This is an action under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, to vacate a labor arbitration award. Plaintiff and defendant have both moved for summary judgment pursuant to Fed. R. Civ. P. 56. The issue to be decided is whether an arbitration decision rendered in favor of Local 249 grievant, Edward Emery meets the "essence test" enunciated in United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960).
The dispute arose on September 15, 1976 when Emery was part of a three-man crew who took an excessively long break. Emery was discharged because this was his third offense for theft of time and the contract expressly provided for a discharge penalty. n1 The Union grieved Emery's discharge which resulted in his reinstatement with back pay. The relevant provision of the collective bargaining agreement is Article IV, Section (h):
Drivers Are Responsible at all times for the direction and supervision of helpers who may be assigned to them. Drivers and helpers are equally responsible in cases of hanging out and loafing on delivery routes.