CELEBREZZE, Senior Circuit Judge.
Plaintiffs Billy Ray Apperson, his brother Don Apperson, and the class that they seek to represent, appeal the dismissals of their labor and antitrust claims against Defendants Fleet Carrier Corporation (Fleet), Fleet Carrier Dealers Service (FCDS), and Local 614 of the International Brotherhood of Teamsters, Chauffeurs, Warehouseman & Helpers of America (Union or Local 614). On appeal Plaintiffs challenge the district court's holding that they lacked standing to pursue an antitrust claim against the corporate Defendants under the Sherman Act, see 15 U.S.C. § 1 (1982), and argue that the court erred in finding a "final and binding" arbitration decision dispositive of their "hybrid" section 301 claim under the Labor Management Relations Act, see 29 U.S.C. § 185(a) (1982). We agree with the district court, however, that Plaintiffs are without standing to sue under the antitrust laws, and that they have failed to adequately demonstrate why the arbitration decision should be set aside. Accordingly, we affirm.
A. The Parties and the Contract
Fleet Carrier Corp. is a trucking company engaged in the transportation of new motor vehicles, mostly for General Motors (GM), to dealerships around the country. Its principal terminal is in Pontiac, Michigan. Fleet is compensated for its services under a published tariff that varies depending on the weight of the vehicles and the distance they are transported.
Fleet Carrier Dealers Service is responsible for initially inspecting the new vehicles at GM's facility, accepting them for transportation, moving the vehicles to Fleet's terminal (approximately one-half mile away), and preparing them for shipment by Fleet. FCDS is compensated directly by GM under a contract calling for a per-vehicle "releasing and terminal handling" charge. Although FCDS and Fleet are distinct corporate entities, they share the same ownership, the same facilities in Pontiac, and some of the same directors, officers, and managers.
The Union employees of both Fleet and FCDS are represented for collective bargaining purposes by Local 614 of the International
Art. 62 § 4(a). Under this provision, therefore, the brokers are due not only 65% of the tariff proceeds, but also 65% of any "unjustified ancillary charge" that is "received by the carrier."
Article 7 of the NMATA further provides a comprehensive grievance and arbitration procedure for
Art. 7 § 11. If the local union and the carrier are unable to resolve informally such a dispute, then it is referred to a series of local, regional, and national joint arbitration committees comprised of equal numbers of employer and union appointees. The committees decide grievances by majority vote; any tie vote, or "deadlock," causes the grievance to be taken to the next level. In the event of a deadlock at the national level, the grievance would then be referred to a board of arbitration composed of one union appointee, one employer appointee, and a third disinterested arbitrator selected jointly by the other two. A majority decision at any of these various levels "shall be final and binding on all parties." Art. 7 §§ 6 & 7(a).
B. The Grievance, Settlement, and Lawsuit
This case arises from asserted manipulations of the releasing and terminal handling charge from 1978 to the present. During and before 1978, the releasing and terminal handling services were performed by Fleet employees, for which Fleet received a releasing charge of $12 per vehicle. In January of 1979, however, Fleet transferred its releasing responsibilities to its sister corporation, FCDS.
Fleet's brokers, in particular Plaintiff Billy Ray Apperson,
The grievance was ultimately processed by the Union. It was not resolved informally, so a hearing was convened before the local arbitration panel, the Tri-City Joint Arbitration Committee. The Tri-City Committee deadlocked, thus requiring that the grievance be heard at the regional level before the Central-Southern Area Joint Arbitration Committee. The grievance was docketed for the Central-Southern Committee meeting on August 19, 1981, in Colorado Springs, Colorado.
At Colorado Springs, a luncheon meeting was held to discuss the grievance prior to the hearing. Present at the meeting were Apperson, Union representatives Fink and Williams, members of Fleet management, Albert Matheson who was the employer-side co-chair of the Central-Southern Committee, and several members of the Committee's union-side, including co-chair Charles Thompson. Apperson claims that during lunch both Matheson and Thompson stated that they would not rule in favor of the grievance because the requested award of back pay would bankrupt the company.
Upon returning to Pontiac, Fleet and Union representatives, along with the "brokers committee,"
When Apperson read the Pontiac Agreement, however, he determined that it was inconsistent with his understanding of the discussions in Colorado. Specifically, he thought that the Colorado agreement required an 8-10% rate increase, not simply that Fleet would apply, and that the parties had agreed to a $500 lump-sum payment for each broker, which was omitted from the Pontiac Agreement.
Because of Apperson's reservations concerning the Agreement, Business Agent Williams placed the question on the Central-Southern Committee's agenda for February 2, 1982, in Hollywood, Florida. During January of 1982, however, Fleet obtained the promised tariff increase in the amount of 7%. Williams therefore announced to the Committee at the February 2 hearing that Fleet had substantially complied with the settlement agreement, and Fleet's representative readily agreed. Apperson appeared before the Committee and argued that the grievance was not settled because the Pontiac Agreement materially altered the terms agreed upon in Colorado and Fleet had not lived up to its Colorado commitments. The Committee decided, however, that the Pontiac Agreement had settled the grievance and that Fleet's 7%
On February 26, 1982, Apperson filed this suit against Fleet claiming a breach of contract under section 301 of the Labor Management Relations Act. See 29 U.S.C. § 185(a). On March 9, the First Amended Complaint was filed, in which the Union was named as a Defendant for the first time. Plaintiffs subsequently added an antitrust count, contending that Fleet, FCDS, and certain GM employees (who were not named as defendants) conspired to deny the brokers their just compensation, thereby unreasonably restraining trade in the new vehicle haulaway market. The district court dismissed the antitrust claim, however, because the Plaintiffs lacked standing to bring it.
C. The National Committee Decision and the District Court Disposition
During the course of discovery on Plaintiffs'"hybrid" section 301 action, in March of 1985, the parties deposed Andrew Kubiak, who was Fleet's Vice President of Operations from 1978 until 1982. Kubiak's responsibilities included representing Fleet in the brokers' grievance over the increased releasing charges. Kubiak testified that during the course of this grievance, he was informed by Richard Kuney, who was then Vice President of Finance for Fleet,
The Union considered Kubiak's testimony to be new evidence that cast doubt on the validity of the Pontiac Agreement. During the March, 1985, Central-Southern Committee meeting in Scottsdale, Arizona, Business Agent Williams and then Local 614 President John Walker met to discuss the matter with Walter Shea, an official of the International Brotherhood of Teamsters. According to Williams' affidavit, the discussions concerned only procedural questions, namely whether a new grievance should be filed or the original grievance reopened and with which Committee to file it. He claims that the parties never discussed the merits of the original releasing charge grievance with Shea.
Williams subsequently filed a grievance on April 30, 1985, requesting that the Pontiac Agreement be set aside on the following grounds:
The 1985 grievance requested that the brokers' original grievance be upheld on the merits and that the brokers be granted back pay.
The grievance was placed on the agenda for the Central-Southern Committee for November of 1985, at San Antonio, Texas. Prior to the hearing, Apperson wrote a letter to the Committee urging that it decline jurisdiction over the grievance and permit the merits to be decided in the instant litigation. Local 614 President Daniels responded by letter in which he noted that the Committee had expressly retained jurisdiction over this case in its prior decisions,
When the grievance came up for hearing, Williams presented the Union's case. Williams read the two letters from Apperson and Daniels to the Committee; he read excerpts of the Kubiak deposition; he presented a history of the increased releasing charge; and he argued for back pay for the brokers' portion of the unjustified charges, although the amount of money owed to the brokers was not specified. Williams claims that he also argued that Fleet and FCDS were essentially the same entity, but Apperson asserts that Williams made no such argument.
Apperson was permitted to address the Committee. He again urged that the grievance should not be heard and that the merits should be determined in this lawsuit.
Ralph Thompson, appearing for Fleet, argued that the releasing charge was received by FCDS not Fleet, that the two were separate entities, and that it is customary in the industry for two related corporations to handle separately the releasing and delivery functions. Fleet also claims that Thompson alternatively argued that the grievance was settled, that the settlement was upheld by the Committee in February of 1982, and therefore, that the Committee should not reopen the grievance on the merits. Apperson asserts, on the other hand, that Thompson stated, "It's this panel's responsibility to put this case back on the docket." The Central-Southern Committee deadlocked, and the case was accordingly referred to the National Joint Arbitration Committee meeting at Chicago, Illinois, in February of 1986.
The employer-side co-chair of the National Committee was Ian Hunter, who is an attorney for Fleet. Since the Committee members must be unrelated to the parties to the grievance, Hunter stepped aside when the brokers' grievance came up and, pursuant to Committee Rule, he appointed Robert Parr, his former law partner,
The parties' presentations to the National Committee lasted about two and one-half hours and largely mirrored their prior arguments before the Central-Southern Committee. Apperson addressed the tribunal by way of a prepared statement, dated the day before the hearing, in which he stated:
Apperson's demands went unheeded, and the National Committee took the grievance for decision.
The National Committee's written decision was handed down in June of 1986. The Committee concluded that "Fleet Carrier Dealers Service, Inc. and Fleet Carrier Corporation are separate employers," and that "[i]t is not uncommon in the industry for the releasing work to be performed by a separate company, some owned by the same holding company and others owned independently." The Committee went on to hold:
Armed with this adjudication on the merits of the brokers' original grievance, Fleet, FCDS and the Union returned to federal court and moved the district court for summary judgment based on this "final and binding" decision. Plaintiffs opposed the motion contending that the National Committee's Decision was tainted by the Union's breach of its duty of fair representation, by Fleet's "repudiation" of the grievance procedure, and by the evident partiality of Committee members Parr, Shea, and Charles Thompson. The district court concluded, however, that the National Committee's Decision had resolved the contractual dispute underlying the brokers' grievance and the lawsuit, and that no genuine issue of material fact existed to support Plaintiffs' arguments that the Committee's Decision should be vacated. The court accordingly granted Defendants' motions for summary judgment. Plaintiffs moved the court to reconsider, which was denied, and this timely appeal ensued.
II. The Antitrust Count
We first address Plaintiffs' contention that the district court erroneously granted the motion to dismiss their antitrust claim against Fleet and FCDS. Although the precise theory of the antitrust claim is not clear, we assume for the purposes of discussion that Fleet's conduct might have violated the antitrust laws if Fleet somehow parlayed the alleged contract breach into a mechanism to destroy competition in the new vehicle haulaway market. Cf. Associated General Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 528 & n. 17, 103 S.Ct. 897, 903 & n. 17, 74 L.Ed.2d 723 (1983). Even given this dubious assumption, however, we agree with the district court that Plaintiffs do not have standing under the antitrust laws to challenge the violation.
In determining whether any particular plaintiff has the requisite "antitrust standing," this court has interpreted the relevant Supreme Court opinions to mandate inquiry into the following factors:
Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 210 (6th Cir.1989); Province v. Cleveland Press Publishing Co., 787 F.2d 1047, 1050-51 (6th Cir.1986); Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290, 293-94 (6th Cir.1983); Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1085 (6th Cir.1983); see Associated General Contractors, 459 U.S. at 538-46, 103 S.Ct. at 908-13; Blue Shield of Virginia v. McCready, 457 U.S. 465, 472-84, 102 S.Ct. 2540, 2544-51, 73 L.Ed.2d 149 (1982).
Plaintiffs' argument in favor of finding antitrust standing hinges on their "status in the market." Although they are not consumers or competitors of Fleet, Plaintiffs nonetheless assert that they are market "participants" whose injuries are "inextricably intertwined" with the antitrust violation since they have been "manipulated or utilized by [Defendants] as a fulcrum, conduit, or market force to injure competitors." See Fallis, 866 F.2d at 211; Province, 787 F.2d at 1052; Southaven, 715 F.2d at 1086. We have noted, however, that status as the economic fulcrum does
The essential flaw in Plaintiffs' argument, in our view, is that their alleged injuries are in the "nature" of contract damages, not those arising from an antitrust violation. The theory underlying this antitrust complaint is premised entirely on a showing that Fleet breached its Contract with the brokers, thus causing the brokers' alleged losses, which appears to be a classic breach of contract action. Indeed, Plaintiffs assert that their damages can be ascertained "to the penny" by computing the amount they would have received if Fleet had not breached the Contract. Computation of the losses that the brokers might have incurred as a result of the antitrust violation, however, would be a more complex task. If, as Plaintiffs allege, Fleet was somehow able to translate the breach into an unfair competitive advantage over other carriers, Plaintiffs inevitably would have economically benefitted: Fleet would command more business from GM, which would mean that more vehicles would be transported more miles by the brokers, thus resulting in more income. Plaintiffs' theory of damages, however, ignores this potential windfall from Fleet's alleged antitrust activity, clearly showing that their real complaint is with Fleet's breach.
III. The Labor Count
Plaintiffs' more substantial complaint, therefore, was brought under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982), contending that Fleet breached its contract with the brokers by not sharing with them the unjustified portions of the increased releasing charges, and that the Union breached its duty of fair representation to the brokers in handling their grievance. The district court dismissed this "hybrid" action on summary judgment upon the authority of the "final and binding" Decision of the National Joint Arbitration Committee. Plaintiffs contend on appeal, as they did before the district court, that the National Committee Decision should be ignored because it is tainted by the Union's breach of its duty to Plaintiffs, Fleet's "repudiation" of the grievance procedure, and the evident partiality of the National Committee.
Our national labor policy clearly favors resolution of labor contract disputes by private mechanism: "Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an
The federal courts do have the authority, however, to vacate an arbitration award in certain situations that "seriously undermine the integrity of the arbitral process...." Hines, 424 U.S. at 567, 96 S.Ct. at 1057. In the most familiar scenario, an employee may successfully challenge an adverse arbitration decision that is tainted by the union's breach of its duty of fair representation. See id. at 568, 570-71, 96 S.Ct. at 1058-60; Vaca v. Sipes, 386 U.S. 171, 187, 193, 87 S.Ct. 903, 915, 918, 17 L.Ed.2d 842 (1967); Wood, 807 F.2d at 500; Ruzicka v. General Motors Corp., 649 F.2d 1207, 1212-13 (6th Cir.1981), cert. denied, 464 U.S. 982, 104 S.Ct. 424, 78 L.Ed.2d 359 (1983). Similarly, an arbitration award may be overturned if the decision was rendered by an arbitration panel with "demonstrated bias," Morris v. Werner-Continental, Inc., 466 F.2d 1185, 1190 (6th Cir.1972), cert. denied, 411 U.S. 965, 93 S.Ct. 2144, 36 L.Ed.2d 685 (1973); see Early v. Eastern Transfer, 699 F.2d 552, 558 (1st Cir.), cert. denied, 464 U.S. 824, 104 S.Ct. 93, 78 L.Ed.2d 100 (1983), or "evident partiality," 9 U.S.C. § 10(b) (1982)
Since the district court dismissed the labor count on summary judgment, the principles of Rule 56, Fed.R.Civ.P., are also
(emphasis added). When confronted by a properly supported motion under Rule 56(c), the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-26, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52, 256-57, 106 S.Ct. 2505, 2509-12, 2514-15, 91 L.Ed.2d 202 (1986). For a dispute to be "genuine," there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249, 106 S.Ct. at 2510. The nonmoving party, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations omitted). "On summary judgment," moreover, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Thus, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510.
The district court applied these familiar standards to the record in this case and found no reason to vacate the National Committee Decision. The court concluded that the evidence presented by Plaintiffs failed to establish a genuine issue concerning the validity of the arbitration decision. We agree with the district court that Plaintiffs failed to establish "specific facts" to support their theories.
A. Fleet's "Repudiation"
Plaintiffs initially assert that the National Committee Decision should be set aside due to Fleet's "repudiation" of the grievance procedure. Although Plaintiffs attempt to bolster their argument by reference to Fleet's alleged breach of the Contract and the history of the grievance until settled in the Pontiac Agreement,
Plaintiffs claim that the participation of Fleet's lawyer at this stage of the proceedings effectively "repudiated" the grievance mechanism. Although this argument does not fit within the "repudiation" framework used by the courts, see Vaca, 386 U.S. at 185, 87 S.Ct. at 914; Drake Bakeries v. Local 50, American Bakery Workers Int'l, 370 U.S. 254, 263, 82 S.Ct. 1346, 1352, 8 L.Ed.2d 474 (1962); Garcia v. Eidal Int'l Corp., 808 F.2d 717, 722 (10th Cir.1986) (repudiation is "refusal to abide by contractually established grievance and arbitration machinery"), cert. denied, 484 U.S. 827, 108 S.Ct. 94, 98 L.Ed.2d 55 (1987), we understand Plaintiffs' contention in a more general sense: that Hunter's participation in the National Committee proceeding rendered the arbitration process substantially unavailable to the brokers. Plaintiffs contend that once Hunter determined he was unable to sit on the National Committee, he was thereby disabled from performing any arbitral function, including naming his replacement. We agree with the district court, however, that the method of choosing a replacement is a procedural matter best left for the arbitrators themselves to decide. See John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557-59, 84 S.Ct. 909, 918-19, 11 L.Ed.2d 898 (1964). This is particularly true, in our view, when the challenged procedure is mandated by the agreed upon Rules governing the grievance procedure.
B. Union's Breach of its Duty of Fair Representation
Plaintiffs alternatively contend that the Union breached its duty to fairly represent the brokers in prosecuting the April, 1985, grievance that resulted in the National Committee Decision. They essentially argue that the Union brought the 1985 grievance solely for the purpose of achieving an adverse decision that would defeat this lawsuit. In support Plaintiffs challenge the timing of that filing, the grounds upon which the request to reopen the original grievance was based, and the Union's performance in presenting its case to the National Committee.
Under the duty of fair representation doctrine, the union's performance is "subject always to complete good faith and honesty of purpose in the exercise of its discretion." Hines, 424 U.S. at 564, 96 S.Ct. at 1057 (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953)). The union can breach this duty if its handling of an employee grievance is arbitrary, discriminatory, perfunctory, or in bad faith. See id. 424 U.S. at 570, 96 S.Ct. at 1059; Vaca, 386 U.S. at 190-91, 87 S.Ct. at 916-17; Early, 699 F.2d at 555; Ruzicka, 649 F.2d at 1213. In order to justify vacating an arbitration award, however, "the breach of duty by the Union must have tainted the arbitrator's decision. The breach must have contributed to the arbitrator's making an erroneous decision." Wood, 807 F.2d at 500. With these principles in mind, we now address Plaintiffs' contentions.
Plaintiffs initially argue that because the Union's request to reopen the brokers' grievance came during the pendency
The 1985 grievance cited two reasons, based on the Kubiak deposition, that the Pontiac Agreement should be set aside and the original grievance decided on the merits: first, because Fleet misrepresented its financial condition in negotiations, specifically concerning its inability to increase the brokers' pay without a tariff increase; and second, because Fleet breached the settlement by delaying the rate increase for over four months.
We conclude, however, that Plaintiffs' assault on the substance of the new grievance fails to raise a genuine issue about whether the Union was justified in seeking to reopen the releasing charge grievance. Plaintiffs' objection concerning the Union's knowledge of the four month delay fails to address the alternative ground stated by the Union to support reopening the original grievance
Plaintiffs next claim that the Union's representation of the brokers throughout the proceedings was a breach of its duty of fair representation. Plaintiffs particularly cite as evidence of the breach: the Union's failure to argue before the National Committee that FCDS was merely the alter ego of Fleet; the contents of the letter from Local 614 President Daniels; and the Union's
Plaintiffs assert that Williams' failure to address the relationship between Fleet and FCDS requires that the resulting National Committee Decision be invalidated. The Union claims that Williams did in fact argue that Fleet and FCDS were the same entity. Even if the dispute over the substance of Williams' presentation created a genuine issue whether his performance was arbitrary or in bad faith, however, the dispute did not preclude the entry of summary judgment, in our view, because Plaintiffs have failed to indicate how the asserted deficiency "tainted" the arbitration Decision.
Plaintiffs have not shown how additional arguments by Williams on the relationship between Fleet and FCDS would have changed the National Committee's Decision. The Decision reveals that the Committee was well aware that the corporate relationship was a central factual question in the grievance, but the Committee held that it was not controlling; the Committee decided instead that an industry custom permitting related companies to handle separately the releasing and delivery functions would prevail. Under these circumstances, we cannot say that the alleged deficiency in Williams' argumentation "contributed to the arbitrator's making an erroneous decision," Wood, 807 F.2d at 500; cf. Hines v. Local Union No. 377, 506 F.2d 1153, 1156-57 (6th Cir.1974) (union's failure to investigate and present facts to arbitrators tainted decision), rev'd in part on other grounds sub nom. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Accordingly, summary judgment could not be defeated on this ground.
Plaintiffs also make two objections to Williams' reading of the letter sent by Local 614 President Daniels to the Committee, which was in response to Apperson's letter requesting that the Committee not hear the grievance. First, they argue that the letter undermined the grievance by deriding this lawsuit as an attempt by Apperson to enforce "his own interpretation of Art. 62, Sec. 4 of our contract" (emphasis in original), which was the same interpretation that the Union was asserting in the 1985 grievance. We believe, however, that this lone statement does not seriously call into question the quality of the Union's representation. In the language immediately following the above quote, Daniels said that the Contract
(emphasis in original). Daniels' letter, therefore, cannot be fairly read to dispute the Union's position in the grievance, but is more reasonably understood as rebuking Apperson's contention that the merits
The other aspect of the Daniels' letter that Plaintiffs find objectionable is its gratuitous reference to the Teamsters for a Democratic Union, a dissident group made up of Teamster members seeking changes in Union policies. Daniels' letter stated that his copy of Apperson's letter
Even if this vague reference to TDU can be considered improper, however, we do not believe that it is alone cause to invalidate the grievance process. Rather, the TDU reference would be a ground for vacating the National Committee Decision only if it can be shown to have resulted in the arbitrators deciding the case on a basis other than the merits. Thus, as with Plaintiffs' objection to Hunter's appointment of Parr as employer-side co-chair, this question is more properly considered under Plaintiffs' claims that the National Committee was biased, which we now address.
C. "Evident Partiality" of the National Committee
Plaintiffs argue that the National Committee's Decision should be invalidated due to the "evident partiality" of Committee members Thompson, Shea, and Parr. This court has indicated that an arbitration decision could be vacated if the arbitrators had a "demonstrated bias," although we have not attempted to formulate a standard to decide such challenges. See Morris v. Werner-Continental, Inc., 466 F.2d 1185, 1190 (6th Cir.1972), cert. denied, 411 U.S. 965, 93 S.Ct. 2144, 36 L.Ed.2d 685 (1973). The district court therefore looked to the Arbitration Act for guidance, see supra note 9, and adopted the provision permitting an arbitration award to be vacated for "evident partiality" of the arbitrators. 9 U.S.C. § 10(b); cf. General Telephone Co. v. Communication Workers of America, 648 F.2d 452 (6th Cir.1981) (adopting 9 U.S.C. § 10 as standard to review arbitration awards in labor cases). Moreover, the district court adopted the standard announced by the Second Circuit in Morelite Const. Corp. v. New York City District Council Carpenters Benefit Fund, 748 F.2d 79 (2d Cir.1984), in which the court stated that evident partiality "will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration." Id. at 84; accord Toyota of Berkeley v. Automobile Salesmen's Union, Local 1095, 834 F.2d 751, 755-56 (9th Cir.1987), cert. denied, 486 U.S. 1043, 108 S.Ct. 2036, 100 L.Ed.2d 620 (1988). In arriving at this conclusion, the Second Circuit expressly rejected the lesser standard of an "appearance of bias" and the more exacting standard of "proof of actual bias" to justify invalidating the arbitrators' award.
We further agree with the district court's holding that, as a general rule, a
In light of these principles, we believe that the district court was clearly correct in refusing to consider Plaintiffs' objections to the impartiality of Charles Thompson, who was a union-side member of the National Committee. Plaintiffs contend that Thompson was biased due to his prior participation in the Central-Southern Committee that heard the renewed grievance in November of 1985, and due to his alleged hostility to the original grievance which he exhibited in Colorado in August, 1981. Apperson was present during both meetings, however, so his failure to object specifically to Thompson at the National Committee hearing on these grounds cannot be excused.
Plaintiffs' current objections to Walter Shea, who was the union-side co-chair of the Committee, suffer for similar reasons. Plaintiffs claim that Shea's bias can be seen by his participation in the March, 1985, meeting with then Local 614 President Walker and Business Agent Williams at which the new grievance was discussed, and by his circulation of a Washington Times newspaper article in December, 1985, to members of the National Automobile Transporters Union Negotiating Committee, which was captioned "TDU Exposed by National Newspaper" and went on to note that the article "exposes" Wall Street and Marxist influences on the TDU. Both of these events occurred well before the February, 1986, National Committee hearing, but Apperson made no objection to Shea on these grounds. Plaintiffs' ability to challenge Shea's partiality in federal court, therefore, depends on Apperson's knowledge of these facts underlying the allegation of bias. The record, however, is devoid of any indication when Apperson learned of these events. Since Plaintiffs had the burden to set forth "specific facts" to defeat summary judgment in this case, see Celotex, 477 U.S. at 322-26, 106 S.Ct. at 2552-54; Fed.R.Civ.P. 56(e), their failure to assert facts from which we could find that Apperson did not learn of Shea's alleged bias until after the hearing supports the district court's conclusion that Plaintiffs waived their objections to Shea.
Plaintiffs lastly object to Robert Parr, who Hunter named as employer-side co-chair for the grievance. From February of 1982, when this lawsuit was instituted, until mid-1983, when Hunter and A. Read Cone (Fleet's attorney in this suit) left the "Matheson Firm," Parr was a partner in the firm with Hunter and Cone. Plaintiffs claim that this prior relationship disabled Parr from sitting on the Committee reviewing the instant grievance. The district court concluded that Plaintiffs failed to raise this objection before the National Committee, thereby waiving it, and alternatively
We believe that the district court viewed Apperson's objection before the National Committee too narrowly. He specifically stated that "[t]he company co-chair is an attorney for Fleet," in his statement to the Committee. Although this statement was drafted the day before the hearing, and thus originally referred to Hunter, Apperson stated in his affidavit that he saw no reason to change it when Parr was appointed because, as far as he knew, Parr was also an attorney for Fleet due to his association with Hunter and Cone as a named partner in the Matheson Firm. At the time of the hearing, the attorneys were no longer partners, but Apperson has affirmatively demonstrated that he was unaware of this formality. Under these circumstances, we believe that Apperson's objection, which presented the allegations of bias to the extent that he knew them, was sufficient to save the issue of Parr's partiality. This disagreement with the district court is of little consequence, however, since we agree with the court's alternative holding that specific facts of bias were not shown.
Parr's prior relationship with Hunter and Cone does not alone suffice to vacate the National Committee's Decision. We recognize that Parr's participation on the Committee deciding a grievance in which his former law partners were involved during their partnership would raise an appearance of impropriety requiring a federal judge's recusal from a case. See 28 U.S.C.A. § 455(a) & (b)(2) (Supp.1988). As we held above, however, more than the "appearance" of bias is required to disqualify an arbitrator. See Morelite, 748 F.2d at 84; cf. Commonwealth Coatings, 393 U.S. at 150, 89 S.Ct. at 340 (White, J., concurring) (arbitrators not held to same standard as Article III judges). In this case Plaintiffs have failed to show facts supporting their contention that a reasonable person would find Parr partial to Fleet. Specifically, there is no evidence in this record that Parr had any personal interest in or knowledge of the brokers' original grievance or this lawsuit prior to his appointment as co-chair. Plaintiffs do not deny that Parr never worked on this case while Hunter and Cone were his partners. In addition, the partnership in question was terminated over two and one-half years before the National Committee Decision. In that interim, the new "Matheson Firm," with which Parr was still a named partner, billed Fleet for exactly one hour of work for $100 concerning the retrieval of documents in the firm's possession; again, however, this work was not performed by Parr. On this record, therefore, we must conclude that Parr did not work on this case before Hunter and Cone left the firm, that he did not work on any Fleet matter after they left the firm over 2 1/2 years before the hearing, that Parr had no personal knowledge of this dispute prior to the Committee hearing, and that he had no financial interest in the grievance or this litigation. Indeed, Plaintiffs have adduced no evidence suggesting that Parr has ever personally performed legal services for Fleet. Under these circumstances, we do not believe that Parr's prior association with Hunter and Cone necessarily rendered him unable to arbitrate the instant dispute. See Sanford Home for Adults v. International Federation of Health Professionals, Local 6, 665 F.Supp. 312 (S.D.N.Y.1987) (rejecting argument that business relationship between arbitrator and party's counsel required that arbitration award be vacated)
We conclude that Plaintiffs have failed to set forth the specific facts sufficient to raise a genuine issue on any of their contentions to set aside the National Committee Decision.
For the foregoing reasons, the district court's grant of summary judgment on the labor count and its dismissal of the antitrust claim are AFFIRMED.
MERRITT, Circuit Judge, concurring in part and dissenting in part.
Although I agree with the majority that Apperson lacked standing to assert his antitrust claim, I believe that the majority, like the District Court, has decided disputed issues of fact in its approval of the grant of summary judgment with regard to his Labor claim. Consequently, I dissent from the majority's conclusion that Apperson failed to adequately demonstrate disputed issues of fact concerning the claim that the arbitration decision should be set aside on grounds of bias.
Summary judgment is appropriate only when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In this case, however, as the majority opinion itself demonstrates, Apperson advanced facts relevant to the existence of bias in the composition of the National Committee and to the existence of bad faith on the part of the Union. The trial judge was in fact required to weigh the evidence in order to grant summary judgment on the question of Parr's bias.
The error of the court below is even more evident in its ruling on the breach of the duty of fair representation claim. Relying on defendants' affidavits and ignoring plaintiffs' contradictory affidavits, the District Court found that the Union had raised before the National Committee the issue whether Fleet Carrier and FCDS were separate companies. It is strange immediately thereafter to read in the District Court's order, "On the basis of these facts, the Court concludes that plaintiffs' allegations have not created a genuine issue of material fact as to whether [the
These disputed issues of fact preclude summary judgment and mandate trial on the merits. I would reverse the grant of summary judgment with regard to the second set of claims and remand for trial.
665 F.Supp. at 320. For essentially the same reason discussed in the text, consideration of these factors leads to the conclusion that Parr was not evidently partial.
Moreover, the district court's written opinion acknowledged that it may not have had the benefit of full discovery and stated that the labor count would be reinstated "should it be warranted pursuant to discovery." In response to Plaintiffs' claim that they were "unclear" how to proceed, the court's decision denying their motion to reconsider clarified that reinstatement might be appropriate if discovery that had not been filed before the entry of judgment showed the existence of a genuine issue of material fact. Plaintiffs declined to take advantage of this invitation, however, though they had accumulated discovery that had not yet been filed with the court. (This fact is highlighted by Plaintiffs' reliance on deposition testimony before this court that was never filed with the district court). In addition, Plaintiffs never brought to the court's attention the issues that they believed needed further investigation or what specific discovery they wished to undertake. Cf. Fed.R.Civ.P. 56(f); Willmar Poultry Co. v. Morton-Norwich Products, Inc., 520 F.2d 289, 297 (8th Cir.1975), cert. denied, 424 U.S. 915, 96 S.Ct. 1116, 47 L.Ed.2d 320 (1976). Under these circumstances, we find no abuse of discretion in the court's entry of judgment.