                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                          JAN 13, 2011
                                        No. 10-10892                       JOHN LEY
                              ________________________                      CLERK


                      D. C. Docket No. 2:08-cv-00713-UA-DNF

GLADES ELECTRIC COOPERATIVE, INC.,

                                                                         Plaintiff-Appellant,
                                                                         Counter-Defendant.

                                             versus

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL 1933,

                                                                       Defendant-Appellee-
                                                                         Counter-Claimant.

                              ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                          _________________________

                                     (January 13, 2011)

Before TJOFLAT, ANDERSON, and ALARCON,* Circuit Judges.
_________________
*Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:

      We have carefully considered the briefs and the record in this case, and have

had the benefit of excellent oral argument from the parties. The discharge of the

employee in this matter was submitted to the arbitrator to decide: first, whether the

matter was arbitrable; and second, “was the Grievant terminated for just cause? If

not, what shall the remedy be?” The arbitrator determined that there was not just

cause for discharging the employee, but that there was just cause for a lesser

penalty. The Cooperative presents a single argument on appeal – i.e., that the

arbitrator exceeded the scope of his authority under the collective bargaining

agreement (“Agreement”). The Cooperative relies upon two provisions of the

Agreement. The first is:

      All inherent and common law management functions and prerogatives
      which the Cooperative has not expressly modified or restricted by a
      specific provision of this Agreement are retained and vested
      exclusively in the Cooperative and are not subject to arbitration under
      this Agreement. The Cooperative specifically reserves the exclusive
      right in accordance with this judgment to reprimand, suspend,
      discharge, or otherwise discipline employees for just cause.

Section 3.2. The Cooperative does not dispute that the parties to the Agreement

bargained for an arbitrator, and not a federal court, to interpret the provisions of

their agreement. See §12.2. In addition, and consistent with established case law,

the Cooperative does not dispute that such “just cause” language can plausibly be

                                           2
construed to vest authority in the arbitrator to determine “just cause.” IMC-Agrico

Co. v. Int’l Chem. Workers Council of the United Food and Commercial Workers

Union, AFL-CIO, 171 F.3d 1322, 1328 (11th Cir. 1999) (and the cases cited

therein).

      The second provision relied upon by the Cooperative is §13.2, entitled

“Progressive Discipline” which provides:

      Section 13.4 provides recommended but not mandatory penalties to
      apply to specific offenses; however, the penalty utilized shall be
      discretionary with management and nothing herein shall require that a
      particular form of discipline be utilized in any case prior to the
      utilization of another form of discipline.

      The sole argument presented by the Cooperative on appeal is that these two

provisions of the Agreement should be interpreted as giving the Cooperative the

exclusive discretion, not subject to arbitration, to determine the penalty for any

given violation. The Cooperative’s position is that the arbitrator has authority to

determine whether there is just cause for believing that the employee committed the

charged conduct, and has authority to decide whether such conduct constitutes just

cause for some level of discipline. However, the Cooperative argues that, once the

arbitrator has made those determinations, the particular penalty determination vests

exclusively in the discretion of management. Rejecting the Cooperative’s

interpretation, the arbitrator determined that the “just cause” language in § 3.2 gave

                                          3
him authority to resolve disputes concerning just cause, and harmonized that

provision with the language in §13.2 giving the management discretion with

respect to the penalty utilized. Thus, the arbitrator interpreted the Agreement as

giving management latitude with respect to the penalty so long as such latitude was

exercised consistent with the overriding contractual principle of “just cause.” See

arbitrator’s decision at 9–10.

      We conclude that the arbitrator’s interpretation is plausible, and, pursuant to

established case law, we defer thereto. IMC-Agrico, 171 F.3d at 1328 (“When there

are two plausible interpretations of an agreement, then the arbitrator’s choice of

one over the other will be honored.”). Although § 3.2 reserved to the Cooperative

the exclusive right in accordance with its judgment to discipline employees, that

right was expressly conditioned, requiring that the particular form of discipline be

“for just cause.” Under established case law, such “just cause” provisions mean

that the scope of the arbitrator’s authority extends to a determination of whether

just cause existed.

      The Cooperative’s reliance on § 13.2 is also misplaced. That section is

entitled “Progressive Discipline” and provides that the penalties expressly listed for

specific offenses are merely recommended penalties, but not mandatory. Although

the Cooperative relies upon the language of the next phrase – i.e., that “the penalty

                                          4
utilized shall be discretionary with management and nothing herein shall require

that a particular form of discipline be utilized in any case prior to the utilization of

another form of discipline” – nothing in that language is inconsistent with the

requirement in §3.2 that the Cooperative’s discretion in disciplining employees be

exercised for “just cause.” 1

       Thus, the language of §3.2 and the language of §13.2 is readily harmonized

in the above manner, such that management shall have discretion with respect to

the penalty utilized, but that discretion must be exercised for “just cause.” The

Cooperative’s interpretation would not harmonize the two provisions, but rather

would effectively nullify the just cause provision. The Cooperative apparently

would have us re-write §3.2 so that it would read that the Cooperative must have

just cause for believing that an employee engaged in the charged conduct and that

such conduct warranted some form of disciplinary penalty, but that the Cooperative

reserved for itself the exclusive authority to decide the particular level of

discipline. The interpretation urged by the Cooperative is strained, and in serious

       1
                Thus, the arbitrator’s interpretation of this language is not only plausible, but
probably the most reasonable interpretation. Moreover, the “penalties utilized” language is
ambiguous in other respects. It may simply be elaborating on the preceding phrase to the effect
that the penalties indicated for specific offenses are merely recommendations, and are not
mandatory, leaving the selection of a penalty initially in the discretion of management. Another
plausible interpretation is that the general reference to discretion might be limited to the specific
example in the succeeding phrase to the effect that the progressive nature of the recommended
penalties need not be followed in every instance.

                                                   5
tension with the plain language of §3.2 – i.e., that the Cooperative must have just

cause for discharging an employee. In other words, the Cooperative’s

interpretation is strained because the express language of §3.2 requires just cause –

not for some level of discipline – but for specific penalties – e.g., discharge,

reprimand and suspension.2

       Having thus interpreted his authority under the Agreement, the arbitrator

found that the facts did not support just cause for discharging the employee, but did

support a lesser penalty.3 The Cooperative does not challenge these findings of the

arbitrator.4

       The instant case is not distinguishable in principle from IMC-Agrico Co.,

which controls the resolution of this case. The cases relied upon by the

Cooperative – Warrior & Gulf Navigation Co. v. United Steelworkers, 996 F.2d



       2
                As noted above, even if the Cooperative’s suggested interpretation were a
plausible one, it is abundantly clear that the interpretation of the arbitrator was a plausible
interpretation. Established law requires our deference to the arbitrator’s plausible interpretation.
       3
                On the way to these findings, the arbitrator found that the charged Group III
offenses failed as a factual matter. This too the Cooperative does not challenge. Indeed, as
noted, the sole challenge presented on appeal by the Cooperative is its contract interpretation
challenge, which we have rejected.
       4
                Although this court is concerned that there would seem as a matter of common
sense and common experience to be just cause for the discharge here, the sole argument
presented by the Cooperative to vacate the arbitrator’s decision is the Cooperative’s contract
interpretation issue discussed above in the text and rejected. Any other challenge by the
Cooperative has been abandoned.

                                                  6
279 (11th Cir. 1993), and Butterkrust Bakeries v. Bakery, Confection & Tobacco

Workers., 726 F.2d 698 (11th Cir. 1984) – are distinguishable in the manner

indicated in IMC-Agrico.

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




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