BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS "GENERAL" LOCAL UNION NO.
THE TEWS COMPANY
(Robert DeGroot Discharge Grievance)
Ms. Andrea F. Hoeschen, Previant, Goldberg, Uelmen, Gratz,
Miller & Brueggeman, S.C.,
Attorneys at Law, 1555 North Rivercenter Drive, Suite 202, Milwaukee, Wisconsin 53212,
on behalf of the Union.
Mr. Ron Loesch, Director of Human Resources, Tews
Company-LaFarge Corporation, 6715
Tippecanoe Road, Building C, Canfield, Ohio 44406, appearing on behalf of the Company.
The Union and the Company are parties to a collective bargaining agreement which
for final and binding arbitration of grievances. Pursuant to a request for arbitration, the
Employment Relations Commission appointed the undersigned to decide a grievance. A
which was transcribed, was held on December 5, 1997 and January 12, 1998 in Milwaukee,
Wisconsin. At the hearing, the parties waived the contract provision which provides that a
will be rendered by a three-member arbitration board (Article 31.2). The parties also waived
contract provision which provides that the arbitrator's decision will be rendered within 30
(Article 31.3). Afterwards, the parties filed briefs, whereupon the record was closed on
1998. Based on the entire record, the undersigned issues the following Award.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated to the following issue:
Was Bob DeGroot terminated for just cause? If not,
what is the proper remedy?
The parties' 1996-1999 collective bargaining agreement contains the following
1/ It is noted that the "Discharge or
Suspension" language which follows differs from the
"Discharge and Suspension" language included in the Union's brief on pages 1 and 2. The
language which follows is from pages 10 and 11 of Joint Exhibit 1. The arbitrator surmises
the discipline language which the Union included in their brief (i.e. that denominated Article
Section 3, Discharge and Suspension) is from the labor agreement covering the mechanics'
bargaining unit. That agreement was not offered into evidence.
DISCHARGE OR SUSPENSION
13.1 a. The Employer shall not discharge
or suspend any employee without
just cause, but in respect to discharge or suspension shall give at least two (2) warning
notices of the
complaint against such employee to the employee, in writing, and a copy of the same to the
and job steward affected, provided however, that if the Employer considers the conduct of
employee to be so serious that repetition of it should lead to discharge, the Employer may
the warning notice that it constitutes a first final notice, subjecting the employee to discharge
suspension upon its repetition, provided further, however, that if the Union disagrees that
misconduct warrants a first final notice, it may take the matter up under the grievance
b. The Employer shall notify the authorized
representative of the Union of his intention to issue
a first final notice, prior to issuing the same. The disposition of each first final warning
whether it results from the failure of the Union to grieve, agreement of the parties, decision
Joint Grievance Committee, or an award of the impartial
arbitrator, shall constitute neither a precedent nor
evidence in any other dispute relating to the
issuance of the first final notice. Neither party shall submit such disposition of such a
dispute to, nor
testify concerning it, before the impartial arbitrator in an arbitration involving the issuance of
first final notice. The Union shall also have the right to take up the issuance of any written
under the grievance procedure.
13.2 Notwithstanding any other provision of this
ARTICLE to the contrary, no warning
notice need be given to an employee before he is discharged, if the cause of such discharge
willful falsification of work records, use of alcohol or illicit drugs while working,
resulting in a serious accident while on duty, or the carrying of unauthorized passengers
while on the
job. The first warning notice in the case of tardiness shall be issued only after the affected
and the Employer have met to review the need for the warning notice. The steward shall be
of any action at such meeting.
13.3 If the Employer and the Union do not agree, the
warning notice or first final notice
may be issued by the Employer, subject to the provisions of this ARTICLE and ARTICLE
GRIEVANCE PROCEDURE. In the event the Union does not meet with the Employer
first workday following the date of notification to the Union, by the Employer for such
Employer may issue such warning notice or first final notice. The Union and Employer
any grievances filed by bargaining unit employes which are protesting the issuance of a
shall be held in abeyance for nine (9) months, from the date of the warning letter. However,
disciplinary action is taken, due to the protested warning letters, the grievances pertaining to
letters will then be heard by the Joint Grievance Committee, prior to the grievances filed
the further disciplinary action.
13.4 A warning notice or a first final notice, as herein
provided, shall not remain in effect
for a period of more than nine (9) months from the date of such notice. Discharge must be
by proper-written notice to the employee, steward and the Union. The employee may
request an investigation
as to the discharge or suspension. Should such investigation prove that an injustice has been
to an employee, the employee shall be reinstated. The Joint Grievance Committee and the
shall have the power to reinstate the employee with or without partial or full back pay.
discharge or suspension must be taken within seven (7) workdays from the date of discharge
suspension. If no decision has been rendered within seven (7) workdays, the case shall be
under the grievance procedures.
13.5 If it is determined that during the working day,
including any lunch period, an employee has
consumed intoxicating liquor, regardless of alcoholic content, or is under the influence of a
drug, or any other substance, then that employee shall be
discharged. In any case where the Employer suspects
but cannot prove by means other than
physical examination of the employee that such employee has consumed an intoxicating
narcotic drug or other substance in violation of this Section, the Employer may require such
to submit a blood or urine sample (obtained as directed by the Employer and at the
expense) for chemical analysis. Refusal to submit a blood or urine sample on such occasion
be cause for discharge.
The Tews Company is a wholly-owned subsidiary of the LaFarge Corporation.
Tews is a
major producer and supplier of ready mixed concrete, aggregates, and stone and gravel
building materials for the greater Milwaukee and southeastern Wisconsin area. It operates a
of ready mixed concrete plants. The Union is the exclusive bargaining representative for
employes in two bargaining units: one unit is known as the ready mix/building material unit
other is known as the mechanics' unit. Grievant Bob DeGroot was hired in 1987 as a truck
He worked at the Company's Oak Creek facility and was in the ready mix/building material
unit. He was discharged for going to four follow-up doctor appointments and staying "on the
(i.e. not punching out and going on his own time). His discharge is the subject of the instant
In April, 1995, DeGroot injured his shoulder at work while loading a truck.
He was treated
that day at the Medical Surgical Clinic. After examination and treatment at the clinic,
released for work with certain restrictions, specifically no truck driving and a ten-pound
restriction. No work was available which met these restrictions, so DeGroot was placed on a
leave of absence until he could return to his regular work duties. This occurred three weeks
when the clinic released him to return to his regular work duties.
After DeGroot returned to work, he still needed significant follow-up treatment
shoulder. Between May, 1995 and November, 1996, he had 15 such follow-up appointments
clinic. Most of these appointments were scheduled in mid to late afternoon and DeGroot
them after his workday ended. DeGroot's regular routine for these doctor appointments was
follows: he would clock out, go to his doctor appointment, and then go home. He did not
work after the appointment because it was inconvenient to do so. He attended these doctor
appointments on his own time; not company time. On the days when he had an appointment,
would tell his supervisor where he was going before he left work. The next day he would
turn in a
medical status report to the supervisor.
In November, 1996, DeGroot deviated from the routine just noted for his
appointments in the following respect. On four occasions that month, namely November 5,
and 22, he went to his doctor appointments during his workday, not afterwards as he had
done. On those four occasions he did not clock out when he left work; instead, he
stayed on the clock. Thus, he went to these four doctor appointments on company
time, not on his
own time. DeGroot admitted at the hearing that he did not clock out for these four doctor
appointments. He testified that the reason he did not clock out for these appointments was
he started going to a different clinic which was closer to where he worked than the other
On November 25, 1996, Company supervisor John Fahser questioned DeGroot
he had stayed on the clock for his doctor appointments on November 5, 12, 19 and 22.
readily admitted that he had indeed stayed on the clock for those doctor appointments.
responded by telling DeGroot he would talk to Company Vice-President David Ferron about
The next day, November 26, 1996, Fahser told DeGroot he was to clock out
for future doctor
appointments. Later that day, DeGroot went to another doctor appointment. This time he
out for the appointment.
On November 27, 1996 at the end of the work day, Fahser handed DeGroot an
which contained the following letter signed by Company Vice-President David Ferron:
On November 5, 12, 19 and 22, 1996 you left Tews
premises to go to doctor visits and did not
punch out until you returned. You did not have authorization to remain on the clock. As
fully aware, this is against Tews Company policy. . . 2/
2/ The sentence which followed has been
deleted because the charge made in the sentence was
not corroborated by the testimony of any witnesses.
According to the current labor Agreement, Article 13.2,
such action is cause for discharge.
This letter will hereby serve as official notice of your
discharge from our employment effective
Neither Fahser nor any other management official elaborated to DeGroot on the letter's
personally told DeGroot why he was fired.
Three management officials (Laurie Brown, Dennis Heitman and Robert
Trester) testified they
personally told DeGroot he was to clock out when he went to his follow-up doctor
Brown testified she told this to DeGroot and co-worker Joe Kattner in 1995. Both DeGroot
Kattner denied Brown ever told them this. Heitman testified he told this to DeGroot when he
DeGroot to the doctor in April, 1995 when DeGroot injured his shoulder at work. Trester
he told this to DeGroot in October, 1995 when he (Trester) was investigating a wrist injury
had suffered at work. DeGroot denied that either man told him he was to clock out for his
In November, 1995, the Company adopted the following policy:
Re: Doctor appointments
All doctor and/or clinic appointments are to be scheduled
only for late in the day whenever
possible. Personnel must punch out before leaving work to go to an appointment for illness
The use of company owned vehicles is prohibited for doctor, clinic, or hospital visits unless
situation is considered an emergency by management.
The record indicates this written policy was not widely disseminated and posted
employes testified without contradiction they had never seen it prior to DeGroot's discharge.
Additionally, the Union did not receive a copy of same until after DeGroot's discharge. The
further indicates that some company supervisors were unaware of the policy and its contents
after DeGroot's discharge.
The record also indicates that prior to DeGroot's discharge, numerous other
gone to doctor appointments during work hours without clocking out. When they did, they
warned, disciplined or discharged for doing so. Thus, prior to DeGroot's discharge, no
had been disciplined or discharged for not clocking out to go to a doctor appointment. The
further indicates that while other employes had been discharged before for various acts of
DeGroot is the first employe to be discharged for "theft" and "willful falsification of work
When he was fired, DeGroot had no warning notices in effect because they
had been issued
more than nine months prior to November, 1996.
POSITIONS OF THE
The Union's position is that the Company did not have just cause to discipline
much less terminate him. It makes the following arguments to support this contention.
regard to the basis for his discharge, the Union notes that the grievant's discharge letter
the only notice he received explaining why he was discharged) indicates on its face that he
for "theft and willful falsification of work records." The Union avers that at the hearing, the
attempted to expand the reason for his discharge to include something else, namely his
performance. The Union asks the arbitrator to not consider that reason when reviewing the
discharge. Second, the Union contends that since the Company chose to fire the grievant for
the standard of proof which the arbitrator should apply here is the stringent standard
criminal cases, namely the beyond-a-reasonable-doubt standard. Next, regardless of the
applied by the arbitrator, the Union argues that the Company cannot prove theft because
there is no
evidence in the record showing that the grievant intended to commit fraud by staying on the
for the four doctor appointments in question. The Union notes in this regard that the
told his supervisors where he was going before he left work for his appointments and then he
them a medical status report when he returned. The Union submits that the foregoing
the grievant thought he was entitled to remain on the clock for his doctor appointments. The
also asserts that the Company cannot dodge their burden of proving theft by reasoning, as it
that since the grievant clocked out for his previous doctor appointments, he must have been
from the Company when he failed to clock out for the four appointments in question. Next,
from that, the Union avers that the Company had no policy against going to work-related
appointments on the clock. It notes in this regard that numerous other employes went to
work-related doctor appointments on the clock during work hours. The Union calls
to the fact that in every instance documented in the record (except, of course, for the
employe was not disciplined for doing so. The Union argues in the alternative that even if
Company did have a policy prohibiting employes from going to follow up doctor
the clock, it was unpublished, a secret, and not disseminated to the workforce. It cites the
to support this premise. First, it notes that numerous employes testified without
were unaware of such a policy and did not see a written copy of same until after the grievant
fired. Second, it notes that several supervisors were unaware of the policy and its contents.
it asserts that the Union did not formally receive a copy of the policy in question until after
grievant was fired. Fourth, building on the foregoing points, the Union contends the
grievant had no
more knowledge of the Company's policy than did the rest of the employes. The Union
submits that the Company cannot discipline DeGroot, much less fire him, for not complying
policy when the Company never gave him notice of same. The Union's final argument is
imposing discipline here, the Company did not follow progressive discipline as it should
notes in this regard that at the time of his discharge, the grievant did not have any valid
effect. Based on the foregoing, the Union believes there was no just cause to discharge the
to remedy this unjust discharge, the Union requests that the grievant be reinstated with
remedy. The Union further requests that the arbitrator retain jurisdiction to determine the
of back pay and benefits in the event the parties cannot resolve that question.
The Company's position is that it had just cause to discharge the grievant. It
following arguments to support this contention. First, with regard to the basis for the
discharge, the Company believes it was justified in considering the grievant's overall work
performance when deciding what discipline to impose here. In its view, nothing in the labor
agreement prevents it from doing so (i.e. considering the grievant's overall work
deciding on the appropriate level of discipline.) Second, with regard to the standard of proof
the arbitrator should apply, the Company believes that the applicable standard is the
of the evidence standard. According to the Company, it has satisfied that standard. Next,
Company notes that the grievant admitted at the hearing that he did what he was charged
namely not clocking out to go to four follow-up doctor appointments in November, 1996.
Company further notes that the grievant did not have management approval to stay on the
these appointments; rather, he should have clocked out. The Company avers that the
he was to clock out when he went to his follow-up doctor appointments. According to the
the grievant had this notice from two separate sources: 1) there was a Company policy to
and 2) lest there be any question about it, the grievant was given personalized instructions by
management officials that he was to clock out when he went to his follow-up doctor
With regard to the former (i.e. the policy), the Company avers that its policy directing
clock out for follow-up doctor appointments was widely distributed. In the Company's
made every effort to ensure the policy was universally understood by employes and
applied by management. Given the foregoing, the Company believes this policy can be used
as a basis
to ascribe notice to the grievant that he was to clock out for his follow-up doctor
regard to the latter (i.e the personalized instructions) the Company contends that three
officials (Trester, Heitman and Brown) told the grievant on three separate occasions in 1995
was to clock out when he went to his follow-up doctor appointments. The Company submits
the grievant understood the policy/directive because he clocked out when he went to his
appointments from May, 1995 to November, 1996. The Company argues that when the
failed to clock out for four follow-up doctor appointments in November, 1996, he willfully
deliberately violated both the Company policy and the personalized instruction he had been
The Company believes the grievant's misconduct constitutes "theft" because he received
unapproved non-work hours and "willful falsification of Company records" because he
time card on the four days in question. With regard to the level of discipline imposed, the
asserts that termination is warranted because the grievant's offenses (i.e. "theft" and "willful
falsification of work records") are contractually- mandated cardinal offenses requiring
discharge. It argues that under these circumstances, progressive discipline is not applicable.
Company urges the arbitrator to
defer to the Company's judgment for the penalty for the grievant's misconduct. The
therefore contends that the grievance should be denied and the discharge upheld.
Article 13.1(a) of the parties' labor agreement contains what is commonly
known as a "just
cause" provision. It provides that the Company will not suspend or discharge an employe
just cause. What happened here is that the grievant was fired by the Company. Given this
disciplinary action, the obvious question to be answered here is whether the Company had
for doing so.
As is normally the case, the term "just cause" is not defined in the parties'
While the term is undefined, a widely understood and applied analytical framework has been
developed over the years through the so-called common law of labor arbitration. That
framework consists of two basic questions: the first is whether the Company demonstrated
misconduct of the employe, and the second, assuming this showing of wrongdoing is made,
whether the Company established that the discipline imposed was contractually appropriate.
Before addressing these questions though, it is necessary to address the
of why the grievant was fired. It is necessary to do so because the parties dispute the exact
for the grievant's discharge. The Union contends the stated reason for the grievant's
"theft and willful falsification of work records", while the Company asserts he was
discharged for that
reason plus his overall work performance which it characterizes as "less than spotless". 3/
Union's view, this latter reason was not communicated to the grievant in his discharge letter,
instead was simply added at the arbitration hearing. I agree with the Union on this point. It
fundamental arbitral principle that a discharge must stand or fall upon the reason given at the
the discharge, not the reason given at the arbitration hearing. 4/ In this case, the grievant
personally told by anyone from management
3/ Transcript, p. 120 and Company
4/ Elkouri and Elkouri, How
Arbitration Works, 5th Edition, p. 922.
why he was fired; instead, he was simply handed a (discharge) letter. Under these
letter obviously is the only source which indicates why the Company fired the grievant. On
that letter indicates that the Company considered his conduct on
November 5, 12, 19 and 22, 1996 (wherein he remained on the clock for four
appointments) to be "theft and willful falsification of work records". Nothing was said in
about his overall work performance. When the Company wrote the grievant's discharge
could have cited his overall work performance as a reason if it wanted because it obviously
of same. However, it did not do so. Instead, the Company chose to discharge the grievant
"theft and willful falsification of work records". Such was its right. Having done so though,
now expand the reason for the grievant's discharge to also include his overall work
Accordingly then, the grievant's overall work performance will not be used as a basis for
the grievant's discharge.
Having so found, attention is now turned to the first part of the just cause
analysis which, as
previously noted, requires that the Company demonstrate the grievant's misconduct.
In their respective briefs, each side addressed what degree of proof is needed
to make this call.
The Union contends that the standard of proof in this case is guilt beyond a reasonable doubt
the grievant was discharged for theft. Not surprisingly, the Company takes the view that a
stringent standard of proof is needed. I agree with the Company on this point. Although the
against the grievant can certainly be characterized as a crime, this is not a criminal case.
undersigned is not empowered to decide, and in point of fact will not decide, whether any
committed here. That being so, I believe that the standard of proof applied in criminal cases
beyond a reasonable doubt) is not necessary. Having said that, there is no question that the
still has the burden of proof. The question here is what level or standard it has to meet.
undersigned believes that the degree of proof the Company has to meet is to persuade the
Specifically, the Company has to convince me of the following: 1) that the grievant did what
charged with doing (i.e. not clocking out to go to four follow-up doctor appointments); and
assuming he did, that he knew he was not to do so.
The first point is not in issue. The grievant admitted at the hearing that he did
not clock out
when he went to his follow-up doctor appointments on November 5, 12, 19 and 22, 1996.
admission, there is no question that the grievant did what he is charged with doing (i.e. not
out to go to four follow-up doctor appointments).
The focus now turns to the second point referenced above, namely whether the
he was to clock out when he went to his follow-up doctor appointments. The Company
that he knew he was to clock out, while the Union disputes that assertion. The Company's
that the grievant knew he was to clock out for follow-up doctor appointments is based on the
following assertions: 1) that a written Company policy exists which mandates same; and 2)
several management officials personally told the grievant he was to clock out to go to his
doctor appointments. These matters are addressed below in the order just listed.
Notwithstanding the Company's assertion to the contrary, there are several
using the Company's written policy as a basis to ascribe notice to the grievant that he was to
out for follow-up doctor appointments. The following shows why. First, although the policy
adopted in 1995, it was not widely disseminated and posted or even given to the Union.
numerous bargaining unit employes testified without contradiction they had never seen the
before DeGroot's discharge. Third, the record indicates that some Company supervisors
unaware of the policy or did not understand it. Fourth, at the hearing, Company
Ferron conceded that the policy had "probably not" been universally applied by management.
the foregoing, I am unwilling to use the Company's written policy as a basis to ascribe notice
grievant that he was to clock out for follow-up doctor appointments.
Attention now turns to the Company's contention that several management
told the grievant he was to clock out to go to his follow-up doctor appointments. Although
grievant expressly denied ever receiving this directive, I am not persuaded by his general
Instead, I find that at least two management officials did just that. Three management
Brown, Heitman and Trester) testified they personally told the grievant he was to clock out
to go to
his follow-up doctor appointments. I have decided to not rely on Brown's testimony because
disputed by both of the employes who supposedly heard her say it, namely Kattner and the
However, I expressly credit Heitman's and Trester's testimony that they told the grievant he
clock out for his follow-up doctor appointments for the following reason. The record
Heitman took the grievant to the doctor in April, 1995, when the grievant injured his
work. It strikes me as extremely plausible that the subject of follow-up doctor appointments
be raised and discussed at that time. The record also indicates that Trester talked to the
October, 1995, when Trester was investigating the grievant's wrist injury. Again, it strikes
being an extremely plausible time for the subject of follow-up doctor appointments to be
discussed. I therefore conclude that Heitman and Trester both told the grievant in 1995 that
to clock out for his follow-up doctor appointments. I further find that this supervisory
a legitimate directive since there is nothing in the contract which precludes the Company
this directive. The fact that this directive was given orally has no bearing on its significance.
is because oral directives are commonplace, if not the norm, in the workplace.
Since two supervisors gave the grievant a legitimate directive that he was to
clock out for his
follow-up doctor appointments, that is what he was to do. It is a cardinal rule in the
employes are to obey supervisory orders and do what they are told regardless of whether or
agree with it. 5/ The reason for this is obvious; there can hardly be a more
5/ There are certain exceptions to
this rule but none are applicable here.
serious challenge to supervisory authority, and hence the Employer's ability to direct
the work force,
than the refusal to obey a supervisory order. Thus, the proper course of action is for
obey orders they believe are improper and obtain redress through the grievance procedure.
can be disciplined or discharged if they fail to obey, even if they are ultimately found to be
their assessment of the propriety of the order.
I am further convinced the grievant understood this directive because he
complied with it
throughout 1995 and most of 1996. Specifically, he clocked out for his numerous follow-up
appointments. That changed though in November, 1996 when the grievant failed to clock
four of his follow-up doctor appointments. On those four occasions, he went to his doctor
Company time, not his own time.
Given the management directive he had previously been given, the grievant
was not entitled
to remain on the clock for these four follow-up doctor appointments. He should have
for them just as he had done numerous times before. If he thought he was entitled to remain
clock, he was just plain wrong. In point of fact, he did not have permission from any
stay on the clock, so his doing so was unauthorized and in contravention of the directive he
given. I therefore find that the grievant committed misconduct by not clocking out on four
in November, 1996, and that this misconduct warranted discipline.
The second part of a just cause analysis requires that the Company establish
that the penalty
imposed was contractually appropriate. In this case, the Company summarily discharged the
In doing so, it chose to characterize what he did as "theft" and "willful falsification of work
By using those magic words from Article 13.2 of the labor agreement, the Company believes
a case for summary discharge where it need not follow the normal progressive disciplinary
which is contained in Article 13.1(a). I disagree. It is noted at the outset that some offenses
serious that they are grounds for summary discharge even if the employe has not been
disciplined. Here, the parties have contractually agreed in Article 13.2 that "theft" and
falsification of work records" constitute cardinal offenses that are grounds for immediate
However, just because those cardinal offenses exist does not mean they are applicable here.
view, while the grievant's failure to clock out as directed can be characterized in a variety of
it is overreaching to characterize it as "theft" and "willful falsification of work records."
is this: one of the elements of both "theft" and "willful falsification of work records" is
deception, and evidence of same is lacking here. The following shows this. On the days in
the grievant did not try to deceive his supervisors as to his whereabouts. For example, he
sneak out and later sneak back in before his absence was detected. Instead, he told his
where he was going before he left for his doctor appointment, and afterwards he turned in a
status report. Also, when Fahser questioned the grievant on November 25 about whether he
had not clocked out for the four appointments in
question, the grievant readily admitted he had not clocked out. The foregoing
persuades me that the
grievant did not try to intentionally deceive his supervisors about his whereabouts on the four
in question, so he did not commit either "theft" or "willful falsification of work records." It
from this decision that while the grievant certainly committed misconduct when he failed to
for four doctor appointments, that misconduct was not a cardinal offense warranting
Next, just cause requires uniformity in the treatment of all employes. The
that prior to the grievant's discharge, numerous employes had done exactly what the grievant
(namely go to doctor appointments on the clock) and none of them were warned or
less discharged, for doing so. This hardly lays the foundation for a summary discharge. To
contrary, it establishes that what the grievant did in November, 1996 (i.e. not clock out for
doctor appointments) was then considered by the grievant's co-workers to be acceptable
While the grievant's co-workers were put on notice through this case that if they do not clock
a doctor appointment the Company considers it to be a dischargeable offense, the grievant
given such notice prior to his discharge. Since he was not, he was subjected to disparate
Finally, having previously found that the grievant's misconduct was not "theft"
falsification of work records", and thus not a cardinal offense warranting summary discharge,
follows that the normal progressive disciplinary sequence contained in Article 13.1(a) should
been followed. It was not. Under that system, the Company is to give an employe at least
warning notices or a "first final notice" prior to discharge or suspension. While the grievant
received warning notices in the past, those warning notices were no longer in effect because
evaporated pursuant to the time limitation contained in Article 13.4. Since the grievant had
warning notice in effect in November, 1996, the undersigned finds that a written warning
the appropriate level of discipline for the grievant's misconduct. Inasmuch as the Company
this step and proceeded instead to discharge, it failed to comply with the disciplinary
sequence it has
contracted to abide by for non-cardinal offenses. Consequently, the grievant's discharge is
and is reduced to a written warning notice. Hence, the grievant is to be reinstated with no
seniority and with full back pay and benefits less any interim earnings.
Based on the foregoing and the record as a whole, the undersigned issues the
Grievant DeGroot was not terminated for just cause. For the reasons set forth
termination for failing to clock out for four follow-up doctor appointments is set aside and is
to a written warning. The Company is directed to reinstate DeGroot with no loss of
seniority and to make him whole for lost wages and benefits less any interim earnings.
undersigned will retain jurisdiction for at least sixty (60) days from the date of this Award
the purpose of resolving any dispute with respect to the remedy herein.
Dated at Madison, Wisconsin, this 8th day of May, 1998.
Raleigh Jones /s/
Raleigh Jones, Arbitrator