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Title: Premier Chemicals and International Union of Operating Engineers Local No. 3
Date: August, 1999
Arbitrator: Jack H. Calhoun
Citation: 1999 NAC 117

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

 

INTERNATIONAL UNION OF OPERATING            )

ENGINEERS, LOCAL NO. 3,                                    )

                                                                                    )                       OPINION

and                                                                               )                       AND

                                                                                    )                       AWARD

PREMIER CHEMICALS.                                            )   

                                                                                                   FMCS NO. 99-07855                      

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

 

 

 

HEARING HELD

July 23, 1999

Reno, Nevada

 

 

______________________________________________________________________________

 

REPRESENTATION

 

FOR THE UNION:                                                            FOR THE EMPLOYER:

 

Mary M. Leichliter                                                            Frank Miller

Van Bourg, Weinberg, Roger & Rosenfeld                        Vice President of Human Resources

180 Grand Avenue, Suite 1400                                    901 East Eighth Avenue

Oakland, CA 94612                                                            King of Prussia, PA 19406

 

 

 

 

BACKGROUND


            The 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.

ISSUE

            The 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

            The following provisions of the parties’ collective bargaining agreement are relevant to the issue in dispute:

ARTICLE X

SAFETY

Section 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.

Section 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.

 

 

 

ARTICLE XIV

GRIEVANCE PROCEDURE

When 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:

. . .

All 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.

ARTICLE XV

MANAGEMENT RIGHTS

Section 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.

. . .

Section 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.

. . .

 

FACTS

            On 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.

            As 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.

            On 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 the act.

            The 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.

            Superintendent 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.

            On 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.

            The 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.

            Superintendent 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.

            Superintendent 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.

            Superintendent 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.

            Article 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

            The 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.

            The 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.

            The 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.

            The 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.

            The Grievant was not harmed by the additional review that his denial caused.  He was not prejudiced by the additional review.

THE UNION’S POSITION

            The 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.

            The 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. 

            Although 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.

            The 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.

            On 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.

            The 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.

            There 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.

            The 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 violation.

            The 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.

OPINION

            The 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 XV.

            The 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 herein. 

            As 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.

            The 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.

            The Union’s argument regarding the uncorroborated hearsay testimony of Loeppky is sound.  There simply was no corroborating evidence to support his testimony.

            As 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.

            It 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.

            The 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.

            The 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.

            The 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[3][c].

            In 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.

AWARD

            The 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

 

104-99CA

 

 

 

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