duty of not more than five days, and an opportunity of the employee to be granted a hearing on request. This language is absolute. It applies to all discharge cases. It admits of no exception. Any claimed probationary hiring policy of the company whether in the form of "past practices" or "local agreement" conflicts with this language and in the sense that the arbitrator was attempting to resolve a conflict his exercise of that decision draws its authority directly from the contract.
We might draw similar conclusions from other provisions in the contract. Art. II of the contract enumerates employees who are specifically exempted from its provisions and then provides "All other employees working in or about the mine shall be included in this agreement". Nor do any other provisions of the contract relating to employees dealing with such matters as job classifications of new employees orientation for new employees, vacation pay accrual, seniority and job bidding, and exceptions to employees required to become members of the United Mine Workers of America, make any mention of probationary employees or the specific problems that such a class of employees would raise in connection with the implementation of those sections. The inclusion of these special conditions for many of the aspects of employment raises a proper inference that no exception was to be made for a claimed class of "probationary employees" and would likewise support the arbitrator's award as drawing its essence from the contract document.
We conclude, therefore, that the award of the arbitrator draws its essence from the collective bargaining agreement and that the arbitrator's interpretation is rationally derived from the agreement itself.
It follows that if no exception to the contract terms regarding discharge can be made for "probationary employees" that the remainder of the arbitrator's determination likewise finds its basis in the contract. If the employee cannot be discharged except for just cause the arbitrator's determination of just cause is based on the contract and must be affirmed. Similarly, the arbitrator's determination that the procedural requirements for such discharge have not been followed must be sustained because the defendant company does not contend that it followed the procedures set forth in the collective bargaining agreement, but rather that it was not required to follow such procedure.
The defendant also argues that the arbitrator's award in this case must be vacated because it violates a specific command of a statute, Sec. 8(b) (3) of the National Labor Relations Act, by condoning a refusal of the labor organization to bargain collectively with an employer over the terms or conditions of employment of union members. The defendant argues that the thirty day probationary period was a term or condition of employment at the defendant company's shop for more than twenty years and that the Union by filing a grievance which was affirmed by the arbitrator unilaterally changed the terms or conditions of employment without collective bargaining. We cannot accept this argument. The provision in the collective bargaining agreement which was arrived at by the collective bargaining process between authorized representatives of the Union and the employer here, incorporated a specific provision that "no employee shall be summarily discharged". The arbitrator concluded that no exception to this provision could be sustained on the basis of a "past practice" or "local agreement". He drew such interpretation from the body of the contract itself. His award must be sustained.
And now this 7th day of August, 1974, upon consideration of the cross-motions of the parties for Summary Judgment it is ordered that the motion of the Plaintiffs for Summary Judgment be granted, and the motion of Defendant for Summary Judgment be denied.
It is further ordered that the counsel for the parties shall prepare and submit a form of judgment computing the back wages due the discharged employee from the date of his discharge to the date of his reinstatement, less credit for any sums earned by said employee in the meantime.
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