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

No. 02-1722 | JUL 28 2093

IN THE

Supreme Court of the United States

UNITED FOOD & COMMERCIAL WORKERS

INTERNATIONAL UNION, AFL-CIO, LOCAL 1445,

Petitioners,

v.

POLAND SPRING CORPORATION,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Unitep STATES Court OF APPEALS For THE First CIRCUIT

BRIEF IN OPPOSITION

RICHARD R.\BolssEAU*

Amy R. WALKER

KILPATRICK STOCKTON LLP

Attorneys for Respondent

Suite 2800

1100 Peachtree Street

Atlanta, Georgia 30309-4530

(404) 815-6500

* Counsel of Record

182047 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

I

QUESTION PRESENTED

Should the Supreme Court grant certiorari to review the

determination by the United States Court of Appeals for the

First Circuit that an arbitration award was properly vacated

because it ignored the plain language of the applicable

contract?

ll

STATEMENT PURSUANT TO RULE 29.6

Respondent’s parent corporations and the publicly held

companies holding 10% or more of its stock are:

Nestlé Waters North America Inc.

Perrier Vittel S.A.

Nestlé S.A.

ill

TABLE OF CONTENTS

Page

Question Presented ........---+eeeeree essere 1

Statement Pursuant to Rule 29.6 .........--++-- il

Table of Contents ..........--- cc cccceeccccens iil

Table of Cited Authorities ..........----e seers: Vv

Statement of the Case ..........--eeeeereeeees l

EE EES EC TE TEST ELE Te Eee l

The Grievant’s Discharge ..........---++++>: 1

The Contract Between the Parties ............ 3

The Opinion and Award .......------++++05: 5

The District Court Action .........--.++-+05- 8

Appeal to the First Circuit .....-...---+e+++: 8

Reasons for Denying the Petition ............--- 9

I. The First Circuit’s Decision Vacating an

Award that Disregards the Plain Language of

the Contract does not Contradict any Decision

of this Court Limiting Judicial Review of

Arbitration Awards. ........--.+eeeeeeee 9

lv

Contents

Page

II]. The First Circuit’s Interpretation of the Award

and Application of this Court’s Properly

Stated Rules Concerning Judicial Review do

mot Warramt Certiog@fi. .... 25 ec ceccsnses 14

aparece eer mr ae, Beg Pets He Re 19

ere eee ey ee ee ere CTT eer. la

TABLE OF CITEDAUTHORITIES

Page

Cases:

Bettencourt v. Boston Edison Co., 560 F.2d 1045

tun} 2 isi eeererererere re yy re 18

E. Assoc. Coal Corp. v. UMW, Dist. 17, 531 U.S. 57

rrr Pomrrarer rise 10

Ethyl Corp. v. United Steelworkers of Am., 768 F.2d

ERO CT Che, TOGSD soak hick cans can evar ees 13, 15

Exxon Corp. v. Esso Workers’ Union, Inc., 118 F.3d

OG) C0" Cae. TORT) x oon 5 55nd ee ee 13

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

OI, SO ED nhs sa be ie ee te ee es 13

Safeway Stores v. Amer. Bakery & Confectionery

Workers, 390 F.2d 79 (5™ Cir. 1968) .......... 18

United Paperworkers International Union v. Misco,

Bae., MEAT D. BOTT ec «vias ceinceven 9,10, 14

United Steelworkers of Am. v. Enterprise Wheel &

Cav, 363 UD. FPa CIP Oe) och vce nnvasacyeece 9,10, 14

Wyandot v. Local 227, UFCW, 205 F.3d 922 (6" Cir.

yr pret re nme err ry rr 15

Rule:

a Oe 88 ce ai eee 14

l

STATEMENT OF THE CASE

The Parties

At all times relevant to this matter, Respondent, Poland

Spring Corporation (“Poland Spring” or the “Company”),

bottled and distributed spring water at its facility in Poland

Spring, Maine. (Pet. App., 1a). Petitioner, United Food and

Commercial Workers Internatione! Urion, AFL-CIO-CLC,

Local 1445 (the “Union’”), was the exclusive bargaining agent

for certain classifications of the Company’s employees at

that facility. (Pet. App., 26a). The parties entered into a

collective bargaining agreement (the “Contract”) that, by its

terms, governed their relationship from January 1, 1997 to

December 31, 2001.' (Pet. App., 49a-54a). Leo Beaupre

(the “Grievant”) was one of the employees represented by

the Union. When Mr. Beaupre was discharged by Poland ~

Spring, the Union submitted his resulting grievance to

arbitration before Arbitrator Philip Dunn (“Arbitrator Dunn”

or the “Arbitrator”). (Pet. App., 3a-4a, 32a).

The Grievant’s Discharge

The Grievant was suspended and ultimately terminated

from his position as a palletizer operator as a result of an

incident that occurred on the night shift that began on

February 5, 2000 and ended early in the morning on February

6. A palletizer is a machine that loads case lots of bottles

onto pallets and wraps the full pallets in plastic for shipping.

The Grievant’s job in operating that equipment included

1. The Contract in effect during the events at issue in this matter

expired by its terms on December 31, 2001. A new agreement has

since been negotiated by the parties.

2

placing empty pallets on the machine and removing loaded

pallets from it. (Pet. App., 1a-2a). The Arbitrator found that

all bargaining unit employees of Poland Spring, including

the Grievant, share responsibility for keeping the plant clean.

For the Grievant, that responsibility included cleaning scrap

bottles or other litter from under his machine, which was

elevated on legs above the floor. (Pet. App., 33a).

During the night shift beginning February 5, the

Grievant’s assigned production line was temporarily down.

The Grievant was initially reassigned by his supervisor,

Mike Arsenault, to help clean the filler room. When the

Grievant explained that his medical condition prevented him

from working in that room, Mr. Arsenault withdrew the

assignment. Instead, Mr. Arsenault directed the Grievant to

clean bottles out from under a rais’.d platform called an

accumulation table. (Pet. App., 347 -35a).

The Arbitrator found that the Grievant refused to perform

the new assignment. Mr. Arsenauit repeated his instruction

to clean under the accumulation table, and the Grievant again

refused. After the second refusal, Mr. Arsenault warned the

Grievant that his non-compliance would constitute an act of

insubordination that could result in termination. When he

again refused to perform the work essignment, Mr. Arsenault

directed the Grievant to accompany him to a conference

room. (Pet. App., 36a). -

The Grievant testified that, on the way to the conference

room, he asked Mr. 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.” As a result of

that comment, the Arbitrator found: “Certainly, then, the

grievant at least by that point understood that he could face

3

termination for failing to comply with Arsenault’s directive.”

Nevertheless, the Grievant continued to refuse to perform

the assignment. (Pet. App., 36a-37a).

Mr. Arsenault and another supervisor met with the

Grievant in the conference room, and the Grievant was

warned that, if he coritinued to refuse to perform the task

assigned to him, he could be suspended pending investigation

of grounds for termination. The Grievant continued to

refuse to perform the assignment and, as he had been

warned, was suspended and sent home. Ultimately, the

suspension was converted to a termination of employment.

(Pet. App., 37a-39a).

The Contract Between the Parties

The Contract specifically reserves to Poland Spring the

right to terminate its employees for just cause. Article 9 is

entitled “Management Rights” and provides in relevant part:

Management of the operations and the

direction of the workforce, including but not

limited to ... the right to ... discharge for just

cause ... shall be solely and exclusively vested

in the Company subject only to limitations as are

expressly provided for in this Agreement... .

(Resp. App., 2a).

Article 32 is entitled “Discipline and Discharge” and sets

forth the parties’ agreement that insubordination constitutes

just cause for termination. The language in that Article states

that a number of categories of employee misconduct may

4

warrant a lower level of discipline prior to discharge.

Insubordination, however, is not such an offense. Article 32

provides in relevant part:

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;

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....

(Pet. App., 50a-5 1a).

Finally, in Article 33, “Grievances and Arbitration,” the

parties agreed to submit differences as to the Contract’s

meaning or application to a grievance procedure ultimately

leading to arbitration. As part of that agreement, however,

they explicitly limited an arvitrator’s authority. Article 33

provides in relevant part:

.... 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. . . .

(Pet. App., 54a).

The Opinion and Award

After considering all of the evidence submitted by both

Poland Spring and the Union at a hearing held on December

19, 2000, Arbitrator Dunn issued an award (the “Award”’)

in which he found that the Grievant repeatedly refused to

perform a task that was within his job responsibilities. He

also found that the Grievant was aware that he risked

termination by failing to comply with his supervisor’s

instructions. The Arbitrator concluded that “[t]here is little

doubt in this case that absent some persuasive affirmative

defense, the grievant was guilty of the offense of

insubordination.” (Pet. App., 40a-41a).

The Arbitrator then considered and rejected the Union’s

two proffered affirmative defenses. First, the Union argued

that the Grievant’s health or safety would have been

compromised if he had complied with Mr. Arsenault’s

directive to clean under the accumulation table.

The Arbitrator rejected that defense, finding that the Union

failed to prove that the Grievant’s refusal was motivated by

a sincerely held, reasonable health or safety concern.

" (Pet. App., 41a-45a).

Arbitrator Dunn also rejected the Union’s second defense

that the Grievant reasonably believed he would have been

subjected to humiliation, embarrassment, or sexual assault

if he had bent over to clean under the accumulation table.

That defense was based on banter of a sexual nature that

occurred earlier in the evening between the Grievant’s co-

workers and his supervisor. Arbitrator Dunn described the

interaction as “a bunch of guys .. . simply ribbing the new

supervisor, and the new supervisor (unwisely) trying to play

along to show he was still a good guy.” The Arbitrator found

6

that the Grievant knew that the banter was not serious and

that “[t]here was not in that ribbing the slightest, serious

implication that Arsenault in fact had any homosexual

inclinations, or the inclination to act on them in any way on

the shop floor.” As a result, Arbitrator Dunn concluded that

the Grievant had “no reasonable basis” for believing that he

was at risk of assault if he complied with his supervisor’s

directions or for believing that his supervisor “had any

prurient interest in checking out the grievant’s behind by

having him bend over to clean under the accumulation table.”

(Pet. App., 45a).

Having rejected the Union’s affirmative defenses for

the Grievant’s insubordination, the Arbitrator declared:

“That leaves one remaining issue for discussion, that being

the level of discipline imposed.” On that issue, the Arbitrator

acknowledged Poland Spring’s argument:

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.

(Pet. App., 46a).

After reviewing Article 32 of the Contract, however,

Arbitrator Dunn rejected Poland Spring’s contention:

[Article 32] may well establish that in clear,

straight-forward cases of insubordination, without

7

mitigating considerations, 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.

(Pet. App., 46a-47a). -

The Arbitrator then explained his view that “where

significant, mitigating considerations are present, the

culpability of the employee may be diminished, and summary

termination may no longer be justified.” Under that standard,

he considered Mr. Arsenault’s “improper fraternizing with

production workers, including the grievant,” finding that it

“created an environment where one of the employees might

think, at least initially, that Arsenault was not acting in his

supervisory capacity.” As a result, the Arbitrator concluded:

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.

(Pet. App., 47a-48a).

The District Court Action

Arguing that Arbitrator Dunn exceeded his contractual

authority in purporting to reinstate the Grievant, Poland

Spring filed an action in the district court seeking to vacate

his Award. The Union counterclaimed seeking enforcement.

Both parties moved for summary judgment, and the District

Court found in Poland Spring’s favor. (Pet. App., 26a-28a).

The district court found that, under the Contract,

“insubordination is explicitly made just cause for discharge”

and that, “[u]nlike some other bases for discharge, there is

no requirement of prior warning in cases of insubordination.”

Holding that “the arbitrator found explicitly that [the

Grievant] was guilty of insubordination,” the court concluded

that “the arbitrator exceeded his powers in ordering the

reinstatement of the insubordinate employee.” (Pet. App.,

26a-28a).

Appeal to the First Circuit

Petitioner appealed the district court’s order granting

summary judgment to Poland Spring. The panel majority

agreed with the Union that “’insubordination’ is not defined

in the contract nor is it self-defining.” As a result, the

Arbitrator “could permissibly have read the contract to mean

that some acts of disobedience constitute ‘insubordination

within the meaning of the contract and that other, less severe

acts — although literally disobedience — do not.” (Pet. App.,

16a-17a). However, the panel majority also agreed with the

court below, finding that the Arbitrator had in this case

deemed the Grievant guilty of insubordination under the

Contract. (Pet. App., 14a).

9

Having done so, the court explained, the Arbitrator was

“barred from further inquiry because such additional probing

constituted ignoring the plain language of the contract.”

Although the meaning of the term “insubordination”

under the Contract is ambiguous and subject to interpretation,

the court found that the plain language of the Contract

provides that insubordination, once found, is always just

cause for termination. (Pet. App., 10a-12a). As a result,

because the Arbitrator had found insubordination, the Award

ordering reinstatement of the insubordinate Grievant was

unenforceable. (Pet. App., 15a).

Petitioner’s motions for rehearing by the First Circuit

panel and for rehearing en banc were denied. (Pet. App., 29a).

REASONS FOR DENYING THE PETITION

I. The First Circuit’s Decision Vacating an Award that

Disregards the Plain Language of the Contract does

not Contradict any Decision of this Court Limiting

Judicial Review of Arbitration Awards.

As Petitioner emphasizes, under this Court’s holding in

such cases as United Paperworkers International Union v.

Misco, Inc., 484 U.S. 29 (1987), and United Steelworkers

of America v. Enterprise Wheel & Car, 363 U.S. 593,

597 (1960), judicial review of an arbitration award is narrow

and deferential to the arbitrator. A court may not reconsider

the merits of an award and may not second-guess an

arbitrator’s findings of fact or interpretation of a contract.

Misco, 484 U.S. at 36. However, even under that deferential

standard of review, an arbitrator’s discretion in settling labor

disputes is not altogether unlimited. Instead, an arbitrator’s

authority “is confined to interpretation and application of

10

the collective bargaining agreement.” Enterprise Wheel &

Car, 363 U.S. at 597. As a result, this Court has repeatedly

emphasized that an arbitrator “may not ignore the plain

language of the contract,” and an arbitration award “cannot

simply reflect the arbitrator’s own notions of industrial

justice.” E.g., Misco, 484 U.S. at 38; E. Assoc. Coal Corp. v.

UMW, Dist. 17, 531 U.S. 57, 62 (2000); Enter. Wheel & Car,

363 U.S. at 597. An “award is legitimate only so long as it

draws its essence from the collective bargaining agreement.”

Enter. Wheel & Car, 363 U.S. at 597. “When the arbitrator’s

words manifest an infidelity to this obligation, courts have

no choice but to refuse enforcement of the award.” Jd.

Petitioner argues that the First Circuit contradicts this

Court’s decisions limiting review of an arbitration award by

itself reviewing the language of the Contract to determine

whether that language permitted Arbitrator Dunn’s

interpretation. In making that argument, Petitioner suggests

that only an arbitrator, and not a court, is allowed to analyze

contract language. That argument is illogical. In order to

determine whether an award “ignore[s] the plain language

of the contract” or “draws its essence from the collective

bargaining agreement,” the First Circuit had to review and

analyze the Contract language at issue. Although a court may

not vacate an award simply because it disagrees with an

arbitrator’s interpretation, it may not enforce an award that

deviates from the plain language of the applicable contract.

Enter. Wheel & Car, 363 U.S. at 597. Thus, this Court’s

decisions did not prohibit, but in fact required, the First

Circuit to review the Contract language at issue and determine

whether it permitted the Arbitrator’s interpretation.

Petitioner also makes the illogical argument that the

First Circuit’s approach to reviewing an arbitration award

1]

exceeds the court’s authority to determine only whether an

award rests on the arbitrator’s interpretation of a contract.

In the approach articulated by the First Circuit, the court first

determines whether the language at issue is fairly susceptible

to differing meanings. Where the language is not susceptible

to differing meanings, the court holds that the arbitrator lacks

discretion to interpret it. That approach is simply another

way of articulating this Court’s prohibition against enforcing

an award that deviates from the plain language of an

agreement. As a result, decisions stating and applying the

First Circuit’s approach to reviewing arbitration awards do

not conflict with any of the decisions of this Court on

the subject.

Furthermore, Petitioner confuses the issues and

misrepresents the opinion below in its efforts to demonstrate

that the First Circuit overstepped its bounds in reviewing

the Award in the instant case. Petitioner argues that the

First Circuit engaged in impermissible contract interpretation

and infringed on the Arbitrator’s exclusive authority when it

held that the plain language of the Contract did not allow the

Arbitrator to engage in further scrutiny once he found that

the Grievant was guilty of insubordination. In support of that

argument, Petitioner asserts that the First Circuit’s own

opinion demonstrates that the language at issue does not have

the clear and plain meaning assigned to it by that court in

overturning the Arbitrator’s Award. In making that assertion,

however, Petitioner confuses the court’s discussion

concerning the definition of “insubordination” under the

Contract with the court’s holding regarding the appropriate

discipline for that offense.

Petitioner correctly notes that the First Circuit held

that the plain language of the Contract provides that

12

insubordination is just cause for termination, prohibiting the

Arbitrator from relying on mitigating circumstances to

substitute a lesser degree of discipline once he found that

the Grievant was insubordinate. Petitioner incorrectly argues,

however, that the majority opinion “recognized ... that

‘minor’ or ‘trivial’ instances of insubordination would not

constitute ‘just cause’ for discharge.” To the contrary, the

majority found that, while the plain language of the Contract

establishes that insubordination is always just cause for

termination, “the term insubordination is not defined in the

agreement and is obviously susceptible to multiple

interpretations.” (Pet. App., 14a). As a result, “the arbitrator

could permissibly have read the contract to mean that some

acts of disobedience constitute ‘insubordination’ within the

meaning of the contract and that other, less severe acts —

although literally disobedience — do not.” (Pet. App., 17a).

Simply stated, under the First Circuit’s analysis, it was up to

the Arbitrator to determine whether Grievant’s conduct

constituted insubordination or was instead one of those

“minor or trivial” acts of disobedience that did not rise to

the level of insubordination. But once he found that it was

insubordination, the Contract dictated that it was just cause

for termination. There is no conflict in the First Circuit’s

holding that the term insubordination is ambiguous and

subject to the Arbitrator’s interpretation while the Contract

provision concerning the appropriate discipline for

insubordination is not. Nor, as Petitioner claims, does the

_ ambiguity in one provision undermine the plain meaning of

the other.

Likewise, Petitioner misstates First Circuit case law by

arguing that the Circuit mandates literal interpretation of

contract language and prohibits an arbitrator from finding

implied terms. Petitioner has not cited a single instance in

13

which the First Circuit has so held. Moreover, the First Circuit

does not apply a purely literal approach to reviewing the

language of an agreement. Instead, the language of an

agreement is “taken in context and with due regard for the

surrounding circumstances.” Exxon Corp. v. Esso Workers’

Union, Inc., 118 F.3d 841, 845 (1* Cir. 1997).?

Finally, it is Petitioner, and not the First Circuit, who

advocates an approach that is contrary to this Court’s

precedent. Petitioner seeks to prohibit courts from conducting

any analysis of the relevant contract language during

the process of reviewing arbitration awards. Under the

Petitioner’s approach, an arbitrator would merely have to

discuss the language of a contract in his or her award to

survive judicial review, even if his or her ultimate decision

contradicted the intention of the parties as clearly expressed

in the agreement. This Court’s precedent supports no such

outcome. Instead, the Court holds that an arbitrator’s

authority is limited to interpreting and applying the collective

bargaining agreement. E.g., Major League Baseball Players

Ass'n. v. Garvey, 532 U.S. 504, 509 (2001). While an

2. Petitioner cannot argue that the First Circuit impermissibly

prohibited the Arbitrator from finding an implied term in the present

case. “Inferring an implied condition must be distinguished from

creating one.” Ethyl Corp. v. United Steelworkers of Am., 768 F.2d

180, 186 (7" Cir. 1985). As demonstrated more fully below, when he

reinstated the Grievant, Arbitrator Dunn created a new limitation on

the Company’s right to discharge its employees that contradicts the

Agreement’s express language. Moreover, unlike the contract at issue

in Ethyl, the Contract in the present case prohibited the Arbitrator

from imposing on the Company any limitations not expressly provided

in the Contract. Thus, although the First Circuit does not generally

prohibit arbitrators from finding terms that are merely implied in a

contract, the Contract at issue here precluded Arbitrator Dunn from

finding any implied provisions.

14

arbitrator has considerable discretion in carrying out that

function, this Court has long recognized that it is the courts’

responsibility to ensure that he does not “ignore the plain

language of the Contract” or “dispense his own brand of

industrial justice.” E.g., Misco, 484 U.S. at 38; United

Steelworkers of Am. v. Enter. Wheel & Car, 363 U.S. 593,

597 (1960). The First Circuit’s approach in this and similar

cases merely carries out that mandate.

II. The First Circuit’s Interpretation of the Award and

Application of this Court’s Properly Stated Rules

Concerning Judicial Review do not Warrant

Certiorari.

Petitioner argues that certiorari is appropriate in this case

because the First Circuit erred when it held that the Arbitrator

ignored the plain language of the Contract. That holding was

based on the court’s factual determination that the Arbitrator

found the Grievant insubordinate yet mitigated the discipline

for that conduct, disagreeing with the Union’s argument that

the Arbitrator did not find insubordination. Having made that

factual determination, the court then applied this Court’s rule

requiring arbitration awards to draw their essence from the

Contract. Even if the First Circuit’s holding was incorrect,

erroneous factual findings and misapplication of a properly

stated rule of law are rarely grounds for a writ of certiorari.

Sup. Ct. Rule 10. Moreover, nothing about this case provides

an exception to the rule. To the contrary, the Award

demonstrates that both the First Circuit and the district court

below were correct in concluding that the Award fails to draw

its essence from the Contract.

in an effort to link the Arbitrator’s decision to the text

of the collective bargaining agreement, Petitioner notes the

15

Arbitrator’s reference to the language of Article 32. However,

an arbitrator cannot shield from judicial correction an

impermissible disposition of a grievance “simply by making

the right noises — noises of contract interpretation.”

Ethyl Corp. v. United Steel Workers of Am., 768 F.2d 180,

187 (7" Cir. 1985). The decision at issue here qualifies as

such an impermissible disposition because it altogether

departs from the essence of the Contract.

An arbitration award fails to draw its essence from an

agreement when it: (1) conflicts with express terms of the

agreement; (2) imposes additional requirements not expressly

provided in the agreement; (3) is without rational support or

cannot be rationally derived from the terms of the agreement;

or (4) is based on general considerations of fairness and equity

instead of the precise terms of the agreement. Wyandot v.

Local 227, UFCW, 205 F.3d 922, 292 (6" Cir. 2000).

The Award in this case deviates from the essence of the

Contract in each of those four ways.

Upon finding that the Grievant had been insubordinate,

the Arbitrator substituted his own brand of industrial justice

for the Contract’s agreed-upon discipline for that conduct.

He did so by creating a mitigating circumstances exception

to the parties’ agreement that insubordination constitutes just

cause for termination. Recognizing that Article 32 allows

termination for insubordination, the Arbitrator noted

that it “does not state that even in the presence of

mitigating circumstances, insubordination still will

necessarily provide the Company with just cause for

termination.” (Pet. App., 47a). The Arbitrator was, of course,

correct. Article 32 does not include that language. Nor does

it state that “insubordination will be just cause for termination

in the absence of mitigating circumstances.” It provides that

16

“just cause for discharge shall include . . . insubordination”

— period. The Arbitrator in effect added “in the absence of

mitigating circumstances” to that provision. Holding that

when mitigating circumstances are present, “the culpability

of the employee may be diminished, and summary

termination may no longer be justified,” he concluded that

“it was unjust for the Company to terminate the grievant for

his insubordinate behavior.” (Pet. App., 47a-48a).

That conclusion by the Arbitrator conflicts with

the express terms of the Contract. Under Article 32,

insubordination is per se just cause for termination, giving

the Company the absolute right to discharge the Grievant

for his insubordinate behavior:

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;

(Pet. App., 50a-51a). Although the parties agreed in Article

32 that some categories of employee misconduct may warrant

a lower level of discipline prior to discharge, they expressly

excluded insubordination (item 8) from that list:

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

penta

17

warning may or may not also be appropriate prior

to discharge with regard to items 2 and 16....

(Pet. App., 51a). Thus, by concluding that the Grievant's

insubordination was not just cause for his termination, the

Award conflicts with the express terms of the Contract.

Accordingly, it fails to draw its essence from the Contract.

Likewise, the Award imposes additional requirements not

expressly provided in the Contract. To discharge an employee,

the Arbitrator required “insubordination in the absence of

mitigating circumstances.” The Contract, however, requires

only “insubordination,” and nothing else. Thus, the Arbitrator

exceeded his authority by imposing an additional limitation

on Poland Spring’s right to terminate its employees, and the

Award does not draw its essence from the Contract.

That additional limitation also conflicts with the express

terms of the Contract. Under Article 33 of the Contract,

Arbitrator Dunn had no power to alter or modify the

Contract’s terms or to impose any limitation or obligation

not explicitly provided for in the Contract. (Pet. App., 54a).

Likewise, under Article 9, Poland Spring’s rights were limited

only as expressly provided in the Contract. (Resp. App., 2a).

Thus, by imposing a mitigating circumstances limitation on

the Company’s right to discharge its employees for

insubordination that is not explicitly or expressly provided

in the Contract, the Award conflicted with the express terms

of the Contract.

Furthermore, the Award deviates from the essence of the

Contract because the Arbitrator’s justification for creating a

mitigating circumstances exception — that the Contract does

not prohibit one — is illogical, “unfounded in reason and fact,”

18

and “so palpably faulty that no judge, or group of judges,

could ever conceivably have made such a ruling.”

See Bettencourt v. Boston Edison Co., 560 F.2d 1045, 1050

(1* Cir. 1977) (quoting Safeway Stores v. Am. Bakery &

Confectionery Workers, 390 F.2d 79, 82 (5" Cir. 1968)).

The Contract expressly provides that insubordination

constitutes just cause for termination. If the parties intended

mitigating circumstances to affect whether insubordination

constitutes just cause, they would have included that

agreement in the Contract. Under the Arbitrator’s reasoning

in this case, an arbitrator could read into a collective

bargaining agreement any term that is not expressly

precluded, making all contracts, regardless of how detailed

or lengthy, ambiguous and subject to interpretations that the

parties never even imagined, let alone agreed upon. For

example, under Arbitrator Dunn’s logic, it would be

impossible for the parties to draft language that allows the

Company absolute discretion to discharge insubordinate

employees, even if that was their intent. If they chose

language providing that an employee can be discharged for

insubordination “even in the presence of mitigating

circumstances,” an arbitrator could still overturn a discharge

by noting that the agreement does not allow discharge when

there are “very serious mitigating circumstances.”

Accordingly, the Award fails to draw its essence from the

Contract because it is completely without rational

support and cannot be rationally derived from the terms of

the Contract.

Finally, the language of the Award demonstrates that it

is based on general considerations of fairness and equity

instead of the precise terms of the Contract. The Arbitrator

did not rely on the language of the Contract to support his

conclusion that the Grievant’s insubordination was not just

19

cause for discharge in this case. To the contrary, he noted the

absence of any language authorizing him to consider

mitigating circumstances. Instead of depending on the

language of the Contract, he weighed the equities, holding

that when mitigating circumstances are present,

“the culpability of the employee may be diminished, and

summary termination may no longer be justified.” (Pet. App.,

47a). Ultimately, he concluded that “it was unjust for the

Company to terminate the grievant for his insubordinate

behavior.” (Pet. App., 48a). Thus, in purporting to reinstate

the Grievant, Arbitrator Dunn dispensed his own version of

industrial justice instead of interpreting and applying the

language of the Contract. As a result, the First Circuit did

not err in finding that the Award fails to draw its essence

from the Contract, and certiorari is not warranted in this case.

CONCLUSION

This case does not present compelling reasons for review

on certiorari. Accordingly, the petition should be denied.

Respectfully submitted,

RICHARD R. BoIssEAU*

Amy R. WALKER

KILPATRICK STOCKTON LLP

Attorneys for Respondent

Suite 2800

1100 Peachtree Street

Atlanta, Georgia 30309-4530

(404) 815-6500

* Counsel of Record

LSS

SS ee

APPENDIX

la

APPENDIX

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

2a

Appendix

* * *

ARTICLE 9: MANAGEMENT RIGHTS

Management of the operations and the direction of the

workforce, including but not limited to the establishment of

operational, safety, health and sanitation rules, the right to

hire, promote, transfer personnel and assign work, the right

to demote, to discipline, suspend or discharge for just cause,

the right to schedule hours and to require reasonable overtime

work, the right to relieve employees from duty because of

lack of work, and the right to decide the number and location

of its operations, the extent to which the locations covered

by this Agreement shall operate or be shut down, the right

to subcontract out bargaining unit work, the work to be

performed, the raw materials, the parts, tools or components

to be incorporated therein, the schedule of production, the

type of machines or equipment to be used, the methods and

standards of quality and quantity of work to be performed,

the selling price of products, the methods of selling and

distributing products, the personnel required in supervisory,

clerical and other positions not included in the bargaining

unit, the source of an applicant for employment, and the

methods, processes and means of production shall be solely

and exclusively vested in the Company subject only to

limitations as are expressly provided for in this Agreement.

The parties agree that the Company has the right to establish

work standards and to maintain the efficiency of employees.

It is also understood that nothing herein shall prevent

the Company from transferring, closing out or selling out,

in whole or in part, any of its operations, wherever the same

doin Grantee SASSO TEE IAGO LORE LNAI EY MITE CRS ly lo Tote

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3a

Appendix

may be located, whenever, in its judgment, it deems such

action to serve best its economic interests.

The Company, by not exercising rights reserved to it

under the Management Rights clause or by exercising them

in a particular way, shall not be deemed to have waived said

rights or to have waived the right to exercise them in some

other way not in conflict with the terms of this Agreement.

* * * *