BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BREWERY WORKERS LOCAL 9,
MILLER BREWING COMPANY
Murphy, Gillick, Wicht and Prachthauser, by Mr. George F.
Graf, on behalf of the Union.
Quarles & Brady, by Mr. Eli A. Leichtling, on behalf of
The above-captioned parties, herein "Union" and "Company", are privy to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
held in Brookfield, Wisconsin, on September 16, 1997. The hearing was transcribed and the
parties thereafter filed briefs which were received by November 4, 1997.
Based upon the entire record and the arguments of the parties, I issue the following
The parties have agreed to the following issue:
Whether the Company violated Articles V and/or VI of
the contract when it refused to
recall grievant Randy Scott Chenoweth to a job in its Powerhouse and thereby displace an
with less plantwide seniority after Chenoweth obtained a Second Class Stationary Engineer's
License and, if so, what is the appropriate remedy?
The Company makes beer at its Milwaukee, Wisconsin, facility.
Grievant Chenoweth worked there from June, 1978, to January 5, 1996, when he was
off along with other employes. Earlier, Chenoweth requested a transfer to the Powerhouse
Department on June 9, 1984. Said request, which is still on file, was denied. At the time of
January 5, 1996, layoff, Chenoweth was classified as an Oiler in the Oiling Department.
his layoff, Chenoweth received a Second Class Stationary Engineers' License ("Second Class
License"), on October 6, 1996, from the City of Milwaukee.
Chenoweth on October 8, 1996, asked the Company to recall him to the Powerhouse.
that time, there were Powerhouse employes who had less seniority than Chenoweth. The
Company refused to do so on the ground that Chenoweth was not qualified to work in the
Powerhouse. As a result, there was extensive testimony at the hearing regarding
qualifications, along with the qualifications which the Company believes are necessary for an
Engineer to possess in its Powerhouse.
Chenoweth testified that he over the years had taken various courses to qualify for his
Second Class License and other licenses; that he is now working with boilers in his present
with Northwest General Hospital; that he for about three (3) years worked with boilers at
International Stamping Company before he took his job with the Company in 1978; that he
believes he is qualified to work in the Powerhouse because he has "the schooling, the
and the license"; and that he needs some training and orientation to do so.
On cross-examination, he said that the pressure boilers at International Stamping
had about 50 horsepower and measured about 20 by 4 feet; that he started up those boilers
"probably maybe two dozen times"; that he did not have any refrigeration or engine room
experience with generators and turbines there; that he needed a license from the City of
Milwaukee to legally work as a Second Class Engineer; that the boilers at Northwest General
Hospital have about 60 pounds of pressure; that he does not know their horsepower; that they
measure about 4 by 25 feet; that his only refrigeration experience at his present job involves
chillers; that he has no experience working with CO2 or cryogenic systems; and that while
related all of this information to a Union officer, he has not spoken directly to Company
representatives regarding the training and experience he has gained after October, 1996,
asked to be recalled to the Powerhouse.
Union officer Eckhard Tetzlaff, who works in the Fermenting Division of the
Department, testified about the training offered to employes who transfer into his area when
are layoffs. He said all operational jobs there "need training" and that said training can take
to about three (3) or four (4) weeks.
Union Recording Secretary James Robinson testified that he informed Company
representatives after the third step of the grievance proceeding about Chenoweth's
1996, training and experience. He also testified about employes with medical restrictions
were recalled to work and about Wayne C. Durham's hire by the Company pursuant to an
arbitration award which allowed him to work in the Powerhouse after he was laid off by
Schlitz Brewing Company. Durham had previously worked as an Operating Engineer in
powerhouse before he started working for the Company and hence was fully qualified for
position at the time he took it.
Union Steward Jim Laczewski, who works in the Powerhouse, testified that a
occurred in the Powerhouse in 1996 after the Company terminated Powerhouse employe
Assistant Brewing Manager Jacqueline Reese testified that in order to avoid layoffs,
Company transfers employes to Brewing Department jobs that require "minimal type of
She disputed Tetzlaff's testimony by stating that transferred employes into the Brewing
Department only need about one (1) week or less of training.
On cross-examination, she acknowledged that certain employes from the
recently-eliminated Oiling Department transferred to the Brewing Department; that some of
training that lasted "about five weeks"; that other employes required training which lasted
two to four weeks; that these senior Oilers bumped less senior Brewing Department
that other Brewing Department employes were laid off at the time. Reese added that
Kayzel was placed on "inactive" status because of his medical restriction and that after a
was filed, Kayzel was trained for "several weeks" for an operational job in "H" house.
Plant Services Manager Melinda DeLuca, who is responsible for the Powerhouse,
"we consider ourselves the largest refrigeration system in the state." She added that there
boilers, the largest of which produces 100,000 pounds an hour, and that the two smallest
40,000 pounds an hour. They are about five stories high, about 40 to 60 feet deep, and
feet across. She said that the boiler operation has become more complex because employes
must operate them without any second or third shift supervision and that Powerhouse
must operate the water softening system, the dearoter (which processes steam and returning
condensate), carbon purifiers, ammonia compressors, evaporate condensers, turbine
the process hot water system, cooling tower, and the CO2 compressors.
DeLuca testified that the Company's operations were accurately depicted in a diagram
(Company Exhibit 1), which, inter alia, showed the
BOILER ROOM UTILITIES
ONE OPERATOR ONE OPERATOR
MAJOR OPERATION MAJOR
* 400 PSIG STM BOILERS * AIR COMPRESSORS
* AMMONIA COMPRESSORS
* WATER SOFTENERS
* TURBINE GENERATION
* CARBON PURIFIERS
W/ SYNCHRONIZING PANEL
* BOILER FEED WATER
* CO2 SYSTEM
* EVAPORATIVE CONDENSORS
* PROCESS HOT
* COOLING TOWER
ONE OPERATOR PER SHIFT
MAJOR OPERATION 12 OPERATORS (4
GROUPS OF 3)
WIDE): 8 MAINTENANCE
* HVAC 20 TOTAL
* AMMONIA PUMP OUT
* FERMENTING CO2
On cross-examination, DeLuca acknowledged that she is engaged in a cross-training
aimed at obtaining "multi-skilled operators and maintenance persons" and that not all of the
room Operators can now perform all of the engine room operations and
She estimated that an experienced person with a Second Class License would need
to six months to be a proficient Boiler Room Operator" and that Chenoweth also would need
least that much training because his prior experience with other boilers is not much help
in her words: "They're not the same animal." She explained all of the various operations he
would have to run, a task made more difficult by the fact that there is only one other Boiler
Operator and Engine Room and Refrigeration Operator per shift. She further stated that
Boiler Room Operator Bob Sadowski was the least senior Powerhouse employe in October,
when Chenoweth asked to be recalled and that Sadowski bid for a maintenance position in
Powerhouse in November, 1996, which subsequently was awarded to him. Hence, it is
who would be bumped from his position if Chenoweth were to be recalled at the present
DeLuca explained how Sadowski was being cross-trained for refrigeration maintenance
("Reefer"), and she named the various other Powerhouse employes who have been
She added that all maintenance employes in the Powerhouse "must relieve in one of those
Robert Marshall, the supervisor in the Powerhouse utilities department, testified that
would take six or nine months to properly train Chenoweth as a Boiler Operator without any
supervision "Because of the type of equipment we have, very complicated." He explained
Chenoweth has only worked with "package boilers" which are far less complicated than those
by the Company and which therefore "require a lot of hands-on operation for light-off, for
up, and for operation." He said that it would probably take "over a year to be able to train
somebody to take Mr. Sadowski's position" and that the Powerhouse is a hazardous place to
because it uses high temperature ammonia, "superheated steam from the boiler room", high
voltage, and transformers.
On cross-examination, he stated that it would take at least six months to fully train a
Room Operator to become an Engine Room Operator.
Employe Relations Manager Mike Braunschweiger testified that he had reviewed the
practices on this issue and that he could not find any instances of where an involuntarily
employe had ever been recalled to a position which was not vacant at that time and which
therefore required that another employe be laid-off in order to make way for the laid-off
He also said that no employes were laid off when Durham was hired by the Company. He
that injured employes are placed on inactive status or a medical leave of absence; that they
laid-off; and that injured employes "most likely" would be returned to their former
He also said that Chenoweth was not recalled in October, 1996, because he at the time of his
January, 1996, layoff did not have a Second Class License; because he then "wasn't capable
qualified for the position"; and because Chenoweth "could not be trained in a reasonable
Responding to Laczewski's claim that Chenoweth could have been recalled to replace
Lofton, Braunschweiger said that Lofton was reinstated following his initial discharge and
Company did not recall Chenoweth in the interim because it wanted to see how the Lofton
situation would be eventually resolved.
On cross-examination, Braunschweiger testified that he did not know the full
regarding Durham's hiring; that he did not know whether injured employes were placed on
"medical layoffs" more than three (3) years ago; that the contract does not define what
a reasonable training period; that the contract does not contain any time limits for training;
that "the amount of time required to train Mr. Chenoweth. . . was too long." He added that
anything more than a one-month training period was too long; that while Chenoweth in
1996, had the requisite licensing requirements to work in the Powerhouse, it was a "moot
because he already was disqualified for that position when he was laid-off in January, 1996;
that he agreed with DeLuca and Marshall as to how long it would take to properly train
Chenoweth for a Powerhouse position. Saying that he had never heard the term "medical
in his 22 years of employment with the Company, he did not dispute Robinson's testimony
relating to medical leaves of absence.
POSITIONS OF THE
The Union argues that the Company violated the contract when it refused to recall
Chenoweth in October, 1996, because the parties agreed in Articles V and VI of the contract
in the event of a lay off, "junior employes will be laid off and the senior employe will be
every opportunity to remain at work." The Union claims that there is no contract language
effect that a senior employe "must be capable and qualified only at the time of the layoff";
Chenoweth in October, 1996, became qualified to work in the Powerhouse after he was laid
that the Company thus is required to give him whatever training period is needed because
VI, Section 6, provides for "reasonable training opportunities"; and that the Company in the
has provided such training to employes out on medical leave and to employes who have been
transferred to other jobs. It further maintains that since Chenoweth has had a pending
request on file since 1984, "he should have been able to implement this transfer request and
layoff'". As a remedy, the Union asks that Chenoweth be granted a Powerhouse position
he be made whole because of the Company's refusal to award him that position.
The Company, in turn, asserts that it is not required under the contract to recall
involuntarily laid-off employes at a time when laid-off employes would not normally be
and that, moreover, Chenoweth is not capable and qualified to work in the Powerhouse even
he were to be granted a reasonable training opportunity.
This case largely turns on Articles V and VI of the contract which state:
ARTICLE V - DEPARTMENT ASSIGNMENTS AND
Weekly assignments of employees to departments identified in
Article III, Seniority shall
be made as follows:
(a) The Company will determine the number of employees to
be assigned to each
department. Employees will be assigned to their departments in accordance with
their department seniority.
(b) Employees who do not have sufficient department
seniority to be assigned to their
regular department will be assigned to any department to fill an available opening
or to displace a junior plant seniority employee in order to avoid layoff in
accordance with Article VI, Layoff and Recall.
(c) Following assignment to departments, employees will be
placed on a shift in
accordance with their shift preference and plant seniority.
Following the start of the work week, an employee may be
assigned to another department
when the employee's job is discontinued or in order to meet operational needs without regard
Stewards shall be the last to be assigned from their
and shift provided they are
capable and qualified to perform the work available in the department.
ARTICLE VI - LAYOFF AND RECALL
All weeks of vacation accrued for the purposes of minimizing
layoffs are to be scheduled
in accordance with the provisions of Article XXIII, Vacations,
Section 15(f). Employees shall be laid off in accordance with
their seniority in the Company,
the employee with the least plant seniority to be laid off first, provided that the retained
shall be capable and qualified to perform the work available.
In the event of a layoff of employees, transfers of employees
from department to
department shall be made in accordance with the provisions of Article V, Department
and Transfer provided that:
(a) Employees transferred are capable and qualified to
perform the work to which they
may be assigned in the department to which they are transferred.
(b) There must be capable and qualified employees retained
in the department from
which the transfer is being made to perform all available work in that department.
(c) Stewards shall be last to be transferred provided they are
capable and qualified to
perform the work available.
(d) An employee subject to transfer must accept transfer or
be placed on voluntary
Laid off employees shall be recalled as follows:
(a) Employees shall be recalled in reverse order of layoff.
(b) Any employee who fails to report for work within the
required three (3) working
days shall be considered a quit. However, recalled employees may be reinstated
to the top of the recall list provided that, within seven (7) calendar days of the
notice of recall, they supply the Company an acceptable reason for their failure to
(c) Employees on layoff who are recalled may refuse such
recall, provided they notify
the Company of their refusal within one (1) working day of receipt of notice. In
the event such timely notice
is given, the employees' name shall not be placed on the
recall list until they notify
the Company in writing of their availability. Such employees must accept in
reverse order of seniority when there are no regular employees left on layoff.
(d) Employees shall at all times record their current address
and telephone number
with the Company and the Union by written notice on forms to be provided by the
No layoff shall be effective unless the employee to be laid off
notified in writing prior
to the middle of the shift before such layoff is to take place provided the employee is
Such employee's shop steward shall be notified of the layoff in writing not later than the
of the steward's shift, but not sooner than the middle of the affected employee's shift,
that the steward is available.
The Company shall notify the Union weekly of all vacations,
full week of holidays, recalls,
layoffs, transfer resulting from layoffs, and absences due to illness of more than fifteen (15)
working days' duration. Written notice of all transfers and requests for transfers, weeks and
of vacation scheduled to minimize layoffs along with copies of all recall and layoff lists will
given to all stewards. Written notice of all changes in shift assignments within a department
be given to all stewards within the department affected. A departmental seniority record
shift preference shall be maintained in each department and shall be available to stewards in
department. Shift supervision will make adjustments when necessary in order to comply with
The phrase "capable and qualified", as used in this Article
elsewhere in this contract,
is defined as the ability to perform the work without training, except in the case of
vacancy. In addition, the following shall eliminate an employee from consideration for a
(a) Where they do not possess the proper license required on
(b) Where the job requires mechanical skill, but they have
not had acceptable
experience in that mechanical branch.
(c) Where they have a known handicap which might prevent
them from performing the
job satisfactorily or safely.
Employees who may become subject to layoff out of seniority
order because they are not
capable and qualified will be provided reasonable training opportunities to obtain the
ability to perform the work.
An employee not subject to layoff may apply for a voluntary
layoff in place of a less senior
employee scheduled for layoff provided that the retained employees shall be capable and
to perform the work available. Employees requesting voluntary layoff must submit a written
request to the Company at least seven (7) days prior to the Monday of the workweek in
voluntary layoff would commence. An employee on voluntary layoff shall be placed at the
of all recall lists. Also, an employee on voluntary layoff may request to return to
work at any
time even though a laid off employee would not normally be recalled. Such requests
made in writing to the Company at least ten (10) days prior to the Monday of the workweek
which the employee wishes to return to work. No request to return to work from voluntary
will be honored unless the employee has been laid off for a period of at least two (2) weeks.
. . .
None of this language on its face expressly gives laid-off
employes the right to be recalled
to positions already held by junior employes when they become qualified for said positions
their initial, involuntary layoffs. By the same token, none of this language on its face
prohibits such an involuntarily laid-off employe from being recalled in this fashion.
Article VI, Section 7 however, does address what is to be done when an employe
accepts an involuntary layoff wishes to return to work. It states: "an employe on voluntary
may request to return to work at any time even though a laid-off employe would not
recalled." This proviso shows two things: (1), the parties knew how to draft contract
providing for the recall of laid-off employes when they normally would not be recalled; and
the recalls referenced in the contract are limited to employes who take a
The Union therefore in effect wants this proviso to be read as: "an employe on
or involuntary layoff may request to return to work at any time even though a
would not normally be recalled." Since Article XXVI, Section 4, Step 3, of the contract
that an arbitrator has "no right to amend, modify, ignore or add to the provisions of this
agreement", it is improper to amend Article VI, Section 7, by adding the word "involuntary"
this proviso, which in essence is what the Union wants me to do. Hence, Article VI, Section
must be applied just as it reads, i.e., that only employes on voluntary layoff can
be recalled even
though there is no vacant slot at the time. Since Chenoweth is on an
involuntary layoff, he cannot
be recalled unless there is a vacant position for which he is qualified.
But, even if the contract were to be construed in the fashion urged by the Union, the
establishes through Supervisor Marshall's testimony that Chenoweth needs about 6-9 months
training before he could fully work on his own. While the Union asserts that such a
training period is reasonable, I disagree, because this record fails to show that any other
in the past have ever been given that much training. For while the Union points out that
employes have been trained up to several months for their new positions and that the
also has offered such training to employes on medical leaves of absence, none ever
the prolonged level of training that Chenoweth needs to properly work alone in the
on complex machinery he has never handled.
It is true that Chenoweth now is licensed to work in the Powerhouse and that he has
some experience in working with boilers, first at International Stamping Company (his prior
employer), and now at Northwest General Hospital. However, those boilers are far less
than the ones found in the Powerhouse. As a result, Chenoweth has had no
experience in dealing
with some of the more complex Powerhouse operations. He therefore at present is not
and qualified" to work there.
The Union nevertheless points out that Powerhouse employes are not expected to
how to operate all of the Powerhouse operations; that the Company recently has cross-trained
Powerhouse employe Sadowski; and that the Company has trained other employes for
long periods of time. Thus, Sadowski was cross-trained as a Reefer for about six months
Tetzlaff testified about employes who were trained for about four weeks or more. His
was corroborated by both Rausch and DeLuca who testified to the same general effect.
Here, though, Chenoweth is not properly trained for even one of the
positions, which is why his situation is different from Sadowski who was fully trained as a
Operator before being cross-trained as a Reefer. Thus, after Sadowski spent six months
how to be a Reefer, he became fully qualified for two Powerhouse operations. Chenoweth,
contrast, would only be qualified for one Powerhouse position after his 6-9
month training period.
Chenoweth thus would need an extra six months or so before being
qualified to work in a second Powerhouse operation. Sadowski, then, is worth twice
as much to
the Company as Chenoweth as far as ability to work in the Powerhouse is concerned, which
why the Company can legitimately draw the line on Chenoweth who has zero experience in
working with the Powerhouse's complex machinery. For as the Company rightfully notes, it
voluntarily offered training "to promote operational efficiency, and not for the convenience
employe who otherwise would be laid off".
The Company similarly can draw the line between the way it has trained other
with the extensive on-the-job training that Chenoweth needs. For except for Sadowski whose
situation in any event is different from Chenoweth for the reasons just noted, this record fails
establish that the Company has ever trained an employe for more than 1-2 months. It thus is
great a leap for the Union to now insist that the Company must train Chenoweth for 6-9
under Article VI, Section 6, of the contract which requires the Company to provide
training opportunities. . ." The key word here is "reasonable" because it implies some kind
limitation. This is contrary to the Union's claim which presupposes that the Company is
to provide "unlimited training opportunities."
It is true, as the Union correctly points out, that Article VI, Section 6, on its face
contain any time limitation on what constitutes "reasonable training opportunities. . ." But, at
some point, such a line must be drawn if the word "reasonable" is to have any meaning at
Absent any past history of regularly training employes for more than two or so months for
entry into a department, it is unreasonable to ask the Company to spend up to six months to
properly train Chenoweth given the fact that the Company in Article 1, Section 3, of the
retains the right to establish "performance and related standards. . ."
I also find without merit the Union's claim that Chenoweth should have been recalled
Lofton was terminated, as the record shows that the Union itself at that time pressed for
return to work which is what eventually happened. As a result, there was no permanent
at that time for Chenoweth to fill.
Also without merit is the Union's claim that Chenoweth should have been recalled
former Schlitz Brewing Company employe Durham was hired for the Powerhouse, as the
shows that Durham, unlike Chenoweth, had formerly worked in a powerhouse and hence was
to start work for the Company with very little training.
In light of the above, it is my
That the Company did not violate Articles V or VI of the contract when it refused to
grievant Randy Scott Chenoweth to a job in the Powerhouse after he obtained a Second Class
Stationary Engineer's License; his grievance is therefore denied.
Dated at Madison, Wisconsin, this 9th day of January, 1998.
Amedeo Greco /s/
Amedeo Greco, Arbitrator