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March 13, 1984

In the Matter of the Application of CHILDREN'S HOSPITAL OF BUFFALO, Petitioner,
BUFFALO & WESTERN N.Y. HOSPITAL & NURSING HOME COUNCIL, AFL-CIO, by its Treasurer, Frank H. Ervolino, and RONALD ZICCARDI, Respondents.

The opinion of the court was delivered by: ELFVIN


This Memorandum explains and supports my December 30, 1983 Order.

 The Children's Hospital of Buffalo, petitioner herein, seeks to vacate an arbitrator's award rendered in favor of the Buffalo & Western N.Y. Hospital & Nursing Home Council ("the Council"), the union of which employee Ronald Ziccardi is a member. The Council has moved for summary judgment on its cross-claim seeking confirmation of the arbitration award. See 9 U.S.C. §§ 9, 10 (1976). The Council has also requested an award of attorney's fees.

 The facts of this case are not complicated. During the Fall of 1981 Ziccardi, an employee of petitioner, was assigned to perform remodeling work at a house owned by petitioner. In late September two vises were discovered missing from the house. Upon being questioned with regard to the vises, Ziccardi, as a union steward, agreed to "look into" the matter in an attempt to retrieve the vises. How aggressively Ziccardi sought to secure the return of the vises is subject to question. Ziccardi said that he knew or had discovered who had absconded with the devices, but refused to reveal to petitioner's management the culprit's identity. The vises were subsequently returned after Ziccardi had been discharged from petitioner's employ, such discharge being the gravamen of these proceedings.

 On October 16, 1981 Ziccardi removed a sheet of plywood from petitioner's hospital without first seeking or obtaining permission. Ziccardi alleges that he thought the plywood was scrap and, inconsistently, that he intended only to borrow it. He had been apprehended by petitioner's hospital's Director of Safety and Security before he had left the premises. On October 19, 1981 Ziccardi was discharged as an employee for his refusal to cooperate with petitioner in its attempt to obtain the return of the missing vises and for his attempt to remove the plywood without prior authorization.

 Ziccardi subsequently filed a grievance contesting the validity of the discharge under the terms of the collective bargaining agreement ("the cba") between petitioner and the Council. *fn1" An arbitration hearing was held and the arbitrator rendered his decision March 25, 1982. He found that Ziccardi had attempted to remove the plywood without prior authorization in violation of established policy and that Ziccardi's behavior was disloyally passive with regard to the vises. He found that the infractions were not trivial and warranted severe discipline. The arbitrator further found, however, that discharge from employment constituted excessive discipline. Specifically, the arbitrator found that Ziccardi had not been discharged for "just cause" and therefore ordered petitioner to reinstate Ziccardi with full seniority but without back pay.

 Petitioner contends that the arbitrator exceeded the authority given him by the cba in imposing a "just cause" standard for discharge. *fn2" See 9 U.S.C. § 10(d). It argues that the cba expressly does not limit its authority under its Article III to "suspend, discharge or otherwise discipline employees," and that there are no express contractual limitations of the grounds for which petitioner might discharge an employee. It asserts that it is thus not required to rise to the standard of just cause before instituting disciplinary action against an employee. Petitioner is not so bold as to assert that this power can be wielded in an arbitrary and capricious manner, but rather urges that its conduct is regulated only by the broader or less stringent standard of discharge for "cause."

 The Council contends that petitioner's power under Article III of the cba is limited by the cba's Article VI, section 5, which provides in part:

 "[A]n employee who is found by an arbitrator to have been unjustly discharged or suspended shall be reinstated with full seniority."

 Respondent argues that the term "unjustly" limits petitioner's discretion to discharge or suspend an employee and that the arbitrator was not in error in finding that Ziccardi was not discharged for just cause. Respondent further asserts that, by allowing the grievance to go to arbitration, petitioner assented to the just cause standard for discharge.

 There is unresolved uncertainty whether petitioner assented to the criterion of just cause. The arbitrator's decision states as the issue: "Was Ronald Ziccardi terminated for just cause? If not, what shall the remedy be?" Because Paragraph 10 of the Petition to the State court says that "[p]etitioner never agreed and, in fact, objected at the hearing to the inclusion of the "just cause" standard in the foregoing statement [that abovequoted as the issue]," various affidavits were forthcoming. Howard G. Foster, the arbitrator, supplied an affidavit (sworn to May 10, 1982), in which he said that he had at both parties' request "re-reviewed" his hearing notes and "my recollections" of the hearing and that petitioner at no time had disagreed with or objected to the standard of just cause although he could not say that such had been the subject of a stipulation. He cited his "standard procedure," on the various occasions when he had served as an arbitrator, to seek at the commencement of the hearing the parties' statement of the issue and to note in his records any objections to "the proposed issue." The issue was, he avers, as set forth at the head of his decision. Hunter says that none of petitioner's representatives ever objected to the issue of just cause. He invites attention to the final paragraph of the March 12, 1982 letter to the arbitrator from petitioner's Associate Director for Personnel wherein the addressee was urged to decide that Ziccardi "was properly terminated for cause." For some unproclaimed reason he says that this is "contrary to Petitioner's contention;" such patently is not true in that Petitioner clearly attacks the utilization of the standard or yardstick of just cause -- albeit that Petitioner in Paragraph 11 does draw a comparison between just cause and "legitimate reasons" which latter term is expressly set forth in this cba. The letter is Exhibit 2 to Hunter's affidavit and Exhibit A to the June 14, 1982 affidavit of the Associate Director, Ronald R. Walther. Both Walther in his affidavit and Paul A. Palumbo, petitioner's Director of Safety and Security, in his affidavit of the same date set forth that a discussion of "just cause" versus "cause" had ensued after Walther's and Hunter's opening statements to the arbitrator, that Walther consistently and repetitively objected to the former and that there never was any agreement on such point. In the second paragraph of his March 12, 1982 letter Walther wrote that the issue to be decided was whether the termination had been for cause.

 Section 1 of Article VI of the cba, while noting the finality of the arbitrator's determination, specifies that "[t]he party wishing to arbitrate must * * * notify the other party in writing, of its desire to arbitrate, setting forth specifically the nature of the dispute to be argued." (Emphasis supplied.) Section 7 of Article VI forbade Ziccardi from instituting the arbitration, although he signed the grievance; the necessary inference is that the Council prepared and issued the notice to arbitrate. There is nothing before me to show what were the contents and phraseology of the notice. If it had noted a discharge without just cause as the nature of the dispute to be argued, petitioner very properly would have been hoist by its own petard if it proceeded into arbitration without liminally attacking such recitation of the issue.

 Whatever, it is my opinion that the arbitrator properly formulized the issue.

 The cba, as others of its genus, is a "working document" that expresses and exists in the context of the common law of the workplace. It is a contract, and yet ought not to be subjected to nitpicking or parsing. This cba is not aptly constructed in regard to the issue in hand. Admittedly, controversies often arise which were not, and frequently could not reasonably have been, foreseen when the agreement was reached. A cba must be succinct and understandable; it should not be a tome or treatise. Nevertheless it is not understood why, in this very important facet of the employer-employee relationship, it could not have set forth the applicable standard clearly, rather than by implication. Wages, vacations, leave and working conditions are obviously important aspects of the relationship but discharge or termination of employment is a core item. Petitioner's prerogatives are set forth in Article III: "Except to the extent abridged by a specific provision of the Agreement, [petitioner] reserves and retains, solely and exclusively, all of its inherent rights to manage the Hospital, as such rights existed prior to the execution of this Agreement with the Union. The sole and exclusive rights of [petitioner] which are not abridged by this Agreement shall include, but are not limited to, its rights * * * to lay off, terminate or otherwise relieve employees from duty for lack of work or other legitimate reasons, and to enforce rules for the maintenance of discipline; to suspend, discharge or otherwise discipline employees * * *, provided, however, that the Management Prerogatives outlined above shall not interfere with any of the rights of employees * * * as set forth in this Agreement." I find no limitation in Article III on petitioner's rights to discharge employees at will, inasmuch as I construe "discharge" to be a matter of discipline and not to be embraced in the foregoing reservation of right to "lay off, terminate or otherwise relieve employees from duty for lack of work or other legitimate reasons," despite petitioner's fastenting upon "legitimate reasons" as a justification for Ziccardi's discharge. Nevertheless, even petitioner does not contend that its prerogatives extend to being able to give an employee his or her walking papers without ground or reasons. It does, of course, contend that "for cause" is sufficient to such end. As noted, the power to "suspend, discharge or otherwise discipline" employees springs untrammeled from Article III but Article III is not the entire document and the cba must be viewed as a whole. Some support for petitioner's contention is found in section 5 of Article V (Leaves of Absence) which states: "Misrepresentation of the reason for a leave shall be cause for termination." (Emphasis supplied.) I construe "termination" to mean "discharge" so as to place it among disciplinary actions *fn3" rather than those other employment-affecting steps ("lay off, terminate or otherwise relieve employees from duty") which can be taken "for lack of work or other legitimate reasons." So, section 5 of Article V sets a cause standard for discharge. Except for section 5 of Article VI (Grievance Procedure) -- to which I will soon refer -- nothing more is said in the cba as to the criterion for the disciplinary act of discharging an employee. This despite the verbosity in section 4 of Article XI (Promotions) which allows an unpromoted employee to grieve concerning petitioner's determination of his or her qualifications and places upon such employee the burden of showing "that the exercise of [petitioner's] discretion in the matter was improper and without foundation in fact." The prerogative of promoting employees also springs untrammeled from Article III. To my mind, section 5 of Article VI installed a governor on petitioner's otherwise naked power to discipline by discharge. The third and final sentence of that section says: "Further, an employee who is found by an arbitrator to have been unjustly discharged or suspended shall be reinstated with full seniority." (Emphasis supplied.) I need not be concerned with the apparent nonapplicability of such provision to "other disciplinary action;" this case involves a discharge and the quoted provision covers such in haec verba. In this controversy whether "for cause" or "for just cause," what does "unjustly" mean or connote? It is clear, and I so hold, that what the arbitrator was to decide was whether Ziccardi had been unjustly discharged. "Unjustly" does not, per se, appear in Black's Law Dictionary (Revised Fourth Edition, 1968) ("Black") or in Webster's Third New International Dictionary (1965) ("Webster") but it is ...

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