Does an “absolute cause” for discharge provision of a cba prelude a just cause analysis?

By John H Curley on April 21, 2019

Despite a cba’s inclusion of a provision containing a list of offenses which would provide “absolute cause” for termination, the Eight Circuit has upheld an arbitrator’s award reinstating an employee found to have committed the listed offenses. CenterPoint Energy Resources Corp. v. Gas Workers Union, Local No. 340

The applicable cba acknowledged the Company’s right to terminate employees for cause, but also included the following language:

Without excluding other causes for discharge, the following shall constitute absolute causes from which there shall be no appeal to negotiation or arbitration between the Company and the Union (except that the question of whether the employee has been guilty of the facts constituting such absolute causes shall be a negotiable controversy) namely:

1. Use of, or being under the influence of, alcohol or non-medical drugs at any time during the work day

2. Dishonesty

3. Neglect of Duty

4. Abuse of Sick Leave.

Grievant had been dismissed “for falsifying your time sheets and neglect of duty” on four dates. The dismissal was appealed to arbitration and was ultimately submitted to Arbitrator Richard John Miller for resolution. In his award Arbitrator Miller found grievant “guilty of dishonesty or neglect of duty on some of the days in question,” but concluded that termination was too severe for the offense. Rejecting the Company’s argument that he was without authority to modify the penalty once he found grievant had committed the offense in issue, the Arbitrator observed:

In reviewing the language of Article 26, it is clear that the Parties did not intend that any employee found to have committed one of the four listed offenses could be summarily discharged without regard to the factors arbitrators normally consider in determining whether there was just cause for discharge …
To interpret Article 26 in any other manner would violate all of the basic notions of fairness and due process firmly established in the history of industrial relations and implicit in Article 26, which also includes a just cause standard for discipline and discharge.

CenterPont sought to vacate the award, and the District Court agreed. (here) In accord with the position of the Company, the District Court concluded that the Arbitrator exceeded the scope of his authority by ignoring the “plain language” of the cba by reinstating grievant after finding he had engaged in the conduct alleged.

The Eight Circuit reversed. It noted that the Arbitrator’s decision turned on his interpretation of the language of Article 26, not simply his own notions of industrial justice:

Here, the arbitrator explained at length why he interpreted the contract to allow for review of the discipline. Even if there was serious error in the analysis, the arbitrator was arguably construing the contract.

In the Court’s view this distinguished this case from an earlier decision (Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert Co., 330 F.2d 562 ) in which the Arbitrator’s award simply disagreed with the Company’s decision but was not premised on any interpretation of the cba allowing such a result.

In light of its conclusion that the Arbitrator’s award arose from his interpretation of the cba, the Court found the award entitled to be confirmed.

The Fifth Circuit’s approach in somewhat similar cases is discussed in Fifth Circuit limits “implied finding” of just cause and More from the Fifth Circuit on “implied findings of just cause”