BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHEET METAL WORKERS INTERNATIONAL
AFL-CIO, LOCAL UNION NO. 565
(Debra Popp Grievance No. 97-02)
Mr. Richard Lewis, Business Manager and Financial
Secretary-Treasurer, Sheet Metal Workers
International Association, AFL-CIO, Local Union No. 565, 1602 South Park Street,
Wisconsin 53715, appearing on behalf of the Union.
Michael, Best & Friedrich, Attorneys at Law, by Mr. Marshall R.
Berkoff, 100 East Wisconsin
Avenue, Milwaukee, Wisconsin 53202-4108, appearing on behalf of the Company.
Sheet Metal Workers International Association, AFL-CIO, Local Union
No. 565, herein
the Union, and Carnes Company, Inc., herein the Company, agreed to have the undersigned
arbitrate a dispute under the final and binding arbitration provisions of the parties' collective
bargaining agreement. Pursuant thereto, the Wisconsin Employment Relations Commission
appointed the undersigned as Arbitrator to hear and decide the dispute specified below. A
was held on December 9, 1997, at Madison, Wisconsin. A transcript was issued on
15, 1997. The parties completed their briefing schedule on January 6, 1998.
After considering the entire record, I issue the following decision and Award.
Was the one-day disciplinary suspension of the Grievant,
Popp, on June 30, 1997,
for good and sufficient cause under the contract? If not, what is the appropriate remedy?
The Company manufactures a wide variety of ventilation and air distribution sheet
products and supplies the commercial building industry. The Company employs
200 hourly represented employes and 100 non-represented employes at its plant in Verona,
Wisconsin. The Company has had a collective bargaining relationship with the Union for at
The Company maintains a series of work rules which apply to all employes. One of
rules, No. 17, prohibits:
Threatening or harassing behavior, verbal or physical directed at,
toward, or about fellow
These rules have been in effect since at least January of 1987. Violation of these rules
result in disciplinary action up to and including discharge."
Recently, the Company has installed a new collaborative team-based work system in
work force. All the employes have gone through ten weeks of training on the system,
solving, brainstorming and effective communication skills. Employes meet weekly in team
meetings to discuss issues in their departments. This system depends upon employe
and positive relationships among employes. The system requires that employes communicate
effectively and positively with each other. The Company has invested heavily in the
has given employes sufficient time to come around to the concept of working together. Julie
Sundby, Human Resources Manager, explained that if employes are disruptive and not
of positive communication style, it kills team communications.
Because of this work system and evolving Company needs, in August of 1996, the
Company published a work rule addendum to the above Rule No. 17 which it gave to the
and posted. This addendum stated as follows:
. . . effective immediately, Work Rule #17, "Threatening or
harassing behavior, verbal or
physical directed at, toward, or about fellow employees." will be interpreted to include the
Any disruptive or inappropriate verbal or physical behavior.
On June 24, 1997, Richard Shannon was returning from a break into his work
was in Department 113. He was hailed by Debra Popp, hereinafter the Grievant, who
of her own work area and heading for a bathroom. The Grievant stopped Shannon and
for him to come over. Shannon testified that the Grievant confronted him saying
"Who the hell do you and Lucy think you are, turning people into the office or to
Shannon responded that he did not know what she was talking about and she replied that he
done that kind of thing before. Shannon stated that the Grievant told him to keep his nose in
own business and "stay in your own department." Shannon testified that she added: "It's
right to turn in other union members to management." Shannon stated that just before he
away the Grievant said "If you're going to do that, you might as well be part of
Shannon reported that the Grievant used other profanity as well as the "who the hell did he
he was statement" noted above. Shannon also reported that the Grievant was antagonistic,
in his face and within arms' length distance or less. He further reported that she was yelling
him and that she was very aggressive.
The Grievant, while admitting to some of the general content of the statements made,
testified that she was only asking him questions and was expressing her opinion.
Shannon testified that he found the confrontation very upsetting. He stated that he
making wrong pieces and one of his co-workers told him he should back off for a few
minutes--that he was going to hurt himself. Shannon said he could not do his normal work
because he was
upset. So he backed off and went to another area for a short period to collect his thoughts.
Shannon, who had worked for 15 years in various plants and who had been at the Company
about one and one-half years, testified that he had never experienced a confrontation like this
previously in any work place. Shannon went home and continued to think and to worry
what had happened.
Shannon testified that he was still trying to make up his mind what to do about the
when he reported to work the next day. At that point, a co-worker told him that she had
that he had turned somebody in and Shannon decided since it had gone that far already he
choice but to turn this matter over to the company."
Sundby testified that after she received a report of the Grievant's disruptive encounter
Shannon she commenced an investigation. During the course of this investigation, Sundby
that the Grievant confronted Shannon because she mistakenly believed that he had reported
employe in his department, Bernie Daughenbaugh, for violating a new safety rule concerning
length of pants. Shannon had chaired a safety committee that worked on the new rule issued
June of 1997, which dealt with clothing and provided for "pants that go to the ankle."
Daughenbaugh, who apparently did not like the rule, rolled her pants legs up. A supervisor
her that she needed to return her pants to the ankle position or she would be sent home and
complied. Just before the Grievant confronted Shannon, she was in his department talking to
Daughenbaugh and Bev Ruegsegger.
As noted above, Shannon had served on a Company safety committee as a volunteer
as chairman. The committee was an advisory committee which made recommendations to
Company and had worked on the rule concerning garment length. The Company expects
employes to report safety violations, and if Shannon had reported another employe engaging
a safety violation, that would have been appropriate behavior. Shannon denies having
any employe to the Company.
Sundby interviewed both Shannon and the Grievant as part of her investigation. She
familiar with the history of Rule No. 17 and its application.
Sundby testified that the use of profanity by the Grievant was not central to the
Rather, it was an issue of her communication style being negative, disruptive, aggressive,
intimidating and disturbing to a co-worker. The Grievant had been warned that that sort of
communication style was not perceived well by her co-workers and could be disruptive.
The Company determined that with respect to any differences in the reports from
and the Grievant, that Shannon should be credited. The Grievant had been disciplined
times in the past for the same kind and similar kind of misconduct and had received personal
counseling from Sundby. Shannon, in contrast, had an absolutely perfect record and there
never been a single complaint about him. The Grievant was vague and could not "recall" a
of things in the investigation. In contrast, Shannon was thoughtful and considerate in his
and had no basis to exaggerate or falsify his report of the encounter. Sundby thus
the Grievant had been "antagonistic and confrontational."
Sundby also testified that she considered the Grievant's prior disciplinary record in
determining that a one-day disciplinary layoff would be appropriate in this case. She stated
the Grievant's record included a 1991 three-day disciplinary layoff for intimidating and
insubordinate behavior that was ultimately upheld in arbitration.
In 1996, Sundby also investigated numerous complaints regarding the Grievant's
and comments directed to and about handicapped employes, the use of profanity toward
co-workers and a general negativity in the work place affecting co-workers. The results of
investigation led to a formal warning. Popp did not grieve or challenge the accuracy or
appropriateness of that discipline for violations of the same Rule No. 17 that is
involved in the
instant matter. The Grievant was specifically admonished in that discipline about her
communication style and negative comments and uncooperative behavior directed toward
co-workers. The Grievant assured Sundby that she was "working on these problems." The
. . . you have been informed that we must see immediate and
sustained progress toward
eliminating these behaviors if you are to continue working here.
These types of behaviors are not acceptable at the Carnes
Company and are serious
violations of Carnes Company Work Rule #17. . . . Any future complaints of a similar
if determined to be true will not be tolerated and will subject you to discharge.
Sundby further testified that other employes had received similar discipline for the
type of misconduct and the same rule violations. She specified employes Donny Ellis, Bev
Ruegsegger, Caroline Schultz and Bernie Daughenbaugh. Ruegsegger was a Union witness
received a formal warning for a Rule 17 violation on June 6, 1997. She
also testified that she was
about nine feet away from Shannon and the Grievant when they had their disagreement and
not hear the Grievant "yelling" at him.
Sundby added that her discipline was not more serious than the one day off because
was considering the Grievant's length of service and wanted to give her one additional
The Grievant admitted that she had received training as part of the work system on
constructively and collaboratively with other employes and communicating in a non-negative
She also admitted that if she engaged in the behavior that Shannon reported that she was
and had violated Company Rule No. 17. She further admitted that she had no
explanation as to
why Shannon would have falsely reported her behavior. Since they had no personal
toward each other away from work, she stated that she had no idea why he would come
and make up or fabricate the information he had reported.
DISCHARGES AND DISCIPLINE
Section 1 - No employee shall be discharged or disciplined
without good and sufficient
cause. Any employee who has been discharged shall, if he/she so desires, be granted an
with his/her shop committeeperson before he/she is required to leave the plant.
POSITIONS OF THE
The Union initially argues that the Company did not prove that the Grievant had
prior disciplinary actions against her.
The Union next argues that the investigation was not thorough, nor conducted fairly
objectively. The Union opines that the Company did not obtain substantial evidence or proof
the Grievant was guilty as charged. In this regard, the Union maintains that the Company
a number of allegations involving what people said and did including a member of the Union
Committee but did not provide any witnesses or documentation to prove its point. The
notes that Mr. Shannon was upset about the incident one minute and joking about it a
later. Based on same, the Union does not believe the incident was that big a deal and claims
the Company failed to produce any witnesses or testimony to establish that the Grievant was
yelling at or in Mr. Shannon's face. The Union concludes that the conversation that
between the Grievant and Mr. Shannon amounts to only "plain, ordinary shop talk."
The Union rejects the Company's contention that the development of a "collaborative
workplace team system" should play a role in the Grievant's suspension. In this regard, the
states that the Company never informed it that this was the reason for enhancing Work Rule
No. 17 to include a prohibition against "any disruptive or inappropriate physical
Union also argues that in a collaborative work place a person should be able to criticize
fear of retaliation for saying something that management doesn't like," that there should be
rules not more, that the parties should not be spending a majority of their time dealing with
"questionable discipline," and that while hourly employees have to change some of their
and beliefs so does management have "to let go of some of their ingrained attitudes and old
of treating employees." The Union concludes that based on the instant proceeding it is clear
this "has not happened at the Carnes company."
Based on the foregoing, and the record as a whole, the Union requests that the
sustain the grievance and order the Company to rescind the discipline and remove it from her
The Union also asks that the Grievant be made whole for her loss of wages as a result of the
The Company basically argues that the one-day disciplinary layoff of the Grievant
good and sufficient cause. In support thereof, the Company first maintains that it had a right
rely on Mr. Shannon's report of the Grievant's misconduct as a basis for her
of his "exemplary record" as an employe of the Company. The Company secondly points
it is undisputed that Rule No. 17 is clear and unambiguous citing, in particular, the
admission "that if she engaged in the behavior that Shannon reported, the rule would have
violated and the behavior was wrong." Thirdly, the Company argues that the Grievant
claim the one-day suspension was not appropriate progressive discipline in light of her prior
disciplinary record including a written warning specifically related to Rule No. 17
Fourth, the Company maintains that the Union's contention that third party witnesses are
to support the Company's decision is without merit since it reviewed all available data and
checked to no avail for other witnesses. Finally, the Company maintains that it acted
appropriately because it mitigated the discipline to a one-day disciplinary layoff because of
Grievant's long service. The Company adds that the one-day suspension for disruptive and
inappropriate behavior in this case is consistent with similar disciplinary action for similar
In reaching the above conclusion that the Grievant's conduct warranted disciplinary
the Company also maintains that it had the right to make credibility determinations based on
witness demeanor, a witness's motivation or motive, their history of being truthful and the
kinds of factors that guide other finders of facts.
The Company next argues that it must be able to maintain and support rules
its work system. In particular, the Company claims that it is extremely important for an
to be able to protect the rights of its employes to report harassment or disruptive
behavior to the Company. The Company maintains that this is what is at stake herein.
Company notes that its rule prohibiting disruptive or inappropriate verbal or physical
reasonable and is not challenged by the Grievant or the Union in this case as being
To the contrary, the Company points out that the Grievant "readily admits that if she
the behavior reported by Mr. Shannon that would have been inappropriate and a
violation of Rule
17." The Company reiterates that the record supports a finding that the Grievant, without
basis, verbally assaulted Mr. Shannon in the work place and during work time. The
claims that there is no question of the adverse effect that the Grievant's inappropriate
on Mr. Shannon. The Company adds that there is no reason to question his credibility. On
other hand, the Company argues the Grievant is not a credible witness regarding the incident
dispute because she "has every reason and motive to try to put as bland a story together as
given she is in the last stages of the disciplinary process." The Company adds: "To make
worse, the union business agent got involved." In conclusion, the Company states that it is
clear that Popp's confrontation with Shannon was not an innocent disconnected inquiry but
a manifestation of misguided hostility which has risen from the level of a verbal assault . . .
an institutional threat by Mr. Shannon's own labor organization." The Company
believes it acted
appropriately as a result thereto.
The Company further argues that Union Exhibit No. 1, a handout from the
Division entitled "Harassment in the Workplace," does not define or limit Company Rule
but instead makes it clear that management has the responsibility to hear and respond to
In response to the Arbitrator's request that the parties discuss the issue of discipline
Grievant's conduct in light of "differing expectations of the employer in the context of a
collaborative workplace," the Company cites and discusses a number of cases. However, the
Company emphasizes that "whether there was an advanced work system in place or not, the
Company believes that if Shannon's report of the behavior is credited, then the discipline is
Based on all of the above, the Company requests that the grievance be denied and the
matter be dismissed.
The parties stipulated that there are no procedural issues and that the instant dispute
properly before the Arbitrator for a decision on the merits pursuant to the terms of the
At issue is whether the Grievant's suspension was for good and sufficient cause under
As noted in Carnes Company, Inc., Case 60, No. 47283, A-4904 (McGilligan,
because this is a disciplinary issue it is incumbent that the Company prove by a clear and
satisfactory preponderance of the evidence that the Grievant is guilty of the actions
of. If the Company proves that the Grievant is guilty of the actions complained of, the next
question is whether the punishment is contractually appropriate, given the offense.
Contrary to the Union's assertion, the record supports a finding that the Grievant is
of the actions complained of. In this regard, the Arbitrator notes that the Grievant admitted
general content of the statements made. (Tr. at 23 and 58) The Arbitrator finds that the
made these statements in a confrontational and antagonistic way. 1 Company Rule
prohibits "Threatening or harassing behavior, verbal or physical directed at, toward, or about
fellow employees." It has been interpreted by the Company to include: "Any disruptive or
inappropriate verbal or physical behavior." The Grievant admits that if she did what
she did that would have been wrong and a violation of the aforesaid Company Rule. (Tr. at
Shannon was harmed by the Grievant's actions. (Tr. at 32, 43-45) Based on the foregoing,
Arbitrator finds that there is a factual basis on which to suspend the Grievant. 2 The
question is whether the punishment is appropriate for the offense.
A review of this question may be undertaken within the context of the issues raised
Union in arguing against suspension.
First, contrary to the Union's assertion, the record indicates that the Grievant had a
disciplinary record for the same or similar offenses. In particular, the Arbitrator notes a
suspension in 1991 for disruptive and insubordinate behavior directed to her supervisor.
(Company Exhibit No. 3) In addition, the Company gave the Grievant a written
specifically related to Rule No. 17 violations in 1996. (Joint Exhibit No. 3)
The Union next argues that the investigation was not thorough, nor conducted fairly
objectively. However, the Union offered no persuasive evidence in support of same. To the
contrary, the record indicates that the Company interviewed the two main parties and anyone
who may have heard the conversation. (Tr. at 35) Based on appropriate factors as discussed
below, the Company credited Shannon's version of the events. Based on same, the
finds that the Company conducted its investigation in an appropriate manner. The record
supports a finding that this verbal confrontation went beyond "plain, ordinary shop talk" as
by the Union.
The Union rejects the Company's assertion that the development of a "collaborative
workplace team system" should play a role in the Grievant's suspension. At least in the
of this particular dispute, the Arbitrator would agree. As pointed out by the Company,
there was an advanced work system in place of not, if Shannon's report of the behavior is
credited, then the discipline is appropriate. It is also appropriate, as the Union points out,
employes under proper, protected circumstances to be able to criticize management "without
of retaliation for saying something that management doesn't like." However, the Grievant
in an inappropriate manner in violation of the aforesaid Company rule when she aired her
complaints at issue herein. Therefore, the Arbitrator also rejects this argument of the Union.
In addition, the Arbitrator points out that the Company cited, unrebutted by the
number of examples of other employes who had received similar discipline for the same or
Finally, the Arbitrator notes that the Company mitigated the penalty imposed herein
on the Grievant's long length of service with the Company.
Based on the above, the Arbitrator finds that the punishment imposed on the Grievant
Based on all of the above, and on the record as a whole, and absent any persuasive
evidence or argument by the Union to the contrary, the Arbitrator finds that the Company
sufficient factual basis upon which to suspend the Grievant, and that the penalty imposed is
contractually appropriate given the offense. Therefore, the Arbitrator finds it reasonable to
conclude that the answer to the stipulated issue is YES, the one-day disciplinary suspension
Grievant, Debra Popp, on June 30, 1997, was for good and sufficient cause under the
Based on all of the foregoing, it is my
That the grievance of Debra Popp is hereby denied and this matter is dismissed.
Dated at Madison, Wisconsin, this 6th day of March, 1998.
Dennis P. McGilligan /s/
Dennis P. McGilligan, Arbitrator
1. In arriving at this conclusion, the Arbitrator credits the
testimony of Shannon over
that of the
Grievant. As pointed out by the Company, the Grievant has been disciplined several times in
past for the same and similar kind of misconduct and had received personal counseling from
Sundby regarding Company Rule No. 17 violations. In contrast, Shannon has a
with no complaints about him. Even the Grievant admitted that she could think of no reason
Shannon to report her behavior one way if she had not done the things he said she did. (Tr.
Sundby complained that the Grievant was vague and equivocal during the investigation that
to her suspension. (Tr. at 23) In contrast, Shannon's story was consistent and unequivocal.
at 24) Sundby's experience during her investigation reflects the Arbitrator's experience at
hearing. Shannon testified clearly and concisely as to the sequence of events on the date in
question while the Grievant's testimony was vague (Tr. at 65-66), unresponsive (Tr. at
and unpersuasive (Tr. at 67-69). Finally, Shannon appeared more truthful in his response to
questions at the hearing (Tr. at 39-51) than the Grievant who often seemed to be more
about her view of what happened in the past than what actually happened. (Tr. at 59-66 and
2. The only matter that gives the Arbitrator pause
regarding Shannon's claims that the
confronted him in an inappropriate way is his testimony that she was "yelling" in his face.
at 43) Bev Ruegsegger testified, to the contrary, that she was standing only nine feet away
did not hear any yelling despite the fact that the machines were not running. (Tr. at 79)
However, this matter standing alone is not enough, in the Arbitrator's opinion, to credit the
Grievant's version of the events over that of Shannon's. It is possible that Ruegsegger
not hear the Grievant yelling at Shannon because she was right in his face. (Tr. at 43)