Georgia-Pacific Corp. v. Local 27, United Paperworkers Intern. Union, GEORGIA-PACIFIC
| Citation | 130 LRRM 2208,864 F.2d 940 |
| Decision Date | 09 September 1988 |
| Docket Number | No. 88-1523,GEORGIA-PACIFIC,88-1523 |
| Parties | 130 L.R.R.M. (BNA) 2208, 110 Lab.Cas. P 10,907 CORPORATION, Plaintiff, Appellant, v. LOCAL 27, UNITED PAPERWORKERS INTERNATIONAL UNION, etc., Defendant, Appellee. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Philip J. Moss with whom Perkins, Thompson, Hinckley & Keddy was on brief, for plaintiff, appellant.
Randall E. Nash, with whom, McTeague, Higbee, Libner, Reitman, MacAdam & Case, was on brief, for defendant, appellee.
Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.
The issue presented by this appeal, the scope of an arbitrator's authority to interpret the disciplinary provisions of a collective bargaining agreement, has been a recurring one before this Court. See S.D. Warren Company v. United Paperworkers' International Union, 845 F.2d 3 (1st Cir.1988) (Warren I ), cert. petition pending; S.D. Warren Company v. United Paperworkers' International Union, 846 F.2d 827 (1st Cir.1988) (Warren II ); Berklee College of Music v. Berklee Chapter of the Massachusetts Federation of Teachers, Local 4412, AFT, AFL-CIO, 858 F.2d 31 (1st Cir.1988). See also United Paperworkers Union AFL-CIO v. Misco, 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987).
The appellant, Georgia-Pacific Corporation (Employer), challenges a ruling of the district court upholding an arbitrator's award ordering the reinstatement without back pay of employee Robert Cousins (Cousins). Appellee is the United Paperworkers International Union, AFL-CIO (Union), a labor organization which represents the production and maintenance employees of the Employer. The Employer and the Union entered into a labor agreement under which provisions the challenged award was purportedly entered.
Because we consider that the arbitrator exceeded the authority granted to him by the parties to the collective bargaining agreement, we reverse the decision of the district court and remand the case for entry of an order vacating the arbitration award.
Background facts
In February of 1984 Cousins suffered a work accident as a result of which he lost three fingers in his left hand and suffered nerve damage to that arm. After a period of therapy he was able to return to do light work. Daily exercise was prescribed as well as rest and medication if discomfort to his arm became significant.
Because he was unable to work full time the Company placed Cousins on partial worker's compensation status and paid him for any short-fall in his earnings caused by his work accident. The Company, which is self-insured for worker's compensation purposes, had an "honor system" whereby it allowed Cousins and other workers similarly situated to report absences due to job injury without requiring a doctor's certificate to vouch for the cause of the absence. On several occasions Cousins notified the Company that he would be absent due to his injury, and received worker's compensation from the Company for the hours he would have worked on such instances.
Cousins was scheduled to work on the shift that commenced at 7:00 AM on June 9, 1986, but shortly before that, at 6:00 AM, he called the Company and informed it that he would not be in because his arm was bothering him too much to allow him to work. He was absent from his scheduled work on that day, and thereafter the Company paid him $60 in worker's compensation benefits for the time he would have worked on that shift.
In fact, after calling the Company to report sick, Cousins had traveled approximately 150 miles from his home, played eighteen holes in four hours in a pro-amateur golf tournament, and traveled back to his home. 1 During the tournament Cousins did not use a motorized golf cart but pulled his golf bag on a handcart over the entire course.
The Company learned of Cousins' extracurricular activities and on June 30, 1986 confronted him in the presence of the shop steward. Cousins admitted that in fact he had played golf on June 9, but claimed it was part of the medical therapy recommended by his doctor. The Company proceeded to discharge him for dishonesty.
The collective bargaining agreement
A grievance was submitted by the Union pursuant to the collective bargaining agreement then in existence between it and the Company.
Several parts of the agreement are of direct relevance to the issues before us. Section 27 thereof, which describes the grievance procedure, states in paragraph 3 that:
[T]he decision of the Arbitrator shall be final and binding upon all parties to this Agreement. The Arbitrator shall not modify, change or add to the provisions of this Agreement, but shall interpret this Agreement and adjust grievances in accordance with the provisions thereof.
Section 22 contains the specific provisions dealing with employee discipline:
A. Types of Discipline
There shall be considered to be four (4) phases of disciplinary procedures whenever it is necessary to discipline any employee of this Company.
Oral warning
Written warning
Suspension from work without pay
Discharge
* * *
B. Causes for Discharge
1. Any employee may be discharged for just cause. Without limiting the generality of the foregoing some of the causes for immediate discharge are:
* * *
(5) dishonesty
2. Some of the causes for discharge after proper warning has been given are:
(1) reading of book, newspapers, etc., while on duty
(2) failure to report for duty without good reason
(3) failure to report injuries
(4) habitual tardiness
(5) gambling
(6) smoking anywhere except in authorized areas
3. ... Any employee found under the grievance procedure to have been discharged without just cause shall be reinstated and shall receive pay for time lost.
Because the grievance was not settled in the informal stages of the grievance procedure, the matter was submitted to decision by an arbitrator. The agreed issue submitted for decision was:
Was the grievant properly discharged for dishonesty under Sec. 22, B.1(5) of the labor agreement? If not, what shall be the remedy?
The arbitrator's award
The factual findings of the arbitrator are substantially those previously discussed hereunder. However, because the arbitrator's specific rulings are directly relevant to our conclusions it is helpful to reproduce a substantial portion of his decision:
The grievant's actions on June 9 were not proper. He knew or should have known under the honor system that he was only supposed to call-in absent when his arm bothered him to such an extent that he was unable to perform his light duty work. In the present case, two factual findings are possible--but neither of them supports the propriety of the grievant's call-in. Construing the facts more favorably to the grievant, one may conclude that his arm was actually bothering him on June 9, and that his call-in was truthful to that extent. However, judging from his demonstrated ability to play four hours of golf during the time that he was scheduled to work, it seems clear that his arm was not so sore as to prevent him from performing his light duty work--which involved walking, standing and stair-climbing with frequent opportunities for rest, and nothing so strenuous as engaging in more than 90 strokes of a golf club, while walking himself and his clubs a distance of several miles.
Nor are the grievant's actions supported by the therapy plan of his doctors. The September 2, 1986 letter clearly indicates that the grievant should "rest his arm when the discomfort becomes significant." If the discomfort was so significant that he could not work, he certainly should not have been playing golf. Thus, we must assume that his arm was bothering him less than he stated--and less than would have prevented him from working.
* * *
... [T]he grievant's arm, while bothering him, was not bothering him so much as to prevent him from working.
... [T]he degree of dishonesty involved ... still constitutes misconduct for which the grievant was properly subject to discipline. (Emphasis supplied).
The above findings unequivocably establish that Cousins (1) engaged in an act of dishonesty, and (2) was subject to discipline for this act.
As to Sec. 22, B.1(5) the arbitrator went on to state:
On its face, Sec. 22, B.1(5) does not draw any distinctions between offenses which involve different degrees of dishonesty. Rather, it appears to lump all such offenses together, and it appears to permit the Company to impose immediate discharges in all such cases. However, that extreme penalty may not be applied to all cases. The Company, may impose less stringent discipline for some of the offenses listed in Sec. 22.B, on its own accord. If so, a reviewing arbitrator may have to determine whether the particular offense is one on which the Company relaxed its right to impose an immediate discharge. (Emphasis supplied).
The above indicates that the arbitrator concluded that Sec. 22, B.1(5) is unambiguous on its face in allowing the Company to discharge immediately for dishonesty, although recognizing that this penalty may not be appropriate if the Company, on its own accord, has varied the penalty for such transgression. However, the arbitrator never concluded that the Company had in practice relaxed its right to discharge for dishonesty. He nevertheless ruled that Cousins' discharge was not for "just cause." In reaching this result, the arbitrator reasoned as follows:
In order for a discharge to be sustained as being for just cause it must be shown first, that the misconduct was sufficiently serious to warrant that penalty; and second, that there are no countervailing factors which mitigate that penalty, such as the circumstances of the offense or the grievant's overall employment record. A contractual listing of particular offenses which the parties deem serious enough to warrant immediate discharge may deprive the arbitrator of his normal authority to mitigate the...
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