Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—S.D. Ohio: Award against employer vacated, arbitrator relied on own sense of industrial justice, (May 21, 2025)

By Ronald Miller, J.D.

By inserting a suspension requirement into the employer’s attendance policy, the arbitrator’s award plainly imposed an additional requirement that reflected the arbitrator’s own personal notions of fairness.

An employer was granted its motion for summary judgment to vacate an arbitration award that reinstated an employee terminated for an attendance violation. Although arbitrator did not act outside his authority when considering the fairness of the attendance policy, the award failed to draw it essence from the parties’ labor contract, ruled a federal court in Ohio. However, by inserting a suspension requirement into the employer’s attendance policy, the award imposed an additional requirement that “reflect[s] nothing other than the Arbitrator’s own personal notions of fairness, and his own sense of industrial justice.” Further, the award of reinstatement—as well as the backpay sought in the grievance—failed to draw its essence from the contract (Bway Corp. dba Mauser Packaging Solutions v. International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, Communication Workers of America, AFL-CIO, Local 84729, No. 1:24-cv-179 (S.D. Ohio May 20, 2025)).

The employer operates a manufacturing facility in Cincinnati, Ohio. A union represents some of the employer’s employees. As part of its representation, the union entered a collective bargaining agreement with the employer during the time of the alleged dispute.

Attendance policy. Section 14(H) of the collective bargaining agreement (CBA) permits the employer to determine and enforce reasonable work rules and regulations. Further, Section 14(B) provides that, unless otherwise restricted by the CBA, the employer retains the right to “layoff, suspend or to dismiss [e]mployees.” Accordingly, the employer implemented an attendance policy by which employees who missed work were assigned absenteeism points. Employees who reached eight points were subject to termination.

Termination for absenteeism points. On April 6, 2023, an employee called into work sick. The employer claimed the absence as unexcused, and issued the employee an absenteeism point, raising his total points to 8.5. On the advice of the employer’s human resource manager, the employee attempted to have the absenteeism point retroactively removed. He attempted to certify his leave under the FMLA by applying to the employer’s third-party administrator. The parties agreed that if the employee provided the necessary FMLA certification to the administrator within 15 days, the employer would revoke his additional absenteeism point. However, the administrator never received the employee’s certification. On May 11, 2023, the employer terminated the employee for violating the attendance policy.

Arbitration. On May 15, 2023, the union filed a grievance challenging the employee’s termination. The grievance requested that the employee be “made whole” for “any hours missed due to his unjust firing.” At the conclusion of the arbitration proceedings, the arbitrator reinstated the employee to his former position with full back pay except for one week: the equivalent of a suspension he should have received if the attendance policy was “more fairly applied.”

In reaching this award, the arbitrator noted that the employee’s absence did not impact the employer’s operations, that his doctor may have been the reason that his FMLA certification was untimely, and that the employer’s attendance policy was “unfair” to the employee because it did not require a suspension before termination. The arbitrator’s award also stated that he had the power to reinstate the employee because the employer “did not clearly show that reinstatement was ignored during the grievance process.”

Petition to vacate arbitration award. On April 1, 2024, the employer filed a complaint seeking to vacate the award because (1) the arbitrator exceeded his powers by adding a requirement to the CBA that the employee be suspended prior to termination, and (2) the arbitrator exceeded his powers by granting greater relief than what was requested in the grievance. For its part, the union sought to enforce the arbitration award. Both parties moved for summary judgment.

Scope of review. When courts are called on to review an arbitrator’s decision, the scope of the court’s review is limited to three questions: (1) “Did the arbitrator act ‘outside his authority’ by resolving a dispute not committed to arbitration?”; (2) “Did the arbitrator commit fraud, have a conflict of interest or otherwise act dishonestly in issuing the award?”; and (3) “[I]n resolving any legal or factual disputes in the case, was the arbitrator ‘arguably construing or applying the contract?’”

Arbitrator’s authority. The parties’ first dispute whether the arbitrator exceeded his authority. An arbitrator exceeds his authority only when the CBA does not commit the dispute to arbitration. The employer argued that the arbitrator exceeded the scope of the question by considering whether its attendance policy was fair.

After review of the CBA, the court found that the union’s argument was more persuasive. Neither the CBA nor the attendance policy contained any provision expressly limiting the arbitrator’s ability to consider fairness in his just cause determination. Accordingly, the court deferred to the arbitrator’s interpretation of the CBA which “permit[ted] arbitration of the fairness of the remedy, once a violation of the work rules is found.” Therefore, the arbitrator did not exceed his authority by considering the fairness of the employer’s attendance policy.

Interpretation of CBA. Having determined that the arbitrator acted within the scope of his authority, the court next turned to whether the arbitrator arguably construed the CBA. An arbitrator's award is legitimate as long as it “draws its essence from the [CBA], and is not merely his own brand of industrial justice.” An arbitrator’s award fails to draw its essence from an agreement when: “(1) it conflicts with express terms of the agreement; (2) it imposes additional requirements not expressly provided for in the agreement; (3) it is not rationally supported by or derived from the agreement; or (4) it is based on general considerations of fairness and equity instead of the exact terms of the agreement.”

The parties disputed whether the arbitrator reasonably construed the CBA when he considered a suspension requirement in the attendance policy and when he reinstated the employee.

Suspension requirement. The court first discussed the arbitrator’s suspension requirement. Once an employee accrues two points, he receives a verbal warning, after four points, a written warning, at six points, a final warning, and then at eight or more points, he is terminated. The arbitrator took issue with the attendance policy, noting that it fails to allow a “more traditional and frankly fairer approach to progressive discipline” by requiring a suspension before discharge. The arbitrator pointed out that the employee was never issued a suspension, and that “there is nothing in the record to clearly explain why Plaintiff’s absence policy skips suspension in the hierarchy of discipline.” Accordingly, the arbitrator ordered the employee’s reinstatement.

The CBA allowed the employer to both create work rules and enforce them. In exercising this discretion, the employer implemented the attendance policy with progressive discipline. By inserting a suspension requirement into the employer’s attendance policy, the arbitrator’s award plainly imposes an additional requirement that “reflect[s] nothing other than the Arbitrator’s own personal notions of fairness, and his own sense of industrial justice,” the court found.

Reinstatement. The parties also disputed whether the arbitrator arguably construed the CBA when he reinstated the employee. Here, the court found that the arbitrator ignored a provision of Section 9 of the CBA which plainly states that the arbitrator may not “grant any relief that [is] greater than that which was specifically requested in the [g]rievance when it was reduced to writing.” In the employee’s grievance, the union asked that the employee be made whole for “any hours missed due to [the employee’s] unjust firing.”

Here, the court found that the arbitrator’s award of reinstatement failed to draw its essence from the CBA. The employee’s grievance only requested backpay, and the arbitrator exceeded the requested relief by granting the employee reinstatement in addition, the court found.

Accordingly, the court granted the employer’s motion for summary judgment and vacated the arbitrator’s award.

The case is No. 1:24-cv-179.

Judge: McFarland, M.

Attorneys: Samuel Neal Lillard (Ogletree, Deakins, Nash, Smoak & Stewart) for Bway Corp. Pamela Marie Newport (Herzfeld, Suetholz, Gastel, Leniski and Wall) for International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, Communication Workers of America, AFL-CIO, Local 84729.

Companies: Bway Corp.; Mauser Packaging Solutions; International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, Communication Workers of America, AFL-CIO, Local 84729

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