Litvak Packing Co. v. United Food and Commercial Workers, Local Union No. 7

• Decision Date: 21 September 1989
• Docket Number: No. 87-2150,87-2150
• Citation: 886 F.2d 275
• Parties: 132 L.R.R.M. (BNA) 2383, 113 Lab.Cas. P 11,520 LITVAK PACKING COMPANY, Plaintiff-Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS, LOCAL UNION NO. 7, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 275

886 F.2d 275

132 L.R.R.M. (BNA) 2383, 113 Lab.Cas. P 11,520

LITVAK PACKING COMPANY, Plaintiff-Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS, LOCAL UNION NO. 7,

Defendant-Appellee.

No. 87-2150.

United States Court of Appeals, Tenth Circuit.

Sept. 21, 1989.

Walter V. Siebert of Sherman & Howard (Susan K. Grebeldinger with him, on the briefs), Denver, Colo., for plaintiff-appellant.

James C. Fattor of Hornbein, MacDonald and Fattor (Susan J. Tyburski and Donald P. MacDonald, on the brief), Denver, Colo., for defendant-appellee.

Before LOGAN, SETH and TACHA, Circuit Judges.

LOGAN, Circuit Judge.

The United Food and Commercial Workers, Local Union No. 7 (U.F.C.W.) filed a grievance protesting Litvak Packing Company's (Litvak) discharge of Loyal P. Barstow. The matter was referred to arbitration pursuant to a collective bargaining agreement, which resulted in an award rescinding the discharge. Litvak sued in federal district court to vacate the award. On cross-motions for summary judgment, the district court granted U.F.C.W.'s motion and enforced the award. This appeal followed.

Barstow was a production employee at Litvak's slaughterhouse, meat packing, and processing plant in Denver, Colorado. He was discharged on November 14, 1986, for failing on the previous day to draw and store blood from cattle fetuses, a part of his job in the condemn room of the plant.

The collective bargaining agreement in effect at the time of the discharge provides in relevant part:

"6.01 No employee covered by this Agreement shall be suspended, demoted, or dismissed without just and sufficient cause. Sufficient cause for discharge shall include, among other reasons, persistent tardiness or absence, dishonesty, negligence, incompetence, insubordination, intoxication while on duty, refusal to perform any reasonable work, service or labor when required to do so by the Employer...."

The parties stipulated the following issue to be decided by the arbitrator: "Did the Company have just and sufficient cause to discharge the Grievant, Loyal P. Barstow, on November 14, 1986?" I R. Tab 1 at 3 (Arbitrator's Award). Litvak argues, however, that the arbitrator "essentially required Litvak to prove that Barstow was insubordinate or refused to perform a reasonable work order." Brief of Appellant at 13. The arbitrator did focus on these factors, finding that Barstow was fired "for insubordination and refusal to save the blood of the [cattle fetuses] as he had been told to do by his supervisors," I R. Tab 1 at 7, and deeming "[t]he real question in this case [to be] whether the Grievant's failure in job performance can be properly labeled as 'insubordination' and/or 'the refusal to perform any reasonable work required by the Employer' so as to constitute just and sufficient cause for discharge under the terms of Sec. 6.01 of the contract," id. at 11.

The arbitrator concluded that even though there was no reason for Barstow's "failure to save blood on November 13th other than carelessness, laziness, and/or neglect," and that Barstow "was derelict in carrying out his duties, ... he was not insubordinate and he did not refuse to perform work when required to do so by his Employer." Id. at 12. The arbitrator then stated that "[d]ereliction of duty involving extreme carelessness and neglect and which results in serious economic damage to the employer may itself be grounds for discharge. But that was not the grounds stated by the Company in this case and, furthermore, all of the circumstances of this case do not add up to just and sufficient cause for discharging the Grievant." Id.

Our review of arbitral awards is among the narrowest known to the law. We must enforce an award which "draws its essence from the collective bargaining agreement." United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). This standard is not an invitation to a court to substitute its judgment for that of an arbitrator. The parties have contracted for an arbitrator to resolve their disputes, not a court. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (1987); W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983). They have agreed to be bound by the arbitrator's factfinding and contract interpretation whether his findings and conclusions are correct or not. Misco, 108 S.Ct. at 370-71; W.R. Grace, 461 U.S. at 765, 103 S.Ct. at 2183. Thus, "as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Misco, 108 S.Ct. at 371 (emphasis added). If the parties disagree with the arbitrator's interpretation, their remedy is to modify their contract or select a new arbitrator.

Litvak argues that because the arbitrator "specifically found that Barstow was negligent," he had no alternative to upholding the discharge. Brief of Appellant at 15. We agree that the arbitrator cannot ignore the express terms of Sec. 6.01. The arbitrator, however, neither found this to be a negligence case nor that Barstow was negligent within the meaning of Sec. 6.01. On the contrary, the arbitrator interpreted the contract and concluded that Barstow's carelessness, laziness, and neglect, none of which are mentioned specifically in Sec. 6.01, did not constitute just and sufficient cause to fire this 23-year employee. Although we might well have reached a contrary conclusion on the merits, the arbitrator's award was certainly "rooted in the agreement," International Brotherhood of Electrical Workers v. Professional Hole Drilling, Inc., 574 F.2d 497, 503 (10th Cir.1978), and we cannot substitute our interpretation of the contract for his. Misco, 108 S.Ct. at 371.

Accordingly, the order of the district court enforcing the arbitration award is AFFIRMED.

SETH, Circuit Judge, dissenting:

I must respectfully dissent because, in my view, the consideration of the unusual details of the case require a much different analysis.

This appeal could be very easily decided on an abundance of authority if the award of the arbitrator or the appeal in any way involved an interpretation of terms of a labor agreement, or if the appeal was on the merits of an arbitrator's award, or if the contract had not excepted from arbitration certain issues. But unfortunately this is not such a case, and is more complex than the majority would insist.

Instead, this is one of those very rare cases wherein the court must examine the reason forcefully expressed by the arbitrator for reaching his decision which demonstrated the sole basis for the award which was the severity of the remedy as applied to this employee. However, this was a subject reserved to the employer, and in fact this was acknowledged by the arbitrator. In my view, the reason for the result reached is a frank and honest expression by the arbitrator that the remedy applied for the employee's violation of the contract was too severe in his view. This was a sincere expression of his feelings, but unfortunately it should not have dominated the result as it did. The severity of the remedy, which was discharge, was in the arbitrator's view not a good solution when applied to an experienced employee. This view caused the award to be an expression of the arbitrator's "own brand of industrial justice." United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361. The issue in the case was not "insubordination." Instead there were several issues related to the several other causes in the agreement or contract listed in Section 6.01 wherein it is stated that "[s]ufficient cause for discharge shall include " any of the there listed eight reasons.

The arbitrator made the following findings of fact, which are not disputed on appeal: Mr. Barstow had worked for many years in the plant's condemn room, where one of his duties was to bleed the slunks. Mr. Barstow had received a warning letter in June 1974 for his failure to bleed the slunks. He transferred out of the condemn room in 1984, but chose to return there on November 10, 1986. At that time, he was told he must perform all the duties associated with the job, including the bleeding of slunks. This was reiterated to Mr. Barstow on November 13, 1986. That same day, Mr. Barstow failed to bleed any of the slunks on his shift.

As to the violation of the contract by the employee, the arbitrator found as to Mr. Barstow's failure to save blood that he (the arbitrator) could find no reason for Mr. Barstow's failure to save any blood that day "other than carelessness, laziness, and/or neglect." Award of the Arbitrator, at 12. He specifically found that Mr. Barstow was "derelict in carrying out his duties," that Mr. Barstow's performance that day was "unacceptable," and that Mr. Barstow's failure in his job performance was "very serious." Award of the Arbitrator, at 11-13. The arbitrator found that Mr. Barstow's proffered excuse for his failure to bleed any slunks on November 13, that none of them were big enough to warrant bleeding, was "unsupported by the evidence and just too incredible to believe." Award of the Arbitrator, at 11.

Next, the arbitrator in his report stated that "[s]ome discipline was clearly justified but [Mr. Barstow's] failure in job performance was not enough, by itself, to justify the discharge of a 23 year employee." Award of the Arbitrator, at 12.

The arbitrator went on to offer three reasons why the appellant's discharge of Mr. Barstow would not be upheld despite the arbitrator's finding that Mr. Barstow's performance on the job had been completely unacceptable:

"(1) [appellant's] failure, over the course of many years, to make sure that the bleeding of slunks was being done in the manner that it wanted it to be done;

"(2) [appellant's]...