Petition — Sho-Me Power Corp. v. International Brotherhood of Electrical Workers Local Union 53
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Office - supreme Court, U.S.
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
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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.
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