Title: Premier Chemicals and International
Union of Operating Engineers Local No. 3
THE MATTER OF THE GRIEVANCE
UNION OF OPERATING
LOCAL NO. 3,
PREMIER CHEMICALS. )
FOR THE EMPLOYER:
Bourg, Weinberg, Roger & Rosenfeld
Vice President of Human Resources
Grand Avenue, Suite 1400
901 East Eighth Avenue
King of Prussia, PA 19406
International Union of Operating Engineers, Local No. 3 (the Union herein) and
Premier Chemicals (the Employer herein) are parties to a collective bargaining
agreement that provides that employees be given warning notices within a certain
time from the time the Employer learned of alleged rule infractions.
The Grievant, Steve Swisher, received a written warning and suspension
for violating safety rules. The
Union filed a grievance contending the warning and suspension were untimely
given under the terms of the agreement. The
parties agreed the matter was properly before the arbitrator.
employer stated the issue as whether the discipline imposed upon the Grievant
was proper under the terms of the agreement.
The Union maintained the discipline was not timely issued as required by
the agreement. The issue to be
decided is whether the Employer timely issued the warning and suspension, and if
so, whether the discipline was proper under the terms of the agreement.
RELEVANT CONTRACT PROVISIONS
following provisions of the parties’ collective bargaining agreement are
relevant to the issue in dispute:
1. The company agrees that its
operations shall be carried on in compliance with all federal, state and local
laws and regulations governing safety and sanitation.
2. The Union and the Company shall
cooperate with each other in the carrying out of all Company safety measures and
practices for accident prevention and employees shall perform their duties in
each operation in such a manner as to promote efficient operation of each
particular duty or any job as a whole.
it is alleged that the Company has violated the terms of this Agreement, an
employee having such grievance against the Company, shall pursue the grievance
in the following manner:
time limits set forth above shall be exclusive of Saturdays, Sundays and
holidays. All time limits may be
extended by mutual agreement of both parties in writing.
1. The Company is to be the sole
judge as to the competency and fitness of prospective employees and the
satisfactory performance of work by any employee and may discharge any employee
whose work is unsatisfactory or who fails to observe the safety precautions or
other rules and regulations prescribed by the Company for the health, safety and
protection of its employees. Any
employee who is aggrieved by the judgment of the Company shall have recourse
through the Grievance Procedure.
4. With respect to Company written
warning notices to employees, such notices shall be issued by the Company to an
employee within five (5) working days from the time the Company first learns of
an employee’s alleged infraction of company rules.
December 2, 1998, the Employer’s mine and refinery operation in Nevada
underwent an inspection by the Mine Safety and Health Administration (MSHA) of
the U.S. Department of Labor. During
the course of the inspection an employee, Anderson, was seen by the inspector
working at a height in excess of 60 feet above the ground.
He had climbed over the railing of the work platform to hook a sling on a
crane to a welder that was located on top of a store bin that had no outside
rails. He had no safety belt and
was not tied off, in violation of safety rules.
a result of Anderson’s conduct, the Employer was issued a citation and fined
by MSHA. The Employer did not
challenge the citation and fine because its managers believed the act Anderson
committed was unsafe and in violation of safety rules.
The Employer did; however, impose discipline on Anderson.
December 7, 1998, Superintendent Loeppky called Anderson in and gave him a
three-day suspension and reprimand. During
the course of his conversation with Loeppky, Anderson asked why he was being
singled out for punishment. He
stated that the Grievant, Swisher, had done the same thing and that another
employee, Dennis, the union safety representative, had also seen Swisher commit
Grievant was on vacation December 7 and 8.
Superintendent Loeppky wrote a notice of reprimand to him on December 9
stating that he was suspended for three days.
When Loeppky called the Grievant in and handed him the written reprimand,
the Grievant read it, refused to sign it, and according to Loeppky’s
testimony, said he could not recall being over the railing without a safety
belt. The Grievant testified that
he told Loeppky he was not beyond the hand rail without a safety belt.
The Grievant asked Loeppky who had told him the Grievant had done so. Loeppky did not tell him, but he did tell the Grievant he was
going to investigate the matter further.
Loeppky talked with Dennis again on December 10 and with Anderson again on
December 14. They confirmed what he had initially determined.
Loeppky did not work on December 11, he was on vacation. The Grievant was
on sick leave on December 14.
December 15, Loeppky gave the Grievant the notice of reprimand and three-day
suspension. The Grievant told him
it was untimely issued under the terms of the collective bargaining agreement.
MSHA inspector did not see the Grievant violating safety rules.
The Grievant observed the inspector below when the Grievant went on top
of the silo to check on why the power was off.
He also saw Anderson. According
to the Grievant, he Swisher, did not fail to wear required equipment of December
2. No MSHA safety violation
citation was issued to the Employer that involved the Grievant.
Loeppky did not talk to the MSHA inspector about the Grievant’s alleged
violation of safety rules, although he could have done so if he chose.
He did not do so despite the fact he testified on cross examination that
he had reason to doubt whether the Grievant actually had committed the violation
as alleged by Anderson and Dennis.
Loeppky did not give the Grievant the written reprimand and suspension on
December 10 because it was a busy day and because Anderson was still on
suspension and he needed to talk to him. Anderson
returned on December 11, but Loeppky was on vacation at that time.
Loeppky made no effort to contact the Grievant at home by telephone or
mail during any time pertinent here. Such
was not the usual practice in issuing reprimands, although employee telephone
numbers and addresses are on file with the Employer.
Loeppky did not attempt to call the Union and request an extension of
time to investigate the matter, nor did he consult with his superiors.
Loeppky did not give the Grievant the names of Anderson and Dennis during any
time prior to the hearing. He did
not ask Dennis, the Union safety representative, why he failed to come forward
immediately after he allegedly saw the Grievant violating safety rules.
XIV of the parties’ previous collective bargaining agreement provided that the
Employer have ten working days from the time it first learned of an alleged rule
infraction until it issued a written warning notice to the employee.
The current agreement reduced that time to five working days.
POSITION OF THE EMPLOYER
Employer contends the three-day suspension and warning it imposed on the
Grievant was proper and was issued timely in accordance with the terms of the
collective bargaining agreement. The
Grievant committed a major safety rule violation that put him in serious danger.
Grievant was on vacation on December 7 and 8.
Those days should not be counted as working days.
When he returned on December 9, he was presented with the reprimand and
suspension notice. Since he would
not acknowledge any wrongdoing, Superintendent Loeppky, in the interest of being
sure the facts he had been told were correct, told the Grievant he would pursue
the matter further.
Grievant’s claim that he could not recall committing the safety violation was
a ploy to get more time and postpone the reprimand.
On December 14, Superintendent Loeppky was prepared to give him the
reprimand, however, the Grievant avoided it by calling in sick on what would
have been a normal work day. When
on December 15, the following day, Loeppky gave him the reprimand, he pointed to
the agreement and said the reprimand was not in accordance with its terms.
reprimand was actually given on December 9.
His denial caused further review. His
absence from work on regularly scheduled work days, due to vacation or sickness,
should not be used to his benefit. If
a vacation or sick day could be counted as a work day, the Grievant could have
avoided the reprimand by taking another week’s vacation or sick leave, leaving
us with a harsh, absurd and nonsensical result.
Such was not the intent of the agreement.
The Grievant should not be allowed to benefit by his own deception.
Grievant was not harmed by the additional review that his denial caused.
He was not prejudiced by the additional review.
THE UNION’S POSITION
Union contends the Employer did not meet the time lines provided in the
collective bargaining agreement when it issued the reprimand on December 15.
The parties’ bargaining history supports that conclusion.
The previous agreement gave the Employer ten working days to issue the
warning. The new agreement gives
the Employer only five working days. The
reason the time was changed was to give the Employer the same amount of time to
come forward after it found out an employee violated a rule as the employee had
to file a grievance.
Grievant allegedly committed the violation of the safety rule on December 2, yet
the Employer did not inform him until December 9, seven days later. On December
9, no written reprimand was issued to him.
He worked December 10 and 11. The
Employer could have investigated the matter and issued the reprimand then,
however, the Employer waited until December 15.
the agreement, at Article XIV, states all time limits are exclusive of
Saturdays, Sundays, and holidays, the time limits may be extended by mutual
agreement. The Employer never
sought the Union’s agreement to extend the time.
If the parties had wanted to write in an exception to the five-day limit
for issuing warnings when the employee was away on vacation or sick leave, they
could have done so. They did not do so. The contract language is clear.
It therefore, binds the parties. Nothing
in the contract says vacation or sick leave used by the employee or the
supervisor tolls the running of the five days.
employee who informed Superintendent Loeppky that the Grievant violated a safety
rule was never identified to the Union. That
fact caused deep prejudice to the Union because it did not have an opportunity
to investigate the employee or to speak with him and determine whether he was
physically in the same location as the Grievant on the day in question.
December 10, all Loeppky had to do was call the Union and say they were having a
busy day, they needed extra time to wrap the matter up. He did not do so because
he wanted to use his vacation the next day.
He was lazy and the Union should not be burdened by his laziness.
purpose of the five-day limit is to put the Union on notice so it can interview
witnesses before their memories become dim.
By the time the Grievant received the written notice and suspension
thirteen days had passed.
was no proof the Grievant did what he was charged with.
The employer did not look into Anderson’s motive for complaining five
days after the incident. The MSHA
inspector did not see the Grievant without a safety belt, although he did see
others without safety belts.
evidence offered by the Employer is uncorroborated hearsay by employees who were
not brought in by the Employer to testify.
The Union did not have an opportunity to cross examine them.
If the Grievant did not have his safety belt on and Dennis saw him, why
did Dennis not come forward sooner. He
only came forward when he was confronted by management about the alleged safety
arbitrator cannot rely on the uncorroborated hearsay testimony of the
Superintendent to justify the suspension of the Grievant.
The Grievant’s testimony about the event was credible.
He gave details regarding the event.
Employer had the burden to show by a preponderance of the evidence that it had
cause to impose a three-day suspension upon the Grievant because of the alleged
safety rule violation. The Union,
however, raised the procedural question of timeliness, therefore, the Union had
the burden to show its position on the procedural issue was the correct one. By raising the affirmative defense, the Union assumed the
burden of proof to show by a preponderance of the evidence that the Employer
failed to comply with the time limit in the agreement for issuing written
warning notices to employees for safety violations under the terms of Article
evidence on the record in this case compels the conclusion that the Union
carried its burden. The Employer
failed to issue the suspension and warning notice to the Grievant within five
working days from the time it first learned of the Grievant’s alleged
infraction of the safety rule. My reasons for reaching that conclusion are set forth further
to the substantive question presented, suffice it to say it is unnecessary to
address it in detail, since the evidence on the procedural issue is conclusive.
While it is not determinative of the dispute, it may be worth noting that
the evidence indicates the Employer’s investigation into the alleged safety
infraction was suspect.
Union was never informed of the identify of the employee who first accused, on
December 7, the Grievant of engaging in a safety rule violation.
The Grievant had no opportunity to determine the circumstances under
which he made his accusation. Moreover,
Superintendent Loeppky based his determination that the Grievant had engaged in
the violation on what Anderson and Dennis said without considering their
motives, especially in light of the fact the MSHA inspector did not see the
Grievant doing what he was suspended for, and the Union safety representative
did not come forward immediately. At
best, after the Grievant denied or failed to recall committing the violation,
Loeppky should have considered other factors, such as motives, rather than
reconfirming what they earlier had said.
Union’s argument regarding the uncorroborated hearsay testimony of Loeppky is
sound. There simply was no
corroborating evidence to support his testimony.
to the procedural issue and the determinative question on which this decision is
based, the Union’s position is reasonable and supported by the record.
is the language of the collective bargaining agreement that shows what the
parties intended with respect to Employer notices to employees regarding safety
violations. It is seminal in
contract construction that arbitrators give effect to clear and unambiguous
language in contracts. Where
language is not reasonably susceptible to more than one meaning, it is
unambiguous. In the instant case,
the language of Article XV, Section 4, is clear. The Employer had five working
days from December 7, 1998, in which to issue the warning and suspension.
Superintendent Loeppky did not issue the notice on December 9 because he
felt he needed to investigate the matter further.
He could have simply issued the notice on the 9th and walked
away despite the Grievant’s protestations.
Instead he decided to continue his inquiry.
As of the 9th, the Grievant was not put on notice he was being
suspended. That did not happen
until the 15th, six working day after Anderson told Loeppky about the
Grievant’s alleged safety violation.
agreement places the obligation on the Employer to issue the notice within five
working days from the date of knowledge of the alleged infraction.
The term “working days” limits the time to the Employer’s
“working days” not the employee’s “working days”.
The definition of the term depends on who is being required by the
agreement to act. Indian Head,
Inc., 71 LA 260 (1978 WEISS). The
Employer is required to act here. It
is required to act within five days during which
it is open for business and utilizing the work of bargaining unit
members. That the Grievant was on vacation the first of the five days
and sick the last of the five, does not serve to extend the time limit.
The agreement makes no exception for days the employee was absent.
It is presumed the negotiators knew what they were doing when they
drafted the language of Article XV and other provisions of the agreement.
Employer argues that the agreement should be interpreted so as to avoid harsh,
absurd, or nonsensical results. No
such results are reached here because despite any ulterior schemes or motives
one might imagine an employee could engage in, the Employer can issue the
written notice. If the employee is not present, the notice can be issued by
mail, assuming as the Employer suggests that an employee who thought he was
going to be served notice of an alleged infraction, decided to take time off.
It must be remembered that even in such hypothetical, extreme cases, it
is the Employer who approves leave taking.
In any case, there are readily available means for the Employer to serve
notices of alleged infractions on employees.
significance of contract language is presumed to be known by the parties.
The clear meaning of such language is usually enforced even though the
results may be harsh or contrary to the expectation of one of the parties. It is
not for the arbitrator to question whether the parties made a good bargain. Labor and Employment
Arbitration, Bornstein, Gosline and Greenbaum, gen. ed., Vol, 1, 1999, §9.02[c].
summary, I find that the Employer failed to issue the suspension and warning to
the Grievant within the five working day period as required by the agreement.
I will enter an award reflecting that determination.
grievance is sustained. The Employer is ordered to make the Grievant whole for the
three day suspension by paying him for the three days at his regular rate of pay
and restoring any other benefits to which he was entitled.
Dated this the _____ day of August 1999.
Jack H. Calhoun
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028