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concluding that arbitrator permissibly used a "just cause" provision to reinstate an employee who was "subject to discharge"
Summary of this case from Titan Tire v. Local 890L, United SteelworkersOpinion
Case No. 3:02-CV-7478
April 19, 2003
ORDER
Plaintiff BP Products North America brings this action against defendants Paper, Allied-Industrial, Chemical Energy Workers Local 5-0346 and PACE International, seeking to vacate an arbitration award reinstating former BP employee Gregory D. Price. This court has jurisdiction under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The parties filed cross-motions for summary judgment. For the following reasons, plaintiff's motion is denied and defendants' motion is granted.
BACKGROUND
Plaintiff BP Products North America ("BP") operates an oil refinery in Toledo, Ohio. BP entered into a collective bargaining agreement with defendant Paper, Allied-Industrial, Chemical Energy Workers International Union and its Local 5-0346 (collectively, "the Union").
The relationship between two provisions of that agreement is at issue in this case.
Paragraph 3.38(c) of the collective bargaining agreement states that "[a]n employee's services with the Company will be terminated and he will lose his seniority . . . if the employee is discharged for just cause; . . ." (Doc. 1, Exh. A. at BP00012).
Paragraph 6.25 of the collective bargaining agreement states that "[a]n employee found taking unfair advantage of the benefit provisions of the plan shall be subject to discharge." (Doc. 1, Exh. A. at BP00021).
Gregory Price was a North General Operator at BP's Toledo refinery and a member of the collective bargaining unit. While Price was working on October 2, 2000, a piece of debris landed in his eye. The irritation was mild, and Price continued to work without reporting the injury. That evening, the irritation worsened.
Price was scheduled to work the next day, October 3, 2000. When he awoke that morning, his eye was swollen and irritated. He called his primary care physician, who told him to go to the emergency room. Price called his supervisor and told him that he would miss work, and then went to the emergency room of St. Luke's Hospital in Maumee, Ohio.
At the emergency room, a nurse and a registration clerk classified Price's injury as "occupational." An emergency room physician, Dr. Tipton, examined Price's eye, concluded that Price had sustained a corneal abrasion, and treated the injury. Price then visited the hospital's Occupational Health Services Department and received a Return to Work form. When Price noticed that his injury had been classified as occupational, he called the hospital's Occupational Health Services Department and asked it to change the classification to non-occupational.
Price then called his primary care physician. According to Price, the receptionist instructed him to remain off work until the doctor evaluated him on October 7, 2000. Price missed work on October 3 and October 6-7, 2000. Price returned to work on October 8, 2000.
Because Price's three-day absence was his fourth absence in twelve months, BP denied Price short-term disability benefits. The collective bargaining agreement, BP asserted, required Price to submit documentation to show that he qualified for an exclusion from the waiting period imposed on a claimant who had four or more absences in twelve months.
To evaluate whether Price qualified for such an exclusion, BP asked Price to submit documentation of his October 3, 2000, emergency room visit, including a copy of his Return to Work form. The form Price submitted contained obvious discrepancies. BP contacted St. Luke's Hospital's Occupational Health Services Department and requested a copy of the original form. The hospital's copy showed that Price was cleared to return to work on October 3, 2000. Price's copy contained a blank space where the hospital staff had entered that date. The hospital's copy also included a blank box next to the statement "Patient is off work and will be reevaluated on ___." (Doc. 1, Exh. B at BP00178). On Price's copy, the box was checked.
BP suspected that Price had altered his copy to secure short-term disability benefits. Price could not explain the discrepancies. As a result, BP discharged Price on January 16, 2001, claiming that he was terminable under ¶ 6.25 of the collective bargaining agreement. The Union filed a grievance on Price's behalf, and the matter proceeded to arbitration.
The Arbitrator heard the grievance on May 24, 2002. The Arbitrator framed the issue as: "Was the January 16, 2001, summary termination of Gregory Price for just cause? If not, what is the proper remedy?" (Doc. 1, Exh. E, at BP00303). The Arbitrator found that Price had altered his Return to Work form. The Arbitrator concluded that this conduct did not constitute just cause for termination, and awarded Price reinstatement, with partial back pay, on September 9, 2002.
BP filed a complaint to vacate the arbitration award on October 2, 2002. The parties filed cross-motions for summary judgment.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
DISCUSSION I. Judicial Review of Arbitration Awards
Federal courts deciding cases under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, base their review of arbitrators' findings upon three cases decided by the United States Supreme Court in 1960, now known as the Steelworkers Trilogy. That triad of cases made clear the standard for judicial review of arbitration awards:
United Steelworkers v. American Manufacturing Co., 363 U.S. 564 (1960); United Steelworkers v. Warrior Gulf Navigation Co., 363 U.S. 574 (1960); and United Steelworkers v. Enterprise Wheel Car Corp., 363 U.S. 593 (1960).
The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.
Enterprise Wheel, 363 U.S. at 596.
The Court in Enterprise Wheel explained the rationale for this narrow standard of review:
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency.
Id. at 597.
The Court stressed the arbitrator's right to interpret the contract:
The question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.
Id. at 599.
The Court, however, cautioned that an arbitrator's authority is not unlimited, and gave lower federal courts the power to refuse enforcement of awards:
An arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.
Id. at 597.
An arbitrator's award fails to draw its essence from the contract if it: 1) conflicts with the express terms of the agreement; 2) imposes additional requirements not expressly provided in the agreement; 3) is without rational support or cannot be rationally derived from the terms of the agreement; or 4) is based on general considerations of fairness and equity instead of the precise terms of the agreement. Nat'l Gypsum Co. v. United Steelworkers of Am., 793 F.2d 759, 766 (6th Cir. 1986).
The Steelworkers trilogy was reaffirmed in 1987, in United Paperworkers Int'l Union, AFL-CIO v. Misco, 484 U.S. 29 (1987). In Misco, the Supreme Court held that federal courts are not authorized to reconsider the merits of an arbitration award, even if the parties allege the award rests on errors of fact or on misinterpretation of the contract. 484 U.S. at 36. The Court concluded: "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." Id. at 38. The Sixth Circuit, after Misco, concluded that the degree of deference that courts should apply when reviewing an arbitration decision is "one of the narrowest standards of judicial review in all of American jurisprudence." The Lattimer-Stevens Co. v. United Steelworkers of Am., 913 F.2d 1166, 1169 (6th Cir. 1990).
Still, post-Misco courts in the Sixth Circuit are willing to limit arbitration awards. Thus, as I previously have stated:
An arbitrator . . . does not have unfettered discretion. An arbitrator is confined to the interpretation and application of the collective bargaining agreement, and although he may construe ambiguous contract language, he is without authority to disregard or modify plain and unambiguous provisions.
Wyandot, Inc. v. Local 227, UFCW Union, 205 F.3d 922, 929 (6th Cir. 2000) (citation omitted) (Carr, J., sitting by designation).
II. Findings of Fact
The parties disagree about the Arbitrator's findings of fact. BP claims that the Arbitrator found that Price had taken unfair advantage of the benefits plan, triggering the automatic termination provision at ¶ 6.25. The Union contends that the Arbitrator found that Price dishonestly attempted to secure benefits, but that he may have been entitled to those benefits, so Price could not have taken unfair advantage of the plan.
This court has limited authority to interpret the Arbitrator's findings of fact. In Misco, the Supreme Court held, "[t]o 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." 484 U.S. at 38. If those factual findings are ambiguous, the Sixth Circuit stated in Indus. Mut. Ass'n, Inc. v. Amalgamated Workers Local 383, 725 406, 410 (6th Cir. 1984), "reviewing Courts are not to vacate awards merely because an Arbitrator's reasoning could be interpreted in several ways, one of which would lead to the conclusion that the award does not draw its essence from the contract."
Neither party disputes that the Arbitrator found Price had altered his copy of the Return to Work form to obtain short-term disability benefits for his three-day absence. (Doc. 1, Exh. E at BP00310) ("The Company has adduced sufficient proof to warrant a finding that . . . Price did knowingly alter and submit to the Company the . . . Return to Work Form").
It is not clear, however, whether the Arbitrator found Price had taken "unfair advantage" of the benefits plan, under ¶ 6.25.
The Arbitrator found that under the terms of the contract relating to short-term disability benefits, Price "may or may not have been entitled to receive short term disability for all three days of his disputed absence" without submitting medical documentation. (Doc. 1, Exh. E at BP00311). First, the Arbitrator noted, the injury was occupational, even though Price did not report it as such. Second, the Arbitrator found that under ¶¶ 6.8 and 6.9 of the collective bargaining agreement, the absence may have qualified as bona fide hospital time.
The Union claims that based on these findings of fact, the Arbitrator could not have found Price to have taken unfair advantage of the benefits plan, because one cannot take unfair advantage of a benefit if one is entitled to that benefit. Instead, the Union argues, Price's discharge for falsification of the Return to Work form would fall under § 3.38(c), the "just cause" termination provision.
Furthermore, the Arbitrator compared the Price arbitration to a 1996 arbitration also interpreting ¶ 6.25, concluding that the 1996 arbitration "[did] not establish that the Company has always terminated employees who attempt to take unfair advantage of the Article VI benefits program." (Doc. 1, Exh. E at BP00312 n. 2). This phrasing supports the Union's contention that the Arbitrator found Price had attempted to take advantage of the benefits program.
The 1996 arbitration upheld the termination of a BP employee who was found to have taken unfair advantage of the benefits program. Though BP argues that the 1996 proceedings support its interpretation of ¶ 6.25, it is well established that an arbitrator is not required to follow a prior award construing the same agreement, unless the collective bargaining agreement so stipulates. See Int'l Union UAW v. Dana Corp., 278 F.3d 548, 555 (6th Cir. 2002). In this case, the Arbitrator was not bound to follow the 1996 proceedings.
BP, however, argues that the Arbitrator found Price took unfair advantage of the benefits program. The Arbitrator's award contains several statements indicating his belief that there was "no excuse" for
Price's behavior. (Doc. 1, Exh. E at BP00311). The award also states:
Although it is not clear from the record, it seems likely that even if Mr. Price was entitled to short term disability benefits under Paragraph 6.9, he would not necessarily have received pay for all three days, unless he had been medically certified as unable to work on all three days. His treatment at the St. Luke's Hospital emergency room and the instructions given to him by Dr. Tipton and set out in the Aftercare Instructions form may well have justified his being off work on October 3, 2000. They did not establish that he was unable to work three and four days later, on October 6 and 7, 2000.
Id.
The collective bargaining agreement does not define what behavior constitutes "taking unfair advantage" of the benefits program under ¶ 6.25. The term is ambiguous, and the parties have bargained for the Arbitrator's interpretation of what is an unfair advantage. See Enterprise Wheel, 363 U.S. at 399. The Arbitrator, in "arguably construing or applying the contract," Misco, 484 U.S. at 38, may have found that Price's unsuccessful attempt to take advantage of the benefits program did not rise to the level of misbehavior contemplated by ¶ 6.25. In any event, "in the absence of these specific findings [of fact] this court must assume that the arbitrator's findings and his conclusion are consistent." Witco Corp. v. Oil, Chemical Atomic Workers Int'l Union, AFL-CIO, No. 98-5652, 1999 U.S. App. LEXIS 17986 at *12 (6th Cir. July 28, 1999) (upholding arbitrator's award, granted after "just cause" analysis, because arbitrator did not explicitly find employee had violated rule calling for immediate termination). As the Court stated in Enterprise Wheel:
A mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award. Arbitrators have no obligation to the court to give their reasons for an award. To require opinions free of ambiguity may lead arbitrators to play it safe by writing no supporting opinions. This would be undesirable . . .363 U.S. at 598 (footnote omitted).
I cannot conclude, therefore, that the Arbitrator found Price had taken unfair advantage of the plan within the meaning of ¶ 6.25. This court is not permitted to evaluate the merits of the Arbitrator's findings of fact, Misco, 484 U.S. 29, 38 (1987), and should conclude that the Arbitrator merely found Price had been dishonest. The contract does not mandate an employee's discharge for dishonesty. Consequently, the Arbitrator's just-cause analysis was appropriate, and the award derives its essence from the collective bargaining agreement and must be upheld.
III. Ambiguity in ¶ 6.25
Even if the Arbitrator's findings of fact included a finding that Price took unfair advantage of the benefits program, triggering the discharge provision in ¶ 6.25, the Union argues that one permissible construction of ¶ 6.25 authorized the Arbitrator to consider whether BP had complied with the contract's "just cause" provision. BP argues that if the Arbitrator found Price took unfair advantage of the benefits policy, BP had the unreviewable authority to invoke the termination provision at ¶ 6.25, so the Arbitrator's just-cause analysis was improper.
In his written decision, the Arbitrator did not explicitly determine whether the language in ¶ 6.25 making employees "subject to discharge" is, itself, subject to the blanket "just cause" termination provision in ¶ 3.38(c). The Arbitrator would be permitted to construe ¶ 6.25 in this manner, however, if it is unclear. As noted, an arbitrator "may construe ambiguous contract language[.] Wyandot, 205 F.3d at 929. When an arbitrator is construing ambiguous language, his decision must stand because "court[s] should not reject an award on the ground that the arbitrator misread the contract." Misco, 484 U.S. at 38; see also Eberhard Foods, Inc. v. Handy, 868 F.2d 890, 891 (6th Cir. 1989) (issue is whether "the language of the contract at hand is sufficiently clear so as to deny the arbitrator the authority to interpret the agreement as he did.").
The Union argues that ¶ 6.25, making employees "subject to discharge," means that employees may be discharged for taking unfair advantage of the benefit plan. Because the clause is ambiguous, the Union argues, the Arbitrator has the authority to apply the contract's "just cause" provision to Price's discharge. BP argues that ¶ 6.25's "subject to discharge" language means that employees must be discharged if they take unfair advantage of the benefit plan. Because this clause is unambiguous, BP argues, the Arbitrator did not have the authority to engage in a "just cause" analysis and reinstate Price, because he is "without authority to disregard or modify plain and unambiguous provisions." Wyandot, 205 F.3d at 929.
According to the arbitration award, both parties authorized the Arbitrator to frame the issue: "Was the January 16, 2001, summary termination of Gregory Price for good cause? If not, what is the proper remedy?" (Doc. 1, Exh. E, at BP00303). An arbitrator has the authority to decide the issues submitted. Champion Int'l Corp. v. United Paperworkers Int'l Union, 779 F.2d 328 (6th Cir. 1985) (citation omitted):
The extraordinary deference given to an arbitrator's ultimate decision on the merits applies equally to an arbitrator's threshold decision that the parties have indeed submitted a particular issue for arbitration. . . . It must appear that an arbitrator has clearly exceeded the scope of the submission for a court to overturn or modify an award on that ground.779 F.2d at 335.
In its post-hearing brief, the Company disputed the issue's framing, arguing that the issue should be: "whether the Grievant took unfair advantage of the short-term disability provisions of the collective bargaining agreement and, therefore, was subject to discharge by the Company." (Doc. 1, Exh. C at BP00259). Under Champion, the Arbitrator's framing of the issue controls.
Courts will vacate arbitration awards violating unambiguous contract provisions. The collective bargaining agreement at issue in this case, however, provided that an employee would be "subject to discharge." Courts are split on whether "subject to discharge" is an ambiguous phrase in a collective bargaining agreement, allowing an arbitrator to interpret it, or an unambiguous phrase, divesting an arbitrator from his authority to interpret it. Where a disciplinary clause clearly creates ambiguous or discretionary penalties, a court allows the arbitrator to construe it in any rational manner.
See, i.e., Georgia-Pacific Corp. v. United Paperworkers Int'l Union, 864 F.2d 940, 942 (1st Cir. 1988) (where contract contained "just cause" termination provision and then, in the same section, provided that "[w]ithout limiting the generality of the foregoing some of the causes for immediate discharge are: . . . dishonesty," and arbitrator reinstated employee he found dishonest, the court remanded with instructions to vacate the award, finding the language unambiguous); Int'l Bhd. of Firemen and Oilers v. Nestle Co., 630 F.2d 474, 475-77 (6th Cir. 1980) (where contract provided that "insubordination . . . shall constitute cause for . . . dismissal," and arbitrator reinstated employee he found insubordinate, the Sixth Circuit remanded with instructions to vacate the award, finding the clause unambiguous).
See, i.e., Eberhard, 868 F.2d at 891-93 (collective bargaining agreement contained "just cause" termination provision, and employer work rule provided that an employee who fought on company property was "subject to discharge;" Sixth Circuit ruled arbitrator permissibly construed the agreement to require "just cause" review of employer's discharge for fighting); ARCO-Polymers, Inc. v. Local 8-74, Oil, Chemical, and Atomic Workers Int'l Union, 671 F.2d 752, 755-56 (3rd Cir. 1982) (the contract's language "shall be subject to discharge" did not clearly suggest that the employee's discharge was mandatory, and the court allowed the arbitrator to apply "just cause" review to termination); Antonio Origlio, Inc. v. Local Union No. 830, Int'l Bhd. of Teamsters, No. 00-5298, 2001 U.S. Dist. LEXIS 24192, at **4-6 (E.D. Pa. Dec. 19, 2001) (contract contained a general "just cause" termination clause, and separately stated that "[i]n the event that an Employee knowingly operates an Employer's vehicle without a valid driver's license, such Employee shall be subject to termination;" arbitrator had authority to find that termination based on that ambiguous clause should have complied with "just cause" provision); Kerr-McGee Chemical Corp. v. United Steelworkers of Am., 800 F. Supp. 1405, 1407, 1410 (N.D.Miss. 1992) (contract contained "just cause" termination clause and, separately, provided that an employee would be "subject to immediate discharge" for testing positive for drugs; arbitrator had authority to find that positive drug test was not automatic "just cause" for discharge because the phrase "subject to" did not mean "automatic").
See, i.e., Warrior Gulf Navigation Co. v. United Steelworkers of Am., AFL-CIO-CLC, 996 F.2d 279, 280-81 (11th Cir. 1993) (contract contained "just cause" termination clause and also provided that employee who twice tested positive for drugs would be "subject to immediate discharge;" court held arbitrator could not apply "just cause" in evaluating termination because "subject to immediate discharge" phrasing unambiguously "gives management the complete discretion to fire an employee."); see also Excel Corp. v. United Food Commercial Workers Int'l Union, Local 431, 102 F.3d 1464, 1470 (8th Cir. 1996) (endorsing Warrior Gulf's interpretation of "subject to discharge" language as mandatory); Dobbs, Inc. v. Local No. 614, Int'l Bhd. of Teamsters, 813 F.2d 85 (6th Cir. 1987) (arbitration award reinstating discharged employee failed to draw its essence from the contract where work rule provided that an employee was "subject to discharge" after three months of habitual tardiness and the employee was habitually tardy for three months).
See, i.e., Bruce Hardwood Floors v. S. Council of Indus. Workers, 8 F.3d 1104, 1105, 1108 (6th Cir. 1993) (contract contained "just cause" clause and a clause stating that "an employee may be discharged immediately for sleeping on duty," court found that phrase "may be discharged" created ambiguity, and arbitrator had authority to interpret "just cause" clause as applying to discharge of employee who slept on job).
I conclude that the Arbitrator's interpretation of ¶ 6.25's "subject to discharge" language was a permissible one. As the Sixth Circuit in Bruce Hardwood Floors held:
Whether the arbitrator's reading of the agreement was strained or even seriously flawed, and whether the . . . per se just cause analysis is more plausible, is irrelevant. The arbitrator arguably construed and applied the agreement, and this is precisely what the parties bargained for him to do.8 F.3d at 1108. Assuming the Arbitrator found Price had taken advantage of the benefit plan, the "subject to discharge" penalty provision at ¶ 6.25 was not so clear as to "deny the arbitrator the authority to interpret the agreement as he did." Eberhard, 868 F.2d at 891. This court is without authority to find that the Arbitrator's interpretation was impermissible.
IV. Other Contract Ambiguity
Additionally, the collective bargaining agreement contained other ambiguities, giving the arbitrator the authority to award reinstatement to Price regardless of the proper interpretation of the phrase "subject to discharge." See Eberhard, 868 F.2d at 892-93 (where parties disagreed about whether "subject to discharge" rule made discharge mandatory or permissive, Sixth Circuit declined to decide the meaning of the phrase, because, in any event, the contract did not define contract's "just cause" provision or remove the arbitrator's authority to review penalties). No contract provision clearly limits the arbitrator's authority, the "just cause" clause and the "subject to discharge" clause do not refer to each other, and "just cause" is undefined.
First, the contract's "just cause" provision is undefined. The contract did not define "taking unfair advantage" of BP's benefits plan as just cause for termination. The only provision of the contract dealing with termination, at ¶ 3.38, lists five ways an employee may be terminated. One is "just cause." ¶ 3.38(c). "Taking unfair advantage" of the benefits program is not on the list, either expressly or by implication. Moreover, ¶ 6.25 does not state that taking unfair advantage of the disability plan is just cause for discharge. The relationship between the two paragraphs is ambiguous, and the Arbitrator had the authority to interpret them in any rational manner. The Arbitrator's interpretation does not conflict with the express terms of the agreement, and can be rationally derived from its terms.
Paragraph 3.38, titled "Termination of Service and Loss of Seniority," states:
An employee's services with the Company will be terminated and he will lose his seniority under the following conditions: (a) if the employee is off duty due to injury or illness for twenty-four (24) consecutive months (special consideration will be given by the Company and the Union to an employee injured at work and receiving workers' compensation beyond his twenty-four (24) month period; (b) if the employee resigns, (c) if the employee is discharged for just cause; (d) if the employee fails to return to work within five days after being notified by registered mail at his last known address to report for work without a satisfactory explanation for his absence, and, (e) if the employee is absent for five (5) working days without a satisfactory excuse for his absence.
(Doc. 1, Exh. A at BP00012).
Second, the collective bargaining agreement's arbitration section does not remove an arbitrator's authority to review penalties. (Doc. 1, Exh. A at BP00026-27). In fact, ¶ 9.28 says, in part, "The arbitration award shall be final and binding on both parties." (Doc. 1, Exh. A at BP00027). This could be construed as allowing the arbitrator final review of penalties. The Arbitrator in this case was not violating any provision of the collective bargaining agreement when he reinstated Price. Compare Toledo Blank, Inc. v. Teamsters Local 20, 227 F. Supp.2d 761, 769 (N.D.Ohio. 2002) ("the contract did not contain any . . . clause removing the Arbitrator's remedial powers, [which] gave the Arbitrator authority to interpret the contract and apply the ambiguous `just cause' [provision]"); with Int'l Brotherhood of Electrical Workers, Local 429 v. Toshiba America, Inc., 879 F.2d 208, 210 (6th Cir. 1989) (contract included express provision limiting arbitrator's authority to review discipline imposed under no-strike clause; when arbitrator reinstated employee, court held that arbitrator could not order reinstatement).
CONCLUSION
It is not clear whether the Arbitrator found Price had taken unfair advantage of the benefit provisions of the plan. Even if this was the Arbitrator's finding, his interpretation of ¶ 6.25 was plausible. Finally, even if ¶ 6.25 unambiguously required Price's termination, that clause's relationship to the contract's "just cause" clause was sufficiently ambiguous to allow the Arbitrator to interpret the contract in the manner he did. Consequently, the Arbitrator's award draws its essence from the contract and must be enforced.
It is, therefore, ordered that:
1) BP's motion for summary judgment be, and hereby is, denied; and
2) The Union's motion for summary judgment be, and hereby is, granted.
So ordered.