BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL 43
MODERN BUILDING MATERIALS, INC.
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Mr. Frederick C.
Miner, on behalf of the Union.
Michael, Best & Friedrich, LLP, by Mr. Mark E. Toth, on
behalf of the Company
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 Kenosha, Wisconsin, on September 23, 1997. The hearing was transcribed and the
thereafter filed briefs that were received by December 17, 1997. Based upon the entire
the arguments of the parties, I issue the following Award.
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the Company have just cause to suspend grievant Daniel T.
Dorr and, if not, what is
the appropriate remedy?
The Company makes precast concrete underground structures at its Kenosha,
Human Resource Director Ted L. Mastos - who formerly served as a Business Agent
Local 43 and who in that capacity negotiated Local 43's last contract with the Company -
Acting Union Shop Steward Dorr during the week of May 20, 1997, 1 to discuss Dorr's actions
in supposedly telling fellow employe Steve Pritchard to punch in contrary to the Company's
directive, a charge Dorr denied.
Mastos on May 27 issued a written warning to Dorr which was not grieved and
stated in pertinent part:
. . .
Nature of Incident: You directed Steve
Pritchard to punch in before his start time today.
Steve did follow your instruction contradicting Management direction. You then confronted
interfered with Wet Pour Lead, Tim Fugate, direction of his area of responsibility about
start time. You also confronted Department 130 Manager, Tom Hammiler, about this issue.
Comment: It is not your prerogative or
responsibility to direct the work force, establish
employee start times, and/or interfere with the designated area Lead and/or Manager. It is
your prerogative or responsibility to direct employees outside of your Lead responsibilities.
. . .
Mastos met with Dorr on May 27 at about 2:30 p.m. for the purpose of conducting a
disciplinary meeting and to give him said warning.
Mastos testified that Dorr went "ballistic" by calling him "fucker"; by claiming that
sold out to the Company and by calling him a "turncoat bastard"; by threatening to have
fired by the end of the week; by "standing up and shaking his finger at me"; and by "trying
intimidate me out of the disciplinary action. . ." Mastos also said that Dorr walked out of
disciplinary meeting before he was done and contrary to Mastos' direct order that he remain.
Mastos added that he thereafter added 15 minutes to Dorr's time card - which showed that he
checked out at 2:30 p.m. - to cover the time of said meeting.
On cross-examination, Mastos stated that he did not talk to Dorr before he issued his
27 written warning letter and that said letter was prepared before their meeting; that he and
on May 27 never discussed the earlier Pritchard incident because Dorr "exploded at that
that Dorr told him on May 27 that he had nothing to apologize for; that Dorr never
threatened to hit him on May 27; and that he was unaware at that time that Door was
and that he no longer was on the clock.
Dorr, who served as the Union's chief negotiator in the last contract negotiations,
that he punched out at 2:30 p.m. on May 27 before he met with Mastos; that Mastos then
him the May 27 warning letter referenced above; that he told Mastos, "This is fucking
that he and Mastos both raised their voices; that he told Mastos he was on his own time; and
Mastos replied he was on Company time. Dorr also told Mastos that "his very presence
.was a direct conflict of interest" because Mastos had formerly served as a Local 43 Business
Representative and because Mastos had negotiated the Union's last contract with the
Dorr added that he told Mastos the meeting was over "Because it became so heated that I had
control" and because "whenever the situation arises, it's always best to leave the room." He
said that he later refused to apologize to Mastos because "there was nothing to apologize
Union Steward Norman Mieloszyk accompanied Dorr to his May 27 meeting with
and attended said meeting. He testified "they started shouting back and forth. . ."; that Dorr
told Mastos he was on his own time; that Mastos asserted otherwise; and that Mastos told
after the meeting that he would have pulled the warning letter off the table if they could have
"talked up the issue".
Sales Engineer Jeff Forgette and Mechanical Engineer Steve Hartnig overheard some
Mastos'-Dorr's May 27 conversation in their downstairs office. Forgette testified that he
someone - later identified by Mastos to be Dorr - say in a loud voice, "fuck, fuck you"; that
sounded threatening and intimidating; and that he never heard Mastos' voice during this
Hartnig testified that he "heard a lot of boisterous yelling"; that the word "fuck" was heard
times"; that the yelling sounded threatening and intimidating; and that he never overheard
voice. Hartnig admitted on cross-examination that he would not recognize Dorr's voice
Mastos met with Dorr on June 3 and then issued him a five-day suspension via the
following Employee Disciplinary Report which stated in pertinent part:
Violation: Using abusive,
threatening and profane language toward a manager
in conjunction with Work rule 3 and established arbitration decisions.
Nature of Incident: As soon as you
became aware that the topic of our May 27, 1997,
discipline meeting concerned the incident in which you directed Steve Pritchard to punch in
his start time and confronted and interfered with Wet Pour Lead, Tim Fugate and
Manager, Tom Hammiler, you began swearing, accusing Labor Relations Coordinator, Ted
various actions without basis, threaten his employment status with
the company, and made
other abusive statements.
You screamed that, ". . .this is my time, I'm punched out." To
which I stated, "This is my
time. . ." If I was not cut off, I'd have finished by stating that you will be paid for the
time (an additional fifteen (15) minutes was added to your time card for the meeting).
Because of your emotional outburst, I was unable to discuss the
specifics of the discipline.
Even though I repeatedly stated the issue was your behavior and actions, you stormed out
allowing an opportunity to discuss the issues at hand. This, despite my effort to state the
had not ended and you retorting that it had.
Comment: The numerous confrontations,
interference, threats, and physical contact you have
been involved in during your tenure at MBM is well known. Unfortunately, most are
undocumented. Conduct of this nature will not be tolerated by any employee of MBM,
unit or salaried. Management will not relinquish rights not negotiated to any other party.
Rules attached to the contract specify one (1) week suspension for first offense. In an effort
identify and correct the behavior, the initial discipline was issued as a warning. It is our
to work with employees if at all possible. Unfortunately, your actions do not allow reasoned
. . .
Mastos at that time offered to rescind the suspension if Dorr apologized and if Dorr
understood that he was wrong, but Dorr refused to do so. Dorr therefore served the five-day
suspension provided for in Mastos' June 3 letter and he on June 9 filed the instant grievance,
hence leading to the instant proceeding. 2
A dispute also arose between the parties at the hearing over an April 3 letter
written by Mastos which discussed breaking the Union and which stated,
inter alia: "I will
continue to try to find a way to decertify the Union through over previously discussed
Mastos flatly denied ever writing the letter. Company president and co-owner Michael
one of the supposed addressees of said letter, also stated that it was a total forgery and that
never had the discussion with Mastos alluded to therein.
POSITIONS OF THE
In support of the grievance, the Union argues that the Company improperly
Dorr because work rule 3 - the rule he was charged with violating on May 27 - "does not
here" because Dorr had checked out and was off-duty. The Union also asserts that Mastos
provoked Dorr; that Dorr's foul language does not warrant a suspension because "the
penalty for vulgarity is a reprimand"; that Dorr cannot be disciplined over his "advocacy of
Pritchard grievance"; and that Mastos' actions "undermined Dorr's authority as a Union
As a remedy, the Union requests that Dorr's suspension be overturned and that he be made
The Company, in turn, contends that it properly suspended Dorr because he on May
"acted in an angry, abusive, threatening and profane manner. . ."; because he violated the
Company's work rules which prohibit abusive and threatening behavior and insubordination;
because Dorr's second such offense warranted imposition of a one-week suspension.
In resolving the issue presented, it is first necessary to point out what this case does
It does not have anything to do with the April 3 letter which discusses how to break
Union. Both Mastos and Company president O'Connor testified that the letter is a forgery
that it was never written by Mastos. I credit their testimony, as there is not one iota of
in this record showing that Mastos wrote the letter.
This case also does not have anything to do with Dorr's concerted, protected
True, he was acting shop steward when he earlier advocated on Pritchard's behalf and it is
similarly true that the May 27 written reprimand involved Dorr's actions in the Pritchard
However, Dorr did not grieve said written warning. Hence, it is unnecessary to determine
whether Dorr acted properly in that earlier situation, as it is well recognized that an
prior disciplinary action stands. See How Arbitration Works, Elkouri and
Elkouri, p. 926-927
(5th Edition, BNA, 1997).
Moreover, there is no merit to the Union's assertion that "Mastos' issuance of the
warning undermined Dorr's authority as a Union steward." Dorr's status as a union official
little to do with this case. He was called in for a disciplinary meeting on May 27, at which
he was expected to act in an appropriate manner like any other employe called in for such a
meeting. Thus, even if we assume arguendo that he was
entitled to vent some steam and exhibit
some unhappiness over his written warning, that did not give Dorr the license to
direct the 2-3
minute tirade of personal abuse against Mastos charged here.
The Union cites Bucyrus - Erie Co., 44 LA 858 (McGurry, 1965) and Sinclair
Refining Co., 42 LA 131 (Elson, 1964), in support of its claim that Dorr's comments and
were protected because of his union status.
In Bucyrus - Erie, the grievant was not on company time; the grievant never used
such as "fucker" and "turncoat bastard"; and Arbitrator McGurry refused to sustain the
suspension in part because the grievant did not work under the foreman engaged in their
confrontation. However, arbitrator McGurry pointed out: "There is no doubt that if the
remarks were made in "Z"'s department, while the grievant was working for "Z". .
action would be upheld." 44 LA at p. 861. Here, of course, Dorr was working under
In Sinclair, Arbitrator Elson upheld a two-week suspension imposed on a union
committeeman who refused to continue working and who argued with a supervisor. The
correctly points out that Arbitrator Elson there stated: "A committeeman must be free to
himself vigorously and indeed militantly if the employes are to have an adequate advocate."
LA at p. 134. However, Arbitrator Elson added:
"But it does not follow that there are no limits. Important as is
the committeeman's function,
he is a creature of the collective bargaining agreement and has overriding responsibility to
maintain the agreement. Discipline may be in order if this responsibility is disregarded."
Going on, Arbitrator Elson stated:
"no committeeman is an island unto himself. He is part of a
group of people assigned by the
Union to assist employes in bringing about a fair and proper administration of the collective
bargaining agreement. This involves not only responsibilities to the men and the Union but
to the Company." Id. at 136.
Here, too, Dorr is not "an island unto himself" who is free to berate and curse
at will. Rather, as a Union official, he is covered by the same work rules as all other
including those who prohibit employes from threatening, intimidating, or coercing other
In addition, Dorr cannot excuse his outburst on the ground that Mastos had acted
unethically by first serving as Local 43's business agent and then working for the Company.
Mastos did is perfectly legal. While Dorr (and others) might not like what Mastos did, Dorr
no license to berate Mastos and to treat him like dirt merely because he changed sides.
Mastos is entitled to receive as much respect as any other supervisor and he has the right to
all of his orders followed. It appears that much of the dispute here has arisen because Dorr
refused to recognize this fundamental principle.
Furthermore, while the Union tries to picture Mastos as being on some sort of
campaign to punish Dorr because of his concerted, protected activities, the record shows that
Mastos was prepared to drop the May 27 written warning and even the subsequent 5-day
suspension if Dorr only had behaved appropriately and had apologized for his May 27
Given that, it is clear that Mastos was willing to give Dorr every possible break and that
no merit to the Union's contrary claim. Thus, Dorr was issued the five-day suspension only
because of his own actions during his May 27 disciplinary meeting with Mastos, rather than
improper effort to do him in.
The Union also argues that mere vulgarity is insufficient to warrant such a suspension
it cites several arbitration cases where arbitrators have reversed disciplinary actions imposed
the face of an employes' foul language: Interstate Brands, 83 LA 497 (Richmond, 1984);
Kaiser Steel Corp., 49 LA 507 (Jones, 1967); Veterans Administration Medical Center,
76 LA 412 (Pastore, 1981); Challenge Machinery Co., 81 LA 865 (Roumell, 1983); Sanyo
Manufacturing Corp., 85 LA 207 (Kelliher, 1985); Social Security Administration, 81 LA
1051 (Muessig, 1983); White Engines, 80 LA 1038 (Curry, 1983); City of Los Angeles, 64
LA 751 (Tamoush, 1975).
There is no need to now go into great detail regarding the facts in each and every one
these cited cases. It instead suffices to say here that all are factually distinguishable.
Interstate Brands involved an employe who told another employe "to just push the
fucking rock out" and that she was "fucking crazy" - conduct which earned him a 20-day
suspension from Arbitrator Lionel Richman based upon his finding: "it is the sting intended
may convert unacceptable shop-talk into unacceptable provocation." 83 LA at p. 501. In
Steel, Arbitrator Edgar A. Jones overturned the discharge of an employe who twice told his
supervisor "Fuck you" after being told by his supervisor to be more careful following an
Arbitrator Jones ruled: "To say 'Fuck you' to a supervisor, thus may be a friendly gesture or
gross insult, depending on the setting of the encounter. The assault on authority must be
by further evidence." 79 LA at p. 508. In Veterans Administration, Arbitrator Joseph M.
Pastore, Jr. sustained a written warning to an employe who told several patients who had
on a television set contrary to the grievant's order: "I'll fix your ass." In Challenge
Machinery, Arbitrator George T. Roumell, Jr., sustained the oral warning given to a
who - after being told to redo some work - told his supervisor: "You got me today, but I'll
you tomorrow." In Sanyo Manufacturing Corp., Arbitrator Peter M. Kelliher overturned the
ten-day suspension of a grievant who told a fellow employe: "You don't have to do anything
supervisor] says, you can stay or leave, whatever you want to do." Arbitrator Kelliher found
the employer "has not shown that [the grievant] used abusive language." 85 LA at p. 211.
In Social Security Administration, Arbitrator Eckehard Muessig reduced the
three-day suspension to a letter of reprimand after telling a supervisor: "Shit, wait a minute.
that motherfucker send you down here? I am not taking any leave, you got that? You tell
motherfucker Briscoe that if he got something to tell me, then let him." His decision,
predicated on his finding that management did not conduct a fair investigation and that the
grievant's "due process rights. . . were strained in a significant degree." 81 LA at
p. 1054. In
White Engines, Arbitrator Earl M. Curry, Jr., reduced the grievant's three-day suspension to
a two-day suspension after finding that the grievant told a supervisor: "I know where you're
coming from, you motherfucker. You're a p --- k, and you'll always be a p --- k."
Curry imposed a two-day suspension because the grievant's comments "went beyond mere
talk'" and because another employe who used worse language was not disciplined. 80 LA at
1040. In City of Los Angeles, Arbitrator Philip Tamoush converted a two-day suspension
a verbal reprimand for a librarian who called her supervisor an "asskisser", "asskissing" or
"kickass" because it constituted a "first offense". 64 LA at p. 755.
This case is different from all the aforementioned cases because this was
not Dorr's first
disciplinary offense; because there is no history of disparate treatment here; because Dorr's
process rights were not violated; because Dorr did use abusive language repeatedly; and
short of striking him - Dorr exhibited the greatest possible assault against Mastos' authority.
For here, the record shows via the combined testimony of Forgette and Hartnig - who
overheard some of Dorr's tirade and whose testimony I credit - that Dorr tried to intimidate
threaten Mastos on May 27. Dorr's actions in doing so thereby crossed the line from mere
vulgarity to something else.
In addition, I credit Mastos' testimony that Dorr walked out of their meeting
and that Dorr refused to return to finish the May 27 disciplinary interview even after Mastos
ordered him to do so. However, the Union correctly points out that Dorr was not charged
insubordination in Mastos' June 3 letter of suspension. As a result, the Company cannot
discipline Dorr over this issue since it is axiomatic that an employer's disciplinary action
or falls on whatever disciplinary infraction is cited at the time discipline is imposed.
Since work rule 3 was the only work rule alleged to have been violated in Mastos'
letter, this case is limited to whether Dorr violated said work rule.
Work rule 3 states: "Proven threatening, intimidating or coercing fellow employes on
Company property while on duty" and it provides that the first violation of this rule leads to
week off and that the second violation leads to discharge.
The Union asserts that Dorr cannot be punished under this rule because he had
out and hence was not on duty when he met with Mastos. The problem with this claim is
Dorr was told much earlier in the day that Mastos wanted to see him and that Dorr therefore
knew that his meeting with Mastos involved his employment with the Company. Thus,
Dorr himself who chose not to show up at Mastos' office until 2:30 p.m. In addition, Dorr
the absolute right under the contract to be paid for whatever time he spent with Mastos even
though he had already punched out since their meeting was work-related and since Mastos
him to report to his office. Dorr therefore was "on the clock" and on duty since Mastos
Dorr's time card by adding 15 minutes to it.
The Union cites Kalamazoo County Road Commission, 88 LA 1049 (Lewis, 1987),
in support of its contrary claim. There, Arbitrator Dawson J. Lewis found that the employer
improperly discharged two employes who had alcoholic drinks during their unpaid lunch hour
away from the employer's property. That is hardly the case here since Dorr's encounter
Mastos occurred on Company property and "on the clock" for the reason just stated above.
I therefore find that Dorr on May 27 violated work rule 3 by screaming obscenities at
Mastos and by engaging in intimidating and coercive conduct, thereby subjecting himself to
five-day suspension provided for violating this work rule.
In light of the above, it is my
That the Company had just cause to suspend grievant Daniel T. Dorr; the grievance
Dated at Madison, Wisconsin, this 19th day of February, 1998.
Amedeo Greco /s/
Amedeo Greco, Arbitrator
1. Unless otherwise stated, all dates hereinafter refer to
2. Dorr also filed an unfair labor practice charge with the
National Labor Relations Board which,
in turn, deferred said charge to arbitration.