Opposition Brief — Craig v. Brigadier (No. 07-534)

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No. 07-534 | Ney ? { 2697 ;

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OrtiCe OF THE CLERK

SUSE EME COURT, U.S.

In The

Supreme Court of the Gnited States

®

MATTHEW A. CRAIG,

Petitioner,

¥.

JOHN BRIGADIER; SUSAN M. BRIGADIER;

DAVID L. BRIGADIER; JACQUELYN F. LENSON;

RISER FOODS COMPANY, d/b/a GIANT EAGLE, INC.,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

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RESPONDENTS’ BRIEF IN OPPOSITION

®

FRANK W. BUCK

Counsel of Record

ROBERT M. WOLFF

MARK V. WEBBER

LITTLER MENDELSON

1100 Superior Avenue, 20th Floor

Cleveland, OH 44114

Phone: (216) 696-7600

Facsimile: (216) 696-2038

fbuck@littler.com

rwolff@littler.com

mvwebber@littler.com

COCKLE LAW BRIEF PRINTING CO. (su0) 225-69

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether or not this Court should grant review of

this routine hybrid §301 action in which the

lower courts correctly applied this Court’s ample

precedent in finding that Plaintiff’s claims are

completely preempted?

Whether or not this Court should grant review in

this case despite Plaintiff’s inability to identify

any divergence among the Circuit Courts of Ap-

peals from this Court’s ample precedent in the

area of preemption?

. Whether or not this Court should grant review in

this case even though Plaintiff’s claims would

undermine the well-settled deference that is to be

accorded to labor arbitration awards?

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CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

The parent Company of Riser Foods Company

d/b/a Giant Eagle is Giant Eagle, Inc. There is no

publicly held Company that owns 10% or more of its

stock.

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TABLE OF CONTENTS

QUESTIONS PRESENTED

CORPORATE DISCLOSURE STATEMENT

REASONS WHY THE PETITION SHOULD BE

DENIED

4

II. Plaintiff Has Mischaracterized the Deci-

sions of the Sixth Circuit Court of Ap-

peals and Has Not Remotely Established

the Existence of a Conflict Among the

Circuits

This is a Poor Case for Review Because

the Record is Clouded by Plaintiff’s Ef-

forts to Evade the Labor Arbitration De-

cision that Found that He Was Properly

Discharged for Insubordination

CONCLUSION

1V

TABLE OF CONTENTS - Continued

Page

APPENDIXA -— Statutes and Rules............... App. 1

APPENDIX B —- Excerpts from Collective Bar-

ION FINS vise vcrnvainscencencrecsetsoiasbinones App. 10

APPENDIX C —- Sexual Harassment Policy and

Work Rules and Petitioner’s Acknowledge-

ee I ii cntiesssrnastincsdanniieispantiddetabiaids App. 22

APPENDIX D -— Petitioner’s Initial Grievance... App. 34

APPENDIX E - Summary of Pertinent Collec-

tive Bargaining Agreement, Sexual Harass-

ment Policy, and Work Rule Provisions........ App. 41

APPENDIX F - Arbitration Decision............. App. 50

TABLE OF AUTHORITIES

CASES

Akron-Canton Waste Oil v. Safety Kleen Oil

Servs. Inc., 81 Ohio App. 3d 591, 611 N.E.2d

955 (9th Dist. 1992)

Allis-Chalmers v. Lueck, 471 U.S. 202 (1985)

Avuco Corp. v. Aero Lodge 735, 390 U.S. 557

Beneficial National Bank v. Anderson, 539 U.S.

1 (2003)

Caterpillar, Inc. v. Williams, 482 U.S. 386

(1997)

Central Transport, Inc. v. Four Phase Systems,

Inc., 936 F.2d 256 (6th Cir. 1991)

Craig v. Brigadier, No. 1:04-CV-1741 slip op. at

4-5 (N.D. Ohio March 30, 2006)

Decoe v. General Motors Corporation, 32 F.3d

212 (6th Cir. 1994)

Diamond Wine & Spirits, Inc. v. Dayton Het-

delberg Distributing Co., Inc., 148 Ohio

App.3d 596, 774 N.E.2d 775 (3d Dist. 2002)

Electrical Workers v. Hechler, 481 U.S. 851

CNT a os sank nin cibuailivadiooedaxguanetanien naan aenamnalal 12

Fox v. Parker Hannifin Corp., 914 F.2d 795

(6th Cir. 1990)

Franchise Tax Bd. Of Cal. v. Constr. Laborers

Vacation Trust for S. Cal., 463 U.S. 1 (1983)

vi

TABLE OF AUTHORITIES -— Continued

Page

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246

RERESTERGREE Sy aetna oe eon Cn Ne ee EN 13

Int'l Union, United Mine Workers of America uv.

Covenant Coal Corp., 997 F.2d 895 (4th Cir.

SII child eun iconic Goealratibindedouiaeammnbdédiammbilonieiaiinidins 17

Jones v. General Motors Corp., 939 F.2d 380

NT IR IIIT Dliccodsscaistis is aidechadileibavacseaihaselioacecbusiitiaidliaddueniitiens 2

Kenty v. Transamerica Premium Ins. Co., 72

Ohio St.3d 415, 650 N.E.2d 863 (1995)...0000.... 16

Kimbro v. Pepsico, 215 F.3d 723 (7th Cir. 2000) ....... 18

Lawson v. AK Steel, 121 Ohio App. 3d 251, 699

MINT 0 TIENT F vais caciicdischsdusaperehsisonniriubiianbenesneipicnioniideines 15

Lingle v. Norge Div. of Magic Chef, Inc., 486

Lk Ee OE eT 12,13

Livadas v. Bradshaw, 512 U.S. 107 (1994)............... 11

Minarik v. Nagy, 8 Ohio App.2d 194, 193

Piet Be LN ME. BG Bi vcccviecceincsnccesesecccsveceneers 17

N.L.R.B. v. Master Slack and/or Master Trou-

sers Corp., 773 F.2d 77 (6th Cir. 1985)...............0.. 22

Reed v. United Transportation Union, 488 U.S.

EERIE ana ener es a RS RRC oa mane ll

Teamsters v. Lucas Flour Co., 369 U.S. 95

Ta ies 13

United Paperworkers Int'l Union v. Misco, Inc.,

Li ss 5 SESE Ne OER ee SO ea 22

United Steelworkers v. American Mfg. Co., 363

i aca a ligeecabendosais 21

vil

TABLE OF AUTHORITIES — Continued

Page

United Steelworkers v. Enterprise Wheel & Car

COIR, FES Ue, BG CIGD verve cnesticevesccsivcincetescscsves 21

United Steelworkers v. Warrior and Gulf, 363

Pads SPE SD sind cninnts/skccisensinbnsuisiond dacindeaaaiedlaiasentiueees 21

Valinski v. Edison, 197 Fed. App. 403, 2006

U.S. App. LEXIS 20052 (6th Cir. 2006)................. 19

STATUTES AND RULES INVOLVED

ee MUTE eiiiscoriincisoiisiiiaticicicutasii tsnipinniateninadeoiaasniaasiicies 1

BO PE A TEENIE cedsceeinidsicconsapiesiaciiigiceaualeninedncsibewstiakaloinia 1

Be es i itisedicessitesusinnenntenidiesaisbitiblnint eaainaiieles 1

29 U.S.C §185, §301 Labor Management Rela-

IIE Sicsdiciucsadiacneaineecbcenihaeeinidcenpnieaclantecndspuss passim

1

STATUTES AND RULES INVOLVED

The pertinent statutes and rules are printed in

Respondent’s Appendix 1-8.

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COUNTERSTATEMENT OF THE CASE

On July 20, 2004, Plaintiff filed his initial Com-

plaint in state court alleging that he was discharged

from Giant Eagle and further claiming defamation

and interference with contract resulting from an

internal sexual harassment charge filed by Defendant

John Brigadier, a minor employee of Defendant Giant

Eagle. On August 5, 2004, Craig amended the Com-

plaint to name John Brigadier’s parents, David and

Sue. Also named as a Defendant was Giant Eagle

Human Resources Manager, Jackie Lenson. Pursuant

to 28 U.S.C. §§1441, 1446, 28 U.S.C. Section 1331,

and 29 U.S.C. §185, Defendants timely removed the

case to District Court on the grounds that Plaintiff’s

claims were completely preempted under §301 of the

Labor Management Relations Act under well estab-

lished Supreme Court and Sixth Circuit authority. On

September 14, 2004, Plaintiff filed his Motion to

Remand. (R. 7).

On January 14, 2005, Plaintiff filed a Motion to

Proceed with Discovery. (R. 13). Defendants opposed

that motion on January 24, 2005, arguing that Craig

had not demonstrated how discovery would impact

determination of the legal question of complete pre-

emption. (R. 14). On May 23, 2005, the District Court

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entered its Memorandum and Order Denying Plain-

tiff’s Motion to Remand the Case, Denying the Mo-

tion to Proceed With Discovery, and setting a Case

Management cenference for July 15, 2005. (R. 20)

(Pet. Suppl. App*: 11-19). Pursuant to Federal Rule of

Civil Procedure 26(d), discovery was stayed before the

Case Management Planning Meeting. On July 19,

2005, Defendants filed their Motion for Summary

Judgment and 2 Motion for Protective Order to Stay

Discovery Pend'™g Ruling Upon Their Motion for

Summary Judgrent. (R. 25-27).

On March 30; 2006, the Court entered its Memo-

randum and Orer granting Defendants’ Motion for

Summary Judgment and, denying as moot Defen-

dants’ Motion fer Protective Order. (R. 50-51) (Pet.

Suppl. Appx. 1-:0). The Court ruled that Plaintiff’s

claims were completely preempted and that Craig

had failed to peve any Union misconduct in repre-

senting him, a Necessary predicate for a breach of

duty of fair repréSentation case. (Pet. Suppl. Appx. 9).

The Court shared

its determiration that facts of Craig’s case

bear more ‘han a passing resemblance to

those in Devoe v. General Motors Corpora-

tion, 32 F.31 212, 216 (6th Cir. 1994), and

Jones v. Gereral Motors Corp., 939 F.2d 380,

383 (6th Ci: 1991), cases in which the dis-

charged pl<intiffs raised claims such as

defamation, tortious interference, and inten-

tional inflicion of emotional distress. The

Sixth Circuit upheld the finding of preemp-

tion in those cases; the provisions of the

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L.M.R.A. must likewise govern the resolution

of Craig’s claims.

(Pet. Suppl. Appx. 9), The District Court found that

Plaintiff’s claims required interpretation of the

collective bargaining agreement Craig v. Brigadier,

No. 1:04-CV-1741, slip op. at 4-5 (N.D. Ohio March

30, 2006). (Pet. Suppl. Appx. 7). Plaintiff timely filed

his Appeal. On June 4, 2007, the Sixth Circuit Court

of Appeals upheld the decision of the District Court

and denied a petition for rehearing on July 10, 2007.

(Pet. Appx. 1-12).

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STATEMENT OF THE FACTS

This case is simply an effort by a former union

employee of Giant Eagle to attack collaterally his

discharge from employment for gross insubordina-

tion. Plaintiff sued not only his former employer, but

also its H.R. Manager, an employee who had com-

plained about his inappropriate conduct, and even the

boy’s parents who he erroneously believes lodged a

complaint with Giant Eagle on their son’s behalf.

Despite a final and binding Arbitrator’s Award sus-

taining Plaintiffs discharge for insubordination, Craig

nonetheless sought damages despite the fact that each

and every one of his causes of action require interpre-

tation of the Collective Bargaining Agreement which

governed the terms and conditions of Plaintiff’s

employment at Giant Eagle.

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Plaintiff Matthew A. Craig’s employment with

Defendant Giant Eagle was, at all relevant times,

covered by a Collective Bargaining Agreement

(“Agreement” or “CBA”) between the Cleveland Food

Industry Committee (Clerks) and United Food &

Commercial Workers Union, Local No. 880. (Director

of Human Resources Jean Colarik Declaration at

193-5). (R. 9, 11) (Resp. Appx. 10-21, excerpts from

CBA). The Agreement includes provisions pertaining

to management rights to set work rules and regula-

tions, working conditions, seniority, and a binding

grievance procedure. (R. 9, 11; Colarik Declaration at

q10). In particular, Article IJ - Management Rights

permits the Company to establish and maintain

reasonable rules and regulations covering the opera-

tions of the store (Resp. Appx. 10-11). Article IV —

Working Conditions, Section 5 provides that employ-

ees may be required to acknowledge their familiarity

with Company policy (Resp. Appx. 12). Article IV -

Working Conditions, Section 11l(a) provides that no

employee shall be disciplined or discharged without

just cause (Resp. Appx. 14). Article V -— Seniority,

Section 8 provides that seniority shall be terminated

or broken if an employee is discharged for just cause

(Resp. Appx. 17). Article XV — Grievance Procedure

provides for a four step grievance procedure culminat-

ing in final and binding arbitration. (R. 9, 11; Colarik

Declaration at 910; Ex. 1) (Resp. Appx. 18-21). That

grievance procedure is the exclusive method for

resolving disputes relating to the Collective Bargain-

ing Agreement. Article XV, Section 1 provides:

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Should any dispute or grievance arise under

this Agreement, it shall be settled in accor-

dance with the procedure set forth in this Ar-

ticle, and, except as otherwise specifically

provided in this Agreement, this procedure is

the sole and exclusive method of disposing of

such grievances.

Article XV, Section 3 provides:

The arbitrator’s decision shall be issued

within thirty (30) days after the dispute or

grievance is submitted to the arbitrator and

shall be final and binding upon the Em-

ployer, the Union, and the employee or em-

ployees involved.

Pursuant to express authority under the Agree-

ment, Giant Eagle implemented a work rule that

insubordination is grounds for discharge, and a

sexual harassment policy, a mechanism for employees

to complain to Giant Eagle if they believe they were

subjected to sexual harassment, and a procedure

for investigating such claims. (R. 9; Colarik Declara-

tion at 79712, 13 and 14; Exs. 3-4) (Resp. Appx. 23-

32).. The Giant Eagle Policy also provides under

“Disciplinary Action” that, “If it is determined that

inappropriate conduct has been committed by one of

' Pursuant to the Agreement, Matthew A. Craig signed an

Acknowledgment of Familiarity with the Giant Eagle Handbook

with its Policies and Procedures. (R. 9; Colarik Declaration at

4111) (Resp. Appx. 22).

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our employees, we will take such action as is appro-

priate.” (R. 9; Colarik Declaration 712; Ex. 3) (Resp.

Appx. 29-30).

On June 24, 2004, John Brigadier, who was then

seventeen years old, lodged a complaint of sexual

harassment against Plaintiff based upon Craig’s

statement to him, “Do you like girls?” Plaintiff admits

making this statement. (R. 26; Lenson Declaration at

791, 4-5). (R. 26, Arbitrator’s Decision) (Resp. Appx.

52). Pursuant to the Company’s sexual harassment

policy (as well as applicable law), Giant Eagle had the

duty to investigate the claim promptly. (R. 9; Sexual

Harassment Policy; Colarik Declaration filed October

1, 2004; Ex. 3, pp. 61-64) (Resp. Appx. 23-30).

After Defendant John Brigadier lodged the

complaint of sexual harassment and after investigat-

ing that claim and other employee claims of harass-

ment against Craig, the Company removed his title of

“Manager-In-Charge” with no loss of pay. (R. 9; Co-

larik Declaration at ]12).° Subsequently, on June 30,

2004, the Company held a meeting in response to

Plaintiff’s request to discuss the handling of the

complaints against Craig by the Store H.R. Manager,

Jackie Lenson. The meeting was attended by Larane

* Prior to the lawsuit, at no time did either of John’s

parents — David and Sue Brigadier have any contact with

anyone at Giant Eagle regarding Plaintiff. (R. 26; 96 of David

Brigadier and Sue Brigadier Declarations).

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Hulsman, Vice President and Manager of Employee

Relations, and Plaintiff. While Ms. Hulsman was

reviewing the content of the sexual harassment

charge that had been levied against him, Craig stated

that the meeting was over and he started to leave.

Ms. Hulsman said the meeting was not over and

warned him that if he left the meeting, it would

be considered insubordination, a terminable offense.

Despite the warning, Matthew Craig then left the

meeting and was discharged for insubordination. (R.

26, Arbitrator’s Decision, Resp. Appx. 66, R. 9; Co-

larik Declaration at 913; R. 9; Hulsman Declaration

at 13-6).

On July 13, 2004 (before he filed his Complaint

in state court), Craig filed a grievance pursuant to the

CBA challenging his demotion and termination from

employment, and in which he made the following

claims:

e that he was wrongfully discharged for stat-

ing that he might seek legal redress for al-

leged defamatory statements made against

him by other employees of Giant Eagle

(Grievance 99a);

that the manner in which Giant Eagle man-

agement and human resource personnel

handle sexual harassment claims was

wrongful (Grievance ]9c);

that Giant Eagle management should change

its criteria for assessing the legitimacy of

sexual harassment claims; and that Giant

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Eagle improperly “processes” such claims

(Grievance 9c); and

that his termination violated the “just cause”

requirement of the Agreement (Grievance

{ 10).

Craig demanded reinstatement and lost wages. (R. 9;

Colarik Declaration at 115; Ex. 5, 19, 9a, 9b, 9c, 10;

and demand for relief in grievance) (Resp. Appx. 35-

37).

Pursuant to Article XV of the Agreement, the

Union, the Plaintiff, and store management person-

nel met for a grievance meeting on July 27, 2004, and

the Company denied the grievance.’ The parties met

again subsequently, and the Company again denied

the grievance. Arbitration is the final and binding

step under the exclusive grievance machinery to

resolve “any dispute” under the Agreement. (R. 9, 11;

Colarik Declaration at 9916-19; Ex. 1, Article XV,

Sections 1 and 3 CBA, p. 41) (Resp. Appx. 18, 20).

On July 20, 2004, Plaintiff filed his Complaint

which he amended on August 5, 2004. (R. 1; Notice of

Removal; Exs. F and I). In his First Amended Com-

plaint (“FAC”) (Pet. Appx. 14-30), Plaintiff alleges

that he was discharged from Giant Eagle on July 1,

2004 (R. 1; FAC, 911); that up until June 25, 2004, he

had never been subjected to disciplinary action by

* At this meeting, Plaintiff modified the grievance to delete

all claims other than the contention he was discharged without

just cause. (R. 9; Colarik Declaration; Ex. 8).

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Giant Eagle (FAC, 912); that he is currently appeal-

ing his discharge and other alleged contractual viola-

tions which are subject to the Collective Bargaining

Agreement between Defendant Giant Eagle and Local

880 (FAC, 116); and that Defendant Lenson, Human

Resources Manager, upon learning of unsubstanti-

ated allegations made against Plaintiff by employee

John Brigadier and his parents Sue and David Briga-

dier, in the scope of her employment, “perpetuated

{sic} the defamatory allegations against Plaintiff.”

(FAC, 9937-39). Plaintiff lodged similar allegations

against Defendant Lenson for slander in connection

with publication of accusations of sexual harassment.

(FAC, 1943-46). Plaintiff also alleged that at the

same time Lenson published the sexual harassment

claims against Craig that she also orally accused him

of voyeurism. (FAC, 948-50). Plaintiff further alleges

that John Brigadier defamed him by accusing him of

sexual harassment (FAC, 9917-23); that David and

Sue Brigadier (John’s parents) defamed him (FAC,

1924-34); that John Brigadier tortiously interfered

with his employment/contractual relationship result-

ing in Plaintiff’s demotion and discharge by Giant

Eagle (FAC, 163-65); that David and Sue Brigadier

tortiously interfered with employment/contractual

relations resulting in Plaintiff’s demotion and dis-

charge by Giant Eagle (FAC, 1166-69).

Plaintiff further alleges that Defendant Giant

Eagle ratified and condoned Lenson’s alleged slan-

derous and libelous actions (FAC, 952-54) and that

the alleged defamation caused injury in the form of

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ridicule and degradation of his reputation which has

in turn resulted in his demotion and loss of employ-

ment. (FAC, 9975-77). Craig further alleges that the

concerted actions of the Brigadiers, Lenson, and

employees of Giant Eagle have caused personal,

professional, and financial injury to Plaintiff, includ-

ing his demotion and subsequent discharge by Defen-

dant Giant Eagle. (FAC, 178-80). All fourteen of the

allegations in the complaint allege calculation to

injure Plaintiff’s contractual relationship with Giant

Eagle and/or that Plaintiff suffered demotion, loss of

employment, or discharge by Giant Eagle. (FAC,

19122, 29, 33, 40, 45, 49, 57, 61, 65, 69, 74, 75-77, 78-

80).

On March 25, 2005, Plaintiff’s grievance was

heard in an arbitration hearing. On June 22, 2005,

the Arbitrator issued her holding that Plaintiff

was discharged for just cause (R. 26; Arbitrator’s

Decision, Resp. Appx. 69), that much of his testimony

was not credible (R. 26; Arbitrator’s Decision, Resp.

Appx. 64-65,69), that he violated an explicit instruc-

tion and was guilty of insubordination (R. 26; Arbitra-

tor’s Decision, Resp. Appx. 66), that he would not

benefit from progressive discipline (R. 26; Arbitrator’s

* Petitioner does not describe these multiple references to

demotion, loss of employment and discharge in his description of

the facts at page 5 of his petition. Moreover, contrary to Peti-

tioner’s assertions, he does allege discharge claims against

Giant Eagle. See FAC, 75-77, alleging that Giant Eagle’s actions

resulted in loss of his employment.

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Decision, Resp. Appx. 67-68), that his act of direct

insubordination was very serious and interfered with

the Company’s business purpose of counseling him

(R. 26; Arbitrator’s Decision, Resp. Appx. 68), and

that the Plaintiff had turned a deaf ear to all efforts

to critique him (R. 26; Arbitrator’s Decision, Resp.

Appx. 67-68).

REASONS WHY THE PETITION

SHOULD BE DENIED

I. Plaintiff’s Claims Are Completely Preempted

This is a routine “hybrid §301 action” in which

Plaintiff seeks to evade an arbitration decision up-

holding his discharge for insubordination through

artful pleading of purported state law claims. How-

ever, as the courts below properly recognized, his

claims are completely preempted.

This Court has long recognized the broad pre-

emptive powers of §301. See Avco Corp. v. Aero Lodge

735, 390 U.S. 557, 558-560 (1968) (plaintiff’s action

for breach of collective bargaining agreement arose

under §301 and was removable even though the

complaint did not mention federal law and appeared

to plead an adequate claim under state contract law),

as described in Livadas v. Bradshaw, 512 U.S. 107,

° Section 301 of the Labor Management Relations Act, 29

U.S.C. §185 (hereinafter referred to as “$301”), see Reed v.

United Transportation Union, 488 U.S. 319, 329-330 (1989).

12

122 n.16 (1994). See also Beneficial National Bank v.

Anderson, 539 U.S. 1, 8 (2003) (“When the federal

statute completely pre-empts the state law cause of

action, a claim which comes within the scope of that

cause of action, even if pleaded in terms of state law,

is in reality based on federal law.”); Caterpillar, Inc. v.

Williams, 482 U.S. 386, 393 (1997) (“On occasion, the

Court has concluded that the preemptive force of a

statute is so ‘extraordinary’ that it ‘converts an ordi-

nary state common-law complaint into one stating a

federal claim for purposes of the well pleaded com-

plaint rule.’” (citation omitted)); Franchise Tax Bd. Of

Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463

U.S. 1, 23-24 (1983) (§301 has an unusually powerful

preemptive force); and Lingle v. Norge Div. of Magic

Chef, Inc., 486 U.S. 399, 404 n.3 (1988) (“... issues

raised in suits of a kind covered by §301 to be decided

according to the precepts of federal labor policy”).

In Allis-Chalmers v. Lueck, 471 U.S. 202, 213,

220 (1985), this Court held that claims are preempted

when they are “inextricably intertwined with consid-

eration of the terms of the labor contract” or are

“substantially dependent” on it. There, the plaintiff

alleged bad faith processing of an insurance claim

under state law, but the Court held no matter how

labeled, the claim was for a breach of a collective

bargaining agreement. “[A]ny other result would

elevate form over substance.” Allis-Chalmers, 471 U.S.

at 211-213. In Electrical Workers v. Hechler, 481 U.S.

851, 859 n.3 (1987), this Court reaffirmed that §301

governs claims founded directly on rights created by

18

collective bargaining agreements, and also claims

“substantially dependent on analysis of a collective

bargaining agreement,” citing Allis-Chalmers, 471

U.S. at 220. See also Lingle, 486 U.S. at 410.° In

Lingle, the Court went on to say that, “Today’s deci-

sion should make clear that interpretation of collec-

tive bargaining agreements remains firmly in the

arbitral realm; judges can determine questions of

state law involving labor management relations only

if such questions do not require construing collective

bargaining agreements.” Lingle, 486 U.S. at 411.

Similarly, in Hawaiian Airlines, Inc. v. Norris, 512

U.S. 246, 261 (1994), the Court once again affirmed

the complete preemption doctrine holding, “[this

Court has] recognized that where the resolution of a

state-law claim depends on an interpretation of the

CBA, the claim is preempted.” (citing Lingle, 486 U.S.

at 405-406, Allis-Chalmers, and Teamsters v. Lucas

Flour Co., 369 U.S. 95 (1962)).

Applying these basic principles, it is apparent

that the District Court and the Court of Appeals

correctly determined that Plaintiff’s claims are

* Petitioner acknowledges at page 14 of his Petition that the

complete preemption doctrine covers complaints asserting rights

created by a collective bargaining agreement or which allege

“claims substantially dependent on CBA terms.” Thus, he

misstates the law when he asserts at page 13 of his Petition

that, “Where adjudication of a state-law claim does not abso-

lutely require interpretation of the meaning of a CBA term, the

claim is ‘independent’ of the CBA and is not subject to LMRA

preemption.”

14

completely preempted no matter how labeled. Plain-

tiff’s claims are in reality claims for wrongful dis-

charge and demotion which require interpretation of

the Agreement. Plaintiff’s Complaint is replete with

references to demotion, loss of employment, tortious

interference with his contract, and discharge — all of

which are governed by the terms of the CBA. Indeed,

Plaintiff himself recognized that the purported state

law claims that he now asserts in this case are inter-

twined with the collective bargaining agreement

when he incorporated those same claims in his initial

grievance challenging his discharge stating, “The

following statements are made pursuant to the griev-

ance procedure contained in Article XV of the collec-

tive bargaining agreement.” (Resp. Appx. 35-40).

More particularly, all of Plaintiff’s claims —

which are variously styled as defamation, tortious

interference, and conspiracies to defame and tor-

tiously interfere — allege that Defendant’s actions

resulted in his discharge and loss of employment or

injury to his contractual relationship with Giant

Eagle. Those allegations necessarily require the

Court to examine the causal connections, if any,

between the alleged actions and his discharge. In

order to conduct that examination, the Court must

necessarily scrutinize the reasons for his discharge

and their sufficiency under the CBA. In addition, this

Court must determine the appropriate effect of

the outcome of the grievance and arbitration proce-

dure, and in particular the controlling impact of the

Arbitrator’s decision that Plaintiff was properly

15

discharged for his own insubordination, and not due

to any of the actions of Defendants who he alleges

accused him of sexual harassment. In other words,

the Court must review the standards for discharge

under the CBA, the policies issued pursuant to the

CBA, the sufficiency of the reason for Plaintiff’s

discharge under those policies and the CBA, the scope

of the grievance and arbitration procedure under the

CBA, and the impact of an arbitrator’s decision

reached under that CBA. Plaintiff’s claims are thus

hopelessly and “inextricably intertwined” with the

CBA.

In addition, each of the state law theories ad-

vanced by Plaintiff to attack his discharge are clearly

preempted because the elements he must prove are

intertwined with the CBA. As to his defamation claim

concerning alleged reports that he had engaged in

sexual harassment, he must prove “an unprivileged

publication to a third party,” and “fault amounting to

at least negligence on the part of the publisher.”

Akron-Canton Waste Oil v. Safety Kleen Oil Servs.

Inc., 81 Ohio App. 3d 591, 601, 611 N.E.2d 955, 962

(9th Dist. 1992); Lawson v. AK Steel, 121 Ohio App.

3d 251, 256, 699 N.E.2d 951, 954 (1997). In order to

evaluate these elements, the Court must interpret

the Company’s right under the CBA to implement the

sexual harassment policy, the reasonableness of that

policy, and the Defendants’ application of that policy

to determine whether any of the alleged reports were

“unprivileged” and at “fault.”

16

Similarly, with respect to Plaintiff’s claims of

tortious interference with contract, he must under

Ohio law prove breach of the underlying contract.

Kenty v. Transamerica Premium Ins. Co., 72 Ohio

St.3d 415, 650 N.E.2d 863, 864 (1995).’ Here, the

underlying contract is the CBA, and the Court must

obviously interpret its terms to determine whether or

not it has been breached — just as the Arbitrator has

already done. See Fox v. Parker Hannifin Corp., 914

F.2d 795 (6th Cir. 1990) (holding that tortious inter-

ference with contract claims are preempted if breach

of contract is an essential element of the claim under

state law.) Therefore, this claim is plainly preempted.

Plaintiff’s attempts to avoid this manifest pre-

emption by instead trying to rely upon interference

with business relations fails for at least two reasons.

First, the “business relations” involved here are

governed by and set forth in the CBA, and the claim

is therefore preempted. Second, under Ohio law, the

tort of interference with business relations does not

lie when the business relations have already been

reduced to a contract: “The main distinction between

tortious interference with a contractual relationship

and tortious interference with a business relationship

is that interference with a business relationship

includes intentional interference with prospective

" Kenty is the decision of the Ohio Supreme Court establish-

ing the tort of interference with contract in Ohio. Yet Plaintiff

has carefully avoided citing it in his Petition to this Court. See

Petition at 19 n.6.

17

contractual relations not yet reduced to a contract.”

Diamond Wine & Spirits, Inc. v. Dayton Heidelberg

Distributing Co., Inc., 148 Ohio App.3d 596, 604, 774

N.E.2d 775, 780-781 (3d Dist. 2002). Therefore,

Plaintiff cannot escape the need to prove breach of

the CBA and preemption by relabeling his tortious

interference with contract claims as one for interfer-

ence with business relations.

Plaintiff’s conspiracy theories are not independ-

ent causes of action but are merely derivative of his

claims for defamation and interference with contract.

Under Ohio law, “a conspiracy cannot be made the

subject of a civil action unless something is done

which, without the conspiracy, would give a right of

action.” Minarik v. Nagy, 8 Ohio App.2d 194, 195, 193

N.E.2d 280, 281 (8th Dist. 1963). Indeed, Plaintiff

captioned those claims as “Civil Conspiracy to De-

fame” and “Civil Conspiracy to Tortiously Interfere

with Employment/Contractual Relationship.” There-

fore, these conspiracy claims are preempted for the

same reasons as his basic tort claims.

Finally, Plaintiff is simply wrong in his conde-

scending assertion that claims against third parties

cannot be preempted: “The notion that the LMRA

cannot preempt a claim against a defendant where

the defendant is not a party to a CBA should not

come as a difficult concept.” (Petition at 30). Indeed,

the very case he cites in support of that proposition

holds precisely the opposite. In Intl Union, United

Mine Workers of America v. Covenant Coal Corp., 997

F.2d 895, 899 (4th Cir. 1992), the Court held that a

18

claim against a non-signatory to a collective bargain-

ing agreement for interference with contract is pre-

empted where the state law requires a breach or

termination of the contract as an element of the

claim. Similarly, in Kimbro v. Pepsico, 215 F.3d 723,

727 (7th Cir. 2000), Judge Posner noted that state

claims against third parties that require interpreta-

tion of collective bargaining agreements are pre-

empted. Any other rule would suddenly allow

collective bargaining agreements to be interpreted in

state courts rather than in labor arbitration. There-

fore, there is nothing “difficult” or unusual about the

concept that such claims are preempted.

II. Plaintiff Has Mischaracterized the Deci-

sions of the Sixth Circuit Court of Appeals

and Has Not Remotely Established the Ex-

istence of a Conflict Among the Circuits.

In his zeal to seek review, Plaintiff has ignored

the foregoing analysis demonstrating that the ele-

ments he must prove as part of his asserted state law

claims result in preemption because they are inter-

twined with the CBA. Instead, he erects without

foundation extreme mischaracterizations of Sixth

Circuit decisions that correctly applied this Court’s

holdings on §301 preemption. For example, he con-

tends that “in the Sixth Circuit’s view, the mere

existence of a collective bargaining relationship

between the parties is sufficient to entangle any

claims between the parties in the quagmire of LMRA

preemption.” (Petition at 17). He accuses the Sixth

19

Circuit in DeCoe v. General Motors Corp., 32 F.3d 212

(6th Cir. 1994), of “delv[ing] into a CBA to locate

terms that the Defendant might have raised as a

defense, or that might have required interpretation if

the Plaintiff had pled his claims differently, to deter-

mine if a court could resolve the claims without

interpreting CBA terms.” (Petition at 23). Plaintiff

offers no logical basis for these exaggerated claims.

He then attempts to create a split among the Circuits

by citing cases that are merely factually distinct.

(Petition at 20-21, 24). These unsupported mischarac-

terizations of the opinions of the Sixth and other

Circuit Courts of Appeal do not form a basis for

granting review.

Neither the Sixth Circuit’s decision in this case

nor in DeCoe are remotely as radical as Plaintiff

represents to this Court.*® On the contrary, as demon-

strated above, the Court of Appeals decision in this

case is well-founded upon the ample precedent of this

Court in the area of §301 preemption. In both this

case and DeCoe, it was the elements of the state law

* Plaintiff’s attack on DeCoe is unique. A review of

Shepard’s Citations on Lexis-Nexis and Westlaw’s Keycite on

November 12, 2007, indicates that no Circuit Court of Appeals

decision has rejected or even criticized DeCoe which has been

cited by courts at least 123 times. Shepard’s Citations does

incorrectly show a criticism in Valinski v. Edison, 197 Fed. Appx.

403, 2006 U.S. App. LEXIS 20052 (6th Cir. 2006), an unreported

case, but a review of that opinion shows that the Sixth Circuit

was citing DeCoe favorably. Thus, none of the Courts of Appeals

have recognized any divergence in DeCoe or any split among the

Circuits in this area of preemption.

20

claims that a plaintiff must affirmatively prove that

resulted in preemption, and in neither case did the

Court of Appeals “delve into” a collective bargaining

agreement to search for defenses. Indeed, where state

law requires proof of a breach of the CBA (the very

purpose of labor arbitration) as one of those elements

that Plaintiff must prove, it is hardly remarkable

that the Court of Appeals found preemption under

governing Supreme Court law.

Although Plaintiff claims that some sort of con-

flict exists among the Circuits, he makes no real

effort to tell the Court where that conflict might be.

Rather than demonstrating a conflict, he lines up a

number of cases that found preemption against a list

that did not. He then offers the following bald and

unsupported assertion: “The much [sic] of the conflict

between the decisions in the above cases arises from

the construction of conclusions rather than applica-

tion of facts to an exacting legal test.” (Petition at 24).

He thus asks this Court to try to find a conflict among

the Circuits even though he cannot. However, even

casual review of these cases shows that the distinc-

tion between the outcomes is factual: where the

elements of the claims are intertwined with the

collective bargaining agreements, they are pre-

empted; where the claims are independent from the

collective bargaining agreements, they are not. Those

factual distinctions do not form a basis to grant

review, and this Court should not have been asked to

waste its time trying to find a conflict in law when

Plaintiff himself has not been able to locate one.

21

III. This is a Poor Case for Review Because

the Record is Clouded by Plaintiff’s Ef-

forts to Evade the Labor Arbitration Deci-

sion that Found that He Was Properly

Discharged for Insubordination.

Like his careful attempt at artful pleading

around §301, Plaintiff has artfully avoided informing

this Court of the outcome of the arbitration award

concerning his discharge grievance. That award

confirmed that he was properly discharged for insub-

ordination for walking out on a counseling session

concerning his inappropriate behavior. Thus, while

the Plaintiff now invites this Court to resolve in-

vented and non-existent differences among the Cir-

cuits on preemption, the real “quagmire” that

Plaintiff asks the Court to enter is not the doctrine of

preemption, but instead the opportunity to undercut

the half-century old cornerstone of labor law that

rests upon the “Steelworkers Trilogy.” United Steel-

workers v. Enterprise Wheel & Car Corp., 363 US.

593 (1960); United Steelworkers v. Warrior and Gulf,

363 U.S. 574 (1960); and United Steelworkers uv.

American Mfg. Co., 363 U.S. 564 (1960). Any decision

by this Court to grant review would undercut the

sanctity of arbitration as the means of resolving

disputes that arise in the collective bargaining setting

because Plaintiff’s claims are flatly contrary to the

decision of the Arbitrator. She found that he was

properly discharged for his own insubordinate acts,

and not because others complained about his sexual

harassment as he alleges. By granting the Petition in

22

this case, the Court must thus cast aside both the

doctrine of collateral estoppel and the respect so long

accorded by the Supreme Court and Congress to the

labor arbitration process. Plaintiff’s evasive conduct

and arguments are not the fodder for such a colossal

reversal of precedent and national policy.

That national policy favoring labor arbitration

requires that appropriate deference be given to the

labor arbitration decision in this case. See United

Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29,

38 (1987). That deference is in fact controlling here

because all of Plaintiff’s claims are barred by the

doctrine of collateral estoppel (or “issue preclusion”),

the four essential elements of which are as follows: 1)

the issue precluded must be the same one involved in

the prior proceeding; 2) the issue must actually have

been litigated in the prior proceeding; 3) determina-

tion of the issue must have been a critical and neces-

sary part of the decision in the prior proceeding; and

4) the prior forum must have provided the party

against whom estoppel is asserted a full and fair

opportunity to litigate the issue. N.L.R.B. v. Master

Slack and/or Master Trousers Corp., 773 F.2d 77, 81

(6th Cir. 1985), quoted in Central Transport, Inc. v.

Four Phase Systems, Inc., 936 F.2d 256, 259 (6th Cir.

1991). Here, the Arbitrator found that Plaintiff was

properly terminated for violation of the rule against

insubordination. (Resp. Appx. 66, 69). The reason for

his discharge was in fact litigated before the Arbitra-

tor, its determination was necessary to the outcome,

and Plaintiff had a full and fair opportunity to litigate

23

that issue. Also, it was he who chose to abandon the

other claims in his grievance. (Resp. Appx. 51). There-

fore, he cannot now be heard to claim that the real

reasons for his discharge were the statements and/or

conspiracies of the various Defendants about his

involvement in sexual harassment. Accordingly, all of

his claims are barred.

Moreover, Plaintiff’s attempts to plead and to

argue around the arbitration decision make this case

an extremely poor one for review. The assumed “facts”

upon which Plaintiff rests his arguments are false

and contradict the decision of the Arbitrator and the

actual facts underlying this case. The Arbitrator’s

decision confirms that his discharge was caused by

his own insubordination, yet his Complaint alleges

that it was caused by the statements of others con-

cerning his sexual harassment. Thus, Plaintiff’s

arguments rely upon a confused factual record that

cannot withstand scrutiny and cannot be distilled for

the purposes of review. This Court’s decisions from

the Steelworkers Trilogy, Misco, and the many deci-

sions on preemption already provide ample testimony

to the deference to be accorded to labor arbitration

and preemption, and an additional opinion based

upon this ambiguous and untidy record is unlikely to

offer further refinement or guidance on these land-

mark principles of federal labor law.

¢

24

CONCLUSION

There is no reason why this Court should grant

the Petition for Writ of Certiorari in this case. In its

unpublished opinion, the Sixth Circuit Court of

Appeals merely applied well-settled law in concluding

that Plaintiff’s collateral attack on the arbitration

award against him is preempted under §301. That

decision does not conflict with any decision of this

Court or any other Court of Appeals. Plaintiff has

identified no conflict among the Courts of Appeals on

the subject of §301 preemption, nor is there any

question of federal law presented in this case that has

not already been decided by this Court. Accordingly,

there is no basis upon which to grant the Petition in

this routine §301 action.

Respectfully submitted,

FRANK W. Buck (Ohio 0017864)

(Counsel of Record)

ROBERT M. WOLFF (Ohio 0006845)

Mark V. WEBBER (Ohio 0007544)

Littler Mendelson

1100 Superior Avenue, 20th Floor

Cleveland, OH 44114

Phone: (216) 696-7600

Facsimile: (216) 696-2038

fbuck@littler.com

rwolff@littler.com

mvwebber@litter.com

November 21, 2007 Attorneys for Respondents

APPENDIX EXHIBITS

Page

APPENDIX A

BIATUTES AND RULES ic ccccccsssccescccessesecesvevecses App. 1

APPENDIX B

COLLECTIVE BARGAINING AGREEMENT .. App. 10

APPENDIX C

SEXUAL HARASSMENT POLICY AND WORK

RULES AND PETITIONER’S ACKNOWL-

EDGEMENT OF RECEIPT .........cccccccceeeeoees App. 22

APPENDIX D

PETITIONER'S INITIAL GRIEVANCE.......... App. 34

APPENDIX E

SUMMARY OF PERTINENT COLLECTIVE

BARGAINING AGREEMENT, SEXUAL

HARASSMENT POLICY, AND WORK

RULE PROVISIONS ....ccs.ccscssessescsessetseeeseeeees App. 41

APPENDIX F

ARBITRATION DECISION |... eee App. 50

APPENDIX A - STATUTES AND RULES

29 USC § 185(a)

28 USC § 1331

28 USC § 1441 ©

28 USC § 1446

Supreme Court Rule 10

Federal Rule of Civil Procedure 26(d)

App. 1

§ 185. Suits by and against labor organizations

(a) Venue, amount, and citizenship

Suits for violation of contracts between an em-

ployer and a labor organization representing employ-

ees in an industry affecting commerce as defined in

this chapter, or between any such labor organizations,

may be brought in any district court of the United

States having jurisdiction of the parties, without

respect to the amount in controversy or without

regard to the citizenship of the parties.

§ 1331. Federal question

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution,

laws, or treaties of the United States.

§ 1441... Actions removable generally

(a) Except as otherwise expressly provided by

Act of Congress, any civil action brought in a State

court of which the district courts of the United

States have original jurisdiction, may be removed by

the defendant or the defendants, to the district court

of the United States for the district and division

App. 2

embracing the place where such action is pending.

For purposes of removal under this chapter, the

citizenship of defendants sued under fictitious names

shall be disregarded.

(b) Any civil action of which the district courts

have original jurisdiction founded on a claim or right

arising under the Constitution, treaties or laws of the

United States shall be removable without regard to

the citizenship or residence of the parties. Any other

such action shall be removable only if none of the

parties in interest properly joined and served as

defendants is a citizen of the State in which such

action is brought.

(c) Whenever a separate and independent claim

or cause of action within the jurisdiction conferred by

section 1331 of this title is joined with one or more

otherwise non-removable claims or causes of action,

the entire case may be removed and the district court

may determine all issues therein, or, in its discretion,

may remand all matters in which State law predomi-

nates.

(d) Any civil action brought in a State court

against a foreign state as defined in section 1603(a) of

this title may be removed by the foreign state to the

district court of the United States for the district and

division embracing the place where such action is

pending. Upon removal the action shall be tried by

the court without jury. Where removal is based upon

this subsection, the time limitations of section

App. 3

1446(b) of this chapter may be enlarged at any time

for cause shown.

(e(1) Notwithstanding the provisions of subsec-

tion (b) of this section, a defendant in a civil action in

a State court may remove the action to the district

court of the United States for the district and division

embracing the place where the action is pending if —

(A) the action could have been brought in a

United States district court under section 1369 of

this title; or

(B) the defendant is a party to an action

which is or could have been brought, in whole or

in part, under section 1369 in a United States

district court and arises from the same accident

as the action in State court, even if the action to

be removed could not have been brought in a dis-

trict court as an original matter.

The removal of an action under this subsection shall

be made in accordance with section 1446 of this title,

except that a notice of removal may also be filed

before trial of the action in State court within 30 days

after the data on which the defendant first becomes a

party to an action under section 1369 in a United

States district court that arises from the same acci-

dent as the action in State court, or at a later time

with leave of the district court.

(2) Whenever an action is removed under this

sub-section and the district court to which it is re-

moved or transferred under section 1407(j) has made

App. 4

a liability determination requiring further proceed-

ings as to damages, the district court shall remand

the action to the State court from which it had been

removed for the determination of damages, unless the

court finds that, for the convenience of parties and

witnesses and in the interest of justice, the action

should be retained for the determination of damages.

(3) Any remand under paragraph (2) shall not

be effective until 60 days after the district court has

issued an order determining liability and has certified

its intention to remand the removed action for the

determination of damages. An appeal with respect to

the liability determination of the district court may

be taken during that 60-day period to the court of

appeals with appellate jurisdiction over, the district

court. In the event a party files such an appeal, the

remand shall not be effective until the appeal has

been finally disposed of. Once the remand has become

effective, the liability determination shall not be

subject to further, review by appeal or otherwise.

(4) Any decision under this subsection concern-

ing remand for the determination of damages shall

not be reviewable by appeal or otherwise.

(5) An action removed under this subsection

shall be deemed to be an action under section 1369

and an action in which jurisdiction is based on section

1369 of this title for purposes of this section and

sections 1407, 1697, and 1785 of this title.

App. 5

(6) Nothing in this subsection shall restrict the

authority of the district court to transfer or dismiss

an action on the ground of inconvenient forum.

(f) The court to which a civil action is removed

under this section is not precluded from hearing and

determining any claim in such civil action because

the State court from which such civil action is re-

moved did not have jurisdiction over that claim.

—_——_—

§ 1446. Procedure for removal

(a) A defendant or defendants desiring to re-

move any civil action or criminal prosecution from a

State court shall file in the district court of the

United States for the district and division within

which such action is pending a notice of removal

signed pursuant to Rule 11 of the Federal Rules of

Civil Procedure and containing a short and plain

statement of the grounds for removal, together with a

copy of all process, pleadings, and orders served upon

such defendant or defendants in such action.

(b) The notice of removal of a civil action or

proceeding shall be filed within thirty days after the

receipt by the defendant, through service or other-

wise, of a copy of the initial pleading setting forth the

claim for relief upon which such action or proceeding

is based, or within thirty days after the service of

summons upon the defendant if such initial pleading

has then been filed in court and is not required to be

served on the defendant, whichever period is shorter.

App. 6

If the case stated by the initial pleading is not

removable, a notice of removal may be filed within

thirty days after receipt by the defendant, through

service or otherwise, of a copy of an amended plead-

ing, motion, order or other paper from which it may

first be ascertained that the case is one which is or

has become removable, except that a case may not be

removed on the basis of jurisdiction conferred by

section 1332 of this title more than 1 year after

commencement of the action.

(c(1) A notice of removal of a criminal prosecu-

tion shall be filed not later than thirty days after the

arraignment in the State court, or at any time before

trial, whichever is earlier, except that for good cause

shown the United States district court may enter an

order granting the defendant or defendants leave to

file the notice at a later time.

(2) A notice of removal of a criminal prosecution

shall include all grounds for such removal. A failure

to state grounds which exist at the time of the filing

of the notice shall constitute a waiver of such

grounds, and a second notice may be filed only on

grounds not existing at the time of the original notice.

For good cause shown, the United States district

court may grant relief from the limitations of this

paragraph.

(3) The filing of a notice of removal of a criminal

prosecution shall not prevent the State court in which

such prosecution is pending from proceeding further,

App. 7

except that a judgment of conviction shail not be

entered unless the prosecution is first remanded.

(4) The United States district court in which

such notice is filed shall examine the notice promptly.

If it clearly appears on the face of the notice and any

exhibits annexed thereto that removal should not be

permitted, the court shall make an order for sum-

mary remand.

(5) If the United States district court does not

order the summary remand of such prosecution, it

shall order an evidentiary hearing to be held

promptly and after such hearing shall make such

disposition of the prosecution as justice shall require.

If the United States district court determines that

removal shall be permitted, it shall so notify the State

court in which prosecution is pending, which shall

proceed no further.

(d) Promptly after the filing of such notice of

removal of a civil action the defendant or defendants

shall give written notice thereof to all adverse parties

and shall file a copy of the notice with the clerk of

such State court, which shall effect the removal and

the State court shall proceed no further unless and

until the case is remanded.

(e) If the defendant or defendants are in actual

custody on process issued by the State court, the

district court shall issue its writ of habeas corpus,

and the marshal shall thereupon take such defendant

or defendants into his custody and deliver a copy of

the writ to the clerk of such State court.

App. 8

(f) With respect to any counterclaim removed to

a district court pursuant to section 337(c) of the Tariff

Act of 1930, the district court shall resolve such

counterclaim in the same manner as an vuriginal

complaint under the Federal Rules of Civil Procedure,

except that the payment of a filing fee shall not be

required in such cases and the counterclaim shall

relate back to the date of the original complaint in the

proceeding before the International Trade Commis-

sion under section 337 of that Act.

oo

Rule 10. Considerations Governing Review on

Certiorari

Review on a writ of certiorari is not a matter of

right, but of judicial discretion. A petition for a writ of

certiorari will be granted only for compelling reasons.

The following, although neither controlling nor fully

measuring the Court’s discretion, indicate the charac-

ter of the reasons the Court considers:

(a) a United States court of appeals has entered

a decision in conflict with the decision of another

United States court of appeals on the same im-

portant matter; has decided an important federal

question in a way that conflicts with a decision

by a state court of last resort; or has so far de-

parted from the accepted and usual course of

judicial proceedings, or sanctioned such a depar-

ture by a lower court, as to call for an exercise of

this Court’s supervisory power;

App. 9

(b) a state court of last resort has decided

an important federal question in a way that con-

flicts with the decision of another state court of

last resort or of a United States court of appeals;

(c) a state court or a United States court of

appeals has decided an important question of fed-

eral law that has not been, but should be, settled

by this Court, or has decided an important fed-

eral question in a way that conflicts with rele-

vant decisions of this Court.

A petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated

rule of law.

FRCP 26(d)

(d) Timing and Sequence of Discovery. Except in

categories of proceedings exempted from _ initial

disclosure under Rule 26(a)(1)(E), or when authorized

under these rules or by order or agreement of the

parties, a party may not seek discovery from any

source before the parties have conferred as required

by Rule 26(f). Unless the court upon motion, for the

convenience of parties and witnesses and in the

interests of justice, orders otherwise, methods of

discovery may be used in any sequence, and the fact

that a party is conducting discovery, whether by

deposition or otherwise, does not operate io delay any

other party’s discovery.

APPENDIX B

EXCERPTS FROM

COLLECTIVE BARGAINING AGREEMENT

App. 10

AGREEMENT BETWEEN

Cleveland Food Industry

Committee (Clerks)

and

United Food & Commercial

Workers Union

Local No. 880

880 UFCW

Effective

September 9, 2002

Expiration

September 11, 2005

James B. Jerele

President

Thomas H. Robertson

Secretary-Treasurer

” Bo

ARTICLE II

Management Rights

In addition to the management rights specified

elsewhere in the Agreement, the management of the

business and the direction of the work force, includ-

ing, but not limited to the right to plan, direct, and

control store operations; to establish merchandising

and pricing policies; to hire, suspend, or discharge for

App. 11

just cause; to assign and allocate work; to transfer

employees because of lack of work or for other legiti-

mate reasons; to study or introduce new or improved

methods or facilities; to establish and maintain

reasonable rules and regulations covering the opera-

tion of the store; and to carry out the ordinary and

customary functions of management are vested

exclusively in the Employer, except to the extent

modified by this Agreement, and provided further,

that the Employer shall not exercise such rights in an

arbitrary or capricious manner.

* *

ARTICLE IV

Working Conditions

Section 1. Head Cashiers and all other Cashiers

shall do all book work on Company premises.

Section 2. No employee shall be required to work in

two (2) stores in the same day, except in case of

permanent transfer, emergency, or mutual consent

between the Employer and employee.

Section 3(a). All employees normally scheduled for

thirty-two (32) hours or more per week shall be given

one (1) week’s notice or one (1) week’s pay in lieu of

notice in the event of a layoff.

Section 3(b). The Employer shall give employees of

a store to be closed two (2) week notice of a store

closing, and the Union shall receive such notification

in advance of the employees, except in the event of an

App. 12

emergency closing or where the Employer lacked

knowledge in sufficient time to give such notice.

Section 4. The Employer shall continue its past

practice on providing employees with work apparel

and will provide rain gear for employees who perform

carry-out service.

Section 5. The Employer may require employees to

initial Employer policy and rules to verify that those

policies and rules have been read and that the em-

ployees are familiar with their contents. Employer

policies and rules which employees are required to

initial shall be posted in each store and furnished to

the Union upon request.

Section 6(a). The Union shall furnish the Em-

ployer orientation kits to be distributed to newly

hired and rehired employees. All completed forms

filled out by new or rehired employees will be for-

warded by the Employer to the Union Office immedi-

ately upon hire. Such forms are self-addressed, and

postage paid by the Union.

Section 6(b). The Employer shall submit to the

Union a list of employee terminations, leaves of

absence, and permanent transfers with each monthly

dues report.

Section 6(c). In January and July of every year,

each Employer shall supply the Union with store

seniority lists of all employees by classification. In

addition, upon request by the Union (not more than

semi-annually), a company-wide seniority list is to be

App. 13

provided which shall include name, date of hire,

store, and classification.

Section 7. Union Representatives shall be allowed

to enter stores to conduct Union business when the

store is open for business or when outside salesmen

are in the store.

Section 8(a). The Employer recognizes the right of

the Union to select a Steward at each store to repre-

sent the employees on grievances concerning the

interpretation or application of this Agreement.

Union Stewards shall be allowed a_ reasonable

amount of time to perform this function during their

regular working hours.

Section 8(b). The Union Steward shall be consid-

ered to have the longest seniority for purposes of

layoff or in the reduction of scheduled hours.

Section 8(c). Providing there is no disruption of the

Employer’s operations of business, Union Stewards

shall be scheduled for the night off to attend Stew-

ards meetings and the regular area meeting.

Section 8(d). Union Stewards who work the day

shift shall have the right to be scheduled the first

available shift within their classification within their

store.

Section 8(e). No Union Steward shall be trans-

ferred, except for incompetency, unless such transfer

is agreed to by the Steward or the Union.

App. 14

Section 8(f). In stores with more than seventy-five

(75) employees in the bargaining unit, the Union may

appoint one (1) Assistant Steward to act as Steward

when the Union Steward is not working. Such assis-

tant shail not be subject to Paragraphs (b), (d), and

(e) of this Section.

Section 8(g). The Employer will pay annually up to

one (1) day’s pay for one Union Steward per store to

attend the Local Union’s Annual Union Steward

Seminar‘(s).

Section 9. All stores shall provide bulletin board

space for Official Union notices signed and approved

by an Officer or Union Representative of the Union.

Section 10. The Union and the Employer agree

that in the hiring or employment of employees there

shall be no discrimination against an employee or

against any applicant for employment because of

race, sex, creed, national origin, age, or disability. It is

also agreed that there shall be no discrimination

against any employees who exercise their right to aid

and assist the Union or make claims under this

Agreement.

Section 11(a). No employee shall be disciplined or

discharged without just cause.

* *

App. 15

ARTICLE V

Seniority

Section 1. Seniority shall be defined as the length

of continuous service of an employee. For a full-time

employee, seniority shall be measured within classifi-

cation on a company-wide basis (unless other areas

are agreed upon between the Union and a Company)

and shall be measured from the employee’s last date

of hire. For a part-time employee, seniority shall be

measured within classification on a store-wide basis

and shall be measured from the employee’s last date

of hire.

Section 2. No rights or privileges shall be lost by

any full-time employee (forty [40] hours per week for

six [6] months) because of the changes in language

from the 1984-1987 Agreement to the language in

this Seniority Article.

Section 3. All new employees shall be on probation

for sixty (60) days, and the Employer shall have

exclusive control over such probationary employees,

including, but not limited to, the right to discipline or

discharge.

Section 4. In regard to layoffs and recalls (rein-

statement after layoff), an employee’s classification

seniority shall be considered along with his or her

experience and ability to perform the available work,

and if all other considerations are reasonably equal,

seniority shall be the controlling factor. Provided,

that notwithstanding anything to the contrary in this

App. 16

Article, temporary layoffs (i.e., not longer than one [1]

week) shall be on a store-wide basis.

Section 5(a). An employee who normally works

thirty-four (34) hours or more per week who suffers a

substantial reduction in his or her normal weekly

schedule for an extended period of time shall have the

right to transfer to another store to displace the least

senior employee who is working thirty-four (34) hours

or more per week.

Section 5(b). For purposes of this Section, the

following definitions shall apply:

1. An employee’s normal weekly schedule shall be

the hours scheduled during the previous eight (8)

weeks, but excluding additional hours that resulted

from vacations, illnesses, holidays, new store open-

ings, and similar circumstances that would temporar-

ily inflate an employee’s schedule.

2. Substantial reductions are reductions of ten (10)

hours or more of a normal weekly schedule.

3. An extended period shall be any period of six (6)

weeks or more.

Section 5(c). No right to transfer may arise under

this Section until the affected employee submits to

the Employer a written request for such transfer and

in order to transfer, the employee must be qualified to

perform the work within the job classification of the

job requested.

App. 17

Section 5(d). If a mistake is made in the imple-

mentation of this Section, the Employer shall not be

liable for any back pay if the mistake is corrected

within two (2) days after receiving notification from

the Union of the mistake.

Section 6. Employees may be transferred for the

business needs of the Employer, but the Employer

shall make no transfers that are discriminatory,

punitive, or arbitrary. When an employee is trans-

ferred to a different store, the Employer shall be

required to make an effort to assign the employee to a

store that is close to his or her home.

Section 7. In cases of temporary transfers for the

benefit of the Employer which involve additional

transportation costs, the employee shall be reim-

bursed for the additional expenses at a rate of thirty-

one cents ($.31) per mile.

Section 8. Seniority shall be terminated or broken

for the following reasons:

a. Voluntary quit;

b. Discharge for cause;

c. Layoff exceeding twelve (12) consecutive

months;

d. Failure to report for work within three (3)

days after receipt of a written recall notice;

e. Reduction from full-time to part-time status

for more than one (1) year (but such an em-

ployee’s part-time seniority shall be meas-

ured from his or her last date of hire).

App. 18

* . .

ARTICLE XV

Grievance Procedure

Section 1. Should any dispute or grievance arise

under this Agreement, it shall be settled in accor-

dance with the procedure set forth in this Article,

and, except as otherwise specifically provided in this

Agreement, this procedure is the sole and exclusive

method of disposing of such grievances.

Step 1.

In order to be considered as a grievance under this

Article, a dispute or grievance shall be submitted to

the Employer in writing within fourteen (14) days

after the occurrence of the incident causing such

dispute or grievance, or within fourteen (14) days

from the date when the employee or Union became

aware or reasonably should have become aware of the

incident or events in question, but in no case more

than one (1) year from the incident or event giving

rise to the dispute.

Step 2.

There shall be an effort on the part of the parties to

settle and resolve any dispute or grievance and the

Employer shall answer all disputes or grievances in

writing within fourteen (14) days after the receipt of

same.

App. 19

Step 3.

If the grievance is not satisfactorily settled in Step 2,

the Union has two (2) weeks from receipt of the Step

2 answer to submit a written appeal to an appropri-

ate management administrative official. A meeting

shall be held between Employer and Union officials

and a final written answer shall be issued by the

Employer within one (1) week of the meeting. Pro-

vided, that the parties may agree to hold additional

Step 3 meetings without loss of rights under this

Article.

Step 4.

In the event that the parties are unable to settle or

resolve a grievance, the Union may refer the griev-

ance to arbitration by requesting the Federal Media-

tion and Conciliation Service or the American

Arbitration Association to submit a panel of arbitra-

tors. Within fourteen (14) days of receipt of the first

panel, the Employer and Union may mutually agree

to request the Agency to submit additional panels of

arbitrators. The arbitrator shall then be selected in

accordance with the Agency’s then applicable rules,

unless the Employer and the Union agree to select

the arbitrator in some other manner.

Section 2. The Union may refer a dispute or griev-

ance which has not been resolved to arbitration on

the forty-fifth (45th) day after the dispute or griev-

ance has been submitted in writing to the Employer

in Step 1, or at any time thereafter. The Union must

App. 20

refer a dispute or grievance to arbitration no later

than thirty (30) days after the last Step 3 meeting is

held.

Section 3. The arbitrators decision shall be issued

within thirty (30) days after the dispute or grievance

is submitted to the arbitrator and shall be final and

binding upon the Employer, the Union, and the

employee or employees involved. The expenses of the

arbitrator shall be borne equally by the Employer and

the Union.

Section 4. -The time limits specified in Section 1

above may be extended by mutual agreement but

shall otherwise be enforced in that the dispute or

grievance shall be decided against any employee or

party failing to observe the time limits.

Section 5. In the event a grievance goes to arbitra-

tion, this Agreement, including any Supplements or

Addenda, shall be the basis on which the arbitrator’s

decision is rendered, and in reaching his or her deci-

sion the arbitrator shall have no authority to amend,

modify, or in any way change its terms.

Section 6. At any step in this grievance proce-

dure, the Executive Board of the Local Union shall

have final authority in respect to any aggrieved

employees covered by this Agreement to decline to

process further a grievance, complaint, disagree-

ment or @ispwte if in the judgment of the Executive

Board sw¢i, @fievance or dispute lacks merit or

justification under the terms of this Agreement, or

has been adjusted or rectified under the terms of

App. 21

this Agreement to the satisfaction of the Union

Executive Board.

Section 7. In the investigation and processing of a

dispute or grievance, the Union and the Employer

shall upon request provide each other all relevant

and pertinent records, papers, and data including the

names of any and all witnesses whose testimony

would have bearing on the grievance, except where a

failure to follow established check-out procedure may

be involved or where the security of the Union and/or

the Employer would be at issue.

* * *

APPENDIX C

SEXUAL HARASSMENT POLICY AND

WORK RULES AND PETITIONER’S

ACKNOWLEDGEMENT OF RECEIPT

App. 22

DEFENDANT?’S EXHIBIT 2

Handbook Acknowledgement Statement

Human Resources Retail -

New Hire Training Program |

Employee Acknowledgement Statement

Description: Acknowledgement of receipt of the

Giant Eagle Employee Handbook and an affirmation

that the New Hire understands that violation of the

Company’s Policies and Procedures can result in

termination.

TO: Giant Eagle

This is to acknowledge that I have received and read

the Giant Eagle Employee Handbook.

It is my understanding that any violation of the

Company’s Policies and Procedures can make me

subject to various disciplinary actions up to, and

including, termination.

I understand that I am expected to, and will, observe

and abide by all amended and additional rules and

regulations.

/s/ Matthew A. Craig 7/29/03

Employee Signature Date

NOTE: This is a signed employee statement. One

copy will be kept in your personnel file.

This booklet is for personal reference and is yours to

keep.

App. 23

DEFENDANT’S EXHIBIT 3

EMPLOYEE HANDBOOK

SEXUAL HARASSMENT POLICY

Summary

Giant Eagle will promote a workplace

that is free of sexual harassment.

Giant Eagle is committed to providing a workplace

free of sexual harassment. Sexual harassment of

employees in the workplace or in other settings in

which employees may find themselves in connection

with their employment is unlawful and will not be

tolerated. Further, any retaliation against an indi-

vidual who has complained about sexual harassment

or retaliation against individuals for cooperating with

an investigation of a sexual harassment complaint is

similarly unlawful and will not be tolerated. To

achieve our goal of providing a workplace free from

sexual harassment, the conduct that is described in

this policy is prohibited. If such conduct does occur, a

procedure to investigate reported incidents has been

established and communicated to employees.

Giant Eagle takes allegations of sexual harassment

seriously and we will respond promptly to complaints

of sexual harassment. Where it is determined that

such inappropriate conduct has occurred, we will act

promptly to eliminate the conduct and impose such

corrective action as is necessary including discipli-

nary action up to, and including, termination.

App. 24

Definition of Sexual Harassment

Sexual harassment includes unwelcome sexual ad-

vances, requests for sexual favors and verbal or

physical conduct of a sexual nature when:

e Submission too rejection of such ad-

vances, requests or conduct is made ei-

ther explicitly or implicitly a term or

condition of employment or a basis for

employment decisions.

Such advances, requests or conduct have

the purpose or effect of unreasonably in-

terfering with an individual’s work per-

formance by creating an intimidating,

hostile, humiliating or sexually offensive

work environment.

Any unwelcome E-mail communication

or viewing, downloading or transmitting

sexually explicit or offensive material

from the Internet also constitutes creat-

ing a hostile work environment.

Under these definitions, direct or implied requests by

a supervisor for sexual favors in exchange for actual

or promised job benefits such as favorable reviews,

salary increases, promotions, increased benefits or

continued employment constitutes sexual harass-

ment.

The legal definition of sexual harassment is broad. In

addition to the above examples, other sexually ori-

ented conduct that is unwelcome and has the effect of

creating a work place environment that is hostile,

offensive, intimidating or humiliating to male or

App. 25

female workers, whether it is intended or not, may

also constitute sexual harassment. While it is not

possible to list all examples of sexual harassment, the

following list contains additional types of conduct,

which, depending upon the totality of the circum-

stances including the severity of the conduct and its

pervasiveness may constitute sexual harassment:

¢ Unwelcome sexual advances — whether

they involve physical touching or not;

e Sexual epithets, jokes, written or oral

references to sexual conduct, gossip re-

garding one’s sex life, commenting on an

individual’s body, commenting about an

individual’s sexual activity, deficiencies

or prowess;

e Displaying sexually suggestive objects,

pictures, cartoons,etc.;

¢ Unwelcome leering, whistling, brushing

against the body, sexual gestures, sug-

gestive or insulting comments; and

e Inquiries into one’s sexual experiences

Retaliation against an individual who has complained

about sexual harassment and retaliation against

individuals for cooperating with an investigation of a

sexual harassment complaint is unlawful and will not

be tolerated.

Complaints of Sexual Harassment

If any employee believes that he or she has been

subjected to sexual harassment, the employee has the

App. 26

right to file a complaint with our organization. This

may be done in writing, or orally, by contacting Ray

Huber, Vice President, Human Resources or anyone

on the list below:

COMPANY PRIMARY CONTACT

PERSON(S)

Aetos Construction Co. | Steve Tassaro, VP; Michele

Reuss, Director, Human

Resources; Marianne Behrens,

Manager, Human Resources;

Ray Huber, VP, Human

Resources

Butler Refrigerated | Larry Baldauf, VP, Distribu-

Meats, Inc. tion; Michele Reuss, Director,

Human Resources; Nathan

Book, Specialist, Human

Resources; Ray Huber, VP,

Human Resources

Giant Eagle, Inc. Ray Huber, VP, Human

Resources; Michele Reuss,

Director, Human Resources;

Marianne Behrens, Manager,

Human Resources

HBC Service Co. Larry Baldauf, VP, Distribu-

tion; Michele Reuss, Director,

Human Resources; Walt

Durr, Manager, Human

Resources; Ray Huber, VP,

Human Resources

App. 27

OK Grocery Larry Baldauf, VP, Distribu-

tion; Michele Reuss, Director,

Human Resources

Pharmacy Randy Heiser, VP, Pharmacy,

Michele Reuss, Director,

Human Resources; Marianne

Behrens, Manager, Human

Resources

Retail Promotions

Michele Reuss, Director,

Human Resources; Marianne

Behrens, Manager, Human

Resources; Ray Huber, VP,

Human Resources

Tamarkin

Larry Baldauf, VP Distribu-

tion; Michele Reuss, Director,

Human Resources; Jeannie

Kieffer, Manager, Human

Resources; Ray Huber, VP,

Human Resources

American Seaway

Foods

Larry Baldauf, VP Distribu-

tion; Michele Reuss, Director,

Human Resources; Kelly

McCormick, Manager, Hu-

man Resources, Ray Huber,

VP, Human Resources

Giant Eagle Retail —

COD

Jean Colarik, Director, Hu-

man Resources; Larane

Hulsman, Manager, Em-

ployee Relations; Ray Huber,

VP, Human Resources

App. 28

Giant Eagle Retail— | Dale Giovengo, Director,

POD Human Resources; Karen

Priore, Manager, Employee &

Labor Relations; Bruce Fox,

Manager, Employee & Labor

Relations; Ray Huber, VP,

Human Resources

Giant Eagle Retail- | Dale Giovengo, Director,

COL Human Resources; Karen

Priore, Manager, Employee &

Labor Relations; Ray Huber,

VP, Human Resources

Giant Eagle Retail—- | Dale Giovengo, Director,

MOD Human Resources; Kelly Lee,

Manager, Employee & Labor

Relations; Ray Huber, VP,

Human Resources

These persons are also available to discuss any con-

cerns you may have and to provide information to you

about our policy on sexual harassment and our com-

plaint process. If for some reason you believe you

cannot contact any of the above listed persons, please

contact any officer of Giant Eagle.

Sexual Harassment Investigation

When we receive the complaint, we will promptly

investigate it in a fair and expeditious manner. The

Human Resource Department will conduct all inves-

tigations of sexual harassment. The investigation will

be conducted to maintain confidentiality to the extent

App. 29

practicable. Our investigation will include a private

interview with the person filing the complaint and

with witnesses. We will also interview the person

alleged to have committed sexual harassment. When

we have completed our investigation, we will, to the

extent appropriate, inform the person filing the

complaint and the person alleged to have committed

the conduct of the results of the investigation. It may

be necessary to suspend an employee pending inves-

tigation.

If it is determined that inappropriate conduct has

occurred, we will act promptly to eliminate the of-

fending conduct and where it is appropriate we will

also impose disciplinary action.

Giant Eagle will not tolerate job-related sexual har-

assment. Furthermore, any form of sexual harass-

ment must not be sanctioned or accepted by any

employee of the Company. All employees are respon-

sible for maintaining a workplace free from sexual

harassment. Managers, supervisors and employees

are obligated to promptly report incidents of sexual

harassment to Ray Huber, Vice President Human

Resources or your Human Resource Manager.

Disciplinary Action

If it is determined that inappropriate conduct has

been committed by one of our employees, we will take

such action as is appropriate. Such action may range

from counseling to termination from employment and

may include such other forms of disciplinary action as

App. 30

we deem appropriate. This policy sets forth our goal

of promoting a workplace that is free of sexual har-

assment. The policy is not designed or intended to

limit our authority to discipline or take remedial

action for workplace conduct, which we deem unac-

ceptable, regardless of whether that conduct satisfies

the definition of sexual harassment.

WORK RULES/PROHIBITED ACTS POLICY

Summary

The orderly and efficient operation of the

store requires that employees maintain proper

standards of personal conduct at all times.

Proper standards of conduct are necessary to

protect the health and safety of all employees,

to maintain uninterrupted production and to

protect the Company’s goodwill and property.

Giant Eagle sets forth is established work rules

which, together with all other proper standards of

conduct, employees are required to obey.

I. Any of the following may subject an employee to

Company disciplinary action, up to, and including,

termination.

1. Customer complaints.

Careless work and/or cash shortage.

2

3. Tardiness or absenteeism.

4

Smoking or consumption of food or drink

other than at authorized time (food pur-

chases must have sales slip attached).

App. 31

Practical jokes or horseplay.

6. Disobeying safety instructions.

7. Failure to report injuries immediately to

store management.

8. Failure to punch his/her own time card

at starting time, lunch, breaks and quit-

ting time.

9. Creating or contributing to unsanitary

conditions, poor housekeeping or failure

to comply with county, state and USDA

rules and regulations.

10. Failure to cooperate with and/or submit

to security checks on Company premises.

11. Unauthorized solicitation of employees

or unauthorized distribution of litera-

ture

II]. The following is a partial list of violations that

may be cause for immediate termination.

1. Misuse or unauthorized removal or ap-

propriation of property belonging to the

Company, another employee or customer.

2. Off-duty drug trafficking.

3. Falsifying any reports or records or pro-

viding false information, including time

records and employment applications.

4. Indecent behavior while on store prem-

ises.

10.

11.

12.

13,

App. 32

(a) Drinking or possession of intoxicat-

ing liquor on Company property.

(b) Bringing in, having in possession,

using, transferring or selling any

form of narcotic and/or drug on

Company premises at any time.

(c) Under the influence of alcohol or

drugs during work shift.

Abuse or destruction of Company, cus-

tomers’ or fellow employees’ property.

Gross discourtesy or use of profanity to-

ward customers or employees. -

Presence of any unauthorized personnel

in the pharmacy area or Eagle’s Nest

area.

Coupon stuffing: Improper use of cou-

pons including Catalina coupons and

coupons designed or intended for an-

other person.

Use of your personal Giant Eagle Advan-

tage Card® for customers’ purchases.

Violation of the federal, state or local

guidelines in regard to the sale of alco-

holic beverages, tobacco or lottery sales.

Failure to accurately register sales.

Gross insubordination or refusal to fol-

low supervisor’s orders.

14,

15.

16.

at

App. 33

Provoking, instigating or participating

in any act or violence, fighting or brawl-

ing.

Unauthorized stopping of work before

scheduled lunch period or scheduled

quitting time.

Leaving work without the permission of

your manager.

Sleeping on duty.

APPENDIX D

PETITIONER’S INITIAL GRIEVANCE

App. 34

[LOGO] 880 UFCW

United Food & Commercial Workers

Union Local 880

[Names And Addresses Omitted In Printing]

July 13, 2004

Ms. Jean Colarik

Giant Eagle — Cleveland Division

5300 Richmond Road

Bedford Heights, Ohio 44146

RE: MATTHEW CRAIG

Dear Ms. Colarik:

Enclosed is a copy of a grievance from the above-

captioned member. It is self-explanatory.

Please respond, upon receipt of this letter, in

order to resolve this matter.

Very truly yours,

UFCW LOCAL 880

/s/ Samuel J. Barber

Samuel J. Barber

Union Representative

SJB/kac

Enclosure

App. 35

Matthew A. Craig

11325 Cheyenne Trail, Suite 302

Parma Heights, OH 44130

Home Phone 440-888-2280

July 12, 2004

Jean Colarik, Human Resources Director

Giant Eagle, Inc.

5300 Richmond Road

Bedford Heights, OH 44146

GRIEVANCE UNDER COLLECTIVE BARGAINING

AGREEMENT

The following statements are made pursuant to the

grievance procedure contained in Article XV of the

Collective Bargaining Agreement (hereinafter “the

Agreement”) by and between Cleveland Food Indus-

try Committee (hereinafter “the Committee”) and

United Food & Commercial Workers Union Local No.

880 (hereinafter “the Union”), effective September 9,

2002, and expiring September 11, 2005:

Background Facts

1. Riser Foods Company, doing business as Giant

Eagle, Inc. (hereinafter “GE”), is a member of the

Committee and is subject to the Agreement.

2. Matthew A. Craig (hereinafter “Employee”) was

hired as a Part-Time Grocery Clerk by Giant Ea-

gle #0185, Middleburg Heights, Ohio (hereinafter

“Employer”), and began work on July 27, 2003.

App. 36

Employee was regularly employed by Employer

until his termination on July 1, 2004.

Upon hire, Employee entered into the Agreement

and became subject to the provisions thereof.

Up until the time of the occurrence of the events

that have caused this formal grievance to be

brought, Employee had never been subjected to

disciplinary action by Employer.

During the term of his employ, Employee re-

ceived several awards and pay increases for ser-

vice to the Employer beyond that which was

required.

During the later part of March, 2004, Employee

was promoted to the “Manager in Charge” posi-

tion and regularly served as closing manager for

the store until his demotion on June 25, 2004.

Employee received a pay increase soon after and

corresponding to being promoted to the “Manager

in Charge” position.

Grievances

On July 1, 2004, Employee was wrongfully

discharged in violation of public policy when Em-

ployee was discharged:

a. After having suggested on the previous day

during a voluntary meeting with “arane

Hulsman, Manager of Employee Relations/

Recruiting, that he might seek lega! redress

for defamatory statements made against

Employee by other employees of GE and;

App. 37

b. After having outwardly manifested an intent

before Dennis Hummel, Store Manager of

store #0185 ‘hereinafter “Hummel’), Jackie

Lenson, Human Resources Manager for store

#0185 (hereinafter “Jackie”), and a union

steward on June 28, 2004, to file sexual har-

assment charges against Hummel and other

management of store #0185 based on man-

agement’s regular use and condolence of

sexually explicit profanity, jokes, and other

language and;

c. After having complained of the current man-

ner in which GE management and human

resource personnel handle sexual harass-

ment claims made against employees and

advocating the need for GE management to

change its criteria for assessing the legiti-

macy of sexual harassment claims as well as

the manner in which GE “processes” such

claims so that countless other employees

would also not be made to defend unwar-

ranted claims nor be unfairly condemned by

GE management or human resource person-

nel prior to the conclusion of an investigation

into a claim having merit. Employee’s asser-

tions regarding these unacceptable employ-

ment conditions were made to human

resource personnel, Hummel, and a union

steward on several occasions, including June

25, 2004, June 28, 2004, and June 30, 2004.

10. Termination of Employee on July 1, 2004, was

also in violation of Article IV, section 11(a) of the

Agreement and in violation of GE’s own policy

regarding termination for just cause.

11.

12.

13.

14.

15.

16.

17.

App. 38

Employer has failed to provide Employee with

one week notice or wages equal to one week’s pay

upon his termination, in violation of Article V,

section 13 of the Agreement.

Employer has refused to provide Employee, in

writing, the basis for Employee’s deniotion from

the “Manager in Charge” position on June 25,

2004.

Employer has continually refused to allow Em-

ployee to examine written statements by other

employees who have made allegations against

Employee which have materially and adversely

affected Employee’s status and reputation.

Jackie refused to accept Employee’s oral claim of

sexual harassment by management of store

#0185, on June 28, 2004, in violation of GE’s own

sexual harassment policy.

Employer has failed to remit earned wages to

Employee for weeks ending June 26, 2004, and

July 3, 2004.

Employer has failed to’ remit mileage reim-

bursement for expenses incurred by Employee on

June 30, 2004, when traveling from Employer to

Giant Eagle offices located in Bedford Heights,

Ohio, for a scheduled meeting.

Employer told Employee that Employee wouid

only be permitted a half an hour lunch break

when serving as “Manager in Charge”, in viola-

tion of Article III, section 8 of the Agreement.

App. 39

18. Employer has continuously failed to post work

schedule by 1:30 P.M. on Friday as required by

Article III, section 13 of the Agreement.

19. Employer has violated of Article III, section 9 of

the Agreement on several occasions as it concerns

the Employee.

Demand for Relief

WHEREFORE, Employee demands the following:

a. Reinstatement of his employment position.

Lost wages incurred by Employee for weeks

ending July 3, 2004, and July 10, 2004, as a re-

sult of the violations set forth in paragraphs 9

and 10.

c. Wages to which Employee is entitled as set forth

in paragraph 11.

d. The granting of documentation requests made by

Employee but which have previously been re-

jected, as set forth in paragraphs 12 and 13.

e. Remittance of wages earned by Employee for

weeks ending June 26, 2004, and July 3, 2004.

f. Remittance of mileage reimbursement for ex-

penses incurred by Employee as set forth in para-

graph 16.

g. Any other relief that is fair and just.

App. 40

MATTHEW A. CRAIG

/s/ Matthew A. Craig

cc: Sam Barber, UFCW Union Local 880, 2828

Euclid Avenue, Cleveland, OH 44115

APPENDIX E

SUMMARY OF PERTINENT COLLECTIVE

BARGAINING AGREEMENT, SEXUAL

HARASSMENT POLICY, AND

WORK RULE PROVISIONS

App. 41

Article II, Manz: ement Rights

In addition to the management rights specified

elsewhere in the Agreement, the management of the

business and the direction of the work force, includ-

ing, but not limited to the right to plan, direct, and

control store operations; to establish merchandising

and pricing policies; to hire, suspend, or discharge for

just cause; to assign and allocate work; to transfer

employees because of lack of work or for other legiti-

mate reasons; to study or introduce new or improved

methods or facilities; to establish and maintain

reasonable rules and regulations covering the opera-

tion of the store; and to carry out the ordinary and

customary functions of management are vested

exclusively in the Employer, except to the extent

modified by this Agreement, and provided further,

that the Employer shall not exercise such rights in an

arbitrary or capricious manner.

Article IV, Working Conditions

Section 5.

The Employer may require employees to initial

Employer policy and rules to verify that those policies

and rules have been read and that the employees are.

familiar with their contents. Employer policies and

rules which employees are required to initial shall be

posted in each store and furnished to the Union upon

request.

App. 42

Section 11l(a).

No employee shall be disciplined or discharged with-

out just cause.

Article V, Seniority

Section 8.

Seniority shall be terminated or broken for the follow-

ing reasons:

a. Voluntary quit;

b. Discharge for cause;

c. Layoff exceeding twelve (12) consecutive

months;

d. Failure to report for work within three (3)

days after receipt of a written recall notice;

e. Reduction from full-time to part-time status

for more than one (1) year (but such an em-

ployee’s part-time seniority shall be meas-

ured from his or her last date of hire).

Article XV, Grievance Procedures

Section l.

Should any dispute or grievance arise under this

Agreement, it shall be settled in accordance with the

procedure set forth in this Article, and, except as

otherwise specifically provided in this Agreement,

this procedure is the sole and exclusive method of

disposing of such grievances.

App. 43

Section 3.

The arbitrator’s decision shall be issued within

thirty (30) days after the dispute or grievance is

submitted to the arbitrator and shall be final and

binding upon the Employer, the Union, and the

employee or employees involved. The expenses of the

arbitrator shall be borne equally by the Employer and

the Union.

Section 5.

In the event a grievance goes to arbitration, this

Agreement, including any Supplements or Addenda,

shall be the basis on which the arbitrator’s decision is

rendered, and in reaching his or her decision, the

arbitrator shall have no authority to amend, modify,

or in any way change its terms.

App. 44

EMPLOYEE HANDBOOK

Work Rules/Prohibited Acts Policy

Summary

The orderly and efficient operation of the store re-

quires that employees maintain proper standards of

personal conduct at all times. Proper standards of

conduct are necessary to protect the health and safety

of all employees, to maintain uninterrupted produc-

tion and to protect the Company’s goodwill and

property.

Giant Eagle sets forth its established work rules

which, together with all other proper standards of

conduct, employees are required to obey.”

Il. The following is a partial list of violations that

may be cause for immediate termination.

13. Gross insubordination or refusal to follow

supervisor’s orders.

App. 45

EMPLOYEE HANDBOOK

Sexual Harassment Policy

Summary

Giant Eagle will promote a workplace that is free of

sexual harassment.

Giant Eagle is committed to providing a workplace

free of sexual harassment, Sexual harassment of

employees in the workplace or in other settings in

which employees may find themselves in connection

with their employment is unlawful and will not be

tolerated. Further, any retaliation against an indi-

vidual who has complained about sexual harassment

or retaliation against individuals for cooperating with

an investigation of a sexual harassment complaint is

similarly unlawful and will not be tolerated. To

achieve our goal of providing a workplace free from

sexual harassment, the conduct that is described in

this policy is prohibited. If such conduct does occur, a

procedure to investigate reported incidents has been

established and communicated to employees.

Giant Eagle takes allegations of sexual harassment

seriously and we will respond promptly to complaints

of sexual harassment. Where it is determined that

such inappropriate conduct has occurred, we will act

promptly to eliminate the conduct and impose such

corrective action as is necessary including discipli-

nary action up to, and including, termination.

App. 46

Definition of Sexual Harassment

Sexual harassment includes unwelcome sexual ad-

vances, requests for sexual favors and verbal or

physical conduct of a sexual nature when:

* Submission to or rejection of such advances,

requests or conduct is made either explicitly

or implicitly a term or condition of employ-

ment or a basis for employment decisions.

e Such advances, requests or conduct have the

purpose or effect of unreasonably interfering

with an individual’s work performance by

creating an intimidating, hostile, humiliat-

ing or sexually offensive work environment.

e¢ Any unwelcome E-mail communication or

viewing, downloading or transmitting sexu-

ally explicit or offensive material from the

Internet also constitutes creating a hostile

work environment.

Under these definitions, direct or implied requests by

a supervisor for sexual favors in exchange for actual

or promised job benefits such as favorable reviews,

salary increases, promotions, increased benefits or

continued employment constitutes sexual harass-

ment.

The legal definition of sexual harassment is broad. In

addition to the above examples, other sexually ori-

ented conduct that is unwelcome and has the effect of

creating a work place environment that is hostile,

offensive, intimidating or humiliating to male or

female workers, whether it is intended or not, may

App. 47

also constitute sexual harassment. While it is not

possible to list all examples of sexual harassment, the

following list contains additional types of conduct,

which, depending upon the totality of the circum-

stances including the severity c. the conduct and its

pervasiveness may constitute sexual harassment:

¢ Unwelcome sexual advances — whether they

involve physical touching or not;

¢ Sexual epithets, jokes, written or oral refer-

ences to sexual conduct, gossip regarding

one’s sex life, commenting on an individual’s

body, commenting about an individual’s sex-

ual activity, deficiencies or prowess;

e Displaying sexually suggestive objects, pic-

tures, cartoons, etc.;

¢ Unwelcome leering, whistling, brushing

against the body, sexual gestures, suggestive

or insulting comments; and

¢ Inquiries into one’s sexual experiences.

Retaliation against an individual who has complained

about sexual harassment and retaliation against

individuals for cooperating with an investigation of a

sexual harassment complaint is unlawful and will not

be tolerated.

Complaints of Sexual Harassment

If any employee believes that he or she has been sub-

jected to sexual harassment, the employee has the

right to file a complaint with our organization. This

App. 48

may be done in writing, or orally, by contacting Ray

Huber, Vice President, Human Resources or anyone on

the list below:

Giant Eagle Retail- COD: Jean Colarik, Director,

Human Resources;

Larane Hulsman,

Manager, Employee

Relations; Ray Huber,

VP Human Resources.

Sexual Harassment Investigation

When we receive the complaint, we will promptly

investigate it in a fair and expeditious manner. The

Human Resource Department will conduct all inves-

tigations of sexual harassment The investigation will

be conducted to maintain confidentiality to the extent

practicable. Our investigation will include a private

interview with the person filing the complaint and

with witnesses. We will also interview the person

alleged to have committed sexual harassment. When

we have completed our investigation, we will, to the

extent appropriate, inform the person filing the

complaint and the person alleged to have committed

the conduct of the results of the investigation. It may

be necessary to suspend an employee pending inves-

tigation.

If it is determined that inappropriate conduct has

occurred, we will act promptly to eliminate the of-

fending conduct and where it is appropriate we will

also impose disciplinary action.

App. 49

Giant Eagle will not tolerate job-related sexual har-

assment. Furthermore, any form of sexual harass-

ment must not be sanctioned or accepted by any

employee of the Company. All employees are respon-

sible for maintaining a workplace free from sexual

harassment. Managers, supervisors and employees

are obligated to promptly report incidents of sexual

harassment to Ray Huber, Vice President Human

Resources or your Human Resource Manager.

Disciplinary Action

If it is determined that inappropriate conduct has

been committed by one of our employees, we will take

such action as is appropriate. Such action may range

from counseling to termination from employment and

may include such other forms of disciplinary action as

we deem appropriate. This policy sets forth our goal

of promoting a workplace that is free of sexual har-

assment. The policy is not designed or intended to

limit our authority to discipline or take remedial

action for workplace conduct, which we deem unac-

ceptable, regardless of whether that conduct satisfies

the definition of sexual harassment. (emphasis sup-

plied).

APPENDIX F

ARBITRATION DECISION

App. 50

IN THE MATTER OF

ARBITRATION BETWEEN:

Giant Eagle, Inc. FMCS #05-51392

and Grievant:

)

)

) ‘

United Food and ) Matthew A. Craig

Commercial Workers )

Union Local 880 )

APPEARANCES:

For the Company: For the Union:

Mark Webber, Esq. Todd M. Smith, Esq.

Duvin, Cahn & Hutton Schwarzwald & McNair

Erieview Tower, 20th Floor 616 Penton Media Building

1301 E. Ninth Street 1300 E. Ninth Street

Cleveland, Ohio 44114 Cleveland, OH 44114

ARBITRATOR:

Patricia Thomas Bittel

Issue: Termination for Insubordination

BACKGROUND

This case was heard March 25, 2005 in Cleve-

land, Ohio before the neutral arbitrator, Patricia

Thomas Bittel, mutually selected by the parties in

accordance with Article XV Section 1, Step 4 of the

collective bargaining agreement.

App. 51

Grievant Matthew Craig was hired as a part-

time grocery clerk on July 27, 2003. During the latter

part of March 2004, he was assigned as manager in

charge at his store. On June 25, 2004, this assign-

ment was revoked. On June 30, 2004 Grievant volun-

tarily went to corporate headquarters to meet the

Manager of Employee Relations Larane Hulsman. On

July 1 he was terminated for violation of the rules

against gross discourtesy and insubordination.

A grievance was filed protesting the termination

and raising other claims. A supplemental grievance

was filed on July 22 adding to the claims. At a Step

Three meeting, the grievance was modified and some

of the claims were settled. The case then proceeded to

arbitration. The parties stipulated the matter is

properly before the Arbitrator for resolution and

jointly submitted the following issue: Was the Griev-

ant, Matthew Craig, discharged on June 30, 2004 for

cause under the collective bargaining agreement? If

not, what shall be the remedy?’ Because the stipu-

lated issue only deals with the termination itself,

other issues raised in the grievances are deemed

dropped or settled.

DISCUSSION

Human Resources Manager at the Middleburg

Heights store, Jackie Lenson, testified that Grievant

' Article V §8 provides for termination of seniority where

there is discharge for cause.

App. 52

Matthew Craig was employed at the store when she

came in June of 2004. She said that when she arrived

she received a few written complaints from the prior

HR Manager about Craig, then received three to four

additional complaints about his conduct toward other

employees. According to Lenson, the complaints

claimed he was arrogant, demanding and rude. She

said there are three other managers in charge, but

she did not receive any complaint about them.

She said she also received a complaint from a 17

year old minor who was offended when Grievant

approached him and asked if he liked girls. The

minor stated he answered “yes,” but later decided

that he was offended and uncomfortable, and made a

written complaint. Lenson said she discussed the

matter with the store manager and told Grievant

about it. She recalled Grievant’s response was that

the complaint was ridiculous and he was only joking

around. She said she explained to him that it was

considered a complaint of sexual harassment and

needed to be investigated. She also told him of com-

plaints that his treatment of employees was unac-

ceptably rude and arrogant.

She said he first denied that he had been rude

and arrogant, then said it did not matter if he was,

because he was there to tell employees what needed

to be done. She said she explained that his perception

was wrong, that you cannot be rude and arrogant

with employees. Craig was removed as a manager in

charge, she said. There was no resulting loss of pay or

App. 53

hours, she related; because it had not been a promo-

tion.

She said a few days later Grievant came into her

office uninvited and demanded a Union steward. She

recalled that he opened the conversation stating “Call

the Union steward up here.” Those were his first

words, she said.

She said he slammed down a pile of papers and a

handbook on her desk and told her she needed to read

the law because she was accusing him of sexual

harassment. Lenson said she explained it was a

complaint that had to be investigated. She said

Grievant began demanding the reasons for his ‘demo-

tion’ in writing, as well as a list of people who had

complained. Lenson said she told Grievant he had no

right to talk to her in that fashion. She stated he next

demanded supervisors’ names, addresses and phone

numbers, his personnel file and all the complaints

that other employees had lodged. She recalled that he

wanted her to stop what she was doing and meet his

requests. She said she could not provide access to his

personnel file of her own accord, but called and was

advised that his store file was not his personnel file,

and arrangements could be made for him to see the

personnel file. She described him as rude, and said

the Union Steward told her Grievant had no right to

be demanding in the way he was.

Lenson recalled that the grocery manager reported

to her that he was introducing himself to employees,

and when he introduced himself to Grievant, he asked

App. 54

how he was. He said Grievant responded “Not very

well,” and went on to say he was being accused of

sexual harassment. Lenson explained that this was

inappropriate because sexual harassment complaints

were confidential and this had already been ex-

plained to Grievant.

Larane Hulsman testified that she has been with

Giant Eagle for 32 years and has worked as the

Manager of Employee Relations for about one year

She said Jackie Lenson reported to her and advised

her of Grievant’s breach of confidentiality about the

sexual harassment complaint. Hulsman recalled

telling Lenson she would like to talk with Grievant

and explain to him what the procedures are in an

investigation and why it is important that manage-

ment conduct the investigation. She said she was

concerned that it be confidential and that he was

discussing it out on the floor. She told Lenson to teil

Grievant she was available at 3:00 p.m. if he would

like to come in.

The meeting was not mandated, Hulsman said,

but Grievant was on the clock at the time. She said

Grievant spoke first and described the complaint,

stating he did not believe it was sexual harassment.

She said he told her about an incident with another

employee in the back room who asked him to remove

a pallet. He mentioned a dairy manager, then stated

that Lenson, the employee who had complained and

Store Manager Dennis Hummel should all be re-

moved from the store. Hulsman explained that

Hummel had been with the Company for about 30

App. 55

years and Lenson had been with the Company 15 to

20 years.

After he was done, Hulsman said she began by

discussing the situation with the minor. She said she

explained that this situation did not constitute sexual

harassment, but it was inappropriate to have that

type of conversation and in addition, she pointed out

it was especially sensitive due to the fact that the

other employee was a minor. She said Grievant

disagreed with her, and when she explained that his

comment had a sexual inference, he held up his hand

and smirked, stating “for the sake of argument, I'll

agree with you, but you are wrong.” Hulsman said

she explained that she was not arguing, but he

needed to understand the Company position that

those types of comments are inappropriate.

She said Grievant continued to disagree, stating

“I did not come down here to have you recite Com-

pany policy.” Then he slammed a book closed and

announced that the meeting was over. Hulsman said

she responded that she was not reciting Company

policy, and she had listened to him, and would like

him to listen to her. She said she told him the meet-

ing was not over because she had not concluded her

responses. She explained that the meeting would not

be over until she said it was, and had had an oppor-

tunity to respond. She further stated that she told

Grievant if you leave, it’s insubordination and a

terminable offense.” She related that he looked at

her for three to five seconds, then went to the door

and continued on out. She flatly denied giving him

App. 56

permission to leave, stating “Nothing I said could be

construed that way?

She said after he left, she went into her man-

ager’s office and related what had happened. Next,

she called the business agent for Local 880, Sam

Barber, and advised him of the situation. Then she

made a written account of the events.

She described a subsequent meeting where

Grievant said he would not go forward with the

meeting so long as Lenson was there. She said she

had never been involved in a meeting where someone

said they would not go forward with a management

representative present. She related that the Com-

pany ultimately complied with Grievant’s request.

Grievant testified that after his hire, he worked

15 to 20 hours a week while attending law school, and

received several merit increases. He further stated he

has received awards for his work. He asserted that

Store Manager Dennis Hummel told him he liked

how he was performing his job. He claimed to have

received no discipline for attendance, work perform-

ance, violation of rules or any other matter. The

Union argued that his work was praised and appreci-

ated. The facts establish that Grievant’s work was

quite good, at least until the point when he became a

manager in charge.

Grievant explained that if employees did not

follow his directions as manager in charge, he would

try to “coerce” them to do so. He said if they refused,

he would progressively get more direct with the final

App. 57

option being to send an employee home. He claimed

there was only one occasion when he had to send an

employee home. He gave examples of trying to coerce

employees when they balked at his direction. In one

of his examples, an employee complained that she

could not get to her stuff because a pallet needed to

be moved and she asked him to move it. He said he

responded that she should move it herself because he

did not have time, then he pointed out there was

plenty of room for her to get past it. Despite his

articulated lack of time, he then went to get a camera

to take pictures of the area to substantiate his view-

point. Rather than help an employee, he entered into

a conflict with her, and rather than take the time to

move the pallet, he took pictures of it.

He recalled meeting with Lenson and Hummel,

and learning about the complaints made against him.

He said he asked what incidents she was referring to

in terms of the complaints, but her response was

vague and she gave no specifics.

He said he wrote a list of things he wanted from

Lenson, stating he asked for his personnel file, Len-

son’s supervisor’s contact information, information

about the reason for his ‘demotion,’ and the substance

of the complaints against him. He denied slamming

anything, stating he used a tossing motion. He admit-

ted telling Lenson she needed to read the court cases

and administrative regulations he had collected,

because his actions did not constitute sexual harass-

ment under the law. He related that she just pushed

them aside and did not seem to care. He recalled she

App. 58

said she needed to talk to a supervisor about the

personnel file. Grievant said he asked if she could call

now, stating he asked, but did not demand. He said

he was ultimately denied the documents.

He acknowledged that Lenson told him she did

not like the way he was talking to her, but would look

into his requests and contact her supervisor. He

admitted that Hummel told him he did not appreciate

how he spoke to Lenson and did not like his attitude

at the meeting. He conceded that Hummel thought

his conduct was unwarranted. These facts establish

that more likely than not, Grievant was disrespectful

and overbearing towards Lenson and did not listen to

or hear Lenson’s comments. His version of events

demonstrates that Grievant was not receptive to

managerial guidance and was either unwilling or

unable to acknowledge management’s perspective.

He recalled that on June 30 he was called into

the office and offered an opportunity to speak with

Larane Hulsman. He said he was told he would be

paid mileage plus his hourly rate and travel time. He

said he accepted. He said when he met with Huls-

man, he told her what had happened. He said he

explained that he thought the sexual harassment

allegation was ludicrous. He recalled she responded

that while it was not sexual harassment, but was

improper, and because a minor was involved, “We

needed to be more careful.”

She asserted his comment had sexual under-

tones, he said, stating he disagreed with her about

App. 59

that and meant nothing sexual by the remark. He

said this point was debated for awhile, then he told

Hulsman he came to talk about how the investigation

was going, but she was just telling him policy. He said

he got up to go, but she told him not to walk out

because she was not done. He recalled that she

warned him that leaving would be insubordination, a

terminable offense. He said he stopped and started

arguing the whole thing over again, stating “What’s

the point of arguing, we aren’t getting anywhere?

Finally, after more arguing, she became flustered, he

claimed, and told him “Fine, go, just go.” He said he

turned and walked out the door.

Grievant said his meeting with Hulsman was

voluntary and he also acknowledged that he told

Hulsman that Lenson and the minor should be re-

moved from the store. He did not recall saying that

Hummel should. He felt the minor employee should

be disciplined for making a false accusation, though

he acknowledged that people have a right to file a

complaint if they feel harassed. In this instance,

Grievant took it on himself to make unsolicited

recommendations about personnel placement despite

the fact that he was not a manager and had no re-

sponsibility for human resources.

Grievant said he was not pleased with the extent

of the investigation. He admitted Hulsman let him

complete everything he had to say before she began

her response. He acknowledged closing his binder and

saying that the meeting was over. Here again, he took

it upon himself to try to control the meeting and

App. 60

usurp Hulsman’s role as the manager. Significantly,

he refused this opportunity to listen and learn.

Union Representative Sam Barber testified to

cases he perceived as disparate treatment. However,

on cross examination he admitted to distinctions in

that the cases he cited involved failure to follow

directions, not willful insubordination. He also ac-

knowledged that Human Resources does have the

authority to fire someone. He recalled receiving a call

from Hulsman stating an employee from the Middle-

burg Heights store announced a meeting was over

and left, despite a warning that this would constitute

insubordination, a terminable offense.

The concept of insubordination has been refined

by arbitrators over the course of many years, and the

burden rests on the Employer to establish the ele-

ments of insubordination.

Generally, employees must follow orders

given by a superior, although they may later

challenge the propriety of the order through

the established grievance procedure. As one

arbitrator put it: ‘[T]lo permit employees to

willfully disregard a direct order would re-

sult in chaos.’ Insubordination is the refusal

by an employee to work or obey an order

given by the employee’s superior. In most in-

stances, any employee who refuses to work

or obey now (and grieve later) is considered

‘insubordinate.’ This basic definition, how-

ever, is subject to at least six qualifications.

App. 61

First, an employee’s refusal to work or

obey must be knowing, willful, and deliber-

ate. Mere negligence in performing one’s du-

ties is not insubordination.

Second, the order must be both explicit

and clearly given, so that the employee un-

derstands both its meaning and its intent as

a command.

Third, the order given must be both rea-

sonable and work related. The employee

need not be on duty to be found insubordi-

nate, provided the employee’s conduct injuri-

ously affects his employer’s business.

Fourth, the order must have been given

by someone with appropriate authority, and

the employee must have understood that

person to possess that authority.

Fifth, the employee must be made aware

of the consequences of failing to perform the

work or follow the directive. For example, an

employer improperly suspended an employee

for insubordination because the employee

took 2 days off to be with his child for her

surgery. The employer denied his request for

leave, offered to allow the employee to use

vacation time, but failed to tell him he would

be disciplined if he took the days off.

Finally, if practical, the employee must

be given or have time to correct his purport-

edly insubordinate behavior. For instance, a

discharge for insubordination was overturned

App. 62

where an employee requested a different as-

signment after he was told at the end of his

shift that the next day he would be assigned

to inventory duty. His supervisor refused the

request, commented on his poor attitude, and

discharged him. The arbitrator found the

employee had not been given an opportunity

to report the next day and perform the job

assignment, nor the opportunity for sober re-

flection.”

Arbitrators have sustained insubordination

charges for refusing to attend or interrupting a

Company meeting. The Union argues that the quan-

tum of proof should be clear and convincing evidence.

However, the prevalent view at labor arbitration is

that the appropriate standard is preponderance of the

evidence. The higher standard is not generally used

unless criminal or stigmatizing conduct has been

alleged, and even then, many arbitrators stick to

preponderance as the appropriate standard.*

* Brand, Discipline and Discharge, (BNA Books, 1998) 155-

156

* Ermanco, Inc., 101 LA 269 (Ellman, 1993). See also,

Valley Hosp. Ass’n, 97 LA 661 (Calhoun, 1991); Scovill, Inc., 84

LA 201 (Storey, 1985); American Can Co., 57 LA 1063 (Kerrison,

1971).

* [M]ost arbitrators apply the ‘preponderance of the evi-

dence’ standard to ordinary discipline and discharge cases

“Elkouri & Elkouri, How Arbitration Works, 6th Ed. (BNA

Books, 2003) 950. An example of stigmatizing conduct would be

child abuse by a teacher. Grievant’s conduct was neither cnmi-

nal nor stigmatizing.

App. 63

Hulsman’s version of events on June 30 cannot

be reconciled with Grievant’s. Either she gave him

permission to leave or he left despite her instruction

to stay. The Company’s ability to prove the elements

of insubordination rests on whether Grievant was

given permission to leave. Hence, relative credibility

must be examined.

The Union has argued that Grievant, as a dis-

gruntled employee or Union member, is not inher-

ently any less credible than management.’ By

contrast, the Company maintains that Grievant’s

evident interest in the outcome of the case constitutes

bias, making him the less credible witness. Before

relying on status as an indicator of reliability, the

Arbitrator prefers to evaluate content of testimony as

an indicator of reliability.

Grievant had not been employed for an entire

year at the time of the events here concerned. When

advised that other employees had complained of his

rude and arrogant behavior, he first denied such

conduct, then argued that even if he had been rude it

did not matter. These two responses are not harmoni-

ous.

Grievant asserted that he did not know that

Hulsman had authority to fire him, but thought the

only person who could fire him was the store man-

ager. He explained there was no reason for him to

> Union Brief p. 13.

App. 64

think that Human Resources could fire him because

he never took direction from them. This argument is

a red herring. Hulsman, as Manager of Employee

Relations, would naturally be involved in termination

decisions. Even if Grievant did not understand this

apparent reality, he knew or should have known that

unacceptable conduct would be reported and acted

upon by others. Any confusion on this point was

certainly clarified when Hulsman advised Grievant

that departure would constitute insubordination, a

terminable offense. At that point, her authority to

terminate Grievant had been plainly expressed. It

follows that Grievant’s claimed ignorance of her

authority is incredible on its face and erodes the

reliability of his other testimony.

The Union argues that Hulsman’s testimony was

flawed by inconsistency. It notes she said she claimed

to have initiated the meeting because of confidential-

ity concerns, though no mention is made of this in her

notes. However, Hulsman did not get to finish making

her points, so she did not reach the confidentiality

issue and had no note to make regarding any discus-

sion of confidentiality. The Union also points out that

she said she did not check to see whether Grievant

was scheduled to work the next day, though her notes

indicate she did. This point does not involve the

exchange between Grievant and Hulsman. Such a

minor inconsistency is not sufficient to demonstrate

that Hulsman’s recollection of Crievant’s insubordi-

nate departure was unreliable.

App. 65

It is telling that Hulsman immediately reported

the insubordinate departure both to her superior and

the Union. This reaction is consistent with the shock-

ing impact of Grievant’s conduct, and with Hulsman’s

surprise that Grievant would leave after her explicit

warning. There is absolutely no logical or credible

explanation for her reaction unless Grievant did walk

out without permission.

Hulsman was a high ranking administrator in

the Company’s organization and a professional in

dealing with issues of employee conduct. She had no

axe to grind with Grievant and no preexisting bias,

having only just met him. She was trying to make

him understand why his comment to the minor was

inappropriate. It contravenes logic for her to tell him

to go when she had not yet been able to get any

acknowledgment from Grievant that he understood.

If Hulsman had given Grievant permission to

leave as he claims, she would have no reason to

report him as insubordinate. Indeed, it would be

completely illogical and nonsensical to tell an em-

ployee to leave, then report him as having been

insubordinate for doing so. Taken together, these

facts and considerations support the conclusion that

Hulsman’s testimony is more reliable than Grievant’s,

and should be credited.

The Union argues that Grievant did not refuse to

perform work. However, he was on the clock and met

with Hulsman at the Company’s expense. His work at

that point was to meet with Hulsman, explain his

App. 66

concerns and come to a better understanding of the

Company’s approach to employee complaints. The

business purpose was to improve his understanding

of complaint handling and investigation as well as his

sense of workplace propriety. Grievant refused to

perform this work.

By leaving despite an explicit instruction, Griev-

ant knowingly, willfully and deliberately refused to

obey Hulsman’s instruction. Her order was explicit

and clear so that Grievant understood he was being

instructed to stay. The orcer was reasonable and

work related. Hulsman was trying to explain why

Grievant’s conduct was of concern, and he had given

no indication of understanding. The order was given

by someone with appropriate authority, as Hulsman

was an administrator in Human Resources. She made

it clear that if he left he would be committing a

terminable offense. Despite the clarity of the warn-

ing, he consciously put his employment at risk.

Hulsman’s warning gave Grievant an adequate

opportunity to correct his insubordinate behavior. It

was his decision to walk out the door after her warn-

ing. The evidence has established all the elements of

insubordination and satisfies the Employees burden

of proof.

The Union maintains that insubordination was

treated casually at Giant Eagle, and Grievant was

the victim of disparate treatment. However, many of

the examples offered to support this allegation were

of employees failing or refusing to follow Grievant's

orders aS manager in charge. These examples are

App. 67

inapposite because they do not involve refusals to

follow orders from a manager or supervisor. There is

no insubordination unless the order comes from a

superior. Grievant was not his co-workers’ supervisor

when they balked at his direction. The other exam-

ples offered were of failures to follow instructions,

and did not entail the willful, deliberate defiance of

managerial authority evident in Grievant’s case. The

evidence therefore fails to demonstrate disparate

treatment.

More likely than not, Grievant left Hulsman’s

office after being told that the meeting was not over

and that departure would constitute insubordination,

a termination offense. His attitude at the time was

not one of listening to Hulsman, or properly respect-

ing her. Rather, he accused her of simply reiterating

policy to him and described the meeting as useless

when she was explaining the Company’s need to

investigate complaints.

The concept of just cause functions to protect the

employment relationship where progressive discipline

can be instrumental in helping the employee to

assimilate and meet the employer’s reasonable expec-

tations. The evidence in this case gives no indication

whatsoever that Grievant could or would benefit from

progressive discipline. He has not heeded any warn-

ing given by either Lenson or Hulsman. He has not so

much as acknowledged any suggestion that he modify

his behavior. At every turn he has turned a deaf

ear to any critique of his conduct on the job. The

App. 68

Arbitrator is persuaded that progressive discipline

would be of no use in Grievant’s case.

The Union asserts Grievant’s due process rights

were violated because there was no full and fair

investigation. However, the insubordination here

concerned was directed at the Manager of Employee

Relations, that is, the person with responsibility for

reviewing termination decisions. In such a situation,

there is no need for further investigation and review.”

Even so, Hulsman immediately apprised her superior

of the situation.

The Union strongly argues that discharge is too

severe a penalty in this case because there were no

threats, abusive language, violence, refusal to work or

other observers. Certainly, the penalty in a just cause

analysis must be proportionate to the seriousness of

the offense. Direct insubordination to a manager is

extremely serious when it utterly prevents the Com-

pany from carrying on its business. In this case, when

Grievant walked out, Hulsman was completely

blocked from finishing her business of counseling

him. His departure was in the face of a specific warn-

ing that discharge would be the likely consequence.

Hence, Grievant’s departure was an act of defiance

and a direct challenge to Hulsman’s authority. As

such, it was very serious in nature. Grievant’s record

of employment, though initially good, is not long

enough to constitute a mitigating circumstance.

* Ermanco, Inc., supra n.3.

App. 69

The Union has vigorously mounted a highly

competent and thorough challenge to Grievant’s

termination. The case, however, turns on a credibility

determination. The Arbitrator has carefully observed

witness demeanor at hearing and evaluated testi-

mony, and finds Hulsman to be the more credible

witness.

AWARD

Grievant Matthew Craig was discharged for just

cause under the collective bargaining agreement. The

grievances are denied.

Respectfully Submitted,

/s/ Patricia T. Bittel

Patricia Thomas Bittel,

Arbitrator

Dated: June 22, 2005