visit were made by Dale, and held that "to require arbitration here would allow Dale to benefit from his wrongdoing. His conduct, and his alone, kept the initial arbitration attempt from succeeding. Dale does not seek equitable relief with clean hands. Id. at 3185-86.
Local 688 is not binding on this Court. Further, there are several differences between that case and the case at bar. First, in Local 688, the employer did not breach its duty to arbitrate. The company did, in fact, arbitrate the labor dispute. Only after the employee made it impossible for the arbitrator to render his decision, did the employer refuse the union's request for further arbitration. Here, Defendant refuses to participate in the Adjustment Board hearing or to arbitrate. Secondly, in Local 688 it was the neutral arbitrator, not the employer, who determined that the conduct of the employee was inappropriate.
Most importantly, the employee's conduct in Local 688 directly thwarted the arbitration process, rendering the arbitrator who had heard the case unable to make his decision. The arbitration could not be repeated before a new, unaffected arbitrator without prejudice to the employer, since the employer's chief witness had become unavailable in the intervening time.
Here, assuming Defendant's factual allegations to be true, and examining the evidence in light most favorable to Defendant, Mr. Roberts' alleged actions do not affect the neutrality of the arbitrator or thwart the arbitration process. As Plaintiff argues, the post-discharge issues here are evidentiary and procedural matters which can be resolved by the arbitrator. The arbitrator can determine whether files were stolen and/or privileged, and refuse to consider them if they are. Moreover, Plaintiff has agreed not to use these documents. It does not appear that Mr. Robert's letter would have any prejudicial effect on the arbitrator. And presumably if the arbitrator finds misconduct to have occurred she could take it into account in her decision as to the termination. The Adjustment Board and the arbitrator can establish appropriate security procedures for the protection of the employer's witnesses.
Although there are facts in dispute, there is no material factual dispute, since, even assuming all of Defendant's factual allegations to be true, and examining the evidence in the light most favorable to Defendant, Defendant's refusal to arbitrate is unjustified. Accordingly, Plaintiff's Motion for Summary Judgment is GRANTED. Defendant shall submit Plaintiff's grievance protesting Defendant's termination of its employee Vaughn Roberts, including all procedural issues of arbitrability arising in connection with that grievance, to an Adjustment Board hearing, and, absent resolution at that stage, to a mutually selected impartial arbitrator, pursuant to the grievance-arbitration procedures contained in the parties' 1991-1994 collective bargaining agreement.
Judgment for Plaintiff shall enter in accordance with this order, with costs to Plaintiff.
IT IS SO ORDERED.
Dated: April 25, 1994
UNITED STATES DISTRICT JUDGE
This action came on for trial before the Court and a jury, The Honorable Claudia Wilken, United States District Judge, presiding. The issues having been duly tried and the jury having duly rendered its verdict,
IT IS ORDERED AND ADJUDGED that the plaintiff RJM Tile, Inc. recover of the defendants Guglielmo Bonotti and Guglielmo and Alberto Bonotti S.N.C. Marmi & Affini, jointly and severally, the sum of $ 500,717 compensatory damages and $ 249,283 punitive damages, together with the sum of $ 142,120.48 in prejudgment interest from May 29, 1991 to March 31, 1994, on the sum of $ 500,717 at the rate of 10 percent per annum pursuant to California Civil Code §§ 3287 and 3289, for a total judgment of $ 892,120.48, with post-judgment interest as provided by law, and its costs of action.
Dated: April 26, 1994
United States District Court