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Tootsie Roll Industries Inc. v. Local Union No. 1

decided: October 8, 1987.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 86 C 1829, Milton I. Shadur, Judge.

Coffey and Manion, Circuit Judges, Eschbach, Senior Circuit Judge.

Author: Coffey

COFFEY, Circuit Judge.

Defendant-appellant Local Union No. 1, Bakery, Confectionery and Tobacco Workers' International Union ("the Union") appeals the order of the district court vacating an arbitrator's decision directing Tootsie Roll Industries to reinstate a discharged employee. We affirm.


Tootsie Roll fired employee Rosie Fikes, a member of the Union, in 1983 for excessive absenteeism. Fikes filed a grievance protesting the discharge, and the grievance was set for arbitration pursuant to the Union's collective bargaining agreement with Tootsie Roll. Before the arbitration hearing was held, however, the union president and Tootsie Roll's director of human resources settled the dispute through a "last chance" letter agreement which provided, in part:

"Effective October 29, 1984, Tootsie Roll Industries, Inc. will reinstate Rosie Fikes, but without any back pay for the period since she was terminated on May 9, 1983. Mrs. Fikes' reinstatement shall be on a 'last chance' basis whereunder she will be required to maintain an acceptable attandance [sic] level and will be terminated in the event she is absent, for any reason whatsoever including illness, more than one day per month for the first six months following her reinstatement. In the event Mrs. Fikes fails to meet this level of attendance, she will be terminated and the Union waives any right to file or pursue a grievance or other claim on her behalf."

On the date the last chance letter agreement was executed, Fikes was employed elsewhere. She informed Tootsie Roll that she wanted to give her current employer one week's notice before leaving, and Tootsie Roll consented. Fikes returned to work at Tootsie Roll on November 5, 1984.

Thereafter, Fikes missed work on January 9, March 5, April 16, and May 2, 1985. Her April 16 absence resulted from car problems, Fikes's only means of transportation, and the May 2 absence was due to her husband's illness. Nonetheless Tootsie Roll determined that the last two absences had occurred within a one-month period during Fikes's six-month probation term and terminated Fikes's employment for violating the terms of the last chance letter agreement.

On May 14, the Union submitted a grievance on Fikes's behalf. The Union contended that, according to the agreement, Fikes's six-month probationary period began to run on October 29 and thus her May 2 absence did not fall within the agreement's time limit. In addition, the Union argued that Fikes's absences on April 16 and May 2 did not violate the requirement that she not be absent "more than one day per month" because the word "month" meant calendar month, and not any rolling thirty-day period. Finally, the Union claimed that Fikes's last two absences were beyond her control and excusable under Tootsie Roll's personnel policy.

The grievance proceeded to arbitration, and Arbitrator David Dolnick held that Fikes's six-month probation period began to run on the date she actually returned to work (November 5). Consequently both the April 26 and May 2 absences took place within "the first six months following her reinstatement" and thus occurred during the probationary period. In interpreting the phrase "more than one day per month," the arbitrator noted the ambiguity in the term and looked to Tootsie Roll's regular attendance policy for guidance. According to that policy, the term "month" implied a thirty-day rolling period, rather than a calendar month. As such, Fikes's April 16 and May 2 absences occurred within the same thirty-day period, though not within the same calendar month, in violation of the letter agreement's attendance requirements.

The arbitrator nevertheless ruled against Tootsie Roll. He speculated that all facets of Tootsie Roll's absenteeism policy, which excused absences under certain extenuating circumstances, also applied to the letter agreement's terms. The arbitrator held that such circumstances existed as to both the April 16 and May absences, and he ordered Fikes reinstated at Tootsie Roll.

The district court vacated the arbitrator's award on the ground that it did not "draw its essence from the agreement." The court reasoned that the letter agreement contained two ambiguous phrases (i.e., "more than one day per month" and "six months following her reinstatement") that the arbitrator might properly interpret. The court held, however, that the arbitrator's blanket application of Tootsie Roll's regular, more lenient absenteeism policy contradicted the clear and unambiguous language in the agreement that Fikes would be discharged if she was absent for any reason whatsoever during the probation period. Because Tootsie Roll's general absenteeism policy was not applicable to Fikes's special ...

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