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Title: American Disposal Services of West Virginia and Teamsters Local Union No. 697
Date: December 2, 2004
Arbitrator:  Richard D. Sambuco
Citation: 2004 NAC 140

IN THE MATTER OF ARBITRATION

BEFORE

RICHARD D. SAMBUCO

 

TEAMSTERS LOCAL UNION NO. 697

and the

AMERICAN DISPOSAL SERVICES OF WEST VIRGINIA, INC.

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OPINION

and

AWARD

FMCS CASE NO.   04-55395

GRIEVANT:  Brian Jones – Discharge

REPRESENTING THE UNION:       Mr. Robert A. Eberle, Attorney

REPRESENTING THE
COMPANY:                                       Mr. R. Brent Ballow, Attorney

DATE OF HEARING:                       September 23, 2004

RECEIPT OF TRANSCRIPT:          October 6, 2004

RECEIPT OF POST-HEARING
BRIEFS:                                             November 16, 2004             

DATE OF DECISION:                      December 2, 2004

STATEMENT OF THE CASE

            This matter comes before the Arbitrator as a result of a grievance dated May 6, 2004 (Joint Exhibit No. 3), which reads in pertinent part as follows:

“On 5/4/04, Mr. Jones was terminated.  The Union feels this termination is much too severe and unjust a punishment for what transpired.  The Union wants Mr. Spencer returned to work with all back wages and benefits.

                                                                        /s/Brian Jones (Grievant)
                                                                        /s/Steward:  Jacob Vdovjak
                                                                        Date:  5/6/04”

            The above grievance is a result of disciplinary action taken by the Company against the Grievant, the substance of which is revealed in a document date-stamped May 6, 2004 entitled “Employee Corrective Action Report” (Joint Exhibit No. 2), which reads in pertinent part as follows:

“Employee Corrective Action Report

Employee Name:  Brian Jones                   Date of Offense:  4/30/04
            Employee ID:  XXX-XX-XXXX                    Company Location: Whg., WV
            Position/Job Title:  Swing Driver                 Division Name/Number:
                                                                                      American Disposal Services
                                                                                      Of WV, Inc./384

The following disciplinary action has been taken and shall be made part of the official record of this employee.

 

The Company views progressive discipline and the issuance of written disciplinary action as a constructive method of communicating to employees the importance of meeting the performance standards established by the Company.  The Company believes that adherence to Company policies, practices, procedures and exemplification of a positive work ethic by all employees is essential to creating a work environment that is satisfying, safe and productive.

 

The Company believes that progressive discipline is a mutually beneficial process for both employee and employer.  It is the Company’s intention to utilize this process, whenever practical, to identify deficiencies in job performance and provide direction to employees for taking corrective measures.

 

Continued violation of Company policies could result in additional disciplinary action, leading up to and/or including termination of employment.  However, the Company recognizes there are certain offenses that, if committed by an employee, are serious enough to justify immediate discharge, thereby, superseding the progressive discipline process.

 

X  Termination

 

Reason for disciplinary action:

 

X  Job performance issues

X  Failure to follow instructions

X  Misconduct

X  Insubordination

X  Other:  Disrespect toward Management”

 

Explain Violation:

On Friday 4/30/04 Brian came in the shop and told me his inspection sticker was going to run out.  My reply to him was bring me your registration and insurance card.  His reply then was, that’s not my job to be your gopher and I don’t know where it is.  My reply back was it is your job to know where it is because it’s part of your pre/post trip inspection to know where it is especially if you have an accident those are required documents you as a driver must have in your possession.  Brian basically rambled on.  Butch Lowe brought me the documents and I told him Brian needs to bring it to me like I told him.  Brian then came up to my office with the documents I told him to bring and proceeded to tell me who I can and can’t tell what to do.  I tried once more to explain to Brian what my position was and how my management authority affects him as a driver but being continually interrupted during my attempt to explain my position I asked him was that his final word, he then walked out of my office.

 

Corrective Actions:

Brian display’s an attitude that ignores authority and one that requires always having the last word.  His irrational way of dealing with this issue openly and verbally is prejudice to good order and discipline in any place of employment and will not be tolerated.  As a result of this counseling being the 4th and final step in the company’s progressive discipline policy Brian is terminated effective April 30, 2004 at 1700 hrs.

 

I have read this report and acknowledge receipt.

 

X                                       x/s/Jacob A. Vdovjak

Employee Signature       Employee refused to sign-witness signature

            Signed:

            /s/Blaine A. Van Scyoc         Jerry Garlitz
            Maintenance Manager         Operations Manager
            5/4/04”           

                                    

BACKGROUND OF THE CASE

            American Disposal Services of West Virginia, Inc., the “Company” is a subsidiary of “Allied Waste Industries”, an alliance of hundreds of waste services companies throughout the nation.

            The Company is a solid waste facility providing service to residential, commercial and industrial customers by picking up and transporting solid waste for disposal at a local landfill.

            The bargaining unit consists of approximately forty-one (41) employees (Tr. 105) divided among truck drivers, helpers, mechanics, mechanic’s helpers and welders.

            Brian Jones, the Grievant, has been an employee of the Company since October 29, 2001 (Tr. 119).  The Grievant began working on a “recycle truck” and, through the bidding process, moved to “packer driver” and then to a “roll-off” driver.

            On April 18, 2003, the Grievant was issued an “Employee Disciplinary Report” (Company Exhibit No. 11) that resulted in his termination.  The reason given for his termination was “failure to observe traffic laws” (speeding), and was the final step in the Company’s progressive discipline policy.  This termination was appealed to arbitration.

            At the arbitration hearing, the Company and the Union entered into a “Settlement Agreement” (Company Exhibit No. 7) reinstating the Grievant (without back pay), effective February 2, 2004 with his seniority intact from his original date of hire.  The discharge issued in April 2003, according to the Settlement Agreement, was converted to a “second written warning with suspension”.

            While the Settlement Agreement was entered into on January 23, 2004, the parties expressed in the language of the Agreement itself that “The effective date of issuance, for purposes of how long a disciplinary notice can be relied upon under the Contract (the Collective Bargaining Agreement, Article XXXII, Joint Exhibit No. 1) will be May 1, 2003.”

            The incident giving rise to the current grievance and subsequent arbitration hearing occurred on April 30, 2004 around the end of the workday, just prior to quitting time.

            Some time after returning to work on February 2, 2004, the Grievant bid and was awarded the classification of “Swing Driver”, which is ostensibly a “fill-in” or “substitute” driver or “helper” for an employee who may be off work at a particular time.

            On April 30, 2004, the Grievant was filling in for a driver, one Kevin Holmes, and driving Truck No. 456.  While driving Truck No. 456, the Grievant noticed that the inspection sticker was due to “run out” (expire) on that very day, April 30, 2004.[1]

            Upon returning to the shop, the Grievant reported to Maintenance Manager Blaine Van Scyoc that the inspection sticker on Truck No. 456 was about to expire.

            According to the testimony of the Grievant, the Maintenance Manager told him, “Well, go out there and get me that inspect ----- the paperwork and bring it up to my office now.”  (Tr. 128)

            Also according to the Grievant’s testimony, “I told him, I said, I’m not your gopher.  You go get it, with a kind of a grin.  I said Blaine; I only have 30 minutes to check my truck in.  If I go over 30 minutes I will get written up for it.”

            The testimony of Maintenance Manager Van Scyoc over this same incident is as follows:

            “I heard a driver – I didn’t identify the person yet – but, everything’s fucked up like it was when I left and it’s still fucked up.”

            So I went out on my perch (elevated landing) to see who it was.  And once Mr. Jones here recognized me observing him he said, ‘my inspection sticker is going to run out on the truck.  It needs to be fixed.’

            So my response to him was, ‘No big deal, bring your registration and your insurance card’, which should have been the end of it.

            At that point he told me I wasn’t – or he’s not my fucking gopher; to go get it myself.  He’s tired of watching me tell other people what to do.  I need to go start doing stuff for myself instead of telling people what to do (Tr. 64).

            The record will show that the Grievant and the Maintenance Manager (Jones and Van Scyoc) continued in a rather heated discussion in the Maintenance Manager’s office after the Grievant had brought the paperwork up to the Maintenance Manager’s office.

            This confrontation between the two resulted in the termination of the Grievant.  The reasons given were “insubordination”, “failure to follow instructions” and “disrespect toward Management”.  (See Joint Exhibit No. 2, previously cited.)

THE ISSUE

            Given the facts and circumstances involved in this case, did the Company have just cause to terminate the Grievant?

            If the answer is no, what is the remedy?

CONTRACTUAL LANGUAGE

            The contractual language relating to this issue is drawn from the Collective Bargaining Agreement (Joint Exhibit No. 1) effective December 31, 2001 through March 1, 2005:

ARTICLE VII

MANAGEMENT RIGHTS

Section 1.  It is agreed that the Union and the employees will cooperate with the Company within the obligations of this Agreement to construe this Agreement to facilitate the efficient and flexible operation of the Company’s business.  The Union recognizes that certain rights, powers and responsibilities belong solely to and are exclusively vested in the Company except as they may be subject to a specific obligation of this Agreement.  Among these rights, powers, and responsibilities, are all matters concerning or related to the management of the business and administration thereof, and the direction of the working forces, including the right to suspend, discipline, or discharge for just cause; to lay off for lack of work or for any other legitimate reason; to hire, assign work, determine hours of work, or recall; to make and enforce reasonable rules and regulations; to determine the processes and extent of production; to determine the types and quantities of equipment to be used; to determine the nature, duration, and method of operation, including the right to contract out or subcontract subject to the provisions of the subcontracting portions of this agreement; to determine the amount, utilization, of personnel and quality of work to insure maximum efficiency of operations; to terminate, merge, consolidate, sell or transfer its business or any part thereof and to determine the number and location of facilities and the extent to which and means by which its facilities or any part thereof shall be relocated, shut down, or abandoned subject to the legal obligations to bargain with the Union over the decision and effect of any such relocation, shut down or abandonment if such decision is based on labor costs; all of which are vested exclusively in the Company except as expressly abridged by a specific provision of this Agreement.

 

ARTICLE XXXII

DISCHARGE

The Employer shall not discharge nor suspend any employee without just cause.  Discharge or suspension must be by proper written notice to the employee and the Union.  Warning notices shall have no force or effect after (12) twelve months from the date thereof.  Any dispute resulting from the discharge or suspension of any employee, or issuance of a warning notice to him shall be settled in accordance with the grievance procedure outlined herein.

DISCUSSION ON THE MERITS

            The parties are in agreement that the issue to be resolved is whether the Company had just cause to terminate the employment of the Grievant.  The Collective Bargaining Agreement (ARTICLE XXXII) between the parties imposes an explicit just cause limitation on the Company’s authority to discharge an employee.  Although the term “just cause” is not defined in the Collective Bargaining Agreement, its meaning has been well established by arbitral precedent.

            One noted arbitrator, Lawrence Stessin, defines just cause as:

“What a reasonable person mindful of the habits and customs of industrial life and standards of justice and fair dealing would decide.”1

            Another noted arbitrator, Joseph P. McGoldrick, describes the essential qualities of just cause as follows:

“It is common to include the right to suspend and discharge for “just cause”, “justifiable cause”, “proper cause”.  There is no significant difference between these various phrases.  These exclude discharge for mere whim or caprice.  They are, obviously, intended to include those things for which employees have traditionally been fired.  They include the traditional causes of discharge in the particular trade or industry, the practices which develop in the day-to-day relations of management and labor and most recently they include the decisions of courts and arbitrators.  They represent a growing body of “common law” that may be regarded either as the latest development of the law of “master and servant” or, perhaps, more properly as part of a new body of common law of “management and labor under collective bargaining agreements.”  They constitute the duties owed by employees to management and, in their correlative aspect, as part of the rights of management.  They include such duties as honesty, punctuality, sobriety, or, conversely, the right to discharge for theft, repeated absence or lateness, destruction of company property, brawling and the like.  When they are not expressed in posted rules, they may very well be implied, provided they are applied in a uniform non-discriminatory manner.”2

            A third well-known arbitrator, Harry H. Platt, describes just cause as follows:

            “No standards exist to aid an arbitrator in finding a conclusive answer to such a question (definition of just cause) and, therefore, perhaps the best he can do is to decide what a reasonable man, mindful of the habits and customs of industrial life and of the standards of justice and fair dealing prevalent in the community ought to have done under similar circumstances and in that light to decide whether the conduct of the discharged employee was defensible and disciplinary penalty just.”3

And finally, the National Academy of Arbitrators states as follows:

“The just cause principle entitles employees to due process, equal protection and individualized consideration of specific mitigating and aggravating factors.  The essence of the just cause principle is the requirement that an employer must have some demonstrable reasons for imposing discipline.  The reason must concern the employee’s ability, work performance, or conduct or the employer’s legitimate business needs.4

            In this instant case, the reasons given for discharge are “failure to follow instructions”, “insubordination” and “disrespect toward management”, all of which, given the circumstances of this case, can reasonably be characterized as “insubordination."

INSUBORDINATION

Black’s Law dictionary defines insubordination as follows:

            “State of being insubordinate; disobedience to constituted authority.  Refusal to obey some order which a superior officer is entitled to give and have obeyed.  Term imports a willful or intentional disregard of the lawful and reasonable instructions of the employer.” 5

“Robert’s Dictionary of Industrial Relations” defines insubordination as follows:

A worker’s refusal or failure to obey a management directive or to comply with an established work procedure. Under certain circumstances, use of objectionable language or abusive behavior toward supervisors may be deemed to be insubordination because it reveals disrespect of management authority.  Insubordination is a cardinal industrial offense since it violates management’s traditional right and authority to direct the work force.” 6

The “obey now grieve later“ rule generally governs arbitral decisions in cases involving insubordination.  The leading exception to this rule is refusing to follow an order that would endanger the employee’s health or safety or that of other workers.

The Union argues that the Company imposed discipline as an over reaction to the situation that arose on April 30, 2004.  The Union contends that the Grievant followed through on the instructions issued by the supervisor (Van Scyoc) and there is no evidence in the record that Grievant Jones behaved in an insubordinate manner.

Notwithstanding the fact that the Grievant did in fact eventually deliver the requested documents to supervisor Van Scyoc, the record will show that the Grievant himself testified as follows: “I told him (Van Scyoc), I said, I’m not your gopher, you go get it.”  (Tr. 129)

The Grievant’s testimony does not contain the profanity revealed in the testimony given by supervisor Van Scyoc, however a statement in the Union’s brief which reads as follows:  “His reaction to Van Scyoc may not have passed muster in a parlor room, but this was a maintenance shop of a refuse hauling company, and it is reasonable to assume that parlor room decorum was not the standard for that environment,” which leads this Arbitrator to conclude that the testimony of supervisor Van Scyoc is much more believable and therefore more credible than the Grievant’s.

The Union’s argument that “he (the Grievant) informed Van Scyoc that he could not get the paperwork because he had to check the truck out” does not comport with the testimony of either the Grievant or supervisor Van Scyoc.  This argument is concluded to be an afterthought designed to ameliorate the initial verbal exchange between the Grievant and the Supervisor.

The Union contends, “By the time Jones went up to Van Scyoc’s office with the paperwork, he had to understand that Van Scyoc was intending to humiliate him.  Why else would VanScyoc go to the trouble of having the mechanic (Butch Lowe) take the paperwork to Jones and force Jones to bring it back to him?  It is clear that VanScyoc’s intention was to antagonize Jones rather than take care of a work problem.”

During the initial verbal exchange between the Supervisor and the Grievant, their testimony reveals no intent on the part of the Supervisor (Van Scyoc) to antagonize or humiliate the Grievant.  It was that initial verbal exchange supported by factual testimony by both the Grievant and the Supervisor that triggered the basis for a charge of insubordination.

The Union asserts that the Grievant made a point to say to Van Scyoc that he (Van Scyoc) treated the employees like dogs, that the Grievant had been raised not to accept that sort of treatment, and that if Van Scyoc would take a more human approach, he might get a lot more cooperation.

There was no evidence or testimony presented to corroborate the Grievant’s description of the manner in which Van Scyoc treated other employees.

PROGRESSIVE DISCIPLINE as an ELEMENT of JUST CAUSE

The Union declares that it is axiomatic that where the contract provides for just cause then the Arbitrator must apply just cause. The union further states that an employer cannot prove just cause merely by showing that an employer policy requires discharge as the next step of progressive discipline.  Just cause includes a component that discipline be fairly and consistently administered and that the punishment be tailored to fit the crime, the Union argues.

Discipline is an adverse action taken by an employer against an employee because of the employee’s behavior.  Progressive discipline is a system of addressing employee behavior over time, through escalating penalties.  The purpose of progressive discipline is to correct the unacceptable behavior of an employee.  Employers impose some penalty less than discharge to convey the seriousness of the behavior and to afford the employee an opportunity to improve.  The discharge penalty is reserved for very serious incidents of misconduct and for repeated misconduct.  The expected result of progressive discipline is that the employee will recognize he has engaged in unacceptable conduct and will correct his future behavior.

The principle of just cause allows an employee to be terminated in two types of situations:  a single incident of very serious misconduct or the final step in the progressive disciplinary process.

Some collective bargaining agreements specifically provide for progressive discipline and delineate its administration.  In many cases however, the rules, including penalties, are unilaterally promulgated by the employer.

In this instant case the Collective Bargaining Agreement (Joint Exhibit No. 1) does not delineate a detailed procedure of progressive discipline.  The language of ARTICLE XXXII states as follows:

“The Employer shall not discharge nor suspend any employee without just cause.  The Agreement between the parties (Joint Exhibit No. 1) provides only two (2) conditions (suspension or discharge) for disciplinary action.” (Emphasis added.)

The Company in its application of the management rights clause provides for an expanded and more liberal procedure for progressive discipline.

First let the record show that ARTICLE VII, MANAGEMENT RIGHTS does grant authority to the Company “to make and enforce reasonable rules and regulations.”   (Emphasis Added).

It is well established in arbitration that management has the fundamental right unilaterally to establish reasonable plant rules not inconsistent with law or the collective agreement.[2] Thus, when the agreement is silent on the subject, management has the right to formulate and enforce plant rules as an ordinary and proper means of maintaining discipline and efficiency and of directing the conduct of the working force.

ARTICLE XXXII of the parties Agreement (Joint Exhibit No.  1) provides only two (2) conditions (suspension or discharge) for disciplinary action.  The Company has broadened and provided for additional flexibility by including conditions such as “Verbal Documentation”, “1st Written Warning”, “2nd Written Warning (With and Without Suspension), “Suspension Pending Investigation”, and “Termination”.  (See Joint Exhibit No. 2)  The Company supports this method of procedural discipline by providing “Reason(s) for Disciplinary action” and by including an Employee Handbook (Company Exhibit No.1) and an Employee Safe Driving and Safe Work Practices booklet.  (Company Exhibit No.2)

In each case, “Employee Handbook”, (Company Exhibit No.1), “Employee Safe Driving and Safe Work Practices”(Company Exhibit No.2) and the “Discipline Policy” (Company Exhibit No.6), the Grievant has acknowledged with his signature that he has received, read and fully understands the contents of the aforementioned documents.

The signed acknowledgement by the Grievant of having received, read and understands the documents discussed above, satisfies the number one question in determining the existence of just cause and that is:

“Did the employer give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct.”?

While ARTICLE XXXII DISCHARGE places only two (2) conditions (discharge and suspension) subject to a just cause requirement, the second sentence does provide for the possibility of  “warning notices” as a method of disciplinary action.  Given the foregoing analysis, I find no conflict between ARTICLE XXXII of the Collective Bargaining Agreement (Joint Exhibit No. 1) and the Company’s procedural policy with regard to the use of progressive discipline as an element of the just cause requirement.

The Union argues that the Company’s “corporate policy by its own terms declares that it is not applicable where the employment is covered by the terms of a collective bargaining agreement.”  The Union supports this argument by citing from Company Exhibit No. 3 (Progressive Discipline Policy) at Section III which reads as follows:

“This policy shall not supersede or replace any related policies or practices specifically addressed within collective bargaining agreements for the members represented by said agreement(s).”

With respect to the explicit language of ARTICLE XXXII, this language specifically restricts the just cause requirement to two (2) conditions; discharge or suspension.  The Company’s progressive discipline policy expands upon and provides for a much more liberal (verbal and first and second written warning prior to suspension or termination) approach to the concept of just cause as expressed in the language of ARTICLE XXXII.

As previously stated, progressive discipline is an element of just cause.  The first sentence of ARTICLE XXXII   “The Employer shall not discharge nor suspend any employee without just cause” appears to this arbitrator to be incongruous because the language restricts the Arbitrators consideration to two (2) conditions (discharge and suspension) and yet calls for the application of just cause requirements which in most cases includes progressive discipline.

The Union’s argument that the Company’s corporate discipline policy is not applicable is not persuasive.  The language of Section III of Company Exhibit No. 3 states that it “shall not supersede or replace any related policies or practices specifically addressed in collective bargaining agreements,” does not make the language inapplicable.  The fact that the express language of ARTICLE XXXII (Joint Exhibit No.2) contains a just cause requirement provides for and allows Company Exhibit No.3, Progressive Discipline Policy to be an integral part of the just cause requirement of ARTICLE XXXII.

The Union argues that the Company’s corporate policies all contain disclaimers to the effect that they are not binding contracts and do not alter the at-will relationship.  The Union further argues that the Agreement (Joint Exhibit No 1) does specifically change the at-will nature of the employment relationship to one of just cause, and as such the Agreement supersedes these corporate policies.

I agree with the Union’s argument that the Agreement (Joint Exhibit No. 1, ARTICLE XXXII) changes the at-will employment relationship to one of just cause.  Since the language of ARTICLE XXXII includes just cause for suspension or discharge, it does supersede the at-will employment relationship, but the fact that the language does provide for just cause requires the consideration of all the elements (i.e. Progressive Discipline) that make up the concept of just cause.

The employment-at-will doctrine simply stated says that any employment relationship that is not in writing and is for an indefinite period of time may be terminated by either party, at any time, for any reason or no reason at all.  Since the at-will employment relationship is characterized by the lack of a definite term of employment and of provisions delineating reasons for discharge or continued employment, the courts have often turned to provisions in employee handbooks and/or manuals as the source of such implied contracts.  However, where handbooks and/or manuals contain disclaimers, courts have been reluctant to imply contract terms based thereon.7 (Emphasis added).

Those disclaimers contained within Company Exhibit No.1, 2, and 3, are intended for those employees not employed under an employment contract or collective bargaining agreement.

ARTICLE XXXII of the Collective Bargaining Agreement (Joint Exhibit No.!) certainly does supersede those corporate policies that conflict with the language of ARTICLE XXXII but that language contains the requirement of just cause for discharge or suspension.

Absent provisions in ARTICLE XXXII, delineating reasons for disciplinary action and given the language expressed in the management rights clause, i.e.

to make and enforce reasonable rules and regulations,” I conclude that the Company’s Progressive Discipline Policy (Company Exhibit No. 3), and the Employee Handbook (Company Exhibits No.(s) 1 and 2), where they specifically refer to the enforcement of reasonable rules and regulations are not in conflict with the just cause requirement of ARTICLE XXXII of the Collective Bargaining Agreement.

            The Union argues that the Union and the Grievant agreed that his prior discipline would be considered a second written warning, but nothing in that agreement (Settlement Agreement, Company Exhibit No.7) could be construed or inferred to mean that the Union agreed that the next step of discipline was discharge.

            The Settlement Agreement reads in pertinent part as follows:

The discharge issued in April 2003 will be converted to a second written warning with suspension. (Emphasis added). 

           

            Nowhere in ARTICLE XXXII (Joint Exhibit No. 1) does the language delineate a method of progressive discipline except by inference from the just cause requirement for discharge.

            Two principles that are critical to just cause are employed by all arbitrators:  due process and progressive discipline.  Industrial due process encompasses the employer’s procedural responsibilities in disciplining employees.  Arbitrators apply principles of industrial due process when determining whether an employer had just cause for discipline.

            Progressive discipline has its origins in both collective bargaining and shared notions of fairness.  Some collective bargaining agreements specify the steps an employer must take before disciplining or discharging an employee.  Even in the absence of bargained-for steps however, arbitrators have generally asserted that an employee must be given some warning that his behavior is unacceptable and some opportunity to conform his behavior to the employer’s legitimate expectations. The Company’s PROGRESSIVE DISCIPLINE POLICY (Company Exhibit No. 3) satisfies the just cause requirement.

            The foregoing analysis notwithstanding, the emphasized phrase “second written warning with suspension” as expressed in the Settlement Agreement takes its cue from the Employee Corrective Action Report (Joint Exhibit No. 2).[3]

            The Settlement Agreement is the result of a previous disciplinary action (Company Exhibit No. 11) terminating the Grievant.  The intent of the Settlement Agreement was to provide the Grievant with a second chance to save his job.

            Nowhere in the Collective Bargaining Agreement, (ARTICLE XXXII) is the phrase “second written warning with suspension” expressed.

That phrase “second written warning with suspension” is used in the Employee Corrective Action Report (Joint Exhibit No. 2), and in the Progressive Discipline Policy (Company Exhibit No. 3).  In Joint Exhibit No. 2 and Company Exhibit No. 3, the phrase “2nd written warning with suspension or 2nd written warning on lieu of suspension”, is the “last disciplinary measure prior to termination of employment should there not be a compliance with work rules or necessary improvement in job performance.” (Emphasis added)

            Given the existence of Company Exhibit No. 3 and Joint Exhibit No. 2, both illustrative of progressive discipline which is an element of just cause, the Union’s argument that nothing in the Collective Bargaining Agreement can be construed or inferred to mean that the Union agreed that the next step of discipline was discharge is not persuasive. 

The grievant was terminated on April 18, 2003 (Company Exhibit No. 11).  He was reinstated on February 2, 2004.  According to the Settlement Agreement, “The discharge issued in April 2003 will be converted to a second written warning with suspension.”  This discharge conversion to a second written warning with suspension was a disciplinary notice as contained in the Company’s Progressive Discipline Policy (Company Exhibit No. 3) and Employee Corrective Action Report (Joint Exhibit No. 2), Emphasis added.

19

The Settlement Agreement states as follows:  “The effective date of issuance for purpose of how long a disciplinary notice can be relied upon under the contract will be

May 1, 2003.”  This means that the second written warning with suspension would have force and effect for twelve (12) months from the date of issuance; or until May 1, 2004.

The Settlement Agreement was entered into on January 23, 2004, and the Grievant was reinstated on February 2, 2004, approximately three (3) months prior to his second termination on April 30, 2004.  So the Grievant was working under a “second written warning with suspension” for approximately three (3) months.

It is apparent that the Grievant did not appreciate the seriousness of his situation when he confronted Supervisor Van Scyoc that resulted in the ensuing verbal exchange.

The argument that the Grievant did not know that Van Scyoc was his supervisor is not convincing.  The Grievant went through two (2) orientation programs for new hires; once when he was originally hired and a second time when reinstated under the Settlement Agreement. (See paragraph number 3 of Settlement Agreement)

The Employee Handbook (Company Exhibit No. 1) in which the Grievant had signed (Company Exhibit No. 4) as having received and agreeing to as having read defines insubordination as:  “failure or refusal to do assigned work or carry out any reasonable direction of a supervisor.”  An Employee may not know what the term “Insubordination” means but certainly he or she knows that “failure or refusal to do assigned work or carry out any reasonable direction of a supervisor,” can lead to disciplinary action.  Common sense would tell you that.

CONCLUSIONS ON THE MERITS

As a matter of information to the Grievant; an Arbitrator’s job is not to determine whether or not you should have been discharged.  An Arbitrator’s job is to determine whether the Company had a good enough reason (just cause) to do what they did, discharge you.  The absence of any prior discipline serves to mitigate (reduce) certain disciplinary action in many, but not all cases.

Just cause answers the question what would a reasonable person do, given the same facts and circumstances.

In most all disciplinary matters, the employee is entitled to know what he or she has done wrong and given a chance to correct his or her actions.  This is the whole idea

behind progressive discipline.  There are exceptions to this idea such as stealing, destroying company property, insubordination, fighting on the job, the use of illegal drugs or alcohol on the job and many others, which can in many cases result in immediate discharge. However progressive discipline is a much better method of getting employees to respond to management direction than outright discharge on the first offense.

               The Company does have the right to make and enforce reasonable rules and regulations as long as these rules and regulations do not conflict with a Collective Bargaining Agreement.

               When employees are presented with copies of employee’s handbooks and other documents that may impact on their working life it is their responsibility to read and become familiar with what these documents say, including their collective bargaining agreement.  Union members cannot expect their Union to rescue them from every action or reaction they may become involved.

               Remember when I began the arbitration hearing, before I knew anything whatsoever about the case, except that it was a discharge case; I said, “Since the Company has the authority and responsibility to direct the working forces, they will present their case first and explain why they took the disciplinary action. “

               Supervisors are representatives of the Company and they do have the authority and responsibility to provide direction.

            This idea that “He’s not my supervisor, he can’t tell me what to do” is not a good reason.  Unless the directive involves immediate endangerment to an employee’s health or safety or that of other workers, the wise response is to carry out the supervisor’s directive.

DECISION ON THE MERITS

               On the basis of the record as a whole and for the reasons as stated above, I find that the Company did have just cause to terminate the Grievant Brian Jones.  The grievance is denied.

Decision rendered in Belmont County, Ohio on December 2, 2004

                                                                           Richard D. Sambuco, Arbitrator

SOURCES CITED

1.      Koven, Adolph M.; Smith, Susan L. “Just Cause, The Seven Tests”, 2nd. Edition, BNA, Washington D.C. p.2.

2.      Elkouri and Elkouri, “How Arbitration Works, Fifth Edition, BNA Inc. Washington D.C. p. 887.

3.      Brand, Norman, “Discharge and Discipline in Arbitration, BNA Inc. Washington D.C., p. 31.

4.      Antoine, Theodore J. The Common Law of the Workplace”, The Views of Arbitrators. NAA, BNA Inc., Washington D.C.  p. 159.

5.      Black’s Law Dictionary, Abridged Fifth Edition, West Publishing Company, 1983, p. 408.

6.      Roberts Dictionary of Industrial Relations, 4th Edition, BNA Inc. Washington, D.C. p. 349.

7.      Elkouri and Elkouri, “How Arbitration Works”, Fifth Edition BNA, Inc. Washington, D.C. p. 890.


[1] As was explained to the Arbitrator, when an inspection sticker expires, according to state and federal law, the vehicle is not allowed to return to the road until it has passed inspection (Tr. 147).

[2] Arbitrator Carroll R. Daugherty stated that:

A Union sometimes implies that a Company’s rules have little or no force or effect because same were not agreed to by the Union.  It is a settled rule of arbitration that a Company has the right unilaterally to issue and enforce rules that (1) do not conflict with any provision of the parties agreement or of law and (2) are reasonably related to the safe, orderly and efficient operation of the Company’s business.  Industrial Finishing Co., 40 LA 670, 671 (1963). 

[3] When the parties agree on the admissibility of documents or other tangible evidence, it is common practice to identify those documents as joint exhibits

 

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