Steelworkers International Union
OPINION AND AWARD
In the matter of Arbitration
– Albertville Sawmill
Steelworkers International Union
Case No. 05-52339
of Hearing – November 28, 2006
An arbitration hearing was conducted on November 28, 2006 at Guntersville, Alabama.
At the hearing the parties offered the collective bargaining agreement and the grievance trail as joint exhibits.
The parties mutually agreed that the issue before this Arbitrator was: “Did the Company violate the collective bargaining agreement by posting in the Green End Department, on “A” shift, the opportunity to train and become qualified to perform the Filer 1 position?
In addition to the joint exhibits and verbal testimony, the parties submitted documents outlining the chronology of events giving rise to this grievance. Both parties timely submitted post hearing briefs. All materials were reviewed and considered by the Arbitrator in reaching this decision.
Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases.
The parties agreed that the matter was properly before the Arbitrator for determination. The Arbitrator requested permission to submit the award for consideration for publication and permission was granted.
VII – Adjustment of Complaints
Article VIII - Seniority
is a state of the art Sawmill Operation located in Albertville, Alabama.
The Operation employs 146 employees, 128 of whom are members of the
The parties have been involved in a collective
bargaining relationship for the last twenty eight years.
They are currently governed by a six year agreement that commenced on
April 21, 2003 and continues through 2009.
On May 13, 2004 Arbitrator James J. Sherman of
Tampa, Florida issued an award in FMCS Case Number 041022-00653-3 in a dispute
between the same parties. The issue
in that case was: “whether the Company
violated the contract when it failed (refused) to honor Mr. Parrish’s request
for training for the Filer II position. If
so, what is the proper remedy?”
that case an employee had grieved non selection for training to be a “Filer
II.” Management did not select
this employee but picked a less senior person.
It appears from the record that the employee selected, who was a “Filer
1” did not want to be trained as a “Filer 2.”
The arbitrator denied the grievance based upon
a series of documents not in evidence in the instant grievance.
After considering all the evidence he determined that management did have
the right to select the less senior “Filer 1.”
In the discussion (dicta) of his award the arbitrator made a statement
that has led to this hearing:
“But when the parties drafted the document identified as Union Exhibit
# 3, there is no doubt that they recognized that the Filers were a separate
June of 2004, soon after the Sherman award, the Union grieved the fact the
company failed to recognize the Filer classifications as a separate department.
It cites sections C and D or Section VIII (Seniority) as having been
violated along with an alleged violation of the “recent arbitration ruling.”
This Arbitrator was selected to decide the
OF THE UNION
Sub District Director Larry Jackson of the
United Steelworkers represented the Local Union.
He explained that since the 2004 arbitration decision PACE and the
Steelworkers have merged and the current local is a part of the United
The grievance before the Arbitrator involved a
job posting in the “Green End Department to train and become (a) (sic)
qualified to perform the Filer 1 position.
The Union explained that during the previous
arbitration the local union took the position that the Filing room was not a
separate department. The Union
notes that Arbitrator Sherman ruled that the Union view on this question was not
The Union does not dispute that the collective
bargaining agreement (CBA) lists only four (4) departments but notes that the
Union has “lived by and honored the decision of the Arbitrator in the above
The Union notes that the Company admitted in
testimony that no one from the Company notified the Arbitrator that they
disagreed with the decision or that an error had been made.
OF THE COMPANY
The Company notes that the parties negotiated
into the current agreement provisions that would streamline the training and
The Company determined in May, 2004 to
establish an entry level position of filer 1.
On May 20, 2004 the company posted a training opportunity for the filer 1
position for ten (10) days. No one
bid on the training opportunity so the company assigned a junior employee from
within the Green End Department to the training for the filer 1 position.
The Company states that the Union is attempting
to recognize the Filer Classifications as a separate department.
The Company acknowledged that the Arbitrator
did refer to Filer’s I,II,III & IV as a separate department but states the
Company should not be bound by what it views as a “misstatement or
misunderstanding of an Arbitrator.” 
The Company notes that the statement of the
Arbitrator about the separate departmental status of filers was not germane to
the issue presented at that time.
Finally the Company calls the attention of the
Arbitrator to Section VII, page 8 of the collective bargaining agreement where
SCOPE OF THE IMPARTIAL ARBITRATOR: The impartial
arbitrator shall have jurisdiction and authority only to interpret, apply, or
determine compliance with the provisions of this Agreement as shall be necessary
to the determination of grievances appealed to him.
He shall have no authority to add to, detract from, or alter in any way,
the provisions of the Agreement, nor to establish or change any wage rate.
The respective positions of the parties were
clearly presented and easily understood. Likewise
the facts in this matter are not in dispute.
In a previous decision one of the arguments
advanced by the Union was that the filer classifications were located within the
Green End Department. The
Arbitrator rejected that argument.
Since that time the Union has taken the 2004
Arbitration Decision at face value and has abided by the concept that the filer
classifications constitute a separate department.
The Company, on the other hand, believes the
language negotiated in 2003 is clear on its face and that they have followed the
language in posting the training opportunity for filer I.
They believe the Arbitrator misspoke regarding the filer classifications
constituting a separate department, and his statement which was not central to
the decision in the 2004 case cannot overcome the clear language of the
agreement and the clear language of ATTACHMENT III.
Neither party is attempting to re-litigate the
previous case but they are seeking clarity for their future relationship.
To decide this case I need to examine the role
of an arbitration decision in controlling the future interpretation of specific
Said another way, the real question relates to the obligation of an
Arbitrator to be bound by previous arbitration decisions reached on the same
If this were a Court proceeding a previous
decision often establishes the doctrine of stare
decisis which is defined
as: “to stand by things decided or the doctrine of precedent, under which it
is necessary for a court to follow earlier judicial decisions when the same
points arise again in litigation.”
While arbitrators are not strictly bound by formal rules of evidence,
most arbitrators wish to acknowledge and abide by previous arbitration decisions
in order to assist the parties in establishing and maintaining stable
relationships and to remove the necessity, inconvenience, and expense of
Stare Decisis when applied in arbitration does not bind the
arbitrator to blindly follow the decision of a previous arbitrator, but does
force or influence for deciding the new matter.
The other legal theories the Union may be
depending upon are res judicata or collateral
estoppel. All three
propositions deal with the basic idea that once a matter is settled through
arbitration, it does not need to be revisited.
This case does not meet the tests of any of the three.
Chief Justice Cordozo in a Schuylkill Fuel Corporation case
said the following regarding all three doctrines:
“A judgment in one action is conclusive in a later
one not only as to matters actually litigated therein, but also as to any that
might have been so litigated, when the two causes of action have such a measure
of identify that a different judgment in the second would destroy or impair
rights or interests established by the first.”
Arbitrator Richard John Miller, in citing this
“To be applicable in any forum these principles
require identity of causes of action (issue) and of persons and parties to the
action, including quality of persons for or against whose claim is commenced.
In addition, before any judgment will be accorded any rights under these
principles, it must be shown a ‘final judgment,’ ‘on the merits’ and
rendered by a competent arbitrator.” 
In this case, there was no final judgment on
the merits of the question of a separate department composed only of filer
classifications. The question
before Arbitrator Sherman was a totally different one.
Even with this predisposition to honor previous
arbitration decisions, arbitrators are not only able to stray from the precedent
of previous decisions, we have an obligation to examine each new and unique
Arbitrator Howard Bard noted in 1984 “The
right of this Arbitrator to vary from precedent or to reinterpret precedent is
reiterated in the Code of Professional Responsibility…” 
Code of Professional Responsibility for Arbitrators adopted by the National
Academy of Arbitrators, the American Arbitration Association, and the Federal
Mediation and Conciliation Service, in effect May 29, 1985, Chapter 1, Section
G, page 12 states: (1) an arbitrator must
assume full personal responsibility for the decision in each case decided.
Edgar A. Jones Jr. outlines when circumstances may require an arbitrator to
alter or set aside a previous award 
This situation does not rise to this level in that neither party is
requesting the ruling of Arbitrator Sherman be overturned in the 2004 case.
Rather the question of precedent is being raised as it relates to an
assumption reached in the dicta of the decision.
be more specific, there are a number of situations when an arbitrator is free to
amend or alter a precedent.
When the prior decision was, in the opinion of the arbitrator, clearly
When the decision was made without the benefit of some important and
relevant facts or considerations, or
When new conditions arise questioning the reasonableness of the continued
application of the decision. 
Fifth Edition of Elkouri notes “Courts
have asserted that the “black letter” law is that arbitration awards are not
entitled to precedential effect as are judicial decisions, nor are they
considered to be conclusive or binding in subsequent cases involving the same
contract language but different incidents or grievances.”
Arbitrator Sherman is an experienced and well
respected Arbitrator who has decided thousands of cases.
As a member of the National Academy of Arbitrators and well published, he
is highly regarded in the field of Arbitration and I view his work with the
However, Arbitrator Sherman was selected to
hear a different case and decided it on the basis of the evidence and testimony
presented to him.
The central issue before him in the 2004 case
related to automatic progression between positions.
The issue of whether or not the four levels of Filer classifications
constitute a separate department was never before him.
I am in no position to determine if his conclusion and statement
regarding a separate department was erroneous, or based upon different facts he
had before him.
I must make my decision on the documents and
case presented to me.
To make that determination I turn first to the
collective bargaining agreement. Section
VIII, page 10 states:
“Department Seniority – Defined as the
length of service in one of these recognized departments:
GREEN END – Includes entire Green End production through Sorter.
MAINTENANCE – Includes Maintenance Storeroom.
DRY END – Includes Planer Mill-Stacking and Drying, Boiler, Kilns and
Second Shift Dry End.
The contract lists only four departments. The legal maxim of expressio unius est exclusio alterius (to express or include one thing implies the exclusion of the other.) If the parties had intended to include additional departments they arguable would have listed them here.
The Union held the same view prior to the 2004 Arbitration and only the conclusion of the arbitrator in that case convinced them to change their view.
Sherman apparently read this provision in the same way when he stated in his
a careful reading of the contract, the Arbitrator concluded that there were
ambiguities. For example, Section
VIII on page 8 defines “Department Seniority,” and sets forth what appears
to be all the departments in the plant. But
there is no mention of the grouping of jobs which the Company calls “The
there were no other contract provisions dealing with this subject matter, the
Arbitrator would have to agree with the Union that Management had no right to
treat the grouping of Filers as a separate “department.”
But a careful reading of the document entitled “Union Exhibit #3,”
indicates that the parties recognized and agreed that Filers I,II,III and IV
constituted a “Department.”
FILING ROOM CLASSIFICATIONS
Effective on the first Monday following the date of Ratification, the positions in the Filing Room will be changed to the following:
IV - Journeyman band saw filer
III - Band saw and circle saw filer
II - Circle saw filer and knife grinder
Filer I - Guide and knife grinder
The sub-title of the document clearly notes “Filing Room” followed by “Green End Department.” Nothing in the document appears to establish a different department from the four listed in the collective bargaining agreement.
Based upon the evidence presented, my reading
of the collective bargaining agreement and management exhibit 1 (purported to be
Union Exhibit #3 from the 2004 case), I cannot find any violation of the
collective bargaining agreement or any reason to compel the Company to recognize
the Filing Room as a different department.
For the reasons herein stated, the grievance is
Issued at London, Ohio this ___ day of January, 2007.
N. Eugene Brundige, Arbitrator
 OPINION AND AWARD issued May 13, 2004 at Tampa, Florida by Arbitrator James J. Sherman.
 Award. Page 8.
 Union Brief, Page 3
 Company’s Opening Statement.
 Black’s Law Dictionary, Seventh Edition. 1999. page 1414.
 Elkouri & Elkouri, HOW ARBITRATION WORKS, 5th Edition, at page 608.
 Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 New Your 304, 306-307 (1929).
 87 LA 40 North Star Steel and United Steel Workers of America, Local 7263.
 93 LA 865 McQuayperfex Inc, and Sheet Metal Workers’ International.
 Todd Shipyards Corp., 16 LA 27, 28. (1977)
 Elkouri & Elkouri, HOW ARBITRATION WORKS, 4th Edition, at page 428.
 Elkouri & Elkouri, HOW ARBITRATION WORKS, 5th Edition, at page 626.