Boise Cascade Corp. v. Paper-Allied Indus., 01-2097.

• Decision Date: 12 November 2002
• Docket Number: No. 01-2097.,01-2097.
• Citation: 309 F.3d 1075
• Parties: BOISE CASCADE CORPORATION, Plaintiff/Appellee, v. PAPER ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS (PACE), LOCAL 7-0159, Defendant/Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

309 F.3d 1075

BOISE CASCADE CORPORATION, Plaintiff/Appellee, v. PAPER ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS (PACE), LOCAL 7-0159, Defendant/Appellant.

No. 01-2097.

United States Court of Appeals, Eighth Circuit.

Submitted: November 16, 2001.

Filed: November 12, 2002.

COPYRIGHT MATERIAL OMITTED

Before BYE and BEAM, Circuit Judges, and GOLDBERG,¹ Judge.

GOLDBERG, JUDGE.

Paper, Allied-Industrial, Chemical and Energy Workers (PACE), Local 7-0159 (the "Union"), appeals the order of the district court² vacating an arbitral award. Agreeing with the district court that the arbitrator's decision did not draw its essence from the Last Chance Agreement at issue, we affirm.

I. BACKGROUND

Appellee Boise Cascade Corporation ("Boise") employed Nancy Burmeister ("Burmeister"), a member of the Union, for nearly eleven years as a process operator in the mill department of its pulp and paper mill in International Falls, Minnesota. The terms and conditions of employment of Union members such as Burmeister are protected by a collective bargaining agreement ("CBA") between Boise and the Union. This action arises out of Boise's decision to terminate Burmeister's employment, effective February 11, 2000.

Problems in Burmeister's employment began to arise long before Boise fired her. On October 26, 1996, Burmeister received a written warning from her supervisor for failing to report to work and failing to call in. Less than a month later, she received another written warning for reporting to work one hour and fifteen minutes late, having unsuccessfully requested the day off after her shift was scheduled to begin. On January 28, 1997, Burmeister called her supervisor after the start of her shift to inform him that she would be late due to "truck trouble"; she never reported to work and never called back that day. Two days later, she was placed on a Last Chance Agreement³ ("LCA") for excessive tardiness and absences; including the foregoing occasions, she had missed a total of forty-five days in the preceding thirteen months. Burmeister did not grieve either the LCA or the written warnings that preceded it. She satisfied the conditions that the LCA imposed upon her during a six-month probationary period, without incident.

On May 2, 1998, when Burmeister reported to work, Boise production manager Jim Larson ("Larson") noticed that her breath smelled of alcohol, her speech was slurred, and her mannerisms were different. Burmeister admitted to having recently consumed several beers, but a urine test showed that her blood alcohol content was actually 0.28, or nearly three times the legal limit for operating a motor vehicle in Minnesota. Although Burmeister was subject to immediate termination for this violation of Boise's Drug and Alcohol Policy, Boise agreed to place her on another LCA. This LCA required Burmeister to enroll in and complete a counseling program through Boise's Employee Assistance Program ("EAP"), and subjected Burmeister to two years of random drug and alcohol testing. Using language taken verbatim from her previous LCA, the LCA also provided:

[Y]ou must understand that it is your responsibility and obligation to follow all published policies and procedures. Further violation of any mill rules and/or failure to comply with the Terms and Conditions of this Letter could result in your immediate termination.... Nancy, the Company's expectations are clear... your future with Boise Cascade is in your hands.

(second ellipsis in original). Burmeister and her Union representative had an opportunity to read the one-and-half-page LCA and to confer about it privately. As the arbitrator found, Burmeister had no questions about the LCA, fully understood what was required of her under it, and told Boise that she was "fine" with it. Burmeister, Larson, and her Union representative all signed the LCA.

Gradually after the 1998 LCA was implemented, Larson and Burmeister's supervisor began to notice a pattern whereby Burmeister would call shortly before the start of her shift and request immediate vacation. On October 22, 1999, Burmeister failed to report to work, without warning. Well after her shift began, she called and requested immediate vacation, which Larson and her supervisor granted after conferring. Upon Burmeister's return to work, they met with her and the Union president and informed her that she was placing her job at grave risk by returning to her prior pattern of attendance problems, and specifically warned her not to miss any more shifts or make any more belated vacation requests. Burmeister admitted that she had violated Boise's unwritten rule requiring employees to notify the company of absences at least two hours prior to the start of a shift, and that her supervisors had showed leniency by not enforcing the LCA and terminating her for this violation of an unwritten attendance rule.

On Friday, February 11, 2000, Burmeister failed to report to work for her 6:00 a.m. shift. She had not phoned her supervisor in advance, and never did call in that day. Instead, around 8:40 a.m., Burmeister's supervisor received a call from Larry Matthews ("Matthews"), an EAP counselor. Matthews told the supervisor that Burmeister "could not keep the cap on the bottle" and that he was referring her for in-patient alcohol dependency treatment. Later that day, Matthews informed Boise's human resources manager that Burmeister had been unable to report to work because she had been drinking, and asked whether Burmeister could save her job if she entered an in-patient treatment facility that weekend. Burmeister ultimately did enter such a facility on Sunday, February 13, 2000.

The following Monday, Larson and the human resources director met with Union representatives to discuss Burmeister's situation. At the meeting, Larson explained that Burmeister had failed to report for work or call in beforehand; that according to Matthews, Burmeister's use of alcohol had prevented her from reporting to work; that Burmeister's absence was not due to her attendance at an in-patient treatment facility; and that after the October 22, 1999 incident, he had reminded Burmeister of her obligation not to have any more attendance problems. The Union conceded each of these facts, but claimed that Burmeister should not be terminated because she had begun in-patient treatment the previous day. Nevertheless, after further consideration, Larson and Burmeister's supervisor terminated her employment, effective February 11, 2000. On February 15, 2000, the Union grieved Burmeister's termination, on the grounds that "because [Burmeister] is at this time taking part in an in patient treatment facility, [] she should not be terminated." The grievance was denied, and the Union appealed the matter to binding arbitration as provided by the CBA.

Arbitration was had on August 9, 2000, before Richard John Miller ("Arbitrator Miller"), who issued his written decision on September 14, 2000. Arbitrator Miller rejected the Union's assertion that he was entitled to decide whether there existed just cause for Burmeister's termination, observing that the LCA, rather than the CBA, governed the dispute. Thus, he found, the sole issue was whether Burmeister had violated the LCA. Without discussing the actual language of the LCA, the arbitrator construed it to prohibit violations only of written rules, and consequently determined that Burmeister's violation of Boise's unwritten attendance rules did not constitute a violation of the LCA. Arbitrator Miller further explained:

[T]he reason for the Grievant's failure to personally call-in or be presence [sic] at work on February 11, 2000, cannot be construed as being frivolous. It is clear that the Grievant needed immediate assistance through the EAP on that day to get herself into an in-patient alcohol treatment program as soon as possible, since this disease was controlling both her personal and working relationships. There is nothing in the LCA which prevented the Grievant from seeking assistance through the EAP for her alcohol problem. The fact that she was not admitted to in-patient treatment until February 13, 2000, is a function of the availability of a suitable treatment center.

In sustaining the grievance, the arbitrator ordered Boise to reinstate Burmeister to her former position with full seniority and to pay her back wages from March 8, 2000, the date of her discharge from the in-patient treatment facility.

Boise brought suit in federal district court, seeking to have the arbitral award vacated. It filed a motion for summary judgment, and the Union filed a cross-motion requesting confirmation of the award. The district court granted Boise's motion and vacated the arbitral award, holding that the award failed to draw its essence from the parties' agreement. The court found that the plain language of the LCA did not support the arbitrator's decision; that the arbitrator failed to discuss the operative terms of the LCA; and that the arbitrator ignored the parties' intent when they entered into the LCA.

The Union timely appealed the district court's order. We have jurisdiction pursuant to 28 U.S.C. § 1291 (2000).

II. DISCUSSION

In reviewing a district court's order confirming or vacating an arbitral award, we accept the court's findings of fact that are not clearly erroneous,⁴ but decide questions of law de novo. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-48, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); accord Titan Wheel Corp. of Iowa v. Local 2048, Intern. Ass'n of Machinists, 253 F.3d 1118, 1119 (8th Cir.2001). However, we must accord "an extraordinary level of deference" to the underlying award itself. Keebler Co. v. Milk Drivers & Dairy Employees Union, Local No. 471, 80 F.3d 284, 287 (8th Cir. 1996). As the district court rightly observed, federal courts are not authorized to reconsider the merits of an arbitral award, "even though the parties may allege that the award rests on errors of...