Petition for Writ of Certiorari — Riceland Foods, Inc. v. United Brotherhood of Carpenters & Joiners, Local 2381

/ Office - Supreme Court, US.

84-1497 FILED

0. MAR 11 1985

AS.

; CLERK

In The

Supreme Court of the United States

October Term, 1984

ft

Ss

RICELAND FOODS, INCORPORATED,

Petitioner,

v.

UNITED BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA, AFL-CIO-CLC, LOCAL 2381,

ANT UBC SOUTHERN COUNCIL OF

INDUSTRIAL WORKERS,

Respondents.

fy

VV

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

~f S.

—

Bri 8. CiarKx*

Wa ter A. Pautsoy, IT

2000 First National Building

Little Rock, Arkansas 72201

(501) 376-2011

Attorneys for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

I.

Whether the District Court erred in its failure to find

that the arbitrator exceeded his authority by basing his

decision and award upon his view of the requirements of

the occupational safety and health act, rather than an in-

terpretation of the collective bargaining agreement.

IL.

Whether an arbitrator may enforce a provision of a

contract in a manner which arguably requires e violation

of federal law.

III.

Whether the District Court erred in its failure to find

that the arbitrator’s decision and award exceeded the

limitations placed upon his authority by the collective bar-

gaining agreement.

il

TABLE OF CONTENTS

I. QUESTIONS PRESENTED

Il. TABLE OF CONTENTS

lil. TABLE OF AUTHORITIES

IV. PRAYER

V. OPINIONS BELOW

VI. JURISDICTION

VII. STATUTORY PROVISIONS INVOLVED .........

VUI. STATEMENT OF THE CASE

IX. REASONS FOR GRANTING THE WRIT ....

The Decision Below Has Resolved n Important

Question Of Federal Law In A Manner Contrary

To The Previous Rulings Of This Court. 0... o

The Decision Below Conflicts With The Decisions

Of Other Courts Of Appeals On The Enforceabil-

ity Of Arbitral Awards That Violate Law Or

Public Policy. ...

The Decision Below Conflicts With Other Deci-

sions On The Same Issue Within The Eighth Cir-

cuit.

X. CONCLUSION

APPENDIX A—Copy of Opinion of the District

Court, Eastern District of Arkan-

sas App.

APPENDIX B—Copy of Opinion of the Court of

Appeals for the Eighth Circuit App.

APPENDIX C—Copy of Judgment of the Court of

Appeals for the Eighth Circuit App.

APPENDIX D—List of Wholly and Partially

Owned Subsidiaries of Riceland

Foods, Ine. App.

ili

10

10

17

20

atti a tisiscsieniinnsornines ureatinion wot 0 in

lil

TABLE OF AUTHORITIES

CAsEs:

Devine v. Nutt, 718 F.2d 1048, 1055 (Fed. Cir.

1983)

Pages

Devine v. White, 697 F.2d 421

General Warehousemen & Helpers Local 767 v.

Standard Brands, inc., 579 F.2d 1282, 1291 (5th

Cir. 1978)

Grand Rapids Die Casting Corp. v. Local Union

No. 159, UAW, 684 F.2d 413 (6th Cir. 1982) .......

Gulf States Telephone Co. v. Local 1692, Interna-

tional Brotherhood of Electrical Workers, 416

F.2d 198, 201 (5th Cir. 1969)

Hurd v. Hodge, 334 U.S. 24 (1948) .......

Lackawanna Leather Co. v. District Union No.

271, United Food & Commercial Workers, 706

F.2d 228 (8th Cir. 1983)

Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d

1123, 1128-29, n.27 (3d Cir. 1969)

McDonald v. City of West Branch, — U.S. —, 104

S.Ct. 1799 (1984)

Miller Brewing Co. v. Brewery Workers Local

Union No. 9, AFL-CIO, 739 F.2d 1159, 1162

(7th Cir. 1984)

18

Monongahela Power Co. v. Local No. 2332, Int’l

Brotherhood of Electrical Workers, 566 F.2d

1196, 1198-99 (4th Cir. 1976)

Muschany v. United States, 324 U.S. 49, 66

Sears, Roebuck & Co. v. Teamsters Local Umion

_ No. 243, 683 F.2d 154, 155 (6th Cir. 1982) —......

iv

TABLE OF AUTHORITIES—Continucd

St. Lows Theatrical Co. v. St. Louis Theatrical

Brotherhood Local 6, 715 F.2d 405 (8th Cir. 1983) ...... 20

Truck Drivers Helpers Union, Local 784 v. Ulry-

Tolbert Co., 330 F.2d 562, 564-65 (8th Cir. 1964) .... 20

Umited Electrical, Radio and Machine Workers of

America, Local 1139 v. Litton Microwave Cook-

ing Products, Litton Systems, Inc., 728 F.2d

970 (8th Cir. 1984) . 16, 17, 20

United Food and Commercial Workers Union v.

Alpha Beta Company, 936 F.2d 1371, 1376 (9th

Cir. 1984) 18

United States Postal Service v. American Postal

Workers Union, 736 F.2d 822, 824 (1st Cir. 1984) ..... 18

United Steelworkers of America v. American Man-

ufacturing Company, 363 U.S. 564 (1960) 10

United Steelworkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 593 (1960) _.... 11, 13, 14

United Steelworkers of America v. Warrior & Gulf

Navigation Company, 363 U.S. 574 (1960) 11

W. R. Grace & Company v. Local 759, Int'l Union

of Rubber Workers, 461 U.S. 757, 103 S.Ct. 2177,

76 L.Ed.2d 298 (1983) a ®

STATUTES:

28 U.S.C. § 1254(1) 2,3

28 U.S.C. $§ 2201, 2202 3,7

29 U.S.C. § 185 3, 7,10

29 U.S.C. § 651 et seq. 9

eis tA EDD

Vv

TABLE OF AUTHORITIES—Continued

Pages

MISCELLANEOUS:

Section 5(a) (2) of the Occupational Safety and

Health Act 13

29 CFR 1910.134 4,13

BI ciccsinineiaes

fy.

7 ae

In The

Supreme Court of the United States °

October Term, 1984

fy.

Vv

RICELAND FOODS, INCORPORATED,

Petitioner,

Vv.

UNITED BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA, AFL-CIO-CLC, LOCAL 2381,

AND UBC SOUTHERN COUNCIL OF

INDUSTRIAL WORKERS,

Respondents.

4

fa’

Vw

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

4).

—

The Petitioner Riceland Foods, Inc.' respectfully

prays that a Writ of Certiorari issue to review the judg-

ment of the United States Court of Appeals for the

l Wholly and partially owned subsidiary cooperatives of

Riceland Foods, Inc. are listed in Appendix D.

1

Kighth Cireuit entered without opinion in this proceed-

ing on December 10, 1985.

fy.

Vv

OPINIONS BELOW

The opinion of a panel of the United States Court of

Appea : for the Eighth Circuit, which was vacated by

operation of law upon grant of the petition for rehearing

en banc, appears in Appendix B hereto, and is reported

at 737 F.2d 758 (8th Cir. 1984).

The opinion of the United States District Court for

the Eastern District of Arkansas appears in Appendix A,

and is not reported in any official reporter. The Court

of Appeals en banc voted four-to-four, resulting in affirm-

ance of the district court’s opinion, and no opinion was

announced by the full Court. The Court’s Order is at-

tached as Appendix C.

—_f>

“

JURISDICTION

The judgment of the Court of Appeals for the Eighth

Cireuit, in the form of an Order en banc in which the

judgment of the District Court was affirmed by an equally

divided Court, was issued on December 10, “1984. This

petition was filed within ninety days of that date. The

Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).

ft.

“

STATUTORY PROVISIONS INVOLVED

United States Code, Title 28 :?

United States Code, Title 29:

§ 185. Suits by and against labor organizations

Venue, amount, and citizenship

(a) Suits for violation of contracts between an em-

ployer and a labor organization representing employees

in an industry affecting commerce as defined in this chap-

ter, or between any such labor oganizations, may be

brought in any district court of the United States having

jurisdiction of the parties, without respect to the amount

in controversy or without regard to the citizenship of the

parties.

§ 654. Duties of employers and employees

(a) Each employer—

(1) shall furnish to each of his employees employ-

ment and a place of employment which are free from

recognized hazards that are cansing or likely to cause

death or serious physical harm to his employees;

(2) shall comply with occupational safety and

health standards promulgated under this chapter.

(b) Each employee shall comply with occupational

safety and health standards and all rules, regulations, and

orders issued pursuant to this chapter which are appli-

eable to his own actions and conduct.

2 28 U.S.C. §§ 1254(1), 2201 and 2202 are jurisdictional in

nature, and accordingly were not set forth separately herein.

4

Code of Federal Regulations, Title 29:

§ 1910.134 Respiratory protection.

(a) Permissible practice. (1) In the control of those

occupational diseases caused by breathing air contam-

inated with harmful dusts, fogs, fumes, mists, gases,

smokes, sprays, or vapors, the primary objective shall be

to prevent atmospheric contamination. This shall be ac-

complished as far as feasible by accepted engineering con-

trol measures (for example, enclosure or confinement of

the operation, general and local ventilation, and substitu-

tion of less toxic materials). When effective engineering

controls are not feasible, or while they are being insti-

tuted, appropriate respirators shall be used pursuant to

the following requirements.

(2) Respirators shall be provided by the employer

when such equipment is necessary to protect the health

of the employee. The employer shall provide the respira-

tors which are applicable and suitable for the purpose in-

tended. The employer shall be responsible for the estab-

lishment and maintenance of a respiratory protective pro-

gram which shall include the requirements outlined in

paragraph (b) of this section.

(3) The employee shall use the provided respiratory

protection in accordance with instructions and training

received.

\ (b) Requirements for a minimal acceptable program.

(1) Written standard operating procedures governing the

selection and use of respirators shall be established.

(2) Respirators shall be selected on the basis of haz-

ards to which the worker is exposed.

(3) The user shall be instructed and trained in the

proper use of respirators and their limitations.

5

(ec) Selection of respirators. Proper selection of res-

pirators shall be made according to the guidance of Amer-

ican National Standard Practices for Respiratory Protec-

tion Z88.2-1969.

(e) Use of respirators. (1) Standard procedures shall

be developed for respirator use. These should include all

information and guidance necessary for their proper se-

lection, use, and care. Possible emergency and routine

uses of respirators should be anticipated and planned for.

(2) The correct respirator shall be specified for each

job. The respirator type is usually specified in the work

procedures by a qualified individual supervising the res-

piratory protective program. The individual issuing them

shall be adequately instructed to insure that the correct

respirator is issued.

(3) Written procedures shall be prepared covering

safe use of respirators in dangerous atmospheres that

might be encountered in normal operations or in emer-

gencies. Personnel shall be familiar with these procedures

and the available respirators.

(5) For safe use of any respirator, it is essential that

the user be properly instructed in its selection, use, and

maintenance. Both supervisors and workers shall be so

instructed by competent persons. Training shall provide

the men an opportunity to handle the respirator, have it

fitted properly, test its face-piece-to-face seal, wear it in

normal air for a long familiarity period, and, finally, to

wear it in a test atmosphere.

6

(i) Every respirator wearer shall receive fitting in-

structions including demonstrations and practice in how

the respirator should be worn, how to adjust it, and how

to determine if it fits properly. Respirators shall not be

worn when conditions prevent a good face seal. Such cun-

ditions may be a growth of beard, sideburns, a skull cap

that projects under the facepiece, or temple pieces on

glasses. Also, the absence of one or both dentures can

seriously affect the fit of a facepiece. The worker’s dili-

gence in observing these factors shall be evaluated by

periodic check. To assure proper protection, the facepiece

fit shall be checked by the wearer each time he puts on the

respirator. This may be done by following the manufac-

turer’s facepiece fitting instructions.

(ii) Providing respiratory protection for individuals,

wearing corrective glasses is a serious problem. A proper

seal cannot be established if the temple bars of eye glasses

extend through the sealing edge of the full facepiece. As

a temporary measure, glasses with short temple bars or

without temple bars may be taped to the wearer’s head.

Wearing of contact lenses in contaminated atmospheres

with a respirator shall not be allowed. Systems have been

developed for mounting corrective lenses inside full face-

pieces. When a workman must wear corrective lenses as

part of the facepiece, the facepiece and lenses shall be

fitted by qualified individuals to provide good vision, com-

fort, and a gas-tight seal.

(iii) If corrective spectacles or goggles are required,

they shall be worn so as not to affect the fit of the face-

piece. Proper selection of equipment will minimize or

avoid this problem.

STATEMENT OF THE CASE

The jurisdiction of the district court was invoked un-

der Section 301 of the National Labor Relations Act, as

amended, 29 U.S.C. 4185, and, in that a declaratory judg-

ment was sought vacating an arbitrator’s award, 28 U.S.C.

§§2201 and 2202. The dispute arose when plaintiff below,

Riceland Foods, Inc. (Riceland), a soybean processor lo-

cated in Stuttgart, Arkansas, discharged four employees.

These employees, by refusing to shave their beards, had

refused to comply with the requirements of a respirator

program put into effect by Riceland on April 1, 1980, as a

result of an Occupational Safety and Health Act citation.

On August 23, 1979, an ammonia leak had occurred

in the department where two of the discharged employees

worked. Because of some apparent deficiencies in the

breathing apparatus that had been used during that occur-

rence, one of the employees (James Shelton, then presi-

dent of the Union which was defendant below) complained

to the Little Rock OSHA office. An investigation led to

a citation, but because Riceland had already begun imple-

mentation of a respirator program which it completed

shortly thereafter, the citation was reduced to a non-seri-

ous category. The program implemented was discussed

with the Respondent Unions in advance, and its provi-

sions were made known to all employees.

The program required, among other things, that em-

ployees who worked in certain designated areas where use

of a respirator was anticipated should be clean shaven on

that portion of the facial area where the face mask of the

respirator must seal against the face. The program con-

tained a progressive disciplinary procedure for employees

who refused to shave, and who chose not to accept thie

employer’s offer to transfer to another area. If he did

not accept the transfer, the employee faced a three-day

suspension, and then discharge, for refusal to shave.

On March 21, Shelton attempted to file a grievance

challenging the shaving requirement. The grievance was

refused because the program was not then in effect. Shel-

ton also requested a 30-day delay in implementation of

the program, in order to have a ‘‘neutral third party” de-

termine whether being clean shaven was necessary in all

cases to obtain an adequate face mask seal. The Company

denied this request.

On April 4, 1980, the four employees were suspended

for three days for refusing to shave. They were dis-

charged for their continued refusal on April 7. Their sub-

sequent grievance claimed that the company violated the

“just cause” provision of the collective bargaining agree-

ment regarding discharge, as well as the agreement’s sec-

tion concerning safety and health. The grievance sought

remedy in the form of reinstatement and ‘‘that the com-

pany allow all the employees with facial hair a chance to

properly fit the SCBA unit before the company deter-

mines that a beard or sideburns will not let it fit prop-

erly.”

After processing of the grievance without resolution,

an arbitrator was selected, and a hearing was held on

July 24, 1980. The Arbitrator, Mr. A. Q. Sartain,’ issued

his decision and award on September 11, 1980, in which

s Mr. Sartain is a retired college professor and an experi-

enced arbitrator. He is not a lawyer.

9

he sustained the grievance and required riceland to rein-

state the employees to their former jobs with back pay

and no loss of seniority rights. He expressly found that

the grievants violated the agreement by their failure to

‘‘obey now” and rely upon the grievance. Based upon

that finding, he penalized each grievant one month loss

of pay. In doing so he identified a distinct and separate

contract violation and imposed discipline according to his

own view of what was appropriate for the new offense.

- At the same time, he found that the company lacked “just

cause” for the discharges, because the rule being enforced

was not, in his opinion, reasonable.

Riceland filed the instant complaint pursuant to Sec-

tion 301 of the National Labor Relations Act, seeking a

declaratory judgment vacating the award. Riceland con-

tended that the arbitrator had exceeded his authority un-

der Article 4 of the collective bargaining agreement, or

that his decision did not draw its essence from that agree-

ment, and further argued that the decision was contrary

to the Occupational Safety and Health Act of 1970 (29

U.S.C. §651 et seq.), and against public policy. In support

of its opposition to the Union’s motion for summary judg-

ment, Riceland produced proof by way of the deposition

testimony of OSHA officer Dean Wesley McDaniel that

it was the policy of OSHA to cite an employer for allow-

ing employees to wear tight-fitted respirators with beards

or facial hair growth that extend under the facepiece (DX

p.29, 1 16, p.30, 1 12, p.39, 1 3, p.41, 1 12). While it is

true that the arbitrator did not have the benefit of this

particular testimony, the Issue was clearly before him,

and (or) it was clearly before the district court. That

court, after waiting almost two years to decide the case,

10

held that the company’s request to vacate the award should

be denied, and granted summary judgment in favor of the

Union.

On Appeal to a panel of the Eighth Cireuit Court of

Appeals, the district court was reversed. The panel rea-

soned that the arbitrator’s award had not drawn its es-

sence from the agreement, but rather had violated certain

express limitations therein. The Unions sought to be

heard en banc. Upon the granting of that motion the

panel decision was vacated as a matter of law, and the

resulting tie vote (4-4) by the full court resulted in affirm-

ance of the district court without opinion.

REASONS FOR GRANTING THE WRIT

I. The Decision Below Has Resolved An Important

Question Of Federal Law In A Manner Contrary To

The Previous Rulings Of This Court.

This Court has spoken most recently on the subject

of the enforcement of arbitral awards in (W. R. Grace

and Company vs. Local 759, Int’! Union of Rubber Work-

ers, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983)).

There the Court reaffirmed its longstanding rule concern-

ing the scope of review of federal courts in suits brought

under $301 (29 U.S.C. $185), as set forth in the ‘‘Steel-

workers Trilogy.” United Steelworkers of America v.

4 In so ruling, the panel noted that it needn’t address or

resolve the issues of whether the company rule was “reason-

able” or whether the decision was contrary to OSHA.

11

American Manufacturing Company, 363 U.S. 564 (1960) ;

United Steelworkers of America v. Warrior & Gulf Navi-

gation Company, 363 U.S. 574 (1960); and United Steel-

workers of America v. Enterprise Wheel & Car Corp.,

363 U.S. 593 (1960). The holdings of these cases can be

distilled as providing that federal courts must uphold an

arbitrator’s award as long as it “draws its essence” from

the collective bargaining agreement and is not repugnant

to the specific command of some law or against public

policy. Enterprise Wheel, supra at 596-7.

In the instant case, the arbitrator’s opinion clearly

meets the criteria necessary to require federal court inter-

vention. First, the collective bargaining agreement at

issue provides, at Section 4 or Article 4, that

‘‘The arbitrator shall have no power to alter, amend,

change, add to, or subtract from any of the terms of

this Agreement, but shall determine only whether or

not there has been a violation of this Agreement with-

in the allegations set forth in the grievance. The

decision of the arbitrator shall be based solely upon

the evidence and arguments presented to him by the

respective parties at such arbitration meeting.

Section 5. This Agreement constitutes a contract be-

tween the parties which shall be interpreted and ap-

plied by the parties and by the arbitrator in the same

manner as any other contract under the laws. The

function and purpose of the arbitrator is to determine

disputed facts upon which the application of the

Agreement depends. The arbitrator shall, therefore,

not have authority, nor shall he consider it his func-

tion, to include the decision of any issue not submit-

ted or to so interpret or apply the Agreement as to

change what can fairly be said to have been the in-

tent of the parties as determined by generally ac-

cepted rules of contract construction. The arbitrator

12

shall not give any decision which in practical or ac-

tual effect modifies, revises, detracts from or adds to

any of the terms or provisions of this Agreement.

Section 6. The arbitrator shall not render any deci-

sion or award or fail to render any decision or award,

merely because in his opinion such decision or award

is fair or equitable. Any arbitration with respect to

the exercise of a right to discharge or discipline under

the provisions of Article 7 shall be limited to the ques-

tion of whether or not there was just cause or whether

or not the working rules were violated, and shall not

include whether or not the type of discipline selected

was appropriate.” (Emphasis added).

The arbitrator, therefore, by express contractual agree-

ment, had no power to alter the discipline under the cir-

cumstances presented here. If a contract violation was

determined (and it was’), then the agreement provides

that the inquiry should end there. It does not allow an

arbitrator to find a violation of the contract by a griev-

ant and then declare that the violation did not constitute

just cause for discharge. Ail that the decisions of this

Court are designed to do is provide finality and contrac-

tual strength to the industrial arbitration system. They

do not authorize judicial abdication in the event of a con-

tract violation. It is not enough that the arbitrator

couches his decision in contract terms such as ‘‘just cause.”

He must avoid dispersing “his own brand of industrial

justice” by simply parrotting the relevant contract provi-

sions while expressly and openly violating the agreement.

5 in his Award at p. 10 (Appendix E), the arbitrator express-

ly rules: “[u]nder the circumstances | find that the Contract

required [the grievants] to obey now. . . . Hence because the

Grievants did violate the Contract the Union’s requested rem-

edy cannot be granted in toto.”

13

Enterprise Whce', supra. Here, therefore, the Court must

find that the arbitrator exceeded his authority. If not,

then the precedent set here is (iiat there is no way con-

tractually that an employer (or employee, for that matter)

can protect itself from arbitral excesses. If the instant

provision won’t suffice, then recourse to the federal courts

is not merely a final, deferential step, it is a meaningless

gesture.

The decision below not only violates express language

from the Steelworkers Trilogy, but it imposes upon Rice-

land an unacceptable dilemma: In order to comply with

the award, the Company must violate Section 5(a) (2) of

the Occupational Safety and Health Act. Regulations pur-

suant to that law require the company to maintain safety

rules requiring compliance with the Act and its standards,

including disciplinary measures progressively leading to

discharge. Specifically, 29 CFR 1910.134(e) (5) (i) pro-

vides that conditions such as the growth of a beard may

prevent a proper seal on a respirator.° The company de-

termined that, rather than risk a potential seal failure

under use conditions, it was better to impose a strict,

“clean-shaven” rule. The arbitrator found this rule to be

‘‘unreasonable.” Yet his charge under the agreement was

only to determine whether a rule or the contract had been

violated; having so found, he could not go further and

determine the punishment that he believed was proper un-

der the circumstances. Both the rule and the punishment

6 The arbitrator had before him the reported testimony of

an OSHA officer, the findings of the manufacturer of the equip-

ment, and an independent study, all tending to confirm the

safety risk in anything less than a “clean-shaven” rule. (Ap-

pendix E, p. 9) He chose to ignore all of that.

14

for violations thereof are retained to the managerial dis-

cretion of Riceland by Article 6, Section 1 of the collec-

tive bargaining agreement.

It has long been held that the presumption of arbi-

trability of Enterprise Wheel is limited, so that award en-

forcement will be denied if it “compels violation of law

or conduct contrary to accepted public policy... .” Gulf

States Telephone Co. v. Local 1692, International Brother-

hood of Electrical Workers, 416 F.2d 198, 201 (5th Cir.

1969). Moreover, as this Court reaffirmed most recently in

McDonald v. City of West Branch, — U.S. —, 104 S.Ct.

1799 (1984), an arbitrator’s expertise is the law of the

shop, not the law of the land. An arbitrator’s authority

derives solely from the collective bargaining agreement,

and his authority to construe and enforce federal statutes

is quite limited. If his decision ‘‘is based ‘solely upon the

arbitrator’s view of the requirements of enacted legisla-

tion’, rather than on an interpretation of the collective

bargaining agreement, the arbitrator has ‘exceeded the

scope of submission’ and the award will not be enforced.”

Id. at 309, citing Enterprise Wheel at 597. In the instant

ease the arbitrator, under the guise that he was determin-

ing the “reasonableness” of the employer’s rule, effec-

tively decided that OSHA required something different

than the employer thought it required. In so doing, the

arbitrator unavoidably strayed too far from the scope of

submission, and in effect substituted his judgment of the

requirements of federal law for that of the employer.

This he cannot do. If this Court allows this decision to

stand, then all that will be necessary to circumvent the

cautionary language in the Steelworker’s Trilogy concern-

od

15

ing the bounds of arbitral authority is for the arbitrator

to couch his decision in terms that appear to relate to

“just cause” or other legitimate contractual considera-

tions. If the Eighth Circuit’s en banc affirmance is to be

interpreted as broadly as its decision in United Electrical

Radio & Machine Workers v. Litton Microwave Cooking

Products, Litton Systems Inc., 728 F.2d 970 (8th Cir. 1984),

then no arbitration award can be set aside under the

Trilogy. Petitioner believes that this Court intended a

“hands off” policy within certain well-defined limits, and

not a policy of judicial abdication through blind deference

to the magic of the arbitrator’s wand.

This Court in W. R. Grace considered the limits of a

federal court’s power to overrule an arbitrator’s decision

when the arbitrator has relied solely on the collective bar-

gaining agreement, and has refused to consider other con-

tractual commitments made by the company which were

in conflict with that agreement. The Court held that, so

long as the arbitrator’s award is founded in contract ,\in-

terpretation, it cannot be disturbed. The Court also con-

sidered the dilemma of a company when its commitments

under the collective bargaining agreement conflict with

the consent decree of a federal district court. But there,

unlike here, the company had voluntarily entered into a

consent decree which was contrary to the bargaining agree-

ment. There, unlike here, the arbitrator restricted his

opinion to the agreement, defining his powers very nar-

rowly. There, unlike here, the contract breach was in-

dependent of any act or decision by the arbitrator.

In the instant case, the arbitrator, while claiming to

leave the respirator program open to further resolution,

determined that OSHA did not require a clean-shaven

rule. He must have done so, in order to declare Rice-

16

land’s rule to be “unreasonable.” His view was that the

Company had reached the conclusion that OSHA regu-

lations required the rule based upon too little evidence—

clearly a decision that the company’s view of the law was

wrong. Assuming that he did so because of lack of in-

formation, the district court had no such limitation. At

the court’s request, the petitioner produced evidence

through the deposition testimony of an OSHA officer that

OSHA’s current policy was to cite an employer for allow-

ing employees to wear tight-fitting respirators with beards

or facial hair growth that extend under the facepiece;

that while a test fit may be obtained with the respirator

in question, under use conditions a bearded employee’s

mask would leak; that fit-test methods are invalid in predi-

cating leakage under use conditions; and that pressuriza-

tion of the mask would cause it to lift on the facial hair,

resulting in leakage. Thus, the cour: had sufficient evi-

dence before it from which it could determine that the

arbitrator had incorrectly resolved an issue that was be-

yond the scope of his authority to determine in the first

place. Moreover, the court was in a position at the time

to determine that the arbitrator’s award required the com-

pany to accept and comply with an obviously incorrect

interpretation of federal law. By enforcing the award,

the district court abrogated its responsibility to uphold

federal law and public policy. See, e.g., Gulf States Tele-

phone Co. v. Local 1692, Int’l Brotherhood of Electrical

Workers, 416 F.2d 198, 201 (5th Cir. 1969); Ludwig Hon-

old Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128-29, n.27 (3d

Cir. 1969). In so doing, the court placed deference to the

“private law of the shop” above the federal law and regu-

lations protecting the health and safety of workers. That

has nr+ been the law in this country since Hurd v. Hodge,

17

334 U.S. 24 (1948) and it is not the law after W. R. Grace,

supra,

iI. The Decision Below Conflicts With The Deci-

sions Cf Other Courts Of Appeals On The Enforce-

ability Of Arbitral Awards That Violate Law Or Pub-

lic Policy.

Although a complete’, clear statement of the Eighth

Cireuit’s position on this issue was not forthcoming, the

failure to address the issue implies that it was resolved

unfavorably to the Petitioner. In its penultimate en bane

decision on a similar issue, the Court of Appeals read

W. R. Grace, supra, quite restrictively, as though it stands

only for the proposition of complete judicial deference to

arbitration. United Electrical, Radio and Machine Work-

ers of America, Local 1139 v. Litton Microwave Cooking

Products, Litton Systems, Inc., 728 F.2d 970 (8th Cir.

1984). The instant decision appears to allow that defer-

ential rule to apply even in the face of a violation of law

or public policy. The other circuits take a different view.

Although no cases have been found dealing expressly

with a conflict between OSHA and an arbitral award, the

eases are legion which refuse to enforce awards in the

face of violations of other law. Hurd v. Hodge, supra at

35; Muschany v. United States, 324 U.S. 49, 66 (1965).

The Fifth Cireuit has ruled that it could not direct

enforcement of an award if to do so might affirmatively

cause the employer to commit an unfair labor practice.

General Warehousemen & Helpers Loca' 767 v. Standard

Brands, Inc., 579 F.2d 1282, 1291 (5th Cir. 1978). In more

recent cases that may arguably be distinguishable as ap-

plying to federal sector rather than private sector arbi-

tration, the Federal and D. C. Circuits have expressly

18

followed the rule that an arbitrator is not free to issue—

nor a court to enforce—an award which conflicts with ‘‘ex-

ternal law” such as federal statutes or regulations. De-

vine v. Nutt, 718 F.2d 1048, 1055 (Fed. Cir. 1983); Devine

v. White, 697 F.2d 421 (D. C. Cir. 1983).

The First Cireuit in United States Postal Service v.

American Postal Workers Union, 736 F.2d 822, 824 (1st

Cir. 1984) upheld a district court’s refusal to enforce an

arbitrator’s award reinstating a postal employee who had

been terminated for embezzling postal funds. The Court

read W. R. Grace as continuing in full force the rule

against enforcing awards which violated public policy.

The Ninth Circuit, apparently in agreement with the First

that the law on this issue has not changed as a result of

W. R. Grace, ruled in United Food and Commercial Work-

ers Union v. Alpha Beta Company, 936 F.2d 1371, 1376

(9th Cir. 1984) that “a court cannot compel arbitration

if a contract clause on its face violates federal labor law

or is contrary to federal labor policy.” And the Seventh

Circuit, while finding no violation of law to have been

proved, spoke approvingly of the holdings in W. R. Grace

and General Warehousemen, supra, as setting forth the

rule that illegal awards may not be enforced by federal

courts. That Court also held that when an arbitrator

goes outside the collective bargaining agreement to his

“own ideas of right and wrong”, he has exceeded his au-

thority and a court should not enforce the award. Miller

Brewing Co. v. Brewery Workers Local Union No. 9,

AFL-CIO, 739 F.2d 1159, 1162 (7th Cir. 1984). By direct

analogy, if the arbitrator’s views of right and wrong are

founded upon his own untrained and erroneous construc-

tion of federal law, the award is no less unenforceable.

19

It is Petitioner’s belief that there are other circuits

in which this case would have been resolved differently

even if no violation of OSHA had resulted from the award.

The extreme deference to arbitration decisions displayed

by the Eighth Circuit is, in Petitioner’s view, a much more

restrictive view of a federal court’s power than is seen

in such cases as Monongahela Power Co. v. Local No. 2332,

International Brotherhood of Electrical Workers, 566 F.2d

1196, 1198-99 (4th Cir. 1976); or Grand Rapids Die Cast-

ing Corp. v. Loca! Union No. 159, UAW, 684 F.2d 413

(6th Cir. 1982) (District Court made a “heroic effort”

to ground the arbitrator’s award in the agreement, when

a fair reading showed otherwise. /d. at 415-16.); accord,

Sears, Roebuck & Co. v. Teamsters Local Union No. 243,

683 F.2d 154, 155 (6th Cir. 1982).

III. The Decision Below Conflicts With Other De-

cisions On The Same Issue Within The Eighth Circuit.

As Petitioner has previously stated, it is not abso-

lutely clear what the Eighth Cireuit’s view now is, in

light of the fact that the method of affirmance—a tie-

vote—resulted in the affirmance of an opinion by a dis-

trict court holding that “the Court cannot say that the

essence of the award is not drawn from the agreement”

(Appendix B), and further that “enforcement of the award

would not necessarily require plaintiff [petitioner] to vio-

late OSHA regulations and so it is not against public

policy.” (Jd.) By allowing those findings to stand, the

Sourt of Appeals has tacitly approved them.

The Eighth Circuit’s opinions on these issues are ob-

viously split, as was the en banc Court itself. The dis-

20

senters in United Electrical, Radio and Machine Workers,

supra, at 973, cited Truck Drivers Helpers Union,sLocal

784 v. Ulry-Tolbert Co., 330 F.2d 562, 564-65 (8th Cir.

1964) and St. Louis Theatrical Co. v. St. Louis Theatrical

Brotherhood Local 6, 715 F.2d 405 (8th Cir. 1983) as be-

ing contrary to the holding in United E/ectrical Workers.

As viewed by the dissenting panel, ‘‘[t]his case, in tandem

with Lackawanna Leather Co. v. District Union No. 271,

United Food & Commercial Workers, 706 F.2d 228 (8th

Cir. 1983) (en banc), effectively eliminates any judicial

review over the concededly broad powers of arbitrators.”

Id. at 974. Petitioner believes that criticism applies to

the instant decision with equal force. But, unlike United

Electrical Workers, in the instant case we have a clear

allegation that the award is unenforceable as against pub-

lic policy, but we have no explanation of whether the defer-

ence to an arbitrator’s law of the shop, as seen in United

Electrical and Lackawanna Leather, should apply to an

arbitrator’s interpretation of the law of the land. We

assert it should not.

CONCLUSION

The trial court ignored both clear evidence and its

judicial responsibility when it ruled that the arbitrator

had correctly interpreted the law. The panel decision,

737 F.2d 759, correctly ruied that the award should not

be enforced, and so did not reach the question regarding

the conflict with OSHA regulations. The en banc Court,

by its four-to-four vote, reinstated the erroneous decision

of the district court, without explanation. Petitioner

21

earnestly requests that, for all of the reasons set forth

above, a Writ of Certiorari should issue to review the

judgment of the Court of Appeals for the Eighth Circuit.

Respectfully submitted,

Buu S. CrarKx*

Watter A. Pavutson II

2000 First National Building

Little Rock, Arkansas 72201

(501) 376-2011

Attorneys for Petitioner

*Counsel of Record

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

No. PB-C-80-314

RICELAND FOODS, INC.

Plaintiff,

VS.

UNITED BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA, AFL-CIO-CLC, LOCAL 2381

AND UBC, SOUTHERN COUNSEL OF

INDUSTRIAL WORKERS

Defendants

This document entered on docket sheet in com-

pliance with Rule 58 and/or 79(a) FRCP on 4-22-83

by E. Fleaman.

ORDER

(Filed April 22, 1983)

Plaintiff filed this suit on September 29, 1980, seek-

ing to have portions of an arbitrator’s decision and award

which sustained the grievance and awarded the grievants

reinstatement and back pay vacated. Defendants answered

and filed & counterclaim asking tuat the arbitrator’s award

be enforced and that they be awarded a reasonable attor-

ney’s fee and costs. Defendants filed a nm tion for sum-

mary judgment on November 21, 1980; plaintiff responded

to the motion and a hearing was held before this Court

on March 19, 1981; the parties submitted post-hearing

briefs and the evidentiary deposition of Dean McDan-

App. 1

BEST AVAILABLE COPY §

App. 2

iel, an Occupational Safety and Health Administration

(OSHA) official, was filed on June 2, 1981.

The problem at issue first arose on March 7, 1980,

when plaintiff revised and posted a new respirator pro-

gram to comply with the requirements of OSHA and cer-

tain safety and health standards promulgated thereunder.

The program became effective on April 1, 1980. When

four of the employees refused to comply with the provi-

sions of the program requiring them to be clean shaven

on the facial area where the face mask of the respirator

seals against the face or be transferred to another de-

partment, progressive disciplinary action was taken re-

sulting in those employees’ termination on April 7, 1980.

The defendants, the unions of which those employees were

members, filed a grievance on April 7, 1980, alleging that

plaintiff had violated Articles 7 and 13 of the Collective

Bargaining Agreement by the suspension and termina-

tion of those employees. A hearing was held on July 24,

1980, before an arbitrator selected by the parties, aud

following the submission of briefs, the arbitrator issued

his decision and award on September 11, 1980.

The arbitrator found that the issues before him were

whether there was just cause for discharging the four em-

ployees and if not, what was the remedy. Since the mat-

ter before the arbitrator was a discharge case, he found

that the plaintiff had the burden of proof and the obliga-

tion of establishing that its program regarding the facial

hair of the employees was fair, reasonable, and contrac-

tual. He found that plaintiff did not establish the propri-

ety of its action by the preponderance of the evidence test

much less the beyond a reasonable doubt test frequently

App. 3

imposed in discharge cases. The arbitrator found that

the discharges were greatly influenced by plaintiff’s in-

terpretation of the OSHA regulation that a growth of a

beard may be a condition that would prevent a good seal

and the remarks of Jones of OSHA and Sullivan, a sup-

plier of the Survivair face mask. The arbitrator found

that the OSHA regulation did not say that a beard would

always, or even usually, prevent a good face seal and that

one employee had stated that he had a good seal when

testing the face masks for a sea] during a demonstration.

Regarding Jones and Sullivan, neither was established at

the hearing as an expert, only their purported oral state-

ments were presented, no relevant written documents were

submitted, and there was no opportunity for questioning

by either the arbitrator or the defendants. Further, the

arbitrator noted that the plaintiff had made no effort to

check on practices in its other divisions, on comparable

provisions in competitive companies, on what was done

b~ employers in other industries where ammonia is com-

parably used, or on scientific and engineering findings re-

lating to the good fit on which it quite properly insisted.

Plaintiff violated the contract when it failed to make such

a good faith search before the employees’ jobs were put

in jeopardy. To plaintiff’s argument that subsequent re-

search which it presented at the hearing established its

position, the arbitrator found that what was presented

was not conclusively in its favor. He questioned whether

the experience of fire departments transferred directly

to plaintiff’s demands and found the Los Alamos report

was not convincing, virtually standing alone. Moreover,

plaintiff apparently singled out facial hair for special at-

tention while failing to put comparable emphasis on other

App. 4

interfering factors such as eyeglasses, contact lenses, and

dentures that are equally important.

Finding that the plaintiff had not met its burden of

establishing just cause for the discharges, the arbitrator

next addressed the “self-help” charge against the employ-

ees for refusing to obey plaintiff’s policy by shaving and

then grieve plaintiff’s position. The arbitrator found that

the exceptions to the “obey now, grieve later rule” were

not present here and that the contract required the em-

ployees to obey the plaintiff’s policy and to later file a

grievance.

Since the employees did violate the contract by their

“self-help”, the arbitrator found that defendants’ request-

ed remedy for the employees could not be granted in toto.

He directed that the employees were to be restored to

their prior positions without loss of pay, seniority, or

fringe benefits except for a loss of pay for one month for

their failure to follow relevant contractual provisions.

Finally, the arbitrator noted that he was not required to

make suggestions as to where that decision left the parties

regarding a respirator program and the future use by the

employees of the Survivair. He clearly stated that his

decision was limited to the facts and issue presented by

the situation before him.

Plaintiff’s position before this Court is that the es-

sence of the arbitrator’s decision and award is net drawn

from the collective bargaining agreement since the deci-

sion violated Article 4 by changing the method of dis-

cipline given to the employees for their “self-he!p” and

violated Article 6 which gave plaintiff the sole discretion

to promulgate and enforce a respirator program that was

App. 5

not found to be unreasonable. Plaintiff further asserts

that the award is against public policy since it prevents

plaintiff from furnishing its employees with a safe and

healthful place to work and if enforced, will force plaintiff

to violate OSHA.

Defendants contend that the award does draw its

essence from the agreement. They argue that the plain-

tiff failed to establish the justness of the discharges based

on the disobedience of which was found to be invalid res-

pirator regulations and since plaintiff’s self-help theory

was only one component of a complete defense to the dis-

charges, the total defense failed. The finding that the dis-

cipline imposed for violating an unreasonable and non-

contractual rule was unjustified drew its essence from

the just cause provision of the contract. Finally, the ar-

bitrator did not suggest that plaintiff could not promul-

gate a reasonable, fair and contractual program, only that

employees could not be discharged for violating unrea-

sonable, unfair and noncontractual portions of the pro-

gram. Thus, defendants conclude that plaintiff is not

required to violate OSHA, merely to promulgate a pro-

gram encompassing the OSHA regulation in its entirety

rather than in an inconsistent and incomplete manner.

The judicial standard for reviewing arbitration deci-

sions is found in the Steelworkers Trilogy. The interpre-

tation of the collective bargaining agreement is for the

arbitrator. The Court cannot substitute its judgment on

the merits of both the law and facts of the claim for that

is the matter for the arbitrator to decide. The Court’s role

in reviewing the arbitration decision is to determine wheth-

er the award draws its essence from the collective bargain-

ing agreement. If the essence of the arbitrator’s award

App. 6

is drawn from the agreement, the Court must enforce the

award whether it agrees with the arbitrator’s interpreta-

tion of the agreement.

After carefully reviewing the award and the agree-

ment, the Court cannot say that the essence of the award

is not drawn from the agreement. The arbitrator adopted

the defendants’ framing of the issue before him as being

whether there was just cause for discharging the four

employees. He found that plaintiff had not met its bur-

den of demonstrating that there was just cause and so

the discharges could not be upheld. In determining that

there was not just cause, the arbitrator, taking into ac-

count the contract provisions regarding the rights of

plaintiff in promulgating work rules and safety regula-

tions, found that the plant rule regarding facial hair and

respirator use to be unsupported by the evidence present-

ed to him and unreasonable under the circumstances. Un-

der his interpretation of the contract, the employees could

not be discharged for just cause for violating what was an

invalid policy. Finding that there was not just cause for

the discharges, the arbitrator next addressed the remedy.

The arbitrator interpreted the limiting language of Ar-

ticle 4, Section 6 on the arbitrator’s lack of authority to

determine the appropriateness of the type of discipline

selected, not to be operative once he had found no just

cause existed for discharging the employees under that

same section. The Court cannot say that such an inter-

pretation is not drawn from the essence of the agreement.

His decision that the self-help charge against the employ-

ees did not constitute an independent violation of the con-

tract constituting just cause for discharge, however, did

not prevent him from concluding that their refusal to

App. 7

obey and grieve later would prevent defendants’ requested

relief in toto. Thus, his remedy for the employees was re-

instatement with full seniority and back pay except for

one month following their discharge.

Since the arbitrator has not clearly exceeded the

scope of his authority under the collective bargaining

agreement, the Court could refuse to enforce the award

only if the award required the commission of an illegal

act or violated public policy. The Court was concerned

at the hearing on the issue of whether enforcement of the

award would violate public policy or force plaintiff to

violate OSHA regulations. The Court finds and agrees

with defendants that the focus of the arbitrator’s inquiry

was on construction and application of the contractual

standard of just cause, not upon formulation of valid

work rules regarding respirator use. The arbitrator made

it clear at both the beginning and conclusion of the sub-

stantive discussion of the award that his award was only

on the issue of just cause presented to him under the facts

and circumstances. He was careful not to rule on a res-

pirator policy outside of the scope presented to him. The

language and analysis of the award do not prohibit the

plaintiff from ever instituting a respirator program that

would comply with OSHA regulations. He found from the

evidence presented to him that plaintiff had failed to

demonstrate that OSHA regulations required an absolute

prohibition against facial hair in all instances of respira-

tor use, as provided by plaintiff’s rule, and that the plain-

tiff had failed to do adequate investigations before con-

cluding that a good facial respirator fit could only be

insured by a rule completely prohibiting facial beards.

He did not hold that the necessity for such an absolute

App. 8

prohibitive rule could never be convincingly demonstrated, ,

nor did he direct plaintiff to permit facial beards regard-

less of their effect on obtaining a good facial fit. He only

found that the policy in question was inconsistent and

without foundation so that the employees could not be

discharged for violating the unreasonable, unfair, and non-

contractual portions of the program. Given the narrow

scope of the award, enforcement of the award would not

necessarily require plaintiff to violate OSHA regulations

and so it is not against public policy. The Court will fol-

low the example of the arbitrator in not deciding unnec-

essary issues such as advising the parties on any future

respirator programs.

Although defendants have requested an award of at-

torney’s fees, the Court finds that bad faith on the part

of the plaintiff has not been demonstrated and that an

award of fees is not appropriate.

Accordingly, the Court finds that defendants’ motion

for summary judgment should be, and it is hereby, granted.

IT IS SO ORDERED this 21st day of April, 1983.

George Howard, Jr.

UNITED STATES DISTRICT JUDGE

y

App. 9

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 83-1619

Apneal from the United States District Court for

the Eastern District of Arkansas

Riceland Foods, Inc.,

Appellant,

v.

United Brotherhood of Carpenters and Joiners of

America, AFL-CIO-CLC, Local 2381 and UBC

Southern Council of Industrial Workers,

Appellees.

Submitted: January 12, 1984

Filed: June 27, 1984

Before ROSS, JOHN R. GIBSON, and BOWMAN, Circuit

Judges.

BOWMAN, Circuit Judge.

Riceland Foods, Inc. (Riceland), a soybean process-

ing company, appeals from a judgment of the District

Court! enforcing an arbitration award in favor of United

Brotherhood of Carpenters and Joiners of America, AF'L-

CIO-CLC, Local 2381 and UBC, Southern Council of In-

dustrial Workers (the Unions). The District Court ruled

that the arbitrator’s award drew its essence from the col-

‘The Honorable George Howard, Jr., United States District

Judge for the Eastern District of Arkansas.

App. 10

lective bargaining agreement and, therefore, granted sum-

mary judgment in favor of the Unions’. We reverse.

On August 23, 1979, an ammonia leak occurred in one

of Riceland’s departments. Two employees, James Shel-

ton and William Campbell, were assigned the job of lo-

cating and repairing the leak. Shelton subsequently pro-

tested to officials of the Occupational Safety and Health

Administration (OSHA) that Riceland failed to provide

exits from the work area and an adequate respirator.

OSHA ordered Riceland to correct the latter problein.

See 29 C.F.R. §1910.134(c), (e)(5) (OSHA regulations

regarding the use of respirators). Because Riceland al-

ready wa» investigating a new respirator program, OSHA

issued a non-serious citation. See 29 U.S.C. § 658; 29

C.F.R. § 1903.14.

Riceland implemented a training program for use of

the new respirator, a self-contained breathing apparatus

(SCBA). A subsequent management directive stated, in

part:

1. To assure a standard prograin, all employees who

have need to wear the SCBA ... in performance of

their job will be required to be clean shaven on the

facial area where the face mask seals against the face.

Any other conditions, such as, a skull cap that projects

under the face piece, temple pieces of eyeglasses, ab-

sence of one or both dentures, etal (sic), that would

prevent a seal between the facial surface and mask

sealing surface shall be checked and corrected dur-

ing training.

7Riceland also argues that the grievance did not raise the

reas nab'eness of the rules of the respirator program and that

because the decision is contrary to the Occupational Safety and

Health Act of 1970, it is against public policy. Because of our

resolution of this case, we need not address these other Rice-

land contentions.

App. 11

‘

2. No one is authorized to use the SCBA unless he

or she has had proper training.

Designated Record (D.R.) at 35. (emphasis added). An

additional memorandum provided that employees who did

not want to comply with the conditions for wearing the

SCBA would be offered available jobs not requiring cer-

tification for wearing the SCBA. /d.

Four employees, James Shelton, William Cainpbell,

Merlin Brenneman, and Rick Gibson, declined to follow

these new safety rules by refusing to shave. They also

refused to transfer to another work area. Riceland laid

these employees off for three days and then discharged

them. As a result, the Unions invoked the grievance and

arbitration procedure established by their collective bar-

gaining agreement with Riceland.

The arbitrator determined that the issues before him

were whether there was just cause for discharging the

four grievants and, if there was no just cause for the dis-

charges, what was the remedy. After a hearing, he con-

cluded that Riceland had not established that the safety

rule regarding facial hair was fair, reasonable, and con-

tractual. Therefore, the arbitrator required Riceland to

reinstate the grievants to their former jobs with back pay

and no loss of seniority rights. But the arbitrator also

found that the grievants had violated the collective bar-

gaining agreement by failing to follow the ‘‘obey now,

grieve later” rule and penalized each of them with a loss

of pay for the month following their discharges.

Reviewing courts rarely set aside arbitration awards.

In this case, however, we believe that the award does not

‘‘draw its essence” from the collective bargaining agree-

App. 12

ment, See generally W. R. Grace & Vo. v. Local 759, Int'l.

Union of Rubber Workers, 103 S.Ct. 2177, 2182 (1983);

United Steelworkers v. Enterprise Wheel & Car Corp.,

363 U.S. 593, 597 (1960) (hereinafter Enierprise Wheel &

Car Corp.); St. Louis Theatrical Co. v. St. Louis Theatri-

cal Brotherhood Local 6, 715 F.2d 405, 407 (8th Cir. 1983).

The collective bargaining agreement between the par-

ties expressly limits the authority of the arbitrator. For

example, ‘‘Article 4: Arbitration” provides, in part:

Section 4. The arbitrator shall have no power to

alter, amend, change, add to, or subtract from any

of the terms of this Agreement, but shall determine

only whether or not there has been a violation of this

Agreement within the allegations set forth in the

grievance ....

Section 6. The arbitrator shall not render any de-

cision or award or fail to render any decision or

award, merely because in his opinion such decision

or award is fair or equitable. Any arbitration with

respect to the exercise of a right to discharge or dis-

cipline under the provisions of Article 7 shall be lim-

ited to the question of whether or not there was just

cause or whether or not the working rules were vio-

lated, and shall not include whether or not the type

of discipline selected was appropriate.

D.R. at 10-11. (Emphasis added). The arbitrator ex-

pressly found that the grievants violated the agreement

by failing to obey Riceland’s rule: they refused to shave

as required if they were to be certified to wear the SCBA,

and they refused reassignment to another work area where

the SCBA would not be needed. Nonetheless, he miti-

gated the discipline selected by Riceland. This was con-

App. 13

trary to the express languxge of Sections 4 and 6, supra.

See St. Louis Theatrical, supra; Truck Drivers & Helper’s

Union Local 784 v. Ulry-Talbert Co., 330 F.2d 562 (8th

Cir. 1964). Because the arbitrator was not authorized

to evaluate the propriety of the discipline selected hy

Riceland, the District Court should have granted sum-

mary judgment in favor of Riceland. After all, ‘‘[an

arbitrator] does not sit to dispense his own brand of in-

dustrial justice.” Enterprise Wheel € Car Corp., 363

U.S. at 597 (1960).

The Unions rely heavily on the arbitrator’s conclu-

sion that Riceland’s shaving rule was unreasonable. This

reliance is misplaced beczuse the reasonableness of the

shaving rule is irrelevant. If the employees had obeyed

the rule and followed grievance procedures, it would be

a different case—the central issue before the arbitrator

would have been the reasonableness of the rule; there

would not have been a question about the employees’ be-

havior. But here the employees simply flouted the rule,

which was intended to protect their health and safety in

accordance with OSHA policy.’

The Unions also rely on two cases in which the ar-

bitrator interpreted the scope of a clause providing for

discharge for “sufficient cause” and for “proper cause.”

See Vulcan-Hart Corp. v. Stove, Furnace & Allied Ap-

pliance Workers Int’l Union Local No. 110, 671 F.2d 1182

(8th Cir. 1982); Kewanee Machinery Division v. Local

Union No. 21, International Brotherhood of Teamsters,

3We express no opinion on whether the reasonableness of

the rule is an appropriate issue, within the terms of the collec-

tive bargaining agreement, for resolution by the arbitrator.

App. 14

593 F.2d 314 (8th Cir. 1979). In those cases the employees

were discharged for insubordination and for absences.

Neither case confronted the problem of an express pro-

vision removing the discipline selected by the employer

from the arbitrator’s consideration. Similarly inappli-

cable is United Electrical, Radio and Machine Workers of

America, Local 1139 v. Litton Microwave Cooking Prod-

ucts, Litton Systems, Inc., 728 F.2d 970 (8th Cir. 1984)

(en banc) in which the issue presented was the appro-

priate remedy against an employer who had breached the

collective bargaining agreement. In the instant case, we

are faced with an arbitrator’s alteration of the discipline

selected by Riceland notwithstanding his conclusion that

the employees had breached the agreement. The arbitrator

exceeded his authority and violated the express terms of

the collective bargaining agreement when he altered the

discipline.

The judgment of the District Court is reversed.

A true copy.

Attest:

CLERK, U. 8. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. 15

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 83-1619

Appeal from the United States District Court for

the Eastern District of Arkansas

Riceland Foods, Inc.,

Appellant,

United Brotherhood of Carpenters and Joiners of

America, AFL-CIO-CLC, Local 2381 and

UBC Southern Council of Industrial Workers,

Appellees.

Submitted: September 13, 1984

Filed: December 10, 1984

Before HEANEY, BRIGHT, ROSS, McMILLIAN, AR-

NOLD, JOHN R. GIBSON, FAGG, and BOWMAN, Cir-

cuit Judges. EN BANC.

ORDER

This case has been heard by the Court en bane. Judges

Ross, McMillan, John R. Gibson, and Bowman would af-

firm the panel opinion and reverse the District Court

judgment. Judges Heaney, Bright, Arnold, and Fagg would

reverse the panel opinion and affirm the District Court

judgment. Therefore the judgment of the District Court

is affirmed by an equally divided Court.

App. 16

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. 17

APPENDIX D

WHOLLY AND PARTIALLY OWNED SUBSIDIARY

COOPERATIVES OF RICELAND FOODS, INC.

Stuttgart Grain Drying Cooperative

P.O. Box 106

Stuttgart, AR 72160

Lonoke Grain Drying Cooperative

. P.O. Drawer I

I.onoke, AR 72086

Wheatley Grain Drying Cooperative

P.O. Box 389

Brinkley, AR 72021

Jonesboro Grain Drying Cooperative

P.O. Box 220

Jonesboro, AR 72401

Hickory Ridge Grain Drying Cooperative

P.O. Box 517

Hickory Ridge, AR 72347

McGehee Grain Drying Cooperative

P.O. Box 260

McGehee, AR 71654

Hazen Grain Drying Cooperative

P.O. Box 376

Hazen, AR 72064

Fair Oaks Grain Drying Cooperative

P.O. Box 237

Fair Oaks, AR 72397

Weiner Grain Drying Cooperative

P.O. Box 335

Weiner, AR 72479

Des Are Grain Drying Cooperative

P.O. Drawer “D”

Des Are, AR 72040

App. 18

Dumas Grain Drying Cooperative

?.0. Box 668

Dumas, AR 71639

Corning Grain Drying Cooperative

P.O. Box 434

Corning, AR 72422

East Arkansas Grain Drying Cooperative

P.O. Box 36

Parkin, AR 72373

Tuckerman Grain Drying Cooperative

Drawer “A”

Tuckerman, AR 72473

Lee County Grain Drying Cooperative

P.O. Box 793

Marianna, AR 72360

White County Grain Drying Cooperative

P.O. Box 376

Bradford, AR 72020

Mississippi River Grain Drying Cooperative

P.O. Box 398

Elaine, AR 72333

Delta Grain Drying Cooperative

P.O. Box 938

Clarksdale, MS 38614

Arkansas River Valley Grain Drying Cooperative

P.O. Box 605

Morrilton, AR 72110

Hope Grain Drying Cooperative

P.O. Box 664

Hope, AR 71801

Eudora Grain Drying Cooperative

P.O. Box 599

Eudora, AR 71640 |

App. 19

Griffithville Grain Drying Cooperative

P.O. Box 44

Griffithville, AR 72060

Jackson County Grain Drying Cooperative

P.O. Box 1

Newport, AR 72112

The Farmers Cooperative Elevator Company

P.O. Box 346

DeWitt, AR 72042

App. 20

-APPENDIX E

EXHIBIT A

Grievance No. AA33

Dated Apr. 7, 1980

Signed by Larry Fortune

FMCS No. 80K17944

RICELAND FOODS, INC.

Stuttgart AR

and

UBC, SOUTHERN COUNCIL OF

INDUSTRIAL WORKERS

UNITED BROTHERHOOD OF CARPENTERS

AND JOINERS OF AMERICA

(AFL-CIO-CLC)

LOCAL UNION NO. 2381

Hearing held in Stuttgart County Court House, Stutt-

gart AR, July 24, 1980. A. Q. Sartain, Arbitrator, selected

in accordance with FMCS procedures. There is no ob-

jection to publication and no question as to the arbitra-

bility of the Grievance. Posthearing briefs were to be

postmarked by Aug. 22, 1980, but due to an error in Postal-

service delivery one was not received until Sept. 5, 1980.

THE ISSUE

[As proposed by the Company] Did the employees

involved violate the safety rules and regulations with re-

end oon

De hi Sih iy ana AMMEA ine SaNld INS il ed

App. 21 ‘

spect to the Respiratory Program as promulgated by the

Company?

[As proposed by the Union| Was there just cause

for discharging the four individuals?

The Arbitrator determines that the Union’s proposal

is the proper statement of the Issue since the Company

apparently assumes the propriety of cited safety rules and

regulations whereas whether or not they are themselves

in accordance with the Contract between the Parties is

found to be a part of the Issue.

To the above there is also added, “If not, what is the

remedy?”

RELEVANT PORTIONS OF THE AGREEMENT

BETWEEN THE PARTIES

(Dated Aug. 1, 1979)

ARTICLE 6 MANAGEMENT RIGHTS

Section 1. In order to operate its business, the

Employer, in its sole discretion, retains and shall have

the following exclusive rights:

1. To determine the number, location and

types of plants, to change the types of plants, to

move in whole or in part the location of the

plants ;

14. To establish and make known work rules and

safety rules for all of the employees;

19. To otherwise generally manage the business,

direct the work force, and establish terms and condi-

tions of employment.

The above rights are not ail-inclusive, but indicate the type

of matters or rights which belong to and are inherent to

the Management.

App. 22

Section 3. All other traditienal rights of manage-

ment are also expressly reserved to the Employer and

the express provisions of this Agreement constitute the

only limitations upon the Employer’s exclusive right to

manage its business.

ARTICLE 7 DISCIPLINE OR DISCHARGE

Section 1. The Employer shall have the right to dis-

charge or discipline an employee for just cause. The em-

ployee shall be advised as promptly as possible in person

by the Employer of the reason or reasons for such dis-

charge or disciplinary action. A Union steward shall be

present at any disciplinary action, if possible.

ARTICLE 8 Section 2 Included in the reasons for

which an employee shall lose his seniority ... are the

following:

(b) Discharge for cause.

ARTICLE 13 SAFETY AND HEALTH

Section 1. Each employee is responsible for observ-

ing all safety rules and regulations and for conducting

himself at all times in such a way that neither he nor his

fellow employees are subject to injury.

ef aad hind) nals Ae hehe SIG MOO ss

Section 2. All work related accidents or incurred in-

juries must be reported to the supervisor as soon as pos-

sible under the circumstances.

Section 3. The Company will furnish ear protection,

eye protection, and protective head equipment as the job

requires, as determined by the Employer. All equipment

furnished by the Employer must be returned upon termi-

TTF

App. 23

nation of employment. The Employer wiil replace worn

equipment, but will not be responsible for equipment lost

or stolen.

Section 4. There shall be a Safety Committee estab-

lished in the plant to be known as the Plant Safety In-

spection Committee. The Piant Safety Inspection Com-

mittee shall be comprised of one or more members of the

Bargaining unit on each shift, to be selected by a majority

vote of all employees on each shift. Such elections will

be held quarterly. In the event no employee is selected

in this manner, the Company may designate an employee

to serve on this committee from that shift. The Company

and bargaining unit representative of the Plant Safety

Inspection Committee on each shift shall make periodic

inspections. They shall report on forms furnished by the

Company, all unsafe operations for working conditions im-

mediately to the Shift Supervisor avaiiable at the time,

for corrections.

REPRESENTATIVES OF THE PARTIES

The Company

Mr. Bill S. Clark, Attorney

Friday, Eldredge & Clark, Little Rock

Witnesses

Mr. Giles Colbert, Division Manager, Stuttgart

Soybean Division

Mr. Herrold Hanson, Instrument Superintendent

Mr. William Bennett, Superintendent of Hydro

Packaging and Shipping

Mr. Max Montgomery, Processing Superintendent

Mr. Rick Wood, Superintendent, Granular

Lecithin Plant

App. 24

Mr. Terry Richardson, Personnel Director

Mr. Charles Shrum, Maintenance Supervisor,

Hydro Packing

Mr. James Mason, Vice President and General

Manager, Riceland Rice Mill

The Union

Mr. Phillip E. Kaplan, Attorney

Mr. W. Michael Hamilton, Attorney

Kaplan, Brewer & Bilheimer, Little Rock

Witnesses

Mr. James Shelton, Grievant, Local Union

President, and Maintenance Employee

Mr. Clifford Stephens, Votator Operator

Mr. O. C. Johnson, Maintenance Employee

Mr. Fred Mullins, Votator Operator

Mr. William Campbell, Grievant and Maintenance

Empioyee

Mr. Merlin Brenneman, Grievant, Union

Secretary, and Maintenance Employee

Mr. Rick Gibson, Grievant and Employee of the

Lecithin Plant

Also Present

Mr. Don Rogthe

Mr. Joe Dixon

Recorded by Ms. Pearl B. Pennington

BACKGROUND

There is little argument concerning the basic facts in

this case though the Parties differ shurply in their assess-

ment of the meaning of some of them.

The Company operates a soybean-processing division

in Stuttgart. It is larger than most such operations, carry-

ing the manufacturing processes further than most do.

Riceland also has other plants including those for the

App. 25

processing of rice, but in operation the instant one is ap-

parently independent of them.

The present Grievance arose in a department of the

plant which was involved in a considerable amount of

freezing of the product, primarily by the use of ammonia

under higher-than-usual pressure.

On Aug. 23, 1979 an ammonia leak occurred in the de-

partment and two of the Grievants, namely Messrs, Shel-

ton and Campbell, were assigned to determine the nature

of the leak and to repair it. It was found to be in a %4-inch

line on the top of a 40-foot tank, but the Grievants were

unable to reach it, according to their testimony, because

of the heavy concentration of ammonia. Subsequently

Supervisor Shrum did succeed in finding the nature of

the leak though it is not clear whether this was before or

after a reduction in the pressure on the line and time for

the gas to “clear out.” Shelton and Campbell later re-

paired it.

Shortly after the break Shelton called the OSHA of-

fice in Little Rock to protest, according to Union testi-

mony, the Company’s failure to provide proper exits from

the work area and also an adequate sort of respirator. The

Company was subsequently ordered to correct the last of

these matters.

Earlier, in March 1979, the Company had requested

an inspection by the Arkansas Department of Labor, OSHA

Division. As a result of the findings of the latter, the

Company began the development of a respirator program

designed to lead to the abandonment of its older type of

mask, which employed a filter through which the air passed

before being breathed, and its substitution by one which

App. 26

supplied its own compressed air (a self-contained | -eath-

ing apparatus often referred to as SCBA or a positive-

pressure device).

This program was under way in August, 1979 and a

respirator called the Survivair, capable of supplying up

to 30 minutes of air, had been adopted. A new five-minute

respirator, for immediate emergencies, had also replaced

an older one.

Subsequent to the above complaint filed by Shelton

the Company received a “non-serious citation” from OSHA.

The evidence indicates that the charge would have been

a “serious” one if it had not been for the existence of the

above program.

After the arrival of the Survivair, demonstrations of

its use were held and many supervisors and employees,

including at least some of the Grievants, attended. At

these meetings several of them, including Shelton, put on

the unit and reported they “got a fit” (that is, the face

mask sealed against their faces and permitted no outside

air to enter).

A “Resuscitator Program” was then formulated by the

Company and posted throughout the plant. It called out

the employees whose duties were such that they might be

called upon to use the Survivair and ordered their train-

ing in its use. Included in a subsequent March 7th Man-

agement Directive was the following:

1. To assure a standard program, all employees who

have need to wear the SCBA (See Section I, Item J)

in performance of their job will be required to be clean

shaven on the facial area where the face mask seals

against the face. Any other conditions, such as, a

App. 27

skull cap that projects under the face piece, temple

pieces of eyeglasses, absence of one or both dentures,

et al, that would prevent a seal between the facial sur-

face and mask sealing surface shall be checked and

corrected during training.

2. No one is authorized to use the SCBA unless he or

she has had proper training.

And a Memorandum of March 14 provided that

6. Those employees who do not meet the conditions es-

tablished for wearing the Self Contained Breathing

Apparatus and who do not want to make changes that

will enable them to meet the standard conditions will

be offered any available comparable or other job

where the certification for wearing the SCBA is not

a job requirement.

7. This program will become effective on April 1, 1980.

It was apparently the intention of the Company that

an employee must, in the judgment of his supervisor, be

properly shaven before he could take the training, but at

least Shelton, among the Grievants, was given the train-

ing, and according to both the Grievant and the Manage-

ment representative involved, again succeeding in achiev-

ing a satisfactory seal without meeting shaving standards.

At first there were a number of employees who could

not meet the Company’s “hair test” but by Apr. Ist they

were reduced to four in number, namely the Grievants

named above. When they refused to shave “properly” and

asserted that they were not interested in bidding into an-

other job each was laid off for three days and subsequently

discharged.

On Apr. 7, 1980 the Grievants filed Grievance No.

AA33, the principal part of which reads as follows:

App. 28

Date Grievance Occurred Tuesday April 1, 1980 Friday

April 4 and Monday April 7

Nature of Grievance The Company on the dates above

suspended and terminated James Shelton, William

Cambell, Marlin Brenneman, And Rich Gibson for

not being clean shaven.

The Company has violated Article (7) Article (13)

of the Contract.

The Company has violated Title (7) of the Equal Em-

ployment Opportunity Act.

The Company has violated OSHA.

Adjustment Desired We ask that the Company rein-

state these Employees with all back pay and Benefits.

We also demand that the Company allow all the Em-

ployees with Facial hair a chance to properly fit the

SCBA Unit before the Company determines that a

Beard or Sideburns will not let it fit properly

Prior to the above events, on Mch. 21 Shelton at-

tempted to file Grievance No. AA32 protesting the Mch.

14th Memo cited above and asking for the Company to

“rescind [it] for 30 days or until such time that OSHA

is allowed to determine wheather [sic] or not that the

Company has violated Article 7 and Article 13.” Colbert

refused to accept it on the ground that it would not be

timely until the program was actually implemented, a posi-

tion in which the Executive Secretary of the Southern

Council of Industrial Workers subsequently concurred.

In the hearing there was considerable discussion of

the OSHA position and findings relative to the use of

respirators. In particular the Parties disagreed as to the

meaning and implications of the following [from 31 :5802

of 8-131 OSHA Standards—Subpart I, 1910.133,(e)(5)]:

App. 29

(i) Every respirator wearer shall receive fit-

ting instructions including demonstrations and prac-

tice in how the respirator should be worn, how to ad-

just it, and how to determine if it fits properly. Res-

pirators shall not be worn when conditions prevent a

good face seal. Such conditions may be a growth of

beard, sideburns, a skull cap that projects under the

facepiece, or temple pieces on glasses. Also the ab-

sence of one or both dentures can seriously affect the

fit of a facepiece. The worker’s diligence in observing

these factors shall be evaluated by periodic check. To

assure proper protection, the facepiece fit shall be

checked by the wearer each time he puts on the res-

pirator. This may be done by following the manufac-

turer’s facepiece fitting instructions.

(ii) Providing respiratory protection for individ-

uals wearing corrective glasses is a serious problem.

A proper seal cannot be established if the temple bars

of eye glasses extend tlirough the sealing edge of the

full facepiece. As a temporary measure, glasses with

short temple bars or without temple bars may be

taped to the wearer’s head. Wearing of contact lenses

in contaminated atmospheres with a respirator shall

not be allowed. Systems have been developed for

mounting corrective lenses inside full facepieces.

When a workman must wear corrective lenses as part

of the facepiece, the facepiece and lenses shall be fit-

ted by qualified individuals to provide good vision,

comfort, and a gas-tight seal.

(iii) If corrective spectacles or goggles are re-

quired, they shall be worn so as not to affect the fit

of the facepiece. Proper selection of equipment will

minimize or avoid this problem.

After the Grievance was denied by Management in

the various steps of the grievance procedure it was ap-

pealed to this hearing.

App. 30

POSITION OF THE COMPANY

The Company contends as follows: An important

point is two prior arbitration awards, including 77-1 ARB

§8272 (E. H. Conant, Arbitrator—May 16, 1977), which

is almost completely parallel to the instant set of facts

and in which the decision was in favor of the employer.

This arbitrator concluded that the presented expert evi-

dence justified the rule as to required shaving, that it was

applied in such a way as not to prohibit all facial hair but

only to preventing a hazard, that Management had the

right to promulgate reasonable safety rules such as this

was, and that the action met the test of reasonableness.

While precedent is not as such binding on an arbitrator

the Company is sure that ‘‘the [present] Arbitrator will

be persuaded that [this case] is entitled to great weight”

(Co. Brief, p. 9).

A second point of significance is the resort of the

Grievants to self-help. In all circumstances such as the

ones with which we are here concerned, if an employee

disagrees with a Management decision his/her proper

cov~se of action is to ‘‘obey now and later, if desired, to

grieve.” The unwillingness of the Grievants ‘‘to endure

even a temporary loss of facial hair or to work in a com-

parable job” completely nullifies their entire contention,

and thus becomes a sufficient basis for denying the Griev-

ance.

It is clear in the third place that the labor Agreement

and in particular Article 6, Sections 1-3, and Article 13

give the Company the right to do what it did. [Article

6.1.14 specifically covers this point.]

App. 31

Thus in spite of Union contentions to the contrary,

the Company at all times “acted in a prudent and reason-

able manner” (p. 14), and hence all claims as to any un-

reasonableness or arbitrariness in the disputed rules must

be rejected. Company Exhibit 15, citing a study from the

Los Alamos Laboratory “supports the Company’s posi-

tion. It proves the OSHA regulation is correct in that

employees with beards may not consistently obtain a seal.

The article is very definitely proof that the Company’s

shaving regulation is reasonable under all the facts and

circumstances” (p. 17).

Thus because (1) Management had the right to do as

it did; (2) it was reasonable and consistent in what it did;

and (3) the self-help resorted to was in direct violation

of the Contract between the Parties, the Grievance should

be denied. The last point is particularly important be-

cause as Union President Shelton ‘‘had a duty to make

certain that the grievance and arbitration procedure was

followed” (p. 25).

POSITION OF THE UNION

The Union contends as follows: The Company’s ac-

tions toward Shelton in particular and the other Griev-

ants as well were arbitrary in the extreme. For one

thing, «ven after being earlier cited by OSHA “‘a five and

one-half month period passed during which nothing was

accomplished by the Company to comply with the... di-

rectives” (Un. Brief, pp. 2-3). For another, both Shelton

and Stephens, ‘‘who himself shaves infrequently,” tried

on the SCBA unit ‘‘and determined that it fit properly in

the presence of [Supervisor] Shrum.” Though the latter

admitted these two had passed this test Colbert decided

App. 32

that “employees with a beard couldn’t pass the SCBA

test.” Incidentally this decision was applied to Shelton,

but nothing was ever said to Stephens about the four or

five day growth of beard which he always maintains” (p.

3).

An additional consideration is the widespread belief

that “Colbert was making employees shave because they

called OSHA” (pp. 3-4), an opinion in which at least one

member of Management explicitly concurred.

Furthermore,

‘Colbert refused to accept the grievance saying

it was untimely because the program had not been im-

plemented and refused to grant the Union’s request

for an extension of time on implementation of the

program or for an examination by a neutral third

party. (T.260-61,276). Colbert then angrily told

Shelton that, ‘He would be clean-shaven everyday

or he would send him home.’ (T.267-277).”

‘‘On March 21, 1980, Shelton attempted to file a

grievance challenging the shaving requirement of the

respirator program. (T.259, Union Ex. #2). Shel-

ton explained to Colbert that the Union wanted a 30-

day delay in implementation of the program in order

to have a neutral third party determine whether be-

ing clean-shaven was necessary to obtain an adequate

face mask seal. Shelton indicated to Colbert that if

being clean-shaven was determined to be necessary

for a proper fit, he would be the first to shave. (T.

260-261, 276).” (p. 4).

The Union agrees at once that Management has the

right to ‘‘promulgate legitimate, reasonable rules to insure

the safety of its employees” and also the right to discharge

for just cause. However, with regard to the shaving rule

it “is so unreasonable and inconsistent that a refusal to

App. 33

comply [with it] cannot constitute just cause for dis-

charge.” Actually “the evidence . . . clearly establishes

that the only conceivable reason for promulgating such a

rule ... was to retaliate against the Union because Presi-

dent Shelton complained to OSHA about the Company’s

safety violations” (p. 5).

Cross examination of Company witnesses revealed (1)

no reasonable basis for the above 514-month delay; (2)

an acknowledgment that only the individual employee

could really determine whether he ‘‘got a fit” with the

mask—as all the Grievants did; (3) that the shaving rule

was the only ‘‘absolute rule” in the Company program,

though OSHA gives it no greater significance than that

given to a great many other conditions, all of which the

Company virtually ignored (the wearing of glasses, con-

tact lenses, and dentures being examples); (4) that cer-

tain Operations employees who “would require the use

of SCBA units ‘‘were not even made a part of the pro-

gram; and finally (5) that the manufacturer’s instructions

relative to the use of the Survivair contain “absolutely no

reference to facial hair” (p. 8).

It is also significant that employees at other Company

units are required to wear SCBA units but none of them

have a ‘‘shaving rule.”

Examination of the Company-cited arbitration cases

reveal that in one OSHA had determined that the particu-

lar individual could not get a fit with his hair pattern and

in the other the manufacturer’s instructions made specific

recommendations concerning facial hair.

The Grievance should therefore be sustained.

App. 34

DISCUSSION

One result always desired by an arbitrator is to make

a decision that in effect disposes finally of the matters at

issue. At the same time an arbitrator must be careful

“not to decide too much,” that is, not to cover more than

the issue or issues of the case determines to be in dispute

between them. Hence at times matters on which the Par-

ties may wish an answer are not properly before the Arbi-

trator and should not be decided, perhaps an decision for

lack of sufficient evidence.

The above considerations are decidedly relevant to the

instant case. On the one hand, it must be pointed out

that the Company did not succeed in establishing that its

program regarding the facial hair of the Grievants was

fair, reasonable, and Contractual. But on the other hand,

neither did the Union evidence nor the evidence of the

hearing taken as a whole prove that such a program was

not proper. The point is that since this was a discharge

ease the Company had the burden of proof and hence the

obligation to establish its case, failing which the Issue

must be answered in the negative.

Certainly Company evidence did not establish the

propriety of its action beyond a reasonable doubt, the

test frequently imposed in discharge case. But it did not

do so even by the preponderance of evidence test. For

one thing, the discharges were apparently greatly influ-

enced by Management interpretation of (1) the OSHA

regulation which says that growth of beard may be [em-

phasis added] a condition preventing ‘‘a good face seal”

App. 35

but nowhere does it say that it will always or even usually

do so; and (2) remarks of a Mr. Jones of OSHA and a

Mr. Sullivan of the supplier of the Survivair. But neither

Mr. Jones nor Mr. Sullivan was established in this hear-

ing as an expert in this matter. Besides I had before me

only what purported to be oral statements made by them,

no relevant written documents being submitted, and ob-

viously no opportunity being provided for their question-

ing by the Arbitrator or cross-examination by the Union.

In addition, as of the date of the discharge Manage-

ment had admittedly made no effort to check on practice

in other Riceland divisions or on comparable provisions

in competitive companies or on what was done ky employ-

ers in other industries where ammonia is comparably used,

nor on scientific and engineering findings relating to the

“‘good fit” on which it quite properly insisted. I do not

know what such an inquiry as the above would reveal—

maybe nothing of value to either Party—but the Com-

pany violated the Agreement when it failed to make such

a good-faith search before putting the Grievants’ jobs in

jeopardy.

Even though the Company had not made extensive

investigations as of the date of the discharges, it main-

tained in this hearing that subsequent research established

its position. While ordinarily proceedings such as the

instant one prohibit evidence that arises subsequent to the

complained-of action the practice is not universal. Hence

the Company might be able to show that its decision was

in fact correct even though at the time it had not obtained

all the supporting facts. But even if arguendo one agrees

that in this case the Company might properly present

App. 36

such facts as it has subsequently discovered, what it did

present was not conclusively in its favor. For one thing,

it is questionable that experience with respirators in Cam-

den and E1 Dorado fire departments transfers directly to

demands on Mechanical Employees in this Company and

no effort was made to show how representative of fire-

fighting practice it was. And the Los Alamos study, while

interesting and relevant, could hardly be found to be final

evidence. For one thing, it concerned in part if not prin-

cipally the filter type of respirator rather than the SCBA.

Indeed a sentence on the top of p. 142 of the report, where

U.S. Navy practice is cited, can be read to say a different

set of considerations may be involved with the SCBA.

And for another, the report finds that there are many

kinds of “hair styles” and of individuals, and at least by

implication cautions against overgeneralizations. I do not

want to be misunderstood: the referenced report helped

the Company’s case and an additional amount of such evi-

dence, some hopefully much more specific, might have es-

tablished it. But standing virtually alone, the Los Alamos

report was not convincing.

The Union was also correct in charging that the Com-

pany apparently “singled out” facial hair for special at-

tention while failing to put comparable emphasis on otner

interfering factors equally important.

But now just as I find the Company failed to carry

its ‘‘just cause” burden of proof as to the discharges, so

I conclude that the Union failed to establish its contention

that the discharges occurred as a result of attempts to

‘vet even” for the filing of OSHA charges. Some of the

Union assertions and inferences as to Company motives

App. 37

appeared to be plausible, but the Company was vigorous

in its denial, sufficiently so that the Union clearly failed

to meet the burden of proof it carried with regard to its

charges.

There remains the ‘‘self-help” charge against the

Union. Here the Company is found to have been on sound

grouad, though not by the clear margin it urged. Arbi-

trators are uniform, so far as I know, in their allegiance

to the ‘‘obey now, grieve later rule,” but all would admit

there are exceptions to it. One is the potential jeopardy

of the employee and/or other people. Another is any re-

quirement of felonious or even merely illegal behavior.

Additionally there are probably circumstances where an

order is so clearly unreasonable or humiliating or viola-

tive ef a moral or ethical code that one should not insist

that it be followed.

As regards whether a man’s rights concerning his

style of facial hair fall into the “jeopardy” or “illegr |”

classifications, it is hard to even imagine such instances,

but there may be circumstances where they fall into the

third category. However, they are not found to deo so for

any of these four Grievants. Important as his hair style

might have seemed to each individual, there was no show-

ing, for example, that shaving to the extent the Company

required would have subjected any one of them to pro-

longed public ridicule or violated any moral or religious

belief or seriously damaged their self-esteem. Under the

circumstances I find that the Contract required them to

obey now and later, if they wished, permitted them to

grieve. Hence because the Grievants did violate the Con-

tract the Union’s requested remedy cannot be granted in

toto.

App. 38

It is therefore determined that the Grievants are to

be restored to their prior positions without loss of pay,

seniority, or fringe benefits except that because of their

failure to follow the relevant Contractual provisions they

are to suffer a loss of pay for one month following the

respective discharges. From the back pay due each Griev-

ant the Company may deduct for any personal earnings

and/or unemployment compensation properly received and

retained after the expiration of the one-month period.

It is tempting at this point to make suggestions as

to where this decision leaves the Parties with regard to

the respirator program and the future use by the Griev-

ants of the Survivair. However, as noted above the Issue

of this case does not require me to do so. Furthermore

because [ have made a determination as to the Issue as

stated, including one as to the proper remedy, I see no

need to, and I do not, retain any future jurisdiction over

this case.

AWARD

Thus Grievance No. AA33, dated Aug. 7, 1980 and

signed by Mr. Larry Fortune, is hereby (1) sustained to

the extent that each of the Grievants is to be restored to

his prior position without loss of back pay (except as

provided below), seniority, and/or fringe benefits, and (2)

denied to the extent that each of the Grievants is to suffer

the loss of back pay for a period of one month following

his discharge.

/s/ A. Q. Sartain

Arbitrator

AQS/ms

Dallas, Texas

September 11, 1980