Peco Foods Inc v. Retail Wholesale and Department Store Union Mid-South Council, No. 7:2016cv01345 - Document 24 (N.D. Ala. 2017)

Court Description: MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 6/19/2017. (PSM)

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Peco Foods Inc v. Retail Wholesale and Department Store Union Mid-South Council Doc. 24 FILED 2017 Jun-19 AM 11:31 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION PECO FOODS, INC. , Plaint if f, vs. RETAIL WHOLESALE AND DEPARTMENT STORE UNION MID-SOUTH COUNCIL, ) ) ) ) ) ) ) ) ) 7: 16-cv-01345-LSC Defendant . MEMORANDUM OF OPINION Before t he Court are Plaint iff Peco Foods, Inc.’ s (“ Peco” ) Mot ion for Summary Judgment (Doc. 15), and Defendant Ret ail Wholesale and Depart ment St ore Union Mid-Sout h Council’ s (“ RWDSU” or “ t he Union” ) Mot ion for Summary Judgment (Doc. 17). This act ion arises out of t he t erminat ion of a Peco employee, and t he subsequent arbit rat ion proceeding. Peco filed t his act ion seeking t he vacat ur of t he arbit rat or’ s awards, and RWDSU has count erclaimed, seeking t he enforcement of t he awards. For t he reasons st at ed below, Plaint if f’ s mot ion is due t o be denied. Defendant ’ s mot ion is due t o be grant ed. I. Background Page 1 of 19 Dockets.Justia.com Larry Richardson (“ Richardson” ) was employed by Peco and supervised by Rodney Fort e (“ Fort e” ). On January 21, 2015, Fort e held a safet y meet ing, where he reminded t he employees t hat t hrowing ice was prohibit ed during work hours. (Doc. 17 at 2. ) Richardson responded by saying “ I don’ t t hrow ice, I t hrow lead. ” (Id.) Recalling a recent workplace shoot ing at anot her business, Fort e report ed t he st at ement t o his supervisor. St ephen Johnst on (“ Johnst on” ), Peco’ s Complex Human Resources Direct or, launched an invest igat ion, which included quest ioning Richardson about t he st at ement . Richardson did not provide an explanat ion for his conduct , only st at ing “ I know what ot her people t hink I mean, but I don’ t know what I mean.” (Pl. Ex. 1 at 11.) Johnst on sent Richardson home for t he day, but he was paid as if he had finished his workday. On January 22, 2015, Johnst on cont act ed St eve Conley (“ Conley” ), t he Corporat e Human Resource Direct or, wit h a recommendat ion t hat Richardson be t erminat ed f or making a t hreat ening comment . Conley approved t he t erminat ion. Richardson was a member of RWDSU, which had a collect ive bargaining agreement (“ CBA” ) wit h Peco. The CBA gives Peco t he right “ t o manage it s own business, including but not limit ed t o t he right . . . t o discipline and discharge employees f or j ust cause. ” (CBA at 2.) It also Page 2 of 19 provides f or a grievance and arbit rat ion procedure as “ t he exclusive means for t he disposit ion of all grievances” arising out of a “ disput e, claim or complaint .” (Id. at 8. ) According t o t he CBA, grievances are “ limit ed t o mat t ers of int erpret at ion or applicat ion of express provisions of [t he CBA] , and t hey shall be processed as prompt ly as possible in accordance wit h t he . . . st eps, t ime limit s and condit ions” set out in t he agreement . (Id.) The procedural requirement s for grievances, as set fort h in t he CBA, include a condit ion t hat RWDSU “ shall give writ t en not ice t o [Peco] of it s int ent [t o t ake a grievance t o arbit rat ion] wit hin fift een (15) calendar days of t he expirat ion of t he t ime limit or t he dat e of [Peco’ s] answer” t o t he grievance. (Id. at 9. ) Next , “ t he part ies shall . . . at t empt t o select an impart ial arbit rat or.” (Id.) Furt her, t he CBA st at es t hat “ [t ]he grievance shall be considered set t led if not appealed t o a higher st ep wit hin an est ablished t ime limit and shall not be t he subj ect of any furt her proceeding.” (Id.) However, t hat “ provision may be waived in specific inst ances by mut ual writ t en agreement of t he part ies.” (Id. ) The CBA goes on t o define t he power of t he arbit rat or, st at ing The Jurisdict ion and aut horit y of t he arbit rat or and his opinion and award shall be exclusively limit ed t o t he int erpret at ion and specific applicat ion of t he writ t en provisions of t his Page 3 of 19 agreement . The arbit rat or shall have no power t o add t o, subt ract from, or modify t he t erms of t his Agreement , or any supplement ary agreement s, nor rule on any mat t er except on grievances occurring while t his Agreement is in full force and effect bet ween t he part ies. The arbit rat or shall be bound by t he fact s and argument s submit t ed t o him and may not go beyond t he art icles and sect ions of t his Agreement , or est ablished past pract ices, in rendering his opinion and award. (Id. at 10. ) Last ly, “ [ t ]he opinion and award of t he arbit rat or shall be final and binding upon t he part ies when rendered upon a mat t er wit hin t he aut horit y t o t he arbit rat or and wit hin t he scope of mat t ers subj ect t o arbit rat ion as provided in [t he CBA]. ” (Id.) In response t o Richardson’ s t erminat ion, RWDSU filed a grievance on his behalf on January 30, 2015. Johnst on denied t he grievance on February 23, 2015. Then, on March 23, 2015, RWDSU sent Peco a let t er request ing arbit rat ion of t he grievance. The Union submit t ed an arbit rat ion request t o t he Federal Mediat ion and Conciliat ion Service (“ FMCS” ), and Peco received a list of possible arbit rat ors on March 25, 2015, and anot her one on February 25, 2016. Peco and RWDSU select ed an arbit rat or on March 21, 2016. A hearing was held on May 17, 2016. Bot h part ies appeared at t his proceeding and had t he opport unit y t o present evidence. Peco argued t hat t he arbit rat or did not have j urisdict ion t o decide t he grievance because “ it did not demand Page 4 of 19 arbit rat ion of Peco’ s decision wit hin t he proscribed t ime period of t he [CBA] .” (Pl. Ex. 1 at 9.) It also argued t hat it “ was wit hin it s broad right . . . t o t erminat e Richardson for cause,” because, even if t he comment was a j oke, it violat ed Peco’ s “ no horseplay and pract ical j okes rule.” (Id. at 9, 12.) Last ly, Peco argued t hat “ Richardson [ was] not ent it led t o any back pay because he did not mit igat e his damages by making a good fait h effort t o obt ain replacement employment and t he Union did not prosecut e t he request f or a hearing in an efficient and reasonable manner.” (Id. at 9. ) In cont rast , RWDSU argued t hat t he arbit rat or did have j urisdict ion t o decide t he grievance, claiming t hat Peco waived t he t imeliness requirement because despit e mult iple discussions about resolut ion over a fift een-mont h period, Peco “ wait ed unt il it s opening st at ement s at t he hearing t o raise a challenge t o t he Grievance’ s procedural arbit rabilit y.” (Id. at 25) RWDSU also claimed t hat Peco did not have j ust cause f or t erminat ing Richardson, because his comment was not t hreat ening, and did not violat e any of Peco’ s policies. In his award, t he arbit rat or decided t hat Peco “ accept ed t he Grievance and waive[ d] it s challenge t o t he Grievance[‘ s] procedural arbit rabilit y. ” (Id. at 36. ) The arbit rat or held t hat t he grievance was Page 5 of 19 t herefore arbit rable, and t hat he had j urisdict ion over t he merit s. He also found t hat Richardson’ s st at ement was not a t hreat and t hat Peco’ s argument t hat he had violat ed a rule against horseplay was unt imely, because it was not raised before t he arbit rat ion hearing. Therefore, Peco did not have j ust cause f or t erminat ing Richardson. Based on Richardson’ s t est imony t hat “ he received unemployment compensat ion for a period of t ime and worked f or an American Thrift st ore, ” t he arbit rat or found t hat Richardson was ent it led t o back pay for “ t he difference bet ween (1) his unemployment compensat ion for t he period of t ime he received it and his usual pay at Peco and (2) his pay at t he t hrift shop and what he would have earned had he not been t erminat ed.” (Id. at 44.) However, he left it up t o t he part ies t o decide if Richardson was ent it led t o back pay f or t he period of t ime during which he did not receive unemployment compensat ion or work at t he t hrift st ore. Peco was ordered t o “ reinst at e Larry Richardson t o his former j ob, rest ore his seniorit y, and make him whole f or his losses.” (Id. at 44-45.) The arbit rat or ret ained j urisdict ion over t he mat t er f or sixt y days aft er his decision, in order t o resolve any remaining disput es. On Sept ember 12, 2016, RWDSU invoked t he arbit rat or’ s j urisdict ion in order t o resolve t he Page 6 of 19 remaining issue— whet her Richardson was ent it led for back pay for t he periods when he did not work for t he t hrift st ore or receive unemployment compensat ion. In a supplement al arbit rat ion award on Sept ember 12, 2016, t he arbit rat or held t hat “ Richardson f ailed t o make a ‘ reasonable good fait h ef fort of seeking ot her employment ’ during t hese ot her periods [when he was not working for t he t hrift st ore and did not receive unemployment compensat ion] and is not ent it led t o any addit ional compensat ion. ” (Doc. 19-5 at 2.) Peco filed t his act ion on August 18, 2016, seeking t o vacat e t he arbit rat or’ s award. On Sept ember 13, 2016, RWDSU count erclaimed, seeking enforcement of t he award. II. Standard of Review Summary j udgment is appropriat e “ if t he movant shows t hat t here is no genuine disput e as t o any mat erial fact and t he movant is ent it led t o j udgment as a mat t er of law.” Fed. R. Civ. P. 56(a). A f act is “ mat erial” if it “ might af fect t he out come of t he suit under t he governing law. ” Anderson v. Libert y Lobby, Inc. , 477 U.S. 242, 248 (1986). There is a “ genuine disput e” as t o a mat erial f act “ if t he evidence is such t hat a reasonable j ury could ret urn a verdict for t he nonmoving part y.” Id. The t rial j udge should not weigh t he evidence but must simply det ermine whet her t here are any genuine issues t hat should be resolved at t rial. Id. Page 7 of 19 at 249. In considering a mot ion for summary j udgment , t rial court s must give deference t o t he nonmoving part y by “ considering all of t he evidence and t he inferences it may yield in t he light most f avorable t o t he nonmoving part y. ” McGee v. Sent i nel Of f ender Servs., LLC, 719 F.3d 1236, 1242 (11t h Cir. 2013) (cit at ions omit t ed). In making a mot ion f or summary j udgment , “ t he moving part y has t he burden of eit her negat ing an essent ial element of t he nonmoving part y’ s case or showing t hat t here is no evidence t o prove a f act necessary t o t he nonmoving part y’ s case. ” Id. Alt hough t he t rial court s must use caut ion when grant ing mot ions for summary j udgment , “ [ s]ummary j udgment procedure is properly regarded not as a disf avored procedural short cut , but rat her as an int egral part of t he Federal Rules as a whole. ” Cel ot ex Corp. v. Cat ret t , 477 U.S. 317, 327 (1986). III. Discussion When part ies submit a case for arbit rat ion pursuant t o a CBA, t he award “ is t reat ed as a cont ract ual obligat ion t hat can be enforced t hrough a [ 29 U.S.C. § 185] suit .” Unit ed St eel , Paper, & Forest ry, Rubber, Mf g., Energy, Al l ied Indus. & Serv. Workers Int ’ l Union Local 320 v. Wise Al l oys, LLC, 642 F.3d 1344, 1349 (11t h Cir. 2011). However, in Page 8 of 19 order for a Court t o enforce an arbit rat ion award, “ t he arbit rat or’ s int erpret at ion of t he [CBA] must be derived from t he language of t he agreement .” Id. at 1351. An arbit rat or’ s “ award is legit imat e only so long as it draws it s essence from t he [CBA] .” Id. (quot ing Unit ed St eel workers of Am. v. Ent er. Wheel & Car Corp., 363 U.S. 593, 597 (1960)). In order t o det ermine if t he award “ draws it s essence from t he [CBA], ” t he Court considers whet her “ t he int erpret at ion can in any rat ional way be derived from t he agreement , viewed in t he light of it s language, it s cont ext , and any ot her indicia of t he part ies’ int ent ion.” Id. (quot ing Int ’ l Union of Dist . 50, UMWA v. Bowman Transp. , Inc., 421 F.2d 934, 936 (5t h Cir. 1970)). A. Jurisdict ion Peco moves t o vacat e t he arbit rat ion award, claiming t hat t he arbit rat or did not have j urisdict ion t o hear t he grievance, because RWDSU did not meet t he fif t een-day deadline for request ing arbit rat ion aft er Richardson’ s grievance was denied. It is undisput ed t hat RWDSU did not request arbit rat ion unt il t hirt een days aft er t he deadline for such a request had passed. RWDSU, however, reit erat es t he arbit rat or’ s decision t hat Peco waived t his t imeliness challenge by failing t o bring it up unt il t he arbit rat ion hearing. Page 9 of 19 Peco alleges t hat t he arbit rat or’ s holding t hat t he grievance was arbit rable does not draw it s essence from t he CBA, because t he CBA st at es t hat “ [t ]he grievance shall be considered set t led if not appealed t o a higher st ep wit hin an est ablished t ime limit and shall not be t he subj ect of any furt her proceeding.” (CBA at 9.) Furt her, Peco assert s t hat t he arbit rat or’ s holding is cont rary t o t he CBA, because t he CBA does not require t hat arbit rabilit y issues be raised prior t o an arbit rat ion hearing. The part ies agree t hat t he arbit rabilit y of t his grievance was a quest ion for t he arbit rat or. However, Peco assert s t hat t his means t hat t he issue was properly raised f or t he f irst t ime at t he hearing before t he arbit rat or— because “ [t ]he Arbit rat or did not require t he preliminary considerat ion of j urisdict ional defenses bef ore t he hearing dat e. ” (Doc. 16 at 11. ) Thus, Peco argues, t he arbit rat or’ s award is cont rary t o t he language in t he CBA, and should be vacat ed. Yet “ it is not t he funct ion of t he Court t o second guess t he arbit rat or on mat t ers t hat were wit hin his power t o decide.” Shopmen’ s Local 539 of Int ’ l Ass’ n of Bridge, St ruct ural , & Ornament al Iron Workers v. Mosher St eel Co., 796 F.2d 1361, 1365 (11t h Cir. 1986). In Mosher, an arbit rat or held t hat a t imeliness requirement , similar t o t he one at issue in t his act ion, had been waived by t he employer’ s Page 10 of 19 failure t o raise it before t he arbit rat ion hearing. The employer filed an act ion in federal dist rict court , seeking t o vacat e t he arbit rat ion award and have t he grievance declared unarbit rable. The Dist rict Court ruled in t he employer’ s f avor. However, t he Elevent h Circuit reversed t his decision, holding t hat t he finding of waiver was “ premised on t he arbit rat or’ s const ruct ion of t he cont ract and his underst anding of t he int ent of t he part ies. ” Id. at 1366 (quot ing Drummond Coal Co. v. UMWA, Dist . 20, 748 F. 2d 1495, 1497 (11t h Cir. 1984)). The Mosher court based it s decision on Drummond, holding t hat Drummond “ answered all of t he issues raised” in Mosher. In Drummond, t he court held t hat “ [t ] he arbit rat or’ s decision not t o resolve t he disput e on t he basis of t he language in t he [CBA] requiring [compliance wit h a t ime limit ] does not . . . require t his court t o vacat e t he arbit ral award, ” because “ [ a]rbit rat ors have frequent ly recognized t hat part ies may waive or ot herwise be est opped from assert ing right s grant ed under t he [CBA] .” Drummond, 748 F.2d at 1498. Furt her, it held t hat an arbit rat or’ s award of waiver is not “ wit hin t he province of t he court s . . . t o review,” because it “ is based upon t he arbit rat or’ s f act ual assessment of t he act ions and int ent ions of t he part ies; it rest s upon a det erminat ion of t he merit s of t he case.” Id. Page 11 of 19 As illust rat ed by Mosher and Drummond, a finding of waiver may be based on circumst ances and f act s out side t he language of t he CBA, because it “ necessarily requires t he arbit rat or t o look beyond t he cont ract language t o t he act ions of t he part ies. ” Id. The part ies in t his act ion have agreed t hat it s arbit rabilit y was wit hin t he arbit rat or’ s power t o decide, and it is clear t hat any review t his Court would undert ake would have t o be of t he merit s of t he arbit rat or’ s const ruct ion. Because “ [j ]udicial review of an arbit ral award is . . . limit ed t o a det erminat ion of whet her t he arbit rat or, in making t he award, was funct ioning wit hin his aut horit y” Id. at 1497, and t he fact s of Mosher and Drummond make it clear t hat t he arbit rat or was act ing wit hin his aut horit y in t his act ion, t he arbit rat or’ s finding of waiver must st and. The Court will not vacat e t he arbit rat or’ s finding of arbit rabilit y. B. Just Cause Peco argues t hat t he Court should vacat e t he arbit rat ion award finding t hat Peco did not have j ust cause t o t erminat e Richardson because dangerous or t hreat ening conduct such as Richardson’ s qualifies as j ust cause for t erminat ion under t he CBA. Thus, Peco claims, t he arbit rat or’ s finding did not draw it s essence from t he CBA. RWDSU does not disput e t hat dangerous or t hreat ening conduct const it ut es j ust cause for Page 12 of 19 t erminat ion under t he CBA, but assert s t hat t his Court must defer t o t he arbit rat or’ s finding t hat Richardson did not engage in t hreat ening conduct . “ The court s are not t o engage in a review of t he merit s of t he arbit rat or’ s decision. ” Drummond, 796 F. 2d at 1497. Here, t he arbit rat or made a f act ual finding t hat Richardson’ s behavior was not t hreat ening; t herefore, his decision about t he exist ence of j ust cause is based on “ f act ual assessment s” t hat cannot be second-guessed by t his Court . Id. at 1498. The arbit rat or’ s int erpret at ion of t he t hreat ening conduct t hat const it ut es j ust cause under t he CBA is “ final and binding on t he part ies because it is t his int erpret at ion t hat is bargained for by t he part ies. ” Id. at 1497. Thus, t he Court cannot vacat e t he arbit rat or’ s award finding t hat Peco did not have j ust cause f or t erminat ing Richardson. C. Public Policy Peco also argues t hat t he arbit rat ion award should be vacat ed because it conflict s wit h “ public policy against violence and t hreat ening behavior in t he workplace. ” (Doc. 16 at 13. ) As evidence of t his “ public policy, ” Peco point s t o 29 U.S.C. § 654(a), which requires employers t o “ furnish t o each of [ t heir] employees employment and a place of employment which are free from recognized hazards t hat are causing or are likely t o cause deat h or serious physical harm t o [t heir] employees. ” Peco also assert s Page 13 of 19 t hat “ employers can f ace liabilit y under negligence t heories and workers’ compensat ion laws for t heir failure t o prevent workplace violence.” (Doc. 16 at 15.) The Supreme Court has made it clear t hat , when analyzing a claim t hat an arbit rat ion award mandat ing reinst at ement under a CBA violat es public policy, t he Court “ must assume t hat t he [CBA] it self calls for . . . reinst at ement . ” E. Associat ed Coal Corp. v. UMWA, Dist . 17, 531 U.S. 57, 61 (2000). Therefore, t he quest ion becomes “ whet her a cont ract ual reinst at ement requirement would fall wit hin t he legal except ion t hat makes unenforceable ‘ a collect ive-bargaining agreement t hat is cont rary t o public policy.’ ” Id. at 62 (quot ing W.R. Grace & Co. v. Local Union Unit ed Rubber, Cork, Linol eum & Pl ast ic Workers of Am. , 461 U.S. 757, 766 (1983)). Thus, it is t he “ agreement t o reinst at e” which must be cont rary t o public policy, not t he misconduct it self. Id. at 62-63. To fall under t his except ion, a public policy must be “ explicit , well defined, and dominant . ” Id. at 62 (int ernal quot at ions omit t ed). It must also be f ound in “ t he laws and legal precedent s and not from general considerat ions of supposed public int erest s. ” Id. (int ernal quot at ions omit t ed). Thus, in t his act ion, t he proper quest ion is whet her Richardson’ s reinst at ement runs cont rary t o t he requirement t o “ furnish . Page 14 of 19 . . a place of employment . . . free from recognized hazards t hat are causing or are likely t o cause deat h or serious physical harm t o his employees.” 29 U.S.C. § 654(a). Peco claims t hat Richardson’ s reemployment posed a “ hazard t hat [ was] . . . likely t o cause deat h or serious physical harm” because Richardson t hreat ened t o discharge a firearm in t he workplace. However, t he arbit rat or found t hat Richardson’ s comment was not a t hreat , and “ court s are not aut horized t o reconsider t he merit s of an award even t hough t he part ies may allege t hat t he award rest s on errors of f act . ” Unit ed Paperworkers Int ’ l Union, AFL-CIO v. Mi sco, Inc., 484 U.S. 29, 36 (1987). Furt her, “ [t ]o resolve disput es about t he applicat ion of a [ CBA], an arbit rat or must find f act s and a court may not rej ect t hose findings simply because it disagrees wit h t hem.” Id. at 37-38. “ [T]he fact t hat it is inquiring int o a possible violat ion of public policy [does not ] excuse a court for doing t he arbit rat or’ s t ask.” Id. at 45. Here, assuming arguendo t hat Peco has est ablished a public policy suf ficient t o vacat e an arbit rat ion award, “ no violat ion of t hat policy was clearly shown.” Id. at 44. In Mi sco, t he Supreme Court found t hat t he presence of drugs in an employee’ s car in t he workplace parking lot was not enough t o est ablish t hat an employee would be on drugs while Page 15 of 19 working because “ [ a] refusal t o enforce an award must rest on more t han speculat ion or assumpt ion. ” Id. Here, Peco has provided no ot her evidence t hat Richardson would engage in dangerous or t hreat ening behavior t han his comment about “ t hrowing lead” — which t he arbit rat or found was not a t hreat of violence. Even if Peco had provided such evidence, t he Court cannot int erfere wit h t he arbit rat or’ s f act ual findings, because “ [ t ]he part ies did not bargain for t he fact s t o be found by a court , but by an arbit rat or chosen by t hem. ” Id. at 45. Therefore, Peco has f ailed t o show t hat re-employing Richardson would violat e any public policy against exposing employees t o unsafe workplaces. The arbit rat or’ s award will not be vacat ed as in violat ion of public policy. D. Back Pay Peco argues t hat t he arbit rat or exceeded his aut horit y because he ordered Peco t o pay Richardson backpay “ despit e Richardson’ s f ailure t o mit igat e his damages.” (Doc. 16 at 16.) It also claims t hat t he award “ does not draw it s essence from t he CBA because it makes Richardson more t han whole” by grant ing him back pay wit hout a showing of proper mit igat ion. (Id. ) Peco bases t hese argument s on it s assert ion t hat “ [t ]he Arbit rat or . . . acknowledged t he fact t hat [RWDSU] f ailed t o present evidence of Richardson’ s’ ef fort s t o mit igat e damages. ” (Id. at 17. ) Page 16 of 19 However, t his assert ion is inconsist ent wit h t he arbit rat ion award, which finds, based on Richardson’ s t est imony, t hat he received unemployment for a period of t ime, and worked for a t hrift shop for anot her durat ion. (Pl. Ex. 1 at 44.) The arbit rat or found t hat t his was suf ficient evidence of mit igat ion, and held t hat Richardson was ent it led t o back pay f or t hose periods. 1 While Peco may disagree wit h t he arbit rat or’ s decisions about t he sufficiency of t he evidence and t he result ing back pay award, as explained above, t hese are not sufficient grounds for a court t o vacat e an arbit rat or’ s award. The Court cannot second guess t he arbit rat or’ s fact ual finding of mit igat ion, and t herefore, will not vacat e t he arbit rat ion award. E. Vagueness Peco also argues t hat t he back pay award is “ ambiguous, arbit rary, and capricious because it is not self -execut ing and requires t he part ies t o calculat e Richardson’ s damages using evidence t hat was not int roduced during t he arbit rat ion and t hat has not been aut hent icat ed or sworn.” (Doc. 21 at 21.) However, t he arbit rat or clearly delineat ed how t he back pay award was to be calculat ed— by 1 subt ract ing Richardson’ s In a supplement al award, t he arbit rat or held t hat Richardson was not ent it led t o backpay for t he periods when he was not working for t he t hrift st ore and did not receive unemployment compensat ion. However, t hat award is not challenged by t he part ies. Page 17 of 19 unemployment compensat ion and t hrift st ore pay from his pay rat e at Peco— and “ an arbit rat ion award requiring reinst at ement and backpay, but leaving t he calculat ion of t he amount of backpay t o t he part ies, is considered final and enf orceable.” Al uminum Brick & Gl ass Workers Int ’ l Union v. AAA Pl umbing Pot t ery Corp., 991 F.2d 1545, 1549 (11t h Cir. 1993). If any disput es should arise about t he int erpret at ion of t he award, t hey are t o be properly resolved by t he arbit rat or, and not by t his Court . Id. (“ t he normal course of act ion is t o t reat t he award as ambiguous or incomplet e and remand t he disput e t o t he original arbit rat or t o clarify t he award.” ). However, Peco has not shown t hat it has at t empt ed t o calculat e t he amount of back pay, or even t hat t he disput e is about t he alleged quant it y of t he award. Inst ead, Peco simply disagrees wit h t he arbit rat or’ s basis for t he award, which is an evident iary mat t er t hat t his Court cannot second-guess. See Mi sco, 484 U.S. at 45. Therefore, t he Court cannot vacat e t he arbit rat ion award on t his basis. IV. Conclusion For t he reasons st at ed above, summary j udgment is due t o be grant ed in RWDSU’ s favor. The Court finds t hat t he arbit rat ion award is due t o be enforced. A separat e order consist ent wit h t his opinion will be ent ered. Page 18 of 19 DONE and ORDERED t his 19t h day of June 2017. _____________________________ L. Scot t Coogler Unit ed St at es Dist rict Judge 186291 Page 19 of 19

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