00-4089 Anheuser-Busch, Inc. v. Beer Soft Drink No. 744

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“The arbitrator somehow sustained the Union’s grievance, and found that the employer’s payment of the greater commission rate to all drivers during the brief span of but the first two months (60 days) of the new five-year contract constituted a ‘practice,’ in the eyes of the arbitrator, that rose to the level of a ‘post-execution amendment’ of the agreement. This action, according to the arbitrator, allegedly nullified the company’s right to invoke the thoroughly negotiated and mutually agreed upon contract provision dealing with the parties’ agreement to have the two-tiered commission rate. The arbitrator somehow made this finding in spite of the very specific and limiting language in the zipper clause of the contract, ‘This Agreement . . . supercedes all prior agreements between the parties . . . oral or written, including all practices not specifically preserved by the express provisions of this Agreement,’ as well as the specific arbitration clause forbidding him from modifying the written contract. The arbitrator recognized that the company’s April 27, 1998, decision to pay the two-tier (lower) commission rate to drivers working two-person routes was in full compliance with the terms of the collective bargaining agreement agreed to by the Union and the company in each of the three contracts (1990-2003) referred to herein; that the 1998 contract also contained the zipper clause; and that the 1998 contract was the product of exhaustive negotiations. But instead of adhering to the limitations the contract placed on his authority and to the unambiguous and plain language of the contract as it was written, the arbitrator took an end-run around the clear and unambiguous restrictive terms of the contract. The arbitrator somehow reasoned that because the employer allowed the first two months of the sixty-month contract to elapse before changing its practice to adhere to the written contract’s commission rates clause, it thus ‘deprived the Union of its right to bargain [over commission rates] for almost five years,’ a result that the arbitrator somehow felt (without any explanation) was a ‘fundamentally unfair maneuver inconsistent with well- settled principles of collective bargaining.'”

“Thus, the arbitrator cast aside the written and thoroughly negotiated terms of the agreement and returned to the terms of the contract in effect prior to 1990 by ordering the employer to pay the higher commission to drivers regardless of whether they were working on one or two-person routes. This finding by the arbitrator contradicts and ignores the express language throughout the 1998 contract at issue, including the unambiguous terms contained within the commission rates clause, the arbitration clause, and the zipper clause. Moreover, the arbitrator’s finding re-institutes the commission structure that the drivers agreed in negotiation to give up as a concession in 1990 and reaffirmed in the last two contracts in 1994 and 1998.”

Reversed and Remanded.

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Coffey, J.