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Case 2:09-cv-07191-MLCF-KWR Document 1 Filed 11/03/2009 Page 1 of 8

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF LOUISIANA

UNITED STEELWORKERS AFL-CIO CIVIL ACTION NO.


and UNITED STEELWORKERS
AFL-CIO LOCAL 8363

VERSUS SECTION JUDGE

MURPHY OIL USA, INC. MAGISTRATE JUDGE

COMPLAINT TO VACATE ARBITRATION AWARD

The Complaint of United Steelworkers AFL-CIO and United Steelworkers AFL-CIO

Local 8363 (“Union”) respectfully avers that:

JURISDICTION

1. This is an action to vacate a labor arbitration award. Jurisdiction is conferred upon this

Honorable Court by Section 301 of the Labor-Management Relations Act, 29 U.S.C. §

185 (“LMRA”).

PARTIES

2. Murphy is a corporation authorized to do business within the territorial jurisdiction of this

Court. It is an “employer” within the meaning of LMRA.

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3. The Union is an unincorporated labor organization domiciled in St. Bernard Parish,

within the territorial jurisdiction of this Court. It represents bargaining-unit employees

by Murphy at its refinery in Meraux, Louisiana.

FACTS

4. Murphy and the Union (collectively “the Parties”) are signatories to written collective

bargaining agreements, which in this case was an agreement effective March 1, 2002

through March 1, 2006 (“CBA”).

5. On or about September 28, 2005, the Parties entered into a Facility Restoration

Agreement (“FRA”) in the wake of Hurricane Katrina’s devastating effect upon the St.

Bernard Parish refinery operated by Murphy. Murphy and the Union jointly negotiated

the FRA, which contractually superseded the CBA except for the limited provisions that

were expressly incorporated into the FRA—one which was the CBA’s dispute-resolution

provisions.

6. The Parties’ Agreement provides for resolution of all disputes and grievances through a

grievance/arbitration procedure. The procedure’s jurisdictional provisions expressly

prohibit an arbitrator from adding to, detracting from, or altering in any way the

provisions of this agreement.

7. On or about November 4, 2005, the Union filed a grievance on behalf of five of its

members. After following the CBA’s grievance/arbitration procedure, the Parties

selected Arbitrator Leonard C. Bajork, through the Federal Mediation & Conciliation

Service (“FMCS”).

8. After agreeing upon a date on which the arbitration hearing was to be held, counsel for

Murphy fell ill. The arbitration hearing was cancelled and rescheduled for that reason.

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9. On or about the new date for the arbitration hearing, one of the Union’s principal

witnesses/legal representatives also suffered heath problems that prevented his

availability and required the new hearing to be cancelled.

10. By the time news of this reached Arbitrator Bajork, he was already in route to New

Orleans or had already arrived. He thus contacted the Parties to suggest that a conference

be held among the Parties

11. That conference was held in the law offices of Murphy’s labor counsel on or about March

25, 2008.

12. The Parties timely submitted its post-hearing briefs to Arbitrator Bajork.

13. On June 12, 2008, Arbitrator Bajork issued a written award sustaining the Union’s

grievance. Arbitrator Bajork decided that Murphy violated Paragraphs 2, 4, and 7 of the

FRA.

14. On June 20, 2008, Murphy wrote to Arbitrator Bajork requesting that he withdraw his

award and set a conference call between the parties for the purpose of establishing a

hearing date.

15. On June 23, 2008, the Arbitrator arranged for a conference call with the parties. After the

conclusion of the conference call, the Arbitrator instructed the parties to each brief the

reasons for and against reopening the case’s record with a subsequent hearing.

16. On June 28, 2009, the briefs were timely postmarked.

17. On July 9, 2008, after fully considering the briefs, the Arbitrator decided to deny

Murphy’s request to re-open the record.

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18. On July 10, 2008, Murphy brought a complaint to set aside the Arbitrator’s decision,

which was docketed on July 10, 2008, Case No. 2:08cv03899, before Judge Mary Ann

Vial Lemmon.

19. On July 23, 2008, the Union brought a counterclaim to enforce the decision of the

Arbitrator.

20. On November 12, 2008, the Union filed a Motion for Summary Judgment to Enforce the

Neutral Arbitrator’s Award.

21. On December 2, 2008, Murphy filed a Memorandum in Opposition to the Union’s

Motion for Summary Judgment to Enforce the Neutral Arbitrator’s Award. Murphy also

filed a Motion for Summary Judgment to Vacate the Arbitrator’s Award.

22. On December 17, 2008, the Union filed a Memorandum in Opposition to Murphy’s

Motion for Summary Judgment to Vacate the Award.

23. On March 4, 2009, the Court denied the Union’s Motion for Summary Judgment and

granted Murphy’s Motion for Summary Judgment, remanding the matter to the arbitrator

for the purpose of conducting a hearing.

24. On March 6, 2009, Murphy filed a Motion to Alter Judgment, seeking removal of

arbitrator Bajork.

25. On March 24, 2009, the Union filed a Memorandum in Opposition to Murphy’s Motion

to Alter Judgment.

26. On April 2, 2009, the Court denied Murphy’s Motion to Alter Judgment.

27. In compliance with the March 4, 2009 court order, the parties met for a second arbitration

hearing on June 16, 2009. The parties post-hearing briefs were due July 29, 2009.

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28. At the close of the June 16, 2009 arbitration hearing in this matter, the Arbitrator

requested to speak with the Union’s attorney, Louis Robein, concerning a matter

“unrelated” to the case at hand.

29. Arbitrator Bajork shared with Mr. Robein an arbitration experience he had with another

USW Local in Texas, which resulted in him filing and unsuccessfully prosecuting a

defamation lawsuit against USW counsel in that matter.

30. Bajork stated that there remains a claim for a $675 cancellation fee that he was seeking

from the Texas USW Local Union. Bajork asked Mr. Robein to pass along the message

to the USW that he was “going after” the Local for the claimed charges and desired the

USW’s assistance in recovering the disputed charge. He coupled this request for

assistance with a remark that he was unsure how he would decide the pending case before

him.

31. On June 23, 2009, Robein, on behalf of the Union, wrote to Bajork and requested his

recusal from the case. A copy of that letter is attached hereto as Exhibit “A.”

32. On June 24, 2009, Bajork, via e-mail, denied Mr. Robein’s request for recusal.

33. Murphy did not oppose the motion to recuse.

34. On July 23, 2009, after Bajork refused to recuse himself, Union’s counsel contacted the

FMCS for advice on the appropriate FMCS procedure to address this matter.

35. In July 2009, settlement discussions began between the parties.

36. On July 30, 2009, the FMCS informed Mr. Robein that it planned on issuing a complaint

with the its Arbitrator Review Board against Bajork for his actions.

37. On August 3, 2009, Robein, via e-mail, informed Bajork that the parties were discussing

settlement and had agreed to extend the briefing deadline thirty (30) days.

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38. On August 4, 2009, Bajork, via e-mail, informed the Parties that the extension had been

granted. The post-hearing briefs would now be due September 3, 2009.

39. On September 1, 2009, Robein, via e-mail, informed Bajork that the parties had agreed to

extend the briefing deadline for two weeks. Robein also informed Bajork that the Union

reserved all rights pending the motion to recuse.

40. That same day, Bajork directly contacted an Employer representative (not counsel).

Bajork wanted to ascertain the reason for the requested extension. He also attempted to

make ex parte contact with the Union without counsel present.

41. On September 2, 2009, Mr. Robein advised Bajork not to violate ethical standards by

attempting to directly communicate with the clients. Further, Robein informed Bajork

that according to FMCS rules and guidelines he must grant the two-week extension since

both parties requested it and/or consented to same.

42. Mr. Robein copied Employer’s counsel on all of these communications.

43. Later that day, Bajork again made ex parte contact. Specifically, Bajork sent Robein an e-

mail stating that “[w]e have a serious disagreement. I’m not in the business of ‘losing.”’

He further stated, “I suggest you back down in the interest of your client if you know

anything about arbitration procedure.”

44. On September 3, Bajork, via e-mail, denied the parties motion for extension.

45. Due to the Arbitrator’s clear conflict of interest and misbehavior, Union’s counsel did not

submit a brief to the Arbitrator for consideration.

46. On October 2, 2009, Arbitrator Bajork issued a written award denying the Union’s

grievance, reversing his prior decision.

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47. The award that the Arbitrator issued, therefore, runs contrary to both the Parties’ labor

agreement and the applicable substantive law.

48. Thus, the matter before this Court represents an actionable dispute arising under Section

301 of the LMRA. The Arbitrator’s award, inter alia, is a result of misbehavior that

prejudiced the rights of one of the parties. As such, the award is subject to vacatur

pursuant to the terms set forth in the Federal Arbitration Act, 9 U.S.C. § 10.

CLAIMS FOR RELIEF

49. The Union seeks an Order from the court vacating the arbitration award dated October 2,

2009 and remanding the underlying grievance to arbitration before another arbitrator

mutually selected by the Parties through the FMCS arbitration procedure.

WHEREFORE, the Union prays that, after due proceedings are had, this Court will grant

the relief requested herein and for all other relief deemed just and necessary under the

circumstances.

Respectfully submitted,

ROBEIN, URANN, SPENCER,


PICARD & CANGEMI, APLC

s/ Kevin R. Mason
Kevin R. Mason (Bar No. 31394)
Louis L. Robein (Bar No. 11307)
2540 Severn Avenue, Suite 400 (70002)
P. O. Box 6768
Metairie, Louisiana 70009-6768
Telephone: (504) 885-9994
Facsimile: (504) 885-9969
Email: kmason@ruspclaw.com
lrobein@ruspclaw.com

Attorney for Plaintiff

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PLEASE SERVE:

Murphy Oil U.S.A., Inc.


8550 United Plaza Blvd.
Baton Rouge, Louisiana 70809

Murphy Oil U.S.A., Inc.


through its registered agent for process of service
C T Corporation System
5615 Corporate Blvd.
Suite 400B
Baton Rouge, Louisiana 70808

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Case 2:09-cv-07191-MLCF-KWR Document 1-2 Filed 11/03/2009 Page 1 of 2

ROBEIN, URANN,
SPENCER, PICARD & CANGEMI
(A Professional Law Corporation)
2540 SEVERN AVENUE, SUITE 400, METAIRIE, LA 70002
P. O. BOX 6768, METAIRIE, LA 70009-6768
TELEPHONE: (504) 885-9994
FACSIMILE: (504) 885-9969
www.ruspclaw.com

LOUIS L. ROBEIN, JR. OF COUNSEL


ROBERT H. URANN MARY MODENBACH WHITE
JULIE RICHARD-SPENCER
NANCY PICARD
MARIA C. CANGEMI lrobein@ruspclaw.com
CHRISTINA L. CARROLL*
KEVIN R. MASON **
*Also admitted in Mississippi
** Also admitted in Indiana

June 23, 2009

Leonard C. Bajork (via email & UPS overnight delivery)


Arbitrator
10809 Range View Drive
Austin, TX 78730

Re: USW on behalf of USW Local 8363 (Murphy Oil/Facility Restoration Agreement)
FMCS No. 060627-57460-3

Dear Arbitrator Bajork:

I write on behalf of my client seeking your immediate recusal from any further
participation in the above referenced arbitration proceeding and your complete withdrawal as
Arbitrator.

As you are aware, at the close of the June 16, 2009 hearing in this matter you asked that
I speak to you concerning a matter “unrelated” to the case at hand. You initially indicated that
you had wished that USW International Representative Sanders, who had advocated at the first
“hearing” in this case, had attended the June 16 hearing so that you could pass on information
that you intended to address with me. You then proceeded to relate an arbitration experience
you had with another USW Local in Texas, which resulted in your filing and unsuccessfully
prosecuting a defamation lawsuit against USW counsel in that matter. You stated that there
remains a claim for a $675 cancellation fee that you were seeking from the Texas Local. You
asked that I pass along the message to the USW that you were “going after” the Local for the
claimed charges and desired my client’s assistance in recovering the disputed charge.

I have discussed this matter with client. I have no choice but to seek your recusal. The
interjection of this matter minimally raises the appearance of a serious impropriety. My client
can not proceed with this matter given the threat of legal action against it or one of its Locals
and the request for “assistance” from the USW.
Case 2:09-cv-07191-MLCF-KWR Document 1-2 Filed 11/03/2009 Page 2 of 2
Leonard C. Bajork
June 23, 2009
Page 2
_______________

Your legal entanglement with the USW Local in question should have been disclosed at
the outset to both parties to the case at hand. It is a required disclosure under Section 2 of the
Code of Professional Responsibility for Arbitrators of Labor-Management Disputes, Effective
May 2007. As an attorney-arbitrator, you had special ethical obligations to disclose the ongoing
litigation and certainly your stated intent to “go after” the USW affiliate.

This formal demand is being served on Mr. Shuler, counsel for the Employer.

I expect your cooperation in this matter, which would include your notification to the
FMCS of your recusal. Please communicate your response to both counsel. For obvious
reasons, I can not and will not participate in any ex parte discussion with you over any matter
relating to this case.

Very truly yours,

Louis L. Robein

LLR/mw

cc: G. Philip Shuler, Esq. (shuler@chaffe.com)

F:\APPS\WP51\CLIENTS\USW 13-8363\_Murphy (Facility Restoration Agreement)\bajork_recusal.doc