Chevron Oronite Company LLC v. United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, Local 13-447
Filing
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ORDER AND OPINION: ORDERED that the 16 Motion for Summary Judgment filed on behalf of plaintiff Chevron Oronite Company, LLC (Chevron) is DENIED; and FURTHER ORDERED that the 15 Motion for Summary Judgment filed on behalf of defendant United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial andService Workers International Union, Local 13-447 (Union) is GRANTED.Signed by Judge Stanwood R. Duval, Jr on 8/27/2012. (my, ) M
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHEVRON ORONITE COMPANY, LLC
CIVIL ACTION
VERSUS
NO. 11-0560
UNITED STEEL PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED-INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION,
LOCAL 13-447
SECTION “K”(3)
ORDER AND OPINION
Before the Court are the cross motions for summary judgment filed on behalf of plaintiff
Chevron Oronite Company, LLC (“Chevron”) (Doc. 16) and defendant United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International
Union, Local 13-447 (“Union”) (Doc. 15). Having reviewed the pleadings, memoranda, and relevant
law, the Court, for the reasons assigned, denies Chevron’s motion for summary judgment and
grants Union’s motion for summary judgment.
Background
Chevron employed Russell Rogers at its Oak Point Plant in Belle Chasse, Louisiana as a
mechanic in the maintenance department. A collective bargaining agreement (“CBA”) exists
between Chevron and the Union under which Union represents a bargaining unit of maintenance and
production employees at the Oak Point Plant, including Rogers.
On June 21, 2010, a crew of contractors employed by Turner Industries (“Turner”) worked
to unbolt and remove a pipe, estimated to weight 1,500 - 1,700 pounds from the “SAM” unit at the
Oak Point Plant in order to permit the pipe to be cleaned. Rogers assisted the Turner crew by
operating a 30-ton mobile crane to lift the pipe off of the SAM unit after Turner employees
completely unbolted the pipe from the SAM unit. Turner employees David Rico and Bryon Hill
were working approximately twenty (20) feet above the ground, from a man-lift to unbolt the final
bolts on the pipe. After Turner employees removed the final bolt, the pipe began to sway. Rico
signaled Rogers to lift the pipe but received no response. Having received no response, Rico
signaled a ground man concluding that because he could not see Rogers maybe Rogers could not
see him. When Rogers failed to respond to Rico’s signal, members of the Turner ground crew began
shouting at Rogers to get his attention. They proved unable to attract Rogers’s attention. Ground
crew members then approached the mobile crane, looked into the cab of the crane, and saw Rogers
slumped forward with his head on his chest to the right . The ground crew continued yelling at
Rogers, ultimately getting his attention, at which point Rogers lifted the pipe. After completing the
work, Turner employees reported the incident to a Turner manager who in turn reported it to
Chevron.
Chevron’s Maintenance Supervisor Lee Stewart and James Griggs, Chevron’s Human
Resources Business Partner investigated the incident. The investigation included obtaining two
statements from each of the Turner employees who witnessed the incident, interviewing Rogers,
and photographing a recreation of the incident. The Chevron Plant Management Team concluded
that Rogers was inattentive and asleep while operating the crane and terminated his employment for
placing workers in severe jeopardy as a result of his inattention.
After the Union grieved Rogers’s discharge the matter proceeded to arbitration. The issue
framed to the arbitrator was “[d]id the Company have just cause to terminate the Grievant Russell
Rogers? If not, what is the appropriate remedy?” Following a hearing, the arbitrator opined:
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Discussion
Did the Company have just cause to terminate Russell Rogers for
sleeping on the job and placing fellow workers at serious risk? To
better understand the process of determining just cause for the
Rogers’ termination of employment, I relied on the tests of just cause
as described by Koven and Smith and information from the Bureau
of National Affairs.
First Test
Was the employee adequately warned of the consequences of his
conduct? There is no question that Rogers knew that sleeping on the
job would result in serious consequences. The Company was clear
in its communications to employees that, due to the nature of the
work and process involved in the production of its products,
inattentive employees could cause death or serious injuries to
themselves and others.
Second Test
Was the employer’s rule or order reasonably related to efficient and
safe operations? There is no question about this test, particularly
with the issue related to safe operations necessary in this case. The
company was not unreasonable in this rule for all employees.
Third Test
Did management investigate before administering the discipline?
The investigation of the incident was about as complete as it gets.
Interviews were conducted with Rogers, coworkers, supervisors, as
well as Union representatives. The site of the incident was examined
from every angle, photographed and documented.
Fourth Test
Did the investigation produce substantial evidence or proof of guilt?
Rogers testified that he may have dozed off but it was only for a very
short time. But the evidence from many coworkers presented by the
Company was overwhelmingly credible that Rogers was “asleep at
the wheel” for a long time, and that significant hollering and
screaming was required to wake him. The only way a person can
determine how long he slept is by timing when he went to sleep and
when he awoke. . .. or being told by a person with first hand
knowledge. Sleep is defined as a state of unconsciousness. In this
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state, the brain is more responsive to internal stimuli than external
stimuli.
The Union argued that the Turner Industries workers doing contract
work for the Company were biased in their testimony associated with
the events which led to Roger’s termination of employment. A
significant amount of the Company’s evidence presented at the
hearing was provided by the Turner employees. The Union
suggested that evidence presented by Turner workers cannot be
trusted. At issue is whether there was animosity between contract
workers and union workers at the Company.
The Turner workers resisted appearing at the arbitration
hearing. Several of them were subpoenaed to appear - they weren’t
happy about testifying. One in particular was upset that he had been
“commanded” to be at the hearing. Clearly the Turner workers did
not like the idea of being part of a termination of another worker,
union worker or not. Often times, there are issues inherent in a
company where union workers comingle [sic] contract workers.
Many union workers believe that contract workers take work that
would otherwise belong to union workers. However, there was no
evidence that the contract workers were out to harm Rogers.
Fifth Test
Were the rules, orders, and penalties applied evenhandedly and
without discrimination? There was no compelling evidence that the
Company had been lax in its position regarding unsafe practices and
sleeping on the job.
Sixth Test
Was the penalty reasonably related to the seriousness of the offense
and the past record? The Company’s decision to terminate Rogers
employment was excessive.
Rogers put himself and others in serious jeopardy. It was either luck
or Providence that no one was killed or injured. The Company came
down hard on Rogers. But, too hard it seems to me. A month off
without pay with stipulations once he returned would be more
reasonable.
Decision
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Rogers will be reinstated. The termination will be reduced to 4-week
suspension without pay. His benefit package will be reinstated
retroactively. The Company will pay Rogers back pay at his regular
rate exclusive of any missed overtime, holiday, shift differential, or
other monetary considerations.
At the Company’s option, Rogers may be evaluated by a Company
designated physician to determine if his propensity for falling asleep
at work is evidence of a health issue.
Doc. 16-11, p.11 - 13 (footnote and citation omitted).
Thereafter Chevron filed suit seeking to vacate the arbitrator’s award on the basis that the
award failed to draw its essence from the CBA.
Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment should
be granted "if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." The party moving for summary judgment bears
the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of the record "which it believes demonstrate the absence of a genuine issue of
material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir.1996), citing Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 912-13 (5th Cir.), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 2552-53, 91 L.Ed.2d 265 (1986). When the moving party has carried its burden under Rule
56, its opponent must do more than simply show that there is some metaphysical doubt as to the
material facts. The nonmoving party must come forward with "specific facts showing that there is
a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th
Cir.1995).
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“A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’ ” Pylant v. Hartford Life and Accident Insurance
Company, 497 F.3d 536, 538 (5th Cir. 2007) quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment evidence must be “viewed in the
light most favorable to the nonmovant, with all factual inferences made in the nonmovant’s favor.”
Bazan ex rel Bazan v. Hildago County, 246 F.3d 481, 489 (5th Cir. 2001), citing Anderson v. Liberty
Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
Law and Analysis
It is axiomatic that judicial review of an arbitrator’s award is “extremely limited.” American
Eagle Airlines v. Air Line Pilots Ass’n, 343 F.3d 401, 405 (5th Cir. 2003). “As long as the
arbitrator’s decision ‘draws its essence from the collective bargaining agreement’ and the arbitrator
is not fashioning ‘his own brand of industrial justice,’ the award cannot be set aside.” Weber
Aircraft, Inc. v. General Warehousemen and Helpers Union Local 767, 253 F.3d 821, 824 (5th Cir.
2001) quoting United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 98
S.Ct. 286 (1987). To determine whether the arbitrator’s decision “draws its essence from the
collective bargaining agreement,” the Court must first examine the terms of the CBA.
Article XVII of the CBA entitled “Safety and Health” provides in relevant part that
“[e]mployees are required to comply with all safety policies as established by the Company . . ..”
Doc. 15-3, Ex. 1.
Additionally, Article XX - Management Rights provides in pertinent part that
the Chevron “reserves and retains all rights . . . to establish and enforce work rules.” Doc. 15-3, Ex.
1.
Additionally, Chevron has promulgated the “General Instructions for Employees” (GIE)
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which includes a statement that “[w]orking safely is a condition of employment at the Oak Point
Plant and also states under the “General Plant Rules” that “[f]ailure to follow these rules can result
in disciplinary action which may include termination.” Doc. 15-5, p. 5. Under “Personal Safety”
the GIE states “[d]isregarding safety instructions or violating safe practices can lead to disciplinary
action, including discharge.”
Considering the specific provisions of the CBA, the Court concludes that the arbitrator’s
decision draws its essence from the CBA. Although the CBA sets forth the “Arbitration Procedure”
to be used when a grievance cannot be resolved through other means set out in the CBA, no
provision of the CBA either defines “just cause” or limits the arbitrator’s authority to review or
modify the penalty imposed on an employee. The significance of the absence of such provisions
cannot be overstated. Nothing in the CBA mandates termination for the violation of a safety rule.
Moreover, even assuming without deciding that the Management Rights article of the CBA grants
the provisions of the GIE the force of contract, nothing in the rules of the GIE mandates termination
for the breach of a safety rule. Although the GIE notes in Section 2.1 entitled “Responsibilities” that
“[w]orking safely is a condition of employment at the Oak Point Plant” and that “[e]ach employee
will be held accountable for his or her own safety performance,” the rules also state that a failure
to follow the rules “may include termination.” (emphasis added). The use of the permissive “may”
indicates that sanctions less than termination are contemplated and permissible under the GIE.
Therefore, the arbitrator’s remedy of a sanction less than discharge for a safety violation can
reasonably be construed as drawing its essence from the CBA.
Relying on E.L. DuPont de Nemours and Company v. Local 900 of the International
Chemical Workers Union, AFL-CIO, 968 F.2d 456 (5th Cir. 1992) and Delta Queen Steamboat Co.
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v. Dist. 2 Marine Engineers Beneficial Ass’n, AFL-CIO, 889 F.2d 599 (5th Cir. 1989) Chevron urges
that the arbitrator’s findings of fact constitute an implicit finding of just cause for discharge and that
considering that implicit finding of just cause, the arbitrator exceeded his authority by fashioning
a different remedy for Rogers’ carelessness on the job. The Court acknowledges that DuPont and
Delta Queen
permit an implicit finding of just cause, but concludes that those cases are
inapplicable. As previously noted, in assessing whether Chevron had just cause to terminate Rogers,
the arbitrator applied the analysis of just cause set forth in Just Cause: The Seven Steps, Adolph M.
Koven and Susan L. Smith (BNA). Under that analytical model, a factual finding of just cause is
not made independently of an overall determination of just cause. Rather, in the Koven and Smith
approach, the determination of whether the “degree of discipline administered by the Employer in
a particular case [is] reasonably related to (a) the seriousness of the employees proven offense, and
(b) the record of the employee in his service with the employer” is an integral component of the just
cause analysis.
Given the specific approach used by the arbitrator, it is not reasonable to
conclude that there was an implied finding of just cause, as there was in DuPont and Delta Queen,
and that the arbitrator exceeded his authority by modifying the remedy imposed by Chevron. The
arbitrator concluded that Rogers “put himself and others in serious jeopardy” which constitutes an
implicit finding that he violated a safety rule. However, because nothing in the CBA or the GIE
mandates that the failure to comply with a safety rule constitutes “just cause” for termination or
mandates termination of employment, the arbitrator did not exceed his authority in concluding that
there was not just cause for termination of Rogers.
Chevron also asserts that the arbitrator exceeded his authority because the remedy of
reinstatement violates . . . the issue stipulated by the parties, which authorized the Arbitrator to
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fashion a remedy only if he failed to find just cause for Rogers’ [sic] termination.” Doc. 16-1, p.2.
The parties stipulated the issue to be determined by the arbitrator as “[w]as the grievant, Russell
Rogers terminated for just cause? If not what is the appropriate remedy.” Doc. 15-2, p. 5, No. 27,
Doc. 19-1, p. 5-6, No. 18. The arbitrator concluded that there was not just cause for Rogers’s
termination. Having concluded that there was not just cause for the termination, the arbitrator was
authorized to determine the appropriate remedy. For the reasons stated herein above, a remedy less
than discharge did not exceed the arbitrator’s authority. Accordingly,
IT IS ORDERED that the “Motion for Summary Judgment” filed on behalf of behalf of
plaintiff Chevron Oronite Company, LLC (“Chevron”) (Doc. 16) is DENIED; and
IT IS FURTHER ORDERED that the “Motion for Summary Judgment” filed on and
defendant United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and
Service Workers International Union, Local 13-447 (“Union”) (Doc. 15) is GRANTED.
New Orleans, Louisiana, this 27th day of August, 2012.
STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT JUDGE
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