Weems v. Buildex, Inc.

657 P.2d 72, 8 Kan. App. 2d 321, 112 L.R.R.M. (BNA) 2577, 1983 Kan. App. LEXIS 113

• Court: Court of Appeals of Kansas
• Decided: January 20, 1983
• Docket: No. 53,934
• Status: Published

Opinions

Rees, J.:

An arbitration award was entered as the result of a grievance prosecuted by plaintiff pursuant to a collective bargaining agreement. Defendant appeals from a district court order voiding that part of the award which denied back pay to plaintiff.

The presently pertinent parts of the arbitrator’s award are as follows:

“AWARD OF ARBITRATOR

“This is a voluntary labor arbitration ....

“The arbitration involves the grievance filed by Glenn E. Weems . . . contesting his discharge.

“The Grievant was discharged on August 29, 1980, and the issue was whether the Grievant . . . was discharged for just cause on August 29, 1980.

“. . . The critical section of the work rules, which the Company contends were violated by the [Grievant], were as follows:

“ ‘Any of the following actions can be determined as sufficient grounds for some disciplinary action ranging from suspension from work for a specified period of time to immediate discharge . . .

“ ‘#6 . . . consuming . . . any type of alcoholic beverage .... Employees noticeably affected by use of any of the above, prior to reporting for work will not be permitted to remain on company property.’

“COMPANY’S CONTENTION

“The Company contends that the Grievant was disciplined for a drinking violation on January 5, 1980, and that a second violation occurred on August 29, 1980, and that these two violations within a twelve (12) month period allowed the company to discharge the Grievant.

“UNION’S CONTENTION

“The Union contends that the Grievant was not drinking on the company plant, and was not under the influence of intoxicating liquor, but even if he was, the company has discriminated against him because it did not uniformly apply the working rules to all of the employees, as there was evidence that the Superintendent had consumed beer on the company premises and had not been disciplined.

“DISCUSSION

“. . . The main issue is whether or not Grievant had been drinking or was under the influence of intoxicating liquor while he was working on the plant premises.

“The Arbitrator is under the opinion that the Grievant . . . did violate the company work rules. . '. . However, under the circumstances of this case, said violation is insufficient to justify discharge. . . . [T]he Arbitrator is by no means condoning the action of the Grievant, and does not find him free from fault. The actions of the Superintendent and his attitude that the rules were not applicable to him should be considered in mitigating any punishment administered to Grievant.

“There is no question that . . . the rule in question. . . may be enforced in penalty of discharge. . . . [T]he Arbitrator does not believe that discharge is appropriate under these circumstances.

“[T]he Arbitrator believes that the Company established grounds for the imposition of discipline. . . . [D]oubt was created in the mind of the Arbitrator regarding the appropriateness of the discharge ....

“[T]he Arbitrator holds that the grievance of Glenn Weems should be partially upheld in that his discharge should be set aside. However, grievant should be deemed suspended from employment from the date the Company discharged him until he applies for reinstatement according to the conditions set out herein below:

“1. Said suspension shall be a part of his employment record with Company.

“2. The Grievant shall be reinstated to his job, provided he makes application therefore [sic] within ten (10) days from the date of this award, but no backpay is awarded. ... In the event Grievant applies for reinstatement, and the Company declines to reinstate him, then the Grievant shall be entitled to be paid his normal straight-time wages from the time the Company declines to reinstate him until the date of his reinstatement. . . .

“The reinstatement of the Grievant, without backpay on the above conditions, is hereby ordered . . . .”

Inasmuch as the parties to the arbitration filed no written statement of the issues submitted, identification of those issues must be gleaned from the arbitrator’s award. There we find it said (1) the arbitration involves Weems’ grievance contesting his discharge, (2) the issue is whether Weems was discharged for just cause, (3) the company claims violation of a work rule, (4) the company contends that discharge is authorized discipline for the work rule violation, and (5) the union, on behalf of Weems, contends he did not violate the work rule and, alternatively, if there was a violation of the work rule, it is wrongful of the company to discipline Weems because it had not disciplined others for the same work rule violation.

In his “discussion,” the arbitrator necessarily first addressed the question whether there was a work rule violation. He found there was. Later he finds violation of the work rule subjects plaintiff to disciplinary action in the nature of discharge. (The collective bargaining agreement provides that violation of the work rule is ground “for . . . disciplinary action ranging

from suspension of work for a specified period of time to immediate discharge.”) Then, in the award, the arbitrator finds the actions and attitude of the company superintendent “should be considered in mitigating any punishment administered” and plaintiffs discharge was not appropriate discipline under the circumstances.

In conclusion, the arbitrator “partially upheld” plaintiffs grievance by setting aside the discharge and, upon the condition of plaintiff s application to the defendant, entered the modified discipline of suspension without pay. The imposition of suspension without pay was “partial denial” of Weems’ grievance; it implicitly rejected his claim he should not be disciplined.

Plaintiffs position before us is that by reason of the language in the collective bargaining agreement that reads, “[a]ny discharged or suspended employee who is re-instated by the settlement or decision of any grievance shall be paid for all time lost during the period of his discharge or suspension,” the modified discipline ordered by the arbitrator was void insofar as it denied back pay. The trial court agreed with that contention. We do not.

Plaintiff does not contend the arbitrator was without “broad power” to fashion an award in resolution of the grievance. Neither is it his position that a modification of the disciplinary penalty for the work rule violation is improper. His position simply is that by reason of the quoted collective bargaining agreement language, the setting aside of his discharge and, upon his application, allowing him to return to employment with the defendant, rendered denial of back pay beyond the power and jurisdiction of the arbitrator. We see the result of the trial court’s acceptance of his position to be that plaintiff suffers no real penalty although it was found he was properly subject to discipline.

On appeal, the defendant has been woefully shy in the advancement of any reason to avoid the facially clear collective bargaining agreement language upon which plaintiff relies.

Under plaintiffs theory, if, prior to arbitration, he and the defendant had agreed to a settlement of the grievance under which plaintiff was to be allowed to return to work, they could not have agreed to wage forfeiture for any time after the date of his challenged discharge. As a practical matter, there would be no compromise. That strikes us as an unreasonable and unintended consequence of the collective bargaining agreement language.

In our view, the collective bargaining agreement language at issue applies when the employee is truly reinstated, that is, in those instances when the employee is unconditionally returned to his former status. “Reinstatement means to return to a post previously held.” National Labor Relations Board v. Hearst, 102 F.2d 658, 663 (9th Cir. 1939). “With respect to the reinstatement of the thirteen employees . . . it may be well to make clear that . . . reinstatement [means] that they be restored to their former position.” National Labor Relations Board v. Planters Mfg. Co., Inc., 106 F.2d 524 (4th Cir. 1939). The arbitrator’s award did not order such a reinstatement.

We are convinced that as a general rule an arbitrator has the power to modify a disciplinary penalty imposed by management so long as the collective bargaining agreement does not forbid' him to do so and the agreement does not set forth specific penalties to be imposed for work rule violations.

As broad principles, it is said the scope of jurisdiction and power of arbitrators to resolve disputes arising within the context of labor-management relations is derived from and limited to the collective bargaining agreement; arbitrators have no authority to go beyond the terms of the agreement or to consider matters not clearly embraced by it (Updegraff, Arbitration and Labor Relations, p. Ill [3d ed. 1970]); and any award rendered in an arbitration proceeding must derive its essence from the collective bargaining agreement (Steelworkers v. Enterprise Corp., 363 U.S. 593, 597, 4 L.Ed.2d 1424, 80 S.Ct. 1358 [1960]). It also has been recently and often stated:

“[A] labor arbitration dispute is governed by the contract between the company and the union .... Moreover, [the arbitrator’s] decision will not be disturbed by a court unless he has exceeded the authority given him by the contract.” Norfolk Shipbuilding and Drydock v. Local No. 684, 671 F.2d 797, 799 (4th Cir. 1982).

“Where . . . arbitration is the method agreed-upon by the parties to resolve their differences, courts are required to grant ‘. . . wide latitude to the arbitrator to fashion appropriate remedies in the absence of clearly restrictive language [in the bargaining agreement],”’ Sverdrup/Aro, Inc. v. Intern. Ass’n of Machinists, 532 F. Supp. 143, 145 (E. D. Tenn. 1980).

“[W]here the collective bargaining agreement is silent as to remedies . . . the arbitrator is given wide latitude in fashioning a remedy.” Knox Porcelain Corp. v. Teamsters Local U. No. 519, 504 F.Supp. 284, 287 (E. D. Tenn. 1980).

“[A]n arbitrator may create a new remedy if it is not prohibited by the Agreement or if the underlying cause is not provided for in the Agreement.” Keen Mountain Const. Co., Inc. v. Chambers, 481 F. Supp. 532, 536 (W. D.Va. 1979).

The authority of an arbitrator to modify a disciplinary penalty imposed by management upon an employee for an infraction of a work rule is inherent in but distinct from the authority to determine the existence of cause to discipline the employee and the authority to finally settle the grievance.

“In many disciplinary cases, the reasonableness of the penalty imposed on an employee rather than the existence of proper cause for disciplining him is the question an arbitrator must decide. This is not so under contracts or submission agreements which expressly prohibit an arbitrator from modifying or reducing a penalty if he finds that disciplinary action was justified, but most current labor agreements do not contain such limiting clause. In disciplinary cases generally, therefore, most arbitrators exercise the right to change or modify a penalty if it is found to be improper or too severe, under all the circumstances of the situation. This right is deemed to be inherent in the arbitrator’s power to decide the sufficiency of the cause for discipline and in his authority to finally settle and adjust the dispute before him.” Platt, The Arbitration Process in the Settlement of Labor Disputes, 31 J. Am., Judicature Soc’y 54, 58, (1947).

Where the evidence clearly indicates that justice requires a modification of a disciplinary penalty, an arbitrator should, without hesitation, award accordingly. Updegraff, Arbitration and Labor Relations, p. 307.

In Fabricut, Inc. v. Tulsa General Drivers, Etc., 597 F.2d 227, 229 (10th Cir. 1979), an arbitrator’s award reducing a disciplinary penalty from discharge to a one-month suspension was affirmed on the ground that, in the absence of a contract specified penalty, the arbitrator could fashion a reasonable penalty to make the contract workable. An arbitrator’s modification of a disciplinary penalty was upheld in Gulf States Tel. Co. v. Local 1692, Int. Bro. of Elec. Wkrs., 416 F.2d 198, 202 (5th Cir. 1969). Lynchburg Foundry Company v. United Steelworkers, 404 F.2d 259, 261 (4th Cir. 1968), held that in the absence of language in the bargaining agreement specifically denying the arbitrator the latitude of judgment in formulating a remedy, an arbitrator is free to modify a penalty imposed on an employee. “Arbitral determination not only of the existence of misconduct but of the fitness of the punishment is routinely grist for the arbitral mill.” B. Dunau, Three Problems in Labor Arbitration, 55 Va. L. Rev. 427, 451 (1969).

The essence of plaintiff s grievance was that he was not guilty of violation of the subject work rule and, alternatively, if he was guilty, he should not be disciplined. The arbitrator found against him on both counts. The collective bargaining agreement does not prohibit modification of disciplinary penalties as a part of arbitration. Plaintiff has no room to complain of the modified discipline. The denial of back pay was not void as beyond the arbitrator’s jurisdiction and power. Further, if backpay was not a subject upon which the arbitrator could act because it was not a “submitted issue,” neither was the nature of the discipline imposed or to be imposed for the violation found to have occurred. It is inconsistent to accept as proper the arbitrator’s order reducing the discipline to suspension and to complain of denial of back pay.

Reversed.

Upon request under Rule 7.04 (230 Kan. lx) publication of this opinion is ordered.