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Title: Longview Fibre Company and Western Council of Industrial Workers Local Union 2739
Date: July 18, 2001
Arbitrator: Eric Lindauer
Citation: 2001 NAC 118

IN THE MATTER OF THE ARBITRATION

   BETWEEN

 

WESTERN COUNCIL OF INDUSTRIAL      ) OPINION AND ORDER

WORKERS LOCAL UNION 2739,          )

UNION,  ) RE: Grievance of

          )   Tony Ortega --

and                           )   Termination

LONGVIEW FIBRE COMPANY,            ) 

                                     )

EMPLOYER.)

 

                             BEFORE

                         ERIC B. LINDAUER

                            ARBITRATOR

                          July 18, 2001

 

                            REPRESENTATION

 

FOR THE UNION:                              FOR THE COMPANY:

Harlan Bernstein                           Michael T. Reynvaan
JOLLES BERNSTEIN                             Sarah K. Morehead
Second Floor                                      PERKINS COIE
721 SW Oak Street                            1201 Third Avenue
Portland, OR 97205                     Seattle, WA  98101-3099


NATURE OF PROCEEDING

Western Council of Industrial Workers Local Union 2739 (the "Union") and Longview Fibre Co. (the "Employer" and/or the "Company") are parties to a Collective Bargaining Agreement (the "Agreement") which provides that the Employer has the right to discharge an employee for just and sufficient cause. The Grievant, Tony Ortega, a Hewsaw operator at the Company’s Leavenworth, Washington mill, was discharged on December 14, 2001 following an unauthorized towing of another employee’s vehicle in the Company’s parking area. The Union filed this grievance contending that the Grievant's discharge was without just cause.

The arbitration hearing was held on May 1, 2001 in Levenworth, Washington.  The Union was represented by its attorney, Harlan Bernstein, and the Company was represented by its counsel, Michael Reynvaan and Sarah Morehead.

At the arbitration hearing, the parties stipulated the matter was properly before the Arbitrator. During the course of the hearing, each party had an opportunity to make opening statements, introduce exhibits, and examine and cross-examine witnesses on all matters relevant to the issue in dispute. At the conclusion of the hearing, the parties waived oral argument and agreed to submit written post-hearing briefs. Upon receipt of the post-hearing briefs, the hearing record was closed and the Arbitrator took the matter under advisement.


    ISSUE

At the commencement of the hearing, the parties stipulated that the issue to be decided in this arbitration is as follows:

Did the Company have just and sufficient cause to discharge the Grievant, Tony Ortega on December 14, 2000?  If not, what is the appropriate remedy?

RELEVANT CONTRACTUAL PROVISIONS

In the opinion of the Arbitrator, the following provisions of the Collective Bargaining Agreement, the Company’s Work Rules and Disciplinary Program are relevant in determining the issue in dispute:

COLLECTIVE BARGAINING AGREEMENT

SECTION 21 - DISCIPLINE

A.   General:

1.     Discharge or suspension of an employee (not including a temporary suspension pending consideration of discharge) shall be based on just and sufficient cause with full explanation given to the employee in writing, with a copy to the Union Committee.  Proven violations of the Company’s Substance Abuse Policy currently in effect or as may hereafter be revised by the Company constitute “just and sufficient cause” for discipline for the purpose of this provision.

 

2.     All Company Mill rules, safety rules, and causes for disciplinary action, including causes for immediate discharge, now in force or hereafter adopted by the Company shall be observed by all employees.  The Company will consult the Union Committee prior to final adoption of such rules.  Failure to comply with Company rules, provided that such rules shall be posted where they may be read by employees or otherwise disseminated to employees, will be cause of disciplinary action, up to and including discharge.

 

3.     The normal procedure to be followed in discipline cases is as follows:

 

a.     Informal discussion.


b.     Formal counseling

c.     Record of reprimand

d.     Letter of reprimand

e.     Suspension and a letter of reprimand

f.     Discharge

It is recognized by the parties that different types of misconduct may require the elimination of some or all of the above steps.

* * *

SECTION 23 - ARBITRATION

* * *

 

The arbitrator’s decision shall be final and binding upon both parties; provided, however, the arbitrator shall not have authority to modify, add to, alter or detract from the provisions of this Agreement, or to impose any obligation upon the Union or the Company not expressly agreed to by the terms of this Agreement.  The arbitration proceedings shall be conducted in accordance with the American Arbitration Association Voluntary Labor Arbitration Rules except as modified by the provisions of this Agreement.  In the event of any conflict between the said rules and this Agreement, this Agreement shall prevail.  Each party to any case submitted to arbitration shall bear the expenses of preparing and presenting his own case, including witnesses, and shall share equally the charges of the actual arbitration costs.

* * *

SECTION 28 - WORK RULES

Work Rules are rules and procedures pertaining to day-to-day working relations between the Local Union and the Mill which are not in conflict with the provisions of the Agreement and which shall govern administration of matters which are appropriate for Work Rule establishment and application. When established as provided below, Work Rules will govern the matters covered therein for the Mill.

 

Work Rules shall be established as follows:


At any time during the term of this Agreement, the Union Shop Committee may submit to the Mill Manager and the Mill Manager to the Union Shop Committee, a proposed Work Rule or a change in an established Work Rule. Promptly after such submission, the Mill Manager and/or his designated representative(s) shall meet with the Union Shop Committee for the purpose of establishing or changing a Work Rule by mutual agreement. At any time after an established Work Rule has become effective, Work Rules can be changed or eliminated only by mutual agreement between the Union Shop Committee and the Mill Manager.

 

An alleged violation of an established Work Rule may be made the subject of a grievance and may be processed through arbitration. Arbitration awards thereon shall be as binding upon the parties as with any other award issued upon a matter properly submitted to an arbitrator and decided within his authority under this Agreement.

MILL AND SAFETY RULES

In order for any group of people to work efficiently and safely, there have to be certain standards of behavior which everybody understands and agrees to follow.  With this purpose in mind, we have the following standards.  These standards are not to be considered complete and may need to be revised as conditions require.  The method of discipline is based on just and sufficient cause.  Such cause includes, but is not limited to the following:

* * *

CAUSES FOR DISCIPLINARY ACTION

* * *

H.     Disorderly Conduct

 

1.     Fighting/Assault

2.     Harassment/Threats

3.     Horseplay

4.     Punching Another Employee’s Timecard.

DISCIPLINARY PROGRAM

DISCIPLINARY PROCEDURE - HOURLY EMPLOYEES

* * *

II     GOALS

 


A.     To eliminate disciplinary problems in advance as much as possible by letting employees know what offenses will be met with corrective action and what steps will be taken.

 

B.     To assure all employees that basic disciplinary procedures will be applied uniformly and consistently in all departments.

 

C.     To give employees who violate rules or whose behavior of work performance is below expectations, the opportunity to improve by letting them know what specific actions they should take to meet behavioral and performance standards.

III  PROCEDURE

A.     The Company has established and will follow a uniform discipline procedure consisting of:

 

1.     Informal Discussion

2.     Formal Counseling

3.     Record of Reprimand

4.     Letter of Reprimand

5.     Disciplinary Suspension with a      Letter of Reprimand

6.     Discharge.

* * *

E.     Disciplinary Steps:

* * *

6.     Discharge

 

There are two basic reasons for an employee’s discharge.  One, a serious violation of a cause for immediate discharge as outlined in the Company Rules, and referred to in Section 17, Paragraph 1.b of the Labor Agreement, so inexcusable that discharge is the proper penalty.  Second, is the failure of the normal previous disciplinary steps to effect the desired correction necessitating this final action. This action will be necessitated in the event the offense is repeated, or if another act of misconduct occurs within the time duration set forth in the formal letter accompanying the previous disciplinary suspension.


If all the facts indicate the apparent appropriateness of a discharge, the department superintendent shall review the case with the Personnel Department and a joint recommendation made based on the facts of the case. An employee may be discharged only with the sanction of the Vice President-Industrial Relations and/or Mill Manager. The Department Superintendent shall conduct a conference with the employee, at which the employee's supervisor and the appropriate Union representative as set forth in Section 17 of the Labor Agreement shall be present, in order to explore the reasons for the discharge, including the history of past offenses, and details of the current misconduct. The employ­ee at this conference should be allowed to respond to the charges.

After the conferences have been held and it is determined that a discharge is in order, a letter detailing the reasons for the discharge shall be prepared. The letter of discharge will be made in four (4) copies: Employee, Union, Department and Personnel Department (employee's history record).

VIII     RELATIONSHIP OF PROBLEM WORK BEHAVIOR TO DISCIPLINE

* * *

  SUMMARY OF FACTS

1.   BACKGROUND


The Company operates a sawmill in Leavenworth, Washington where it employs approximately 110 production workers who are covered by a Collective Bargaining Agreement with the Western Council of Industrial Workers, Local 2739.  Since 1991, Don Ledbeter has served as the Mill Manager with responsibilities for the administration of the labor agreement, including the investigation of employee disciplinary actions within the sawmill.  However, discharge cases are ultimately determined by Michael Fitzpatrick, Director of Human Resources at the Company’s corporate headquarters in Longview, Washington.

The Grievant, Tony Ortega, was hired at the Leavenworth mill in 1991.  At the time of his discharge, he was a Hewsaw operator on the day shift.  Although the Grievant had established a poor disciplinary record, he was nevertheless regarded by Mill Manager Ledbeter as a good worker, performing his responsibilities in a highly skilled position.  At the time of his discharge, the Grievant had served as the Union’s Shop Steward, a position he has held for six years.  The Grievant was discharged on December 14, 2000 for disorderly conduct arising out of an incident occurring in the Company parking lot on December 4, 2000. 

2.   THE DECEMBER 4, 2000 INCIDENT


On December 4, 2000, the Grievant, in the company of his girlfriend and fellow employee, Vicki Dotson, left the mill at the end of their day shift and proceeded to the Company’s parking lot, where they each had their own vehicles.  When they went to Ms. Dotson’s vehicle, they discovered that another employee had parked their car directly behind Ms. Dotson’s vehicle preventing her from leaving the parking area.  Neither the Grievant nor Ms. Dotson knew the owner of the car, which ultimately turned out to be Lannie Cox, an electrician on the swing shift.  On arrival at the parking area, Cox could not find a parking space so he parked his Buick behind Ms. Dotson’s vehicle.  Evidently employees, on occasion, park their vehicles in this manner when employees cannot find an available parking space.  Rather than going to the mill office to determine the owner of the vehicle, the Grievant got into his pickup, pulled around in front of the Buick and with a chain proceeded to tow the Buick approximately six feet away from the back of Ms. Dotson’s vehicle.  The parking lot was icy and the Buick, although in park, slid along the surface.  There was no damage to the Buick as a result of its being towed the short distance.  The Grievant and Ms. Dotson then left the parking area to pick up their respective children. 

During the course of the swing shift on December 4, 2000, Cox was advised by another employee that the Grievant had moved his car.  Cox reported the incident to Supervisor John Bradburn when he reported to work the following day, Tuesday, December 5, 2000.  No action was taken regarding the incident until Monday, December 11, 2000 when the Grievant was asked about the incident by Mill Manager Ledbeter.  The Grievant explained that the both he and Ms. Dotson were on a tight schedule to pick up their children and he simply did not have time to determine the owner of the vehicle.  Mr. Ledbeter advised the Grievant that he was suspended pending an investigation of the incident.

3.   THE COMPANY’S INVESTIGATION


Mill Manager Ledbeter obtained written statements from Lannie Cox and John Meyer, an employee who had observed the Grievant towing Mr. Cox’s vehicle.  Ledbeter then sent the written statements and the Grievant’s explanation, to Mr. Fitzpatrick at corporate headquarters, along with the Grievant’s disciplinary record.  On review of the incident with Ledbeter, the Company concluded the Grievant’s conduct constituted disorderly conduct and in violation of the Company’s work rules.  A charge of disorderly conduct is a reprimandable offense.  In determining the appropriate penalty, the Company took into consideration the Grievant’s past disciplinary record.

4.   GRIEVANT’S PRIOR DISCIPLINARY RECORD

During the one year period extending from October, 1999 to September, 2000 the Grievant had accumulated the following disciplinary record:

Date                         Disciplinary Action

October 27, 1999                     Informal Counseling
Smoking on the Job

(Co. Exh. 7,8)

   
    January 12, 2000                                                  Letter of Reprimand
                                           Disobedience and
                                           refusal
to comply
                                           with instructions

(Jt. Exh. 3)

March 14, 2000                       Informal Counseling
Poor attendance

(Co. Exh. 9)

April 19, 2000                       Informal Counseling
Violation of safety rules
   
        (Co. Exh. 10)

April 20, 2000                          Informal Counseling
Improper use of equipment

(Co. Exh. 11)

September 5, 2000                     3-Day Suspension and Letter of Reprimand Failure to report to work

(Jt. Exh. 3)

September 11, 2001                   Letter of Reprimand
and 3-Day Suspension
Absence
from work without bonafide reason.

(Jt. Exh. 4)


In the disciplinary actions initiated by the Company on September 5, 2000 and September 11, 2000, the Letters of Reprimand advised the Grievant that “. . .continued unsatisfactory attendance or any other infraction constituting just and sufficient cause for discharge, may result in your termination.”  (Jt. Exh. 3 and 4)

The Company and the Union have agreed to follow a progressive discipline policy as set forth in the Collective Bargaining Agreement and in the Company’s own “Disciplinary Program.”  As set forth in both documents, the steps in the progressive discipline policy are as follows: (1) informal discussion; (2) formal counseling; (3) record of reprimand; (4) letter of reprimand; (5) suspension and letter of reprimand; and, (6) discharge.  The Company contends that it followed the progressive discipline policy in reaching their decision to terminate the Grievant’s employment.

5.   THE DECISION TO TERMINATE


The decision to terminate the Grievant’s employment was made by Michael Fitzpatrick, the Company’s Director of Human Resources, after consulting with Mill Manager Ledbeter.  Fitzpatrick concluded the Grievant’s December 4, 2000 conduct in the Company’s parking lot constituted disorderly conduct, and as such, a reprimandable offense.  In Fitzpatrick’s view, once an employee had received a formal counseling, whether for attendance or job performance, any reprimandable offense automatically results in the next level of discipline.  Since the Grievant had previously received a disciplinary suspension for failing to report to work, the next reprimandable offense, in this case disorderly conduct, would, under the Company’s progressive disciplinary policy result in the Grievant’s discharge.  On the basis of the Grievant’s disorderly conduct on December 4, 2000 and his past disciplinary record, Fitzpatrick concluded that the discharge was the appropriate penalty pursuant to the Company’s progressive disciplinary policy.

On December 14, 2000, the Company met with the Grievant and his Union steward, at which time the Grievant was given his letter of termination.  The discharge letter concludes:

After a comprehensive review of the facts, I have reached the conclusion that your actions constituted “disorderly conduct”.  Your actions were intentional and deliberate and could have caused serious damages to another employee’s property.  Your actions constitute just and sufficient cause for serious disciplinary action, up to and including discharge, as outlined in Section 21.A.1. of the Labor Agreement.

 

A review of your work record indicates that you received a Letter of Reprimand on January 12, 2000 for “Disobedience” and subsequent to that you received a Letter of Reprimand and Suspension on September 6, 2000 for “Poor Attendance” and Failure to report Without a Bona Fide Reason.”  Any reprimandable offense, including “disorderly conduct” requires the next level of discipline to be given, which in your case is discharge.

(Jt. Exh. 5)

Following his discharge, the Union, on behalf of the Grievant, filed this grievance contending the discharge was without just cause.  The parties being unable to resolve the grievance, submitted the issue to arbitration.


  OPINION

The crux on this case is whether the Grievant’s off-duty conduct in the Company’s parking area on December 4, 2000, constituted disorderly conduct; and whether such conduct, combined with the Grievant’s prior disciplinary record, constituted just cause for his discharge.

The parties are familiar with the guidelines used by arbitrators in determining discipline and discharge cases.  The just cause guidelines provides that the arbitrator must address two issues.  First, has the employer established by the requisite degree of evidence that it had just cause to discipline the employee?  Second, is the penalty of discharge, under all of the circumstances surrounding the case, either excessive, unreasonable, or discriminatory in nature so as to justify a modification of the penalty?  I have reviewed all of the evidence submitted during the course of the hearing and have considered the arguments of counsel as set forth in their post-hearing briefs.  On the basis of this review, I have reached the following findings and conclusions in response to each of these issues.

I.   JUST CAUSE

Section 21.A.1. of the parties’ Labor Agreement provides that:


1.     Discharge or suspension of an employee (not including a temporary suspension pending consideration of discharge) shall be based on just and sufficient cause with full explanation given to the employee in writing, with a copy to the Union Committee.  Proven violations of the Company’s Substance Abuse Policy currently in effect or as may hereafter be revised by the Company constitute “just and sufficient cause” for discipline for the purpose of this provision.

I regard just and sufficient cause as one and the same.  It requires no further burden on the Company than a simple just cause provision and none shall be imposed.

The Company’s responsibility in this matter is to establish by a preponderance of the evidence that it had just cause to take disciplinary action against the Grievant for his conduct in the parking area on December 4, 2000. 

The Company has, pursuant to Section 28 of the Labor Agreement, established certain work rules governing the day-to-day conduct of mill employees.  These work rules have been set forth in Company’s “Mill and Safety Rules” which specifically provide a listing of “Causes for Disciplinary Action.”  (Jt. Exh. 2) Section 2.H of the Rules sets forth a listing of what the Company considers examples of “disorderly conduct.”

IV.     Violation of Mill Rules

* * *

H.     Disorderly Conduct

1.     Fighting/Assault

2.     Harassment/Threats

3.     Horseplay

4.     Punching another employee’s time card

However, the Company is not specifically limited to the examples of disorderly conduct listed in Section H of the work rules.  The introductory language of the work rules state:


. . .With this purpose in mind, we have the following standards.  These standards are not to be considered complete and may need to be revised as conditions require.  The method of discipline is based on just and sufficient cause.  Such cause includes, but is not limited to the following: (Emphasis Added)

The just cause provision of the Labor Agreement and the Company’s Work Rules provides the basis for the disciplinary action against the Grievant.  Thus, the first issue is whether the Grievant’s December 4, 2000 conduct constitutes a violation of the work rules. 

A.     The Grievant’s Conduct on December 4, 2000 Constituted A Violation of the Work Rules.

The Company contends the Grievant’s conduct of towing another employee’s vehicle without first seeking permission constitutes disorderly conduct.  The Union’s response is two fold.  First, the Grievant was off duty at the time of the incident and therefore not subject to the Company’s Work Rules; and second, the incident was so minor in nature that it could not be classified as disorderly conduct, as defined by those types of conduct listed in Section H.

Since the real issue in this case centers on the application of the Company’s progressive discipline policy, I will not devote a lot of discussion on the issue of just cause.  I have easily reached the conclusion that the Company has established by preponderance of the evidence that it had just cause to discipline the Grievant.  I have reached this conclusion for the following reasons:


1.   The Off Duty Conduct

Clearly, the Grievant was off duty at the time of the incident.  He and his girlfriend, Vicki Dotson, had completed their day shift and had punched out at 2:30 p.m.  However, the fact that the Grievant was off duty does not exempt him from the application of the Company’s rules, particularly where such conduct occurs on Company property as it did here.  There are legions of parking lot cases holding the employee accountable for work rule violations even though they occurred while the employee is off duty. 

It appears clear that off-duty employees have a general obligation to observe plant rules while on company premises and that they may be subject to discipline for their misconduct even though the misconduct (which often will adversely affect employee morale, discipline, or other legitimate company interests) occurs while they are off duty and in a nonworking area of the plant such as the company cafeteria or parking lot.  (Emphasis Added)

Elkouri & Elkouri

How Arbitration Works

Fifth Ed.(BNA 1997) Page 899

I conclude that just because the Grievant was off duty at the time of this incident does not insulate him from the application of the Company’s Work Rules.

2.     The Nature of the Incident

The Company’s position that the Grievant’s conduct constituted disorderly conduct is best set forth in their letter of termination:


After a comprehensive review of the facts, I have reached the conclusion that your actions constituted “disorderly conduct”.  Your actions were intentional and deliberate and could have caused serious damages to another employee’s property.  Your actions constitute just and sufficient cause for serious disciplinary action, up to and including discharge, as outlined in Section 21.A.1. of the Labor Agreement.

 

A review of your work record indicates that you received a Letter of Reprimand on January 12, 2000 for “Disobedience” and subsequent to that you received a Letter of Reprimand and Suspension on September 6, 2000 for “Poor Attendance” and Failure to report Without a Bona Fide Reason.”  Any reprimandable offense, including “disorderly conduct” requires the next level of discipline to be given, which in your case is discharge.

(Jt. Exh. 5)

The Union believes this is much a do about nothing and certainly does not fall within the type of conduct the Company lists as examples of disorderly conduct in the General Mill and Safety Rules.  Further, since the Grievant’s conduct was not of the type specifically listed in Section 2.H of the Rules, the Grievant cannot be charged with disorderly conduct.  I disagree.

The types of conduct listed under Section 2.H of the Rules are listed as examples of disorderly conduct.  The Company is not limited to the four acts of misconduct set forth in Section 2.H to sustain an allegation of disorderly conduct.  The introductory paragraph of the Rules state that the Company is “not limited to” the following causes for disciplinary action. 


Disorderly conduct within the industrial work place can take on many forms and simply because the Company has not listed all of them, including towing another employee’s vehicle, is not a bar to charging an employee with a disorderly conduct violation.  Although the Grievant’s parking lot conduct does not rise to the serious level of those examples listed in Section 2.H of the Rules, it nevertheless falls within the general definition of Disorderly Conduct.  Attaching a chain to another employee’s car and dragging it across the parking lot is inappropriate, ill-considered and, as acknowledged by the Grievant in the fact finding meeting, “stupid.”  As such, the Grievant’s conduct falls within the general definition of disorderly conduct.

3.     Additional Contentions of the Union

The Union has raised two additional contentions that need to be briefly addressed.  First, the Union contends the Company did not confront the Grievant regarding his conduct until a week after the incident.  This delay, in the Union’s view, indicates the Company did not take the Grievant’s conduct all that seriously and therefore neither should the arbitrator.  The evidence established that there were explanations for the week delay which I found be to reasonable. 


Second, the Union contends the Company cannot introduce evidence of conduct which extends beyond the allegations set forth in the December 14, 2000 letter of discharge in determining whether the Grievant’s discharge was for just cause.  Section 21.A of the Labor Agreement requires that a “full explanation” be provided to the employee to establish the basis for the just cause discharge.  This contention is also without merit.  The Grievant received a two page letter from the Company setting forth in detail the basis for his discharge.  The Grievant can hardly contend that he was not given a full explanation of the reasons for his discharge.  Neither the Union nor the Grievant can contend any surprise or prejudice regarding the basis for the Grievant’s discharge in this case.

B.   The Company Had Just Cause to Take Disciplinary Action Against The Grievant.

On the basis of the foregoing analysis, I conclude the Company had just cause to initiate disciplinary action against the Grievant for towing another employee’s vehicle in the Company’s parking lot on December 4, 2000.  The Grievant may not have realized that such conduct could be determined by management to fall within the definition of disorderly conduct, but he should have realized that it was wrong and could subject him to disciplinary action.  Disorderly conduct is defined as “[A]ny of various petty offenses involving a disturbance of public peach and decorum”. The American Heritage Dictionary of the English Language, (1969) Page 379.


The Union minimizes the Grievant’s conduct contending that he should not be discharged for simply moving an improperly parked vehicle.  The Grievant contends his conduct was justified on the basis that he had to move the car in order to allow his girlfriend to back her car out and leave the employee parking area to pick up her child from day care.  Standing alone, I would agree with the Union.  However, in the words of Union’s counsel “there is more, much more.”  In the Company’s view, the Grievant’s conduct on December 4, 2000 was simply the last step in a long series of disciplinary actions the Grievant had accumulated over a relatively short period of time.  As will be discussed in the next section, the Grievant’s conduct on December 4, 2000 must be considered in context with the Grievant’s prior disciplinary record.

On the basis of this record, I am persuaded that the Company has satisfactorily met its burden of establishing by a preponderance of the evidence that it had just cause to take disciplinary action against the Grievant for his off duty misconduct on December 4, 2000.  The remaining issue is the appropriateness of the penalty.

II.  PENALTY

This case turns on the issue of the appropriateness of the penalty.  Specifically, whether the Company has followed the progressive discipline policy in effect at the Leavenworth mill in implementing the Grievant’s discharge.  The Company, in it’s Labor Agreement with the Union; (Jt. Exh. 1) in it’s “Mill and Safety Rules” (Jt. Exh. 5) and in it’s “Disciplinary Program”, (Co. Exh.14) has  adopted a commendable system of progressive discipline for administering disciplinary action involving it’s employees.  In each of these exhibits the Company subscribes to the well-recognized concepts of progressive discipline setting forth a six step progressive discipline process beginning with an Informal Discussion and culminating in Discharge.  Section 21 (3) of the Labor Agreement set forth the steps in the disciplinary process:

3. The normal procedure to be followed in discipline cases is as follows:

a. Informal discussion

b. Formal Counseling


c. Record of Reprimand

d. Letter of Reprimand

e. Suspension and Letter of Reprimand

f. Discharge

As it relates to the issue in this case, the parties also subscribe to a policy for considering an employee’s disciplinary record in determining the appropriateness of the discipline to be imposed. Section 21 B of the Labor Agreement provides:

B.  Discipline History Record:

2. .... It is understood that the Company may effect a program of progressive discipline for certain offenses and that records of formal discipline (including attendance) not expiring prior to the next formal disciplinary action will remain in the      employee’s record until the last formal discipline in the disciplinary progression has expired.

In applying this progressive discipline policy, and the practice of the parties in adhering to the policy, to the facts of this case I have concluded that the only basis upon which the Grievant’s discharge can be set aside is that the Company administered their progressive discipline policy against the Grievant in a discriminatory manner.  


In evaluating a discharge case, arbitrators are not only required to determine whether there exists just cause for the employer to take disciplinary action for the employee’s conduct, as I have concluded in this case, but also whether the penalty imposed is either excessive, unreasonable, or discriminatory in nature so as to justify a modification of the penalty.  This inherent authority of the arbitrator is not without limits and should not be abused.  This was best stated by Arbitrator Whiteley McCoy in the early, and often cited, case of Stockham Pipe Fitting Co., 1 LA 160, where the arbitrator held that:

The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved -- in other words there has been an abuse of discretion.

Id. At 162

The basis for the Union’s allegation of discriminatory action by the Company against the Grievant, centers on the claim that the Leavenworth mill has, as a matter of established practice, followed a “two track” system in the administration of their progressive discipline policy -- one for attendance and one for job performance.  The resolution of this issue is determinative of this case.  For if I conclude that the Company’s position is correct, that a single track disciplinary system is in effect and followed at the Leavenworth mill, then the Grievant’s discharge should be upheld.  The penalty imposed was neither excessive or unreasonable in view of the Grievant’s conduct on December 4, 2000 and his past disciplinary record.  However, if I conclude from the evidence that the practice of the Company has been to follow a two track system, as contended by the Union, then serious consideration must be given to setting aside the discharge on the basis that the Grievant was treated differently than other employees in the administration of the progressive discipline system.


The basis for an allegation of discriminatory action or disparate treatment is that the employer has not enforced the rules in a consistent manner and or that an employee has not been given like disciplinary treatment under like circumstances. In this case, it is the Union’s contention that the Grievant’s discharge was the product of discriminatory and disparate treatment by the Company.  That the Grievant, on December 4, 2000,  had not reached the point in the progressive discipline track for job performance that justified his discharge. 

Accordingly, the two issues that determine the outcome of this case are; first, whether the Company has a single track or two track disciplinary system; and second, if the evidence supports a finding of a two track system, whether the Grievant’s job performance disciplinary record supports the Company’s decision to discharge.  Since the Union is alleging discriminatory conduct by the Company, the burden of proof in sustaining the allegation rests with the Union.  The Union must establish by a preponderance of the evidence that the Company discriminated against the Grievant by considering his disciplinary record in a manner significantly different from what the Company considered in the disciplinary records of other employees in administering their progressive discipline policy at the Leavenworth mill.

A.   The practice of the Leavenworth mill is to follow a Two Track Progressive Disciplinary System.


A review of the Labor Agreement, the Company Mill and Safety Rules and the Company’s “Disciplinary Program” does not reflect language which specifically provides that the parties shall adhere to a single track policy for the administration of it’s progressive disciplinary system.  There is no language in either of these documents that clearly establishes that an employee’s misconduct, whether it be related to attendance or job performance, will be consider collectively for purposes of assessing progressive discipline.  The closest the Company comes to finding support for their contention is found in the Labor Agreement.  Section 21, B (2) provides that the Company may put into effect a program for progressive discipline “... for certain offenses and that records of formal discipline (including attendance) not expiring prior to the next formal disciplinary action will remain in the employee’s record ...”  (Jt. Exh. 1) (emphasis added)  This language suggests that an employee’s disciplinary record of attendance will be considered along with other “...records of discipline.... “ in administering the progressive discipline policy.  This is the position taken by the Company, as reflected in the testimony of it’s Director of Human Resources, Michael Fitzpatrick:

A. The discipline procedure at Longview Fibre Company, as it applies to production employees, is a progressive discipline system.  It starts at the informal discussion level, it goes to formal, record of reprimand, a letter of reprimand, a letter of suspension, and ultimately discharge. It typically involves attendance or performance, and it is intended to be applied in tandem, with respect to attendance and performance.  (TR 130) (emphasis added)


However, what is intended by the Company and what is in actual practice at the Leavenworth mill seems to be in conflict.  Under cross-examination on this issue, Mr. Ledbeter acknowledged that the mill, at least for a number of employees, has in practice followed a two track system in the administration of their system of progressive discipline.  Specifically, the Union reviewed with Mr. Ledbeter the disciplinary records of eight employees.  (Rinehart, TR. 78; Porter, TR 79; Dwayne Darlington, TR. 82; Derry Darlington, TR. 83: Covert, TR 83; Baumann, TR 84; Hauff, TR 87; Stevens, TR. 91) Mr. Ledbeter conceded that at least for these employees the Company has administered its progressive disciplinary system under a two track system; one for attendance based on points and another for job performance.  (TR 78-92)  I found this evidence of the Company’s practice persuasive.  I have found that the Company has, as a matter of practice at the Leavenworth mill, adopted a two track system for administering it’s progressive discipline policy, one for attendance and another for job performance.  This is not an isolated instance of disparate treatment between the Grievant and another Mill employee. 

It is generally accepted that enforcement of rules and assessment of discipline must be exercised in a consistent manner; all employees who engage in the same type of misconduct must be treated essentially the same unless a reasonable basis exists for variations in the assessment of punishment ... .

Elkouri & Elkouri

How Arbitration Works

Fifth Ed. (BNA 1997), Page 934 

 


The Company’s corporate policy of progressive discipline and the actual practice at the Leavenworth mill seem to be at odds.  Although, in the words of Mr. Fitzpatrick, the Company’s progressive discipline policy “... is intended to be applied in tandem ...” the evidence at the Leavenworth mill appears to be to the contrary.  This confusion in the application of the progressive discipline policy sends a mixed message to the employees and in the application of the policy in the Grievant’s case constitutes a discriminatory practice.  I am not reaching a decision as to which practice should be followed.  This decision simply stands for the proposition that the Corporate policy and the mill policy should be uniformly and consistently applied.  Particularly, where as here, the decision to discharge the Grievant was made at the corporate level by Mr. Fitzpatrick, the Company’s Director of Human Resources.  Although Mr. Ledbeter, as Mill Manager, was involved in the discussions regarding the decision to discharge the Grievant, the ultimate decision was made at the Corporate level.  I found Mr. Ledbeter to be credible and conscientious in his efforts to administer the discipline policy in an even handed manner at the Leavenworth mill.  Thus, I found him to be a good manager.  However, the two track disciplinary policy that Mr. Ledbeter appeared to be following at the Leavenworth mill was not in line with the progressive disciplinary policy that Corporate intended to be followed at its facilities.


On the basis of this record, I find the Union has established by a preponderance of the evidence that the Company, in administering their progressive discipline policy in the discharge of the Grievant, has engaged in a discriminatory practice by considering the Grievant’s attendance and job performance disciplinary record in tandem, rather than under the mill’s practice of a two track system.

The Company contends that not withstanding the above finding the Grievant’s discharge should be upheld on the basis that he was clearly placed on written notice that any further disciplinary action would result in his discharge and that the Company’s policy is to follow the practice that the next reprimandable offense following a suspension is discharge.  Both of these contentions have merit and deserve the Arbitrator’s response.

1.   The Grievant was on written notice that further discipline would result in discharge.

The Company contends, and the evidence supports, that the Company had placed the Grievant on written notice that future misconduct, whether it be attendance or job performance, could result in his discharge.  Specifically, in their Letters of Reprimand on September 5, 2000 and September 11, 2000 the Company advised the Grievant:

In the future, your performance will be judged in total and continued unsatisfactory attendance or any other infraction constituting just and sufficient cause for discharge, may result in your termination. (emphasis added)

(Jt. Exh. 3 and Jt. Exh. 4)


Thus, the Company argues the Grievant was on clear notice that the Company regarded attendance and performance infractions as one and the same for purposes of following the policy of progressive discipline.  These letters placed the Grievant on notice that any further infractions, be they attendance or performance related, could result in his discharge. Since the Grievant, having been suspended for attendance related conduct, was at the last step of the progressive discipline system, the next infraction was a dischargeable event. Therefore, when the Grievant towed another employee’s vehicle in the Company’s parking lot on December 4, 2000, it constituted a performance related infraction.  Since the Grievant was at the last step in the disciplinary process, the Grievant’s conduct on December 4, 2000, provided the Company with just cause to discharge the Grievant. 

I would accept the Company’s position on this issue were it not for the practice of the Company in following a two track system.  Although I did not find the Grievant particularly credible, his testimony regarding his understanding of the Company’s discipline policy must be given some merit.

A. My understanding of this, I have been shop steward for six years, and we have always stood on the issue that attendance and work performance are two separate issues.  And we have stood on that in every grievance that I have been in on.  And that was the understanding of the letter that I had, that attendance and work performance are two separate issues.  And if I was to go over on my attendance, and have problems there, the next step discipline would be termination.   (TR. 183)


The absence of a consistent administration of the Company’s progressive discipline system at the Leavenworth mill creates confusion for the employees and, ultimately in this case, for the Arbitrator.   I must resolve this confusion against the Company.  They are in the best position to remove the uncertainty and to clarify, in clear terms, exactly what the progressive discipline practice shall be at the Leavenworth facility. Although the Letter of Reprimand speaks in terms of a two track system, the efficacy of such an admonition is placed in doubt by the Company’s practice.

2.   The Grievant’s December 4, 2000 conduct constituted a reprimandable offense.

The Company contends that it had no choice but to discharge the Grievant on the basis that his actions on December 4, 2000 constituted disorderly conduct and thus a reprimandable offense.  This was best explained by Mr. Fitzpatrick in his testimony regarding his decision to discharge the Grievant.

A.  Well, we concluded that the incident was tantamount to disorderly conduct.  And normally disorderly conduct calls for a letter of reprimand.  But because we had concluded that it was reprimandable, given that it is disorderly conduct, we elected to discharge on the basis that it is reprimandable.  And a suspension is where he was at already, so discharge was the only alternative given those conclusions.  (TR. 145-146)

Under the Mill and Safety Rules, the minimum level of discipline for a disorderly conduct violation is a Letter of Reprimand, thus a “reprimandable” offense in the Company’s view.  Since the Grievant was at the last step in the discipline procedure, his next “reprimandable” offense, in this instance disorderly conduct, would result in his discharge.


Again, the Company’s position is premised on the contention that the progressive discipline policy was being administered on a single track basis.  All disciplinary actions, whether they be attendance or performance related were considered together for progressive disciplinary purposes.  If this was the practice of the Company, then, given the Grievant’s abysmal disciplinary record, the discharge would have been upheld. However, as previously concluded the single track system was not the practice at the Leavenworth mill. Accordingly, I conclude that although the Grievant’s conduct may have been a reprimandable offense, he was not at the last step of the progressive discipline system for performance related infractions. 

The Company may contend that this is purely a technical distinction and that the Company should be given wide latitude in the administration of it’s disciplinary policy.  I disagree.  Fundamental to the concept of due process in the progressive disciplinary process is the Company’s obligation to be clear in the application of their policy so that employees are on notice of where they stand in the disciplinary system.  This responsibility is clearly recognized in the first and second goals of the Company’s “Disciplinary Program”:

A. To eliminate disciplinary problems in advance as much as possible by letting employees know what offenses will be met with corrective action and what steps will be taken. 

 

B.  To assure all employees that basic disciplinary procedures will be applied uniformly and consistently in all departments. 

                                        (Co. Exh. 14)


On the basis of the record before me, I conclude that the disciplinary procedures at the Leavenworth mill were not applied uniformly or consistently.  Therefore, I conclude that whether or not the Grievant’s conduct on December 4, 2000 was a reprimandable offense is not the determinative issue in this case.  The issue is where the Grievant was on the progressive disciplinary track and whether his conduct on December 4, 2000, combined with his past disciplinary record, provided a basis for his discharge.

On the basis of the foregoing analysis, I conclude that the evidence supports a finding that the Leavenworth mill was following a two track system in the administration of it’s progressive discipline policy .  Further, I conclude that the Company applied the progressive discipline policy in a manner different from, and unequal to, that provided to other employees under like circumstances.  The remaining issue is whether the Grievant’s conduct on December 4, 2000 combined with his job performance disciplinary record justified the Company’s decision to discharge.

B.  The Grievant’s discharge should be set aside.


Under the two track disciplinary system the Company was following at the Leavenworth mill, the Grievant was at the last step of the progressive discipline system for poor attendance, however he had not reached the last step for unsatisfactory job performance.  The Grievant’s conduct on December 4, 2000 was not so egregious in nature that the last steps of the progressive discipline process should have been eliminated.  Although the conduct fell within the general definition of disorderly conduct, it was not so serious in nature that it should have resulted in his immediate discharge. Therefore, under the Company’s progressive discipline policy, the Grievant’s performance related conduct on December 4, 2000 should have resulted in further disciplinary action, but not discharge.


In reaching this decision, I have also considered the evidence of disparate treatment submitted by the Union concerning the disciplinary action imposed by the Company on two employees for fighting on job.  On November 16, 2000, the two employees, Hauff and Smart, became involved in a physical altercation.  The investigation of the incident found that the two employees were fighting on the floor near machinery when the fight was ultimately broken up by another employee. (Un. Exh. 3)  Both employees were disciplined for disorderly conduct and given a Letter of Reprimand.  (Un. Exh. 3 and 4)   Hauff , like the Grievant, had established a significant disciplinary record for poor attendance.  The record reflects that Hauff received an informal discussion on January 31, 2000 for failing to notify a supervisor that he was unable to report to work; a formal counseling on March 7, 2000 for poor attendance and a record of reprimand on September 11, 2000 for poor attendance.  (Un. Exh. 5) There was no indication that Hauff had been disciplined for any performance related misconduct prior to fighting with Smart.  Although Hauff’s was at the next to the last step of the progressive disciplinary system for attendance and that fighting was a “reprimandable” offense, he was only given a Letter of Reprimand.  Certainly fighting with another employee, on the job and around machinery, must be regarded as far more serious conduct than moving another employee’s car a few feet in the Company parking lot.  Fighting on the job is clearly disorderly conduct and often results in immediate discharge.  Yet, the Company only issued Hauff a letter of reprimand.  This disciplinary action by the Company was initiated just two weeks prior to the Grievant’s discharge.   Given that Hauff was at the next to the last step of the progressive disciplinary track, (had the Company actually been following a “tandem” or single disciplinary track for progressive discipline purposes) Hauff would have either been suspended or discharged, since fighting is a reprimandable offense.  The fact that Hauff only received a letter of reprimand for fighting on the job indicates the Company was following a two track disciplinary system, since this was his first performance related offense.  This disciplinary action is in marked contrast to the Grievant’s discharge, given the nature of the Grievant’s conduct and the fact that he was not at the last step of the disciplinary track for job performance related conduct. Thus, such action by the Company constitutes disparate treatment.   Accordingly, the discharge shall be set aside and modified.

C.  The appropriate penalty.


In reaching a determination as to what the appropriate penalty should be in this case, I have taken into consideration the following factors; the nature of the Grievant’s conduct on  December 4, 2000; the fact that it occurred off-duty; the Grievant’s job performance related disciplinary record and the length of the Grievant’s employment with the Company.   When these factors are considered in conjunction with the Company’s policy of progressive discipline policy, I conclude that the penalty of discharge should be modified to a disciplinary suspension.  Significant to my reaching this decision is the recognition that a policy of progressive discipline should be corrective, rather than punitive in nature. The discharge of an employee is the most extreme penalty an employer can impose.  It should withheld until the disciplinary steps to effect a desired correction have been exhausted.  This was not done in this case.  Therefore, the penalty of discharge shall be modified to a five day disciplinary suspension without pay for disorderly conduct.

III.  REMEDY

With respect to the remedy, I shall order that the Grievant’s discharge be set aside and that a five (5) day disciplinary suspension without pay be imposed for disorderly conduct.  The Grievant shall be offered immediate reinstatement to his former position.  As a part of the remedy, the Grievant shall be made whole for his lost wages, without interest, following the five day disciplinary suspension, less any interim wages from any source previously received or unemployment compensation benefits granted.   The Company shall also restore the Grievant’s seniority and any lost benefits.  In accordance with the stipulation of the parties, I shall retain jurisdiction over this matter for a period of sixty days for the purpose of resolving any issues that may arise out of the implementation of this remedy. 


CONCLUSION

The Grievant should take no comfort from this decision.  If the Company had been following a single track progressive discipline system at the Leavenworth mill there is a strong probability that his discharge would have been upheld.  By all accounts the Grievant is a good saw operator.  However, his disciplinary record is clearly unacceptable.  The Grievant is now on notice that any further infractions, within the disciplinary guidelines,  involving either poor attendance or job performance could, and should, result in his termination.


  IN THE MATTER OF THE ARBITRATION

  BETWEEN

WESTERN COUNCIL OF INDUSTRIAL      ) OPINION AND ORDER

WORKERS LOCAL UNION 2739,          )

UNION,  ) RE: Grievance of

          )   Tony Ortega --

and                           )   Termination

LONGVIEW FIBRE COMPANY,            ) 

                                     )

EMPLOYER.)

The Arbitrator, in arriving at this decision, has reviewed all of the evidence, exhibits, and the post-hearing briefs submitted by the parties.  In view of all the evidence and for the reasons set forth in this Opinion, it is the decision of the Arbitrator that the Company had good and sufficient cause to discipline the Grievant on December 14, 2000.  However, for the reasons set forth in the Opinion, the penalty of discharge shall be set aside and modified in accordance with the following Order:

1.   The discharge of Tony Ortega on December 14, 2000, shall be set aside and modified to a 5 day disciplinary suspension extending from December 14, 2000 to December 19, 2000.

2.   The Grievant shall be offered immediate reinstatement to his former position and be restored all lost wages from December 19, 2000, to the date of his reinstatement, less any interim wages previously received or unemployment compensation benefits granted.

3.   The Grievant shall be restored all lost seniority and benefits from the date of his discharge to the date of his reinstatement.

4.   Pursuant to the Labor Agreement, the costs of the Arbitration shall be equally divided between the parties.

5.   In accordance with the stipulation of the parties, the Arbitrator shall retain jurisdiction in this matter for a period of sixty (60) days from the date of this Order for the purpose of assisting the parties in the administration of this award should the parties so jointly request.

 

______________________

Eric B. Lindauer

Arbitrator

July 18, 2001

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