Title: Georgia-Pacific Corporation, Structural Panels
Division, Hawthorne, Florida and PACE
International Union, Local No. 530
OPINION AND AWARD
FOR THE EMPLOYER:
Michael Maurer, Area Human
Resources Manager and Spokesperson
FOR THE UNION:
Larry D. Brooker, Sr.,
International Representative and Spokesperson
STATEMENT OF THE CASE
Georgia-Pacific Corporation, Structural Panels Division (“Company”) and PACE International Union and its Local No. 530 (“Union”) are parties to a collective bargaining agreement which became effective July 30, 1997, and continues until August 1, 2003. The Agreement governs the wages, hours, and other terms and conditions of employment of members of a bargaining unit composed of production and maintenance employees at the Company’s Hawthorne, Florida, plywood 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 that was filed on August 15, 2001, protesting the written reprimand and three day suspension that was issued to the grievant, Chuck Norris, for violating Work Rule No. 27, which prohibits the careless use of equipment. It is the Union’s position that the Company did not have just cause to discipline the grievant because the grievant is innocent of any wrongdoing.
The Company’s third step response to the grievance reads as follows:
After investigation, I believe the Company acted properly when it reprimanded Mr. Chuck Norris for a violation of Rule #27, Careless Use of equipment. Photos taken of the scene the next day clearly show the loader running over the pile of rebar from the project. This material had been there in that position for at least two weeks before Mr. Morris ran over it that evening. Further measurements taken the day after also indicate that there was sufficient operating space (approximately 68 feet) between the log piles and the rebar area. For the previous two week period, this space had been sufficient for safe log loader operations.
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 through the office of the Federal Mediation and Conciliation Service a hearing was conducted at Gainesville, Florida on June 6, 2002. In the course of the hearing both parties were afforded ample opportunity to present evidence and to cross examine witnesses presented by the opposing party. Upon the receipt of post-hearing briefs the record was closed pending the issuance of this Opinion and Award.
Did the Company have just cause to issue the grievant three day disciplinary suspension, and if not, what should be the remedy?
RELEVANT CONTRACT PROVISIONS
XIV. MANAGEMENT RIGHTS
The Company reserves and retains the right to direct, manage and control the business and the work force, except to the extent that this Agreement specifically provides to the contrary.
* * *
…to discipline, suspend or discharge for just cause, and to make and enforce reasonable rules.
SUMMARY OF THE
The Company operates a pine plywood plant at Hawthorne, Florida, with a work force of over four hundred employees. The plant operates on multiple shifts and schedules 24/7. The plant is divided into several departments having responsibility for various steps in the manufacturing process. The event which gave rise to the instant dispute occurred in the Green End Logyard where trees that are the basic raw material for the Company’s product, are unloaded from tractor trailers and either stored or placed directly into the manufacturing and processing equipment.
Prior to December, 1997, employees at the Hawthorne plant were not represented by a labor organization. In December, 1997, employees at the plant elected to be represented by the UPIU, which is now known as PACE International Union. Shortly after the Union was certified as the bargaining agent the grievant became involved in the Union committee. At the time of the events leading up to the present dispute he was the Chief Steward. In that capacity he represented other employees in the grievance procedure and this occasionally requires him to be confrontational with members of supervision.
Pursuant to its authority under the Management Rights clause the Company has published work rules governing the conduct of employees. It provides for a system of progressive discipline for offenses that are not inherently grounds for discharge. Step 1 calls for verbal counseling; Step 2 a written reprimand; Step 3 a second written reprimand accompanied by a disciplinary suspension; and Step 4 calls for discharge. The receipt of two suspension level written reprimands in a twelve month period can also result in termination . The grievant was employed at the Hawthorne plant for over seventeen years. During most of his tenure he was assigned to the log yard-wood yard department. He was hired as a utility person and later became a relief equipment operator. On the night in question he was a full-time equipment operator on the relief shift. His job involved the unloading of logs from trucks, as well as the moving of logs from storage into the processing equipment. This task is accomplished by the use of two primary pieces of equipment – an L-100 Wagner loader and a 980 Series Caterpillar loader. Logs are on average thirty-five to forty feet long with a maximum length of approximately fifty-two feet, and a weight of approximately two thousand five hundred to three thousand pounds .
The grievant became a log loader on May 5, 2000, when he bid to that position from the wood yard machine operator’s position. During his tenure as a log loader he was disciplined on three occasions pursuant to the guidelines set out in the Company’s work rules. The first was an oral reprimand on May 15, 2001, which was memorialized in a written report as follows:
Careless use of equipment, causing property damage. Chuck was operating the Wagner (100) and bent the splash guard on the right side for the front tires by the stepladder.
The second was a written warning issued on June 29, 2001, which reads as follows:
Chuck was driving L-100 coming into a run to stack a load of logs & the 980 which Robert Baldry was driving was coming out of the run, the logs he was carrying came into contact with the 980’s light guard, which bent the guard.
Baldry was also disciplined for his involvement in the accident, but his reprimand was oral because he had not been previously disciplined.
Neither the oral nor the written reprimands that were issued to the grievant were grieved.
The event which gave rise to the instant dispute occurred on the night of Sunday, August 5, 2001, while the grievant was working the 6:00 p.m. to 6:00 a.m. shift. During the night shift the log yard is illuminated by lighting surrounding the perimeter of the log yard. In addition, the equipment that the grievant was operating has headlights at the front and at the rear. Sometime during that night the grievant drove the 980 Caterpillar loader over a pile of rebar that had been placed in one section of the yard by a crew that had been breaking up concrete with a jackhammer and cutting rebar in the course of repairing potholes. That project had been in progress for approximately two weeks, but sufficient room had been left to allow the operators to maneuver around the area. When tire tracks from the grievant’s loader leading up to and across the stack of rebar were discovered by Management the following day, the grievant was charged with carelessness and issued a three day suspension pursuant to the Company’s disciplinary policy.
Although the investigation revealed that there were no cuts to the tires on the loader that the grievant drove and no damages to the equipment, Management made a determination to discipline the grievant based on the potential damage to the equipment.
After the grievant returned from his suspension he indicated to Green End Superintendent Leroy Shepard that he would need to bid off of the loader because it might cause him to lose his job. The grievant testified that in October, 2001, he did in fact step down from the loader job to that of a plant equipment operator, notwithstanding the fact that the downgrade resulted in a substantial reduction in his annual earnings. He stated that he did so on the advice of some supervisors who were his friends that others in Management might be looking for an excuse to get rid of him.
Testifying in his own behalf the grievant did not deny that it was possible that he ran over the rebar on the night in question. He explained that if he did so, however, he was not aware of it because his vision was obscured by the weather conditions and he could not have felt the bump that may have been experienced due to the heavy suspension system in the cab of the loader. He explained that in contrast to the pictures of the scene, which were taken during the sunny daylight hours on a recent occasion when the log yard was relatively empty, the incident occurred during the nighttime and in rainy conditions with a heavy overcast. Moreover, the yard was extremely full of logs and the soggy conditions caused the bark from the trees to float around and turn black, making the ground hard to see.
To support his assertion that someone in Management was “out to get him” the grievant related an event that occurred prior to his suspension. On that occasion a millwright told him that he had heard that he was going to be blamed for a hole in the wall that he had allegedly caused by striking it with his loader. He stated that shortly thereafter Supervisor Robert Holt approached him with what appeared to be a reprimand in his pocket and questioned him about the damages to the wall. During the conversation the grievant denied that he had hit the wall and showed Holt that it would have been impossible for him to place the equipment he was operating in the area where the damages occurred. As a result, he was not reprimanded for that incident.
The grievant’s testimony in that regard was corroborated by Tim Denham, a Maintenance employee who has been employed by the Company for four years. He testified that on one occasion he was called to repair a wall that someone had damaged and was present when the matter was being investigated by two supervisors, Leroy Shepard and Robert Holt. He testified that he heard one of them say, “we’re going to have to write up Chuck [Morris] because he has really messed up this time.” Denham testified that only because the grievant was able to show that it would have been impossible for the equipment he was operating to damage the wall was he not written up. Denham added that it was common knowledge that some supervisors, who he did not identify, were out to get the grievant. He added that he once heard his supervisor, Charles Davis, who was a good friend of the grievant, say that he hoped that the grievant succeeded in bidding to a job other than the loader because he was concerned that he would be fired if he stayed in that job.
Under the terms of the collective bargaining agreement the Company retains the right to make and enforce reasonable rules governing the conduct of its employees and to discipline, suspend, or discharge for just cause. Although the Agreement does not define the term “just cause,” its meaning has been well established through arbitral precedent. In order to meet this standard the Company must bear the burden of proving that the grievant has in fact engaged in the misconduct of which he has been accused; that the penalty imposed is reasonable and just in the light of any mitigating factors or extenuating circumstances reflected by the record as a whole; and that the grievant knew or reasonably could be expected to know that such misconduct could subject him to disciplinary action.
Arbitrators generally agree that once proof of the offense has been established the determination as to the appropriate penalty lies within the discretion of Management. However, some limited arbitral review with respect to that issue is proper. In that regard it is commonly understood that if the penalty is so harsh given the nature of the offense and any mitigating factors that it is found to be fundamentally unfair, or if it was imposed for proscribed reasons other than the underlying offense, or if it was imposed under circumstances that denied the grievant his due process rights, the penalty can be rescinded or modified by an arbitrator.
Turning first to the issue of guilt, the weight of the evidence clearly establishes that the grievant did in fact commit the act of negligence of which he is accused. In that regard the evidence proved several key facts. First of all, the rebar and concrete piles were kept in an isolated area out of the operating path of the equipment and were marked with a safety cone to make them more visible and easier to avoid. Second, until the grievant’s incident no operator or other employee had expressed any concerns to Management about the concrete repair/replacement project or complained that it interfered in any way with the log yard operations. Third, no other operator was shown to have had any problems avoiding the rebar and concrete piles during the two weeks that the project was in operation. Further, the grievant’s attempt to assign blame for the incident to poor illumination from perimeter lights and impaired visibility due to rainy conditions is undermined by the fact that his loader is equipped with both front and back lights which illuminate the work area. Moreover, if the conditions were as he described them he had a duty to exercise even greater caution and care than was ordinarily exercised. Finally, the undisputed fact that the grievant was the only person who had operated the loader on the night shift on the occasion that the loader tracks were made through the pile of rubble and the safety cone was crushed eliminates any doubt that the grievant was the guilty party.
The next question to be addressed is whether the penalty which was imposed by Management was commensurate with the seriousness of the grievant’s offense and otherwise fair and just. This question must likewise be answered in the affirmative for several reasons. To begin with, the penalty that the grievant received for the offense of careless use of equipment is entirely consistent with the Company’s work rules and disciplinary guidelines which provide for a three day suspension for a third offense. The undisputed facts show that the grievant had already received a verbal counseling and written reprimand for the careless operation of the log loader on two occasions during the three months preceding the incident in question. Moreover, because the previous discipline was not grieved, it must be presumed to have been justified. Further, given that the work rules and disciplinary guidelines are provided to all employees, including the grievant, he cannot legitimately complain that he did not have forewarning of the probable consequences of his inattention to duty.
The Union has argued that the fact that the log loader was not damaged is a mitigating factor that should be taken into account in assessing the grievant’s culpability. This argument might have some appeal if this were a discharge case, but it is not compelling here because it would be completely irrational to forestall the Company’s ability to try to correct acts of carelessness by the use of discipline unless and until significant damages are incurred. Instead, the mere potential for damages to the Company’s property is sufficient justification for the Company to take corrective action, such as that which was imposed in the present case.
The Union has also argued that rather than disciplining the grievant for carelessness the Company should have exercised its authority under Article X, Seniority, Section 5, Bid Procedures “to return an employee to [his] previous position if the employee doesn’t demonstrate the ability to perform the work.” The primary flaw in this argument is that the thirty day time period that the Company is provided to disqualify an employee who bids to a job had expired prior to the incident in question. Moreover, the fact that the grievant had some minor accidents did not demonstrate that he was incapable of performing the job. In addition, if he had been disciplined at that juncture it is highly probable that the grievant, who was a Union Steward, could have successfully challenged that action through the grievance procedure.
The Union’s contention that the grievant is the victim of a conspiracy among some members of Management to terminate him for his Union activities is likewise without merit because it has no credible evidence to support it. At best the evidence consists of speculation and conjecture concerning the meaning of parts of a conversation between two supervisors regarding the possibility of disciplining the grievant for damaging a wall that was overheard by a fellow employee. Moreover, the fact that the grievant was not disciplined after an investigation revealed that he was not responsible for the damaged wall belies the assertion that some supervisors were out to get the grievant and were looking for reasons to do so. In addition, as explained above, there is ample proof to demonstrate the grievant’s culpability in connection with the incident at issue here for which he was suspended.
While I find it is extremely regrettable that the grievant, who has invested some seventeen years of service with the Company, and whose wife is currently suffering from a terminal medical condition, received an additional suspension for an alleged smoking violation a few months after the incident in question and was eventually terminated, that is a matter over which I have no jurisdiction or authority. My authority is limited to deciding the issue of whether the Company had just cause to suspend the grievant for three days for the careless use of equipment. For the reasons that have been outlined and explained above, that issue must be decided in the affirmative. Accordingly, the suspension must be upheld and the grievance must be denied.
In accordance with the foregoing opinion and for the reasons set forth therein the grievance is denied.
Stanley H. Sergent
July 10, 2002
Mr. Michael J. Maurer
Mr. Larry D. Brooker, Sr.
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.
Keith L. Rigdon
July 10, 2002
Mr. Michael J. Maurer
Mr. Larry D. Brooker, Sr.
FMCS NO. 02-04505
To fee: (Travel, hearing, study, and preparation) $4,000.00
(Taxpayer Identification Number - 65-0264789)
Please remit payment to Stanley H. Sergent at the Sarasota, Florida, office
Keith L Rigdon
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028