United States Court of Appeals,
Eleventh Circuit.
No. 95-9052.
OSRAM SYLVANIA, INC., Plaintiff-Appellee,
v.
TEAMSTERS LOCAL UNION 528, Defendant-Appellant.
July 16, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:94-CV-2986-GET), G. Ernest Tidwell,
Chief Judge.
Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*, Senior
District Judge.
KRAVITCH, Circuit Judge:
Teamsters Local Union No. 528 appeals the decision of the
district court reversing an arbitrator's decision in favor of one
of its members, Lonnie Robinson. The union argues that the
arbitrator was within the scope of his discretion in determining
that Robinson was not fired for "just cause." We agree with the
union and reverse the decision of the district court vacating the
arbitration award. We remand to the district court for
reconsideration of the union's motion for leave to amend its answer
and assert a counterclaim.
I.
Robinson was a forklift driver for Osram Sylvania, Inc. 1 On
February 5, 1994, he committed a safety violation by running into
*
Honorable William W. Schwarzer, Senior U.S. District Judge
for the Northern District of California, sitting by designation.
1
These facts are taken primarily from the district court's
Order of July 31, 1995.
a stack of pallets while driving his forklift with an obstructed
view. After the accident, Robinson reported an injury. On
February 10, he was treated and given a "light duty slip," which
restricted his duties. On February 16, he was given a "fit for
duty slip" and was released to return to work on February 21. Upon
receiving the slip from the doctor's secretary, Robinson said, "You
all can take these papers and shove it."
When he returned to work, Robinson gave the facility manager,
Alan Geller, the outdated "light duty slip." Upon learning that
Robinson had in fact been cleared to return to his normal duties,
Geller decided to review Robinson's employment for possible
termination. At that time, Geller already had received a
recommendation from Osram's safety coordinator to terminate
Robinson based on a review of his overall safety record.
Geller discharged Robinson for the following reasons: (1)
misconduct while receiving medical treatment, (2) unwillingness to
work after being released by his physician, and (3) a poor overall
safety record. Robinson did not receive a warning prior to his
discharge.
Robinson's employment was governed by a collective bargaining
agreement ("Agreement") between Osram and Teamsters Local Union No.
528. The relevant portion of the collective bargaining agreement,
Article IX, § 5, provides, in pertinent part:
The Company may discharge any employee for just cause and
shall give at least one (1) warning notice of the complaint
against such employee to the employee and notice of the same
to the Union, except that no warning notice need be given to
an employee before discharge if the cause of discharge is so
serious that the immediate removal of the employee from
Company premises is, in the Company's judgment warranted.
If an employee discharge case is not settled within ten days, the
Agreement provides for arbitration of the employee's grievance.
Agreement, Article VIII. The arbitrator's decision is final and
binding. Id. at Article VII, § 2.3. However, the arbitrator has
no authority "to modify, amend, revise, add to or subtract from any
of the terms of th[e] Agreement" or impose an obligation not
provided for in the Agreement. Id. at Article VIII, § 2.2.
As to each ground for dismissal, the arbitrator found that the
company lacked just cause. His findings were as follows:
Misconduct While Receiving Medical Treatment: Telling a
doctor's secretary to "shove it" in reference to the doctor's work
return slip did not constitute just cause because it did not occur
on the company's premises and the statement was not made in
reference to a company employee, the statement caused no disruption
in work, Robinson did not receive any warning about the
consequences of his conduct, the punishment was inconsistent with
the treatment of other employees, and the seriousness of the
offense was not reasonably related to the severity of the
disciplinary penalty.
Unwillingness to Work After Being Released By His Physician:
"The apparent deception engaged in by [Robinson] is certainly
serious and a violation of rules of ethics and Company policy.
However, in light of the Company's policy of selective discipline
and its failure to uniformly and consistently apply progressive
discipline across the board evenhandedly, [Robinson's] infraction
would warrant discipline but not immediate discharge."
Overall Safety Record: Osram did not establish just cause for
the discharge that was based on Robinson's overall safety record
because he was given no notice, suffered disparate treatment, and
the penalty was disproportionately severe.
In addition to making these findings, the arbitrator credited
testimony that Robinson was a "very good employee" and that he had
won three awards for his work. Based on all of the evidence, the
arbitrator determined that "the degree of discipline administered
by management was not reasonably related to the Grievant's service
record with the Company." The arbitrator concluded that "the
dismissal was not based on just cause."
The company filed a complaint in the district court
challenging the arbitrator's decision. The court entered summary
judgment for the company and vacated the arbitrator's decision and
award.
II.
We review de novo the district court's order vacating the
arbitration award. Sullivan Long & Hagerty, Inc. v. Local 559
Laborers' Int'l Union, 980 F.2d 1424, 1426 (11th Cir.1993). The
proper standard in reviewing an arbitrator's decision is one of
considerable deference. This court has stated that
[c]ourts ... do not sit to hear claims of factual or legal
error by an arbitrator as an appellate court does in reviewing
decisions of lower courts.... The arbitrator's award settling
a dispute with respect to the interpretation or application of
a labor agreement must draw its essence from the contract and
cannot simply reflect the arbitrator's own notions of
industrial justice. But 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.
United Paperworkers v. Misco, Inc.,
484 U.S. 29, 38,
108 S.Ct. 364,
371,
98 L.Ed.2d 286 (1987); see also Delta Air Lines v. Air Line
Pilots Assoc.,
861 F.2d 665, 670 (11th Cir.1988) ("An arbitrator's
result may be wrong; it may appear unsupported; it may appear
poorly reasoned; it may appear foolish. Yet it may not be subject
to court interference."), cert. denied, 493 U.S. 871,
110 S.Ct.
201,
107 L.Ed.2d 154 (1989); Florida Power Corp. v. International
Bhd. of Elec. Workers,
847 F.2d 680, 681-82 (11th Cir.1988)
("Perhaps the single most significant and common issue to which
this deference extends is the issue of what constitutes sufficient
and reasonable cause for discharge."). Nevertheless, "an
arbitrator is confined to interpretation and application of the
collective bargaining agreement.... When the arbitrator's words
manifest an infidelity to this obligation, courts have no choice
but to refuse enforcement of the award." United Steelworkers of
Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597,
80 S.Ct.
1358, 1361,
4 L.Ed.2d 1424 (1960). Thus, our review of a labor
arbitration award "is limited to a determination of whether an
award is irrational, whether it fails to draw its essence from the
collective bargaining agreement or whether it exceeds the scope of
the arbitrator's authority." Butterkrust Bakeries v. BCTW Local
361,
726 F.2d 698, 699 (11th Cir.1984).
Osram makes two arguments. First, it argues that Article IX,
§ 5 of the Agreement gave Osram the sole right to determine whether
a violation was "so serious" as to warrant immediate discharge
without consideration of just cause and thus once the arbitrator
found that the factual predicates for the discharge were proven, he
was required to approve the discharge. Second, Osram contends that
the arbitrator went beyond the terms of the Agreement and
improperly imposed a new obligation on Osram by refusing to find
"just cause."
We can quickly dispose of the first argument. In their
hearing before the arbitrator the parties stipulated to the
following question: "Whether the discharge of Lonnie Robinson is
for just cause? If not, what shall be the remedy based on Article
IX, Section 5 of the Labor agreement." Having stipulated to this
narrow question, Osram may not now attempt to have the arbitrator's
decision overturned on different grounds. Because the question of
whether Osram could have terminated Robinson merely by finding that
he committed what it deemed a "serious offense" was not an issue
before the arbitrator, it is not an issue on this appeal. See,
e.g., International Chemical Workers Union Local 566 v. Mobay
Chemical Corp.,
755 F.2d 1107, 1110 (4th Cir.1985) (A party may
"not voluntarily engage in the arbitration of the issues submitted
to the arbitrator and then attack the award on grounds not raised
before the arbitrator."); see also Piggly Wiggly Operators'
Warehouse, Inc. v. Piggly Wiggly Operators' Indep. Truck Drivers
Union, Local No. 1,
611 F.2d 580, 584 (5th Cir.1980)2 (A court must
look both to the parties' contract and "to the submission of the
issue to the arbitrator to determine [arbitrator's] authority.").
We turn, therefore, to the issue of whether the arbitrator's
finding of "just cause" violated the terms of the collective
2
Decisions of the Fifth Circuit decided prior to the close
of business on September 30, 1981, are binding precedent in the
Eleventh Circuit under Bonner v. City of Prichard,
661 F.2d 1206,
1209 (11th Cir.1981).
bargaining agreement.
In order to prevail on its claim, Osram must refute every
reasonable basis upon which the arbitrator may have acted.
Sullivan Long & Hagerty, Inc.,
980 F.2d at 1427. In reaching his
conclusion that Robinson's termination was without just cause, the
arbitrator found that for each of the counts of alleged misconduct
Robinson was punished in an unfairly disparate manner. Because
this disparate treatment alone could serve as the basis of holding
that just cause was lacking, Osram must demonstrate that such a
decision went beyond the terms of the Agreement. See, e.g.,
Waverly Mineral Products Co. v. United Steelworkers,
633 F.2d 682,
684-85 (5th Cir.1980) (upholding an arbitrator's finding of no just
cause where there was disparate discipline for the same rule
infraction); see also HMC Mgmt. Corp. v. Carpenters Dist. Council
of N.O.,
759 F.2d 489, 490 (5th Cir.1985) (dissent to denial of
reh'g en banc) ("There is virtual universal acceptance that
discriminatory discipline violates "just cause' disciplinary
standards in contracts even though the word discrimination never
appears in that context.").
To refute the finding of disparate treatment, Osram argues
that in reaching his conclusion the arbitrator relied on irrelevant
and immaterial post-discharge evidence. Specifically, the
arbitrator considered evidence of an incident that occurred over
100 days after Robinson's discharge and 60 days after Geller had
relocated to another city and taken another job.
In support of this claim, Osram relies primarily on
Butterkrust Bakeries, 726 F.2d 698. In Butterkrust, an arbitrator
found that an employer had just cause to terminate an employee for
disciplinary problems, but determined that this finding would be
reversed upon the employee's successful completion of a Dale
Carnegie course.
Id. at 699. This court held that once the
arbitrator made a "just cause" finding, the arbitrator no longer
had authority over the parties to the dispute and could not,
therefore, rely on the grievant's post-discharge conduct to change
his finding.
Id. at 700.
Osram argues that the arbitrator in this case was not
permitted to consider evidence of Osram's treatment of another
employee that occurred after Robinson's discharge. This argument,
however, misses the point of Butterkrust, which stands only for the
proposition that a grievant's post-discharge conduct is irrelevant
in determining just cause for termination. Evidence that the
employee in that case completed a Dale Carnegie course after his
discharge was irrelevant because it had no bearing on whether the
employee's conduct constituted just cause for firing. Whether or
not he learned how to "win friends" could not change the fact of
his previous behavior. By considering such evidence, the
arbitrator went beyond the collective bargaining agreement and
created what amounted to a rule for reinstatement following a
discharge for just cause.
In contrast, where the just cause determination is tied to a
finding of disparate treatment, as it was in this case, evidence of
how an employer treats employees even after the grievant's
discharge may be highly relevant. Disparate treatment exists when
similarly situated workers are treated differently even though they
have committed similar acts.3 Where, as here, there has been no
change in the governing contract, and the time period under
consideration is not unreasonably long, it is appropriate to
consider an employer's post-discharge acts in determining whether
that employer is treating all employees equally: evidence of an
isolated act of discipline that occurred ten years prior to
Robinson's discharge would almost certainly be less probative than
evidence of an act that occurred within a year after his discharge.
In fact, in some circumstances, evidence of an employer's action
taken after an employee has been terminated may be the only
evidence of disparate treatment. To give just one example, proof
of age discrimination usually rests upon evidence of an employer's
post-discharge decision to replace the fired worker with someone
who is younger. Cf. O'Connor v. Consolidated Coin Caterers Corp.,
--- U.S. ----,
116 S.Ct. 1307,
134 L.Ed.2d 433 (1996) (discussing
proof of age discrimination).
Because disparate treatment is a legitimate basis for finding
a lack of just cause, Waverly Mineral Products Co., 633 F.2d at
684-85, the arbitrator did not act improperly when he considered
post-discharge evidence. Cf. Mobil Oil Corp. v. Independent Oil
Workers Union,
679 F.2d 299, 303 (1982) (Post-discharge evidence of
employee's "serious mental disorder" may be considered in
determining whether company had just cause to terminate employee.).
In view of the evidence before him, the arbitrator cannot be said
3
Osram argues that the "violation" committed by the employee
to whom Robinson was compared involves facts completely
dissimilar to those in Robinson's case. The arbitrator obviously
thought otherwise; because that determination is not irrational,
it will not be disturbed.
to have gone beyond the essence of the collective bargaining
agreement or to have exceeded his authority when he determined that
Robinson's termination constituted disparate treatment and thus
lacked just cause.4 Accordingly, we reverse the decision of the
district court vacating the arbitrator's award.
III.
After granting Osram's motion for summary judgment, the
district court denied the union's motion for leave to amend its
answer and assert a counterclaim. The court denied this motion for
the sole reason that it had vacated the arbitrator's award; in
essence, the district court denied the motion as moot. By
reversing the district court, we have undermined the articulated
basis for denying Osram's motion. It is appropriate, therefore, to
remand this case to the district court so that it may reconsider
the motion.
IV.
The opinion of the district court is REVERSED and this case is
REMANDED with instructions to enter judgment in favor of appellants
and for reconsideration of the union's motion for leave to amend
its answer and assert a counterclaim.
4
Because the arbitrator's finding of disparate treatment is
a sufficient basis for his decision, we need not consider Osram's
objections to the other reasons given by the arbitrator.
