Norfolk Shipbuilding & Drydock Corp. v. Local No. 684 of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers

Fourth Circuit

Norfolk Shipbuilding & Drydock Corp. v. Local No. 684 of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers

671 F.2d 797, 109 L.R.R.M. (BNA) 2329, 1982 U.S. App. LEXIS 22696

CourtCourt of Appeals for the Fourth Circuit

DecidedJanuary 11, 1982

DocketNo. 81-1214

StatusPublished

Cited by1 cases

This text of 671 F.2d 797 (Norfolk Shipbuilding & Drydock Corp. v. Local No. 684 of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Norfolk Shipbuilding & Drydock Corp. v. Local No. 684 of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, 671 F.2d 797, 109 L.R.R.M. (BNA) 2329, 1982 U.S. App. LEXIS 22696 (4th Cir. 1982).

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SPROUSE, Circuit Judge:

Local No. 684 of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (Union), and K. C. Nash appeal the judgment of the district court in favor of Norfolk Shipbuilding & Drydock Corporation (Norfolk) invalidating the portion of an arbitration award which reinstated Nash to his position with Norfolk. The Union contends the district court erred in refusing to consider evidence as to the “custom and practice in the industry” or “the common law of the shop” in determining whether the arbitrator exceeded his authority under the applicable collective bargaining agreement. We agree and remand for consideration of such evidence.

Nash, a Union member and twenty-seven year employee¹ of Norfolk, was discharged by Norfolk for twice refusing to work overtime. He received a written warning when he refused to work overtime in August 1979 and was discharged when he again refused in October 1979. The discharge notice stated that the reason for discharge was a “[vjiolation of Rule No. 6: Insubordination, willful failure to observe instructions, or neglecting of duty with a belligerent atti[799]*799tude.” The discharge was arbitrated in accordance with the provisions of the collective bargaining agreement between the parties.

Article XI, Section 8 of the agreement contains the language governing Norfolk’s right to discharge Union employees. It provides in part:

The Company retains the right to discharge any employee for cause, and such right of discharge shall be deemed to include the right to suspend or otherwise discipline an Employee in lieu of discharge. It is agreed that violation of Company rules not inconsistent with the terms of this Agreement shall be considered just cause for discharge.

The company rules set out the actions which constitute cause for discharge. Rule 6 provides:

6. Insubordination, willful failure to observe instructions or neglecting of duty.

The Company Rules are prefaced by the statement:

The Company retains the right to discharge any Employee for cause, and such right of discharge shall be deemed to include the right to suspend or otherwise discipline an Employee in lieu of discharge.

The arbitrator found that Nash had unjustifiably refused to work overtime on October 5,1979, and was thus properly subject to being disciplined by Norfolk. Nonetheless, he found, that:

There are mitigating circumstances which in my judgment dictate a penalty less than that imposed by the Company. Nash has been off the Company payroll since October 9, 1979 — almost seven months. On balancing all the circumstances, a more equitable discipline would appear to be reinstatement with no back pay.

His award changed the discharge to a suspension and ordered Nash reinstated without back pay.

The district court held that the arbitrator, having found cause for the discharge, was without authority to alter the discipline imposed by Norfolk. The court, in conjunction with that holding, refused to admit evidence relating to “custom and practice” or “the common law of the shop” offered by the Union to demonstrate such arbitral authority.

The Union proffered evidence that Norfolk did not always discharge employees for violating company rules including refusing to work overtime; that Norfolk traditionally followed a policy of progressive discipline (administering progressively more severe penalties for successive violations of company rules); and that there had been three previous arbitration decisions accepted by Norfolk in which the arbitrator had reduced the penalty of discharge to a period of suspension without pay.²

It is, of course, axiomatic that a labor arbitration dispute is governed by the contract between the company and the union involved, United Steelworkers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), and the arbitrator is bound by this agreement. Moreover, his decision will not be disturbed by a court unless he has exceeded the authority given him by the contract. United Steelworkers v. Enterprise Wheel, supra. The court’s inquiry is limited to whether the arbitrator’s award draws its essence from the agreement of the parties. “It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation is different from his.” Id. at 599, 80 S.Ct. at 1362.

In construing the collective bargaining agreement, however, the arbitrator [800]*800must take into account any existing common law of the particular plant or industry, for it is an integral part of the contract. United Steelworkers v. Warrior & Gulf, supra. The trial court, in the case sub judice, by refusing to consider the evidence proffered by the Union, could not have considered whether there was any custom and practice relating to the resolution of the dispute, and, therefore, could not properly determine if the arbitrator acted within his authority under the collective bargaining agreement. The judgment is therefore vacated and the case remanded to the trial court to consider the evidence proffered by the Union to determine whether there was any custom or practice in the plant which had been integrated into the contract giving the arbitrator authority to modify the penalty imposed by Norfolk.

REMANDED.

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SPROUSE, Circuit Judge:

Local No. 684 of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (Union), and K. C. Nash appeal the judgment of the district court in favor of Norfolk Shipbuilding & Drydock Corporation (Norfolk) invalidating the portion of an arbitration award which reinstated Nash to his position with Norfolk. The Union contends the district court erred in refusing to consider evidence as to the “custom and practice in the industry” or “the common law of the shop” in determining whether the arbitrator exceeded his authority under the applicable collective bargaining agreement. We agree and remand for consideration of such evidence.

Nash, a Union member and twenty-seven year employee¹ of Norfolk, was discharged by Norfolk for twice refusing to work overtime. He received a written warning when he refused to work overtime in August 1979 and was discharged when he again refused in October 1979. The discharge notice stated that the reason for discharge was a “[vjiolation of Rule No. 6: Insubordination, willful failure to observe instructions, or neglecting of duty with a belligerent atti[799]*799tude.” The discharge was arbitrated in accordance with the provisions of the collective bargaining agreement between the parties.

Article XI, Section 8 of the agreement contains the language governing Norfolk’s right to discharge Union employees. It provides in part:

The Company retains the right to discharge any employee for cause, and such right of discharge shall be deemed to include the right to suspend or otherwise discipline an Employee in lieu of discharge. It is agreed that violation of Company rules not inconsistent with the terms of this Agreement shall be considered just cause for discharge.

The company rules set out the actions which constitute cause for discharge. Rule 6 provides:

6. Insubordination, willful failure to observe instructions or neglecting of duty.

The Company Rules are prefaced by the statement:

The Company retains the right to discharge any Employee for cause, and such right of discharge shall be deemed to include the right to suspend or otherwise discipline an Employee in lieu of discharge.

The arbitrator found that Nash had unjustifiably refused to work overtime on October 5,1979, and was thus properly subject to being disciplined by Norfolk. Nonetheless, he found, that:

There are mitigating circumstances which in my judgment dictate a penalty less than that imposed by the Company. Nash has been off the Company payroll since October 9, 1979 — almost seven months. On balancing all the circumstances, a more equitable discipline would appear to be reinstatement with no back pay.

His award changed the discharge to a suspension and ordered Nash reinstated without back pay.

The district court held that the arbitrator, having found cause for the discharge, was without authority to alter the discipline imposed by Norfolk. The court, in conjunction with that holding, refused to admit evidence relating to “custom and practice” or “the common law of the shop” offered by the Union to demonstrate such arbitral authority.

The Union proffered evidence that Norfolk did not always discharge employees for violating company rules including refusing to work overtime; that Norfolk traditionally followed a policy of progressive discipline (administering progressively more severe penalties for successive violations of company rules); and that there had been three previous arbitration decisions accepted by Norfolk in which the arbitrator had reduced the penalty of discharge to a period of suspension without pay.²

It is, of course, axiomatic that a labor arbitration dispute is governed by the contract between the company and the union involved, United Steelworkers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), and the arbitrator is bound by this agreement. Moreover, his decision will not be disturbed by a court unless he has exceeded the authority given him by the contract. United Steelworkers v. Enterprise Wheel, supra. The court’s inquiry is limited to whether the arbitrator’s award draws its essence from the agreement of the parties. “It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation is different from his.” Id. at 599, 80 S.Ct. at 1362.

In construing the collective bargaining agreement, however, the arbitrator [800]*800must take into account any existing common law of the particular plant or industry, for it is an integral part of the contract. United Steelworkers v. Warrior & Gulf, supra. The trial court, in the case sub judice, by refusing to consider the evidence proffered by the Union, could not have considered whether there was any custom and practice relating to the resolution of the dispute, and, therefore, could not properly determine if the arbitrator acted within his authority under the collective bargaining agreement. The judgment is therefore vacated and the case remanded to the trial court to consider the evidence proffered by the Union to determine whether there was any custom or practice in the plant which had been integrated into the contract giving the arbitrator authority to modify the penalty imposed by Norfolk.

REMANDED.

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671 F.2d 797, 109 L.R.R.M. (BNA) 2329, 1982 U.S. App. LEXIS 22696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norfolk-shipbuilding-drydock-corp-v-local-no-684-of-the-international-ca4-1982.

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