Petition — ARCO Polymers, Inc. v. Local 8-74, Affiliated with the Oil, Chemical & Atomic Workers' International Union
Supreme Court brief1982
Ask Donna
What actually matters in this document.
Text
81-2187
Office - Supreme Court, U.S.
FILED
MAY 17 1962
ALEXANDER L. STEVAS.
Supreme Court of the U
October Term, 1981
ARCO POLYMERS, INC.,
Petitioner,
0.
LOCAL 8-74, AFFILIATED WITH THE OIL, CHEMICAL
AND ATOMIC WORKERS INTERNATIONAL UNION,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Davi E. RosEnsaum
Atlantic Richfield Company
1500 Market Street
Philadelphia, PA 19101
Counsel for Petitioner
May 17, 1982
international Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711
QUESTIONS PRESENTED
1. Did the court below misconstrue and misapply this
Court’s “Steelworkers Trilogy” decisions in ruling, con-
trary to six other circuits, that a uniform, undisputed past
practice is irrelevant to whether a labor arbitration award
draws its essence from the contract unless the practice is
expressly accepted as valid by the other party?
2. Did the court below misconstrue and misapply
United Steelworkers v. Enterprise Wheel and Car Corp.,
363 U. S. 593 (1960), in enforcing, contrary to five other
circuits, an award which was unsupported by any prin-
ciples of contract construction and inconsistent with the
uniform past practice of the shop?
(i)
2. The District Court Order Vacating the Award ......
3. The Court of Appeals Order Reversing the District
1. The Third Circuit's Rejection of Past Practice as Ir-
relevant Conflicts With the Decisions of This Court
and Six Other Courts of Appeals .............+..
RE en GE 6 Ncinidincd db dde0 6 ceseenedec
2. The Decision Below Conflicts With the Decisions of
Five Other Courts of Appeals as to the Proper Stand-
ard of Review of Labor Arbitration Awards .......
a. The Other Circuits Have Uniformly Vacated
Awards Which Are Contrary to the Plain Mean-
ing of Contracts, to Principles of Contract Con-
struction and to Past Practice ................
b. The Court Below Expressly Applied a Standard
of Review Other Than That of United Steel-
workers of America v. Enterprise Wheel and
Car Corp., 363 U. S. 585 (1960), Contrary to
Every Circuit Which Has Ruled on the Issue . .
(ii)
14
TABLE OF CONTENTS (Continued)
3. The Decision Below Raises Significant and Recurring
Problems Concerning Enforcement and Vacation of
Labor Arbitration Awards Under Federal Law .... 22
a. The Ruling on Past Practice, if Permitted to Stand,
Will Create Confusion and injustice in the Ap-
plication of the Most Important Source of Arbi-
BE GD cdincccncccnccnscesivaccebocesiocces 22
b. The Enforcement of a Reinstatement Award
Which Disregards the Plain Meaning of a Con-
tract Casts Doubt on the Binding Nature of a
Substantial Number of Collective Bargaining
Agreements in All Industries ................ 26
4. This Court Has Not Had Occasion to Address the
Standard of Review of Arbitration Awards in
Ey THINE bc cunscvodciccsensnccacéocene 27
I is. ci on ch edhcehanesbeeenecedehs bdccoeesede 28
APPENDIX A:
Court of Appeals Opinion ..............ccceeseeeeees Al
APPENNDIX B:
Se GS GE none cctueccccubscccovcccecess Al5
i Mn -vdiceddducedodedéedoseceestees A25
ApPENDIX C:
Court of Appeals Judgment ................eeeeeeees A27
Court of Appeals Order Denying Rehearing ........... A29
Aprenpix D
ar Pr... cen cdeheecbecbdenernecessoes A3l
APPENDIX E
Excerpts From Union Contract ..............0eseeee0 A42
APPENDIX F:
Excerpts From Transcript of District Court Proceedings,
GEE Oh EE, bn ce ccdeetedss pentipsnccvccceseass A49
TABLE OF AUTHORITIES
Cases: Page
Aircraft Mechanics Fraternal Ass'n v. Ozark Air Lines, Inc.,
508 F. 2d 1155 (8th Cir. 1979) ............c cece eeees 13
Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975) ......... 3
Amanda Bent Bolt Co. v. Int'l. Union, United Automobile
Aerospace, Agricultural Implement Workers of America,
Local 1549, 451 F. 2d 1277 (6th Cir. 1971) ............ 16, 19
Boise Cascade Corp. v. United Steelworkers of America, 588
F. 2d 127 (5th Cir. 1979), cert. denied 444 U.S. 830... 13
Brennan v. United Steelworkers of America, 501 F. Supp. 912
(W. D. Pa. 1980, as amended, 1981) ..............++.. 3
Campo Machinery Co. v. Local 1926, I. A. M., 536 F. 2d 330
MED pccnceceaéetvags paeuseteseunedesds 18
I. A. M., District Lodge No. 50, Local Lodge No. 389 v. San
Diego Marine Construction Corp., 620 F. 2d 736 (9th
DEE Knutcibouwoosatedun bésstCebabbnccoceceess 18
International Brotherhood of Firemen and Oilers v. Nestle
Co., 630 F. 2d 474 (6th Cir. 1980) ................... 17,19
Kewanee Machinery v. Local No. 21, I. B. T., 593 F. 2d 314
Dt TL wovsincecéuegansdscenebonseseeneeute 18
Mistletoe Express Service v. Motor Expressmen’s Union, 566
Pe ee CE GED ENDED kccccesedcvdbdcaccccidance 17,19
Monogahela Power Co. v. Local No. 2332, International
Brotherhood of Electrical Workers, 566 F. 2d 1196 (4th
ESE savtnccagsnseddhectnestsencdsueescoseuds 17, 20
Norfolk Shipbuilding and Drydock Corp. v. Local 684, Inter-
national Brotherhood of Boilermakers, etc., 671 F. 2d 797
TE SEE ediood one edeeebecesdeabbsaeonses ducs 12
Safeway Stores v. American Bakery & Confectionary Workers
Int'l, 390 F. 2d 79 (Sth Cir. 1968) ...............0000- 13
Smith Steel Workers v. A. O. Smith Corp., 626 F. 2d 596 (7th
SUA CE bG ad veccceseecscnncecunensdctdceocescaves 13
Textile Workers Union of America v. America Thread Co.,
201 F. 2d 804 (4th Cir. 1061) ..........ccccccccccces 16
(iv)
TABLE OF AUTHORITIES (Continued)
Cases (Continued): Page
Textile Workers Union v. Textile Paper Products, Inc., 405
a BS Gar Cie Ge FED. cvcec ttc ceccccccncccccdsces 13
Timkin Co. v. United Steelworkers of America, 492 F. 2d
Be Ce I BPE o cs cevees cddcctbdcioccovcesosnes’ 18
Timkin Co. v. Local No. 1123, United Steelworkers of
America, 482 F. 2d 1012 (6th Cir. 1973), cert. denied,
Se Ge Gk GEE hd sbcendcncenucccascdebbsces wees 9, 12, 16, 20
Torrington Co. v. Metal Products Workers Union Local 1645,
962 F. 2d G77 (2d Cir. 1008) ........cccccccscccccees 18, 19
Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert
Co., 330 F. 2d 562 (8th Cir. 1964) ...........0.ceeeee 17
Union Employers Division of Printing Industry of Washing-
ton, D. C., Inc. v. Columbia Typographical Union No.
101, 353 F. Supp. 1348 (D. D. C. 1973) affirmed without
opinion, 492 F. 2d 669 (D. C. Cir. 1974) .............. 13
United Automobile, Aerospace and Agricultural Implement
Workers v. T. R. W., Inc., 402 F. 2d 727 (6th Cir. 1968),
SE , Ge Ge sy GEE evivceceeceedccesecéccasecs 17
United Steelworkers of America v. Enterprise Wheel and Car
Corp., 363 U. S. 593 (1960) ........... i, 6, 8, 9, 10, 14, 15, 16,
17, 20, 21, 27, 28
United Steelworkers of America v. Warrior & Gulf Navigation
Co., 363 U. S. 574 (1960) ....... 9, 10, 11, 12, 21, 22, 23, 27, 28
Yellow Cab Co. v. Democratic Union Organizing Committee,
395 F. 2d 735 (7th Cir. 1968), cert. denied 393 U.S.1015 13
Statutes:
ee Ae TEED 0 0000s cnnbaddeqvessésvcessoeguedes 2
UN OEE c's eae ccccboveeadiecscacseunal 2, 5, 22
(v)
TABLE OF AUTHORITIES (Continued)
Labor Arbitration Awards:
Baer Brothers, 16 LA 822 (Joseph F. Donnelly, 1951) .....
Bethlehem Steel Co., 33 LA 374 (Rolf Valtin, 1959) .......
Bonanza Air Lines, Inc., 44 LA 698 (Edgar Jones, Jr., 1965)
Metropolitan Coach Lines, 27 LA 376 (Melvin Lenard, 1956)
Owens-Corning Fiberglass Corp., 19 LA 57 (Jules Justin,
PEED dedosccccdecccdeucetetscéscédectovcscoccccees
2 BNA, Coxivective Barcarninc NecoriaTions AND CONTRACTS
Ty € o6occdbovedephscboncoccccccecosees
Cox, Reflections Upon Labor Arbitration, 72 Hanv. L. Rev.
DET dédoscconesseessercoesodborcecceccoesces
Elkouri & Elkouri, How Arbitration Works (3rd Ed. 1973) ..
Federal Mediation and Conciliation Service, Thirty-Third
Annual Report (GPO, 1980) ........66 ccc eceeeeeee
Mittenthal, Richard, Arbitration and Public Policy: Past Prac-
tice and Administration of Collective Bargaining Agree-
ments, from Proceedings of 14th Annual Meeting of the
National Academy of Arbitrators, p. 30, 32 (BNA, 1961)
Shulman, Reason, Contract and Law in Labor Relations, 68
0 NN aa ae 23, 24
(vi)
No.
IN THE
Supreme Court of the United States
Ocroser Term, 1981
ARCO POLYMERS, INC.,
Petitioner,
0.
LOCAL 8-74, AFFILIATED WITH THE OIL,
CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRC JIT
The petitioner ARCO Polymers, Inc.’ respectfully
prays that a writ of certiorari issue to review the judgment
and opinion of the United States Court of Appeals for the
Third Circuit entered in this proceeding on February 22,
1982.
1. On July 1, 1981, ARCO Polymers, Inc., a wholly owned sub-
sidiary of Atlantic Richfield Company, ceased to exist as a corpo-
rate entity. Its operations and assets were on that date merged
into the ARCO Chemical Company division of Atlantic Richfield
Company.
(1)
2 Petition for Writ of Certiorari
The opinion of the Court of Appeals, unofficially re-
ported at 109 LRRM 3157, appears in Appendix A at
pages Al-Al4.*_ The opinion of the District Court for the
Western District of Pennsylvania, which was reversed by
the Court of Appeals, is reported at 517 F. Supp. 681 and
appears in Appendix B, at pages Al5-A24. The award
of the arbitrator, which is the subject of this action, ap-
pears in Appendix D, at pages A31-A41.
JURISDICTION
The judgment of the Court of Appeals for the Third
Circuit was entered on February 22, 1982. A timely peti-
tion for rehearing en banc was denied on March 18, 1982,
and this petition for certiorari was filed within 90 days of
that date. This Court's jurisdiction is invoked under 28
U. S.C. § 1254(1).
STATUTE INVOLVED
The statutory provision involved in this case is Section
301(a) of the Labor-Management Relations Act of 1947,
29 U. S. C. § 185(a), which provides as follows:
(a) Suits for violation of contracts between an
employer and a labor organization representing em-
ployees in an industry affecting commerce as defined
in this chapter, or between any such labor organiza-
tions, may be brought in any district court of the
United States having jurisdiction of the parties, with-
out respect to the amount in controversy or without
regard to the citizenship of the parties.
2. The pagination of the appendices will be sequential and
cumulative. All page references will be abbreviated “Al,” “A2,”
“A3,” etc., regardless of which appendix contains the material cited.
Petition for Writ of Certiorari 3
STATEMENT OF THE CASE
1. The Labor Arbitrators Award
On March 7, 1980, ARCO Polymers, Inc., the peti-
tioner herein, discharged its employee Larry D. Anderson.
The basis for the discharge was that Anderson's absences
violated a collective agreement provision, Article XXVI,
§ B(1). That clause provided that “(e)mployees absent
from work without good and sufficient cause for more than
four (4) consecutive days shall be subject to discharge”
(A32-33, 48). Thereafter, the matter was processed by
Mr. Anderson’s union through the grievance procedure to
arbitration before Arbitrator Robert Wagner (A33).
The arbitrator's award, issued on June 18, 1980, ex-
pressly found that Mr. Anderson had been absent from
work for 19 days from February 6 to 25, 1980, without
“good and sufficient’ cause for his absence” (A39; see also
A19, A23).* Immediately after this finding the arbitrator
3. The Court of Appeals “assume(d) without deciding, that
the district court correctly concluded that the Arbitrator found that
Anderson was absent for nineteen days without cause.” (A5). The
Union's argument on this point had been, essentially, that the arbi-
trator secretly could have reversed his above-described express find-
ing at a later juncture and secretly could have found that Anderson
had “cause for his absence.” The Company countered by arguing,
inter alia, that a finding “will not be implied when such implied
finding would conflict with an express finding” 89 C. J. S. Trial
§ 649; that the arbitrator's only references to Mr. Anderson’s alleged
“iliness” were speculative, conjectural or simply negative comments
which could not support an implied, contrary finding of fact in our
intellectually honest judicial system (Albemarle Paper Co. v.
Moody, 422 U. S. 405, 441 (1975) (Marshal J., concurring);
Brennan vo. United Steelworkers, 501 F. Supp. 912, 925 (W. D. Pa.
1980, as amended, 1981)); and that the only post-February 25
evidence was the statement by Anderson's doctor on March 7 that
“[t]here has been no reason why the patient could not have been
at work” (A37).
4 Petition for Writ of Certiorari
set forth his bases therefor, consisting of the following ex-
press rejections of each of Anderson's excuses: Anderson's
reliance on a February 8 slip allegedly from a local hos-
pital, because “that hospital had no such account number”
as appeared on the slip (A39); his reliance on a February
15 doctor's note, because “[i]t did not indicate that he
had been ill since that date, or between February 8 and
25” (A39); and his claim of combined knee problems and
influenza illness, because the examining doctor on Feb-
ruary 25 found “nothing disabling in his knees or any
observable signs of influenza on that date” and because “a
common attack of influenza would not have disabled
Anderson from February 5, 1980, to February 25, 1980”
(A39, 40). The arbitrator also observed that Anderson's
absence record “did not improve even after he had been
given 3-day and 5-day suspensions in 1979” (A39).
The arbitrator further found that the uniform, 11-year
past practice was to discharge every employee who vi-
olated the above-described contract clause; that the Com-
pany sent “discharge letters” * relying “solely upon Article
XXVI, B(1)” to every one of the 20 employees who had
violated this provision in successive contracts since De-
cember, 1968 (A39-40). The Union did not dispute the
existence of this practice in its contentions before the
arbitrator (A37-38).
In his Opinion the arbitrator's only mention of a con-
tract provision other than the above-described Article
XXVI, was the following single reference to the earlier
general “just cause” clause, Article XVI, § J:
On the question of “just cause” for discharge the
Company's post hearing brief lists three known Arbi-
4. The contract provides in Article XVI, §J(2) for “notifica-
tion of such discharge[s] by the Company in writing to the Union”
(A46: see also A50).
Petition for Writ of Certiorari 5
trators who agree with the Company that a specific
provision, such as we have here on absenteeism, takes
precedence over a general provision, i.e., Art. XVI,
J(3) or [sic] the Arbitrators’ Wolff, Ray or Kelliher
decisions cited in the Union's post hearing brief.
At this point the arbitrator abruptly ended his discussion
of this matter without any finding of conflict between the
two clauses.
The arbitrator's award ordered that Mr. Anderson be
reinstated without back pay (A41).
2. The District Court Order Vacating the Award
Petitioner timely commenced suit in the United States
District Court for the Western District of Pennsylvania to
vacate the award under 29 U. S. C. § 185(a). Respondent
cross-petitioned for enforcement and back pay. In addi-
tion to the facts found by the arbitrator, the District Court
found that Article XVI, § H(1) of the Agreement (A46)
provided that “[t)he arbitration procedure shall not be
used to change or modify this Agreement in any respect”
(A16). The District Court held, inter alia, that in order-
ing reinstatement the arbitrator was “clearly in excess of
his authority under Article XVI, Section H1. of the Agree-
ment when he proceeded to modify [the Agreement] by
nullifying the specific, unambiguous, contractual right of
5. A40 (Emphasis added.) The italicized portion of the above
passage may lead this Court to infer that the Wolff, Ray and Kelli-
her decisions dealt in some way with the Company's claim that the
specific clause limited the meaning of the general “just cause” pro-
vision. Such an inference would be mistaken. The arbitrator in
his summary of the Union's contentions (A38) found that the
Union cited the arbitration decisions on the issue of which party
bore the burden of proof—not on the question of whether a general
clause supersedes a conflicting specific clause or any issue of
contract construction.
6 Petition for Writ of Certiorari
the [petitioner] to discharge an employee who had been
absent for more than four (4) days without ‘good and
sufficient cause’” (A22); that in view of the arbitrator's
finding of a uniform 11-year practice of discharging em-
ployees for violation of Article XXVI, § B(1), “there is no
basis . . . from which one properly could infer any ‘relaxa-
tion of the literal language’ of that provision” (A20); that
a ruling by the arbitrator that the general “just cause” pro-
vision supersedes Article XXVI, § B(1) “would have beea
‘totally unsupported by principles of contract construction’
. . Since . . . it is a well established rule of contract con-
section that ‘ a subsequent specification [Article XXVI,
§ B(1)] impliedly limits the meaning of a preceding gen-
eralization [Article XVI, § J(1)]’” (A21, note 2); and that
because the award is “a gross non-sequitur and a classic
example of an arbitravor dispensing ‘his own brand of in-
dustrial justice’”, the award does not “ “draw its essence
from the collective bargaining agreement’ United Steel-
workers of America v. Enterprise Wheel and Car Corp.,
363 US 593 (1960), and must be vacated” (A23-24).
3. The Court of Appeals Order Reversing the District
Court
The Court of Appeals for the Third Circuit reversed
the District Court on the basis that the arbitrator could
rationally have found that the prior general “just cause”
provision “supersedes” the specific subsequent clause on
absences (A9-10 and All, note 3), ruling, in short, that
the arbitrator's “failure to apply correct contract principles
is irrelevant” (A13) and that the uniform past practice
could only have relevance “if the Company could show
that it was a uniform past practice accepted by the Union
to discharge all employees who have been found absent for
more than four days without good and sufficient cause”
(Al4).
Petition for Writ of Certiorari 7
REASONS FOR GRANTING THE WRIT
1. The Third Circuit’s Rejection of Past Practice as Ir-
relevant Conflicts With the Decisions of This Court
and Six Other Courts of Appeals
This Court in its “Steelworkers Trilogy” decisions
established that past practice is an important source of
law in grievance and arbitration handling. The court
below has not only re-defined the concept of past practice
into a formalized agreement, but also has in effect held
that in absence of such agreement, even a uniform past
practice is irrelevant because it is not part of the collective
bargaining agreement. This ruling is contrary to this
Court’s decisions, to every other Circuit which has ruled
on the matter, to the weight of authority among arbi-
trators, and to the national labor policy.
a. Conflicts With the “Steelworkers Trilogy” De-
cisions of This Court
In rejecting the uniform, undisputed practice at issue
herein the decision below first seeks to segregate (i) the
requirement that an arbitrator look to past practice as a
“source of law” from (ii) a court's inquiry under United
Steelworkers of America v. Enterprise Wheel and Car
Corp., 363 U. S. 593, 597 (1960), into whether an award
“draws its essence from the collective bargaining agree-
ment.” The Third Circuit then ruled, as set forth below,
that the very practice at issue here is valid for purposes of
arbitration, but irrelevant to the court's inquiry in (ii):
The Company argues that its uniform past prac-
tice . . . is an independent ground for vacating the
award. There is no doubt that such a practice is
relevant to the question facing the arbitrator, see
8 Petition for Writ of Certiorari
Warrior & Gulf, 363 U. S. at 581-82 [quoting one
portion of this Court’s reference to past practice, but
omitting the portion which holds that past practice is
“a part of the collective bargaining agreement”). . . .
We do not, however, think it is relevant to the ques-
tion before this Court: whether the arbitrator’s award
draws its essence from the contract.’ But see Timken
Co. v. Local 1123, United Steelworkers, 482 F. 2d
1012, 1014 (6th Cir. 1973) (Vacating an arbitration
award where arbitrator’s award was contrary to shop
practices). (A14).
This amounts to a ruling that the past practice relied
upon herein by Petitioner is “no doubt” a valid one under
United Steelworkers of America v. Warrior & Gulf Navi-
gation Co., 363 U. S. 574 (1960), but does not become
part of the labor agreement for purposes of the Enterprise
test. This is in direct conflict with both of this Court's
decisions. In Warrior & Gulf this Court held precisely
to the contrary, as follows:
The labor arbitrator's source of law is not con-
fined to the express provisions of the contract, as the
industrial common law—the practices of the industry
and the shop—is equally a part of the collective bar-
gaining agreement although not expressed in it. 363
U. S. at 580-81 (Emphasis added. )
If past practice is “a part of the collective bargaining
agreement” and a “source of law” for the arbitrator, it
cannot possibly be irrelevant to the question under Enter-
6. This refusal to apply Warrior & Gulf in a court proceeding
to vacate an award for purposes of the past practice issue is incon-
sistent with the Third Circuit's earlier application of a contract pro-
vision from the agreement before this Court in Warrior & Gulf [that
“matters which are strictly a function of management shall not be
subject to arbitration”) as the substantive standard of review in this
case (AQ). See also Item 2b, infra.
Petition for Writ of Certiorari 9
prise of whether an award “draws its essence from the
collective bargaining agreement.”
This Court’s decision in Enterprise, even when read
in isolation from the above passage of Warrior & Gulf,
cannot be construed to eliminate past practice as being a
source of law binding on arbitrators. This Court in Enter-
prise characterized the role of arbitrators to include con-
sideration of past practice:
As we stated in United Steelworkers of America v.
Warrior & Gulf Navigation Co., decided this day, the
arbitrators under these collective agreements are in-
dispensable agencies in a continuous collective bar-
gaining process. They sit to settle disputes at the
plant level—disputes that require for their solution
knowledge of the custom and practices of a particular
factory or of a particular industry as reflected in par-
ticular agreements. 363 U. S. at 596.
Accordingly, the Third Circuit's ruling herein that
past practice is not a part of the collective bargaining
agreement for purposes of determining whether an award
“draws its essence from the collective bargaining agree-
ment” is in direct conflict with Warrior & Gulf and Enter-
prise for this reason alone.
The second conflict between the decision below and
this Court's “Steelworkers Trilogy” relates to the Third
Circuit's ruling, in effect, that proof of past practice re-
quires evidence of express agreement by the parties to the
practice before it will have relevance in a suit to vacate or
enforce an award.
The Third Circuit was presented with a uniform un-
disputed 11-year practice by Petitioner of discharging all
employees who violated Article XXVI, § B(1) with notice
to the Union. (See supra, p. 4, note 4 and accompanying
text). It ruled that the practice was irrelevant in this
10 Petition for Writ of Certiorari
suit unless the Company could prove that it was “accepted
by the Union to discharge all employees who have been
found absent for more than four days without good and
sufficient cause” (A-14). In plain English, therefore, a
practice is irrelevant in the Third Circuit unless the other
party—union or employer—expressly accepts the practice
as valid. The ruling of the court below can have no other
meaning in view of the fact that it was made on a record
which contained no evidence of any Union disagreement
with 20 successive discharges spanning over a decade of
successive labor contracts. Moreover, this construction
of the ruling is consistent with the Third Circuit's earlier
ruling that past practice is relevant to an arbitrator under
Warrior & Gulf, but not to a court on the issue of whether
an award “draws its essence from the collective bargain-
ing agreement” under Enterprise.
The Third Circuit's unique requirement of active,
actual “acceptance” of a practice as valid directly conflicts
with this Court’s decision in United Steelworkers of
America v. Warrior & Gulf Navigation Co., supra. This
Court there held, in pertinent part, that the law which
binds an arbitrator includes practices of the shop and
industry which may not even be known to the negotiators
of a contract—to say nothing of formal “acceptance” by
the negotiators:
Gaps [in the contract] may be left to be filled in
by reference to the practices of the particular industry
and of the various shops covered by the agreement.
Many of the specific practices which underlie the
agreement may be unknown, except in hazy form,
evea to the negotiators. 363 U. S. at 581-82. (Em-
phasis added. )
A party can hardly be shown to have expressly ac-
cepted the validity of a practice which was unknown to
Petition for Writ of Certiorari 11
that party. Thus, the Third Circuit's ruling that a prac-
tice must be “accepted” in order to be valid is in direct
conflict with this Court’s holding in Warrior & Gulf.
b. Conflicts With Decisions of Other Courts of
Appeals
The Third Circuit's ruling is also in conflict with six
other Circuits which have applied the “industrial common
law” under Warrior & Gulf without evidence of express
acceptance or knowledge in suits to vacate or enforce
awards.
In its instant opinion the Third Circuit conceded that
its ruling on this point was contrary to the Sixth Circuit's
decision in Timken Co. v. Local 1123, United Steel-
workers of America, 482 F. 2d 1012, 1014 (1973), cert.
denied, 414 U. S. 1004. The Sixth Circuit there vacated
an award which had ordered reinstatement of a jailed
employee. The court's ruling in Timken was based on the
fact that the award was not only contrary to the language
of the agreement, as here, but also contrary to “a con-
sistent policy [by the Company] of categorcially denying
authorized absences to employees confined to jail.” The
Sixth Circuit did not refer to or examine any evidence of
“acceptance by the union.” Nor did it find that union
officials even knew of that policy.
Also in direct conflict with the Third Circuit’s ruling
herein, and precisely in point on its facts, is a recent
Fourth Circuit decision vacating and remanding a district
court order in a suit to set aside an arbitration award.
Norfolk Shipbuilding and Drydock Corp. v. Local 684,
International Brotherhood of Boilermakers, etc., 671 F. 2d
797 (1982). The basis for the remand in Norfolk Ship-
building was that the district court had refused to admit
evidence of and consider as the “common law of the
shop” a unilateral, employer past practice of assessing dis-
12 Petition for Writ of Certiorari
ciplinary penalties other than discharge for employee re-
fusals of overtime work.
In suits to enforce awards, the Fifth and Seventh
Circuits have considered entirely unilateral past practices
relevant, without any requirement or evidence of accept-
ance by the other contractual party. Smith Steel Workers
v. A. O. Smith Corp., 626 F. 2d 596, 598 (7th Cir. 1980)
(“a consistent Company practice of imposing . . . discharge
for possession of alcoholic beverages.”); Boise Cascade
Corp. v. United Steelworkers of America, 588 F. 2d 127,
128 (5th Cir. 1979), cert. denied, 444 U. S. 830 (em-
ployer’s past practices); Textile Workers Union v. Textile
Paper Products, Inc., 405 F. 2d 397, 398 (5th Cir. 1968)
(employer's 11-month practice of computing compensa-
tion); Yellow Cab Co. v. Democratic Union Organizing
Committee, 398 F. 2d 735, 736, 737 (7th Cir. 1968), cert.
denied, 393 U. S. 1015 (the employer “had not previously
enforced” a procedural requirement); Safeway Stores v.
American Bakery & Confectionary Workers Int'l, 390
F, 2d 79, 83 (5th Cir. 1968) (“[e]mployer’s long practice
of wage payment ....”). Indeed, the Eighth and Dis-
trict of Columbia Circuits have relied on industry practice
without any requirement of prior acceptance by either
party to the contract. Aircraft Mechanics Fraternal Ass'n.
v. Ozark Air Lines, Inc., 597 F. 2d 1155 (8th Cir. 1979);
Union Employers Division of Printing Industry of Wash-
ington, D. C., Inc. v. Columbia Typographical Union No.
101, 353 F. Supp. 1348 (D. D. C. 1973) affirmed without
opinion, 492 F. 2d 669 (D. C. Cir. 1974).
These conflicts justify the grant of certiorari to review
the judgment below.
Petition for Writ of Certiorari 13
2. The Decision Below Conflicts With the Decisions of
Five Oiher Courts of Appeals as to the Proper
Standard of Review of Labor Arbitration Awards
In United Steelworkers of America v. Enterprise
Wheel and Car Corp., 363 U. S. 593, 597 (1960), this
Court held that:
Nevertheless, an arbitrator is confined to interpreta-
tion 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, y2t 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, courts have no choice but
to refuse enforcement of the award.
Applying the Enterprise decision, the Second, Fourth,
Sixth, Eighth and Tenth Circuits have vacated awards
which disregarded clear, negotiated contract language
and/or went beyond the terms of the respective contracts.
Most of such decisions were on facts substantially indis-
tinguishable from those presented to the Third Circuit
herein. All but one of those decisions relied on contract
provisions, nearly identical to Article XVI, §H herein,
which prohibited modification of the respective contracts
by the arbitrator. Yet, contrary to Enterprise, and to
every Circuit which has ruled on the issue, the Third
Circuit herein enforced such an award, ruling principles
of construction irrelevant and expressly applying a dif-
ferent legal standard of review than that set forth in
Enterprise.
14 Petition for Writ of Certiorari
a. The Other Circuits Have Uniformly Vacated
Awards Which Are Contrary to the Plain Mean-
ing of Contracts, to Principles of Contract Con-
struction and to Past Practice
In reliance upon what it conceived to be a proper
application of Enterprise the Third Circuit has here ruled
that an award must be upheld even where it is contrary to
the plain meaning of the contract, to established principles
of contract construction, and to a uniform past practice.
In fact, the decision below held that considerations of
correct principles of contract construction and of past
practice are not relevant in proceedings to review an arbi-
tration award. Rather, the award will be enforced so iong
as the arbitrator's award “permits the inference” that he
considered the general “just cause” and the specific dis-
charge for absence clauses to be in conflict and that he
decided that the general clause superseded the specific
clause (A10-11). The Court also stated that it is possible
that the phrase “shall be subject to discharge,” suggested
to the arbitrator that Article XXVI, §B(1) was “non-
mandatory” (A10).
In so holding the Third Circuit in effect conceded
that its ruling was contrary to decisions vacating awards
on similar facts in the Fourth, Sixth, and Eighth Circuits.
In a footnote to its opinion the Third Circuit assumed that
the cases from those circuits “stand for the proposition for
which they are cited” and “that our case is not distinguish-
able ....” (All, note 3). Yet, the Third Circuit reversed
the District Court order which had vacated the subject
award.
In similar cases the circuits mentioned above, as well
as the Tenth Circuit, have ruled that an award which, as
here, disregards a subsequent specific discharge provision
in favor of a prior general requirement for “just cause,” or
Petition for Writ of Certiorari 15
the like, is unsupported by principles of contract construc-
tion and, in absence of a clear supporting past practice,
must be vacated under Enterprise.
The Sixth Circuit has vacated several awards in cir-
cumstances nearly identical to those presented herein. In
Amanda Bent Bolt Co. v. International Union, United
Automobile, Aerospace, Agricultural Implement Workers
of America, Local 1549, 451 F. 2d 1277, 1279-1280 (1971),
the Sixth Circuit vacated an award which had ruled that
a prior general clause requiring “cause” for discharge
superseded a subsequent, specific provision stating that
violation of the no-strike clause “may be made the subject
of disciplinary action, including discharge.” The award
was set aside on the basis that it was contrary to the
latter specific provision and, therefore, failed to “draw its
essence from the collective bargaining agreement” under
Enterprise. Another similar Sixth Circuit decision was
Timken Co. v. Local Union No. 1123, United Steelworkers
of America, supra. There, again, the arbiter applied
the general discharge clause to order reinstatement of
a jailed employee who had been absent for over seven
days without authorization. The Sixth Circuit vacated the
award as being inconsistent with (i) a subsequent specific
provision that an “unauthorized absence of seven (7) con-
secutive days shall be considered a voluntary quit,” and
(ii) a uniform employer past practice.
The Fourth Circuit vacated a reinstatement award in
similar circumstances in Textile Workers Union of America
v. American Thread Co., 291 F. 2d 894, 898-899 (1961).
There the arbitrator had ruled that a provision expressly
permitting discharge for failure to perform work in ac-
cordance with employer standards did not mean that the
arbitrator was “foreclosed from inquiring in this case
whether just cause for discharge . . . existed” under the
earlier general “just cause” clause of the agreement. The
16 Petition for Writ of Certiorari
Fourth Circuit vacated that award based on its view that
this Court in Enterprise and other cases did not intend to
compel enforcement of awards “which do such violence to
the clear, plain, exact and unambiguous terms of the sub-
mission and the contract of the contending parties.” Id.
at 899.
Similarly, the Eighth Circuit in Truck Drivers &
Helpers Union Local 784 v. Ulry-Talbert Co., 330 F. 2d
562, 563-564 (8th Cir. 1964), vacated an award which had
ordered reinstatement of an employee based on a finding
that discharge was an “excessive penalty” under a general
discharge for “proper cause” clause. This, despite the
employee’s admitted violation of a specific subsequent
contractual provision that “dishonesty . . . shall be grounds
for discharge.” The Eighth Circuit there ruled that Enter-
prise means that the arbitrator’s authority for the award
“must be found within the terms or meaning of the agree-
ment between the parties” and that the agreement pre-
sented there, including the requirement that discharge be
for “proper cause,” did not give the arbitrator the author-
ity to reinstate the grievant. Id. at 565-566. Subsequent
decisions of the Fourth and Sixth Circuits are to the same
effect: United Automobile, Aerospace and Agricultural
Implement Workers v. T. R. W., Inc., 402 F. 2d 727 (6th
Cir. 1968) cert. denied 395 U. S. 910; Monongahela Power
Co. v. Local No. 2332, International Brotherhood of
Electrical Workers, 566 F. 2d 1196 (4th Cir. 1976); Inter-
national Brotherhood of Firemen and Oilers v. Nestle Co.,
630 F. 2d 474 (6th Cir. 1980).
The Tenth Circuit has followed the lead of the Sixth
and Eighth Circuits in reading Enterprise in a manner in-
consistent with the court below. Mistletoe Express Service
v. Motor Expressmen’s Union, 566 F. 2d 692 (10th Cir.
1977), is still another case where the arbitrator expressly
relied on a general “just cause” clause to reinstate an em-
Petition for Writ of Certiorari 17
ployee, despite the employee's violation of a subsequent,
specific discharge provision. The specific clause there pro-
that employees may be discharged for failure to
bills within 24 hours. The Tenth Circuit vacated
award because “[t]he arbitrator may not rewrite the
labor contract.” Id. at 695."
In a broader sense the decision below also conflicts
with a decision of the Second Circuit vacating an award
7. While implicitly conceding that its decision conflicted with
Campo Machinery Co. v. Local 1926, I. A. M., 536 F. 2d 330 (10th
Cir. 1976); Timken Co. v. United Steelworkers of America, 492 F.
2d 1178 (6th Cir. 1974). Another case involved enforcement of an
specific discharge provision. I. A. M., District Lodge No. 50, Local
decision in this case. Kewanee enforced an award which, again,
18 Petition for Writ of Certiorari
in a non-disciplinary matter. Torrington Co. v. Metal
Products Workers Union Local 1645, 362 F. 2d 677 (2d
Cir. 1966). The court in Torrington vacated the award
because it went beyond the terms of the contract in viola-
tion of a contract provision, similar to Article XVI, §H
herein (A46), which clause prohibited the arbitrator from
adding to or modifying the terms of the agreement.
In addition to the above conflicts the “suggestion” by
the Third Circvit that Article XXVI, § B(1) could properly
have been disregarded by the arbitrator as “nonmanda-
tory” (Al0) is in direct conflict with certain decisions of
the Sixth and Tenth Circuits and implicitly in conflict with
the other above-cited decisions in discharge cases. In this
respect, the court below conceded (A10) that its ruling
conflicted with that of the Tenth Circuit on the substan-
tially identical contract language presented in Mistletoe,
supra, 566 F. 2d at 695 (the allegedly nonmandatory term,
“may be discharged,” created no ambiguity permitting
reinstatement; rather, it “gives the employer the option to
discharge or not”). Moreover, the Sixth Circuit vacated
an award which had reinstated an insubordinate worker
because the award conflicted with a contract provision that
“insubordination . . . shall constitute cause,” notwithstand-
ing the fact that thereunder the employer “was not re-
quired to discharge the employee .. .” International
Brotherhood of Firemen v. Nestle Co., Inc., supra 630 F.
2d at 477 (emphasis added). Of the six remaining de-
cisions in which the Fourth, Sixth and Eighth Circuits set
aside reinstatement awards as being contrary to the plain
meaning of the respective contracts, not a single case in-
volved mandatory contract language requiring the em-
a
s
clause in Amanda Bent Bolt, supra, was
less mandatory than the subject clause. It provided that violation
of the no-strike clause “may be made the subject of discipline, in-
Petition for Writ of Certiorari 19
b. The Court Below Expressly Applied a Standard of
Review Other Than That of United Steelworkers
of America v. Enterprise Wheel and Car Corp.,
363 U. S. 595 (1960), Contrary to Every Circuit
Which Has Ruled on the Issue
In determining whether the instant collective bargain-
ing agreement prohibited the arbitrator from reinstating
Mr. Anderson the district court applied the Enterprise tests
of whether the arbitrator was dispensing “his own brand of
industrial justice” and whether his award “drew its essence
from the collective bargaining agreement.” (A2%3-24).
However, in the critical portion of its opinion on this issue
the Third Circuit failed to apply the Enterprise test, con-
trary not only to the district court, but also to every Circuit
which has ruled on the matter. The pertinent passage is
as follows:
The Union recognizes that article XXVI, section
B(1) specifically provides that the absence of an em-
ployee without good and sufficient cause for more
than four days subjects an employee to discharge. It
cannot be said with absolute certainty, however, that
discharge under this section is “strictly a function of
management.” See United Steelworkers v. Warrior &
Gulf Navigation Co., 363 U. S. 574, 584 (1960) (inter-
preting term “strictly a function of management” as
“refering only to that over which the contract gives
20 Petition for Writ of Certiorari
tion”). The arbitrator's award permits the inference
that he considered whether discharge under article
XXVI, section B(1) is strictly a function of manage-
ment once it is found that the employee was absent
without good and sufficient cause or whether the arbi-
trator has the authority, based upon article XVI,
section J(1) to reinstate an employee upon a finding
that the employee was not discharged for just cause
(A9) (Emphasis added. )
The application of the standard, “strictly a function
of management,” is not only in conflict with the universal
application of the Enterprise test, but also is a misapplica-
tion of the Warrior & Gulf test for arbitrability. The
term, “strictly a function of management,” was a provision
of the contractual grievance procedure which was at issue
in Warrior & Gulf. The full clause from the negotiated
agreement between the parties therein provided as follows:
Issues which conflict with any Federal statute in its
application as established by Court procedure or mat-
ters which are strictly a function of management shall
not be subject to arbitration under this section. 363
U. S. at 576.
The standard for determining arbitrability established in
that case was as follows:
An order to arbitrate the particular grievance should
not be denied unless it may be said with positive
assurance that the arbitration clause is not susceptible
of an interpretation that covers the asserted dispute.
Doubts should be resolved in favor of coverage. 363
U. S. at 582-583.
This Court there interpreted the contractual clause,
“strictly a function of management,” solely for the purpose
Petition for Writ of Certiorari 21
of determining arbitrability under the above standard. In
no way did this Court in Warrior & Gulf purport to an-
nounce a principle, rule or standard that the lower courts
should apply that contract clause as a standard of review
for awards, or even as a standard for determining
The above conflicts justify the grant of certiorari to
review the judgment below.
3. The Decision Below Raises Significant and Recurring
Problems Concerning Enforcement and Vacation of
Labor Arbitration Awards Under Federal Law
The Third Circuit's opinion in this case involves im-
portant policy considerations in enforcing and vacating
arbitration awards under Section 301 of the Labor Man-
agement Relations Act.
a. The Ruling on Past Practice, if Permitted to Stand,
Will Create Confusion and Injustice in the Ap-
plication of the Most Important Source of Arbi-
tral Law
With respect to the Third Circuit's ruling that past
practice is irrelevant unless expressly accepted by the
parties, the problem faced by litigants, lower courts and
arbitrators is critical. Past practice is a consideration in
nearly all grievance and arbitration proceedings with re-
spect to most provisions contained in collective bargaining
agreements. Indeed, Archibald Cox in his now-famous
article which was relied upon by this Court in Warrior &
Gulf stated that among an arbitrator’s sources of law,
“[plerhaps past practice is the most significant . . . .” Cox,
Reflections Upon Labor Arbitration, 72 Harv. L. Rev.
1482, 1500 (1959).
In order to assess the impact of the Third Circuit's
ruling on this most critical factor in day-to-day labor re-
22 Petition for Writ of Certiorari
lations, we submit that the Court should visualize the
typical scenario at the average American plant, store, office
or other union-represented facility: The parties have
negotiated contracts in which “gaps may be left to be
filled in by reference to the practices of the . . . various
shops covered,” many of which practices “may be un-
known . . . even to the negotiators.” (See Warrior & Gulf,
supra, 363 U. S. at 580-81, quoting and summarizing from
Shulman, Reason, Contract and Law in Labor Relations,
68 Harv. L. Rev. 999, 1005 (1955)). The parties leave
those “gaps” and uncertainties because otherwise they
would not be able to avoid a strike. In Dean Shulman’s
words:
. .. I venture to guess that in many enterprises the
execution of a collective agreement would be blocked
if it were insisted that it contain a broad provision
that “all existing practices, except as modified by this
agreement, shall be continued for the life thereof
unless changed by mutual consent.” And I suppose
that execution would also be blocked if the converse
provision were demanded .... The reasons for the
block would be, of course, the great uncertainty as
to the nature and extent of the commitme..: ... .
Shulman, supra, at 1005.
The main purpose of the grievance procedure is to fill the
“gaps” on which negotiators could never agree. And the
filling of these gaps is usually done at the lowest levels of
the union and employer structures on an informal, day-to-
day basis by conduct—not by “agreement.” To require
express agreement of the parties for a binding practice,
therefore, destroys the utility of the grievance procedure.
Its natural effect is to force issues to the higher-level, ad-
versary relationship ot union/employer officers and man-
Petition for Writ of Certiorari 23
agers. We submit that in the typical union-represented
plant the national labor policy's goal of industrial peace is
enhanced by not requiring the parties to reach express
agreement on past practices, because to require it will
generate increased economic warfare. In day-to-day labor
relations, it is no more likely that a union steward or officer
will “agree” that an employer practice is valid than is the
converse. And it is no more likely today than it was in
Dean Shulman’s day that contract negotiators will be able
to agree on which practices, if any, are valid.
Finally, the confusion and injustice which will be
caused by the Third Circuit's ruling herein is further
demonstrated by the many renowned arvitrators who over
many years have repeatedly ruled that binding past prac-
tices need not be expressly agreed to or, in cases very
similar to the instant case, consciously known to officials
of the other party. Generally a mere absence of protest
over a long period of time, as in the instant case, suffices
to establish a binding practice. By way of example, we
refer the Court to the following arbitrators:
Jules Justin—past practice is binding where “[t]he Union
knew or reasonably should have known of the Com-
pany’s practice.” Owens-Corning Fiberglass Corp.,
19 LA 57, 63 (1952);
Joseph F. Donnelly—
The claim of the Union that it did not know that
the Company was not paying the shift bonus is
not strongly persuasive . . . in the absence of
any protest over this long period of time [1948-
1951] it must be presumed that both the Union
and the Company considered that the provisions
of the Agreement were being carried out. Baer
Brothers, 16 LA 822, 824 (1951);
24 Petition for Writ of Certiorari
Melvin Lenard—a long-standing practice
must be presumed (in the absence of any contra
evidence) to have been known to responsible
[Union] officials, and their failure to protest over
these many years effects a binding assent to the
contractual validity of the practices. Metro-
politan Coach Lines, 27 LA 376, 383 (1956).
Rolf Valtin—a practice “need not be accompanied by ex-
press consent or agreement on the part of Super-
vision,” but may be shown by mere awareness of the
practice; where a practice is long-standing and wide-
spread “Supervision’s awareness—even if not directly
proved—reasonably must be presumed.” Bethlehem
Steel Co., 33 LA 374, 375-376 (1959).
Edgar A. Jones, Jr.—Acceptance of a practice
... is evidenced by knowledge of the unprovided
for conduct, and by its existence as a pattern of
conduct over a significant period of time. In this
case the Company's practice . . . extended over a
number of years, and involved a sufficiently large
number of employees as to compel the conclusion
that the predecessor union must be taken to have
been aware of it. Bonanza Air Lines, Inc., 44
LA 698, 700 (1965) (emphasis added. )
Richard Mittenthal—*Acceptability’—not “acceptance” —
is required for a binding practice.
Such acceptability may frequently be implied
from long acquiescence in a known course of
conduct. Where this acquiescence does not exist,
that is, where the employees have constantly pro-
tested a particular course of action through com-
plaints and grievances, it is doubtful that any
practice has been created. Arbitration and Public
Petition for Writ of Certiorari 25
Policy: Past Practice and Administration of Col-
lective Bargaining Agreements, 14th Annual
Meeting, National Academy of Arbitrators, p. 30,
32 (BNA, 1961) (Emphasis added. )
b. The Enforcement of a Reinstatement Award Which
Disregards the Plain Meaning of a Contract
Casts Doubt on the Binding Nature of a Sub-
stantial Number of Collective Bargaining Agree-
ments in All Industries
The same pervasive and recurring uncertainty results
from the Third Circuit’s enforcement of an award which
conflicts with a clearly reserved management right to dis-
charge employees for specific misconduct. According to a
survey by the Bureau of National Affairs of collective bar-
gaining agreements in a representative cross-section of
industries, geographical areas, unions and number of em-
ployees covered, 80% of the agreements contained general
“cause” or “just cause” provisions respecting discharge and
65% of the agreements contained clauses establishing spe-
cific grounds for discharge. 2 BNA, CoLLective BARGAIN-
inG NEGOTIATIONS AND Contracts §§ 32:21, 40:1. Some
such contracts are applicable in many different states, so
that the respective employers may face differing standards
and results on the same contract, depending on whether a
plant is located in the Commonwealth of Pennsylvania or
immediately across the Ohio border in the Sixth Circuit.
Moreover, discharge under such provisions is a very fre-
quent subject of arbitration throughout the United States.
According to the most recently published Federal Media-
tion and Conciliation Service Annual Report, the number
of FMCS-processed arbitration awards which concerned
discharge and discipline has grown steadily in the past 5
years:
26 Petition for Writ of Certiorari
1976 1977 1978 1979 1980
Total Awards 6,855 6,935 8,155 8.270 8,482
Discharge and 2,150 2,520 3,181 3,322 3,625
Disciplinary Issues
Percentage Discharge 31% 36% 39% 40% 42%
and Discipline
Awards
Thirty-Third Annual Report, Federal Mediation and Con-
ciliation Service, Table 22, pp. 40-41 (GPO, 1980).
As with its ruling on past practice, the Third Circuit's
ruling that a general clause may supersede a specific clause
on the same subject matter is also contrary to what appears
to be a universal view in reported arbitration decisions.
For example, the Elkouri’s in their oft-cited treatise, How
Arbitration Works, p. 311 (3rd Ed. 1973), cite nine awards
and no contrary views for the proposition that, “[w]here
there is conflict between specific language and general
language in an agreement, the specific language will
govern.”
4, This Court Has Not Had Occasion to Address the
Standard of Review of Arbitration Awards in Twenty-
Two Years
The foregoing problems are particularly acute because
this Court has not had occasion to address itself to the
standard of enforcement for labor arbitration awards since
the “Steelworker Trilogy” was decided 22 years ago. In
particular, the Court has not had the occasion to address
the issue of whether a valid past practice under Warrior &
Gulf is binding on an arbitrator under Enterprise or
whether an award which disregards the plain meaning of a
contract and violates years of plant practice must be en-
forced as drawing its “essence from the collective bargain-
Petition for Writ of Certiorari 27
ing agreement.” The precise number of cases filed in the
federal judicial system on these matters cannot be esti-
mated. However, using officially and unofficially reported
lower court decisions as a very rough barometer, it appears
from our analysis in Appendix G hereto (A51-A74) that
there has been a steady threefoid-plus increase in the
caseload of suits to review awards in the past 20 years,
with the greatest short-term increases occurring in 1980
and 1981:
1962-66 1967-71 1972-76 1977-81
Reported district 36 54 79 124
and appellate
court cases (from
Appendix G)
In view of this, the conflict among the circuits and the re-
curring nature of the issue, there are compelling reasons
for this Court to now provide further guidance in the ap-
plication of the Enterprise and the Warrior & Gulf
standards.
CONCLUSION
The petition for a writ of certiorari to the United
States Court of Appeals for the Third Circuit should be
granted
Respectfully submitted,
Davi E. RosENBAUM
ATLANTIC RICHFIELD COMPANY
2100 Centre Square East
1500 Market Street
Philadelphia, PA 19101
May 17, 1982 (215) 557-2346
APPENDIX A
UNITED STATES COURT OF APPEALS
For THe Tarp Cracurr
No. 81-2420
ARCO-POLYMERS, INC.,
Appellee
LOCAL 8-74, affiliated with the OIL, CHEMICAL AND
ATOMIC WORKERS INTERNATIONAL UNION,
Appellant
AppeaL From tHe Unrrep States District Court
FOR THE WESTERN Districr OF PENNSYLVANIA
(D.C. Civil Action No. 80-1102H—Pittsburgh )
Submitted Under Third Circuit Rule 12(6)
February 16, 1982
Before: Serrz, Chief Judge,
SLovirer, Circuit Judge, and
VaNARTSDALEN,” District Judge
(Filed February 22, 1982 )
David E. Rosenbaum
Atlantic Richfield Company
1500 Market Street
Philadelphia, Pennsylvania 19101
Attorney for Appellee
* Honorable Donald W. VanArtsdalen, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
(Al)
A2 Appendix A
Ernest B. Orsatti
Jubelirer, Pass & Intrieri, P.C.
219 Fort Pitt Boulevard
Pittsburgh, Pennsylvania 15222
Attorney for Appellant
Opinion of the Court
Per CurniaM:
Local 8-74 (the Union) appeals from a final order of
the district court vacating an arbitration award. This
court has jurisdiction under 28 U.S.C. § 1291 (1976).
cause for more than four (4) consecutive days shall be
subject to discharge” (article XXVI, section B(1)); and
(2) “Employees shall be discharged only for just cause”
(article XVI, section J(1)). On March 7, 1980, the
pany discharged employee Larry Anderson for being ab-
‘good and sufficient’ cause for his absence”; that Anderson
presented a note to the Company doctor from a physician
dated February 15 which state that Anderson “was in the
Appendix A
A3
Company doctor another slip which he said showed a visit
to Rochester Emergency Room on February 8; that the
“hospital had no such Account Number” as appeared on
the slip; that the Company doctor “found nothing wrong
nothing disabling in his knees or any observable signs of
influenza on that date”; that “as disclosed at the hearing a
common attack of influenza would not have disabled
Anderson from February 5, 1980 to February 25, 1980”;
that, of the twenty-eight Company employees discharged
for absenteeism since 1968, twenty employees had been
he could be discharged for continued absenteeism despite
his illness. The arbitrator also discussed the relationship
between article XXVI, section B(1) and article XVI, sec-
tion J(1). He stated:
Contrary to ARCO’s assertion at the hearing, the
burden of proof remains with the employer not the
employee to show good and sufficient cause... .
Professors Elkouir [and Elkouir] state in their treatise
“How Arbitration Works,” at P. 621:
543 $4 § = is
sat WL GAL
te i] appr ey
Hite sat pat ; ie
lig] rad ft diy Hy
i ne AB
sn AH re : Ae
Hi Ae
HRB ienllil THI
Pi uil iy ik it i
i: BNE Batt : He HH i
TE if! ia th stil ii
PE Ge Hq I eT 3
Wt Bese aii iat
A6B Appendix A
before us is whether the arbitrator exceeded his power
under the collective bargaining agreement by nonetheless
awarding reinstatement to Anderson.
“(T]he scope of judicial review of an arbitrator's
award is severely limited.” NF&M Corp. v. United Steel-
workers, 524 F.2d 756, 759 (3d Cir. 1975). The district
court must enforce an award “so long as it draws its es-
sence from the collective bargaining agreement.” ' United
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.
593, 597 (1960). In Ludwig Honold Mfg. Co. v. Fletcher,
405 F.2d 1123 (3d Cir. 1969), this court held that an
arbitrator's award “draws its essence from the collective
bargaining agreement” if:
the interpretation can in any rational way be derived
from the agreement, viewed in the light of its lan-
guage, its context, and any other indicia of the par-
ties’ intention; only where there is a manifest disre-
Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128-29 n.27
(3d Cir. 1969) (citations omitted). Neither party suggests that
Appendix A A7
gard of the agreement, totally unsupported by
principles of contract construction and the law of
the shop, may a reviewing court disturb the award.
Id. at 1128. “As described by Professor Gorman, this
standard requires only ‘minimal rationality’ of the arbi-
trator’s decision.” Virgin Islands Nursing Associction’s
Unit v. Schneider, No. 81-1748, slip op. at 5
(3d Cir. December 30, 1981) (citing R. Gorman, Labor
Law 586 (1976) ).
The message is clear: federal courts are not to sub-
stitute their judgment for that of the arbitrator because
“‘[iJt is the arbitrator's construction which was bar-
gained for and so far as the arbitrator’s decision concerns
construction of the contract, the courts have no business
overruling him because their interpretation of the con-
tract is different from his.” Ludwig, 405 F.2d at 1125
(quoting Enterprise Wheel, 363 U.S. at 599). “(T]he in-
terpretation of labor arbitrators must not be disturbed so
long as they are not in ‘manifest disregard’ of the law,
and that ‘whether the arbitrators misconstrued a con-
tract’ does not open the award to judicial review.” 405
F.2d at 1128 (citing Wilks v. Swan, 346 U.S. 427, 436
(1953); Bernhardt v. Polygraphic Co., 350 U.S. 198, 203
n.4 (1955)). See Gorman, supra, at 585 (“[T]he task of
the court [is] to determine whether the arbitrator has re-
solved the grievance by considering the proper
A8 Appendix A
disputes, many of them over trivial matters, which
inevitably occur as between employers and employees.
Timken Co. v. United Steelworkers, 492 F.2d 1178, 1180
(6th Cir. 1974).
Moreover, courts should not disturb ambiguous,
unclear, and even deliberately opeque arbitration opin-
ions because “the policy in favor of the peaceful resolu-
tion of labor disputes through arbitration outweighs any
damage which arbitration might cause.” Amalgamated
Meat Cutters Local 195 v. Cross Brothers Meat Packers,
Inc., 518 F.2d 1113, 1120 (3d Cir. 1975). In Enterprise
Wheel, the United States Supreme Court said:
The opinion of the arbitrator in this case, as it
bears upon the award of back pay beyond the date of
the agreement's expiration and reinstatement, is
ambiguous. It may be read as based solely upon the
arbitrator's view of the requirements of enacted leg-
islation, which would mean that he exceeded the
scope of submission. Or it may be read as embody-
ing a construction of the agreement itself, perhaps
with the arbitrator looking to “the law” for help in
determining the sense of the agreement. A mere
ambiguity in the opinion accompanying an award,
which permits the inference that the arbitrator may
have exceeded his authority, is not reason for refus-
ing to enforce the award. Arbitrators have no obliga-
tion to the court to give their reasons for an award.
To require opinions free of ambiguity may lead arbi-
trators to play it safe by writing no supporting opin-
ions. This would be undesirable for a well-reasoned
opinion tends to engender confidence in the integrity
of the process and aids in clarifying the underlying
agreement.
Appendix A A9
363 U.S. at 597-98 (footnote omitted) (emphasis added).
It is irrelevant whether the courts agree with the arbitra-
tor’s application and interpretation of the agreement. See
NF&M Corp., 524 F.2d at 760.
Thus, the scope of our inquiry is narrow. While the
arbitrator's task is to interpret the clauses of the agree-
ment, a reviewing court may only determine whether
the arbitrator's award was “ ‘totally unsupported by prin-
ciples of contract construction.” Johnson Bronze Co. v.
UAW, 621 F.2d 81, 82 (3d Cir. 1980) (quoting Ludwig,
405 F.2d at 1128). Specifically, the issue before us is
whether the arbitrator exceeded his authority under the
agreement by refusing to apply article XXVI, section
B(1) of the agreement to the facts of this case. If the ar-
bitrator’s award can possibly derive from an interpreta-
tion and application of the clauses of the agreement, the
courts are precluded from refusing to enforce his award.
The Union recognizes that article XXVI, section
B(1) specifically provides that the absence of an employee
without good and sufficient cause for more than four
days subjects an employee to discharge. It cannot be
said with absolute certainty, however, that discharge
under this section is “strictly a function of management.”
See United Steelworkers v. Warrior & Gulf Navigation
Co., 363 U.S. 574, 584 (1960) (interpreting term “strictly
a function of management” as “referring only to that
over which the contract gives management complete
control and unfettered discretion”). The arbitrator's
award permits the inference that he considered whether
discharge under article XXVI, section B(1) is strictly a
function of management once it is found that the em-
ployee was absent without good and sufficient cause or
whether the arbitrator has the authority, based upon ar-
ticle XVI, section J(1) to reinstate an employee upon a
finding that the employee was not discharged for just
than ‘will.’ The provision gives the employer the option
not.”).
arbitrator might have found that all dis-
circumstances to his interpretation of the contract to de-
termine whether or not discharge is proper. As the court
noted in Mistletoe: “In a proper case an arbitrator . . .
may construe a ‘just cause’ provision of a labor contract
to include a progressive discipline requirement and may
determine that certain conduct is ‘just cause’ for discipline
but not for discharge.” Id. at 695. Thus, it would not
“just cause” to discharge him. Such an interpretation
would certainly not manifestly disregard the language of
the agreement or lack support from principles of contract
construction.* The arbitrator's award may represent an
implicit resolution of an inherent tension between sections
2. If the arbitrator indeed found that Anderson was discharged
without “just cause,” it would seem that Anderson should have
been entitled to backpay under art. XVI, §J(3). No backpay was
awarded. Neither party, however, discusses this possible tension
between the award and art. XVI, § J(3) as reason for not inferring
that the arbitrator found no “just cause.” We think that it is pos-
sible to infer that the arbitrator found no “just cause” and simply
misapplied §J(3), which is not a concern of the courts. See
NF&M Corp., 524 F.2d at 760.
Appendix A All
B(1) and J(1). Certainly it was his obligation to resolve
any conflicts in construction.
If the arbitrator had explicitly set forth this analysis
of the relationship between sections B(1) and J(1) of the
contract, we could not say that he was modifying the
agreement or exceeding the authority granted to him by
the parties. Likewise, had the arbitrator issued his award
without an opinion there would be no basis to vacate the
award. Cf. Schneider, No. 81-1748, slip op. at 4 (declin-
ing to exercise supervisory power to require arbitrators
to provide a record of reasons for award). The fact that
the arbitrator wrote an opinion, albeit one that might be
viewed as confusing and subject to various interpretations,
should not cause the award to be vacated. A court
should not substitute its interpretation of a contract for
that of the arbitrator simply because the arbitrator's
analysis is opaque. See Enterprise Wheel, 363 US. at
598.° We cannot say that the arbitrator's award does not
draw its essence from the contract.
The analysis we have used to examine the agreement
is not without case support. In Kewanee Machinery
Division v. Local 21, International Brotherhood of Team-
sters, 593 F.2d 314 (8th Cir. 1979) (employee violated
employer's unilaterally adopted rule), an employee was
discharged because he had exceeded the established two
3. Thus, we also reject the Company's argument that, in view
of the arbitrator's unequivocal reference to “corrective discipline”
near the end of his opinion, that must be the reason for the
reinstatement order, not the fact that art. XVI, §J(1) supersedes
art. XXVI, § B(1). Given, however, that no reasons must be given
for an award, the courts are not free to determine which finding
the arbitrator relied upon in making his award. Rather, the court
is limited to the inquiry whether the arbitrator could possibly have
made a contract interpretation that supports his award. We have
already concluded that the arbitrator's award here permits the
inference that he was merely interpreting the contract.
Al2 Appendix A
absences per month standard. The arbitrator sustained
the grievance and reinstated the employee with backpay.
The employer contended that the right to discharge was
strictly a function of management and the arbitrator's
award of reinstatement was beyond his authority where
the employee had violated the rule. The United States
Court of Appeals for the Eighth Circuit rejected the em-
ployer’s argument, stating:
On its face, the agreement before us contains
two clauses governing the discharge of employees,
one of which provides that discharges be only upon
proper cause. Thus, an arbitrator could hold that
[the Company] does not retain complete control
over discharges. In so holding, the arbitrator's award
took its [essence] from the collective bargaining
agreement.
Id. at 317-18 (emphasis added). See also IAM, Local 389
v. San Diego Marine Construction Corp., 620 F.2d 736,
738-39 (9th Cir. 1980) (“[T]he arbitrator does have the
power to determine when a matter is subject to Com-
pany discretion. When two plausible interpretations of a
clause of a collective bargaining agreement exist, an ar-
bitrator’s choice of one or the other ought to be hon-
ored.”) (emphasis in original); Timken Co., 492 F.2d at
1179 (“[I]n the present case the arbitrator could fairly
he was technically found guilty of committing the act of
striking the inspector.” ).*
4. The Company, on the other hand, argues that the courts
have uniformly vacated awards that reinstate employees who vio-
late specific contract provisions for discharge. The Com-
pany cites and discusses many cases in support of this provision.
Appendix A Al3
In Affiliated Food Distributors, Inc. v. Local 229,
International Brotherhood of Teamsters, 483 F.2d 418,
420 (3d Cir. 1973), cert. denied, 415 U.S. 916 (1974),
this court said that subsequent specification in a contract
impliedly limits the meaning of a preceding generalization.
See Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478
F.2d 556, 560 (3d Cir. 1973). Where, however, it is
possible that the arbitrator could have been interpreting
the contract, his failure to apply correct contract principles
is irrelevant; the arbitrator's contract interpretation must
be irrational before a reviewing court may disturb the
4. (Cont'd. )
See, e.g., International Bhd. of Firemen & Oilers v. Nestle Co.,
630 F.2d 474 (6th Cir. 1980); Monongahela Power Co. v. Local
2332, IBEW, 566 F.2d 1196 (4th Cir. 1976); Amanda Bent Bolt
Co. v. UAW, Local 1549, 451 F.2d 1277 (6th Cir. 1971); Local
342, UAW vo. T.R.W., Inc., 402 F.2d 727 (6th Cir. 1968), cert.
denied, 395 U.S. 910 (1969); Truck Drivers & Helpers Union
Local 784 v. Ulry-Talbot Co., 330 F.2d 562 (8th Cir. 1964); Textile
Workers Union, Local 1386 v. American Thread Co., 291 F.2d 894
(4th Cir. 1961); Litvak Packing Co. v. Amalgamated Butcher
Workmen, Local 641, 455 F. Supp. 1180 (D. Colo. 1978); Local
217, Union of Electrical Workers v. Holtzer-Cabot Corp., 277
F. Supp. 704 (D. Mass. 1967). We need not, however, engage in
Al4 Appendix A
award because it is “totally unsupported by principles of
contract construction.” See Ludwig, 405 F.2d at 1128.
We do not think that the arbitrator's award in this case
is irrational.
The Company argues that its uniform past practice
of discharging employees who violate article XXVI, sec-
tion B(1) is an independent ground for vacating the
award. There is no doubt that such a practice is relevant
to the question facing the arbitrator, see Warrior & Gulf,
363 U.S. at 581-82 (“[Al]rbitrator’s source of law [in-
cludes] the industrial common law—the practices of the
industry and the shop. . . .”), and perhaps to the courts
where the arbitrator has looked to those practices as part
of the agreement, see NF&M Corp., 524 F.2d at 759;
H.K. Porter Co. v. United Saw Workers, 333 F.2d 596, 600
(3d Cir. 1964). We do not, however, think it is relevant
to the question before this court: whether the arbitrator's
award draws its essence from the contract. But see
Timken Co. v. Local 1123, United Steelworkers, 482 F.2d
1012, 1014 (6th Cir. 1973) (vacating an arbitration award
where arbitrator’s award was contrary to shop practices ).
The only way this uniform past practice could have any
relevance to our inquiry is if the Company could show
that it was a uniform past practice accepted by the Union
to discharge all employees who have been found absent
for more than four days without good and sufficient cause.
The statistic alone does not preclude a finding that em-
ployees may have been absent without good and sufficient
cause yet not discharged for lack of just cause.”
Itl.
The order of the district court will be reversed and
the case remanded for proceedings consistent with this
opinion.
Appendix B Al5
APPENDIX B
IN THE
DISTRICT COURT OF THE UNITED STATES
For THE WesTERN District OF PENNSYLVANIA
Civil Action No. 80-1102
ARCO POLYMERS, INC.,
Plaintiff,
LOCAL 8-74, affiliated with THE OIL, CHEMICAL AND
ATOMIC WORKERS INTERNATIONAL UNION,
Defendant.
Opinion
Diamonp, J.
Plaintiff, the employer-party to a collective bargaining
agreement between it and the defendant union, brought
this suit under § 301 of the Labor Management Relations
Act of 1947, as amended, 29 U.S.C. § 185, to vacate or
modify an arbitrator's award. Cross motions for summary
judgment are before the court. Plaintiff's motion will be
granted and the defendant’s denied.
BACKGROUND
Plaintiff, a manufacturer of plastic resins, and defend-
ant, a labor organization serving as the collective bargain-
ing representative of plaintiff's employees, are parties to a
collective bargaining agreement (Agreement). The pro-
visions of that contract relevant here are: Article XVI
which sets forth a grievance procedure for dispute resolu-
tion and provides for final and binding arbitration; Section
Al6 Appendix B
H 1. of that Article which states that “[t]he arbitration pro-
cedure shall not be used to change or modify this Agree-
ment in any respect.” Section J 1. of the same Article
vides that “Employees absent from work without good and
sufficient cause for more than four (4) consecutive days
shall be subject to discharge.”
The dispute underlying this case arose when plaintiff
APPLICABLE LAW
The general principles which govern the judicial re-
view of an arbitrator's award are summarized by the Third
Circuit in NF & M Corp. v. United Steelworkers of Amer-
ica, 524 F.2d 756 (3rd Cir. 1975). We quote relevant
excerpts from pages 759-760.
Although the scope of judicial review of an arbi-
trator’s award is severely limited, a court must ascer-
tain whether the award “draws its essence from the
collective bargaining agreement.” United Steel-
workers v. Enterprise Wheel & Corp., 363 U.S. 593,
Appendix B Al7
597, 80 S.Ct. 1358, 1361, 4 L.Ed2d 1424 (1960);
Local 103 of the International Union of Electrical,
Radio and Machine Workers, AFL-CIO v. RCA Corp.,
516 F.2d 1336 (3rd Cir. 1975). This Circuit has
elaborated upon that language:
[A] labor arbitrator's award does “draw its essence
from the collective bargaining agreement” if the in-
terpretation can in any rational way be derived from
the agreement, viewed in the light of its language, its
context, and any other indicia of the parties’ intention;
only where there is a manifest disregard of the agree-
ment, totally unsupported by principles of contract
construction and the law of the shop, may a reviewing
court disturb the award.
Ludwig Honold Manufacturing Co. v. Fletcher, 405
F.2d — 1128 (3rd Cir. 1969).
sh tin dliteaseaels oikiatl tabi Dein Goethe
plain meaning of a labor contract provision, it must
find support in the contract itself or in prior practices
demonstrating relaxation of the literal language.
H. K. Porter Co., Inc. v. United Saw, File and Steel
Products Workers of America, 333 F.2d 596 (3rd
Cir. 1964). An arbitrator may find compliance with
the express terms of the grievance procedure in a labor
contract excused by the parties’ practical construction
of it or “in light of the practice of the shop.” Yellow
Cab Co. v. Democratic Union Organizing Committee,
Local 777, 398 F.2d 735, 737 (7th Cir. 1968), cert.
denied, 393 U.S. 1015, 89 S.Ct. 619, 21 L.Ed.2d 561
(1969).
An arbitrator is not required to list his reasons for
the award, nor should an ambiguity in his opinion be
Appendix B
seized upon to support an inference that he exceeded
his authority. Enterprise, supra. Further, a court is
precluded from overturning an award for errors in
assessing the credibility of witnesses, in the weight
accorded their testimony, or in the determination of
factual issues. Amalgamated Butchers, Local 641 v.
Capitol Packing Co., 413 F.2d 668 (10th Cir. 1969);
Dallas Typographical Union, No. 173 v. A. H. Belo
Corp,. 372 F.2d 577 (5th Cir. 1967); International
Brotherhood of Pulp, Sulphite and Paper Mill Work-
ers, Local 874 v. St. Regis Paper Co., 362 F.2d 711
(5th Cir. 1966).
Nonetheless, if an examination of the record be-
fore the arbitrator reveals no support whatever for
his determination, his award must be vacated. Elec-
tronics Corp. v. International Union of Electrical,
Radio and Machine Workers, Local 272, 492 F.2d
a 1974); H. K. Porter, Co., supra.
‘Sites de dneee with the arbitrator's
application and interpretation of the contract is ir-
relevant. It is his “construction which was bargained
for and so far as the arbitrator's decision concerns
construction of the contract, the courts have no busi-
ness overruling him because their interpretation of
the contract is different from him.” United Steel-
workers of America v. Enterprise, Wheel & Car Corp.,
363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed2d
1424 (1960).
DISCUSSION
In his opinion, the arbitrator found as a fact that:
Company practice is that when an employee is
absent over seven days, his time card is pulled and
when he returns to work he must be cleared for med-
g
F
BB
TR
It did not indicate that he had been ill since that
date, or between February 8 and 25.
Anderson also gave Kerns a slip which he claimed
represented a visit to Rochester Hospital Emergency
Room on February 8. That hospital had no such Ac-
count Number. Kerns himself found nothing wrong
when he examined him [Anderson] on February 25,
1980—nothing disabling in his knees or any observ-
able signs of influenza on that date. Confining our-
selves strictly to absenteeism, Anderson’s record did
not improve even after he had been given 3-day and
5-day suspensions in 1979. [Matter in brackets
added] Arb. op. pp. 9-10.
Notwithstanding the finding that Anderson had been
absent from work for nineteen consecutive days without
good and sufficient cause and the clear language of Article
XXVI, Section B 1., the arbitrator nevertheless awarded
reinstatement.’ Such a deviation from the plain meaning
1. The award in its entirety states:
The proper disposition of Larry Anderson’s Grievance No.
CO-13-80 is that he shall be immediately reinstated to his
former job without loss of seniority or other benefits but no
back pay, for a probationary period of six (6) months during
which he 1) must seek help from the Community Health
A20 Appendix B
of the contract can be justified only if it finds support in
the contract itself or if the record reveals past practices
which demonstrate a “relaxation of the literal language.”
NF & M Corp., supra, at 759.
However, the arbitrator made no attempt to support
his award on either of these bases, and our independent
analysis of his opinion, which constitutes the entire record
before us, reveals no rational basis or support whatever
for the award. Id., at 760. In fact, if anything, his
opinion appears to support precisely a contrary award.
First, he notes that the plaintiff presented documentation
of twenty-eight discharges for excessive absenteeism cover-
ing a period of approximately eleven years and finds that
in twenty of those terminations the company relied ex-
clusively on the consecutive-absences-clause found in
Article XXVI, Section B. 1. He draws no specific infer-
ence from this finding, but it certainly supports the con-
clusion that the plaintiff had rather consistenly over a
significant period of time invoked the literal provisions of
Article XXVI, Section B 1. to discharge employees for
excessive absenteeism, and, consequently, that there is no
basis in this past practice from which one properly could
infer any “relaxation of the literal language” of that
provision.
The arbitratur next enters into the following discus-
sion of the relationship between Article XVI, Section J 1.
and Article XXVI1, Section B 1.:
. .. On the question of “just cause” for discharge
the Company's post hearing brief lists three known
Arbitrators who agree with the Company that a
1. (Cont'd. )
Center of Beaver County in at least four (4) visits at the
Company's expense . . . certification to Dr. J. D. Kerns . . .
during the first six weeks of his re-employment and 2) his
percentage of absence during his probation must not be greater
than that of the plant as a whole.
Appendix B A2l
specific provision on discharge, such as we have here
on absenteeism, takes precedence over a general pro-
vision, i.e., Art. XVI, J (3) [sic.] or the Arbitrators’
Wolf, Ray or Kelliher decisions cited in the Union's
post hearing brief, Arb. op. p. 10.
But, instead of indicating whether or not he found
ambiguity in those provisions and, if so, resolving it, the
arbitrator abruptly ends his discussion of this subject with
the above statement and goes on to an entirely different
subject matter, thereby suggesting either that he found
no ambiguity or that if he did he implicitly was resolving
it in favor of the plaintiff's position.” In any event, even
if we assume that the arbitrator somehow deemed Article
XVI, Section J 1. controlling, there is nothing in his opinion
remotely to suggest that he found that the discharge was
“unjust,” and much in his specific findings and the nature
of the award to indicate that he believed the opposite.
See for example, excerpts from arb. op. pp. 9-10 supra, and
the conditional nature of the reinstatement award at fn. 1
Thus, the arbitrator, without a record of past shop
practices or dealings between the parties to support a
finding that the company had waived its prerogatives
under Article XXVI, Section B 1, or on some theory of
contract construction to suggest the modification or nulli-
2. Indeed, a contrary finding would have been “totally unsup-
ported by principles of contract construction ...” Ludwig Honold,
supra at 1128, since, as the arbitrator's opinion suggests, it is a
well established rule of contract construction that “‘a subsequent
specification [Article XXVI, Section B 1.] impliedly limits the mean-
ing of a preceding generalization. [Article XVI, Section J 1.]’”
Affiliated Ford Distributors, Inc. v. Local Union No. 229, 483 F.2d
418, 420 (3rd Cir. 1973), (Matters in brackets added). Accord,
Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556 (3rd
Cir. 1973).
In that regard, this case is quite similar to Inter-
national Brotherhood of Firemen and Oilers, AFL-CIO,
Local No. 935-B. v. Nestle Co., Inc., 630 F.2d 474 (6th
Cir. 1980) relied on by plaintiff. The collective bargain-
ing agreement in that case provided that “insubordination
... Shall constitute cause for the dismissal of any employee
from the service of the Company”. Id., at 475. The
arbitrator made a finding that the grievant refused to obey
a direct order of his superiors on two or three occasions,
but nevertheless ordered reinstatement of the grievant who
had been discharged for insubordination. The Circuit
Court vacated the arbitrator's award which attempted to
modify the contractual phrase “shall constitute cause” to
read “may constitute cause.” In reversing the district
court, the circuit stated:
. . . [T)he collective bargaining agreement ex-
pressly provided that insubordination shall be grounds
for discharge. It is clear and unambiguous. It needs
no interpretation and we find no provision in it giving
the arbitrator power to prescribe the penalty for vio-
lation of the collective bargaining agreement or to
control the exercise of it by the employer. This power
was vested solely in the employer.
The employer was not required to discharge the
employee who violated the collective bargaining
agreement and in the present case probably would
not have done so except for further aggressive acts
committed by the employee. The fact that the arbi-
Appendix B A23
trator found that such further acts were not corrobo-
rated by evidence did not militate against the right of
the employer to discharge the grievant for insubordi-
nation. Id., at 477.
Nestle re-affirms a settled rule in the Sixth Circuit that an
arbitrator may not change or ignore the plain language of
a collective bargaining agreement. See Amanda Bent Bolt
Ce. v. International Union, United Automobile, Aerospace,
Agricultural Implement Workers of America, Local 1549,
451 F.2d 1277 (6th Cir. 1971).
Under the collective bargaining agreement, the plain-
tiff had the express right to discharge an employee who
was absent from work without good and sufficient cause
for more than four consecutive days. Once the arbitrator
made the finding of fact, as he did at p. 9 of his opinion,
that Mr. Anderson failed to show good and sufficient cause
for his nineteen-day-absence, the arbitrator was bound to
affirm the discharge unless there was a basis in the record
to modify or nullify that express contractual right. NF &
M Corp., supra. There was no such basis, and it was not
the function of the arbitrator to substitute his discretion
for that of the employer.
The arbitrator's authority was to construe the col-
lective bargaining agreement and objectively to apply it
to the facts. Nestle, supra.; Detroit Coil Company v. Inter-
national Association of Machinists & Aerospace Workers,
Lodge #2, 594 F.2d 575 (6th Cir. 1979); Amanda, supra.;
Timken Company v. United Steelworkers of America, 492
F.2d 1178 (6th Cir. 1974). Instead, the award is abruptly
contrary to the specific factual findings and legal reasoning
which precedes it. As such, it is a gross non-sequitur and
a classic example of an arbitrator dispensing “his own
brand of industrial justice.” As a consequence, we find
A24 Appendix B
that the award does not “draw its essence from the col-
lective bargaining agreement” Enterprise Wheel, supra.,
363 U.S. at 597, and must be vacated.’ Accordingly, the
plaintiff's motion for summary judgment will be granted
and the defendant's motion denied.
/s/ Gustave DiaMonpD
United States District Judge
Dated: July 10, 1981
xc: George I. Minch, Esquire
624 Frick Building
Pittsburgh, PA 15219
David E. Rosebaum, Esquire
ARCO
1500 Market St.
Philadelphia, PA 19101
Ernest B. Orsatti, Esquire
2000 Lawyers Building
Pittsburgh, PA 15219
3. The arbitrator's award is dated June 18, 1980, but the com-
pany did not reinstate Anderson until July 11, 1980. The defend-
ant counter claimed against the plaintiff for wages that Anderson
lost when the company delayed his reinstatement. To prevail on
Wheel & Car Corp., 363 U.S. 583 (1980), Cf Teamsters Local No.
25 v. Penn Transportation Corp., 359 F Supp. 344 (D. Mass. 1973).
Since the court concludes that the arbitrator's award exceeded his
Appendix B A25
IN THE
DISTRICT COURT OF THE UNITED STATES
For THE WEsTERN District OF PENNSYLVANIA
Crvm Action No. 80-1102
ARCO POLYMERS, INC.,
Plaintiff,
v.
LOCAL 8-74, affiliated with THE OIL, CHEMICAL
AND ATOMIC WORKERS INTERNATIONAL UNION,
Defendant.
Order of Court
AND NOW, this 10th day of July, 1981, for the
reasons set forth in an opinion filed by the court in the
within matter on this date, IT IS ORDERED that the
plaintiff's motion for summary judgment be, and the same
hereby is, granted and the defendant's cross-motion
denied; and,
IT IS FURTHER ORDERED that the plaintiff's
motion for summary judgment on the defendant’s counter
claim be, and the same hereby is, granted and the de-
fendant's cross-motion denied.
/s/ Gustave DiaMonp
United States District Judge
1500 Market St.
Philadelphia, PA 19101
Ernest B. Orsatti, Esquire
2000 Lawyers Building
Pittsburgh, PA 15219
APPENDIX C
UNITED STATES COURT OF APPEALS
For THE Turep Circuit
No. 81-2420
ARCO POLYMERS, INC.
vo.
LOCAL 8-74, affiliated with THE OIL, CHEMICAL
AND ATOMIC WORKERS INTERNATIONAL UNION,
Appellants
(D.C. Civil No. 80-1102)
On APPEAL From THE UNirep States Districr Court
FOR THE WESTERN DisTRICT OF PENNSYLVANIA
Present: Serrz, Chief Judge; Stovrrer, Circuit Judge; and
VANARTSDALEN, District Judge.°
* Honorable Donald W. VanArtsdalen, United States District
ee ee
A28 Appendix C
Judgment
This cause came on to be heard on the record from
the United States District Court for the Western District
of Pennsylvania and was submitted under Third Circuit
Rule 12(6) on February 16, 1982.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
District Court, entered July 10, 1981, be, and the same is
hereby reversed and the cause remanded for proceedings
consistent with the opinion of this Court. Costs taxed
against appellee.
ATTEST:
/s/ Satty Mrvos
Clerk
February 22, 1982
Appendix C A29
UNITED STATES COURT OF APPEALS
For THe Tarp Cracuit
No. 81-2420
ARCO POLYMERS, INC.
v.
LOCAL 8-74, affiliated with THE OIL, CHEMICAL
AND ATOMIC WORKERS INTERNATIONAL UNION,
Appellant
(Civil No. 80-1102H—W.D.Pa.—Pittsburgh )
Sur Petition for Rehearing
Present: Serrz, Chief Judge, ALpisent, Gissons, HunTER,
Wels, Gartu, HiccinsoruaM, SLovirer, Becker, Circuit
Judges, and VaANArtSDALEN, District Judge.°
The petition for rehearing filed by Appellant in the
above entitled case having been submitted to the judges
who participated in the decision of this court and to all
the other available circuit judges of the circuit in regular
active service, and no judge who concurred in the decision
having asked for rehearing, and a majority of the circuit
judges of the circuit in regular active service not having
* Honorable Donald W. VanArtsdalen, United States District
Judge for the Eastern District of Pennsylvania, sitting by designa-
tion.
A30 Appendix C
voted for rehearing by the court in banc, the petition for
rehearing is denied.
By The Court,
/s/ Serrz
Chief Judge
Dated: March 18, 1982
Appendix D A31
Richfield Company
Monaca, Pennsylvania Larry D. Anderson
and Before
On, Cuemicat ann Atomic Robert J. Wagner, Arbitrator
Local Union No. 8-74 Award: June 18, 1980
JURISDICTION
The undersigned was notified by letter dated May 12,
1980 from the Company’s Employee Relations Manager,
James M. Talton and the Union's Counsel, Joseph J. Pass,
Jr., that I would be expected to hear the question in dis-
pute between the parties on May 20, 1980 at the offices
of the Company. This was done. A transcript was taken
and mailed to all concerned under date of June 2, 1980.
Post hearing briefs were received from the parties on
Mils Belich President, Local Union
No. 8-74
Vic Miller Vice President, Local Union
Jas. E. Hartle Financial/ Corresponding
Secretary
A32 Appendix D
Sam Belick Chief Steward
William H. Anthony Shop Steward
Joe Zoiti Witness
Larry D. Anderson Grievant
For THE CoMPANY:
David E. Rosenbaum, Esq. Attorney
Jas. M. Talton Mgr., Employee Relations
A. L. Rice Supvr., Employee Relations
Jack D. Kerns, M.D. Medical Director,
Pittsburgh Area
BACKGROUND
Larry D. Anderson, a Materials Handler at the
ARCO/Polymers plant, hired September 19, 1977, was
discharged by the following letter dated March 7, 1980
from Employee Relations Supervisor A.L. Rice (Joint
Exhibit 2):
“A review of your record has indicated that you have
absent from work without official leave or veri-
and sufficient cause since February 6,
period encompasses twenty (20) working
Appendix D A33
date, March 7, 1980. Any and all compensation
and/or benefits due you as an employee of ARCO
Polymers will cease as of March 7, 1980.
“If you have any questions in response to this letter,
please contact the Employee Relations Department.”
A grievance, No. CO-13-80 (Joint Ex. 3) was then
filed by the Local Union’s Executive Board, signed by
Chief Steward Sam Belick which stated:
“Protest the unjust discharge of L. Anderson. Re-
quest that L. Anderson be reinstated with full pay
for time lost and all overtime that he was entitled to.
Request this grievance be moved and heard in the
next third step. “Violation-Date March 7, 1980”
The “Reply in Third Step,” dated March 21, 1980, and
signed by James M. Talton, Plant Manager and Victor A.
Miller, President of the Local was “No Agreement.” This
brought the grievance on to arbitration under Article XVI
of the Contract—with time limits allowance for the
transcript.
THE ISSUE
Since the parties could not agree upon any precise
language of the Issue before the Arbitrator we shall use
standard procedure and the question is “What is the proper
disposition of Grievance No. CO-13-80 under the terms
of the Contract?”
PERTINENT CONTRACT PROVISIONS:
ARTICLE XXV—Employee Report Off
Section A: Procedure
1. This is to clarify the method that should be used by
employees reporting off from work due to illness or other
legitimate reasons.
AX Appendix D
2. The employee involved or the person calling for him
will call the plant at 774-1000. This should be done sev-
eral hours prior to his normal reporting time. The em-
ployee should request to be connected with Guard Head-
quarters. ny hand ai aati lead a dets
Name of employee His immediate foreman
Badge number The reason for reporting off
Department The name of the person calling
Shift When the employee expects to return
that he will be off for several days, in which case he should
give this information to the Guard. During the forty-eight
(48) hour period starting with the starting from the be-
ginning of the first complete shift of absence, a shift worker
or daylight exception worker is required to contact the
plant at least eight (8) hours before his next scheduled
shift in order that proper adjustment in scheduling may
be made. After the forty-eight (48) hour period it is
required that he contact the plant at least sixteen (16)
hours before his next scheduled shift.
5. This method of reporting off insurers that responsible
people have received the call and made note of it.
ARTICLE XXVI—Attendance
Section A: Absence From Work
1. Employees who tnd it necessary to be absent for illness
or other legitimate reasons that are not known in advance
must report off according to Article XXV.
Appendix D A35
2. Employees who do not request permission time off and
who have not received approval in advance; or who do not
report off will be considered absent and subject to the pro-
visions of Section B of this Article.
3. If the employee reporting off gives a reason which is
questionable, it will be discussed upon his return and the
status determined at that time.
Section B: Excessive Absenteeism
1. Employees absent from work without good and suffi-
cient cause for more than four (4) consecutive days shall
be subject to discharge.
2. If an employee accumulates five (5) unexcused ab-
sences within a six (6) month period following or preced-
ing the anniversary of his hiring date, he will be notified
in writing with a copy to the Chief Steward of the Union
of such circumstances and warned that it will be subject
to discharge if absent more than two (2) additional times
within the specified period.
Section C: Minimizing Absenteeism and Labor Turnover
1. The Union and the Company agree to take suitable ac-
tion among the employees they represent to keep absentee-
ism at a minimum and to keep down excessive labor
turnover.
ARTICLE XVI—Grievance Procedure
Section J: Discharge of Employees
1. Employees shall be discharged only for just cause.
CONTENTIONS OF THE PARTIES
Tue Company insists that Grievant Larry Anderson’s
attendance record was one of the worst it has had in some-
A36 Appendix D
time and its right to discharge him is clearly set forth in
the Contract under Article XXVI, Section B(1). There,
the parties had agreed that an employee who did not show
up for work without good and sufficient cause for four
consecutive days would be subject to discharge. Since he
had not reported for work in the preceding four days (in
fact 20 days) without a good cause prior to March 7, 1980,
he was discharged.
The Company’s practice is not to pull an absent em-
ployee’s time card until after he has been off seven days
to get the reason. However, the Company demonstrated
with letters (Company Ex. 1 A through IBB) that it had
28 employees who had been discharged ‘after four days
absence with its interpretation of just cause. Using cal-
endar years, Anderson was absent 64 days out of 247 avail-
able workdays or 25.9 per cent of the time in 1978. In
1979, he was absent 67 out of 245 days or 27.3 per cent.
In 1980, he was absent 26 out of 38 workdays or 68.4 per
cent. His first discipline was on May 30, 1978 when he
was verbally warned that he had already missed 11 days.
His attendance record did not improve. A formal let-
ter was sent to him on October 24, 1978 noting that he had
missed 23 days since his May 30th warning. He then re-
ceived a disciplinary layoff of three days on January 22,
1979 for absenteeism noting that he had missed 11 days
since his verbal warning in October. On June 8, 1979, in
line with its policy of progressive discipline, Anderson was
given five days off for unacceptable absenteeism. Prior to
this date a Management-Union meeting was held on April
3, 1979 where the five-days suspension was discussed but
withheld.
Management, convinced that medical problems may
have some influence on Anderson’s excessive absenteeism,
asked him on three occasions to consult with the staff at
the Community Health Center of Beaver County but he
Appendix D A37
refused to do so. Anderson had met with the Company's
Doctor Kerns on February 25, 1980 and presented him
with a note from Dr. Sika stating he had examined Ander-
son on February 15, 1980. Dr. Kerns phoned Dr. Sika
on March 7, 1980. The latter who had examined Ander-
son the day before, stated “There has been no reason why
the patient could not have been at work”.
The Company holds that Anderson’s discharge was for
his excessive absence without good and sufficient cause
and his grievance should be denied. THE UNION insists
that ARCO discharged Larry Anderson in violation of its
own policies and procedures. When an employee calls in
and reports off due to sickness or injury and will call in
again as soon as he is able to return to work he is con-
sidered a so-called “will call”. He first called in on Feb-
ruary 6, 1980 reporting off with influenza. He also had
problems with his knees hurting him that day and his
wife phoned in. Larry called in again on February 8th
reporting “Flu and leg trouble”. At the hearing, ARCO
admitted that contrary to their opinion at the time of dis-
charge, the Grievant did properly go on “will call” status
(T.47). Also, for the first time, ARCO based its grounds
for discharge on the Grievant's overall excessive absentee-
ism and disciplinary record.
Anderson attempted to return to work on February 25,
1980, his knees giving him less pain, but was prevented
from doing so by the ARCO physician, Dr. Kerns. The
Company doctor was given a slip from a Dr. Victor Sika
verifying that he was to see Anderson on February 15,
1980. Also asking Dr. Kerns to call him. Anderson’s knee
was visibly swollen when he saw Dr. Kerns on February
25th and the latter testified that he wasn’t sure whether or
not he could return to work (T.75). Furthermore, ARCO
failed to show that the Grievant was not suffering from
pain in his knees, particularly in light of Dr. Kerns’ testi-
mony @ T.75 and 76.
A38 Appendix D
Contrary to ARCO’s assertion at the hearing, the bur-
den of proof remains with the employer not the employee
to show good and sufficient cause. The decision of three
other prominent Arbitrators are cited herein to prove this
point. Professors Elkouir state in their treatise “How
Arbitration Works,” at P.621:
“Discharge is recognized to be the extreme industrial
penalty since the employee’s job, his seniority and
other contractual benefits, and his reputation are at
stake. Because of the seriousness of this penalty, the
burden generally is held to be on the employer to
prove guilt on wrong doing, and probably always so
where the agreement requires ‘just cause’ for dis-
charge.”
Article XVI, Section 4, Paragraph 3 of the current
Contract provides
“If after thorough investigation it is found that an em-
ployee has been unjustly discharged, the employee
shall be reinstated with full back pay for the time
lost.”
Local 8-74 respectfully submits that extreme pain in
the knees is good and sufficient reason for absence. The
attempt of ARCO at the hearing to inject Anderson’s over-
all disciplinary record including absenteeism should be
ignored. We are concerned here with employee absence
from work and ARCO’s own progressive discipline policy
seems to have been effective there; he had not been disci-
plined for absenteeism for approximately 11 months prior
to his discharge.
Upon the basis of the foregoing facts, arguments and
authorities, Local 8-74 respectfully submits that Larry
Anderson has been unjustly discharged, and requests that
he be reinstated to his former position with full back pay.
Appendix D A39
OPINION
The employee in this case was discharged for his ab-
sence without good and sufficient cause (Art. XXVI, B(1) )
as the Company contends or discharged without just cause
Art. XVI, J(1) as the Union insists? And in between with
Grievant Larry Anderson we have a hodge-podge of pro-
gressive discipline penalties, physical infirmities and con-
tradictory testimony.
Company practice is that when an employee is absent
over seven days his time card is pulled and when he returns
to work he must be cleared for medical approval through
the plant dispensary. There is nothing unusual about
this. Anderson had been absent between February 6 and
25 and when he attempted to return on the 25th he was
unable to show “good and sufficient” cause for his absence.
He did show Dr. Kerns a slip from a Dr. Sika dated Feb-
ruary 15 with stated:
“Mr. Larry Anderson was in the office today for a
complete checkup”.
It did not indicate that he had been ill since that date, or
between February 8 and 25.
Anderson also gave Kerns a slip which he claimed rep-
resented a visit to Rochester Hospital Emergency Room
on February 8. That hospital had no such Account Num-
ber. Kerns himself found nothing wrong when he ex-
amined him on February 25, 1980—nothing disabling in
his knees or any observable signs of influenza on that date.
Confining ourselves strictly to absenteeism, Anderson's
record did not improve even after he had been given 3-day
and 5-day suspensions in 1979.
Company Ex. 1(a)—(BB) include 28 discharge let-
ters for excessive absenteeism and/or absence without
good and sufficient cause since December 1, 1968. We
note that the 20 of these employees terminated for absence
over four days relied solely upon Article XXVI, B (1) of
A40 Appendix D
the Contract. On the question of “just cause” for dis-
charge the Company's post hearing brief lists three known
Arbitrators who agree with the Company that a specific
provision on discharge, such as we have here on absentee-
ism, takes precedence over a general provision, i.e., Art.
XVI, J (3) or the Arbitrators’ Wolff, Ray or Kelliher deci-
sions cited in the Union's post hearing brief.
The Union's statement in its post hearing brief that
“the very purpose of progressive discipline is corrective or
remedial rather than punitive”. I wholeheartedly agree.
And it was plain that Dr. Kerns, a Board eligible and suf-
ficiently experienced psychiatrist, suspected earlier that
Anderson had a mental problem that influenced his ab-
senteeism. And if all the truth were known I would not
be surprised to learn that Dr. Sika mentioned this when he
talked to Kerns on March 7, 1980.
I am not going to belabor the medical point here but,
as disclosed at the hearing a common attack of influenza
would not have disabled Anderson from February 5, 1980
to February 25, 1980. As for his knees, if he frequently
has such attacks as he described, he is in real trouble. The
Union cited a decision from the Ekouris in support of its
position. I would like to cite one here from Arbitrator
Teple in Cleveland Trencher, 48'.A615 (1967 )as follows:
“At some point the employer must be able to termi-
nate the services of an employee who is unable to
work more than part-time, for whatever reason. Effi-
ciency and the ability to compete can hardly be main-
tained if employees cannot be depended upon to
report for work with reasonable regularity. Other
Arbitrators have so found, and this Arbitrator has up-
held terminations in several appropriate cases involv-
ing frequent and extended absences due to illness”.
Appendix D A4l
But just before citing the above from their “How Arbi-
tration Works” (p.546) the authors have this statement:
“The right to terminate employees for excessive absences,
even where they are due to illness, is generally recognized
by Arbitrators”. I cite the above only to impress upon
Anderson the importance of immediately getting his knees
problem . . and anything else he has . . permanently
corrected.
AWARD
The proper disposition of Larry Anderson's Grievance
No. CO-13-80 is that he shall be immediately reinstated to
his former job without loss of seniority or other benefits
but no back pay, for a probationary period of six (6)
months during which he 1) must seek help from the Com-
munity Health Center of Beaver County in at least four
(4) visits at the Company’s expense . . . certification to
Dr. J. D. Kerns . . during the first six weeks of his re-
employment and 2) his percentage of absence during his
probation must not be greater than that of the plant as a
whole.
Respectfully submitted,
Robert J. Wagner
ARBITRATOR
Made at Pittsburgh, Pennsylvania
This 18th Day of June 1980
A42 Appendix E
APPENDIX E
Exhibit “A”
AGREEMENT
This Agreement, made as of May 27, 1977, by and
between ARCO/Potymers, Inc. BEAveR VALLEY PLANT
(hereinafter referred to as the “Company”) and Loca.
8-74, affiliated with the Om, CHemicaL aNp ATOMIC
Workers INTERNATIONAL Union, (hereinafter referred to
as the “Union” ), acting on behalf of the employees of the
Company who are represented by the Union at the Com-
pany’s Monaca, Pennsylvania, Plant.
Article XVI—Grievance Procedure
Section A: Grievance Definition.
1. A grievance is defined as any difference of opinion,
controversy or dispute between the Company and the
Union or between the Company and any employee with
respect to the interpretation, application, or alleged viola-
tion of any of the provisions of this Agreement.
Section B: Grievance Committee.
1. The Grievance Committee composed of no more
than four (4) employees and a Shop Steward shall be the
Union’s representative and will be recognized and dealt
with by the Company as the Union’s representative for
settling grievances.
Section C: Initial Efforts To Settle Grievances.
1. It is understood that for the purpose of settling
grievances as expeditiously and effectively as possible an
employee and/or Steward may discuss his grievance with
Appendix E A43
his immediate supervisor who will attempt to settle it to
the mutual satisfaction of the employee and the Company.
2. The parties recognize that any employee who feels
that he is aggrieved should submit such grievance to the
grievance without delay. A grievance must be
filed within ten (10) days from the date the alleged viola-
tion first occurred.
3. The parties to this Agreement recognize that the
grievance should be settled promptly and as close to the
source as possible. Further, commencing at the verbal
step both parties will endeavor to present all the facts re-
lating to this grievance.
Section D: Steps of Grievance Procedure.
1. The following procedure which may be initiated
by the Union shall be applied and relied upon by both
parties as the sole and exclusive means of seeking an ad-
justment of and settling any grievance.
Step 1: A conference among the aggrieved employee,
his Steward, the employee’s immediate Foreman, and his
Departmental Foreman will be scheduled and held within
five (5) (except Saturday, Sunday or holidays) days after
notification of said grievance. The time for this discussion
shall be so arranged by the Departmental Foreman so as
not to interfere with the work in the department. If settle-
ment is not reached or an answer is not given to the Shop
Steward by the Departmental Foreman within two (2)
days (except Saturday, Sunday or holidays) after this
conference, the grievance can be moved to Step 2 if re-
quested by the Union within five (5) days after receipt
of the Step 1 answer.
Step 2: ° By conference among te aggrieved em-
ployee, his Steward, Chief Steward, and/or Chairman of
* See Memorandum of Agreement—Clarifications.
A44 Appendix E
the Grievance Committee, Superintendent, other Manage-
ment Representatives and any other salaried personnel
directly connected with the grievance within ten (10) days
(except Saturday, Sunday or holidays) after the meeting
is requested by the Union. If settlement is not reached
or an answer is not given to the Union by the
Departmental Superintendent within five (5) days (except
Saturday, Sunday or holidays) after this conference, the
grievance can be moved to Step 3 if requested by the Union
within five (5) days (except Saturday, Sunday or holi-
days) after receipt of the Step 2 answer. All grievances
submitted to Step 3 shall be first reduced to writing and
presented to the Plant Employee Relations Manager
within the designed time limits.
Step 3: By conference among officials of the Union
and Management Representatives within thirty (30) days
after a meeting is requested by the Union.
2. A grievance may be instituted at Step 3 if recom-
mended by the Union Executive Board and the Plant Eim-
ployee Relations Manager.
Section E: Arbitration.
1. A grievance not settled as set forth in Section D of
this Article shall be deemed subject to arbitration if the
party that initiated the grievance notifies the other in writ-
ing within forty (40) days after completion of the third
step meeting of its intention to take the grievance to arbi-
tration. Such notification must be in sufficient detail for
identification purposes. Within five (5) days after such
notification, the parties shall jointly request an Arbitrator
to set a hearing date within sixty (60) days of submission
of the matter to him. The Arbitrator must render a de-
cision within thirty (30) days from the date of the hearing.
2. An Arbitrator shall be selected by agreement be-
tween the Company and the Union from a panel submitted
Appendix E A45
by the Federal Mediation and Conciliation Service. The
Arbitrator so selected shall serve as an impartial Arbitrator
for the grievances for which he or she is so selected. In
frequency of meeting and the procedure that shall govern
the presentation and hearing of matters referred to him.
Section F: Time Limits.
1. The time limits set forth in this Article are in-
tended to be strictly applied. The failure of
to hold a meeting or give an answer within the time limits
herein established shall result in a settlement of the griev-
i
be used or cited in future grievances or arbitrations.
2. The time limits established in this Article may be
extended by mutual agreement of the parties.
Section G: Arbitration Decisions.
1. Decisions of the Arbitrator shall be final and bind-
ing upon the Company and the Union.
2. No decision shall be made by the Arbitrator with-
out the participation of the representatives of both the
Union and the Company unless, in the opinion of the Arbi-
trator, proceedings are being unnecessarily delayed. In
this case, after due notice by the Arbitrator to both parties
hereto, decisions may be reached without the participation
of the party causing the delay.
A46 Appendix E
Section H: Limits to Arbitration Procedure.
1. The arbitration procedure shall not be used to
change or modify this Agreement in any resp-ct.
Section I: Arbitration Costs.
1. The expenses of the Arbitrator shall be borne
equally by the Company and the Union.
Section J: Discharge of Employees.
1. Employees shall be discharged only for just cause.
2. Any protest against a discharge must be handled
in accordance with the grievance procedure and must be
made within one (1) week of the time of notification of
such discharge by the Company in writing to the Union.
3. If after thorough investigation it is found that an
employee has been unjustly discharged, the employee shall
be reinstated with full pay for time lost.
Section K: Visitation of Union Officers.
1. The President and/or Chief Steward of the Local
Union shall be permitted to visit the Plant at any time to
investigate grievances after proper notification to the Plant
ries ieiienees Shamans or ths talk Sepaniniedioen.
2. Representatives of the International Union upon
making an appointement with the Plant Employee Rela-
tions Manager shall be permitted to visit the Plant during
daytime working hours to investigate grievances pre-
sented in writing by the Union.
Section L: Time Off for Union Representatives.
1. The Union representatives shall be allowed such
time off with pay which would otherwise be received as
may be required to attend meetings held under the griev-
ance ‘
|
3. This information will be recorded by the Guard
who will then contact a Foreman in the unit or department
involved as soon as possible.
4. An employee should report off each day unless he
knows that he will be off for several days, in which case
he should give this information to the Guard. During the
forty-eight (48) hour period starting from the beginning
of the first complete shift of absence, a shift worker or day-
light exception worker is required to contact the plant at
order that proper adjustment in scheduling may be made.
After the forty-eight (48) hour period it is required that he
contact the plant at least sixteen (16) hours before his
next scheduled shift.
* See Memorandum of Agreement—Clarifications.
A48 Appendix E
5. This method of reporting off insures that responsi-
ble people have received the call and made note of it.
Article XXVI—Attendance
Section A: Absence From Work.
1. Employees who find it necessary to be absent for
illness or other legitimate reasons that are not known in
advance must report off according to Article XXV.
2. Employees who do not request permission time off
and who have not received approval in advance; or who
do not report off will be considered absent and subject to
the provisions of Section B of this Article.
3. If the employee reporting off gives a reason which
is questionable, it will be discussed upon his return and
the status determined at that time.
Section B: Excessive Absenteeism.
1. Employees absent from work without good and
sufficient cause for more than four (4) consecutive days
shall be subject to discharge.
2. If an employee accumulates five (5) unexcused
absences within a six (6) month period following or pre-
ceding the anniversary of his hiring date, he will be notified
in writing with a copy to the Chief Steward of the Union
of such circumstances and warned that he will be subject
to discharge if absent more than two (2) additional times
within the specified period.
Section C: Minimizing Absenteeism and
Labor Turnover.
1. The Union and the Company agree to take suitable
action among the employees they represent to keep ab-
senteeism at a minimum and to keep down excessive labor
turnover.
Appendix F A49
APPENDIX F
IN THE
UNITED STATES DISTRICT COURT
For THe WesTERN District OF PENNSYLVANIA
Civil Action No. 80-1102
ARCO POLYMERS, INC.,
Plaintiff,
LOCAL 8-74, affiliated with THE OIL, CHEMICAL AND
ATOMIC WORKERS INTERNATIONAL UNION,
Defendant.
Transcript of Proceedings
of Oral Argument held on April 1, 1981, commencing at
2:00 o'clock p.m., in the United States District Court,
Pittsburgh, Pennsylvania, before the Honorable Custave
Diamond, District Judge.
APPEARANCES:
On behalf of the Plaintiff:
David E. Rosenbaum, Esquire
George I. Minch, Esquire
On behalf of the Defendant:
Ernest B. Orsatti, Esquire
[39]
THE COURT: But I don’t think Amanda or any of
the other cases dealing with specific instances as opposed
MR. ROSENBAUM: Well, you see, at the present
time I have a record that has in it 28 exhibits of which
20 involve—28 Exhibit No. 1's.
THE COURT: Twenty consecutive discharges.
MR. ROSFNBAUM:—of which 20 of them were
consecutive discharges for over four days absence, and
every single
[40]
time that was the article cited, not the just cause provision.
That’s the only article cited in each of those, and each
was sent to the union.
The president of the union appears as a copy on each
one of those exhibits, and in eleven years no one has even
grieved, and we have had successive contracts.
Now, is the arbitrator going to go back and redo that?
Are we going to get back into that?
1962-1981
A52 Appendix G
1962—4 decisions
Boot and Shoe Workers Union, Local 149 v. Faith Shoe
Co., 201 F. Supp. 234 (M. D. Pa.)
Local 1241, I. B. E. W. v. Columbia Broadcasting System,
Inc., 207 F. Supp. 423 (E. D. Pa.)
Selb Mfg. Co. v. I. A. M., Dist. No. 9, 305 F. 2d 177 (8th
Cir. )
United Furniture Workers of America, Local 395 v. Virco
Mfg. Corp., 257 F. Supp. 138 (E. D. Ark.)
1963—9 decisions
American Machine and Foundry Co. v. U. A. W., Local
116, 256 F. Supp. 161 (S. D. N. Y.)
Electric Speciality Co. v. Local 1069, I. B. E. W., 222 F.
Supp. 314 (D. Conn.)
Greater Kansas City Laborers District Council, Inter-
national Hod Carriers, Building and Common Lab-
orers Union of America of Greater Kansas City, and
Vicinity v. Builders Ass'n. of Kansas City, 217 F.
Supp. 1 (W. D. Mo.)
H. K. Porter Co., Inc. v. United Saw, File and Steel Prods.
Workers, etc., 217 F. Supp. 161 (E. D. Pa.)
Local 458, International Union of Electrical, Radio &
Machine Workers v. Otis Elevator Co., 314 F. 2d 25
(2d Cir. )
Royal Industrial Union, Local 987, U. A. W. v. Royal
McBee Corp., 217 F. Supp. 277 (D. Conn.)
U. S. A. v. Timken Roller Bearing Co., 324 F. 2d 738 (6th
Cir. )
United Steelworkers of America v. Danville Foundry
Corp., 46 CCH Lab. Cas. { 18,119 (M. D. Pa.)
Winnebago Lodge 1947, International Ass'n. of Machinists
v. Kiekhaefer Corp., 215 F. Supp. 611 (E. D. Wis.)
Appendix G A53
1964—7 decisions
H. K. Porter Co., Inc. v. United Saw, File and Steel
Products Workers, etc., 333 F. 2d 596 (3rd Cir.)
Kansas City Luggage & Novelty Workers Union, Lecal 66
v. Neevel Luggage Manufacturing Co., Inc., 325 F. 2d
992 (8th Cir.)
Marble Products Co. of Georgia v. Local 155, etc., 335
F. 2d 468 (5th Cir. )
Minute Maid Co. v. Citrus, Cannery, Food Processing, etc.,
Workers, Local 444, 331 F. 2d 280 (5th Cir.)
Transport Workers Union of Phila., Local 234 v. Phila.
Transportation Co., 228 F. Supp. 423 (E. D. Pa.)
Truck Drivers & Helpers Union Local 728 v. Georgia
Highway Express, Inc., 328 F. 2d 93 (5th Cir.)
Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert
Co., 330 F. 2d 562 (8th Cir.)
1965—6 decisions
American Bosch Arma Corp. v. International Union of
Electrical, Radio and Machine Workers “ocal 794,
243 F. Supp. 493 (N. D. Miss. )
Local 7-644, Oil, Chemical and Atomic Workers, etc. v.
Mobil Oil Co., 350 F. 2d 708 (7th Cir.)
Metal Products Workers Union, Local 1645 v. Torrington
Co., 242 F. Supp. 813 (D. Conn.)
National Bro. Packing. & Dairy Workers v. Western Iowa
Pork Co., 247 F. Supp. 663 (S. D. Iowa)
Sheet Metal Workers’ International Union, Local Union 17
v. Aetna Steel Products Corp., 246 F. Supp. 236 (D.
Mass. )
United Steelworkers of America v. Caster Mold and
Machine Co., 345 F. 2d 429 (6th Cir.)
A54 Appendix G
1966—10 decisions
International Brotherhood of Pulp, Sulfite and Paper Mill
Workers, Local Union 874 v. St. Regis Paper Co., 362
F. 2d 711 (5th Cir.)
Lithographers & Photoengravers, etc. v. Rittenhouse Press,
Inc., 259 F. Supp. 160 (E. D. Pa.)
Mine, Mill & Smelter Workers, etc., Local 16 v. Anaconda
Co., 260 F. Supp. 445 (D. Mont. )
Newark Stereotypers’ Union 18 v. Newark Morning Ledger
Co., et al., 261 F. Supp. 832 (D. N. J.)
Safety Electrical Equipment Corp. v. Local 299, United
Electrical, etc. Workers, 62 LRRM 2786 (D. Conn.)
Shahmoon Industries, Inc. v. United Steelworkers of
America, et al., 263 F. Supp. 10 (D. N. J.)
Sheet Metal Workers’ Int'l. Union, Local Union 17 vo.
Aetna Steel Products Corp., 359 F. 2d 1 (1st Cir.),
cert. denied 385 U. S. 839.
Torrington Co. v. Metal Products Workers Union Local
1645, 362 F. 2d 677 (2d Cir. )
U. A. W., Local 985 0. W. M. Chace Co., 262 F. Supp.
114 (E. D. Mich.)
Western Iowa Pork Co. v. Nat. Bro. Packing. & Dairy
Workers, 366 F. 2d 275 (8th Cir.)
1967—12 decisions
Baldwin-Montrose Chem. Co., Inc. v. Int'l. Union, United
Rubber, etc. Workers, 383 F. 2d 796 (6th Cir. )
Chambers v. Beaunit Corp., 278 F. Supp. 62 (E. D. Tenn. )
Dallas Typographical Union No. 173 v. A. H. Belo Corp.,
372 F. 2d 577 (5th Cir.)
Foster-Forbes Co. v. Glass Bottle Blowers, etc., 263 F.
Supp. 729 (N. D. Ind.)
Hill ». ARO Corp., et al., 275 F. Supp. 482 (N. D. Ohio)
Appendix G A55
Kroger Co. v. International Brotherhood of Teamsters,
Local 661, 380 F. 2d 728 (6th Cir.)
Lee, et al. v. Olin Mathieson Chemical Corp., et al., 271
F. Supp. 635 (W. D. Va.)
Local 13, ILWU vt. Pacific Maritime Ass'n., 278 F. Supp.
755 (C. D. Cal.)
Local 342, U. A. W., et al. v. T. R. W., Inc., 65 LRRM
2597 (D. Tenn. )
Local 719, Amer. Bakery and Confectionery Workers, etc.
v. National Biscuit Co., 378 F. 2d 918 (3d Cir.)
Ludwig Honold Mfg. Co. v. Fletcher, 260 F. Supp. 917
(E. D. Pa.)
United Steelworkers of America, Local Union 4936 v.
Sharon Tube Co., 56 CCH Lab. Cas. { 12,201 (W. D.
Pa.)
1968—14 decisions
American Sterilizer Co. v. Local Union No. 832, etc., 278
F. Supp. 637 ( W. D. Pa.)
Anaconda Co. v. Mine, Mill & Smelter Workers, etc., Local
16, 402 F. 2d 749 (9th Cir. )
Chambers v. Beaunit Corp., 404 F. 2d 128 (6th Cir.)
Joint Board of Cloak, Shirt and Dressmakers Union of
International Ladies’ Garment Workers Union v.
Senco, Inc., 289 F.Supp. 513 (D. Mass. )
Local Union No. 494, International Brotherhood of Elec-
trical Workers v. Brewery Proprietors, et al., 289 F.
Supp. 865 (E. D. Wis.)
Lynchburg Foundry Co. v. United Steelworkers of Amer-
ica, Local 2556, 285 F. Supp. 59 (W. D. Va.)
New Orleans SS Ass'n. v. General Longshore Workers,
etc., 389 F. 2d 369 (5th Cir.)
Safeway Stores v. American Bakery & Confectionery
Workers International, Local 111, 390 F. 2d 79 (5th
Cir. )
A56 Appendix G
Teamsters Local Unions 745, et al. v. Braswell Motor
Freight Lines, Inc., 392 F. 2d 1 (5th Cir.)
Textile Workers Union v. Textile Paper Products, Inc.,
405 F. 2d 397 (5th Cir. )
U. A. W. v. T. R. W., Inc., 402 F. 2d 727 (6th Cir.), cert.
denied, 395 U.S. 910
Union Hardware Division, etc. v. Local 247, IUE, 67
LRRM 2541 (D. Conn. )
Woodward Iron Co., etc. v. U. §. A., Local 2556, 404 F. 2d
259 (4th Cir. )
Yellow Cab Co. v. Democratic Union Organizing Com-
mittee, 395 F. 2d 735 (7th Cir.), cert. denied, 393
U.S. 1015
1969—11 decisions
Amalgamated Butcher Workmen Local Union No. 641 v.
Capitol Packing Co., 413 F. 2d 668 (10th Cir.)
Amalgamated Food & Allied Workers Local 56 v. Great
Atlantic & Pacific Tea Co., 415 F. 2d 185 (3rd Cir.)
District 50, U. M. W. v. Tenn Glad Industries, Inc., 297
F. Supp. 52 (E. D. Tenn. )
Eusebio Palacios, et a!. v. Texaco Puerto Rico, Inc., 305
F. Supp. 1076 (D. P. R.)
Federal Labor Union No. 18887 v. Midvale-Heppenstall
Co., 298 F. Supp. 574 (E. D. Pa.)
Holly Sugar Corporation v. Distillery, Rectifying, Wine
and Allied Workers International Union, AFL-CIO,
No. 22152, 412 F. 2d 899 (9th Cir. )
I. A. M., Dist. 8 v. Campbell Soup Co., 406 F. 2d 1223
(7th Cir.), cert. denied 396 U. S. 820
Ludwig Honold Mfg. Co. v. Fletcher, 405 F. 2d 1123
(3d Cir. )
National Maritime Union of America v. Federal Barge
Lines, Inc., 304 F. Supp. 256 (E. D. Mo.)
Appendix G A57
New Orleans SS. Ass'n. v. I. L. A. Locals 1418 and 1419,
306 F. Supp. 134 (E. D. La.)
San Francisco-Oakland Newspaper Guild v. Tribune Pub’g.
Co., 407 F. 2d 1327 (9th Cir. )
1970—10 decisions
Communications Workers of America v. American Tele-
phone and Telegraph Co., 64 CCH Lab. Cas. { 11,491
(S. D. N. Y.)
Federal Labor Union No. 18887 v. Midvale-Heppenstall
Co., 421 F. 2d 1289 (3d Cir.)
Humble Oil & Refinery Co. v. Local 866, International
Brotherhood of Teamsters, 321 F. Supp. 374 (S. D.
N. Y.)
Int'l. Auto Sales & Service, Inc. v. Teamsters, Local Union
No. 270, 311 F. Supp. 313 (E. D. La.)
International Brotherhood of Pulp, Sulfite and Paper Mill
Workers v. Allied Paper, Inc., 64 CCH Lab. Cas.
{ 11,425 (S. D. Ala.)
Int'l. U. of District 50, UMW wv. Bowman Transportation,
Inc., 421 F. 2d 934 (5th Cir.)
International Union of Electrical, Radio and Machine
Workers, Locals 103, 106 and 110 v. Radio Corp. of
America, 74 LRRM 2883 (S. D. N. Y.)
Local 416, Sheet Metal Workers International Ass'n. v.
ABC Contractors, Inc., 335 F. Supp. 646 (W. D. Wisc.)
Local Freight Drivers, Local No. 208, et al. v. Braswell
Motor Freight Lines, Inc., 422 F. 2d 109 (9th Cir.),
cert. denied, 400 U. S. 827
New Orleans SS. Ass'n. v. I. L. A. Locals 1418 and 1419,
423 F. 2d 38 (5th Cir.)
1971—7 decisions
Amanda Bent Bolt Co. v. U. A. W., Local 1549, 451 F. 2d
1277 (6th Cir.)
A58 Appendix G
Harris v. Chemical Leaman Tank Lines, 437 F. 2d 167
(5th Cir.)
Hilton Int'l. Co. v. Union de Trabajadores, eic., 337 F.
Supp. 882 (D. P. R.)
Humble Oil & Refining Co. v. I. B. T. etc., 447 F. 2d 229
(2d Cir. )
Local 416, Sheetmetal Workers International Ass'n. v.
Helgesteel Corp. v. Iron Workers Local 498 of the
International Ass'n. of Bridge, Structural and Orna-
mental Workers, 335 F. Supp. 812 (W. D. Wisc.)
Textile Workers Union of America v. Cast Optics Corp.,
80 LRRM 3183 (D. N. J.)
U. S. A. v. Amax Aluminum Mill Prods., Inc., 451 F. 2d
740.( 9th Cir. )
1972—11 decisions
Bricklayers, etc., Union No. 7 of Nebraska v. Lueder Con-
struction Co., 346 F. Supp. 558 (D. Neb.)
Intl. Union of Operating Engineers, Local No. 450 v.
Mid-Valley, Inc., 347 F. Supp. 1104 (S. D. Tex.)
International Ass'n. of Machinists etc., Lodge 917 v. Air
Products and Chemicals, Inc., 341 F. Supp. 874
(E. D. Pa.)
Local No. 464, American Bakery and Confectionery
Workers International Union v. Stroehmann Brothers
Co., 82 LRRM 2737 (E. D. Pa.)
Local 1115 Nursing Home Hospital, Senior Citizens Hotel
Union v. Hialeah Convalescent Home, Inc., et al., 348
F. Supp. 405 (S. D. Fla.)
Newark Wire Cloth Co. v. United Steelworkers of America,
339 F. Supp. 1207 (D. N. J.)
New England Telephone and Telegraph Co. v. Inter-
national Brotherhood of Telephone Workers, 81
LRRM 2861 (D. Mass.)
Appendix G A59
San Antonio Newspaper Guild Local 25, etc. v. San
Sie Ge eens om, SEE TRE (eB
Tex.
Scottex Corp. v. Knit Goods etc. Workers, ILGWU, Local
155, 80 LRRM 2879 (S. D. N. Y.)
Sharpe v. Carolina Freight Carriers Corp. and Local 107
of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
337 F. Supp. 528 (E. D. Pa.)
Textile Workers Union of America v. Cast Optics Corp.,
464 F. 2d 577 (3rd Cir.)
1973—10 decisions
Amalgamated Meat Cutters, etc., Local 81 v. Milwaukee
Sausage Co., 84 LRRM 2571 (D. Wash.)
Boilermakers, Local 347 v. Pullman, Inc., Trailmobile Div.,
357 F. Supp. 536 (E. D. Pa.)
Chauffeurs, Teamsters, Warehousemen and Helpers Local
Union 446 v. Marathon County Farmers Union Co-
operative, 83 LRRM 2995 (W. D. Wis.)
Detroit Local Joint Executive Board, Hotel and Restaurant
Employees and Bartenders International Union v.
Howard Johnson Co., Inc., 482 F. 2d 489 (6th Cir.),
reversed on other grounds, 417 U. S. 249
Local No. 464, American Bakery and Confectionery
Workers, etc. v. Stroehman Brothers Co., 478 F. 2d
1398 (3rd Cir.)
Los Angeles Newspaper Guild, Local 69, American News-
paper Guild v. The Hearst Corp., et al., 352 F. Supp.
1383 (C. D. Cal.)
Schlesinger, et al. v. Building Service Employees Inter-
national Union Local 252, 367 F. Supp. 760 (E. D.
Pa.)
Teamsters Local No. 25 v. Penn Transportation Corp., 359
F. Supp. 344 (D. Mass.)
A60 Appendix G
Timkin Co. v. Local Union No. 1123, United Steelworkers
of America, 482 F. 2d 1012 (6th Cir.) cert. denied,
414 U. S. 1004
Union Employers Division of Printing Industry of Wash-
ington, D. C., Inc. v. Columbia Typographical Union
No. 101, 353 F. Supp. 1348 (D. D. C.)
1974—19 decisions
Amalgamated Clothing Workers of America v. Winfield
Manufacturing Co., Inc., 89 LRRM 2206 (N. D. Ala.)
Botany Industries, Inc. v. New York Joint Board, Amal-
gamated Clothing Workers of America, 375 F. Supp.
485 (S. D.N. Y.)
I. B. E. W., Local Union 278 wv. Jetero Corp., 496 F. 2d
661 (5th Cir. )
ILWU Local 142 v. Land & Construction Co., Inc., 498
F. 2d 201 (9th Cir. )
Keystone Printed Specialities Co., Inc. v. Scranton Print-
ing, Pressmen and Assistants’ Union No. 119, 386
F. Supp. 416 (M. D. Pa.)
Koehring Co. v. IUE, Local 699, 87 LRRM 2472 (S. D.
Ohio )
Local Union No. 179, United Textile Workers of America,
374 F. Supp. 633 (E. D. Mo.)
Local Union No. 251 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America v. Narragansett Improvement Co., 86
LRRM 3086 (D. R. L)
Local Union No. 251 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America v. Narregansett Improvement Co., 503
F. 2d 309 (Ist Cir.)
Local 769, Bakery & Confectionery Workers International
Union of America v. Cotton Baking Co., Inc., 377 F.
Supp. 1172 (W. D. La.)
Appendix G A61
Proctor & Gamble Manufacturing Co. v. Independent Oil
and Chemical Workers, 386 F. Supp. 213 (D. Md.)
Retail Store Employees Union, Local 782 v. Sav-On
Groceries, 88 LRRM 3204 (D. N. M.)
Seward v. Brown & Williamson Tobacco Corp., 88 LRRM
2381 (W. D. Ky.)
Timkin Co. v. United Steelworkers of America, 492 F. 2d
1178 (6th Cir. )
Truck Drivers, Chauffeurs & Helpers Local Union No. 100
v. -Freeze Cold Storage, Inc., et al., 375 F. Supp.
725 (S. D. Ohio)
U. A. W. v. White Motor Corp., 505 F. 2d 1193 (8th Cir.)
Union Employees Division etc. v. Columbia Typographi-
cal Union No. 101, 492 F. 2d 669 (D. C. Cir.),
affirming without opinion, 353 F. Supp. 1348 (D. D. C.
1973)
United Brotherhood of Carpenters and Joiners of America,
et al. v. American Superior Midwest, Inc., 86 LRRM
2682 (W. D. Ark.)
Yakima Newspaper Guild Local No. 27 of the Newspaper
Guild v. Republic Publishing Co., 375 F. Supp. 945
(E. D. Wash.)
1975—18 decisions
Amalgamated Clothing Workers of America v. Winfield
Mfg. Co., Inc., 90 LRRM 2890 (5th Cir.)
Amalgamated Meat Cutters, etc. v. Cross Brothers Meat
Packers, Inc., 518 F. 2d 1113 (3rd Cir.)
Bakery and Confectionery Workers, etc. v. Cotton Baking
Co., 514 F. 2d 1235 and 520 F. 2d 943 (5th Cir.),
cert. denied 423 U. S. 1055
Central Mootr Express, Inc. ». General Drivers, Ware-
housemen and Helpers, Local Union No. 89, 407 F.
Supp. 1217 ( W. D. Ky.)
C. W. A. v. Western Electric Co., 397 F. Supp. 1318 (N. D.
Ga.)
A62 Appendix G
Daisey v. Lindy's Coffee Shop, Inc., 397 F. Supp. 767
(C. D. Cal.)
Federation of Telephone Workers of Pa. v. The Bell Tele-
phone Co. of Pa.; The Bell Telephone Co. of Pa. v.
Federation of Telephone Workers of Pa., 406 F. Supp.
1201 (E. D. Pa.)
Hellman v. Program Printing, Inc., 400 F. Supp. 915
(S. D. N. Y.)
Keystone Printed Specialties Co. v. Scranton Printing, etc.,
517 F. 2d 1398 (3rd Cir.) affirming without opinion,
386 F. Supp. 416 (M. D. Pa. 1974)
Kirby v. Spartan Stores, Inc., 88 LRRM 3072 (D. Mich.)
Koehring Co. v. IUE, Local 699, 513 F. 2d 632 (6th Cir.),
affirming without opinion 87 LRRM 2472 (S. D.
Ohio 1974)
Local 369, Bakery & Confectionery Workers, etc. v. Cotton
Baking Co., 514 F. 2d 1235 (5th Cir.)
Master Sheet Metal Workers, etc., Ass'n. v. Local Union
No. 17, 397 F. Supp. 1372 (D. R. L.)
NF&M Corp. v. U. S. A., 88 LRRM 3345 (W. D. Pa.)
NF&M Corp. v. U. S. A., 524 F. 2d 756 (3rd Cir.)
Retail Store Employees Union, Local 782 wv. Sav-On
Groceries, 508 F. 2d 500 (10th Cir.)
Staffman’s Organizing Committee v. United Steelworkers
of America, 399 F. Supp. 102 (W. D. Mich.)
Television & Radio Artists v. National Broadcasting Co.,
Inc., 89 LRRM 2191 (S. D. N. Y.)
1976—21 decisions
Amalgamated Meat Cutters and Food Handlers of North
America, District Union 653-653A v. Landy Packing
Co., 96 LRRM 2874 (D. Minn.)
Bell Tel. Co. v. Federation of Tel. Workers, 546 F. 2d 415
(3d Cir.), cert. denied, 430 U. S. 969, affirming with-
out opinion, 406 F. Supp. 1201 (E. D. Pa. 1975)
Appendix G A63
College Hall Fashions, Inc. v. Phila. Jt. Board, etc., 408
F. Supp. 722 (E. D. Pa.)
General Drivers, Helpers and Truck Terminal Employees,
Local No. 120 v. Sears, Roebuck & Co., 535 F. 2d
1072 (8th Cir. )
General Teamsters, Chauffeurs and Helpers, Local Union
No. 249 v. Potter-McCune Co., 412 F. Supp. 8 (W. D.
Pa.)
Hotel, Motel, Restaurant and Hi-Rise Employees and
Bartenders Union, Local 355 v. Fontainebleau Hotel
Corp., 423 F. Supp. 83 (S. D. Fla.)
I. A. M., District 776 v. Texas Steel Co., 538 F. 2d 1116
(5th Cir. ), cert. denied, 429 U. S. 1095
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, Local 6
v. Saga Foods, Inc., et al., 407 F. Supp. 1247 (N. D.
Ill. )
Kansas City Royals Baseball Corp. v. Major League Base-
ball Players Ass'n., 409 F. Supp. 233 (W. D. Mo.)
Kansas City Royals Baseball Corp. v. Major League Base-
ball Players Ass'n., 532 F. 2d 615 (8th Cir.)
Keane, et al. v. Eastern Freightways, Inc., 78 CCH Lab.
Cas. { 11,427 (D. N. J.)
Kellogg Co. v. International Printing Pressmen and Asso-
ciates Union of North America, et al., 410 F. Supp.
207 ( W. D. Mich. )
Local Union No. 639, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Inc. v. Jacobs Transfer Co., Inc., 407 F.
Supp. 125 (D. D.C.)
Meat & Allied Food Workers Local No. 248 v. Packerland
Packing Co., Inc., 411 F. Supp. 1280 (E. D. Wisc. )
Monogahela Power Co. v. Local No. 2332, International
Brotherhood of Electrical Workers, 566 F. 2d 1196
(4th Cir. )
A64 Appendix G
Siskey v. General Teamsters, etc., Local No. 261, 419 F.
Supp. 48 (W. D. Pa.)
Sun Oil Co. of Pa. v. Local 8-901, Oil, Chemical, and
Atomic Workers’ International Union, 421 F. Supp.
1376 (E. D. Pa.)
Truck Driver's Loval Union No. 807 v. The Bohack Corp.,
541 F. 2d 312 (2nd Cir.), cert. denied, 439 U. S. 825
Victor Electric Wire and Cable Corp. v. International
Brotherhood of Electrical Workers, Local 2014, 411
F. Supp. 338 (D. R. L.)
Victor Electric Wire and Cable Corp. v. International
Brotherhood of Electrical Workers, Local 2014, 546
F. 2d 413 (1st Cir.), affirming without opinion, 411
F. Supp. 338
Western Elec Co. v. C. W. A., 409 F. Supp. 161 (D. Md.)
, 1977—19 decisions
Bernard v. McLean Trucking Co., 429 F. Supp. 284 (D.
Kans. )
Bohack Corp. v. Truck Drivers Local Union No. 807 etc.,
567 F. 2d 237 (2d Cir.), cert. denied, 439 U. S. 825
Bohack Corp. v. Truck Drivers Local No. 807, Interna-
tional Brotherhood of Teamsters etc., 431 F. Supp.
646 (E. D.N. Y.)
Capital City Tel. Co. v. C. W. A., 97 LRRM 2394 (W. D.
Mo.)
Celmer v. Luden’s, Inc. and Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local Union No. 429, 427
F. Supp. 991 (E. D. Pa.)
General Warehousemen and Helpers Local 767 v. Standard
Brands, Inc., 560 F.2d 700 (5th Cir. ), cert. dismissed,
443 U.S. 913
Glaziers Local Union 1184 v. Pittsburgh Plate Glass Indus-
tries, Inc., 97 LRRM 2083 (M. D. Tenn.)
Lewis v. Greyhound Lines—East, et al., 555 F. 2d 1053
(D. C. Cir.), cert. denied, 434 U. S. 997
Appendix G A65
Local 771, I. A. T. S. E. v. RKO General, Inc., 546 F. 2d
1107 (2nd Cir. )
Mistletoe Express Service v. Motor Expressmen’s Union,
566 F. 2d 692 (10th Cir. )
Morysville Body Works, Inc. v. United Steelworkers of
America, Local Union No. 6622, 96 LRRM 3205
(E. D. Pa.)
Paperhandlers Union No. 1, etc. v. U. S. Trucking Corp.,
441 F. Supp. 469 (S. D. N. Y.)
Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly
Wiggly Operator's Warehouse Independent Truck
Drivers Union, Local No. 1, 434 F. Supp. 83 (W. D.
La. )
Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly
Wiggly Operator's Warehouse Independent Truck
Drivers Union, Local No. 1, 438 F. Supp. 164 (W. D.
La.) (on rehearing )
Santos v. Dist. Council of N. Y. City and Vicinity, etc., 547
F. 2d 197 (2nd Cir. )
Service Personnel and Employees of the Dairy Industry,
Teamsters Local Union No. 205, etc., et al. v. Carl
Colteryahn Dairy, Inc., 436 F. Supp. 341 (W. D. Pa.)
Sheet Metal Workers International Ass'n, Local Union No.
49 v. Los Alamos Constructors, Inc., 550 F. 2d 1258
(10th Cir. )
Union de Tronquistas de Puerto Rico, Local 901, et al. v.
Flagship Hotel Corp., 554 F. 2d 8 (1st Cir.)
Western Elec. Co. v. C. W. A., 554 F. 2d 135 (4th Cir.)
1978—15 decisions
IN THE MATTER OF THE ARBITRATION BETWEEN Behring
International, Inc. and Local 295 International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, 449 F. Supp. 513
(E. D.N. Y.)
A66 Appendix G
Capital City Tel: Co. v. C. W. A., 575 F. 2d 655 (8th Cir.)
Chicago Typographical Union No. 16 v. Field Enterprises,
Inc., Slip Opinion (N. D. Ill, No. 78 C 1907)
Crusco, et al. v. Fisher & Brother, Inc. and Local 814,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 458 F. Supp.
413 (S. D.N. Y.)
Falstaff Brewing Corp. v. Local 153, International Brother-
hood of Teamsters Local Union No. 153, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America v. Falstaff Brewing
Corp., 479 F. Supp. 850 (D. N. J.)
General Warehousemen and Helpers Local 767 v. Standard
Brands, Inc., 579 F. 2d 1282 (5th Cir.), cert. dis-
missed, 441 U. S. 957, 441 U. S. 913
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America Local 249 v.
Western Pennsylvania Motor Carriers Assn., 574
F. 2d 783 (3rd Cir.), cert. denied, 439 U. S. 828
Kewanee Machinery Div., Chromalloy American Corp. v.
Local Union No. 21, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, 450 F. Supp. 1074 (E. D. Mo.)
National Ass'n. of Letter Carriers v. U. S. Postal Service,
590 F. 2d 1171 (D. C. Cir.)
Orange Belt District Council of Painters No. 48 v. Maloney
Specialities, Inc., 98 LRRM 3193 (C. D. Calif.)
Texas City Tankers Corp. v. National Maritime Union of
America, Slip Opinion (S. D. N. Y. Case No. 76 CIV
706 )
United Steel Workers v. Latrobe Steel Co., 452 F. Supp.
63 (W. D. Pa.)
United Steelworkers of America and Local 3125, United
Steelworkers of America v. Interpace Corp., 447 F.
Supp. 387 (W. D. Pa.)
Appendix G A67
Western Elec. Co. v. C. W. A., 450 F. Supp. 876 (E. D.
N. Y.)
Western Elec. Co. v. C. W. A., 591 F. 2d 1333 (2d Cir.)
1979—21 decisions
Aircraft Mechanics Fraternal Ass'n v. Ozark Airlines, Inc.,
598 F. 2d 1155 (8th Cir. )
Boise Cascade Corp. v. United Steelworkers of America,
588 F. 2d 127 (5th Cir.), cert. denied 444 U. S. 830
Bronx Lebanon Hospital Center v. District 1199, National
Union of Hospital and Health Care Employees,
R. W. D. S. U., 87 CCH Lab. Cas. § 11,732 (S. D.
N. Y.)
Detroit Coil Co. v. I. A. M., Lodge No. 82, 594 F. 2d 575
(6th Cir.), cert. denied, 444 U. S. 840
Falstaff Brewing Corp. v. Local Union No. 153, etc., 609
F. 2d 501 (3rd Cir.), cert. denied, 444 U. S. 1079,
affirming without opinion, 479 F. Supp. 850 (D. N. J.
1978)
General Teamsters, etc., Local 162 v. Mitchell Brothers
Truck Lines, 104 LRRM 2318 (D. Ore.)
Graphic Arts International Union, Local 97-B v. Haddon
Craftsmen, Inc.; Haddon Craftsmen, Inc. v. Graphic
Arts International Union, Local 97-B, 489 F. Supp.
1088 ( M. D. Pa.)
International Brotherhood of Electrical Workers, Local
Union No. 474 v. Sammarco Electric Co., Inc., et al.;
Memphis Electrical Workers Health and Welfare
Trust Fund, et al. v. Sammarco Electric Co., Inc., 100
LRRM 2629 (W. D. Tenn.)
International Longshoremen’s and Warehousemen’s Union
Local 142, et al. v. Hilo Coast Processing Co., 87
CCH Lab. Cas. § 11,793 (D. Hawaii)
A68 Appendix G
International Sound Technicians Local 695, I. A. T. S. E.
v. GJL Productions, 471 F. Supp. 1085 (C. D. Cal.)
Kewanee Machinery v. Local No. 21, International Brother-
- hood of Teamsters, etc., 593 F. 2d 314 (8th Cir.)
Landy Packing Co., Northwestern Hide Processing Co.,
Inc. and Northwestern By-Products Co. v. Amal-
gamated Meat Cutters and Food Handlers of North
America, District Local 653-653A, 471 F. Supp. 1218
(D. Minn. )
Louisiana-Pacific Corp. v. I. B. E. W., Local Union 2294,
600 F. 2d 219 (9th Cir.)
Mack Transportation Co. v. Local 773, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, 476 F. Supp. 165 (E. D.
Pa.)
Marley Cooling Tower Co. v. Shopmen’s Local No. 682,
103 LRRM 2873 (W. D. Ky.)
Mobil Oil Corp. v. Local 8-766, Oil, Chemical and Atomic
Workers I. U., 600 F. 2d 322 (Ist Cir.)
Peter Cooper Corp. v. United Electrical, Radio and Ma-
chine Workers of America, Local 1132, 472 F. Supp.
692 (E. D. Wisc.)
Public Service Employees Union, Local No. 80, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America v. Rochdale Vil-
lage, Inc., 102 LRRM 2470 (E. D. N. Y.)
Public Service Employees Union, Local No. 80, etc. v.
Rochd.le Village, Inc., 605 F. 2d 1290 (2d Cir. )
Storer Broadcasting Co. v. American Federation of Tele-
vision and Radio Artists, Cleveland Local, 600 F. 2d
45 (6th Cir. )
Warehouse Employees Local 169 v. Acme Markets, Inc.,
473 F. Supp. 709 (E. D. Pa.)
Appendix G A69
1980—39 decisions
Advance Publications, Inc. v. Newspaper Guild of New
York, Local 3, 616 F. 2d 716 (2d Cir.)
Aluminum Workers International Union and Local No.
250 ». Chromalloy American Corp., 489 F. Supp. 536
(N. D. Miss.)
Botica, as Agent for the Structural Iron Workers Local No.
1 Welfare Fund, et al. v. Floyd Steel Erectors, Inc.,
485 F. Supp. 334 (N. D. Ill.)
Chauffeurs, Teamsters, etc., Local Union No. 878 v. Coca-
Cola Bottling Co., 613 F. 2d 716 (8th Cir.), cert.
denied, 446 U. S. 988
Federation of Westinghouse Independent Salaried Unions,
et al. v. Westinghouse Electric Corporation, 482 F.
Supp. 308 (W. D, Pa.)
Federation of Westinghouse Ind. Salaried Unions v.
Westinghouse Electric Corp., 631 F. 2d 725 (3rd Cir.),
affirming without opinion, 482 F. Supp. 308 (W. D.
Pa. )
F. W. Woolworth Co. v. Miscellaneous Warehousemen’s
Union, Local No. 781, 629 F. 2d 1204 (7th Cir.),
cert. denied, 451 U. S. 937
Hawkins v. Babcock & Wilcox Co., 105 LRRM 3438
(N. D. Ohio)
I. & F. Corp. v. International Ass'n. of Heat and Frost
Insulators and Asbestos Workers, Local 8, et al., 493
F. Supp. 147 (S. D. Ohio)
I. A. M., District Lodge No. 50, Local Lodge No. 389 v.
San Diego Marine Construction Corp., 620 F. 2d 736
(9th Cir. )
International Brotherhood of Firemen and Oilers v. Nestle
Co., 630 F. 2d 314 (6th Cir. )
International Ladies’ Garment Workers’ Union, Local No.
111 v. Dee Ville Blouse Co., Inc., 486 F. Supp. 1253
(E. D. Pa.)
A70 Appendix G
Jarrell, et al. v. Wilson Warehouse Co., Inc., 91 CCH
Lab. Cas. { 12,905 (M.D. La.)
Johns-Manvwille Sales Corp. v. I. A. M. Local Lodge 1609,
621 F. 2d 756 (5th Cir. )
Johnson Bronze Co. v. U. A. W., 621 F. 2d 81 (3rd Cir. )
Knox Porcelain Corp. v. Teamsters Local Union 519,
Knoxville and Vicinity, 504 F. Supp. 284 (E. D.
Tenn. )
Landy Packing Co., et al., v. Amalgamated Meat Cutters,
etc., 627 F. 2d 881 (8th Cir. )
Mack Transp. Co. v. Local 773, Teamsters, 622 F. 2d 579
(3d Cir. ), affirming without opinion, 476 F. Supp. 165
(E. D. Pa. 1979)
Metromedia, Inc. v. Local 819, International Alliance of
Theatrical Stage Employees, 105 LRRM 2908 (D. D.
C.)
Milwaukee Typographical Union No. 23 v. Newspapers,
Inc., 482 F. Supp. 1238 (E. D. Wisc.)
Morse’s Food Mart of New Bedford, Inc. v. District Union
Local 2, United Food and Commercial Workers, Slip
Opinion (D. Mass., Civ. A. No. 80-1004-MA)
New Orleans Steamship Ass‘n., et al. v. General Longshore
Workers, ILA Local Union No. 1418, 486 F. Supp.
409 (E. D. La.)
New Orleans Steamship Ass'n., et al. v. General Longshore
Workers, etc., 626 F. 2d 455 (5th Cir.), cert. granted,
68 L. Ed. 2d 223 (1982)
Orange Belt District Council of Painters No. 48 v. Maloney
Specialties, Inc., 639 F. 2d 487 (9th Cir.)
Piggly Wiggly Operators’, etc. v. Piggly Wiggly Operators’,
etc., 611 F. 2d 580 (5th Cir. )
Plumbers’ Pension Fund, Local 130, U. S.; Plumbers’
Welfare Fund, Local 130, U. S.; The Trust Fund for
Apprentice and Journeyman Education and Training,
Local 130, U. S.; and the Plumbing Council of Chi-
cagoland, Slip Opinion (N. D. Ill., No. 79 C 4652)
Appendix G AT7l
Pratt Institute v. United Federation of College Teachers,
etc., 103 LRRM 3027 (E. D. N. Y.)
Sear, et al. v. Cadillac Automobile Co. of Boston and
Metropolitan Automobile Salesmen, Local 122, 501
F. Supp. 1350 (D. Mass.)
Shearson Hayden Stone, Inc. v. Paul Liang, 493 F. Supp.
104 (N. D. Ill.)
Sverdrup/ ARO, Inc. v. International Ass'n. of Machinists,
etc., 532 F. Supp. 143 (E. D. Tenn.)
Teamsters, Local Union No. 135 v. Jefferson Trucking
Company, Inc., 628 F. 2d 1023 (7th Cir.), cert.
denied, 449 U.S. 1125
Teamsters Local Union No. 284, et al. vo. Maremont Corp.,
515 F. Supp. 168 (S. D. Ohio)
United Ass'n of Journeymen and Apprentices of the
Plumbing & Pipefitting Industry Local 198 v. Nichols
Construction Corp., 502 F. Supp. 465 (M. D. La.)
United Automobile Workers, Local 197 ». TRW, Inc., 104
LRRM 2756 (D. Conn. )
United Steelworkers of America, et al. v. Sunshine Mining
Co., 103 LRRM 2822 (D. Idaho)
Warehouse Employees v. Acme Markets, Inc., 620 F. 2d
291 (3rd Cir.), affirming without opinion, 473 F.
Supp. 709 (E. D. Pa. 1979)
Washington Teachers’ Union, Local 6 v. National Child
Day Care Ass'n., 90 CCH Lab. Cas. { 12,636 (D.
D.C.)
Waverly Mineral Products Co. v. U. S. A., 633 F. 2d 682
(5th Cir. )
IN THE MATTER OF THE ARBITRATION BETWEEN Zeigler Coal
Co. and District 12, United Mine Workers, 484 F.
Supp. 445 (C. D. Ill.)
A72 Appendix G
1981—30 decisions
Aeronautical Machinists Lodge 709, I. A. M. & A. W. v.
Lockheed-Georgia Co., 521 F. Supp. 1327 (N. D.
Ga.)
ARCO Polymers, Inc. v. Local 8-74, Oil, Chemical and
Atomic Workers International Union, 517 F. Supp.
681 (W. D. Pa.)
Burkart Randall v. Lodge No. 1076, I. A. M., 648 F. 2d
462 (7th Cir. )
Chicago Cartage Company v. International Brotherhood
of Teamsters, Local 710, et al., 659 F. 2d 825 (7th
Cir. )
Davis, Winthrop F., v. Chevy Chase Financial Limited,
667 F. 2d 160 (D. C. Cir.)
Francesco's B., Inc. v. Hotel and Restaurant Employees
and Bartender's Union, etc., 659 F. 2d 1383 (9th Cir. )
Grand Rapids Die Casting Corp. v. Local Union No. 159,
U. A. W., 507 F. Supp. 1355 (W. D. Mich.)
International Brotherhood of Painters, etc. Local Union
No. 756 v. Sherwin-Williams Co., 107 LRRM 2614
(N. D. Tex.)
Jackson Purchase Yural Elec. Coop. Ass'n. v. Local Union
816, I. B. E. W., 646 F. 2d 264 (6th Cir.)
Local 1020 of the United Brotherhood of Carpenters and
Joiners of America v. FMC Corp., 658 F. 2d 1285
(9th Cir. )
Local No. P-1236, Amalgamated Meat Cutters, etc. v.
Jones Dairy Farm, 519 F. Supp. 1362 (W. D. Wisc.)
Manolo E. Tolentino v. Charles Erickson, Wented Realty
Corp., et al., 525 F. Supp. 812 (E. D. N. Y.)
Milwaukee Typographical Union No. 23 v. Newspapers,
Inc., 639 F. 2d 386 (7th Cir.), cert. denied 102 S. Ct.
144
Appendix G A73
Northshore Investments, Ltd. v. Directors Guild of
America, 108 LRRM 3011 (C. D. Cal.)
Oil Chemical and Atomic Workers International Union,
Local No. 4-16000 v. Ethyl Corp., 664 F. 2d 1044
(5th Cir. )
Otis Elevator Co. v. U. A. W., Local 909, 92 CCH Lab.
Cas. § 12,919 (S. D. N. Y.)
Perma-Line Corp. v. Sign, Pictorial and Display Union,
etc., 639 F. 2d 890 (2d Cir.)
Rainbow Glass Co. v. Local Union No. 610, International
Brotherhood of Teamsters, 663 F. 2d 814 (8th Cir.)
Ryan-Walsh Stevedoring Co., Inc. v. General Longshore
Workers Union, Local No. 3000, 509 F. Supp. 463
(E. D. La.)
Sear, et al. v. Cadillac Automobile Co. of Boston, 654
F. 2d 4 (Ist Cir.)
Shearson Hayden Stone, Inc. v. Liang, 653 F. 2d 310
(7th Cir. )
Simpson and International Brotherhood of Teamsters, etc.,
Local 617 v. APA Transport Corp., 108 LRRM 2754
(D.N. J.)
Sugar Creek Packing, Inc. v. Amalgamated Food and
Allied Workers District Union 430, 526 F. Supp. 809
(S. D. Ohio)
Sui De Puerto Rico, S. I. U. v. Blairmoor De Puerto Rico,
Inc., 513 F. Supp. 849 (D. P. R.)
Sunbeam Appliance Co. v. I. A. M., Dist. No. 8, 511 F.
Supp. 505 (N. D. Ill.)
Syufy Enterprises v. Northern Calif. State Ass'n., etc., 631
F. 2d 124 (9th Cir.) cert. denied 451 U. S. 983
United Steelworkers of America v. American Smelting and
Refining Co., 648 F. 2d 863 (3rd Cir.), cert. denied,
102 S. Ct. 567
AT4 Appendix G
Warehouse, Mail Order, Office, Technical and Professional
Employees, Local No. 743 v. Carl Gorr Color Card,
Inc., 512 F. Supp. 213 (N. D. Il.)
Wren o. Sletten Construction Co., 654 F. 2d 528 (9th Cir. )
W. R. Grace and Co. v. Local Union No. 759, United
Rubber Workers, etc., 652 F. 2d 1248 (5th Cir.),
appeal pending
“ be |
IN THE
Supreme Court of the United States
October Term, 1981
ARCO POLYMERS, INC..,
Petitioner,
vs.
LOCAL 8-74, a/w THE OIL, CHEMICAL AND
ATOMIC WORKERS INTERNATIONAL UNION,
Respondent.
On Petition FoR A Writ oF CERTIORARI TO THE UNITED
States Court oF APPEALS FOR THE THIRD CIRCUIT.
OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI
ERNEST B. ORSATTI
JUBELIRER, PASS & INTRIERI, P.C.
219 Fort Pitt Boulevard
Pittsburgh, Pennsylvania 15222
Attorney for Respondent
es
Betavie Times Pubbshing Co -~
Pittsburgh. Pa. (412) 881.7463
Cn a Page
Opinions Below. ....... 6.66. e cece cece ec eccenee 1
SAS das o bhBeias ce ine oWhae cedccences 2
Counter Statement of the Case................... 2
Reasons for Denying the Writ:
I. The U. S. Court of Appeals for the Third
Circuit correctly applied this Court's
““Steelworker’s Trilogy’’ decisions by focusing
their scope of review, relative to the arbitrator's
treatment of past practices, to whether the ar-
bitrator’s award drew its essence from the col-
II. The Third Circuit correctly applied this
Court’s holding in the United Steel Workers vs.
Enterprise Wheel and Car Corp., 363 U.S. 593
(1960) in upholding the arbitrator's interpreta-
tion of the agreement despite the possibility
that the Court’s interpretation of the contract
a. The Third Circuit correctly refused to
of ambiguity and the opinion ..............
b. The Third Circuit correctly upheld the
arbitrator's interpretation of two clauses per-
taining to discharges in favor of the necessity
of the company to show “just cause”.......
10
12
Il.
TABLE OF AUTHORITIES.
Cases:
Amanda Bent Bolt Co. v. International Union,
United Automobile, Aerospace, Agricultural Im-
plement Workers of America, Local 1549, 451 F.
2d 1277 (6th Cir. 1971) .... 2... cece eee e eens 10
Amoco Oil Company v. Oil, Chemical and Atomic
Workers International Union Local 7-1, Inc., 548
FP. 2d 1288 (7th Cir. 1977)... . 0... cece cece eees 11
Arco Polymer, Inc. v. Local 274, 671 F. 2d
762 (3rd Cir. 1982)... ........ececeeeees 4,5,7,9,10,12
F.W. Woolworth Co. v. Miscellaneous Warehouse-
men's Union Local No. 781, 629 F. 2d 1204 (7th
GEE howd cccduveusuvgucvousdsenuedewes 11
ILA.M. v. San Diego Marine Construction
Corporation, 620 F. 2d 736 (10th Cir. 1980)...... 12,13
Joh:.son Bronze Co. v. International Union of
A.A.A.I.W.A., 621 F. 2d 81 (3rd Cir. 1980)....... 6,8
Kewanee Machinery v. Local 21, I1.B.T., 593 F. 2d
SR Gia Ge, Bees we cr avesaccuedevscdlee cases 13
Ludwig Honold Manufacturing Co. v. Fletcher,
405 F. 2d 1123 (3rd Cir. 1969) ................ 6,8,11
Mistletoe Express Service v. Motor Expressman's
Union, 566 F. 2d 692 (10th Cir. 1977)........... 12
N. F. & M. Corp. v. United Steelworkers of America,
524 F. 2d 756 (3rd Cir. 1975) .............0085. 9
Textile Workers Union v. American Thread Co.,
291 F. 2d 894 (4th Cir. 1961).................. 11,13
Timken Co. v. United Steelworkers of America, 492
F. 2d 1178 (6th Cir. 1974)... 0.0... 0 cece eeeees 13
Truck Drivers & Helpers Union Local 784 v. Ulry-
Talbert Co., 330 F. 2d 562 (8th Cir. 1964)........ 11
Il.
Page
United Steelworkers of America v. Enterprise
Wheel and Car Corporation, 363 U.S. 593
SN thats ORL. 6 b's atid ame we ee Uke oon 4,6,7,8,9,10,12
United Parcel Service v. Mitchell, —
U.S. ___., 101 S. Ct. 1559 (1981)............. 14,15
United Steelworkers of America v. Warrior
& Gulf Navigation Co. 363 U.S. 574
bcd Cid da cpvewe bls hevebickbadnesne ete's 5,6,7
Virgin Islands Nursing Association Bargaining Unit
v. Schneider, 668 F. 2d 221 (3rd Cir. 1981)....... 9
Statutes:
Section 301 of the Labor-Management Relations Act
of 1947, as amended, 29 U.S.C. §185............ 2
Sections 10 and 11 of the Federal Arbitration Act, 9
TEEN MMII ES... iG cctn nce cs oh eee n 2
Supreme Court of the United States
October Term, 1981
No.
ARCO POLYMERS, INC.,
Petitioner,
vs.
LOCAL 8-74, a/w THE OIL, CHEMICAL AND
ATOMIC WORKERS INTERNATIONAL UNION,
Respondent.
OPPOSITION TO PETITIO*: FOR WRIT
OF CERTIORARI
Opinions Below
The opinion of the Court of Appeals is officially report-
ed as 671 F.2d 752 (3d Cir. 1982). A Petition for Re-
hearing of the Court of Appeals decision was denied on
March 18, 1982. The Opinion of the U. S. District Court
for The Western District of Pennsylvania is reported at
517 F.Supp. 681 (W.D.Pa. 1981). The award of the ar-
bitrator is unpublished and appears as Appendix D to
the Petition for Certiorari. .
Jurisdiction
The judgment of the U. S. Court of Appeals for the
Third Circuit was entered on February 22, 1982. Peti-
tioner’s Petition for Certiorari was timely filed within
ninety (90) days of the date of entry of final decision.
Jurisdiction of this Court is invoked under 29 U.S.C.,
Section 1254 (1). Respondent’s opposition to Petition for
Certiorari has been timely filed within thirty (30) days
after receipt of Petition for Writ of Certiorari. Rule 22 of
the U. S. Supreme Court Rules.
Counter Statement of the Case
a. Petitioner, ARCO POLYMERS, INC., (hereinafter
referred to as “Employer”) filed an action under Section
3061 of the Labor Management Relations Act of 1947, as
amended, 29 U.S.C., Section 185 and Section 10 and 11
of the Federal Arbitration Act, 9 U.S.C., Sections 10 and
11 against Respondent, LOCAL 8-74, a/w THE OIL,
CHEMICAL AND ATOMIC WORKERS INTERNA-
TIONAL UNION, (hereinafter referred to as ““Union”’) in
the United States Court for the Western District of
Pennsylvania at Civil Action No. 80-1102H. The Action
was filed to vacate or modify the Labor Arbitration
Award of Robert J. Wagner, dated June 18, 1980, with
respect to a grievance filed by bargaining unit employee,
Larry Anderson (hereinafter referred to as ““Grievant”’).
The Union filed an Answer and Counter Claim seeking
enforcement of the arbitration award and damages for
the employer’s failure to comply with the award.
Cross motions for summary judgment were filed. The
District Court granted the Employer’s motion and denied
the Union’s motion and ordered the arbitration award
vacated. The Union thereupon perfected an appeal to the
U. S. Court of Appeals to the Third Circuit at No. 81-
2420.
The Third Circuit reversed the District Court and re-
manded the case for further proceedings.
After denial of Employer’s Request for Reargument,
the Employer filed the Petition for Writ of Certiorari to
this Honorable Court.
b. Counter Statement of the Facts.
Employer and Union were parties to a collective bar-
gaining agreement covering the workers employed at the
Employer’s Monaca, Pennsylvania plant. Grievant has
been employed in the bargaining unit as a material
handler. By letter dated March 7, 1980, the grievant was
discharged by the Employer based upon alleged viola-
tions of Article XXVI, Section B, sub-paragraph B, sub-
paragraph 1 of the Labor Agreement.
Grievant filed a grievance over his discharge and the
grievance was processed through the contractual
grievance procedure culminating in final and binding ar-
bitration. The arbitration hearing was held on May 20,
1980, before Arbitrator Robert J. Wagner. On June 8,
1980, the arbitrator issued an award ordering immediate
reinstatement of the grievant to his former position
without loss of seniority or other benefits but without
back pay. Despite the arbitrators order of immediate re-
instatement, the Employer did not permit the grievant to
return to his job until July 11, 1980.
4
REASONS FOR DENYING THE WRIT
I. The U. S. Court of Appeals for the Third Circuit
correctly applied this Court’s “Steelworker’s Trilogy”
decisions by focusing their scope of review, relative to
the arbitrator's treatment of past practices, to whether
the arbitrator's award drew its essence from the collec
tive bargaining agreement.
Employer's Petition for Writ of Certiorari argues that
the Third Circuit’s opinion, Arco Polymer, Inc. vs. Local
8-74, 671 F.2d 752 (3rd cir. 1982), (Petition Appendix A)
characterizes a company’s past practices as incident to a
determination of an arbitration award (Petition 7).
Employer also claims that the Third Circuit’s opinion
mandates that the relevancy of past practices is con-
tingent upon express acceptance of the practice by the
Union (Petition 9-12). The whole of Employer’s argument
comes as a result of a tortured reading of the Third Cir-
cuit opinion in a effort to portray the decision as one
which ignores this Court’s holding in United Steel
Worker's of America vs. Enterprise Wheel and Car Corp.,
363 U.S. 593 (1960).
5
award draws its essence from the contract. But see
Timken vs. Local 1123, United Steel Workers, 482
F. 2d 1012, 1014 (6th cir. 1973) (vacating an arbitra-
z
1p
iH
eee
a. absent without good
t cause yet not discharged
cause’ ” Arco Polymers, Inc., 671 F.2d at 7b8.
Employer, in support of its argument, draws upon
Court, observation in Warrior and Gulf that an
bitrator’s knowledge of industry and the shop place
or her in a superior position, vis-a-vis a judge, in
deciding the outcome of an arbitrable grievance. The
argument put forth by the Petitioner is best understood
by inspection of the passage in Warrior and Gulf with
emphasis as supplied by the Petitioner:
“The labor arbitrators source of law is not con-
Ee
B
es
4
Fe &
bargaining agreemen
(Petition 8) United Steel Workers of America vs.
Warrior and Gulf Navigation Company, 363 U.S.
574 (1960).
The essence of the Employer's argument is that this
Court’s characterization in the passage of “source of
law"’ and industrial “common law” creates acceptance of
language which requires a reviewing court, under Enter-
prise, to rule upon past practices in terms of the weight
given to them by the arbitrator's decision. (Petition 8-9).
However, Warrior
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.