United Food & Commercial Workers Union Local 1776 v. EXCEL CORPORATION No. 05-2259 UNITED FOOD & COMMERCIAL WORKERS, UNION LOCAL 1776 v.…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2091
UNITED FOOD & COMMERCIAL WORKERS
UNION LOCAL 1776,
Appellant
v.
EXCEL CORPORATION
No. 05-2259
UNITED FOOD & COMMERCIAL WORKERS,
UNION LOCAL 1776
v.
EXCEL CORPORATION
CARGILL MEAT SOLUTIONS,
(f/k/a Excel Corporation),
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 04-cv-01514)
District Judge: Honorable Edwin M. Kosik

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Submitted Under Third Circuit LAR 34.1(a)
November 7, 2006
Before: SLOVITER, CHAGARES, and NYGAARD,
Circuit Judges
(Filed: December 1, 2006 )
______
Robert D. Mariani
Scranton, PA 18501
Attorney for Appellant/Cross-Appellee United
Food & Commercial Workers, Union Local 1776
Anneliese Wermuth
Joseph E. Tilson
Meckler, Bulger & Tilson
Chicago, IL 60606
Vincent Candiello
Post & Schell
Harrisburg, PA l7101
Attorneys for Appellee/Cross-Appellant Excel
Corporation
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The issue on appeal is whether an employer has satisfied
an arbitrator’s award when it pays the employee back wages and
simultaneously terminates the employee a second time for

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The District Court had subject matter jurisdiction pursuant
to Section 301(a) of the Labor-Management Relations Act, 29
U.S.C. § 185(a) and 28 U.S.C. §1331. This court has jurisdiction
from the entry of the District Court’s Order pursuant to 28 U.S.C.
§ 1291.
2
Excel is now known as Cargill Meat Solutions Corporation.
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conduct independent of the first termination.1 This is a novel
issue for this court.
The District Court held that the employee must be
reinstated pursuant to the initial arbitral award but that the
employer was free to terminate the employee a second time. The
employee appeals through his Union. The employer cross
appeals. We hold that, given the circumstances of this case, the
employer’s payment of back pay acted as an effective
reinstatement and the employer was free to terminate the
employee a second time based on independent grounds, pending
a second arbitration.
I.
The material facts of this case are not in dispute. On
October 31, 2002, the employer, Excel Corporation, suspended
Jose Diaz and Sandra Diaz pending an investigation into the
charge that they had attempted to steal meat from Excel by use
of a stolen receipt.2 On November 1, 2002, Excel discharged
both Jose and Sandra for “attempting to steal Excel Company
meat on the night of October 29th.” App. at 63-64. When
informed of his termination, Jose allegedly reacted violently by
attacking an Excel security guard, breaking two of his ribs.
The employees’ Union, United Food and Commercial
Workers, Local 1776 (the “Union”), grieved the terminations by
letter dated November 4, 2002. Shawn Mott, Excel’s Human
Resources Manager, responded to the grievance on November
30, 2002 as follows:
[Jose and Sandra] were terminated for their

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attempted unauthorized removal of Excel meat on
the night of October 29th. Our security guard, Bill
Rotwa [sic], identified [Jose and Sandra] as the
two individuals who attempted to use a stolen
receipt to claim meat that was not theirs.
As well, [Jose and Sandra’s] behavior on
November 1 when meeting with me to discuss this
matter were [sic] unacceptable with [Jose] hitting a
security guard in my office resulting in two
cracked ribs.
App. at 66.
The parties selected an arbitrator to hear the dispute. At
the conclusion of the arbitration proceeding, the arbitrator issued
his award on May 20, 2004. The arbitrator ruled:
The grievance filed on behalf of Jose Diaz
and Sandra Diaz is sustained. Based upon the
testimony and evidence presented in this case, it is
found that the Company did not establish just
cause to support termination of the Grievants for
“attempting to steal Excel company meat on the
night of October 29th.” Consequently, the
Grievants shall be reinstated to their positions with
full seniority and benefits and they shall be made
whole for lost wages.
App. at 88.
As to Excel’s contention about the employees’ post-
termination conduct, the arbitrator stated:
The record contains several versions of the
Grievants’ conduct in the Human Resources office
immediately following the notification that they
were terminated. In this regard, the Company
maintains that the profane, abusive, threatening
and violent outbursts of the Grievants constitute
independent grounds for termination. However, be

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that as it may, the Grievants’ post-termination
conduct is not considered herein as a basis for
determining whether the Company had just cause
to terminate Jose and Sandra Diaz for “attempting
to steal Excel Company meat on the night of
October 29th.”
App. at 85.
Instead, the arbitrator confined his award to the issue of
“whether the Company had just cause to terminate Jose and
Sandra Diaz for ‘attempting to steal Excel Company meat on the
night of October 29th.’” App. at 85. The arbitrator expressly
stated that he did not consider the allegation that Jose had
attacked an Excel security guard.
Because the arbitrator found that the Company did not
establish just cause for terminating Jose and Sandra for
attempted theft, Excel, by letter dated June 2, 2004, reinstated
Sandra with back pay. By separate letter also dated June 2,
2004, Excel informed Jose that, inasmuch as the arbitrator had
refused to consider his post-termination conduct on November 1,
2002, it was terminating his employment effective that date.
That letter read, in relevant part,
Dear Jose,
As you know, [the arbitrator] found that the
Company lacked just cause to terminate your
employment for attempting to steal Excel company
meat on the night of October 29, 2002. However,
in reaching that decision, the [a]rbitrator did not
consider your conduct following your termination
on November 1, 2002. Accordingly, please be
advised that the Company has decided to terminate
your employment effective November 1, 2002,
based upon your abusive and violent conduct
following your termination, including but not
limited to, striking Dennis Peifer, the Director of
Security at Excel’s Hazleton plant. You will
receive back pay from the time that you were

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suspended pending investigation of the attempted
theft through the effective date of your
termination, November 1, 2002.
App. at 91 (internal quotation marks omitted).
In response, the Union filed this suit under Section 301 of
the Labor Management Relations Act, 29 U.S.C. § 185, to
enforce the May 20, 2004 award. Thereafter, it also filed a
second grievance challenging the November 1, 2002
termination.
II.
We have plenary review of the District Court’s order.
See Beck v. Reliance Steel Prods. Co., 860 F.2d 576, 578 n.4 (3d
Cir. 1988).
The Union’s principal argument on appeal, which
subsumes its other arguments, is that the District Court erred in
permitting Excel to terminate Jose a second time for his alleged
abusive and violent conduct which the arbitrator declined to
consider. There is some basis for the Union’s implicit
contention that the District Court’s opinion is contradictory. The
District Court stated that Excel had not complied with the
arbitrator’s initial decision and thus the Court ordered that the
arbitration award be enforced “in the manner consistent with
[its] Memorandum.” However, the Court also preserved Excel’s
right, after first reinstating Jose, to discharge him again,
retroactive to November 1, 2002.
The District Court stated, “if appropriate, it will remain
for the arbitrator to determine if the employee may have waived
his rights; whether Excel may have waived its rights to terminate
for the aggressiveness of [Jose], and whether it [was] appropriate
to terminate him again and make it retroactive to November 1,
2002 – a plausible result. . . . Excel may have the right to
terminate [Jose] as of November 1, 2002, if the termination is
made after reinstatement and under the same procedures as the
first termination for theft.” App. at 13.

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The Union’s argument is based on the District Court’s
statement that Excel violated the arbitral award by failing to
reinstate Jose. The award stated, “the Grievants shall be
reinstated to their positions with full seniority and benefits and
they shall be made whole for lost wages.” App. at 88. It is
uncontested that after receipt of the award, Excel reinstated
Sandra according to the terms of the award. It is also
uncontested that Excel awarded Jose back pay from October 31,
2002 (the date of his suspension) to November 1, 2002, the date
of Excel’s second termination of Jose for his post-termination
conduct. Finally, it is uncontested that Excel never put Jose
back in the job from which he was terminated on November 1,
2002. The Union thus argues that Excel has sought to evade the
arbitral award by failing to reinstate Jose and terminating him a
second time for allegedly attacking the security guard. The
Union complains that as a result of the District Court’s opinion,
the arbitrator who will be selected to hear and decide the
propriety of Jose’s second termination would have the authority
not only to uphold that second termination, but to make that
termination retroactive to November 1, 2002. It is the Union’s
position that the effect of such a ruling would be to nullify the
arbitral award of May 20, 2004, with its provision for
reinstatement.
This court has not had occasion to discuss the situation
presented by these facts, but other Courts of Appeals, in
particular the Seventh, have faced somewhat similar facts. In
one of those cases, Chrysler Motors Corp. v. Int’l Union, Allied
Indus. Workers of Am. AFL-CIO, 2 F.3d 760, 761 (7th Cir.
1993), Chrysler discharged a male employee for sexually
assaulting a female co-worker. The Union filed a grievance
protesting the discharge. Chrysler presented evidence of four
other incidents of sexual harassment, but the arbitrator declined
to consider them. Id. The arbitrator found in the Union’s favor,
holding that the penalty against the employee was too severe in
light of similar cases. Id. at 761-62. Chrysler sent the employee
a letter “which essentially reinstated him for one day with pay
and simultaneously dismissed him again.” Id. at 762. There
were some intervening court proceedings, but ultimately the
Union moved the district court to hold Chrysler in contempt for
attempting to evade the court’s previous order enforcing the

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arbitral award. Id. The court denied the Union’s request and the
latter appealed. Id.
The Seventh Circuit held that “[w]hen an arbitrator
evaluating a discharge examines only the evidence against the
employee known to the employer at the time of the discharge,
and does not consider evidence against the employee discovered
by the employer after the discharge, the employer is not ‘forever
foreclose[d] . . . from using [the] evidence [acquired after the
discharge] as the basis for a [subsequent] discharge.’” Id. at 763
(citations omitted). The Court of Appeals pointed out that
because the arbitrator refused to consider any evidence beyond
the initial harassment, Chrysler had “fresh evidence” to rely
upon; “Chrysler’s conduct was thus entirely appropriate.” Id. at
764.
In a subsequent Seventh Circuit case, Auto. Mechs.’
Local No. 701 v. Auto Truck, Inc., 171 F.3d 432, 433 (7th Cir.
1999), an employee allegedly defaced company property on
April 26, 1994. On April 27, 1994, the day after the incident, the
company issued the employee a second absenteeism warning for
work missed the previous month. Id. On April 28, 1994, the
employer discharged the employee for defacing the property.
The Union filed a grievance on behalf of the employee with
regard to the discharge, but neither party submitted the
absenteeism warning as an issue to be resolved by the arbitrator.
Id. On May 10, 1994 the employer prepared a letter stating that
the employee had excessive absences in April 1994 and
cautioned that “three warning notices in a 12-month period ‘is
cause for suspension or discharge’”; the employee stated that he
never received this letter. Id. at 433-34. On May 18, 1994, the
employer wrote to the Union’s business representative stating
that on completion of its attendance review for the month of
April, it determined that only one employee exceeded the limit in
the month. Id. at 434. The letter stated:
The warning notice for [the employee at issue]
would have been issued to him except for the fact
that he had already been terminated. This . . .
would have constituted independent grounds for
termination.

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Id.
The May 18, 1994 letter included a copy of the May 10,
1994 letter. Id. The arbitrator found in the employee’s favor on
the discharge issue on December 10, 1994 and in so doing
emphasized that “his decision did not address the absenteeism
issue one way or the other.” Id. at 433. In response to the
arbitrator’s decision, the employer wrote to the employee on
January 6, 1995 telling him that it was limiting the award of
back pay to the period from April 29, 1994 until May 10, 1994.
Id. at 434.
The Seventh Circuit began by reaffirming the holding in
Chrysler Motors. Id. at 435. The court explained that Chrysler
Motors is among the cases establishing the proposition “that an
employee who prevails in a labor arbitration with respect to one
ground of discharge does not, by that fact alone, acquire life
tenure in the position.” Id. The court continued,
On the one hand, if the undisputed facts showed
that a company had an independent valid reason to
discharge an employee – perhaps the employee
had been caught redhanded stealing company
property, or the employee had assaulted another
employee – and that the company went through the
proper procedures to effect the employee’s
termination, then the holding in Chrysler Motors
indicates that the company could take its chances
with a second discharge. If, on the other hand, the
facts do not show that independent grounds for
discharge existed and that the company actually
terminated the employee on the alternate grounds,
then the company must comply with the first
arbitral award and only take steps afterwards to
address any additional infractions the employee
may have committed.
Id.
However, the court agreed with the district court that the
facts did not show that there were independent grounds for

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discharge. Id. at 436. First, the letter sent to the union
representative on May 18, 1994 “never once [said] that [the
employee] was terminated;” it merely stated that “the company
would have sent him another warning notice, which, when
combined with the previous warnings, would have constituted
independent grounds for termination.” Id. at 436. Second, there
was no evidence that the employee received a third warning
notice prior to January 6, 1995; “indeed, [the employee] denie[d]
receiving anything, and his signature [was] conspicuously
missing on the acknowledgment line of the form Auto Truck . . .
included in the record.” Id. The court stated that these were not
trivial omissions. Id. “The entire grievance structure set up by .
. . the CBA is premised upon an employee’s receiving actual
notice of an adverse job action and having the opportunity to
move it through the process, up to and including arbitration.” Id.
The Union relies on Auto Truck for its position that
United’s second discharge of Jose violated the arbitral decision.
However, Auto Truck reaffirmed the legal principles established
in Chrysler Motors, but noted that Auto Truck had failed to show
that it had sent the employee the required notice, which would
have constituted an independent ground for his termination. Id.
In fact, the employer had not submitted the independent grounds
to the arbitrator. On the other hand, in Chrysler Motors the court
found that there were independent grounds for the second
termination and therefore Chrysler’s decision to reinstate and
almost simultaneously terminate the employee was appropriate,
subject to the second arbitration.
The instant case is more closely analogous to Chrysler
Motors than to Auto Truck. The independent grounds for
discharge were communicated to Jose and to the Union. In
response to the filing of Jose’s grievance, Excel’s letter to the
Union not only referred to Jose’s termination for his attempted
unauthorized removal of Excel meat but also referred to his
behavior on November 1 in “hitting a security guard in [its]
office resulting in two cracked ribs.” App. at 66. Further, unlike
the employer in Auto Truck, Excel submitted information about
the independent removal grounds to the arbitrator. The fact that
he refused to consider them does not bear on the propriety of
Excel’s conduct.

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Admittedly, the court in Chrysler Motors stated that
Chrysler’s letter “essentially reinstated him for one day with pay
and simultaneously dismissed him again,” 2 F.3d at 762,
whereas Excel’s letter to Jose did not use the word
“reinstatement.” However, Excel undertook to send Jose “back
pay from the time that [Jose was] suspended pending
investigation of the attempted theft through the effective date of
[his] termination, November 1, 2002,” App. at 91, and the Union
does not claim that Jose did not receive that back pay.
Excel’s letter served as a de facto reinstatement. There is
no reason why the Company should have been required to allow
Jose to appear at the work site in order to effect a reinstatement.
As the Ninth Circuit has stated, that would be an exercise in
futility. See Ass’n of W. Pulp & Papers Workers, Local 78 v.
Rexam Graphic, Inc., 221 F.3d 1085, 1090 (9th Cir. 2000)
(“[O]rdering reinstatement for the sole purpose of terminating an
employee again ‘would constitute an exercise in futility’ and is
not required.”); see also McKennon v. Nashville Banner Publ’g
Co., 513 U.S. 352 (1995) (holding, in the context of an Age
Discrimination in Employment Act case, that “[i]t would be both
inequitable and pointless to order the reinstatement of someone
the employer would have terminated, and will terminate, in any
event and upon lawful grounds”).
The Union argues that Excel failed to follow the
procedure required by Article 18 of the Collective Bargaining
Agreement in terminating Jose the second time. We do not
reach that issue, as it will be for the arbitrator who will be
appointed to consider the second termination. Presumably, the
Union will raise the procedure followed at that time.
Our holding in United Steelworkers of Am., Dist. 36,
Local 8249 v. Adbill Mgmt. Corp., 754 F.2d 138 (3d Cir. 1985),
is not to the contrary. In Adbill, hotel maids were discharged
after violating a work rule that prohibited them from carrying
handbags in certain areas of the hotel. Id. at 139. After the case
went to arbitration the Hotel stated that it would reinstate the
maids in accordance with the arbitral award, but then placed the
maids on indefinite layoffs because of a decrease in the Hotel’s
occupancy rates. Id. at 140. We held that the employer was

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required to reinstate the grievants in accordance with the
arbitration award. Id. at 142. Unlike the situation in Adbill,
where the Hotel’s decision to reduce its workforce was made
after the issuance of the arbitral award, the basis for Jose’s
second termination occurred before the arbitral decision, and the
Union was notified of it before the parties proceeded to
arbitration. Therefore, Adbill is not controlling.
The Union has expressed concern that our decision today
will encourage employers to hold reasons for a second discharge
in reserve in order to undermine an adverse arbitration award.
Whereas this concern may be valid in some situations, it is
inapplicable here in that Excel attempted to place the issue of
Jose’s attack on the security guard before the arbitrator, who
declined to consider it. Cf. Chicago Newspaper Guild v. Field
Enters., Inc., Newspaper Div., 747 F.2d 1153, 1157 (7th Cir.
1984) (“[E]ven if Field were able to prove that Miller would
have been laid off in March 1978, we would not accept such an
argument in this enforcement proceeding because it was not
presented to the arbitrator below. The long-established federal
policy of settling labor disputes by arbitration would be seriously
undermined if parties kept available information from the
arbitrator and then attempted to use the information as a defense
to compliance with an adverse award.”).
III.
The Union’s appeal asks us to enter an Order finding that
Excel has not complied with the arbitrator’s award. We have
explained above why we reject that contention. We also reject
Excel’s contentions to the extent that they challenge the District
Court’s decision.
Therefore, considering the circumstances of this case,
namely the facts that (1) Excel notified Jose that his attack on the
security guard was grounds for termination, (2) Excel effectively
reinstated Jose as required by the arbitral award by paying him
for the period between “the time that [he was] suspended
pending investigation of the attempted theft through the effective
date of [his] termination[,]”, App. at 91, (3) Excel had an
independent reason (the attack on the security guard) to

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terminate Jose and presented that reason to the arbitrator, and (4)
the Union has already filed a second grievance pursuant to which
a second arbitrator will have the opportunity to rule on the
contentions of the parties with respect to notice, waiver, and the
existence of good cause for the second termination, we will
affirm the District Court’s decision.

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