Petition — Sho-Me Power Corp. v. International Brotherhood of Electrical Workers Local Union 53

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83-88 FILED

CASE NO. es Nov 23 1983

ALEXANDER L. STEVAS,

IN THE SUPREME COURT OF THE UNITED STATES CLERS

OCTOBER TERM, 1983

SHO-ME POWER CORPORATION, PETITIONER

Vv.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL UNION 53, AFL-CIO

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Eugene E. Andereck

Erwin L. Milne

Counsel of Record

Craig S. Johnson

STOCKARD, ANDERECK, HAUCK,

SHARP & EVANS

101 West McCarty Street

Post Office Box 1280

Jefferson City, MO 65102

Telephone: (314) 634-3422

CASE NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

SHO-ME POWER CORPORATION, PETITIONER

Vv.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL UNION 53, AFL-CIO

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Eugene E. Andereck

Erwin L. Milne

Counsel of Record

Craig S. Johnson

STOCKARD, ANDERECK, HAUCK,

SHARP & EVANS

101 West McCarty Street

Post Office Box 1280

Jefferson City, MO 65102

Telephone: (314) 634-3422

QUESTIONS PRESENTED

1. Does the arbitration award, on its face as

a matter of law, draw its essence from the

collective bargaining agreement, or does it draw its

essence fron the arbitrator's own brand of

industrial justice?

The award found cause existed for summary

discharge, found unlawful motivation on behalf of

management in not executing discipline until after

the employee had engaged in collective bargaining

activities, ultimately found cause, as contractually

construed, did not exist, reinstated the employee

without backpay, and set forth the rationale that

"to allow the discharge to stand would result, in

the arbitrator's judgment, in too chilling an effect

upon the free exercise of the fundamental right of

Grievant and each of his fellow employees to engage

in concerted activities and to bargain collectively

with the employer."

2. Do the "draw its essence" and "own brand of

industrial justice" standards announced by this

Court in the "Steelworker's Trilogy" provide

adequate, meaningful or precise standards for

federal courts reviewing enforceability of lawwr

arbitration awards?

TABLE OF CONTENTS

BOTRIONS DOTOW. coor ccccvcccccescecessoceseace

PPEPCETONR Sc acctedenccevcvcsesecanceesetes

Constitutional and statutory provisions

PE chuidbecatvededecosaedesaeesanneenes

DEE Acs cGebcentonssecenesesseerenveneon

Reasons for granting the petition............

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PETE: Me gctneroeesstccccccedccesteesvesens

DEEL Bivoccesccccccccescaccceceeesesoucess

BOTIEIE Cn cccccccccccccccsccccncescccccenesse

PIE Da ccvcccccccsccccccccerceceboecveces

Statement of Corporate Affiliations..........

TABLE OF AUTHORITIES

CASES:

Alexander v. Gardner-Denver Co., 415

Mths ce cas Css een eee vaneieeenmheens

Alexander v. Gardner-Denver Co., 415

i in <6 dn wasen te Rib amaneseseses

Amoco 0i1 Co. v. Chemical and Atomic

Workers, 548 F.2d 1288, 1294, cert den.

ii CD. cavddd ovat 60eeucdldarwencenbed

Arco Polyers, Inc. v. Local & 74,

i es FE o 6s piece sdeseasbades dusts

Barrentine v. Arkansas-Best Freight

System, Inc., 450 U.S. 728, 744........006.

Better Const. v. Boston Edison Co., 560

Pee es SO TO). cc ccccececsess vedewen ‘nis

Communications Workers of America, AFL-CIO

v. Western Electric, 397 F.Supp 1318,

1322 [4] affirmed 558 F.2d 816.............

IBEW Local 53 v. Sho-Me 715 F.2d 1322,

Oh cd acta ce.o o's.canhckaaenekes

International Brotherhood of Electrical

Workers v. Professional Hole Drilling,

os eee Ge se. |) Pee

Interrational Union of E.R. & MW v. Peerless

Pressed Metal, 489 F.2d 768, 769 [2],

re: a Mik. Me. soe awed sama bac

Monogahela Power v. Local 2332, IBEW,

ts Bs we. Bt 5 ee eee

Pacific Motor Trucking v. Automotive

Machinists, 702 F.2d 176, 177 [1]..........

San Francisco-Oakland Newspaper Guild

v. Tribune Publishing Co., 407 F.2d

EE ON ioksdcns ocd oncnbeedenee aoe wwe

Steelworkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 593, 597.......

Sun Petroleum Products Co. v. Oi1, Chemist &

Atomic Workers, 681 F.2d 924, 927 [2]......

Textile Workers Union v. Lincoln Mills

rn oe Oo. Cb. cckctetbbasanennee

Timken Co. v. Local Union No. 1123, United Steel

Workers of America, 482 F.2d 1012 [4]......

Torrington Company v. Metal Products W.U.L.

Ses dee Fae S77, GOO [4 ccccccccccceces

28

25

26

27

27

25

United Steelworkers of America v. American

Manufacturing Co., 363 U.S. 564............ 10

United Steelworkers of America v. Enterprise

Wheel and Car Corp., 363 U.S. 593.......... 10,15

United Steelworkers of America v. Warrior &

Gulf Navigation Co., 363 U.S. 574.......... 10

CONSTITUTION, STATUTES AND REGULATIONS

Labor Management Relations Act of 1947, § 301

(a), 61 Stat. 156, 29 U.S.C. 185(a)........ 7

Labor Management Relations Act of 1947, § 203

oe), Os stat. 164, 29'0.S.C. 1736)... 04. 7

CASE NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

SHO-ME POWER CORPORATION, PETITIONER

Vv.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL UNION 53, AFL-CIO

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Sho-Me Power Corporation petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit in

this case.

OPINIONS BELOW

The opinion of the court of appeals (App. D) is

reported at 715 F.2d 1322. The opinion of the

district court (App. C) is not reported.

JURISDICTION

The judgement of the court of appeals (App. D)

was entered on September 1, 1983. A motion for stay

of mandate was denied September 28, 1983. The

jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. No constitutional provisions are directly

involved.

2. Section 301(a) of the Labor Management

Relations Act of 1947, 61 Stat. 156, 29 U.S.C.

185(a) provides:

Suits for violation of contracts

between an employer and a labor

organization representing employees in an

industry affecting commerce as defined in

this Act, 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 respect to the citizenship of the

parties.

3. Section 203(d) of the Labor Management

Relations Act of 1947, 61 Stat. 154, 29 U.S.C.

173(d) provides:

"Final adjustment of a method agreed

upon be the parties is hereby declared to

be the desirable method for settlement of

grievance disputes arising over the

application or interpretation of an

existing collective bargaining

agreement...".

STATEMENT

1. In 1947, Congress passed the Labor

Management Relations Act with included sections

301(a) and 203(d), providing for arbitral resolution

of dispute over collective bargaining agreements,

and district court jurisdiction of disputes for

violation of those agreements. 61 Stat. 154, 156,

29 U.S.C. 173(d), 185(a).

2. This court, in a 1957 opinion by Mr.

Justice Douglas, Textile Workers Union v. Lincoln

Mills of Alabama, 353 U.S. 448, held that, under §

301 of the LMRA federal courts have authority to

decide labor contract controversies, and to fashion

a body of federal law pertaining to enforcement of

those contracts.

3. In a 1960 opinion by Mr. Justice Douglas,

this Court, in what has become known as the "The

Steelworker's Trilogy", set forth significant

principles pertaining to arbitration and award

components of collective bargaining agreements.

United Steelworkers of America v. American

Manufacturing Co., 363 U.S. 564; United Steelworkers

of America v. Warrior & Gulf Navigation Co., 363

U.S. 574; and United Steelworkers of America v.

Enterprise Wheel and Car Corp., 363 U.S. 593. In

particular, the Enterprise Wheel decision announced

guidelines to be followed in determining the

enforceability of awards rendered pursuant to

collective bargaining agreements. The Enterprise

Wheel guidelines are paraphrased as follows:

a) [federal] courts should refuse to

b)

c)

d)

e)

review the merits of an arbitration

award (p. 596);

ambiguity in the opinion accompanying

the award permitting the inference the

arbitrator exceeded his authority is

insufficient reason for refusing

enforcement (p. 598);

question of interpretation of the

collective bargaining agreement is for

the arbitrator, and Predera’) courts

have no business overruling his

interpretation (p. 599).

an arbitrator is confined to

interpretation and application of the

collective bargaining agreement, he

does not sit to dispense his own brand

of industrial justice. (p. 597); and

an award is legitimate only so long as

it draws its essence from the

collective bargaining agreement. When

10.

the arbitrator's words manifest an

infidelity to this obligation, courts

have no choice but to refuse

enforcement of the award (p. 597).

4. Since the Steelworker's Trilogy, this Court

has set forth further pronouncements defining

arbitrator's authority, and hence, the

enforceability of their awards. Most notable is the

decision contained in Alexander v. Gardner-Denver

Co., 415 U.S. 36 (1974), opinion by Mr. Justice

Douglas.

The Gardner-Denver decision, at pages 53-54,

states that "if an arbitral decision is based solely

upon the arbitrator's view of the requirements of

enacted legislation rather than an interpretation of

the collective bargaining agreement, the arbitrator

has exceeded the scope of the submission, and the

awar4 will not be enforced...".

5. Petitioner (hereinafter "Sho-Me") and

Respondent (hereinafter "Union") were parties to a

collective bargaining agreement at all times

material to the disputes of this case. The

pertinent provisions of this agreement are set forth

in Appendix A. On July 21, 1981, Sho-Me discharged

ll.

ae

from its employment a member of the Union on

grounds of dishonest attempts to shift personal

expenses to Sho-Me. The facts surrounding the

incidents, as found by the arbitrator, are contained

in his decision and award, Appendix B.

The matter was subjected to the grievance and

arbitration provisions of the contract, and the

decision and award contained in Appendix B was

rendered February 24, 1982.

6. Arbitral Decision and Award. Paraphrased

from Appendix B, the underlying chronology of facts

as found by the arbitrator are as follows:

June 5-June 10, 1981. Despite

reminders of the normal Sho-Me policy that

th> employee would be responsible for

additional accommodation charges for his

family's lodging, the employee in question

"repeatedly, boldly and blatantly

attempted to engage the owner of the

resort in a dishonest scheme to shift the

financial burden of his family's lodging

from himself to the Employer". (App. B,

pp B2-7, B19-26);

June 1l-July 21, 1981. Management

learned of the incident and contacted the

resort owners, who informed it that the

employee was not welcome in the future.

During this period Sho-Me and the Union

were engaged in collective fed pt

negotiations, of which the employee was an

outspoken opponent against ratification.

12.

On July 21, after ratification, the

employee was discharged on the basis of

his actions between June 5 and June 10.

(App. B, pp B7-14).

The conclusions reached by the arbitrator are

as follows:

The contractual standard of

"discharge for cause" ‘App. A, p A5) was

interpreted to mean "[I]f the

circumstances surrounding the employee

conduct are sufficiently egregious,

summary dismissal is warranted unless

management's reaction to the employee

conduct can be shown to be unreasonable,

arbitrary or capricious" (App. B, pp

B19-20; App. C, pp C10-11).

Stand alone, the employees conduct

merited a rinuing that management had

"cause and cause again" to summarily

dismiss the employee. However, management

in delaying the discharge, interposed an

intervening cause, and took the chance

nothing would happen in the interim

effecting the cause determination. Due to

the events in the intervening period, it

* was determined the discharge was

motivated, at least in substantial part by

the employee's union activities (App. B,

pp B12-25).

Based on the foregoing findings, the

arbitrator ultimately decided the

discharge was “not proper" under the

agreement. He found the employee

deserving of serious discipline, but could

not allow the discharge to stand for fear

it “would result, in the arbitrator's

judgment, in too chilling an effect upon

the free exercise of the fundamental right

of Grievant and each of his fellow

13.

employees to engage in concerted

activities and to bargain collectively

with the Employer". A financial loss was

imposed because of his dishonest conduct.

(App. B, pp B25-27).

The award was to sustain the

grievance, reinstate the employee with the

financial loss, and other measures. (App.

B, p B27-28).

7. District Court Decision. Disputing the

enforceability of the award and decision, the matter

was litigated before the Southern Division of the

United States District Court for the Western

District of Missouri. Jurisdiction arose under 29

U.S.C. 185(a) and 28 U.S.C 1337. On July 30, 1982,

the Honorable Russell G. Clark granted Sho-Me's

summary judgment motion denying enforcement. (App.

C).

In ruling the award did not draw its essence

from the agreement, Judge Clark accepted the

arbitrator's construction of "cause" to prohibit

unreasonable, arbitrary, or capricious management

action. Because the award was based on preception

of management motivation, it was decided the

arbitrator had not followed his own construction.

14,

és

Citing provisions of the decision and award wherein

the arbitrator admitted it was based on his own

interpretation of desirable social policy, the

District Court held the arbitrator had dispensed his

own brand of industrial justice.

"Although the arbitrator had interpreted

the collective bargaining agreement to prohibit

only unreasonable, arbitrary, or capricious

Management action, the arbitrator ultimately

based his award upon his perception of the

motivation underlying management action which

was acceptable in all other respects. The

arbitrator previously had not interpreted the

collective bargaining agreement to impose such

a restriction, and frankly admitted that his

award was based solely upon his own

interpretation of desirable social policy.

Thus, the arbitrator reasoned that Feo allow

the discharge to stand would result, in the

Arbitor's judgment, in too chilling an effect

upon the free exercise of the fundamental right

of Grievant and each of his fellow employees to

engage in concerted activities and to bargain

collectively with the Employer." As the Supreme

Court stated in Steelworkers of America v.

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

597 (1960), “an arbitrator is confined on

interpretation and application of the

collective bargaining agreement; he does not

sit to dispense his own brand of industrial

justice... When an arbitrator's words manifest

an infidelity to this obligation, courts have

no choice but to refuse enforcement of the

award." (App. C, pp C8-12).

8. Circuit Court of Appeals Decision. By

opinion filed September 2, 1983, the Eighth Circuit

15.

reversed the District Court (Appendix D). The Eighth

Circuit relied upon doctrines of construction of

awards in holding this award drew its essence from

the collective bargaining agreement. (App. D, pp

D7-17).

The court accepted the arbitrator's interpretation

of the agreement, stating it could not interfere

with this construction unless there was "positive

assurance" the contract was not susceptible to that

construction. (App. D, pp 014-16). Having

determined it would not disturb the arbitrator's

contractual construction, the Court concluded the

award drew its essence from the agreement. (App. D,

p 016). There was no discussion of how the District

Court's reasoning was erroneous, nor was there

discussion of Sho-Me's contention, (and District

Court's conclusion) that the essence was drawn from

the arbitrator's own interpretation of social

policy. (App. C. p Cll-12).

16.

REASONS FOR GRANTING THIS PETITION

This case presents an important question of

federal law as to an arbitrator's authority to

modify discipline based upon his own interpretation

of employee rights not expressed in the contract.

This case presents an important question as to

the extent of an arbitrator's authority to construe

a collective bargaining agreement, the answer to

which conflicts among the Circuit Courts of Appeal.

QUESTION 1

As the district court reasoned, it is patent

from the award that the arbitrator's idea of

desirable policy, and not his construction of the

agreement, was the basis for the award. (App. C, pp

C10-11). Having interpreted the contractual

standard of "cause" to embody “summary dismissal if

management's reaction to sufficiently egregious

conduct is not unreasonable, arbitrary or

capricious", (App. B, p B19), this interpretation

was not followed in fashioning a award. The award

found the conduct sufficiently egregious to merit a

loss of backwages,

1.

but ordered reinstatement. In so doing, the

arbitrator abandoned his own contractual

interpretation in favor of a disposition based upon

policy considerations foreign to the agreement.

Belying his construction in arriving at the

award, it seems readily apparent the "essence" of

the award was based upon the arbitrator's perception

of "chilling effects", not on the simple contractual

provisions of "discharge" and "cause", and not upon

management reaction. As stated in the Enterprise

Whee] segment of the Steelworker's Trilogy, 363 U.S.

593, 597:

“an arbitrator is confined to

interpretation and application of the

collective bargaining agreement, he does not

sit to dispense his own brand of industrial

justice... When an arbitrator's words manifest

an infidelity to this obligation, courts have

no choice but to refuse enforcement of the

award." (emphasis added).

This principle has been further elucidated by this

Court:

"If an arbitral decision is based "solely

upon the arbitrator's view of requirements of

enacted legislation,” rather than on an

interpretation of the collective bargaining

agreement, the arbitrator has "exceeded the

scope of the submission", and will not be

enforced. Ibid., thus the arbitrator has

authority to resolve only questions of

contractual rights. "Alexander v. Gardner-

Denver Co., 415 U.S. 36, 53-54, (1974), citing

in part the Enterprise Wheel decision, 1.c.597

18.

and

“Even though a particular arbitrator may

be competent to interpret and apply statutory

law, he may not have the contractual authority

to do so. An arbitrator's power is both

derived from and ‘imited by, the collective

bergaining agreewent... His task is limited to

construing the meaning of the collective

bargaining agreement, so as to effectuate the

collective interest of the parties."

Barrentine v. Arkansas-Best Freight System,

Inc., 450 U.S. 728, 744 (1981).

Arbitrator Eisler's concern for the fundamental

employee rights to engage in concerted activity and

to bargain collectively is a concern protected by

the guarantees of the National Labor Relations Act.

See 29 U.S.C. 157, 158. Although the arbitrator had

authority to determine the contractual dispute as to

cause for discharge, he did not have authority to

decide a statutory National Labor Relations Act

claim of discharge motivated by union activity.

Under the aforementioned directives from this Court,

it is patent from the award that the arbitrator

engaged in the forbidden. The agreement did not by

its terms prohibit discipline for concerted

activities, and cannot be so construed.

The inescapable conclusion is that the contract

provided no basis for the award's essence to be

19.

drawn on considerations of employee rights. The

award did not emanate from the wording of the

contract, the issue submitted, or the arbitrator's

construction of the contract. It was solely and

singularly based upon the arbitrator's personal

solution to the grievance. It is beyond dispute

that the arbitrator was punishing both management

and the employee. If the arbitrator found cause did

not exist, the employee should not have been

financially penalized. If cause existed, the award

violated management rights to investigate and delay

discipline pending labor negotiations. How does

guilty or cause cease to exist by the mere lapse of

time?

This Court is urged to consider that the award,

on its face, violated the prohibition of Enterprise

Wheel. Clearly, the essence of the award was drawn

from the arbitrator's personal view of rights

collateral to the contract. Hence the award must be

vacated, and this Court should grant certiorari to

so consider and order.

20.

QUESTION 2

Under the Enterprise Wheel decision of the

Steelworker's Trilogy, the ultimate question for

determining enforceability is whether the award

"draws its essence" from the collective agreement.

The only clarification of the standard is a negative

one: "When the arbitrator's words manifest an

infidelity to this obligation [to be confined to

interpret and apply the agreement; not dispensing

his own brand of industrial justice], courts have no

choice but to refuse enforcement of the award." 363

U.S. at 597. As is apparent from the plethora of

threshhold standards fashioned subsequent to the

"essence" determination, the Enterprise Wheel

decision provides no meaningful or precise

yardstick. Thus, the enforceability question often

turns on review standards which, while ostensibly

fashioned in view of the "essence" standard, can

actually preclude the review intended by this Court.

The Eighth Circuit's decision in this case

effected just such a preclusion. The decision only

went so far as to decide that the arbitrator's

21.

interpretation of the agreement drew its essence

from that agreement. There was no discussion of

whether the interpretation, application of that

interpretation, and resultant decision drew its

essence from the contractual provisions:

"Courts cannot interfere with an

arbitrator's interpretation unless it can be

said with positive assurance that the contract

is not susceptible of the arbitrator's

interpretation." (App D, p D14)

The standards utilized by the Eighth Circuit

derived from a history of judicial dissatisfaction

and frustration with the lack of guidance from the

Trilogy. This history is traced through a

collection of differing standards and results

applied and reached by the various United States

Circuit Courts of Appeal.

Enterprise Wheel, infra p. 597, the only direct

guideline from this Court, states the ultimate

question for determination is "whether the award

draws its essence from the collective bargaining

agreement". At the other end of the spectrum,

enforcement will be denied if the arbitrator applies

his own brand of industrial justice. Between these

22.

extremes, the other directives of Enterprise Wheel

set the stage for the confusion:

a) federal courts must decline to review

the merits of the award, p 596;

b) mere ambiguity permitting the

inference the arbitrator exceeded his

authority is no reason to refuse

enforcement, p 598; and

c) question of interpretation of the

collective bargaining agreement for

the arbitrator, and the courts have no

business disturbing his construction,

p 599.

Despite the language of Enterprise Wheel, some

substantive evaluation of the merits must have been

contemplated. It is necessitated by the “essence”

standard itself. How can a court find the award

does not draw its essence from the contract without

some examination of the underlying merits? How can

the inference the arbitrator exceeded his authority

be drawn without some examination of the underlying

merits? If an ambiguity allowing an inference the

arbitrator exceeded his authority is insufficient to

refuse enforcement, what standard will support a

finding of lack of essence? If the courts must

blindly accept the arbitrator's construction of the

23.

contract, is it axiomatic that his construction

necessarily draws its essence from the contract? If

a court cannot review the merits, must accept the

arbitrator's contractual construction, and cannot

rely on inferences of authority being exceeded, on

what basis or by what standard can an award be

vacated? Is the arbitrator free to make an

unfettered determination of the extent of his own

authority?

It would appear the only basis for vacation

would be that, on the face of the award, the

arbitrator did not apply his own interpretation

(which is precisely what the district judge

determined), or that something attaining the status

of "more than an inference" indicates the arbitrator

imposed his own brand of justice.

The uncertainties of these standards and their

underlying policy assumptions have been criticized.

See Labor Arbitration: A Dissenting View, Paul R.

Hays, Yale University Press, 1966; The Supreme Court

and Labor Law October Term, 1959, Paul R. Hays, 60

Columbia Law Review 901 (921-935), 1960; Symposium,

24.

Labor Arbitration and Judicial Oversight, Thomas G.

S. Christensen, 19 Stanford Law Review 671, 1967;

Judicial Review of Labor Arbitration Awards After

the Trilogy, C. W. Brinckerhoff, 53 Cornell Law

Review 136 (1968).

The following excerpts of case law demonstrate

the diverse language used by the circuits to

promulgate their own definition of what the

standard means.

FIRST CIRCUIT

"An award will be upheld, unless the

arbitrator's choice was “by reason of some

circumstance outside the contract itself, so

palpably faulty that no judge, or group of

judges, could ever conceivably have made such a

ruling." International Union of E. R. & MW v.

Peerless Pressed Metal, 489 F.2d 768, 769 [2]

(1974), cert den. 414 U.S. 1022 (1973); Better

Const. v. Boston Edison Co., 560 F.2d 1045,

1050 [5], (1977).

SECOND CIRCUIT

“Arbitrator's decision that he has

authority should not be accepted where the

reviewing court can clearly perceive that he

has derived that authority from sources outside

the collective bargaining agreement at issue."

Torrington Company v. Metal Products W.U.L.

1645, 362 F.2d 677, 680 [4] (1966).

THIRD CIRCUIT

"An award is enforceable if it "can

25.

possibly derive from an interpretation and

application of the clauses of the agreement,

the courts are precluded from refusing to

enforce his award." Sun Petroleum Products Co.

v. Oi], Chemist & Atomic Workers, 681 F.2d 924,

927 [2] (1982). Arco Polyers Inc. v. Local

8-74, 671 F.2d 752, 755 (1982).

FOURTH CIRCUIT

"His function is confined to the

interpretation and application of the

collective bargaining agreement under which he

acts and, while he may give his own

construction to ambiguous language, he is

without authority to disregard or modify plain

and unambiguous provisions." Monogahela Power

v. Local 2332, IBEW, 566 F.2d 1196, 1199 [2]

(1976).

FIFTH CIRCUIT

"Only where there is a manifest disregard

of the agreement, totally unsupported by

principle of contract construction and the law

of the shop, may a reviewing court disturb the

award.” Communications Workers of America,

AFL-CIO v. Western Electric, 397 F.Supp 1318,

1322 [4] affirmed 558 F.2d 816 (1977).

SIXTH CIRCUIT

Enforcement will be denied where the

arbitrator "substitut[ed] his discretion for

the company's" and his "“award...cannot be

rationally deduced from the agreement." Timken

Co. v. Local Union No. 1123, United Steel

Workers of America, 482 F.2d 1012 [4] (1973).

SEVENTH CIRCUIT

"An arbitrator's award does draw its

essence from the collective bargaining

agreement so long as the interpretation can in

26.

some rational manner be derived from the

agreement, reviewed in the light of its

language, its context, and any other indication

of the parties' intention; only where there is

a manifest disregard of the agreement, totally

unsupported by principals of contract

construction and the law of the shop, may a

reviewing court disturb the award." Amoco Oi]

Co. v. Chemical and Atomic Workers, 548 F.2d

1288, 1294 (1977), cert den. 431 U.S. 905

(1977).

EIGHTH CIRCUIT

"An arbitrator may interpret, construe, or

apply the provisions of a collective bargaining

agreement if the contract does not limit his

authority to do so...unless it can be said with

positive assurance that the contract is not

susceptible of the arbitrator's

interpretation." IBEW Local 53 v. Sho-Me 715

F.2d 1322, 1325 [5] (1983).

NINTH CIRCUIT

Enforce an award where "it is possible for

an honest intellect to interpret the words of

the contract and reach the result which the

arbitrator reached." San Francisco-Oakland

Newspaper Guild v. Tribune Publishing Co., 407

F.2d 1327, 1328 [3] (1969).

"An award that conflicts directly with the

contract cannot be [an enforceable] plausible

interpretation." Pacific Motor Trucking v.

i jl Machinists, 702 F.2d 176, 177 [1]

1983).

TENTH CIRCUIT

Enforcing an award " is strictly confined

to whether the arbitrator interprets and

applies the collective bargaining agreement so

27.

that his award is rooted in the agreement."

International Brotherhood of Electrical Workers

v. Professional Hole Drilling, 574 F.2d 497,

503 [7] (1978).

From this sample, it is clear the differing

circuits have conflicting standards because of two

separate considerations:

A.

Being dissatisfied with the "draw its

essence" standard, the circuit courts have

attempted to announce definitive standards

capable of meaningful application; and

Being unwilling to blindly accept the

arbitrator's own interpretation of

contracts, which is the traditional and

usual function of a court of law, the

circuits have imposed different standards

of review on the arbitrator's

interpretation of the collective bargaining

agreement.

These differing standards, which can lead and

have lead to differing results among the circuits,

cry out for clarification from this Court. In this

particular case, Sho-Me was denied a review on the

merits due to the standards of construction proposed

by the Eighth Circuit. Holding the arbitrator's

contractual interpretation acceptable, the Eighth

Circuit then jumped to the conclusion that the award

28.

ree x

itself was enforceable. In this bootstrapping

process, the Eighth Circuit did not examine,

discuss, or decide whether the arbitrator followed

his own contractual interpretation. This was the

award's downfall in the district judge's decision,

should have been considered by the Eighth Circuit,

and should be considered by the Supreme Court of the

United States.

Clearly, there is conflict of decisions among

the circuits with respect to threshhold standards in

evaluating whether an award draws its essence from

the collective bargaining agreement. Additionally,

there is an obvious conflict with respect to

standards regulating the arbitrator's ability to

interpret and construe the provisions of the

collective bargaining agreement. Both of these

conflicts apply to the facts embodied in this

Petition, and this Court is urged to utilize this

opportunity to clarify the applicable standards, or

promulgate new ones.

29.

CONCLUSION

Petitioner Sho-Me Power Corporation

respectfully request this Court issue a Writ of

Certiorari by granting this Petition.

Respectfully submitted,

Comin V0

ugene Andereck

Erwin L. Milne

Counsel of Record

Craig S. Johnson

STOCKARD, ANDERECK, HAUCK,

SHARP & EVANS

101 West McCarty Street

Post Office Box 1280

Jefferson City, MO 65102

Telephone: (314) 634-3422

November, 1983

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true

copy of the foregoing Petition for Certiorari was

mailed by depositingesame in a United States post

office or mail box, first class postage prepaid,

this 23rd day of November, 1983, to Ms. Marsha J.

Murphy, Jolley, Moran, Walsh, Hager & Gordon, 1300

Traders Bank Building, 1125 Grand Avenue, Kansas

City, Missouri, 64106, attorneys for IBEW Local 53,

and to Mr. Robert D. St. Vrain, Clerk, United States

Court of Appeals, Eighth Circuit, United States

Court and Custom House, 1114 Market Street, St.

Louis, Missouri 63101

Erwin lL. Milne

30.

"APPENDIX A: Pertinent Provision of

Collective Bargaining Agreement"

31.

Al

Article I: Recognition

Section 2. The Union recognizes that

Management of the Corporation, the direction of

its working forces, the determination of the

number of men it will employ or retain, the

right to hire, discharge, promote, demote,

transfer, and release employees is vested in

and reserved by the Corporation, and subject,

however, to the provisions of this Agreement.

Article V: Grievance Procedure

Section 1. Should any differences or

disputes arise under any provisions of this

Agreement between an employee or a group of

employees and a representative of the

Corporation, such differences shall be settled

in the following manner, and shall receive

prompt consideration.

Step 1. The employee or employees and/or

the Steward shall discuss the grievance with

the immediate supervisor.

A2

Step 2. If no settlement is agreed to,

the employee or employees or the steward shall

present the grievance in a written form to the

departmental supervisor designated by the

Corporation to handle grievances for the

Department involved. The Departmental

supervisor will, within five (5) working days,

give a written reply to the grievance.

Step 3. In the event the matter is not

satisfactorily adjusted, the Union Committee

and/or the Business Manager of the Union, or

his representative, shall discuss the grievance

with the General Manager of the Corporation or

his designated representative.

Step 4. If no settlement is then reached,

any matter or matters remaining in dispute

shall, at the request of the delegated

representative of either or both parties, be

submitted to arbitration as follows:

Step 4A. The Arbitration Board shall

A3

consist of one person selected by the

Corporation and one person selected by the

Union, and these two persons shall select

a third party to the Arbitration Board.

In the event these two persons fail to

agree on a third party to the board, they

shall then request the Chairman of the

Missouri State Board of Mediation to

appoint the third member of the Board. In

the event the office of Chairman of the

State Board of Mediation is abolished, or

in the event there is no Chairman of the

State Board of Mediation, or successor

thereto, they shall request the American

Arbitration Association to supply a list

of five (5) names, one to be selected as

the third member of the Board by

elimination, first one party striking out

a name, then the other until one remains.

The Corporation and Union arbitration

A

board members shall not exceed ten (10)

days in the selection of the third member

before notifying the Chairman of the State

Mediation Board or the American

Arbitration Association as the case may

be.

Step 4B. Each party shall defray the

expense of preparing and presenting its

own case to the Arbitration Board. The

expense, if any, of the odd numbered

member of the Board and other incidental

expenses mutually agreed to in advance,

shall be borne equally by both parties.

Step 4C. All decisions rendered by

the Arbitration Board shall be final and

binding upon both parties, and shall be in

writing and each party shall be furnished

with a copy thereof. In no event shall

this board have the authority to amend or

change any of the provisions of this

AS

Agreement.

The handling of all grievances by the Stewards

shall be done during the regular working hours and

without the loss of pay. All grievances must be

handled promptly and without undue loss of time.

Article VI: Seniority

Section 1. Seniority is a right accruing to

employees as a result of length of service with the

Corporation which entitles them to preference,

qualifications and ability being equal, to retention

in service, layoffs, permanent transfers, and in

rehiring, providing the employee is able to perform

the required duties.

Section 5. Seniority shall be lost by the

occurrence of any of the following:

a. Resignation.

b. Discharge for cause.

c. Absence for three (3) working days without

notice to the supervisor unless there exist

circumstances which make it impossible to

A6

so report.

d. Failure to report to work after recall from

layoff.

e. Exceeding leave of absence.

f. Giving false reason for obtaining a leave

of absence.

The enumeration of c, d, e and f above shall in

no way be construed as eliminating the offense as

grounds for discharge for cause.

"APPENDIX B: Decision and Award of Arbitrator"

32.

IN THE MATTER OF ARBITRATION BETWEEN

SHO-ME POWER CORPORATION

and

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL NO. 53 AFL-CIO

GRIEVANCE OF STEPHEN THORNTON

THE STATE BOARD OF MEDIATION

STATE OF MISSOURI

DECISION AND AWARD

WILLIAM 0. EISLER

ARBITRATOR

6140 NW. WALES RD.

P. 0. BOX 9097

KANSAS CITY, MO. 64168

Bl

IN THE MATTER OF ARBITRATION

BETWEEN SHO-ME POWER CORPORATION,

Employer,

Grievance of

Stephen Thornton

and

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL NO. 53

Union.

Appearances:

Eugene E. Andereck, Esq. Marsha J. Murphy, Esq.

Stockard, Andereck, Hauck, Jolley, Moran, Walsh,

Sharp & Evans Hager & Gordon

101 West McCarty Street 1300 Traders Bank Building

Jefferson City, MO 65102 1125 Grand Avenue

(Craig S. Johnson, Esq. Kansas City, MO 64106

with him on the briefs) for the Union. -

for the Employer.

DECISION AND AWARD

Pursuant to the Collective Bargaining Agreement

between the Parties and at their request, the State

Board of Mediation of the Missouri Department of

Labor and Industrial Relations, by its letter of

September 28, 1981, appointed the undersigned as

neutral arbitrator on a tripartite arbitration

board. A hearing was held on the 10th day of

B2

December, 1981, at Springfield, Missouri. At the

commencement of the hearing, the Parties, by

stipulation, waived the provisions of the Agreement

requiring a tripartite arbitration board and agreed

that the undersigned should act as sole arbitrator

in this dispute. After a full and complete

evidentiary hearing, the Parties filed briefs on

January 18, 1982, and the Employer filed a reply

brief on January 25.

Due to their differing views as to whether just

cause for the discharge of an employee is required

by the Collective Bargaining Agreement, the Parties

were unable to agree on a statement of the issue in

this case. The Employer suggested "Whether or not

the discharge of [Grievant] was proper under the

Agreement between Local Union 53 of the I.B.E.W. and

Sho-Me Power Corporation?" The Union asks "Was the

discharge of [Grievant] for just cause? If not,

what is the appropriate remedy?" As is apparent

from the discussion below, the Arbitrator views the

B3

Parties' disagreement as an exercise in semantics.

Both questions ask the same thing and both require

the same answer.

The Employer is a public utility and provides

electrical power to rural electric cooperatives

which s*. ve primarily the Ozarks region of southern

Missouri. Prior to his discharge on July 21, 1981,

Grievant was employed by the Employer for

approximately five years. When discharged, his job

was that of an equipment operator - truck driver.

During the weekend of June 5, 1981, Grievant's

foreman called him at his home in Marshfield,

Missouri, and advised him that he was being assigned

to a crew which would spend the following week at

the Company's Gainesville, Missouri, sub-station.

the crew would be housed at the Theodoshia Marina

and Resort at Theodoshia, Missouri. Grievant told

his foreman that his family would accompany him

during a portion of the week. The foreman advised

him that he would be responsible for any additional

B4

charges at the resort for his family's

accommodations.

On Monday, June 8, the crew, inclucing Grievant

and his foreman checked into the resort. Grievant

and one of his fellow employees were assigned to

share one of the units. They told one of the owners

of the resort that their families would be joining

them the next day and arrangements were made for

separate accommodations to house the two of them with

their respective families. They were advised by the

owner of the resort that there would be an

additional charge to accommodate their families.

Grievant told her that other motels and resorts in

the area did not charge members of crews

additionally when their families accompanied them.

She explained to Grievant that the resort did not

have flat rates for the units but rather charged by

the number of persons occupying the unit. These

charges were $28.00 per day extra for Grievant's

family.

B5

On Tuesday, June 9, Grievant's family arrived.

That evening Grievant asked the owner whether she

would waive the additional charges. She refused.

He suggested that she bill the Employer for the

additional charges.! She refused to do this. He

again told her that other motels and resorts did not

charge extra for members of the family and was

insistent that she either waive the additional

charge or somehow include it in the Company's bill.

He suggested that she bill the Company as if he were

1 The owner of the resort so testified.

Grievant denied suggesting in any way that she

should charge the Employer for the cost of his

family's accommodations. The Arbitrator simply finds

it incomprehensible to conclude that she would have

testified as she did, had the events not occurred as

she testified that they did. The record in this

case is devoid of any evidence which directly or

inferentially leads me to conclude that she was not

completely truthful. To the extent that Grievant's

version of the incidents of June 8, 9 and 10 differ

from that of the owner of the resort, her version,

and not Grievant's, is credited.

B6

staying in a suite, which she could say was the only

thing available, and the Company would therefore be

charged for his family's accommodations. She

explaired that the resort did not have the suites

and that she would not charge the extra amount to

the Company.

She checked with Grievant's foreman on Tuesday

evening as to how the financial arrangements should

be handled regarding the employees whose families

were with them. The foreman advised her that the

employee would have to pay any additional charges.

The foreman again advised Grievant that it was his

responsibility to pay for his family's

accommodations.

On Wednesday night, when he ultimately paid for

the charges for his family as they were leaving the

next day, Grievant against attempted to convince the

owner that she should either absorb the cost of his

family's accommodations or somehow include that cost

in the billing to the Company. She again refused,

B7

but did reduce the charge for his family to $20.00

per day.

During these conversations Grievant also

complained to the owner about some of the resort's

accommodations and the fact that there were

additional charges for the use of the tennis courts.

Grievant told the resort owner that he had a vote,

along with the other members of the crew, as to

where the crew stayed and that he would use his

influence and vote to see that the crew stayed

elsewhere when they were in the Theodoshia area in

the future. The resort owner became rather upset

and considered his conduct to be a form of

harrassment.

Six weeks later, on July 21, Grievant was

called into a meeting at the Company's offices in

Marshfield, Missouri, by the Employer's General

Manager. Also present were Grievant's Union Steward

and his foreman. He was advised that he was

discharged by the Company and was given the

B8

following letter“ by the General Manager:

"It has come to my attention that while on Sho-Me

business, you and your family stayed the Cook's

Marina at Theodoshia, Missouri. You asked (were

advised by) your Supervisor E%ley Trantham ard the

F¥ransmissien-Supert+nterdent;-Kenrneth-MeVay,;-fer

(that no) special compensation from Sho-Me in the

manner of lodging expense te-+netude (would be

allowed for) your family. After being denied

compensation for your family and during that stay

you attempted to coerce the owners into increasing

the nightly lodging rate paid by Sho-Me to cover the

added cost of your family.

The owners refused your repeated efforts and have

advised me that you are no longer welcome at their

facilities either as a private guest of the motel or

when you are on Sho-Me's business at the company's

expense.

Mr. Charles Brown, the Ozark County Prosecutor has

advised me that your alleged actions are considered

"attempted stealing by deceit" which according to

the criminal statutes of Missouri is a class "C"

misdemeanor punishable by a maximum fine of $300 and

15 days in jail.

Based on vour actions, you are hereby advised that

you are immediately terminated. Please contact the

Director of Personnel to arrange final settlement of

the Sho-Me employee Benefit program

2 The words in the letter which appear thusly

thusty were scratched out by the General Manager and

the words which appear in parenthesis were inserted

in the General Manager's handwriting after a

discussion between he and Grievant concerning the

accuracy of the letter.

a

B9

During the six week interval between the

incidents at the resort and Grievant's discharge,

the Employer and the Union were engaged in

collective bargaining negotiations for the renewal

of the Agreement between them. On July 2, ata

Union meeting, the Bargaining Unit voted to reject

the Employer's proposal for a new agreement. Strike

sanction was requested from the International Union.

Negotiations continued between the Parties and on

July 20 another Union meeting was held at which time

the Bargaining Unit voted to ratify a second proposal

made by the company for a new agreement. At both

these meetings Grievant was vocal and outspoken

against the Company's offers. In the course of his

comments to the assembled members of the Bargaining

Unit, he spoke of engaging in "sit-ins" and

suggested that the employees could succumb to an

epidemic of "the blue flu". Other employees spoke

against ratification of the Agreement at both

meetings but not as strongly as did Grievant.

B10

Prior to his discharge on July 21, the General

Manager made no effort to question Grievant about

the incidents at the resort. Nor did he question

the co-employee with whom Grievant shared

accommodations on June 8 and who also had his family

with him at the resort.

On July 24, the General Manager met with the

Union's Business Manager and a representative of the

International Union concerning the discharge. In

the course of the conversation the General Manager

suggested to the Union's Business Manager that if

Grievant would resign his employment with the

Company, the Company would not file criminal charges

against him. The Business Manager stated that he

would convey the message to Grievant but would

recommend that he pursue the instant grievance. The

Business Manager asked the General Manager why he

waited for such a long period of time before

discharging Grievant. The General Manager told him

that it was because of the Contract negotiations.

Bll

During the course of this conversation the General

Manager made references to Grievant's remarks at the

Union's meetings concerning the blue flu.?

The General Manager learned of the incidents at

the resort in a telephone call with a person who was

not associated with the Company, who told him that

he .chought the Company was paying for the

accommodations of its employees' families at the

resort. As a result of that telephone conversation,

the General Manager contacted the owners of the

resort, who told him of Grievant's conduct and that

3 The General Manager denied knowledge of

Grievant's participation at the Union's meetings,

while acknowledging that he sometimes heard rumors

about what went on at Union meetings. He denied

being able to recall any mention of the blue flu in

his meeting with the Union's Business Manager and

the representative of the International Union. He

also denied stating that the Company would not file

criminal charges if Grievant resigned. The

Arbitrator carefully observed the Employer's General

Manager during his testimony in this case. His

demeanor was argumentative, uncooperative and

secretive. His testimony was unpersuasive. To the

extent his testimony differs from that of the other

witnesses who testified, the other witnesses’

testimony, and not the General Manager's, is

credited.

B12

he was not welcome as a guest at the resort in the

future. The General Manager refused to identify the

person who informed him of the incident at the

resort when asked by Union's Counsel, explaining

that he had promised that person not to do so.

The General Manager explained the delay in

discharging Grievant by saying that he was giving

the matter very serious consideration during this

period. He wanted to see if the owner of the resort

would change her mind about refusing to have

Grievant as a guest in the future. He finally

decided to discharge Grievant because it was going

to be necessary to send a crew to Theodoshia and he

couldn't have the rest of the crew staying at one

place and having Grievant at another.“

The applicable Collective Bargaining Agreement

contains the following pertinent contractual

provision:

"Article I. Section 2. The Union recognizes

that Management of the Corporation, the direction of

4 The Arbitrator does not credit the General

Manager's explanation.

B13

its working forces, the determination of the

number of men it will employ or retain, the

right to hire, discharge, promote, demote,

transfer, and release employees is vested in

and reserved by the Corporation, subject,

however, to the provisions of this Agreement.

Article V. Section 4C. All decisions rendered

by the Arbitration Board shall be final and

binding upon both parties . .. . In no event

shall this Board have the authority to amend or

change any of the provisions of this Agreement.

Article VI. Seniority. Section 1, Seniority

1S a right accruing to employees as a result of

length of service with the Corporation which

entitles them to preference, qualifications and

ability being equal, to retention in service, .

. « providing the employee is able to perform

the required duties.

Section 5. Seniority shall be lost by the

occurrence of any of the following: .. .

b. Discharge for cause....

For the reasons hereinafter stated, the

Arbitrator finds that the discharge of Grievant was

not proper under the Agreement between the Parties.

The Employer argues that the controlling

provision of the Contract in this case is the

Management Rights clause and points out that it does

not require "just cause" or any other standard

before Management can exercise its power of

B14

discharge. The Argument continues that Article VI

deals with seniority and does not deal with

discharges.” Management, while recognizing the

severity of discharge as a disciplinary measure,

argues that it has a lesser standard of proof than

that required under usual just cause provisions and

that the evidence in this case justifies its action.

It points out that there are two classes of offenses

in disciplinary cases, those involving extremely

serious misconduct which justify summary discharge

and those of a less serious nature which require the

application of progressive discipline. Management

characterizes Grievant's conduct as being dishonest.

5 The Arbitrator has carefully read and

studied each of the arbitration decisions cited by

the Employer in support of this proposition. To the

extent that those decisions support the proposition,

and two of them, Okenite Company, 22 LA 756

Krivonos, 1954) and Meletron Corporation 24 LA 680

Warren, 1955), are to be considered definite

support for what the Employer argues, the Arbitrator

declines to follow them as he believes they fail to

recognize the significance of the concept of

seniority in labor relations. The concept of

seniority, as set forth in this Agreement, is more

fully elaborated upon later in this Decision.

B15

His conduct was detrimental to the public image of

the Employer which was justified, if not compelled,

to rectify the situation. Further, Grievant's

actions were abusive towards the customer and when

such actions prompt customer complaints, they are

grounds for discharge. Finally, the Employer relies

upon the oft quoted language found in Stockham Pipe

Fittings, Co., 1 LA 160 (1945), to the effect that

it is primarily Management's function to decide upon

the penalty in any given case and that an arbitrator

should not disturb that penalty if Management acts

in good faith and upon a fair investigation.

DISCUSSION

Any analysis of the subject of management

rights in labor relations must begin with the

proposition that absent the prohibitions of a

contract or a statute or other overriding instrument

of public policy, management has the absolute and

unfettered right to do so as it pleases. In that

circumstances, whim sometimes operates more

B16

efficaciously than does reason. Because of whim's

efficacy, certain inroads began to eppear in such

areas as worker's compensation, unempioyment

insurance, wage and hour laws, child labor laws and

the like. Workers began to organize against

management's whim. Working rules developed and

concerted strike activity withdrew from the area of

law dealing with criminal conspiracies and emerged

as a right to be protected.

Once begun, the movement continued with the

enactment of the National Labor Relations Act and

its progeny. The Civil Rights Act, the Age

Discrimination Act and the Occupational Health and

Safety Act, to name a few, followed. The national

labor policy settled upon favoring the arbitration

of labor disputes to resolve differences and to

avoid strikes. Labor arbitration flourished. These

inroads on unfettered and absolute management rights

have developed into a full-blown, full-scale code of

conduct governing the relationship of employer and

B17

enployee.

That process began in this case in 1951, when

the Parties entered into what was evidentally their

first Collective Bargaining Agreement. The process

continued to date and is now evidenced by the

Agreement which is applicable to this dispute and

which was ratified by the Union the night before

Grievant's discharge.

Under the management rights clause, Management

has reserved unto itself not the absolute unfettered

right to discharge, but rather the right to

discharge subject, however, to the provisions of the

Agreement. In thus reserving its right to

discharge, Management is not saddled with ny

limiting language such as cause, just cause or

proper cause. But is is saddled with the

subjugation of the right to discharge to the other

provisions of the agreement.

One of the other provisions of the Agreement is

the seniority provision found in Article VI. The

B18

first Article VI tells us is that seniority is an

employee right. That right is the result of the

employee's length of service with the Employer.

Among the things that right entitles the employee is

the employee is the right to be retained in the

Employer's service so long as he is able to perform

his required duties. No credible argument is made

in this case that Grievant is not able to perform

his required duties. (See footnote 4, supra.)

Having the right to be retained in his

employment because of his seniority, the employee

is, however, liable to lose that right, and the cther

rights to which seniority entitles him, upon the

happening of certain designated events, one of which

is discharge for cause. If a discharge is not for

cause, it logically follows that an employee does

not lose his seniority and its entitlements, one of

which is the right to be retained in service.

Therefore, the employee is entitled to continue to

work for the Employer and to draw his pay and other

B19

benefits. If his seniority is not broken, but the

Employer nevertheless refuses to allow the employee

to work, it seems that the employee's right to pay

and other benefits would continue.

Therefore, to fully accept the Employer's

argument that it does not need just cause -- or

cause if you will, the terms are virtually

Synonymous -- would result in employees, whom the

Employer has discharged without cause, remaining on

the the payroll] without the necessity of working for

their pay. That, I think, is not what the Union

bargained for. It is not, I think, what the

Employer intended to grant when the Collective

Bargaining Agreement was entered into. Rather, what

the Parties contemplated was a restriction on the

unfettered and absolute right of Management to

discharge. They have seen fit to describe that

restriction by the use of the words "discharge for

cause".

What cause, then, must Management have?

B20

Management does not argue that it may be

unreasonable, that it may be arbitrary or that it

may be capricious in its cause. Each instance of

discharge will necessitate an examination of the

circumstances surrounding the employee conduct and

Management's reaction thereto to determine whether

cause, if fact, exists. If the circumstances

surrounding the employee conduct are sufficiently

egregious, summary dismissal is warranted unless

Management's reaction to the employee conduct can be

shown to be unreasonable, arbitrary or capricious.

If the circumstances surrounding the employee

conduct are of a Jess serious nature and

Management's reaction thereto is reasonable,

discharge would not be assessed, but rather a lesser

penalty, such as progressive discipline, would be

imposed. In other words, the Employer must have

reasonable cause to discharge an employee. It is

described as just cause by other parties. That is

the standard which must be applied in this case.

o

B21

Ignoring for the moment the questions raised by

the reaction of Management in this case and looking

only to the circumstances surrounding the employee

conduct, the Arbitrator finds that Management had

cause, and cause again, for the summary dismissal of

Grievant. The Arbitrator has carefully studied his

notes taken during the hearing, has reviewed the

tape recorded transcript of the hearing and has

recalled the demeanor of the witnesses as they

testified. He has concluded that the circumstances

surrounding the employee conduct in this case

justifies the conclusion that Grievant repeatedly,

boldly and blatantly attempted to engage the owner

of the resort in a dishonest scheme to shift the

financial burden of his family's lodging from

himself to the Employer. Standing alone, this

conduct warrants summary discharge.

But, the Employee's conduct does not stand

alone. Management's reaction to that conduct must

be taken into consideration.

B22

What was Management's reaction? It could be

characterized in a number of ways, but it could not

be characterized as summary. Upon learning of the

incidents at the resort from its secret informant,

management inquired into the circumstances by

contacting the owner. Thereafter it did nothing

until July 21.

The General Manager explained the delay by

saying that he had been giving the matter serious

consideration and had hoped that the owner of the

resort would change her mind concerning not allowing

Grievant to stay at the resort in the future.

Because the crew had to be sent to Theodoshia again

and because of the resort owner's continuing

attitude toward Grievant, he had to be discharged as

the Company could not have Grievant housed in one

place and the remainder of the crew elsewhere.

The Union's Business Manager testified that the

General Manager told him the delay was because of

the negotiations. For the same reason as stated in

ai

gga

B23

footnote 3, I find that the General Manager delayed

the discharge in this case either because he did not

feel that Grievant's offense was that serious or

because of the pending labor negotiations.

As indicated earlier, I view Grievant's conduct

as warranting summary dismissal. I will not

speculate as to what impact his summary discharge

might have had upon the negotiations.

But the resultant delay is an intervening cause

interposed by Management upon the circumstances and

is a part of Management's reaction. By interposing

the delay, Management took the chance that nothing

would happen in the interim which would effect the

overall determination of whether cause exists in

this case.

Something did happen. Grievant attended two

Union meetings and boldly and blatantly encouraged

his fellow employees to engage in concerted

activities and to reject Management's proposals. It

was Grievant's legitimate right to do so. Word of

B24

Grievant's conduct at the Union meetings got back to

the General Manager. He knew of Grievant's comments

regarding sit-ins and the blue flu. He knew of

Grievant's vocal opposition to acceptance of the

Employer's contract terms. As soon as the contract

was ratified, he immediately discharged Grievant.

What were his reasons, his motives in

discharging Grievant. Motive -- one's state of mind

-- is a factor which must be considered in any case

involving the possible application of discipline

against an employee because of his union activities.

One substantial test of motive is the timing in

which certain acts are taken. Another reliable test

is the statements made by an actor at, about and

concerning the circumstances in which he acted.

In this case we have the imposition of

discharge six weeks after the occurrence, but at the

first opportunity after Management had the

Collective Bargaining Agreement ratified by the

Union over Grievant's vocal opposition. We have the

a

a

~

&

Sa

B25

General Manager's statements to the Union

representatives made within days of the discharge

concerning Grievant's verbalization at the Union

meeting. These factors, juxtaposed with each other,

lead the Arbitrator to the conclusion and the

holding that Grievant's discharge was motivated in

substantial part and impelled by his union

activities. Indeed, that conclusion, in the

circumstances of this case, seems inescapable.

Having concluded that Grievant's conduct of

June 8, 9 and 10 amounted to serious dishonesty

which, if standing alone, would justify his summary

discharge, but that the motivating factor, at least

in substantial part, which impelled Management to

the decision to discharge him was his union

activities, the Arbitrator finds that Grievant's

discharge was not proper under the Parties

Agreement.

Grievant is deserving of serious discipline in

this case. But the discharge itself cannot stand

B26

because of the General Manager's improper - indeed,

unlawful - motivation involving Grievant's

activities. To allow the discharge to stand would

result, in the Arbitrator's judgment, in too

chilling an effect upon the free exercise of the

fundamental right of Grievant and each of his fellow

employees to engage in concerted activities and to

bargain collectively with the Employer. Grievant

will therefore be reinstated without any provision

for back pay.

The Arbitrator realized this is a financial

loss to Grievant which approximates $13,000.00.

Grievant should realize that it is solely due to his

dishonest conduct. The Employer should realize that

Grievant's reinstatement is due solely to it's

improper and unlawful motivation. Because of that

motivation, and in an attempt to see to it that

Management's excuse in this case is not again used

as a pretext, the Arbitrator shall make provision

that all reference to the incidents at the resort

B27

shall be expunged from the Company's records and

that the incidents that occurred at the resort shal}

not be used in the future in any manner by the

Employer toward Grievant in their employment

relationship. Such a provision, of course, is not

self-enforcing. But, a watchful union should be

able to see that it is enforced, if future events

make that necessary.

AWARD

The grievance is sustained. Grievant's

discharge was not proper under the Contract between

the Employer and the Union. He shall be reinstated

to his employment and his former position shall be

restored him without back pay, but with all other

rights and benefits to which uninterrupted seniority

entitles him. All reference to Grievant's conduct

at the Theodoshia Marina and Resort on June 8, 9 and

10, 1981, shall be expunged from the Employer's

records. In the future, the Employer shall make no

reference to and no use of the incidents which

B28

occurred at the Theodoshia Marina and Resort in its

employment relationship with Grievant.

William 0. Eisler

Arbitrator

February 24, 1982.

"APPENDIX C:

District Court Order"

Cl

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

a.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS, LOCAL UNION NO. 53, AFL-CIO

)

)

)

Plaintiff,

vs. )No. 82-3097

) CV-S-4

SHO-ME POWER CORPORATION, '

Defendant. )

ORDER

Plaintiff filed this action on March 11, 1982

seeking enforcement of an arbitration award. On May

20, 1982 plaintiff filed a motion for summary

judgment, a motion for a preliminary injunction, and

a request for a show cause hearing. Defendant

responded with its motion for summary judgment on

May 28, 1982. For the following reasons, the Court

will deny plaintiff's motions and will enter summary

judgment in favor of defendant.

The Court finds the following facts to be

undisputed. Plaintiff is an unincorporated labor

organization with its principal place of business in

Kansas City, Missouri. Defendant is a Missouri

=

C2

corporation operating in southwest Missouri as a

regulated public utility. Federal jurisdiction

arises under 29 U.S.C. § 185(a) and 28 U.S.C. §

1337.

At all times material to this action plaintiff

represented certain employees of defendant in the

negotiation and administration of collective

bargaining agreements. On July 1, 1981 plaintiff

and defendant executed a collective bargaining

agreement. Article I, Section 2 of that agreement

reserved certain rights to defendant in the

following manner:

The Union recognizes that Management of

the Corporation, the direction of its working

forces, the determination of the number of men

it will employ or retain, the right to hire,

discharged, promote, demote, transfer, and

release employees is vested in and reserved by

the Corporation, subject, however, to the

provisions of this Agreement.

Of particular relevance in this case was Article V of

the agreement which outlined a four step grievance

procedure. Section 1 of Article V defined the

scope of that procedure as follows:

C3

Should any differences or disputes arise under

any provisions of this Agreement between an

employee or a group of employees and a

representative of the Corporation, such

differences shall be settled in the following

manner and shall receive prompt consideration.

Steps 1, 2 and 3 of the procedure required initial

discussions with an employee's immediate supervisor,

departmental supervisor, and the corporation's

general manager respectively. Step 4 provided in

relevant part as follows:

If no settlement is then reached, any matter or

matters remaining in dispute shall, at the

request of the delegated representative of

either or both parties, be submitted to

arbitration as follows:

Step 4A. The Arbitration board shail

consist of one person selected by the

Corporation and one person selected by the

Union, and these two persons shall select

the third party to the Arbitration Board.

In the event these two persons fail to

agree on a third party to the board, they

shall then request the Chairman of the

Missouri State Board of Mediation to

appoint the third member of the Board. . .

rbitration Board shall be final and

binding upon both parties, and shall be in

writing and each party shall be furnished

with a copy thereof. In-no event shall

this board have the authority to amend or

change any of the provisions of this

step 4C. All decisions rendered by the

:

~

.

‘.

ee

i a oe a

C4

Agreement.

Additional relevant provisions were contained in

Article VI which dealt exclusively with seniority

rights. Section 1 of that article defined seniority

as:

a right accruing to employees as a result of

length of service with the corporation which

entitles them to preference, qualifications and

ability being equal, to retention in service,

layoffs, permanent transfers, and in rehiring,

providing the employee is able to perform the

required duties.

Section 5 of Article VI provided that:

Seniority shall be lost by the occurrence of

any of the following:

a

(b) Discharge for cause....

These. provisions applied to all of defendant's union

employees who were represented by plaintiff after

July 1, 1981.

On July 21, 1981 defendant discharged one

Stephen M. Thornton, a member of plaintiff's union.

Plaintiff and Thornton immediately filed a grievance

requesting reinstatement with full back pay,

C5

seniority, and benefits. Following a series of

unfruitful meetings, the parties agreed to submit

the grievance to arbitration. The Missouri State

Board of Mediation then appointed Mr. William 0.

Eisler as the neutral third board member pursuant to

the collective bargaining agreement. Arbitrator

Eisler convened a hearing on December 10, 1981. At

the commencement of that hearing, the parties waived

the requirement of a tripartite board and agreed

that Mr. Eisler would act as the sole arbitrator.

On February 24, 1982 Arbitrator Eisler issued his

decision sustaining Thornton's grievance and awarded

reinstatement with full seniority and benefits

except backpay. After defendant refused to

reinstate Thornton, plaintiff filed this action to

enforce the arbitrator's award. In Harvill v.

Roadway Express, Inc., 640 F.2d 167, 169 (8th Cir.

1981), the Eighth Circuit Court of Appeals stated

that the “duty of a court is to enforce an

arbitration award unless there are significant

an.

C6

reasons to the contrary." The Circuit Court also

emphasized that "a court has no business weighing

the merits of a grievance." Id. Consequently, the

Court must subject the arbitrator's award to

pre-enforcement review, but the scope of that review

f

v

is severly limited.

The Supreme Court defined the standards for

reviewing arbitration awards in a series of cases

commonly known as the "Steelworkers Trilogy." See

United Steelworkers of America v. American

Manufacturing Company, 363 U.S. 564 (1960; United

Steelworkers of America v. Warrior and Gulf

Navigation Company, 363 U.S.574 (1960); and United

Steelworkers of America v. Enterprise Wheel & Car

Corp., 363 U.S. 593 (1960). As succinctly

summarized by plaintiff in its suggestions

supporting its motion for summary judgment, those

cases restrict judicial review of an arbitration

award to a consideration of three issues: (1)

whether the parties have agreed to submit the

C7

dispute to arbitration; (2) whether the arbitrator

acted within the scope of the authority granted to

him; and (3) whether the award "draws its essence"

from the agreement. Accordingly, the Court has

carefully reviewed the arbitrator's award in light

of these three issues.

The Court initially finds that the parties

clearly agreed to submit their dispute to

arbitration. Article V, Section 1 of the collective »*

bargaining agreement pre ided that “any differences

or disputes [which] arise under any provisions of

this Agreement between an employee... anda

representative of the Corporation . . . shall be

settled in the following manner... ." (emphasis

added). Step 4 of the Grievance Procedure specified

arbitration as the final method for dispute

resolution. Since the grievance in this case

concerned the propriety of defendant's action in

discharging Thornton, the parties’ dispute arose

under the collective bargaining agreement and,

C8

therefore, was subject to arbitration.

The Court also finds that the arbitrator acted

within the scope of his authority in interpreting

various terms within the collective bargaining

agreement. Plaintiff submitted the following issue

for arbitration: "Was the discharge of [Grievant]

for just cause? If not, what it the appropriate

remedy?" Defendant worded the issue as follows:

“Whether or not the discharge of [Grievant] was

proper under the Agreement between Local Union 53 of

the 1.B.E.W. and Sho-Me Power Corporation." the

arbitrator, however, found that "[b]Joth questions ask

the same thing and both require the same answer."

Decision and Award at p.2. The arbitrator based

this decision upon his interpretation of Article l,

Section 2, which defines management rights, and

Article VI, Sections 1 and 5, which define employee

seniority rights and further provide that those

rights may be lost as a result of "Discharge for

cause." The arbitrator found that management's

C9

authority to discharge an employee was limited by

the specific conditions governing the loss of

employee seniority rights and that, as a result,

management could not discharge an employee except

“for cause." The arbitrator then interpreted

"cause" aS synonymous with "just or reasonable

cause" and found that those terms imposed an

obligation on management to refrain from

unreasonable, arbitrary, or capricious actions.

Since an inherent tension existed between

management's right to discharge an employee and the

conditions governing the loss of employee seniority,

_the arbitrator in this case possessed the authority

to interpret the collective bargaining agreement and

to resolve that tension. Vulcan-Hart Corp. v. Stove

Workers Local 110, 671 F.2d 1182 (8th Cir. 1982).

The Court cannot interfere with such a decision

"unless it can be said with positive assurance that

the contract is not susceptible of the arbitrator's

C10

interpretation." Kewanee Machinery Division v.

Local Union No. 21, International Brotherhood of

Teamsters, 593 F.2d 314, 317-18 (8th Cir. 1979).

Such assurance does not exist in this case.

Nevertheless, after careful consideration the Court

finds that the arbitrator's award fails to "draw its

essence" from the collective bargaining agreement.

As noted above, the arbitrator found that

Article V1, sections 1 and 5 prohibited discharge

without reasonable or just cause and that those

terms, in turn, prohibited unreasonable, arbitrary,

or capricious imposition of discipline by

management. The arbitrator also found, however,

that "Management had cause, and cause again, for the

summary dismissal of Grievant." Decision and Award

at 12. The arbitrator did not find management's

actions to be unreasonable, arbitrary, or

capricious. Instead, the arbitrator explained the

basis of his award as follows:

Having concluded that Grievant's conduct

of June 8, 9 and 10 amounted to serious

'

ye

u

aa

Sort!

J " ond

_ .",

Pe ¢ . igh

ve. a nl oh 2 wilh ne ee er

Cll

dishonesty which, if standing alone, would

justify his summary discharge, but that the

motivating factor, at least in substantial

part, which impelled Management to the decision

to discharge him was his union activities, the

Arbitrator finds that Grievant's discharge was

not proper under the Parties' Agreement.

Decision and Award at 15. Although the arbitrator

had interpreted the collective bargaining agreement

to prohibit only unreasonable, arbitrary, or

capricious Management action, the arbitrator

ultimately based his award upon his perception of

the motivation underlying management action which

was acceptable in ali other respects. The

arbitrator previously had not interpreted the

collective bargaining agreement to impose such a

restriction, and frankly admitted that his award was

based solely upon his own interpretation of

desirable social policy. Thus, the arbitrator

reasoned that "[t]o allow the discharge to stand

would result, in the Arbitor's judgment, in too

chilling an effect upon the free exercise of the

fundamental right of Grievant and each of his fellow

employees to engage in concerted activities and to

Cl2

bargain collectively with the Employer." Decision

and Award at 15. As the Supreme Court stated in

Steelworkers of America v. Enterprise Wheel & Car

Corp., 363 U.S. 593, 597 (1960), "an arbitrator is

confined to interpretation and application of the

collective bargaining agreement: he does not sit to

dispense his own brand of industrial justice. ...

When an arbitrator's words manifest an infidelity to

this obligation, courts have no choice but to refuse

enforcement of the award." (emphasis added).

According, it is hereby

ORDERED that plaintiff's motion for summary

judgment, a preliminary injunction, and a show cause

hearing are denied; and it is further

ORDERED that defendant's motion for summary

judgment is granted.

v

RUSSELL G. CLARK,

CHIEF JUDGE

UNITED STATES DISTRICT COURT

Dated: July 30, 1982

01

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-2007

International Brotherhood of

Electrical Workers, Local

Union No. 53, AFL-CIO,

Appellant,

Vv.

Sho-Me Power Corporation,

Appellee.

** + + +

* Appeal from the

* United States

* District Court for

* the Western District

* of Missouri

Submitted: April 15, 1983

Filed: September 2, 1983

34.

D2

Before BRIGHT and FAGG, Circuit Judges; and REAGAN,

Senior District Judge.*

BRIGHT, Circuit Judge.

The International Brotherhood of Electrical

Ww. sers, Local 53 (Union) appeals from the district

court's judgment which refused to enforce an

arbitrator's award ordering the She-Me Power

Corporation (Utility) to reinstate without backpay a

Union member, Stephen Thornton, to his former job

with the Utility. The district court ruled that the

arbitrator's award failed to draw its essence from

the collective bargaining agreement between the

Utility and the Union, and, therefore, granted the

Utility's motion for summary judgment. We reverse

and remand.

I. Background

Stephen Thornton worked for the Utility as an

JOHN K. REAGAN, United States Senior

District Judge for the Eastern District of

Missouri, sitting by designation.

D3

equipment operator-truck driver. During the weekend

of June 5, 1981, Thornton's foreman advised Thornton

that for the following week he had been assigned to

work out of town with a crew at the Utility's

substation in Gainesville, Missouri. The foreman

told Thornton that the Utility would house the crew

at the Theodoshia Marina and Resort (Resort) at

Theodoshia, Missouri, but that Thornton would be

responsible for his family's accommodations.

On June 8, Thornton and the other members of

the Utility's work crew checked in at the Resort.

The Resort's owner informed Thornton that he would

be charged extra if his family wished to stay at the

Resort. Thornton's family arrived at the Resort of

June 9 and stayed through June 11. On several

occasions during the week Thornton attempted to

persuade the Resort's owner to waive the additional

charges for Thornton's family or to include the

additional charges in the Utility's bill. After

04

several requests, the Resort's owner agreed to

reduce the additional charges for Thornton's family.

Six weeks later, on July 21, the Utility

discharged Thornton. The Utility's general manager

explained the Utility's reasons for firing Thornton

in a letter given to Thornton on the same day:

It has come to my attention that while on

Sho-Me business, you and your family

stayed at the Cook's Marina at Theodoshia,

Missouri. You were advised by your

Supervisor, Lesley Trantham, that no

special compensation from Sho-Me in the

manner of lodging expense would be allowed

for your family. After being denied

compensation for your family and during

that stay you attempted to coerce the

owners into increasing the nightly lodging

rate paid by Sho-Me to cover the added

cost of your family.

The owners refused your repeated efforts

and have advised me that you are no longer

welcome at their facilities either as a

private guest of the motel or when you are

on Sho-Me's business at the company's

expense.

Mr. Charles Brown, the Ozark County

Prosecutor has advised me that your

alleged actions are considered “attempted

pre oe by deceit" which according to the

criminal statutes of Missouri is a class

"C" misdemeanor punishable by a maximum

fine of $300 and 15 days in jail.

D5

Based on your actions, you are hereby

advised that you are immediately

terminated. Please contact the Director

of Personnel to arrange the final

settlement of the Sho-Me employment

Benefit program.

During the six week interval between Thornton's

stay at the resort and his termination, the Utility

did not question Thornton or any of his co-workers

about the incident. At the time, the Union and the

Utility were engaged in difficult contract

negotiations. At a Union meeting on July 2, the

bargaining unit voted to reject the Utility's

proposed contract. Although the Union requested its

International Union to sanction a strike, the

negotiations continued. Finally, on July 20, the

bargaining unit voted at another meeting to ratify

the Utility's second proposed contract.

At both of these meetings, Thornton attacked

the Utility's proposals. In fact, the arbitrator

found that “[o]ther employees spoke against

ratification of the Agreement at both meetings but

- not as strongly as did [Thornton]." He spoke of

D6

engaging in sit-ins and "blue flu" work stoppages.

The day after the Union voted to ratify the

Utility's second proposal, July 21, the Utility

discharged Thornton.

Three days later, the Utility's general

manager met with the Union's business manager

concerning Thornton's discharge. The business

manager asked the general manager why the Utility

had waited so long before discharging Thornton. The

general manager stated that the Utility waited

because it had wanted to give the matter serious

consideration, and, also, because of the contract

negotiations. The general manager specifically

referred to Thornton's remarks at the Union's

meeting concerning "blue flu" work stoppages.

Subsequently, the Union and Thornton filed a

grievance. Thereafter, the parties submitted the

matter to arbitration. After conducting a hearing,

the arbitrator stated:

In this case we have the imposition of

discharge six weeks after the occurrence, but

Pa

D7

at the first opportunity after Management had

the Collective Bargaining Agreement ratified by

the Union over Grievant's vocal opposition. We

have the General Manager's statements to the

Union representatives made within days of the

discharge concerning Grievant's verbalization

at the Union meeting. These factors,

juxtaposed with each other, lead the Arbitrator

to the conclusion and the holding that

Grievants' [sic] discharge was motivated in

substantial part and impelled by his union

activities. Indeed, that conclusion, in the

circumstances of this case, seems inescapable.

Having concluded that Grievant's conduct

of June 8, 9 and 10 amounted to serious

dishonesty which, if standing alone would

justify his summary discharge, but that the

motivating factor, at least in substantial

part, which impelled management to the decision

to discharge him was his union activities, the

Arbitrator finds that Grievant's discharge was

not proper under the Parties’ Agreement.

Grievant is deserving of serious

discipline in this case. But the discharge

itself cannot stand because of the General

Manager's improper - indeed, unlawful -

motivation involving Grievant's activities.

* * * Grievant will therefore be

reinstated without any provision for back pay.

Because the Utility refused to comply with the

arbitrator's award, the Union sought enforcement in

. a

the district court.

At the outset, the district court determined

D8

that the parties had agreed to submit their dispute

to arbitration and that the arbitrator had acted

within the scope of his authority in interpreting

various terms under the collective bargaining

agreement. The court, however, went on to conclude

that the arbitrator's award failed to draw its

essence from the collective bargaining agreement.

The district court reasoned:

Although the arbitrator had interpreted

the collective bargaining agreement to

prohibit only unreasonable, arbitrary, or

capricious Management action, the

arbitrator ultimately based his award upon

his perception of the motivation

underlying management action which was

acceptable in all other respects. The

arbitrator previously had not interpreted

the collective bargaining agreement to

impose such a restriction, and frankly

admitted that his award was based solely

upon his own interpretation of desirable

social policy. Thus, the arbitrator

reasoned that "[t]o allow the discharge to

stand would result, in the Arbitor's

judgment, in too chilling an effect upon

the free exercise of the fundamental right

of Grievant and each of his fellow

employees to engage in concerted

activities and to bargain collectively

with the Employer."

Consequently, the court granted the Utility's motion

D9

for summary judgment and denied enforcement of the

arbitrator's award. This appeal followed.

II. Discussion

The Supreme Court enunciated the general

principles governing judicial review of three

_ seminal cases which have come to be known as the

"Steelworkers Trilogy." United Steelworkers of

America v. American Manufacturing Co., 363 U.S. 564

(1960); United Steelworkers of America v. Warrior &

Gulf Navigation Co. 363 U.S. 574 (1960); and United

Steelworkers of America v. Enterprise Wheel & Car

Corp. 363 U.S. 593 (1960). A reviewing court must

uphold an arbitrator's award so long as it "draws

its essence" from the collective bargaining

agreement. United Sti.2lworkcrs of America v.

Enterprise Wheel & Car Corp., supra 363 U.S. at

596-97; Lackawanna Leather Co. v. United Food &

Commercial Workers, International Union, AFL-CIO &

CLC, 706 F.2d 228 (8th Cir. 1983) (en banc). If the

award does not draw its essence from the contract,

D10

the reviewing court must vacate or modify the

award. ? Reviewing courts, however, will broadly

construe the collective bargaining agreement's grant

of power to the arbitrator. Resilient Floor and

Decorative Covering Workers, Local Union 1179 v.

Welco Manufacturing Co., 542 F.2d 1029, 1032 (8th

Cir. 1976). Moreover, it is not within the court's

scope of review to judge the merits of a grievance.

Kewanee Machinery Division v. Local Union No. 21,

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, 593 F.2d 314

1 The Supreme Court has stated:

[A]n arbitrator is confined to

interpretation and application of the

collective bargaining agreement; he does

not sit to dispense his own brand of

industrial justice. He may of course look i

for guidance from many sources, yet his

award is legitimate only so long as it

draws its essence from the collective

bargaining agreement. When the

arbitrator's words manifest an infidelity

to this obligation, courts have no choice

but to refuse enforcement of the award.

United Steelworkers of America v

Le eerse Wheel & Car Corp., supra, 363

* @ a 7

testcntetanl ee

011

317 (8th Cir. 1979).

The Union contends the district court erred in

ruling that the arbitrator's award failed to draw

its essence from the collective bargaining

agreement.© We agree.

Our starting point is the collective bargaining

agreement between the Utility and the Union. The

agreement provides, in pertinent part:

Article I, Section 2.

The Union recognizes that Management of

e We note that the Utility contends the

district court erred in sustaining the arbitrator's

interpretation of the term, "discharge for cause,”

contained in the collective bargaining agreement.

We reject this contention. An arbitrator may

interpret, construe or apply the provisions of a

collective bargaining agreement if the contract does

not limit his authority to do so. Vulcan-Hart Corp.

v. Stove, Furnace, & Allied Appliance Workers

International Union, Local 110, 671 F.2d 1182 (8th

Cir. 1982). Here, the agreement does not limit the

arbitrator's authority to interpret, construe or

apply the agreement. As we discuss, infra, the

arbitrator acted within his authority in

interpreting the collective bargaining agreement and

his award drew its essence therefrom. Accordingly,

the award should be enforced.

012

the Corporation, the direction of its

working forces, the determination of the

number of men it will employ or retain,

the right to hire, discharge, promote,

demote, transfer, and release employees is

vested in and reserved by the Corporation,

subject, however, to the provisions of

this Agreement.

x*xe*e

Article V, Step 4.C

All decisions rendered by the Arbitration

Board shall be final and binding upon both

parties.* * * * In no event shall this

board have the authority to amend or

change any of the provisions of this

agreement.

x~*ere

Article VI, Seniority, Section 1.

Seniority is a right accruing to employees

as a result of length of service with the

Corporation which entitles them to

preference, qualifications and ability

being equal, to retention in service,* * *

providing the employee is able to perform

the required duties.

x*ere

Article VI, Section 5.

Seniority shall be lost by the occurrence

of any of the following:

ee

b. Discharge for cause * * *,

013

The collective bargaining agreement empowers

the arbitrator to determine whether the Utility's

discharge of Thornton was "for cause." In his

award, the arbitrator concluded, "[Thornton's]

discharge was not proper under the Contract between

the [Utility] and the Union." We conclude the

arbitrator's award draws its essence from the

collective bargaining agreement.

The arbitrator's award is based on his

interpretation of the collective bargaining

agreement's "discharge for cause" provision. The

arbitrator considered this phrase, the parties'

arguments and the witnesses’ testimony, and concluded

that the Utility's discharge of Thornton did not meet

the collective bargaining agreement's standards for

cause. The arbitrator, by necessity, had to give

meaning to the collective bargaining agreement's

“discharge for cause’ provision. The meaning of

this term is not apparent on its face. Interpreting

this standard merely as requiring that the Utility

Su Be’ 7), or en ner se

014

have some "cause" for discharging an employee,

renders it superfluous; unless the Utility randomly

discharges its employees, it will always have some

"cause" as a reason for its discharge of an

employee. The arbitrator considered the "discharge

for cause" provision in the context of the

collective bargaining agreement as a restriction on

the generally unfettered right of an employer to

discharge its employees.

The arbitrator interpreted "cause" as

synonymous with "just or reasonable cause" ang

determined that these terms imposed on management an

obligation to refrain from unreasonable, arbitrary,

or capricious actions. The district court did not

dispute the arbitrator's interpretation and neither

will we. As the district court properly noted,

courts cannot interfere with an arbitrator's

interpretation "unless it can be said with positive

assurance that the contract is not susceptible of

the arbitrator's interpretation." Quoting, Kewanee . =

D15

Machinery Division v. Local Union No. 21,

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, supra 593 F.2d

at 318. The Utility has not pointed to, nor do we

find, any evidence which gives us positive assurance

thdt the agreement was not susceptible to the

arbitrator's finding that the collective bargaining

agreement required "just cause" before the Utility

could discharge an employee.

The arbitrator found Thornton guilty of

dishonesty serious enough to merit discharge. The

arbitrator concluded, however, that the Utility

discharged Thornton because of his protected union

activities. Consequently, the arbitrator found |

Thornton's discharge to have been improper under the

collective bargaining agreement and directed the

Utility to reinstate him without backpay>. It is

unimportant whether we agree with the arbitrator's

3 The Union has not challenged the

+ arbitrator's denial of backpay.

d

D16

interpretation of the collective bargaining

agreement. "It is the arbitrator's construction

which was bargained 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 contract is

different from his." United States Steelworkers of

America v. Enterprise Wheel & Car Corp., supra 363

U.S. at 599. See also, Lackawanna Leather Co. v.

United Food & Commercial Workers International

Union, AFL-CIO & CLC, supra, 706 F.2d at 213-32; cf.

_ United Electrical, Radio and Machine Workers of

America , Local 119 v. Litton Microwave Cooking

Products, Litton Systems, Inc., 704 F.2d 393 (8th

Cir. 1983), rehearing en banc granted. The

arbitrator's award in this case draws its essence

from the collective bargaining agreement and,

accordingly, should be enforced.

: III. Conclusion.

: For the reasons stated in this opinion,

- ee Ae bn Ae ;

SIL TE OT ee a i age eR hae

D17

the judgment of the district court is reversed. We

iets ARE yah eae

remand with directions that the district court grant

summary judgment in favor of the Union and order

enforcement of the arbitration award.

A true copy.

ATTEST: 3

CLERK, U.S. COURT OF APPEALS

EIGHTH CIRCUIT

STATEMENT OF CORPORATE AFFILIATIONS

Sho-Me Power Corporation js a Missouri general

business corporation. Sho-Me Power Corporation has

no parent companies or subsidiary companies. Sho-Me

Corporation is affiliated with nine distribution

cooperatives who are members of Sho-Me Power

Corporation. These nine corporations are: Crawford

Electric Cooperative, Inc., Gascosage Electric

Cooperative, Howell-Oregon Electric Cooperative,

Intercounty Electric Cooperative Association,

Laclede Electric Cooperative, Webster Electric

Cooperative, and White River Valley Electric

Cooperative Association, all Missouri corporations.

Sho-Me Power Corporation is also affiliated

with Associated Electric Cooperative, Inc. and M&A

Electric Power Cooperative, both Missouri

corporations.

35.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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