Title: Pechiney Rolled Products, LLC and United
Steel Workers of America, AFL-CIO-CLC, Local No. 5668
OPINION AND AWARD
FOR THE EMPLOYER:
Charles L. Woody, Attorney and
FOR THE UNION:
Tim Dean, Sub-District Director
and Chief Spokesperson
STATEMENT OF THE CASE
Pechiney Rolled Products, LLC, (the “Company”) and the United Steelworkers of America and its Local 5668 (the “Union”) are parties to a collective bargaining agreement dated June 1, 1999. It governs the wages, hours, and other terms and conditions of employment of members of the bargaining unit employed at the Company’s plant located at Ravenswood, West Virginia. 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 January 15, 2001, protesting the Company’s decision to suspend and subsequently discharge the grievant, James Sanders. That decision was based upon a finding by Management that the grievant had violated the plant rule which prohibits “substandard quality or quantity in work performance” and thereby violated a last chance agreement that the grievant had entered into on September 7, 2001. Under the terms of that agreement any future violation of the plant rules of conduct could result in the immediate termination of the grievant’s employment.
It is the Union’s position that the grievant did not violate the last chance agreement because he simply did not engage in the misconduct – i.e., substandard production – of which he is accused. Instead, the grievant was simply in the wrong place at the wrong time and was victimized by the decision of the other two members of his crew to stop production on the DC-8 furnace on which they were working based on safety and operational concerns. As a remedy the Union requests that the grievant be reinstated and made whole for all lost earnings and other benefits.
Failing resolution of 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 August 1, 2002. In the course of the hearing both parties were afforded ample opportunity to present evidence and to cross examine witnesses called by the opposing party. Upon receipt of post-hearing briefs the record was closed pending the issuance of this Opinion and Award.
At hearing the parties stipulated to the following formulation of the issue: Was the last chance agreement violated?
SUMMARY OF THE EVIDENCE
The grievant, James Sanders, was hired by the Company on May 22, 1995. During most of his employment he was classified as an overhead crane operator, but in or around November, 2000, he began working as a helper (“dummy-man”) on a crew that operated a DC-8 furnace. The crew was comprised of a lead operator, pit man, and helper.
In August, 2001, the grievant was suspended and subsequently discharged for engaging in concerted activity resulting in interruptions or cessation of work. After the Union interceded on the grievant’s behalf the parties entered into a last chance agreement which allowed the grievant to return to work on October 22, 2001, with no back pay. Under the terms of the last chance agreement any future violation of the plant rules of conduct could result in the immediate termination of the grievant’s employment.
The events which gave rise to the instant dispute occurred on January 11, 2002. The grievant was working under the supervision of DC Unit Manager Darryl Tucker on that occasion as a helper on a three man crew that was responsible for the DC-8 furnace. The crew began work at 7:30 a.m. and their job involved cleaning the furnace walls, maintaining the proper temperature, and getting the furnace ready for production.
Tucker testified that when he went to the DC-8 furnace at around 7:30 a.m. he noticed that the temperature was in the 1500 degree range, which was too high. He stated that although the crew should have tried to cool the temperature by skimming the melter, cleaning excess buildup or calling for cold metal, none of this was done. However, at 8:00 they called for a crucible of metal because the melter was low.
Tucker testified that at 8:20 a.m. he received a call from the metal technicians advising that the analysis showed that the metal was ready for the drop and that the crew was notified of that fact by phone. Tucker testified that he noticed the crew in the shack beside the furnace shortly thereafter at 8:36 a.m.
At 9:30 Tucker was called by Metal Control and told that the DC-8 crew had called for a station alignment. He then went to the shack and spoke with the crew. During that conversation the Lead Operator, Keith Ables, told him that there was a problem and he helped him check it out. While that was being done the grievant remained in the shack. Tucker then called for three additional blocks to be brought to the furnace by the Maintenance Department. However, after he spoke with metallurgist Bill Krumme he sent the blocks back to Maintenance.
At 10:00 Tucker told the crew that it was okay to make the drop, but Ables informed him that he would need a safety man to make that decision. Consequently, Tucker called Union Safety Representative Kevin Norris and met with him in his office at around 11:00. When Norris arrived he told Tucker that the furnace crew had some safety concerns. However, the grievant never informed him directly that he was concerned about his safety. Tucker testified that he did not accompany Norris to the furnace to speak with the crew members, but he did see Department Committeeman Ron Newell come by and talk with the crew, including the grievant. According to Tucker, the grievant was sweeping around the furnace at the time that discussion took place.
Tucker testified that he next met with the crew at the shack at around 11:30 a.m. and told them to start the drop. When they did not respond he gave them a direct order to start the drop in the presence of Casting Foreman Bill Cash. Despite that directive the pour did not occur until after 12:00 noon.
Tucker testified that the Company requires a minimum of two, and hopefully three, drops per eight hour shift. Contrary to that requirement, only one drop was produced on the grievant’s shift on the day in question. Tucker testified that none of the other crews on the other drops complained about a problem with the DC-8 furnace. Moreover, no safety grievance was filed in connection with the January 11, 2002, incident.
Tucker further testified that he never saw the grievant do anything to get ready for the pour after he gave the order to do so. Moreover, the grievant never told him that he was ready to do his job or ask if other work was available.
After the crew made the drop Tucker called them in and issued each a written warning for violating the work rule which pertains to substandard quantity or quality in work performance. He considered disciplining them for insubordination, but decided that a lesser penalty was more appropriate. At the time the warnings were issued Tucker had “heard” that the grievant was on a last chance agreement but had no verification of that fact.
On cross examination Tucker acknowledged that because he was not at the DC-8 furnace the entire day on January 11, he could not be certain that the grievant did not do some work while he was away. While he did not observe any cleaning work being done up to the time of the drop, he agreed that the area did appear to have been cleaned to some extent.
Tucker also agreed that there have been a number of occasions when operational or safety problems have resulted in only one drop being made on a given shift.
After the grievant’s crew reported for work on January 11, their first task involved finishing a drop that was left by the outgoing crew. That drop was plugged at 7:44 a.m. The production report for the DC-8 furnace for that day shows that the crew then skimmed metal from 8:30 to 8:48 a.m., cleaned the holding cart walls from 9:00 to 9:12 a.m., and skimmed the holding hearth again up to 9:36 a.m. Tucker agreed that they could not make the drop until all this work was done, but he contended that they still could have made it well before noon.
According to Tucker, by around 9:30 a.m. they could have completed their assigned tasks and be waiting in the shack for a station alignment by Maintenance before proceeding further. He stated that this alignment involves a safety issue and is supposed to be done prior to each drop to be sure that the blocks are at the correct height. He added that at that point the lead operator was claiming that there was a safety issue and was refusing to make the drop until that issue was resolved.
Tucker testified that after he issued his direct order to the crew at 11:15 a.m., he tried to locate his supervisor for consultation, and when he could not find him, he spoke with Maintenance Supervisor Dave Pauley. He agreed that when he returned from speaking with Pauley the crew members were putting on their safety equipment and getting ready to make the drop.
Casting Foreman W. D. Cash testified that Tucker spoke with him on the morning in question and told him that he was having a problem on the DC-8 furnace and asked him to accompany him to the furnace. When they arrived there the three members of the crew were sitting in the shack and he heard Tucker tell them that he wanted the drop to start. When Ables asked if he was giving them a direct order, Tucker said “yes” and gestured with his arm and said “I mean right now.”
Cash testified that he passed by the DC-8 furnace several times that morning and never saw any work being performed. On most occasions all three crew members were sitting in the shack. He agreed, however, that there were occasions when they were working and he was not there to see them.
Casting Maintenance Superintendent Dave Pauley testified that Tucker contacted him on the morning in question about a problem with the DC-8 furnace and indicated that he was having trouble with the crew because they did not want to make the drop. He also told Pauley that they asked for a safety representative. Pauley then accompanied Tucker to the furnace at about 11:30 a.m. and the crew came out of the shack and went into the pit area. Pauley and Tucker then spoke with Safetyman Norris and Committeeman Newell and were informed that the crew members were concerned about a safety issue relating to the bottom blocks being unsafe. Pauley in turn told Newell that there was no safety issue and that the crew had been given an order to make the drop. He then told Newell at around 11:55 a.m. that if they did not start the drop they were going to pull them off the furnace at noon. Newell then spoke with the crew and they began putting on their equipment so that they could begin the drop.
Pauley acknowledged that all three crew members must be involved in a drop. One member cannot do it alone. He testified that the grievant was standing aside while the other two crew members, Workman and Ables, were talking to Norris and Newell, and that they seemed to be actively involved in the safety issue. When this conversation took place he mentioned that the grievant’s co-workers were putting the grievant in a bad situation because he was on a last chance agreement. Newell then spoke with the grievant and he picked up a broom and began sweeping the area. Pauley admitted that he would not have expected the grievant to have started the drop by himself.
Casting Technical Manager Bill Krumme testified that he had a conversation with Tucker on the morning in question regarding the position of the bottom blocks. After he explained how it was to be checked, he concluded that there was no quality issue involved in the bottom block height.
On cross examination Krumme acknowledged that he was not involved in or consulted about the safety issue that had been raised by two of the members of the DC-8 crew.
The grievant testified that after he became a helper he usually was not assigned to a particular furnace on a regular basis. Instead, he would rotate from crew to crew to fill in for employees who were absent. On January 11, 2002, he filled in for a Mr. Young on the DC-8 furnace.
The grievant testified that he served as a Shift Safety Representative during part of 2001 and as such became familiar with the safety provisions of the collective bargaining agreement. He stated that he had resorted to the procedure set out in Section 14(b) of the Agreement in the past to deal with working conditions that he considered unsafe.
The grievant testified that after he began work at 7:00 a.m. on January 11, 2002, he checked for his job assignment and then proceeded to the DC-8 furnace. The drop that was in progress when he arrived was plugged at 7:44 a.m. After that he had to lower the ingots below the molds into the water to cool for ten to fifteen minutes. He then began removing the three of them at around 8:00 a.m. with a crane and placed them in the holding area, a process that took about a half hour. After that the crew skimmed the melter at about 8:40 a.m., a process that took about twenty minutes. He stated that it was possible that while they were performing that task supervisors had driven by and did not see them upstairs skimming. He testified that they then knocked down the walls at 9:00 a.m., a process that took about ten to twelve minutes, and that they added metals between 8:36 and 9:00 a.m. At the point it was not ready to be dropped because some metals needed to be added.
The grievant testified that they started the transfer of aluminum at 9:18 a.m. and completed it at 9:36 a.m. He stated that the drop could not have been made prior to that time. Another skimming process began again at 9:36 a.m. and took about fifteen minutes and was not completed until about 10:00 a.m. Shortly thereafter Ables, the pit man, did some measuring and told the other crew members to stop production. Ables then spoke with the Workman and they called Metal Control for a station alignment. The grievant testified that they all stopped working at that point because there was nothing else to do until the metal alignment could be completed.
The grievant testified that shortly thereafter Tucker arrived and inquired as to what the problem was. Ables told him that the bottom blocks needed to be aligned. Ables and Tucker then went to the pit and the grievant and Workman stayed in the shack. Soon thereafter three blocks arrived from Maintenance.
The grievant testified that he was never involved in the issue of the blocks not being in alignment causing a safety hazard. He added that he never requested a Union safetyman, but one, Kevin Norris, arrived at the furnace at around 11:00 a.m. In addition, Committeeman Ron Newell showed up at around 11:15 a.m. while he was sweeping the pit area. He stated that Newell approached him to inquire as to whether he was involved in the safety issue and he told him that he was not.
The grievant testified that after conversing with Tucker and Pauley, Newell advised the crew to “drop it,” after which they put on their safety equipment and made the drop. The grievant stated that this occurred after the direct order was issued. The grievant added that although he could have filed a grievance under Section 14(b) of the Agreement, he chose not to get involved in the safety dispute because he had no knowledge as to whether there was in fact a danger involved. He added that from about 10:00 a.m. when the safety investigation began he sat in the shack most of the time because there was little he could do without the other crew members working. However, he did do some sweeping and cleaning of his work area during that time. He also noted that he left the shack and went to his work area immediately after he got the direct order from Tucker.
Kevin Norris was the Safety Representative in the Casting Department at the time of the incident in question. He testified that he was called to the scene by Casting Foreman Bill Cash and arrived there at about 10:45 a.m. Upon his arrival he spoke with Ables and Workman about a safety issue concerning the lower blocks. Norris testified that he told Tucker that the crew had a safety issue, but Tucker did not want to discuss it with him. He added that he did not converse with the grievant and that the grievant was never involved in the discussion, which centered around the measurement of the blocks being off.
Ron Newell was the Casting Department Grievance Committeeman at the time of the incident in question. He testified that he was notified of the problem by Kevin Norris and went to the DC-8 furnace at around 11:00 a.m. He stated that when he arrived he saw the grievant sweeping on the south side of the holder. He then spoke with Ables and Workman who were in the pit around the bottom block area and they told him that they did not feel it was safe to make the drop. He then spoke with the grievant, who was in another area, and asked him if he was involved in the safety issue in any way and he stated that he was not. Newell in turn advised him to “keep it that way.”
As a beginning point in analyzing the merits of this grievance it is important to point out that a significant distinction exists between the traditional just cause analysis, which is ordinarily applied in disputes involving discipline and discharge, and the type of analysis which must be applied to the case at hand. In most cases the just cause standard requires a determination as to whether the grievant is in fact guilty of the misconduct of which he is accused, and if so, whether the discharge penalty is appropriate to that offense in light of any mitigating or extenuating circumstances. In contrast, the scope of the inquiry in the present case is limited to the question of whether the grievant violated the terms and conditions of a so-called last chance agreement because the level of discipline appropriate for such a violation has already been established pursuant to that agreement.
The undisputed facts of this case show that the grievant voluntarily entered into a last chance agreement on September 19, 2001, as an act of leniency on the part of the Company and as an alternative to the penalty of discharge that had been imposed on the grievant for his involvement in concerted activity resulting in disruptions or cessation of work. The effect of that agreement was that it imposed special terms and conditions of employment on the grievant, and it was expressly agreed to by the grievant and the Union. Specifically, in exchange for foregoing its right to discharge the grievant and giving the grievant a chance to correct his behavioral problem, the Company received an unequivocal agreement from the grievant that he would abide by the plant rules of conduct and cause no further disciplinary problems in the future. It was also expressly understood and agreed among the grievant, the Company, and the Union that the grievant’s failure to keep his commitment would be cause for immediate termination of his employment.
In an earlier decision, Drummond Co. Inc. And United Mine Workers of America, District 20, Local 1948, 106 LA 250 (1996) I explained how and why a last chance agreement had achieved an important stature in labor/management relations:
So-called “last chance” agreements, which impose special terms and conditions of employment, have become increasingly commonplace in industry, as Employers and Unions seek to find mutually satisfactory solutions to a variety of disciplinary problems. There is no question that until an employee’s problems affect his work performance the Employer has no right to discipline or to institute special conditions of employment. However, once an employee’s disciplinary problems have reached the level at which discharge is imminent, an agreement that imposes special conditions of employment may be offered by the Company or sought by the Union in an effort to salvage the employee’s job or give him a chance for rehabilitation. In that respect it is a commendable undertaking and one to be supported by arbitrators.
As a general rule, arbitrators encourage programs of salvage and rehabilitation by strict enforcement of such last chance agreements in accordance with the terms that the parties, including the employee, have been willing to accept. However harsh or strict such terms may be, and even though the arbitrator might well regard such conditions as unfair, that should not be his concern. Once the arbitrator starts substituting his judgment for that of the parties he has exceeded his authority, and more importantly, has jeopardized the future use of such agreements for employees who are at the brink of losing their jobs. An Employer who has been willing to forego assertion of its right to termination for just cause in return for a strict and absolute agreement of this nature would be extremely reluctant to take a chance on such an agreement in the future.
As explained in Mohawk Rubber Co., 47 LA 1029, 1035 (Teple, 1966):
When a “last chance” understanding has been reached, another chance must rest entirely within the Company’s discretion. The arbitrator has no authority to grant another chance when it has been agreed that no further chance is expected or will be given. To disregard such an agreement might jeopardize the chance of other employees to obtain reinstatement on the same condition.
As their name implies, last chance agreements came into being – at least characteristically, and certainly it is true here – when an employee who has compiled an inadequate record commits yet another offense. They cover an employee who is asking for a reprieve in lieu of discharge and who is free to take his chances in arbitration as a discharged employee if he considers the terms of the proposed last chance agreement as too stiff. An employee who has that freedom and foregoes it in accepting a last chance agreement must surely be seen as having acted in his own best interest. He is not entitled, subsequently, to be absolved from his obligations under the last chance agreement on the grounds of the stringency of its terms or the lack of the quality of the treatment relative to other employees. To grant him such absolution is to overlook his special status at the time he made his bargain.
In sum and in short, “last chance” cases are not the same as just cause discharge cases under the general terms of the collective bargaining agreement. By agreement the Employer, the Union, and individual employee have established an automatic and immutable penalty for the violation of such an agreement. Consequently, there is no authority for an arbitrator under such circumstances to require the application of progressive discipline or to consider mitigating factors or even disparate treatment. The sole question to be decided is whether the grievant violated the last chance agreement. If that question is answered in the affirmative, then the discharge must be upheld. However, considering the severity and finality of the results – i.e., the loss of the individual’s employment and the stigma attached thereto – the Employer is required to present sufficient proof to clearly and convincingly establish that the violation has occurred.
In this case the grievant has been charged with a violation of Group III No. 7 of the Rules of Conduct, which prohibits substandard quality or quantity in work performance. Such an infraction is listed among a group of violations that are relatively minor and call for progressive discipline, beginning with a written warning, prior to discharge. Thus, under ordinary circumstances the penalty that the grievant would have received for his misconduct would have been a written warning. As explained in the foregoing discussion, however, based on the fact that the grievant’s continued employment is subject to the terms of a last chance agreement in which he made a commitment not to violate any plant rules, it is beyond question that this offense, if proven, would constitute grounds for discharge. Accordingly, the sole issue to be addressed is whether he did in fact engage in the misconduct of which he is accused. Based on several considerations I have concluded that the evidence with regard to that issue, while somewhat persuasive, is nonetheless sufficiently inconclusive to warrant giving the grievant the benefit of the doubt. In other words, while it cannot be said with certainty that the grievant did not intentionally engage in the misconduct of which he is accused, the proof does raise sufficient doubt to require that the grievant be given another chance.
First of all, the evidence shows that the grievant is relatively inexperienced in the position of helper work on a furnace crew and was not a permanent member of the DC-8 crew with which he was working on the day in question. Thus, it is possible that he was not aware of how he should have reacted when a safety issue that was raised not by him but by the other crew members caused production to cease.
Second, although the safety issue was the factor that interfered with production on the DC-8 furnace, there is no evidence that the grievant was ever involved in that issue other than indirectly in terms of his inability to perform some of his assigned tasks until the issue was resolved. Indeed, supervisor Tucker readily admitted that the operator, Ables, and the pit man, Workman, were the only crew members who raised the safety complaint. He also confirmed that there were a variety of tasks the grievant could not perform until that issue was resolved.
Third, it is undisputed that the nature of the furnace operation is such that many of the regular functions, such as starting the drop, must be performed by all of the crew members as a team. In that regard Casting Maintenance Superintendent Pauley admitted that he would not have expected the grievant to start the drop by himself. This evidence shows that the lack of productive effort on the part of the grievant was unavoidable for a period of time because the other crew members would not let the operation proceed until their safety concern was addressed.
Fourth, the Company’s claims that the grievant performed less than one hour of work on the morning in question is based on the testimony of Tucker and Cash that each time they passed by the shed on the DC-8 furnace they saw the three crew members sitting inside. The probative value of this testimony is undermined by the fact that since neither Tucker nor Cash monitored the crew on a continuous basis, but only sporadically, they had to admit that it was possible that the crew members were working at least part of the time. Moreover, the grievant provided credible testimony that he did in fact perform many of the routine elements of his job as a helper between 7:00 a.m., when he began work, and 10:00 a.m. when the safety controversy arose. From that point on there was little that the grievant could have done on the furnace operation until the safety issue was resolved.
Finally, the evidence showed that the grievant was at his work site sweeping the area and was ready and available to resume work at the time when the other two operators and supervisors resolved the safety issue concerning the bottom blocks. This is further proof that the grievant was trying to distance himself from the controversy and was not involved in a scheme to hold up production.
Having determined that there is sufficient doubt regarding the grievant’s culpability to disallow the application of the last chance agreement as a basis for terminating his employment, the only remaining issue concerns the appropriate remedy. In that regard I have concluded that the grievant is entitled to reinstatement with full seniority but that he is not entitled to back pay for lost earnings or other benefits. The reasons for this conclusion are two fold. First, since the grievant has been given another chance, not on the basis of a definitive finding that he did not engage in the misconduct of which he is accused, but because he has been given the benefit of the doubt in that regard, a back pay award would unjustly enrich him and unfairly penalize the Company. Second, at the time of the incident in question the grievant was fully aware that his continued employment was governed by a last chance agreement and that even a minor rule violation could cost him his job. Thus, after a safety issue arose which prevented the grievant from performing the normal duties of his job, the grievant could have avoided this entire controversy by simply informing his supervisor that he was not involved in the safety issue and asking him if there was other work he could perform in the interim. His failure to take that simple precaution is a major factor that led to his termination and is ample justification for withholding back pay.
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 directed to reinstate the grievant with full seniority but without back pay for lost earnings and other benefits.
October 7, 2002
October 7, 2002
Mr. Charles L. Woody
Mr. Tim Dean
No. (P) 02-04-General
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
Cc: Al Toothman
October 7, 2002
Mr. Charles L. Woody
Mr. Tim Dean
Grievance No. (P) 02-04-General|
(Taxpayer Identification Number - 65-0264789)
Please remit payment to Stanley H. Sergent at the Sarasota, Florida, office
Mr. Al Toothman
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028