Columbia Gas of Ohio, Inc. v. Utility Workers Union of Ameri , 329 F. App'x 1 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0331n.06
Filed: May 15, 2009
No. 08-3616
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
COLUMBIA GAS OF OHIO, INC.,
Plaintiff-Appellant,
v. On Appeal from the United
States District Court for the
UTILITY WORKERS UNION OF AMERICA, Northern District of Ohio at
LOCAL 349, Toledo
Defendant-Appellee.
/
Before: GUY, ROGERS, and GRIFFIN, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Plaintiff Columbia Gas of Ohio, Inc.,
appeals from the district court’s entry of judgment in favor of defendant Utility Workers
Union of America, Local 349, confirming the arbitration award that reinstated the grievant
William Rose—without back pay or benefits but also with no loss of seniority—to his prior
position as a service technician. On appeal, plaintiff contends that the district court erred by
refusing to vacate the award on the grounds that its enforcement would violate public policy.
See W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983); E. Associated Coal
Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62-67 (2000). After review of
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the record and the arguments presented on appeal, we affirm the judgment confirming the
award.
I.
Columbia Gas is a public utility that provides natural gas services to customers in the
Toledo area. When a customer reports a possible gas leak, Columbia sends a service
technician to check the integrity of the system. If a leak is found in the line running between
the curb and the residence, the technician turns the gas off and directs the customer to hire
a plumber to make the repairs. The Department of Transportation (DOT) requires that such
repairs be made by or under the supervision of a plumber who is certified to do that work (an
“outside qualified” or “OQ” plumber). When the repairs are complete, Columbia sends a
service technician to visually inspect the repair, pressure test the line, and restore gas service.
Only then may the outside plumber backfill the excavation.
Columbia permitted its service technicians to “moonlight,” including providing the
outside services that Columbia did not, subject to restrictions governing potential conflicts
of interest. Various notices to its employees identified the activities that could be considered
a conflict of interest, including, specifically, any solicitation or referral of outside work to
oneself or any other party, and performing the follow-up inspection of an employee’s own
outside work. Rose, like several other of Columbia’s service technicians, was a certified OQ
plumber. He performed outside line repair services for Columbia’s customers over a period
of more than twenty years, and was the Union’s long-time president.
In the spring of 2006, Columbia received several complaints suggesting there had
No. 08-3616 3
been violations of its anti-solicitation and independent inspection policies. The investigation
that followed initially resulted in the discharge of eleven Columbia employees, although
seven of them were reinstated under “last chance” agreements after a one-month suspension.
Those seven had been discharged for falsely reporting that they had made visual inspection
of outside line repairs performed by the other four technicians when, in fact, they had not
because the trenches had been backfilled already and they had not insisted that the trenches
be re-excavated. The other four technicians—Jeff Christian, Rick Radde, Mark Gallaher,
and William Rose—often performed outside line repair work together. Rose was charged
with “engag[ing] in impermissible and unethical behavior, which had the potential to expose
the Company to safety implications, as well as regulatory and civil liability,” and, more
specifically, for “referr[ing] a customer to coworkers during the course of the workday for
the purpose of performing after-hours natural gas jobs for personal gain.” Rose declined an
offer to retire with full benefits, and was discharged. Rose filed an unsuccessful grievance,
and the Union made a timely request for arbitration.
After a hearing conducted over three days, the arbitrator issued a 58-page decision
finding, inter alia, that Columbia failed to present any evidence that Rose had solicited
customers for himself or others to perform the outside repair work. The arbitrator also found,
however, that Columbia had proved: (1) that Rose had on one occasion performed some
work on a job repairing a line that he had taken out of service in violation of the conflict-of-
interest rules; and (2) that Rose violated company policy and DOT regulations on twelve
occasions by backfilling trenches and restoring service before a Columbia technician had
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inspected and tested the repairs. With respect to the latter—which is most pertinent to the
public policy challenge—Rose offered explanations for why he did not wait for the
inspection, including not wanting to leave residents without heat and being concerned about
the hazards presented by an open trench. Rose also conceded, however, that he should not
have done this, and that his conduct placed his coworkers in the untenable situation of having
to report him, insist that he re-excavate the line to conduct the inspection, or falsify the
inspection report. Later excavation at one residence revealed that the repair had not been
performed properly because it had not included the installation of an anode to prevent
corrosion. In ordering reinstatement, the arbitrator stated:
Taking into consideration that these violations were the first of their
kind to be made the subject of discipline, and Mr. Rose’s long period of
service, but not overlooking his 2005 suspension for falsification of his Daily
Work Assignment log [to reflect that he was at a site when he was not], the
Arbitrator finds that the Grievant is entitled to reinstatement to his former
position without loss of seniority, but without back pay or accrual of other
benefits during the period of his separation from service.
This award, if enforced, effectively converts the discharge to a 14-month suspension without
pay or the accrual of benefits.
Columbia Gas promptly filed this action seeking to vacate the arbitration award, and
the Union counterclaimed for confirmation of the award. Cross-motions for summary
judgment were filed, and the district court concluded that Columbia Gas failed to
demonstrate that enforcement of the award would violate public policy. Judgment was
entered in favor of the Union, and this appeal followed.
No. 08-3616 5
II.1
Although a decision to grant summary judgment is reviewed de novo, “courts play
only a limited role when asked to review the decision of an arbitrator.” United Paperworkers
Int’l Union v. Misco, Inc., 484 U.S. 29, 36 (1987). When, as here, there is no claim that the
arbitrator acted outside his authority, the arbitrator’s award must be treated as if it represents
a contractual agreement between the employer and union as to the meaning of the collective
bargaining agreement. E. Associated Coal, 531 U.S. at 62. “[A] court’s refusal to enforce
an arbitrator’s interpretation of such contracts is limited to situations where the contract as
interpreted would violate some explicit public policy that is well defined and dominant,”
which, in turn, must be “ascertained by reference to the laws and legal precedents and not
from general considerations of supposed public interests.” Misco, 484 U.S. at 43 (internal
quotation marks and citation omitted); see also E. Associated Coal, 531 U.S. 62. Whether
the contract, as interpreted by the arbitrator, is contrary to public policy is a question to be
resolved by the courts. Misco, 484 U.S. at 43.
A. Explicit Public Policy
Columbia relies, as before, on the Pipeline Safety Act and its stated purpose of
providing “adequate protection against risks to life and property posed by pipeline
transportation and pipeline facilities by improving the regulatory and enforcement authority
of the Secretary of Transportation.” 49 U.S.C. § 60102(a)(1). More specifically, the Act
1
Columbia Gas concedes that the grievance was arbitrable and does not argue that the award fails
to “draw its essence” from the contract. See Mich. Family Res. v. Serv. Employees Local 517M, 475 F.3d
746, 750-53 (6th Cir.) (en banc), cert. denied, 127 S. Ct. 2996 (2007).
No. 08-3616 6
requires that an operator of a pipeline facility (1) ensure that employees who operate and
maintain the facility are qualified to do so (49 U.S.C. § 60102(a)(3)); and (2) develop a
qualification program to ensure that individuals who perform covered tasks are qualified to
do so (49 U.S.C. § 60131(a)). Columbia also relies on the federal regulations that require
pipeline joints to be capable of resisting expansion and contraction (49 C.F.R. § 192.273),
and that provide testing standards for service lines and plastic pipelines (49 C.F.R. §§
192.511 and 192.513). As for state law, Ohio has adopted the federal gas pipeline
regulations (Ohio Admin. Code § 4901:1-16-03), and has granted civil enforcement power
to its public utilities commission (Ohio Rev. Code § 4905.95(B)(1)(b)). In addition, Ohio
imposes vicarious liability on natural gas operators by imputing to them the acts and
omissions of employees acting within the scope of their employment (Ohio Rev. Code §
4905.93).
The district court found that these laws and regulations, taken together, serve public
policy purposes of ensuring the safe operation of natural gas pipelines, ensuring that
employees are trained and qualified, and holding pipeline operators liable for errors and
misconduct by employees acting within the scope of their employment. The parties accept
this determination and focus instead on whether it would violate public policy to enforce the
arbitration award in this case.
B. “Contrary to”
Columbia Gas argues that the district court erred by improperly narrowing the public
policy exception to only those situations in which a statute or regulation expressly bars
No. 08-3616 7
reinstatement of an employee who violates it. The employer in Eastern Associated Coal
argued similarly that the district court had “erred by asking, not whether the award is
‘contrary to’ public policy ‘as ascertained by reference’ to positive law, but whether the
award ‘violates’ positive law.” 531 U.S. at 63. The Court stated, as Columbia repeatedly
emphasizes, that “in principle, [the] courts’ authority to invoke the public policy exception
is not limited solely to instances where the arbitration award itself violates positive law.” Id.,but see id. at 67-68 (Scalia, J., concurring) (criticizing statement as dictum). In the next
sentence, not quoted by Columbia, the Court added: “Nevertheless, the public policy
exception is narrow and must satisfy the principles set forth in W.R. Grace and Misco.” Id.In this case, the district court properly analyzed the award in relation to the explicit public
policy on which Columbia relied.
The Supreme Court has made clear that the pertinent question at this juncture is
whether the contract, as interpreted—i.e., a contractual agreement to suspend rather than
discharge Rose—falls “within the legal exception that makes unenforceable ‘a collective-
bargaining agreement that is contrary to public policy.’” Id. at 62 (quoting W.R. Grace, 461
U.S. at 766.) We are also mindful of the Court’s further admonition that the issue is not
whether the grievant’s conduct violates public policy, but whether enforcement of the
contract, as interpreted, would be contrary to public policy. Id. at 62-63; see also Interstate
Brands Corp. v. Teamsters Local Union No. 135, 909 F.2d 885, 893 (6th Cir. 1990); NetJets
Aviation, Inc. v. Int’l Bhd. of Teamsters, 486 F.3d 935, 939 (6th Cir. 2007).2
2
This distinction is illustrated by our decision in Shelby County Health Care Corp.v. AFSCME,
Local 1733, 967 F.2d 1091 (6th Cir. 1992). There, a pharmacy technician was discharged for her role in
No. 08-3616 8
While obviously not involving the same public policy, the Supreme Court’s decision
in Eastern Associated Coal confirming an arbitration award reinstating an employee truck
driver who had twice tested positive for marijuana is instructive. The Court assumed that the
contract, as interpreted, required reinstatement, and asked whether such an agreement was
contrary to public policy. The employer identified laws and regulations reflecting public
policy against drug use by transportation workers in safety-sensitive jobs, requiring random
drug testing to detect such use, and mandating suspension for driving a commercial vehicle
while under the influence of drugs.
Other provisions, however, encouraged rehabilitation and specified the conditions
under which a driver who tested positive for drugs could return to a safety-sensitive position.
The fact that the regulations did not require employers to provide rehabilitation or hold a job
open for a driver who tested positive reflected “basic background labor law principles” that
“caution against interference with labor-management agreements about appropriate employee
discipline.” 531 U.S. at 65. In concluding that the arbitration award was not “contrary to”
these policies, taken together, the Court explained that the award did not condone the
employee’s conduct or ignore the risks to the public, but punished him with a suspension
without pay, required that he pay costs, and imposed further conditions of continued
a strike that violated 29 U.S.C. § 158(g)’s prohibition of strikes by health care workers unless at least ten
days’ prior notice is given. An employee who engages in a strike in violation of the notice requirement loses
the protections normally afforded striking workers unless and until she is reemployed. 29 U.S.C. § 158(d).
Although these provisions were found to set out a well-defined statement of public policy, that policy was
actually to vest the employer with the discretion to discharge or retain the employee. Since the employer
had agreed in a settlement with the union that disciplinary decisions based on illegal strike activity would
be subject to the grievance and arbitration procedures in the collective bargaining agreement, the court found
that the award was not contrary to public policy.
No. 08-3616 9
employment. The Court found not only that the award did not violate a specific provision
of any law or regulation, but also that it was consistent with the explicit public policies at
issue.
Here, Columbia argues that the award violates public policy by requiring Columbia
to reinstate an employee who, while trained and qualified, deliberately violated federal and
state regulations on twelve occasions by backfilling the trenches and restoring service before
independent inspection and testing could be performed. Columbia protests that to require
reinstatement of such a person would force it to risk compromising public safety and would
expose it to possible liability for future misconduct. While there is no dispute that Rose’s
conduct violated public policy, the relevant inquiry is whether enforcement of the contractual
agreement to reinstate Rose with a 14-month suspension would violate public policy.
Columbia Gas relies heavily on two decisions in which an arbitrator’s reinstatement
violated public policy. In one, a pilot flew a passenger aircraft while drunk, and, in the other,
a nuclear power plant machinist deliberately disabled the secondary containment security
locks so as to beat the lunch rush. Delta AirLines, Inc. v. Air Line Pilots Ass’n Int’l, 861 F.2d
665 (11th Cir. 1988); Iowa Elec. Light & Power Co. v. IBEW Local 204, 834 F.2d 1424 (8th
Cir. 1987). Aside from the superficial similarity that these cases involved “safety-sensitive”
positions, material differences in the public policy and the risk of danger presented by the
misconduct distinguish them from the case at bar.3
3
This court has identified Delta AirLines and Iowa Electric as two rare instances in which an
arbitration award has been vacated for public policy reasons. Local 1985, Int’l Bhd. of Elect. Workers v.
Hoover Co., Nos. 95-3475/3517, 1996 WL 506511 at *1 (6th Cir. Sept. 5, 1996). Also, we noted in
Interstate Brands that the Ninth Circuit criticized both cases as inconsistent with Misco and declined to
No. 08-3616 10
The court in Delta AirLines viewed the award as representing a contractual agreement
that operating a passenger aircraft while visibly drunk did not constitute just cause for
discharge. Relying on near universal laws against such conduct, including criminal statutes,
the court found that the award, if enforced, “would violate clearly established public policy
which condemns the operation of passenger airliners by pilots who are under the influence
of alcohol.” 861 F.2d at 671. The laws created a more dominant policy than in this case, and
the misconduct at issue meant that reinstatement presented a greater potential for danger than
in this case.
In Iowa Electric, the discharged employee worked within the secondary containment
area of a nuclear power plant that was kept pressurized by a series of interlock doors that
could only open one at a time. Wanting to leave the shop to get to lunch early, the machinist
found the door was locked, ascertained that an outside door was open, and was specifically
denied permission to disable the locks by an engineer in the control room. The machinist
nonetheless directed someone to remove a fuse that disabled all of the locks so he could get
through. In vacating the arbitration award, the court relied not only on “a well defined and
dominant national policy requiring strict adherence to nuclear safety rules,” but also on the
fact that the discharge was reviewed and approved by the Nuclear Regulatory Commission.
834 F.2d at 1427. The circumstances in this case, while also involving a safety-sensitive
position, are more like the circumstances in three other cases in which courts refused to
vacate an arbitration award that reinstated an employee who violated applicable safety
follow them. 909 F.2d at 894 n.11 (discussing Stead Motors of Walnut Creek v. Auto. Machinists Lodge
No. 1173, 886 F.2d 1200 (9th Cir. 1989) (en banc)).
No. 08-3616 11
regulations. See MidAmerican Energy Co. v. Int’l Bhd. of Elec. Workers Local 499, 345 F.3d
616 (8th Cir. 2003); MidMichigan Reg’l Med. Ctr. v. Prof’l Employees Div. of Local 79, 183
F.3d 497, 505-06 (6th Cir. 1999); Kane Gas Light & Heating Co. v. Int’l Bhd. of Firemen &
Oilers, Local 112, 687 F.2d 673 (3d Cir. 1982).
In MidAmerican Energy, the Eighth Circuit distinguished its earlier decision in Iowa
Electric and held that an arbitrator’s reinstatement of an employee who disabled forty
monitoring and safety devices at a liquid natural gas storage facility and left the facility
unattended for several hours did not violate public policy for two reasons. First, although
the employee’s actions violated company rules and state and federal regulations, the court
held that the public policy was not akin to the public policy at issue in Iowa Electric or other
cases that have led courts to decline to enforce an arbitrator’s award that requires outright
reinstatement. 345 F.3d at 620. Second, the award did not require MidAmerican to reinstate
him to a position in which he would be without direct supervision or the safety and security
of the facility would be left in his hands.
While the award in this case ordered Rose’s reinstatement as a service technician, like
MidAmerican, the safety concerns presented by his misconduct in circumventing independent
inspection and testing of his repair work do not establish the kind of public policy that would
be violated by an agreement to reinstate him after a 14-month suspension without pay. That
is not to say, however, that the arbitrator could not have found just cause, or that future
misconduct would not be subject to discipline or discharge, only that the award is not
unenforceable as a violation of public policy.
No. 08-3616 12
Next, in what the district court saw as providing the closest factual analogy to this
case, the court in Kane Gas declined to vacate an arbitration award that reinstated a gas
company employee who, through “reckless inadvertence,” improperly turned off a main
valve and cut off natural gas service to an entire borough on a day that had subzero
temperatures. Decided without the benefit of W.R. Grace and Misco, the court recognized
that it could decline to enforce an award on the grounds that it was inconsistent with public
policy and held that an award is inconsistent with public policy when it would condone
violation of federal or state law. 687 F.2d at 681-82. Kane Gas argued that the misconduct
violated federal law and state public policy, which imposed the highest degree of care
practicable on operators providing natural gas service. Finding otherwise, the court
concluded that reinstatement of this employee did not amount to judicial condonation of
illegal acts because, by imposing a thirty-day disciplinary suspension, the award did not let
his actions go unpunished. Similarly, the award in this case did not condone Rose’s
violations or allow his misconduct to go unpunished.
Finally, Columbia Gas rightly argues that because the misconduct at issue in
MidMichigan Regional Medical Center involved negligence, it is not comparable to Rose’s
deliberate disregard of federal and state regulations.
More pertinent to this case, however, is that the hospital also argued that the award
violated public policy by forcing it to reemploy a nurse who may expose the hospital to
liability in the future. Rejecting this as a basis to vacate the award, this court explained that
in negotiating an agreement, “an employer must weigh potential liability costs, vicarious or
No. 08-3616 13
direct, against the other costs and benefits of the bargain.” MidMichigan, 183 F.3d at 505-
06. Columbia Gas may not rely on a risk of possible administrative penalties or civil liability
to establish that public policy is violated by the contractual agreement to suspend rather than
discharge Rose for violations of state and federal regulations.
AFFIRMED.