Electronics Corp. v. INTERNATIONAL U. OF E., R. & MW, L. 272

• Decision Date: 21 February 1974
• Docket Number: No. 73-1322,73-1347.,73-1322
• Citation: 492 F.2d 1255
• Parties: ELECTRONICS CORPORATION OF AMERICA, Plaintiff-Appellee, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO LOCAL 272, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

492 F.2d 1255 (1974)

ELECTRONICS CORPORATION OF AMERICA, Plaintiff-Appellee, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO LOCAL 272, Defendant-Appellant.

Nos. 73-1322, 73-1347.

United States Court of Appeals, First Circuit.

Heard January 9, 1974.

Decided February 21, 1974.

Will J. Bangs, Boston, Mass., with whom Choate, Hall & Stewart, Boston, Mass., was on brief, for Electronics Corp. of America.

John McMahon, Boston, Mass., with whom Angoff, Goldman, Manning, Pyle & Wanger, Boston, Mass., was on brief, for International Union of Electrical, Radio and Machine Workers, Local 272.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This appeal is from a summary judgment granted defendant union in a suit brought by management to vacate an arbitrator's award culminating an employee discharge grievance proceeding.¹ The asserted cause for discharge was a long period, spanning several years, of falsifying time tickets. Although a three day suspension accompanied a third warning given the employee, three months before his discharge, the arbitrator based his award on an alleged lack of industrial due process, since he assumed that the employee was not suspended prior to discharge and the employee had therefore been deprived of a significant step in a graduated, progressive warning system. He ordered the reinstatement of the employee. The district court deemed the factual error underlying the arbitrator's award to be less one of decision than of explanation, construing the arbitrator, if he had indeed been aware of the suspension, as finding that the last three months of employment, following the third warning, began a "new round" of violations which required a suspension in that period. Thus, the question before us is: where the central fact underlying an arbitrator's decision is concededly erroneous, can the award stand?

The record before us shows that the documentary evidence before the arbitrator was a long and detailed letter of discharge, summarizing four years of company unhappiness with the employee's cavalier attitude toward time tickets, meetings, oral warnings, and the three written warnings (but omitting mention of the suspension), together with tables and charts showing the extent of the employee's delinquencies. One of the charts visually displayed to but not left with the arbitrator, for March, 1972, showed three days marked with a big "A" — which a legend identified as meaning an absence — and a faded (S) — for which there was no legend. This notation, we are informed, meant "suspension". The warnings themselves were not introduced into evidence; the third would have indicated the imposition of a suspension. The testimony was not recorded. All we have in addition are affidavits from a company official attesting that in his opening remarks to the arbitrator, in testimony explaining the company's warning system, and in an ex parte discussion requested by the arbitrator, he referred to the fact of suspension. Opposing affidavits claimed that at no time during the hearing did the official refer to suspension.²

Three weeks after the arbitration hearing the arbitrator's decision and award were issued. The arbitrator, conceding that the employee had been "incredibly lax", saw a failure of industrial due process. Not having seen the warnings, he queried whether the warnings had given clear and unequivocal notice. He recognized that after the written warnings (given on December 6, 1971, December 21, 1971, and February 8, 1972) a discussion of the warnings at a meeting on April 6, 1972 was "a further step", but that the company had failed to take "the intermediate step" of a suspension, for which the April 6 verbal counselling was no substitute. He wrote:

". . . Progressive, corrective discipline has been spelled out as a guide to management over the last thirty years, to include oral warnings, written warnings, and at least one suspension before the discharge of a chronic offender will be sustained. A management which short cuts this procedure, or omits one of the steps, does so at its peril and must have a most compelling reason to justify a departure from the traditional procedural route.

In our case the Company neglected to suspend Gerasimetz before resort to discharge. There is no evidence in the record that Gerasimetz was ever given a disciplinary suspension in a final effort to persuade him to have his job tickets

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