APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 80-1102H -- Pittsburgh)
Before Seitz, Chief Judge, Sloviter, Circuit Judge, and VanARTSDALEN,*fn* District Judge.
Local 8-74 (the Union) appeals from a final order of the district court vacating an arbitration award. This court has jurisdiction under 28 U.S.C. § 1291 (1976).
Labor relations between appellee Arco-Polymers, Inc. (the Company) and the Union were governed by a collective bargaining agreement that provided: (1) "Employees absent from work without good and sufficient cause for more than four (4) consecutive days shall be subject to discharge" (article XXVI, section B(1)); and (2) "Employees shall be discharged only for just cause" (article XVI, section J(1)). On March 7, 1980, the Company discharged employee Larry Anderson for being absent from work for more than four consecutive days without good cause. Anderson grieved his discharge.
The arbitrator found that Anderson was absent between February 6 and February 25, 1980; that "when he attempted to return on the 25th he was unable to show "good and sufficient' cause for his absence"; that Anderson presented a note to the Company doctor from a physician dated February 15 which stated that Anderson "was in the office today for a complete checkup"; that the note "did not indicate that (Anderson) had been ill since that date, or between February 8 and 25"; that Anderson gave the Company doctor another slip which he said showed a visit to Rochester Emergency Room on February 8; that the "hospital had no such Account Number" as appeared on the slip; that the Company doctor "found nothing wrong when he examined (Anderson) on February 25, 1980-nothing disabling in his knees or any observable signs of influenza on that date"; that "as disclosed at the hearing a common attack of influenza would not have disabled Anderson from February 5, 1980 to February 25, 1980"; that, of the twenty-eight Company employees discharged for absenteeism since 1968, twenty employees had been discharged for absences of more than four days without "good and sufficient cause" under article XXVI, section B(1); that the Company doctor, "a Board eligible and sufficiently experienced psychiatrist, suspected earlier that Anderson had a mental problem that influenced his absenteeism"; and that, if Anderson had a "knees problem," he could be discharged for continued absenteeism despite his illness. The arbitrator also discussed the relationship between article XXVI, section B(1) and article XVI, section J(1). He stated:
Contrary to ARCO's assertion at the hearing, the burden of proof remains with the employer not the employee to show good and sufficient cause.... Professors Elkouir (and Elkouir) state in their treatise "How Arbitration Works," at P. 621:
"Discharge is recognized to be the extreme industrial penalty since the employee's job, his seniority and other contractual benefits, and his reputation are at stake. Because of the seriousness of this penalty, the burden generally is held to be on the employer to prove guilt on (sic) wrong doing, and probably always so where the agreement requires "just cause' for discharge."
Article XVI, Section (J), Paragraph 3 of the current Contract provides
"If after thorough investigation it is found that an employee has been unjustly discharged, the employee shall be reinstated with full back pay for the time lost."
The attempt of ARCO at the hearing to inject Anderson's overall disciplinary record including absenteeism should be ignored. We are concerned here with employee absence from work and ARCO's own progressive discipline policy seems to have been effective there; he had not be(en) disciplined for absenteeism for approximately 11 months prior to his discharge.
The arbitrator also noted that the Union "respectfully submits that Larry Anderson has been unjustly discharged, and requests that he be reinstated to ...