1999 NAC 114 Interstate Brands Corp and Bakery Workers Local 466

Title: Interstate Brands Corp and Bakery Workers Local 466
Date: February, 1999
Arbitrator: Jack H. Calhoun
Citation: 1999 NAC 114

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

BAKERY, CONFECTIONERY AND TOBACCO )

WORKERS INTERNATIONAL UNION, )

LOCAL 466 )

) OPINION

and ) AND

) AWARD

INTERSTATE BRANDS CORPORATION. )

________________________________________________________________________________

FMCS No. 98-08626

BEFORE

JACK H. CALHOUN

ARBITRATOR

HEARING HELD

November 13, 1998

Billings, Montana

________________________________________________________________________________

REPRESENTATION

FOR THE UNION: FOR THE EMPLOYER:

Stephen C. Mackey Leonard Singer

Towe, Ball, Enright, Mackey Bioff, Singer and Fincuane

& Sommerfeld, P.L.L.P. 104 West Ninth Street

P O Box 30457 Suite 400

Billings, MT 59107-0457 Kansas City, MO 64105

BACKGROUND

The Bakery, Confectionery and Tobacco Workers International Union, Local 466 (the union) and Interstate Brands Corporation (the employer) are parties to a collective bargaining agreement that provides employees in the bargaining unit may only be disciplined for cause. The grievant, Frank Guzman, was suspended without pay for five days for violating the employer’s policy that prohibited the use of derogatory or profane language or gestures in the work place.

The issue to be decided is whether the employer violated the collective bargaining agreement by imposing a five-day suspension without pay on the grievant. If so, what is the proper remedy?

Subject only to any limitations stated in this Agreement, the union recognizes that the Employer retains the exclusive right to manage its business, including but not limited to the right to determine the methods by which its operations are to be carried on, to direct the working force and to conduct its operation in a safe and efficient manner.

Section 2: Employees may be subject to immediate discharge for proven cause for the following reasons:

Section 3. In cases of a less serious nature than described in Section 2 above, the company will utilize a system of progressive discipline which may include one or more of the following:

At each step of progressive discipline the employee shall have the right to Union representation.

The employer is engaged in the business of baking bread. It employs a total of 80 employees at the local plant. The first level of supervisory personnel is foreman, the second level is supervisor, the third is assistant production manager, and the fourth is production manager. The plant has a noise level that requires employees to wear earplugs; however, they are able to hear each other without yelling. The grievant’s work area has one of the highest noise levels in the plant.

The grievant is a 14-year employee who has performed a variety of jobs in the bakery. He is president of the local union. Prior to the incidents in question, he had never been disciplined. His job at the time he was suspended was bread proofer. He was responsible for making sure the bread was of the proper quality.

The essential facts of this case are in serious dispute. The employer’s witnesses testified to one set of circumstances and events, the union’s witnesses, including the grievant, testified to a vastly different set of circumstances and events.

On October 9, 1997, the grievant believed his break relief was late. He appropriately called Bruce Dick, the production foreman who was a bargaining unit member prior to his promotion 15 months earlier. The grievant told Dick his break was due. Dick said it was not. The two walked toward the clock and came face to face. The grievant pointed to the clock with his index finger saying his break was late. Dick said, “Get your finger out of my face.” The grievant replied, “If you don’t like this finger, how about this one”? Pointing his middle finger. Dick insisted the grievant’s break was not due and backed away, clinched his fists and said, “Come on and do something about it then.” The grievant declined.

In relating the same incident, Bruce Dick said the grievant blew up when Dick approached him. Dick said the grievant yelled at him that his break was late and he wanted it right now. He pointed his finger in Dick’s face and when Dick told him not to do so, the grievant pointed his middle finger instead. Dick denied clinching his fist or making a confrontational statement to the grievant.

When the grievant and Dick parted, the grievant went to the intercom and called Jim Nelson, a supervisor. When Nelson arrived, the grievant pointed his finger and said his break was due. Nelson told him to put his finger down. The grievant then walked back to his work area. Both Nelson and Dick went to the grievant and the grievant told Dick that Dick was just walking around with his tail between his legs. Nelson insisted the grievant’s break was not late.

According to Dick, both he and Nelson tried to talk to the grievant and settle him down. The grievant “flipped off” both of them and walked back to his work area. They followed and tried to explain that his break was not late and they had to shuffle people around so that all employees would get their breaks. The grievant did not believe them. They finally left. The earliest the grievant could have gone on break was 11:00 p.m. He went at 11:39 a.m. instead.

On October 11, 1997, assistant production manager, Mitch Holmberg met with the grievant about the October 9^th incident. Holmberg later wrote that the grievant stated he was upset because his break was late and while discussing that fact with Dick, he pointed his finger at the clock and Dick told him to take his finger out of Dick’s face. The grievant then said if Dick did not like that finger, how about another one, showing his middle finger. Holmberg also wrote that the grievant admitted to him that when the grievant was confronted by Dick, the grievant did not back down and that caused the escalation of the incident.

On October 15, 1997, employer and union representatives met with the grievant about the October 9^th incident. The grievant was told by the employer’s representatives that his display of profanity and lack of respect would not be tolerated and that if it happened again, he could be terminated.

On November 16, 1997, supervisor Nelson waited 45 minutes to see if the grievant was checking the bread properly. During the period the grievant did not check the bread. Nelson confronted the grievant about the matter. The grievant told Nelson he was tired of the b.s. and demanded that Nelson call production manager Rick Hamilton. Hamilton came to the plant and talked to the grievant. During the course of the conversation, Nelson told the grievant to call him, Nelson, by names that were not derogatory, to call him by his name or as supervisor. The grievant immediately went back afterwards and started calling Nelson “Jimmy Boy.” Nelson again repeated his earlier order, but the grievant did not reply. Later on the grievant called Nelson, “Misssster Nellllson,” saying the phrase slowly. Then the grievant went up to Nelson and asked, “How’s that?”

According to the grievant, the November 16^th incident happened in a different fashion. Nelson came to his work area and accused him of not checking the bread. The grievant was caught off guard and just said, “It isn’t time yet.” The grievant then said he thought he had better have a union representative. Nelson said none was present. The grievant then told Nelson to call Rick Hamilton to set up a meeting to get the matter cleared up because he did not know exactly what Nelson was talking about. Hamilton arrived an hour later and told the grievant, “The supervisor says we are having trouble with you.” The grievant denied there was trouble by him. There had been no problem with the bread he was responsible for, he had been checking it at the appropriate times. The grievant asked for union representation, but Hamilton told him there was no need because his job was not on the line. The grievant said he did not know that to be a fact. Hamilton said he should check on the bread as required. The grievant said he did so. The grievant said the whole matter was looking more and more like race discrimination to him. Both Hamilton and Nelson laughed, thanked him and he left.

Earlier during the same meeting, according to the grievant, Nelson objected to the manner in which the grievant had been addressing him. The grievant said he would try to change it, and he did so. He had been saying “suuuupervisor” on the intercom for some time, but no one had complained. Later that same shift he called Nelson “Jimmy Boy”, because that was what another employee, Rasmussen, always called Nelson. Nelson came to the grievant and ordered that the grievant not call him “Jimmy Boy,” to call him “Mr. Nelson,” or “Mr. Jim Nelson.” Nelson told Rasmussen the same thing. The grievant was never called in about an attitude problem before Dick became foreman. Rasmussen and other employees had called Nelson “Jimmy Boy” a long time before the grievant first used the term.

On November 20, 1997, the employer issued a memorandum to all its employees in the local plant, including the grievant. The memorandum stated that the employer was reinstating its policy regarding the use of derogatory or profane language or gestures in the workplace. The memorandum went on to warn that failure to adhere to the policy would result in disciplinary action up to and including termination. Prior to the issuance of the new policy, the employer had no written policy on the subject.

The employer had a written disciplinary policy that had been in effect since January 11, 1993. The policy listed 36 offenses and indicated what form of discipline, ranging from an oral warning to discharge, would be imposed for the first, second, third and forth offense. The policy indicated that the employer would not necessarily impose a minimum penalty for any offense, some offenses would be severe enough to require bypassing some of the steps in the progressive discipline sequence. Of the 36 listed areas of prohibited conduct, none was the use of profanity. Insubordination was listed and carried a penalty of discharge for the first offense. Unsatisfactory performance of assigned duties was listed and showed an oral warning for the first offense, a written reprimand for the second, a five-day suspension for the third and discharge for the fourth offense.

On November 24, 1997, an employee of the bakery was given a five-day suspension for insubordination and the use of profanity toward a supervisor. The suspension was not grieved because the employee did not wish to pursue the matter. The union would have filed a grievance.

The incident that precipitated the five-day suspension of the grievant happened on January 17, 1998. According to Dick’s testimony, he was helping another employee perform certain tasks and they were located about ten feet from the grievant who was sitting on a stool watching bread as it came down a conveyor. Dick noticed a bun rack that he thought should be moved because it was congesting the area. Dick walked over to the grievant, stood about one foot behind him and asked him to move the rack. The grievant did not move, he stared straight ahead. Dick returned to continue helping the other employee. A minute or two later, Dick returned to where the grievant was sitting and asked him to move the rack. The grievant did not respond, but continued looking ahead. Dick returned to his previous engagement and a few minutes later approached the grievant for the third time and again asked him to move the rack. Again, the grievant continued to look straight ahead. Dick then asked the grievant, “Are you refusing to do what I’m asking you to do?” The grievant got off the stool, looked at Dick and said, “F____ you.” The grievant then moved the rack. Dick then told the grievant he did not have to talk to him, Dick, that way. The grievant then pointed his finger at Dick and said, “You got to think about it.” Dick said, “You don’t need to point your finger at me.” The grievant replied, “Oh yes, I’ll do what I want.” Dick walked away, checked on operations and went to the office to write up what had occurred in order to let his supervisor know what happened.

According to the grievant, who had a completely different perspective of the incident of January 17^th than did Dick, Dick’s testimony was at best in error. The grievant said he was sitting on the stool watching bread when Dick asked him to move the rack. He only heard Dick ask him once. He got up and looked down the aisle. Dick then asked him if he was refusing to do what he had asked him to do. The grievant said he was not and then moved the rack. Dick was following him as he was moving the rack and he said to Dick, “If you would just think about what’s going on here with these racks, there wouldn’t be any problems.” Dick had a smirk on his face and walked away, the grievant went back to watching bread. There was no confrontation. He did not swear at Dick, use profanity toward him, express any exasperation, or make any gesture toward him. The grievant stated he does not use profanity. Dick did not say anything to him about his conduct being inappropriate. He was wearing earplugs, as required, but it is possible to hear people talk while wearing earplugs.

The assistant production manager, Mitch Holmberg, called the bakery while Dick was writing his report about the January 17^th incident. Holmberg came to the bakery and he questioned Dick about the incident. He questioned the grievant and asked if the grievant had cussed at Dick. The grievant said he had not. Holmberg said there would be an investigation. The grievant said he had done nothing wrong. Other employees in the area where the grievant and Dick were during the 17^th of January incident did not see or hear anything.

After Holmberg investigated the January 17^th incident, he concluded Dick’s story was true, not the grievant’s. On January 18, 1998, Holmberg suspended the grievant until further notice. The grievant was upset. The following day Holmberg gave the grievant a written notice of his five-day suspension. The letter said he had used profanity toward Dick on January 17, 1998, and it said he had engaged in offensive behavior and used profanity on October 15, 1997. It also noted he had a behavioral problem on November 17, 1997. The union wanted the suspension reduced to a written warning. Holmberg used the October incident plus the January incident to form the basis for his decision to impose the five-day suspension on the grievant. The grievant was not charged with insubordination, but was charged with using profanity.

No union witness had ever seen the grievant upset, swear, or use profanity. Some of the witnesses had worked for the employer along with the grievant for a long number of years. One witness had known the grievant since they were in grade school and had never heard him use profanity. No one saw the grievant act surly toward management. When things go wrong, the grievant becomes quiet, he does not engage in conflict, they said.

Some of the same witnesses who testified to the grievant’s mild temper said they had seen Dick engage in unbecoming conduct when he was in the bargaining unit. Dick had pushed and shoved other employees. One employee was followed into the toilet by Dick and accused of not wanting to work overtime, Dick shoved him and suggested they fight. On the job, Dick was called a hot-head. One employee saw him throw a pan in anger. Dick admitted he shoved an employee once.

The employer contends that its suspension of the grievant did not violate the collective bargaining agreement. Disciplinary suspension for abusive conduct toward supervisors has consistently been upheld by arbitrators. The employer has not tolerated the grievant’s type of persistent insolent behavior from any other employee.

On several occasions prior to January 17^th the employer warned the grievant about his misbehavior toward the supervisors. Before discipline was imposed, the employer investigated the grievant’s conduct. The investigator was not personally involved in the incident and held no bias against the grievant. The employer had substantial bias for concluding that the grievant engaged in the conduct. The union agreed that the grievant’s conduct warranted some level of discipline. The discipline did not amount to disparate treatment.

The arbitrator should not consider the grievant’s argument that he did not misbehave on January 17^th. The union’s demand for lesser discipline is inconsistent with the claims that the grievant’s conduct was proper.

Regarding the January 17^th incident, the evidence and logic compel the conclusion that Dick is to be believed and the grievant not believed. The grievant’s conduct, as described by Dick, is consistent with the grievant’s previous defiant and insolent conduct that the grievant admitted. He “flipped off” Dick, he put his finger in Dick’s face, he said Dick ran with his tail between his legs and he called Nelson insulting names over the intercom. The grievant claimed to have heard Dick only once on January 17^th; however, he had previously reacted in silence to supervisor’s directions.

While Dick may have had run-ins with other employees, he had not done so since he became a foreman. He has not been verbally or physically abusive to anyone. Even if Dick had been overbearing as a foreman, that would not warrant relief for the union.

The grievant’s assertion that he does not use profanity is incredible because he regularly communicates with his middle finger. So is his assertion that he walked away from Dick when Dick allegedly wanted to fight, since he usually calls supervisors when told to do his work. The grievant’s attempt to strengthen his story by false and misleading testimony should discredit his whole explanation. Any consideration that might otherwise attach to his 12 years of service and first-case mitigation should be dismissed.

The union did not contend that the employer’s witnesses had motivation to lie. Absent proof they had such motive, the arbitrator should credit the employer’s witnesses. Where testimony of an accused employee who has a definite incentive for denying charges is contradicted by another who has nothing to gain or lose, the testimony of the disinterested witness should be given the greater weight.

To sustain the grievance would signal the workforce that defiance of management is tolerable because, without eyewitnesses, the employer’s hands are tied. It would be easy for the employee to deny any offense and the union to argue the employer needs witnesses.

Crediting any portion of the grievance will negate management’s ability to direct the workforce. Management has the right to do so under the management rights provision of the collective bargaining agreement.

The employer conducted a fair investigation of the grievant’s behavior and determined that substantial evidence proved his misconduct. Management’s judgment regarding the degree of penalty imposed should not be disturbed. Leniency is the prerogative of the employer rather than of the arbitrator. The arbitrator should not substitute his judgment for that of the employer unless there is compelling evidence that the employer abused its discretion.

The union contends that the employer did not establish wrongdoing by the grievant on January 17, 1998 and the grievance should be sustained. When the grievant heard Dick, he got up and moved the rack. The sole point of dispute, and the reason for which the grievant received a five-day suspension, arose from Dick’s accusation that the grievant swore at Dick when he got up. The grievant denied doing so, but he acknowledged he made a comment to Dick that Dick should think about what was going on. The grievant was not insubordinate. He did not refuse to disobey Dick’s directions.

There were no corroborating witnesses to the accusation by Dick that the grievant used profanity toward him. All three employees spoken to by Holmberg said they did not see or hear anything. Holmberg issued the five-day suspension without corroboration from anyone and despite the grievant’s denial he used profanity. It was the word of one individual against another. The employer failed to prove its case by even a preponderance of the evidence.

The employer tried to bolster its case by bringing up two incidents that occurred prior to the January incident. It was on November 20, 1997, however, that the employer issued its policy change. Even if the grievant did use profanity on January 17, 1998, it was the first infraction of a new rule. Under the employers disciplinary policy, since no insubordination was involved, the penalty for the grievant’s alleged conduct was an oral warning. A second offense would have warranted a written reprimand.

Even if some steps in the progressive discipline sequence were legitimately bypassed, the five-day suspension cannot be justified. The bypass is applied if the offense is severe enough so that the degree of discipline matches the seriousness of the offense. For an alleged first offense, based on proof consisting only of the word of the accuser, taking away a week of employment from the grievant is unwarranted.

The collective bargaining agreement allows the arbitrator to modify the penalty. Moreover, it is generally held that the arbitrator may change penalties found to be improper where the agreement fails to restrict his right to do so.

The alleged incidents prior to the January incident are irrelevant, misleading and confusing. They preceded the November 20, 1997 policy. They introduce behaviors by the grievant and Dick, but fail to clarify events of January 17^th.

The testimony of the union’s witnesses regarding Dick’s belligerent conduct is relevant to determining his credibility as to whether the alleged insult occurred on January 17^th. The examples of Dick’s inability to refrain from pugnacious reactions lends support for the expectation that a similar reaction may well have been evoked if the grievant had used profanity against him on January 17^th. Since there was no such reaction, one can conclude no profanity toward Dick was used by the grievant.

As to the October 9, 1997 incident, the grievant’s decision to call a higher supervisor was proper. It is unclear whether the grievant received any discipline. Despite the fact a witness stated documentation existed showing the issuance of a verbal warning, none was produced.

The use of the November 17^th incident by the employer is unfair. The grievant asked for a union representative and was told there was no need because there was no disciplinary action being taken. The disciplinary letter of January 19^th specifically refers to the November 17^th incident. For the employer to deny the grievant representation then and now to utilize it to justify advanced discipline is unfair. Past rule infractions where the employee was in no way reprimanded, or past warnings that were not put in such form as to make them subject to a grievance should not be considered.

Each time there was a disagreement between the grievant and a supervisor, it was always the grievant who called for a higher level supervisor. It would have been consistent with prior behavior to have called a higher supervisor, if he had gotten into a verbal altercation with Dick on January 17^th.

The question is whether the employer met its burden of proving by a preponderance of the evidence that the grievant committed an infraction of the employers rules and if so, was a five-day suspension without pay justified. For the reason set forth below, my review of the evidence leads me to conclude the employer did not meet its burden. There is considerable doubt that the grievant behaved on January 17^th as the employer alleged. Moreover, even if one credits the testimony of foreman Dick and accepts the facts as he related them, the punishment imposed by Holmberg was too severe for the nature of the offense committed when compared with the penalty given to Brian Knaub earlier.

Insubordination under the employer’s discipline policy carries a discharge for the first offense. Yet, when Knaub was disciplined, he received only a five-day suspension. Under the discipline and discharge provisions of the collective bargaining agreement, gross insubordination subjects the offending employee to immediate discharge. The closest offense, the one the grievant was punished for, listed under the employer’s disciplinary policy, “Unsatisfactory performance of assigned duties” shows an oral warning for the first offense, a written reprimand for the second, and a five-day suspension for the third. Even considering that the new anti-profanity policy was in effect at the time of the grievant’s alleged profanity toward Dick, the offenses charged to the grievant do not rise to the level of severity to warrant a penalty three steps upward in the progressive discipline scheme of the collective bargaining agreement.

The grievant was not suspended for insubordination or unsatisfactory performance of assigned duties, offenses listed under the employer’s 1993 disciplinary policy, He was suspended for using profanity toward a supervisor, in violation of a new policy, and for his behavior prior to the issuance of the anti-profanity policy, that is to say, his lack of respect for supervisors and not performing tasks as soon as he was asked. According to Dick, that meant having to be asked three times. Crediting the testimony of foreman Dick, given the evidence on the record in this case, is problematical at best.

Foreman Dick had a reputation among his fellow employees as a hot head. He, on a number of occasions, confronted his fellow workers and showed signs of having a temper. Dick testified he approached the grievant from behind three times on the 17^th of January to get him to move the rack and each time the grievant stared straight ahead. If that was so, and if Dick was seriously trying to communicate with the grievant, why would he not have tapped the grievant on the shoulder, or moved closer to his front to make himself seen? The area was noisy, employees wore earplugs, any reasonably serious person trying to communicate effectively with a subordinate, whether or not he thought the subordinate was ignoring him, would attempt to get his attention by means other than the voice, if the voice failed to do so. It would not be illogical to conclude, since Dick neither tapped the grievant on the shoulder or arm nor moved to a place where the grievant could see him, that Dick wanted to see how many times he could speak to the grievant from behind without getting an answer.

The grievant had a reputation for not using profanity or engaging in conflict. None of the employees who were nearby when the incident occurred on January 17^th heard anything, although one said he thought there was friction. If the scene had been as Dick described it, it is likely those employee would have heard, especially if the grievant had said what Dick testified to. Moreover, if the grievant had said “F___ you!”, given Dick’s reputed temper, it is likely Dick would have reacted in a manner that the nearby employees could have heard.

Holmberg testified he used the October 9, 1997 incident and the January 17^th incident to form the basis for his decision to imposed the five-day suspension on the grievant. He conceded it was proper for the grievant to call Nelson over during the October incident, that was what employees were supposed to do. There was no evidence that the grievant was given any kind of written reprimand for his behavior. Holmberg’s notes about an October 15^th meeting about the October 9^th incident did not indicate anything beyond an oral admonishment took place. At the time of the October incident, the employer had not issued its anti-profanity policy.

Contrary to the employer’s argument, the union’s demand for lesser discipline than that imposed on the grievant is not inconsistent with its claim the grievant’s conduct was proper on January 17^th. Parties often try to settle disputes prior to going to arbitration, they propose concessions to settle the matter short of hearing that they would not otherwise propose.

The grievant’s testimony that he does not use profanity is consistent with the testimony of his fellow employees who have known him for a long time. While it may be inconsistent with his use of his middle finger on at least one occasion, it is more credible than the testimony of foreman Dick regrading the January 17^th incident, which is the primary focus of this case. Without that incident, as alleged by Dick, no discipline would have been imposed on the grievant.

Foreman Dick cannot be described as a disinterested witness who had nothing to gain. He needed to defend the position he took when he concluded the grievant heard him on January 17^th. Dick’s testimony regarding the January 17^th incident is not plausible and cannot be credited. A reasonable person sincerely wishing to communicate with another in a noisy atmosphere would have ensured he had the attention of the person to whom he addressed his order. Therefore, since the January 17^th incident precipitated the grievant’s discipline and the other alleged misconduct by the grievant occurred prior the issuance by the employer of the November 20^th policy prohibiting derogatory or profane language or gestures in the work place, the discipline imposed was not proper and must be set aside. The employer violated the collective bargaining agreement by disciplining the grievant.

The grievance is sustained. The employer is order to remove any record of the discipline from the grievant’s records and to reimburse him for lost wages and benefits caused by the five-day suspension.

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.