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September 13, 1982

SUPER TIRE ENGINEERING COMPANY, a corporation of the State of New Jersey, Plaintiff,
TEAMSTERS LOCAL UNION NO. 676, Affiliated with the International Brotherhood of Teamsters, Defendant

The opinion of the court was delivered by: COHEN

 This action to vacate an arbitration award is presently before the Court on plaintiff's motion for summary judgment and defendant's cross motion for summary judgment to enforce the award. Jurisdiction is vested pursuant to § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 (1973), § 185 (1978).

 Plaintiff (Company) operates a tire manufacturing plant in Pennsauken, New Jersey. Both plaintiff and defendant (Union) are parties to a collective bargaining agreement which contains a grievance procedure providing for arbitration of disputes regarding interpretation of the agreement. *fn1" The grievance at issue involves the discharge by the Company of one of its employees, Mitchell Gray.

 On August 31, 1981, Gray was observed drinking beer on the plant premises by the maintenance director and refused to obey his direction to leave the grounds. The Company discharged Gray on August 31, 1981 and so notified him, on that date, by means of the following correspondence:

This is to inform you that you are being terminated from our employ effective Friday, September 4, 1981.
The cause of the termination is for drinking alcoholic beverages on Company premises and for drinking during working hours. (Emphasis added).

 After discussing the matter with the Union's Business Agent, the Company voluntarily modified its original decision to terminate Gray. At oral argument, it was indicated that the Company's decision was prompted by the prospect of pursuing the case through the grievance procedure. On September 4, 1981, Gray was sent the following notice:

This is to inform you that the letter dated August 31, 1981 is being rescinded and you are being suspended from work for one day in lieu of termination . . . .
Please remember that there is to be no drinking of alcoholic beverages on Company premises nor during working hours. (Emphasis added).

 After Gray returned to work, it was reported that he continued to drink alcoholic beverages during his break periods. This information caused the Company to hire a detective agency to keep Gray under surveillance. Two investigators reported that they observed Gray drinking alcoholic beverages on several occasions during September and October 1981 at the nearby Dew Drop Inn and in cars parked around the Inn. On October 31, 1981, Gray was again discharged for consuming alcohol during working hours. The termination was taken to arbitration and heard by arbitrator, Thomas F. Carey, who issued his decision on April 20, 1982.

 Initially, the arbitrator made the finding that Gray was drinking alcoholic beverages during his break periods. (Award p. 11). From an examination of the contract, he determined that "'break periods' fall within the time prescribed as 'working hours'." (Award p. 12). Consequently, the arbitrator concluded that Gray was guilty of drinking alcoholic beverages during working hours. (Award p. 11).

 Arbitrator Carey then confronted the question of whether Gray was properly discharged under Article 15, Section 1 *fn2" of the collective bargaining agreement. He found that the Company was justified in taking some disciplinary action against Gray but that discharge was "too severe absent proper notice to [sic] the no drinking rule." (Award p. 11). The arbitrator deemed a four month disciplinary suspension without pay to be an appropriate penalty. (Award p. 17).

 The arbitrator reached his decision that discharge was inappropriate in this case by an analysis of the "just cause" language of the aforesaid Article 15, Section 1. According to the arbitrator, this provision requires that the Company's action under Article 15 be exercised in a fair and even manner, rather than in an arbitrary and capricious fashion. (Award p. 13). He concluded that the Company's intent to strictly apply the no drinking rule required that the employee be given advance notice; inasmuch as there was no evidence presented that any other employee had previously been discharged for drinking alcoholic beverages, an express warning should have been given to Gray before he was discharged. (Award pp. 13-14). The arbitrator held that the notice given to Gray on his prior discharge and reinstatement was insufficient because it failed to specifically inform him that his continued alcohol consumption on Company time would result in his discharge. (Award p. 14).

 In arriving at this decision, Arbitrator Carey also took into consideration Gray's thirteen year work record which listed the August 31, 1981 warning as his only violation of the Company's rules. *fn3" "To dismiss an employee of many years for a second offense, without proper warning of potential discharge, normally presumes a degree of consistency by the Company in handling similar infractions involving the work force." (Award pp. 15-16). Since no uniform rule had been formulated regarding application of the no drinking provision ...

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