Title: Century Aluminum Corporation of West Virginia, Inc.
Steelworkers of America AFL-CIO, Local 5668
OPINION AND AWARD
FOR THE EMPLOYER:
Jim Lake, Human Resources Manager
and Chief Spokesperson
FOR THE UNION:
Tim Dean, Sub-District Director
and Chief Spokesperson
STATEMENT OF THE CASE
Century Aluminum Corporation of West Virginia, Inc. (“Company”) and the United Steelworkers of America and its Local 5668 (“Union”) are parties to a collective bargaining agreement which became effective June 1, 1999. The Agreement governs the wages, hours, and other terms and conditions of employment of members of a bargaining unit composed of production and maintenance workers employed at the Company’s Ravenswood, West Virginia, plant. It also provides for a grievance procedure culminating in final and binding arbitration as the mechanism to be used to resolve any disputes concerning the interpretation or application of its terms.
At issue in this case is a grievance which was filed by the Union on April 26, 2001, protesting the discharge of the grievant, Phil Hovatter, for being absent from work for more than three days without authorization. It is the Union’s position that the discharge was without just cause. As a remedy the Union requests that the grievant be reinstated with full seniority and made whole for all lost earnings and other benefits.
When the parties were unable to resolve the issues in dispute through the grievance procedure the matter was submitted to arbitration. Following the selection of the undersigned as arbitrator a hearing was conducted at the Ravenswood plant on March 12, 2002. In the course of the hearing both parties were afforded ample opportunity to present evidence, cross examine witnesses called by the opposing party, and offer arguments in support of their respective positions. At the conclusion of the hearing the record was closed pending the issuance of this opinion and award.
Was the discharge of the grievant for proper cause, and if not, what should be the remedy?
SUMMARY OF THE
The grievant, Phil Hovatter, was hired by the Company February 10, 1997. He was classified as an Anode Setter in the Potroom and paid at the rate of $15.00 per hour. His job was described as being very physically demanding.
In June, 1999, the grievant sustained a work-related injury to his back which caused him to be incapacitated from time to time. Although he was treated by several physicians, the healing process was slow. As a result of his injury he was placed on Personnel Capacity Restrictions (PCR) on several occasions. On May 16, 2000, the grievant underwent a Functional Capacity Evaluation (FCE) at the request of his treating physician. He was found to be fit for work with no significant restrictions.
On January 27, 2001, the grievant called the plant and reported to the security guard that he would be absent the following day. He gave the reason for his absence as personal business and indicated that his expected date of return was unknown. He explained that the actual reason for his absence was that he continued to suffer chronic back problems from the injury he had sustained in 1999 and he felt that he needed some time off from work to heal.
In August, 1999, the Company implemented an absentee control program. It contains the following rule pertaining to absences without notification:
Absences without notification for three (3) consecutive days is cause for separation from the Company – action of this nature will be coordinated by the Industrial Relations department.
Following an absence of over two months the grievant reported to the plant on April 5, 2001, and met with the plant physician to discuss the possibility of returning to work. The doctor’s notes regarding that visit read as follows:
Pt. states he had a back injury on June 5, 1999, and has had chronic back problems – off work about two months. Request to see Dr. Miller about RTW. 110/70, 96.6, 80, had steroid inj. to back. To see Dr. Miller.
Took two months off, hasn’t seen Dr. or clinic since last year. No release from anyone. O/A chronic mid-back pain. P-RTW/W PCR Dept. unable to accommodate on PCR per C. Hickman per Dave Mosser, P. Field.
The grievant testified that although the plant physician, Dr. Miller, released him to return to work with some restrictions, the plant nurse told him that his department could not accommodate his restrictions at that time.
Soon after his visit to the plant physician the grievant received a letter dated April 5, 2001, from John Wiggins, Industrial Relations Manager, which states as follows:
Our records indicate you have been absent from work, without authorization, since 01/27/01. You last reported off on personal business, 01/27/01. We must consider this as your notification of voluntary termination and will process the necessary exit paperwork. Please contact John Wiggins at 304-273-6725 if you wish to discuss this matter further.
The grievant testified that during the time he was off work he received no communication whatsoever from the Company until the April 5, 2001, letter from Wiggins that he was sent after he attempted to return to work.
Potroom Manager David Mossor testified that the grievant’s termination was based on his violation of the Company policy which provides that absences for three consecutive days without notification to the Company will be cause for discharge. Mossor agreed that the grievant did provide notification on January 27, but noted that he was off for a significant period of time after that day without reporting off.
When questioned on cross examination Mossor agreed that in the past the Company had a practice of allowing an employee to report off at the gate and to give his or her expected date of return as “unknown.” While that practice was acceptable at one time, it has since been changed. Under the current procedure an employee must either give his expected date of return or call in on a daily basis.
When questioned further on cross examination Mossor was unable to explain precisely how the grievant violated the absentee control policy, although he considered a call off for personal business and an “unknown” return to work to be an unacceptable excuse for an absence. He agreed, however, that the grievant was not informed of this fact to his knowledge. He added that he was not involved in the decision to discharge the grievant. That decision was made by the Industrial Relations Department.
Industrial Relations Manager John Wiggins was primarily responsible for the decision to terminate the grievant’s employment. That decision was based in part on the medical notes that were drafted when the grievant attempted to return to work on April 5, 2001. They showed that the grievant took two months off without seeing a doctor and that he had not been released to return to work. Wiggins testified that when he spoke to the grievant about his absence, he indicated that he received no treatment during that time and simply wanted some time off from work to see if his back condition could improve.
Wiggins noted that the collective bargaining agreement specifically requires employees who are absent to keep the Company advised of their status. In particular, Article 14, Section 8 provides as follows:
It is further understood that when employees are absent for other than nominal periods of time, they will extend every reasonable effort to keep the Company Medical Department advised in advance of their intended time of return, the name of their attending physician, and the reason for absence and the conditions of their return.
Wiggins noted that the last time the grievant called in to report off prior to his termination was on January 27, 2001, for personal business. Thereafter he did not keep the Company informed of the status of his condition or expected date of return.
Wiggins also noted that when he questioned the grievant as to his activities during the time that he was off work he stated that he spent some time with his mother and that he and his father had traveled to Florida to help relocate his grandmother. He also told Wiggins that he had “doctored himself” during that time. Wiggins testified that after he completed his investigation he decided to terminate the grievant for absences greatly in excess of three days with no report off and for no acceptable justification.
On cross examination Wiggins agreed that when the grievant reported off work on January 27, 2001, he gave his expected date of return to work as “unknown.” Wiggins also agreed that employees routinely reported off in that manner at that time and that it was a common practice. Wiggins noted that after the incident involving the grievant’s termination the policy changed and the Company then began requiring employees to either report off daily or provide an expected date of return to work.
RELEVANT CONTRACT PROVISIONS
DISCHARGE CASES AND DISCIPLINE
In the exercise of its rights under Article 11, the Company agrees that no employee shall be peremptorily discharged from and after the date hereof, and in all instances in which the Company may conclude that an employee’s conduct justifies suspension or discharge, he first shall be suspended. Such suspension shall be for not more than five (5) calendar days. During the period of initial suspension, the employee if he believes that he has been unjustly dealt with, shall request a hearing and a statement of the offense before the department superintendent or his designated representative, with his grievance man and/or chairman of the grievance committee present. At such hearing the facts concerning the case shall be made available to both parties. After such hearing the Company may conclude whether the suspension shall be converted into discharge, or dependent upon the facts of the case, that such suspension be affirmed, extended, or revoked. If the suspension is revoked, the employee shall be returned to employment and receive full compensation for earnings lost, but in the event a disposition shall result in the affirmation or extension of the suspension or discharge of the employee, the employee may within five (5) calendar days file a grievance in Step 2, which shall be deemed to have been appealed to Step 3 of the grievance procedure under Section C of Article 10, and the Step 3 meeting shall be held and a decision made within five (5) calendar days from the date of filing of such grievance. Should it be determined by the Company, or by an umpire in accordance with Step 4 of the grievance procedure that the employee has been discharged or suspended unjustly, the Company shall reinstate the employee and pay full compensation for earnings lost.
the foregoing, the Company and the Union may agree to a compromise settlement
of a discharge case in the event it is shown that the employee was partially
at fault, or an umpire may in such a case modify the disciplinary action.
SAFETY AND HEALTH
8. It is further understood that when employees are absent for other than nominal periods of time, they will extend every reasonable effort to keep the Company Medical Department advised in advance of their intended time of return, the name of their attending physician, and the reason for absence and any conditions of their return.
DISCUSSION AND DECISION
As previously noted, the issue to be resolved herein is whether the grievant was discharged for just or proper cause. Although the term “proper cause” is not defined in the collective bargaining agreement, its meaning has been well established by arbitral precedent. As traditionally explained by arbitrators, the concept of just or proper cause involves three basic tenets. The first requires a determination with regard to whether the Employer has carried its burden of proving that the grievant is in fact guilty of the misconduct of which he is accused. Absent an affirmative finding in that regard discharge obviously cannot be upheld.
Assuming the question of guilt is decided in the affirmative, the focus of the inquiry then shifts to the question of whether the misconduct constitutes a sufficiently serious breach of the employment relationship to warrant a penalty as extreme and as final as discharge. In that regard it is generally understood that certain types of offenses, such as theft or insubordination, are so egregious that they are inherently grounds for discharge, while other offenses of a less serious nature, such as absenteeism or poor workmanship, call for progressive discipline before the discharge penalty can be imposed.
The third tenet of just cause involves a determination with regard to whether discharge is a just or fair penalty for this particular employee in the light of any mitigating or extenuating circumstances which may be reflected by the record as a whole. In making that determination arbitrators generally adhere to the principle that where proof of misconduct has been established the decision as to the appropriate penalty lies in the discretion of Management and should not be disturbed by an arbitrator in the absence of compelling evidence that such discretion has been abused. It is equally well settled, however, that an arbitrator may modify or rescind a penalty where the evidence establishes that the Employer’s decision was arbitrary, capricious, discriminatory or otherwise violative of fundamental notions of fairness and/or due process. Moreover, Article 13 of the collective bargaining agreement gives an arbitrator explicit authority to modify, rather than rescind, a discharge if a determination is reached that the employee was partially at fault.
In addition to the foregoing, the concept of just cause requires that employees have forewarning or foreknowledge of the probable consequences of violating Company rules. In this case there is no dispute concerning the fact that the grievant received a copy of the absentee control policy which became effective August 16, 1999, and which contains the rule stating that absences without notification for three consecutive days are cause for separation from the Company, nor is there any doubt concerning the fact that the Company has the right to implement and enforce such a rule. Indeed, the existence of such a right is explicitly recognized in both Article 11, the Management Clause, and Article 14, Section 8, which require employees who are absent to keep the Company apprised of their status.
The key issue in this case is whether or not the grievant did in fact violate the Company rule prohibiting employees from being absent without notification for three consecutive days under penalty of discharge. In my view he did not because, even though he was undeniably absent from work for well in excess of three consecutive days, his absences were not without notification. Although the grievant did not call in to report off on a daily basis, or even periodically, during the two months that he was absent from work, such call-ins were not required at the time. By all accounts, the call-in procedure that was in effect at the time the events in question occurred allowed employees to call in once to report off at the beginning of the absence and to give their anticipated date of return as “unknown.” That practice was changed subsequent to the grievant’s termination so that employees are now required to either report off on a daily basis or provide a date they are expected to return to work. However, the propriety of the grievant’s actions must be judged not by the current practice, but by the one that was in effect when he first began his leave of absence. Accordingly, since he complied with a notice requirement that was acceptable to the Company at the time his absence began it is unfair and unjust for the Company to hold him to a higher standard and terminate him for failing to meet that standard.
The Company’s action in this case also constitutes a violation of the principle explained above that employees are entitled to foreknowledge as to how Company rules will be applied and forewarning of what the consequences will be for violating them. Here, since the grievant gave what he had reason to believe was proper notice when he began his leave of absence, he had no basis for understanding that he could be terminated if he was absent for three or more consecutive days without reporting off on a daily basis.
In sum and in short, it is evident that the grievant lost his job not because he is an uncaring employee who paid no attention to the rules, but largely because he was victimized by a flawed system. Under the circumstances, a fair approach to the problem would have been for the Company to have contacted the grievant shortly after his absence began and remind him that he would be required to call in periodically and to present acceptable medical verification for his absences when he returned to work. Such notification would have placed the Company in the position to terminate the grievant’s employment with ample justification if he did not comply with those instructions.
Having determined that the discharge of the grievant was not for just cause, the next issue concerns the appropriate remedy. In that regard I have concluded that the grievant is entitled to reinstatement with full seniority but without back pay for lost earnings and other benefits. The reason for the denial of back pay is that the grievant was partially at fault and must share some of the blame for the fact that his employment was terminated. While the Company could have avoided the problem by contacting the grievant and advising him of his responsibilities, the grievant likewise could have avoided the problem by contacting the Company, explaining why he was off work, and requesting an authorized leave of absence. In return for the excellent wages and other benefits the grievant has derived from the employment relationship he has a concomitant obligation to take reasonable steps to keep the Company apprised of his status when he is unable to work. The cavalier attitude that he exhibited in the present case in connection with his lack of concern in that regard would clearly render a back pay award an unjust enrichment for the grievant and an unfair penalty for the Company.
In accordance with the foregoing opinion and for the reasons set forth therein the grievance is sustained in part and denied in part. The Company is hereby directed to reinstate the grievant with full seniority but without back pay for lost earnings or other benefits.
Stanley H. Sergent
March 28, 2002
Mr. Jim Lake
Mr. Tim Dean
Enclosed herewith are two copies of my Opinion and Award in the above-captioned dispute. Also enclosed is my statement for services rendered and expenses incurred in this regard. It has been a pleasure to assist you in this matter and I will look forward to the opportunity to be of service in the future.
Please advise me as to whether or not you consent to publication of the award. If you decline to respond to this inquiry within the next thirty (30) days, I will assume that you have no objection.
Very truly yours,
Stanley H. Sergent
March 28, 2002
Mr. Jim Lake
Mr. Tim Dean
Re: Grievance No. 01-03-GEN
Century Aluminum of West Virginia, Inc. and USWA Local 5668
Issue concerning discharge of Phil Hovatter
To fee: (Travel, hearing, study, and preparation) $3,200.00
TOTAL FEE AND EXPENSES: $3,732.95
Amount to be paid by the Employer ................................................................................................................... $1,866.47
Amount to be paid by the Union ........................................................................................................$1,866.47
(Taxpayer Identification Number - 65-0264789)
Please remit payment to Stanley H. Sergent at the Sarasota, Florida, office