Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, W.D. Pennsylvania

September 22, 2004.


The opinion of the court was delivered by: FRANCIS CAIAZZA, Chief Magistrate Judge



It is respectfully recommended that the Defendant's Motion to Dismiss (Doc. 3) be denied and the Plaintiff's Motion for Summary Judgment (Doc. 7) granted. It is further recommended that the arbitrator's award be vacated, and that this case be remanded for further arbitration proceedings.



  The Plaintiff International Union of Operating Engineers, Local 66, 66A, B, C, D, O & R, AFL-CIO ("the Union") seeks judicial review of an arbitration award denying the grievance of Reid Karenbauer ("the Grievant" or "Mr. Karenbauer"). See generally Compl. (Doc. 1). Mr. Karenbauer, a thirty-nine year employee of the Defendant Heckett Multiserv ("the Employer," "the Defendant," or "Heckett"), was terminated in February 2003 because the Employer's client, AK Steel ("the Client," "AK" or "AK Steel"), barred him from its premises. See generally id. at ¶¶ 6, 10(a), 10(q).

  The Union filed a grievance on behalf of Mr. Karenbauer and, in conformity with the parties' Collective Bargaining Agreement ("the CBA"), the matter proceeded to arbitration. See generally id. at ¶ 7; see also generally CBA (copy attached as Ex. 1 to Compl.). On October 17, 2003, arbitrator Matthew M. Franckiewicz ("the Arbitrator") issued an Opinion and Award denying the grievance. See Arbitrator's Opinion (attached as Ex. 2 to Compl.). The Arbitrator made the following factual findings, among others, which are taken as true for the purposes of the recommendations below:

[T]he Employer . . . performs services for AK Steel on the premises of AK's Butler facility. . . . Heckett . . . performs services for other companies at other locations, but the bargaining unit involved in this case works exclusively at AK's Butler plant. . . .
[The] Grievant . . . is a 39 year employee with Heckett . . . [, and he] has no record of prior discipline or of safety violations.
AK has extensive safety rules for contractors. . . . For [the] purposes of this case, the pertinent [rule dictates] . . . that individuals working within the vicinity of [railroad] tracks are to stay at least six feet from the nearest rail, or if this is not feasible, to obtain permission from the yardmaster and place railing cones and derailers in the vicinity of the worksite. . . .
In January 2003[, the Employer] dredged dirt and debris from a ditch on AK[Steel's] property. The debris was deposited along a roadway that parallels a plant railroad track. On February 4[, 2003, Mr.] Karenbauer was assigned to operate a front end loader to load the debris onto trucks for removal from the area. [Mr.] Karenbauer's normal assignment was to `feed' [the Defendant's] slag separator plant, but the plant was expected to be down during the shift, so . . . another assignment needed to be found for him.
When Foreman Rick Eisenhuth assigned [Mr.] Karenbauer to [remove] the dirt along the road . . ., [the Grievant] said that he did not want to, [being] afraid of doing something that would incur the wrath of AK [Steel]. But [Foreman] Eisenhuth told him it was his job for the day and if he did not do it, he would probably be terminated.
On February 4, AK's security department videotaped the area in which [Mr.] Karenbauer was working. Apparently the purpose of the taping was observation of AK . . . employees rather than [the Defendant's], although this is not completely certain inasmuch as no AK personnel testified at the arbitration hearing. . . .
The tape shows [Mr.] Karenbauer at times operating the front end loader within six feet of the railroad track, and sometimes over the track. This is a technical violation of AK's safety procedures. . . . But it is obvious from the tape that no locomotive was in the vicinity when the loader came within six feet or overlapped the track. At one point on the tape a locomotive passes, at a very slow speed of perhaps a few miles per hour. When the engine is visible on the tape, [the Grievant] was well beyond the six foot area.
It might have been possible for the loader to get past the debris pile without coming closer than six feet to the track, but it would have been a tight squeeze. Further, as a loader scoops material, some of it is necessarily pushed to the sides, which would have resulted in some of the dirt being pushed to within six feet of the track, and it would be impossible to clean up this dirt without coming within six feet of the track.
The tape also shows the operator of a Heckett truck driving along the roadway next to, and within six feet of, the railroad track. [Heckett] Superintendent [Roy] Brick [also] acknowledged that, at least before February 4, [2003], it was common for drivers to come within six feet of the track while dodging potholes in the road. No disciplinary action was taken against the driver, and there is no indication that AK ever raised this [incident] in its discussions with Heckett. [Foreman] Eisenhuth acknowledged that he was aware of employees driving closer than six feet to the track and did not discipline them.
Steward Curt Bowser testified that for several days, because of the location of the dirt pile at the time in an area where the track bows out toward the pile, the only way to get past was to drive part way over the track. He stated that the load operator would necessarily have had to operate over the track in order to clean mud off the track. He also recalled that a month after the incident involved in this case, Superintendent Walt Lasky drove past over the middle of the track. Bowser has frequently seen cars[,] trucks and equipment driving or operating within six feet of the . . . track. He also observed that in the area of Heckett's slag separation plant on AK's premises, . . . trucks have to swing out onto the track, and have done so for years. Other than [Mr.] Karenbauer and [Foreman] Eisenhuth, no employees have been disciplined by Heckett, or barred by AK [Steel] for driving or working in proximity of the track.
On February 4, 2003, AK's yardmaster called Foreman Eisenhuth and said that the engineer had reported that Heckett's operator was working close to the track. . . . [T]he next day[, Eisenhuth] assigned a different operator who worked on the pile from the opposite end, without coming closer than six feet to the track. It would [have] be[en] Eisenhuth's responsibility to make any track protection arrangements. The area involved had never previously been `coned'.
On February 5, AK's Director of Transportation Tom Ayers phoned Heckett Superintendent Brick and said that he wanted Brick to attend a meeting because of a [safety] violation. . . . Bill Smith of AK Plant Safety showed Brick the tape, . . . said the yardmaster had complained, and asked if Brick was aware of the situation. Smith told Brick to prepare a plan of the corrective action he would take, and what discipline he would impose. [Smith] hinted that a two day suspension and re-attendance of . . . [a] safety course for both the employee and the foreman might be satisfactory, even though AK would discharge its own employee under such circumstances.
[Superintendent] Brick knew that an AK [Steel] employee had recently died in an accident and [he] feared that AK was looking for someone to serve as an example.
Brick responded the following day . . . that the operator would be suspended for two days and the foreman for one day, with re-training and additional stress on safety. [AK representative] Ayers . . . said Brick's response was unacceptable, and [that] AK fired employees for this kind of violation. He scheduled another meeting for February 7.
AK Works Manager Mark Tabler headed the February 7 meeting. . . . Tabler seemed aware that [Mr.] Karenbauer was a long term employee, since when Brick said that the operator did not think he was violating AK policy, Tabler replied [`]how could he be here so long and not know.['] . . . [T]here was nothing [Brick] could say by way of explanation that satisfied Tabler, and Tabler accused Brick of not being serious about safety and repeated that otherwise he would fire both the operator and the foreman. He told Brick that if he could not bring himself to do it, he did not take safety seriously and maybe AK did not need him there. . . .
Heckett issued [Mr.] Karenbauer a notice of indefinite suspension dated February 8[, stating:] `you have been suspended indefinitely up to and including discharge pending the outcome of our meetings with our customer [AK Steel].'
At [a] February 10 meeting[, AK representative]
Tabler said that he took from [Superintendent]
Brick's . . . remarks that Heckett was lackadaisical about safety. He went on to say that AK [Steel] was barring both [Mr.] Karenbauer and Foreman Eisenhuth from the mill. AK has never reversed its position regarding the two. It has never given Heckett written confirmation that the two were barred from its property. Heckett is willing to reinstate [Mr.] Karenbauer . . . if AK revokes his disbarment.
AK sent Heckett a letter . . . saying that its employee's working within six feet of the track . . . constituted grounds for termination of [their] agreement, but that AK would not terminate the agreement if Heckett complied with stated conditions, including a . . . $79,000 [charge]. Heckett disputed that any such charge is appropriate, and the matter remains unresolved between Heckett and AK [Steel].
On February 27[, 2003] Brick issued to [Mr.] Karenbauer a termination notice. It states[:] `Indefinite suspension has been changed to a termination, due to the fact that the employee cannot maintain his schedule because [he] was barred from the mill.' The form indicates that [the Grievant] was ineligible for rehire, with the explanation `employee was barred from mill's property.'
After his debarment, Heckett assigned [Foreman] Eisenhuth to fill a vacancy at a different plant (not owned by AK [Steel]) occasioned by the retirement of a foreman there.
Heckett has two other bargaining units in the Pittsburgh area represented by Local 66. The parties discussed a possible accommodation by employing [Mr.] Karenbauer at one of those sites, but both collective bargaining agreements include a provision for an exclusive hiring hall, so that such an accommodation would be subject to challenge by a potential employee who had a higher position on the hiring hall list than [the Grievant].
See Arbitrator's Opinion at 2-5 (footnotes omitted).

  According to the Arbitrator "[t]he issue, as agreed [upon] by the parties, [was] whether there [existed] just cause" for the Grievant's discharge and, "if not[,] what . . . the remedy [should] be." See id. at 5 (emphasis added). In summarizing the Defendant's position, the Arbitrator recognized:

• "AK Steel should not have barred the Grievant from its property, it was not [the Defendant's] decision to do so[,] and there was no collusion in this regard";
• the Defendant "did not want to lose [Mr. Karenbauer] as an employee and is willing to return him to work if AK [Steel] changes its mind";
• both Heckett and the Union "went to bat for the Grievant to try and keep him employed" and, in the Defendant's view, "both the Grievant and Heckett were unjustly punished by AK [Steel]";
• "Heckett did not terminate, and would not have terminated, [Mr.] Karenbauer for violating AK's safety rules";
• the Defendant "terminated him because he could not get to work, . . . this inability was not Heckett's decision," and "an employee must come to work if he is to be employed, and if he cannot, it is a proper reason to terminate his employment."
See id. at 5-6 ("Position of Management").

  As referenced above, the parties charged the Arbitrator with determining whether Mr. Karenbauer's termination was appropriate under Section Three of the CBA. See generally Arbitrator's Opinion at 1-2 (identifying Section 3 as relevant provision); id. at 5 ("Issue" for arbitration was Section 3's "just cause" provision). Section Three states:

[Heckett] retains the exclusive right to manage the business and plant and to direct the working force subject . . . to the provisions of this Agreement. The right to manage . . . includes, but is not limited to, the right to hire, assign work to employees, suspend, or discharge employees for just cause, to transfer employees within the Plant, and to relieve employees from duty because of lack of work.
See CBA at § 3 (emphasis added).

  The Arbitrator came to interpret "just cause" as meaning "the employer had valid and sufficient business reasons to do what it did." See Arbitrator's Opinion at 7. He reached this conclusion based on the following:

If the question is whether AK [Steel] would have had just cause to discharge an employee under the circumstances of this case, both parties agree that it would not, even if for no other reason than that discharge would be too severe a punishment. . . . A separate questions remains, however, of whether, assuming AK would not have had just cause to discharge . . ., Heckett nonetheless had just cause for the discharge of its employee. . . .
In my view, this question translates to whether the just cause standard necessarily equates to an employee `fault' standard. . . . [W]hile the question of whether the employer had just cause to discipline often includes the question of whether the employee was at fault, the two are not necessarily identical. The essential question, it seems to me, in any just cause case is whether the employer had valid and sufficient business reasons to do what it did.
In some cases, even though an employee is blameworthy, just cause for discharge is lacking. For example, a discharge may be reversed or reduced because of inadequate notice to the employee of the consequences of the conduct involved, because of more lenient discipline to other employees for similar infractions, or because progressive discipline rather than discharge should have been the course of action.
The current case presents something of the other side of the coin, a case where there may be valid and sufficient business reason for discharge even though the employee is not blameworthy. To my mind[,] the common situation most closely analogous to the current one is that of an employee who is not malingering but is unable to report to work due to illness or accident. Surely it is not an employee's fault that he has contracted a disabling disease. But arbitrators are in accord that where an employee cannot report to work with sufficient regularity, the employer is permitted to end his or her employment. . . .
In the current case the Grievant, like an employee suffering a medical condition, is unable to report to work even though not due to any fault [of] his own. . . . I reach the same conclusion that the Employer is not required to continue the employment of an employee who cannot report to work. . . . The current situation is unlike a case involving an employee (such as a delivery [person]) who visits many customers' businesses. In such a case, even if one customer refuses to admit the employee to its premises, routes can usually be reconfigured to avoid the problem. Here, however, there is only one customer, and all the bargaining unit work is performed on AK[Steel's] property.*fn1 . . .
Id. at 7-8 (footnotes omitted).

  The parties have filed cross-motions testing the legal sufficiency of the Arbitrator's decision. The briefing on the motions has come to a close, and the matter is now ripe for adjudication.


  The facts recited in the Arbitrator's Opinion reveal the most unfortunate of circumstances. The evidence reasonably infers that the Employer's Client, having recently suffered a fatal workplace accident, "was looking for someone to serve as an example." See generally discussion supra. It was this climate that caused Mr. Karenbauer to recoil when instructed to complete work outside of his typical job responsibilities, being "afraid of doing something that would incur the [Client's] wrath." See id.

  To avoid the termination of his employment, however, the Grievant did as he was ordered. See id. (clearing debris "was [Mr. Karenbauer's] job for the day and if he did not do it, he would probably be terminated"). In the process he committed a routine, if technical, safety violation. See, e.g., id. (in addition to Grievant, tape "show[ed] the operator of a Heckett truck driving . . . within six feet" of railroad track, "it was common for drivers to come within six feet of the track," and employees often "dr[ove] closer than six feet to the track and did not [receive] discipline"); cf. also generally Arbitrator's Opinion at 6 (noting Defendant's "concession that . . . [Mr.] Karenbauer was operating the loader in a safe manner").*fn2

  As the parties agree, the Client's response to the safety violation was both uneven and disproportionate. See, e.g., id. at 5 (admitting Grievant was "unjustly punished" and "emphasiz[ing] that Heckett did not terminate, and would not have terminated, [Mr.] Karenbauer for [the] violat[ion]"). And while the Defendant complains that it too was unfairly punished, the fact remains that the Grievant, and the Grievant alone, had been left to hold the bag. See Arbitrator's Opinion at 4 (noting that Heckett disputes and has not paid AK Steel's $79,000 charge) and id. at 5 (Defendant assigned Foreman Eisenhuth "to fill a vacancy in a different plant").

  The consequence visited upon this Grievant, a 39-year employee of Heckett with no record of prior discipline, reeks of injustice. As referenced below, however, the law governing the court's review of the arbitration decision does not permit a weighing of the equities. Rather, the correct question is whether the Arbitrator's interpretation of the term "just cause" can withstand judicial scrutiny. The undersigned respectfully submits that it cannot.

  As Defense counsel hastens to point out, "[j]udicial review of a labor-arbitration decision pursuant to [a collective bargaining] agreement is very limited." See Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001). Although various permutations of the relevant standards exist, the message is clear: in the absence of compelling reasons, courts should be loath to interfere with the decisions of duly authorized labor arbitrators. See, e.g., id. ("[c]ourts are not [permitted] to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement"; "if an arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, the fact that a court is convinced he committed serious error does not suffice to overturn his decision"; "[w]hen an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's improvident, even silly, factfinding does not provide a basis for . . . refus[ing] to enforce the award"; and courts "have no business weighing the merits of the grievance [or] considering whether there is equity in a particular claim") (citations and internal quotations omitted). Such heightened deference is necessary to preserve "[t]he federal policy of settling labor disputes by arbitration." See generally United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36, 38 (1987) (policy would be "undermined if courts had the final say on the merits of . . . awards," thereby jeopardizing "the speedy resolution of grievances by private mechanisms"); Newark Morning Ledger Co. v. Newark Typographical Union Local 103, 797 F.2d 162, 165 (3rd Cir. 1986) ("frequent judicial disapproval of the awards of labor arbitrators would tend to undermine a system of private ordering that is of the highest importance to the well-being of employer[s] and worker[s] alike") (citation omitted).

  There comes a point, however, where an arbitrator's ruling is "so palpably wrong that to allow his decision to stand would [itself] undermine confidence in the arbitration process." See Newark, 797 F.2d at 165 n. 3 (citation and internal quotations omitted). There are almost as many permutations of this competing principle, ranging from an arbitrator's inability to "dispense[] his own brand of industrial justice," to the requirement that his interpretation "in [some] rational way be derived from the agreement," to the notion that his decision cannot evidence "manifest disregard" for, or "infidelity to," the CBA or his obligations thereunder. See, e.g., Garvey, 532 U.S. at 509; Major League Umpires Ass'n v. American League of Prof'l Baseball Clubs, 357 F.3d 272, 280 (3d Cir. 2004); Newark, 797 F.2d at 165 (citations and internal quotations omitted in each).

  In the undersigned's view, the enforceability of the Arbitrator's decision hinges upon which group of standards is most applicable to his "just cause" interpretation. As Justice Stevens recently opined, this determination is not an easy one:

It is well settled that an arbitrator does not sit to dispense his own brand of industrial justice. . . . Our cases, however, do not provide significant guidance as to what standards a federal court should use in assessing whether an arbitrator's behavior is so untethered to either the agreement of the parties or the factual record so as to constitute an attempt to dispense his own brand of industrial justice. Nor, more importantly, do they tell us how, having made such a finding, courts should deal with the extraordinary circumstance in which the arbitrator['s] own rulings make clear that, more than being simply erroneous, his finding is completely inexplicable and borders on the irrational.
See Garvey, 532 U.S. at 512 (Stevens, J., dissenting) (citations and internal quotations omitted, emphasis added).

  These difficulties notwithstanding, the court remains charged with determining whether the Arbitrator's interpretation of "just cause" properly may be left to stand The undersigned submits that it should not, as the Arbitrator's reading cannot "in any rational way" be derived from the collective bargaining agreement. Major League Umpires, 357 F.3d at 280; accord Arco-Polymers, Inc. v. Local 8-74, 671 F.2d 752, 754 (3d Cir.), cert. denied, 459 U.S. 828 (1982).

  In determining whether the Arbitrator's interpretation is in any way rational, the court looks to the "language" of the CBA, "its context, and any other indicia of the parties['] intention." See Arco-Polymers, 671 F.2d at 754 (citations and internal quotations omitted). The undersigned turns first to the "context" within which the "just cause" term arises.

  Although it seems too obvious to bear repeating, the "just cause" provision of a labor agreement protects union members from unjust discipline, up to and including discharge. See, e.g., THE COMMON LAW OF THE WORKPLACE § 6.1, p. 157 (Theodore J. St. Antoine ed., BNA Books 1998) (hereinafter cited and referred to "St. Antoine") ("[t]he Just Cause Principle" dictates that "[a]n employer may discipline an employee for just cause") (emphasis added);*fn3 Roger I. Abrams & Dennis R. Nolan, Toward a Theory of `Just Cause' in Employee Discipline Cases, 1985 (June) DUKE L.J. 594, 594-95 (hereinafter, "Abrams & Nolan") ("[j]ust cause for discipline is the most important principle of labor relations in the unionized firm," as "[f]ew things are more significant to employees than limitations on their employer's power to discipline or discharge them") (emphasis added).*fn4

  Implicit in the concept of "discipline" is the notion that the employee engaged in some sort of affirmative conduct and/or culpable behavior to warrant the adverse employment action. See, e.g., Just Born, 2002 WL 31819621 at * 4 ("[i]mplicit in the concept of just cause for discipline is the requirement of wrongdoing," and "[i]n the absence of a triggering event which will support discipline, the grievant's discharge cannot stand") (citation and internal quotations omitted, emphasis added); Abrams & Nolan at 602 ("[t]he nature and severity of the employee's offense . . . will determine what form of discipline is appropriate," and "[t]he question for the arbitrator is whether the employee's conduct constituted a sufficiently serious breach . . . to warrant the discipline imposed") (emphasis added); St. Antoine at § 6.1, cmt. a ("`discipline' means any punishment up to and including discharge") (emphasis added).

  It is within these contexts that the parties included the "just cause" provision of the CBA. The language of the agreement, moreover, is entirely consistent. Cf. Arco-Polymers, 671 F.2d at 754.

  Although the Arbitrator made no reference to it, Section Seven of the CBA specifically addresses the provision containing the "just cause" requirement, stating:

The [Employer] agrees that, in the exercise of its rights under Section 3 hereof, an employee shall not be peremptorily discharged. When the Company concludes that the employee's conduct may justify suspension or discharge, the employee shall be suspended initially . . . and notified in writing of such suspension, and the reasons therefore, shall be indicated. When an employee is disciplined by written suspension . . ., a union representative will be present if requested by the employee.
During the suspension period, the employee shall, if so desired, be granted a hearing before the Plant Superintendent. . . . [Thereafter,] the Company shall determine whether such suspension shall be affirmed, modified, extended, revoked, or converted to a discharge. . . .
See CBA at § 7 (emphasis added).

  Section Seven is consonant with the notion that just cause relates to "discipline" for affirmative and/or culpable conduct. See generally id. The arbitrator was bound, moreover, "to interpret the [just cause requirement] in harmony with other parts of the CBA to give effect to" the entire agreement. See Mitchell Plastics, Inc. v. Glass, Molders, Pottery, Plastics & Allied Workers Int'l Union, 946 F. Supp. 401, 405 (W.D. Pa. 1996) (Cindrich, J.) (emphasis added).

  Finally are "other indicia of the parties['] intention," in this case the actual treatment of Mr. Karenbauer under the CBA. The Grievant was neither laid off nor immediately terminated based on "valid and sufficient business reasons" claimed by Heckett. To the contrary, and fully consistent with the concept of discipline, the Grievant was suspended for several days before his "suspension [was] changed to a termination." Compare generally discussion supra (emphasis added) with CBA at § 7 (when "employee's conduct may justify suspension or discharge, the employee shall be suspended initially") (emphasis added).

  As just seen, the language of the CBA, its context, and other indicia of the parties' intent paint a clear and consistent picture. Unfortunately for the Defendant, however, the Arbitrator's interpretation of "just cause" bears no rational relationship to the same.

  In focusing on whether the Employer "had valid and sufficient business reasons" for terminating the Grievant, the Arbitrator completely lost sight of the "discipline" aspect of the just cause inquiry. Both generally and in this case, the CBA's "just cause" provision looks to whether the employer's adverse employment decision was justified in light of the employee's triggering conduct or culpability. The Arbitrator offered no reasoned basis for shifting the inquiry to entirely unrelated matters, i.e., the employer's business interests alone. As a practical matter, such a shift would provide little (if any) more protection under the CBA than exists through the at-will doctrine, as the employer would remain free at any time to proffer business reasons for termination bearing no relationship to the employee, his conduct, or those matters within his control. Cf. generally, e.g., Hanover, 814 A.2d at 294 n. 1 ("[the] just cause limitation on discharge" differentiates union workers from "at-will" employees, who may be terminated "at any time for any reason"); Sparks v. International Union, United Auto., Aerospace, & Agric. Implement Workers of Amer., UAW, 1996 WL 487252, *3 (6th Cir. Aug. 26, 1996) ("[i]t would be ironic indeed if . . . `unjust discharge' was [read] in such a hyper-technical manner" that it would "constru[e the union] employment contract[] as [creating an] at-will relationship[]") (emphasis added).

  Unsurprisingly, the reported cases in the Third Circuit and Pennsylvania uniformly have addressed CBA "just cause" provisions within the context of discipline, employee conduct and/or culpability.*fn5 Neither the Arbitrator nor Defense counsel has identified any jurisprudence to the contrary. Rather, the Arbitrator relied solely on St. Antoine's hornbook to support his "business reasons" interpretation. See Arbitrator's Opinion at 7 n. 3 (citing and quoting St. Antoine). A fair reading of the treatise, however, reveals the contrary.

  On the whole, St. Antoine could not be more supportive of the "discipline for employee conduct/culpability" paradigm. As previously referenced, the opening passage regarding the "[j]ust [c]ause [p]rinciple" clarifies that "[a]n employer may discipline an employee for just cause." See id. at § 6.1, p. 157 (emphasis added). Thereafter, section upon section identifies legal precepts harmonious with the "discipline" paradigm and wholly incongruous with the "business reasons" interpretation:

§ 6.2: The just cause principle entitles employees to due process, equal protection, and individualized consideration of specific mitigating and aggravating factors. . . .
cmt. b Mitigating factors include an employee's seniority, good work record, good faith, the absence of serious harm from the employee's conduct, and, in appropriate cases, the presence of provocation or misrepresentation leading to the employee's misconduct. . . .
cmt. c Aggravating factors include . . . the seriousness, willfulness, or repetition of the employee's misconduct and the presence of serious harm stemming from that misconduct.
§ 6.7: (1) The level of discipline permitted by the just cause principle will depend on . . . the nature and consequences of the employee's offense, the clarity or absence of [work] rules, the length and quality of the employee's work record, and the practices of the parties in similar cases. Discipline must bear some reasonable relation to the seriousness or the frequency of the offense. . . .
§ 6.7: (2)(a) Unless otherwise agreed, discipline for all but the most serious offenses must be imposed in gradually increasing levels. The primary object of discipline is to correct rather than to punish. Thus, for most offenses, employers should use one or more warnings before suspensions, and suspensions before discharge. . . .
§ 6.9: (1) The employer bears the burden of proving just cause for discipline. That includes proof that the level of discipline imposed was appropriate. The employer also must also prove any alleged aggravating factors.
(2) The employee bears the burden of proving any affirmative defenses (such as condonation by the employer, provocation by other employees, or disparate treatment) and any mitigating factors. . . .
§ 6.12: It is generally accepted that some level of procedural due process is owed by employers to employees in the imposition of discipline or discharge. . . .
(a)(1) [A]rbitrators in the private sector have built into the just cause standard procedural due process protections as part of the `fundamental fairness' that just cause embodies.*fn6 . . .
§ 6.17: An employee is entitled to be informed of, or to have a sound basis for understanding, the disciplinary consequences that will result from violating policies or work rules in effect at the employee's place of employment. . . .
cmt. b Another important . . . proposition is that, in the administration of disciplinary action by an employer, employees should not have to suffer disparate treatment, that is, there should be equal treatment for like offenses.
See St. Antoine at cited sections (emphasis added, italicization in original).

  None of the aforementioned principles can be reconciled with the "business reasons" interpretation, and the sections above provide just a sampling of the incompatibility. Turning to the specific section relied upon by the Arbitrator, the same conclusion is apparent. Section 6.5 states:

(1) The essence of the just cause principle is the requirement that an employer must have some demonstrable reason for imposing discipline. The reason must concern the employee's ability, work performance, or conduct, or the employer's legitimate business needs.
(2) Ability and performance. An employer may discipline an employee for failure to meet reasonable work standards.
(3) Conduct. An employer may discipline an employee for violations of stated or generally known and reasonable work rules and expectations.
(4) Business necessity. Reasons relating to an employer's legitimate business needs include lack of work for persons with the employee's skills, technological or market changes, and business reorganizations.
(5) Just cause is not synonymous with `fault.' An employee may violate work rules and merit discipline even if the employer cannot prove the employee actually intended the violation.
See St. Antoine at § 6.5, pp. 164-65 (emphasis added, italicization in original).

  Admittedly, St. Antoine's subsection regarding "[b]usiness necessity" may on first blush appear supportive of the Arbitrator's interpretation. Cf. id. The problem remains, however, that St. Antoine's discussion of "legitimate business needs," alone, says nothing whatsoever regarding employee behavior warranting discipline. As the section discussing "business necessity" states, "just cause" demands that the employer "have some demonstrable reason for imposing discipline," and this concept is emphasized repeatedly throughout the remainder of St. Antoine. See discussion supra. Thus, to the extent the Arbitrator relied on the source's discussion of "business necessity," his reasoning is fatally inconsistent with the remaining provisions of St. Antoine and should be rejected as irrational.

  Before selling short the learned and "renowned arbitrator Theodore J. St. Antoine,"*fn7 however, it is only fair to consider his comments to the "business necessity" subsection:

Normally an employer's actions in response to business developments such as lack of suitable work are not considered disciplinary. Other legitimate business interests may justify formal discipline, for example, the justified refusal of . . . customers to work with an individual.
See id. (emphasis and double emphasis added).

  As just seen, St. Antoine's commentary essentially takes back what the "business necessity" discussion appeared to improperly bestow. See id. ("an employer's actions in response to business developments . . . are not considered disciplinary") (emphasis added). Moreover, the parties and the Arbitrator were in agreement that there existed no basis for disciplining Mr. Karenbauer, let alone terminating his employment. See, e.g., Arbitrator's Opinion at 7-8 (Grievant "is not blameworthy," his inability to report to work was "not due to any fault on his part," and Defendant concedes AK Steel should not have barred him from its premises). Rather, Heckett took "actions in response to business developments," actions that simply "are not considered disciplinary." See St. Antoine at § 6.5, cmt. (d), p. 166 (emphasis added).*fn8 If anything, St. Antoine actually reinforces the distinctions between the "discipline" and "business reasons" paradigms rather than eroding them.

  Even more telling, though, is St. Antoine's comment regarding customers' "unwilling[ness] to work" with a specific employee. See id. at § 6.5, cmt. (d). This is precisely the situation presented here, and St. Antoine contemplates that just cause exists if the customer's refusal is "justified." See id. (emphasis added). Once the concept "justifi[cation]" is reintroduced, the analysis comes full circle and the employee's conduct and/or culpability again enters the equation. Within the context of this case, moreover, the Arbitrator's Opinion leaves no doubt that AK Steel's refusal to work with Mr. Karenbauer was "[un]justified." See discussions supra (noting Arbitrator's and Defendant's concessions that AK Steel should not have barred Grievant from its premises); see also, e.g., Abrams & Nolan at 605.*fn9

  The Arbitrator also relied heavily on St. Antoine's discussion of "fault," concluding that "just cause . . . [does not] necessarily equate[] to an employee `fault' standard." See Arbitrator's Opinion at 7 & n. 3. The undersigned agrees that the concept of "faultless" discipline is recognized in the law. See St. Antoine at § 6.5(5), p. 165. The deviation between the Arbitrator's analysis and St. Antoine's, however, stems from the definition given the word "fault."

  The Arbitrator appears to have confused "fault" with the question of whether the employee has engaged in conduct warranting discipline. This certainly was not the definition endorsed by St. Antoine:

Just cause is not synonymous with `fault[,' in that a]n employee may violate work rules and merit discipline even if the employer cannot prove the employee actually intended the violation. . . .
In these cases, . . . discipline may be appropriate both to determine whether the employee's problems are voluntary and to give the employee proper warning. . . .
For example, a consistent inability to produce satisfactory work might justify discipline even of employees doing their best. . . . Similarly a `no-fault' attendance policy may justify discipline for repeated unexcused absences or tardiness even though the employee asserts a plausible explanation for each incident.
See St. Antoine at § 6.5(5) and cmt. thereto (emphasis added).

  It seems fairly obvious that St. Antoine equated the word "fault" with scienter, or intent. See id. (employee's violation of work rules may "merit discipline even if the employer cannot prove the employee actually intended the violation"). In each illustration, moreover, reference is made to conduct (intentional or not) warranting the imposition of discipline. See, e.g., id. (contemplating "violat[ion of] work rules," "employee[] problems" and "proper warning[s]," failure "to produce satisfactory work," and "repeated unexcused absences or tardiness"). St. Antoine's discussions regarding employee intent notwithstanding, the Arbitrator's "business reasons" standard remains irrational under the CBA's language, its context, and other indicia of the parties' intent.

  For all of the reasons stated above, the Arbitrator's interpretation of "just cause" flies in the face of the CBA, the law of the Third Circuit and Pennsylvania,*fn10 and the treatise he cites in support thereof. See generally discussions supra. The "business reasons" standard ignores fundamental underpinnings of the just cause principle, including the concepts of discipline,*fn11 due process, the individualized consideration of mitigating and aggravating factors, the need for proportionality, equal protection, and the prohibition of disparate treatment.

  See discussions supra.

  In sum, the Arbitrator's interpretation cannot "in any rational way" be derived from the collective bargaining agreement. See Major League Umpires, Arco-Polymers.*fn12 The denial of Mr. Karenbauer's grievance was not supported by the Arbitrator's analysis, and the arbitration award should be vacated.

  In a case where "the arbitrator's award may properly be vacated, the appropriate remedy is to remand the case for further arbitration proceedings." See Garvey, 532 U.S. at 511 (citation omitted). In light of the analyses above, coupled with the Arbitrator's and the Defendant's concessions, the undersigned questions what properly remains for the Arbitrator to decide, at least with respect to liability. Nevertheless, the Supreme Court has made clear that remand is the most appropriate course of action. See id. (rejecting suggestion that remand "is limited to cases where the arbitrator's errors are procedural") (citation omitted).

  On remand, the arbitration proceedings should revisit the "just cause" issue, as consistent with recommendations stated above.*fn13 The remaining analysis should not be taxing, given the parties' and the Arbitrator's agreement that Mr. Karenbauer should not have been terminated for his technical violation of AK Steel's safety rule. See generally discussions supra. Stated differently, by conceding that the Grievant's conduct did not warrant discipline, the Defendant essentially has admitted that "just cause" (as rationally construed) was lacking. See Arbitrator's Opinion at 5-6 (summarizing Defendant's admissions that "AK Steel should not have barred the Grievant from its property," Grievant "[was] unjustly punished," and Heckett "would not have terminated" him "for violating AK's safety rules"); cf. also generally Parilla v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004) ("[j]udicial admissions are formal . . . stipulations by the party or its counsel . . . that are binding . . . for the purpose of the case in which the admissions are made[,] including appeals") (citations and internal quotations omitted).

  Finally, the undersigned notes that AK Steel's apparent refusal to allow Mr. Karenbauer onto its premises has no proper bearing on whether there existed just cause for discipline. Regardless of whether AK's decision has or will impede the Employer's ability to find Mr. Karenbauer other work, Heckett owed the Grievant a contractual duty to not discipline him in the absence of just cause. Cf., e.g., Verland Found., Inc. v. United Steelworkers of Amer., 1993 WL 388675, *5 (W.D. Pa. Jul. 14, 1993) (Lee, J.) (CBA imposes on employer "[a] contractual obligation to establish just cause for disciplinary action against an employee") (citation and internal quotations omitted).

  In the end, applying the just cause provision in this case would appear to pose an overarching question: who, between the Employer and its thirty-nine year employee Mr. Karenbauer, should bear the consequences of AK Steel's uneven and disproportionate response to a routine, technical safety violation? In light of the Defendant's having placed the Grievant in this predicament,*fn14 AK Steel's being the Employer's client, Heckett's apparent willingness to more emphatically resist unreasonable client demands when its own finances are threatened,*fn15 and, most importantly, the Defendant's contractual obligation not to discipline the Grievant without "just cause," the court should have little difficulty concluding that AK Steel is Heckett's problem, not the Grievant's.*fn16

  The District Court should vacate the Arbitrator's award and remand the case for further proceedings. In light of this recommendation, the Defendant's request for attorneys' fees under Federal Rule 11 obviously should be denied. Cf. Def.'s Mem. (Doc. 4) at 8-10 (arguing Plaintiff should have withdrawn case upon being warned by Defense counsel it was "meritless").

  The Plaintiff likewise has requested the payment of attorney fees and costs. See generally Compl. at Wherefore clause. In moving for summary judgment, however, counsel has failed to identify legal authority supporting the request for fees. See generally Pl.'s Mem. (Doc. 8) (remaining silent regarding Plaintiff's request for costs and attorney's fees). Assuming such relief is within the court's discretion, moreover, this simply is not an appropriate case for fee shifting. Cf. generally discussion supra (noting that determination on merits "[wa]s not an easy one"). Thus, the Plaintiff's request should be denied.


  The Defendant's Motion to Dismiss (Doc. 3) should be denied, the Plaintiff's Motion for Summary Judgment (Doc. 7) granted, the Arbitrator's award vacated, and the case remanded for further arbitration proceedings.

  In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, objections to this report and recommendation are due by July 16, 2004. Responses to objections are due by July 26, 2004.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.