Petition — United Steelworkers v. Homer D. Bronson Co.

\. Ror Count Ta -

a FILED

79-2083 f sn i soe

WIS kchadusivubeassedenes

K, JR.. CLERN

IN THE mit:

ab as le

‘te

Supreme Court of the United States.

October Term, 1979

UNITED STEELWORKERS OF AMERICA

and

LOCAL 5104, UNITED STEELWORKERS OF

AMERICA,

Petitioners,

Vv.

THE HOMER D. BRONSON COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MICHAEL H. GOTTESMAN CaRL B. FRANKEL

BREDHOFF, GOTTESMAN, RUDOLPH L. MILASICH, JR.

COHEN & WEINBERG Five Gateway Center

1000 Connecticut Ave., N.W. Pittsburgh, PA 15222

Washington, DC 20036

ANGOFF, GOLDMAN, MANNING, BERNARD KLEIMAN

(PYLE & WANGER One East Wacker Drive

44 School Street Suite 1910

Boston, MA 02108 Chicago, IL 60601

Counsel for Petitioners

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

"

QUESTION PRESENTED

Did the courts below usurp the arbitrator’s con-

tractual function of interpreting the “discharge for just

cause” provision of the parties’ collective bargaining

agreement when those courts vacated the arbitrator’s

award which imposed a four month disciplinary suspen-

sion upon an insubordinate employee but which set

aside the penalty of discharge as inappropriate under

the contractual “just cause” standard because the em-

ployer’s discharge procedure denied the employee proper

procedural safeguards?

TABLE OF CONTENTS

CASES PAGE

QUESTIONS PRESENTED ..................ccscrscccsseccersoornes i

Nee cn ons. ccisnssaessereoonecasaeneesosesnosoee 2

ej cnasdnscosbssdavecsevinnedsossoots 2

STATEMENT OF THE CASE. ...............cccccccccesseeseeeees 3

REASONS FOR GRANTING THE WRIT ................ 6

I. The Second Circuit’s Decision Confiicts With

Decisions Of This Court Prohibiting The Judi-

ciary From Substituting Its Interpretation Of

A Collective Bargaining Agreement For That

Ee I MEUICUE oo. onssnscqrevscoccnsseeoensosessesenses 8

Hl. The Second Circuit’s Decision Is In Conflict

With The Decisions Of Other Courts Of Ap-

Nake (disndads twonshwuvarsnvqnareatbusess 12

ss ccecnssilnndsaesnesasepeusntenes 16

cise sssecacsrosesninevornnensnensinee la-28a

TABLE OF CITATIONS

CASES PAGE

Amalgamated Meat Cutters, Local 540 v. Neuhoff

Bros. Packers, Inc., 481 F.2d 817 (5th Cir.

ron casvessianeciidenpdinaisivtncenccberteahaessesine 7,13

Buffalo Forge Co. v. Steelworkers, 428 U.S. 397

oe acai cd itiaisssondanissteunvoebons 11

Chauffeurs, Teamsters and Helpers, Local 878 v.

Coca-Cola Bottling Co., —— F.2d ——, 103

LRRM 2380 (No. 79-1196, Jan. 18, 1980), cert.

denied, 48 U.S.L.W. 3786 (U.S. June 2, 1980)

I Sod ahs co adv/esuiniesubeosssaresesssesanioteate suis 7,12

Detroit Coil Co. v. Machinists, Lodge 82, 594 F.2d

575 (6th Cir. 1979), cert. denied, —— U.S. ——,

os dickatanepasos ions 7

Fabricut, Inc. v. Tulsa General Drivers, 597 F.2d

I o - s csse su awaonedanevenusodibases 7,14

General Drivers, Warehousemen and Helpers, Local

89 v. Hays & Nicoulin, Inc., 594 F.2d 1093 (6th

SE UD GI GEMD ivcsvcrcossssconvensccrssseorsnseenens

iii

Table of Citations.

PAGE

Huntington Alloys, Inc. v Steelworkers, —— F.2d

—— (No. 79-1354, filled June 26, 1980) ............ 7

Int. Ass’n of Machinists, District 8 v. Campbell Sou i

Co., 406 F.2d 1223 ( 7th Cir. 1969) , cert. denie

396 U.S. 820 RN Aa ccnstasiescvdlacinccsiedexen ticeperabtiestes 14

Monongahela Power Co. v. Local 2332, Int. Bro. oe

Electrical Workers, 566 F.2d 1196 (4th Cir. .

TE cickvs shsanscntbscnsphecienetcaadeisatnadlbaescy tdeuasatsanmadeess

Nolde Bros. Inc. v. Local 358, Bakery Workers, 430

U.S. 248 (1977), rhg. denied, 430 U.S. 988

RIED cos do sout tin 28 Bice Monat saviance ra teeta eeaobenhas 10

Steelworkers v. American Manufacturing Co., 363

i Me III ~ bsticarh cc <a bsdonticadonansos cis seancatnivens 6

Steelworkers v. Enterprise Wheel & Car Corp., 363

I isa ca Specs pacosdesicdscan «i kemmscdestinisaavsd 6, 9, 10

Steelworkers v. Warrior & Gulf Navigation Co., 363

ee oe coc ac cd cecncscrssvsnseessassttenbiaiovedl 6, 10

Timken Co. v. Steelworkers, Local 1123, 482 F.2d

SEED. PUI I ai cici procs cic, cassasacucctleshersasere 7

ARBITRATION CASES

Consolidated Vultee Aircraft Corp., 9 Lab. Arb. 510

(1948) (Abernethy, Arb.) 0.0... eee 14

Davis Fire Brick Co., 36 Lab. Arb. 124 (1960)

Ce ee daauegheaes 13

Farmbest, Inc., 44 Lab. Arb. 609 (1965) (Karlins,

SURES ath SI eo er Ere ee EN), WE ERIN SE Ee RD 13

Missouri Research Laboratories, 55 Lab. Arb. 197

Ce 13

Moore’s Seafood Products, Inc., 50 Lab. Arb. 83

(RIGS) CEPMUMTOTEY, AFD) o..ccccccc.cccvensccsessccessecsees 13

STATUTES

a, ee et 2

ee es I elevate risked nti easuncsiieatisccces se. kts 2

MISCELLANEOUS

Getman, Labor Arbitration and Dispute Resolution,

88 Yale L.J. 916 gh al TORE See RAE et Aten Aa ae 13

IN THE

Supreme Court of the United States

October Term, 1979

UNITED STEELWORKERS OF AMERICA

and

LOCAL 5104, UNITED STEELWORKERS OF

AMERICA,

Petitioners,

Vv

THE HOMER D. BRONSON COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The United Steelworkers of America and its Local

5104 prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

Second Circuit in this case.

Jurisdiction.

OPINIONS BELOW

The opinion issued by the court of appeals in these

consolidated cases is not officially reported and is repro-

duced in the Appendix to this petition at App. la-3a.1!

The orders of the court of appeals denying rehearing

and rehearing en banc and granting consolidation of the

cases on appeal are reproduced in the Appendix at App.

4a-6a. No opinion was issued by the district court in va-

cating and refusing to confirm the arbitration award.

The Judgments of the district court are reproduced in

the Appendix at App. 7a-8a. The arbitrator’s award and

opinion rescinding the discharge of an insubordinate

employee for lack of “just cause” is reproduced in the

Appendix at App. 9a-28a.

JURISDICTION

The court of appeals issued its opinion and judg-

ment on December 27, 1979, and a timely filed petition

for rehearing and rehearing en banc was denied by that

court on April 2, 1980. The courts below had jurisdiction

of this case pursuant to 29 U.S.C. § 185, and this Court

has jurisdiction pursuant to 28 U.S.C. § 1254(1).

1. The Appendix to this petition is separately

paginated and is referred to herein as “App.”

Statement of the Case.

STATEMENT OF THE CASE

For many years the United Steelworkers of America

(“Union”) and The Homer D. Bronson Company (‘‘Com-

pany”) have been parties to a collective bargaining

agreement, the latest of which is a three year agreement

dated August 1, 1977. As would be expected in a mature

collective bargaining relationship, these parties have

agreed to settle all disputes involving an interpretation

or application of the 1977 Agreement through a griev-

ance and arbitration procedure. To that end, the parties

have in Article X, ‘“Arbitration,’”’ empowered an arbi-

trator to “interpret this contract and apply it to the

particular case submitted to him....”2 Further, the

2. Article X, “Arbitration,” of the 1977 Agreement

provides in relevant part:

“1, Any dispute not settled under the above

grievance procedure and which involves the inter-

pretation or application of this agreement may be

taken to arbitration by either party. Arbitration,

except as otherwise herein provided, shall be con-

ducted under the Voluntary Labor Arbitration

Rules then obtaining of the American Arbitration

Association.

7 * _ *

3. The arbitrator may interpret this contract

and apply it to the particular case submitted to him,

but he shall, however, have no authority to add to

subtract from, or in any way modify the terms of

this contract.

4. The parties agree that there shall be no

suspension of work while such grievances are being

settled, and the cost of arbitration shall be borne

equally by both parties.

5. The parties agree to accept the arbitrator’s

award as final and binding, provided it is not con-

trary to law.”

he

Statement of the Case.

Cormipamy and the Union have agreed that there will be

no #trike# while their disputes are being settled in the

grievence procedure and that once the arbitrator issues

his award that award shall be final and binding.

Also as would be expected in a mature collective

bargaining relationship, the Company has by contract

preserved its management right to discharge employees,

but the Union has by contract obtained the protection

for the bargaining unit employees that all such dis-

charges must be “for just cause.’ A dispute over the

proper interpretation of these contractual “discharge

for just cause” provisions arose between the Company

and the Union when on October 26, 1978, the Company

discharged employee Joseph Mennillo, Jr. for his alleged

refusal to obey an order.

A grievance filed by the Union protesting that the

Company’s discharge of employee Mennillo was unjust

was processed to arbitration. The Company and the

Union agreed mutually that employee Mennillo’s unjust

discharge dispute should be settled by Arbitrator Alfred

B. Clark. To that end, the parties submitted the follow-

ing issue to Arbitrator Clark:

3. Article XIV, “Management,” states that:

“Subject to the conditions of this Agreement,

The Company shall not be limited in its right to

manage and direct the working forces, including

but not limited to the right to hire, suspend and

discharge for just cause ....” (emphasis added).

Similarly, Article VII, “Seniority,” specifies that:

“10. An =e shall lose seniority in the

event of:

* * x ”

(b) Discharge for just cause.” (emphasis

added).

Statement of the Case.

“Was the discharge of Joseph Mennillo, Jr. for just

cause? If not, what shal! the remedy be?” (App. a).

Arbitrator Clark sustained the grievance, stating

“the penalty of discharge is deemed inappropriate and

the penalty is reduced to an unpaid, disciplinary suspen-

sion.” (App. 28a). In doing so, he recognized that Men-

nillo was “gravely insubordinate” in refusing to carry

out his foreman’s order to clean up a trash pile (App.

27a); however, he also noted that there had been fric-

tion between the foreman and Mennillo, who was Local

5104’s president, and that the trash which had been ac-

cumulating for months was still there two days after the

foreman had fired Mennillo (App. 18a). Although “not

persuaded that the subject task was reasonably related

to business efficiency,”’ Arbitrator Clark found that “the

serious weakness in the Company’s position is the lack

of due process accorded the Grievant.” (App. 27a).

Arbitrator Clark interpreted the “discharge for just

cause” contract provision as including the procedural

safeguard that prior to the discharge penalty being im-

posed, an employee charged with insubordination must

have the opportunity to explain his side of the story to

a management person who was not involved in the in-

subordination incident (App. 25a, 28a). Because the

foreman involved in the incident had fired Mennillo with-

out giving him such an opportunity and had given him

“five minutes to leave the premises,” Arbitrator Clark

reinstated employee Mennillo with full seniority and

benefits but without back pay (App. 26a).

The Company’s state court action seeking to vacate

the Award was removed to federal court, and the Union

commenced a separate action to confirm the Award

under 29 U.S.C. § 185. Upon cross-motions for summary

judgment, the district court entered judgment in both

Reasons for Granting the Writ.

cases for the Company. The district court did not state

any reasons to support its decision to vacate the Award;

nor did the Second Circuit give a detailed explanation in

affirming the district court’s decision. Rather, in a four

paragraph opinion, the Second Circuit disagreed with

Arbitrator Clark’s interpretation of the “discharge for

just cause”’ contractual provision and substituted its own

interpretation of the 1977 Agreement for that rendered

by the Arbitrator.

REASONS FOR GRANTING THE WRIT

The decision below raises important questions con-

cerning the continuing viability of the strong federal

labor policy favoring arbitration which this Court estab-

lished in the Steelworkers Trilogy* twenty years ago.

The Second Circuit’s decision arrogates to the fed-

eral judiciary the power to substitute judicial judgment

for that of the parties’ mutually selected arbitrator upon

a question of pure contract interpretation—the meaning

of the parties’ contractual “discharge for just cause” re-

quirement. Directly contrary is this Court’s decision in

Enterprise Wheel which forbade the judiciary from med-

dling in the parties’ collective bargaining process—of

which arbitration is a continuing part—by holding that

“... 80 far as the arbitrator’s decision concerns construc-

tion of the contract, the courts have no business overrul-

ing [the arbitrator] because their interpretation is dif-

ferent from his.” 363 U.S. at 599.

4. Steelworkers v. Enterprise Wheel & Car Corp.,

363 U.S. 593 (1960); Steelworkers v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960); Steelworkers v.

American Manufacturing Co., 363 U.S. 564 (1960).

Reasons for Granting the Writ.

The Second Circuit’s decision is also in direct con-

flict with a later decision of the Eighth Circuit in Chauf-

feurs, Teamsters and Helpers, Local 878 v. Coca-Cola

Bottling Co., —— F.2d , 103 LRRM 2380 (No. 79-

1196, Jan. 18, 1980), cert. denied, 48 U.S.L.W. 3786 (U.S.

June 2, 1980) (No. 79-1581) which enforced an arbi-

trator’s ruling, like the one here, that a contractual

“just cause” requirement does include significant pro-

cedural safeguards. Moreover, it is inconsistent with

prior decisions of the Fifth, Tenth and Seventh Circuits

enforcing broad arbitral interpretations of contractual

“just cause” requirements.5 However, the Second Cir-

cuit’s decision is consistent with a line of recent decisions

by the Sixth and Fourth Circuits overturning arbitra-

tors’ awards as contrary to what the judges on those

courts perceive to be the clear and unambiguous lan-

guage of a given collective bargaining agreement.®

Review by this Court is required at this time to re-

solve this conflict and stem the tide of decisions in some

5. Amalgamated Meat Cutters, Local 540 v. Neu-

hoff Bros. Packers, Inc., 481 F.2d 817 (5th Cir. 1973) ;

Fabricut, Inc. v. Tulsa General Drivers, 597 F.2d 227

(10th Cir. 1979) ; Int. Ass’n of Machinists, District 8 v.

Campbell Soup Co., 406 F.2d 1223 (7th Cir. 1969), cert.

denied, 396 U.S. 820 (1969).

6. Detroit Coil Co. v. Machinists, Lodge 82, 594

F.2d 575 (6th Cir. 1979), cert. denied, US. —,

100 S.Ct. 79 (1979); General Drivers, Warehousemen

and Helpers, Local 89 v. Hays & Nicoulin, Inc., 594 F.2d

1093 (6th Cir. 1979) (per curiam) ; Timken Co. v. Steel-

workers, Local 1128, 482 F.2d 1012 (6th Cir. 1973);

Monongahela Power Co. v. Local 2382, Int. Bro. of

Electrical Workers, 566 F.2d 1196 (4th Cir. 1976);

Huntington Alloys, Inc. v. Steelworkers, F.2d ——

(No. 79-1354, filed June 26, 1980) (petition for rehear-

ing pending).

Reasons for Granting the Writ.

circuits which is eroding the principle of arbitral su-

premacy established by the Steelworkers Trilogy and to

maintain the uniformity of decisions of the courts of

appeals in the important area of judicial enforcement of

labor arbitration awards.

I. The Second Circuit’s Decision Conflicts With Deci-

sions Of This Court Prohibiting The Judiciary From

Substituting Its Interpretation Of A Collective

Bargaining Agreement For That Of A Labor Arbi-

trator.

The Second Circuit disagreed with the interpreta-

tion of the “just cause” for discharge requirement of the

1977 Agreement rendered by Arbitrator Clark. The Arbi-

trator interpreted the contractual ‘just cause” clause

as importing the well settled principle of arbitral com-

mon law that “just cause” requires management to avoid

arbitrary or hasty action where confronted with an in-

subordination situation as follows:

“Arbitration awards are consistent in what is

generally considered ‘tests for just cause.’ Among

the several tests is the well-accepted guideline that

an employer must avoid arbitrary or hasty action

when confronted with a situation involving insub-

ordination. * * *

** * * Management was obligated, therefore,

to give Mr. Mennillo an opportunity prior to his dis-

charge to present the basis for his refusal to obey

Mr. Cuff’s order and to present to management other

extenuating and mitigating circumstances and facts

which affected his action or which Management

should consider before taking final action.” (App.

25a, 27a-28a) (emphasis added).

Reasons for Granting the Writ.

Notwithstanding the complete lack of an explicit

contractual definition of “just cause”, the Second Circuit

interpreted the steps of the grievance procedure as con-

stituting the full measure of the procedural safeguards

contained in the 1977 Agreement as follows:

“In support of its position, appellant argues

that, in view of the opaque nature of the phrase

‘just cause’, the arbitrator was justified in interpret-

ing it to include due process requirements. In so

doing, the arbitrator inserted procedural require-

ments that were not called for in the collective bar-

gaining agreement. The arbitrator violated Article

X, Paragraph 3, of the agreement which states that

the arbitrator has no authority to add to or modify

the terms of the agreement. The union and the com-

pany had agreed to a three-step grievance and arbi-

tration procedure to cover situations such as this

and these procedures represent the contractual

agivement as to due process.” (App. 2a).

In holding that the correct reading of the 1977

Agreement is its interpretation of the three-step griev-

ance procedure rather than Arbitrator Clark’s interpre-

tation of the “discharge for just cause” requirement, the

Second Circuit engaged in the exact “plenary review

* * * of the merits” which this Court emphasized in

Enterprise Wheel the judiciary has “no business” doing

as follows:

“(T]he 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 de-

cision concerns construction of the contract, the

courts have no business overruling him because their

10

Reasons for Granting the Writ.

interpretation of the contract is different from his.”

363 U.S. at 599.

It is important to note that Enterprise Wheel involved

an arbitrator’s determination, similar to that made here

by Arbitrator Clark, that the “just cause” clause per-

mits the arbitrator to utilize the due process maxim that

the penalty must fit the crime to modify discharges im-

posed upon employees who were guilty as charged. 363

U.S. at 595. Indeed, this Court noted in Warrior & Gulf

that the parties choose an arbitrator like Arbitrator

Clark because of their “confidence in his knowledge of

the common law of the shop and their trust in his per-

sonal judgment to bring to bear considerations which

are not expressed in the contract as criteria for judg-

ment.” 363 U.S. at 582.

Thus, the Second Court and other circuits have

usurped the very contractual interpretation function

which these parties and this Court have established is

the province of a labor arbitrator. The principle of judi-

cial intervention announced by the Second Circuit threat-

ens to destroy the very fiber of the federal labor policy

favoring the peaceful resolution of all grievance disputes

through voluntary arbitration which this Court estab-

lished in the Steelworkers Trilogy. Indeed, the entire fab-

ric of our labor laws which this Court has woven out of

the fiber of arbitral supremacy and which has been so

successful in maintaining labor peace in this Country

for two decades will be unraveled unless this Court re-

affirms the supremacy of the voluntary arbitral process.

The type of judicial usurpation of the arbitrator’s

contractual interpretation function in which the Second

Circuit engaged in this case runs counter to this Court’s

recent decision in Nolde Bros., Inc. v. Local 358, Bakery

11

Reasons for Granting the Writ.

Workers, 430 U.S. 243 (1977), rhg. denied, 430 U.S. 988

(1977). In Nolde, this Court reinforced the principle of

arbitral exclusivity in the area of contract interpretation

by holding that, absent an express exclusion clause to

the contrary, all questions of contract interpretation are

to be decided in the contractually mandated arbitral

process even if such questions do not arise until after

that contract has expired. Likewise, the Second Circuit’s

brand of judicial activism is contrary to this Court’s

decision in Buffalo Forge Co. v. Steelworkers, 428 U.S.

397 (1976). This Court refused to permit the federal

judiciary to issue injunctions against strikes where the

only arbitral issue was the contractual legality of the

strike itself because arbitrators might be ‘“* * * heavily

influenced or wholly preempted by judicial views of the

facts and the meaning of contracts if this procedure is

to be permitted.” 428 U.S. at 412.

Moreover, this Court’s decision in Buffalo Forge to

keep the judiciary out of the merits of contract inter-

pretation disputes was motivated in part by considera-

tions of judicial economy which are equally implicated

by this case. Thus, in Buffalo Forge, this Court prohib-

ited the federal judiciary from engaging in a preliminary

review of the merits of a given contract dispute, a nec-

essary prerequisite to issuing an anti-strike injunction,

because in view of the more than 150,000 collective bar-

gaining contracts in this country such rulings “could

embroil the district courts in massive preliminary in-

junction litigation.” 428 U.S. at 411 n.12. Unless this

Court acts soon to nip in the bud the present trend

towards active judicial review of the merits of arbitra-

tion awards, the federal courts will be flooded by com-

panies and unions who now accept their arbitral losses

12

Reasons for Granting the Writ.

but who would necessarily have to take advantage of one

more opportunity to relitigate the merits of their case.

Il. The Second Circuit’s Decision Is In Conflict With

The Decisions Of Other Courts Of Appeals.

The Second Circuit’s holding that the “discharge for

just cause” provision of the 1977 Agreement does not

provide significant procedural protections to employees

is directly contrary to the Eighth Circuit’s decision in

Chauffeurs, Teamsters and Helpers, Local 878 v. Coca-

Cola Bottling Co., F.2d ——, 103 LRRM 2380 (No.

79-1196, filed Jan. 18, 1980), cert. denied, 48 U.S.L.W.

3786 (U.S. June 2, 1980) (No. 79-1581). In the Coca-

Cola case, the Eighth Circuit affirmed the district court’s

enforcement of an arbitrator’s award where, as here,

the arbitrator had converted a discharge into a disci-

plinary suspension under a “just cause’ for discharge

clause because the employer, like the Company here,

“«# * * did not give the Grievant adequate opportunity

to present his side of the case before discharging him.’ ”’

103 LRRM at 2382 (App. 26a). The Eighth Circuit

enforced the arbitrator’s award holding:

“In short, the arbitrator here was required to

decide what ‘just cause’ means. His holding that the

term has significant procedural implications is not

beyond the scope of his authority. His award drew

its essence from the contract and cannot be set aside

by this Court. United Steelwkrs. of Am. v. Enter-

prise Wheel & Car Corp., 363 U.S. 593 (1960).” 103

LRRM at 2384.

The Eighth Circuit enforced the award in the Coca-

Cola case because the contract there, as here, was “silent

on what procedural prerequisites attach to the require-

13

Reasons for Granting the Writ.

ment that a discharge be for just cause.’”’ 103 LRRM at

2383. Thus, a question of contract interpretation was

presented for arbitral resolution, and the Eighth Circuit

rejected the employer’s claim of surprise by noting that

“arbitrators have long been applying notions of ‘indus-

trial due process’ to ‘just cause’ discharge cases.” 103

LRRM at 2383; accord, Getman, Labor Arbitration and

Dispute Resolution, 88 Yale L.J. 916, 921 (1979) .7

Similarly, the Fifth Circuit has upheld an arbitra-

tor’s interpretation of a contractual “proper cause’”’ for

discharge clause as imposing upon the employer the in-

dustrial due process burden of proving guilt “beyond a

reasonable doubt... .” Amalgamaied Meat Cutters, Local

540 v. Neuhoff Bros. Packers, Inc., 481 F.2d 817, 819

7. While by no means universal, the principle that

an employer must obtain the employee’s side of the story

before imposing the penalty of discharge is one of the

arbitral common law requirements of “just cause,” and

the employer must have satisfied that procedural safe-

ard “before the discipline was ‘grieved.’ ’’ Moore’s Sea-

Food Products, Inc., 50 Lab. Arb. 83, 88, 87 (1968)

(Daugherty, Arb.) (Discharge for quitting work early

set aside because management official imposed dis-

charge penalty without obtaining employee’s “version

of the preceding night’s events.”) ; accord, Missouri Re-

search Laboratories, 55 Lab. Arb. 197, 209 (1970) (Erbs,

Arb.) (Discharge for threats of violence reduced to 9

month disciplinary layoff because employer did not meet

“burden of the responsibility of having considered any

and all facts, from whatever source, that could have an

influence on the extent of discipline.” ) ; Farmbest, Inc.,

44 Lab. Arb. 609, 613 (1965) (Karlins, Arb.) (Dis-

charge for fighting reduced to a 3 month disciplinary

suspension because “discharge without reference to the

circumstances is arbitrary action.’”’); Davis Fire Brick

Co., 36 Lab. Arb. 124, 128 (1960) (Dworkin, Arb.) (Dis-

charge for improper performance of duties reduced to

30 day disciplinary suspension because “the decision to

14

Reasons for Granting the Writ.

(1973). Likewise, in Fabricut, Inc. v. Tulsa General

Drivers, 597 F.2d 227 (1979), the Tenth Circuit upheld

an arbitrator’s application of the industrial due process

maxim that the penalty must be “reasonable” in setting

aside a discharge for lack of “just cause” and imposing

a one-month disciplinary suspension. The Tenth Circuit

did so even though the contract specified, as here, that

the arbitrator shall not ‘add to” the terms of the con-

tract and even though the arbitrator found that the em-

ployees had violated the contract, as Mennillo did here,

by engaging in “ ‘self help’ insubordination... .” 597

F.2d at 229; accord, Int. Ass’n of Machinists, District 8

v. Campbell Soup Co., 406 F.2d 1223 (7th Cir. 1969),

cert. denied, 396 U.S. 820 (1969).

The protection against being disciplined arbitrarily

which a “just cause” requirement provides is one of the

most important protections which a union can secure for

the employees which it represents. Moreover, the em-

ployees’ expectation that arbitrators will not hesitate to

set aside peremptory and unfair discharges under a “‘just

cause” provision and that courts will readily enforce

such arbitral awards is one of the major factors which

makes employees willing to give up their right to strike

during the term of a contract which contains an arbitra-

tion provision. Thus, if arbitration is to retain its attri-

butes of speed, inexpensiveness and finality which have

made it acceptable to unions as an alternative to indus-

discharge the grievant was an ‘on the spot’ determina-

tion and * * * insufficient and inadequate consideration

and appraisal were accorded to the overall situation.”

Consolidated Vultee Aircraft Corp., 9 Lab. Arb. 510, 514

(1948) (Abernethy, Arb.) (Discharge for loafing set

aside because “no adequate investigation preceded the

termination.”’).

15

Reasons for Granting the Writ.

trial strife, this Court should issue a write of certiorari

to review the Second Circuit’s decision refusing to en-

force this arbitration award.

16

Conclusion.

CONCLUSION

For the reasons set forth above, this Court should

issue a writ of certiorari to review the judgment of the

court below.

Respectfully submitted,

MICHAEL H. GOTTESMAN CARL B. FRANKEL

BREDHOFF, GOTTESMAN, RUDOLPH L. MILASICH, JR.

COHEN & WEINBERG Five Gateway Center

1000 Connecticut Ave.,N.W. Pittsburgh, PA 15222

Washington, DC 20036

ANGOFF, GOLDMAN, MANNING, BERNARD KLEIMAN

PYLE & WANGER One East Wacker Drive

44 School Street Suite 1910

Boston, MA 02108 Chicago, IL 60601

Counsel for Petitioners

APPENDIX

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

At a stated Term of the United States Court of Ap-

peals for the Second Circut, held at the United States

Courthouse in the City of New York, on the 27th day

of December, one thousand nine hundred and seventy-

nine.

Present: Hon. LEONARD P. MOoRE, Hon. WILLIAM

H. TiMBErs, Circuit Judges; Hon. LLoyp F. MACMAHON,

United States District Judge, Sitting by Designation.

Docket Nos. 79-7476; 79-7477

+

THE HOMER BRONSON COMPANY,

Plaintiff-A ppellee,

Vv

UNITED STEELWORKERSOF AMERICA,

and Appeal from th

UNITED STEELWORKERS OF AMERICA Shited Gaahen .

LOCAL 5104, District Court

Defendants-Appellants. ; for the District

UNITED STEELWORKERSOF AMERIcA, | ©f Connecticut.

Plaintiff-Appellant,

Vv.

THE HOMER BRONSON COMPANY,

Defendant-A ppellee.

Filed: December 27, 1979

This cause came on to be heard on the transcript of

record from the United States District Court for the

District of Connecticut, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now here-

by ordered, adjudged, and decreed that the judgment of

said District Court be and it hereby is affirmed.

2a :

Appendix.

The essential question on these cross-appeals is

whether the arbitration award in question draws its

essence from the terms of the collective bargaining

agreement. See United Steelworkers of America v. Enter-

prise Wheel & Car Corp., 363 U.S. 593 (1960). We agree

with the district court that it does not.

Appellant Union contends that the contractual re-

quirement that an employee be discharged only for “just

cause” incorporates the question of whether the dis-

charged employee has been accorded due process. Thus

it argues that the arbitrator did not exceed the terms

of the collective bargaining agreement in ruling that,

because Mennillo had not been accorded due process, he

had not been discharged for just cause.

In support of its position, appellant argues that, in

view of the opaque nature of the phrase “just cause’,

the arbitrator was justified in interpreting it to include

due process requirements. In so doing, however, the arbi-

trator inserted procedural requirements that were not

called for in the collective bargaining agreement. The

arbitrator violated Article X, Paragraph 3, of the agree-

ment which states that the arbitrator has no authority

io add to or modify the terms of the agreement. The

union and the company had agreed to a three-step griev-

ance and arbitration procedure to cover situations such

as this and these procedures represent the contractual

agreement as to due process.

Alternatively, appellant argues that the arbitrator’s

award was not based solely upon the alleged procedural

deficiencies. It interprets the arbitrator’s statement that

he was was unpersuaded that Mennillo’s assigned task

was reasonably related to business efficiency to mean

that the arbitrator found an alternative ground for con-

3a

Appendix.

cluding that Mennillo was not discharged for just cause.

We disagree. The arbitrator found Mennillo to be “grave-

ly insubordinate’’. Implicit in that is a finding that Men-

nillo’s task was a legitimate one. See Arbitrator’s Opin-

ion at 10. We read the arbitrator’s award to mean that

he set aside the discharge solely because of procedural

irregularities.

Affirmed.

LEONARD P. MOORE

WILLIAM H. TIMBERS

Circuit Judges

LLoyD F. MACMAHON

United States District Judge

Sitting by Designation

4a

Appendix.

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Court House, in the City of (New York, on the

second day of April, one thousand nine hundred and

eighty.

THE HoMER D. BRONSON COMPANY

Plaintiff-A ppellee

Vv

AFL-CIO, and 79-7477

UNITED STEELWORKERS OF AMERICA,

LOCAL 5104,

Defendants-Appellants

UNITED STEELWORKERS OF AMERICA, 79-7476

Filed April 2, 1980

A petition for rehearing containing a suggestion

that the action be reheard en banc having been filed

herein by counsel for the appellant United Steelworkers

of America, AFL-CIO, and no active judge or judge who

was a member of the panel having requested that a vote

be taken on said suggestion.

Upon consideration thereof, it is Ordered that said

petition be and it hereby is DENIED.

IRVING R. KAUFMAN,

Chief Judge

Appendix.

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the Second

day of April, one thousand nine hundred and eighty.

Present: HON: LEONARD P. MOORE

HON. WILLIAM H. TIMBERS

Circuit Judges

Hon: Lioyp F. MACMAHON

District Judge

THE HOMER D. BRONSON COMPANY

Plaintiff-Appellee

Vv

UNITED STEELWORKERS OF AMERICA, 79-7476

AFL-CIO, and 79-7477

UNITED STEELWORKERS OF AMERICA,

LOCAL 5104,

Defendants-Appellants

A petition for a rehearing having been filed herein

by counsel for the appellant United Steelworkers of

America, AFL-CIO,

Upon consideration thereof, it is Ordered that said

petition be and hereby is DENIED

A. DANIEL FUSARO,

Clerk

6a

Appendix.

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York, on

the twentieth day of July, one thousand nine hundred

and seventy-nine.

THE HOMER D. BRONSON COMPANY,

Plaintiff-Appellee

Vv.

UNITED STEELWORKERS OF AMERICA, AFL-CIO, and

UNITED STEELWORKERS OF AMERICA, LOCAL 5104

Defendants-Appellants.

It is hereby ordered that the motion made herein

by counsel for the appellants dated July 13, 1979 to con-

solidate the appeals in Docket No’s 79-7476 and 79-7477

be and it hereby is granted.

ELLSWORTH A. VAN GRAAFEILAND

Circuit Judges

Ta

Appendix.

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

THE HOMER D. BRONSON COMPANY

v. Crvii No.

UNITED STEELWORKERS OF AMERICA, N-79-94

AFL-CIO, Loca No. 5104, ET AL

Filed June 13, 1979

JUDGMENT

This action came on for consideration on plaintiff's

Application to Vacate or Modify Arbitration Award be-

fore the Honorable T. F. Gilroy Daly, U.S.D.J., and the

Court, on June 11, 1979, having granted said Application

to the extent that the plaintiff is not required to rein-

state Mr. Manillo or extend other benefits recited by the

arbitrator, and the Court having dismissed defendant’s

counterclaim,

It is ORDERED and ADJUDGED that judgment be

and is hereby entered in favor of the plaintiff vacating

or modifying the arbitration award to the extent that

the plaintiff is not required to reinstate Mr. Manillo or

extend other benefits recited by the arbitrator, and that

the defendant’s counterclaim be and is hereby dismissed.

Dated at New Haven, Connecticut, this 13th day of

June, 1979.

SYLVESTER A. MARKOWSKI

Clerk, United States District Court

By FRANCES J. ANGELO

Deputy In Charge

8a

Appendia.

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STEELWORKERS OF AMERICA,

AFL-CIO CrviL No.

V. N-79-95

THE HOMER D. BRONSON COMPANY

Filed June 13, 1979

JUDGMENT

This action came on for consideration on plaintiff's

Application to Confirm Arbitration Award before the

Honorable T. F. Gilroy Daly, U.S.D.J., and the Court, on

June 11, 1979, having denied said application and order-

ing judgment to enter for the defendant,

It is ORDERED and ADJUDGED that judgment be

and is hereby entered in favor of the defendant dismiss-

ing this action.

Dated at New Haven, Connecticut, this 13th day of

June, 1979.

SYLVESTER A. MARKOWSKI .

Clerk, United States District Court

By FRANCES J. ANGELO

Deputy In Charge

9a

Appendiz.

AMERICAN ARBITRATION ASSOCIATION

VOLUNTARY LABOR ARBITRATION TRIBUNAL

In the Matter of the Arbitration between

UNITED STEELWORKERS LOCAL 5104

—and—

HOMER D. BRONSON COMPANY

CASE NUMBER: 12 30 0371 78 (Grievance No. 101)

AWARD OF ARBITRATOR

THE UNDERSIGNED ARBITRATOR(S), having been

designated in accordance with the arbitration agreement

entered into by the above-named Parties, and dated

August 1, 1977 and having oeen duly sworn and having

duly heard the proofs and allegations of the Parties,

AWARDS as follows:

Within three working days from the receipt of this

Award by the Company, Joseph Mennillo shall be rein-

stated to the job he held with the Company on October

26, 1978. His discharge of October 26, 1978 is reduced to

an unpaid, disciplinary suspension covering the period

from October 26, 1978 until his return to work. Although

he is not entitled to back wages, his seniority and other

contractual benefits shall be restored retroactively to

October 26, 1978.

ALFRED B, CLARK

Arbitrator’s signature

(dated) 2-23-79

STATE OF

COUNTY OF

On this day of ,19 =, before me

personally came and appeared

to me known and known to me to be the individual(s)

described in and who executed the foregoing instrument

and he acknowledged to me that he executed the same.

SS. :

10a

Appendix.

DISCUSSION

In the Matter of the Arbitration AND

Between OPINION OF

UNITED STEELWORKERS LOCAL 5104 , a aa R

—and— 12 30 0371 78

HOMER D. BRONSON COMPANY (Grievance

No. 101)

ARBITRATOR:

Alfred B. Clark, selected by the Parties under the

Voluntary Labor Arbitration Rules of the American

Arbitration Association (A.A.A.) and under the

terms of Article X (Arbitration) of the Agreement

dated August 1, 1977 between the Homer D. Bronson

Company (hereinafter referred to as the “Com-

pany’) and the United Steelworkers of America,

AFL-CIO (hereinafter referred to as the “Union”’).

APPEARANCES:

For the Union—

David B. Rome, Esq.

Attorney at Law

Angoff and Goldman

Boston, Massachusetts

For the Company—

Sidney A. Coven, Esq.

Attorney at Law

Lepie & Coven

Boston, Massachusetts

HEARING:

The hearing was held at the New Haven Motor Inn,

New Haven, Connecticut, on February 13, 1979.

lla

Appendix.

ISSUE

The Parties agreed at the hearing on the following

statement of the issue:

Was the discharge of Joseph Mennillo, Jr. for just

cause? If not, what shall the remedy be?

APPLICABLE ARTICLE OF THE CONTRACT

ARTICLE XIV

Management

1. Subject to the conditions of this Agreement,

The Company shall not be limited in its right to

manage and direct the working forces, including but

not limited to the right to hire, suspend and dis-

charge for just cause; the right to transfer em-

ployees to different jobs; the right to maintain dis-

cipline and efficiency; the right to relieve employees

from duty because of lack of work or for other

legitimate reasons; the right to determine the prod-

uct to be manufactured, the methods and process

and means of manufacture; the scheduling of opera-

tions; and the right to introduce new and improved

methods and operations or to extend, limit or curtail

existing conditions.

2. The Company agrees that it will not exercise

its management powers contrary to the terms of

this Agreement. If any action of the Company, pur-

suant to its management powers, is claimed to vio-

late the provisions of this agreement, the directions

of management shall be complied with and the

matter shall be brought up as a grievance. (Unless

it is unsafe, immoral or illegal. )

12a

Appendix.

BACKGROUND

On October 26, 1978, Joseph Mennillo, Jr., the Griev-

ant, who had been employed by the Company since Sep-

tember 9, 1957, and who is President of Local 5104, was

discharged by the Company for (in the words of Com-

pany Counsel) his ‘refusal to obey a direct order.”

During his period of employment, Mr. Mennillo had held

various hourly paid jobs with the Company. On the day

of his discharge, he was classified as a Receiver, a Labor

Grade 6 job classification—a job he had held for approxi-

mately a two year period.

On the above date, at approximately 12:30 p.m.,

George William Cuff, Jr., Receiving Foreman and the

Grievant’s immediate supervisor, contacted Mr. Mennillo

and assigned him to “clean-up” the trash which had

accumulated on the ground in the area of the “dump-

ster,” a trash receptacle placed close to one end of the

receiving and shipping platform of the plant. Mr. Men-

nillo voiced his objection to the assignment, insisting

that such clean-up task was not part of his job as a

Receiver, that it was more properly a maintenance man’s

job, and that if he was to be given the task in question

he was entitled to receive a Labor Grade 7 rate (a higher

Labor Grade) for the time required to accomplish the

task!, and advising that he (Mr. Mennillo) would grieve

the subject assignment.

Mr. Mennillo prior to starting the clean-up assign-

ment, made a delivery of supplies to the Plating Depart-

1. Mr. Cuff uncertain as to the rate to be paid,

checked with the appropriate Company official who re-

ported that the Grievant was not correct in claiming

that he was entitled to a Labor Grade 7 rate. Mr. Men-

nillo was advised accordingly.

13a

Appendix.

ment. While returning to the receiving and shipping plat-

form, he was approached by Edward Siemenski, a pro-

duction machine operator. Mr. Siemenski attempted to

give the Grievant several requisitions required by him in

the performance of his production duties. Mr. Mennillo

advised Mr. Siemenski that he was unable to immediately

fill the requisitions but that they should be left at his

(the Grievant’s) work bench and he would get to them

as soon as possible. Mr. Mennillo returned to the receiv-

ing and shipping area and began to sweep in the area

adjacent to the “dumpster.”

“Ten or fifteen” minutes later, Mr. Cuff returned to

the platform and observed that the Grievant had left the

area of the “dumpster.” As he was standing there, the

Grievant approached him from a position opposite to

that of the “dumpster.” Mr. Mennillo reported to Mr.

Cuff that he had stopped sweeping because it was rain-

ing. Mr. Cuff responded that there was “adequate rain

gear” upstairs in his office and available and that the

Grievant should use it and return immediately to his

clean-up task. The Grievant refused.

Mr. Cuff summoned James C. Coffey, Jr., Shipping

Foreman, to witness the Grievant’s refusal to perform

the subject task. Mr. Cuff in the presence of Mr. Coffey

repeated the order to the Grievant. Again the Grievant

refused. The Grievant was then told by Mr. Cuff that he

“was fired’ and that he (Mr. Mennillo) had “five minutes

to leave the building.”

POSITIONS OF THE PARTIES

THE COMPANY’S POSITION

On October 26, 1978 the Grievant refused to ohey

a lawful order of his supervisor. In his capacity as a

14a

Appendix.

union officer he was surely aware that he was obligated

to comply with the orders of his superiors, just as all

other employees must, unless reasonable grounds existed

for believing that the order was hazardous to life or

health.

Such grounds did not exist relative to the assign-

ment given to him on the afternoon of the day in ques-

tion. Although maintaining that it was not raining when

he was initially given the assignment, the Company con-

cedes that it was raining when he stopped the clean-up

task. However, the rain, at worse, was “light,’’ and Mr.

Mennillo was aware that suitable “rain gear” was avail-

able for him to wear, and the outside October tempera-

ture was no lower than ‘55 to 60 degrees.” In fact, Vice

President and General Manager Donald A. Briggs testi-

fied that there was no need for him (Mr. Briggs) to wear

his raincoat while he was out to lunch and that when

traveling on his return to the plant, at about 1:00 p.m.,

it was not necessary for him to turn on his automobile’s

windshield wipers.

A history exists showing the employee in the past as

insubordinate and repeatedly challenging Mr. Cuff’s au-

thority. In support of this assertion, Counsel for the

Company points to the findings by Arbitrator Robert

Stutz in A.A.A. Case No. 12 30 0051 78, Arbitrator

Arnold Zack in A.A.A. Case No. 12 30 0140 78, and Arbi-

trator Lawrence Holden, Jr. in A.A.A. Case No. 12 30

0253 78—all of the Awards in whole or in part relating

to the Grievant’s past misconduct. Added to the above

findings is the testimony of Mr. Cuff who related that

one week following his employment as Forer.an the

Grievant tried to make “the new guy look bad,” and that

during September 1978 went in the presence of other

15a

Appendix.

employees into a “temper tantrum” over a stock moving

assignment, causing considerable embarassment to Mr.

Cuff and posing a challenge to Mr. Cuff’s authority. No

formal warning was issued but Mr. Cuff admonished that

future similar behavior on the part of the Grievant

would not be tolerated and Mr. Cuff advised the Grievant

that honest differences relative to a work assignment

should be discussed privately between them.?

Company Counsel points also to Mr. Cuff’s testimony

relative to an assignment given to Mr. Mennillo during

the morning hours of October 26, 1978 as reflective of

the Grievant’s continuing disregard of supervisory au-

thority. On this occasion, Mr. Mennillo was assigned to

move stock as directed by Kevin Briggs (an assistant to

the Company’s Purchasing Agent) who was performing

an inventory count of certain items. Mr. Briggs later

reported to Mr. Cuff that Mr. Mennillo “virtually didn’t

lift a finger to help him.”

The clean-up assignment given to Mr. Mennillo the

afternoon of October 26, 1978 was not unusual, nor in-

tended to be demeaning to the Grievant, as the Company

practice is to assign such tasks to any employee, in any

2. Mr. Cuff later informed Ronald A. Hamilton,

Manufacturing Manager of the September incident. Mr.

Hamilton disapproved of the mild action taken by Mr.

Cuff, pointing out that it was ‘“‘a serious offense,” and

that Mr. Cuff would have been “within his rights to

fire’ the Grievant.

3. It was suggested that the Grievant’s conduct

and attitude emanates from his frustration in “iosing

nine of ten” recent arbitration cases and his failure to

have the Company concede, through a charge filed with

the National Labor Relations Board (Case No. 1-CA-14,

661), that it was in violation of Section 8(a) (1) of the

National Labor Relations Act, as amended.

16a

Appendix.

one of the various job classifications of the Company,

when the primary work of the employee has slackened or

is “not pressing.” As far as Mr. Cuff knew no “pressing”

work existed for the Grievant on the afternoon of Oc-

tober 26, 1978. If a delivery was urgently required in the

Plating Department, the Grievant did not acquaint Mr.

Cuff with this fact.

Mr. Cuff’s interpretation of the fifth paragraph of

the Grievant’s job description, which reads that a Re-

ceiver “‘[m]ay be required to move scrap to final collec-

tion storage,” correctly covers the subject clean-up as-

signment. The Grievant’s job description reads:

JOB DESCRIPTION

Code Number .......................

Dept. 65

Labor Grade 6

Job Name RECEIVER

Description:

Is responsible for the receiving, verification, posting

and storage of incoming material, delivery of mate-

rial to consuming departments, rehandling of re-

turned material or goods and truck of scrap.

Uses powered fork lift trucks, stevedore truck, hand

truck, over head crane with material grabs or over-

head crane with suspend-a-lift.

Receives all materials, unloads from trucks indoors

and out, counts and/or weighs, posts and puts stock

away in assigned locations throughout the plant.

17a

Appendix.

Gets and delivers raw materials to consuming de-

partments based on requisition. May be required to

set up paper material in reel in consuming depart-

ments.

May be required to move scrap to final collection

storage.

Weighs, recards and stores issued stock that is re-

turned to department.

Checks in returned goods and delivers to appropri-

ate department when instructed.

Date 9/9/74 Prepared by ejm

This description covers the major duties performed

but is not intended to be all inclusive. Additional duties

may be performed of a type which would not alter the

rating of the job.

Although the Union in its presentation attempts to

“obscure the real issue,” the fact remains that the Griev-

ant was insubordinate. The subject assignment was not

“unsafe.”’ The Grievant’s course of action, if he believed

the assignment improper under the Agreement, was to

complete the assignment, then contest the propriety of

the assignment through the established grievance proce-

dure. The history of breaches of discipline by the Griev-

ant, together with his failure to respond to past correc-

tive efforts by the Company, warrants discharge in this

case.

The Union’s Position

Counsel for the Union argues that the action of the

Company in discharging Mr. Mennillo fails to meet the

test of “just cause.” Work of an urgent nature, and

covered by the Grievant’s job description, existed at the

18a

Appendix.

time he was singled out for what to him was an “extra-

ordinary” and personally disagreeable task — a task

neither encompassed nor intended in the make-up of the

Receiver job.

Counsel points to Section 2 of Article XIV (Manage-

ment). Under this provision, he maintains, an employee

is relieved from complying with a management directive

if the action ordered is “unsafe, immoral or illegal.’’ In

view of the weather in the afternoon in question — “a

steady drizzle’ worsening over a period of time to “a

heavy rain” — performance of the out-of-doors clean-up

task would have exposed the Grievant to an element de-

trimental to his health, particularly since the “rain

gear” offered by the Company was not adequate protec-

tion for an employee for an extended period of work in

the rain.

Furthermore, the trash accumulation around the

“dumpster” had been there for several months without

maintenance or other Company personnel being assigned

to clean it up. Obviously management had not regarded

the so-called “eyesore” as something requiring prompt

correction. The insistence, therefore, by management

that the “dumpster” area be immediately picked-up* by

the Grievant during a rain storm carries the suggestion

that management was using the occasion to retaliate

against Mr. Mennillo for his actions as a Union Official.

The record supports this inference, Union Counsel as-

serts.

4. A photograph of the “dumpster” area (pre-

sented in evidence by the Union) taken by a Union of-

ficial on Saturday October 28, 1978, two days following

the discharge of the Grievant, shows the subject area

still un-swept.

19a

Appendix.

The Grievant since becoming the Local Union Presi-

dent has found it necessary to file numerous grievances

to assure the continuation of beneficial practices and

working conditions. And he has found it necessary to

file a complaint with the National Labor Relations Board

charging a “refusal to bargain.’’5

Mr. Menillo has been employed by the Company for

more than a 21 year period and has been regarded dur-

5. In the entering into a “Settlement Agreement,”

with the understanding that the Company was making

no admission of a violation of “Section 8(a) (1) or any

other Section of the National Labor Relations Act, as

amended,” the Company consented to the posting of the

following notice, set forth on NLRB form 4722 [ Notice

to Employees — Posted Pursuant to a Settlement Agree-

ment Approved by a Regional Director of the National

Labor Relations Board]:

The National Labor Relations Act gives all em-

ployees these rights:

To engage in self-organization;

To form, join, or assist unions;

To bargain collectively through representatives

of their own choosing;

To act together for collective bargaining or

other mutual aid or protection;

To refrain from any and all of these activities.

WE WILL NOT restrain or coerce our employees in

poe exercise of the aforementioned rights. More specifi-

cally,

WE WILL NOT refuse to allow employees to be

represented by Local 5104, United Steelworkers of

America during a disciplinary meeting.

WE WILL NOT threaten employees with loss of

bargaining unit work if Local 5104, United Steelworkers

of America enforces its collective bargaining agreement

and safety conditions.

20a

Appendix.

ing this period of time as a competent employee, The

arbitration awards presented by the Company (and re-

ferred to above by Company Counsel) fail to support the

picture, the Company hopes to portray, of an insubordi-

nate and uncooperative employee, as the incidents giving

rise to these arbitration cases differ substantially from

the instant matter. The incidents detailed by Mr. Cuff

and considered by him as challenges to his supervisory

authority are undocumented — no written warnings

having been issued to the Grievant or other disciplinary

action having been taken by the Company.

The subject assignment was to say the least “extra-

ordinary” and posed a hazard to the Grievant’s health

if carried out. Under the terms of the Agreement, there-

fore, he was not obligated to continue the out-of-doors

clean-up work once it started to rain. (Counsel noting

that the Grievant started the work and stopped only

when it began to rain.)

Regardless of any consideration which may be given

to the Company’s claim of improper conduct by the

Grievant, this case must be viewed on its particular

merits. The Company has not justified its October 26,

1978 action. Mr. Mennillo has been unsuccessful in ob-

taining other employment, has been unable to collect

State unemployment compensation, and consequently

has suffered an income loss since October 26, 1978. He

should be immediately reinstated, therefore, with back

pay and with all contractual benefits restored.

DISCUSSION AND OPINION

Insubordination is always a serious offense. Man-

agement must have the right to control its operation

and its work force. This right means that those individ-

21a

Appendix.

uals in supervision can direct the employees assigned to

them with the expectation that their directives will be

carried out. The purpose behind the employment rela-

tionship is the accomplishment of the work deemed

necessary by the employer; it follows, therefore, that

employees must accept the authority of the supervisor.

And respect for authority is an essential element in the

efficient operation of the enterprise.

Insubordination arises when an employee shows dis-

respect toward a member of supervision, for by doing

so he is challenging the authority structure of the or-

ganization. Quarreling at length with a supervisor and

delays in responding to orders can be considered as in-

subordination. (However, it is not insubordination to

complain briefly about a particular order or to raise a

good faith question regarding a order. )

Although insubordination can be exhibited in sev-

eral ways, as the Company related in its presentation

of its past dealings with Mr. Mennillo, most frequently,

as in the October 26, 1978 incident, it is the alleged re-

fusal of an employee to perform a legitimate work as-

signment. The rule generally followed by arbitrators

when dealing with a refusal to obey issue is that em-

ployees must not take matters into their own hands by

refusing to comply with a work order, but should carry

out the order and then seek relief through the estab-

lished grievance procedure. Arbitrator Paul W. Hardy in

City of Memphis [A.A.A. Case No. 114] in his 1971 opin-

ion on this issue follows the thinking of most arbitrators

(in both the private and public sectors). He states:

No employee may properly refuse and/or adamantly

persist in the refusal to obey a work order on the

ground that the order or directive violates some

22a

Appendinx.

right of his under the contract or a job description

— no matter how clear the violation may seem to

him ... an employee’s obligation is to perform the

work directed and grieve later —for his remedy lies

in orderly resort to the grievance procedure of the

contract.

However the above rule has its limitations. An em-

ployee may properly refuse to carry out a work order

that is threatening to his health or safety, or that re-

quires him to violate the law or commit an immoral act.

Section 2 of Article XIV of the Agreement between the

parties details this principle.

The Grievant, pointing to the above Section of the

Agreement, bases his refusal to comply with Foreman

Cuff’s October 26, 1978 directive on the fact that it was

raining that afternoon, that proper protective clothing

was not offered to him and to comply with Mr. Cuff’s

order would have been injurious to his health. (The

Grievant and the Union’s witnesses described the degree

of precipitation as ‘a heavy drizzle” worsening to “a

steady rain’; on the other hand the Company maintains

that nothing more than a “misting” or a “light drizzle”

was occurring, The Grievant claims that his clothing

was wet when he stopped work; both Union and Com-

pany witnesses were unable to positively state what the

exact condition of the Grievant’s clothes had been at the

time of his discharge. )

The Grievant rejects the stand taken by the Com-

pany that he was offered adequate rain gear, insisting

that the raincoat and “hard hat” available to him were

insufficient to protect him over an extended period of

time. However, no evidence was submitted indicating

that the Grievant requested fuller protective coverage

238

Appendix.

of the type worn by the Company’s maintenance per-

sonnel when working out of doors in inclement weather,

or that Mr. Cuff would have obtained full protective

clothing for him had the Grievant requested it.

No evidence was presented showing the Grievant in

poor health or particularly susceptible to colds. The out-

side temperature, according to Mr. Cuff and not refuted

by the Union, was not below 55 to 60 degrees Fahrenheit.

The popular belief that chilling alone leads to colds lacks

scientific evidence. Artic explorers are notably free of

colds during the coldest months of the year. .. the colds

return when their contact with civilization (and vir-

uses) is reestablished.®

Exposure to a person with a cold is one of the im-

portant causes. When American troops landed on Attu

during World War II, for several days their bodies were

constantly chilled and wet. Yet there were remarkably

few cases of colds among the troops.7

The Merck Manual of Diagnosis and Therapy

[Merck, Sharp & Dohme Research Laboratories, 1977,

pg. 33], under the heading,“‘The Common Cold,” reads:

Predisposing factors have not been clearly identi-

fied. Chilling of the body surface will not by itself

induce colds and susceptibility is not affected either

by the person’s health and nutrition or by upper

respiratory tract abnormalities (e.g., enlarged ton-

sils or adenoids). Infection may be facilitated by

excessive fatigue, allergic nasopharyngeal dis-

orders, or inhalation of noxious fumes... .

6. Encyclopedia Americana, Volume 7, pg. 219.

7. World Book Encyclopedia, Volume 3, pg. 1548.

24a

Appendix.

Based upon the above references, the Arbitrator is

not persuaded that the order requiring Mr. Mennillo to

work out-of-doors in the rain, when protective clothing

was available (and perhaps even fuller covering could

have been provided upon his request), was manifestly

and irrefutably “unsafe.’’ Every job presents situations

in which hazards are present but unimportant. Cooks in

a hotel kitchen are subject to possible slight burns from

stove and hot grease when cooking foodstuffs and to

minor knife cuts in preparing foods and even a house-

wife when performing domestic duties in her house is

subject to ordinary household hazards.

Other jobs routinely present situations to an em-

ployee that are extremely hazardous; proximity to

moving mechanical parts, electric shock, working on

scaffolding and high places, exposure to burns and radi-

ant energy, exposure to all types of explosives, and ex-

posure to toxic chemical and biological agents. The ap-

plication of the word “unsafe”? must be applied in dif-

ferent ways to different jobs and according to the parti-

cular qualifications and expertise of the employee in-

volved.

The word “unsafe” would surely apply to a situa-

tion which serious injury or death could result from re-

quiring an employee to perform an unfamiliar, hazardous

task for which he has neither the training or physical

capability, such as work on an electrical unit where

electrocution is a possibility if any one of a number of

possible errors is made. To direct Mr. Mennillo to climb

a telephone or light pole during a lightning storm

would be an “unsafe” order. However, if he was em-

ployed as a “line-man” he could very well be expected to

climb poles to repair powerlines regardless of the

25a

Appendix.

weather. (In fact, it is standard practice to provide line-

men with a canvas tent when working on poles during

rain or snow storms.)

The word “unsafe” as set forth in Section 2 of

Article XIV, therefore, anticipates hazardous conditions

or situations which are far removed in terms of safety

from the routine tasks normally performed by an em-

ployee in his job classification.

Arbitration awards are consistent in what is gen-

erally considered “tests for just cause.” Among the

several tests is the well-accepted guideline that an em-

ployer must avoid arbitrary or hasty action when con-

fronted with a situation involving insubordination. Mr.

Mennillo’s union status does not shield him from charges

of misconduct. A union representative may be immuned

for acting within the scope of his recognized union re-

sponsibilities but he is properly subject to discipline for

his actions as an employee. However, exceptional care

should be exercised when taking disciplinary action

against a top union officer for management may not dis-

criminate against such employee because of union activi-

ties legitimately conducted.

It is reasonable to expect, therefore, that a man-

agement prior to the discharge of a top union officer

would make certain that no abberation from due process

was present. Mr. Coffey witnessed the Grievant’s actual

refusal on October 26, 1978 to obey Mr. Cuff’s order. Mr.

Coffey’s role in the discharge ended at that time. It was

Mr. Cuff who made the decision to discharge and to give

the Grievant only five minutes to leave the premises.

Mr. Cuff was hired by the Company on August 21,

1978. The three arbitration cases cited by Company

26a

Appendix.

Counsel in his presentation arose from situations or

incidents occurring prior to Mr. Cuff’s employment and

two of the Awards were handed down prior to Mr.

Cuff’s hiring date. It appears unlikely, therefore, that

Mr. Cuff had sufficient first hand or personal knowl-

edge of these cases to make a judgment as to what

weight these prior incidents should be given in arriving

at his decision to discharge. It appears more likely to

the Arbitrator that these Awards had no affect at all on

Mr. Cuff’s determination — the arbitral rulings later

being brought out of the Company’s files, in effect as an

afterthought, to bolster Mr. Cuff’s hasty action.

Management, it seems, supported Mr. Cuff’s decision

solely upon his allegations concerning the events of Oc-

tober 26, 1978 and without objectively and unbiasedly

investigating all circumstances surrounding the charge.

And without affording the Grievant the opportunity of

a full hearing (conducted by a member of senior man-

agement who was not directly involved in the October

26, 1978 situation) with the Grievant present prior to

the discharge. The efforts made by the Local’s Vice

President on the afternoon of October 26, 1978, fcllow-

ing the discharge, to get Mr. Cuff’s decision counter-

manded does not, in the opinion of the Arbitrator, con-

stitute due process as the decision to discharge had al-

ready been taken by Mr. Cuff, prejudicing to some ex-

tent the possibility of a fair review of the matter by

another member of management. Had Mr. Cuff simply

suspended the Grievant pending a review of all the cir-

cumstances by senior Management, particularly because

of Mr. Mennillo’s Union status, the suggestion of pos-

sible mixed motives in the abrupt discharge of the Local

Union President would not appear.

27a

Appendix.

When a management ignores the need for a review

of the actions of a foreman in disciplining a high union

officer impulsive 2nd arbitrary decisions are more likely

to exist as management is blocked in these instances

from considering all mitigating factors. Denial of due

process also frequently prevents consideration of the

various alternatives to discharge and a full evaluation

of all the circumstances having a bearing on the alleged

offense.

The facts show that Mr. Mennillo was gravely in-

subordinate on October 26, 1978; the task he was directed

to perform in the rain cannot be considered “unsafe” in

the sense conveyed in the language of Section 2 of Article

XIV of the Agreement. Although the Arbitrator is not

persuaded that the subject task was reasonably related

to business efficiency, which in some way would be ad-

versely affected if the clean-up of the “dumpster” area

was not performed, regardless of the weather, on the

afternoon of October 26, 1978, the serious weakness in

the Company’s position is the lack of due process ac-

corded the Grievant.

The Grievant should have been suspended rather

than being summarily discharged. The end result could

very well have been the same, with the Company sus-

taining the discharge, even if the matter had been re-

viewed prior to discharge, but fundamental fairness dic-

tates that notice and the right to a full, objective hear-

ing be afforded prior to a deprivation.

The extent to which procedural due process must be

afforded a person is influenced by the extent to which he

may be subject to suffer grievous loss. Mr. Mennillo stood

to suffer a substantial loss of earnings and an impair-

ment toward obtaining other gainful employment. Man-

28a

Appendix.

agement was obligated, therefore, to give Mr. Mennillo

an opportunity prior to his discharge to present the basis

for his refusal to obey Mr. Cuff’s order and to present

to management other extenuating and mitigating cir-

cumstances and facts which affected his action or which

Management should consider before taking final action.

In view of the above consideration, the penalty of dis-

charge is deemed inappropriate and the penalty is re-

duced to an unpaid, disciplinary suspension.

February 23, 1979

ALFRED B. CLARK

Arbitrator