Zayas v. Bacardi Corp.

             United States Court of Appeals
                         For the First Circuit

No. 07-1950

                          PABLO ZAYAS ET AL.,

                        Plaintiffs, Appellants,

                                   v.

                          BACARDI CORPORATION,

                          Defendant, Appellee.


              APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF PUERTO RICO

         [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]


                                 Before

                          Boudin, Chief Judge,
                     Selya, Senior Circuit Judge,
                  and Keenan,* Senior District Judge.


     Víctor Bermúdez Pérez, with whom Robert Millán was on brief,
for appellants.
     Pedro J. Manzano-Yates, with whom Ada Nurie Pagán-Isona and
Fiddler González & Rodríguez, PSC were on brief, for appellee.



                             April 18, 2008




     *
         Of the Southern District of New York, sitting by designation.
          SELYA, Senior Circuit Judge.        This appeal invites us to

enter terra incognita and consider an esoteric area of labor

relations law: the doctrine of industrial double jeopardy.              From

what we can tell, the pertinent case law consists of a handful of

district court opinions.    See, e.g., Int'l Longshoremen's Ass'n v.

S.S. Trade Ass'n of Balt., Inc., Civ. No. 00-3693, 2001 WL 777080,

at *3-4 (D. Md. July 3, 2001); Local Union No. 1 v. Interstate

Brands Corp., No. 99-C-2522, 2000 WL 126798, at *2 (N.D. Ill. Feb.

1, 2000); Yager v. Carey, 910 F. Supp. 704, 716 (D.D.C. 1995).            No

federal appellate court has addressed the doctrine.

          The question arises here in the context of an arbitral

award.   The arbitrator overrode the employee's double jeopardy

argument without comment and the district court followed suit.            We

take a more direct approach, briefly exploring the parameters of

the doctrine and concluding that the failure to invoke it did not

constitute a manifest disregard of the law.           Consequently, we

uphold the judgment below (and, thus, confirm the arbitral award).

          We   rehearse   the   facts   as   supportably   found   by    the

arbitrator.    Pablo Zayas worked for Bacardi Corporation as a

distillery operator.   He also served as a vice-president of United

Auto Workers, Local 2415 (the Union).        During the times material

hereto, a collective bargaining agreement (the CBA) was in effect

between Bacardi and the Union.




                                  -2-
           Zayas requested that his attendance register be altered

to reflect that he had worked on October 17, 2002.        Suspecting that

Zayas had not worked on that date and was trying to take undue

advantage,    Bacardi   suspended   him   without   pay   for   three   days

(October 22-24) in order to investigate. Its suspicions confirmed,

the company terminated Zayas's employment on the fourth day.

           Zayas and the Union challenged the dismissal.            In due

course, the grievance was submitted to arbitration as prescribed by

the CBA.     After taking testimony and entertaining argument, the

arbitrator issued an award upholding the firing.           In his written

rescript, the arbitrator found that Zayas had tried to alter his

work record to reflect (falsely) that he had worked on October 17,

thereby violating a valid workplace rule.

           With respect to the penalty imposed, the arbitrator found

that Bacardi had followed a policy of progressive discipline and,

thus, that this most recent violation could be evaluated in light

of Zayas's prior, similar infractions. That cumulative record, the

arbitrator ruled, entitled Bacardi to discharge Zayas for the

latest infraction.

           The award did contain a small victory for Zayas: the

arbitrator found that his suspension without pay was contrary to

the CBA and, thus, was unjustified.           Even though Bacardi had

imposed the suspension for the purpose of investigating Zayas's

alleged chicanery, that was not enough. In the arbitrator's words,


                                    -3-
"it was also up to [Bacardi] to prove that just cause existed" for

the suspension, and Bacardi had not "satisfactorily compl[ied] with

the burden of proving that the suspension . . . was justified."

Thus, the arbitrator awarded Zayas back pay for the three-day

interval.

               Zayas sought judicial review of the arbitral award in a

local court (the Puerto Rico Court of First Instance).1                        There, he

proffered three claims of error: (i) the dismissal itself was an

improper form of industrial double jeopardy; (ii) the arbitrator

failed correctly to apply the presumption of just cause; and (iii)

the arbitrator's finding that Bacardi had in place a valid system

of progressive discipline was wrong.                 Bacardi removed the case to

the federal district court, see 28 U.S.C. § 1441; 29 U.S.C. §

185(a), and in due season moved for summary judgment, see Fed. R.

Civ. P. 56(b).

               The district court, in an unpublished memorandum opinion,

granted       the      motion.        The    court      noted   the      arbitrator's

determinations that Zayas had provided false information to the

company, that this behavior violated a workplace rule, that the

rule       itself     was   a    rational    means    of    ensuring     the    orderly

functioning of the plant, and that the ensuing dismissal was a

legitimate          exercise    of   the    company's      system   of   progressive


       1
      Although the Union and Zayas are co-plaintiffs, the Union is
strictly a nominal party. Hence, we refer throughout to Zayas as
if he were the sole plaintiff.

                                            -4-
discipline. It perceived no manifest disregard of the law or other

cognizable shortcoming in any of these determinations.

              This timely appeal followed.       In it, Zayas has preserved

only a single ground of appeal: the claim that his dismissal was

antithetic to principles of industrial double jeopardy.

              We review a district court's entry of summary judgment de

novo.    See, e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st

Cir. 1990). In this case, that means that, in appraising the

arbitral award, we are bound by the same standards that bound the

district court. See Salem Hosp. v. Mass. Nurses Ass'n, 449 F.3d

234,    237   (1st   Cir.   2006);   Teamsters    Local   Union   No.   42   v.

Supervalu, Inc., 212 F.3d 59, 65 (1st Cir. 2000).           Those standards

are not challenger-friendly.         Judicial review of arbitral awards

operates in very narrow, tightly constricted confines and, thus,

"[a]rbitral awards are nearly impervious to judicial oversight."

Supervalu, 212 F.3d at 61.           This result flows naturally from a

recognition that the "federal policy of settling labor disputes by

arbitration would be undermined if courts had the final say on the

merits of the awards."       United Steelworkers v. Enter. Wheel & Car

Corp., 363 U.S. 593, 596 (1960).

              Hedged in by these constraints, federal courts limit

their review of arbitral awards to two well-delineated traunches.

In the first, courts are statutorily authorized to review the

arbitral process for certain specific types of breakdowns (say,


                                      -5-
fraud, partiality on the arbitrator's part, or the like).                See 9

U.S.C. § 10(a); see also Cytyc Corp. v. Deka Prods. Ltd. P'ship,

439 F.3d 27, 33 (1st Cir. 2006).            That traunch is not implicated

here.

            The second traunch is anchored in federal common law.

See Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 220-21

(2d Cir. 2002); Advest, Inc. v. McCarthy, 914 F.2d 6, 9 n.5 (1st

Cir. 1990).      That traunch provides an exceedingly small window of

opportunity for vacation of arbitral awards that are "in manifest

disregard of the law."          Advest, 914 F.2d at 8-9 (collecting

different formulations of this standard). Access to this window of

opportunity requires that an award be "(1) unfounded in reason and

fact; (2) based on reasoning so palpably faulty that no judge, or

group of judges, ever could conceivably have made such a ruling; or

(3) mistakenly based on a crucial assumption that is concededly a

non-fact."    Supervalu, 212 F.3d at 66 (quoting Local 1445, United

Food & Comm'l Workers Int'l Union v. Stop & Shop Cos., 776 F.2d 19,

21 (1st Cir. 1985)).

            Zayas's argument implicates the second traunch of review.

He   contends,     in   substance,   that    by   impliedly   rejecting    his

industrial double jeopardy claim, the arbitrator acted in manifest

disregard of the law.       This is a heavy burden; to succeed on such

a    contention,    a   challenger   ordinarily     must   show   that    "the

arbitrator recognized the applicable law — and then ignored it."


                                     -6-
Advest, 914 F.2d at 9.            We understand Zayas's remonstrance to be a

slight variation on this theme; in his view, the principles of

industrial double jeopardy are so clear and the arbitral award so

inconsistent with them that the arbitrator must have thumbed his

nose at the law.

             The phrase "industrial double jeopardy" refers to one of

a family of concepts that fall under the rubric of industrial due

process.      See     1     Tim    Bornstein   et   al.,    Labor   &   Employment

Arbitration      §        15.01   (2d   ed.    1997);   Ray    J.   Schoonhoven,

Fairweather's Practice & Procedure in Labor Arbitration § 13, at

374 (4th ed. 1999). In the arbitral context, these protections are

not   normally       of    constitutional      dimension.      Rather,    when   an

arbitrator refers to double jeopardy or some similar due process

concept, he generally has imported that concept into a CBA.

             The impetus is that such an importation is intrinsic to

the notion of just cause or otherwise implicit in the labor

contract.2    See 1 Bornstein, supra § 15.03; Schoonhoven, supra §

13, at 373.          This borrowing does not mean, however, that the

borrowed concepts play out identically in the constitutional and

industrial spheres. The concept of industrial double jeopardy, for



      2
      As a theoretical matter, it is unclear whether parties to a
CBA may avoid the importation of industrial due process protections
into their contractual relationship by explicitly contracting away
such protections. See Schoonhoven, supra § 13, at 373. We need
not resolve that uncertainty, however, as no such waiver occurred
here.

                                         -7-
example,   is    usually   considered   weaker      and   narrower   than   its

constitutional counterpart.       See Schoonhoven, supra § 13.VIII, at

417-18.

            The double jeopardy claim in the instant case runs along

the following lines.         Zayas says that by being dismissed after

having    been   suspended    without   pay    he   suffered   two   distinct

disciplinary sanctions for the same conduct.              As he sees it, the

fact that the unpaid suspension was undertaken to afford breathing

room for conducting an investigation into the suspected wrongdoing

is irrelevant; what counts is that it was a disciplinary sanction

(as the arbitrator himself found).            Since the dismissal punished

the same conduct for a second time, his thesis runs, that action

contravened the doctrine of industrial double jeopardy. Therefore,

it should not have been upheld.

            Zayas's basic legal premise is generally correct.               The

doctrine of industrial double jeopardy enshrines the idea that an

employee should not be penalized twice for the same infraction.

See, e.g., Gulf States Paper Corp., 97 Lab. Arb. 61, 62 (1991)

(Welch, Arb.).      But Zayas's conclusion that a violation of the

doctrine occurred here is incorrect.

            The most obvious flaw in Zayas's argument is that his

broad pronouncements omit a crucial refinement in the application

of the doctrine: a second sanction only transgresses industrial

double jeopardy principles if the first sanction has become final.


                                    -8-
See 1 Bornstein, supra § 15.07[2] (explaining that industrial

double jeopardy "applies only to subsequent increases in penalties

after    a   final   decision   on    the    merits");    id.     (determining

applicability of industrial double jeopardy requires arbitrator to

"ask whether the initial discipline was, in some sense, final");

Norman Brand, Discipline & Discharge in Arbitration § 2.II.A.5, at

48 (1998) ("Double jeopardy concepts are relevant only when a

disciplinary decision is final."); Alan Miles Ruben, Elkouri &

Elkouri: How Arbitration Works § 15.3.F.vi, at 982 (6th ed. 2003)

(noting that industrial double jeopardy "does not apply where the

[initial] discipline is imposed with the understanding that it may

not be final").

             This refinement erects a hurdle that Zayas cannot clear.

The    authorities   are   consentient      that   when   employers   suspend

employees pending investigation of alleged misconduct, the doctrine

of industrial double jeopardy does not bar subsequent discipline.

See 1 Bornstein, supra § 15.07[2] (explaining that it "does not

constitute double jeopardy to suspend an employee for serious

misconduct while conducting an investigation and to later terminate

the employee based on the facts disclosed in the investigation");

Ruben, supra § 15.3.F.vi, at 981 ("Double jeopardy does not occur

when    an   employer   suspends     an   employee   while      conducting   an

investigation that ultimately leads to the employee's discharge.");




                                      -9-
see also Misco Precision Casting Co., 40 Lab. Arb. 87, 90 (1962)

(Dworkin, Arb.).

            The logic behind this consensus is easy to discern. When

an employer suspends an employee for the purpose of probing the

latter's conduct, neither the employer nor the employee reasonably

can   believe     that     the    suspension      is    a   final,    complete,     and

conclusive punishment for the suspected infraction.                           Were the

doctrine applied otherwise, an employer would be placed in an

untenable position: either take precipitous action (by cashiering

the employee without an investigation) or expose itself to further

harm (by keeping the employee in place despite his suspected

wrongdoing).

            Seen    in   this     light,    the    industrial        double    jeopardy

doctrine affords Zayas no shelter.                 The arbitrator supportably

found that he was suspended while an investigation was carried out

into the facts upon which his dismissal was eventually based.

Zayas thus suffered two disciplinary actions — suspension and

dismissal    —     but     only     one    final       sanction.        Under     these

circumstances, the arbitrator did not manifestly disregard the law

in declining to use the doctrine of industrial double jeopardy as

a lever to overturn the dismissal.

            Zayas has two principal counter-arguments.                        First, he

repeatedly       asserts     that     the    arbitral        award      embodies     an

"inconsistency"      because        the    arbitrator       found     his     dismissal


                                          -10-
justified but his suspension unjustified.                     This assertion is

Pickwickian.

            The allegedly schizophrenic quality of the award is fully

explained    by     the    arbitrator's     differential       treatment    of   the

suspension and the discharge.          He determined that although Bacardi

had failed to prove just cause for the suspension, it had carried

that burden with respect to the dismissal (an adverse employment

action that was carried out in conformity with a different set of

CBA provisions). These were disparate, though related, issues; and

the   arbitrator's        findings    are   not   in    any    meaningful    sense

internally inconsistent.

            Zayas's       second   counter-argument      revolves     around the

plaint that neither the arbitrator nor the district court mentioned

"industrial double jeopardy" in their respective opinions.                       This

plaint has little to commend it.

            Although arbitrators frequently elect to explain their

decisions in written opinions, they are under no compulsion to do

so.   See Keebler Co. v. Truck Drivers, Local 170, 247 F.3d 8, 12

(1st Cir. 2001).          It follows, then, that a court may uphold an

arbitral    award    "on    grounds   or    reasoning    not    employed    by   the

arbitrator himself."         Labor Rel'ns Div. of Constr. Indus. v. Int'l

Bhd. of Teamsters, Local #379, 29 F.3d 742, 747 (1st Cir. 1994).

            The situation is the same with respect to a district

court when that court is acting under Rule 56 of the Federal Rules


                                       -11-
of Civil Procedure.    Though a district court ordinarily ought to

explain the reasoning behind a grant of summary judgment, it is not

obliged to do so.     See Microfinancial, Inc. v. Premier Holidays

Int'l, Inc., 385 F.3d 72, 76 (1st Cir. 2004); cf. Alliance of Auto.

Mfrs. v. Gwadowsky, 430 F.3d 30, 34 (1st Cir. 2005) ("Our review is

not constrained by the lower court's stated rationale; we may

affirm the entry of summary judgment on any ground supported by the

record."). Consequently, the failure of the district court to deal

explicitly with the doctrine of industrial double jeopardy is not

a valid ground for vacating its summary judgment order.

            We need go no further.   This case is far from close.   The

arbitral award is rooted in a permissible view of the facts and

founded on common sense.   Its reasoning is neither palpably faulty

nor mistakenly predicated on an insupportable assumption.           We

therefore conclude that the arbitrator was not guilty of any

manifest disregard of the law in formulating the award and that the

district court committed no error in disposing of the matter on

summary judgment.



Affirmed.




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