# United Steelworkers of America, Afl-Cio-Clc United Steelworkers of America, Local Union No. 1165 v. Lukens Steel Company, Division of Lukens, Inc

> Court of Appeals for the Third Circuit · July 31, 1992 · 969 F.2d 1468

URL: https://www.frixlaw.com/law-library/cases/9483165

## Case

- **Full name:** UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC United Steelworkers of America, Local Union No. 1165, Appellants, v. LUKENS STEEL COMPANY, DIVISION OF LUKENS, INC.
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** July 31, 1992
- **Citations:** 969 F.2d 1468; 140 L.R.R.M. (BNA) 2757; 1992 U.S. App. LEXIS 17643
- **Precedential status:** Published
- **Opinion:** Dissent by McCUNE
- **Judges:** Becker, Roth, McCune
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9483165

## How later opinions describe it (automated extraction)

- holding that where there is a presumption that a matter must be submitted to arbitration, to overcome that presumption, the employer must establish that an agreement expressly excludes the dispute from arbitration or that there is “strong and forceful” evidence of an intention…
- holding that a presumption of arbitrability remained in a last ■chance agreement because the settlement agreement “fail[ed] to specify who is to determine whether a violation has occurred”
- holding last chance agreement did not preclude arbitration of alleged violation of the agreement

## Opinion text

McCUNE, Senior District Judge,
dissenting.
I respectfully dissent. The lower court held that the Last Chance Agreements were clear and unambiguous and waived arbitration. I agree.
These were settlement agreements negotiated by the Union acting on behalf of the three employees who faced discharge for violation of Lukens’ drug control rules. They could have been discharged and the discharges could have been arbitrated in due course but they elected to enter into the Last Chance Agreements by which they were allowed to continue to work. The plain meaning of the Agreements was that the men would submit to drug testing and if they had drugs in their systems again, they could plead their cases to the Disciplinary Committee but the Disciplinary Committee had final jurisdiction to dispose of their pleas and there would be no arbitra *1479 tion. The decision of the Committee would be final.
No other reading of the simple language makes any sense. If these agreements did not mean that the men had a last chance to keep their jobs, why were the agreements captioned “Last Chance Agreements”?
If the Disciplinary Committee could not decide the merits of their pleas, what was its purpose? If it could not decide that the men had violated the agreements, it had no purpose because it had nothing to decide.
The men had ample reason to settle. They faced discharge and arbitration and in view of their records, they were not at all sure that an arbitrator would reinstate them. They wanted to save their jobs. Lukens also had reason to settle. The arbitrator might reinstate the men. The resulting settlement agreements were not ambiguous. The Disciplinary Committee had the final right of disposition. It would have made no sense for Lukens to arbitrate a new violation. It could have arbitrated the violations pending when the Last Chance Agreements were negotiated. Certainly when people settle a dispute they intend to end it and the men and their Union knew the meaning of the Agreements when they provided that the disposition of the Disciplinary Committee would be final.
While the federal law favors arbitration it is not, as the majority noted, arbitration per se that the law favors but the means of dispute resolution selected by the parties. United Mine Workers v. Barnes and Tucker Co., 561 F.2d 1093 (3d Cir.1977). Barnes and Tucker Co. illustrated the type of agreement too uncertain and too complicated to constitute a waiver of arbitration but there is nothing uncertain or complicated about the Last Chance Agreements considered here.
The case of Stewart v. United States Postal Service, 926 F.2d 1146 (Fed.Cir.1991) cited by the majority can be distinguished. The last chance agreement in that case provided for no disciplinary committee to which Stewart could direct his plea. The Postal Service had agreed to hold a dismissal in abeyance for one year and Stewart had agreed to incur no more than eight (8) unscheduled absences during the abeyance period. The agreement provided that “it is agreed that violation of this stipulation will result in the immediate reimposition of the removal without further Right of Appeal in any Form.” When Stewart underwent an eye examination not intended to require time away from work, it was found that he required a lengthy examination and the immediate attention of a retinal specialist. He missed work. When he reported for the examination by the specialist the next day, he missed work again. In spite of notification by the physician of the extreme emergency involved, the Postal Service removed Stewart forthwith. The Merit System Protection Board dismissed his appeal because of the waiver of his right to appeal. The court was faced with an obvious injustice and there was no agency to which the dispute could be referred. But here the Last Chance Agreements gave the opportunity to the men to plead their cases to the Disciplinary Committee. In each case the pleas were made and in each case hearings were held. It can hardly be argued, in my view, that the Stewart case is authority for the proposition that the Union did not waive arbitration when here the disposition of the Disciplinary Committee was to be final.
Accordingly, I do not agree that an arbitrator should decide whether the Last Chance Agreements were violated and that only the penalty for the violations has been agreed upon. If the arbitrator is to decide whether the violations have occurred, he apparently will be called upon to decide only whether marijuana can be found in the system because of a diet of seeds and herbs and whether it may be present because of attendance at a party where marijuana was smoked and, in the case of Mr. Tinsley, whether Tinsley was too ill to give a urine sample, because the method of testing and the results of the testing have apparently not been disputed.
I would hold that arbitration has been waived.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9483165. Public record. Not legal advice.