UFCW v. Shop 'N Save ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 96-2352EM
_____________
United Food and Commercial *
Workers, AFL-CIO, CLC, *
Local No. 88, *
*
* On Appeal from the United
Appellant, * States District Court
* for the Eastern District
v. * of Missouri.
*
*
Shop 'N Save Warehouse *
Foods, Inc., *
*
Appellee. *
___________
Submitted: February 12, 1997
Filed: May 16, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, HANSEN and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
___________
RICHARD S. ARNOLD, Chief Judge.
United Food and Commercial Workers, AFL-CIO, CLC, Local No. 88
appeals from an order of the District Court1 denying the union's motion for
summary judgment to vacate an arbitration award and granting summary
judgment in favor of Shop 'N Save Warehouse Foods,
1
The Hon. Mary Ann L. Medler, United States Magistrate Judge
for the Eastern District of Missouri.
Incorporated. The District Court refused to vacate the arbitrator's award.
The Court found that the award "draws its essence" from the collective-
bargaining agreement and is therefore valid. We affirm.
I.
Shop 'N Save hired Patricia Wright on November 11, 1982, as a full-
time meat wrapper. In June 1990, Wright shattered a disk in her back while
working. At the time Wright injured her back she was represented by the
union. Surgery was performed on Wright's back in July 1990, and she was
off work until January, 1991.
On November 16, 1991, while working, Wright began experiencing back
problems again and called Dr. Shultz, who had performed her back surgery.
Dr. Shultz removed Wright from work and treated her with therapy. At the
time Wright ceased working on November 16, 1991, she was earning $12.40 per
hour and was receiving benefits. Wright underwent another back operation
in December 1991. This second surgery was performed by Dr. Murphy.
In October, 1992, while Wright was still on a leave of absence, she
began experiencing pain in her knees. She had her knees examined by Dr.
Haupt, an orthopedic specialist. After examining Wright, Dr. Haupt
determined that her knees had become weak from the inactivity caused by her
back surgery and, as a result, she needed more therapy.
On November 4, 1992, Dr. Murphy gave Wright a full release to return
to work. However, Dr. Haupt gave Wright a release to return only under
limited duty conditions: namely, "no stooping, no squatting and no stair-
climbing." Her job required stooping.
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On November 4, 1992, Wright talked with John Dougherty, Shop 'N
Save's Vice President of Human Resources, concerning Dr. Murphy's and Dr.
Haupt's reports. During that conversation, Dougherty informed Wright that
she could not perform the essential functions of her job as a meat wrapper
and, therefore, could not return to work. Dougherty announced Wright's
termination on November 4, 1992.2
On November 17, 1992, not having received any medical documentation
releasing Wright to perform the essential functions of her job, Shop 'N
Save officially discharged her. Neither Wright nor the union filed a
grievance over Shop 'N Save's decision to discharge her.
On January 13, 1993, Wright secured a report from Dr. Haupt
indicating her ability to work under full-duty conditions with no
restrictions. In January 1994, Shop 'N Save rehired Wright as a part-time
meat wrapper. At the time Wright was rehired, she completed a new
application for employment and was required to complete other documents for
new employees. Wright was paid $8.00 per hour, received no benefits, and
enjoyed no seniority with Shop 'N Save for the years she had worked before
January 1994.
After Shop 'N Save rehired Wright, the union and Wright filed a
grievance alleging that Shop 'N Save's actions violated the parties'
collective-bargaining agreement. Specifically, the union alleged that Shop
'N Save failed to recognize Wright's proper seniority level, thereby
depriving her of a pay rate of $12.40 an hour and health, welfare, and
pension benefits. The union demanded
2
Wright did not exhaust 12 months of medical leave until after
November 16, 1992.
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that Wright be reinstated at the higher rate of pay, and the matter went
to arbitration.
II.
The scope of judicial review of arbitration awards under collective-
bargaining agreements is extremely limited. As the Supreme Court said in
United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36 (1987)
(quoting United Steelworkers of America v. Enterprise Wheel & Car Corp.,
363 U.S. 593, 597 (1960)):
[T]he courts play only a limited role when asked to review the
decision of an arbitrator. The courts are not authorized to
reconsider the merits of an award even though the parties may
allege that the award rests on errors of fact or on
misinterpretation of the contract. . . . As long as the
arbitrator's award "draws its essence from the collective
bargaining agreement," and is not merely "his own brand of
industrial justice," the award is legitimate.
Misco goes on:
Courts thus do not sit to hear claims of factual or legal error
by an arbitrator as an appellate court does in reviewing
decisions of lower courts. To resolve disputes about the
application of a collective-bargaining agreement, an arbitrator
must find facts and a court may not reject those findings
simply because it disagrees with them. The same is true of the
arbitrator's interpretation of the contract. The arbitrator
may not ignore the plain language of the contract; but the
parties having authorized the arbitrator to give meaning to the
language of the agreement, a court should not reject an award
on the ground that the arbitrator misread the contract.
Misco, 484 U.S. at 38, citing Enterprise Wheel, supra, at 599.
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A court "cannot interfere with the arbitrator's award 'unless it can
be said with positive assurance that the contract is not susceptible of the
arbitrator's interpretation.'" Kewanee Machinery Division, Chromalloy
American Corp. v. Local Union No. 21, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, 593 F.2d 314,
318 (8th Cir. 1979) (quoting International Brotherhood of Electrical
Workers v. Professional Hole Drilling, Inc., 574 F.2d 497, 503 (10th Cir.
1978)).
Thus, "'as long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his authority, that
a court is convinced he committed serious error does not suffice to
overturn his decision.'" John Morrell & Co. v. Local Union 304A of the
United Food & Commercial Workers, 913 F.2d 544, 559 (8th Cir. 1990), cert.
denied, United Food & Commercial Workers Int'l Union v. John Morrell & Co.,
500 U.S. 905 (1991), (quoting Misco, 484 U.S. at 38). In determining
whether an arbitrator has exceeded his authority, the agreement must be
broadly construed with all doubts being resolved in favor of the
arbitrator's authority. John Morrell, 913 F.2d at 560, citing Lackwanna
Leather Co. v. United Food & Commercial Workers Int'l Union, 706 F.2d 228,
230-31 (8th Cir. 1983) (en banc).
III.
In this case the union contends that the arbitrator's award failed
to draw its essence from the collective-bargaining agreement. The union
argues that if Wright's seniority was not legitimately broken, pursuant to
the collective-bargaining agreement, then her grievance deserved to be
sustained. The pertinent provisions of the collective-bargaining agreement
are as follows:
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ARTICLE 6 GRIEVANCE AND ARBITRATION PROCEDURES
Section 6.2 The Company and the Union shall mutually agree to
an impartial arbitrator to hear said arbitration case . . .
Such arbitrator shall not be empowered to add to, detract from,
or alter the terms of this Agreement.
ARTICLE 8 SENIORITY
(b) Seniority shall be considered broken if an employee
is duly discharged by the Employer, if he voluntarily quits, if
he has been laid off continuously for a period of more than
twelve (12) months, or if he is called back to work after a
layoff and does not report for work within one week.
The Employer will notify the laid off employee by
certified mail at the last known address.
ARTICLE 27 LEAVES OF ABSENCE
A leave of absence shall be defined as a period during
which an employee must, for legitimate reasons, be absent from
work. Leaves under this article shall be limited to:
A. Military
B. Medical
C. Union
D. Personal
They shall be for a specified length of time and without pay.
* * *
(B) MEDICAL LEAVE
A leave of absence for reasons of extended personal
illness, injury or pregnancy shall be granted to all employees
with six (6) or more months of seniority, for an initial period
not to exceed thirty (30) days provided such request is
supported by satisfactory medical evidence. If at the end of
the thirty (30) days the employee is unable to return to work,
the leave may be extended for an additional thirty (30) days
and each thirty (30) days thereafter up to a maximum of twelve
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(12) months provided each request for an extension is supported
by satisfactory medical evidence.
RETURN TO WORK
Following compliance with the terms of (B) above, an
employee, upon returning to work with a doctor's release
indicating physical fitness to return to work, shall be placed
in the same job classification, seniority permitting, and shall
receive the rate of pay then established for the job. The
employee will be scheduled for work on the next posted schedule
in accordance with seniority, provided that the necessary
notification and/or release was presented to the Employer at
least twenty-four (24) hours prior to the time called for in
this Agreement for the posting of the written schedule.
The union argues that Wright was not "duly discharged" under the
plain language of the collective-bargaining agreement because she was fired
on November 4, 1992, 13 days before her leave of absence would have expired
3
under Article 27. Consequently, her seniority was not legitimately
broken, so that she was entitled to a higher rate of pay upon her rehiring.
The union contends, therefore, that the arbitrator exceeded his authority
under Article 6, section 6.2, by reducing the 12-month medical-leave
maximum contained in Article 27, section B, to 11 months and 18 days.
Thus, the union argues, the arbitrator's award fails to draw its essence
from the parties' collective-bargaining agreement, but instead reflects
merely the arbitrator's personal notions of industrial justice.
In discussing the union's contentions, the arbitrator stated that the
main question is whether the parties have chosen by their agreement to
define the outermost limit of a reasonable interruption of service. He
found that Article 27 defines the
3
Under the facts of this case it is undisputed that grievant
did not quit and was not laid off for economic reasons.
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outermost limit as 12 consecutive months. He stated that Dougherty
announced Wright's termination on November 4, 1992, based on the mistaken
assumption that she had been on leave of absence for 12 consecutive months,
when in fact Wright did not exhaust 12 months of medical leave until after
November 16, 1992.
Wright did not have a full release from Dr. Haupt to return to work
by November 17, 1992, the date her 12-month leave of absence expired under
Article 27.4 Since she could not have returned to work by that date, the
arbitrator determined that her effective date of termination was November
17, 1992, despite the fact that she was told she was fired 13 days
earlier.5 Therefore, the arbitrator held that Wright had her seniority and
wage rate broken as of November 17, 1992. We believe the agreement is
susceptible of this interpretation. When Dougherty told Wright she was
fired, he knew she had not been fully cleared to return to work, and that
Dr. Haupt was not going to see her again until after November 16. If
Wright had received a full clearance on or before November 16, a different
case would be presented, but that did not happen. Even
4
The arbitrator found that the record did not contain
sufficient evidence to conclude that light-duty work was available
to the grievant between November 4 and November 16, 1992.
5
In support of his conclusion, the arbitrator cites an ALR 2d
article that states that a notice to terminate an agency or
employment contract, although allowing the noticed party a shorter
period of time than that stipulated in the contract, is not wholly
inoperative, but serves to terminate the relationship after the
expiration of the stipulated time. "Effect of Attempt to Terminate
Employment or Agency Contract Upon Shorter Notice Than That
Stipulated in Contract," 96 ALR2d 272 (1962). The union uses this
reference as support for its proposition that the arbitrator's
award did not draw its essence from the collective-bargaining
agreement but instead relied on his own notions of industrial
justice. However, the United States Supreme Court has expressly
stated that an arbitrator may look for guidance from many sources
as long as the award draws its essence from the collective-
bargaining agreement. Enterprise Wheel, 363 U.S. at 597.
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if the discharge technically occurred on November 4, the substance of the
twelve-month limit in Article 27 was not violated, because the company knew
Wright could not return within the twelve-month limit. While the wording
of the award and some of its reasoning on subsidiary points is perhaps open
to criticism, its essence is consistent with the spirit and reason of the
collective-bargaining agreement. No more is required.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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