The opinion of the court was delivered by: FRANCIS CAIAZZA, Chief Magistrate Judge
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
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),
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
[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
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, , 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
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
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
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
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
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
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
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 ...