*

Honorable William W. Schwarzer, Senior U.S. District Judge

for the Northern District of California, sitting by designation. 

 1These facts are taken primarily from the district court's

Order of July 31, 1995. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-9052.

OSRAM SYLVANIA, INC., Plaintiff-Appellee,

v.

TEAMSTERS LOCAL UNION 528, Defendant-Appellant.

July 16, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:94-CV-2986-GET), G. Ernest Tidwell,

Chief Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*

, Senior

District Judge.

KRAVITCH, Circuit Judge:

Teamsters Local Union No. 528 appeals the decision of the

district court reversing an arbitrator's decision in favor of one

of its members, Lonnie Robinson. The union argues that the

arbitrator was within the scope of his discretion in determining

that Robinson was not fired for "just cause." We agree with the

union and reverse the decision of the district court vacating the

arbitration award. We remand to the district court for

reconsideration of the union's motion for leave to amend its answer

and assert a counterclaim.

I.

Robinson was a forklift driver for Osram Sylvania, Inc. 1

 On

February 5, 1994, he committed a safety violation by running into
a stack of pallets while driving his forklift with an obstructed

view. After the accident, Robinson reported an injury. On

February 10, he was treated and given a "light duty slip," which

restricted his duties. On February 16, he was given a "fit for

duty slip" and was released to return to work on February 21. Upon

receiving the slip from the doctor's secretary, Robinson said, "You

all can take these papers and shove it."

When he returned to work, Robinson gave the facility manager,

Alan Geller, the outdated "light duty slip." Upon learning that

Robinson had in fact been cleared to return to his normal duties,

Geller decided to review Robinson's employment for possible

termination. At that time, Geller already had received a

recommendation from Osram's safety coordinator to terminate

Robinson based on a review of his overall safety record.

Geller discharged Robinson for the following reasons: (1)

misconduct while receiving medical treatment, (2) unwillingness to

work after being released by his physician, and (3) a poor overall

safety record. Robinson did not receive a warning prior to his

discharge.

Robinson's employment was governed by a collective bargaining

agreement ("Agreement") between Osram and Teamsters Local Union No.

528. The relevant portion of the collective bargaining agreement,

Article IX, § 5, provides, in pertinent part:

The Company may discharge any employee for just cause and

shall give at least one (1) warning notice of the complaint

against such employee to the employee and notice of the same

to the Union, except that no warning notice need be given to

an employee before discharge if the cause of discharge is so

serious that the immediate removal of the employee from

Company premises is, in the Company's judgment warranted.
If an employee discharge case is not settled within ten days, the

Agreement provides for arbitration of the employee's grievance.

Agreement, Article VIII. The arbitrator's decision is final and

binding. Id. at Article VII, § 2.3. However, the arbitrator has

no authority "to modify, amend, revise, add to or subtract from any

of the terms of th[e] Agreement" or impose an obligation not

provided for in the Agreement. Id. at Article VIII, § 2.2.

As to each ground for dismissal, the arbitrator found that the

company lacked just cause. His findings were as follows:

Misconduct While Receiving Medical Treatment: Telling a

doctor's secretary to "shove it" in reference to the doctor's work

return slip did not constitute just cause because it did not occur

on the company's premises and the statement was not made in

reference to a company employee, the statement caused no disruption

in work, Robinson did not receive any warning about the

consequences of his conduct, the punishment was inconsistent with

the treatment of other employees, and the seriousness of the

offense was not reasonably related to the severity of the

disciplinary penalty.

Unwillingness to Work After Being Released By His Physician:

"The apparent deception engaged in by [Robinson] is certainly

serious and a violation of rules of ethics and Company policy.

However, in light of the Company's policy of selective discipline

and its failure to uniformly and consistently apply progressive

discipline across the board evenhandedly, [Robinson's] infraction

would warrant discipline but not immediate discharge."

Overall Safety Record: Osram did not establish just cause for
the discharge that was based on Robinson's overall safety record

because he was given no notice, suffered disparate treatment, and

the penalty was disproportionately severe.

In addition to making these findings, the arbitrator credited

testimony that Robinson was a "very good employee" and that he had

won three awards for his work. Based on all of the evidence, the

arbitrator determined that "the degree of discipline administered

by management was not reasonably related to the Grievant's service

record with the Company." The arbitrator concluded that "the

dismissal was not based on just cause."

The company filed a complaint in the district court

challenging the arbitrator's decision. The court entered summary

judgment for the company and vacated the arbitrator's decision and

award.

II.

 We review de novo the district court's order vacating the

arbitration award. Sullivan Long & Hagerty, Inc. v. Local 559

Laborers' Int'l Union, 980 F.2d 1424, 1426 (11th Cir.1993). The

proper standard in reviewing an arbitrator's decision is one of

considerable deference. This court has stated that

[c]ourts ... do not sit to hear claims of factual or legal

error by an arbitrator as an appellate court does in reviewing

decisions of lower courts.... The arbitrator's award settling

a dispute with respect to the interpretation or application of

a labor agreement must draw its essence from the contract and

cannot simply reflect the arbitrator's own notions of

industrial justice. But as long as the arbitrator is even

arguably construing or applying the contract and acting within

the scope of his authority, that a court is convinced he

committed serious error does not suffice to overturn his

decision.

United Paperworkers v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364,
371, 98 L.Ed.2d 286 (1987); see also Delta Air Lines v. Air Line

Pilots Assoc., 861 F.2d 665, 670 (11th Cir.1988) ("An arbitrator's

result may be wrong; it may appear unsupported; it may appear

poorly reasoned; it may appear foolish. Yet it may not be subject

to court interference."), cert. denied, 493 U.S. 871, 110 S.Ct.

201, 107 L.Ed.2d 154 (1989); Florida Power Corp. v. International

Bhd. of Elec. Workers, 847 F.2d 680, 681-82 (11th Cir.1988)

("Perhaps the single most significant and common issue to which

this deference extends is the issue of what constitutes sufficient

and reasonable cause for discharge."). Nevertheless, "an

arbitrator is confined to interpretation and application of the

collective bargaining agreement.... When the arbitrator's words

manifest an infidelity to this obligation, courts have no choice

but to refuse enforcement of the award." United Steelworkers of

Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct.

1358, 1361, 4 L.Ed.2d 1424 (1960). Thus, our review of a labor

arbitration award "is limited to a determination of whether an

award is irrational, whether it fails to draw its essence from the

collective bargaining agreement or whether it exceeds the scope of

the arbitrator's authority." Butterkrust Bakeries v. BCTW Local

361, 726 F.2d 698, 699 (11th Cir.1984).

Osram makes two arguments. First, it argues that Article IX,

§ 5 of the Agreement gave Osram the sole right to determine whether

a violation was "so serious" as to warrant immediate discharge

without consideration of just cause and thus once the arbitrator

found that the factual predicates for the discharge were proven, he

was required to approve the discharge. Second, Osram contends that
 2

Decisions of the Fifth Circuit decided prior to the close

of business on September 30, 1981, are binding precedent in the

Eleventh Circuit under Bonner v. City of Prichard, 661 F.2d 1206,

1209 (11th Cir.1981). 

the arbitrator went beyond the terms of the Agreement and

improperly imposed a new obligation on Osram by refusing to find

"just cause."

 We can quickly dispose of the first argument. In their

hearing before the arbitrator the parties stipulated to the

following question: "Whether the discharge of Lonnie Robinson is

for just cause? If not, what shall be the remedy based on Article

IX, Section 5 of the Labor agreement." Having stipulated to this

narrow question, Osram may not now attempt to have the arbitrator's

decision overturned on different grounds. Because the question of

whether Osram could have terminated Robinson merely by finding that

he committed what it deemed a "serious offense" was not an issue

before the arbitrator, it is not an issue on this appeal. See,

e.g., International Chemical Workers Union Local 566 v. Mobay

Chemical Corp., 755 F.2d 1107, 1110 (4th Cir.1985) (A party may

"not voluntarily engage in the arbitration of the issues submitted

to the arbitrator and then attack the award on grounds not raised

before the arbitrator."); see also Piggly Wiggly Operators'

Warehouse, Inc. v. Piggly Wiggly Operators' Indep. Truck Drivers

Union, Local No. 1, 611 F.2d 580, 584 (5th Cir.1980)2 (A court must

look both to the parties' contract and "to the submission of the

issue to the arbitrator to determine [arbitrator's] authority.").

We turn, therefore, to the issue of whether the arbitrator's

finding of "just cause" violated the terms of the collective
bargaining agreement.

 In order to prevail on its claim, Osram must refute every

reasonable basis upon which the arbitrator may have acted.

Sullivan Long & Hagerty, Inc., 980 F.2d at 1427. In reaching his

conclusion that Robinson's termination was without just cause, the

arbitrator found that for each of the counts of alleged misconduct

Robinson was punished in an unfairly disparate manner. Because

this disparate treatment alone could serve as the basis of holding

that just cause was lacking, Osram must demonstrate that such a

decision went beyond the terms of the Agreement. See, e.g.,

Waverly Mineral Products Co. v. United Steelworkers, 633 F.2d 682,

684-85 (5th Cir.1980) (upholding an arbitrator's finding of no just

cause where there was disparate discipline for the same rule

infraction); see also HMC Mgmt. Corp. v. Carpenters Dist. Council

of N.O., 759 F.2d 489, 490 (5th Cir.1985) (dissent to denial of

reh'g en banc) ("There is virtual universal acceptance that

discriminatory discipline violates "just cause' disciplinary

standards in contracts even though the word discrimination never

appears in that context.").

 To refute the finding of disparate treatment, Osram argues

that in reaching his conclusion the arbitrator relied on irrelevant

and immaterial post-discharge evidence. Specifically, the

arbitrator considered evidence of an incident that occurred over

100 days after Robinson's discharge and 60 days after Geller had

relocated to another city and taken another job.

In support of this claim, Osram relies primarily on

Butterkrust Bakeries, 726 F.2d 698. In Butterkrust, an arbitrator
found that an employer had just cause to terminate an employee for

disciplinary problems, but determined that this finding would be

reversed upon the employee's successful completion of a Dale

Carnegie course. Id. at 699. This court held that once the

arbitrator made a "just cause" finding, the arbitrator no longer

had authority over the parties to the dispute and could not,

therefore, rely on the grievant's post-discharge conduct to change

his finding. Id. at 700.

Osram argues that the arbitrator in this case was not

permitted to consider evidence of Osram's treatment of another

employee that occurred after Robinson's discharge. This argument,

however, misses the point of Butterkrust, which stands only for the

proposition that a grievant's post-discharge conduct is irrelevant

in determining just cause for termination. Evidence that the

employee in that case completed a Dale Carnegie course after his

discharge was irrelevant because it had no bearing on whether the

employee's conduct constituted just cause for firing. Whether or

not he learned how to "win friends" could not change the fact of

his previous behavior. By considering such evidence, the

arbitrator went beyond the collective bargaining agreement and

created what amounted to a rule for reinstatement following a

discharge for just cause.

 In contrast, where the just cause determination is tied to a

finding of disparate treatment, as it was in this case, evidence of

how an employer treats employees even after the grievant's

discharge may be highly relevant. Disparate treatment exists when

similarly situated workers are treated differently even though they
 3

Osram argues that the "violation" committed by the employee

to whom Robinson was compared involves facts completely

dissimilar to those in Robinson's case. The arbitrator obviously

thought otherwise; because that determination is not irrational,

it will not be disturbed. 

have committed similar acts.3 Where, as here, there has been no

change in the governing contract, and the time period under

consideration is not unreasonably long, it is appropriate to

consider an employer's post-discharge acts in determining whether

that employer is treating all employees equally: evidence of an

isolated act of discipline that occurred ten years prior to

Robinson's discharge would almost certainly be less probative than

evidence of an act that occurred within a year after his discharge.

In fact, in some circumstances, evidence of an employer's action

taken after an employee has been terminated may be the only

evidence of disparate treatment. To give just one example, proof

of age discrimination usually rests upon evidence of an employer's

post-discharge decision to replace the fired worker with someone

who is younger. Cf. O'Connor v. Consolidated Coin Caterers Corp.,

--- U.S. ----, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (discussing

proof of age discrimination).

 Because disparate treatment is a legitimate basis for finding

a lack of just cause, Waverly Mineral Products Co., 633 F.2d at

684-85, the arbitrator did not act improperly when he considered

post-discharge evidence. Cf. Mobil Oil Corp. v. Independent Oil

Workers Union, 679 F.2d 299, 303 (1982) (Post-discharge evidence of

employee's "serious mental disorder" may be considered in

determining whether company had just cause to terminate employee.).

In view of the evidence before him, the arbitrator cannot be said
 4

Because the arbitrator's finding of disparate treatment is

a sufficient basis for his decision, we need not consider Osram's

objections to the other reasons given by the arbitrator. 

to have gone beyond the essence of the collective bargaining

agreement or to have exceeded his authority when he determined that

Robinson's termination constituted disparate treatment and thus

lacked just cause.4 Accordingly, we reverse the decision of the

district court vacating the arbitrator's award.

III.

After granting Osram's motion for summary judgment, the

district court denied the union's motion for leave to amend its

answer and assert a counterclaim. The court denied this motion for

the sole reason that it had vacated the arbitrator's award; in

essence, the district court denied the motion as moot. By

reversing the district court, we have undermined the articulated

basis for denying Osram's motion. It is appropriate, therefore, to

remand this case to the district court so that it may reconsider

the motion.

IV.

The opinion of the district court is REVERSED and this case is

REMANDED with instructions to enter judgment in favor of appellants

and for reconsideration of the union's motion for leave to amend

its answer and assert a counterclaim.