Magnavox Co. of Tenn. v. INTERNATIONAL U. OF E., R. & MW

• Decision Date: 29 April 1969
• Docket Number: No. 18944.,18944.
• Citation: 410 F.2d 388
• Parties: The MAGNAVOX COMPANY OF TENNESSEE, Plaintiff-Appellee, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Its Affiliated Local No. 748, and Roy E. Whaley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

410 F.2d 388 (1969)

The MAGNAVOX COMPANY OF TENNESSEE, Plaintiff-Appellee, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Its Affiliated Local No. 748, and Roy E. Whaley, Defendants-Appellants.

No. 18944.

United States Court of Appeals Sixth Circuit.

April 29, 1969.

Thomas W. Overall, Greeneville, Tenn. and Richard Scupi, Washington, D. C. (Irving Abramson, Ruth Weyand, Washington, D. C., on the brief), for appellants.

George K. McPherson, Jr., Atlanta, Ga. (N. R. Coleman, Jr., Milligan, Silvers & Coleman, Greeneville, Tenn., Smith, Currie & Hancock, Atlanta, Ga., on the brief), for appellee.

Before WEICK, Chief Judge, O'SULLIVAN and EDWARDS, Circuit Judges.

PER CURIAM.

We consider the appeal of defendants, International Union and its member Roy E. Whaley, from a judgment entered in the United States District Court for the Eastern District of Tennessee setting aside an arbitrator's award. The award ordered reinstatement of Whaley in a job from which he had been discharged by appellee, The Magnavox Company of Tennessee.

Whaley had been off from work for reasons of health. Thereafter he sought to return to work, presenting his doctor's certificate that he could return to work but not in any place where he would be exposed to intense heat. His regular job called for such exposure. The company refused to provide him with a job in which he would be relieved of that work. The employee thereupon returned to his doctor and got a second certificate which stated, without qualification, that he could return to his old employment. The company then had him examined by its doctor, who also certified that he could work at his old job without hazard to his health. Whaley then returned to work at his regular job, but during the day he refused his foreman's direction that he perform one part of his regular work, asserting that, "he had a doctor's statement * * * that he wasn't to be in any intensive heat and do any bending over." For his refusal, Whaley was discharged.

Article II of the collective bargaining agreement, under the heading of Management Responsibility, provided:

"The right to hire, layoff, and discharge employees for just and lawful cause; * * * are among the sole prerogatives of the Company; * * * and also this section will not in any way abrogate or interfere with the employee\'s rights under the terms of this Agreement, including the use of the grievance and arbitration procedure."

Article IX of the contract, entitled Arbitration, provided in Section 1 that,

"Claims that the Company has violated some provision of this contract * * shall be arbitrable grievances. Arbitration decisions rendered in compliance with the following procedures shall be final and binding on both parties."

Section 2 of Article IX provided,

"An arbitrator under this Agreement shall not have the right to:

* * *

(c) To consider, rule or enter any award with respect to disciplinary action imposed upon an employee for refusal or failure to perform assigned job tasks, except where the employee can positively establish that the performance of such task would have created a serious health hazard to him." (Emphasis supplied.)

The company refused to reinstate Whaley and the matter went to arbitration. The arbitrator found as a fact that performance of the task which Whaley refused to perform did not create a hazard to his health, and that the employee could not "positively establish that the performance of such task would have created a serious health hazard to him."

The...