1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

EUGENIO VARGAS, § 

§ 

 Plaintiff/Counterclaim Defendant, § 

§ 

v. § Civil Action No. 4:22-cv-00430-Y

§ 

ASSOCIATION OF PROFESSIONAL § 

FLIGHT ATTENDANTS, JULIE § 

HEDRICK, AND ERIK HARRIS, § 

§ 

 Defendants/Counterclaim Plaintiffs. § 

APPENDIX OF NON-PUBLISHED CASES CITED IN SUPPORT OF 

UNION DEFENDANTS’ REPLY (DOC.48) TO PLAINTIFF VARGAS’S SECOND 

AMENDED RESPONSE (DOC. 41) TO DEFENDANTS’ MOTION TO DISMISS (DOC. 24) 

The Union Defendants1, pursuant to Local Rules 7.1(i) and § C. of this Court’s Case 

Management Requirements, submit this appendix of non-published cases cited in, and in support 

of, the “UNION DEFENDANTS’ REPLY TO “PLAINTIFF'S SECOND AMENDED 

RESPONSE [DOC. 41] TO DEFENDANTS' MOTION TO DISMISS [DOC. 24] 

PLAINTIFF'S CLAIMS FOR RELIEF” (doc 48): 

TAB NON-PUBLISHED CASE CITATION 

1 

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) 

2 

Ball Metal Container Corp. v. UAW Local 129, 2022 U.S. App. LEXIS 33214, 

2022 WL 340573 at *7-8 (5th Cir. 2022) (unpublished). 

3 Bldg. Materials Mfg. Co. v. Steelworkers, 2020 U.S. Dist. LEXIS 37075, 2020 

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

1 “Union Defendants” shall refer collectively to Defendant/Counterclaim Plaintiff Association of 

Professional Flight Attendants (“APFA”) and to individual APFA officer Defendants Julie 

Hedrick and Erik Harris. 
2 

4 Hebert v. Gen. Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local 

270, 2004 U.S. Dist. LEXIS 13406 at *12-17 (E.D. La. 2004); 

5 Lalo LLC v. Hawk Apparel, Inc., 2022 U.S. Dist. LEXIS 72218, 2022 WL 

1173801 at *5-7 (N.D. Tex. 2022) (J. Lindsay). 

Date: October 6, 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
3 

CERTIFICATE OF SERVICE 

I certify that on this 6th day of October 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

/s/ Sanford R. Denison

SANFORD R. DENISON 
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) 
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
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.

http://web2.westlaw.corD/print/printstream.aspx?sv=Split&destination=atp&prid=ia744 1... 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.)) 

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
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-

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Not Reported in F.Supp.2d

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(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-

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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.)) 

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 

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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 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

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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.)) 

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

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

2022) (unpublished). 
 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
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
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
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
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 

2022 U.S. App. LEXIS 3214, *1
Page 6 of 12

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).

2022 U.S. App. LEXIS 3214, *4
Page 7 of 12

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.

2022 U.S. App. LEXIS 3214, *7
Page 8 of 12

"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 

2022 U.S. App. LEXIS 3214, *9
Page 9 of 12

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 

2022 U.S. App. LEXIS 3214, *12
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.

2022 U.S. App. LEXIS 3214, *15
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).

2022 U.S. App. LEXIS 3214, *17
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
Bldg. Materials Mfg. Co. v. Steelworkers, 2020 U.S. Dist. 

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

2020) 
 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 
Page 2 of 6

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
Page 3 of 6

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
Page 4 of 6

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
Page 5 of 6

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
Page 6 of 6

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
Hebert v. Gen. Truck Drivers, Chauffeurs, Warehousemen 

& Helpers, Local 270, 2004 U.S. Dist. LEXIS 13406 at 

*12-17 (E.D. La. 2004) 
 Positive

As of: October 6, 2022 8:51 PM Z

Hebert v. Gen. Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local 

270

United States District Court for the Eastern District of Louisiana

July 15, 2004, Decided ; July 16, 2004, Filed; July 16, 2004, Entered 

CIVIL ACTION No. 03-1744 SECTION: I/1 

Reporter

2004 U.S. Dist. LEXIS 13406 *; 175 L.R.R.M. 2403

ALEX HEBERT, JR., ET AL VERSUS GENERAL 

TRUCK DRIVERS, CHAUFFEURS, WAREHOUSEMEN 

AND HELPERS, LOCAL 270

Disposition: [*1] Motion of defendant, Local 270 of 

International Brotherhood of Teamsters, Chauffeurs, 

Warehousemen, and Helpers, GRANTED and plaintiff's 

claims DISMISSED with prejudice. 

Core Terms

plaintiffs', seniority, Producers, referral, grievance, 

productions, fair representation, summary judgment, 

drivers, hire, discriminatory, arbitration, discipline, hiring 

hall, employees, continuing violation, concealment, 

bargaining, pertaining, limitations period, plaintiff's claim, 

demonstrates, rights, statute of limitations, pursued, 

material fact, Additionally, violations, diligence, lawsuit

Case Summary

Procedural Posture

Plaintiff union members sued defendant union for 

breaching its duty of fair representation by failing to (1) 

refer them for work in seniority order and (2) process 

their grievances pertaining to that work referral system, 

in violation of the Labor-Management Reporting and 

Disclosure Act of 1959 (LMRDA), 29 U.S.C.S. §§ 401-

531 and § 9(a) of the Labor Management Relations Act 

(LMRA), 29 U.S.C.S. § 159(a). The union moved for 

summary judgment.

Overview

The union members filed grievances with the union 

because they were not being referred for movie 

production work in seniority order. The union refused to 

process the grievances. The members claimed they 

were not referred because they had picketed the union, 

verbally criticized union officials, and filed a lawsuit 

against the union. The court held, inter alia, that 

members failed to show the union had taken any official 

action referring the members for jobs which had directly 

penalized them in a way that separated them from other 

members or that the "producers preference" referral 

system was to control the members' conduct or to 

address union rules. Rather, the "producers preference" 

referral system was adopted by the union before the 

members' criticism and picketing and was the catalyst 

for the picketing and the subject of the grievances. 

Thus, the LMRDA claim failed. Moreover, the evidence 

showed only that the grievances were lodged and were 

not taken to arbitration or did not result in the plaintiffs 

being employed. Such evidence was insufficient to show 

the union's handling of the grievances was arbitrary, 

discriminatory, or in bad faith, so the LMRA claim failed.

Outcome

The union's motion for summary judgment was granted.

LexisNexis® Headnotes

Civil Procedure > ... > Summary 

Judgment > Entitlement as Matter of Law > Genuine 

Disputes

Civil Procedure > ... > Discovery > Methods of 

Discovery > General Overview

Civil Procedure > ... > Summary 

Judgment > Entitlement as Matter of Law > General 

Overview

Civil Procedure > ... > Summary 

Judgment > Entitlement as Matter of Law > Legal 
Entitlement

Civil Procedure > ... > Summary 

Judgment > Entitlement as Matter of 

Law > Materiality of Facts

Civil Procedure > ... > Summary 

Judgment > Supporting Materials > General 

Overview

HN1[ ] Entitlement as Matter of Law, Genuine 

Disputes

Pursuant to Fed. R. Civ. P. 56(c), summary judgment 

shall be rendered forthwith if the pleadings, depositions, 

answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of 

law. Fed. R. Civ. P. 56 (c).

Civil Procedure > ... > Summary 

Judgment > Burdens of Proof > General Overview

Civil Procedure > ... > Summary 

Judgment > Entitlement as Matter of Law > Genuine 

Disputes

HN2[ ] Summary Judgment, Burdens of Proof

On a motion for summary judgment, once the moving 

party carries its burden pursuant to Fed. R. Civ. P. 

56(c), the nonmoving party must come forward with 

specific facts showing that there is a genuine issue for 

trial. That burden is not satisfied by creating merely 

some metaphysical doubt as to the material facts, by 

conclusory allegations, unsubstantiated assertions or by 

only a scintilla of evidence. The materiality of facts is 

determined by the substantive law's identification of 

which facts are critical and which facts are irrelevant. 

Therefore, a fact is material if it might affect the outcome 

of the suit under the governing law. 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. Where the record taken as a whole could not lead 

a rational trier of fact to find for the non-moving party, 

there is no genuine issue for trial.

Civil Procedure > ... > Justiciability > Case & 

Controversy Requirements > Actual Controversy

Civil Procedure > ... > Discovery > Methods of 

Discovery > General Overview

Civil Procedure > ... > Summary 

Judgment > Burdens of Proof > General Overview

HN3[ ] Case & Controversy Requirements, Actual 

Controversy

In order to demonstrate that summary judgment should 

not lie, the nonmoving party must go beyond the 

pleadings and by her own affidavits, or by the 

depositions, answers to interrogatories, and admissions 

on file, designate specific facts showing that there is a 

genuine issue for trial. A court will resolve factual 

controversies in favor of the nonmoving party, but only 

when there is an actual controversy, that is, when both 

parties have submitted evidence of contradictory facts. 

The court will not, however, in the absence of any proof, 

assume that the nonmoving party could or would prove 

the necessary facts.

Civil Procedure > ... > Summary 

Judgment > Burdens of Proof > General Overview

Civil Procedure > Judgments > Summary 

Judgment > Partial Summary Judgment

HN4[ ] Summary Judgment, Burdens of Proof

The plain language of Fed. R. Civ. P. 56(c) mandates 

the entry of summary judgment, after adequate time for 

discovery and upon motion, against a party who fails to 

make a showing sufficient to establish the existence of 

an element essential to that party's case, and on which 

that party will bear the burden of proof at trial. In such a 

situation, there can be no genuine issue as to any 

material fact, since a complete failure of proof 

concerning an essential element of the nonmoving 

party's case necessarily renders all other facts 

immaterial.

Civil Procedure > ... > Summary 

Judgment > Entitlement as Matter of Law > General 

Overview

Civil Procedure > ... > Summary 

Judgment > Burdens of Proof > General Overview

HN5[ ] Summary Judgment, Entitlement as Matter 

2004 U.S. Dist. LEXIS 13406, *1
Page 3 of 20

of Law

A complete failure of proof as to one element requires 

summary judgment against the entirety of the claim.

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Discipline, 

Layoffs & Terminations

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN6[ ] Labor Arbitration, Discipline, Layoffs & 

Terminations

Proof that a union has infringed a member's right of free 

speech protected by § 101 of the Labor-Management 

Reporting and Disclosure Act (LMRDA), 29 U.S.C.S. § 

401 et seq., specifically 29 U.S.C.S. § 411, may, under 

certain circumstances, be actionable pursuant to § 102 

of the LMRDA, specifically 29 U.S.C.S. § 412, even if no 

unlawful discipline is shown.

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Discipline, 

Layoffs & Terminations

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN7[ ] Labor Arbitration, Discipline, Layoffs & 

Terminations

Sections 101(a)(5) and 609 of the Labor-Management 

Reporting and Disclosure Act (LMRDA), 29 U.S.C.S. § 

401 et seq. make it unlawful for a union to fine, 

suspend, expel, or otherwise discipline a union member 

for exercising any rights secured under the LMRDA. 29 

U.S.C.S. §§ 411(1)(5) and 529.

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Discipline, 

Layoffs & Terminations

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN8[ ] Labor Arbitration, Discipline, Layoffs & 

Terminations

Union action which adversely affects a member is 

"discipline" only when (1) it is undertaken under color of 

the union's right to control the member's conduct in 

order to protect the interests of the union or its 

membership, and (2) it directly penalizes him in a way 

which separates him from comparable members in good 

standing.

Business & Corporate Compliance > ... > Unfair 

Labor Practices > Employer 

Violations > Interference With Protected Activities

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Discipline, 

Layoffs & Terminations

HN9[ ] Employer Violations, Interference With 

Protected Activities

By using the phrase "otherwise discipline" in the LaborManagement Reporting and Disclosure Act (LMRDA), 

29 U.S.C.S. § 401 et seq., Congress did not intend to 

include all acts that deterred the exercise of rights 

protected under the LMRDA, but rather meant instead to 

denote only punishment authorized by the union as a 

collective entity to enforce its rules. The term refers only 

to actions undertaken under color of the union's right to 

control the member's conduct in order to protect the 

interests of the union or its membership. The union 

need not, however, invoke formal proceedings, and 

discipline can entail informal or summary penalties as 

long as adverse action against a union member is not 

purely ad hoc retaliation by individual union officers.

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Discipline, 

Layoffs & Terminations

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN10[ ] Labor Arbitration, Discipline, Layoffs & 

Terminations

Under the Labor-Management Reporting and Disclosure 

Act (LMRDA), 29 U.S.C.S. § 401 et seq., a suspension 

of job referrals through the hiring hall could qualify as 

"discipline" if it were imposed as a sentence on an 

individual by a union in order to punish a violation of 

union rules. Congress' reference to punishments 

2004 U.S. Dist. LEXIS 13406, *1
typically imposed by the union as an entity through 

established procedures, i.e. fine, suspension, and 

expulsion, indicates that Congress meant "discipline" to 

signify penalties applied by the union in its official 

capacity rather than ad hoc retaliation by individual 

union officers.

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Discipline, 

Layoffs & Terminations

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN11[ ] Labor Arbitration, Discipline, Layoffs & 

Terminations

A local union's action or inaction in the processing of a 

grievance is not "discipline" or punishment within the 

meaning of the Labor-Management Reporting and 

Disclosure Act, 29 U.S.C.S. § 401 et seq.

Governments > Legislation > Statute of 

Limitations > Extensions & Revivals

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

Governments > Legislation > Statute of 

Limitations > General Overview

Governments > Legislation > Statute of 

Limitations > Time Limitations

HN12[ ] Statute of Limitations, Extensions & 

Revivals

The United States Court of Appeals for the Fifth Circuit 

applies a six-month limitations period to a plaintiff's 

claims against his union for breach of the duty of fair 

representation (DFR) claims. The limitations period 

begins to run when the plaintiffs discovered, or in the 

exercise of reasonable diligence should have 

discovered, the acts that form the basis of their DFR 

claim.

Civil Rights Law > Protection of Rights > Procedural 

Matters > Continuing Violations

Governments > Legislation > Statute of 

Limitations > Extensions & Revivals

Labor & Employment Law > ... > Title VII 

Discrimination > Statute of Limitations > Continuing 

Violations

Labor & Employment 

Law > Discrimination > Actionable Discrimination

HN13[ ] Procedural Matters, Continuing Violations

The continuing violation theory provides that where the 

last act alleged is part of an ongoing pattern of 

discrimination and occurs within the filing period, 

allegations concerning earlier acts are not time-barred. 

However, the United States Court of Appeals for the 

Fifth Circuit has noted that courts are wary to use the 

continuing violation doctrine to save claims outside the 

area of Title VII of the Civil Rights Act of 1964, 42 

U.S.C.S. § 2000e et seq., discrimination cases.

Governments > Legislation > Statute of 

Limitations > Extensions & Revivals

Labor & Employment 

Law > Discrimination > Actionable Discrimination

Governments > Legislation > Statute of 

Limitations > General Overview

Governments > Legislation > Statute of 

Limitations > Time Limitations

HN14[ ] Statute of Limitations, Extensions & 

Revivals

The continuing violation doctrine embraces two types of 

cases. The first includes cases in which the original 

violation occurred outside the statute of limitations, but 

is closely related to other violations that are not timebarred. In such cases, recovery may be had for all 

violations, on the theory that they are part of one, 

continuing violation. The second type of continuing 

violation is one in which an initial violation, outside the 

statute of limitations, is repeated later; each violation 

begins the limitations period anew, and recovery may be 

had for at least those violations that occurred within the 

period of limitations. In contrast if the discrimination 

alleged is solely the result of a single violation that 

occurred outside the statute of limitations, the later 

effect of this act does not constitute a continuing 

2004 U.S. Dist. LEXIS 13406, *1
violation of the statute.

Criminal Law & Procedure > Defenses > Statute of 

Limitations

Labor & Employment 

Law > Discrimination > Actionable Discrimination

HN15[ ] Defenses, Statute of Limitations

The question of whether a particular course of conduct 

constitutes a continuing violation turns on whether the 

practice at issue is part of, or a repetition of, a past 

discriminatory act, in which case there is a continuing 

violation, or whether it is facially neutral, simply giving 

effect to prior discrimination, in which case there is no 

continuing violation. When there is a dispute about 

when the actual violation occurred, the key to that 

inquiry is whether the original discriminatory act had the 

degree of permanence that should trigger an 

employee's awareness of and duty to assert his or her 

rights.

Civil Procedure > ... > Statute of 

Limitations > Tolling of Statute of 

Limitations > Fraud

Governments > Legislation > Statute of 

Limitations > General Overview

Civil Procedure > ... > Statute of 

Limitations > Tolling of Statute of 

Limitations > Fraudulent Concealment

Torts > ... > Fraud & 

Misrepresentation > Nondisclosure > General 

Overview

HN16[ ] Tolling of Statute of Limitations, Fraud

Fraudulent concealment tolls the statute of limitations 

when a defendant knowingly conceals facts from a 

plaintiff that are necessary to support his claim. The 

focus of the inquiry is on whether the plaintiff has 

exercised due diligence in seeking to learn the facts 

which would disclose the fraud. As a matter of law, 

knowledge of facts which would have ignited an inquiry 

by a reasonably prudent person and if pursued with 

reasonable diligence would have resulted in the 

discovery of fraud, is equivalent to knowledge of the 

fraud. That inquiry parallels the "inquiry notice" 

requirement applied by the United States Court of 

Appeals for the Fifth Circuit in the context of duty of fair 

representation claims.

Torts > ... > Fraud & 

Misrepresentation > Nondisclosure > General 

Overview

HN17[ ] Fraud & Misrepresentation, Nondisclosure

According to the United States Court of Appeals for the 

Fifth Circuit, allegations of fraudulent concealment do 

not free plaintiffs of their obligation to exercise 

reasonable diligence to discover frauds perpetrated 

against them once they are on notice that such acts 

might have occurred. The requirement of a diligent 

inquiry imposes an affirmative duty on a plaintiff. 

Although a plaintiff will not be charged with knowledge 

of facts fraudulently concealed simply because he has 

had the opportunity or power to investigate, a plaintiff 

who has learned of facts which would cause a 

reasonable person to inquire further must proceed with 

a reasonable and diligent investigation, and is charged 

with the knowledge of all facts such an investigation 

would have disclosed.

Civil Procedure > ... > Statute of 

Limitations > Tolling of Statute of 

Limitations > Ignorance

Governments > Legislation > Statute of 

Limitations > Equitable Estoppel

Governments > Legislation > Statute of 

Limitations > General Overview

Governments > Legislation > Statute of 

Limitations > Tolling

HN18[ ] Tolling of Statute of Limitations, 

Ignorance

The doctrines of equitable tolling and equitable estoppel 

embody similar principles. The party invoking the court's 

equitable power to toll a statute of limitation bears the 

burden of presenting facts which, if true, would require a 

court as a matter of law to estop the defendant from 

asserting the statute of limitations. Explaining the 

difference between equitable tolling and equitable 

2004 U.S. Dist. LEXIS 13406, *1
estoppel, the United States Court of Appeals for the 

Fifth Circuit has stated that equitable tolling focuses on 

the plaintiff's excusable ignorance of the employer's 

discriminatory act. Equitable estoppel, in contrast, 

examines the defendant's conduct and the extent to 

which the plaintiff has been induced to refrain from 

exercising his rights.

Labor & Employment Law > ... > Unfair Labor 

Practices > Union Violations > Breach of Duty of 

Fair Representation

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Unfair Labor Practices > General 

Overview

HN19[ ] Union Violations, Breach of Duty of Fair 

Representation

The duty of fair representation arises from the grant 

under § 9(a) of the National Labor Relations Act (NLRA) 

of the union's exclusive power to represent all 

employees in a particular bargaining unit. The duty 

serves as a bulwark to prevent arbitrary union conduct 

against individuals stripped of traditional forms of 

redress by the provisions of federal labor law. Although 

a breach of the duty of fair representation is an unfair 

labor practice, the scope of protection afforded an 

employee by the duty encompasses a broader category 

of conduct than conduct that the NLRA explicitly defines 

as unfair labor practices.

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Discipline, 

Layoffs & Terminations

Governments > Fiduciaries

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Bargaining Units

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN20[ ] Labor Arbitration, Discipline, Layoffs & 

Terminations

Pursuant to the doctrine of fair representation, the 

exclusive agent's statutory authority to represent all 

members of a designated unit includes a statutory 

obligation to serve the interests of all members without 

hostility or discrimination toward any, to exercise its 

discretion with complete good faith and honesty, and to 

avoid arbitrary conduct. Additionally, analogizing the 

duty of fair representation to the duty owed by other 

fiduciaries to their beneficiaries, the United States 

Supreme Court has held that a union owes employees a 

duty to represent them adequately as well as honestly 

and in good faith. Accordingly, to sustain a claim for 

breach of the duty of fair representation, an employee 

must demonstrate that the union's conduct is arbitrary, 

discriminatory, or in bad faith, or that the union 

discharged its duties in a perfunctory manner. When 

acting in its representative capacity, a union's actions 

are arbitrary only if, in light of the factual and legal 

landscape at the time of the union's actions, the union's 

behavior is so far outside a wide range of 

reasonableness, as to be irrational.

Labor & Employment Law > ... > Labor 

Arbitration > Judicial Review > General Overview

HN21[ ] Labor Arbitration, Judicial Review

Congress did not intend judicial review of a union's 

performance to permit the court to substitute its own 

view of the proper bargain for that reached by the union. 

Rather, Congress envisioned the relationship between 

the courts and labor unions as similar to that between 

the courts and the legislature. Any substantive 

examination of a union's performance, therefore, must 

be highly deferential, recognizing the wide latitude that 

negotiators need for the effective performance of their 

bargaining responsibilities.

Civil Procedure > ... > Alternative Dispute 

Resolution > Arbitration > General Overview

Criminal Law & Procedure > Trials > Judicial 

Discretion

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN22[ ] Alternative Dispute Resolution, Arbitration

A union retains substantial discretion to decide whether 

2004 U.S. Dist. LEXIS 13406, *1
Page 7 of 20

and how far a grievance should be pursued. Although a 

union may not ignore a meritorious grievance or process 

it in perfunctory fashion, an individual employee does 

not have an absolute right to have a grievance taken to 

arbitration, or to any other level of the grievance 

process. A union's broad discretion in prosecuting 

grievance complaints includes not only the right to settle 

the dispute short of arbitration but also to refuse to 

initiate the first steps in the appeal procedure when it 

believes the grievance to be without merit. The duty of 

fair representation imposes an obligation on a union to 

investigate a grievance in good faith. Additionally, a 

union has an obligation to prosecute a grievance with 

reasonable diligence unless it decides in good faith that 

the grievance lacks merit or for some other reason 

should not be pursued. The critical question is whether 

a union's conduct was arbitrary, discriminatory, or in bad 

faith, so that it undermined the fairness or integrity of the 

grievance process.

Contracts Law > Breach > General Overview

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Labor Arbitration > Arbitration 

Awards

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Enforcement of Bargaining 

Agreements

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Interpretation of Agreements

Labor & Employment Law > Employment 

Relationships > Employment Contracts > Breaches

HN23[ ] Contracts Law, Breach

A court's analysis of a union's decision to change its 

referral system does not turn on whether the union was 

correct in its assessment of the impact of a judicial 

decision regarding the bargaining unit's contract, but 

only whether the union's action in response to that 

decision was arbitrary, discriminatory, or in bad faith. A 

union does not breach its duty of fair representation by 

rejecting an employee's interpretation of a collective 

bargaining agreement and failing to pursue an 

employee's grievance based on that interpretation 

unless the union's interpretation is itself arbitrary. The 

issue in a case alleging a breach of the duty of fair 

representation based on the union's failure to process a 

grievance challenging the union's construction of a 

contract is not whether the union's interpretation of the 

contract was correct, but whether it was nonarbitrary. 

Moreover, it is well settled law that a breach of the duty 

of fair representation is not established merely by proof 

that the underlying grievance was meritorious.

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN24[ ] Collective Bargaining & Labor Relations, 

Duty of Fair Representation

The United States Court of Appeals for the Fifth Circuit 

has recognized that the scope of the duty of fair 

representation is coextensive only with the union's 

statutory authority to act as the exclusive representative 

of all employees within the bargaining unit. If a union 

does not serve as the exclusive agent for the members 

of the bargaining unity with respect to a particular 

matter, there is no corresponding duty of fair 

representation.

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN25[ ] Collective Bargaining & Labor Relations, 

Duty of Fair Representation

The duty of fair representation extends to union conduct 

in the context of operating a hiring hall. The union has a 

responsibility to exercise the authority it has to refer 

workers for employment in a nonarbitrary and 

nondiscriminatory fashion, because the members of the 

bargaining unity have entrusted the union with the task 

of representing them. An improperly functioning hiring 

hall resembles a closed shop, with all of the abuses 

possible under such an arrangement, including 

discrimination against employees, prospective 

employees, member of union minority groups, and 

operation of a closed union. Therefore, when a union 

wields the power of an employer in its operation of a 

hiring hall, the union has an increased responsibility to 

exercise its power fairly. If a union does wield additional 

power in a hiring hall by assuming the employer's role, 

its responsibility to exercise that power fairly increases 

rather than decreases.

2004 U.S. Dist. LEXIS 13406, *1
Page 8 of 20

Labor & Employment Law > Collective Bargaining & 

Labor Relations > Duty of Fair Representation

HN26[ ] Collective Bargaining & Labor Relations, 

Duty of Fair Representation

The United States Court of Appeals for the Fifth Circuit 

has held that it is unlawful for a union to discriminate 

among employees for arbitrary and capricious reasons 

in its operation of an exclusive hiring hall. Referrals for 

employment made without reference to objective criteria 

or standards are invalid. Accordingly, a union has the 

duty to refrain from classifying applicants on an arbitrary 

basis where such arbitrary conduct affects the 

employment status of applicants whom the union is 

expected fairly to represent. Even absent an open 

manifestation of specific discriminatory intent, a union's 

departure from an established hiring hall practice may 

constitute a breach of the duty of fair representation if 

the union's conduct denied or interfered with an 

applicant's employment opportunities.

Counsel: For ALEX HEBERT, JR, LIONEL A 

JOHNSON, SR, CLARENCE DORSEY, ELLIOT 

BAILEY, IRELL WARREN, SR, NATHAN BRADLEY, 

plaintiffs: Suzette Peychaud Bagneris, Bagneris & 

LaFonta, LLC, New Orleans, LA.

For GENERAL TRUCK DRIVERS, CHAUFFEURS, 

WAREHOUSEMEN AND HELPERS LOCAL UNION 

NO. 270, defendant: Louis Leo Robein, Jr., Karen Maria 

Torre, Robein, Urann & Lurye, Metairie, LA. 

Judges: LANCE M. AFRICK, UNITED STATES 

DISTRICT JUDGE. 

Opinion by: LANCE M. AFRICK

Opinion

ORDER AND REASONS

This matter is before the Court pursuant to a motion for 

summary judgment filed on behalf of defendant, Local 

270 of the International Brotherhood of Teamsters, 

Chauffeurs, Warehousemen, and Helpers ("Union"). 1

1 Rec. Doc. No. 40. Prior to the instant motion for summary 

judgment, the Union filed a motion for partial summary 

Plaintiffs, Alex Hebert, Jr., Lionel A. Johnson, Sr., 

Clarence Dorsey, Elliot Bailey, Irell Warren, Sr., and 

Nathan Bradley, oppose the motion. For the following 

reasons, defendant's motion for summary judgment is 

GRANTED.

 [*2] FACTS AND PROCEDURAL HISTORY

This matter arises out of a dispute between plaintiffs, six 

Union-represented truck drivers, and the Union 

pertaining to the Union's method of referring truck 

drivers for work on movie and television productions. 

The Union represents men and women in a wide variety 

of occupations in the greater New Orleans area, 

including truck drivers. The Union's business agent, 

Ovid P. Davis, is responsible for referring truck drivers 

for work on television and film productions, filming within 

the jurisdiction of the local, that are signatories to a 

collective bargaining agreement ("CBA") with the Union. 

2

 Davis is also responsible for handling and 

investigating grievances that arise from work pursuant 

to the CBAs. 3

When film and television productions film in New 

Orleans, the producers may enter into a CBA with the 

Union in order to obtain qualified drivers for their 

productions. The productions [*3] and the Union use, 

subject to modifications, if any, a template referred to as 

the Area Standards Agreement, used nationwide for 

union truck driving production work. Additionally, 

productions filming in more than one union's jurisdiction 

may enter into, or agree to abide by, the Area Standards 

Agreement. With respect to multi-jurisdictional 

productions, the Union is required to adhere to the Area 

Standards Agreement even though a particular local 

may not have a written contract with the particular 

production. 4

Prior to 1996, when the Area Standards Agreement was 

judgment and motion to dismiss. See Rec. Doc. No. 11. 

Subsequent to the filing of the instant motion, the Court 

dismissed defendant's motion for partial summary judgment 

and motion to dismiss. See Rec. Doc. No. 47. The Court 

stated that the memoranda filed in connection with defendant's 

prior motions would be treated as supplemental memoranda to 

the instant motion for summary judgment. Id.

2 Rec. Doc. No. 40, Ex. A., Declaration of Ovid P. Davis ("Decl. 

Davis"), P4.

3 Id.

4 Id. at P5.

2004 U.S. Dist. LEXIS 13406, *1
Page 9 of 20

in effect between the Union and a production, the Union 

referred members to the production in order of their 

seniority in the industry in accordance with a seniority 

list maintained by the Union. 5 [*4] Pursuant to that 

procedure, if a production requested five drivers, the 

Union sent out the five most senior available drivers. 6

In 1996, one production company, Crescent City 

Pictures, Inc. ("Crescent City"), refused to hire drivers 

based on seniority notwithstanding the fact that they 

were referred to the production in seniority order. The 

Union, on behalf of one driver and pursuant to its 

agreement with Crescent City, grieved the refusal in 

binding arbitration 7 In connection with the arbitration 

proceedings, the Union argued that Crescent City was 

bound to hire the most senior qualified driver on the 

referral list and that Crescent City could only reject 

drivers for "just cause." 8 The arbitrator disagreed with 

the Union holding that there was no language in the 

CBA (which was modeled on the Area Standards 

Agreement) or related documents executed between 

Crescent City and the Union that obligated the 

production to hire the most senior driver. 9 The decision 

rested, in part, on language in the CBA pursuant to 

which a producer retained the right to reject any 

applicant referred by the Union. 10 Additionally, the 

arbitrator noted that the Union fulfilled its obligation to 

maintain a non-discriminatory referral [*5] procedure by 

maintaining a seniority list and providing it to 

productions that request job applicants. 11

According to the Union, the Crescent City decision 

prompted the Union to adopt and implement a 

"producers preference" referral method. Pursuant to 

such referral method, instead of referring drivers to 

productions one by one in seniority order as had been 

done prior to 1996, the Union maintained and continues 

to maintain a list of its production drivers in seniority 

order and it provides the entire list to productions hiring 

5 Id. at P9.

6 Id.

7 Rec. Doc. No. 40, Ex. G., Crescent City Pictures Arbitration 

Decision ("Crescent Arb."), at 1.

8 Id. at 4.

9 Id. at 7.

10 Id. at 6.

11 Id. at 8.

Union drivers. Upon receipt of the list, the production 

then selects any employees it wishes to hire from the 

Union list (hereinafter referred to as "Producers 

Preference"). 12

 [*6] On June 17, 2003, plaintiffs filed the instant action 

claiming that the Union breached the Union's duty of fair 

representation by failing to refer them for production 

work in seniority order and failing to process their 

grievances pertaining to the non-seniority-based referral 

system, all in violation of the Labor-Management 

Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 

401-531 ("LMRDA") and section 9(a) of the Labor 

Management Relations Act, 29 U.S.C. § 159(a). 

13

According to the complaint, sometime in 2002, the 

plaintiffs filed grievances with the Union because they 

were not being referred for work in seniority order and 

the Union refused to process their grievances. 14 The 

plaintiffs alleged that when they asked the Union why 

they were not receiving job assignments, the Union 

falsely informed them that the production managers of 

the productions had rejected them. 15 Plaintiffs claim 

that they were not referred to production work by the 

Union because they had picketed the Union, verbally 

criticized Union officials, and filed a lawsuit against the 

Union. 16 They assert that the Union's alleged failure to 

refer them in seniority [*7] order is designed to punish 

plaintiffs for exercising rights pursuant to the U.S. 

Constitution and other federal laws. 17 In briefs 

submitted to this Court, the plaintiffs have also raised 

the claim that the Producers Preference violates the 

Union Constitution, the Union by-laws, and internal 

Union rules.

On February 3, 2004, the Union filed this motion 

contending that (1) plaintiffs' LMRDA claims are not 

actionable because none of the Union's conduct 

complained of constitutes "discipline" within the 

meaning of the statute; (2) plaintiffs' claims based on the 

Union's breach of its duty of fair representation are time12 Decl. Davis, P12.

13 See Rec. Doc. No. 1., Complaint ("Comp."). In the 

complaint, plaintiffs incorrectly cite the LMRDA as "29 USC § 

401-531."

14 Id. at P5.

15 Id. at P6.

16 Id. at P7.

17 Id. at P9.

2004 U.S. Dist. LEXIS 13406, *3
Page 10 of 20

barred; (3) plaintiffs cannot maintain a claim for breach 

of the duty of fair representation with respect to 

productions that are not signatories to [*8] a CBA; and 

(4) plaintiffs cannot show that any of the Union's actions 

constitute a breach of the duty of fair representation.

LAW AND ANALYSIS

I. Summary Judgment Standard

HN1[ ] Pursuant to Rule 56(c) of the Federal Rules of 

Civil Procedure, summary judgment "shall be rendered 

forthwith if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as 

to any material fact and that the moving party is entitled 

to a judgment as a matter of law." Fed. R. Civ. P. 56 (c). 

HN2[ ] Once the moving party carries its burden 

pursuant to Rule 56(c), the nonmoving party must come 

forward with specific facts showing that there is a 

genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. 

v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 

1348, 1356, 89 L. Ed. 2d 538 (1986). That burden is not 

satisfied by creating merely some metaphysical doubt 

as to the material facts, by conclusory allegations, 

unsubstantiated assertions or by only a scintilla of 

evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 

(5th Cir. 1994) [*9] (citations omitted). The materiality of 

facts is determined by "the substantive law's 

identification of which facts are critical and which facts 

are irrelevant." Anderson v. Liberty Lobby, Inc. 477 U.S. 

242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 

(1986). Therefore, a fact is material if it "might affect the 

outcome of the suit under the governing law." Id. 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." Id. "Where the record taken as a 

whole could not lead a rational trier of fact to find for the 

non-moving party, there is no genuine issue for trial." 

Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (internal 

quotation omitted).

HN3[ ] In order to demonstrate that summary 

judgment should not lie, the nonmoving party must "go 

beyond the pleadings and by her own affidavits, or by 

the 'depositions, answers to interrogatories, and 

admissions on file,' designate 'specific facts showing 

that there is a genuine issue for trial.'" Celotex Corp. v. 

Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. 

Ed. 2d 265 (1986); Auguster v. Vermillion Parish School 

Board, 249 F.3d 400, 402 (5th Cir. 2001). [*10] A court 

will resolve factual controversies in favor of the 

nonmoving party, "but only when there is an actual 

controversy, that is, when both parties have submitted 

evidence of contradictory facts." Little, 37 F.3d at 1075. 

The Court will not, however, in the absence of any 

proof, assume that the nonmoving party could or would 

prove the necessary facts. See id. (citing Lujan v. Nat'l 

Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 

3188, 111 L. Ed. 2d 695 (1990)).

HN4[ ] The plain language of Rule 56(c)

"mandates the entry of summary judgment, after 

adequate time for discovery and upon motion, 

against a party who fails to make a showing 

sufficient to establish the existence of an element 

essential to that party's case, and on which that 

party will bear the burden of proof at trial. In such a 

situation, there can be "no genuine issue as to any 

material fact," since a complete failure of proof 

concerning an essential element of the nonmoving 

party's case necessarily renders all other facts 

immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. 

Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Munoz v. Orr, 

200 F.3d 291, 307 (5th Cir. 2000) [*11] HN5[ ] ("A 

complete failure of proof as to one element requires 

summary judgment against the entirety of the 

claim")(citation omitted).

II. Plaintiffs' claims pursuant to the LMRDA

The Union moves for summary judgment dismissing 

plaintiffs' claims pursuant to the LMRDA on the ground 

that plaintiffs have failed to allege acts constituting 

"discipline" that are actionable pursuant to sections 

101(a)(5)and 609 of the LMRDA. 18

18 The Court is cognizant that HN6[ ] proof that a union has 

infringed a member's right of free speech protected by section 

101 of the LMRDA, 29 U.S.C. § 411, may, under certain 

circumstances, be actionable pursuant to section 102, 29 

U.S.C. § 412, even if no unlawful discipline is shown. See 

Guidry v. International Union of Operating Engineers, 

Local 406, 907 F.2d 1491, 1493 (5th Cir. 1990). However, in 

the course of at least three rounds of briefing with respect to 

the instant motion, plaintiffs have never disputed that, with 

respect to their LMRDA claims, they are proceeding solely 

pursuant to sections 101(a)(5)and 609 of the Act. Therefore, 

the only issue presented to this Court is whether plaintiffs have 

sustained their summary judgment burden with respect to 

whether the Union's conduct constitutes unlawful "discipline."

2004 U.S. Dist. LEXIS 13406, *7
Page 11 of 20

 [*12] HN7[ ] Sections 101(a)(5)and 609 of the 

LMRDA make it unlawful for a union to "fine, suspend, 

expel, or otherwise discipline" a union member for 

exercising any rights secured under the LMRDA. 29 

U.S.C. §§ 411(a)(5) and529 (1998 ed.). In Miller v. 

Holden, 535 F.2d 912 (5th Cir. 1976), the Fifth Circuit 

held:

HN8[ ] Union action which adversely affects a 

member is "discipline" only when (1) it is 

undertaken under color of the union's right to 

control the member's conduct in order to protect the 

interests of the union or its membership, and (2) it 

directly penalizes him in a way which separates him 

from comparable members in good standing.

Id. at 915. Subsequently, in Breininger v. Sheet Metal 

Workers Int'l Assn. Local No. 6, 493 U.S. 67, 90, 110 S. 

Ct. 424, 438, 107 L. Ed. 2d 388 (1989), the United 

States Supreme Court addressed the issue of whether 

the alleged failure of union officials to refer the plaintiff 

for employment in retaliation for the plaintiff's opposition 

to their leadership constituted "discipline" within the 

meaning of the LMRDA. The Court found that HN9[ ] 

"by using the phrase 'otherwise discipline, [*13] ' 

Congress did not intend to include all acts that deterred 

the exercise of rights protected under the LMRDA, but 

rather meant instead to denote only punishment 

authorized by the union as a collective entity to enforce 

its rules." 493 U.S. at 91, 110 S. Ct. at 438-39. The 

Court held that "the term refers only to actions 

'undertaken under color of the union's right to control the 

member's conduct in order to protect the interests of the 

union or its membership.'" Id. at 91, 110 S. Ct. at 493

(quoting Miller v. Holden, 535 F.2d 912, 915 (5th Cir.). 

"The union need not, however, invoke formal 

proceedings, and discipline can entail informal or 

summary penalties as long as adverse action against a 

union member is not purely 'ad hoc retaliation by 

individual union officers.'" Guidry v. Int'l Union of 

Operating Eng'rs, Local 406 (Guidry II), 907 F.2d 1491, 

1493 (5th Cir. 1990)(citing Breininger, 493 U.S. at 91-

92, 110 S. Ct. at 439).

In a footnote, the Breininger Court clarified its holding:

We do not imply that "discipline" may be defined 

solely by the type of punishment involved, or that a 

union might be able [*14] to circumvent §§ 

101(a)(5)and 609 by developing novel forms of 

penalties different from fines, suspensions, or 

expulsions. Even respondent acknowledges that 

HN10[ ] a suspension of job referrals through the 

hiring hall could qualify as "discipline" if it were 

imposed as a sentence on an individual by a union 

in order to punish a violation of union rules. . . . We 

note only that Congress' reference to punishments 

typically imposed by the union as an entity through 

established procedures[, i.e. fine, suspension, and 

expulsion,] indicates that Congress meant 

"discipline" to signify penalties applied by the union 

in its official capacity rather than ad hoc retaliation 

by individual union officers.

Breininger, 493 U.S. at 92 n.15, 110 S. Ct. at 493 n.15. 

(alteration supplied). The petitioner in Breininger

"alleged only that [certain union officials] failed to refer 

him for employment" due to his opposition to the union 

leadership. Id. at 94, 110 S. Ct. at 440. Therefore, the 

petitioner failed to allege acts constituting discipline 

within the meaning of the Act. Id. In light of Miller and 

Breininger, the Court's task is to determine [*15] 

whether plaintiffs have carried their summary judgment 

burden by designating specific facts that demonstrate 

that the Union, as a collective entity and in its official 

capacity, penalized plaintiffs by failing to refer them for 

work in a way that other members in good standing 

were not penalized.

It is undisputed that the alleged "punishment" in this 

case, i.e., the Union's failure to refer the plaintiffs for 

work in seniority order, did not result from an 

established union disciplinary process. Plaintiffs have 

failed to point to any specific facts in the record that 

demonstrate that the Union has taken any official action 

as a collective entity with respect to referring plaintiffs 

for production jobs which has directly penalized them in 

a way that separates them from other members. 

Similarly, plaintiffs have not presented any evidence that 

the Union's failure to refer them in seniority order 

pursuant to the Producers Preference was undertaken 

for the purpose of controlling plaintiffs' conduct or that it 

was adopted by the Union to address any violation of 

the union rules by plaintiffs. To the contrary, the 

summary judgment evidence demonstrates that the 

Producers Preference was [*16] adopted by the Union 

prior to plaintiffs' criticism and picketing and it was, in 

fact, the catalyst for their picketing and the subject of 

their grievances. 19

19 See Rec. Doc. No. 40, Ex. H, deposition of Alex Hebert, Jr. 

("Dep. Hebert"), pp. 199-200; Ex. 1, deposition of Lionel A. 

Johnson, Sr. ("Dep. Johnson"), pp. 13-15, 23; Ex. J., 

deposition of Clarence Dorsey ("Dep. Dorsey"), pp. 14-16; Ex. 

K, deposition of Elliot Bailey ("Dep. Bailey"), p. 12; Ex. L., 

deposition of Irell Warren, Sr. ("Dep. Warren"), pp. 17-18, 28; 

2004 U.S. Dist. LEXIS 13406, *11
Page 12 of 20

Plaintiffs' sole argument in support of their LMRDA claim 

is that Breininger does not apply to this case because, 

unlike the petitioner in that case, plaintiffs have also 

alleged that the Union punished them by its failure to 

process their grievances pertaining to the referral 

system. The plaintiffs argument is unavailing. HN11[ ] 

A local union's action or inaction in the processing of a 

grievance is not "discipline" or punishment [*17] within 

the meaning of the LMRDA. Camporeale v. Airborne 

Freight Corp., 732 F. Supp. 358 (E.D.N.Y. 1990)

(concluding that "as a matter of law, Local 295's 

processing of the grievance and its determination not to 

pursue formal arbitration on behalf of [plaintiff] is not 

'discipline' or punishment within the meaning of section 

101(a)(5)). Accordingly, the Union is entitled to a 

judgment as a matter of law dismissing plaintiff's 

LMRDA claims.

III. Timeliness of Plaintiff's Duty of Fair Representation 

Claims

HN12[ ] The Fifth Circuit applies a six-month 

limitations period to a plaintiff's claims against his union 

for breach of the duty of fair representation ("DFR" 

claims). Smith v. Int'l Org. of Masters, Mates and Pilots, 

296 F.3d 380, 383 (5th Cir. 2002)(extending the sixmonth limitation period applicable to "hybrid" § 301/DFR 

claims to cases where a plaintiff only brings a DFR 

claim against his union); Landry v. Air Line Pilots Ass'n 

Int'l, 901 F.2d 404, 411 (5th Cir. 1990)("The six month 

limitation period is applicable whenever there is a DFR 

claim."). The limitations period begins to run when the 

plaintiffs discovered, [*18] or in the exercise of 

reasonable diligence should have discovered, the acts 

that form the basis of their DFR claim. See Barrow v. 

New Orleans Steamship Assoc. (Barrow I), 10 F.3d 292, 

300 (5th Cir. 1994); Wood v. Houston Belt & Terminal 

Ry., 958 F.2d 95, 97 (5th Cir. 1992); Landry, 901 F.2d at 

413; Barrett v. Ebasco Constructors, Inc., 868 F.2d 170, 

171 (5th Cir. 1989).

The instant action was filed on June 17, 2003. 

Therefore, although there is a dispute about when 

plaintiffs' claims accrued, it is undisputed that claims 

which accrued subsequent to December 17, 2002, are 

timely. As discussed below, plaintiffs have argued that 

the Union has breached its duty of fair representation in 

two distinct ways, each requiring a separate timeliness 

analysis. First, plaintiffs claim that the Union's adoption 

of the Producers Preference violated the Union's duty of 

fair representation because it was adopted in 

Ex. M. deposition of Nathan Bradley ("Dep. Bradley"), pp. 13-

16.

contravention of the Union Constitution, the Union bylaws, and the Union's local rules governing referrals. 

Second, plaintiffs claim that, even assuming that the 

Producers Preference is valid, the referral system is 

being [*19] arbitrarily and discriminatorily applied to 

them in retaliation for their criticism of the Union.

A. Plaintiffs' Claims Challenging the Producers 

Preference

With respect to productions dating back to 1997 and 

continuing until Spring, 2003, plaintiffs seek to recover 

damages for the Union's alleged failure to refer them in 

seniority order. Additionally, although plaintiffs have 

never amended their complaint, plaintiffs' submissions 

to this Court suggest that they also seek to recover 

damages pertaining to non-seniority based referrals 

occurring during the pendency of this litigation. Plaintiffs 

argue that since the Crescent City arbitration decision in 

1996, the Union has been engaging in a continuing 

violation and, therefore, because some of plaintiffs' 

claims pertain to referrals that occurred within the 

limitations period, all of their claims are timely. 

Defendants argue that all of plaintiffs' claims are timebarred because, to the extent that plaintiffs' claims are 

challenging the adoption of the Producers Preference 

and are premised on repeated applications of that 

referral system, plaintiffs' claims accrued when the 

Union adopted that referral system in 1996.

HN13[ ] "The continuing [*20] violation theory 

provides that where the last act alleged is part of an 

ongoing pattern of discrimination and occurs within the 

filing period, allegations concerning earlier acts are not 

time-barred." McGregor v. Louisiana State Univ. Bd. of 

Supervisors, 3 F.3d 850, 866 (5th Cir. 1993). However, 

the Fifth Circuit has noted that "courts, including this 

one, are wary to use the continuing violation doctrine to 

save claims outside the area of Title VII discrimination 

cases." Id. at n.27. Assuming, arguendo, that the 

continuing violations could ever apply in the context of a 

DFR claim, the Court agrees with the Union that 

plaintiffs' claims premised on the alleged illegality of the 

adoption of the Producers Preference and subsequent 

applications of that non-seniority based referral system 

are untimely.

In the context of discrimination claims, the Fifth Circuit 

has explained the continuing violations doctrine as 

follows:

HN14[ ] The continuing violation doctrine 

embraces two types of cases. The first includes 

cases in which the original violation occurred 

2004 U.S. Dist. LEXIS 13406, *16
Page 13 of 20

outside the statute of limitations, but is closely 

related to other violations that are not time-barred. 

In [*21] such cases, recovery may be had for all 

violations, on the theory that they are part of one, 

continuing violation.

The second type of continuing violation is one in 

which an initial violation, outside the statute of 

limitations, is repeated later; in this case, each 

violation begins the limitations period anew, and 

recovery may be had for at least those violations 

that occurred within the period of limitations.

. . .

In contrast . . . if the discrimination alleged is solely 

the result of a single violation that occurred outside 

the statute of limitations, the later effect of this act 

does not constitute a continuing violation of the 

statute.

Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 

1103-04 (5th Cir. 1990)(footnotes and citations omitted). 

HN15[ ] The question of whether a particular course of 

conduct constitutes a continuing violation turns on 

"whether the practice at issue is part of, or a repetition 

of, a past discriminatory act, in which case there is a 

continuing violation, or whether it is facially neutral, 

simply giving effect to prior discrimination, in which case 

there is no continuing violation." Id. at 1104. The [*22] 

Hendrix Court concluded that when there is a dispute 

about when the actual violation occurred, the key to that 

inquiry is "whether the original discriminatory act had 

'the degree of permanence that should trigger an 

employee's awareness of and duty to assert his or her 

rights.'" Id. (quoting Berry v. Bd. of Supervisors, 715 

F.2d 971, 981 (5th Cir. 1983)); Glass v. Petro-Tex 

Chem. Corp., 757 F.2d 1554, 1561 n.5 (5th Cir. 

1985)(noting that whether particular conduct had the 

degree of permanence sufficient to alert a plaintiff to 

assert his rights embodies the "core idea" of the 

continuing violations doctrine).

In Barrow v. New Orleans Steamship Assoc., 932 F.2d 

473 (5th Cir. 1991), the plaintiff brought an age 

discrimination claim and a DFR claim against his union 

based upon an allegedly discriminatory seniority system 

adopted in violation of a collective bargaining agreement 

that altered his seniority rights and affected his ability to 

secure work. Id. at 475. In the context of his 

discrimination claim, the Union argued that any claims 

based upon the allegedly unlawful adoption and 

subsequent applications of [*23] a seniority system 

accrued when the system was adopted. Id. at 477. The 

Fifth Circuit agreed with the defendants holding that the 

adoption of a new seniority system triggers the 

limitations period "regardless of when the effects of such 

a system are actually felt." Id. at 477-78; see also 

Lorance v. AT&T Tech., Inc., 490 U.S. 900, 909, 109 S. 

Ct. 2261, 2267, 104 L. Ed. 2d 961 (1989)(holding that 

the limitations period for a Title VII claim challenging a 

discriminatory seniority system "will run from the date 

the system was adopted"); Hendrix v. City of Yazoo 

City, Miss., 911 F.2d 1102, 1104 (5th Cir. 1990)("The 

discriminatory adoption of a facially neutral seniority 

system [is] a single violation triggering the statute of 

limitations, rather than a continuing violation renewed 

with each [application]")(citing Lorance, 490 U.S. at 909, 

109 S. Ct. at 2266-67). The Barrow court then held that 

plaintiffs' DFR claim based upon the seniority system 

was also untimely because plaintiff's own testimony 

demonstrated that the plaintiff knew two years prior to 

filing the lawsuit that the seniority system [*24] would 

have an adverse effect on him. See id. at 480.

Applying these cases, the Court concludes that plaintiffs' 

claims challenging the validity of the adoption of the 

Producers Preference and all claims based upon 

subsequent applications of that referral procedure do 

not constitute a continuing violation. The original 

unlawful action, even according to plaintiffs' theory, is 

the Union's allegedly illegal adoption of the Producers 

Preference. Plaintiffs claims rests on the argument that, 

although the Producers Preference was arguably valid 

in the context of the Crescent City dispute, the Union 

was bound to put any change of referral procedure 

before the membership and allow the membership to 

vote on whether to adopt that system prior to applying 

the system to referrals for other productions.

Plaintiffs do not argue that the Producers Preference is 

independently arbitrary or discriminatory. Instead, the 

plaintiffs' theory rests on the illegality of the method by 

which the Producers Preference was initially adopted. 

Once the Union made its decision to implement the 

Crescent City decision without putting such a decision to 

a vote, the claimed breach of the duty of fair 

representation [*25] was complete. As such, 

subsequent applications of the Producers Preference 

merely gave effect to the original violation.

Furthermore, the undisputed summary judgment 

evidence demonstrates that the adoption of the 

Producers Preference had the "degree of permanence" 

that not only should have, but did in fact, trigger 

2004 U.S. Dist. LEXIS 13406, *20
plaintiffs' awareness of and duty to assert their rights. 

Two of the plaintiffs, Hebert and Johnson, admitted 

explicitly that they knew of the Crescent City decision 

and that subsequent to that decision they were not 

being referred for work in seniority order. 20 Moreover, 

all the plaintiffs first picketed the Union over the referral 

issue in 1997 and, since 2000, have filed numerous 

grievances over the Union's failure to refer them in 

seniority order. 21 Furthermore, plaintiffs began 

consulting attorneys with respect to filing a lawsuit 

pertaining to the seniority referral issue in 2000. 22 In 

December, 2001, Hebert filed, on behalf of himself and 

the other named plaintiffs in this lawsuit, an unfair labor 

practice charge with the National Labor Relations Board 

raising precisely the same issues raised here with 

respect to how the Producers Preference allegedly 

violated [*26] various Union rules. 23 Accordingly, 

viewing the facts in the light most favorable to the 

plaintiffs, the Court concludes that even if plaintiffs were 

not aware of the facts necessary to support their claims 

when the Producers Preference was adopted, the very 

latest that plaintiffs' claims accrued was December, 

2001, approximately a year and one-half prior to the 

filing of the instant lawsuit. Therefore to the extent that 

plaintiffs claim that the Producers Preference violates 

the Union Constitution, by-laws, and internal Union 

rules, those claims, as well as claims predicated upon 

subsequent applications of the Producers Preference, 

are untimely.

 [*27] B. Plaintiffs' Claims of Arbitrary and 

Discriminatory Referrals

In their submissions to this Court, plaintiffs have also 

claimed that since 1997, the Union has not been 

including their names at all on the seniority list sent to 

producers and/or manipulating the referral procedure to 

their detriment. As alleged in the complaint, plaintiffs 

claim that the hiring hall procedures are being 

discriminatorily and arbitrarily applied to them due to 

their repeated criticism of Union leadership and the 

20 Dep. Hebert, pp. 91-92; Rec. Doc. No. 52, Ex. E., Aff. 

Hebert, PP3-7; Ex. F., Aff. Johnson, PP3-7.

21 See id. at pp. 9-11, 200; Dep. Johnson, pp. 28, 50, 54-56; 

Dep. Warren, pp. 17, 20-24, 28-33; Dep. Bailey, pp. 5-10; 

Dep. Dorsey, pp. 24-27; Dep. Bradley, pp. 23-28. S Rec. Doc. 

No. 44, Ex. D, plaintiffs' group affidavit, p. 2;

22 Dep. Hebert, pp. 185-193.

23 Rec. Doc. No. 40, Ex. Q., NLRB charge and amendments.

referral procedures employed by the Union. 24 This 

category of claims is distinct from a direct challenge to 

the alleged illegal adoption of the Producers Preference 

and its subsequent "neutral" applications. See Barrow, 

932 F.2d at 479, 480 (distinguishing between claims 

directly challenging the discriminatory adoption of a 

seniority system and its subsequent facially neutral 

applications from claims alleging discriminatory 

application of that seniority system). Because such 

claims are not tied to a direct challenge to the validity of 

the Producers Preference, claims that the Producers 

Preference has been discriminatorily and arbitrarily 

applied to plaintiffs are not time-barred [*28] for those 

referrals occurring subsequent to December 17, 2002.

With respect to this category of claims, plaintiffs argue 

that their claims pertaining to referrals occurring prior to 

December 17, 2002, are timely pursuant to equitable 

tolling, equitable estoppel, and the doctrine of fraudulent 

concealment. They maintain that the statute of 

limitations should be tolled because the Union actively 

misled them about why they were not being hired for 

work. According to the plaintiffs' affidavit, the Union 

falsely told them that their names had been submitted to 

the producers, ostensibly pursuant to the Producers 

Preference, and that the producers had "rejected" them 

and selected other drivers on the list, many of whom 

had less seniority than plaintiffs. 25 Plaintiffs reason that 

all of their claims are timely because they relied on the 

Union's false statements that they were being referred 

pursuant to the Producers Preference and, therefore, all 

of their claims dating back to 1996 are timely.

 [*29] HN16[ ] Fraudulent concealment tolls the 

statute of limitations when a defendant knowingly 

conceals facts from a plaintiff that are necessary to 

support his claim. See L.C.L. Theatres, Inc. v. Columbia 

Pictures Indus., 566 F.2d 494, 496 (5th Cir. 

1978)(applying Texas law); Berry v. Allstate Ins. Co., 

252 F. Supp.2d 336, 343 (E.D.Tex. 2003)(citing L.C.L 

Theatres in the context of an ERISA claim). The focus of 

the inquiry is on whether the plaintiff has exercised due 

diligence in seeking to learn the facts which would 

disclose the fraud. See L.C.L. Theatres, 566 F.2d at 496

("As a matter of law, knowledge of facts which would 

have ignited an inquiry by a reasonably prudent person 

and if pursued with reasonable diligence would have 

resulted in the discovery of fraud, is equivalent to 

24 Comp. PP7-9.

25 Rec. Doc. No. 44, Ex. D., Plaintiffs' collective affidavit, at p. 

2.

2004 U.S. Dist. LEXIS 13406, *25
Page 15 of 20

knowledge of the fraud."). That inquiry parallels the 

"inquiry notice" requirement applied by the Fifth Circuit 

in the context of DFR claims. As stated by the Fifth 

Circuit, HN17[ ] "allegations of fraudulent concealment 

do not free plaintiffs of their obligation to exercise 

reasonable diligence to discover frauds perpetrated 

against them once they are on notice that [*30] such 

acts might have occurred." Landry, 901 F.2d at 412-413. 

The requirement of a diligent inquiry imposes an 

affirmative duty on a plaintiff. Id. at 413 n.16 (quoting 

Jensen v. Snellings, 841 F.2d 600, 607 (5th Cir. 1988)). 

Although a plaintiff will not be charged with knowledge 

of facts fraudulently concealed simply because he has 

had the opportunity or power to investigate, L.C.L. 

Theatres, 566 F.2d at 497, "[a] plaintiff who has learned 

of facts which would cause a reasonable person to 

inquire further must proceed with a reasonable and 

diligent investigation, and is charged with the knowledge 

of all facts such an investigation would have disclosed." 

Landry, 901 F.2d at 413 n.16 (citation omitted). 

Therefore, to defeat summary judgment, plaintiffs must 

come forward with specific facts demonstrating not only 

that the Union concealed that their names had not been 

submitted to the producers, but additionally, they must 

show that the Union's concealment was successful, i.e.,

that the Union's concealment prevented plaintiffs from 

ascertaining facts which would put a reasonably prudent 

person on [*31] notice to investigate further.

HN18[ ] The doctrines of equitable tolling and 

equitable estoppel embody similar principles. The party 

invoking the Courts equitable power to toll a statute of 

limitation bears the burden of "presenting facts 'which, if 

true, would require a court as a matter of law to estop 

the defendant from asserting the statute of limitations.'" 

McGregor, 3 F.3d at 865 (quoting Begay v. Hodel, 730 

F. Supp. 1001, 1011 (D.Ariz. 1990); see Teemac v. 

Henderson, 298 F.3d 452, 457 (5th Cir. 2002); Rhodes 

v. Guiberson Oil Tools Div., 927 F.2d 876, 879 (5th Cir. 

1991). Explaining the difference between equitable 

tolling and equitable estoppel, the Fifth Circuit has 

stated that "'Equitable tolling focuses on the plaintiff's 

excusable ignorance of the employer's discriminatory 

act. Equitable estoppel, in contrast, examines the 

defendant's conduct and the extent to which the plaintiff 

has been induced to refrain from exercising his rights." 

Rhodes, 927 F.2d at 878. Because plaintiffs' claims 

focus on the Union's alleged concealment of the reason 

that plaintiffs were not being hired, the Court will [*32] 

analyze plaintiffs' claim pursuant to equitable estoppel 

principles. See id. at 879 (applying the doctrine of 

equitable estoppel instead of equitable tolling where 

plaintiff claimed that his lawsuit was untimely because 

defendant misled his about the reasons for discharge). 

To avoid summary judgment on claims pertaining to 

referrals occurring prior to December 17, 2002, plaintiffs 

must come forward with facts demonstrating that the 

Union misled them about the true reason they were not 

being hired. The statute of limitations is then tolled until 

the plaintiffs either knew or should have discovered the 

misrepresentation or concealment that caused the 

delay. See id.

As noted above, the plaintiffs attested that Davis, the 

Union business agent, affirmatively represented to them 

that they were being referred to the production 

companies and "rejected" by the producers. Assuming, 

arguendo, that plaintiffs can establish that the Union's 

representations were, in fact, untrue, and viewing the 

summary judgment evidence in the light most favorable 

to the plaintiff, the Court concludes that the plaintiffs 

were put on inquiry notice, if not actual notice, of their 

claims [*33] no later than sometime in the latter half of 

2001. As noted above, plaintiffs filed a grievance with 

the National Labor Relations Board on July 30, 2001. 26

In that complaint, plaintiffs not only challenged the 

seniority referral system. They also alleged that the 

Union had applied the hiring hall system in a 

discriminatory manner by failing and/or refusing to refer 

plaintiffs for work. 27 Notwithstanding the NLRB's 

determination that plaintiffs had, in fact, been referred 

(and simply not selected), plaintiffs pursued their action 

by consulting at least two attorneys with respect to the 

claims presented here. 28 Given this undisputed 

evidence, even assuming that the Union's business 

agent had falsely represented to plaintiffs that they were 

being referred and "rejected", plaintiffs have failed to 

point to any evidence that even suggests that they were 

not aware of their legal rights or their ability to institute a 

legal action. The unrebutted summary judgment 

evidence clearly demonstrates that plaintiffs were aware 

that they were not being hired for jobs and that 

notwithstanding any representations the Union may 

have made regarding the reasons for their inability to 

secure employment, [*34] plaintiffs actively filed and 

pursued grievances with respect to referrals and took 

steps to pursue a legal action (short of timely filing a 

lawsuit) with respect to their claims.

Because plaintiffs' own actions are fatal to their claim 

26 Rec. Doc. No. 40, Ex. Q., NLRB charge and amendments.

27 Id.

28 Id., Dep. Hebert, at pp. 185-93.

2004 U.S. Dist. LEXIS 13406, *29
Page 16 of 20

that they were induced to forego their legal rights by 

relying on the Union's alleged misrepresentation, there 

is no basis on which to estop the Union from asserting 

the statute of limitations. Accordingly, plaintiffs' claims 

that the Union failed or refused to refer them for 

employment and/or influenced producers to hire other 

drivers are time-barred to the extent that they implicate 

referrals made prior to December 17, 2002.

IV. Duty of Fair Representation

HN19[ ] The duty of fair representation arises from 

"the grant under § 9(a) of the [National Labor Relations 

Act ("NLRA")] of the union's exclusive power to 

represent all employees in a particular bargaining [*35] 

unit." Breininger, 493 U.S. at 87; 110 S. Ct. at 436; 

Bache v. Am. Tel. & Tel., 840 F.2d 283, 287 (5th Cir. 

1988)(noting that an employee's cause of action is 

implied from the statutory scheme of federal labor law). 

The duty serves "as a 'bulwark to prevent arbitrary union 

conduct against individuals stripped of traditional forms 

of redress by the provisions of federal labor law.'" 

Breininger, 493 U.S. at 87, 110 S. Ct. at 436 (quoting 

Vaca v. Sipes, 386 U.S. 171, 182, 87 S. Ct. 903, 912, 

17 L. Ed. 2d 842 (1966). Although a breach of the duty 

of fair representation is an unfair labor practice, id.; 

Reed v. United Transp. Union, 488 U.S. 319, 328, 109 

S. Ct. 621, 627, 102 L. Ed. 2d 665 (1989); Hammons v. 

Adams, 783 F.2d 597, 601 (5th Cir. 1986), the scope of 

protection afforded an employee by the duty 

encompasses a broader category of conduct than 

conduct that the NLRA explicitly defines as unfair labor 

practices. Breininger, 493 U.S. at 87, 110 S. Ct. at 436.

HN20[ ] Pursuant to this doctrine, "the exclusive 

agent's statutory authority to represent all 

members [*36] of a designated unit includes a statutory 

obligation to serve the interests of all members without 

hostility or discrimination toward any, to exercise its 

discretion with complete good faith and honesty, and to 

avoid arbitrary conduct." Vaca, 386 U.S. at 177, 87 S. 

Ct. at 910; see also Hammons, 783 F.2d at 601. 

Additionally, analogizing the duty of fair representation 

to the duty owed by other fiduciaries to their 

beneficiaries, the Supreme Court has held that "a union 

owes employees a duty to represent them adequately 

as well as honestly and in good faith." Air Line Pilots 

Assoc., Int'l v. O'Neill, 499 U.S. 65, 75, 111 S. Ct. 1127, 

1134, 113 L. Ed. 2d 51 (1991). Accordingly, to sustain a 

claim for breach of the duty of fair representation, an 

employee "must demonstrate that the union's conduct is 

'arbitrary, discriminatory, or in bad faith,' or that the 

union discharged its duties in a perfunctory manner." 

Grovner v. Georgia-Pacific Corp., 625 F.2d 1289, 1290 

(5th Cir. 1980)(internal and final citation omitted). When 

acting in its representative capacity, "a union's actions 

are arbitrary only if, in light of the factual [*37] and legal 

landscape at the time of the union's actions, the union's 

behavior is so far outside a 'wide range of 

reasonableness', as to be irrational." O'Neill, 499 U.S. at 

67, 111 S. Ct. at 1130 (quoting Ford Motor Co. v. 

Huffman, 345 U.S. 330, 338, 73 S. Ct. 681, 686, 97 L. 

Ed. 1048 (1953)). In assessing the reasonableness of a 

union's representation of a bargaining unit, the Supreme 

Court has instructed:

HN21[ ] Congress did not intend judicial review of 

a union's performance to permit the court to 

substitute its own view of the proper bargain for that 

reached by the union. Rather, Congress envisioned 

the relationship between the courts and labor 

unions as similar to that between the courts and the 

legislature. Any substantive examination of a 

union's performance, therefore, must be highly 

deferential, recognizing the wide latitude that 

negotiators need for the effective performance of 

their bargaining responsibilities.

O'Neill, 499 U.S. at 78, 111 S. Ct. at 1135.

A. Failure to process grievances

Plaintiffs claim that the Union breached its duty of fair 

representation by failing to process their grievances with 

respect [*38] to the seniority referral issue. Defendant 

argues that its decision to implement the Crescent City 

decision by referring members en masse, instead of one 

by one in seniority order, was reasonable and any 

attempt to re-arbitrate the decision would have been, in 

its estimation, fruitless. 29

HN22[ ] A union retains substantial discretion to 

decide whether and how far a grievance should be 

pursued. See Vaca, 386 U.S. at 191, 87 S. Ct. at 917; 

Landry v. Cooper/T.Smith Stevedoring Co., Inc., 880 

F.2d 846, 852 (5th Cir. 1989); Bache, 840 F.2d at 289-

90; Hammons, 783 F.2d at 601. Although a union may 

not ignore a meritorious grievance or process it in 

perfunctory fashion, Vaca, 386 U.S. at 191, 87 S. Ct. at 

917; Hammons, 783 F.2d at 601, [*39] an individual 

employee does not have an absolute right to have a 

grievance taken to arbitration, Vaca, 386 U.S. at 191, 87 

29 The Union did not move for summary judgment on the 

ground that plaintiffs' DFR claims with respect to processing of 

grievances were untimely. Accordingly, the Court addresses 

those claims on the merits.

2004 U.S. Dist. LEXIS 13406, *34
Page 17 of 20

S. Ct. at 917, or to any other level of the grievance 

process. Cooper/T.Smith Stevedoring, 880 F.2d at 852

(citation omitted); Turner v. Air Transport Dispatchers 

Asso., 468 F.2d 297, 299 (5th Cir. 1972)("A union's 

broad discretion in prosecuting grievance complaints 

includes not only the right to settle the dispute short of 

arbitration but also to refuse to initiate the first steps in 

the appeal procedure when it believes the grievance to 

be without merit."). The duty of fair representation 

imposes an obligation on a union to investigate a 

grievance in good faith. Cooper/T.Smith Stevedoring, 

880 F.2d at 852 (citing Abilene Sheet Metal, Inc. v. 

N.L.R.B., 619 F.2d 332, 347 (5th Cir. 1980)). 

Additionally, a union has "an obligation to prosecute a 

grievance 'with reasonable diligence unless it decide[s] 

in good faith that the grievance lack[s] merit or for some 

other reason should not be pursued.'" Id. (quoting 

Hammons, 783 F.2d at 602)(alteration supplied). [*40] 

"The critical question is whether a union's conduct was 

arbitrary, discriminatory, or in bad faith, so that it 

undermined the fairness or integrity of the grievance 

process." Id. (citation omitted).

The Union contends that its decision not to pursue 

plaintiffs' grievances and rearbitrate the seniority referral 

issue was based on its determination, in light of the 

Crescent City decision, that it would not prevail on the 

matter a second time. The union business agent 

attested that the Union determined that contesting the 

issue again would have wasted resources and may 

have resulted in the loss of future productions coming to 

New Orleans by making the Union appear unduly 

contentious. 30

In Stanley v. Gen. Foods Corp., Maxwell House Div., 

508 F.2d 274 (5th Cir. 1975)(per curiam), the Fifth 

Circuit held that a union met their obligation of fair 

representation by pursuing a grievance pertaining to an 

employer's absentee procedure until the employer's 

procedure was upheld [*41] in a separate arbitration. 

Id. at 275. The Fifth Circuit concluded that because the 

union had pursued the grievance to a point that it 

determined further action would have been fruitless, the 

court could not say that the union's conduct was 

discriminatory or unfair. Id.

In the Crescent City arbitration, the Union pressed the 

arguments that plaintiffs raise in this case. Specifically, 

the Union argued that the producer had to accept 

potential employees for productions as referred by the 

Union in the order of their seniority and that any 

30 Decl. Davis, P16-18.

rejection of the employees referred must be for "just 

cause." 31 The arbitrator clearly rejected those 

arguments. Plaintiffs imply that the Crescent City 

decision was not a reasonable basis for the Union's 

decision not to pursue their grievances because that 

decision only decided that the productions did not have 

to hire in seniority order. Although plaintiffs do not 

dispute that the producers are not obligated to hire in 

seniority order, they maintain that according to local 

union rules, the Union was always bound to refer them 

in seniority order and to require that the producers to 

reject them for "just cause." Notwithstanding [*42] the 

arbitrator's decision that a producer did not need to have 

"just cause" in order to decline to hire a union worker, 32

plaintiffs' argument simply misses the point. HN23[ ] 

This Court's analysis of the Union's decision to change 

its referral system does not turn on whether the Union 

was correct in its assessment of the impact of the 

Crescent City decision, but only whether the Union's 

action in response to that decision was arbitrary, 

discriminatory, or in bad faith. Cf. Bache, 840 F.2d at 

291 (holding that a union does not breach its duty of fair 

representation by rejecting an employee's interpretation 

of a collective bargaining agreement and failing to 

pursue an employee's grievance based on that 

interpretation unless the union's interpretation is itself 

arbitrary); Tedford v. Peabody Coal Co., 533 F.2d 952, 

957 (5th Cir. 1976)(stating that the issue in a case 

alleging a breach of the duty of fair representation 

based on the union's failure to process a grievance 

challenging the union's construction of a contract is not 

whether the union's interpretation of the contract was 

correct, but whether it was nonarbitrary). Moreover, it is 

well settled law [*43] that a "breach of the duty of fair 

representation is not established merely by proof that 

the underlying grievance was meritorious." Vaca, 386 

U.S. at 195, 87 S. Ct. at 919; Freeman v. O'Neal Steel, 

Inc., 609 F.2d 1123, 1126 (5th Cir. 1980)("It is settled 

law that a breach of the fair representation duty cannot 

be based on the trial court's view regarding the 

probability of success on the merits of the grievance."); 

Turner, 486 F.2d at 299.

Other than the fact that the Union failed to process their 

grievances, the plaintiffs' have submitted no summary 

judgment evidence demonstrating that the Union's 

decision to forego pursuing their grievances in light of 

the Crescent City decision constituted bad faith, 

arbitrary, discriminatory, or unreasonable action. 

31 Crescent Arb., at pp. 3-5.

32 Id. at 9.

2004 U.S. Dist. LEXIS 13406, *39
Moreover, this Court cannot conclude that the Union's 

decision to apply the Crescent City decision as it did 

was unreasonable or arbitrary. To the extent [*44] that 

plaintiffs' claim that the Union failed to investigate their 

claims that the Union was refusing to refer them at all, 

those claims also fail for lack of proof. There is no 

summary judgment evidence before the Court 

demonstrating what decision the Union made with 

respect to those grievances or what, if any, investigation 

of those claims was undertaken by the Union. Absent 

such evidence, there is no factual basis on which this 

Court can analyze the Union's conduct. The sum total of 

plaintiffs' evidence is that the grievances were lodged 

and were not taken to arbitration or did not result in the 

plaintiffs being employed. Such evidence is insufficient 

to raise a genuine issue of material fact with respect to 

whether the Union's handling of their grievances was 

arbitrary, discriminatory, or in bad faith. See Bache, 840 

F.2d at 292 (holding that plaintiffs' conclusory 

statements that grievances have been presented to a 

union and that the union has failed to proceed with the 

grievance process are insufficient to create a genuine 

issue of material fact on summary judgment). Because 

plaintiffs have failed to meet their summary judgment 

burden with respect to their grievance-processing [*45] 

claims, the Union is entitled to a judgment as a matter of 

law with respect to those claims.

B. Plaintiffs' claims pertaining to Spirit, Scoundrel's Wife, 

Behind the Sun, and Monster's Ball.

HN24[ ] The Fifth Circuit has recognized that "the 

scope of the duty of fair representation is coextensive 

only with the union's statutory authority to act as the 

exclusive representative of all employees within the 

bargaining unit. If a union does not serve as the 

exclusive agent for the members of the bargaining unity 

with respect to a particular matter, there is no 

corresponding duty of fair representation." Barrett, 868 

F.2d at 171.

The Union's business agent attested that the Union did 

not refer anyone to the productions Spirit, Scoundrel's 

Wife, Behind the Sun, or Monster's Ball because those 

productions were not parties to a CBA with the Union or 

any other Teamster local. Plaintiffs have offered no 

evidence that these productions were signatory to a 

CBA such that the Union owed them a duty of fair 

representation with respect to those productions. 

Accordingly, there is no genuine issue for trial with 

respect to plaintiffs' claims based upon referrals for 

those productions.

 [*46] C. Plaintiffs' Referral Claims

In Breininger, the Supreme Court held that HN25[ ] the 

duty of fair representation extends to union conduct in 

the context of operating a hiring hall. 493 U.S. at 87-89, 

110 S. Ct. at 436-38. The union has a responsibility to 

exercise the authority it has to refer workers for 

employment "in a nonarbitrary and nondiscriminatory 

fashion, because the members of the bargaining unity 

have entrusted the union with the task of representing 

them." Id. at 88, 110 S. Ct. at 437. "An improperly 

functioning hiring hall [] resembles a closed shop, 'with 

all of the abuses possible under such an arrangement, 

including discrimination against employees, prospective 

employees, member of union minority groups, and 

operation of a closed union.'" Id. at 89, 110 S. Ct. at 

437. Therefore, when a union wields the power of an 

employer in its operation of a hiring hall, the union has 

an increased responsibility to exercise its power fairly. 

Id. ("If a union does wield additional power in a hiring 

hall by assuming the employer's role, its responsibility to 

exercise that power fairly increases rather than 

decreases.")(italics [*47] in original).

HN26[ ] The Fifth Circuit has held that it is unlawful for 

a union to discriminate among employees for arbitrary 

and capricious reasons in its operation of an exclusive 

hiring hall. N.L.R.B. v. Gen. Truckdrivers, 

Warehousemen and Housemen and Helpers, 778 F.2d 

207, 213 (5th Cir. 1985). Referrals for employment 

made "without reference to objective criteria or 

standards are invalid." Id. (citing Teamsters, Local 174 

(Totem Beverages, Inc.), 226 N.L.R.B. 690 (1976). 

Accordingly, "a union has the duty to refrain from 

classifying applicants on an arbitrary basis where such 

arbitrary conduct affects the employment status of 

applicants whom the union is expected fairly to 

represent." Id. Even absent an open manifestation of 

specific discriminatory intent, a union's departure from 

an established hiring hall practice may constitute a 

breach of the duty of fair representation if the union's 

conduct denied or interfered with an applicant's 

employment opportunities. See Int'l Union of Operating 

Eng'rs Local 406, AFL-CIO v. NLRB, 701 F.2d 504, 510 

(5th Cir. 1983).

As noted above, apart from their [*48] claims that they 

were not referred in seniority order pursuant to the 

Producers Preference, plaintiffs' claims that the Union 

manipulated the Producers Preference to deny plaintiffs' 

the opportunity to be fairly considered by prospective 

employers are timely to the extent that such claims 

2004 U.S. Dist. LEXIS 13406, *43
Page 19 of 20

accrued subsequent to December 17, 2002. In their 

briefs submitted to this Court, the plaintiffs have 

identified Playmaker, Unchain My Heart, and A Love 

Song for Bobby Long as the productions upon which 

their timely claims are based. The Union admits that 

referrals were made for these productions. 33 [*49] 

Additionally, as explained above, the Union maintains 

that pursuant to the Producers Preference, the Union 

submitted a referral list, containing 72 names, to the 

productions and that the production companies selected 

the employees they wished to hire from that list. Further, 

the Union asserts that it did not recommend specific 

workers beyond supplying the referral list to the 

producers. 34

Plaintiffs argue that a genuine issue of material fact 

exists with respect to whether the Union is, in fact, 

following the procedure the Union describes. William 

Pitts, the transportation coordinator for the production of 

Playmaker, testified that prior to going to a new location 

for a production, he routinely consults with other 

transportation coordinators to obtain recommendations 

for drivers in the area. 35 Pitts stated that he received a 

referral list from the Union's business agent, O.P. Davis, 

and selected three employees from that list for 

employment. 36 However, the summary judgment 

evidence demonstrates that the names of two of the 

employees that Pitts testified he hired do not appear on 

the official list that the Union contends it submitted. 

37 [*51] Pitts further testified that he no longer has the 

33 See Rec. Doc. No. 44, Ex. E, deposition of William Pitts 

("Dep. Pitts"), defendant's supplemental response to plaintiff's 

interrogatories ("Def. Ans. Interrog.") attached as Ex. 2.

34 Decl. Davis, PP12-13.

35 Dep. Pitts, pp. 58-60. A transportation coordinator is an 

individual who is hired by the producer or production company 

to oversee the transportation department of a particular 

production. The duties of the position include hiring union truck 

drivers. Although a transportation coordinator may be a 

member of a union, the transportation coordinator is not 

operating pursuant to a union contract. See Dep. Pitts, pp. 5, 

56; Rec. Doc. No. 55, Ex. 5, deposition of Poland Perkins, pp. 

29-30.

36 Dep. Pitts, at pp. 24-29.

37 The Union's answers to plaintiffs' interrogatories state that 

four individuals, Jack Daniels, Dan Sumner, Calvin 

Wetherspoon, and Kenneth Baraby, were selected by the 

producers of Playmaker for employment. Def. Ans. Interrog., 

at p. 3. Pitts testified that he did not know or hire Baraby as a 

driver on that production. Dep. Pitts., pp. 24-25. The Union 

list provided to him for the production of Playmakers. 38

Plaintiffs argue that the "obvious" conclusion to be 

drawn from Pitts' testimony is that the Union submitted a 

list that did not contain the plaintiffs' names and, 

therefore, the Union has manipulated [*50] the hiring 

hall process and interfered with their employment 

opportunities.

The plaintiffs' argument is unpersuasive because it rests 

on false logic. Although Pitts' testimony would permit a 

rational trier of fact to conclude that the Union 

improperly included some names, Pitts' testimony does 

not support an inference that plaintiffs' were excluded

from the list. Absent such evidence, even if plaintiffs' 

could prove that the Union derogated from the hiring hall 

procedure, plaintiffs cannot prove that the Union's 

conduct affected their employment status or denied 

them an employment opportunity.

Plaintiffs' claims with respect to A Love Song for Bobby 

Long and Unchain My Heart are also not supported by 

adequate summary judgment evidence. In support of 

these claims, plaintiffs submit the production crew 

rosters of eight productions dating back to 1996. 39 The 

rosters for six of the productions demonstrate that 

plaintiffs were not selected for employment for those 

productions. From this bare fact, plaintiffs argue that the 

Union must have manipulated the hiring hall procedure 

because (1) persons with less seniority were hired; 

and [*52] (2) absent suggestion or influence from the 

union, a production company would not automatically 

choose persons with less seniority in lieu of plaintiffs. 

From these two suppositions, plaintiffs reason that the 

Union must have breached its duty to represent them 

movie referral list does not contain the names of Dan Sumner 

or Calvin Wetherspoon. Rec. Doc. No. 44, Ex. C., movie 

referral list dated December 30, 1996. It is uncontested that 

the December 30, 1996, list is the most current seniority list 

the Union uses.

38 Dep. Pitts, p. 30.

39 Rec. Doc. No. 52, Exs. H-O. Although the Court has found 

that the plaintiffs' claims with respect to several of these 

productions is time-barred, plaintiffs may nevertheless 

introduce evidence of time-barred conduct as "background 

evidence in support of a timely claim." AMTRAK v. Morgan, 

536 U.S. 101, 113, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106 

(2002)(applying the principle in the context of a Title VII 

discrimination claim). Accordingly, for purposes of the instant 

motion, this Court may consider the Union's conduct with 

respect to those productions in assessing whether a genuine 

issue of material fact exists to preclude summary judgment on 

plaintiffs' timely claims.

2004 U.S. Dist. LEXIS 13406, *48
Page 20 of 20

fairly in making referrals.

In response, the [*53] Union offers the deposition 

testimony of Poland Perkins, the transportation 

coordinator for seven of the productions cited by 

plaintiffs in support of their claims. Perkins testified that 

as a transportation coordinator, he often hires drivers 

who he has hired in the past who have done a good job. 

40 Furthermore, the summary judgment evidence 

demonstrates that all of the drivers hired to work on 

those productions were members of the Union whose 

names appear on the referral list. Plaintiffs have not 

come forward with any evidence that would permit a 

reasonable trier of fact to infer that the Union did not 

submit the seniority referral list containing their names 

to any of the productions nor have plaintiffs come 

forward with any evidence to support their contention 

that the Union recommended other drivers.

 [*54] Plaintiffs have offered no evidence that they were 

denied any employment opportunities. Instead, they 

offer an unsubstantiated assertion that because they 

were not ultimately hired, the Union must have 

breached its duty of fair representation. Such a 

conclusory allegation is clearly insufficient to sustain 

plaintiffs' burden of production on summary judgment.

Accordingly, for the above and foregoing reasons,

IT IS ORDERED that the motion of defendant, Local 

270 of the International Brotherhood of Teamsters, 

Chauffeurs, Warehousemen, and Helpers, is GRANTED

and plaintiff's claims are DISMISSED with prejudice.

New Orleans, Louisiana, July 15, 2004.

LANCE M. AFRICK

UNITED STATES DISTRICT JUDGE

End of Document

40 See Dep. Perkins, pp. 43-45. Although plaintiffs' have made 

a vague allegation that Perkins is a "pawn" of the Union, they 

offer no serious argument that Perkins' subjective conduct in 

hiring drivers in his capacity as a non-union transportation 

coordinator is attributable to the Union.

2004 U.S. Dist. LEXIS 13406, *52
Lalo LLC v. Hawk Apparel, Inc., 2022 U.S. Dist. LEXIS 

72218, 2022 WL 1173801 at *5-7 (N.D. Tex. 2022) 

(J. Lindsay) 
 Neutral

As of: October 6, 2022 8:50 PM Z

Lalo, LLC v. Hawk Apparel, Inc.

United States District Court for the Northern District of Texas, Dallas Division

April 20, 2022, Decided; April 20, 2022, Filed

Civil Action No. 3:18-cv-2502-L

Reporter

2022 U.S. Dist. LEXIS 72218 *; 2022 WL 1173801

LALO, LLC, Plaintiff, v. HAWK APPAREL, INC. and 

ERNEST "ERIC" COLTON, JR, Defendants.

Prior History: LALO, LLC v. Hawk Apparel, Inc., 2019 

U.S. Dist. LEXIS 187748, 2019 WL 5595164 (N.D. Tex., 

Oct. 30, 2019)

Core Terms

arbitrator, arbitration award, confirm, vacate, 

postjudgment interest, attorney's fees, parties, 

prejudgment interest, arbitrator exceeded, operating 

agreement, percent per annum, prejudgment, damages, 

per annum, challenges, post-award, jointly

Counsel: [*1] For LALO LLC, Plaintiff: Lindy D Jones, 

LEAD ATTORNEY, Jones Allen & Fuquay, Dallas, TX; 

Kevin John Allen, Nathan Allen, Jr, Ty J Jones, Jones 

Allen & Fuquay LLP, Dallas, TX.

Ernest Colton, Jr, Eric, Defendant, Pro se, Dallas, TX.

Judges: Sam A. Lindsay, United States District Judge.

Opinion by: Sam A. Lindsay

Opinion

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiff LALO, LLC's ("Plaintiff") 

Application to Confirm Arbitration Award ("Application") 

(Doc. 1), which seeks to confirm the award issued by 

Arbitrator Hon. Anne Ashby with the American 

Arbitration Association ("AAA") on May 7, 2018 ("Final 

Award") in Hawk Apparel, Inc. and Ernest "Eric" Colton, 

Jr. v. LALO, LLC, American Arbitration Association No. 

01-16-0003-5060 ("Arbitration"). After considering the 

Application, answer, response, record, and applicable 

law, the court, for the reasons herein explained, 

confirms Plaintiff LALO, LLC's Final Award, except with 

respect to its request for prejudgment and postjudgment 

interest.

I. Background

Plaintiff initiated this action on September 20, 2018, 

based on diversity jurisdiction, requesting that the court 

confirm the Final Award pursuant to 9 U.S.C. § 9 and 

enter a judgment in favor of Plaintiff against Hawk 

Apparel, [*2] Inc. ("Hawk") and Ernest "Eric" Colton, Jr. 

("Mr. Colton") (collectively, "Defendants"). In support of 

its Application, Plaintiff contends the court must confirm 

the Final Award because Defendants did not timely 

move to vacate it pursuant to 9 U.S.C. § 12. See Doc. 1. 

Plaintiff moved for an entry of default against 

Defendants on March 7, 2019, after it filed executed 

summons on Mr. Colton and Hawk. Mr. Colton, 

however, did not immediately file an answer or 

otherwise respond. He appeared in this case on 

February 20, 2020, and asserted that he was not 

properly served in this matter. See Doc. 15.

On January 22, 2021, after a detailed hearing, this court 

issued an order that set aside the Clerk's Entry of 

Default against Mr. Colton and Hawk. Doc. 28. The 

court further directed Plaintiff to file any supplemental 

documents in support of its Application and directed Mr. 

Colton to file his response. Id. On March 4, 2022, and 

March 22, 2022, Plaintiff subsequently filed three 

executed returned summonses from the Texas 

Secretary of State indicating that Hawk had been served 

through its registered agent, Mr. Colton. See Docs. 37-

39. Mr. Colton, on the other hand, further argued that 

the court should not confirm [*3] the Final Award 

because: (1) the arbitrator exceeded her authority and 

therefore, the Final Award should be vacated under 9 

U.S.C. § 10; (2) res judicata and collateral estoppel bar 

the Final Award; and (3) Plaintiff was unable to show it 

suffered damages caused by Defendants' alleged 

conduct. See Doc. 32. The court, having determined 
that Defendants appeared or have been properly served 

with process in this matter, will now consider the 

Application and Mr. Colton's objections.1

II. Confirmation of Award

The parties agreed to arbitrate their disputes in 

accordance with the AAA's Commercial Arbitration 

Rules, including Commercial Arbitration Rule R-52(c) 

that states, "Parties to an arbitration under these rules 

shall be deemed to have consented that judgment upon 

the arbitration award may be entered in any federal or 

state court having jurisdiction thereof." Pursuant to the 

Federal Arbitration Act ("FAA"), if the parties have 

agreed that a judgment of the court shall be entered 

upon the entry of an arbitration award, then upon 

application by a party, the court must grant such an 

order unless the award is vacated, modified, or 

corrected. 9 U.S.C. § 9. A party to an arbitration may 

move to vacate an arbitration award in the following 

instances: [*4] 

(1) where the award was procured by corruption, 

fraud, or undue means;

(2) where there was evident partiality or corruption 

in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct 

in refusing to postpone the hearing, upon sufficient 

cause shown, or in refusing to hear evidence 

pertinent and material to the controversy; or of any 

other misbehavior by which the rights of any party 

have been prejudiced; or

(4) where the arbitrators exceeded their powers, or 

so imperfectly executed them that a mutual, final, 

and definite award upon the subject matter 

submitted was not made.

Id. § 10. "Notice of a motion to vacate, modify, or correct 

an [arbitration] award must be served upon the adverse 

party or his attorney within three months after the award 

is filed or delivered." Id. § 12.

The record establishes that the Final Award was issued 

on May 7, 2018, which held that Mr. Colton and Hawk 

were jointly and severally liable for the amount awarded. 

1 As stated earlier, Hawk was served with service of process 

through its registered agent, Mr. Colton, on March 4, 2022, 

and March 22, 2022. See Docs. 37-39. Hawk, however, has 

not made an appearance in this matter through designated 

counsel. Because Mr. Colton has appeared in this action and 

is the current registered agent of Hawk, Hawk is now a proper 

party to this action.

See Doc. 1-1 at 35. The deadline for Defendants to 

move to vacate the Final Award, therefore, expired on 

August 7, 2018. Mr. Colton did not petition this court, or 

any other court, to vacate the Final Award until February 

20, 2020, [*5] when he filed his answer in this action. 

See Doc. 15. Accordingly, Mr. Colton did not timely 

assert his grounds for vacating the Final Award 

pursuant to 9 U.S.C. § 12 and, therefore, waived his 

right to have the Final Award vacated, modified, or 

corrected. Even if the court considers Mr. Colton's 

objections as timely and not waived, they are insufficient 

to serve as bases to vacate the Final Award for the 

reasons the court sets forth.

A. Arbitrator's Authority

Mr. Colton contends the Final Award should be vacated 

on three grounds;2 however, only one—vacatur based 

on the arbitrator exceeding his or her authority—is 

recognized under the FAA. See 9 U.S.C. § 10; see also 

Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 358 

(5th Cir. 2009) (holding there are no longer nonstatutory 

grounds for vacating arbitration awards). The court, 

therefore, limits its consideration to Mr. Colton's 

objection that the arbitrator exceeded her authority.

1. Legal Standard

Judicial review of an arbitration award is "exceedingly 

deferential." Petrofac, Inc. v. DynMcDermott Petro. 

Operations Co., 687 F.3d 671, 674 (5th Cir. 2012)

(quoting Apache Bohai Corp. LDC v. Texaco China BV, 

480 F.3d 397, 401 (5th Cir. 2007)). The party seeking to 

vacate an arbitration award has the burden of proof, and 

the court must resolve any doubts or uncertainties in 

favor of upholding the award. Brabham v. A.G. Edwards 

& Sons, Inc., 376 F.3d 377, 385 (5th Cir. 2004). 

Likewise, questions of contract interpretation must be 

decided in favor of the arbitration [*6] decision. Apache 

Bohai Corp. LDC, 480 F.3d at 405. The reviewing court 

may not substitute its judgment for that of the arbitrator 

merely because it would have reached a different 

2 Mr. Colton contends the Final Award should be vacated 

because: (1) the arbitrator exceeded her authority by resolving 

the underlying case that led to the settlement agreement, 

which Mr. Colton asserts is the sole basis for the Arbitration 

and the Final Award; (2) res judicata and collateral estoppel 

bar the Final Award; and (3) Plaintiff is unable to show it 

suffered damages caused by Defendants' alleged conduct. 

Doc. 32.

2022 U.S. Dist. LEXIS 72218, *3
Page 3 of 6

decision or interpreted a contract differently. United 

Steelworkers of Am. v. Enterprise Wheel & Car Corp., 

363 U.S. 593, 598-99, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 

(1960); City of San Antonio v. McKenzie Constr. Co., 

136 Tex. 315, 150 S.W.2d 989, 996 (1941) (same); Riha 

v. Smulcer, 843 S.W.2d 289, 292-94 (Tex. App.—

Houston [14th Dist.] 1992, writ denied) ("An arbitration 

award has the same effect as a judgment of a court of 

last resort, and a trial judge reviewing the award may 

not substitute his [or her] judgment for the arbitrator's 

merely because the trial court judge would have 

reached a different decision. Not every error of fact or 

law warrants setting aside an arbitration award, but only 

those errors that result in a fraud or some great and 

manifest wrong and injustice.") (internal citation 

omitted). As a result, "vacating an arbitrator's award is 

rare." City of Laredo v. Mojica, 399 S.W.3d 190, 197 

(Tex. App.—San Antonio 2012, pet. denied).

"An arbitrator exceeds his [or her] authority when he [or 

she] acts 'contrary to express contractual provisions.'" 

Kemper Corp. Servs., Inc. v. Computer Scis. Corp., 946 

F.3d 817, 822 (5th Cir. 2020) (quoting Beaird Indus., 

Inc. v. Local 2297, Int'l Union, 404 F.3d 942, 946 (5th 

Cir. 2005)). In determining whether an arbitrator 

exceeded his or her authority as a basis for vacatur 

under the FAA, the language of the arbitration 

agreement is critical. See Kemper Corp. Servs., 946 

F.3d at 822; Glover v. IBP, Inc., 334 F.3d 471, 474 (5th 

Cir. 2003). "If the agreement gives an arbitrator authority 

to interpret and apply a contract, the arbitrator's 

construction of that contract must be enforced so long 

as it is rationally inferable from [*7] the letter or purpose 

of the underlying agreement." Kemper Corp. Servs., 946 

F.3d at 822 (internal quotations omitted). Stated another 

way, a court must accord strong deference toward and 

sustain the arbitrator's interpretation of the contract, 

even if the court disagrees with the arbitrator's 

interpretation of the underlying contract, "as long as the 

arbitrator is even arguably construing or applying the 

contract and acting within the scope of his authority." 

Resolution Performance Prods., LLC v. Paper Allied 

Indus. Chem. & Energy Workers Int'l Union, Pace Local 

4-1201, 480 F.3d 760, 765 (5th Cir. 2007) (internal 

quotation omitted); Executone Info. Sys., Inc. v. Davis, 

26 F.3d 1314, 1320 (5th Cir. 1994). "The single question 

is whether the award, however arrived at, is rationally 

inferable from the contract." Anderman/Smith Operating 

Co. v. Tennessee Gas Pipeline Co., 918 F.2d 1215 n.3 

(5th Cir. 1990) (citations omitted). As long as the 

arbitrator's award draws its essence from the parties' 

agreement and is not merely "his [or her] own brand of 

industrial justice," the award is legitimate. United 

Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36, 

108 S. Ct. 364, 98 L. Ed. 2d 286 (1987) (quoting 

Steelworkers, 363 U.S. at 596).

2. Analysis

The Arbitration at issue in this case stems from 

Plaintiff's allegations that Defendants breached their 

settlement agreement and operating agreement. See

Doc. 36. The operating agreement contains a paragraph 

setting out certain obligations to be performed by Hawk, 

including the requirement that it finance certain 

purchases. Id. at 4. The operating agreement also 

contains an arbitration provision that requires the [*8] 

parties to arbitrate "any controversy of any nature 

whatsoever, including but not limited to tort claims or 

contract disputes . . . relating to the formation, 

execution, interpretation, breach or enforcement of this 

[operating agreement] . . . ." Id. at 81. The arbitration 

paragraph goes on to state that the arbitrator's award 

"shall be final, binding and conclusive upon the parties 

to this [operating agreement]." Id. After reviewing the 

Final Award and the arbitration provision in the 

operating agreement, the court disagrees with Mr. 

Colton's argument that the arbitrator exceeded her 

authority. The court, instead, finds that the disputes 

resolved by the Final Award in the Arbitration were 

within the express authority conveyed to the arbitrator 

by the parties' operating agreement. Accordingly, the 

court determines that Arbitrator Hon. Anne Ashby did 

not exceed her authority when she issued the Final 

Award.

III. Prejudgment Interest, Post-Award Interest, 

Postjudgment Interest, and Attorney's Fees

In addition to requesting that the court confirm the Final 

Award, Plaintiff also requests that the court adopt the 

Final Award entered by the arbitrator as the judgment in 

this case, and award [*9] it $10,000 for attorney's fees 

incurred in seeking to confirm the Final Award and 

postjudgment interest at 6% per annum interest rate in 

accordance with the Final Award. Instead of adopting 

the Final Award as is, the court accepts it in all respects 

as if repeated herein verbatim, except that portion 

dealing with the interest rate specified for prejudgment 

and postjudgment interest.

3

3 As the court has held that Hawk is in default, and the 

arbitrator's Final Award held Defendants jointly and severally 

liable, this opinion holds both Defendants jointly and severally 

2022 U.S. Dist. LEXIS 72218, *6
Page 4 of 6

The Final Award entered on May 7, 2018, states that 

LALO, LLC is entitled to recover (1) "pre-judgment 

interest at the rate of 6% per annum from March 17, 

2015, [] until the [Final Award] is satisfied;" and (2) 

"post-judgment interest at the rate of 6% per annum 

from [May 7, 2018] until [the Final Award] is satisfied." 

Doc. 1-1 at 35.

In diversity cases such as this one, postjudgment 

interest is awarded at the applicable federal 

postjudgment interest rate, pursuant to 28 U.S.C. § 

1961, unless the parties contracted for a different rate. 

See Travelers Ins. Co. v. Liljeberg Enters., Inc., 7 F.3d 

1203, 1209 (5th Cir. 1993) (citation omitted); Woods v. 

P.A.M. Transport Inc.-L.U., 440 F. App'x 265, 270 (5th 

Cir. 2011) ("The post-judgment interest rate for all 

judgments entered in federal courts, including those in 

diversity cases, is governed by 28 U.S.C. § 1961."). 

Similarly, prejudgment interest is calculated under state 

law in diversity cases such as this one. See Boston Old 

Colony Ins. Co. v. Tiner Assocs. Inc., 288 F.3d 222, 234 

(5th Cir. 2002). Prejudgment interest is [*10] awarded 

to compensate fully the injured party, not to punish the 

defendant, and is considered compensation allowed by 

law as additional damages for lost use of the money due 

between the accrual of the claim and the date of 

judgment. See Johnson & Higgins, Inc. v. Kenneco 

Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998). 

Moreover, while arbitrators have authority to specify the 

rate of post-award interest, they do not have authority to 

specify the rate of postjudgment interest, which is 

governed by the federal statutory rate, unless an 

arbitrator has been granted authority by the parties to 

award a nonstatutory rate of postjudgment interest. 

Tricon Energy Ltd. v. Vinmar Int'l, Ltd., 718 F.3d 448, 

456-60 (5th Cir. 2013); Mantle v. Upper Deck Co., 956 

F. Supp. 719, 739-40 (N.D. Tex. 1997).

The Final Award orders prejudgment interest of 6% per 

annum to run from March 17, 2015, until the Final 

Award is fully satisfied. Doc. 36 at 42. Pursuant to the 

controlling arbitration provision, the parties empowered 

the arbitrator to "award prejudgment interest" to the 

prevailing party; however, they did not specify or 

otherwise agree upon a specific prejudgment interest 

rate. Doc. 36 at 81. Accordingly, the court will apply the 

prejudgment interest rate of 5% per annum from March 

17, 2015, to the date of entry of the Final Award on May 

7, 2018.4

liable to Plaintiff.

4 "The Texas Supreme Court has recognized two separate 

Additionally, Plaintiff does not point to any evidence that 

the parties [*11] contracted for a postjudgment rate 

different from the federal statutory rate or authorized the 

arbitrator to specify a postjudgment interest rate 

different from the federal statutory rate. It, instead, relies 

on the rate specified by the arbitrator in the Final Award. 

Accordingly, the court will apply the post-award interest 

rate specified in the Final Award—6 percent—from 

February 20, 2020,5 to the date the judgment is entered 

in this case. Postjudgment interest, on the other hand, 

will be awarded at the current federal rate in accordance 

with 28 U.S.C. § 1961.

Finally, Plaintiff seeks $10,000 in attorneys' fees for 

enforcing the Final Award in this case. Doc. 10 at 40. A 

district court may award attorney's fees against a party 

making challenges to arbitration awards that are not 

cognizable under the FAA, when the challenges are 

frivolous, or are without legal justification. International 

Ass'n of Machinists & Aerospace Workers, Dist. 776 v. 

bases for the award of prejudgment interest: (1) an enabling 

statute; and (2) general principles of equity." International 

Turbine Servs., Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 

499 (5th Cir. 2002). "[S]tatutory prejudgment interest applies 

only to judgments in wrongful death, personal injury, property 

damage, and condemnation cases." Id. at 499. Because the 

claims in this case do not fall within the statutory provisions, 

prejudgment interest in this case is governed by Texas 

common law. Id. "Texas common law allows prejudgment 

interest to accrue at the same rate as postjudgment interest on 

damages awarded for breach of contract." Id. When, as here, 

an interest rate is not specified in the parties' contract, 

prejudgment interest is calculated based on the statutory rate 

for postjudgment interest provided in section 304.003 of the 

Texas Finance Code. Id. Section 304.003 of the Texas 

Finance Code provides that the postjudgment interest rate is 

"five percent a year if the prime rate as published by the Board 

of Governors of the Federal Reserve System . . . is less than 

five percent[.]" Tex. Fin. Code Ann. § 304.003(c)(2). The 

current prime rate is 3.5%, which is less than five percent. 

Accordingly, the prejudgment interest rate that the court will 

apply is five percent per annum.

5 Because Mr. Colton was not properly served with service of 

process and, as a result, did not make an appearance in this 

proceeding until February 20, 2020—more than a year after 

Plaintiff moved to confirm the Final Award—the court, in the 

interest of equity, revises the post-award interest to run from 

the time Mr. Colton made his appearance until a judgment is 

entered in this case. Prejudgment interest is not meant to 

punish a defendant; therefore, it would be unjust and not in the 

interest of equity to allow interest to accrue on the Final Award 

through the issuance of a judgment in this case when Plaintiff 

failed to properly effect service on Defendants in a timely 

manner.

2022 U.S. Dist. LEXIS 72218, *9
Page 5 of 6

Texas Steel Co., 639 F.2d 279, 283 (5th Cir. 1981). A 

challenge is without justification if it "go[es] to the 

'intrinsic merits' of a dispute." 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, 573 (5th Cir. 2018). "[W]hen 

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 [*12] decision." Id. at 573-74.

Mr. Colton challenged Plaintiff's request to confirm the 

Final Award by arguing that: (1) he was improperly 

served with process in this action; (2) the arbitrator 

exceeded her authority; (3) res judicata and collateral 

estoppel bar confirmation; and (4) Plaintiff failed show it 

suffered damages caused by Defendants' alleged 

conduct. See Doc. 32. There is a legal justification for 

Mr. Colton's first two arguments. First, 9 U.S.C. § 9

requires that Mr. Colton be served with notice of the 

application to confirm the arbitration award. Mr. Colton's 

challenge that he was not properly served pursuant to 9 

U.S.C. § 9 is, therefore, not frivolous or without legal 

justification. Second, 9 U.S.C. § 10 provides that an 

arbitration award may be vacated "where the arbitrators 

exceeded their powers, or so imperfectly executed them 

that a mutual, final, and definite award upon the subject 

matter submitted was not made." Because Mr. Colton's 

second challenge is authorized by 9 U.S.C. § 10, it too 

was asserted with legal justification and, therefore, was 

not frivolous. See Glover, 334 F.3d at 471 (affirming 

district court's refusal to award attorney's fees incurred 

to enforce arbitration award where the defendant argued 

the arbitrator exceeded his authority). [*13] Mr. Colton's 

last two challenges are not recognized by the FAA; 

however, they are not so frivolous to warrant an award 

of attorney's fees. See 9 U.S.C. § 10. In particular, Mr. 

Colton, who appeared pro se, used four pages to assert 

his arguments regarding his last two challenges. Doc. 

32 at 3-6. Plaintiff occuiped two pages to respond to 

those arguments. Doc. 36 at 3-5. In other words, the 

briefing related to these issues between the parties did 

not amount to extensive or otherwise fact-intensive 

briefing that would cause strenuous or costly effort to 

prepare. Moreover, any delay in confirming the Final 

Award was caused by Plaintiff's failure to comply with 9 

U.S.C. § 9 when it failed to properly serve Defendants, 

and 9 U.S.C. § 13 when it failed to file the agreements 

requiring arbitration, than Mr. Colton's challenges to 

confirming the Final Award. See Docs. 12, 28. The 

court, therefore, declines to exercise its discretion to 

award attorney's fees to Plaintiff. Accordingly, the court 

denies Plaintiff's request for attorneys' fees.

IV. Conclusion

For the reasons explained, the court grants Plaintiff 

LALO, LLC's Application, except with respect to its 

request for prejudgment and postjudgment interest 

addressed below; and [*14] confirms the Final Award 

to LALO, LLC in the amount of $1,340,481.30, which 

includes damages, attorney's fees and arbitration costs. 

Accordingly, the court:

(1) confirms the Final Award dated May 7, 2018, is in 

all respects, except for the prejudgment and 

postjudgment interest rate; and

(2) orders that LALO, LLC shall recover from Hawk 

Apparel, Inc. and Ernest "Eric" Colton, Jr., jointly and 

severally: $895,223 awarded by the arbitrator for 

damages; $404,343.30 awarded by the arbitrator for 

attorney's fees; $40,915 awarded by the arbitrator for 

arbitration costs; prejudgment interest on these amounts 

at the rate of 5 percent per annum from March 17, 

2015, until May 7, 2018;6 and post-award interest on 

these amounts at the rate of 6 percent per annum from 

February 20, 2020, the date Mr. Colton first appeared in 

this case, through the date judgment is entered.7

The court further determines that LALO, LLC is entitled 

to and shall recover from Hawk Apparel, Inc. and Ernest 

"Eric" Colton, Jr., jointly and severally, postjudgment 

interest at the applicable federal rate of 1.81 percent 

per annum from the date judgment is entered until it is 

paid in full. The court, as required [*15] by Rule 58 of 

the Federal Rules of Civil Procedure, will issue 

judgment by a separate document.

It is so ordered this 20th day of April, 2022.

/s/ Sam A. Lindsay

Sam A. Lindsay

United States District Judge

JUDGMENT

6 The court determines that prejudgment interest of 5 percent 

per annum on $1,340,481.30 is $210,620.83.

7 The court determines that post-award interest of 5 percent 

per annum on $1,340,481.30 is $ 174,078.94.

2022 U.S. Dist. LEXIS 72218, *11
Page 6 of 6

The court issues this judgment pursuant to its 

memorandum opinion and order dated April 20, 2022. It 

is therefore, ordered, adjudged, and decreed that 

Plaintiff LALO, LLC is entitled to and shall recover from 

Hawk Apparel, Inc. and Ernest "Eric" Colton, Jr., 

("Defendants") jointly and severally: $895,223 awarded 

by the arbitrator for damages; $404,343.30 awarded by 

the arbitrator for attorneys' fees; $40,915 awarded by 

the arbitrator for arbitration costs; pre-judgment interest 

on these amounts at the rate of 5 percent per annum

from March 17, 2015 until May 7, 2018, which the court 

determines to be $210,620.83; and post-award interest 

on these amounts at the rate of 6 percent per annum

from February 20, 2020, the date Mr. Colton first 

appeared in this case, through the date of entry of this 

judgment, which the court determines to be 

$174,078.94.

It is further ordered, adjudged, and decreed that 

Plaintiff LALO, LLC is entitled to and shall recover from 

Defendants, jointly and severally, postjudgment interest 

on the total amount [*16] of this judgment 

($1,725,181.07) at the applicable federal rate of 1.81 

percent per annum from the date of entry of this 

judgment until it is paid in full.

It is further ordered, adjudged, and decreed that all 

allowable and reasonable costs are taxed against 

Defendants; and that all relief not expressly granted 

herein is denied.

It is so ordered this 20th day of April, 2022.

/s/ Sam A. Lindsay

Sam A. Lindsay

United States District Judge

End of Document

2022 U.S. Dist. LEXIS 72218, *15