BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SPARTA MANUFACTURING COMPANY
LABORERS' INTERNATIONAL UNION, LOCAL
Lindner & Marsack, S.C., by Mr. Dennis G. Lindner, on
behalf of the Company.
Arnold & Kadjan, by Mr. Hugh B. Arnold and
Mr. Donald D. Schwartz, on behalf of the
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 Sparta, Wisconsin, on November 13, 1997. The hearing was transcribed and the
thereafter filed briefs that were received by January 5, 1998.
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 had just cause to discharge grievant
Norman Dearman and, if not, what
is the appropriate remedy?
The Company produces cylinder sleeves and operates a foundry at its Sparta,
facility. Parts of its facility are very dirty and noisy.
Grievant Dearman, the Union's Shop Steward, has been employed there since 1973
maintenance man. The Company on February 4, 1996, terminated him for sexual
after he told an employe for one of the Company's vendors: "You can not tell me you
like it with a man. You can put your nuts on this beard and your pecker in here [i.e. his
Dearman then pulled down his pants and said: "You can't tell me you wouldn't like this."
Dearman flatly denied ever making any such statements. Indeed, he even denied
to the other employe that day. Arbitrator Lionel L. Crowley discredited Dearman because
found that Dearman "is not credible" and that he did make the statements attributed to him.
Arbitrator Crowley therefore overturned Dearman's termination into a long unpaid
because of Dearman's good past behavior and long employment history. See Laborers'
International Union of North America, Local Union No. 140 and Sparta
Manufacturing Company, Case 37, No. 53827, A-5450 (7/96). In doing so, Arbitrator
Crowley stated at page 9 of his Award:
"This penalty should be sufficient to prevent any repetition of
such conduct on the part of the
After his reinstatement near the beginning of August, 1996, Dearman was issued a
warning on November 1, 1996, for refusing to clean up and he was sent home on July 18,
by Supervisor Wayne Dearman, his brother, because he was suspected of being "tipsy" on
Neither incident was grieved.
Dearman on July 29, 1997, 1 was
standing in a portable forklift cage about 12-13
the air as he was repairing certain overhead piping in the core room. Dearman, who works
the second shift, testified that he was working above the shell core machine while rerouting
pipes on the air collector tank and that he "got blasted with a whole bunch of dirt" which
up on "my head and down my shirt and down into my trousers". He said he looked around
if anyone was watching him and that when he did not see anyone, he pulled his shirt out;
took off his belt and pulled his pants down; that "I took the back of my underwear and
them down and I brushed it all off"; and that he did not say anything to anyone else when he
so. Dearman then put back all of his clothes and resumed working. He flatly said "I didn't
nobody" and testified that he once before had pulled down his pants in the back room when
"got a bunch of sand down myself. . ." Dearman also discussed the several grievances he
at the end of July, 1997, and said that General Manager
Randy J. Priem told him on one of those occasions several days before his discharge:
digging in on you now."
On cross-examination, Dearman said he wiped his body off with his dirty hands; that
could not tell you" whether his rear end got dirty from his hands; that he did not look to see
were so; and that he did not then go to the bathroom to clean up because he was suspended
air on a forklift and because: "I didn't have the opportunity to walk off the job and go to the
bathroom", a matter he said was "my choice". He also said that more dirt fell on him as he
continued working. Dearman also claimed that employes Bill Bloom, Nate Bergh, and
Hagen on other occasions had all taken off their clothes when dirt and dust fell on them.
Bloom testified that he was working with Dearman on July 29 when dirt and sediment
on him and Dearman; that "Norm got ninety percent of the stuff that came down"; and that
Dearman then dropped his pants and underwear, at which point he brushed himself off.
then told Dearman: "Thanks a lot, buddy, for getting me dirty." He also said that "Over the
quite a few people" had lowered their pants to clean themselves up by the mold machines
employes can get written up for showering on Company time.
Lawrence Karl, then a core maker, testified pursuant to a Company-issued subpoena
he saw Dearman drop his pants and that he saw Dearman's butt; that he and fellow employe
Stoekl laughed about it; that he told supervisor Production Supervisor Dan Journey later that
that Dearman's actions were "disgusting"; that he once saw Supervisor Wayne Dearman, the
grievant's brother, undo his fly without dropping his pants as he brushed dust off of him in
back of the plant; and that he told Safety Director and Personnel Assistant David Amundson
Dearman "must not have been brought up right. He has some problems." Karl denied
Amundson that Dearman "gave me a moon". Instead, Karl said he told Amundson: "I saw
moon." Karl added that he never asked management to take any disciplinary action against
Dearman and that "there was a lot of dust around" where Dearman worked on July 29.
Production Supervisor Journey testified that he on July 29 saw Dearman pull up his
and buckle his belt; that Stoekl and Karl were "kind of laughing at the time"; and that after
asked them what had happened, Karl replied Dearman "gave me the moon". Journey added
Karl later that night told him what Dearman had done and that he, Karl, believed it was
On cross-examination, Journey acknowledged that Karl never told him he was
by what Dearman had done; that he "grinned" when he saw Dearman pull up his pants; that
Dearman at that time never said anything; that he did not immediately report the incident to
management on July 29; that there was dust around Dearman's work area; and that he has no
reason to doubt Dearman's claim to him a few days later that he had dust all over him
and that he was trying to clean himself up. Journey also said that neither he nor any
employe ever sought to have Dearman disciplined for this incident.
Safety Director and Personnel Assistant Amundson testified that the Company's
harassment policy, (Company Exhibit 2), is posted on a bulletin board by the time clock. He
said that he spoke to Karl on July 30 who told him that Dearman had dropped his pants and
he "must not have been brought up right. He had some problems", as Karl related what had
happened the day before. Karl at that time told Amundson that he did not want to file any
over the incident.
Amundson added that he met with Journey, Stoekl and Karl the next day, at which
Karl stated that Dearman "had mooned him". Amundson said that Stoekl then said that
had not seen the incident, "You know, this shouldn't be happening because, you know, it's
right. People could be offended by it. The office girls could be coming out, you know, in
About 20 minutes later, Amundson met with Journey, Union Steward Charley Vian
Dearman, at which time Dearman said he dropped his pants because dirt and dust fell on him
because he needed to shake it out. Amundson stated that he never before had ever seen any
employes drop their pants to shake dirt and dust out in that fashion and that a restroom was
40-50 feet from where Dearman stood at the time of the incident. Amundson later that day
attended a meeting where Dearman was told that he was being placed on indefinite
On cross-examination, Amundson admitted that Dearman had filed 2-3 grievances on
July 29 or 30th; that he did not know how long Dearman had dropped his pants; that
no one ever
told him they were offended by Dearman's conduct; that no secretary or vendor saw the
and that he does not doubt that dust fell on Dearman.
General Manager Priem testified that during his 22 years of working at various
he had never seen any employe drop his pants and that he had a "good" relationship with
Dearman. He added that he decided to fire Dearman because Dearman had admitted that he
dropped his pants and underwear; because he believed Dearman had deliberately mooned
employes; and because he did not believe Dearman's explanation as to why he had done so.
Priem also flatly denied that Dearman's termination was related to his union activities or to
filing of grievances.
On cross-examination, Priem admitted that no employes complained about Dearman;
he did not know how long Dearman's pants were down to his knees; that he did not feel he
to determine the ultimate cause on why Norm pulled his pants down", and that he never told
it was inevitable that Dearman would be fired.
Recalled as a witness, Priem admitted, "Showering on Company time is not
he acknowledged discussing several grievances with Dearman at that time. He also discussed
relationships with other union leaders at his prior places of employment which he described
Priem on July 31 placed Dearman on an indefinite suspension and he terminated
on August 4.
POSITIONS OF THE
The Union argues that the Company lacked just cause for Dearman's discharge
"Priem ignored Dearman's intent"; because Dearman "intended no improper conduct";
"Dearman's conduct was not improper under any standard"; because Dearman's prior
suspension does not support the present discharge; and because Dearman's "steward position
improperly affected the discipline imposed." As a remedy, the Union asks for Dearman's
reinstatement and back pay.
The Company, in turn, maintains that Dearman mooned co-worker Karl without any
"reasonable justification for doing so"; that arbitral authority "has universally condemned
as an intolerable offense"; that Dearman's union activities played no role in his termination;
that it had just cause to terminate him.
This case turns on Dearman's credibility. If one believes that he did not intend to
anyone on July 29, his discharge would be overturned for the reasons advanced by the
If Dearman's testimony is discredited, I would sustain his termination for the reasons
by the Company.
Three pieces of independent evidence exist on this issue: one involves Karl's
Journey on July 29 that he found Dearman's conduct "disgusting"; the second centers on
statement to Amundson that Dearman "must not have been brought up right"; and the third
on Stoekl's statement to Amundson on July 31 when he said that "this shouldn't be
because, you know, it's not right." These statements all indicate that Dearman deliberately
to "moon" those working beneath him, rather than merely dusting himself off, as he now
In addition, I credit Journey's testimony that Karl told him on July 29 that Dearman
"gave me the
In addition, I find Dearman's testimony to be incredible since he claimed that, after
dropped his pants, he wiped himself off with his dirty hands and that he never turned around
see whether he had wiped himself clean. If Dearman, in fact, wanted to clean off his butt, it
is difficult to see how he could do that with his dirty hands. It likewise is inherently
to believe that he did not turn around to see if he had brushed off the dust from his butt. His
professed need to clean himself in the manner chosen - by dropping his pants and drawers -
Given all this, I conclude that Dearman dropped his pants and drawers on July 29 for
purpose of "mooning" those beneath him, which constitutes a dischargeable offense See, H
Tooth Co., 66 LA 1020 (Delden, 1976); South Central Bell Telephone Co., 80 LA 891
It therefore is immaterial that other employes in the past had dropped their pants to
themselves off as any such prior situations did not involve deliberate acts of "mooning". In
addition, it does not appear that any other employes had ever dropped their underpants and
exposed themselves the way Dearman did here.
Hence, there is no merit to the Union's claim that Dearman "intended no improper
conduct". For here, Dearman clearly knew that mooning was wrong and that it can
dischargeable offense. That, clearly, is why he chose not to tell the truth here and that also
it is inherently implausible to believe his claim that he did not intend to do anything wrong.
also is why the various cases cited by the Union - Ozark Lead Co., 69 LA 1227 (Belcher,
Nuclear Fuel Services, 93 LA 1204 (Clark, 1989); Louisville Gas and Electric Co., 81
LA 730 (Stonehouse, 1983); Iowa-Illinois Gas and Electric Co., 86 LA 273 (Berger, 1986);
Southern California Carton, 88 LA 591 (Scholtz, 1986) - are all inapposite.
The Union also asserts that Dearman's discharge was improper because it was tainted
anti-union considerations and the Company's hostility to Dearman's union activities. I
The record, in fact, shows that the Company treated Dearman leniently when it only gave
oral warning on November 1, 1996, for being insubordinate when he refused to clean up and
when it did not even discipline him on July 18, 1997, when he reported to work under the
influence of alcohol. 1 Either of these two
infractions - which utterly belie Dearman's claim
he had learned his lesson after his prior suspension - standing alone could constitute grounds
discharge following Dearman's earlier suspension. The fact that the Company did not
harsher discipline much earlier utterly belies any claim that Priem or anyone else was out to
Dearman because of his union activities. Moreover, I credit Priem's testimony that
union activities played absolutely no role in his termination.
It is true, as the Union points out, that no employes ever complained to management
Dearman's actions; that Journey himself smiled when he saw Dearman pull up his pants; and
Journey did not immediately report this incident. All that is immaterial, however, because
higher-level management had the absolute right to review Dearman's conduct even if
no one complained about it and even if Journey did not see anything wrong with it.
itself has an institutional interest in preventing this kind of misconduct, particularly when the
entire issue of sexual misconduct on the job is such a sensitive issue and particularly when
Dearman himself previously engaged in sexual misconduct when he made the obscene
related above at page 2.
In light of the above, it is my
That the Company had just cause to terminate the grievant, Norman Dearman; his
grievances are therefore denied.
Dated at Madison, Wisconsin, this 20th day of March, 1998.
Amedeo Greco /s/
Amedeo Greco, Arbitrator
1. Unless otherwise stated, all dates hereinafter refer to