Poland Spring Corp. v. United Food & Commercial Workers International Union, Local 1445

United States Court of Appeals
For the First Circuit

No. 02-1064

POLAND SPRING CORPORATION,

Plaintiff, Appellee,

v.

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION,
AFL-CIO-CLC, LOCAL 1445,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Lynch, Circuit Judges.

Warren H. Pyle, with whom Lara Sutherlin and Pyle, Rome,
Lichten & Ehrenberg, P.C., were on brief, for appellant.
Richard R. Boisseau, with whom Amy R. Walker and Kilpatrick
Stockton LLP, were on brief, for appellee.

December 24, 2002
 TORRUELLA, Circuit Judge. The appellant, United Food and

Commercial Workers International Union AFL-CIO-CLC, Local 1445

("Union") appeals from the district court's summary judgment

vacating an arbitration award that reinstated employee Leo Beaupre

and reduced his discharge to a suspension without pay. Appellee is

the Poland Spring Corporation ("Poland Spring"), which terminated

Beaupre for insubordinate behavior on February 5, 2000. We affirm.

Background Facts

Poland Spring is a bottler of non-carbonated water with

bottling facilities in Maine. In 2000, Leo Beaupre worked for

Poland Spring as a palletizer operator. A palletizer is a machine

that loads cases of bottles onto pallets and wraps the full pallets

in plastic for shipping. As a palletizer operator, Beaupre was

responsible for placing empty pallets on the machine, removing

loaded pallets, and keeping the area around his machine clean.

Since his palletizer was elevated on legs above the floor, this

housekeeping task occasionally required him to remove stray bottles

from under the machine.

The incident which led to Beaupre's termination occurred

on the night shift beginning on February 5, 2000. Beaupre's

supervisor that night was Mike Arsenault, a former co-worker of

Beaupre's who had recently been promoted to a supervisory role. At

some point during the shift, a group of employees got together and

began playfully teasing Arsenault. This group included Beaupre.

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The employees teased Arsenault rather crudely about his recent

promotion, stating in starkly graphic terms how he was promoted for

providing an imaginative variety of sexual favors to the plant

manager, another male.

Arsenault did not appear offended at first. In fact, at

some point Arsenault actually joined in the ribbing, pretending to

call up the plant manager on his radio to tell the manager that he

would be right up to see him. Predictably, this spirit of

jocularity did not last. According to Arsenault, the joking ended

when the group received a radio call, and Arsenault assigned the

employees to various work tasks. Beaupre, in contrast, testified

that Arsenault suddenly "became unglued," stated "[t]hat will be

enough," and ordered everyone back to work.

When the banter ended, Arsenault directed Beaupre and

another worker to go into the filler room and help clean up stray

bottles that were on the floor. Beaupre explained to Arsenault

that due to an asthmatic condition, he could not work in the filler

room where elevated levels of ozone could be present. Arsenault

responded that if Beaupre could not work in the filler room, he

should go clean bottles out from underneath the accumulation table.

The accumulation table is a large table where filled bottles coming

from the filler operation can accumulate if the palletizer

operation is interrupted. The task would require Beaupre to crawl

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under the accumulation table, which stands on legs only a few feet

off the floor.

Beaupre refused to follow this directive from Arsenault,

telling Arsenault that his "crawling days [were] over; it's hard

for me to crawl into bed [and] hard for me to crawl out of bed."

Arsenault then repeated his directive to Beaupre, but Beaupre

continued to refuse to clean out the bottles. According to

Arsenault, he then warned Beaupre that his non-compliance would

constitute an act of insubordination which could result in

Beaupre's termination. Nevertheless, Beaupre again refused to

comply with the order.

Arsenault then directed Beaupre to accompany him to a

conference room. On the way there Beaupre asked Arsenault whether

he was really going to fire Beaupre over a bottle of water, and

also asked Arsenault whether that would make him feel like a man.

Despite the fact that Arsenault had now made it clear to Beaupre

that he could face termination for failure to comply with

Arsenault's directives, he refused to clean up the bottles.

While they were walking toward the conference room,

Arsenault radioed a more experienced supervisor to join them. Also

joining them were two other plant employees who came at Arsenault's

request as witnesses. Once again, the supervisors instructed

Beaupre to go pick up the bottles as directed, and once again

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Beaupre refused to perform the assigned work. Beaupre was

suspended pending investigation, and sent home.

The following day, the Union filed a grievance, alleging

that Arsenault's fraternizing and joking with the plant employees

was unprofessional, and that after being the subject of so much

teasing, Arsenault retaliated by trying "to embarrass [Beaupre] in

front of his peers by making him crawl under a conveyer for one

bottle[.]"

At a post-suspension "Step 2" hearing, Beaupre and the

Union offered two affirmative defenses explaining Beaupre's refusal

to obey a directive. The Union's arguments were rejected, and

following the Step 2 grievance meeting, Poland Spring converted

Beaupre's suspension to a termination of employment.

The Collective Bargaining Agreement

The Union submitted a grievance pursuant to the

collective bargaining agreement then in existence between it and

Poland Spring. Article 32 of the agreement is entitled "Discipline

and Discharge" and provides in plain language that insubordination

"shall" constitute just cause for termination. That Article also

provides that a number of offenses may warrant a lower level of

discipline prior to discharge. Insubordination, however, is not

such an offense. The relevant section of Article 32 provides:

Discipline and discharge shall only occur for
just cause. The parties agree that just cause
for discharge shall include, but not be
limited to, the following:

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 . . .
8. Insubordination
. . .

Under Article 33, the arbitrator's authority is expressly

limited to the provisions of the Agreement. Accordingly "[t]he

arbitrator shall have no power to alter or modify any of the terms

of this Agreement or to impose on any party a limitation or

obligation not explicitly provided for in this Agreement."

The Arbitrator's Award

The factual findings of the arbitrator are substantially

those previously discussed. Nevertheless, because the primary

issue for our consideration is whether the arbitrator unambiguously

found that Beaupre's February 5 conduct was insubordinate, it is

helpful here to reproduce substantial portions of the arbitrator's

decision.

His discussion of the termination began:

There is little doubt in this case that
absent some persuasive affirmative defense,
[Beaupre] was guilty of the offense of
insubordination on the February 5, 2000 night
shift. Arsenault repeatedly ordered the
grievant to clean out the scrap bottle(s) from
under the accumulation table. The grievant
repeatedly refused to comply with that
directive, even after first Arsenault and then
[another supervisor] made it clear to him that
he could be terminated for so refusing.

The arbitrator then evaluated the two affirmative

defenses raised by the Union. First, the Union argued that

Beaupre's repeated refusals to follow his supervisor's order were

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motivated by a sincerely held concern for his health. The

arbitrator determined that this argument was not credible and that

Beaupre's health was not the reason he refused to clean up the

bottles. The Union alternatively argued that because the order to

clean up the bottles followed so closely upon the sexual banter

between Arsenault and the plant workers, Beaupre believed he might

have been subjected to undue humiliation or embarrassment, or even

risk of sexual assault. The arbitrator determined that this

defense was entirely unpersuasive and that any apprehensions

Beaupre might have had were not reasonable.

Since the arbitrator began his discussion by stating that

"absent some persuasive affirmative defense [Beaupre] was guilty of

the offense of insubordination," one might have expected the

arbitrator to conclude his analysis after rejecting both

affirmative defenses proffered by the Union. Instead, the

arbitrator stated that there was "one remaining issue for

discussion, that being the level of discipline imposed." After

thus declaring that he was now exploring remedial possibilities the

arbitrator broke down the term "insubordination" into two types:

straightforward insubordination, and insubordination in the

presence of mitigating circumstances. The arbitrator reasoned:

[Article 32] may well establish that in
clear, straight-forward cases of
insubordination, without mitigating
considerations, the parties by agreement have
established the per se rule that there is just
cause for termination. However, the language

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 of Article 32 does not state that even in the
presence of mitigating circumstances,
insubordination still will necessarily provide
the company with just cause for termination.
On the contrary, where significant mitigating
considerations are present, the culpability of
the employee may be diminished, and summary
termination may no longer be justified. This
more complex fact situation must be considered
under the general, just cause standard set
forth in article 32, giving due weight to the
fact that the parties have agreed that a pure
case of insubordination, without mitigating
considerations, would provide just cause to
terminate.

Having distinguished straightforward insubordination from

insubordination with mitigating circumstances, the arbitrator

placed Beaupre's claim in the latter category. The arbitrator

found that Beaupre's refusal to comply with his supervisor's

directive was mitigated by his supervisor's misconduct, which

"blurred the line between the supervisor and the workers."

According to the arbitrator, once the supervisor joined in the

ribbing and sexual banter, his "improper fraternizing with the

workers created an environment where one of the employees might

think, at least initially, that Arsenault was not acting in his

supervisory capacity, but rather only as one of the guys joking

around on the shop floor." The arbitrator concluded that "it was

unjust for the Company to terminate the grievant for his

insubordinate behavior which immediately followed." Nevertheless,

despite the presence of mitigating circumstances, the arbitrator

concluded that Beaupre's protracted refusal to comply with the

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directive still constituted "insubordinate behavior." The

arbitrator determined that:

[Beaupre] should have been able to figure out
that Arsenault had shifted gears and was now
acting in his supervisory capacity; he should
have promptly followed the directives of the
person he knew to be his supervisor.
Furthermore . . . Arsenault first alone and
then with the assistance of [another
supervisor] gave the grievant clear warning of
the fact that his behavior had become
insubordinate, and gave the grievant numerous
opportunities over an extended period of time
to abandon his initial refusal, and to perform
the work as directed.

Ultimately the arbitrator concluded that while mitigating

circumstances rendered the company's decision to terminate Beaupre

unjust, Beaupre's insubordinate behavior over an extended period of

time warranted a two week suspension without pay.

Summary Judgment

Poland Spring filed suit in district court to vacate the

arbitration award. The court granted summary judgment, finding

that the award exceeded the arbitrator's authority under the

Agreement. The court held that in the Agreement there is "nothing

about 'clear, straight-forward' cases, 'pure' cases, or 'mitigating

circumstances.'" The court found that under the circumstances, the

arbitrator lacked the authority under Article 32 to reinstate an

insubordinate employee. The Union appealed.

Discussion

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 Judicial review of an arbitrator's decision is extremely

narrow and deferential. United Paperworks Intern. Union, AFL-CIO

v. Misco, Inc., 484 U.S. 29, 36 (1987); Keebler Co. v. Truck

Drivers, Local 170, 247 F.3d 8, 10 (1st Cir. 2001). We do not sit

as a court of appeal to hear claims of factual or legal error by an

arbitrator or to consider the merits of an award. Misco, Inc., 484

U.S. at 36-37. We cannot vacate the award because the arbitrator

misreads the contract, where there is room to do so. Id. at 37-38.

Nor are we authorized to reject his honest judgment as to the

appropriate remedy, if the contract gives him the authority to

decide that question. Id. at 38. "[A]s long as the arbitrator is

even arguably construing or applying the contract and acting within

the scope of his authority, that a court is convinced he committed

serious error does not suffice to overturn his decision." Id.

Nevertheless, acknowledging that our role is a limited

one is not the equivalent of granting limitless power to the

arbitrator. Georgia Pacific Co. v. Local 27, United Paperworkers

Int'l Union, 864 F.2d 940, 944 (1st Cir. 1988). The decision to

settle labor-management disputes through arbitration is a wholly

voluntary decision by private parties, grounded on their will as

expressed in the collective bargaining agreement. Id. "Therefore,

the paramount point to be remembered in labor arbitration is that

the power and authority of an arbitrator is totally derived from

the collective bargaining agreement and that he violates his

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obligation to the parties if he substitutes 'his own brand of

industrial justice' for what has been agreed to by the parties in

that contract." Id. (quoting United Steelworkers v. Enterprise

Wheel & Car, 363 U.S. 593, 597 (1960); see also Misco Inc., 484

U.S. at 38. If the language of an agreement is clear and

unequivocal, an arbitrator cannot give it a meaning other than that

expressed by the agreement. Georgia-Pacific Co., 864 F.2d at 944.

In support of the arbitration award, the Union contends

that the arbitrator did not unambiguously find Beaupre guilty of

insubordination as that term is used in Article 32. Instead, it

claims, the arbitrator found that because Beaupre's actions were

mitigated by the horseplay of his supervisor, Beaupre's conduct

should not be treated as insubordination per se, but should rather

be evaluated under the general, "just cause" standard also set

forth in Article 32. That is, since Beaupre's culpability was

lessened by his supervisor's own misconduct, the arbitrator

properly considered Beaupre's misconduct under the flexible "just

cause" provision of Article 32, rather than the "insubordination"

standard of that same section.

We disagree with the Union's selective reading of the

arbitration award. The award unambiguously concluded that

Beaupre's misconduct on the night of February 5, 2000 constituted

insubordination pursuant to Article 32 of the Agreement. The

arbitrator unequivocally found: first, that a clear order was

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repeatedly given to Beaupre; second, that Beaupre fully understood

the consequences of failure to comply with the order and yet

repeatedly refused to do so; and finally, the arbitrator concluded

that Beaupre's refusals to comply with the order constituted acts

of insubordination subject to discipline under Article 32 of the

agreement.

First, it is beyond dispute that the arbitrator found

that Beaupre repeatedly refused to comply with his supervisor's

directives. He concluded that "the grievant declined to follow

this directive from Arsenault. Arsenault repeated his directive to

the grievant, but the grievant continued to refuse to clean out the

bottles from under the accumulation table."

Second, the arbitrator found as a fact that Beaupre fully

understood the consequences of his failure to comply with his

supervisor's directive. After his second refusal of the order,

Beaupre accompanied Arsenault to the conference room for a

disciplinary meeting. On the way there, Beaupre asked Arsenault

whether "he was the man that was going to take the grievant's job

over a bottle of water, and if he did, would that make him feel

like a man." Based on that statement, the arbitrator concluded

that "[c]ertainly, then, the grievant at least by that point

understood that he could face termination for failing to comply

with Arsenault's directive."

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 Finally the arbitrator concluded that Beaupre's knowing

refusal to comply with the directive was "insubordinate" within the

meaning of the Agreement. First, the arbitrator twice used the

language "insubordinate behavior" to describe Beaupre's conduct on

the night of February 5, 2000. Second, the portion of the award

concerning Beaupre's culpability begins with the statement that

"[t]here is little doubt in this case that absent some persuasive

affirmative defense, the grievant was guilty of the offense of

insubordination." The award then proceeded to evaluate and reject

the affirmative defenses raised by Beaupre, leaving little doubt

that the arbitrator found Beaupre guilty of insubordination.

Upon reaching the conclusion that Beaupre's conduct was

insubordinate, the arbitrator was "barred from further inquiry

because such additional probing constituted 'ignor[ing] the plain

language of the contract.'" Georgia-Pacific Corp. v. Local 27

United Paperworkers Int'l Union, 864 F.2d 940, 945 (1st Cir. 1988)

(quoting Misco, Inc., 429 U.S. at 38). This Court has long held

that once an arbitrator finds that an employee has committed an act

specifically listed in the collective bargaining agreement as

providing just cause for termination, the arbitrator is not free to

fashion a separate remedy apart from the one provided by the

parties' agreement. See Georgia-Pacific, 864 F.2d at 945; S.D.

Warren Co. v. United Paperworkers' Int'l Union, 845 F.2d 3, 8 (1st

Cir. 1988); Metro Chevrolet, Inc. v. Unión de Tronquistas de Puerto

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Rico, 835 F.2d 3, 5 (1st Cir. 1987). The rationale for this line

of cases is simple: contractual provisions like the insubordination

clause of Article 32 are bargained for and inserted precisely to

take discretion away from arbitrators charged with enforcing the

collective bargaining agreement. Cf. Georgia-Pacific Corp, 864

F.2d at 945 ("'[A]n arbitrator does not have unfettered discretion.

He may not impose a remedy which directly contradicts the express

language of the collective bargaining agreement.'") (quoting

Bruno's Inc. v. United Food & Com. Wkrs. Int'l Union, Local 1657,

858 F.2d 1529, 1531 (11th Cir. 1988)). Consequently, the plain

language of Articles 32 and 33 left nothing to the arbitrator's

discretion except to determine whether or not Beaupre's conduct was

insubordinate.

In Georgia-Pacific, this Court held that nearly identical

contract language gave the employer the right to discharge, leaving

an arbitrator no discretion to fashion a remedy different from the

parties' agreed-upon level of discipline. 864 F.2d at 942, 946.1

1
In Georgia-Pacific, the agreement in issue provided that:

Any employee may be discharged for just cause.
Without limiting the generality of the
foregoing some of the causes for immediate
discharge are:
. . .
(5) dishonesty
. . . Georgia-Pacific, 864 F.2d at 942.

The arbitrator in Georgia-Pacific found that an employee had
engaged in an act of dishonesty subjecting him to discipline.
However, the arbitrator then overruled the company's decision to

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Evaluating the agreement in Georgia-Pacific, we determined: (1)

that the agreement specifying that committing an offense of

dishonesty subjected an employee to immediate discharge was

unambiguous on its face; (2) that the parties inserted the

provision "precisely [to remove] optional choice on the part of the

arbitrator;" and (3) that the arbitrator had no discretion to

impose another form of discipline once he found dishonesty. Id. at

945-46.

By enumerating offenses that are subject to immediate

discharge and distinguishing those offenses from other forms of

misconduct that warrant a warning prior to discharge, the parties

manifested their intent to remove from the arbitrator's discretion

the power to fashion his own remedy for those offenses expressly

subjected to automatic discharge. See S.D. Warren Co., 845 F.2d at

7-8 (finding that the purpose of an automatic discharge provision

in a collective bargaining agreement reflects the parties' intent

to "remov[e] from the arbitrator the authority to determine a

remedy once she concludes that a certain rule has been breached").

If the parties intended mitigating circumstances to affect whether

terminate the employee, based in part upon the employee's overall
employment record. This Court found that the arbitrator had no
discretion to impose his own remedy once he found that the employee
was guilty of dishonesty. Looking at the agreement, we concluded
that "[i]t is difficult to imagine how one could use the English
language to state more clearly that dishonesty leads to immediate
discharge than is stated in [the agreement]." Id. at 946 (citation
and quotation omitted).

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insubordination constitutes just cause for termination, then they

would have expressed their intent in the contract. Because we find

that the arbitrator determined that Beaupre was guilty of

insubordination, his decision to fashion a separate remedy due to

mitigating circumstances impermissibly substituted his own notions

of industrial justice over those established by the contract. Id.;

accord Misco, 484 U.S. at 38.2

2
The Union asserts that instead of applying Georgia-Pacific, our
analysis ought to be guided by Keebler Co. v. Truck Drivers, Local
170, 247 F.3d 8 (1st Cir. 2001) (holding that an arbitrator's
decision that conduct did not constitute gross insubordination drew
its essence from the contract) and Crafts Precision Industries Inc.
v. Lodge No. 1836, 889 F.2d 1184 (1st Cir. 1989) (upholding an
arbitrator's determination that some types of insubordination
warrant discharge while other less serious instances may warrant
only suspension). We disagree. There are two key issues
distinguishing this case from the rule of law established in
Keebler and Crafts Precision.

First, as we explained in Keebler, Keebler does not apply where,
as is the case here, "the arbitrator unambiguously found that the
grievant had committed conduct listed in his employment agreement
as grounds for termination." Keebler, 247 F.3d at 14 n.2.

Second, the language of the collective bargaining agreements
involved in both Keebler and Crafts Precision was substantially
more open and ambiguous than the contract language in Georgia-
Pacific, Warren and the instant case. As we explained in Crafts
Precision, the question of whether an arbitrator exceeded his
authority will often turn on whether the agreement delegated open-
ended discretion to the arbitrator, or instead, whether the
agreement expressly provided that certain types misconduct shall
constitute just cause for discharge. Crafts Precision, 889 F.2 at
1185; compare Keebler, 247 F.3d at 12-13 (noting that the agreement
expressly required arbitrator to distinguish between gross
insubordination, which would be subject to immediate discharge,
from less serious instances of insubordination, which would not);
and Craft Precision, 889 F.2d at 1185-86 (noting that the agreement
vested the employer and arbitrator with the discretion to
distinguish conduct that "may result in suspension" from conduct

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 Lastly, the Union argues that because the collective

bargaining agreement did not define the term insubordination, it

was necessary for the arbitrator to devise a definition of

insubordination and determine whether the actions of Beaupre were

those which constitute insubordination warranting termination under

the Agreement. According to this argument, when the arbitrator

distinguished between straightforward insubordination and

insubordination in the presence of mitigating circumstances, this

was precisely the type of interpretive analysis arbitrators are

regularly called on to do. Consequently, rather than fashioning a

separate remedy at odds with the one provided in the contract, the

arbitrator merely clarified the latently ambiguous term

insubordination and determined that the conduct involved here was

simply too minor to constitute insubordination as that term was

intended by the parties.

Were it in fact true that the arbitrator was merely

interpreting the term insubordination, this argument might have

that warrants discharge) with Georgia-Pacific, 864 F.2d at 942
(involving a contract which provided that any "employee may be
discharged for just cause" and then expressly listed dishonesty as
"one of the causes for immediate discharge"). The language in the
instant agreement is nearly-identical to that of Georgia-Pacific in
that it enumerates misconduct which may warrant discharge without
warning. That is, it provides that "just cause for discharge shall
include . . . insubordination." (Emphasis added). Unlike Keebler
and Crafts-Precision, the instant agreement lacks any language that
would authorize an arbitrator to distinguish between degrees of
insubordination, or permit an arbitrator to select from a variety
of disciplinary remedies.

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some merit. After all, the Union correctly asserts that

arbitrators have significant discretion to interpret the terms of

a collective bargaining agreement. It is up to the arbitrator to

decide whether a given pattern of conduct constitutes

insubordination. Furthermore, the term insubordination is not

defined in the agreement and is obviously susceptible to multiple

interpretations. Thus, the arbitrator here certainly would have

been free to decide that Beaupre's conduct was simply too minor to

rise to the level of insubordination as that term is used in the

contract.

Nevertheless, in this case it cannot be said that the

arbitrator's mitigating circumstances analysis was merely part of

an interpretation of the term insubordination. First, the

arbitrator never debated the meaning of the term insubordination,

and concluded that Beaupre was guilty of "insubordinate behavior"

that "extended over a lengthy period of time." Second, the

arbitrator did not begin his mitigating circumstances analysis

until after he had established Beaupre's culpability and stated

that there was only "one remaining issue for discussion, that

being the level of discipline imposed." Clearly, the mitigation

section of the award only arose when the arbitrator was considering

his remedial options, and not when he was supposedly engaged in an

interpretation of the term insubordination.

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 Beaupre's situation is a regrettable one. His

supervisor's misconduct undoubtedly temporarily blurred the line

separating supervisor and employee, and in so doing, created a

scenario in which Beaupre, insulted and hurt by Arsenault's sudden

transformation from "one of the guys" to stern company supervisor,

felt justified in refusing the order. Nevertheless, Beaupre's

defiance outlasted the confusion caused by Arsenault's horseplay.

He repeatedly refused a company directive even after that directive

had become a formal warning delivered repeatedly by two

supervisors. The arbitrator deemed this conduct insubordinate,

and, having done so, lacked the contractual authority to mitigate

the disciplinary action provided by the collective bargaining

agreement. Consequently, the arbitration award is unenforceable

and the district court's judgment is affirmed.

Affirmed. No costs are imposed.

"Concurrence follows"

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 BOUDIN, Chief Judge (Concurring). Leo Beaupre, then an

employee of Poland Spring Corp. at its facility in Maine, refused

in February 2000 several direct instructions from two supervisors

to pick up some bottles scattered under a table. The company's

contract with Beaupre's union provides that "[d]iscipline and

discharge shall occur only for just cause. The parties agree that

just cause for discharge shall include, but not be limited to, the

following: . . . Insubordination . . . ." After a warning, Beaupre

was discharged, and the union sought arbitration pursuant to the

contract.

In due course, the arbitrator found that Beaupre had

clearly violated direct orders from his superiors even after he was

advised that this could be a firing offense, and the arbitrator

found unsupported several excuses offered for Beaupre's refusals

(e.g., health concerns). However, the arbitrator ruled that under

the contract "mitigating considerations" permitted the arbitrator

to conclude that termination was too severe a penalty; finding

mitigation here -- for example, tasteless jokes by Beaupre's direct

supervisor -- the arbitrator ruled that the penalty should be

reduced to two weeks' suspension without pay.

Affirming the district court, the panel majority now

holds that the arbitrator exceeded his authority in directing

Beaupre's reinstatement. It is common ground that the arbitrator

is bound by provisions of the contract but also that the arbitrator

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can construe the contract. See United Paperworkers Int'l Union v.

Misco, Inc., 484 U.S. 29, 38 (1987). In effect, the arbitrator

takes over the court's role of initial construction; but there

remains a vaguely defined limit: a reviewing court may still

conclude that the arbitrator is re-writing the terms instead of

construing them. See id.

Here, the arbitrator could permissibly have read the

contract to mean that some acts of disobedience constitute

"insubordination" within the meaning of the contract and that

other, less severe acts -- although literally disobedience -- do

not. "Insubordination" is not defined in the contract nor is it

self-defining and, reading the provision in context, a judge (and

even more surely an arbitrator) would be likely to exclude trivial

disobedience, such as a refusal to light the supervisor's

cigarette. Consider that lack of cleanliness is also listed as a

basis for discharge under this contract, but certainly a smudge on

a nose would not qualify for discharge. So, taking account of the

severity of the disobedience is, within broad limits, surely a part

of the arbitrator's authority.

Viewed de novo, it is a more difficult question whether

the present contract can be read to limit management's right to

discharge an insubordinate employee where there exist "mitigating

considerations." Of course, lack of the severity of disobedience

could be viewed as a mitigating consideration; but the arbitrator's

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claim in this case is not focused on lack of severity. Rather, he

claimed and exercised a broader mandate to take into account

anything that might equitably bear on whether a discharge for

disobedience seemed fair and proportionate.

Most judges, interpreting this contract for themselves,

would probably reject this latter reading. Taking the contract as

a whole, it explicitly reserves disciplinary authority to

management, save as constrained by other provisions. Most judges

would likely take the "just cause" provision quoted above as

licensing management to discharge an employee who was patently

"insubordinate," even if he had served the company loyally for a

decade and had a sick wife at home and a child in college. The

contract does not say that discharge for insubordination is

permitted only where "just" or "fair."

Even so, the parties in this case empowered an arbitrator

to interpret the contract and that includes the power to adopt

readings that a judge might reject if no arbitrator were involved.

Does this include a reading that allows the arbitrator to say that

disobedience is "insubordination" if there are adequate "mitigating

considerations" that have nothing to do with whether the

disobedience was clear, deliberate, and pertinent to the employee's

duties? This is a stretch of language, to be sure, but whether it

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goes too far to be a permissible arbitrator reading is something

about which reasonable judges might differ.3

This debatable issue has been resolved in this circuit.

In two different cases, this court has ruled that contracts,

similarly structured as that at issue here, give management a right

to discharge an employee guilty of a listed offense, and that an

arbitrator cannot mitigate the penalty because of ameliorative

circumstances. See Georgia-Pacific Corp. v. Local 27, United

Paperworkers Int'l Union, 864 F.2d 940 (1st Cir. 1988); S.D. Warren

Co. v. United Paperworkers' Int'l Union, 845 F.2d 3 (1st Cir.),

cert. denied, 488 U.S. 992 (1988).

In S.D. Warren, 845 F.2d at 6, the contract reserved to

management "sole" authority to discipline, subject to appended

rules; and the appended rules said that "[v]iolations" of specified

rules were "causes for discharge," including "[p]ossession" of

marijuana on company property. The discharged employees had

possessed marijuana at the plant, but the arbitrator ruled that the

sanction was too severe. Id. The Warren decision held that the

arbitrator had exceeded his power. Id. at 8.

3
For example, immediate consideration of "fairness" might push in
one direction; in the other, the long-term cost of unpredictability
leading in turn to increased difficulty in negotiating even more
detailed provisions. Another factor, which might cut either way,
might be the practice in the industry. Yet another would be how
far the particular equities urged still had some connection with
the statutory language.

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 A similar conclusion was reached in Georgia-Pacific, 864

F.2d at 942-43: the contract permitted discharge for "dishonesty,"

and the employee had reported himself unable to work for medical

reasons and had instead participated in a golf tournament. The

arbitrator ordered reinstatement based on the employee's many years

of service. Id. at 944. Again, the court held that the arbitrator

was improperly rewriting the contract. Id. at 946. Thereafter,

this court several times acknowledged that S.D. Warren/Georgia-

Pacific were the rule even in cases where the court managed to

distinguish those cases on their facts. E.g., Keebler Co. v. Truck

Drivers, Local 170, 247 F.3d 8, 13-14 & n.2 (1st Cir. 2001); Crafts

Precision Indus., Inc. v. Lodge No. 1836, Int'l Ass'n of

Machinists, 889 F.2d 1184, 1185-86 (1st Cir. 1989).

Based on first principles and Supreme Court precedent,

the dissenting opinion in this case argues (in substance) that S.D.

Warren and Georgia-Pacific were mistaken. The first principles,

themselves derived from Supreme Court precedent, are inevitably

quite general statements about the scope of and limits to

arbitrator authority; some language helps Beaupre, some helps the

company, and none of it in a debatable case like this one would be

decisive if we were deciding this case without any governing

circuit precedent.

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 As for the Supreme Court's holdings, only Misco has facts

arguably close to our own.4 In Misco, 484 U.S. at 41-42, the Court

said that an arbitrator could impose a lesser remedy than

discharge, arguably in a situation not too far from our own. But

the Court's rationale is somewhat cryptic and turned in some

measure on a peculiar stipulation of the parties that the issue in

dispute was the existence of "just cause," which was said to be

open to arbitral determination. Id. Read evenhandedly, Misco is

of some help to Beaupre but also could itself be distinguished.

But this panel is not free to resolve this case based on

first principles or a reading of Misco favorable to Beaupre. S.D.

Warren was decided after Misco -- indeed, on remand after an

earlier S.D. Warren decision had been vacated by the Supreme Court

for reconsideration in light of Misco. S.D. Warren, 845 F.3d at 4.

The decision in S.D. Warren is expressly a determination that

neither Misco nor first principles preclude the decision by this

court in S.D. Warren -- a decision that pretty clearly embraces our

own facts.

4
Other decisions include Eastern Associated Coal Corp. v. United
Mine Workers, 531 U.S. 57 (2000), and Major League Baseball Players
Ass'n v. Garvey, 532 U.S. 504 (2001). In Eastern, 531 U.S. at 60,
67, the Court affirmed the arbitrator's award because the
arbitrator did not find "just cause" for discharge, and the
parties, by agreement, entrusted the remedial decision to the
arbitrator. In Garvey, 532 U.S. at 510, the Court held that an
arbitrator's award could not be set aside because of a court's
disagreement with the arbitrator's factual findings.

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 If our own case were before us as the first one to arise

after Misco, its proper disposition would present a difficult and

interesting issue. But the rule that binds successor panels, which

serves to make law predictable, is decisive for me. United States

v. Wogan, 938 F.2d 1446, 1449 (1st Cir.), cert. denied, 502 U.S.

969 (1991).

"Dissent follows"

-26-
 LYNCH, Circuit Judge (Dissenting). The arbitrator

interpreted Article 32 of the collective bargaining agreement to

say the type of insubordination meant to be encompassed within the

"just cause" for termination was insubordination without any

mitigating circumstances. The majority says that this

interpretation exceeded the arbitrator's scope of authority. I

disagree, and so, with respect, I dissent.

I do agree that this case can be distinguished from

Keebler Co. v. Truck Drivers, Local 170, 247 F.3d 8 (1st Cir. 2001)

and Crafts Precision Industries, Inc. v. Lodge No. 1836,

International Ass'n of Machinists, 889 F.2d 1184 (1st Cir. 1989),

on the grounds given by the majority. I also agree that the

district court could reasonably have concluded that it was bound to

reverse the arbitrator under Georgia-Pacific Corp. v. Local 27,

United Paperworkers International Union, 864 F.2d 940 (1st Cir.

1988), or S.D. Warren Co. v. United Paperworkers' International

Union, 845 F.2d 3 (1st Cir.), cert. denied, 488 U.S. 992 (1988).

Nonetheless, developments in the law of judicial review of arbitral

awards make me doubt that Georgia-Pacific is good law now.

Under that evolving law, I think we are required to

affirm the arbitrator's award.5 The majority relies on language

5
Alternatively, remand to the arbitrator would be preferable to
reversal. "[W]here the basis for an arbitrator's decision is
unclear, but the arbitrator's opinion suggests that the decision
does not draw its essence from the collective bargaining agreement,
remand is appropriate to have the arbitrator clarify the basis for

-27-
from United Steelworkers of America v. Enterprise Wheel & Car

Corp., 363 U.S. 593, 597 (1960), exempting awards that are merely

"[the arbitrator's] own brand of industrial justice" from a general

policy of judicial deference. This qualification was reiterated in

United Paperworkers International Union v. Misco, Inc., 484 U.S.

29, 36 (1987). In Misco, however, the Court went on to emphasize

language which the majority recites at the outset, but overlooks in

its reasoning: "But as long as the arbitrator is even arguably

construing or applying the contract and acting within the scope of

his authority, that a court is convinced he committed serious error

does not suffice to overturn his decision." Id. at 38. The Misco

Court then reversed the court of appeals decision to overturn an

arbitral award for misreading the evidence. Id. at 45.

The Supreme Court has continued to mandate judicial

deference to arbitral awards in subsequent decisions. In Eastern

Associated Coal Corp. v. United Mine Workers, 531 U.S. 57 (2000),

the Court again reversed a decision overturning an arbitral award.

In Eastern, the arbitrator had ordered reinstatement of an employee

who had been fired for failing a random drug test. The arbitrator

reasoned that mitigating circumstances -- including a long

his or her decision." Young Radiator Co. v. Int'l Union, UAW, 734
F.2d 321, 326 n.5 (7th Cir. 1984); see also Labor Relations Div. of
Constr. Indus. of Mass., Inc. v. Int'l Bhd. of Teamsters, 29 F.3d
742, 747 (1st Cir. 1994)(remand appropriate when arbitrator may
have exceeded his authority); Randall v. Lodge No. 1076, Int'l
Ass'n of Machinists, 648 F.2d 462, 468 (7th Cir. 1981)(same).

-28-
employment history and stress caused by family problems --

outweighed the admitted drug use. Id. at 60, 67. The lower courts

had set aside the award on public policy grounds, a reason rejected

by the Supreme Court.

Last year, the Court strongly reaffirmed the high

standard required for judicial interference in arbitral decisions.

In Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504

(2001), the Court overturned the Ninth Circuit's reversal of an

arbitral award. The Ninth Circuit had found reversal warranted

because the arbitrator "dispensed his own brand of industrial

justice," id. at 507, in refusing to consider evidence supporting

Garvey's claim. The court of appeals labelled the arbitrator's

finding "completely inexplicable" and "border[ing] on the

irrational." Garvey v. Roberts, 203 F.3d 580, 590 (9th Cir. 2000).

Nonetheless, the Supreme Court responded by reiterating its

holdings in Misco and Eastern:

Courts are not authorized to review the
arbitrator's decision on the merits despite
allegations that the decision rests on factual
errors or misinterprets the parties'
agreement. We recently reiterated that if an
"arbitrator is even arguably construing or
applying the contract and acting within the
scope of his authority," the fact that "a
court is convinced he committed serious error
does not suffice to overturn his decision."

532 U.S. at 509 (citations omitted). Moreover, the Court went on

to conclude that the error alleged -- ignoring important evidence

-- did not even rise to the standard of serious error: "The

-29-
arbitrator's analysis may have been unpersuasive to the Court of

Appeals, but his decision hardly qualifies as serious error, let

alone irrational or inexplicable error. And, as we have said, any

such error would not justify the actions taken by the court." Id.

at 511 n.2. In short, the court of appeals may not substitute its

own contractual interpretation for the arbitrator's, without

showing more than "serious error." That is not the case here.

The majority finds that the arbitrator exceeded his

authority in interpreting the collective bargaining agreement and

in his decision to reinstate Beaupre. But the agreement gives him

precisely that authority. The arbitrator's authority is set forth

in Article 33, which governs grievance and arbitration. The

presentation of a grievance is required to resolve "differences ...

as to the meaning or application of the provisions of the

Agreement." Any dispute after the third step of the grievance

process is submitted to the arbitrator. It is true that Article 33

contains a restriction: "The arbitrator shall have no power to

alter or modify any of the terms of this Agreement or to impose on

any party a limitation or obligation not explicitly provided for in

this Agreement." Even with such a restriction, it is commonplace

that an arbitrator has authority to construe the terms of the

agreement he is enforcing. See, e.g., Steelworkers, 363 U.S. at

599 ("As we [have] emphasized, the question of interpretation of

the collective bargaining agreement is a question for the

-30-
arbitrator. It is the arbitrator's construction which was

bargained for; and so far as the arbitrator's decision concerns

construction of the contract, the courts have no business

overruling him because their interpretation of the contract is

different from his."). I see nothing in this clause which

prohibits the arbitrator from construing the agreement, as he has

done here.

The majority also overestimates the restrictions placed

on arbitrators' ability to fashion a remedy. The majority holds

that "once an arbitrator finds that an employee has committed an

act specifically listed in the collective bargaining agreement as

providing just cause for termination, the arbitrator is not free to

fashion a separate remedy apart from the one provided by the

parties' agreement." Opinion at 12-13. The majority takes this to

mean that once the arbitrator found insubordination in this case,

he had no discretion as to remedy -- he was bound to uphold the

employee's termination. But this view overlooks well-established

law granting the arbitrator the same level of freedom in crafting

a remedy as he has in contractual interpretation. "[W]here it is

contemplated that the arbitrator will determine remedies for

contract violations that he finds, courts have no authority to

disagree with his honest judgment in that respect." Misco, 484

U.S. at 38. In Misco, it was the use or possession of controlled

substances on company property which was listed as cause for

-31-
discharge. The arbitrator's authority was limited to

interpretation and application of terms in the contract.

Nonetheless, the Court upheld the arbitrator's reinstatement of an

employee terminated for drug use on company property. Id. at 35.

The remedy of reinstatement, under a contractual regime similar to

the one at issue here, was within the power of the arbitrator to

fashion.

Admittedly, this result -- which I believe to be mandated

by Supreme Court precedent -- poses some problems. It is not

entirely satisfactory to say to employers that they can draft the

collective bargaining agreement to clearly restrict the arbitrator

from exercising the authority that the arbitrator applied here.

The realities of what happens at the bargaining table may make this

illusory. Article 32 was admirably drafted to give management some

flexibility and give workers the protection that not every instance

of insubordination must mean termination. It can be questioned why

the price of that flexibility should be to permit an arbitrator to

second guess management's judgment to be less forgiving of an

employee's disobedience of a direct order. Here, the employer's

unforgiving attitude is not irrational. Beaupre was asked several

times, including by a more mature and senior supervisor, to comply

with Arsenault's directive. But that is not the question for the

court.

-32-
 Instead, under the law that the Supreme Court has

crafted, we must defer to the arbitrator so long as he is "even

arguably construing or applying the contract and acting within the

scope of his authority." Misco, 484 U.S. at 36. I think we must

defer to the award. The majority's decision is thoughtful, well-

written, and sensitive. The majority and I simply have a good

faith disagreement about the law. To the extent Georgia-Pacific

and S.D. Warren are taken to control the outcome of this case, I

think it time for this court to disavow both of those cases as

inconsistent with Supreme Court precedent. With regret, I find

myself in dissent.

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