Petition — Coca-Cola Bottling Co. v. Chauffeurs, Local Union No. 878

(* Gprome Court, U.

. FEE ES

t

APR 9 1990 |

) ;

IN THE [“wicHact RODAK, JR. CLERM |:

Supreme Court of the a

United States

October Term, 1979

i ta °9-1581

COCA-COLA BOTTLING COMPANY

Sie RENOIR Fed 6 A padie KNEE N SE PETITIONER

v.

CHAUFFEURS, TEAMSTERS AND HELPERS

LOCAL UNION NO. 878............ RESPONDENTS

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Eighth Circuit

COLEMAN, GANTT, RAMSA¥:& COX

Counsel for Petitioners

P.O. Box 8509

Pine Bluff, Arkansas 71611

By: E. Harley Cox, Jr.

TABLE OF CONTENTS

Page

BS ee l

jurisdiction .......... PN ee ee ee 2

Tn Tae ia 2

SUNN NMI ar ini vies ks ss ee eee vee 3

Reasons for Granting the Writ ..................005 6

I cesT eal are ds wake CG 6 aes « 13

Appendix A — Judgment and Opinion of the

a 14

Appendix B — Opinion of the United States

ESTE GA 27

Appendix C — Opinion of the United States

Court of Appeals Denying a Request

DE nee 42

AUTHORITIES CITED

Cases: Page

Alexander v. Gardner- Denver Co.,

ee ip ty un ee er 10

Mobil Oil Corporation v. N.L.R.B.,

402 F.20 O85 (7th Cir, 1973)... .......9.......5. 12

N.L.R.B. v. Weingarten, Inc.,

a 11

United Steel Workes of America v. Enterprise

Wheel & Car Corporation, 363 U.S. 593 (1960) . 10,11

STATUTES CITED

ee ce. 2

a 4

IN THE

Supreme Court of the

United States

October Term, 1979

COCA-COLA BOTTLING COMPANY

OF ARKANSAS

Ae SOE et Kies se xmacseieenmns PETITIONER

v.

CHAUFFEURS, TEAMSTERS AND HELPERS

LOCAL UNION NO. 878............ RESPONDENTS

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Eighth Circuit

Coca-Cola Bottling Company of Arkansas prays that a

Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Eighth Circuit

entered in the above case on January 18, 1980, petition for

rehearing en banc denied on February 26, 1980.

OPINION BELOW

The judgment and memorandum opinion of the

District Court for the Eastern District of Arkansas granting

plaintiff's motion for summary judgment and dismissing

2

defendant's cross-motion for summary judgment is printed

in Appendix A hereto and is unreported. The opinion of the

Court of Appeals for the Eighth Circuit affirming the

judgment of the District Court is printed in Appendix B

hereto and is not yet reported in the official reports. The

opinion of the Court of Appeals for the Eighth Circuit

denying petitioner's request for rehearing en banc is printed

in Appendix C hereto and is unreported.

JURISDICTION

The judgment of the Court of Appeals was entered on

January 18, 1980, petition for rehearing denied on February

26, 1980. The Court of Appeals stayed its mandate for

thirty (30) days on March 14, 1980.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

QUESTION PRESENTED

Was the decision and award of the arbitrator holding

that the company, under the terms of the collective

bargaining agreement, must afford an employee in private

employment a due process hearing prior to termination of

said employee capricious, arbitrary and without foundation

in fact and in law and was it in excess of the authority of the

arbitrator?

3

STATEMENT OF THE CASE

The petitioner is the Coca-Cola Bottling Company of

Arkansas, (hereinafter referred to as “Company’”). The

respondent is the duly certified representative of an

appropriate bargaining unit of the petitioner, (hereinafter

referred to as “Union”). Ray Lievsay was an employee of the

appellant within the appropriate bargaining unit. Ray

Lievsay was the grievant in this case, (hereinafter referred to

as ‘“Grievant’’).

The Union and Company had a valid collective

bargaining agreement in full force and effect at all times

relevant to this case. The collective bargaining agreement

contains a grievance and arbitration procedure.

On June 9, 1976, the Company discharged the

Grievant for dishonesty. The discharge was pursuant to

Article 7 of the Collective Bargaining Agreement. Article 7

reads in part:

“The employer shall not discharge, suspend or take

other disciplinary action with respect to any employee

without just cause. In disciplinary matters at least one

warning notice of the complaint against the employee

shall be given to the employee in writing either by mail

or in person and a copy will be sent to the Union;

provided, no warning notice need be given to an

employee before discharge if the cause of the discharge

is dishonesty... .”

A grievance was summarily filed and all steps of the

grievance procedure were followed by both parties and the

4

question was timely and properly submitted to the

arbitration procedure contained in the _ collective

bargaining agreement.

On March 8, 1977, the arbitrator, after a hearing,

issued his decision and award. The arbitrator concluded

that “the termination of Lievsay was for just cause —

provided due process was followed in handling the

discharge.” The arbitrator held that the Company had

discharged Grievant without due process and required the

Company to reinstate the Grievant without back pay.

The Company refused to honor the decision and award

of the arbitrator on the good faith belief that the

arbitrator's award and decision did not draw its essence

from the collective bargaining agreement. More

specifically, the Company took the position that the

arbitrator had exceeded his contractual authority by

reading a due process procedural requirement into the

“Discharge and Disciplinary Action” provision of the

collective bargaining agreement.

On April 21, 1977, the: Union filed suit in the United

States District Court, Eastern District of Arkansas, Western

Division, under Section 301 of the Labor Management

Relations Act, 29 U.S.C. § 185, for the purpose of

compelling specific performance to honor the arbitration

award.

On March 4, 1977, the Company filed its answer to the

complaint of the Union denying the allegations and

affirmatively pleading that the arbitrator had exceeded his

5

authority and that his award and decision did not draw its

essence from the contract.

On June 2, 1977, in order to expedite the case as

quickly as possible, counsel for the appellee and the

appellant agreed to file respective motions for summary

judgment and to submit the case to the District Court for

decision on the basis of the respective motions and exhibits

attached thereto.

On February 2, 1979, the District Court issued its final

judgment granting appellee’s | motion for summary

judgment and dismissing appellant’s motion for summary

judgment.

The District Court upheld the arbitrator's award

holding “that the arbitrator's construction of ‘just cause’ was

not an unauthorized modification of the contract but was a

legitimate resolution of contractual ambiguity.”

On appeal, the Court of Appeals affirmed. The Court

held that “just cause may imply procedural as well as

substantive requirements” and that “since a just cause term

is ambiguous as to its procedural implications,

interpretation by an arbitrator is appropriate.”

Judge Henley, dissenting, disagreed with the majority's

conclusion that the arbitrator was free to imply procedural

safeguards to the “just cause” clause of the collective

bargaining agreement. In Judge Henley’s opinion, the

arbitrator was bound by the clear language of the collective

bargaining agreement which specifically excluded from the

6

term “just cause

process prior to termination for particular types of

discharges.”

any requirement of procedural due

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to settle the

important question of whether an arbitrator may read

procedural due process requiremerts into a collective

bargaining agreement that makes no mention of any

procedural prerequisites, where the specific language of the

agreement sets forth express limitations on the arbitrator's

authority to add to the written agreement.

Almost every collective bargaining agreement

negotiated between management and labor includes

provisions governing the discharge and discipline of

employees. A majority of these utilize the specific term “just

cause” as the standard for imposing discipline. These -

written provisions are the basis for the fair and consistent

handling of everyday problems in the labor force and are

among the most important parts of a collective bargaining

agreement. They are essential to the maintenance of a

harmonious and productive work force and are customarily

the result of firm and careful bargaining between the

parties. These provisions are set out in the contract to insure

adequate notice of what is required of both the employer

and the employee in these matters.

Most collective bargaining agreements contain

provisions for arbitration of disputes concerning the

7

discharge or discipline of employees. The parties are free to

assign whatever function they wish to the arbitration

procedure, including limitations on the authority of the

arbitrator to modify, add to or ignore the express terms of

the collective bargaining agreement.

Due to the widespread use of provisions for discharge,

discipline and arbitration identical or very similar to those

found in the case at bar, the decision of the Court of

Appeals upholding the conduct of the arbitrator in this case

has a substantial impact on the present rights of a great

number of parties currently bound by collective bargaining

agreements. The decision lends uncertainty to the meaning

and interpretation of language bargained for, agreed upon

and set out in contracts governing labor and management

relations and threatens the sensitive stability of industrial

labor peace.

In the case at bar the arbitrator found that the

Grievant was guilty of dishonesty. The arbitrator then

found, however, that the Company was required to provide

the Grievant with some form of “industrial due process”

before discharging the employee which the arbitrator did

not define in his opinion.

Article 7 of the collective bargaining agreement

entitled “Discharge or Disciplinary Action” states as follows:

The employer shall not discharge, suspend or take

other disciplinary action with respect to any employee

without just cause. In disciplinary matters at least one

warning notice of the complaint against the employee

8

shall be given to the employee in writing either by mail

or in person and a copy will be sent to the union;

PROVIDED, no warning notice need be given to any

employee before discharge if the cause of the discharge

is dishonesty; physical and/or verbal abuse of a customer;

refusal to carry out job assignments; drinking alcoholic

beverages or being under their influence while on duty

or on employer property; the use of stimulants or

narcotics or being under their influence while on duty

or on employer property; recklessness resulting in

serious accident while on duty or on employer property;

the transportation of unauthorized passengers; the carry-

ing of unauthorized firearms; the failure to report an

accident to the employer and to the police. The first

written. warning notice provided herein shall be

withdrawn from an employee's file after one year

unless during such year the employee shall receive

another written warning for the same reason. A pattern

of warning notices, related or unrelated, and without

limitation in time, shall be just cause for discharge.

All warning notices, discharges, suspensions, or other

disciplinary action must be by proper written notice to

the employee and to the union.”

ARTICLE 9, which is entitled “Arbitration Procedure”

states:

“In rendering a decision, the arbitrator shall be governed

and limited by the express provisions of this agreement,

and the clear intent of the parties as set forth hereinabove.

He shall not sit to dispense his own brand of industrial

justice and he shall have no power to add to, subtract

from, or modify any of the terms and provisions of this

agreement and he shall consider and render decisions

concerning only such issues as are directly raised by the

9

written complaint, which shall not be in any way

changed or amended after it is first presented to the

employer.”

The decision of the Court of Appeals is clearly

erroneous for two reasons. First, the language of Article 7

specifically states that no warning notice is required if an

employee is discharged for dishonesty. The arbitrator found

that the Grievant was discharged for dishonesty. As Circuit

Judge Henley states in his dissent:

“Because the employee in the present case was

discharged for dishonesty, the arbitrator was thus

compelled by the clear language of the collective

bargaining agreement to allow the employer to terminate

the employee without notice.”

Second, Article 9 specifically declares that the

arbitrator is “governed and limited by the express

provisions” of the contract and “he shall not sit to dispense

his own brand of industrial justice and he shall have no

power to add to, subtract from, or modify any of the terms

and provisions of the agreement.”

The Court of Appeals, in its opinion, determined that

the contract is “silent” as to the procedural prerequisites

which attach to the discharge under the term “yust cause”.

Obviously, if the contract is silent as to those procedural

prerequisites then they are not found in the express

language of the contract. If they are not found in the

express language of the contract then for the arbitrator to

require some form of due process, it would be necessary for

him to add it to the express language of the contract or to

10

dispense his own brand of industrial justice which the

. contract expressly forbids him from doing.

The judgment below is a serious departure from

decisions of the United States Supreme Court concerning

the role of an arbitrator and the rights of employers

investigating the conduct of their employees on the job.

In Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974), the United States Supreme Court stated:

“A proper conception of the arbitrator’s function is

basic. He is not a public tribunal imposed upon the

parties by a superior authority which the parties are

obligated to accept. He has no general character to

administer justice for a community which transcends

the parties. He is rather a part of a system of industrial

self-government created by and confirmed to the

parties. He serves their pleasure only, to administer the

rule of law established by their collective bargaining

agreement.”

Similarly, in United Steel Workers of America v.

Enterprise Wheel & Car Corp., 363 U.S. 593 (1960), the

Supreme Court also held:

“Nevertheless, an arbitrator is confined to interpretation

and application of the collective bargaining agreement;

he does not sit to dispense his own brand of industrial

justice. He may of course look for guidance from many

sources, yet his award is legitimate only so long as it

draws its essence from the collective bargaining

agreement. When the arbitrator's words manifest an

infidelity to this obligation, the courts have no choice

but to refuse enforcement of the award.”

1]

The decision of the Court of Appeals ignores the clear

language of United Steel Workers of America, supra, by

allowing the arbitrator to “dispense his own brand of

industrial justice” and apply due process requirements to a

clearly worded collective bargaining agreement containing

none.

The United States Supreme Court in NLRB vy.

Weingarten, Inc., 420 U.S. 251 (1975), held that where an

employee perceives that an investigatory interview may

result in discipline, he has the right to require the presence

of his union representative under Section 7 of the Labor

Management Relations Act.

The Court also stated that the employer has a

corresponding right to carry on _ his interview’ or

investigation without the employee being present. Thus, the

employer is given the right to decline to have the employee

present in the interview or investigation and thereby

avoiding any right of the employee to request that his union

representative be present.

The Court in Weingarten, Inc., supra, at page 258 and

259 states:

‘

‘, . . the employer is free to carry on his inquiry without

interviewing the employee, and thus to leave the

employee the choice between having an interview

unaccompanied by his representative, or having no

interview and foregoing any benefit that might be

derived from one.”

12

“As stated in Mobile Oil (Mobil Oil Corporation v.

NLRB, 482 F.2d 842 (7th Cir. 1973)):

The employer mz~, if it wishes, advise the employee

that it will not proceed with the interview unless the

employee is willing to enter the interview unaccompanied

by his representative. . . . Fhe employer would then be

free to act on the basis of information obtained from

other sources.”

These were the corresponding rights of the employer

and employee under Section 7 as defined by the United

States Supreme Court.

The Court of Appeals, by adding the requirement of a

“due process hearing’, prior to discipline or discharge, has

unilaterally taken away this correlative right of the

employer. The Company, in order to meet the standards of

“just cause” as now defined by the Court of Appeals, must

allow the employee a hearing or interview prior to discipline

or discharge contrary to the holding in Wezngarten.

If the Court of Appeals is correct then virtually every

collective bargaining agreement which utilizes the standard

language that an’ employeé may be disciplined or

discharged for “‘just cause” and does not expressly state what

procedural prerequisites or due process, if any, are required

prior. to discipline must now be deemed to include some

quantum of due process although the precise quantum has

been left undefined.

Of course, such due process requirements are “in

addition to” and not “in lieu of’ the negotiated grievance

13

procedure which culminates in binding arbitration where

witnesses, cross-examination and full remedial power are

readily available. In essence, the Court of Appeals now

adds, in addition to that negotiated by the parties, a pre-

grievance-arbitration procedural step allowing — the

employee two opportunities for some type of unknown and

undefined hearing.

CONCLUSION

For the above stated reasons, this decision will have a

substantial impact on management-union _ relations

nationwide and should therefore be reviewed by this Court.

It is respectfully submitted that the petition for writ of

certiorari should be granted.

Respectfully submitted,

COLEMAN, GANTT, RAMSAY & COX

Counsel for Petitioners

P.O. Box 8509

Pine Blut bageas 72

By: _E. Harley Cox, Jr.

E. Harley Cox, Jr.

14

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

CHRAUFFEURS, TEAMSTERS AND

HELPERS LOGAI-NO. 678. ....... 6 5..5;. PLAINTIFF

v. No. LR-C-77-107

COCA COLA BOTTLING COMPANY

CP ENR oe oo ioe ips Si DEFENDANT

JUDGMENT

Pursuant to the Memorandum and Order entered this

date, it is Ordered and Adjudged that judgment in this case

for plaintiff be, and it is hereby, entered.

Dated this 2nd day of February, 1979.

Garnett Thomas Eisell

_ United States District Judge

This document entered on docket sheet in compliance with

Rule 53 and/or 79(a) FRCP on 2-5-79 by Sel.

15

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

CHAUFFEURS, TEAMSTERS AND HELPERS

LOCAL NO. 878

Plaintiff

v. Civil No. LR-C-77-0107

COCA COLA BOTTLING COMPANY

OF ARKANSAS

Defendant

MEMORANDUM AND ORDER

The Plaintiff, Chauffeurs, Teamsters and Helpers

Local Union No. 878, (Union) commenced this action

under §301 of the Labor Management Relations Act, as

amended 29 U.S.C. §185, seeking to require the defendant,

Coca-Cola Bottling Company of Arkansas, (Company) to

honor the terms of an arbitrator's award rendered pursuant

to the collective bargaining agreement between the parties.

Both parties have filed motions for Summary Judgment,

Fed. Rules Civ. Proc. rule 56, and have agreed that the

matter be considered on the basis of the pleadings, exhibits

and respective briefs.

The instant controversy stems from the discharge on June 9,

1976, of Ray Lievsay, a Union member employed by the

company as a Product Merchandiser. In 1974, Lievsay, who

previously had worked for the Company, was employed as a

16 17

In investigating the incident, Haguewood talked

with Area Manager Bill Johnson who told him that

Lievsay was the Merchandiser involved and that it was

Merchandiser-Helper and later advanced to Merchandiser.

His duties and the events leading to his discharge are set

forth in the arbitrator's statement of the case:

Sales personnel pre-order the load of product the

day before the Merchandiser obtains possession of it.

The night loading crew load the Merchandisers’ trucks

in accordance with print-out load sheets. The next

morning, the Merchandiser receives a copy of the load

sheet from his Supervisor and verifies its accuracy by

actual physical count. If he finds a discrepancy between

the load sheet and the products on his truck, the

Merchandiser reports it to a Clerk-Checker who after

making his own count, gives the Merchandiser any

product which he is short or, if the Company does not

have the product, corrects the discrepancy by giving

the Merchandiser proper credit. A Merchandiser

should not leave the area until any disagreement as to

what is on his truck has been resolved. When the

Merchandiser returns from delivering his route, the

money and products which he brings back must balance

the goods taken out.

Haguewood, who is the official in charge of the

operations and activities of the Merchandisers,

testified that, about 7:45 A.M. on June 9, 1976,

Operations and Production Manager John Bylander

informed him that a Merchandiser had broken a case

of product in the parking lot prior to leaving that area.

It had fallen off his truck. Bylander suspected that the

Merchandiser had driven too fast, in a speed-restricted

area, with the doors up on the side. He suggested that

Haguewood check and see if he could determine how

the accident occurred and that he also find out how

the broken case had been reported.

a case of Liter Dr. Pepper that had been broken. Johnson,

who came up from the ranks and was at one time a

Merchandiser, testified that he was standing at the

back gate and observed Lievsay sweep up the remains

of the case of Liter Dr. Pepper.

Haguewood also talked with Clerk-Checker Jamie

Purvis (another bargaining unit employee) who reported

that Lievsay had come to him that morning and stated

that he was improperly charged with two cases of Liter

Sprite and was short one case of Ten Ounce Tab, one

case of Ten Ounce Fresca and one case of Liter Dr.

Pepper. Purvis gave Lievsay credit for the two cases of

Liter Sprite, which was a mistaken entry on his load

sheet. He told Haguewood that, after checking Lievsay’s

truck and load sheet and finding that he was short the

three other cases, Purvis provided him with one case of

Ten Ounce Tab, one of Ten Ounce Fresca and one of

Liter Dr. Pepper. Haguewood had Purvis prepare a

written statement setting forth these facts. . .

Lievsay’s testimony on this point is as follows:

I told Purvis that I was improperly charged with

Liter Sprite, that I was short a case of Tab and

one of Fresca and that I had lost a case of Liter

Dr. Pepper off my truck and that it was broken. I

am sure that he understood what I said. He asked

me where it was and I said “right there on the

table.” He said, “O.K.” After the three cases were

loaded, I got in my truck and left.

Haguewood went back to his office about 9 A.M.

18

and reviewed Lievsay’s Personnel Record. He found

that he had given him two written warnings for failure

to carry out job assignments on two successive work

days — Friday, April 23, 1976 and Monday, April 26,

1976. One warning ended with the statement, “Failure

to carry out a job assignment can result in dismissal”

and the other with the statement, “Any further such

action on your part will result in dismissal.”

Haguewood had a termination letter written up

before talking with Lievsay. He testified that, had

Lievsay been able to offer any explanation to convince

him that just cause for the discharge did not exist, the

letter would not have been given to Lievsay. Lievsay’s

response to that statement is that he was offered no

opportunity to provide an explanation. The Company

Brief simply states that the termination letter was

presented to “the grievant after he had reported in and

turned in all of his cash. Mr. Haguewood testified that

this is the Company's normal procedure.”

The termination letter reads as follows:

“Dear Mr. Lievsay:

“On this date, prior to leaving the plant for your

regular route assignment you were observed sweeping

up a case of broken Liter Dr. Pepper. You then

proceeded to drive through the loading area where you

indicated to the clerk checker that you were charged

with two cases of Liter Sprite. You were given credit for

these two cases as they were obviously not available.

You also indicated that you were “short” one case of 10

oz. Tab, one case of 10 oz. Fresca and one case of Liter

Dr. Pepper. These three cases of product were added

19

to your load. You did not indicate to the clerk checker

that you broke the one case of Liter Dr. Pepper.

“By indicating to the clerk checker that you were

“short” the one case of Liter Dr. Pepper, when in fact

the load was not “short” the one case of Liter Dr. Pepper,

we consider this a dishonest action on your part. We

are therefore terminating your services effective upon

receipt of this letter as provided by Article 7, Section 1

of our contract with Teamsters Local 878.”

A grievance filed by Lievsay contesting his termination

was processed under the grievance procedure as provided in

the collective bargaining agreement and, pursuant thereto,

ultimately was submitted to an arbitrator for resolution.

The specific issue to be resolved was, “Was the Grievant

discharged for just cause?”

The arbitrator’s decision was:

‘, . . that the termination of Lievsay was for just

cause provided due process was followed in handling

the discharge. But the Company's action was marked

by a serious defect in that it appears that Management

did not give the Grievant adequate opportunity to

present his side of the case before discharging him.

* * *

. . - [conclude that the discharge of Lievsay was

not for just cause but that no pay for time lost is

appropriate.”

It is to be noted that:

The

20 .

“The narrow scope of judicial review of arbitration

awards was outlined by the Supreme Court in the

Steelworkers triology, Steelworkers v. American Mfg.

Co., 363 U.S. 564, Steelworkers v. Warrior & Gulf

Navigation Co., 363 U.S. 574, and Steelworkers v. |

Enterprise Wheel & Car Corp., 363 U.S. 593. The

courts may not review the merits of a grievance or an

award. 363 U.S. at 568. An arbitration award will be

enforced if ‘it draws its essence from the collective

bargaining agreement.’ 363 U.S. at 597. See also

Campo Machining Co. v. Local Lodge No. 1926, etc.,

10 Cir. 536 F.2d 330, 332-333. In determining whether

an award draws its essence from the Union contract,

the courts have applied various tests. An arbitrator's

award must be upheld unless it is contrary to the

express language of the contract, Amanda Bent Bolt

Co. v. U.A.W., 6 Cir., 451 F.2d 1277, 1280; and

Truck Drivers & Helpers Union Local 784 v. Ulry-

Talbert Co., 8 Cir., 330 F.2d 562, 566, or unless it is

‘so unfounded in reason and fact, so unconnected with

the wording the purpose of the * * agreement as to

“manifest an infidelity to the obligation of the

arbitrator.” ’ Brotherhood of Railroad Trainmen v.

Central of Georgia Railway Co., 5 Cir., 415 F.2d 403,

415, cert. denied, 396 U.S. 1008. The award does not

draw its essence from the agreement if ‘viewed in the

light of its language, its context, and any other indicia

of the parties’ intention,’ it is without rational support.

Ludwig Honold Mfg. Co. v. Fletcher, 3 Cir., 405 F.2d

1123, 1128.” Mustletoe Exp. Serv. v. Motor Expressmen’s

U., 566 F.2d 692 (10 Cir. 1977).

Eighth Circuit has similarly noted:

“{T]he decision of an arbitrator will not be questioned

by the courts as long as the arbitrator has acted within

21

the scope of his authority as defined in a duly negotiated

collective bargaining agreement. Western Iowa Pork

Co. v. Nat'l Brotherhood Packinghouse & Dairy

Workers, Local No. 52, 366 F.2d 27 (8th Cir. 1966).

In determining whether an arbitrator has exceeded his

authority, the agreement must be broadly construed

with all doubts being resolved in favor of the arbitratoz’s

authority. Bonnot v. Congress of Independent Unions,

Local No. 14, 331 F.2d 355 (8th Cir. 1964). This

approach reflects the strong national labor policy

favoring arbitration as set forth by the Supreme Court

in what has become known as the Steelworkers

Trilogy.” Restlient Floor, Etc., v. Welco Mfg. Co.,

Inc., 542 F.2d 1029, 1052 (8th Cir. 1976).

It is not the wisdom of the arbitrator's decision that is

in issue here but his authority, as defined in the collective

bargaining agreement, to make it. The agreement, as far as

pertinent, provided:

“ARTICLE 7 — DISCHARGE OR DISCIPLINARY

ACTION

“Section 1 — Cause for Action

“The Employer shall not discharge, suspend or

take other disciplinary action with respect to any

employee without just cause. In disciplinary matters

at least one warning notice of the complaint against

the employee shall be given to the employee in writing

either by mail or in person and a copy will be sent to

the Union; PROVIDED, no warning notice need be

given to an employee before discharge tf the cause of

the discharge ts dishonesty; physical and/or verbal

abuse of a customer; refusal to carry out job assignment;

22

drinking alcoholic beverages or being under their

influence while on duty or on Employer property; the

use of stimulants or narcotics or being under their

influence while on duty or on Employer property;

recklessness resulting in serious accident while on duty

or on Employer property; the transportation of

unauthorized passengers; the carrying of unauthorized

firearms; the failure to report an accident to the

Employer and to the police. The first written warning

notice provided herein shall be withdrawn from an

employee's file after one year unless during such year

the employee shall receive another written warning

for the same reason. A pattern of warning notices,

related or unrelated, and without limitation in time,

shall be just cause for discharge. ,All warning notices,

discharges, suspensions, or other disciplinary action

must be by proper written notice to the employee and

to the Union.” (Emphasis added)

“ARTICLE 34 — MANAGEMENT RIGHTS

“The Employer retains and shall continue to

exercise any and all rights, authority, powers and

privileges which he had prior to the execution of this

Agreement except only as such rights, authority, powers

and privileges are clearly and expressly relinquished by

the specific terms and provisions of this Agreement.

Included within such rights, authority, powers and

privileges, but without limiting the generality of the

foregoing, are the rights to determine the size of the

working force and the number of employees required,

either temporarily or permanently, in any job classification

or department; the right to reprimand, suspend,

discharge or otherwise discipline employees for cause

determined to be just by the employer; . . . (Emphasis

added)

23

“ARTICLE 9 — ARBITRATION PROCEDURE

“It is understood and agreed that a request for

arbitration in order to be valid under this Agreement

must allege a direct violation of the express purpose of

the contractual provision in question, rather than of an

indirect or implied purpose, it being the intent of the

parties hereto that an arbitration request shall not be

valid which challenges the action taken by the Employer

in the exercise of its rights set forth in Article 34,

except where such challenge is based upon a clear,

express limitation thereon.

* * *

“In rendering a decision, the arbitrator shall be

governed and limited by the express provisions of this

Agreement, and the clear intent of the parties as set

forth hereinabove. He shall not sit to dispense his own

brand of industrial justice and he shall have no power

to add to, subtract from or modify any of the terms and

provisions of this Agreement and he shall consider and

render decisions concerning only such issues as are

directly raised by the written complaint, which shall

not be in any way changed or amended after it is first

presented to the Employer. The decision of the arbitrator

shall be final and binding upon the parties hereto and

upon the employee or employees concerned;

PROVIDED, however, that the arbitrator shall make

no award outside the scope of his authority outlined

herein, or effecting a change, modification or addition

to this Agreement, and shall confine himself strictly to

the facts submitted in the hearing, the evidence before

him, and the express terms and provisions of the

contract.” (Emphasis added)

24

Defendant contends that the clause stating that “no

warning notice need be given to an employee before

discharge if the cause of the discharge is dishonesty; etc.” is

an explicit contractual limitation on the arbitrator's

authority to impose any kind of industrial due process

“notice and hearing” requirement on the discharge process

under this contract. The Court cannot agree that such an

explicit contractual limitation appears from the language.

The clause is an obvious limitation of the provision stated

immediately above it in the contract, that in disciplinary

matters at least one warning notice of the complaint against

the employee shall be given to the employee in writing

either by mail or in person and a copy will be sent to the

Union.” Such a requirement plainly limits the company’s

ability to impose disciplinary sanctions against an employee

unless a certain minimum cumulative quantum of

misconduct has occurred. In contrast, the company may

discharge employees for certain specific reasons without any

cumulative behavior. The lack of a requirement of a

warning notice before proceeding in such discharge cases,

however, in no way explicitly bears on the procedures to be

followed in the resulting discharge process.

It is clear from the contract language that the

arbitrator will have to determine some standard by which to

measure employer actions against the operative guide of

“Just causes.” The contract language nowhere explicitly

covers the question of what requirements may obtain in the

process of a discharge. In this case, the arbitrator, dispite

somewhat inexact language, clearly interpreted the

requirement of “just cause” for discharge to include not

only the substantive elements of appropriate factual

TS etme ON RET PE i a

25

circumstances but also the procedural requirement of what

is commonly referred to as “industrial due process” that the

employee be given some minimal, adequate opportunity to

present his side of the case before the discharge. The Court

recognizes that such a requirement does not have its specific

foundation in constitutional law, or in any specific language

of the contract, but the Court cannot say that the

arbitrator's requirement is unfounded in reason or so

unconnected with the wording and purpose of the

agreement as to manifest an infidelity to the obligation of

the arbitrator. See Moore’s Seafood Products, Inc., 50 Lab.

Arb. 83 (Daugherty, 1968); Missouri Research

Laboratortes, 55 Lab. Arb. 197 (Bd. of Arb., 1970);

Farmbest, Inc., 44 Lab. Arb. 609 (Karlins, 1965). The

Court is simply unpersuaded that a true arbitral

“modification” of the agreement has occurred in this case,

compare Torrington Co. v. Metal Prods. Workers Local

1645, 362 F.2d 677 (2d Cir. 1966), with Holly Sugar Corp.

v. Distillery Workers Union, 412 F.2d 899 (9th Cir. 1969);

United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S.

574, 581-82 (1960), and therefore concludes that the

arbitrator was within his authority in rendering this

decision, including the remedial provision.

It is therefore Ordered that plaintiff's motion for

summary judgment, seeking defendant's compliance with

the decision of the arbitrator, be, and it is hereby granted.

Defendant's motion for summary judgment, concomitantly,

is denied. Judgement will be entered accordingly.

It is further Ordered that each party bear its own costs,

SEES SES SSIS LODE SE TEN EE TL ATT

26

and that no attorney's fees assessment against plaintiff for

bad faith conduct is warranted.

Dated this 2nd day of February, 1979.

Garnett Thomas Eisell

United States District Judge

This document entered on docket sheet in compliance with

Rule 58 and/or 79(a) FRCP on 2-5-79 by Sel.

——

ON

27

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 79-1196

Chauffeurs, Teamsters and Helpers

Local Union No. 878,

Appellee, Appeal from the United

v. States District Court

for the Eastern

District of Arkansas.

Coca-Cola Bottling Company,

Appellant.

Submitted: October 8, 1979

Filed: January 18, 1980

Before LAY,* Chief Judge, and HEANEY and HENLEY,

Circuit Judges.

HEANEY, Circuit Judge.

The sole issue on appeal is whether an arbitrator

exceeded his authority in reinstating a discharged employee

of the Coca Cola Bottling Company of Arkansas. The

discharge was submitted to arbitration pursuant to a

collective bargaining agreement between the Chauffeurs,

Teamsters and Helpers Local No. 878 and the Company.

After arbitration, the Company refused to reinstate the

*Judge Donald P. Lay became Chief Judge on January 1, 1980.

28

employee. The Union then commenced this action in

district court’ under §301 of the Labor Management

Relations Act, 29 U.S.C §185, seeking to compel

enforcement. On cross motions for summary judgment

pursuant to Rule 56, F.R.Civ. P., the district court found

the arbitrator’s decision to be within the authority granted

to him by the bargaining agreement and_ ordered

compliance. We affirm.

I.

We note initially that judicial review of labor

arbitration is limited. This Court recently summarized the

nature of that review as follows:

To effectuate the strong federal policy favoring

arbitration as a means of resolving labor disputes, our

review of the arbitrator's award is limited. United

Steelwkrs. of Am. v. American Mfg. Co., 363 U.S. 564,

80 S.Ct. 1343, 4 L.Ed. 2d 1403 (1960); United Steelwkrs. of

Am. v. Warrior & Gulf N. Co., 363 U.S. 574, 80 S.Ct.

1347, 4 L.Ed.2d 1409 (1960); United Steelwkrs. of Am.

v. Enterprise Wheel & Car Corp., [363 U.S. 593, 80

S.Ct. 1358, 4 L.Ed.2d 1424 (1960)]. See also Resilient

Floor v. Welco Mfg. Co., Inc., 542 F.2d 1029 (8th Cir.

1976); General Drivers v. Sears, Roebuck & Co., 535

F.2d 1072 (8th Cir. 1976). It is not within the scope of

our review to pass upon the merits of a grievance. See

General Drivers @ H.U., L. 554 v. Young @ Hay

Transp. Co., 522 F.2d 562 (8th Cir. 1975). The grant

of power by the agreement must be broadly construed,

with any doubt resolved in favor of the arbitrator's

authority. Resilient Floor Etc. v. Welco Mfg. Co. Inc.,

supra at 1032; Western Iowa Pork Co. v. National Bro.

'District Court for the Eastern District of Arkansas.

29

Pack. & Dairy Whkrs., [366 F.2d 275, 277 (8th Cir.

1966)].

Kewanee Machinery v. Local U. No. 21, Intern. Bro., 593

F.2d 314, 316-317 (8th Cir. 1979).

With this standard in mind, we turn to the facts of the case.

II.

On the afternoon of June 9, 1976, the Company

discharged Ray Lievsay, a Union member, from his

employment as a merchandiser. The discharge arose out of

an incident that occurred that morning as Lievsay was in

the process of preparing to embark on his truck route

delivering cases of the Company's product. Apparently,

Lievsay broke a case of Dr. Pepper and, instead of

admitting this to the Company, he represented to the clerk-

checker that he had been shorted this case by the packers.

After the missing case was added to his load, Lievsay left on

his route.

During the day, Lievsay’s supervisor, Mr. Haguewood,

was informed by another manager that one of the drivers

had broken a case of product in the Company’s parking lot.

Haguewood investigated and learned that the area manager

had observed Lievsay sweeping up the remains of a case of

Dr. Pepper in the parking lot near the plant’s back gate.

Haguewood then talked with the clerk-checker who stated

that Lievsay had claimed at checkout that he was

improperly charged with two cases of Sprite and that he was

short a case each of Tab, Fresca and Dr. Pepper. On the

30

basis of this information and a review of Lievsay’s personnel

record, which contained two warnings for prior unrelated

incidents, Haguewood decided to terminate Lievsay’s

employment. He prepared a letter to that effect citing only

the dishonesty charge.

That afternoon, after Lievsay returned to the

Company’s plant and turned in his receipts, he was

presented with the letter. He was not afforded an

opportunity to tell his side of the story prior to termination.

Within a week, Lievsay filed a grievance claiming that

he was unjustly terminated and requesting reinstatement

and back pay. This grievance was ultimately submitted to

arbitration and the arbitrator, construing a contract term

permitting disciplinary action for “just cause,” ordered

reinstatement but without back pay. In so doing, he found

as follows:

The weight of the evidence indicates that Lievsay

told [the Company’s clerk-checker] that he was short

the case of Liter Dr. Pepper instead of telling him that

he had broken the case. * * * This leads to the conclusion

that the termination of Lievsay was for just cause

provided due process was followed in handling the

discharge. But the Company's action was marked by a

serious defect in that it appears that Management did

not give the Grievant adequate opportunity to present

his side of the case before discharging him.

(Emphasis included.)

ae eee Ff eee cen lame

31

Thus, the arbitrator held that a lack of procedural fairness

caused Lievsay’s dismissal to fall short of the just cause

standard.

The district court, in enforcing the arbitrator's award,

held that the arbitrator’s construction of “just cause” was

not an unauthorized modification of the contract but was a

legitimate resolution of contractual ambiguity. The court

wrote:

It is clear from the contract language that the

arbitrator will have to determine some standard by

by which to measure employer actions against the

operative guide of “just causes.” The contract language

nowhere explicitly covers the question of what requirements

may obtain in the process of a discharge. In this case,

the arbitrator, despite somewhat inexact language,

clearly interpreted the requirement of “just cause” for

discharge to include not only the substantive elements

of appropriate factual circumstances but also the

procedural requirement of what is commonly referred

to as “industrial due process” that the employee be

given some minimal, adequate opportunity to present

nis side of the case before the discharge. The Court

recognizes that such a requirement does not have its

specific foundation in constitutional law, or in any

specific language of the contract, but the Court cannot

say that the arbitrator’s requirement is unfounded in

reason or so unconnected with the wording and purpose

of the agreement as to manifest an infidelity to the

obligation of the arbitrator.

Chauffeurs, Teamsters and Helpers Local No. 878 v. Coca-

Cola Bottling Company of Arkansas, slip op. at 6-7, No.

LR-C-77-0107 (E.D. Ark. Feb. 2, 1979).

32

Il.

The Company’s primary contention, advanced to both

the district court and us, is that the arbitrator's award is

unenforceable because it was without foundation in the

collective bargaining agreement and was, therefore, in

excess of the arbitrator's authority. In particular, it cites to

Articles 7, 9 and 34 of its collective bargaining agreement

for the proposition that the arbitrator was without authority

to find as he did. These agreements, in pertinent part, are

set out below:

ARTICLE 7 — DISCHARGE OR DISCIPLINARY

ACTION

Section 1 — Cause for Action

The Employer shall not discharge, suspend or take

other disciplinary action with respect to any employee

without just cause. In disciplinary matters at least one

warning notice of the complaint against the employee

shall be given to the employee in writing either by mail

or in person and a copy will be sent to the Union;

PROVIDED, no warning notice need be given to an

employee before discharge if the cause of the discharge

ts dtshonesty; physical and/or verbal abuse of a

customer; refusal to carry out job assignment; drinking

alcoholic beverages or being under their influence

while on duty or on Employer property; the use of

stimulants or narcotics or being under their influence

while on duty or on Employer property; recklessness

resulting in serious accident while on duty or on

Employer property; the transportation of unauthorized

passengers; the carrying of unauthorized firearms; the

en EP ene, 2a eH euqevuneneneunnass

33

failure to report an accident to the Employer and to

the police. The first written warning notice provided

herein shall be withdrawn from an employee's file after

one year unless during such year the employee shall

receive another written warning for the same reason. A

pattern of warning notices, related or unrelated, and

without limitation in time, shall be just cause for

discharge. All warning notices, discharges, suspensions,

or other disciplinary action must be by proper written

notice to the employee and to the Union.

* * * *

ARTICLE 9 — ARBITRATION PROCEDURE

* * * *

In rendering a decision, the arbitrator shall be

governed and limited by the express provisions of this

Agreement, and the clear intent of the parties as set

forth hereinabove. He shall not sit to dispense his own

brand of industrial justice and he shall have no power

to add to, subtract from, or modify any of the terms

and provisions of thts Agreement and he shall consider

and render decision concerning only such issues as are

directly raised by the written complaint, which shall

not be in any way changed or amended after it is first

presented to the Employer.

* * * *

ARTICLE 34 — MANAGEMENT RIGHTS

The Employer retains and shall continue to exercise

any and all rights, authority, powers and privileges

which it had prior to the execution of this Agreement

34

except only as such rights, authority, powers and

privileges are clearly and expressly relinquished by the

specific terms and provisions of this Agreement.

Included within such rights, authority, powers and

privileges, but without limiting the generality of the

foregoing, are the rights to determine the size of the

working force and the number of employees required,

either temporarily or permanently, in any job class-

ification or department; the right to reprimand,

suspend, discharge or otherwise discipline employees

for cause determined to be just by the Employer * * *.

(&mphasis added.)

The Company argues that Article 7, Section 1,

’

completely defines “just cause,” leaving no ambiguity

unresolved. It contends that the first sentence of that section

is refined by the subsequent sentences which describe the

parties’ agreement concerning progressive discipline. From

this, the Company contends it is clear that dishonesty

constitutes just cause for dismissal without prior warning

and without an opportunity for the employee to explain his

side of the story.

This argument is buttressed, according to the

Company, by the dictate of Article 9 that the arbitration

shall be “limited by the express provisions of [the]

Agreement.” By forbidding an arbitrator to “dispense his

own brand of industrial justice” the contract prohibits the

use of concepts not set forth expressly or required by

contractual ambiguity. Since Article 7, Section 1, fully

defines “just cause,” the Company characterizes the

arbitrator's due process requirements as an unauthorized

i AS EE pe i a EP ea ns os a

35

attempt to inflict his own brand of industrial justice onto

the parties. Finally, the Company argues that, if any

ambiguity exists in the “just cause” term as used in Article

7, it is resolved by Article 34 which makes it explicit that

just cause is to be determined by the Company.

IV.

Our analysis of the Company's argument must begin

with the observation that Article 34 in no way alters the

“just cause” term of Article 7. Article 34 reserves to the

Company only those rights not “clearly and expressly

relinquished by the specific terms” of the contract. Article 7

clearly and expressly limits the Company's right to

discipline without just cause. The general provisions of

Article 34 cannot, therefore, alter the more restrictive

“specific terms” of Article 7. Lievsay’s dismissal was

governed by Article 7 and the letter of termination so

stated. At most, the two provisions raise an ambiguity in the

contract that was within the power of the arbitrator to

resolve.

Turning then to the Company’s argument based on

Articles 7 and 9, we note that its underlying fallacy is its

failure to recognize that “just cause” may imply procedural

as well as substantive requirements. The contract’s clear

statement that a single act of dis:onesty justifies a discharge

is mistakenly viewed as a statement that no procedural

requirements attach to the processing of that discharge.

Quite simply, the contract is silent on what procedural

prerequisites attach to the requirement that a discharge be

for just cause. Since a “just cause” term is ambiguous as to

36

its procedural implications, interpretation by an arbitrator

is appropriate.

The Company indicates surprise at being presented

with an arbitrator's award in which “just cause” was

interpreted as having a fair hearing dimension. We think

that this surprise is unfounded; arbitrators have long been

applying notions of “industrial due process” to “just cause”

discharge cases. As Professor Summers noted, “[o]n the

bare words ‘just cause’ arbitrators have built a

comprehensive and relatively stable body of both

substantive and procedural law.” Summers, Individual

Protection Against Unjust Dismissal: Time for a Statute, 62

Va. L. Rev. 481, 500 (1976) (footenote deleted). Professor

Summers also commented that the retention of the bare

“just cause” language in newly negotiated agreements is an

indication of the widespread acceptance of arbitrators’ due

process interpretations. Jd. at 505.? To a similar effect are

the comments of Professor Getman:

It should be noted that Professor Summers, in outlining some of

the general principles of “just cause” due process as developed by

arbitrators, stated that “[t]he employee is not entitled to a hearing

before discipline is imposed, unless the contract so provides ***.”

Summers, Individual Protection Against Unjust Dismissal: Time for a

Statute, 62 Va. L. Rev. 481, 504 (1976). This characterization of the

emerging interpretation of just cause differs from that of Professor

Getman, quoted in the text above, and Professors Jennings and Wolters.

They wrote, “The 1most commonly cited violation of due process which

did occur revolved around the investigation of the incident. More

specifically, the grievant was not permitted to explain his actions prior

to the time the decision to discharge him was made, Gr key witnesses to

the incident in question were not present to give first-hand testimony at

the arbitration hearing.” Jennings & Wolters, Déscharge Cases

Reconsidered, 31 Arb.J. 164, 178 (1976) (emphasis added).

eae

37

To enhance its chances of winning at arbitration, a

company needs to establish careful disciplinary

procedures consistent with arbitration awards defining

the concept of just cause. Arbitrators generally insist

on equal punishment for the same offense, and they

require that employees be given advance notice of

company rules and a chance to explain thetr behavior

before they are disciplined.

Getman, Labor Arbitration and Dispute Resolution, 88

Yale L. J. 916, 921 (1979) (footnote deleted, emphasis

added). See also Combustion Engineering, Inc., 42 Lab.

Arb. 806 (1964) (Daugherty, Arb.).

While our interpretation of “just cause” may differ from

that of the arbitrator in this case, such disagreement is

irrelevant to our review. We are not to review the merits.

Kewanee Machinery v. Local U. No. 21, Intern, Bro., supra

at 317 n.3.

The Company relies heavily on two cases in which

Circuit Courts have set aside awards when the arbitrators

injected due process considerations into unambiguous

grants of disciplinary authority. We find this reliance

inappropriate. In the first case, Muéstletoe Exp. Serv. v.

Motor Expressmen’s U., 566 F.2d 692 (10th Cir. 1977), a

driver who collected C.O.D. payments on his route was

discharged for failing to settle one of these payments with

the company within the required twenty-four hours. The

contract provided:

Employees may be discharged for just cause,

among which just causes are the following:

38

* * * *

(G) Failure to settle bills and funds collected for

the company within twenty-four (24) hours.

Id. at 694.

The arbitrator determined that the company had imposed a

too severe penalty for the offense. He held that although

there was just cause for a suspension, there was no just cause

for discharge. The Tenth Circuit, in refusing to enforce the

award, stated:

The contract says that the acts, which the arbitrator

found are just cause for discipline, are just cause for

discharge. The arbitrator may not rewrite the labor

contract.

Id. at 695.

This case in no way involves an arbitrator's interpretation of

the procedural requirements of a “just cause” contract

clause. It involved solely the substantive aspects of “just

cause” — aspects which were explicitly defined in the

contract.

In Local 342, United Automobile, A. & A. I. Whrs. v.

T.R.W., Inc., 402 F.2d 727 (6th Cir. 1968), cert. denied,

395 U.S. 910 (1969), an arbitrator reinstated seven

employees who were selectively discharged after a strike

involving over 200 company employees. The arbitrator

based reinstatement on his belief that the procedure

39

surrounding the discharge was “lacking in fundamental

fairness.” Id. at 729. The Sixth Circuit refused enforcement

since the contract unambiguously gave the company “the

right * * * to take disciplinary action, including discharge,

against any employees who participate in a [strike], whether

such action is taken against all of the participants or against

only selected participants * * *.” Jd. at 728 (emphasis

deleted). The contract was devoid of any “just cause”

provision and contained no term requiring interpretation

by the arbitrator. The case is, therefore, similarly

inapposite.

More on point is Kewanee Machinery v. Local U. No.

21, Intern. Bro., supra. There, we enforced an arbitrator’s

award reinstating an employee who was dismissed for

absenteeism even though his absences were caused by a

bona fide illness. We observed that the arbitrator’s award

was based on his resolution of an inherent tension between

two contractual provisions, one reserving to the company

the unrestricted right to discharge employees, the other

providing that seniority and employment relations shall be

terminated when an employee is discharged for proper

cause. That tension, like the procedural ambiguity inherent

in the “just cause” clause now before us, required resolution

by the arbitrator.

In short, the arbitrator here was required to decide

what “just cause” means. His holding that the term has

significant procedural implications is not beyond the scope

of his authority. His award drew its essence from the

contract and cannot be set aside by this Court. United

Steelwkrs. of Am. v. Enterprise Wheel & Car Corp., 363

40

U.S. 593 (1960).

For these reasons, we affirm.

HENLEY, Circuit Judge, dissenting.

I disagree with the majority's conclusion that the

arbitrator's interpretation of the term “just cause” draws its

essence from the collective bargaining agreement. Although

it is arguable that the use of the term “just cause” may in

some contexts provide an employee with an opportunity to

explain his actions prior to dismissal,' the present collective

bargaining agreement specifically reads out of the term

“just cause” any requirement of procedural due process

prior to termination for particular types of discharges.

Article 7, Section 1 of the agreement provides in

pertinent part:

The Employer shall not discharge, suspend or take

other disciplinary action with respect to any employee

without just cause. In disciplinary matters at least one

warning notice of the complaint against the employee

shall be given to the employee . . . PROVIDED, no

warning notice need to be given to an employee before

discharge if the cause of the discharge is dishonesty . . .

Because the employee in the present case was

discharged for dishonesty, the arbitrator was thus

compelled by the clear language of the collective bargaining

'See Getman, Labor Arbitration and Dispute Resolution, 88 Yale

L.J. 916, 92' (1979). But see Summers, Individual Protection Against

Unjust Dismissal: Time for a Statute, 62 Va. L.Rev. 481, 504 (1976).

sets So inno at

41

agreement to allow the employer to terminate the employee

without notice.

While some sort of pre-discharge hearing might have

been desirable, the arbitrator was not free to dispense his

own brand of industrial justice and read into the express

language of the collective bargaining agreement something

that is not there. In such circumstances, we should vacate

the arbitration award. United Steelworkers of America v.

Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960).

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT

42

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

79-1196 September Term, 1979

Chauffeurs, Teamsters &

Helpers Local Union #878,

Appellee

vs. |

Coca-Cola Bottling Company

of Arkansas,

Appellant.

The Court having considered petition for rehearing en

banc filed by counsel for appellant and being fully advised

in the prernises, it is ordered that the petition for rehearing

en banc be, and it is hereby, denied. Judges Ross, Henley

and McMillian would grant the petition for rehearing en

banc.

Considering the petition for rehearing en banc as a

petition for rehearing, it is ordered that the petition for

rehearing also be, and it is hereby, denied.

February 26, 1980

Appeal from the United States

District Court for the

Eastern District of Arkansas

RE SSE en we