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MEAD CORP. v. INTERNATIONAL PRINTING & GRAPHIC COM

October 7, 1983

THE MEAD CORPORATION, MEAD PACKAGING DIVISION
v.
INTERNATIONAL PRINTING AND GRAPHIC COMMUNICATIONS UNION, BRISTOL LOCAL 497, AFL-CIO



The opinion of the court was delivered by: LUONGO

 In this action under Section 301 of the Labor Management Relations Act, 29 U.S.C. ยง 185, The Mead Corporation (Mead) seeks to have vacated an arbitration award rendered against it, and in favor of David Taylor and the International Printing and Graphic Communications Union, Bristol Local 497 (the Union). The Union has counterclaimed, seeking enforcement of the arbitrator's award as well as costs and attorney's fees. The parties have filed cross-motions for summary judgment which are now before the court.

 BACKGROUND

 This controversy arose out of David Taylor's discharge from employment with The Mead Corporation in January, 1982. Employed as a forklift operator from June, 1978, Taylor was dismissed after a confrontation with his supervisor, Dave St. Germain. On January 4, 1982, Taylor reported for work on Mead's night shift at 11 p.m. At approximately 3 a.m. on the morning of January 5, he went to lunch in the company's "vendateria." (Arb. Dec. at 1). While on his lunch break, Taylor was required to return to the production floor in order to operate the forklift. Such interruptions apparently were often necessary because Taylor was the only employee on the night shift permitted to use the forklift. (Union's Post-Arbitration Brief at 2). When he had completed the needed operations, Taylor returned to the vendateria to finish his lunch.

 At that time, Supervisor St. Germain entered the vendateria and ordered all employees back to work. St. Germain permitted three employees who had received permission to change their lunch period to remain. Taylor and one other employee also failed to return to work. Supervisor St. Germain then specifically ordered them to leave. One employee complied, but Taylor engaged in an outburst that led to his discharge. The arbitrator described Taylor's behavior in his written opinion:

 (Arb. Dec. at 2-3). The arbitrator found that Taylor then asked his supervisor whether to return to work, but received no reply. (Arb. Dec. at 4). After a meeting later that afternoon, Taylor was suspended indefinitely for violation of Company Rule Group II, Rule 12 -- Insubordination, and one week later he was dismissed from the Company's employ.

 Pursuant to the collective bargaining agreement then in effect, the Union challenged Taylor's discharge through the grievance procedure. Failing to reach a settlement of the grievance, the parties proceeded to arbitration.

 In an award accompanied by a written opinion, Arbitrator Seymour Strongin sustained Taylor's grievance "to the extent that the penalty is converted to a three-day suspension." (Arb. Dec. at 7). In reaching his decision, the arbitrator closely examined the terms of Company rule 12 which is incorporated into the collective bargaining agreement by Article XV of the contract. Rule 12 defines insubordination as "refusal to perform a service as required by a supervisor or manifesting an unwarranted offensive of [sic] uncivil attitude toward a supervisor." For violation of Group II Rules such as rule 12, the penalty listed for the first violation is discharge. The arbitrator first reasoned that Taylor did not refuse to perform any service for his employer, and thus could not be discharged for violation of the first part of rule 12. Then, addressing the Company's major contention, the arbitrator held that Taylor's conduct, although both offensive and uncivil, did not manifest an offensive or uncivil attitude within the meaning of the second part of Company rule 12. Moreover, the arbitrator noted that Taylor's conduct occurred in response to a supervisor's order that he leave the vendateria at a time when he was finishing his once interrupted lunch. The arbitrator reasoned, therefore, that Taylor's "reaction may not be termed 'unwarranted' in the sense of 'inexcusable.'" (Arb. Dec. at 6).

 Finally, the arbitrator found that Taylor did not physically threaten or strike his supervisor, and that Taylor had no previous record of violence or confrontations. (Arb. Dec. at 6).

 As emphasized by Mead Corporation in its briefs, the arbitrator did not, however, totally exonerate Taylor. The arbitrator noted that Taylor "should not have lost his temper," and decided that "a suspension for the rest of the calendar week might be sustained as an appropriate penalty for the brief loss of self-control." (Arb. Dec. at 6-7).

 DISCUSSION

 In its suit to vacate the arbitration award, Mead claims that, in view of the arbitrator's "specific findings as to the grievant's conduct," the award "fails to draw its essence from the terms of the Agreement." (Complaint para. 12). Additionally, Mead argues that the arbitrator's imposition of a three-day suspension against Taylor because of his outburst indicates that Taylor necessarily violated some Company rule, even if misconduct to the level of insubordination had not occurred. Mead points out that for violation of minor Company rules, so called Group I Rules, the collective agreement incorporates a schedule of progressive discipline which specifies discharge as the sanction for a fourth violation unless one of the employee's offenses occurred six months or more after the preceding violation. *fn1" Mead then notes that Taylor had three active violations of Group I Rules at the time of the incident involving supervisor St. Germain. *fn2" The Company argues, therefore, that because the arbitrator necessarily found Taylor guilty of an offense under the collective agreement, such offense could entail a penalty no less than that provided for Group I offenses. Further, Mead concludes that because Taylor was subject to discharge for commission of any additional Group I offenses, the arbitrator's finding of a minor offense requires that the discharge penalty be sustained.

 In response to Mead's claims, the Union argues that the arbitrator's decision draws its essence from the collective agreement. The Union denies that the arbitrator found Taylor guilty of a minor violation of Company rules. The Union explains the arbitrator's deduction of three days' pay from his back pay award as either an administrative convenience afforded to Mead or as a suspension imposed by the arbitrator in light of the equities of the case, notwithstanding the absence of a violation of Company rules by Taylor. Finally, the Union contends that Mead's suit to vacate the award was brought in bad faith, and seeks an award of attorney's fees.

 The first question to be decided in this case is whether the arbitrator's decision that David Taylor was not insubordinate within the meaning of Company rule 12 draws its essence from the collective agreement. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960); W.R. Grace and Company v. Local Union 759, International Union of the United Rubber, Cork, Linoleum and Plastic Workers, 51 U.S.L.W. 4643, 4645 (1983). This question is one of contract interpretation over which the federal judiciary has been instructed to exercise only limited review. As the Supreme Court stated in United Steelworkers of America v. Enterprise Wheel & Car Corp., supra:

 
The question of interpretation of the collective bargaining agreement is a question for the arbitrator. 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 ...

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