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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1626%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendices
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 818

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1626%3A2. Public record. Not legal advice.