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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1011

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0147%3A1. Public record. Not legal advice.