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April 25, 1994



The opinion of the court was delivered by: CLAUDIA WILKEN


 Plaintiff seeks an order compelling arbitration pursuant to a collective bargaining agreement of a dispute over Defendant's termination of Vaughn Roberts, an employee covered by the agreement. Plaintiff filed a grievance protesting Roberts' discharge, and Defendant has declined to continue processing the grievance to arbitration, citing Roberts' alleged "unclean hands".



 Summary judgment is properly granted when no genuine and disputed issues of material fact remain; or, when viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288-89 (9th Cir. 1987).

 The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Intel Corp. v. Hartford Accident and Ins. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).

 Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).


 Defendant argues that it need not arbitrate the disputed labor issue because Mr. Roberts has "unclean hands", due to his alleged theft or receipt of stolen documents, his threatening comments about other employees, and his letter to various Nabisco facilities.

 Defendant contends that it would be inimicable to the arbitration process, and a waiver of the attorney-client privilege, if Mr. Roberts were allowed to utilize the improperly obtained documents from the Nabisco files in arbitration. Because of Mr. Robert's alleged threats, Defendant is reluctant to require its employees to be in the same room with Mr. Roberts for an adjustment or arbitration proceeding, which, Defendant contends, undercuts the arbitration process. Defendant argues that the distribution of the letter further undermines the arbitration efforts.

 In support of its refusal to arbitrate, Defendant cites a case from the Eastern District of Missouri. Teamsters, Local 688 v. Crane Co., 96 L.R.R.M. 3184 (E.D. Mo. 1977) (hereinafter "Local 688"). In that case, the employer, the Union, and the employee, Jesse Dale, Jr., presented their case to a neutral arbitrator. Id. at 3185. After hearing arguments in mid-February 1976, the arbitrator informed both parties that he would contact them at a later date to inform them of his decision. Id. By late February, the arbitrator had received over 20 calls from a person identifying himself as Jesse Dale, Jr. Id. The arbitrator directed that the calls not be forwarded to him, and called the Union attorney, insisting that the calls stop. Id. The calls continued, and a person claiming to be Dale also visited the arbitrator's office. Id. On March 12, the arbitrator withdrew, stating that he could no longer remain neutral in the matter. Id. In April, the union notified the defendant that they wanted to arbitrate again. Id. The defendant refused to participate in any future arbitration. Id. The following July, defendant Crane Co.'s primary witness in the arbitration resigned from the company and moved out of state, making him for all practical purposes unavailable for future testimony. Id. The court found that the calls and 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 ...

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