Petition — Kane Gas Light & Heating Co. v. International Brotherhood of Firemen & Oilers, Local 112

82.71 046

Office - Supreme Court

US.

PITT py

In The DEC 8 198

Supreme Court of the Prfther Syste

October Term, 1982

KANE GAS LIGHT AND HEATING COMPANY,

Petitioner,

MAY .

INTERNATIONAL BROTHERHOOD OF FIREMEN AND

OILERS, LOCAL 112,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

JOHN A. BOWLER JOHN W. ENGLISH

162 West Sixth Street 204 West 6th Street

Erie, Pennsylvania 16501 Erie, Pennsylvania 16507

(814) 454-4533 (814) 453-4984

Attorneys for Petitioner

77157 LUTZ APPELLATE PRINTERS, INC.

NY (212) 840-9494 @ (516) 222-1606 @ (914) 683-9363

NJ (208) 257-6850 @ FA (215) 563-3587 @ DC (202) 783-7288 @ MA (617) 542-1114

QUESTIONS PRESENTED FOR REVIEW

1. Considering the important public policy in favor of

requiring the safe transportation and distribution of natural gas,

will this Court permit to stand undisturbed, the reluctant decisions

of the United States Court of Appeals for the Third Circuit and

of the United States District Court for the Western District of

Pennsylvania, that those courts lacked the power — under

decisions of this Court — to review and to set aside a voluntary

labor arbitration award which ordered the reinstatement of a

reckless employee who had been discharged for safety reasons

for an irresponsible and dangerous act, in shutting off, contrary

to standing orders, the main pipeline supply of natural gas to

the Borough of Kane, Pennsylvania, during sub-zero weather and

concealing that fact from his superiors, and neers risking a

catastrophe to the community?

2. Did the circuit court and the district court by their decisions

to enter judgment upholding the award of the labor arbitrator,

ignore the fact that the employer company is required to meet

high standards of safety in the transportation and distribution

of natural gas, which requirement would preclude the retention

on the work force of a reckless employee whose conduct risked

a catastrophe to the community?

3. Does the opinion and judgment of the circuit court

upholding the labor arbitrator’s award in this case amount to

judicial condonation of illegal conduct, since the Company did

show to the court, in its petition for rehearing en banc, that the

reckless acts of the discharged employee constituted conduct

prohibited by several sections of the Pennsylvania Crimes Code?

4. Will the decisions of the circuit court and the district court

offend against public policy and cause the citizens of Kane and

elsewhere to question the quality of judicial administration insofar

ii

as those decisions require a small public utility gas company to

rehize a reckless employee whom the company, in the interest

of safety, had discharged?

5. Did the circuit court err in its conclusion that the labor

arbitrator had not dispensed his own brand of industrial justice

and err in its findings that the award had drawn its essence from

the labor agreement, notwithstanding that the plain facts appearing

in the circuit court’s opinion compel the conclusion that the

employee had been guilty of the reckless act of deliberately shutting

off the main supply of natural gas to the community of Kane

in sub-zero weather and concealing that fact from his superiors,

which acts would justify his discharge by the Company?

6. Did the circuit court and the district court limit too

narrowly their power of review over a labor arbitrator’s award

in accepting with approval the labor arbitrator’s decision which

placed the burden on the employer of producing conclusive

evidence to support its charges that an employee was discharged

' for proper cause?

iii

TABLE OF CONTENTS

Page

Questions Presented for Review ...........0ccecceeeees i

DOE WOUNIIIE Es 0 0.9.04 0.46 0.0505 0b Mes are av iemer sects iii

FOE SIN bias o Dict ee ve Vinc cabo e saws hiine’s obs iv

EON occbiccu'se duh ccd ese vdubes ses Cee Chews ses 1

PA 5 AGRO ses 0 RA bdbid oceud.s bpeers dhevud aebbe’> 2

Statutes and Regulations Involved ...............00005. 2

Statement of the Case...... (bee udice diode cewnnneted o's 3

Reasons for Granting the Writ:

I. This Court should review the circuit court’s opinion

and judgment because a serious question of broad

public concern is presented in the matter of judicial

administration, namely — should the relative rank of

importance to the commitment to finality of labor

arbitration awards be more important than the

requirements for public safety in the transportation

and use of natural gas as dictated by federal and state

laws and regulations. ..........ccececcssccecves 7

II. This Court should review the circuit court’s opinion

and judgment because a serious question of broad

public concern is presented as to whether the opinion

and judgment offends common sense and serious

public policy for safety — in forcing a public utility

iv

Contents

Page

gas company to rehire a reckless employee whose

deliberate conduct and concealment of that conduct

risked a catastrophe to an entire community...... 11

III. This Court should review the circuit court’s opinion

and judgment because a serious question of broad

public concern is presented as to whether the opinion

and judgment will result in placing a heavy and

dangerous burden upon both interstate and intrastate

commerce if arbitrators, district courts and circuit

courts may force a public utility gas company to rehire

reckless employees whose conduct Urestened the safety

Ge BD CO 6.5.6 ao MWe CUO Tis 6k k's ode wine's 13

IV. This Court should review the opinions of the circuit

court and the district court because a serious question

is presented as regards the administration of justice

as to whether their opinions and judgments gave

judicial condonation to the arbitrator’s requirement

that the Company employer produce conclusive proof

to support its charges that an employee was discharged

Te OE CUD. sedi ile eves Daa Means cc cbkes 14

OD EPO Pe he CO Oe ee OO 15

TABLE OF CITATIONS

Cases Cited:

Beasley v. Texas & P.R. Co., 191 U.S. 492 (1903) ...... 12

Building Service Employees International Union Local 262

v. Gazzam, 70 S. Ct. 784, 339 U.S. 532 (1950) ..... 12

v

Contents

Karle v. National Fuel Gas Dist. Co., 448 F. Supp. 753

(U.S.D.C. of the W.D. of Pa. 1978) .....0...cccee. 10

McKee v. McNany, 10 F.R.D. 5 (U.S.D.C. of W.D. of Pa.

EPO) vic vie ccisccbeo tese Wee diwe diab eidions ba Whe 0 dee ule 12

United Steelworkers of America v. Enterprise Wheel and Car

Corp., 363 U.S. 593, 4 L. Ed. 2nd 1424, 80S. Ct. 1358

hy Sy RR ER Aa OS SS ae pa 9

Statutes Cited:

BP Bos MER Ud Heh adobe + sienicn Gabbe nhs ee ch Wels 2

Labor Management Relations Act of 1947, 29 U.S.C.

OU hs fh G:t 0 i 0 8 EV aibh-o\0 cdo ow tine dace cube os 2

Pennsylvania Crimes Code, 18 Purdon C.P.S.A.:

BETO 5 <b bc onc dihdne ciched teins ven dascvnaseeveeec 3

OU b04 k Sadie bein Ce paeKe sss AeAMOR A eis s oaVden 3

FRAP. 0nd 0.50 occ c cc cckbtc MAPA Y RMD hae@okeaes 3

GIRO W CSV a tc diccececuecaban PE cccccceeacevecces 3

DE DEniths 60s vbb aye omlane Ver beph mpadaspphedes dhe 3

United States Department of Transportation Regulations

Minimum Safety Requirements for Pipeline Facilities and

the Transportation of Gas, 49 C.F.R. §192.623(b)... 3

Contents

Page

APPENDIX

Appendix A — Court of Appeals Opinion .......... la

Appendix B — District Court Opinion.............. 22a

Appendix B — District Court Order ..............4.. 34a

Appendix C — Court of Appeals Judgment ......... 36a

Appendix C — Petition for Rehearing .............. 38a

Appendix C — Court of Appeals Order Denying

DO ioc a's cK ced an vant cavet haan yibietvias 50a

Appendix D — Opinion and Award of Arbitrator.... 52a

’ r Yy -

ae Bes by -

No.

Supreme Court of the Huited States

o—

October Term, 1982

KANE GAS LIGHT AND HEATING COMPANY,

Petitioner,

vs.

INTERNATIONAL BROTHERHOOD OF FIREMEN AND

OILERS, LOCAL 112,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

The petitioner Kane Gas Light and Heating Company 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 August 12, 1982.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Third Circuit is reported in 687 F. 2d 673 (1982) and appears

in Appendix A at pages la to 2la.*

* The pagination of the Appendices will be sequential and cumulative. All

page reference will be abbreviated ‘‘1a’’, ‘*2a’’, ‘*3a’’, etc., regardless of which

Appendix contains the material cited.

2

The order of the court of appeals denying the petition for

rehearing en banc appears in Appendix C at page 50a.

The opinion and order of the United States District Court

for the Western District of Pennsylvania appears in Appendix

B at pages 22a to 35a.

The opinion and award of the arbitrator which is the subject

of this action, appears in Appendix D at pages 52a to 63a.

JURISDICTION

The judgment of the United States Court of Appeals for the

Third Circuit was entered August 12, 1982. A timely petition for

rehearing en banc was denied on September 10, 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).

STATUTES AND REGULATIONS INVOLVED

The statutory provision involved in this case is in 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

employees in an industry affecting commerce as

defined in this chapter, or between any such labor

organizations, may be brought in any district court

of the United States having jurisdiction of the

parties, without respect to the amount in

controversy or without regard to the citizenship

of the parties.

3

In addition to the foregoing, the following statute and

regulations are involved:

1. United States Department of Transportation Regulations

*‘Minimum Safety Requirement for Pipeline Facilities and the

Transportation of Gas’’, 49 CFR §192.623(b) (enacted pursuant

to provisions of the National Gas Pipeline Safety Act of 1968,

49 U.S.C.A. §1672). This regulation appears in Appendix C at

page 4la.

2. Public Utility Code of Pennsylvania, Title 52 Pa. Code

§59.33(a) and (b). Those provisions appear in Appendix C at page

4la.

3. Pennsylvania Crimes Code, 18 Purdon C.P.S.A. §§2705,

3302, 3303 and 3304. Those provisions appear in Appendix C

at pages 42a-44a.

STATEMENT OF THE CASE

Petitioner Kane Gas Light and Heating Company is a small

company with a total employment of twenty persons. Nine of

those employees are members of respondent union and they

constitute the field workers, who, under the supervision of two

foremen, are charged with assisting in the safe and dependable

operation of over two hundred miles of natural gas distribution

lines. The Company furnishes natural gas to approximately 3,200

customers in the Boroughs of Kane and Mt. Jewett, Pennsylvania.

In addition to households, the customers include factories,

commercial establishments, hospitals, schools and housing for

senior citizens.

The Company is a public utility and is subject to regulation.

by the Pennsylvania Public Utility Commission and is required

to provide safe and adequate service to its customers. The

4

Company is subject to the provisions of the United States

Department of Transportation Regulations, promulgated under

the Natural Gas Pipeline Safety Act of 1968.

The flow of gas into the Borough of Kane in 1979 was

controlled by a system of valves at the Borough of Mt. Jewett

(nine miles away) at a regulator station. Pritchard, a resident of

Mt. Jewett, had been an employee of the Company as a field

worker for seven years and only upon instructions from his

supervisors, opened and closed valves at that station.

Communication was maintained by radio and telephone contact.

This station had two principal valves. One was a ‘‘by-pass valve’’,

which when turned on bypassed the restrictive effect of the

regulators and when opened it increased the gas flow when so

required at Kane. The other was a shut-off valve, the main valve,

which was used only if it became necessary for shutting off the

entire gas supply through one of the transmission lines to Kane.

It was shut off only to permit necessary repairs to that transmission

line. The valves were not similar, nor located in close proximity.

The separate function of each valve was well known to Pritchard.

On the morning of February 9, 1979, when the temperature

stood at ten degrees below zero Fahrenheit, Pritchard was

instructed to open the by-pass valve by a specific order from the

foreman, to increase the flow of gas to Kane due to the extremely

cold weather. By eleven o’clock that morning, the gas pressure

at Kane had come back to its normal level, and the foreman at

Kane ordered Pritchard at Mt. Jewett to close the by-pass valve.

However, Pritchard, when he returned to the station, shut off

not only the by-pass valve, but he also closed the main valve.

He reported back to his foreman in Kane that he had closed the

by-pass valve, but he concealed the fact that he had closed the

main valve. Closing the main valve effectively cut off most of

the gas being transported from Mt. Jewett to the Borough of Kane

when the temperature stood at about zero. The supervisor and

the foreman in Kane fortunately noted the drop in gas pressure

in Kane and being unable to reach Pritchard by radio or telephone,

the foreman drove to the valve station to seek out the reason

for the loss of gas supply. The foreman discovered that the main

valve was closed and he immediately reopened that valve and

increased the gas supply to Kane. Later Pritchard told the

supervisor he had closed the main valve because he thought Kane

didn’t need the gas. Considering the severity of the weather,

Pritchard’s actions in closing the main valve and concealing that

fact caused a high risk and danger to life as well as substantial

property damage.

Because of the serious consequences which could have directly

resulted from Pritchard’s conduct, the Company decided, after

reviewing all of the circumstances surrounding the shutting off

of the main valve, that there was proper cause to discharge

Pritchard. It was the unanimous opinion of the two foremen,

the supervisor, the manager and the officers of the Company that

he should be discharged for reasons of safety, because his

continued employment would not be consistent with the obligations

to conduct its operations in a safe manner and without a threat

to the safety of the community. The Company premised its decision

to discharge Pritchard under Article 1, Section 1 of its Collective

Bargaining Agreement with Local 112, which provides:

The Company retains the right to manage its

operations and its direction of the work forces,

including the right to make rules and regulations;

hire, suspend, discharge for proper cause; . . .

Pritchard’s actions, according to the Company, constituted

irresponsible insubordination, sabotage, and deliberate restriction

of output. Under the Company’s ‘‘Rules of Conduct for Union

Employees”, each of these violations carried a maximum penalty

of discharge for the first offense.

6

After Pritchard was fired, the union filed a grievance on his

behalf. Subsequently, the president of the Company met with

Pritchard and a union representative ‘o discuss the matter further.

At that meeting, however, Pritchard failed to give any explanation

whatsoever as to why he had closed the main valve. After further

review, therefore, the Company reaffirmed its decision to discharge

Pritchard for safety reasons.

The union continued to contest the Company’s action, and

eventually both the Company and the union agreed voluntarily

to submit the dispute to arbitration by the American Arbitration

Association. This step was taken despite the absence of any

provision for arbitration of grievances in the Collective Bargaining

Agreement. Both the union and the Company agreed that the

question submitted to the arbitrator was whether Pritchard was

discharged for proper cause within the meaning of the parties’

Collective Bargaining Agreement as well as the Company’s Kiules

of Conduct. The sole question submitted to the arbitrator was

‘‘whether the grievant was discharged for proper cause?”’

After a hearing, the arbitrator found that Pritchard had acted

“‘errantly, beyond his assigned authority, and beyond the scope

of his foreman’s orders’’ and that Pritchard’s actions warranted

a severe penalty. Concluding that the record established that

Pritchard’s actions constituted ‘‘reckless inadvertence’’, the

arbitrator ordered that Pritchard be reinstated with back pay,

with the reinstatement order to take effect thirty days following

Pritchard’s date of discharge. He further ordered that the period

running from the date of discharge to the date of reinstatement

be treated as a disciplinary suspension. i

Because the Company believed the award was erroneous, the

Company brought this action in the district court on April 9, 1980,

seeking an order upholding the discharge of Pritchard and vacating

the arbitrator’s award for manifest disregerd of the law and facts.

7

The union filed a counterclaim, seeking enforcement of the

arbitrator’s award, Emphasizing the very limited power of judicial

review of labor arbitration awards, the district court declined to

vacate the award and entered summary judgment for the union

on December 19, 1980. The Company then took an appeal to

the circuit court and the court of appeals affirmed the district

court’s order on the grounds that it lacked the power to set aside

the award in this case. Thereafter, in response to a point on

**Public Policy’’ specifically raised in the opinion of the court

of appeals, the Company filed a petition for rehearing en banc

in support of its contention that the award was contrary to Public

Policy. That petition detailed those provisions of the Pennsylvania

Crimes Code which prohibit reckless conduct such as the court

had found the employee had engaged in. The court denied the

petition for rehearing en banc without opinion or comment on

the content of the petition.

"EZASONS FOR GRANTING THE WRIT

I,

This Court should review the circuit court’s opinion and

judgment because a serious question of broad public concern is

presented in the matter of judicial administration, namely —

should the relative rank of importance to the commitment to

finality of labor arbitration awards be more important than the

requirements for public safety in the transportation and use of

natural gas as dictated by federal and state laws and regulations.

The circuit court held that it and the district court lacked

the power to review and set aside an arbitrator’s award which

ordered the rehiring of an employee who had been discharged

for reckless conduct which risked catastrophe to the community.

All of the judges below expressed on the record their

uneasiness and discomfort with the decisions they felt obliged to

reach in this case.

Judge Knox for the district court stated (33a):

The Court has reluctantly come to the

conclusion that it has no power to disturb the

arbitrator’s award. Lingering in the court’s mind

is the question of what would have been done in

this case had numerous explosions with resulting

deaths occurred as a result of this action? What

should be the penalty? Under the rules laid down,

however, we have no right to speculate or interfere

in this determination.

Judge Garth for himself and Chief Judge Seitz, speaking for

the majority of the panel for the circuit court stated (2a):

In this appeal we are asked by the Kane Gas

Light and Heating Company (‘‘the Company’’)

to vacate an arbitrator’s award which, after

imposing relatively minimal sanctions, reinstated

an employee whom the Company had discharged.

Were we to sit as the initial factfinders in

determination of whether Alan Pritchard, the

employee, should be discharged, we would be hard

pressed to justify his re-employment. In fact,

however, the scope of our review in this case is

an exceedingly narrow one, and employing that

standard, we conclude that we are obliged to

enforce the arbitrator’s award, whatever ‘nisgivings

we may have about its merits or wisdom.

9

Judge Adams of the circuit court panel, in his concurring

opinion stated (20a):

Judge Garth has aptly set forth the exceedingly

narrow standard to which we must adhere in

reviewing the arbitrator’s decision. Applying this

standard, Judge Garth concludes — correctly, I

believe — that this Court is without power to

disturb the arbitrator’s findings and conclusions.

Regardless of how impeccable this analysis may

be from a legal perspective, however, I have no

doubt that the citizens of K*ne when they learn

of our decision will be astonished at the result.

While we may justify our decision as reflecting a

national commitment to arbitration, or perhaps

simply as the inevitable outgrowth of a line of

judicial precedent, the fact remains that today we

eadone the reinstatement of a person whose

actions advertent or not, very nearly had disastrous

consequences.

If the judges felt that their decisions would astonish the

citizens of Kane, the Company suggests, that they had the inherent

power and duty to set aside the award and to protect the safety

of the citizens of Kane on the ground that the award could not

legitimately draw its essence from the labor contract and was

contrary to public policy as being contrary to the requirements

of federal and state laws and regulations.

The circuit court failed to apply the standards of review

established in the decision of United Steel Workers v. Enterprise

Wheel and Car Corp., 363 U.S, 593 (1960) and unduly broadened

the unreviewable power of the labor arbitrator.

10

The national commitment to a narrow standard of judicial

review of labor arbitrator’s awards does not justify the refusal

by the courts below to review and set aside an arbitrator’s decision

which ordered the petitioner, a small natural gas public utility,

to rehire a discharged employee whose reckless conduct had risked

a catastrophe to the community.

The employer Company must meet high standards of safety

in the transportation and distribution of natural gas. Those

standards would preclude the retention of reckless employees on

the work force.

The judgment of the circuit court, if not set aside, will threaten

the ability of the Company to comply with the safety requirements

of the Public Utility Code of Pennsylvania, the Regulations of

the United States Department of Transportation and the duties

of care imposed upon a gas company by the courts.

The Company is subject to the requirements of the

Pennsylvania Public Utility Commission, set forth at page 4la

of the Appendix, and of the United States Department of

Transportation Safety Regulations, set forth on page 41a of the

Appendix.

The nature of care required by a gas company and its

employees is set forth in the recent decision by Judge Weber in

the Western District of Pennsylvania of Karle v. National Fuel

Gas Dist. Co., 448 F. Supp. 753 (W.D. of Pa. 1978). The court

there carefully reviewed in detail the duties of care imposed upon

a gas company at pages 759 and 760. The court states:

In delimiting the duty of care of gas and electric

companies, Pennsylvania courts have emphasized

the extreme dangers that elements like gas and

electricity present. ‘‘Where explosive compounds

ll

are in play, the measure of care arises with the

degree of hazard involved.’’ Hemrock v. Peoples

Natural Gas Co., 423 Pa. 259, 223 A. 2d 687, 692

(1966). The power of uncontrolled gas and

electricity to destroy and disfigure is so great, that

upon their purveyors the law imposes the ‘‘highest

standard of care practicable.’” Densler v.

Metropolitan Edison Electric Co., 235 Pa. Super.

858, 345 A. 2d 758, 761 (1975), quoting with

approval Fitzgerald v. Edison Electric Illuminating

Co., 200 Pa. 540, 543, 50 A. 161-2 (1901).

This Court should review the circuit court’s opinion and

judgment because a serious question of broad public concern is

presented as to whether the opinion and judgment offends

common sense and serious public policy for safety — in forcing

a public utility gas company to rehire a recki-.s employee whose

deliberate conduct and concealment of that conduct risked a

catastrophe to an entire community.

The opinions of the courts below, in denying their power

to vacate the arbitrator’s award, would require the Company to

rehire an employee whose conduct violated several provisions of

the Pennsylvania Crimes Code, which are set forth on pages

42a-44a of the Appendix. They relate to — causing or risking

catastrophe, failure to prevent catastrophe, criminal mischief and

recklessly endangering another person.

Those sections of the Penal Code are an expression of the

modern concern of the Legislature of Pennsylvania for the danger

which may threaten the general public from present day potential

harm from public catastrophe.

12

The type of public danger with which the Commonwealth

of Pennsylvania was concerned with in the passage of the above

cited sections of the Penal Code was the risk of catastrophe to

which the reckless employee caused to citizens of Kane,

Pennsylvania.

Even without the authority of legislative statutes, public policy

as defined by the courts should be heeded in evaluating the effects

of the decision by the circuit court in this case.

Public policy has been defined in Pennsylvania in the opinion

of Judge Gourley in McGee v. McNany, 10 F.R.D. 5 (U.S.D.C.

of W.D. of Pa. 1950), at page 12:

What is public policy? It has been defined in

Pennsylvania — ‘‘public policy’’ means the public

good. Anything that tends clearly to injure the

public health, the public morals, the public

confidence in the purity of the administration of

the law, or to undermine that sense of security for

individual rights, whether of personal liberty or

of private property, which any citizen ought to feel,

is against public policy. Goodyear v. Brown, 155

Pa. 514, 518, 35 Am. St. Rep. 903 (1983).

This Court has stated in Building Service Employees

International Union, Local 262 v. Gazzam, 70 S. Ct. 784, 787,

339 U.S. 532 (1950), that:

The public policy of any state is to be found

in its constitution, acts of the legislature, and

decision of its courts.

This Court has also stated the meaning of public policy in

Kivasley v. Texas & P.R. Co., 191 U.S. 492 (1903), as:

13

The very meaning of ‘‘public policy’’ is the

interest of others than the parties, and that interest

is not to be at the mercy of the defendant alone.

This Court should review the circuit court’s opinion and

judgment because a serious question of broad public concera is

presented as to whether the opinion and judgment will result in

placing a heavy and dangerous burden upon both interstate and

intrastate commerce if arbitrators, district courts and circuit courts

may force a public utility gas company to rehire reckless employees

whose conduct threatened the safety of a community.

It is quite apparent that if the petitioner Company with a

work force of eight men was required to rehire the employee as

ordered by the circuit court, then the Company will be burdened

with the obligation to do something more than it is doing now

to protect its customers, its other fellow employees and the citizens

of Kane and Mi. Jewett.

Frankly, the Company does not know what it should do.

It is a unique problem with which the Company should not be

burdened. Admittedly, the problems of the petitioner won’t cause

a ripple on the national picture. However, the legal precedent

in this case that the need for safe operation of a public utility

gas company must give way to a higher need to rehire a reckless

employee, is strange and frightening indeed.

The small utility would find it almost impossible to rehire

a reckless employee and at the same time prevent him from having

access to the equipment and valves which could endanger the

community. A large company would still find a serious problem

in guarding against repetitious and dangerous recklessness. If a

catastrophe did occur, the burden and cost to the community,

14

as well as to the industry, could be ruinous, in both lives and

property. In the natural gas industry these additional costs would

be an additional burden on the customers who depend on the

industry for their heat and other services. These costs are already

high and it would be a great and unwelcome burden to

unnecessarily increase them further.

IV.

This Court should review the opinions of the circuit court

and the district court because a serious question is presented as

regards the administration of justice as to whether their opinions

and judgments gave judicial condonation to the arbitrator’s

requirement that the Company employer produce conclusive proof

to support its charges taat an employee was discharged for proper

cause.

The district court in its opinion (25a) stated:

The arbitrator found (p. 5 of the award) ‘‘based

on the foregoing it is found that the company has

failed to adduce evidence which would support its

charges in this matter. Absent is any conclusive

evidence of motivation on the part of the grievant

(Pritchard) to intentionally sabotage the company

by deliberately restricting the flow of gas.’’ Thus,

the arbitrator found that there was no evidence

which would constitute proper cause under Article

One, Section 1 of the contract for discharge. The

burden, of course, was on the company to prove

the reasons for its actions. (Emphasis supplied.)

Article One, Section 1 of the Labor Contract appears in the

district court’s opinion (24a) and in the circuit court’s opinion

(4a) and states in relevant part:

15

The Company retains the right to manage its

operations and its direction of the work forces,

including the right to make rules and regulations;

hire; suspend; discharge for proper cause;.. .

Objection was noted by the Company with the district court’s

approval of the ‘‘conclusive proof’’ of evidence standard used

by the arbitrator and this pint was covered in its brief filed with

the circuit court of appeals. The Company in its brief pointed

out that the parties had stipulated at the outset of the arbitration

hearing that —

the burden, in a discharge case is upon the

Company to demonstrate that by a preponderance

of the evidence the discharge is warranted.

Notwithstanding the objection the Company made on appeal

to the circuit court, that court ignored the objection without

comment whatsoever.

CONCLUSION

The petition for a writ of certiorari to the United States Court

of Appeals for the Third Circuit should be granted.

Respectfully submitted,

JOHN A. BOWLER

JOHN W. ENGLISH

Attorneys for Petitioner