Appendices — United Food & Commercial Workers International Union v. Poland Spring Corp.

a OA RE

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 02-1064

POLAND SPRING CORPORATION,

Plaintiff/Appellee,

Vv.

UNITED Foop AND COMMERCIAL WORKERS INTERNATIONAL

UNION, AFL-CIO-CLC, LOCAL 1445,

Defendant/Appellant.

December 24, 2002, Decided

_ OPINION:

TORRUELLA, Circuit Judge.

The appellant, United Food and Commercial Workers

International Union. AFL-CIO-CLC, Local 1445 (“Union”)

appeals from the district court’s summary judgment vacating

an arbitration award that reinstated employee Leo Beaupre

and reduced his discharge to a suspension without pay.

Appellee is the Poland Spring Corporation (“Poland Spring”),

which terminated Beaupre for insubordinate behavior on

February 5, 2000. We affirm.

Background Facts

Poland Spring is a bottler of non-carbonated water with

bottling facilities in Maine. In 2000, Leo Beaupre worked for

Poland Spring as a palletizer operator. A palletizer is a

machine that loads cases of bottles onto pallets and wraps the

full pallets in plastic for shipping. As a palletizer operator,

Beaupre was responsible for placing empty pallets on the

\

2a

machine, removing loaded pallets, and keeping the area

around his machine clean. Since his palletizer was elevated

on legs above the floor, this housekeeping task occasionally

required him to remove stray bottles from under the machine.

The incident which led to Beaupre’s termination occurred

on the night shift beginning on February 5, 2000. Beaupre’s

supervisor that night was Mike Arsenault, a former co-worker

of Beaupre’s who had recently been promoted to a supervi-

sory role. At some point during the shift, a group of

employees got together and began playfully teasing

Arsenault. This group included Beaupre. The employees

teased Arsenault rather crudely about his recent promotion,

stating in starkly graphic terms how he was promoted for

providing an imaginative variety of sexual favors to the plant

manager, another male.

Arsenault did not appear offended at first. In fact, at some

point Arsenault actually joined in the ribbing, pretending to

call up the plant manager on his radio to tell the manager that

he would be right up to see him. Predictably, this spirit of

jocularity did not last. According to Arsenault, the joking

ended when the group received a radio call, and Arsenault

assigned the employees to various work tasks. Beaupre, in

contrast, testified that Arsenault suddenly “became unglued,”

stated “that will be enough,” and ordered everyoné back

to work.

When the banter ended, Arsenault directed Beaupre and

another worker to go into the filler room and help clean up

stray bottles that were on the floor. Beaupre explained to

Arsenault that due to an asthmatic condition, he could not

work in the filler room where elevated levels of ozone could

be present. Arsenault responded that if Beaupre could not

work in the filler room, he should go clean bottles out from

underneath the accumulation table. The accumulation table is

a large table where filled bottles coming from the filler

Operation can accumulate if the palletizer operation is

3a

interrupted. The task would require Beaupre to crawl under

the accumulation table, which stands on legs only a few feet

off the floor.

Beaupre refused to follow this directive from Arsenault,

telling Arsenault that his “crawling days [were] over; it’s hard

for me to crawl into bed [and] hard for me to crawl out of

bed.” Arsenault then repeated his directive to Beaupre, but

Beaupre continued to refuse to clean out the bottles. Accord-

ing to Arsenault, he then warned Beaupre that his non-

compliance would constitute an act of insubordination which

could result in Beaupre’s termination. Nevertheless, Beaupre

again refused to comply with the order.

Arsenault then direcied Beaupre to accompany him to a

conference room. On the way there Beaupre asked Arsenault

whether he was really going to fire Beaupre over a bottle of

water, and also asked Arsenault whether that would make him

feel like a man. Despite the fact that Arsenault had now made

it clear to Beaupre that he could face termination for failure

to comply with Arsenault’s directives, he refused to clean up

the bottles.

While they were walking toward the conference room,

Arsenault radioed a more experienced supervisor to join

them. Also joining them were two other plant employees who

came at Arsenault’s request as witnesses. Once again, the

Supervisors instructed Beaupre to go pick up the bottles as

directed, and once again Beaupre refused to perform the

assigned work. Beaupre was suspended pending investiga-

tion, and sent home.

The following day, the Union filed a grievance, alleging

that Arsenault’s fratemizing and joking with the plant

employees was unprofessional, and that after being the

subject of so much teasing, Arsenault retaliated by trying “to

embarrass [Beaupre] in front of his peers by making him

crawl under a conveyer for one bottle[.]”

4a

At a post-suspension “Step 2” hearing, Beaupre and the

Union offered two affirmative defenses explaining Beaupre’s

refusal to obey a directive. The Union’s arguments were re-

jected, and following the Step 2 grievance meeting, Poland

Spring converted Beaupre’s suspension to a termination

of employment.

The Collective Bargaining Agreement

The Union submitted a grievance pursuant to the collective

bargaining agreement then in existence between it and Poland

Spring. Article 32 of the agreement is entitled “Discipline and

Discharge” and provides in plain language that insubordina-

tion “shall” constitute just cause for termination. That Article

also provides that a number of offenses may warrant a lower

level of discipline prior to discharge. Insubordination,

however, is not such an offense. The relevant section of

Article 32 provides:

Discipline and discharge shall only occur for just

cause. The parties agree that just cause for discharge

shall include, but not be limited to, the following:

8. Insubordination

Under Article 33, the arbitrator’s authority is expressly

limited to the provisions of the Agreement. Accordingly “the

arbitrator shall have no power to alter or modify any of the

terms of this Agreement or to impose on any party a

limitation or obligation not explicitly provided for in this

Agreement.”

The Arbitrator’s Award

The factual findings of the arbitrator are substantially those

previously discussed. Nevertheless, because the primary issue

for our consideration is whether the arbitrator unambiguously

Sa

found that Beaupre’s February 5 conduct was insubordinate,

it is helpful here to reproduce substantial portions of the

arbitrator’s decision.

His discussion of the termination began:

There is little doubt in this case that absent some

persuasive affirmative defense, [Beaupre] was guilty of

the offense of insubordination on the February 5, 2000

night shift. Arsenault repeatedly ordered the grievant to

clean out the scrap bottle(s) from under the accumulation

table. The grievant repeatedly refused to comply with

that directive, even after first Arsenault and then

[another supervisor] made it clear to him that he could

be terminated for so refusing.

The arbitrator then evaluated the two affirmative defenses

raised by the Union. First, the Union argued that Beaupre’s

repeated refusals to follow his supervisor’s order were

motivated by a sincerely held concern for his health. The

arbitrator determined that this argument was not credible and

that Beaupre’s health was not the reason he refused to clean

up the bottles. The Union alternatively argued that because

the order to clean up the bottles followed so closely upon the

sexual banter between Arsenault and the plant workers,

Beaupre believed he might have been subjected to undue

humiliation or embarrassment, or even risk of sexual assault.

The arbitrator determined that this defense was entirely

unpersuasive and that any apprehensions Beaupre might have

had were not reasonable.

Since the arbitrator began his discussion by Stating that

“absent some persuasive affirmative defense [Beaupre] was

guilty of the offense of insubordination,” one might have

expected the arbitrator to conclude his analysis after rejecting

both affirmative defenses proffered by the Union. Instead, the

arbitrator stated that there was “one remaining issue for

discussion, that being the level of discipline imposed.” After

thus declaring that he was now exploring remedial possibili-

6a

ties the arbitrator broke down the term “insubordination” into

two types: straightforward insubordination, and insubordina-

tion in the presence of mitigating circumstances. The arbi-

_ trator reasoned:

[Article 32] may well establish that in clear, straight-

forward cases of insubordination, without mitigating

considerations, the parties by agreement have estab-

lished the per se rule that there is just cause for

termination. However, the language of Article 32 does

not state that even in the presence of mitigating

circumstances, insubordination still will necessarily

provide the company with just cause for termination. On

the contrary, where significant mitigating considerations

are present, the culpability of the employee may be

diminished, and summary termination may no longer be

justified. This more complex fact situation must be

considered under the general, just cause standard set

forth in article 32, giving due weight to the fact that the

parties have agreed that a pure case of insubordination,

without mitigating considerations, would provide just

cause to terminate.

Having distinguished straightforward insubordination from

insubordination with mitigating circumstances, the arbitrator

placed Beaupre’s claim in the latter category. The arbitrator

found that Beaupre’s refusal to comply with his supervisor’s

directive was mitigated by his supervisor’s misconduct,

which “biurred the line between the supervisor and the

workers.” According to the arbitrator, once the supervisor

joined in the ribbing and sexual banter, his “improper

fraternizing with the workers created an environment where

one of the employees might think, at least initially, that

Arsenault was not acting in his supervisory capacity, but

rather only as one of the guys joking around on the shop

floor.” The arbitrator concluded that “it was unjust for the

Company to terminate the grievant for his insubordinate

behavior which immediately followed.” Nevertheless, despite

Ta

the presence of mitigating circumstances, the arbitrator

concluded that Beaupre’s protracted refusal to comply with

the directive still constituted “insubordinate behavior.” The

arbitrator determined that:

[Beaupre] should have been able to figure out that

Arsenault had shifted gears and was now acting in his

supervisory capacity; he should have promptly followed

the directives of the person he knew to be his supervisor.

Furthermore . . . Arsenault first alone and then with the

assistance of [another supervisor] gave the grievant clear

warning of the fact that his behavior had become

insubordinate, and gave the grievant numerous oppor-

tunities over an extended period of time to abandon his

initial refusal, and to perform the work as directed.

Ultimately the arbitrator concluded that while mitigating

circumstances rendered the company’s decision to terminate

Beaupre unjust, Beaupre’s insubordinate behavior over an

extended period of time warranted a two week suspension

without pay.

Summary Judgment

Poland Spring filed suit in district court to vacate the

arbitration award. The court granted summary judgment,

finding that the award exceeded the arbitrator’s authority

under the Agreement. The court held that in the Agreement

there is “nothing about ‘clear, straight-forward’ cases, ‘pure’

cases, or ‘mitigating circumstances.‘ The court found that

under the circumstances, the arbitrator lacked the authority

under Article 32 to reinstate an insubordinate employee. The

Union appealed.

Discussion

Judicial review of an arbitrator’s decision is extremely

narrow and deferential. United Paperworkers International

Union v. Misco, Inc., 484 U.S. 29, 36 (1987); Keebler Co. y.

Truck Drivers, Local 170, 247 F.3d 8, 10 (Ist Cir. 2001). We

8a

do not sit as a court of appeal to hear claims of factual or

legal error by an arbitrator or to consider the merits of an

award. Misco, Inc., 484 U.S. at 36-37. We cannot vacate the

award because the arbitrator misreads the contract, where

there is room to do so. /d. at 37-38. Nor are we authorized to

reject his honest judgment as to the appropriate remedy, if the

contract gives him the authority to decide that question. /d. at

38. “As long as the arbitrator is even arguably construing or

applying the contract and acting within the scope of his

authority, that-a court is convinced he committed serious error

does not suffice to overturn his decision.” /d.

Nevertheless, acknowledging that our role is a limited one

is not the equivalent of granting limitless power to the

arbitrator. Georgia Pacific Co. v. Local 27, United

Paperworkers Int'l Union, 864 F.2d 940, 944 (Ist Cir. 1988).

The decision to settle labor-management disputes through

arbitration is a wholly voluntary decision by private parties,

grounded on their will as expressed in the collective

bargaining agreement. /d. “Therefore, the paramount point to

be remembered in labor arbitration is that the power and

authority of an arbitrator is totally derived from the collective

bargaining agreement and that he violates his obligation to

the parties if he substitutes ‘his own brand of industrial

justice’ for what has been agreed to by the parties in that

contract.” Jd. (quoting United Steelworkers v. Enterprise

Wheel & Car, 363 U.S. 593, 597 (1960); see also Misco Inc.,

484 US. at 38. If the language of an agreement is clear and

unequivocal, an arbitrator cannot give it a meaning other than

that expressed by the agreement. Georgia-Pacific Co., 864

F.2d at 944.

In support of the arbitration award, the Union contends that

the arbitrator did not unambiguously find Beaupre guilty of

insubordination as that term is used in Article 32. Instead, it

claims, the arbitrator found that because Beaupre’s actions

were mitigated by the horseplay of his supervisor, Beaupre’s

S ietat& mastatea alee itt es tee

|

| } .

——e

9a

conduct should not be treated as insubordination per se, but

should rather be evaluated under the general, “just cause”

standard also set forth in Article 32. That is, since Beaupre’s

culpability was lessened by his supervisor’s own misconduct,

the arbitrator properly considered Beaupre’s misconduct

under the flexible “just cause” provision of Article 32, rather

than the “insubordination” standard of that same section. .

We disagree with the Union’s selective reading of the

arbitration award. The award unambiguously concluded that

Beaupre’s misconduct on the night of February 5, 2000

constituted insubordination pursuant to Article 32 of the

Agreement. The arbitrator unequivocally found: first, that a

clear order was repeatedly given to Beaupre; second, that

Beaupre fully understood the consequences of failure to

comply with the order and yet repeatedly refused to do so;

and finally, the a»bitrator concluded that Beaupre’s refusals to

comply with the order constituted acts of insubordination

subject to discipline under Article 32 of the agreement.

First, it is beyond dispute that the arbitrator found that

Beaupre repeatedly refused to comply with his supervisor’s

directives. He concluded that “the grievant declined to follow

this directive from Arsenault. Arsenault repeated his directive

to the grievant, but the grievant continued to refuse to clean

out the bottles from under the accumulation table.” Z

Second, the arbitrator found as a fact that Beaupre fully

understood the consequences of his failure to comply with his

supervisor’s directive. After his second refusal of the order,

Beaupre accompanied Arsenault to the conference room for a

disciplinary meeting. On the way there, Beaupre asked

Arsenault whether “he was the man that was going to take the

grievant’s job over a bottle of water, and if he did, would that

make him feel like a man.” Based on that statement, the

arbitrator concluded that “certainly, then, the grievant at least

by that point understood that he could face termination for

failing to comply with Arsenault’s directive.”

10a

Finally the arbitrator concluded that Beaupre’s knowing

refusal to comply with the directive was “insubordinate”

within the meaning of the Agreement. First, the arbitrator

twice used the language “‘insubordinate behavior” to describe

Beaupre’s conduct on the night of February 5, 2000. Second,

the portion of the award concerning Beaupre’s culpability

begins with the statement that “there is little doubt in this case

that absent some persuasive affirmative defense, the grievant

was guilty of the offense of insubordination.” The award then

proceeded to evaluate and reject the affirmative defenses

raised by Beaupre, leaving little doubt that the arbitrator

found Beaupre guilty of insubordination.

Upon reaching the conclusion that Beaupre’s conduct was

insubordinate, the arbitrator was “barred from further inquiry

because such additional probing constituted ‘ignoring the

plain language of the contract.’ Georgia-Pacific Corp. v.

Local 27 United Paperworkers Int'l Union, 864 F.2d 940,

945 (ist Cir. 1988) (quoting Misco, Inc., 484 U.S. at 38). This

Court has long held that once an arbitrator finds that an

employee has committed an act specifically listed in the

collective bargaining agreement as providing just cause for

termination, the arbitrator is not free to fashion a separate

remedy apart from the one provided by the parties’

agreement. See Georgia-Pacific, 864 F.2d at 945; S.D.

Warren Co. v. United Paperworkers’ Int'l Union, 845 F.2d 3,

8 (Ist Cir. 1988); Metro Chevrolet, Inc. v. Union de

Tronquistas de Puerto Rico, 835 F.2d 3, 5 (1st Cir. 1987).

The rationale for this line of cases is simple: contractual

provisions like the insubordination clause of Article 32 are

bargained for and inserted precisely to take discretion away

from arbitrators charged with enforcing the collective

bargaining agreement. Cf. Georgia-Pacific Corp, 864 F.2d at

945 (‘An arbitrator does not have unfettered discretion. He

may not impose a remedy which directly contradicts the

express language of the coilective bargaining agreement.”’’)

(quoting Bruno’s Inc. v. United Food & Com. Wkrs. Int'l

lla

Union, Local 1657, 858 F.2d 1529, 1531 (11th Cir. 1988)).

Consequently, the plain language of Articles 32 and 33 left

nothing to the arbitrator’s discretion except to determine

whether or not Beaupre’s conduct was insubordinate.

In Georgia-Pacific, this Court held that nearly identical

contract language gave the employer the right to discharge,

leaving an arbitrater no discretion to fashion a remedy

different from the parties’ agreed-upon level of discipline.

864 F.2d at 942, 946! Evaluating the agreement in Georgia-

Pacific, we determined: (1) that the agreement specifying that

committing an offense of dishonesty subjected an employee

to immediate discharge was unambiguous on its face: (2) that

the parties inserted the provision “precisely [to remove]

optional choice on the part of the arbitrator;” and (3) that the

arbitrator had no discretion to impose another form of disci-

pline once he found dishonesty. /d. at 945-46.

By enumerating offenses that are subject to immediate

discharge and distinguishing those offenses from other forms

of misconduct that warrant a warning prior to discharge, the

‘In Georgia-Pacific, the agreement in issue provided thai.

Any employee may be discharged for just cause. Without

limiting the generality of the foregoing some of the causes for

immediate discharge are:

. . « (5) dishonesty

. . . Georgia-Pacific, 864 F.2d at 942.

The arbitrator in Georgia-Pacific found that an employee had engaged in

an act of dishonesty subjecting him to discipline. However, the arbitrator

then overruled the company’s decision to terminate the employee, based

in part upon the employee’s overall employment record. This Court found

that the arbitrator had no discretion to impose his own remedy once he

found that the employee was guilty of dishonesty. Looking at the

agreement, we concluded that “it is difficult to imagine how one could use

the English language to state more Clearly that dishonesty leads to

immediate discharge than is stated in [the agreement].” /d. at 946 (citation

and quotation omitted).

12a

parties manifested their intent to remove from the arbitrator’s

discretion the power to fashion his own remedy for those

offenses expressly subjected to automatic discharge. See S.D.

Warren Co., 845 F.2d at 7-8 (finding that the purpose of an

automatic discharge provision in a collective bargaining

agreement reflects the parties’ intent to “remove from the ar-

bitrator the authority to determine a remedy once she

concludes that a certain rule has been breached’’). If the

parties intended mitigating circumstances to affect whether

insubordination constitutes just cause for termination, then

they would have expressed their intent in the contract. Be-

cause we find that the arbitrator determined that Beaupre ‘was

guilty of insubordination, his decision to fashion a separate

remedy due to mitigating circumstances impermissibly substi-

tuted his own notions of industrial justice over those estab-

lished by the contract. /d.; accord Misco, 484 U.S. at 38.

>The Union asserts that instead of applying Georgia-Pacific, our

analysis ought to be guided by wxeebler Co. v. Truck Drivers, Local 170,

247 F.3d 8 (ist Cir. 2001) (holding that an arbitrator’s decision that

conduct did not constitute gross insubordination drew its essence from the

contract) and Crafts Precision Industries Inc. v. Lodge No. 1836, 889 F.2d

1184 (1st Cir. 1989) (upholding an arbitrator’s determination that some

types of insubordination warrant discharge while other less serious

instances may warrant only suspension). We disagree. There are two key

issues distinguishing this case from the rule of law established in Keebler

and Crafts Precision. -

First, as we explained in Keebler, Keebler does not apply where, as is

the case here, “the arbitrator unambiguously found that the grievant had

committed conduct listed in his employment agreement as grounds for

termination.” Keebler, 247 F.3d at 14 n.2.

Second, the language of the collective bargaining agreements involved

in both Keebler and Crafts Precision was substantially more open and

ambiguous than the contract language in Georgia-Pacific, Warren and the

instant case. As we explained in Crafts Precision, the question of whether

an arbitrator exceeded his authority will often turn on whether the

agreement delegated open-ended discretion to the arbitrator, or instead, |

whether the agreement expressly provided that certain types misconduct |

TT

13a

Lastly, the Union argues that because the collective

bargaining agreement did not define the term insubordination,

it was necessary for the arbitrator to devise a definition of

insubordination and determine whether the actions of

Beaupre were those which constitute insubordination warrant-

ing termination under the Agreement. According to this

argument, when the arbitrator distinguished between

Straightforward insubordination and insubordination in the

presence of mitigating circum tances, this was precisely the

type of interpretive analysis arbitrators are regularly called on

to do. Consequently, rather than fashioning a separate remedy

at odds with the one provided in the contract, the arbitrator

merely clarified the latently ambiguous term insubordination

and determined that the conduct involved here was simply too

minor to constitute insubordination as that term was intended

by the parties.

Were it in fact true that the arbitrator was merely interpret-

ing the term insubordination, this argument might have some

merit. After all, the Union correctly asserts that arbitrators

shall constitute just cause for discharge. Crafts Precision, 889 F.2 at

1185; compare Keebler, 247 F.3d at 12-13 (noting that the agreement

expressly required arbitrator to distinguish between gross insubordination,

which would be subject to- immediate discharge, from less serious

instances of insubordination, which would not); and Crafts Precision, 889

F.2d at 1185-86 (noting that the agreement vested the employer and

arbitrator with the discretion to distinguish conduct that “may result in

Suspension” from conduct that warrants discharge) with Georgia-Pacific,

864 F.2d at 942 (involving a contract which provided that any “employee

may be discharged for just cause” and then expressly listed dishonesty as

“one of the causes for immediate discharge”). The language in the instant

agreement is nearly-identical to that of Georgia-Pacific in that it

enumerates misconduct which may warrant discharge without warning.

That is, it provides that “just cause for discharge shall include . .

insubordination.” (Emphasis added). Unlike Keebler and Crafts-

Precision, the instant agreement lacks any language that would authorize

an arbitrator to distinguish between degrees of insubordination, or permit

an arbitrator to select from a variety of disciplinary remedies.

I

l4a

have significant discretion to interpret the terms of a

collective bargaining agreement. It is up to the arbitrator to

decide whether a given pattern of conduct constitutes

insubordination. Furthermore, the term insubordination is not

defined in the agreement and is obviously susceptible to

multiple interpretations. Thus, the arbitrator here certainly

would have been free to decide that Beaupre’s conduct was

simply too minor to rise to the level of insubordination as that

term is used in the contract.

Nevertheless, in this case it cannot be said that the

arbitrator’s mitigating circumstances analysis was merely part

of an interpretation of the term insubordination. First, the

arbitrator never debated the meaning of the term insubordina-

tion, and concluded that Beaupre was guilty of “insubordinate

behavior” that “extended over a lengthy period of time.”

Second, the arbitrator did not begin his mitigating circum-

stances analysis until after he had established Beaupre’s

culpability and stated that there was only “one remaining

issue for discussion, that being the level of discipline im-

posed.” Clearly, the mitigation section of the award only

arose when the arbitrator was considering his remedial

options, and not when he was supposedly engaged in an

interpretation of the term insubordination.

Beaupre’s situation is a regrettable one. His supervisor’s

misconduct undoubtedly temporarily blurred the line separat-

ing supervisor and employee, and in so doing, created a

scenario in which Beaupre, insulted and hurt by Arsenault’s

sudden transformation from “one of the guys” to stern

company supervisor, felt justified in refusing the order.

Nevertheless, Beaupre’s defiance outlasted the confusion

caused by Arsenault’s horseplay. He repeatedly refused a

company directive even after that directive had become a

formal warning delivered repeatedly by two supervisors. The

arbitrator deemed this conduct insubordinate, and, having

done so, lacked the contractual authority to mitigate the

15a

disciplinary action provided by the collective bargaining

agreement. Consequently, the arbitration award is unenforce-

able and the district court’s judgment is affirmed.

Affirmed. No costs are imposed.

16a

BOUDIN, Chief Judge (Concurring).

Leo Beaupre, then an employee of Poland Spring Corp. at

its facility in Maine, refused in February 2000 several direct

instructions from two supervisors to pick up some bottles

scattered under a table. The company’s contract with Beau-

pre’s union provides that “discipline and discharge shall

occur only for just cause. The parties agree that just cause for

discharge shall include, but not be limited to, the following:

Insubordination ... .” After a warning, Beaupre was

discharged, and the union sought arbitration pursuant to

the contract.

In due course, the arbitrator found that Beaupre had clearly

violated direct orders from his superiors even after he was

advised that this could be a firing offense, and the arbitrator

found unsupported several excuses offered for Beaupre’s re-

fusals (e.g., health concerns). However, the arbitrator ruled

that under the contract “mitigating considerations” permitted

the arbitrator to conclude that termination Was too severe a

penalty; finding mitigation here—for example, tasteless jokes

by Beaupre’s direct supervisor—the arbitrator ruled that the

penalty should be reduced to two weeks’ suspension with-

Out pay.

Affirming the district court, the panel majority now holds

that the arbitrator exceeded his authority in directing

Beaupre’s reinstatement. It is common ground that the

arbitrator is bound by provisions of the contract but also that

the arbitrator can construe the contract. See United Paper-

workers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987). In

effect, the arbitrator takes over the court’s role of initial

construction; but there remains a vaguely defined limit: a

reviewing court may still conclude that the arbitrator is re-

writing the terms instead of construing them. See id.

Here, the arbitrator could permissibly have read the

contract to mean that some acts of disobedience constitute

~ 17a

“insubordination” within the meaning of the contract and that

other, less severe acts—although literally disobedience—do

not. “Insubordination” is not defined in the contract nor is it

self-defining and, reading the provision in context, a judge

(and even more surely an arbitrator) would be likely to ex-

clude trivial disobedience, such as a refusal to light the

supervisor’s cigarette. Consider that lack of cleanliness is

also listed as a basis for discharge under this contract, but

certainly a smudge on a nose would not qualify for discharge.

So, taking account of the severity of the disobedience is,

within broad limits, surely a part of the arbitrator’s authority.

Viewed de novo, it is a more difficult question whether

the present contract can be read to limit management’s right

to discharge an insubordinate employee where there exist

“mitigating considerations.” Of course, lack of the severity of

disobedience could be viewed as a mitigating consideration;

but the arbitrator’s claim in this case is not focused on lack

of severity. Rather, he claimed and exercised a broader

mandate to take into account anything that might equitably

bear on whether a discharge for disobedience seemed fair

and proportionate.

Most judges, interpreting this contract for themselves,

would probably reject this latter reading. Taking the contract

as a whole, it explicitly reserves disciplinary authority to

management, save as constrained by other provisions. Most

judges would likely take the “just cause” provision quoted

above as licensing management to discharge an employee

who was patently “insubordinate,” even if he had served the

company loyally for a decade and had a sick wife at home

and a child in college. The contract does not say that

discharge for insubordination is permitted only where “just”

or “fair.”

Even so, the parties in this case empowered an arbitrator to

interpret the contract and that includes the power to adopt

readings that a judge might reject if no arbitrator were in-

18a

volved. Does this include a reading that allows the arbitrator

to say that disobedience is “insubordination” if there are ade-

quate “mitigating considerations” that have nothing to do

with whether the disobedience was clear, deliberate, and per-

tinent to the employee’s duties? This is a stretch of language,

to be sure, but whether it goes too far to be a permissible

arbitrator reading is something about which reasonable judges

might differ.”

This debatable issue has been resolved in this circuit. In

two different cases, this court has ruled that contracts,

similarly structured as that at issue here, give management a

right to discharge an employee guilty of a listed offense, and

that an arbitrator cannot mitigate the penalty because of ame- :

liorative circumstances. See Georgia-Pacific Corp. v. Local

27, United Paperworkers Int’1 Union, 864 F.2d 940 (1st Cir. |

1988); S.D. Warren Co. v. United Paperworkers’ Int'l Union,

845 F.2d 3 (1st Cir.), cert. denied, 488 U.S. 992 (1988).

In $.D. Warren, 845 F.2d at 6, the contract reserved to

management “sole” authority to discipline, subject to ap-

pended rules; and the appended rules said that “violations” of ;

specified rules were “causes for discharge,” including “pos-

session” of marijuana on company property. The discharged |

employees had possessed marijuana at the plant, but the arbi-

trator ruled that the sanction was too severe. Id. The Warren

decision held that the arbitrator had exceeded his power. /d.

at 8.

A similar conclusion was reached in Georgia-Pacific, 864

F.2d at 942-43: the contract permitted discharge for “dishon-

>For example, immediate consideration of “fairness” might push in

one direction; in the other, the long-term cost of unpredictability leading

in turn to increased difficulty in negotiating even more detailed

provisions. Another factor, which might cut either way, might be the

practice in the industry. Yet another would be how far the particular

equities urged still had some connection with the statutory language.

EE —————————

19a

esty,” and the employee had reported himself unable to work

for medical reasons and had instead participated in a golf

tournament. The arbitrator ordered reinstatement based on the

employee’s many years of service. Jd. at 944, Again, the

court held that the arbitrator was improperly rewriting the

contract. /d. at 946. Thereafter, this court several times ac-

knowledged that S.D. Warren/Georgia-Pacific were the rule

even in cases where the court managed to distinguish those

cases on their facts. E.g., Keebler Co. v. Truck Drivers, Local

170, 247 F.3d 8, 13-14 & n.2 (1st Cir. 2001); Crafts Precision

Indus., Inc. v. Lodge No. 1836, Int’l Ass’n of Machinists, 889

F.2d 1184, 1185-86 (1st Cir. 1989). :

Based on first principles and Supreine Court precedent, the

dissenting opinion in this case argues (in substance) that S.D.

Warren and Georgia-Pacific were mistaken. The first princi-

ples, themselves derived from Supreme Court precedent, are

inevitably quite general statements about the scope of and

limits to arbitrator authority; some language helps Beaupre,

some helps the company, and none of it in a debatable case

like this one would be decisive if we were deciding this case

without any governing circuit precedent.

As for the Supreme Court’s holdings, only Misco has facts

arguably close to our own.’ In Misco, 484 U.S. at 41-42, the

Court said that an arbitrator could impose a lesser remedy

than discharge, arguably in a situation not too far from our

own. But the Court’s rationale is somewhat cryptic and turned

in some measure on a peculiar stipulation of the parties that

* Other decisions include Eastern Associated Coal Corp. v. United

Mine Workers, 531 U.S. 57 (2000), and Major League Baseball Players

Ass'n v. Garvey, 532 U.S. 504 (2001). In Eastern, 531 U.S. at 60, 67, the

Court affirmed the arbitrator’s award because the arbitrator did not find

“just cause” for discharge, and the parties, by agreement, entrusted the

remedial decision to the arbitrator. In Garvey, 532 U.S. at 510, the Court

held that an arbitrator’s award could not be set aside because of a court’s

disagreement with the arbitrator’s factual findings.

20a

the issue in dispute was the existence of “just cause,” which

was said to be open to arbitral determination. /d. Read

evenhandedly, Misco is of some help to Beaupre but also

could itself be distinguished.

But this panel is not free to resolve this case based on

first principles or a reading of Misco favorable to Beaupre.

S5.D. Warren was decided after Misco—indeed, on remand

after an earlier §.D. Warren decision had been vacated by the

Supreme Court for reconsideration in light of Misco. S.D.

Warren, 845 F.2d at 4. The decision in $.D. Warren is

expressly a determination that neither Misco nor first princi-

ples preclude the decision by this court in $.D. Warren—a

decision that pretty clearly embraces our own facts.

If our own case were before us as the first one to arise after

Misco, its proper disposition would present a difficult and

interesting issue. But the rule that binds successor panels,

which serves to make law predictable, is decisive for me.

United States v. Wogan, 938 F.2d 1446, 1449 (Ist Cir.), cert.

denied, 502 U.S. 969 (1991).

2la

LYNCH, Circuit Judge (Dissenting).

The arbitrator interpreted Article 32 of the collec‘ive

bargaining agreement to say the type of insubordination

meant to be encompassed within the “just cause” for

termination was insubordination without any mitigating

circumstances. The majority says that this interpretation

exceeded the arbitrator’s scope of authority. I disagree, and

so, with respect, I dissent.

I do agree that this case can be distinguished from Keebler

Co. v. Truck Drivers, Local 170, 247 F.3d 8 (ist Cir. 2001)

and Crafts Precision Industries, Inc. v. Lodge No. 1836,

International Ass’n of Machinists, 889 F.2d 1184 (1st Cir.

1989), on the grounds given by the majority. I also agree that

the district court could reasonably have concluded that it was

bound to reverse the arbitrator under Georgia-Pacific Corp. v.

Local 27, United Paperworkers International Union, 864

F.2d 940 (ist Cir. 1988), or $.D. Warren Co. v. United

Paperworkers’ International Union, 845 F.2d 3 (Ist Cir.),

cert. denied, 488 U.S. 992 (1988). Nonetheless, developments

in the law of judicial review of arbitral awards make me

doubt that Georgia-Pacific is good law now.

Under that evolving law, I think we are required to affirm

the-arbitrator’s award.’ The majority relies on language from

United Steelworkers of America v. Enterprise Wheel & Car

Corp., 363 U.S. 593, 597 (1960), exempting awards that are

, Alternatively, remand to the arbitrator would be preferable to

reversal. “Where the basis for an arbitrator’s decision is unclear, but the

arbitrator’s opinion suggests that the decision does not draw its essence

from the collective bargaining agreement, remand is appropriate to have

the arbitrator clarify the basis for his or her decision.” Young Radiator Co.

v. Int'l Union, UAW, 734 F.2d 321, 326 n.5 (7th Cir. 1984); see also

Labor Relations Div. of Constr. Indus. of Mass., Inc. v. Int'l Bhd. of

Teamsters, 29 F.3d 742, 747 (1st Cir. 1994)(remand appropriate when

arbitrator may have exceeded his authority); Randall v. Lodge No. 1076,

Int'l Ass’n of Machinists, 648 F.2d 462, 468 (7th Cir. 1981)(same).

22a

merely “[the arbitrator’s] own brand of industrial justice”

from a general policy of judicial deference. This qualification

was reiterated in United Paperworkers International Union v.

Misco, Inc., 484 U.S. 29, 36 (1987). In Misco, however, the

Court went on to emphasize language which the majority

recites at the outset, but overlooks in its reasoning: “But as

long as the arbitrator is even arguably construing or applying

the contract and acting within the scope of his authority, that

a court is convinced he committed serious error does not

suffice to overturn his decision.” /d. at 38. The Misco Court

then reversed the court of appeals decision to overturn an

arbitral award for misreading the evidence. Id.

at 45.

The Supreme Court has continued to mandate judicial

deference to arbitral awards in subsequent decisions. In

Eastern Associated Coal Corp. v. United Mine Workers, 531

U.S. 57 (2000), the Court again reversed a decision over-

turning an arbitral award. In Eastern, the arbitrator had

ordered reinstatement of an employee who had been fired for

failing a random drug test. The arbitrator reasoned that

mitigating circumstances—including a long employment

history and stress caused by family problems—outweighed

the admitted drug use. /d. at 60, 67. The lower courts had set

aside the award on public policy grounds, a reason rejected

by the Supreme Court.

Last year, the Court strongly reaffirmed the high standard

required for judicial interference in arbitral decisions. In

Major League Baseball Players Ass'n v. Garvey, 532 U.S.

504 (2001), the Court overturned the Ninth Circuit’s reversal

of an arbitral award. The Ninth Circuit had found reversal

warranted because the arbitrator “dispensed his own brand of

industrial justice,” id. at 507, in refusing to consider evidence

supporting Garvey’s claim. The court of appeals labelled the

arbitrator’s finding “completely inexplicable” and “bordering

on the irrational.” Garvey v. Roberts, 203 F.3d 580, 590 (9th

23a

Cir. 2000). Nonetheless, the Supreme Court responded by

reiterating its holdings in Misco and Eastern:

Courts are not authorized to review the arbitrator’s

decision on the merits despite allegations that the

decision rests on factual errors or misinterprets the

parties’ agreement. We recently reiterated that if an

“arbitrator is even arguably construing or applying the

contract and acting within the scope of his authority,”

the fact that “a court is convinced he committed serious

error does not suffice to overturn his decision.”

532 U.S. at 509 (citations omitted). Moreover, the Court went

on to conclude that the error alleged-—ignoring important

evidence—did not even rise to the standard of serious error:

“The arbitrator’s analysis may have been unpersuasive to the

Court of Appeals, but his decision hardly qualifies as serious

error, let alone irrational or inexplicable error. And, as we

have said, any such error would not justify the actions taken

by the court.” /d. at 511 n.2. In short, the court of appeals

may not substitute its own contractual interpretation for the

arbitrator’s, without showing more than “serious error.” That

is not the case here.

The majority finds that the arbitrator exceeded his authority

in interpreting the collective bargaining agreement and in

his decision to reinstate Beaupre. But the agreement gives

him precisely that authority. The arbitrator’s authority is set

forth in Article 33, which governs grievance and arbitration.

The presentation of a grievance is required to resolve

“differences . . . as to the meaning or application of the provi-

sions of the Agreement.” Any dispute after the third step of

the grievance process is submitted to the arbitrator. It is true

that Article 33 contains a restriction: “The arbitrator shall

have no power to alter or modify any of the terms of this

Agreement or to impose on any party a limitation or

obligation not explicitly provided for in this Agreement.”

Even with such a restriction, it is commonplace that an

arbitrator has authority to construe the terms of the agreement

24a

he is enforcing. See, e.g., Steelworkers, 363 U.S. at 599 (“As

we [have] emphasized, the question of interpretation of the

collective bargaining agreement is a question for the arbitra-

tor. It is the arbitrator’s construction which was bargained for;

and so far as the arbitrator’s decision concerns construction of

the contract, the courts have no business overruling him

because their interpretation of the contract is different from

his.””). I see nothing in this clause which prohibits the

arbitrator from construing the agreement, as he has done here.

The majority also overestimates the restrictions placed on

arbitrators’ ability to fashion a remedy. The majority holds

that “once an arbitrator finds that an employee has committed

an act specifically listed in the collective bargaining

agreement as providing just cause for termination, the

arbitrator is not free to fashion a separate remedy apart from

the one provided by the parties’ agreement.” Opinion at 12-

13. The majority takes this to mean that once the arbitrator

found insubordination in this case, he had no discretion as to

remedy—he was bound to uphold the employee’s termina-

tion. But this view overlooks well-established law granting

the arbitrator the same level of freedom in crafting a remedy

as he has in contractual interpretation. “Where it is contem-

plated that the arbitrator will determine remedies for contract

violations that he finds, courts have no authority to disagree

with his honest judgment in that respect.” Misco, 484 U.S. at

38. In Misco, it was the use or possession of controlled

substances on company property which was listed as cause

for discharge. The arbitrator’s authority was limited to

interpretation and application of terms in the contract.

Nonetheless, the Court upheld the arbitrator’s reinstatement

of an employee terminated for drug use on company property.

Id. at 35. The remedy of reinstatement, under a contractual

regime similar to the one at issue here, was within the power

of the arbitrator to fashion.

25a

Admittedly, this result—which I believe to be mandated by

Supreme Court precedent—poses some problems. It is not

entirely satisfactory to say to employers that they can draft

the collective bargaining agreement to Clearly restrict the

arbitrator from exercising the authority that the arbitrator

applied here. The realities of what happens at the bargaining

table may make this illusory. Article 32 was admirably draft-

cd to give management some flexibility and give workers the

protection that not every instance of insubordination must

mean termination. It can be questioned why the price of that

flexibility should be to permit an arbitrator to second guess

management’s judgment to be less forgiving of an em-

ployee’s uisobedience of a direct order. Here, the employer’s

unforgiving attitude is not irrational. Beaupre was asked

several times, including by a more mature and senior

supervisor, to comply with Arsenault’s directive. But that is

not the question for the court.

Instead, under the law that the Supreme Court has crafted,

we must defer to the arbitrator so long as he is “even arguably

construing or applying the contract and acting within the

scope of his authority.” Misco, 484 U.S. at 36. I think we

must defer to the award. The majority’s decision is

thoughtful, well-written, and sensitive. The majority and I

simply have a good faith disagreement about the law. To the

extent Georgia-Pacific and 5.D. Warren are taken to control

the outcome of this case, i think it time for this court to

disavow both of those cases as inconsistent with Supreme

Court precedent. With regret, I find myself in dissent.

26a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

Civil No. 01-180-P-H

POLAND SPRING CORPORATION,

Plaintiff,

Ve

LOCAL 1445, UNITED FOOD AND COMMERCIAL

WORKERS UNION, AFL-CIO,

Defendant.

January 3, 2002, Decided

OPINION

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

This case involves the enforceability of an arbitrator’s

award reinstating and ordering back pay for a terminated

employee. Under governing First Circuit precedent, the award

exceeded the arbitrator’s authority. Accordingly, the defend-

ant Union’s motion for summary judgment enforcing the

award is DENIED, and the plaintiff employer’s motion for

summary judgment vacating the award is GRANTED.

Under-the collective bargaining agreement between Poland

Spring Corporation and Local 1445, United Food & Com-

mercial Workers Union, “insubordination” is explicitly made

“just cause for discharge.” Collective Bargaining Agreement

(“CBA”), Art. 32. Unlike some other bases for discharge,

there is no requirement of prior warning in cases of insub-

ordination. CBA, Art. 32. Here, the arbitrator found explicitly

that a terminated employee was guilty of insubordination.

27a

Award of Arbitrator (“Award”) at 7-10. He proceeded to rule,

however, that “the level of discipline” was a “remaining issue

for discussion.” Award at 10. He then stated that Article 32

created a “per se rule” of discharge “in clear, straight-forward

cases of insubordination, without mitigating considerations.”

Award at 11.

However, the language of Article 32 does not state that

even in the presence of mitigating circumstances,

insubordination still will necessarily provide the

Company with just cause for termination. On the

contrary, where significant, mitigating considerations are

present, the culpability of the employee may _ be

diminished, and summary termination may no longer be

justified. This more complex fact situation must be

considered under the general, just cause standard set

forth in article 32, giving due weight to the fact that the

parties have agreed that a pure case of insubordination,

without mitigating considerations, would provide just

Cause to terminate.

Award at 11.

Nothing in the collective bargaining agreement supports

the Arbitrator’s reasoning. Article 32 states directly and

concisely that “the parties agree that just cause for discharge

shall include . . . insubordination.” CBA, Art. 32. There is

nothing about “clear, straight-forward” cases, “pure” cases, or

“mitigating circumstances.” See CBA, Art. 32. (In fact, the

arbitrator considered and rejected the Union’s proffered

“affirmative defenses” to the charge of insubordination.) The

collective bargaining agreement also provides that an “arbi-

trator shall have no power to alter or modify any of the terms

of this Agreement or to impose on any party a limitation or

obligation not explicitly provided for in this Agreement.”

CBA, Art. 33. Under the authority of $.D. Warren Co. v.

United Paperworkers Int'l Union, Local 1069, 845 F.2d 3, 7-

8 (1st Cir. 1988), and Georgia-Pacific Corp. v. Local 27, 864

28a

F.2d 940, 944-45 (Ist Cir. 1988), I conclude that the arbitrator

exceeded his powers in ordering the reinstatement of the

insubordinate employee.

The defendant’s motion for summary judgment is DE-

NIED and the plaintiff's motion for summary judgment is

GRANTED. Judgment shall be entered setting aside and

vacating the arbitrator’s award.

SO ORDERED.

DATED THIS 3rd DAY OF JANUARY, 2002.

/s/ D. Brock Hornby

D. BROCK HORNBY

UNITED STATES CHIEF DISTRICT JUDGE

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 02-1064

POLAND SPRING CORPORATION,

Plaintiff/Appellee,

V.

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL

UNION, AFL-CIO-CLC, LOCAL 1445,

Defendant/Appellant.

January 22, 2003, Decided

BEFORE: BOUDIN, Chief Judge, TORRUELLA,

SELYA, LYNCH, LIPEZ * and HOWARD, Circuit Judges.

ORDER OF THE COURT

The panel of judges that rendered the decision in this case

having voted to deny the petition for rehearing and the

Suggestion for rehearing en banc having been carefully

considered by the judges of the Court in regular, active

service and a majority of said judges not having voted to

order that the appeal be heard or reheard by the Court en

banc, with one judge dissenting,

It is ordered that the petition for rehearing and the

suggestion for rehearing en banc, be denied. Dissent follows.

* Judge Lipez is recused from this matter.

30a

DISSENT:

LYNCH, Circuit Judge (Dissenting).

I dissent from the denial of en banc review. The outcome

of this case—which is based on two prior First Circuit cases,

Georgia-Pacific Corp. v. Local 27, United Paperworkers

International Union, 864 F.2d 940 (1988), and S.D. Warren

—Co. v. United Paper-workers’ International Union, 845 F.2d

3 (Ist Cir. 1988)—is, to my view, contrary to the deference to

arbitrators required by United Paperworkers International

Union v. Misco, Inc., 484 U.S. 29 (1987). It is true that

Misco warns that arbitrators may not rewrite contracts and

substitute their own notions of industrial justice. See id. at 36.

The majority opinion finds that is what the arbitrator did here,

a conclusion I think erroneous and contrary to Misco’s

mandate that federal courts must defer to the arbitrator so

long as he is “even arguably construing or applying the

contract and acting within the scope of his authority.” /d. at

38; accord Major League Baseball Players Ass'n v. Garvey,

532 U.S. 504, 509 (2001); E. Assoc. Coal Corp. v. United

Mine Workers, 531 U.S. 57, 62 (2000).

The majority’s opinion intensifies a circuit split. It runs

contrary to the law of other circuits which carefully and

explicitly delimit the scope of judicial review of arbitral

awards on the ground that the arbitrator has exceeded his

authority. See Madison Hotel v. Hotel & Rest. Employees,

Local 25, 330 U.S. App. D.C. 212, 144 F.3d 855, 858-59

(D.C. Cir. 1998) (“While courts . . . may review the substance

of an arbitration award, only the narrowest circumstances will

justify setting the award aside. An arbitrator cannot, for

instance, render a judgment based on external legal sources,

wholly without regard to the terms of the parties’ contract.’’)

(internal quotation omitted); Yusuf Ahmed Alghanim & Sons,

W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15, 23 (2d Cir. 1997)

(“An arbitrator’s decision is entitled to substantial deference,

and the arbitrator need only explicate his reasoning under the

3la

contract in terms that offer even a barely colorable

justification for the outcome reached in order to withstand

judicial scrutiny.”) (internal quotations omitted); Arch of Ill.

v. District 12, United Mine Workers, 85 F.3d 1289, 1292 (7th

Cir. 1996) (upholding arbitral award that employee’s sleeping

on the job is not just cause for termination and saying “‘it is

only when the arbitrator must have based his award on some

body of thought, or feeling, or policy, or law that is outside

the contract . . . that the award can be said not to ‘draw its

essence from the collective bargaining agreement.””’) (internal

quotations omitted).

It may be difficult for courts to refrain from substituting

their own interpretation of the collective bargaining

agreement, but they are nonetheless obligated to do so. The

question, in the apt words of the Seventh Circuit, “is not

whether the arbitrator or arbitrators erred in interpreting the

contract; it is not whether they clearly erred in interpreting the

contract; it is not whether they grossly erred in interpreting

the contract; it is whether they interpreted the contract.”

George Watts & Son, Inc. v. Tiffany & Co., 248 F.3d 577, 579

(7th Cir. 2001) (Easterbrook, J.) (rejecting argument that

because courts view issues of contract interpretation as issues

of law that justifies setting aside an arbitral award for legal

errors) (internal quotation omitted). In sum, “courts have no

business overruling [an arbitrator] because their interpretation

of the contract is different from his.” United Steelworkers of

Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 599 (1960).

The issue is important and will face us again. Discharge of

employees for insubordination or other reasons said to

amount to grounds for termination is a recurring theme in

labor arbitration. I regret that this court has chosen not to

address the issue on rehearing en banc. Perhaps the Supreme

Court will choose to do so.

32a

APPENDIX D

VOLUNTARY LABOR ARBITRATOR TRIBUNAL

IN THE MATTER OF ARBITRATION BETWEEN

POLAND SPRING CORPORATION

AND

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL

UNION, AFL-CIO-CLC, LOCAL 1445

CASE NAME: Beaupre Termination

AWARD OF THE ARBITRATOR

\

The UNDERSIGNED ARBITRATOR(S), having been

designated in accordance with the arbitration agreement

entered into by the above-named Parties, and dated and

having been duly sworn and having duly heard the proofs and

allegations of the Parties, AWARDS as follows:

Because the supervisor’s misbehavior contributed to the

initial breakdown in the proper -relationship between

supervisor and employee, the Company violated the contract

by discharging Leo Beaupre as a consequence of the February

5 incident.

The Company shall reduce the grievant’s discharge to a

suspension of two weeks without pay. The Company shall

reinstate the grievant and make him whole for pay and

benefits he lost due to the termination of his employment

without just cause.

Date: April 16, 2001

Philip Dunn, Arbitrator

33a

Appearances: Warren H. Pyle, Esq. of Pyle, Rome,

Lichten & Ehrenberg, PC , Counsel for the

Union

Richard R. Boisseau, Esq. of Kilpatrick

Stockton LLP, Counsel for the Company

STIPULATED ISSUE

Did the Company violate the contract by discharging Leo

Beaupre?

If so, what shall be the remedy?

FACTUAL BACKGROUND

The grievant was hired by the Company on September 28,

1998, as a multi-operator. There is no evidence that prior to

February 5, 2000, he had any problems regarding non-

compliance with directives from supervisors, or otherwise

challenging or undermining their authority of supervisors to

manage the workplace. At some point prior to February

2000, the grievant had moved into the job classification of

palletizer operator. A palletizer is a machine that loads case

lots of bottles onto pallets, and wraps the full pallets in plastic

for shipping. The palletizer operator’s job is responsible for

keeping the machine running. As part of this job, he places

empty pallets on the machine, and removes loaded pallets.

All bargaining unit employees are expected to share

in keeping the bottling plant clean. Accordingly, it is expect-

ed that each employee will clean up as needed under and

around his machine, during the course of any shift. This

general housekeeping expectation applied to the grievant as

well. His palletizer machine was elevated on legs above the

floor, so the operator would at times need to clean out scrap

bottles or other litter from under the machine.

The incident which led to the grievant’s termination

occurred on the night shift that ran from 10 p.m. on February

34a

5 through 6 a.m. on February 6. The grievant’s supervisor

that night was Mike Arsenault, who that night was

supervising production lines 1, 11 and 12. The grievant was

assigned to operate the palletizer machine on line 12.

Arsenault had only recently promoted up from a bargaining

unit position into a supervisory role. Arsenault testified

without contradiction that there is somewhat of a tradition in

this plant of bargaining unit members teasing or ribbing a

new supervisor who has recently promoted out of the

bargaining unit into a supervisory role.

At some point during the February 5, 6 night shift, lines 11

and 12 were temporarily down. A group of line 11 and 12

employees got together to talk outside of the filler room. This

group included the grievant, Arsenault, and production

workers Gaworski, Ouellette, Brewer, and Simaglou. The

bargaining unit employees rather mercilessly and crudely

teased Arsenault, stating in starkly graphic terms how he had

provided an imaginative variety of sexual favors to the plant

manager, also a male, during work time in the manager’s

office, in order to gain his promotion to a supervisory

position. The grievant testified that he did not share in

making the statements in this regard, but he did join in

[nervously] with the laughter amongst the group. Arsenault

testified that the grievant shared in the crude banter.

There is no dispute that Arsenault for some period of time

shared right in with this joking around. The grievant testified

without contradiction that Arsenault at one point even

pretended to call up to the plant manager on his radio, to tell

the manager that Arsenault would be right up to see him.

Arsenault testified that this bantering continued for 30

seconds to a minute. The grievant testified that it lasted

for as much as 8 to 10 minutes. None of the other partici-

pants in this teasing session were called to testify in the

arbitration proceeding.

35a

Arsenault testified that the bantering ended when Simaglou

received a radio call to go to another assignment; Arsenault

then assigned the other employee to various work tasks. The

grievant, in contrast, testified that Arsenault suddenly

“became unglued,” stated “That will be enough,” and ordered

everyone back to work.

It is undisputed that when the banter ended, Arsenault

directed that the grievant and Gaworski go into the filler room

to help clean up bottles that were on the floor. Gaworski left

to go into the filler room.

While Arsenault and the grievant testified as to different

words expressed by the two of them, it is undisputed that

Arsenault came to realize that due to an asthmatic condition,

the grievant could not work in the filler room where elevated

levels of ozone could be present. Upon realizing that,

Arsenault withdrew his instruction that the grievant go to

work in the filler room.

Regarding this point forward in the chronology of events of

February 5 and 6, the grievant and Arsenault gave differing

testimony regarding the precise words said by each of them.

It is clear from the record, however, that the following events

transpired. After the grievant indicated that he could not

work in the filler room, Arsenault directed the grievant

instead to clean bottles out from under the accumulation

table.’ The accumulation table is a large table where filled

bottles coming from the filler operation can accumulate if the

palletizer operation is interrupted. One would need to crawl

to get under the accumulation table, which stands on legs a

couple of feet off the floor.

' Arsenault testified that he told the grievant, “I need you to pick up the

botties under the accumulation table.” The grievant testified that Arsenault

pointed under the accumulation and said, “I want you to crawl underneath

there and get the bottle of water.”

36a

The grievant declined to follow this directive from

Arsenault.” Arsenault repeated his directive to the grievant,

but the grievant continued to refuse to clean out the bottles

from under the accumulation table. Arsenault testified that he

then warned the grievant that his non-compliance would

constitute an act of insubordination which could result in the

termination of the grievant’s employment. The grievant

continued his refusal to clean out the empty bottle(s) from

under the accumulation table.

Arsenault then directed the grievant to accompany him to

the conference room. On the way there, the grievant testified,

he asked Arsenault if he was the man that was going to take

the grievant’s job over a bottle of water, and if he did, would

that make him feel like a man.’ Certainly, then, the grievant

at least by-that point understood that he could face

termination for failing to comply with Arsenault’s directive.

Still, the grievant did not indicate that he would perform the

assigned work.

a

On the way to the conference room, Arsenault radioed to a

more experienced supervisor, Seth LaPlante, and asked him

to meet Arsenault in the conference room. LaPlante came

and met Arsenault and the grievant en route to the conference

room. Arsenault and LaPlante both testified that as the three

of them proceeded toward the conference room, the grievant

said words to the effect, “If you want to show what your

power is, I am going to show what my power is.” The

grievant testified that he made no such statement. Arsenault

informed LaPlante that they were on the way to the

? The grievant testified that he said, “You know, Mike, . . . my

crawling days are over; it’s hard for me to crawl into bed just-as well as it

is hard for me to crawl out of bed.” Arsenault testified that the grievant

said, “It’s not my job, I’m a shipper, I’m not going to do it.”

* This comes from the written statement prepared by the grievant on

the evening of February 6. :

37a

conference room because the grievant had refused to comply

with Arsenault’s directive to perform certain work.

The grievant testified that en route to the conference room,

he asked that a union steward be called to represent him there.

Arsenault did not recall such a request, but acknowledged that

it may have happened.

The three arrived at the conference room. Also there were

bargaining unit members Joey Nickerson and Lynn Ledbetter

were in the conference room, as well. Arsenault asked them

if a union steward was on duty, and Ledbetter answered no.

Arsenault then asked if they would be willing to sit in as

witnesses, and they said they would. Arsenault began to

write up a Suspension notice to the grievant.

Arsenault and LaPlante again asked the grievant if he

would go out and pick up the bottles as directed. He

responded that he did not know what they were talking about,

Arsenault and LaPlante testified. The grievarit, in contrast,

testified that he refused to talk in the conference room,

because no union steward was present. The grievant testified

that he did ask what the disciplinary action would be; and

LaPlante answered, suspension pending investigation of

grounds for termination.

The grievant still did not agree to go and perform the

assigned work. He was suspended pending investigation, and

sent home.

On February 6, the Union filed a grievance signed by the

grievant and Chief Steward Barnies. That grievance stated as

the “nature of grievance,”

2-5-00 3rd shift . . . . [Grievant] was suspended pending

investigation for alleged insubordination, without just

cause.

. .. [Grievant] states his supervisor and other employees

were acting unprofessional on the floor, and .

38a

[Grievant] feels that Mike Arsenault (supervisor) tried to

embarrass Leo in front of his peers by making him crawl

under a conveyer for one bottle, therefore the group was

making unwanted gestures.

It is noteworthy that the grievance as written makes no

reference whatsoever to any health or safety concern.

Also on February 6, the grievant wrote up for his own use a

statement of what had transpired on the prior night’s shift.

The middle of this writing states,

When Mike realized he was being laughed at and not

with he got mad, and then ordered Dennis and myself to

go and work in the filler room to pick up bottles on line

11, I said that I had a Dr. note saying that I couldn’t

cause I had asthma and that I was not to be exposed to

the ozone. I then said I was going back to my palletizer —

to do some more clean up. Mike said better yet quote

and unquote craw: under the conveyor table and pick up

that water bottle. I said to him that my crawling days

were over, and that it took everything for me to crawl in

to bed at night and to crawl out of bed in the morning.

(I’m sorry but I did not feel comfortable bending over in

front of Mike or in front of my co-workers after all of

the sexual talk that took place seconds earlier.)

It is interesting that the grievant in this private note for his

owr use clearly articulated a specific medical concern of

asthma, explaining why he could not work in the filling room

where elevated levels of ozone could be present. He made no

comparable, specific reference to any liver ailment to explain

whiy he could not clean under the accumulation table. The

reference to “my crawling days are over” is at best vague and

unspecific, and appears to relate more to his stated embarrass-

ment in bending over after all the sexual banter (as clarified

in the parenthetical comment immediately following).

At the step 2 hearing, Chief Steward Barnies asserted that

there had been safety/health concerns which caused the

39a

grievant to decline to pick up the bottle(s) from under the

accumulation table. According to Barnies, he cited to the

Company both a liver problem and a back problem that the

grievant had, which would have made it difficult for him to

get down on the floor and clean out underneath the

accumulation table. According to the Company’s witnesses,

the only health concern cited by Barnies was the back

problem, which was the subject of a worker’s compensation

claim; there was no reference to any liver condition. The

Company checked the grievant’s worker’s comp file and

fcund that the back problem resulted only in a restriction of

no overhead lifting. Because there was no restriction on

stooping or bending, the Company concluded that no medical

concern had precluded the grievant from cleaning scrap

bottles out from under the accumulation table.

Barnies at step two also raised to other points in the

gricvant’s defense. One was that—Arsenault had singled the

grievant out for harassment because of a business deal gone

bad between Arsenau!t’s father and the grievant. The other

was that after the sexual banter, the grievant felt it would

have been embarrassing and humiliating to have to bend

down in front of Arsenault and co-workers, to clean under the

accumulation table. The Company concluded that these

issues had not been raised at the time that the grievant refused

Arsenault’s order; but even if they had been, they would not

have excused the grievant from complying with Arsenault’s

directive.

Foliswing the step 2 grievance meeting, the Company

converted the grievant’s suspension pending investigation to

a termination of employment.

At step three, the Union again cited the sexual banter and

asserted that the grievant’s non-compliance with Arsenault’s

directive was because the grievant felt it would be

embarrassing and humiliating to bend over in front of

Arsenault and co-workers. According to the Union, there

40a

also was some reference at step three to the grievant’s liver

condition. The Company witnesses testified that there was no

reference at step 3 to any medical, health/safety concern

which would explain the grievant’s refusal to clean under the

accumulation table.

A few days after the step three meeting, Business Agent

Dennis Norton came and spoke with Mr. Dudukovich the

Company’s human resources manager. Norton explained that

the grievant had hepatitis C, end was taking Interferon.

Norton told Dudukovich that the grievant had not provided

this information to the Company earlier, either at the

February 5 incideni or in the grievance procedure, because

he felt the information about his liver condition and taking

Interferon was confidential and did not want it spread around

the shop floor.’

The Company adhered to its decision to terminate the

grievant, and the Union appealed its grievance challenging

that termination to arbitration.

DISCUSSION

There is little doubt in this case that absent some

persuasive affirmative defense, the grievant was guilty of the

offense of insubordination on the February 5, 2000 night

shift. Arsenault repeatedly ordered the grievant to clean out

‘The grievant, however, gave the following testimony. When his

doctor prior to February 2000 placed the grievant on Interferon, his doctor

instructed the grievant that he should inform management, in case side

effects caused the grievant to need to leave work. The grievant then did

tell the head supervisor on the third shift, Tom Wiencek, and Shop

Steward McLean, that the grievant had a liver condition and was taking

Interferon for it. Wiencek and the grievant agreed that Wiencek would so

inform other third shift supervisors of third shift of this medical informa-

tion, on a need to know basis. This establishes that the grievant was fully

prepared to inform his supervisors in detail of his liver ailment, and the

medication he was taking “1s a result, whenever necessary in the context of

his work.

4la

the scrap bottle(s) from under the accumulation table. The

grievant repeatedly refused to comply with that directive,

even after first Arsenault and then LaPlante made it clear io

him that he could be terminated for so refusing.

The Union raises two primary defenses.” One involves a

claim that the grievant’s health or safety would have been

compromised, were he to have complied with Arsenault’s

directive. The second involves the claim that the grievant

would have been subjected to undue humiliation or

embarrassment, were he to have bent over to clean under the

accumulation table. The Union also raises a claim under

NLRB vy. Weingarten, 420 U.S. 265 (1975), arguing that the

grievant was prejudiced by the Company’s insistence upon

proceeding with a disciplinary interview, even though the

grievant had asked for a union steward to attend that

interview but no steward was available.

The Union failed to meet its burden of proving that the

health and safety exception was applicable in this case. I base

this conclusion upon a number of considerations.

First, it is telling in the extreme that grievant told Arsenault

with specificity that a medical condition—ozone sensitivity

which could trigger asthma—precluded him from working in

the filler room. Arsenault responded appropriately to that

information from the grievant, by withdrawing that work

order to the grievant. Thus, the grievant had just seen that by

giving a specific medical explanation of why he could not

perform a task, Arsenault would withdraw the problematic

work assignment. In stark contrast. the grievant gave

Arsenault no comparable, specific medical reason why he

could not clean under the accumiulation table. This strongly

Suggests that the grievant did not genuinely perceive any

>The Union in its brief did not press its claim that the disciplinary

action was somehow tainted by the fact that the grievant's father and

Supervisor Arsenault were involved in a business relationship gone bad.

42a

safety/health risk regarding the second directive. He knew

that he could cite with specificity a medical reason as the

basis for declining to follow a directive, and he did so without

discipline regarding the ozone. His failure to act in a

comparable manner regarding the order to clean under

the accumulation table is telling evidence that he did not

sincerely have a comparable medical concern about the

latter directive.

The Union argues that the grievant did at least imply that

there was some medical problem causing him to not follow

Arsenault’s directive. The Union cites the grievant's

testimony that he told Arsenault, “You know, Mike, . . . my

crawling days are over; it’s hard for me to crawl into bed just

as well as it is hard for me to crawl out of bed.” The Union

suggests that Arsenault should have inquired further, if he

needed clarification of what medical condition had caused the

grievant's “crawling days” to be over.

However, assuming that this comment was made, it was at

best so ambiguous as to not put Arsenault on any reasonable

notice that a medical issue might be causing the grievant to

decline to crawl under the accumulation table to clean out

scrap bottles. That comment could easily be interpreted as

meaning nothing more than, “I’m a grown man, I don’t crawl

around for anybody.” Again, the grievant had just told

Arsenault in clear, specific terms of a medical condition, his

asthma, which made him unable to work in the filler room

where ozone levels could be higher than normal. In sharp

contrast, the grievant’s vague and ambiguous reference to his

crawling days being over did not provide to Arsenault a

reasonable basis to conclude that the grievant was medically

precluded from getting down on his hands and knees to clean

under the accumulation table.

The Union further argues that it was the grievant's desire to

keep confidential his hepatitis C, which caused him to not

provide more specific information to Arsenault. The Union

43a-

Suggests that the grievant was concerned that it would be

embarrassing to have it widely known on the shop floor that

he had contracted hepatitis. Thus, the Union suggests, the

grievant limited his comment to the somewhat ambiguous

comment, “My crawling days are over,” and so forth.

This argument is not persuasive. The grievant testified that

he already had told Head Supervisor Wiencek of this ailment,

with understanding that Wiencek would inform any other

Supervisors On a need-to-know basis. This testimony shows

that the grievant was prepared to have supervisors know of

his liver ailment, as needed, in the context of his work.

Presumably, when faced with termination for being insub-

ordinate, he would similarly have told Arsenault of the

medical condition [hepatitis C, liver ailment] that was forcing

him to refuse to comply; if that in fact was the motivating

factor. Indeed, he could have told Arsenault that in private,

before this entire situation escalated. That he did not do so

[while he did successfully raise the ozone issue regarding the

other directive] seriously undermines the sincerity of his

claim that his refusal was based upon a bona fide, reasonable

health/safety concern pertaining to his liver condition.

Even more telling is the grievant's post-incident write-up

of what happened, and then what was included in the

grievance which was filed. The grievant wrote a statement

himself, for his own use, on the night of February 6. Yet

even in that document for his own use, he mentions nothing

about any medical condition—liver, back, or anything else-

impinging in any way upon his ability to comply with

Arsenault’s directive that he clean under the accumulation

table [while he does mention his ozone sensitivity regarding

the earlier order]. Even upon unrushed reflection, in the

privacy of his home when he wrote for his own use what

happened that night, he made no reference to any medical

limitations or concerns relating to his liver condition.

44a

Similarly, the grievance filed on February 6 contains

nothing suggesting that there was any safety or health

concern that caused the grievant to refuse to comply with

Arsenault’s directive that the grievant clean out the scrap

bottle(s) from under the accumulation machine. With his job

on the line, the grievant would have informed his Union

representative and management of his liver condition at least

by the time of filing his grievance, if that in fact had been a

factor in his failing to comply with Arsenault’s directive. His

failure to make any reference to his liver condition

convincingly shows that this was not a concern that factored

into his non-compliance with the work directive.

Furthermore, the medical limitation regarding his back—

cited by the Union at the step 2 grievance meeting—only

pertained to lifting above shoulder height. There is no

evidence it would have limited his ability to safely clean a

few bottles out from under a table. It is interesting, though,

that the grievant had given the Company written doctor’s

instructions about no lifting above shoulder height. One

might think that if the grievant’s liver condition precluded

stooping or bending down, for example to clean underneath

tables/machinery, the grievant would have provided similar

documentation to the Company regarding that serious medi-

cal condition. That he did so as to his back condition, but not

as to his liver condition, is additional evidence that the liver

condition was not a limiting factor regarding occasional

stooping and crawling in his work.

Indeed, part of his job is to clean up in his own work area.

That would entail comparable clean-up under machines,

tables, and so forth. Thus, the order that Arsenault gave on

February 5 was consistent with duties routinely given to

grievant. If the grievant were truly limited in his medical

capacity to perform such work as was routinely assigned to

him, he would haye presented medical documentation to the

Company, placing limits on work of that type.

45a

In sum, the Union has failed to prove that the grievant’s

repeated refusals to follow Arsenault’s clear order were

motivated by a sincerely held, reasonable health/safety

concern.

The Union’s second claim is that the grievant reasonably

believed that he would have been subjected to undue

humiliation or embarrassment, or even risk of sexual assau!t,

were he to have bent over to clean under the accumulation

table. This defense, as well, is unpersuasive. The banter

before the grievant’s act of insubordination quite obviously

involved a bunch of guys—the grievant’s co-workers from

within the bargaining unit—simply ribbing the new

supervisor, and the new supervisor [unwisely] trying to play

along to show he was still a good guy. The grievant knew

that none of this was serious; he even observed Arsenault

play act that he was calling up right then and there, on his

radio, to his supposed sexual partner to set up a sexual

encounter. There was not in that ribbing the slightest, serious

implication that Arsenault in fact had homosexual inclina-

tions, or the inclination to act on them in any way on the shop

room floor. There was absolutely no reasonable basis for the

grievant to believe that he would genuinely have been at risk

of sexual assault by Arsenault, had the grievant bent over to

clean as directed. Nor was there any reasonable basis to

believe that Arsenault in fact had any prurient interest in

checking out the grievant’s behind by having him bend over

to clean under the accumulation table.

The Union also raises a Weingarten issue, contending that

the grievant asked for but was not provided with a Union

representative during an investigatory interview.

That argument, however, mis-characterizes the purpose for

which Arsenault brought the grievant to the conference room.

This was not done to carry out an investigatory interview.

On the contrary, from Arsenault’s perspective, there was

nothing to investigate, since Arsenault had been a direct

46a

participant in all the events in question. Rather, Arsenault

brought the grievant to the conference room to write up

his notification of suspension, pending further investigation.

In addition, Arsenault hoped that by recruiting the assistance

of a second, more senior supervisor, they might be able

to persuade the grievant to change his mind and comply with

the work directive. In sum, the meeting in the conference

room was not investigatory in nature, and Weingarten rights

did not apply.

That leaves one remaining issue for discussion, that being

the level of discipline imposed. The Company asserts that

Article 32 of the labor agreement clearly and unambiguously

States that when an employee commits an act of

insubordination, that by definition constitutes just cause for

termination. Accordingly, the Company concludes, the

arbitrator lacks the authority to reduce a termination to a

lesser level of discipline, once the offense of insubordination

has been proven. s

Article 32 reads as follows:

Discipline and discharge shall only occur for just cause.

The parties agree that just cause for discharge shall

include, but not be limited to the following: ...

2. Failure to comply with Company rules; . . .

8. Insubordination;

9. Sleeping on duty;

10. Failure to use prescribed safety appliances or

observe safety rules...

It is anticipated that prior to discharge, employees would

first be given a warning with regard to items 10, 11, 12,

14, and 17, and that a warning may or may not also be

appropriate prior to discharge with regard to items 2 and

16 (depending on the rule violated or the practice not

complied with).

47a

That language may well establish that in clear, straight-

forward cases of insubordination, without mifigating consid-

erations, the parties by agreement have established the per se

rule that there is just cause for termination. However, the

language of Article 32 does not state that even in the presence

of mitigating circumstances, insubordination still = will

necessarily provide the Company with just cause for

termination. On the contrary, where significant, mitigating

considerations are present, the culpability of the employee

may be diminished, and summary termination may no longer

be justified. This more complex fact situation must be

considered under the general, just cause standard set forth in

article 32, giving due weight to the fact that the parties have

agreed that a pure case of insubordination, without mitigating

considerations, would provide just cause to terminate.

A troubling aspect of the present case is that Supervisor

Arsenault, even in the Company’s own judgment, acted

inappropriately when he joined in and took part in the rather

tasteless joking about how Arsenault had provided sexual

favors to the plant manager in order to get promoted. The

problem with Arsenault’s behavior was that the supervisor’s

action blurred the line between the supervisor and the

workers; his improper fraternizing with the workers created

the very real possibility that they would lose sight, at least at

that moment in time, of the supervisory relationship that he

now had with them.

That appears to be exactly what happened here. Until

recently, Arsenault had been a co-worker of the grievant, not

his supervisor. Then, at the start of the whole unfortunate

incident of February 5, 2000, Arsenault again was acting like

he was one of the guys, a peer rather than a supervisor. When

Arsenault then switched back into his supervisor’s role by

giving out work directives, the grievant, unfortunately,

continued to respond to Arsenault as if he were just another

one of the guys, now trying to tell the grievant what to do,

48a

None of this means that the grievant was faultless through

tlie events in question. He should have been able to figure

out that Arsenault had shifted gears and was now acting in his

supervisory capacity; he should have promptly followed the

directives of the person he knew to be his supervisor.

Furthermore, and very important to the outcome of this case,

Arsenault first alone and then with the assistance of LaPlante

gave the grievant clear warning of the fact that his behavior

had become insubordinate, and gave the grievant numerous

opportunities over an extended period of time to abandon his

initial refusal, and to perform the work as directed.

In sum, in looking at this situation as a whole, it is clear

that the supervisor’s improper fraternizing with production

workers, including the grievant, created an environment

where one of the employees might think, at least initially, that

Arsenault was not acting in his supervisory capacity, but

rather only as one of the guys joking around on the shop

floor. Given that confusing environment which Arsenault’s

actions created, at the very commencement of the February 5

incident, it was unjust for the Company to terminate the

grievant for his insubordinate behavior which immediately

followed. However, given that the grievant’s insubordinate

behavior then extended over a lengthy period of time, even

after repeated warnings from two supervisors, a two week

suspension without pay would have been justified.

49a |

APPENDIX E

AGREEMENT

Between

POLAND SPRING CORPORATION

And

UNITED FOOD & COMMERCIAL WORKERS

INTERNATIONAL UNION, AFL-CIO-CLC

LOCAL 1445

Effective: January 1, 1997

Expires: December 31, 2001

50a

ARTICLE 32: DISCIPLINE AND DISCHARGE

Discipline and discharge shall only occur for just cause.

The parties agree that just cause for discharge shall include,

but not be limited to, the following:

1. Destruction or removal of Company or fellow

employee’s property;

2. Failure to comply with written Company rules;

3. Reporting for duty under the influence of intoxicants

or drugs;

4. Bringing intoxicants or drugs into the operation;

5. Smoking other than in designated areas;

6. Reading on duty except when required;

7.Giving or taking a bribe of any nature as an

inducement to obtaining work or retaining a position;

8. Insubordination;

9. Sleeping on duty;

10. Failure to use prescribed safety appliances or

observe safety rules;

11. Generally substandard work;

12. Loafing on the job;

13. Carelessness or negligence in the use or operation of

Company equipment;

14. Excessive tardiness or absence from work without

just cause or failure to obtain approval from the

Supervisor in advance of absence from work;

15. Walking off the job or leaving the job without proper

authorization during work hours;

16. Failure to comply with specified Company operating

practices;

17. Lack of cleanliness or personal hygiene;

Sla

18. Fighting or physical contact;

19. Falsification of Company documents, including

personnel, time and reimbursement records;

20. Lying or willful misrepresentation of the facts: and

21. Committing sexual or other prohibited harassment

It is anticipated that prior to discharge, employees would

first be given a warning with regard to items 10, 11, 12, 14,

and 17, and that a warning may or may not also be

appropriate prior to discharge with regard to items 2 and

16 (depending on the rule violated or the practice not

complied with).

It is agreed that after twelve (12) months from the date of

issuance, warnings will be eliminated from the employee's

record for disciplinary purposes.

ARTICLE 33: GRIEVANCES AND ARBITRATION

Section 1. Grievance Procedure:

Should differences arise between the Employer and an

employee or between the Employer and the Union as to the

meaning or application of the provisions of the Agreement

only, there shall be no suspension or stoppage of work. The

employee or the Union shall present all grievances within

three (3) working days from the occurrence, situation,

condition or action or Management giving rise to the

grievance or the grievance shall be considered waived.

Step 1: The employee shall discuss the grievance with the

Supervisor involved. The supervisor will attempt to settle the

grievance within two (2) working days after the discussion

with the aggrieved employee. If not settled at Step 1, the

Union may take the grievance to Step 2.

Step 2: The Steward shall submit the grievance in writing

to the Department Head within three (3) working days

following notification of the Employer's first step decision.

52a

The Department Head, or his/her designee, shall attempt to

resolve the matter. If the matter is not resolved within three

(3) working days, the written grievance and the Company's

answer shall be sent to the Union. The grievance then may be

submitted to Step 3. The written grievance shall identify:

(a) the facts giving rise to the grievance;

(b) the Article and Section of the Agreement the Union

alleges that the employer violated; and

(c) the relief requested and shall be signed by the

employee or the Union.

Step 3: The Union shall notify the General Manager within

five (5) working days after the receipt of the Department

Head's second step decision of its intent to pursue the

grievance. The General Manager and/or his or her designee,

will meet with the Union's Business Representative or his/her

‘designee to resolve the matter. In the event a settlement is

not reached within five (5) working days, a dispute shall

exist, and the resolution of the dispute shall be subject to

arbitration. Grievances involving the discharge of an em-

ployee may begin at Step 3.

The parties agree to follow each of the foregoing steps in

the processing of grievances unless both parties agree to skip

one (1) or more steps; and that if, at any step, the Employer

fails to give its answer within the time limit set forth, the

Union may appeal the grievance to the next step.

If at any step, the employee/Union fails to require the

grievance to be submitted to the next step within five (5)

working days following the expiration of the time limit as set

forth in the step procedure, the grievances will be deemed by

both parties to be settled.

A grievance that ensues during the period between the

termination date of the contract and the effective date of a

new contract will not be subject to arbitration unless

53a

expressly agreed to by the Employer. The Employer and the

Union may extend the time limit set forth in the grievance

procedure by written mutual agreement. The party requesting

the extension must do so in writing by certified mail.

Only a single grievance may be heard by the arbitrator at

one time except by mutual agreement unless the issues are

identical. The Union may refuse to process, abandon or settle

a grievance irrespective of the grievant's wishes.

The rights afforded employees and the Union under this

provision are also available to the Employer. The Employer,

if it chooses, can process its grievance through the grievance

and arbitration procedure.

Section 2. Arbitration:

A dispute shall be deemed settled unless a written notifica-

tion requesting arbitration is postmarked by the Union within

five (5) working days of the Union's receipt of the Employer's

third step decision under the grievance procedure. The

written notification must state the issue to be arbitrated. If the

Union submits a written request, the Employer and the Union

shall attempt to agree upon a procedure that is mutually

agreeable where they might attempt to resolve the issue, or a

neutral person whom they shall designate as the arbitrator. If

they are unable to agree upon the selection of such an

arbitrator, they shall request a list from the A.A.A. Service

Employees including Union Stewards, representatives and

committeemen requested by the Union to attend a hearing

during work hours shall not be paid for time lost.

The Employer has the right to insist that the grievant be

present during the hearing.

Any arbitrator selected under the provisions of this Article

shall have the authority to render a decision which shall be

final and binding on the parties to the extent provided by law.

Such a decision must be rendered within thirty (30) days of

54a

the hearing, unless otherwise agreed to by both the Employer

and the Union. The arbitrator shall have no power to alter or

modify any of the terms of this Agreement or to impose on

any party a limitation or obligation not explicitly provided for

in this Agreement. Nor shall the arbitrator decide an issue in

favor of the Union which grants a right which the Union was

unable to obtain in past collective bargaining negotiations.

The professional fees of the arbitrator plus any other related

expenses over and above those fees shall be borne equally by

both the Employer and the Union. An arbitrator's remedy

cannot extend beyond the termination date of the Agreement.