from the Sacramento airport to his residence and 42 miles to return to the 

airport on weekends. Additionally, Defendant Ross charged $105.00 a month for parking his car 

at the Sacramento airport and claimed this cost to APFA for payment. The Independent Auditor 

shall investigate the claims for parking his car and determine how much he claimed and received 

payment from the APFA Whatever dollar amount the Independent Auditor has determined for 

mileage and parking, Defendant Ross is hereby Ordered to repay the APFA. 

5. Maintaining an Office 

Plaintiff withdrew this charge in their post-hearing brief.

6. Charges related to Ross Leaving Office as National President (Buyout) 

7. Sick and Vacation Payouts 

8. Receiving MEA and SAF when Performing no work. 

Defendant Ross left office on March 1, 2018 in the face of a DOL ordered rerun election. 

He was elected to a four-year term but he voluntarily resigned and negotiated a Transition 

Agreement to leave. The economic terms of the Transition Agreement are as follows: 

3. APFA agrees that ROSS will continue to receive from APFA his current full salary and 

benefits, including full insurance coverage, through July 31, 2018. 

APFA App. 037

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4. APFA agrees to pay ROSS all of his accrued and unused sick and accrued and unused 

vacation time, from April 1, 2016 through July 31, 2018. 

5. APFA agrees to pay ROSS, upon his request, a one-time lump sum in the total amount of 

ten thousand dollars ($10,000), which represents ROSS’s moving expenses. ROSS shall 

present the moving expenses to a APFA for payment through 2019. 

Plaintiff argued that nowhere in the exit package language does it specify that Defendant 

Ross should get paid MEA and SAF expense payments for the months he is not working in March, 

April, May, June and July 2016. Yet, Defendant Ross received $1050 a month in these payments 

for five months for a total of $5250. MEA and SAF are considered expenses. Salary is included in 

Section 6-National Officer Salary and benefits. In Section 5-Trip Removal and Expense Policy is 

where SAF and MEA are located and discussed. The APFA Constitution defines salary in Section 

6.A which provides, “The salary of the National President shall be equivalent to the highest purser 

flight attendant pay rates, including international override pay, for a flight attendant based on 116 

hours monthly.” 

Section 6: National Officer Pay and Benefits 

B.1: Vacation 

a. National officers shall be entitled to thirty-five (35) days of paid vacation 

to be taken in each fiscal year while in office or the seniority respective 

vacation allowance s/he is contractually entitled to as a Flight Attendant, 

whichever is greater. This calculation will not be based on the Article 6.H 

of the Collective Bargaining Agreement referring to “trips missed.” This 

vacation allowance may be taken at the discretion of the National Officer, 

however, not more than fourteen (14) consecutive days taken at any one 

time. 

b. National Officers should schedule their vacations so as to avoid the 

simultaneous absence of more than two (2) National Officers. In no case 

shall the National President and the National Vice President be on vacation 

simultaneously. 

c. At the end of a fiscal year, up to fourteen (14) days of any unused APFA 

vacation allowance, as provided in B.1.a above, will be paid to the National 

Officer at a rate prorated on the National Officers’ annual salary for the 

period of APFA vacation allowance owed, less applicable state and federal 

taxes. If the National Officer is entitled to more than thirty-five days 

vacation, up to twenty-one (21) days will be paid as stated above. 

d. At the beginning of a term, the National Officer should be paid by the 

Company for any vacation allowance accrued as a flight attendant.

e. At the end of the term, the APFA will ensure that the departing National 

Officer is provided with the vacation time to which s/he would ordinarily 

be entitled as if the National Officer had been an active Flight Attendant for 

the previous and current calendar years. If the company does not provide 

the out-going officer with the appropriate vacation allowance accrued for 

the previous and current calendar year the APFA will:

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1. Provide payback of accrued vacation allowance to be taken in 

corresponding consecutive vacation days in a block(s) that is seniority 

respective at his/her domicile per Article 6.1 of the AA/APFA 

Collective Bargaining Agreement, within 13 months following the end 

of the applicable term; or 

2. The APFA will provide the departing National Officer with the 

appropriate Flight Attendant vacation by means of cash reimbursement 

at a rate prorated on the National Officers annual salary for the period 

of APFA vacation allowance owed less applicable state and federal 

taxes. 

Plaintiff argued that Defendant Ross was paid 14 days of vacation for fiscal year 2017 

which ran from April 2016 and through March 2017. Ross used four vacation days and was entitled 

to be paid out 14 of the remaining 31 days. Ross was paid that amount in 2017. In fiscal year 2018 

Ross was entitled to be paid out an additional 14 vacation days as he used 6 days and should have 

received the maximum 14 days. Ross was also entitled to his end of term vacation which provides 

that he can receive vacation he would have accrued during present and previous year. For bidding 

purposes as a Flight Attendant, he should have received 35 days of vacation. So, the total amount 

Ross should have received in 2018 was 49 days which would have been 35 days for the end of 

term and 14 days maximum payout for fiscal year 2018. This is on top of the 14 days Ross already 

received for fiscal year 2018. 

Plaintiff additionally argued that Ross received 101.44 days paid out in the amount of 

$38,574.68. Part of this payment includes the inflated pay which is the subject of a separate 

violation. Ross was overpaid 52.44 hours of vacation. 

Defendant Ross argued the Ross TA is controlling. Defendant Ross would be paid any and 

all accrued and unused sick and vacation from April 1, 2016 – July 31, 2018. The calculation of 

the unused days was to be paid as though Ross was able to use any of those days while in office 

as President for his remaining 5 months had he not resigned. There was no agreement that these 

days were not to be paid per Policy as the Charging Party insists. An investigation into the payout 

of the Sick and Vacation days paid, brought about by the Charging Party’s allegations, revealed 

Ross was not properly paid all of his accrued and unused Sick days from April 1, 2016 – July 31, 

2018. Ross earned and did not use 18 Sick days in each of the fiscal years April 2016-March 2017 

and April 2017-March 2018. Ross was only paid Per Policy 6.B.3.d Offset/Loss of Sick Time, of 

12 days for each fiscal year. The additional 12 days, (6) days Apr. 2016-2017 and (6) days Apr. 

2017-2018 have still not been acknowledged or paid to Ross in accordance with the Ross TA. The 

value of these lost Sick days, depending on the calculation used, is in excess of $3400 is still owed 

to Ross. 

The arbitrator finds that MEA and SAF is guaranteed to the National Officers to 

compensate them for not working as a Flight Attendant. The TA provides for “Full Salary” 

including benefits. While one can argue that MEA and SAF is a guaranteed benefit, the Policy 

Manual states it is not wages or benefits but rather are expenses as stated in Section 5 of the Policy 

Manual. The TA does not mention MEA and SAF as a benefit but the purpose of providing a 

guaranteed MEA and SAF to the National Officers so they would not suffer monetarily. MEA and 

APFA App. 039

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 44 of 92 PageID 1135
21

SAF is a guaranteed expense to be paid monthly to the National Officers. If Defendant Ross did 

not receive the MEA and SAF that he was guaranteed as a National Officer, it would then be 

reasonable to assume that he would suffer monetarily. The TA states he will continue to receive 

his current full salary and benefits. The language regarding benefits in Section 6 of the Policy 

Manual and expenses in Section 5 of the Policy Manual is clear and unambiguous. However, if the 

BOD enters into a TA with an employee to pay his full salary for an additional 5 months without 

working then the TA language would be in conflict with the language over expenses (guaranteed 

MEA and SAF for National Officers) in Section 5 of the Policy Manual. During these five months 

of the TA that Defendant Ross was paid his full salary, no evidence was introduced that Defendant 

Ross worked as a Flight Attendant while receiving guaranteed MEA and SAF. Under normal 

circumstances, expenses are listed in box 1 of a W-2 but they are not considered wages or salary. 

It is therefore, the Opinion of this arbitrator the intent of the TA reached between Attorney Mark 

Richards, Robert Ross and the 2018 BOD was for the purpose of maintaining the “status quo ante” 

for Defendant Ross. Thus, it would be reasonable to conclude Defendant Ross received MEA and 

SAF for the months of March through July 2018 as a guaranteed expense benefit. However, it 

should be noted that MEA and SAF are expenses and are not to be included in or considered with 

his full salary for use in the payout determination of accrued sick and vacation leave. For these 

reasons, the arbitrator is of the Opinion this charge over MEA and SAF should be dismissed. 

With respect to sick and vacation payout, the APFA Board of Directors has determined 

that Defendant Ross was overpaid in the amount of $5,436.47 in 2018. “The Board’s finding was 

based on the results of a review from an independent accounting firm which determined that the 

formula used to determine the daily rate for your sick and vacation payout was incorrect.” Record 

evidence revealed National Treasurer Vasquez admitted he had changed the formula without the 

approval of the BOD or the EC. 

Moreover, it is the arbitrator’s understanding that Defendant Ross has refused to repay 

$5,436.47 to APFA and is presently in litigation to recoup the money owed to APFA. The arbitrator 

finds this is very troublesome in view of the fact that he is a standing Board member and the other 

National Officers have acknowledged the computation of their debt and has either paid their debt 

in full or have arranged to pay off their debt. As National President, Defendant Ross was elected 

to a position of trust with the responsibility of protecting APFA assets. Ross has a Fiduciary duty 

to the membership of the APFA and this arbitrator finds that he has abused this trust. 

It is therefore arbitrator’s Opinion, Defendant Ross has failed and abused his Fiduciary 

Duty. The non-payment of these monies reveals Defendant Ross is not accepting this 

responsibility. Thus, it is this arbitrator’s Opinion that Defendant Ross should be and is hereby 

Ordered to immediately repay the APFA $5,436.47. 

Leasing an Apartment at the Bear Creek Complex 

The APFA provides National Officers two choices for relocating to the Dallas metroplex. 

They can either accept a corporate apartment or they can accept the relocation moving expense 

entitling them up to $10,000 in moving expenses. But they are required to select their choice before 

they move. Here, the record evidence revealed Defendant Ross accepted both choices. Plaintiff 

argued that Defendant Ross leased an apartment at the Bear Creek Complex on June 1, 2016. 

APFA App. 040

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 45 of 92 PageID 1136
22

Defendant Ross testified and denied leasing an apartment at the Bear Creek Complex but after 

Plaintiff showed him documentation, Defendant Ross then admitted that he had leased the 

apartment at the Bear Creek Complex for one year to be paid by APFA. 

On Defendant Ross’s weekly report, he claimed that he was house hunting on June 7 and 

8, 2016. Defendant Ross explained that his children’s school in California ended in June 2016. 

Kim Ross, packed household items into pods without furniture because their furniture was too 

large for the South Lake home and was delivered in August 2016. Defendant Ross decided to order 

furniture from Ashley furniture and ordered $3,637.00 worth of furniture on August 13, 2016 with 

the APFA credit card. Defendant Ross denied that he had ordered the furniture for his residence, 

that it was ordered for the corporate apartment because it had no furniture. Documentation was 

presented to Defendant Ross revealing he had the furniture delivered to the South Lake residence 

on August 18 and 25, 2016. Thus, Defendant Ross chose both options for his own personal benefit 

and was not looking out for APFA’s benefit. He also acquired APFA furniture to be moved to his 

his residence per Mike Trapp’s testimony when he was not entitled to do so. As a result of his 

actions, the corporate apartment he leased for his own personal benefit at the Bear Creek Complex 

cost APFA $8,106.13 which is an unnecessary expense for the APFA. 

Thus, it is the arbitrator’s Opinion, that Defendant Ross abused his Fiduciary duty to the 

membership of the APFA and should be assessed the cost of leasing that apartment in the amount 

of $8,106.13. 

Conclusion: 

The arbitrator finds that throughout this proceeding, Defendant Ross intentionally and

willfully ignored the provisions of the APFA Policy Manual and thus, has violated and abused his 

fiduciary duty entrusted to him by the APFA membership. Ross’s testimony was inconsistent and 

not forthright. Because Ross abused his position of trust as well as his fiduciary duty to the 

membership of the APFA, he can no longer hold a position of trust with the APFA. Moreover, 

Article VII, Section 1 of the APFA Constitution provides that: 

1. Any member is subject to fine, suspension or expulsion, or suspension from or removal 

from office, for any of the following acts: 

...... 

F. Willful violation of an express Article of this Constitution, or of a proper and express 

written resolution or policy of the Board of Directors or the Executive Committee; 

Here, Defendant Ross has overwhelmingly violated the APFA Policy Manual and APFA 

Constitution. Ross has refused to repay APFA for an inappropriate overpayment in the amount of 

$5,436.47. The Union has been forced to put the matter in collections after Ross refused and is 

now forced to commence a lawsuit against Ross. The policy manual has a procedure for APFA 

representatives to follow if they disagree with the determination on any expenses which is to appeal 

to the APFA Executive Board and Board of Directors per Section 5.B. Ignoring the Board of 

Directors is not an option, especially for a sitting Board member. John Nikides testified that Ross’s 

refusal to repay APFA as a sitting Board member undermines the Union, and the memberships 

faith in its officers. 

APFA App. 041

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 46 of 92 PageID 1137
23

Plaintiff argued that Defendant Ross should be expelled from membership. It is the Opinion 

of this arbitrator that Defendant Ross should be prohibited from serving in any official position 

for life within the APFA organization that is set forth and included in the APFA Constitution and 

Policy Manual that is covered or identified. Additionally, if Ross currently holds any official 

position presently, he is to resign said position. This is to bar Ross from any official position for 

life other than that of member. 

REMEDY 

1. The APFA will hire an Independent Forensic Auditor to audit Robert Ross’ weekly 

reports, monthly reports and APFA credit card charges from April 1, 2016 through July, 

2018 and perform the following tasks: 

Specifically: 

a. The Auditor shall inspect the receipts for the Ross family vacation taken in the 

Grand Canyon in August 2016. Ross claimed all of hotel stays, meals and 

mileage charges as relocation moving expenses when some are for a personal 

vacation. Please determine what costs should not have been claimed as 

relocation moving expenses. Ross is liable for the excess cost and is hereby 

Ordered to repay APFA for all inappropriate charges! 

b. The Auditor shall inspect Ross’ APFA credit card usage for personal and group 

meals and purchases for personal items such as tools, toiletries, bath towels, and 

candy from April 1, 2016 through July 2018 and determine the cost of all 

inappropriate charges. If no documentation was provided to support each 

purchase was a union related business cost, then Ross is liable for all 

inappropriate charges and is hereby Ordered to repay the APFA for all 

inappropriate charges! 

c. The Auditor shall inspect all of Ross’ rental car usage from April 1, 2016 

through October 16, 2016 and determine if these rentals were for union related 

business. APFA paid for the rental cars but there should be documentation to 

show if it was for union related business. If not, Ross is to be assessed the cost 

of the rental cars during the above period and is hereby Ordered to repay APFA 

for inappropriate rental car usage! 

d. The Auditor shall inspect all of Ross’ claimed mileage from the Sacramento 

Airport to his residence (42 miles) and return (42 miles) as well as all monthly 

parking of his personal car. He claimed $105.00 per month from April 1, 2016 

through July 2016 to park his car at the Sacramento airport. Ross is to be 

assessed the mileage and monthly parking he claimed and Ross is hereby 

Ordered to repay APFA for all of these inappropriate charges! 

2. Ross is hereby Ordered to immediately repay the APFA $5,436.47 per the finding of the 

APFA Board of Directors. An independent accounting firm determined the formula used 

to determine the daily rate assessed for sick and vacation payout was incorrect. 

3. Ross is hereby Ordered to repay the APFA $8,106.13 for leasing an apartment at the Bear 

Creek Complex where he had no intention of occupying. 

4. Ross is hereby fined and Ordered to repay the APFA for all of the Arbitrator’s Fee for 

this arbitration. 

APFA App. 042

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 47 of 92 PageID 1138
24

5. Ross is hereby ordered to repay the APFA the full cost of hiring the Independent Forensic 

Auditor. 

6. Ross is hereby Ordered to repay $3,637.00 to the APFA for all of the furniture he had 

purchased and delivered to his residence located in South Lake, Texas. 

7. Ross is prohibited from serving in any official position within the APFA organization 

that is set forth and included in the APFA Constitution and Policy Manual that is covered 

or identified. If Ross currently holds any official position presently, he is to resign said 

position. This is to bar Ross from any official position for life other than that of member. 

8. The APFA if it hasn’t done so, must create a separate body of trained forensic 

accountants to oversee the annual audit and to create procedures and recommendations to 

preclude fraud for the BOD’s review and action to be included within the Policy Manual. 

National Officers or Officers who have the authority to extend APFA to credit or use of 

an APFA credit card must be held economically responsible. The language created must 

be very clear and unambiguous. Training over the LMRDA must be a requirement for all 

National Officers or any person who can extend APFA to credit and whom is given an 

APFA credit card. These individuals must sign a document declaring and attesting that 

they have read and understand their responsibilities in using an APFA credit card or 

extending credit to the APFA for rental cars, apartments, etc., and that negligence will not 

be tolerated and will be dealt with severe penalties. 

9. The arbitrator shall retain jurisdiction over any issue involving this remedy only. Moreover, 

if the Independent Auditor determines any monies are due from Ross, that will be the 

amount to be assessed or due for repayment to the APFA. The APFA shall either Order 

said repayment from Ross or submit the Independent Auditors findings to have this 

arbitrator issue a Supplemental Decision and Remedy. 

AWARD 

The grievance is sustained in part and denied in part. 

Issued in San Antonio, Texas the 19th day of March, 2022. 

APFA App. 043

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 48 of 92 PageID 1139
Exhibit C 

Arbitrator’s Supplemental Decision issued on August 24, 2022 

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 49 of 92 PageID 1140
In the Matter of Arbitration Between__ 

) 

Melissa Chinery ) 

Sandra Lee ) RE: Article VII Charges 

) Violations of APFA Constitution 

APFA Charging Party Members ) and APFA Policy Manual 

(Plaintiff) ) 

) 

And ) 

) 

Robert Ross, Former APFA National ) 

President ) 

) 

APFA Charged Party Member ) 

(Defendant) ) 

) 

__________________________________ 

SUPPLEMENTAL DECISION AND REMEDY MODIFICATION 

Before: Alternate Article VII Arbitrator Ruben R. 

Armendariz 

Place and Dates of Hearing: The Westin Irving Convention Center at Las 

Colinas, 400 West Las Colinas Boulevard, 

located in the City of Irving, Texas.

June 16, 2021, continued to November 17 and 18, 

2021 

Appearances: 

For Charging Party Members: Melissa Chinery, Representative 

(Plaintiff’s) Sandra Lee, Representative 

For Charged Party Member: Kit Gomez Alba, Representative 

(Defendant) Gina Guidry, Representative 

Robert Ross, Representative 

Exhibit C

APFA App. 044

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 50 of 92 PageID 1141
RE: Supplemental Decision and Remedy Modification 

 Article VII Charges 

2

On the 19th day of March 2022, the undersigned arbitrator issued a Decision in the above 

matter. In the original Remedy, the undersigned arbitrator requested APFA to hire a forensic 

auditor to audit certain items of this case to identify all inappropriate charges listed in item 1., 

1(a.), 1(b)., 1(c.), and 1(d.) concerning Defendant Ross. 

In accordance with the original remedy, the APFA hired Cornwell Jackson, Certified 

Public Accountants to conduct the requested audits. On August 5, 2022, the Independent 

Accountant’s Audit Report was completed and submitted to the APFA. This report was 

subsequently transmitted to this arbitrator to review and to issue a “Supplemental Decision and 

Remedy Modification.” 

The arbitrator has reviewed the Independent Accountant’s Audit Report and finds 

Defendant Ross has violated certain identified items. Thus, the March 19, 2022 Original Remedy 

is hereby modified to reflect the Auditors’ identified items. Accordingly, the arbitrator finds 

those monetary amounts found inappropriate are now subject for repayment to APFA. 

Additionally, the Auditors invoices for services rendered shall be included for repayment. 

REMEDY MODIFICATION 

It is hereby Ordered that Defendant Ross shall repay the APFA the following amounts 

the auditors identified as inappropriate. The accountant’s Audit Report is a thorough explanation 

of the auditor’s findings and those amounts found inappropriate.1

1(a): Inappropriate costs claimed as moving expenses. $. 775.05 

1(b): Inappropriate credit card charges for meals and personal items. 12, 274.00 

1(c): Inappropriate costs related to rental cars. 6, 454.38 

1(d): Inappropriate costs related to mileage to Sacramento airport. 725.76 

1(d): Inappropriate costs related to airport parking. 107.00 

$ 20,336.19_ 

Auditors Invoices: 

05/31/2022 $ 150.00 

06/30/2022 3,325.00 

07/31/2022 11,000.00 

08/05/2022 350.00 

Total $ 14,825.00 

2. Ross is hereby Ordered to immediately repay the APFA $5,436.47 per the finding of the 

APFA Board of Directors. An independent accounting firm determined the formula used 

to determine the daily rate assessed for sick and vacation payout was incorrect. 

3. Ross is hereby Ordered to repay the APFA $8,106.13 for leasing an apartment at the Bear 

Creek Complex where he had no intention of occupying. 

4. Ross is hereby fined and Ordered to repay the APFA for all of the Arbitrator’s Fee of 

$10, 217.96 for this arbitration. 

5. Ross is hereby Ordered to repay $3,637.00 to the APFA for all of the furniture he had 

purchased and delivered to his residence located in South Lake, Texas. 

1 Mr. Ross can request a copy of the auditor’s report from the APFA if he has not already received a copy of it.

APFA App. 045

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 51 of 92 PageID 1142
RE: Supplemental Decision and Remedy Modification 

 Article VII Charges 

3

6. Ross is prohibited from serving in any official position within the APFA organization 

that is set forth and included in the APFA Constitution and Policy Manual that is covered 

or identified. If Ross currently holds any official position presently, he is to resign said 

position. This is to bar Ross from any official position for life other than that of member. 

7. The APFA if it hasn’t done so, must create a separate body of trained forensic 

accountants to oversee the annual audit and to create procedures and recommendations to 

preclude fraud for the BOD’s review and action to be included within the Policy Manual. 

National Officers or Officers who have the authority to extend APFA to credit or use of 

an APFA credit card must be held economically responsible. The language created must 

be very clear and unambiguous. Training over the LMRDA must be a requirement for all 

National Officers or any person who can extend APFA to credit and whom is given an 

APFA credit card. These individuals must sign a document declaring and attesting that 

they have read and understand their responsibilities in using an APFA credit card or 

extending credit to the APFA for rental cars, apartments, etc., and that negligence will not 

be tolerated and will be dealt with severe penalties. 

8. The arbitrator shall retain jurisdiction over any issue involving this remedy for only 90 

days from the date of this Supplemental Decision and Remedy Modification. 

Issued the 24th day of August, 2022, in San Antonio, Texas. 

APFA App. 046

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 52 of 92 PageID 1143
Exhibit D 

Ross’s Post-Hearing Brief to the Arbitrator (Excerpt)

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 53 of 92 PageID 1144
Exhibit D

APFA App. 047

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 54 of 92 PageID 1145
APFA App. 048

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 55 of 92 PageID 1146
Exhibit E 

Ross’s Resignation as San Francisco (SFO) Base President 

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 56 of 92 PageID 1147
From: 1rross@comcast.net <1rross@comcast.net>

Sent: Monday, March 21, 2022 1:34 PM

To: Tim Schwartz <tschwartz@apfa.org>

Cc: 'anthony cataldo' <anthcat@yahoo.com>

Subject: SFO BP

Please consider this my Resignafion as SFO Base President.

Bob Ross

916-284-2402 Mobile/Text

1RRoss@comcast.net

This e-mail, including attachments, is intended for the exclusive use of the addressee. If you are not

the intended recipient, any dissemination, use, distribution or copying is prohibited. 

 SFO BP .

Exhibit E

APFA App. 049

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 57 of 92 PageID 1148
Exhibit F 

Non-Published Cases Cited in the Brief 

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 58 of 92 PageID 1149
Allied Waste Systems Inc. v. Teamsters Local 767, 2007 

U.S. Dist. LEXIS 43035, 2007 WL 1703634 at *11-13, 

19-21 (N.D. Tex. 2007) (J. Means) 

APFA App. 050

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 59 of 92 PageID 1150
Westlaw. 

Not Reported in F.Supp.2d 

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.) 

(Cite as: 2007 WL 1703634 (N.D.Tex.)) 

C 

Only the Westlaw citation is currently available. 

United States District Court, 

N.D. Texas, 

Fort Worth Division. 

ALLIED WAS 1'h SYSTEMS, INC. 

v. 

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 767. 

Civil Action No. 4:06-CV-328-Y. 

June 13, 2007. 

Celeste Yeager Winford, Michele C. Spillman, 

Gardere Wynne Sewell, Dallas, TX, for Allied 

Waste Systems, Inc. 

G. William Baab, Baab & Denison, Dallas, TX, for 

International Brotherhood of Teamsters, Local 767. 

ORDER DENYING PLAINTIFF'S MOTION FOR 

SUMMARY JUDGMENT AND GRANTING DEFENDANT'S 

CROSS-MOTION FOR SUMMARY JUDGMENT 

TERRY R. MEANS, United States District Judge. 

*1 This case involves the final and binding decision 

of an arbitrator concluding that plaintiff Allied 

Waste Systems, Incorporated ("Allied Waste"), violated the collective-bargaining agreement ("CBA") 

when it terminated the employment of David Escobar because he had not performed his regular job 

duties for a period of six months. Allied Waste has 

refused to abide by the arbitrator's decision and has 

brought suit in this Court under section 301 of the 

Labor Management Relations Act of 1947 

("LMRA"), as amended, 29 U.S.C. § 151 et seq., 

requesting that the Court vacate the arbitrator's decision and award. Defendant International Brotherhood of Teamsters, Local 767 ("Local 767"), filed a 

counterclaim requesting that the Court confirm the 

arbitrator's decision and order the enforcement of 

his award. Local 767 also counters that Allied 

Waste's refusal to abide by the binding decision of 

Page 1 

the arbitrator is without justification and requests 

that the Court award it reasonable attorney's fees. 

The Court has before it the parties' cross-motions 

for summary judgment that call upon the Court to 

decide: (1) whether it should vacate the arbitrator's 

decision and award in favor of Local 767 or confirm it and order its enforcement; and, (2) whether 

Allied Waste's refusal to abide by the arbitrator's 

decision is unjustified and thus entitles Local 767 to 

reasonable attorney's fees. 

After review, the Court concludes that the arbitrator 

acted within the scope of his authority and that his 

decision and award in favor of Local 767 is rationally inferable from the teims of the CBA and 

should be enforced. Further, the Court concludes 

that Allied Waste's refusal to abide by the arbitrator's decision is without justification and in violation 

of its obligation to honor federal labor policy favoring the voluntary arbitration of labor disputes. 

I. Factual Background 

The material facts in this case are not in dispute. 

Allied Waste and Local 767 are parties to a valid 

CBA that includes a final and binding arbitration 

procedure for settling grievances. It is undisputed 

that the CBA covers the grievance at issue here. 

Allied Waste provides a variety of trash-hauling 

services in the greater Dallas-Fort Worth, Texas, 

area. As part of its services, Allied Waste picks up 

trash and garbage containers on regularly established routes using "roll-off' trucks. Escobar 

worked for Allied Waste as a driver of these rolloff trucks at its Fort Worth, Texas, facility from 

1982 until his termination on July 23, 2003. 

Escobar's position involved heavy-duty work. He 

worked alone and was required to lift amounts in 

excess of twenty-five pounds, push and pull heavy 

doors, and install and remove heavy tarpaulins. He 

routinely worked ten-hour shifts on as many days a 

week as was required by the volume of work to be 

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 

ht. Li) ://web2.westlaw. corn/print/printstream. aspx?sv=Split& destination=atp &prid—ia744a51... 11/4/2009 

Westtaw.

Not Reported in F.Supp.2d

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.)

(Cite as: 2007 WL 1703634 (N.D.Tex.))

Page 1

Only the Westlaw citation is currently available.

United States District Court,

N.D. Texas,

Fort Worth Division.

ALLIED WASTE SYSTEMS, INC.

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 767.

Civil Action No. 4:06-CV-328-Y.

June 13,2007.

Celeste Yeager Winford, Michele C. Spillrnan,

Gardere Wynne Sewell, Dallas, TX, for Allied'

Waste Systems, Inc.

G. William Baab, Baab & Denison, Dallas, TX, for

International Brotherhood of Teamsters, Local 767.

ORDER DENYING PLAINTIFF'S MOTION FOR

SUMMARY JUDGMENT AND GRANTING DEFENDANT'S

CROSS-MOTION FOR SUMMARY JUDGMENT

TERRY R. MEANS, United States District Judge.

*1 This case involves the final and binding decision

of an arbitrator concluding that plaintiff Allied

Waste Systems, Incorporated ("Allied Waste"), violated the collective-bargaining agreement ("CBA")

when it terminated the employment of David Escobar because he had not performed his regular job

duties for a period of six months. Allied Waste has

refused to abide by the arbitrator's decision and has

brought suit in this Court under section 301 of the

Labor Management Relations Act of 1947

("LMRA"), as amended, 29 U.S.C. § 151 et seq.,

requesting that the Court vacate the arbitrator's decision and award. Defendant International Brotherhood of Teamsters, Local 767 ("Local 767"), filed a

counterclaim requesting that the Court confirm the

arbitrator's decision and order the enforcement of

his award. Local 767 also counters that Allied

Waste's refusal to abide by the binding decision of

the arbitrator is without justification and requests

that the Court award it reasonable attorney's fees.

The Court has before it the parties' cross-motions

for summary judgment that call upon the Court to

decide: (1) whether it should vacate the arbitrator's

decision and award in favor of Local 767 or confirm it and order its enforcement; and, (2) whether

Allied Waste's refusal to abide by the arbitrator's

decision is unjustified and thus entitles Local 767 to

reasonable attorney's fees.

After review, the Court concludes that the arbitrator

acted within the scope of his authority and that his

decision and award in favor of Local 767 is rationally inferable from the terms of the CBA and

should be enforced. Further, the Court concludes

that Allied Waste's refusal to abide by the arbitrator's decision is without justification and in violation

of its obligation to honor federal labor policy favoring the voluntary arbitration of labor disputes.

I. Factual Background

The material facts in this case are not in dispute.

Allied Waste and Local 767 are parties to a valid

CBA that includes a final and binding arbitration

procedure for settling grievances. It is undisputed

that the CBA covers the grievance at issue here.

Allied Waste provides a variety of trash-hauling

services in the greater Dallas-Fort Worth, Texas,

area. As part of its services, Allied Waste picks up

trash and garbage containers on regularly established routes using "roll-off tracks. Escobar

worked for Allied Waste as a driver of these rolloff trucks at its Fort Worth, Texas, facility from

1982 until his termination on July 23, 2003.

Escobar's position involved heavy-duty work. He

worked alone and was required to lift amounts in

excess of twenty-five pounds, push and pull heavy

doors, and install and remove heavy tarpaulins. He

routinely worked ten-hour shifts on as many days a

week as was required by the volume of work to be

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

http://web2.westlaw.corn/print/printstream.aspx?sv=Split&destination==atp&prid=ia744a51... 11/4/2009

APFA App. 051

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 60 of 92 PageID 1151
Not Reported in F.Supp.2d 

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.) 

(Cite as: 2007 WL 1703634 (N.D.Tex.)) 

completed. 

On January 23, 2003, Escobar suffered an onthe-job injury. The next day, Escobar saw a physician selected by Allied Waste. The physician determined that Escobar had injured his right arm but 

that he could return to work with certain restrictions. The physician ordered that Escobar be restricted from lifting anything that weighed more 

than twenty-five pounds and from working longer 

than eight hours per day. 

*2 On February 3, Allied Waste sent Escobar a letter informing him that it had reviewed the medical 

report concerning his injury. Allied Waste indicated 

that it had identified an appropriate modified duty 

position for him based on the physician's assessment and stated that it was extending to Escobar "a 

bona fide offer of employment pursuant to [Rule § 

129.6 of the Texas Administrative Code]." (App. in 

Supp. of Pl.'s Mot. Siimm. J. at 36.) The letter, 

however, did not specify the position Allied Waste 

had identified for Escobar's modified duty. 

The letter instructed Escobar to return to work on 

February 3. It informed him that his work schedule 

would be Monday through Friday from 5:00 a.m. 

until he completed his route and that he would be 

paid at the same rate as roll-off truck drivers. The 

letter then went on to state, 

This position will entail these specific physical 

and time requirements: No lifting objects/carrying objects more than 251bs for more than 8 hours 

per day .... Please be assured that [Allied] Waste 

will only assign you task [sic] consistent with 

your physical abilities, knowledge, and skills and 

will provide you training if necessary. 

(Id) Finally, the letter advised Escobar that he 

could contact Ruby Silva, Allied Waste's safety 

manager, if he had any questions. Escobar signed 

the letter indicating that he accepted Allied Waste's 

offer and returned to work on February 3. 

When he returned to work, Escobar resumed his duties operating a roll-off truck. Allied Waste, 

however, did not immediately provide Escobar with 

Page 2 

any accommodations consistent with the physician's 

restrictions. Thus, for approximately one week 

Escobar performed all of the regular duties including the heavy work despite his restrictions. About a 

week later, Allied Waste assigned Escobar an assistant, but the assistant failed to provide any help. 

He merely observed Escobar perforru all of his duties. 

Escobar complained to his supervisors but nothing 

happened. Then, in late February, Escobar and two 

of his union representatives met with his supervisors and again informed them that Escobar's assistant was not providing any help. Still, the situation remained unchanged. On March 4, 2003, 

Escobar's assistant failed to show up at work and 

was not seen again. Escobar never contacted Silva 

to inform her of the situation. 

The next day, Escobar saw another physician approved by Allied Waste. He concluded that Escobar 

was physically incapable of performing his duties 

and removed Escobar from his job. The physician 

did not clear Escobar to return to work without any 

restrictions until August 22. Escobar never returned 

to work after March 5. 

Under Article 16, Section 5 of the CBA, 

An employee shall lose his seniority rights and 

the employment relationship shall cease under the 

following conditions .... Failing to perform duties 

of any regular position or classification for any 

reason for longer than six (6) months. Performing 

modified duties pursuant to Article 14, Section 4 

of this agreement does not constitute "performing 

duties of any regular position or classification" 

under this provision. 

*3 (App. in Supp. of Pl.'s Mot. Summ. J. at 27.) In 

accordance with its interpretation of this article, Allied Waste determined that Escobar had not been 

performing the regular duties of a roll-off driver 

since January 23, 2003, the day the first physician 

placed Escobar on modified duty. On July 23, six 

months later, Allied Waste sent a letter to Escobar 

informing him that it was terminating his employment because he had not performed his regular du-

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 

http://web2.westlaw.com/print/printstream.aspx?sv—Split&destination=atp&prid---ia744a51... - 11/4/2009 

Not Reported in F.Supp.2d

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.)

(Cite as: 2007 WL 1703634 (N.D.Tex.))

Page 2

completed.

On January 23, 2003, Escobar suffered an onthe-job injury. The next day, Escobar saw a physician selected by Allied Waste. The physician determined that Escobar had injured his right arm but

that he could return to work with certain restrictions. The physician ordered that Escobar be restricted from lifting anything that weighed more

than twenty-five pounds and from working longer

than eight hours per day.

*2 On February 3, Allied Waste sent Escobar a letter informing him that it had reviewed the medical

report concerning his injury. Allied Waste indicated

that it had identified an appropriate modified duty

position for him based on the physician's assessment and stated that it was extending to Escobar "a

bona fide offer of employment pursuant to [Rule §

129.6 of the Texas Administrative Code]." (App. in

Supp. of PL's Mot. Summ. J. at 36.) The letter,

however, did not specify the position Allied Waste

had identified for Escobar's modified duty.

The letter instructed Escobar to return to work on

February 3. It informed him that his work schedule

would be Monday through Friday from 5:00 a.m.

until he completed his route and that he would be

paid at the same rate as roll-off truck drivers. The

letter then went on to state,

This position will entail these specific physical

and tune requirements: No lifting objects/carrying objects more than 251bs for more than 8 hours

per day .... Please be assured that [Allied] Waste

will only assign you task [sic] consistent with

your physical abilities, knowledge, and skills and

will provide you training if necessary.

(Id) Finally, the letter advised Escobar that he

could contact Ruby Silva, Allied Waste's safety

manager, if he had any questions. Escobar signed

the letter indicating that he accepted Allied Waste's

offer and returned to work on February 3.

When he returned to work, Escobar resumed his duties operating a roll-off truck. Allied Waste,

however, did not immediately provide Escobar with

any accommodations consistent with the physician's

restrictions. Thus, for approximately one week

Escobar performed all of the regular duties including the heavy work despite his restrictions. About a

week later, Allied Waste assigned Escobar an assistant, but the assistant failed to provide any help.

He merely observed Escobar perform all of his duties.

Escobar complained to his supervisors but nothing

happened. Then, in late February, Escobar and two

of his union representatives met with his supervisors and again informed them that Escobar's assistant was not providing any help. Still, the situation remained unchanged. On March 4, 2003,

Escobar's assistant failed to show up at work and

was not seen again. Escobar never contacted Silva

to inform her of the situation.

The next day, Escobar saw another physician approved by Allied Waste. He concluded that Escobar

was physically incapable of performing his duties

and removed Escobar from his job. The physician

did not clear Escobar to return to work without any

restrictions until August 22. Escobar never returned

to work after March 5.

Under Article 16, Section 5 of the CBA,

An employee shall lose his seniority rights and

the employment relationship shall cease under the

following conditions .... Failing to perform duties

of any regular position or classification for any

reason for longer than six (6) months. Performing

modified duties pursuant to Article 14, Section 4

of this agreement does not constitute "performing

duties of any regular position or classification"

under this provision.

*3 (App. in Supp. of PL's Mot. Summ. J. at 27.) In

accordance with its interpretation of this article, Allied Waste determined that Escobar had not been

performing the regular duties of a roll-off driver

since January 23, 2003, the day the first physician

placed Escobar on modified duty. On July 23, six

months later, Allied Waste sent a letter to Escobar

informing him that it was terminating his employment because he had not performed his regular du-

> 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

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APFA App. 052

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 61 of 92 PageID 1152
Not Reported in F.Supp.2d 

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.) 

(Cite as: 2007 WL 1703634 (N.D.Tex.)) 

ties during the past six months. 

Escobar timely filed a grievance under the CBA. In 

accordance with the CBA, the grievance was submitted to binding arbitration and the parties agreed 

on Bernard Marcus to serve as the arbitrator. According to the CBA, 

The arbitrator will be jointly contacted and asked 

to hold a hearing at which both parties may 

present evidence. The arbitrator shall decide only 

the grievance submitted by applying the express 

language of this agreement and shall have no authority to add to, subtract from, modify or amend 

this agreement, but shall be limited to determining whether or not a violation of the terms have 

been committed. 

The arbitrator's duly rendered decision shall be 

fmal and binding on the employer concerned, the 

union, and the employee(s) involved. 

(App. in Supp. of Pl.'s Mot. Summ. J. at 22.) 

The parties asked Marcus to answer the question, 

Did [Allied Waste] have just cause to terminate 

the employment of [Escobar] on the grounds that 

[Escobar] failed to perform the duties of any regular position or classification in the bargaining 

unit for a period longer than six months, as required in Article 16, Section 5, of the labor 

agreement? 

(App. in Supp. of Pl.'s Mot. Summ. J. at 2.) In accordance with the CBA, Marcus held a hearing and 

received evidence. After the hearing, Marcus invited the parties to submit post-hearing briefs arguing their positions. 

After review of the evidence and the parties' briefs, 

Marcus concluded that Allied Waste had breached 

the CBA. Marcus began his opinion discussing Article 16(5) of the CBA. He found that article to be 

"clear and unambiguous." (App. in Supp. of Pl.'s 

Mot. Summ. J. at 8.) The clear meaning, according 

to Marcus, was that Article 16(5) gave Allied 

Waste the right to terminate any employee who 

failed to perform the duties of any regular position 

or classification for any reason, including injury, 

for longer than six months. He stated that Allied 

Page 3 

Waste had "the contractual obligation to establish 

that Escobar did not perform the regular duties of 

any bargaining unit job classification after January 

23, 2003." (Id. at 9.) In other words, Marcus placed 

the burden on Allied Waste to prove that Escobar 

performed only modified duties between February 3 

and March 5. 

Based on the evidence, Marcus found that Escobar 

had perfoi ned his regular duties as a roll-off driver 

between February 3 and March 5, despite being 

placed on modified duty. Marcus rejected Allied 

Waste's argument that Escobar was obligated to infarm its safety manager that his assistant failed to 

offer any help. Nevertheless, Marcus found that 

Escobar had, on two occasions, notified his supervisors that his assistant was not providing any help 

and that because no corrective action occurred, 

Escobar continued to perform his regular duties until March 5. Marcus also noted that Allied Waste 

had not produced any evidence to counter Escobar's 

assertion that he continued to perform his regular 

duties between February 3 and March 5 without 

modification. Marcus particularly noted that Allied 

Waste never called the assistant it assigned to Escobar to testify at the hearing. 

*4 Because he found that Escobar did in fact perform the regular duties of a roll-off driver, Marcus 

concluded that the six-month clock under Article 

16(5) did not begin to run until March 5, the day 

Escobar stopped performing his regular duties altogether due to his on-the-job injury. Marcus interpreted the plain language of Article 16(5) to mean 

that the question is whether in fact the employee is 

actually performing his regular duties or was performing modified duties--not whether that employee was technically placed on a modified duty by a 

physician. Since it wasn't until March 5 that Escobar ceased performing his regular duties, the sixmonth clock did not expire until September 5. And 

because Escobar was cleared to work without any 

restrictions on August 22, which was before the sixmonth period had expired, Allied Waste violated 

the CBA when it terminated his employment on Ju-

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 

http ://web2 .we stl aw. c o m/print/printstre am.. aspx? sv=S p lit& destinati o n=atp &pri d=ia744 a51... 11/4/2009 

Not Reported in F.Supp.2d

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.)

(Cite as: 2007 WL 1703634 (N.D.Tex.))

PageS

ties during the past six months.

Escobar timely filed a grievance under the CBA. In

accordance with the CBA, the grievance was submitted to binding arbitration and the parties agreed

on Bernard Marcus to serve as the arbitrator. According to the CBA,

The arbitrator will be jointly contacted and asked

to hold a hearing at which both parties may

present evidence. The arbitrator shall decide only

the grievance submitted by applying the express

language of this agreement and shall have no authority to add to, subtract from, modify or amend

this agreement, but shall be limited to determining whether or not a violation of the terms have

been committed.

The arbitrator's duly rendered decision shall be

final and binding on the employer concerned, the

union, and the employee(s) involved.

(App. in Supp. of PL's Mot. Summ. J. at 22.)

The parties asked Marcus to answer the question,

Did [Allied Waste] have just cause to terminate

the employment of [Escobar] on the grounds that

[Escobar] failed to perform the duties of any regular position or classification in the bargaining

unit for a period longer than six months, as required in Article 16, Section 5, of the labor

agreement?

(App. in Supp. of PL's Mot. Summ. J. at 2.) In accordance with the CBA, Marcus held a hearing and

received evidence. After the hearing, Marcus invited the parties to submit post-hearing briefs arguing their positions.

After review of the evidence and the parties' briefs,

Marcus concluded that Allied Waste had breached

the CBA. Marcus began his opinion discussing Article 16(5) of the CBA. He found that article to be

"clear and unambiguous." (App. in Supp. of PL's

Mot. Summ. J. at 8.) The clear meaning, according

to Marcus, was that Article 16(5) gave Allied

Waste the right to terminate any employee who

failed to perform the duties of any regular position

or classification for any reason, including injury,

for longer than six months. He stated that Allied

Waste had "the contractual obligation to establish

that Escobar did not perform the regular duties of

any bargaining unit job classification after January

23, 2003." (Id. at 9.) In other words, Marcus placed

the burden on Allied Waste to prove that Escobar

performed only modified duties between February 3

and March 5.

Based on the evidence, Marcus found that Escobar

had performed his regular duties as a roll-off driver

between February 3 and March 5, despite being

placed on modified duty. Marcus rejected Allied

Waste's argument that Escobar was obligated to inform its safety manager that his assistant failed to

offer any help. Nevertheless, Marcus found that

Escobar had, on two occasions, notified his supervisors that his assistant was not providing any help

and that because no corrective action occurred,

Escobar continued to perform his regular duties until March 5. Marcus also noted that Allied Waste

had not produced any evidence to counter Escobar's

assertion that he continued to perform his regular

duties between February 3 and March 5 without

modification. Marcus particularly noted that Allied

Waste never called the assistant it assigned to Escobar to testify at the hearing.

*4 Because he found that Escobar did in fact perform the regular duties of a roll-off driver, Marcus

concluded that the six-month clock under Article

16(5) did not begin to run until March 5, the day

Escobar stopped performing his regular duties altogether due to his on-the-job injury. Marcus interpreted the plain language of Article 16(5) to mean

that the question is whether in fact the employee is

actually performing his regular duties or was performing modified duties—not whether that employee was technically placed on a modified duty by a

physician. Since it wasn't until March 5 that Escobar ceased performing his regular duties, the sixmonth clock did not expire until September 5. And

because Escobar was cleared to work without any

restrictions on August 22, which was before the sixmonth period had expired, Allied Waste violated

the CBA when it terminated his employment on Ju-

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

htfp://web2.westlaw.corn/print/printstrearn.aspx?sv:=Split&destirLation=atp&prid=ia744a51... 11/4/2009

APFA App. 053

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 62 of 92 PageID 1153
Not Reported in F.Supp.2d 

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.) 

(Cite as: 2007 WL 1703634 (N.D.Tex.)) 

ly 23, which was also before the six-month period 

had expired. 

As a result, Marcus directed Allied Waste to offer 

Escobar reinstatement to his former or equivalent 

position with no interruption in benefits or seniority. Further, Marcus directed Allied Waste to make 

Escobar whole for any loss of wages and other benefits between August 23, 2003, and the date he is 

reinstated or advises Allied Waste that he does not 

desire to return to work. Marcus allowed for an offset of any interim earnings, unemployment compensation, or state or federal assistance Escobar received after August 23. 

II. Analysis 

A. Standard 

Summary judgment is proper when the record establishes "that there is no genuine issue as to any 

material fact and that the moving party is entitled to 

judgment as a matter of law." Fed. R. Civ. P. 56(c). 

As mentioned above, the material facts in this case 

are not in dispute. What the parties dispute is the 

conclusion of the arbitrator that Allied Waste violated the CBA when it terminated Escobar's employment because he had not performed his regular duties for longer than six months. 

Judicial review of an arbitration decision arising 

from the teinis of a CBA is narrowly limited, and 

the Court is required to afford great deference to 

the arbitral award. See Beaird Industries, Inc. v. 

Local 2297, 404 F.3d 942, 944 (5th Cir.2005). The 

Supreme Court has emphasized that 

the question of interpretation of the collective 

bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was 

bargained for, and so far as the arbitrator's decision concerns construction of the contract, the 

courts have no business overruling him because 

their interpretation of the contract is different 

than his. 

United Steelworkers of America v. Enterprise 

Wheel & Car Corp., 363 U.S. 593, 598-99, 80 S.Ct. 

Page 4 

1358, 4 L.Ed.2d 1424 (1960). Of course, the arbitrator is not free to disregard the taints of the CBA 

and impose "his own brand of industrial justice." 

Beaird, 404 F.3d at 944. Accordingly, the Court 

will affirm an arbitral award " 'as long as the arbitrator is even arguably construing or applying the 

contract and acting within the scope of his authority 

...." Id. (quoting United Paperworkers Int'l Union v. 

Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 

L.Ed.2d 286 (1987)). If the arbitrator's decision 

"draw[s] its essence from the [CBA] ... the fact a 

court is convinced he committed serious error does 

not suffice to overturn his decision." Eastern Associated Coal cotp. v. United Mine Workers of America, District 17, et al., 531 U.S. 57, 62, 121 S.Ct. 

462, 148 L.Ed.2d 354 (2000) (internal quotations 

and citations omitted). 

*5 The Court has characterized the "essence test" as 

"rather metaphysical." Kergosien v. Ocean Energy, 

Inc., 390 F.3d 346, 353 (5th Cir.2004) (internal 

quotations and citations omitted). Thus, to draw its 

essence from the CBA, the award must in some logical way be derived from the wording or purpose 

of the contract, and "the single question is whether 

the award, however arrived at, is rationally inferable from the contract." Id. at 353-54. 

B. Discussion 

Allied Waste begins its attack by arguing that Marcus "fashioned his own brand of industrial justice 

and rendered an award that does not draw its essence from the contract." (Pl.'s Mot. for Summ J at 

5.) It contends that Marcus "completely ignored 

[the] plain language of the CBA." (Id.) Although 

characterized in that fashion, as will be discussed 

below, in reality Allied Waste's arguments invite 

the Court to second-guess Marcus's interpretation 

of Article 16(5) and his application of that article to 

the facts of this case. 

Allied Waste asseverates that, 

The language of the CBA is clear--if a doctor releases an employee to work with restrictions, the 

employee is on modified duty and is not perfoiui-

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 

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Not Reported in F.Supp.2d

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.)

(Cite as: 2007 WL 1703634 (N.D.Tex.))

Page 4

ly 23, which was also before the six-month period

had expired.

As a result, Marcus directed Allied Waste to offer

Escobar reinstatement to his former or equivalent

position with no interruption in benefits or seniority. Further, Marcus directed Allied Waste to make

Escobar whole for any loss of wages and other benefits between August 23, 2003, and the date he is

reinstated or advises Allied Waste that he does not

desire to return to work. Marcus allowed for an offset of any interim earnings, unemployment compensation, or state or federal assistance Escobar received after August 23.

II. Analysis

A. Standard

Summary judgment is proper when the record establishes "that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c).

As mentioned above, the material facts in this case

are not in dispute. What the parties dispute is the

conclusion of the arbitrator that Allied Waste violated the CBA when it terminated Escobar's employment because he had not performed his regular duties for longer than six months.

Judicial review of an arbitration decision arising

from the terms of a CBA is narrowly limited, and

the Court is required to afford great deference to

the arbitral award. See Beaird Industries, Inc. v.

Local 2297, 404 F.3d 942, 944 (5th Cir.2005). The

Supreme Court has emphasized that

the question of interpretation of the collective

bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was

bargained for, and so far as the arbitrator's decision concerns construction of the contract, the

courts have no business overruling him because

their interpretation of the contract is different

than his.

United Steehvorkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 593, 598-99, 80 S.Ct.

1358, 4 L.Ed.2d 1424 (1960). Of course, the arbitrator is not free to disregard the terms of the CBA

and impose "his own brand of industrial justice."

Beaird, 404 F.3d at 944. Accordingly, the Court

will affirm an arbitral award " 'as long as the arbitrator is even arguably construing or applying the

contract and acting within the scope of his authority

...." Id. (quoting United Paperworkers Int'l Union v.

Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98

L.Ed.2d 286 (1987)). If the arbitrator's decision

"draw[s] its essence from the [CBA] ... the fact a

court is convinced he committed serious error does

not suffice to overturn his decision." Eastern Associated Coal corp. v. United Mine Workers of America, District 17, et al., 531 U.S. 57, 62, 121 S.Ct.

462, 148 L.Ed.2d 354 (2000) (internal quotations

and citations omitted).

*5 The Court has characterized the "essence test" as

"rather metaphysical." Kergosien v. Ocean Energy,

Inc., 390 F.3d 346, 353 (5th Cir.2004) (internal

quotations and citations omitted). Thus, to draw its

essence from the CBA, the award must in some logical way be derived from the wording or purpose

of the contract, and "the single question is whether

the award, however arrived at, is rationally inferable from the contract." Id. at 353-54.

B. Discussion

Allied Waste begins its attack by arguing that Marcus "fashioned his own brand of industrial justice

and rendered an award that does not draw its essence from the contract." (PL's Mot. for Summ. J. at

5.) It contends that Marcus "completely ignored

[the] plain language of the CBA." (Id) Although

characterized in that fashion, as will be discussed

below, in reality Allied Waste's arguments invite

the Court to second-guess Marcus's interpretation

of Article 16(5) and his application of that article to

the facts of this case.

Allied Waste asseverates that,

The language of the CBA is clear—if a doctor releases an employee to work with restrictions, the

employee is on modified duty and is not perform-

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

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APFA App. 054

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 63 of 92 PageID 1154
Not Reported in F.Supp.2d 

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.) 

(Cite as: 2007 WL 1703634 (N.D.Tex.)) 

ing the functions of his regular position. 

(Pl.'s Mot. for Summ. J. at 6.) Allied Waste argues 

that Marcus's construction of Article 16(5) is erroneous because it makes it impossible for Allied 

Waste to place any of its employees on modified 

duty under the CBA or to terminate any of its employees for failing to perform their regular duties 

for six months. (Pl.'s Mot. for Summ. J. at 6.) Allied Waste contends that his interpretation allows 

its employees to simply claim that they performed 

some of their regular duties while they were on 

modified duty, and that any employee can just reset 

the six-month clock by performing his regular duties while placed on modified duty. 

Allied Waste argues that the correct interpretation 

of Article 16(5) is that any work an employee performs while placed on modified duty by a physician 

does not qualify as performing regular duties. It is 

not until a physician removes the restrictions and 

clears the employee to perform his regular duties 

does the six-month clock end--according to Allied 

Waste's interpretation. Thus, "the fact that Escobar 

claims to have performed his regular duties for approximately one month ... is beside the point" (Pl.'s 

Resp. to Def.'s Mot. for Summ. J. at 2.) 

Further, Allied Waste argues that Marcus's interpretation is erroneous because it allows for its employees to merely disregard the orders of physicians 

placing them on modified duty. Allied Waste contends that its termination of Escobar was justified 

nonetheless because he violated the CBA and its 

rules when he continued to perform his regular duties despite a physician order to the contrary. Allied 

Waste argues, "Escobar should not be able to unilaterally avoid the plain language of the CBA by 

blatantly disregarding his doctor's orders and performing work beyond his restrictions without notifying the safety manager, Ruby Silva." (Pl.'s Mot. 

for Summ. S. at 6.) 

*6 Finally, Allied Waste contends that Marcus 

erred when he concluded that Escobar was not required to report his situation to Silva. According to 

Allied Waste, the February 3 letter to Escobar 

Page 5 

clearly advised him to direct any questions or concerns he had regarding his modified duty to Silva. 

Under the CBA, Allied Waste contends that Escobar had no authority to continue to perform his regular duties without informing Silva. 

Marcus considered these arguments and rejected 

them. He observed that Article 16(5) clearly and 

unambiguously gave Allied Waste the right to terminate the employment of any employee who was 

not performing his regular duties, for whatever 

reason, for longer than six months. He concluded, 

however, that Article 16(5) speaks in terms of an 

employee's actual performance and not in terms of 

a physician's order placing an employee on modified duty. Thus, for Marcus, whether Escobar continued to perform his regular duties despite a physician order to the contrary was not "besides the 

point," but was the critical question. 

Based on the evidence, Marcus found, as fact, that 

Escobar had been performing his regular duties 

from February 3 until March 5 despite the physician order. Applying his interpretation of the CBA, 

Marcus concluded that the six-month clock under 

Article 16(5) did not begin to run until March 5, the 

day Escobar actually stopped performing his regular duties. 

Furthermore, Allied Waste did not discharge Escobar because he continued to perform his regular duties despite a physician order otherwise. And the 

parties did not submit that issue to Marcus for arbitration. According to the CBA, Marcus was strictly 

confined to adjudicating the issue the parties submitted to him, and that issue concerned Allied 

Waste's decision to terminate Escobar's employment because he had not performed his regular duties for more than six months under Article 16(5). 

Thus, Marcus would have acted outside of his authority if he determined that, because Allied Waste 

could have terminated Escobar for alternative reasons, it did not violate the CBA. 

Moreover, Allied Waste fails to point to any provision in the CBA that required Escobar to report to 

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 

http ://web2.we stlaw. c om/print/printstre am. aspx? sv—Sp lit& de stinatio n=atp &prid=ia744a51... 11/4/2009 

Not Reported in F.Supp.2d

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.)

(Cite as: 2007 WL 1703634 (N.D.Tex.))

Page 5

ing the functions of his regular position.

(PL's Mot. for Summ. J. at 6.) Allied Waste argues

that Marcus's construction of Article 16(5) is erroneous because it makes it impossible for Allied

Waste to place any of its employees on modified

duty under the CBA or to terminate any of its employees for failing to perform their regular duties

for six months. (PL's Mot. for Summ. J. at 6.) Allied Waste contends that his interpretation allows

its employees to simply claim that they performed

some of their regular duties while they were on

modified duty, and that any employee can just reset

the six-month clock by performing his regular duties while placed on modified duty.

Allied Waste argues that the correct interpretation

of Article 16(5) is that any work an employee performs while placed on modified duty by a physician

does not qualify as performing regular duties. It is

not until a physician removes the restrictions and

clears the employee to perform his regular duties

does the six-month clock end-according to Allied

Waste's interpretation. Thus, "the fact that Escobar

claims to have performed his regular duties for approximately one month ... is beside the point." (PL's

Resp. to Def.'s Mot. for Summ. J. at 2.)

Further, Allied Waste argues that Marcus's interpretation is erroneous because it allows for its employees to merely disregard the orders of physicians

placing them on modified duty. Allied Waste contends that its termination of Escobar was justified

nonetheless because he violated the CBA and its

rules when he continued to perform his regular duties despite a physician order to the contrary. Allied

Waste argues, "Escobar should not be able to unilaterally avoid the plain language of the CBA by

blatantly disregarding his doctor's orders and performing work beyond his restrictions without notifying the safety manager, Ruby Silva." (PL's Mot.

for Summ. J. at 6.)

*6 Finally, Allied Waste contends that Marcus

erred when he concluded that Escobar was not required to report his situation to Silva. According to

Allied Waste, the February 3 letter to Escobar

clearly advised him to direct any questions or concerns he had regarding his modified duty to Silva.

Under the CBA, Allied Waste contends that Escobar had no authority to continue to perform his regular duties without informing Silva.

Marcus considered these arguments and rejected

them. He observed that Article 16(5) clearly and

unambiguously gave Allied Waste the right to terminate the employment of any employee who was

not performing his regular duties, for whatever

reason, for longer than six months. He concluded,

however, that Article 16(5) speaks in terms of an

employee's actual performance and not in terms of

a physician's order placing an employee on modified duty. Thus, for Marcus, whether Escobar continued to perform his regular duties despite a physician order to the contrary was not "besides the

point," but was the critical question.

Based on the evidence, Marcus found, as fact, that

Escobar had been performing his regular duties

from February 3 until March 5 despite the physician order. Applying his interpretation of the CBA,

Marcus concluded that the six-month clock under

Article 16(5) did not begin to run until March 5, the

day Escobar actually stopped performing his regular duties.

Furthermore, Allied Waste did not discharge Escobar because he continued to perform his regular duties despite a physician order otherwise. And the

parties did not submit that issue to Marcus for arbitration. According to the CBA, Marcus was strictly

confined to adjudicating the issue the parties submitted to him, and that issue concerned Allied

Waste's decision to terminate Escobar's employment because he had not performed his regular duties for more than six months under Article 16(5).

Thus, Marcus would have acted outside of his authority if he determined that, because Allied Waste

could have terminated Escobar for alternative reasons, it did not violate the CBA.

Moreover, Allied Waste fails to point to any provision in the CBA that required Escobar to report to

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

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APFA App. 055

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 64 of 92 PageID 1155
Not Reported in F.Supp.2d 

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.) 

(Cite as: 2007 WL 1703634 (N.D.Tex.)) 

its safety manager, Silva, that the conditions of his 

position required him to perform his regular duties 

beyond the physician-ordered restrictions. At best, 

Allied Waste points to the letter it sent Escobar on 

February 3. The CBA, however, provides that, "Employees shall immediately, or at the end of their 

shift, report all injuries to their immediate supervisor ...." (App. in Supp. of Pl.'s Mot. Summ. 3. at 

25.) Escobar twice reported to his immediate supervisors that his assistant failed to help him in any 

way and as a result, he was required to continue to 

perform his regular duties despite being injured. 

The record shows that Marcus discharged his duties 

in accordance with the CBA and that he acted well 

within the scope of his authority. Following the 

terms of the CBA, Marcus held a hearing and gave 

both sides the opportunity to submit evidence. Additionally, a review of the language in Article 16(5) 

and in the CBA establishes that Marcus's interpretation and decision can be rationally inferred from it. 

Article 16(5) uses the words "perform" and "performing." Thus it is rational to infer that Article 

16(5)'s primary concern is the actual work the employee is perfoiming and not whether the employee 

was placed on modified duty by a physician. And 

the CBA provides that employees are to report their 

injuries to their immediate supervisors, not the 

safety manager. Thus, Marcus's conclusion that 

Escobar was not required to report his situation to 

Silva and that he fulfilled any obligations he had by 

reporting his situation to his immediate supervisors 

is also rationally based on the CBA. 

*7 It is beyond the purview of this Court to review 

Marcus's findings of fact or to second-guess his interpretation and application of the CBA. As long as 

Marcus acted within the scope of his authority and 

his decision can be rationally inferred from the text 

and purpose of the CBA, this Court must confirm 

his decision and award. The Court's review is very 

narrow, and to the extent Allied Waste's arguments 

invite the Court to do otherwise, the Court must decline the invitation. 

C. Attorney's Fees 

Page 6 

Local 767 contends that Allied Waste's refusal to 

abide by and comply with the arbitrator's decision 

is without justification. Thus, Local 767 argues that 

it is entitled to reasonable attorney's fees. 

As a starting point, the Supreme Court has repeatedly reaffirmed the "American Rule" holding 

that each party in a lawsuit ordinarily shall bear its 

own attorney's fees--"the prevailing party is not entitled to collect from the loser." Buckhannon Bd & 

Care Home, Inc., et al. v. West Virginia Dep't of 

Health & Human Res., et al., 532 U.S. 598, 602, 

121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); Hensley, 

et al. v. Eckerhart, et al., 461 U.S. 424, 429, 103 

S.Ct. 1933, 76 L.Ed.2d 40 (1983); Alyeska Pipeline 

Service Co. v. Wilderness Society, 421 U.S. 240, 

247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Under 

this practice, a court will not award attorney's fees 

to a prevailing party "absent explicit statutory authority." Buckhannon, 532 U.S. at 602. 

Section 301 of LMERA does not explicitly provide 

for attorney's fees in a suit brought to vacate an arbitrator's award or to order its enforcement. Nevertheless, under the law of this Circuit, "when a challenger refuses to abide by an arbitrator's decision 

without justification, attorney's fees and costs may 

properly be awarded." Bell Production Engineers 

Association v. Bell Helicopter Textron, 688 F.2d 

997, 999 (5th Cir.1982). Of course, it is not enough 

simply to say that because the judicial challenge to 

the arbitration decision was unsuccessful, the refusal to abide by it, a fortiori, was without justification. International Association of Machinists & 

Aerospace Workers, District 766 v. Texas Steel 

Company, 639 F.2d 279, 283 (5th Cir.1981). On 

the other hand, merely asserting, as grounds for refusing to accept the binding arbitration decision, 

that the arbitrator exceeded his authority, ignored 

the express terms of the CBA, and fashioned his 

own brand of industrial justice, does not mean that 

the refusal was justified. See Id. "Rather, the 

Court must look to the realities of the situation." 

Id. 

The reality of the situation here is that Allied 

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Not Reported in F.Supp.2d

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.)

(Cite as: 2007 WL 1703634 (N.D.Tex.))

Page 6

its safety manager, Silva, that the conditions of his

position required him to perform his regular duties

beyond the physician-ordered restrictions. At best,

Allied Waste points to the letter it sent Escobar on

February 3. The CBA, however, provides that, "Employees shall immediately, or at the end of their

shift, report all injuries to their immediate supervisor ...." (App. in Supp. of PL's Mot. Summ. J. at

25.) Escobar twice reported to his immediate supervisors that his assistant failed to help him in any

way and as a result, he was required to continue to

perform his regular duties despite being injured.

The record shows that Marcus discharged his duties

in accordance with the CBA and that he acted well

within the scope of his authority. Following the

terms of the CBA, Marcus held a hearing and gave

both sides the opportunity to submit evidence. Additionally, a review of the language in Article 16(5)

and in the CBA establishes that Marcus's interpretation and decision can be rationally inferred from it.

Article 16(5) uses the words "perform" and "performing." Thus it is rational to infer that Article

16(5)'s primary concern is the actual work the employee is performing and not whether the employee

was placed on modified duty by a physician. And

the CBA provides that employees are to report their

injuries to their immediate supervisors, not the

safety manager. Thus, Marcus's conclusion that

Escobar was not required to report his situation to

Silva and that he fulfilled any obligations he had by

reporting his situation to his immediate supervisors

is also rationally based on the CBA.

*7 It is beyond the purview of this Court to review

Marcus's findings of fact or to second-guess his interpretation and application of the CBA. As long as

Marcus acted within the scope of his authority and

his decision can be rationally inferred from the text

and purpose of the CBA, this Court must confirm

his decision and award. The Court's review is very

narrow, and to the extent Allied Waste's arguments

invite the Court to do otherwise, the Court must decline the invitation.

C. Attorney's Fees

Local 767 contends that Allied Waste's refusal to

abide by and comply with the arbitrator's decision

is without justification. Thus, Local 767 argues that

it is entitled to reasonable attorney's fees.

As a starting point, the Supreme Court has repeatedly reaffirmed the "American Rule" holding

that each party in a lawsuit ordinarily shall bear its

own attorney's fees-"the prevailing party is not entitled to collect from the loser." Buckhannon Bd. &

Care Home, Inc., et al. v. West Virginia Dep't oj

Health & Human Res., et al, 532 U.S. 598, 602,

121 S.Ct 1835, 149 L.Ed.2d 855 (2001); Hensley,

et al. v. Eckerhart, et al., 461 U.S. 424, 429, 103

S.Ct. 1933, 76 L.Ed.2d 40 (1983); Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240,

247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Under

this practice, a court will not award attorney's fees

to a prevailing party "absent explicit statutory authority." Buckhannon, 532 U.S. at 602.

Section 301 of LMBA does not explicitly provide

for attorney's fees in a suit brought to vacate an arbitrator's award or to order its enforcement. Nevertheless, under the law of this Circuit, "when a challenger refuses to abide by an arbitrator's decision

without justification, attorney's fees and costs may

properly be awarded." Bell Production Engineers

Association v. Bell Helicopter Textron, 688 F.2d

997, 999 (5th Cir.1982). Of course, it is not enough

simply to say that because the judicial challenge to

the arbitration decision was unsuccessful, the refusal to abide by it, a fortiori, was without justification. International Association of Machinists &

Aerospace Workers, District 766 v. Texas Steel

Company, 639 F.2d 279, 283 (5th Cir.1981). On

the other hand, merely asserting, as grounds for refusing to accept the binding arbitration decision,

that the arbitrator exceeded his authority, ignored

the express terms of the CBA, and fashioned his

own brand of industrial justice, does not mean that

the refusal was justified. See Id. "Rather, the

Court must look to the realities of the situation."

Id.

The reality of the situation here is that Allied

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APFA App. 056

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 65 of 92 PageID 1156
Not Reported in F.Supp.2d 

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.) 

(Cite as: 2007 WL 1703634 (N.D.Tex.)) 

Waste's objections to Marcus's decision go to his 

construction of Article 16(5) and its application to 

the facts of this case. Nothing in Allied Waste's arguments, although couched in that fashion, address 

whether Marcus acted outside the scope of his authority or that his decision cannot be rationally inferred from the text and purpose of the CBA. Just 

because there may be room to disagree with Marcus's interpretation and application of Article 16(5) 

does not mean that his interpretation and application cannot be rationally inferred from it. Allied 

Waste's objections to Marcus's decision, properly 

characterized, involve the intrinsic merits of the 

dispute. 

*8 The Court has a duty to sanction 

frivolous and wasteful judicial challenges to 

conscientious and fair arbitration decisions .... 

The federal labor policy favoring voluntary 

arbitration dictates that when a refusal to 

abide by an arbitration decision is without justification, and judicial enforcement is necessary, the court should award the party seeking 

enforcement reasonable costs and attorney's 

fees incurred in that effort. This sanction is necessary lest federal labor policy be frustrated 

by judicial condonation of dilatory tactics that 

lead to wasteful and unnecessary litigation. 

Texas Steel Company, 639 F.2d at 284 (holding 

district court abused discretion by not awarding attorney's fees). 

III. Conclusion 

For the foregoing reasons, Allied Waste's summaryjudgment motion is DENIED (doc. # 12), and Local 

767's summary-judgment motion is GRANTED 

(doc. # 15). The arbitration decision and award 

entered on March 27, 2006, by Bernard Marcus and 

attached as Exhibit A to Allied Waste's original 

complaint is HEREBY CONFIRMED. Local 767 is 

entitled to judicial enforcement of the arbitrator's 

decision and award. Further, Local 767 is entitled 

to costs and reasonable attorney's fees incurred in 

defending this action and seeking enforcement. 

Local 767 shall have fourteen days from the date of 

Page 7 

this order to submit affidavits in support of such 

costs and fees, after which time Allied Waste shall 

have seven days to file any objections to the reasonableness of the costs and fees claimed. 

Not Reported in F.Supp.2d, 2007 WL 1703634 

(N.D.Tex.) 

END OF DOCUMENT 

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Not Reported in F.Supp.2d

Not Reported in F.Supp.2d, 2007 WL 1703634 (N.D.Tex.)

(Cite as: 2007 WL 1703634 (N.D.Tex.))

Page 7

Waste's objections to Marcus's decision go to his

construction of Article 16(5) and its application to

the facts of this case. Nothing in Allied Waste's arguments, although couched in that fashion, address

whether Marcus acted outside the scope of his authority or that his decision cannot be rationally inferred from the text and purpose of the CBA. Just

because there may be room to disagree with Marcus's interpretation and application of Article 16(5)

does not mean that his interpretation and application cannot be rationally inferred from it. Allied

Waste's objections to Marcus's decision, properly

characterized, involve the intrinsic merits of the

dispute.

*8 The Court has a duty to sanction

frivolous and wasteful judicial challenges to

conscientious and fair arbitration decisions ....

The federal labor policy favoring voluntary

arbitration dictates that when a refusal to

abide by an arbitration decision is without justification, and judicial enforcement is necessary, the court should award the party seeking

enforcement reasonable costs and attorney's

fees incurred in that effort. This sanction is necessary lest federal labor policy be frustrated

by judicial condonation of dilatory tactics that

lead to wasteful and unnecessary litigation.

Texas Steel Company, 639 F.2d at 284 (holding

district court abused discretion by not awarding attorney's fees).

III. Conclusion

For the foregoing reasons, Allied Waste's summaryjudgment motion is DENTED (doc. # 12), and Local

767's summary-judgment motion is GRANTED

(doc. # 15). The arbitration decision and award

entered on March 27, 2006, by Bernard Marcus and

attached as Exhibit A to Allied Waste's original

complaint is HEREBY CONFIRMED. Local 767 is

entitled to judicial enforcement of the arbitrator's

decision and award. Further, Local 767 is entitled

to costs and reasonable attorney's fees incurred in

defending this action and seeking enforcement.

Local 767 shall have fourteen days from the date of

this order to submit affidavits in support of such

costs and fees, after which time Allied Waste shall

have seven days to file any objections to the reasonableness of the costs and fees claimed.

Not Reported in F.Supp.2d, 2007 WL 1703634

(N.D.Tex.)

END OF DOCUMENT

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APFA App. 057

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 66 of 92 PageID 1157
Ball Metal Container Corp. v. UAW Local 129, 2022 U.S. 

App. LEXIS 33214, 2022 WL 340573 at *7-8 (5th Cir. 

2022) (unpublished). 

APFA App. 058

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 67 of 92 PageID 1158
 Neutral

As of: September 18, 2022 12:08 AM Z

Ball Metal Bev. Container Corp. v. Local 129, UAW

United States Court of Appeals for the Fifth Circuit

February 4, 2022, Filed

No. 21-10755

Reporter

2022 U.S. App. LEXIS 3214 *; 2022 WL 340573

BALL METAL BEVERAGE CONTAINER 

CORPORATION, Plaintiff-Appellee, versus LOCAL 129, 

UNITED AUTOMOBILE, AEROSPACE, AND 

AGRICULTURAL IMPLEMENT WORKERS OF 

AMERICA, Defendant-Appellant.

Notice: PLEASE REFER TO FEDERAL RULES OF 

APPELLATE PROCEDURE RULE 32.1 GOVERNING 

THE CITATION TO UNPUBLISHED OPINIONS.

Prior History: [*1] Appeal from the United States 

District Court for the Northern District of Texas. USDC 

4:20-CV-797.

Ball Metal Bev. Container Corp. v. United Auto., Aero. & 

Agric. Implement Workers, Local 129, 547 F. Supp. 3d 

568, 2021 U.S. Dist. LEXIS 145414, 2021 WL 3277270 

(N.D. Tex., July 6, 2021)

Core Terms

arbitrator, termination, just cause, harassment, Grievant, 

discipline, violations, arbitration award, suspension, 

parties, arbitral decision, employees, proper cause, 

attorney's fees, ambiguity, benefits, modified, terms, 

backpay, bargaining, seniority, exceeded, plant, 

disciplinary action, summary judgment, noncompliance, 

reasons, suspend, vacatur, rights

Case Summary

Overview

HOLDINGS: [1]-The employee's harassment violation 

warranted appropriate disciplinary action, up to and 

including termination, and the flexibility in this 

disciplinary approach permitted the arbitrator to opt for a 

penalty short of termination; [2]-Because the arbitrator's 

opinion did not unambiguously reflect that the arbitrator 

exceeded his authority, the appellate court must enforce 

his award; [3]-Because the company's challenge was 

jurisdictional, the district court did not abuse its 

discretion in denying a fee award; [4]-When an 

arbitrator's decision did not specify the award during a 

period of noncompliance, the court was authorized to 

remand to the arbitrator for clarification.

Outcome

Judgment reversed and remanded.

LexisNexis® Headnotes

Business & Corporate Compliance > ... > Alternative 

Dispute Resolution > Arbitration > Arbitrability

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Arbitration 

Awards

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Validity 

of ADR Methods

HN1[ ] Arbitration, Arbitrability

When the parties submit a dispute for arbitration, the 

arbitrator's decision shall be final and binding on all 

parties. The arbitrator's authority, however, is 

constrained.

Governments > Courts > Rule Application & 

Interpretation

APFA App. 059

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 68 of 92 PageID 1159
Page 2 of 12

HN2[ ] Courts, Rule Application & Interpretation

More generally, for violations of plant rules and 

company policies, progressive discipline is to be 

followed except that steps for discipline may be 

accelerated depending upon the severity of the 

infraction and if there is a pattern of violation of any of 

the rules.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Second Level 

Review

Civil Procedure > ... > Summary 

Judgment > Entitlement as Matter of 

Law > Appropriateness

Civil Procedure > Judgments > Summary 

Judgment > Entitlement as Matter of Law

Civil Procedure > ... > Summary 

Judgment > Summary Judgment 

Review > Standards of Review

HN3[ ] Alternative Dispute Resolution, Judicial 

Review

The appellate court reviews a district court's grant of 

summary judgment in a suit to vacate an arbitration 

award de novo. Summary judgment is appropriate if the 

movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a 

matter of law.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Arbitration 

Awards

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Scope of Authority

HN4[ ] Alternative Dispute Resolution, Judicial 

Review

Judicial review of arbitration awards is severely limited. 

The standard for this review is among the narrowest 

known to the law. When an arbitration award settles a 

labor dispute, judicial review is particularly constrained. 

The reasons for insulating arbitral decisions from judicial 

review are grounded in the federal statutes regulating 

labor-management relations, which reflect a decided 

preference for private settlement of labor disputes 

without the intervention of government.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Arbitration 

Awards

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Essence of 

Agreements

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Scope of Authority

Labor & Employment Law > ... > Labor 

Arbitration > Arbitrators > Authority

HN5[ ] Alternative Dispute Resolution, Judicial 

Review

Under this unusually deferential standard of review, 

courts are not authorized to reconsider the merits of an 

award. Because the parties bargained for the arbitrator's 

construction of their agreement, an arbitral decision 

even arguably construing or applying the contract must 

stand, regardless of a court's view of its (de)merits. 

Instead of assessing how well the arbitrator interpreted 

the contract, we ask if the arbitrator acted within the 

contract's bounds. An arbitrator is confined to 

interpretation and application of the collective bargaining 

agreement; he does not sit to dispense his own brand of 

industrial justice.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

2022 U.S. App. LEXIS 3214, *1

APFA App. 060

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 69 of 92 PageID 1160
Page 3 of 12

Labor & Employment Law > ... > Labor 

Arbitration > Arbitrators > Authority

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Essence of 

Agreements

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Second Level 

Review

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Scope of Authority

HN6[ ] Alternative Dispute Resolution, Judicial 

Review

To determine whether arbitrators have overstepped their 

authority, courts apply the essence test, evaluating 

whether the arbitration award has a basis that is at least 

rationally inferable, if not obviously drawn, from the 

letter or purpose of the collective bargaining agreement. 

Where the arbitrator exceeds the express limitations of 

his contractual mandate, judicial deference is at an end. 

In these situations, an arbitrator is no longer applying or 

interpreting the agreement but rewriting it, and the 

appellate court will vacate the award. Where there is 

ambiguity as to whether an arbitrator is acting within the 

scope of his authority, however, that ambiguity must be 

resolved in favor of the arbitrator.

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Discipline, 

Layoffs & Terminations

Labor & Employment Law > Wrongful 

Termination > Breach of Contract > For Cause 

Standard

HN7[ ] Labor Arbitration, Discipline, Layoffs & 

Terminations

Explicating broad CBA terms like cause, when left 

undefined by contract, is the arbitrator's charge. In 

addition to assessing the nature of the violations, an 

arbitrator may under the precedents take account of 

employee tenure in determining whether just cause for 

discipline exists rather than for dismissal.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

HN8[ ] Alternative Dispute Resolution, Judicial 

Review

The correctness of the arbitrator's interpretation is 

irrelevant so long as it was an interpretation.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Arbitration 

Awards

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Essence of 

Agreements

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Scope of Authority

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Second Level 

Review

HN9[ ] Alternative Dispute Resolution, Judicial 

Review

When there are two alternative constructions of an 

arbitrator's reasoning, one of which would uphold the 

decision, the appellate court must enforce the award. As 

the Supreme Court has explained, a mere ambiguity in 

the opinion accompanying an award, which permits the 

inference that the arbitrator may have exceeded his 

authority, is not a reason for refusing to enforce the 

award. Unless the arbitral decision does not draw its 

essence from the collective bargaining agreement, a 

court is bound to enforce the award even when the 

basis for the arbitrator's decision may be ambiguous.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

HN10[ ] Alternative Dispute Resolution, Judicial 

Review

2022 U.S. App. LEXIS 3214, *1

APFA App. 061

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 70 of 92 PageID 1161
Page 4 of 12

Given that arbitrators need not explain their reasoning at 

all, an ambiguity in reasoning generally will not disturb 

their awards. It has long been settled that arbitrators are 

not required to disclose or explain the reasons 

underlying an award. Although explanations of 

arbitration awards are not mandatory, they are 

desirable. To encourage justification, the Supreme 

Court has advised against overturning awards based on 

ambiguities that can be identified in the explanations 

arbitrators choose to give, since that would discourage 

them from providing those reasons in the first place. So 

long as the appellate court can discern a possible 

rationale from the arbitrator's actions, his decision must 

stand.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

HN11[ ] Alternative Dispute Resolution, Judicial 

Review

Before the court rejects an award because of language 

in the arbitrator's opinion, the opinion must 

unambiguously reflect that the arbitrator based his 

decision on noncontractual grounds.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

Civil Procedure > Appeals > Standards of 

Review > Abuse of Discretion

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > Second Level 

Review

Civil Rights Law > ... > Procedural Matters > Costs 

& Attorney Fees > Appellate Review

HN12[ ] Alternative Dispute Resolution, Judicial 

Review

The appellate court reviews the district court's denial of 

attorneys' fees for abuse of discretion. For the same 

reason that judicial review of arbitration awards is 

limited, a party may be awarded attorneys' fees if it has 

to fight back a court challenge to the award it obtained 

in the parties' chosen forum.

Business & Corporate Compliance > ... > Alternative 

Dispute Resolution > Arbitration > Arbitrability

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

HN13[ ] Arbitration, Arbitrability

Courts award fees when the challenge to the arbitrator's 

decision is without justification. Without justification 

refers not to the strength of the challenge but to the 

type. Challenges to an arbitrator's jurisdiction or 

authority do not result in fee awards, whereas 

challenges to the intrinsic merits of a dispute justify fee 

awards even if the challenges are not frivolous. When 

parties have agreed to arbitrate a dispute, a subsequent 

court challenge to the merits is not justified even when 

that question is close because going to court is at odds 

with the parties' agreement to be bound by the 

arbitrator's decision.

Business & Corporate Compliance > ... > Pretrial 

Matters > Alternative Dispute Resolution > Judicial 

Review

HN14[ ] Alternative Dispute Resolution, Judicial 

Review

When an arbitrator's decision does not specify the 

award during a period of noncompliance, the court is 

authorized to remand to the arbitrator for clarification.

Counsel: For Ball Metal Beverage Container 

Corporation, Plaintiff - Appellee: onathan Gary Rector, 

Esq., Barbi McClennen Lorenz, Littler Mendelson, P.C., 

Dallas, TX.

For Local 129, United Automobile, Aerospace, and 

Agricultural Implement Workers of America, Defendant - 

Appellant: James Roddy Tanner, Esq., Jamie King 

Harrison, Tanner & Associates, P.C., Fort Worth, TX.

Judges: Before OWEN, Chief Judge, and CLEMENT 

and ENGELHARDT, Circuit Judges.

Opinion

2022 U.S. App. LEXIS 3214, *1

APFA App. 062

Case 4:22-cv-00343-Y Document 44 Filed 09/20/22 Page 71 of 92 PageID 1162
PER CURIAM:

*

This labor dispute concerns an arbitrator's decision. We 

uphold the award and reverse the contrary judgment of 

the district court. The parties may present their 

arguments regarding back pay and benefits from the 

date that the employee was prepared to return to work 

for arbitration.

I

Ball Metal Beverage Container Corporation (Ball Metal) 

operates a beverage can plant in Fort Worth, Texas. 

Local 129, United Automobile, Aerospace, and 

Agricultural Implement Workers of America (Local 129) 

is a labor union that serves as the exclusive bargaining 

representative for some Ball Metal employees.

Ball Metal and Local 129 are parties to a collective 

bargaining agreement [*2] (CBA) that governs the 

terms of employment for employees represented by the 

union. The version of the CBA pertinent to this dispute 

contains a management rights provision that includes 

this provision:

Except as otherwise expressly limited by this 

Agreement, all functions of management not 

otherwise relinquished or limited shall remain 

vested exclusively in the Company, including, but 

not limited to . . . hire, discipline, or discharge 

employees for just cause; . . . provided that these 

rights shall not be exercised in any manner which 

would constitute a breach of any other Article of this 

Agreement.

Another article of the agreement, titled "Disciplinary 

Actions and Discharge," provides: "The right of the 

Company to discipline or discharge employees for good 

cause including violations of this Agreement or 

Company rules is hereby acknowledged." Aside from 

these provisions, the CBA does not describe what 

constitutes just or good cause.

The CBA also outlines procedures for addressing 

grievances, including arbitration procedures. HN1[ ] 

When the parties submit a dispute for arbitration, the 

arbitrator's decision "shall be final and binding on all 

parties." The arbitrator's authority, however, is [*3] 

* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined 

that this opinion should not be published and is not precedent 

except under the limited circumstances set forth in 5TH CIRCUIT 

RULE 47.5.4.

constrained. The agreement states that "[t]he jurisdiction 

of the arbitrator shall be limited to interpreting or 

determining compliance with the terms of this 

Agreement. The arbitrator shall have no power to add to 

or subtract from, to disregard or modify any part or all of 

the terms of this Agreement."

Ball Metal has rules and policies that govern 

misconduct. There is a plant rule against harassment as 

well as a company policy that prohibits discrimination, 

harassment, and retaliation. The plant rule defines 

harassment as activity "of a sexual nature, racial nature, 

a religious nature or any activity that can be construed 

as harassment." Employee training materials describe 

harassment as including "behavior towards another 

person which is unwelcome and personally offensive to 

[the] recipient and . . . creates an intimidating, offensive 

or hostile work environment."

Ball Metal does not prescribe any particular sanction for 

a harassment violation. The harassment policy provides 

only that violations "will subject th[e] employee to 

appropriate disciplinary action, up to and including 

termination." HN2[ ] More generally, for violations of 

plant rules and company policies, "progressive 

discipline [*4] is to be followed except that steps for 

discipline 'may be accelerated depending upon the 

severity of the infraction and if there is a pattern of 

violation of any of the rules.'" The procedure is different 

for selected rules not at issue here whose violation "will 

result in automatic suspension for purpose of 

discharge."

Shawn Allen, a Ball Metal employee, was a member 

and an elected shop chairman of the union. He had 

worked at Ball Metal since 2006. In 2019, Allen was 

accused of harassing a coworker. Specifically, he was 

accused of yelling at the coworker and calling him a "f---

---g scab" after learning that the coworker had left the 

union. Allen had been accused of similar conduct in the 

past. He had not otherwise been disciplined for 

behavioral or productivity issues.

After an investigation, Ball Metal terminated Allen in late 

June 2019. Local 129 filed a grievance contesting the 

termination decision, which proceeded to arbitration. 

The parties presented these questions to the arbitrator: 

"Whether or not the Grievant, Shawn Allen, was 

terminated for proper cause and, if not, what is the 

appropriate remedy?"1

1 As noted, the CBA uses the terms "just cause" and "good 

cause," and the parties framed the issue for the arbitrator 

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On July 6, 2020, the arbitrator issued an opinion and 

award. In the "DISCUSSION [*5] AND FINDINGS" 

section of the decision, the arbitrator determined that, 

"[u]nder the parties['] CBA, . . . the Company had proper 

cause to discipline the Grievant for violation of" Ball 

Metal's harassment policy and plant rule. The arbitrator 

also determined that, "[b]esides the CBA and Company 

Policy, the Grievant's conduct violated the Preamble of 

the CBA," which urged "promot[ing] a cooperative and 

progressive industrial and economic relationship 

between the Company and its employees." The 

arbitrator further explained that "while the Company's 

decision to terminate the Grievant was for just cause, 

the Arbitrator must give some recognition to his thirteen 

(13) years of service." He concluded that "based upon 

all the previous discussion the termination decision is 

modified in the following AWARD."

On the following page, under the heading "AWARD," the 

arbitrator wrote: "The Grievant, Shawn Allen was not 

terminated for proper cause, as the Company failed to 

give proper consideration to the Grievant's seniority." 

The award provided that, instead of termination, Allen 

would be suspended from the date of his discharge to 

the date of his return to work; he would be offered 

immediate reinstatement [*6] without back pay or 

benefits; and he would retain his seniority. In essence, 

the arbitrator reduced the sanction to a roughly yearlong 

unpaid suspension.

The day after the arbitrator issued the decision, Local 

129 informed Ball Metal that Allen wanted to return to 

work and was prepared to do so immediately. The 

company declined to reinstate him. Instead, on July 30, 

2020, Ball Metal filed suit under § 301 of the Labor 

Management Relations Act seeking vacatur of the 

arbitrator's award. Local 129 counterclaimed seeking 

enforcement of the arbitrator's award, attorneys' fees, 

and back pay and benefits for the period of 

noncompliance since the award. The parties filed cross 

motions for summary judgment.

The district court granted summary judgment in favor of 

using a third term, "proper cause." The record shows no 

distinction in the meaning of the terms, and neither party 

argues for one. For ease of reading, we use the terms 

interchangeably. Cf. Delta Queen Steamboat Co. v. Dist. 2 

Marine Eng'rs Beneficial Ass'n, 889 F.2d 599, 604 (5th Cir. 

1989) (observing that the phrases "proper cause" and "just 

cause" "carr[y] no talismanic significance in labor 

jurisprudence" but rather are merely "term[s] of art that define[] 

the many unrelated, independent acts that serve as grounds 

for employee discipline").

Ball Metal and vacated the arbitrator's award. The court 

held that the arbitrator exceeded his authority under the 

CBA by modifying Allen's sanction after stating that 

there was just cause for termination. The court did not 

discuss the portion of the award in which the arbitrator 

stated that Allen "was not terminated for proper cause." 

The court also denied attorneys' fees. On appeal, Local 

129 challenges the vacatur and attorneys' fees rulings.

II

A

We begin with the challenge [*7] to the vacatur ruling. 

HN3[ ] "We review a district court's grant of summary 

judgment in a suit to vacate an arbitration award de 

novo."2 Summary judgment is appropriate "if the movant 

shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a 

matter of law."3

HN4[ ] "Judicial review of arbitration awards is 

severely limited."4 "The standard for this review is 

'among the narrowest known to the law.'"5 When an 

arbitration award settles a labor dispute, judicial review 

is "particularly constrained."6 "The reasons for insulating 

arbitral decisions from judicial review are grounded in 

the federal statutes regulating labor-management 

relations," which "reflect a decided preference for 

private settlement of labor disputes without the 

intervention of government."7

HN5[ ] Under this unusually deferential standard of 

2 Beaird Indus. v. Local 2297, Int'l Union, UAW, 404 F.3d 942, 

944 (5th Cir. 2005).

3 Fed. R. Civ. P. 56(a).

4 Manville Forest Prods. Corp. v. United Paperworkers Int'l 

Union, 831 F.2d 72, 74 (5th Cir. 1987).

5 Cont'l Airlines v. Air Line Pilots Ass'n, Int'l, 555 F.3d 399, 405 

(5th Cir. 2009) (quoting E. Air Lines, Inc. v. Transp. Workers 

Union, Local 533, 580 F.2d 169, 172 (5th Cir. 1978)).

6 Teamsters Local No. 5 v. Formosa Plastics Corp., 363 F.3d 

368, 371 (5th Cir. 2004).

7 United Paperworkers Int'l Union v. Misco, 484 U.S. 29, 37, 

108 S. Ct. 364, 98 L. Ed. 2d 286 (1987).

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review, "courts are not authorized to reconsider the 

merits of an award."8 "Because the parties 'bargained 

for the arbitrator's construction of their agreement,' an 

arbitral decision 'even arguably construing or applying 

the contract' must stand, regardless of a court's view of 

its (de)merits."9 Instead of assessing how well the 

arbitrator interpreted the contract, [*8] we ask if the 

arbitrator acted within the contract's bounds.10 "[A]n 

arbitrator is confined to interpretation and application of 

the collective bargaining agreement; he does not sit to 

dispense his own brand of industrial justice."11

HN6[ ] To determine whether arbitrators have 

overstepped their authority, "courts apply the 'essence 

test,' evaluating whether the arbitration award 'ha[s] a 

basis that is at least rationally inferable, if not obviously 

drawn, from the letter or purpose of the collective 

bargaining agreement.'"12 "[W]here the arbitrator 

exceeds the express limitations of his contractual 

mandate, judicial deference is at an end."13 In these 

situations, "an arbitrator is no longer applying or 

interpreting the agreement but rewriting it," and we will 

vacate the award.14 "Where 'there is ambiguity as to 

whether an arbitrator is acting within the scope of his 

authority,'" however, "'that ambiguity must be resolved in 

8 Id. at 36.

9 Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569, 133 S. 

Ct. 2064, 186 L. Ed. 2d 113 (2013) (quoting Eastern 

Associated Coal Corp. v. UMW, Dist. 17, 531 U.S. 57, 62, 121 

S. Ct. 462, 148 L. Ed. 2d 354 (2000)).

10 United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 

593, 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960); see also 

Delta Queen Steamboat Co. v. District 2 Marine Eng'rs 

Beneficial Ass'n, 889 F.2d 599, 602 (5th Cir. 1989) ("We 

have interpreted Supreme Court jurisprudence as requiring 

vacation of arbitral decisions that reinstate discharged 

employees when such arbitral action is deemed to be an ultra 

vires act.").

11 Id.

12 Communs. Workers of Am., AFL-CIO v. Southwestern Bell 

Tel. Co., 953 F.3d 822, 826-27 (5th Cir. 2020) (quoting 

Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1325 (5th 

Cir. 1994)).

13 Delta Queen, 889 F.2d at 602.

14 Delek Refin., Ltd. v. Local 202, United Steel, 891 F.3d 566, 

570 (5th Cir. 2018).

favor of the arbitrator.'"15

B

Our decisions in Albemarle Corp. v. United Steel 

Workers ex rel. AOWU Local 10316 and Weber Aircraft 

Inc. v. General Warehouseman and Helpers Union 

Local 76717 are instructive, if not dispositive. In 

Albemarle, an arbitration award ordered 

suspension [*9] instead of termination for employees 

who had violated safety rules. We reversed the district 

court's vacatur of that award.18 The management rights 

clause in the CBA provided that "the suspending, 

disciplining and discharging employees for cause . . . 

are all rights solely of the COMPANY."19 We understood 

the clause to "contemplate[] situations in which a finding 

of 'cause' could support lesser sanctions than 

termination."20 We drew a distinction between this 

clause and clauses in other CBAs that provided only for 

discharge, from which "authority to impose a lesser 

alternative sanction cannot be arguably inferred."21

Because the CBA in Albemarle did not "make clear that 

any violation of safety rules is an offense requiring 

discharge," we accepted the interpretation of the 

arbitrator, who determined that the employees' 

violations were cause only for discipline, not 

termination.22 We acknowledged that "an arbitrator 

could quite naturally read the CBA to specify that 

Albemarle employees' jobs are contingent on strict 

adherence to safety rules," but we concluded that was 

15 Quezada v. Bechtel OG & C Constr. Servs., 946 F.3d 837, 

844 (5th Cir. 2020).

16 703 F.3d 821 (5th Cir. 2013).

17 253 F.3d 821 (5th Cir. 2001).

18 Albemarle, 703 F.3d at 824, 828.

19 Id. at 823.

20 Id. at 825.

21 Id. (quoting Weber, 253 F.3d at 825) (first citing E.I. DuPont 

de Nemours & Co. v. Local 900 of Intern. Chem. Workers 

Union, 968 F.2d 456, 459 (5th Cir. 1992); then citing Delta 

Queen Steamboat Co. v. Dist. 2 Marine Eng'rs Beneficial 

Ass'n, 889 F.2d 599, 601, 603-04 (5th Cir. 1989)).

22 Id.

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"not the only arguable reading."23 It was also 

permissible to read the CBA as the arbitrator had done 

and "infer degrees of punishment [*10] for infractions 

based on the egregiousness of employee conduct," 

rather than "assume[] that all safety violations mandate 

the same, harsh penalty of termination."24

Similarly, in Weber, we reversed the district court's 

vacatur of an arbitration award that ordered suspension 

instead of termination for an employee who had 

committed sexual harassment.25 The employee had 

worked at the company for over twenty-five years.26 The 

CBA reserved for the employer "the right to . . . 

suspend, and/or discharge for just cause."27 For the 

harassment rule specifically, the CBA categorized 

violations as grounds for "Immediate Suspension for 

investigation/Possible Discharge."28 Although the 

arbitrator determined that the employee had engaged in 

sexual harassment, he decided that termination was 

"excessive, given the facts of the case and [the 

employee's] prior record of service."29

We held that the arbitrator was within "the ambit of his 

authority under the CBA by determining that, while there 

was not just cause to fire [the employee], there was just 

cause to suspend him without backpay for some eleven 

months."30 We accepted the arbitrator's interpretation of 

the CBA as "authorizing a range of punishment" [*11] 

for harassment violations.31 We deemed this reading 

"plausible because the CBA provides that [the] . . . 

violation calls for suspension and possible, not certain, 

discharge; and because the CBA does not establish a 

fixed definition of 'just cause,' plainly indicating that the 

standard varies with the level of punishment."32 Given 

23 Id. at 826.

24 Id.

25 Weber, 253 F.3d at 823-24.

26 Id. at 823.

27 Id.

28 Id.

29 Id.

30 Id. at 824.

31 Id.

32 Id.

the flexibility within the provisions, "to find in favor of 

Weber's suspension or discharge of an employee, the 

arbitrator has to find that Weber had just cause for the 

particular disciplinary action taken."33

Like the CBAs in Albermarle and Weber, the CBA here 

"contemplates situations in which a finding of 'cause' 

could support lesser sanctions than termination."34 The 

management rights clause provides that Ball Metal 

could "hire, discipline, or discharge employees for just 

cause." As in Weber, this provision suggests that "just 

cause" means "just cause for the particular disciplinary 

action taken."35 Indeed, when the parties framed the 

issue for the arbitrator, they did so in terms of the 

sanction and asked whether Allen "was terminated for 

proper cause."

HN7[ ] We have determined "that explicating broad 

CBA terms like 'cause,' when left undefined by contract, 

is the [*12] arbitrator's charge."36 In addition to 

assessing the nature of the violations, an arbitrator may 

under our precedents take account of employee tenure 

in determining whether just cause for discipline exists 

rather than for dismissal.37 Had Ball Metal wished to 

remove consideration of any mitigating factors, it could 

have required termination for all harassment violations 

in the CBA or in company rules.38 In fact, Ball Metal did 

33 Id. at 823 (emphasis added).

34 Albemarle Corp. v. United Steel Workers ex rel. AOWU 

Local 103, 703 F.3d 821, 825 (5th Cir. 2013).

35 Weber, 253 F.3d at 823.

36 Albemarle, 703 F.3d at 826 (citing Amalgamated Meat 

Cutters & Butcher Workmen, Dist. Local No. 540 v. Neuhoff 

Bros. Packers, Inc., 481 F.2d 817, 820 (5th Cir. 1973)); see 

also Delek Refin., Ltd. v. Local 202, United Steel, 891 F.3d 

566, 571 (5th Cir. 2018) (the amount of discretion involved 

makes it difficult to see how an arbitrator's assessment of 

judgment-laden terms like "extreme" and "excessive" can 

amount to the direct conflict with the CBA that is necessary for 

judicial override).

37 Weber, 253 F.3d at 823; see also Gulf States Tel. Co. v. 

International Brotherhood of Electrical Workers, 416 F.2d 198, 

200-202 (5th Cir. 1969) (affirming the enforcement of an 

arbitration award in which the arbitrator determined that the 

employee's "previous record and seniority count for something 

in arguing against the extreme penalty in industrial relations").

38 Albemarle, 703 F.3d at 826 ("Had the Company wished to 

remove doubt as to whether safety violations like the 

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designate violations of other rules as mandating 

"automatic suspension for purpose of discharge." The 

company did not place harassment violations like Allen's 

within that category, providing instead that they 

warranted "appropriate disciplinary action, up to and 

including termination." The flexibility in this disciplinary 

approach permitted the arbitrator to opt for a penalty 

short of termination. The penalty selected—unpaid 

suspension for over a year—was well within the 

arbitrator's discretion.39

In light of our precedents, we conclude that the 

arbitrator could construe the CBA to mean that Allen's 

violations were just cause for discipline, rather than just 

cause for termination, given the character of the 

violations and his tenure. We hold only [*13] that this 

interpretation is an "arguable reading" of the CBA, not 

that it is the best or even a good one.40 HN8[ ] "The 

correctness of the arbitrator's interpretation is irrelevant 

so long as it was an interpretation."41

C

The arbitrator stated both that there was just cause for 

termination and that there was not. Given our especially 

deferential standard of review, we are bound to resolve 

the ambiguity in the arbitrator's favor.42

Grievants' met the criteria for cause to terminate, it had only 'to 

bargain for a specific list of violations that will be considered 

sufficient grounds for discharge' in the CBA.") (quoting 

Amalgamated Meat Cutters & Butcher Workmen, Dist. Local 

No. 540 v. Neuhoff Bros. Packers, Inc., 481 F.2d 817, 820 (5th 

Cir. 1973)).

39 See United Steelworkers v. Enter. Wheel & Car Corp., 363 

U.S. 593, 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960) ("When 

an arbitrator is commissioned to interpret and apply the 

collective bargaining agreement, he is to bring his informed 

judgment to bear in order to reach a fair solution of a problem. 

This is especially true when it comes to formulating remedies. 

There the need is for flexibility in meeting a wide variety of 

situations."); Gulf States, 416 F.2d at 202 n.10 ("Arbitral 

determination not only of the existence of misconduct but of 

the fitness of the punishment is routinely grist for the arbitral 

mill.").

40 Albemarle, 703 F.3d at 826.

41 Sun Coast Res., Inc. v. Conrad, 956 F.3d 335, 337 (5th Cir. 

2020).

42 Quezada v. Bechtel OG & C Constr. Servs., 946 F.3d 837, 

844 (5th Cir. 2020).

In declining to terminate Allen, the arbitrator explained 

his reasoning as follows:

Under the parties['] CBA, the Arbitrator concludes 

that the Company had proper cause to discipline 

the Grievant for violation of the Company's 

Discrimination, Harassment, and Retaliation Policy 

(CX-4) and Plant Rules No. 21 . . . . The Grievant's 

conduct created the violations and he alone must 

bear the repercussions. Besides the CBA and 

Company Policy, the Grievant's conduct violated 

the Preamble of the CBA . . . .

The Arbitrator is of the opinion, however, that while 

the Company's decision to terminate the Grievant 

was for just cause, the Arbitrator must give some 

recognition to his thirteen (13) years of service. 

Accordingly, based upon all the previous discussion 

the termination decision [*14] is modified in the 

following award.

On the following page, labeled "AWARD," the arbitrator 

continued: "The Grievant, Shawn Allen was not 

terminated for proper cause, as the Company failed to 

give proper consideration to the Grievant's seniority." 

The award then set forth the terms of Allen's modified 

suspension sanction.

Ball Metal argues that the arbitrator exceeded his 

jurisdiction under the CBA because he impermissibly 

altered the sanction after he determined that there was 

just cause for termination. In Ball Metal's view, the 

arbitrator recognized that there was just cause to 

terminate Allen but then went on to factor in tenure, 

which he had no authority to consider at that point. 

Local 129 takes another view, emphasizing the 

arbitrator's later conclusion that there was not just cause 

for termination. The union reads the arbitrator's earlier 

reasoning to mean that Ball Metal had just cause to 

discipline, and could have had just cause for 

termination, but in the last analysis did not, because of 

Allen's seniority.

The arbitrator plainly stated that "the Company's 

decision to terminate the Grievant was for just cause," 

and then just as plainly stated that "the Grievant, Shawn 

Allen [*15] was not terminated for proper cause." 

Neither party has persuaded us that its interpretation 

stressing one rather than the other of these statements 

is the only possible reading. HN9[ ] When there are 

two alternative constructions of an arbitrator's 

reasoning, one of which would uphold the decision, we 

must enforce the award. As the Supreme Court has 

explained, "[a] mere ambiguity in the opinion 

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accompanying an award, which permits the inference 

that the arbitrator may have exceeded his authority, is 

not a reason for refusing to enforce the award."43

"Unless the arbitral decision does not 'dra[w] its essence 

from the collective bargaining agreement,' a court is 

bound to enforce the award . . . even when the basis for 

the arbitrator's decision may be ambiguous."44

HN10[ ] Given that arbitrators need not explain their 

reasoning at all, an ambiguity in reasoning generally will 

not disturb their awards. "It has long been settled that 

arbitrators are not required to disclose or explain the 

reasons underlying an award."45 Although explanations 

of arbitration awards are not mandatory, they are 

desirable.46 To encourage justification, the Supreme 

Court has advised against "overturning [*16] awards 

based on ambiguities that can be identified in the 

explanations arbitrators choose to give," since that 

"would discourage them from providing those reasons in 

the first place."47 So long as "[w]e can discern a 

possible rationale from the arbitrator's actions, . . . his 

decision 'must stand.'"48

We deem possible the rationale that the union suggests: 

the arbitrator could have determined that the offense 

was not in fact just cause for termination in light of 

43 Enter. Wheel, 363 U.S. at 598; see also Wireglass Metal 

Trades Council v. Shaw Env't & Infrastructure Inc., 837 F.3d 

1083, 1091-92 (11th Cir. 2016) ("The rule of Enterprise Wheel 

is that, when it is 'not apparent' from the arbitrator's stated 

reasoning (or lack thereof) whether she permissibly interpreted 

a collective bargaining agreement or impermissibly modified it, 

and one can plausibly read the award either way, the court 

must resolve the ambiguity by finding that the award is an 

interpretation of the contract and enforcing it.").

44 W.R. Grace & Co. v. Local Union 759, Int'l Union of United 

Rubber, Cork, Linoleum, & Plastic Workers, 461 U.S. 757, 

764, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983) (internal citation 

omitted) (quoting Enter. Wheel, 363 U.S. at 597 (1960)).

45 See Antwine v. Prudential Bache Sec., Inc., 899 F.2d 410, 

412 (5th Cir. 1990).

46 Delek Refin., Ltd. v. Local 202, United Steel, 891 F.3d 566, 

572 (5th Cir. 2018).

47 Id. at 572-73.

48 Commc'ns Workers of Am. v. Sw. Bell Tel. Co., 953 F.3d 

822, 828 (5th Cir. 2020) (quoting Oxford Health Plans LLC v. 

Sutter, 569 U.S. 564, 569, 133 S. Ct. 2064, 186 L. Ed. 2d 113 

(2013)).

Allen's tenure. A Seventh Circuit case involving similar 

facts supports our conclusion. In Arch of Illinois, Division 

of Apogee Coal Corp. v. District 12, United Mine 

Workers,

49 the Seventh Circuit affirmed an arbitration 

award that ordered suspension instead of termination 

for an employee who had violated a rule against 

sleeping at work.50 Similar to the Ball Metal CBA, the 

Arch of Illinois CBA provided that covered employees 

could not be "disciplined or discharged except for just 

cause."51 Early in the opinion, the arbitrator observed 

that "sleeping is sufficient just cause to trigger a 

discharge" and described other concerns with the 

employee's conduct, concluding that, "[f]or all of those 

reasons therefore the grievant should [*17] be 

terminated."52 Later in the opinion, however, the 

arbitrator decided that the employee should be 

suspended rather than terminated, reasoning that "the 

senior person's length of service must be recognized 

when that individual is dealt with by way of 

termination."53

The company argued that the arbitrator had exceeded 

his authority by modifying the penalty after already 

determining that there was just cause for termination.54

The Seventh Circuit considered the company's 

interpretation reasonable but not inevitable.55 That was 

insufficient because the company "must do more than 

merely show that its interpretation of the opinion is 

reasonable; it must demonstrate that the opinion cannot 

reasonably be interpreted in any other way."56 The 

company did not make that showing.57 The alternative 

interpretation that the company "lacked just cause to 

discharge [the employee] because of its failure to 

49 85 F.3d 1289 (7th Cir. 1996).

50 Id. at 1291, 1294.

51 Id. at 1291.

52 Id.

53 Id.

54 Id. at 1293.

55 Id.

56 Id. (citing United Steelworkers v. Enter. Wheel & Car Corp., 

363 U.S. 593, 597-98, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 

(1960)).

57 Id.

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consider his seniority is not so far-fetched as to lead us 

to deduce that the arbitrator relied on a noncontractual 

basis for the award."58 HN11[ ] The court explained 

that, "before we reject an award because of language in 

the arbitrator's opinion, the opinion must unambiguously 

reflect that the arbitrator based [*18] his decision on 

noncontractual grounds."59

For similar reasons, we uphold the arbitrator's award in 

Allen's case. Because the opinion does not 

unambiguously reflect that the arbitrator exceeded his 

authority, we must enforce his award.

III

We next address the union's challenge to the attorneys' 

fees ruling. HN12[ ] We review the district court's 

denial of attorneys' fees for abuse of discretion.60 "For 

the same reason that judicial review of arbitration 

awards is limited, a party may be awarded attorneys' 

fees if it has to fight back a court challenge to the award 

it obtained in the parties' chosen forum."61 "This 

sanction is necessary lest federal labor policy be 

frustrated by judicial condonation of dilatory tactics that 

lead to wasteful and unnecessary litigation."62

HN13[ ] Courts award fees when the challenge to the 

arbitrator's decision is "without justification."63 "'Without 

justification' refers not to the strength of the challenge 

but to the type."64 Challenges to an arbitrator's 

jurisdiction or authority do not result in fee awards, 

whereas challenges to the "intrinsic merits" of a dispute 

justify fee awards even if the challenges are not 

58 Id. at 1294.

59 Id. at 1293.

60 Tercero v. Tex. Southmost Coll. Dist., 989 F.3d 291, 301 

(5th Cir. 2021).

61 Delek Refin., Ltd. v. Local 202, United Steel, 891 F.3d 566, 

573 (5th Cir. 2018).

62 Int'l Ass'n of Machinists & Aerospace Workers, Dist. 776 v. 

Tex. Steel Co., 639 F.2d 279, 283 (5th Cir. 1981).

63 Bruce Hardwood Floors v. UBC, S. Council of Indus. 

Workers, Local Union No. 2713, 103 F.3d 449, 453 (5th Cir. 

1997).

64 Delek, 891 F.3d at 573.

frivolous.65 "[W]hen parties have agreed to arbitrate a 

dispute, [*19] a subsequent court challenge to the 

merits is not justified even when that question is close 

because going to court is at odds with the parties' 

agreement to be bound by the arbitrator's decision."66

Ball Metal challenged the arbitrator's authority, so a fee 

award is unwarranted. Throughout its brief, Ball Metal 

framed its challenge in jurisdictional terms. The 

company consistently characterized the arbitrator's 

modified sanction as an action "exceeding his authority," 

rather than as a misreading of the contract's terms.67

Ball Metal did not contest the arbitrator's interpretation 

of "just cause for termination."68 Instead, Ball Metal 

assumed that the arbitrator had recognized just cause 

for termination and argued that he defied the limits on 

his authority that determination imposed.69 Because 

Ball Metal's challenge was jurisdictional, the district 

court did not abuse its discretion in denying a fee award.

IV

Finally, we address the parties' joint request for 

clarification about the award during the period of the 

company's noncompliance. Specifically, the parties 

request a remand to the arbitrator to determine whether 

to award back pay and benefits for this period.

The arbitrator's [*20] decision does not make clear 

what the award would be in the event of noncompliance. 

The award states that "[t]he Grievant will be offered 

immediate reinstatement without back pay and 

benefits," but it does not address whether back pay or 

65 Id.

66 Id. at 573-74.

67 See id. at 574 ("[A] party cannot avoid paying attorneys' fees 

by making only a conclusory assertion that it is challenging the 

arbitrator's 'power to make the award.'") (quoting Tex. Steel 

Co., 639 F.2d at 283).

68 See id. (holding that a challenge to an arbitrator's 

interpretation of a contract is a merits inquiry and awarding 

attorneys' fees); Tex. Steel Co., 639 F.2d at 283-84 (holding 

that a challenge to an arbitrator's interpretation of a contract 

warranted attorneys' fees).

69 See Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1331 

(5th Cir. 1994) (holding that a challenge to an award "upon a 

matter not submitted" to the arbitrator is a jurisdictional inquiry 

and denying attorneys' fees).

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benefits would be warranted if Allen was not offered 

immediate reinstatement. HN14[ ] When, as here, an 

arbitrator's decision does not specify the award during a 

period of noncompliance, "the court is authorized to 

remand to the arbitrator" for clarification.70 Since both 

parties have requested a remand for this purpose, we 

will order one.

* * *

We REVERSE the award of summary judgment in favor 

of Ball Metal and RENDER judgment in favor of Local 

129. We AFFIRM the denial of attorneys' fees. We 

REMAND to determine whether to award backpay and 

benefits during Ball Metal's period of noncompliance.

End of Document

70 Glass, Molders, Pottery, Plastics & Allied Workers Int'l Union 

v. Excelsior Foundry Co., 56 F.3d 844, 849 (7th Cir. 1995); 

see also United Steelworkers, Dist. 36, Local 8249 v. Adbill 

Mgmt. Corp., 754 F.2d 138, 141-42 (3d Cir. 1985); Marshall 

Durbin Cos., Inc. v. United Food & Comm. Workers Union, 

Local 1991, 254 F.3d 1081, [published in full-text format at 

2001 U.S. App. LEXIS 31738], 2001 WL 563907, at *1 (5th 

Cir. 2001) (unpublished) (per curiam).

2022 U.S. App. LEXIS 3214, *20

APFA App. 070

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Bldg. Materials Mfg. Co. v. Steelworkers, 2020 U.S. Dist. 

LEXIS 37075, 2020 WL 1047895 at *7-8 (N.D. Tex. 

2020) 

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 Cited

As of: September 18, 2022 4:20 PM Z

Bldg. Materials Mfg. Corp. v. USW Int'l Union

United States District Court for the Northern District of Texas, Dallas Division

March 3, 2020, Decided; March 3, 2020, Filed

Civil Action No. 3:18-cv-02606-X

Reporter

2020 U.S. Dist. LEXIS 37075 *; 2020 WL 1047895

BUILDING MATERIALS MANUFACTURING 

CORPORATION, Plaintiff, v. UNITED 

STEELWORKERS INTERNATIONAL UNION on behalf 

of its local 00759, Defendant.

Core Terms

arbitrator, arbitrator's interpretation, summary judgment 

motion, attorney's fees, collective bargaining agreement, 

costs, contradicting, arbitration award, employees, 

merits, arbitral decision, express provision, argues, 

matter of law, express language, seniority, terminate, 

draws, summary judgment, Challenges, intrinsic

Counsel: [*1] For Building Materials Manufacturing 

Corporation, Plaintiff: Gavin S Martinson, LEAD 

ATTORNEY, Ogletree Deakins Nash Smoak & Stewart 

PC, Dallas, TX; Christopher Murray, PRO HAC VICE, 

Ogletree Deakins Nash Smoak & Stewart PC, 

Indianapolis, IN.

For United Steelworkers International Union on Behalf 

of its Local 00759, Defendant, Counter Claimant: 

Joseph H Gillespie, LEAD ATTORNEY, Gillespie 

Sanford LLP, Dallas, TX; Bruce Fickman, United 

Steelworkers Legal Department, Pittsburgh, PA; Sasha 

Shapiro, PRO HAC VICE, United Steelworkers Legal 

Department, Pittsburgh, PA.

For Building Materials Manufacturing Corporation, 

Counter Defendant: Gavin S Martinson, LEAD 

ATTORNEY, Ogletree Deakins Nash Smoak & Stewart 

PC, Dallas, TX; Christopher Murray, Ogletree Deakins 

Nash Smoak & Stewart PC, Indianapolis, IN.

Judges: BRANTLEY STARR, UNITED STATES 

DISTRICT JUDGE.

Opinion by: BRANTLEY STARR

Opinion

MEMORANDUM OPINION AND ORDER

Building Materials Manufacturing Corporation ("Building 

Materials") alleges an arbitrator wrongly granted an 

arbitration award to one of defendant United 

Steelworkers International Union's ("United 

Steelworkers") members, Theresa Truesdell. Building 

Materials brings this action under 29 U.S.C. § 185, 

which allows suits for a [*2] violation of a contract 

"between an employer and a labor organization 

representing employees in an industry affecting 

commerce" in a federal district court. Building Materials 

moves for summary judgment seeking to vacate the 

arbitration award [Doc. No. 21] while United 

Steelworkers moves for summary judgment seeking to 

enforce the award, along with requesting attorneys' fees 

and costs [Doc. No. 18]. The Court concludes that 

United Steelworkers has shown it is entitled to judgment 

as a matter of law.

Therefore, the Court GRANTS United Steelworkers's 

motion for summary judgment and request for attorneys' 

fees and costs and DENIES Building Materials's motion 

for summary judgment.

I.

Truesdell was hired by Building Materials, a roofing 

manufacturer, on October 14, 1992 to work at its Dallas 

facility. On October 21, 2016, Truesdell notified Building 

Materials that she would be out of work for several days. 

After informing Building Materials she would not be able 

to return because she needed to be in a less dusty 

environment, Truesdell was instructed to contact the 

administrator of leave under the Family and Medical 

Leave Act ("FMLA"), Liberty Mutual. Truesdell informed 

Liberty Mutual that [*3] her condition was caused by the 

working environment at the Dallas facility. Liberty Mutual 

subsequently approved Truesdell's claim for short-term 

benefits, which gave Truesdell a maximum of 26 weeks 

of income replacement benefits, applied retroactively as 

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of October 21, 2016.

On April 24, 2017, Building Materials contacted 

Truesdell asking about her return to work intentions and 

ability. Truesdell responded that she needed to be 

placed in a less dusty work area. After some back and 

forth, Building Materials concluded that all jobs at the 

Dallas plant Truesdell was working at, including those 

outside the manufacturing environment, involved some 

exposure to dust. Building Materials alleges that, given 

such circumstances, they had no choice but to terminate 

Truesdell and so they did on June 7, 2017.

In response, Truesdell filed a grievance under the 

parties' collective bargaining agreement (hereinafter 

"Agreement") on June 8, 2017. After completing the 

various grievance steps, the matter proceeded to 

arbitration. The parties stipulated the following question 

be put before the arbitrator: was Truesdell terminated 

for just cause? After reviewing the Agreement, the 

arbitrator concluded the [*4] answer was no. In coming 

to its decision, the arbitrator focused on section 4-11 of 

the Agreement, which states:

Discharge for cause, voluntary resignation, lost time 

due to layoff exceeding twenty four (24) 

consecutive months, lost time due to reasons other 

than layoff exceeding twelve (12) months for 

employees with less than fifteen (15) years 

continuous service and eighteen (18) consecutive 

months for employees with more than fifteen (15) 

years continuous service, or absence without leave 

for more than four (4) consecutive days, shall 

terminate an Employee's continuous service record 

and seniority and if reemployed thereafter shall be 

considered a new Employee.1

The arbitrator interpreted the seniority termination 

deadlines in this provision as also setting tolling periods 

for when Building Materials could start discharging its 

employees. The arbitrator also interpreted "discharge for 

cause" to mean "other than for lost time covered 

hereinafter."2 As a result of these moves, the arbitrator 

interpreted section 4-11 to mean that Building Materials 

could not discharge Truesdell, who had 15 years 

continuous service, until 18 months from presumably 

the date Truesdell notified Building Materials she would 

be out [*5] of work, October 21, 2016. As 18 months 

1 Exhibit B to Building Materials's Complaint at p.22 [Doc. No. 

1, Ex. B].

2 Exhibit A to Building Materials's Complaint at p.17 [Doc. No. 

1, Ex. A].

had not passed (Truesdell was discharged on June 7, 

2017), the arbitrator concluded Truesdell was not 

discharged for cause.

The arbitrator then fashioned a remedy that extended 

Truesdell's seniority for 30 days and sought to give 

Truesdell an opportunity to be reinstated in a way that 

would accommodate her health condition:

1. Truesdell's seniority will continue for 30 days 

from the date hereof.

2. Truesdell will promptly notify the Company in 

writing if she desires to be activated, any 

accommodation she will need, and will provide 

medical evidence in support of that request.

3. The Company will take prompt action on her 

request including seeking opportunities in areas 

other than Millwright work as Lienau testified he did 

prior to her 2016 termination. The Company may 

seek professional evaluation of Truesdell's current 

medical and physical condition and ability, and 

Truesdell will cooperate in that effort.

4. The Committee's [sic] mentioned in Article VIII-14 

are encouraged to act if the Company's paragraph 

3 actions do not result in Truesdell's activation.3

On September 28, 2018, Building Materials filed a 

complaint [Doc. No. 1] contending the arbitration [*6] 

award should be vacated because the arbitrator ignored 

the plain text of the Agreement. It makes this same 

argument in its motion for summary judgment filed on 

April 24, 2019. United Steelworkers filed its motion for 

summary judgment on the same day, alleging the 

arbitration award draws its essence from the Agreement 

and so should be enforced as written.

II.

Before the Court is Building Materials and United 

Steelworkers's motions for summary judgment. 

Summary judgment is appropriate only if, viewing the 

evidence in the light most favorable to the non-moving 

party, "the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled 

to judgment as a matter of law."4 "A fact is material if it 

'might affect the outcome of the suit'" and "[a] factual 

dispute is genuine 'if the evidence is such that a 

reasonable jury could return a verdict for the nonmoving 

3 Exhibit A to Building Materials's Complaint at p.17-18 [Doc. 

No. 1, Ex. A].

4 Fed. R. Civ. P. 56(a).

2020 U.S. Dist. LEXIS 37075, *3

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party.'"5

The Court notes that the dispute between the parties in 

their motions for summary judgment concerns the 

arbitrator's interpretation, or lack thereof, of the 

Agreement and not the arbitrator's fact-finding. As such, 

the issue before the Court is which movant is entitled to 

judgment as a matter of [*7] law rather than whether 

there is a genuine dispute of material fact.

III.

Building Materials argues in its motion for summary 

judgment that the arbitrator exceeded his authority in 

ignoring the plain language of the Agreement by issuing 

his award and so, as a matter of law, Building Materials 

is entitled to have the arbitration award vacated. In 

contrast, United Steelworkers argues in its motion for 

summary judgment that the arbitrator's award draws its 

essence from the Agreement and so, as a matter of law, 

is entitled to have the award enforced. United 

Steelworkers also contends it is entitled to attorneys' 

fees and costs because Building Materials brought its 

challenge to the arbitration award without justification.

The Court agrees with United Steelworkers. In showing 

how the arbitrator's award draws its essence from the 

Agreement, United Steelworkers has shown how it is 

entitled to summary judgment as a matter of law under 

the Rule of Civil Procedure 56(a) summary judgment 

standard. The Court further agrees that Building 

Materials brought its challenge without justification and 

so United Steelworkers is entitled to attorneys' fees and 

costs.

In actions brought under 29 U.S.C. § 185 questioning 

an [*8] arbitrator's decision on a contract dispute, the 

Court may only look at whether the arbitrator's decision 

"draws its essence from the [collective bargaining 

agreement]."6 This standard is interpreted 

"expansively."7 Even if the arbitrator "seriously erred in 

his fact finding or contract interpretation," the Court must 

uphold a decision that draws from the essence of the 

5 Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019)

(alteration in original) (citing Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

6 Delek Ref., Ltd. v. Local 202, United Steel, Paper & Forestry, 

Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l 

Union, AFLCIO, 891 F.3d 566, 570 (5th Cir. 2018).

7 Id.

collective bargaining agreement.8 "It is only when the 

arbitrator strays from interpretation and application of 

the agreement and effectively 'dispense[s] his own 

brand of industrial justice' that his decision may be 

unenforceable."9 An arbitrator dispenses "industrial 

justice" by acting contrary to the express provisions of 

the collective bargaining agreement or otherwise 

ignoring its plain language.10 In such circumstances, the 

arbitrator is "no longer applying or interpreting the 

agreement but rewriting it."11 An example of an 

arbitrator contradicting the express language of a 

collective bargaining agreement is Southwest Airlines 

Co. v. Local 555, Transportation Workers Union of 

America AFL-CIO, where the Fifth Circuit held an 

arbitrator's interpretation that the collective bargaining 

agreement's effective date was the signing [*9] date 

was contradicted by express language in the collective 

bargaining agreement stating the collective bargaining 

agreement shall "remain in full force and effect as of the 

date of ratification."12 Lastly, in formulating any remedy, 

the arbitrator must be flexible "in meeting a wide variety 

of situations," as the "draftsman may never have 

thought of what specific remedy should be awarded to 

meet a particular contingency."13 Even so, the 

arbitrator's award must ultimately draw its essence from 

the collective bargaining agreement.14

If the party fighting back the challenge to the arbitration 

decision in district court prevails, a subsequent question 

is whether that party is entitled to attorneys' fees and 

costs. The Fifth Circuit has made it clear that the party 

facing the challenge to the arbitration is entitled to 

attorneys' fees and costs if the challenge was brought 

"without justification."15 "Without justification" refers to 

8 Id.

9 Major League Baseball Players Ass'n v. Garvey, 532 U.S. 

504, 509, 121 S. Ct. 1724, 149 L. Ed. 2d 740 (2001) (quoting 

United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 

U.S. 593, 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960)).

10 Delek Ref., Ltd., 891 F.3d at 570 (citations omitted).

11 Id.

12 912 F.3d 838, 845-6 (5th Cir. 2019).

13 United Steelworkers of Am., 363 U.S. at 597.

14 Id.

15 Delek Ref., Ltd., 891 F.3d at 573 (citation omitted); Int'l 

2020 U.S. Dist. LEXIS 37075, *6

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Warren Lipschitz

the type of challenge and not to the strength of a 

challenge.16 Challenges to an arbitrator's jurisdiction or 

authority are "justified" and so will not result in a fee 

award even if the challenge to the arbitration decision 

fails in court.17 However, challenges [*10] that go to the 

intrinsic merits of a dispute are "without justification" and 

will result in fees even if not brought frivolously.18

Challenges that go to the intrinsic merits of a dispute 

include challenges to an arbitrator's interpretation and 

application of a collective bargaining agreement and its 

discretion in fashioning a remedy.19 Courts must also be 

wary of a challenging party attempting "to transform [a 

merits] claim into an excess-of-powers claim."20 In other 

words, a party cannot in one breath argue "that the 

arbitrator transcended his authority" while in another 

assert that he "exercised his contractual authority . . . 

inconsistent with applicable principles of contractual 

construction, which 'necessarily touch[es] upon the 

'intrinsic merits' of the case.'"21

Here, the arbitrator's decision and award draw from the 

essence of the Agreement. Regardless of the accuracy 

of the arbitrator's interpretation of section 4-11 of the 

Agreement, the arbitrator did not stray from 

"interpretation and application of the agreement" into 

dispensing "his own brand of industrial justice."22 The 

arbitrator's interpretation of section 4-11 does not 

contradict any other express provisions of the 

Agreement or any express [*11] language in section 4-

11 itself. In interpreting section 4-11, the arbitrator 

thought that an interpretation where an employee had 

seniority but was no longer employed did not make 

Ass'n of Machinists & Aerospace Workers, Dist. 776 v. Texas 

Steel Co., 639 F.2d 279, 284 (5th Cir. 1981) (noting how the 

party seeking arbitration enforcement is entitled to attorneys' 

fees and costs if a challenge is brought without justification).

16 Delek Ref., Ltd., 891 F.3d at 573.

17 Id.

18 Id. (citations omitted).

19 Delek Ref., Ltd., 891 F.3d at 573; Int'l Ass'n of Machinists, 

639 F.2d at 284.

20 Delek Ref., Ltd., 891 F.3d at 574 (quoting Hous. Ref., L.P. v. 

United Steel, Paper & Forestry, Rubber, Mfg., 765 F.3d 396, 

412 (5th Cir. 2014)).

21 Delek Ref., Ltd., 891 F.3d at 574.

22 United Steelworkers of Am., 363 U.S. at 597.

sense and so understood section 4-11 as tying seniority 

and employment together. At bottom, the arbitrator 

focused on the text and what would constitute a 

reasonable interpretation in making his decision.

Regarding the award itself, it must draw from the 

essence of the Agreement but the arbitrator has 

flexibility to meet "a wide variety of situations."23 Here, 

the arbitrator is seeking to balance the traditional 

remedy of reinstatement with the arbitrator's finding that 

Truesdell's fitness to work is at issue. To that end, the 

arbitrator includes provisions requiring Building 

Materials to accommodate her health condition and 

requiring Truesdell to cooperate with Building Materials 

to provide any requested health information. Insofar as 

the central issue of this dispute is whether Truesdell 

was properly discharged under the Agreement, this 

remedy, a tailored reinstatement, draws from the 

essence of the Agreement.24

In response, Building Materials raises several objections 

to the arbitrator's interpretation of the Agreement and to 

the remedy he issued. [*12] First, Building Materials 

argues that Article 8-1 of the Agreement expressly 

allows, without qualification, Building Materials to 

discharge employees for cause:

8-1 The management of the Company's Dallas 

Plant, and all of its subdivisions and departments, 

the direction of the working forces and the affairs of 

the Company including the right to hire, suspend, 

discharge, or discipline Employees for cause, the 

right to transfer or lay off Employees due to lack of 

work or curtailed production, the right to establish 

rules of conduct and penalties for violation of said 

rules, the right to establish, determine, maintain and 

enforce standards of production, the right to 

determine and control the number and the 

qualifications of Employees performing each 

operation at all times, the right to determine what 

shall be done and all methods and processes by 

which the work will be carried on, and the right to 

determine the number of shifts it shall work and the 

starting and stopping time of each shift are all 

23 United Steelworkers of Am., 363 U.S. at 597.

24 This explanation of how the arbitrator's remedy draws its 

essence from the CBA disposes of Building Materials's 

argument that, assuming the arbitrator's interpretation of the 

CBA is correct, the awarded remedy still has no basis in the 

CBA because Truesdell's reinstatement would occur over 5 

months after the prescribed 18-month leave period.

2020 U.S. Dist. LEXIS 37075, *9

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vested solely and exclusively in the Company 

provided that in the exercise of any of said rights or 

any or all other not enumerated rights or powers or 

authority customarily exercised by 

Management, [*13] the Company shall not violate 

the express provisions of this Agreement.25

Building Materials contends that the arbitrator's 

interpretation of section 4-11, specifically its 

interpretation of "discharge for cause" to mean 

discharge for reasons other than lost time covered in 

section 4-11, contradicts this unqualified right. This 

objection misses the mark. Article 8-1 expressly gives 

Building Materials the "sole and exclusive right" to 

discharge an employee for cause but it does not define 

what "cause" means. The arbitrator is interpreting what 

"cause" means and is not contesting Building Materials's 

"sole and exclusive right" to discharge an employee for 

cause. Moreover, Article 8-1 expressly limits such "sole 

and exclusive right" when it states that exercising this 

right "shall not violate the express provisions of this 

Agreement." For these reasons, Building Materials has 

failed to show how the arbitrator's interpretation of 

Article 4-11 contradicts the express language of Article 

8-11.

Second, Building Materials argues that the arbitrator 

ignored the plain language of the Agreement when it 

interpreted Article 4-11 to create a right for Truesdell to 

an 18-month leave of absence before she could be 

terminated. This objection [*14] begs the question. It 

assumes that the arbitrator's interpretation of Article 4-

11, which this Court must defer to, is incorrect. Indeed, 

Building Materials discusses at length in its motion for 

summary judgment how Article 4-11 should not be 

interpreted to mandate leave but, when all is said and 

done, does not point to any express provisions in Article 

4-11 or elsewhere that contradict the arbitrator's 

interpretation on 18-month leave. This is a far cry from 

Southwest Airlines Co., where the arbitrator's decision 

that the effective date of the collective bargaining 

agreement was the signing date was contradicted by 

express language in the collective bargaining 

agreement stating the agreement shall "remain in full 

force and effect as of the date of ratification . . . ."26

Thus, Building Materials has failed to show the 

arbitrator's interpretation of the 18-month language 

contradicts the express language of the Article 4-11 or 

25 Exhibit B to Building Materials's Complaint at p.42-43 [Doc. 

No. 1, Ex. B].

26 912 F.3d 838, 845-46 (emphasis added).

any other Agreement provision.

For the reasons stated above, the Court holds that the 

arbitrator was not dispensing his own brand of industrial 

justice and that his award and decision draw from the 

essence of the Agreement. Given this holding, the Court 

must now [*15] decide whether United Steelworkers is 

entitled to attorneys' fees and costs.

United Steelworkers is entitled to attorneys' fees and 

costs because Building Materials brought this challenge 

without justification. As noted above, "without 

justification" means that the challenge goes to the merits 

of the dispute, which includes an arbitrator's 

interpretation of a contract.27 Here, Building Materials at 

several points in its briefing on these motions for 

summary judgment contests the arbitrator's 

interpretation of the Agreement. For example, in its 

motion for summary judgment, Building Materials 

argues that the arbitrator's interpretation of Article 4-11 

mandating 18-months of leave for employees is wrong 

because Article 4-11, properly interpreted, does not 

mandate leave. Additionally, in the same motion, 

Building Materials argues the arbitrator's interpretation 

of Article 4-11 makes no sense and would lead to 

absurd consequences. In another example, Building 

Materials, in its reply to United Steelworkers's motion for 

summary judgment, argues that the arbitrator's 

interpretation of "discharge for cause" in Article 4-11 is 

incorrect because it is inconsistent with the proper 

interpretation [*16] of Article 8-1, which gives Building 

Materials an unqualified right to discharge an employee 

for cause. As Building Materials's briefing illustrates that 

it is bringing this challenge on the merits, it must pay 

United Steelworkers's attorneys' fees and costs.

In response, Building Materials argues it is challenging 

the arbitrator's authority and not the intrinsic merits of 

the dispute. Building Materials contends that, in alleging 

that the arbitrator is ignoring the plain meaning of the 

Agreement and contradicting its express provisions, 

Building Materials is in fact arguing that the arbitrator is 

exceeding its authority and essentially rewriting the 

agreement. If this were true, then Building Materials 

would be correct. But it is not true. Although Building 

Materials is careful to cloak its arguments as being 

about the arbitrator ignoring the plain meaning of the 

Agreement and its express provisions, the substance of 

its arguments speaks for itself. As noted above, Building 

Materials's arguments focus on disputing the arbitrator's 

27 Delek Ref., Ltd., 891 F.3d at 573.

2020 U.S. Dist. LEXIS 37075, *12

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interpretation of the Agreement and do not cite to any 

express provision contradicting the arbitrator's decision. 

Indeed, this is a clear case of Building [*17] Materials 

attempting to "transform [a merits] claim into an excessof-powers-claim.28" As its briefing makes clear, Building 

Materials is in one breath arguing "that the arbitrator 

transcended his authority while in another it asserts" 

that he wrongly interpreted the contract which, 

"necessarily touch[es] upon the 'intrinsic merits' of the 

case."29 Thus, Building Materials is bringing this 

challenge on the merits.

IV.

Because this Court has found, as a matter of law, that 

the arbitrator's decision and award flow from the 

essence of the Agreement and that Building Materials 

brought this challenge on the merits of the dispute, the 

Court hereby GRANTS United Steelworkers's motion for 

summary judgment and request for attorneys' fees and 

costs and DENIES Building Materials's motion for 

summary judgment.30

28 Delek Ref., Ltd., 891 F.3d at 574 (quoting Houston Ref., 

L.P., 765 F.3d at 412).

29 Delek Ref., Ltd., 891 F.3d at 574.

30 The Court notes Building Materials in its complaint also 

argues the award should be vacated under the Texas 

Arbitration Act and the Federal Arbitration Act. However, 

Building Materials does not raise these arguments in its 

motion for summary judgment or in any of its other briefing 

related to the motions for summary judgment filings. As such, 

the Court deems these arguments waived. Even if the Court 

were to consider these arguments, they both fall flat. The 

Texas Arbitration Act specifically excludes "a collective 

bargaining agreement between an employer and a labor 

union." Tex. Civ. Prac. & Rem. § 171.002(a)(1). Regarding the 

Federal Arbitration Act, assuming it applies, "the Supreme 

Court has made clear that district courts' review of arbitrators' 

awards under [the Federal Arbitration Act] is limited to the 'sole 

question . . . [of] whether the arbitrator (even arguably) 

interpreted the parties' contract." BNSF R. Co. v. Alstom 

Transp., Inc., 777 F.3d 785, 788 (5th Cir. 2015) (quoting 

Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569, 133 S. 

Ct. 2064, 186 L. Ed. 2d 113 (2013)) (alteration added). In 

answering this question, the district court must look to the 

arbitration award and consider at least three factors: "(1) 

whether the arbitrator identifies her task as interpreting the 

contract; (2) whether she cites and analyzes the text of the 

contract; and (3) whether her conclusions are framed in terms 

of the contract's meaning." Id. (citation omitted). This question 

is disposed of in Section III of this order, which makes clear 

that the arbitrator in his award was interpreting the Agreement.

United Steelworkers, if it seeks to recover attorneys' 

fees, must submit a motion pursuant to Federal Rule of 

Civil Procedure 54(d) within 14 days after the entry of 

judgment, which is being entered alongside this order. If 

United Steelworkers chooses to file this motion, the 

Court further requires United Steelworkers to submit 

evidence supporting its request for attorneys' fees and 

costs. For attorneys' fees, [*18] United Steelworkers 

must itemize the hours spent with sufficient descriptive 

detail of the work conducted as to this particular case, 

as well as submit a proffered reasonable hourly rate 

based on the relevant experience of the attorney 

conducting the work. Upon the filing of the motion, 

Building Materials will have 5 days to file a response 

should it choose to do so. Upon the filing of the 

response, United Steelworkers will have 5 days to file a 

reply.31

IT IS SO ORDERED this 3rd day of March, 2020.

/s/ Brantley Starr

BRANTLEY STARR

UNITED STATES DISTRICT JUDGE

End of Document

31 Under § 205(a)(5) of the E-Government Act of 2002 and the 

definition of "written opinion" adopted by the Judicial 

Conference of the United States, this is a "written opinion[] 

issued by the court" because it "sets forth a reasoned 

explanation for [the] court's decision." It has been written, 

however, primarily for the parties, to decide issues presented 

in this case, and not for publication in an official reporter, and 

should be understood accordingly.

2020 U.S. Dist. LEXIS 37075, *16

APFA App. 077

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Hampton v. Int’l Longshoreman’s Ass’n, 2017 U.S. Dist. 

LEXIS 218154 at *5-6 (S.D. Tex. 2007). 

APFA App. 078

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William W. Osborne

 Neutral 

As of: July 11, 2022 5:59 PM Z

Hampton v. Int'l Longshoreman's Ass'n, Local 24

United States District Court for the Southern District of Texas, Houston Division

October 27, 2017, Decided; October 27, 2017, Filed, Entered

Civil Action No. H-16-2103

Reporter

2017 U.S. Dist. LEXIS 218154 *

ANTHONY C. HAMPTON, EDWARD J. 

RICHARDS, and RICKY HENDERSON, 

Plaintiffs, v. INTERNATIONAL 

LONGSHOREMAN'S ASSOCIATION, LOCAL 

24, Defendant.

Prior History: Hampton v. Mar. Ass'n Int'l 

Longshoreman Ass'n Pension Ret. Welfare & 

Vacation Funds, 2017 U.S. Dist. LEXIS 62726 

(S.D. Tex., Apr. 25, 2017)

Core Terms

fee agreement, summary judgment, 

nonmovant, genuine, abide, declaratory 

judgment, contractual, funds, allegations, hire

Counsel: [*1] For Anthony C. Hampton, 

Edward J. Richards, Ricky Henderson, 

Plaintiffs: Reginald E McKamie, Sr, LEAD 

ATTORNEY, Attorney at Law, Houston, TX.

For ILA Local 24, Defendant: Eric H Nelson, 

Attorney at Law, Houston, TX; Billy Bruce 

Johnson, Jr, Berg Feldman Johnson Bell, LLP, 

Houston, TX.

Judges: DAVID HITTNER, United States 

District Judge.

Opinion by: DAVID HITTNER

Opinion

ORDER

Pending before the Court is Defendant's 

Motion for Summary Judgment (Document No. 

20). Having considered the motion, 

submissions, and applicable law, the Court 

determines the motion should be granted.

I. BACKGROUND

This is a suit for declaratory judgment. 

Plaintiffs Anthony C. Hampton ("Hampton"), 

Edward J. Richards ("Richards"), and Ricky 

Henderson ("Henderson") (collectively, 

"Plaintiffs") are members of Defendant 

International Longshoreman's Association, 

Local 24 ("Local 24"). Local 24 is a labor union 

for maritime workers, located in Houston, 

Texas. The parties are bound by the 

International Longshoremen's Constitution (the 

"Constitution"). This dispute arises from a 

Local 24 general union meeting, held on 

November 6, 2013 (the "Meeting"). At the 

Meeting, a motion was passed by a vote of 

union members to hire a lawyer to investigate 

a longshoremen's [*2] fund called the CR51

(the "Vote"). In connection with the Vote, 

Henderson located Reginald McKamie, Sr. 

1 The nature and details regarding the CR5 fund are not 

relevant in this dispute.

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Hampton v. Int'l Longshoreman's Ass'n, Local 24

William W. Osborne

("McKamie"), an attorney. McKamie provided 

Henderson a fee agreement for Local 24 to 

hire McKamie as Local 24's attorney (the "Fee 

Agreement"). Henderson provided a copy of 

the Fee Agreement to Local 24's President, 

T.L. Simon ("Simon"), to sign on behalf of 

Local 24. Simon did not sign the Fee 

Agreement. Despite Simon's failure to sign the 

Fee Agreement, McKamie represented 

Plaintiffs in an action, connected with the CRS 

fund, in Galveston, Texas, in the United States 

District Court for the Southern District of Texas 

(the "Underlying Suit"). Final Judgment in the 

Underlying Suit was entered against Plaintiffs 

on July 14, 2017. Plaintiffs contend Local 24 

breached its contractual obligation under the 

Constitution to abide by the Vote because 

Simon did not sign the Fee Agreement or 

discuss the Fee Agreement with McKamie or 

Local 24 members.

Based on the foregoing, on July 15, 2016, 

Plaintiffs filed suit seeking a declaratory 

judgment that the Vote requires Local 24 to 

pay the legal fees incurred in bringing the 

Underlying Suit. On August 31, 2017, Local 24 

moved for summary judgment. [*3] 

II. STANDARD OF REVIEW

Summary judgment is proper when "there is no 

genuine dispute as to any material fact and the 

movant is entitled to a judgment as a matter of 

law." Fed. R. Civ. P. 56(a). The court must 

view the evidence in a light most favorable to 

the nonmovant. Coleman v. Hous. Indep. Sch. 

Dist., 113 F.3d 528, 533 (5th Cir. 1997). 

Initially, the movant bears the burden of 

presenting the basis for the motion and the 

elements of the causes of action upon which 

the nonmovant will be unable to establish a 

genuine dispute of material fact. Celotex Corp. 

v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 

91 L. Ed. 2d 265 (1986). The burden then 

shifts to the nonmovant to come forward with 

specific facts showing there is a genuine 

dispute for trial. See Fed. R. Civ. P. 56(c); 

Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 

89 L. Ed. 2d 538 (1986). "A dispute about a 

material fact is 'genuine' if the evidence is such 

that a reasonable jury could return a verdict for 

the nonmoving party." Bodenheimer v. PPG 

Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993)

(citation omitted).

But the nonmoving party's bare allegations, 

standing alone, are insufficient to create a 

material dispute of fact and defeat a motion for 

summary judgment. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 

2505, 91 L. Ed. 2d 202 (1986). Moreover, 

conclusory allegations unsupported by specific 

facts will not prevent an award of summary 

judgment; the plaintiff cannot rest on his 

allegations to get to a jury without any 

significant probative evidence tending to 

support the complaint. Nat'l Ass'n of Gov't 

Emps. v. City Pub. Serv. Bd. of San Antonio, 

40 F.3d 698, 713 (5th Cir. 1994). If a 

reasonable jury could not return a [*4] verdict 

for the nonmoving party, then summary 

judgment is appropriate. Liberty Lobby, Inc., 

477 U.S. at 248. The nonmovant's burden 

cannot be satisfied by "conclusory allegations, 

unsubstantiated assertions, or 'only a scintilla 

of evidence."' Turner v. Baylor Richardson 

Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)

(quoting Little v. Liquid Air Corp., 37 F.3d 

1069, 1075 (5th Cir. 1994)). Furthermore, it is 

not the function of the court to search the 

record on the nonmovant's behalf for evidence 

which may raise a fact issue. Topalian v. 

Ehrman, 954 F.2d 1125, 1137 n.30 (5th Cir. 

1992). Therefore, "[a]lthough we consider the 

evidence and all reasonable inferences to be 

drawn therefrom in the light most favorable to 

the nonmovant, the nonmoving party may not 

rest on the mere allegations or denials of its 

pleadings, but must respond by setting forth 

specific facts indicating a genuine issue for 

APFA App. 080

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Hampton v. Int'l Longshoreman's Ass'n, Local 24

William W. Osborne

trial." Goodson v. City of Corpus Christi, 202 

F.3d 730, 735 (5th Cir. 2000).

III. LAW & ANALYSIS

Plaintiffs seek a declaratory judgment that the 

Vote requires Local 24 to pay the legal fees 

incurred in the Underlying Suit. A declaratory 

action does not create a cause of action. Collin 

Cty., Tex. v. Homeowners Ass'n for Values 

Essential to Neighborhoods, 915 F.2d 167, 

171-72 (5th Cir. 1990). Thus, Plaintiffs must 

raise a genuine dispute of material fact on a 

cognizable breach of contract claim in order to 

sustain their request for declaratory judgment. 

Id. Local 24 contends there is no contractual 

basis for requiring Local 24 to pay the legal 

fees incurred in the Underlying Suit and moves 

for summary [*5] judgment on Plaintiffs' suit 

for declaratory judgment.

In support of Plaintiffs' request for declaratory 

relief, Plaintiffs contend Local 24 breached its 

contractual duty under the Constitution 

because Local 24 failed to abide by the Vote 

when Simon did not sign the Fee Agreement 

and did not discuss the Fee Agreement with 

McKamie and Local 24 members. Local 24 

contends it did not breach a contractual duty 

because the Constitution does not require 

Local 24 to abide by a union meeting vote to 

hire a lawyer. An international union's 

constitution is a binding contract between a 

local union and its members. United Ass'n of 

Journeyman v. Local 334, United Ass'n of 

Journeyman, 452 U.S. 615, 622, 101 S. Ct. 

2546, 69 L. Ed. 2d 280 (1981). Contract 

interpretation is a matter of law. United 

Paperworkers Int'l Union v. Champion Int'l 

Corp., 908 F.2d 1252, 1256 (5th Cir. 1990). 

Traditional rules of contract interpretation are 

applied when interpreting a union constitution, 

as long as their application is consistent with 

federal labor policies. Id. If a contract is 

susceptible to two reasonable interpretations, 

there is a genuine issue of fact as to the 

parties' intent and summary judgment is 

inappropriate. Id. However, a contract is not 

ambiguous "merely because the parties to an 

agreement proffer conflicting interpretations of 

a term." Gonzalez v. Denning, 394 F.3d 388, 

392 (5th Cir. 2004). Thus, the Court must 

determine whether the Constitution could 

reasonably [*6] be interpreted to bind Local 

24 to the Vote.

The only provision at issue is provision five of 

Part I of the Code of Ethics in the Constitution 

("Provision Five"), which reads:

The [International Longshoremen's 

Association] and local unions shall ensure 

that their operations are conducted in a 

democratic and fair manner. Regularly 

scheduled local union elections shall be 

conducted by secret ballot. Corruption, 

discrimination or anti-democratic practices 

shall not be tolerated.2

The parties' contentions turn on the meaning 

and applicability of the phrase "democratic and 

fair manner" in Provision Five. "Democratic 

and fair manner" is not defined in the 

Constitution. Plaintiffs contend that because 

the Vote was passed by a member vote at a 

general union meeting, and Provision Five 

requires Local 24 to conduct its operations in a 

democratic and fair manner, Provision Five 

requires Local 24 to abide by the Vote and 

thus Simon's failure to sign the Fee Agreement 

breached Local 24's obligation. Local 24 

contends Provision Five cannot reasonably 

require Local 24 to abide by the Vote because 

other provisions in the Constitution govern 

Local 24's financial practices, including 

requiring Local 24 [*7] officers to act within 

their fiduciary roles when making decisions to 

expend Local 24 funds.3

2 Defendant's Motion for Summary Judgment, Document No. 

20, Exhibit 7 at 2.

3 Local 24 also contends (1) Local 24 was not authorized to 

sign the Fee Agreement because it concerned individual 

APFA App. 081

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Hampton v. Int'l Longshoreman's Ass'n, Local 24

William W. Osborne

When interpreting a contractual provision, 

"courts must examine and consider the entire 

writing and give effect to all provisions such 

that none are rendered meaningless." 

Gonzalez v. Denning, 394 F.3d 388, 392 (5th 

Cir. 2004). Thus, the Court must look at the 

entire Constitution to determine whether 

Provision Five could reasonably be interpreted 

to require Local 24 to abide by the Vote. The 

Constitution expressly states that Provision 

Five is meant to "supplement the obligations 

already imposed on [Local 24]."4 Part III of the 

Code of Ethics in the Constitution ("Part III"), 

entitled "Financial Practices," instructs in 

relevant part that Local 24 "should not permit 

any of its funds be invested or expended in a 

manner which results in the personal profit or 

advantage of any officer or representative of 

the union."5 Part III also states that union 

members are to be reasonably informed on 

how Local 24's funds are used. Further, Part V 

of the Code of Ethics in the Constitution ("Part 

V"), entitled "Business and Financial Activities 

of Union Officials," specifically addresses that 

service providers for Local 24 [*8] are to be 

"selected solely on the basis of cost, quality, 

timeliness, location, convenience and whether 

the [provider] is unionized. Knowingly paying 

excessive amounts for goods or services is a 

breach of fiduciary duty."6 Part III and Part V 

instruct Local 24 officers how and when Local 

24 funds may be expended and impose duties 

on Local 24 officers when making decisions 

members' financial interests; (2) that Plaintiffs' declaratory 

relief is wasteful and futile; and (3) that Local 24 is not 

obligated to pay the litigation costs in the Underlying Suit 

because the litigation costs were incurred voluntarily by 

Plaintiffs. In light of the Court's holding, however, the Court 

need not address these contentions.

4 Defendant's Motion for Summary Judgment, Document No. 

20, Exhibit 7 at 1.

5 Defendant's Motion for Summary Judgment, Document No. 

20, Exhibit 7 at 2.

6 Defendant's Motion for Summary Judgment, Document No. 

20, Exhibit 7 at 3.

regarding hiring a service provider, such as a 

lawyer. Thus, when making a decision to 

expend Local 24 funds, Simon is required to 

ensure Local 24 funds will not be used for the 

personal advantage of any union officer or 

representative. Specifically, when Simon was 

presented with the Fee Agreement, Simon had 

a duty to ensure that the Fee Agreement was 

in compliance with Local 24's financial 

practices and that McKamie was properly 

selected based solely on cost, quality, 

timeliness, location, and convenience.

Plaintiffs' interpretation that Provision Five 

requires Local 24 to abide by the Vote solely 

because the Vote was held at a union meeting 

would render Part III and Part V meaningless 

because such an [*9] interpretation would not 

allow Local 24 to make the financial decision 

to hire a lawyer based on the duties imposed 

in Part III and Part V. The Court thus finds that 

Provision Five cannot reasonably be 

interpreted to bind Local 24 to the Vote. 

Therefore, the Court finds, as a matter of law, 

Local 24 did not breach its contractual 

obligation under the Constitution.7 Accordingly, 

Local 24's motion for summary judgment on 

Plaintiffs' suit for declaratory judgment is 

granted.

IV. CONCLUSION

Based on the foregoing, the Court hereby

ORDERS that Defendant's Motion for 

Summary Judgment (Document No. 20) is 

GRANTED.

7 The Court notes it is undisputed that Local 24's standard 

procedure requires an expenditure of Local 24 funds to be 

approved by both Local 24's Executive Board and members. It 

is also undisputed that neither the Fee Agreement nor the 

litigation costs in the Underlying Suit was approved by Local 

24's Executive Board or members. Thus, even if Provision 

Five could reasonably be interpreted to bind Local 24 to the 

Vote, the Vote does not require Local 24 to pay the litigation 

costs in the Underlying Suit because the expenditure was not 

approved pursuant to Local 24's standard procedure.

APFA App. 082

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Hampton v. Int'l Longshoreman's Ass'n, Local 24

William W. Osborne

The Court will issue a separate Final 

Judgment.

SIGNED at Houston, Texas, on this 27 day of 

October, 2017.

/s/ David Hittner

DAVID HITTNER

United States District Judge

FINAL JUDGMENT

Because the Court has granted summary 

judgment for Defendant International 

Longshoreman's Association, Local 24 on all 

claims asserted in this lawsuit by Plaintiffs 

Anthony C. Hampton, Edward J. Richards, and 

Ricky Henderson (collectively, "Plaintiffs"), the 

Court hereby

ORDERS that Plaintiffs' case is DISMISSED.

THIS IS A FINAL JUDGMENT.

SIGNED at Houston, Texas, on this 27 day of 

October, 2017.

/s/ David Hittner [*10] 

DAVID HITTNER

United States District Judge

End of Document

APFA App. 083

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