Title: Interstate Brands Corp and Bakery
Workers Local 466
THE MATTER OF THE GRIEVANCE
CONFECTIONERY AND TOBACCO
FOR THE EMPLOYER:
Ball, Enright, Mackey
Bioff, Singer and Fincuane
& Sommerfeld, P.L.L.P.
104 West Ninth Street
O Box 30457
Kansas City, MO 64105
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?
PROVISIONS OF THE AGREEMENT
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
. . .
4. Gross insubordination.
. . .
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
1. Oral warning
2. Written warning
3. Suspension without pay
(maximum 5 days)
4. Discharge for just cause
each step of progressive discipline the employee shall have the right to Union
. . .
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 9th 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 9th 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 16th 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
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 17th 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 17th 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
17th of January incident did not see or hear anything.
After Holmberg investigated the January 17th 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
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.
OF EMPLOYER, SUMMARIZED
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 17th 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 17th. The
union’s demand for lesser discipline is inconsistent with the claims that the
grievant’s conduct was proper.
Regarding the January 17th 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
17th; however, he had previously reacted in silence to supervisor’s
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
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
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
OF THE UNION, SUMMARIZED
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
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
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
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 17th.
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 17th.
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 17th 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 19th
specifically refers to the November 17th
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 17th.
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 17th
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
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 17th
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 17th 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
17th 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 15th meeting about the October 9th
incident did not indicate anything beyond an oral admonishment took place.
At the time of the October incident, the employer had not issued its
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 17th.
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
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 17th incident,
which is the primary focus of this case. Without
that incident, as alleged by Dick, no discipline would have been imposed on the
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 17th.
Dick’s testimony regarding the January 17th 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 17th incident precipitated the grievant’s
discipline and the other alleged misconduct by the grievant occurred prior the
issuance by the employer of the November 20th 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 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
Dated this ____day of February 1999.
Jack H. Calhoun