DATE:  January 12, 2005

 

TO           :     Cornele A. Overstreet, Regional Director

     Region 28

    

FROM     :     Barry J. Kearney, Associate General Counsel

     Division of Advice

                                                 

SUBJECT:     Graham County Electric Cooperative, Inc        512-5009-0100

                Case 28-CA-19979                                            

 

 

     This case was submitted for advice as to whether the Employer violated Section 8(a)(1) and (3) by filing and maintaining a Section 301 lawsuit which seeks to overturn an arbitration award in favor of the Union.  We conclude that the charge should be dismissed, absent withdrawal.

 

     The Employer has a long-established policy of requiring its employees who drive company vehicles to have valid driver's licenses. In November 2002, the Employer updated its policy to essentially provide for an automatic 30 day discipline where an employee's driver's license has been suspended for 30 days or less, and termination for any license suspension of greater than 30 days.  In 2003, employee John Curley had his driver's license suspended for a first offense of Driving Under the Influence, and the Employer suspended Curley for 30 days. The Union grieved the suspension as "excessive" and argued that Curley worked with a helper who could have driven the Employer's vehicle in Curley's stead.

 

     The arbitrator agreed that the 30 day suspension was excessive, noting that in his thirty years of practice he had never seen a policy that called for a mandatory 30 day discipline for a first DUI offense.  The arbitrator then recommended that all employees be advised that, in the future, the minimum likely discipline for a first DUI offense resulting in a 30 day license suspension would be one week.

 

     Article VII, Section 6 of the parties' collective-bargaining agreement defines the scope of an arbitrator's authority as follows:

 

The arbitrator shall have the jurisdiction and authority only to interpret, apply or determine compliance with the provision[s] of this agreement.  The arbitrator shall not have the jurisdiction or authority to alter, change, modify, add or subtract from this agreement or any provision to be incorporated in a new agreement or an extension of a renewal of this agreement.

 

In its Section 301 suit seeking to overturn the arbitration award, the Employer contends that the arbitrator's ruling was not an interpretation of the collective-bargaining agreement, but rather a re-writing of the agreement based on his sense of industrial justice, and exceeded the scope of authority that Article VII, Section 6 provides.   

 

 

     In Bill Johnson's Restaurant,^[1] the Supreme Court held that the filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if the suit was motivated by a desire to retaliate against those who exercise their Section 7 rights. In BE & K,^[2] the Supreme Court held that inferring a retaliatory motive from evidence of animus, in cases where a suit was reasonably based, was inappropriate because it would condemn "genuine petitioning."^[3]

 

Here, the Employer's suit is reasonably based. The arbitrator based his decision, at least in part, on extra-contractual considerations, and then re-wrote the Employer's discipline policy.  The Employer's argument that the award should be vacated because the arbitrator exceeded his authority is thus a reasonable one.  Since there is no evidence that the suit was filed only in order to impose the costs of litigation on the Union, it cannot be alleged as violative of Section 8(a)(1).

 

     Accordingly, the Region should dismiss the charge absent withdrawal.

 

 

 

B.J.K.