# Petition — ARCO Polymers, Inc. v. Local 8-74, Affiliated with the Oil, Chemical & Atomic Workers' International Union > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0034%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 828 ## 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 1 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0034%3A1. Public record. Not legal advice.