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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 ...

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