BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KRC (Hewitt) INCORPORATED
INTERNATIONAL ASSOCIATION OF
AND AEROSPACEWORKERS, LOCAL 1855
Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, S.C., by
Frederick Perillo, 1555 RiverCenter Drive,
Milwaukee, WI 53212, appearing on behalf of the Union.
Godfrey and Kahn S.C., by Dennis W. Radar, 333 Main
Street, Suite 600, P.O. Box 13067, Green Bay, WI
54307-3067, appearing on behalf of the Employer.
KRC (Hewittt) Incorporated, hereinafter referred to as KRC, the Employer, or the
Company, and Local 1855,
International Association of Machinists and Aerospaceworkers, hereinafter referred to as the
Union, are parties to a
collective bargaining agreement which provides for final and binding arbitration of grievances
arising thereunder. The
Union made a request, with the Company concurring, that the Wisconsin Employment
Relations Commission designate
a commissioner or member of its staff to hear and decide a grievance filed by the Union.
The undersigned was so
designated. The hearing was transcribed, the parties filed post-hearing briefs, and the record
was closed on March 16,
The parties do not agree as to the statement of the issue.
The Union sees the issue as (w)hether there was just cause for the discharge of Mr.
Mabry? If not, what is the
The Company sees the issue differently: (d)id Mr. Mabry
engage in reckless conduct? If so, did the
Company have just cause to terminate his employment when he attempted to lift a 96,000
pound roll with a lifting
beam with the capacity of 24,000 pounds, resulting in damage to the roll, and buckling the
I adopt the Company's statement of the issue to which I add: If not, what is the
Section 1. No employee will be discharged,
disciplined, or suspended without just cause.
Section 2 . . . All disciplinary action taken
under the provisions of this Article shall be subject to the grievance
procedure. If it has been determined that any employee has been wrongfully discharged, the
employee shall be
reinstated. If it is determined that the employee has been disciplined too severely, payment of
back pay, if any, for time
found excessive shall be made . . .
RELEVANT WORK RULES
Level 2 Violation will result in suspension and/or termination.
2. Disobedience or gross insubordination
3. Willful or reckless destruction or damage to company or customer
Level 3 Any work rule violated in this category will result in
1. First offense written/verbal warning.
1. Second offense written warning.
1. Third offense one day suspension
1. Fourth offense employee subject to suspension or
Rules falling into this classification are as follows:
2. Negligence resulting in substandard
products, inferior work, the breaking of tools, damaging of
equipment or wasting of supplies.
KRC is in the business of servicing and recovering rolls that are used in the
papermaking industry. The rolls
serviced by the Company may vary considerably in length and composition. However, all of
the rolls are quite heavy,
with weights expressed in tonnage units. Weight variations among the rolls may also be
considerable: some rolls are
made of stone (granite), some are made of metal; some are filled with water, others are not;
some are hollow, others
Visual inspection of the size of a particular roll can sometimes give a rough
of its approximate
weight to experienced plant employees. However, merely eyeballing a roll is not a reliable
means of determining its
weight, for outside appearances can be deceiving. Thus, rolls of the same apparent size can
differ greatly in weight
from each other.
Servicing needs of individual rolls may require moving them from one part of the
plant to another. This is
accomplished by means of cranes, straps, and lifting beams. KRC currently has a lifting
beam rated to move roll
tonnage as high as 50, another rated at 47 tons, two rated at 25 tons, and one rated at 13
Prior to the incident that culminated in this grievance, KRC also had a lifting-beam
rated at 12 tons. This
is a beam commonly referred to by plant employees as "the yellow beam." It was the
lifting-beam "of choice" for a
number of shop floor employees, even for rolls with weights exceeding the 12 ton weight
rating of the beam. Unlike
the higher rated 50-ton beam, the 12-ton beam required no extender: its length was long
enough to allow straps to be
suspended perpendicularly from the beam to the end of the roll to be lifted
and moved which insured a more secure
ride for the roll. About five or six years ago, some weld cracks were discovered on the
yellow beam, and it was sent
out for repairs.
The cranes are controlled by an electrical mechanism (pendant) that hangs from the
crane to easy grasping
range on the plant floor. Buttons on the mechanism control vertical lift as well as N-S and
E-W movement. An
additional button on the pendant operates a Weightronic scale attached to every overhead
Each crane is located underneath a girder where truck wheels for the crane are able
operate. The truck
wheels are grooved and ride the rail as if it were a rail track.
The Weightronic scale enables employees to determine the weight of a roll. Newer
cranes have their
individual scales built into them; older models require a separate weighing device that is
attached to both the crane
hook and the lifting beam. Weighing is accomplished by hooking the Weightronic scale to
the roll and lifting it an
eighth of an inch above the ground.
The Company asserts employees are instructed to weigh each roll before attempting
lift it with a crane and
lifting-beam. The Company further contends that lifting rolls that weigh
more than the weight rating of the lifting-beam should be done only with the
permission of the shift supervisor. While
the Company acknowledged that occasionally lifting-beams were used to move rolls with
weights that exceeded the
tonnage rating of the beam, the Company claimed that is done only with the permission of
the shift supervisor.
Several long-term plant employees testified that it has been a common plant practice
for employees to use the
yellow 12-ton beam to lift rolls that the employees knew exceeded the rated tonnage of the
beam even rolls weighing
40,000 to 50,000 pounds. Each insisted that supervisory permission was not sought in many
of these instances, that
the practice was done in plain sight on the plant floor, that the supervisors on each shift had
an unobstructed view of
plant floor activities, and therefore the supervisors must have known about the practice.
However, no specific names,
dates or instances were provided in support of this contention.
On June 25, 1997, the grievant herein, Steven Mabry, reported to work to start his
third shift duties at 11:00
p.m. Eugene Pingel was his shift supervisor. Although an experienced ten-year Company
veteran, he had had only
nine months experience as a supervisor.
When Mr. Mabry reported in, Mr. Pingel assigned him two tasks from his work
order list. Mr. Pingel had
already assigned another helper, Bob Novak, to perform certain work on a hydrein roll that
belonged to Appleton Paper
Company. The roll had a diameter of approximately 40 inches with a 300-inch face length.
It weighed 96,000 pounds.
Mr. Pingel had told Mr. Novak that if he needed any help he should ask Mr. Mabry
to assist him. Mr. Novak
concluded he needed assistance and accordingly requested Mr. Mabry's aid.
Mr. Pingel's work order list indicated that the Appleton Paper Company roll required
its grooves to be
pressure washed. Performing this task required moving the roll to the wash room located in
another part of the plant.
In pursuit of this assignment, Mr. Novak had gotten the crane and 12-ton yellow
beam and brought it to the
roll. He hooked up one end of the roll to the beam with a sling, then moved to the other end
intending to secure it to
the beam with another sling. Mr. Mabry noticed that Mr. Novak was experiencing difficulty
in securing one of the
slings so he provided help.
The crane controller was on Mr. Mabry's end. He attempted to weigh the roll, but
was unable to secure any
reading from the scale. The scale was later determined to have a dead battery.
Although Mr. Mabry had been unsuccessful in his effort to weigh the roll, he
he ". . . . honestly
thought the roll weighed 40,000 pounds." He said that the basis for his mental estimate was
other rolls of similar size
he had seen with their weights written on them. He asserted that had he known how much
the roll actually weighed
he would not have attempted to lift it with the yellow beam.
But he did. Operating the crane, Mr. Mabry lifted the roll about three feet from the
floor. At this point the
excessive weight of 48 tons proved too much for the 12-ton yellow beam. The beam
buckled, and the roll it was lifting
crashed to the ground.
Supervisor Pingel heard the crash. When he arrived at the scene of the mishap he
saw the " . . . lifting beam
sort of bent, dangling in the air and . . . the Appleton Paper roll kind of tipped over on the
side." The face of the roll
was nicked by the fall and had to be reground. The roll was also disassembled and inspected
at the request of the
customer. Apparently the crane involved was also damaged, along with the beam.
Mr. Pingel directed two 50-ton cranes be used to lift the roll out of the way. He also
attempted to weigh the
roll, but like Mr. Mabry, was initially unable to obtain a scale reading. After a
maintenance person changed the
battery in the scale, the roll was weighed and found to be 96,000 pounds.
Mr. Pingel agreed that in order to move the Appleton Paper roll to the wash room, it
was necessary to move
the roll perpendicular to the length of the shop, i.e., move the roll sideways. Mr. Pingel
further acknowledged this
would have been impossible to accomplish using two cranes instead of only one. He further
concurred that there were
only two beams in the shop with sufficient length to allow the slings to hang perpendicular to
the roll: the 12 ton yellow
beam and the 50 ton orange beam. However, to make the orange beam sufficiently long
would have required an
extender be plugged into it.
Mr. Pingel acknowledged that he had not directed either Mr. Mabry or Mr. Novak to
use the big orange beam.
In fact, he had not given any directions to either as to which beam to use or how to pick up
Mr. Pingel further indicated that although he had received training on the operation
the KRC cranes, he
didn't believe he had sufficient knowledge of the cranes to order an employee to lift a load
that would exceed the
crane's weight limit.
Although several witnesses indicated that the weight of a roll couldn't be accurately
determined by simply
looking at its exterior, Mr. Pingel testified that one could gain " . . . some kind of idea" of
the roll's weight by
observing its size. Manufacturing Manager Gerald Poss also asserted this. Under further
questioning, however, Mr.
Poss agreed that a short roll that has a small diameter but is solid metal or stone will be
heavier than a larger hollow
The KRC employee charged with crane operation training admitted to knowing of one
or two instances per
year where employees exceeded lifting beam weight ratings.
It appears that no employee has ever been disciplined for exceeding the lifting
capacity of a crane or beam
in the past or even damaging equipment. No discipline was imposed even when a suction
box was dropped from a
crane, damaging a customer's roll on which it fell.
Since the accident on the evening of June 25, 1997, it appears the Company has
established a new operations
policy under which all rolls are to be weighed when they are unloaded from the trucks
and the respective weights then
written on the appropriate roll. This is an action that had been requested at least
twice by an employee Safety
Committee following safety inspections on 6/20/96 and 8/27/96.
The Company took other action as well. Both Mssrs. Mabry and Novak were
discharged from their
employment with KRC. (Mr. Novak's discharge is the subject of a separate grievance.)
It also appears that Eugene Pingel is no longer a supervisor, but is back in the
bargaining unit. According
to Mr. Pingel, however, his demotion was not related to the June 25, 1997 plant mishap that
occurred on the shift he
Steven Mabry had begun his employment with the Company on April 1, 1996, as a
janitor. He is a high
school graduate, but also has received some vocational or technical education at Fox Valley
After working as a KRC janitor for several weeks, Mr. Mabry successfully bid for
the position of helper, and
started to perform the responsibilities of his new position on August 5, 1996.
Mr. Mabry testified that in preparation for his new job, his Employer provided him
certain training as to the
operation of the company cranes and slings. He described his training as consisting of a
videotape and explanations
as to weights, weight ratings of the slings, how the cranes worked, and proper usage of the
According to 23-year Company employee, Jerry Riehl, Mr. Riehl personally trained
Mr. Mabry on how to use
the cranes. Mr. Mabry's training card indicated he was given "hands-on" overhead crane
training. According to Mr.
Riehl, the training included " . . . basic mechanics of the crane, how it works, right down to
the safety and what belts
you use, what beams to use, how to run the crane, what the - - what to look for. If you get
yourself in trouble, getting
the swing of the crane, how to get out of it."
Mr. Riehl further testified that as part of the training he tells employees to use the
proper beam for the proper
load, where to find the beams in the shop, how to use the scales, and to go to maintenance if
the scales didn't work.
Mr. Riehl conceded that that his instruction to Mr. Mabry as to beam weight was of a
general nature, e.g., make sure
you use the right beam with the right size roll.
Mr. Riehl also indicated that although each beam is engineered with a "safety rating,"
(e.g., a 50 ton beam
may be able to actually handle 100 tons of weight), he does not discuss safety ratings with
the employees he is training.
Mr. Mabry stated the only training he received as to the operation of the beams was
"hands-on." By this he
meant he learned how to use of the beams simply by using them, himself. However, Mr.
Mabry denied that anyone
from the Company ever physically showed him how to use the beams, including the trainer
who signed his training
Mr. Mabry also asserted that using the yellow beam to move rolls with weights that
exceeded the tonnage
rating of the beam was a common plant practice and that he was aware of the practice on
June 25, 1997.
Mr. Mabry further testified that he was unaware of how to change the battery in the
scale and that he had
never been trained to do so. He also said that he had never been told by anyone from
management that he needed
permission to exceed the 12-ton rating of the yellow beam.
Prior to the termination of his employment, he had had an unblemished work record
with KRC. His
employment with the Company was the first industrial job he had ever held. On the date of
hearing in this matter, Mr.
Mabry was 20 years old.
POSITIONS OF THE PARTIES
The Company regards the grievant's conduct as "careless and reckless." The
Company finds its definitions
of "reckless" in The Random House College Dictionary, Revised Edition
(1975), Library of Congress ISBN 679-72720-5: 1. utterly
unconcerned about the consequences of some action; without caution; careless.
or proceeding from such carelessness.
The Company believes that Mr. Mabry consciously deviated from the
standard practice in lifting rolls, i.e.,
that Mabry considered following the proper procedure but then proceeded to lift the roll with
the 12-ton beam anyway.
This, the Company contends, is "clearly reckless, not forgetful, not negligent."
The Company analogizes the facts of the instant matter with the facts in Hess Oil
Virgin Islands Corp.,
91 LA 1284 (Hunter 1988). In Hess Oil, the grievant violated a company procedure by
failing to purge a No. 2
Vacuum pre-stripper heater of gas fumes before attempting to relight it. Instead he had
(incorrectly) guessed at the
number of burners that were extinguished, assumed the oil pressure was low, and opened a
valve to supply more gas.
An explosion followed. The arbitrator found the Company had just cause to dismiss the
The Company argues that in essence Mr. Mabry did the same thing: after
the scale did not work,
instead of calling maintenance to repair the scale or consulting with his supervisor, he
"guessed" the 12-ton beam was
of adequate capacity to lift the roll. The beam failed and the roll crashed to the floor.
The Company notes that the grievant's reckless behavior caused extensive damage to
Company property and
could have caused injury to him or others.
The Company argues that Mr. Mabry ". . . has substantial experience at lifting rolls
making him fully aware
of the responsibilities and importance of weighing beams prior to their preparation for
according to the Company, Mr. Mabry "must be subject to the same scrutiny as the
arbitrator followed in Hess Oil and
the discharge must be upheld.
The Company also cites North American Aviation, Inc., 19 LA 529 (Komaroff
in support of
KRC's termination of Mr. Mabry's employment. In this case, the Company Arbitrator
Michael I. Komaroff sustained
the discipline of the grievant whose workmanship was not "up to standard."
Within a relatively short time span, the
grievant (who had an unblemished work record) had drilled the wrong holes in 16 different
parts. The arbitrator noted
that the grievant had previously and correctly performed the operation hundreds of times.
The Company quotes
In view of this past experience, Carlson could only have
sixteen parts incorrectly if he had given
practically no thought to his work. The Company has the right to protect itself against such
mental lapses on the part
of the employee. The Impartial Arbitrator agrees with the Company that Carlson's work on
this particular day was
neither up to his own standards nor to any reasonable shop standard . . .
Supra, at 527, 532.
The Company denies that Mr. Mabry was not adequately
in operating cranes. The Company argues
that Mr. Mabry was definitely aware that he had to weight the roll prior to lifting it because
he tried to weigh it.
According to the Company, after Mr. Mabry determined that the scale didn't work, his
decision to try to lift the roll
anyway is totally inexcusable especially because the maintenance department was
only 50 feet distant and there were
no particular time pressures under which Mr. Mabry was working.
The Company also cites Marinette County (Courthouse), Case 152, No 53071,
MA-9218 (1976) in
support of the Company's discharge of Mr. Mabry. In Marinette County,Arbitrator Edmund J. Bielarczyk decided
the failure of a sheriff's department dispatcher to send officers to an alarm "because she had
a gut feeling there wasn't
anything to it" was a sufficient basis for her discharge. Instrumental in Arbitrator
Bielarczyk's conclusion was the fact
that the dispatcher's action was contrary to her training, that she had properly performed her
job on many past
occasions, and that she had no plausible reason for her lapse. The Company underlines
Arbitrator Bielarczyk's finding
that the grievant " . . . did deliberate the matter and determined not to use alternative
communications to dispatch an
officer to the location of the alarm."
The Company believes that, like the grievant in Marinette County, Mr. Mabry " . .
had the duty and
responsibility, one of which he had performed in the past, of checking the weight of
the roll to determine if the beam capacity was adequate to lift the roll. His actions
after he determined the scale was
not working were totally 'deliberate.'"
The Company argues that Mr. Mabry " . . . deliberately did not report to the
maintenance person or supervisor
that the scale was not working properly, but then consciously went ahead and tried to lift the
96,000 pound roll with
the 12-ton capacity beam." The Company asserts that Mr. Mabry had "two very simple
options: 1) he could have found
the maintenance person and had the batteries replaced, or 2) he should have approached his
supervisor and asked him
whether the beam capacity was adequate to lift the roll. These actions would have taken five
minutes at most. His
action cannot be seen as mere negligence, but as wanton and reckless behavior, subjecting
him to the discipline
outlined in the contract."
The Company contends that its discharge of Mr. Mabry is an appropriate discipline
under the contract.
Disagreeing with the Union that discharge is too severe a penalty in this matter, the
Company claims that Niagara
Frontier Transit System, 24 LA 783, 785 (Thompson 1955) supports the proposition that the
employer is not
required to apply the principle of progressive discipline in every case.
The Company additionally cites Walt Disney World Company, 62 LA 789
(Oppenheim 1974) as an
example where an arbitrator upheld the discharge of nineteen employees for
participation in a wildcat strike. The
arbitrator found their actions to constitute insubordination and the contract specifically listed
cause for dismissal.
The Company next notes that Arbitrator Moore sustained the grievant's discharge for
Chromalloy Division Oklahoma, 67 LA 1310 (Moore 1977), even though the Union
had argued that discharge
was too severe a penalty. Arbitrator Moore found that the contract spelled out that any
employee who refused or failed
to perform the work assigned would be discharged.
Finally, the Company cites Air Products & Chemicals, Inc., 80 LA 393
1983) in support of the
principle that when the contract language is clear and the conduct by the grievant warrants
the discipline stated in the
contract, the discipline must be upheld. In this case, Arbitrator William L. Richard upheld
the discharge of a driver
who caused substantial damage to the company's equipment when the tractor-trailer he was
driving overturned as he
made an unlawful lane change to try to compensate for his excessive speed around a curve.
Although the Union also
argued that faulty equipment contributed to the accident, the arbitrator found faulty
equipment did not absolve the
grievant from his offense.
The Company believes the Air Products case relates to the instant matter. According
to the Company, once
the grievant found the scale was not operating, he should have contacted a maintenance
employee to get the scale fixed.
Just because the scale batteries were dead doesn't mean the grievant had the right to assume
the beam was of adequate
size to lift the roll.
The Company asserts that Mr. Mabry was properly trained in the proper procedure
for loading rolls on beams.
The Company first points to the hearing testimony of its Manufacturing Manager, Gerald
Poss. Mr. Poss stated that
all employees are trained to lift rolls, both by video and hands-on, that the trainer is Jerry
Riehl, and that the Company
offers safety and safety policy training. Mr. Poss noted that Mr. Mabry's signature was on a
sheet attesting to his
attendance at certain of this training.
The Company next points to the testimony of its primary trainer, Jerry Riehl. Mr.
Riehl said he recalled the
hands-on overhead crane training he provided to Mr. Mabry. Mr. Riehl then generally
recounted what topics are
covered in the company's hands-on overhead crane training, including using the proper beam
for the proper load,
weighing rolls, and operating the scales.
The Company also points to the job description for Mr. Mabry's position: "must
know how to operate a
forklift, overhead crane, and jib hoist," and argues that weighing rolls is a requirement to
effectively operate an
The Company denies that it " . . . has condoned the alleged practice of allowing
employees to routinely lift
rolls in excess of the weight limits on each of the beams." It recalls Mr. Poss stating that
employees have no discretion
in this matter, but must obtain the permission of their supervisor.
It also quotes Company Trainer Jerry Riehl's testimony: 1) Mr. Riehl professes to
know of no situation where
supervisors told employees that they could make the decision to lift a roll weighing more
than the weight capacity of
the lifting beam; 2) instances where employees have exceeded weight rating on beams are
uncommon maybe once
or twice a year; 3) in the instances where employees have lifted rolls with weights in excess
of the beam capacity, Mr.
Riehl believes permission has been given by the supervisor.
The Company also quotes exerpts from other witnesses (Mssrs. Van Handel, Pingel)
in support of its
contention that employees are supposed to ask supervisors for permission to exceed beam
weight ratings. The
Company argues stridently that both the Union and Company witnesses admit management
has never given employees
permission to totally disregard the proper procedures for lifting rolls."
The Company notes that no supervisor was ever identified as
knowing about the practice of using improper
beams and doing nothing about it. Three arbitration awards are cited in support of the
proposition that no past
practice exists if management is unaware of the practice.
Finally, Mr. Mabry is again characterized as reckless in that he was aware of the
proper procedure, but
disregarded it. Noting that other employees have also experienced inoperative scales, the
Company concludes that Mr.
Mabry's experience was not unique and he should have sought a supervisor. The question is
not whether Mr. Mabry
was trained how to change batteries in the scale, according to the Company, but whether Mr.
Mabry was aware that
the roll needed to be weighed prior to being placed on the beam.
The Company again asserts the basis for its belief that Mr. Mabry's conduct was
reckless: "(t)he reckless
conduct occurred when the Grievant determined that the scale was not working and then
proceeded to lift the roll with
the beam without weighing the roll."
According to the Company, "(t)his is not a case where Mabry thought, 'Oh, damn, I
forgot to weigh the roll'
after the beam had buckled and the roll fell. Rather, this is a case of recklessness
characterized by an attitude of, 'Oh,
what the hell, let's lift the roll anyway,' after he knew the scale wouldn't work."
The Company summarized its case: "(t)he Grievant was properly trained; was
experienced at lifting rolls and
operating cranes; admitted he did not check with maintenance after he found out the scale
was not working."
"Such reckless behavior justifies termination according to arbitral precedent and the
Work Rules stated in the
contract," the Company concludes.
The Union claims there is no written shop rule that requires employees to seek
supervisory permission to
exceed lifting beam capacity. The Union further points to testimony of plant employees that
they regularly lifted rolls
in excess of 30,000 to 40,000 pounds with the 12-ton yellow beam. Based on the openness
of the shop floor and the
daily floor presence of the shift supervisors, union witnesses believe the supervisors knew of
The Union also believes it is instructive that no employee has ever been warned by a
supervisor not to use a
lifting-beam to lift a roll with a weight in excess of the beam's weight rating.
The Union argues that Mr. Mabry is not guilty of either disobedience or gross
insubordination because he did
not disobey any directive from his supervisor. Citing arbitral precedents that define
insubordination as "failure to
submit to authority" or a "refusal to carry out an order," the Union contends that Mr.
Mabry's conduct does not
measure up to these definitions.
The Union points out that on the evening of June 25, 1997, Mr. Mabry was doing
only what he was told -
assisting Mr. Novac in lifting and moving the Appleton Papers roll. Moreover, according to
the Union, Mr. Mabry
did not receive any direct orders relating to that task.
According to the Union, Supervisor Pingel didn't even speak to Mr. Mabry about the
Appleton Paper roll job.
The Union states that Supervisor Pingel gave the Appleton Paper roll assignment to Mr.
Novak. Mr. Mabry became
involved only because Mr. Pingel had directed Mr. Novak to ask Mabry for help if Novak
needed any. Thus, says the
Union, Supervisor Pingel failed to give either Mr. Novak or Mr. Mabry any instructions on
how to move the Appleton
The Union further argues that there was no shop policy that required Mr. Mabry to
obtain his supervisor's
permission to exceed the lifting beam's weight rating. The Union notes the admission of
KRC that no such rule exists
in writing, and believes hearing testimony establishes that employees routinely used the
12-ton yellow beam to lift rolls
weighing 30,000 to 40,000 pounds.
No one ever told Mr. Mabry that he needed to get his supervisor's permission to lift
a roll that weighed more
than the lifting beam's weight rating, according to the Union. The Union asserts that Mr.
Mabry gained most of his
training on lifting beams through on-the-job experience, and observed other employees use
the yellow 12-ton lifting
beam to lift rolls far in excess of its weight rating. Thus, according to the Union, it is unfair
to charge Mr. Mabry with
knowledge of a work rule that was never communicated to him. As far as Mr. Mabry was
concerned, says the Union,
he was simply following a general shop practice, apparently condoned by management, when
he lifted the Appleton
Papers roll with the yellow 12-ton beam.
The Union also denies that Mr. Mabry willfully or recklessly damaged the Appleton
Papers roll and the yellow
lifting beam. "Reckless," says the Union, "means more than a simple mistake . . . to be
reckless the conduct must be
such as to evince disregard of or indifference to consequences under circumstances involving
danger to life or safety
of others." Celanese Trucking Division, 90 LA 819, 823 (Nolan 1988).
"Willful behavior," continues the Union,
"requires a finding that the grievant acted 'with knowledge that the conduct for which he was
prohibited conduct and with the intention to go forward notwithstanding that knowledge.'"
Mr. Mabry clearly lacked
the intent required for a finding of willful or reckless conduct, the Union states.
The Union also asserts that the fact that a roll fell should not imply that something
wrong was done.
Therefore, the Union argues, just because there was an accident involving significant
property damage doesn't mean
the grievant was responsible, and cites Dietrich Industries, 83 LA 287
(Abrams 1984) in support of this proposition.
The Union also argues that a discharge based purely on hindsight should not be
sustained, citing Pepsi-Cola
Bottling Co., 79 LA 597 (Hannan 1982). The Union points out that the
Pepsi case also differentiates between a
mistake in judgment and a failure to do one's job at all or carelessness in the sense of
insufficient attention to duty to
perform according to minimum standards.
The Union argues that Mr. Mabry had seen the yellow 12-ton beam routinely used by
other employees to lift
rolls weighing 30,000 or 40,000 pounds; that Mr. Mabry believed the Appleton Papers roll
weighed only 40,000 pounds
and was unaware of its actual weight. Thus, says the Union, Mr. Mabry's actions were
consistent with his knowledge
of standard shop procedure and cannot be deemed reckless or willful.
The Union points out that Mr. Mabry had been a helper for less than a year when the
incident in question took
place, and that his training on the use of cranes did not include instruction
on the use of lifting beams. The Union adds that the Company's own records
demonstrate that Mr. Mabry was not
trained to the satisfaction of his supervisor in the use of overhead cranes. According to the
Union, the only instruction
Mr. Mabry received in the use of beams was what he learned working on the shop floor;
there he saw experienced
employees using the yellow 12-ton beam to lift rolls that weighed 30,000 to 40,000 pounds.
The Union observes that Mr. Mabry never suspected that the Appleton Papers roll
weighed any more than any
of the other overweight rolls he had seen hanging from the yellow beam. Mr. Mabry's error
in judgment in estimating
the roll weight, argues the Union, does not rise to the level of willful or reckless conduct but
is mere negligence at most.
The ability to estimate the weight of a roll accurately on sight comes only with experience
experience that Mr. Mabry
did not yet have, continues the Union. Perhaps Mr. Mabry's mistake was poor judgment or
even ordinary negligence,
but it was not willful or reckless, and does not constitute grounds for termination.
Continuing in this vein, the Union posits that when Mr. Mabry failed to obtain a
reading, there was no
way for him to know that the only thing wrong with the scale was a dead battery, for the
"low battery" light will light
only prior to the battery going completely dead. The Union notes that the shop safety
committee had regularly found
the Weightronic scales to function improperly throughout the plant.
The Union points to Mr. Mabry's attempt to weigh the roll. It asserts his decision to
attempt to lift the roll
even though the scale wasn't working was based on his sincere, though mistaken, belief that
the roll was within the
range of weights he regularly saw being lifted by the yellow beam.
The Union goes on to argue that the accident may have occurred even if the scale had
been functioning. The
Union reasons that although the Company contends that the roll need be raised only an eight
of an inch from the roll
to be weighed, the size of the rolls make it difficult to tell exactly how far off the floor the
rolls may be. Thus, says the
Union, Mr. Mabry is not guilty of willful and reckless conduct simply because the yellow
beam didn't buckle when he
lifted it to weigh it, but did buckle when he attempted to move the roll at a height of only
Moreover, asserts the Union, even if there was a shop rule requiring employees to
seek supervisory permission
to lift loads of excessive weight, shop management bears some of the responsibility for the
accident on June 25 because
management had condoned routine violation of the rule. The Union notes that the yellow
12-ton beam was most
commonly used because it was the right length to handle most rolls coming into the shop,
even if the roll exceeded the
weight rating of the beam. The Union claims that supervisors were clearly aware of the
common practice to use the
yellow beam to lift weights in excess of the stated beam rating. As an example, the Union
points to the 50,000 pound
Glatfelter roll that plant employee Gary Van Handel testified he regularly lifted with the
yellow beam in the presence
of his supervisor, without asking permission.
The Union notes the openness of the shop floor extends for its entire length. Unless
supervisors are blind,
asserts the Union, they must know the yellow beam's weight rating is regularly exceeded. If
a two-year employee
(Maintenance Man Lewis Welsh) has learned of this practice, the Union argues that more
seasoned supervisors must
also know it, as well.
The Union cites Safeway Stores, 95 LA 63, 68 (Levak 1990) in support of the
principle that "(w)hen there
is clear evidence of widespread violation of a rule one can conclude that the company
reasonably 'should have
known' or 'must have known' what was going on." A similar results was reached in Eberle
Tanning Co., 71 LA
302 (Sloan 1978) also cited by the Union. In the Eberle case 30-day
suspensions for operating a radial arm saw
without a safety guard in place were reduced because management personnel were in the
shop area on a daily basis and
thus in a position to observe the absence of the safety guard.
The Union points out that Mssrs. Mabry and Novak are the only employees to ever
be disciplined for
exceeding beam weight rating without getting supervisory permission. The Union believes it
is arbitrary to weight the
consequences only if they are realized, but ignore them if, through good fortune, they are
minimized or avoided. The
Union asserts that the weight of the evidence points to a general shop practice of lifting
overweight rolls without first
obtaining supervisory permission. "A rule honored in the breach can hardly be deemed
binding," contends the Union.
Finally, the Union notes that no employee has ever been disciplined for damaging
company or customer
property. The Union cites a 1990 incident in which a suction box was dropped from a crane
damaging both the box
and a customer's roll on which the box had fallen: although management was aware of the
incident, no discipline was
In response, the Company contends that "each and every one" of the witnesses" the
Union called to the stand
had to " . . . admit that (he) knew of no instance in which any supervisor knew of the
alleged practice." This, adds,
the Company, is totally consistent with the testimony of the witnesses called by the
The Company also attempts to distinguish the Safeway
Stores, 95 LA 63 (Levak 1990) cited by the Union from
the instant matter in four ways. First, the Company asserts, the arbitrator in Safeway
clearly states the "should have
known" test is difficult to apply, and doesn't apply it in his case. Second, according to the
Company, the Safeway
arbitrator based his decision on his conclusion that management "expressly and impliedly"
led store clerks to violate
the rule, but there is no evidence in the instant case that management did the same. Third,
the Safeway arbitrator found
lax enforcement of company policy, whereas management was unaware of policy violations
in the instant matter.
Fourth, the Safeway case is not decided on the "should have known"
but on proof that managers expressly failed to enforce the policy. That, says the
Company, is not the case here.
The Company also believes that Eberle Tanning Co., 71 LA 302
(Sloan 1978) can also be distinguished. In
Eberle, a union witness testified without contradiction that a supervisor saw
him use the radial saw without the guard
at least twice. The Company states no such uncontested testimony was introduced in the
The Company disagrees with another part of the Union's argument as well. The
Company points to the
Union argument that Mr. Mabry was following practice when he lifted the roll with an
under-capacity beam. The
Company finds the Union's later argument that Mr. Mabry may have been negligent to be
inconsistent with the former
argument. "(I)f Mabry was following the practice, then it wouldn't have been negligence,"
states the Company.
The Company resumes its attack on what it calls the Union's claim that management
"should have known."
The Company asserts that supervisors don't spend most of their time looking at rolls being
lifted into lathes and roll-serving machines. The Company also found fault that the Union
submitted no information showing that employees
spend anymore than a few minutes a day moving rolls.
The Company also contradicts the Union's claim that one could see the length of the
shop without obstruction.
The Company submits that while the beam may be visible from one end to the other, the roll
would be visible only
during the brief period of time it is being moved.
Moreover, says the Company, there is no evidence that supervisors are always
when rolls are lifted.
The Company emphasizes the only way an employee can accurately know the weight
of a roll is to weigh it.
The Company also notes that the testimony of a Union witness (Mike Gosz) about
rolls being lifted in excess
of beam capacity referenced only the time before the beams were rated, approximately two
years prior to the hearing.
According to the Company, Mr. Mabry's admissions alone constitute 99% of the
relevant evidence in this
The Company also disagrees with Union arguments about Mr. Mabry not being
trained. The Company claims
the Union misrepresents Mr. Mabry's training. According to the Company, Exhibit 19, p. 2
indicates that Mr. Mabry
successfully completed his training on February 17, 1997. The Company also believes that
Employer's Exhibit 21
documents Mr. Mabry's hands-on training with Jerry Riehl. Employer's Exhibit 21 recites
that Mr. Mabry has had
hands-on training in the
use of overhead bridge cranes and visual inspection techniques before use. It is signed
by Mr. Riehl and Mr. Mabry.
The Company contends that the issue is whether Mr. Mabry should have weighed the
roll; the Union's focus
on whether Mr. Mabry knew he should obtain permission from a supervisor is another issue.
All Mr. Mabry had to
do was find a maintenance person to fix the scale, says the Company.
The Company also underlines that even though the Union, in its brief, indicates there
was no shop policy
requiring employees to obtain permission from a supervisor before he lifted a roll exceeded
the beams capacity, Union
witness testified they ask permission to do so.
The Company makes the point that just as an automobile driver presumes he or she is
to remain under the
miles-per-hour signs, employees seeing that the capacity of a beam is 24,000 pounds should
be similarly guided.
While the Company attacks the credibility of witnesses called to testify by the Union
the Company concedes
that "(t)o their credit the Union witnesses did not lie on cross-examination when they were
confronted with the ultimate
'yes' or 'no' question."
The Company finds Mr. Mabry's testimony "candid and truthful" (in that) "he
admitted he acted contrary to
established procedures for lifting rolls in the plant."
Finally, the Company is not impressed by the Union's argument that the Company
had not disciplined
employees in previous similar situations. The Company is upset that that it hadn't received
Union Exhibit 5 (an
account of the dropped suction box incident) until hearing. The Company also asserts that
Union witness Mike Gosz
testified no negligence was found in that incident and that in any event it didn't involve
lifting a roll with the wrong
In closing, the Company urges that Mr. Mabry's fellow workers may have done him
a disservice if they told
him to violate work shop procedures, but that is between him and his brothers, not between
Mr. Mabry and the
The Union finds three fundamental flaws in the Company's argument: 1) although the
Mr. Mabry was reckless, it failed to present evidence that Mr. Mabry disregarded a known
risk; 2) the company's
argument that there is no authority for reduction of penalty ignores the contractual provisions
for negligence; and 3)
the Company has erroneously stated that Mr. Mabry received adequate company training in
the use of cranes and lifting
devices when, in fact, Mr. Mabry received his practical job knowledge by working with
other employees, not company
The Union asserts that although the Company has attempted to characterize Mr.
Mabry's attitude at the time
he lifted the Appleton Papers roll, it has not presented any evidence as to Mr. Mabry's state
of mind. The Union points
at the account given by the Company ("Oh, what the hell, let's lift the roll anyway") as a
fictionalized version, not
supported by any witness.
The Union believes the only credible testimony on Mr. Mabry's state of mind is the
testimony of Mr. Mabry.
As to that, Mr. Mabry stated his honest belief that he was lifting a roll that weighed about
40,000 pounds. He had seen
the yellow 12-ton beam lift 50,000 pounds and lifted what he thought was a 40,000 pound
roll in accordance with
common shop practice, according to the Union.
The Union scores the Company for misstating Mr. Mabry's testimony as constituting
an admission that he
was aware of the requirement that he see a supervisor if unsure as to whether a beam will
support a roll. The Union
describes the grievant's testimony as stating that he had never been told by management that
he needed permission
to exceed the written weight capacity of a lifting beam.
The Union points to Mr. Mabry's testimony that he'd seen the same beam lift 30,000
to 40,000 pound rolls
every day. The Union attributes his failure to estimate the weight of the Appleton Papers
roll accurately to his short
tenure as a helper. That, says the Union, is only ordinary negligence.
The Union takes issue with the Company's assertion that termination is the
appropriate penalty in the case.
The Union states that the cases cited by the Company in support of the proposition that the
penalty of discharge may
not be reduced by an arbitrator (if the penalty is required by the contract) only apply if the
employee is found to have
committed the offense for which termination is required.
In the instant case, however, the Union argues that that the Company has failed to
prove reckless or willful
conduct. The Union cites Celanese Trucking Division, 90 LA 819, 824
(Nolan 1988) to support its contention that
"simple negligence is a 'lesser included offense' to a charge of recklessness." Mr. Mabry,
submits the Union, at most
is guilty of negligent damage to property. As to punishment for that, the Union asserts, the
parties have contractually
agreed to apply the steps of progressive discipline to employee negligence.
The Union contends that the training Mr. Mabry received from Mssrs. Riehl and Cox
was inadequate. He
learned the basics about crane operation from maintenance leadman and primary trainer Jerry
Riehl. He received a
video presentation from Jim Cox. The training from Mr. Riehl did not include use of the
lifting beams; the training
video explained the weight ratings and proper use of the cranes and slings. No one,
however, even the person who
signed Mr. Mabry's training card, physically demonstrated the use of the lifting beams with
the overhead crane,
according to the Union.
In summary, the Union argues that Mr. Mabry received basic training in crane
operation from Mssrs. Riehl
and Cox; he learned the practical side of the job from his co-employees in the plant. Mr.
Mabry used the general shop
procedure when he lifted the Appleton Papers roll with the yellow 12-ton lifting beam, the
Union states. His failure
to correctly estimate the weight of the roll was ordinary negligence punishable by a warning.
The Company seeks to justify its firing of the grievant on the grounds he engaged in
"willful or reckless
destruction or damage to company or customer property." The Union defends the grievant
from the Company's
accusation, contending that at most the grievant was guilty of negligence.
The Company offers a credible definition of the term "reckless" which it finds in
The Random House College
Dictionary, Revised Edition, (1975).
1. utterly unconcerned about the
consequences of some action; without caution; careless.
2. Characterized or
proceeding from such carelessness.
The same term is defined in New Webster's
and Thesaurus of the English Language, Lexicon
Publications (1975) as "wildly careless, indifferent to danger."
Webster's also defines the term "willful" as "by intention, not
accidental, willful damage // acting according
to one's own desire, regardless of the dictates of others or of reason."
In my view, none of these definitions accurately describe the actions of Mr. Mabry
June 25, 1997. Certainly
Mr. Mabry was a player in the third shift plant mishap involving the Appleton Papers roll on
June 25, 1997. But his
role, at best, was both small and fortuitous. It strikes me as neither "willful" nor "reckless"
under any of the
At the time of the accident, Mr. Mabry had been a helper for less than one year. He
had had no direct
communication with his shift supervisor about the Appleton Papers roll job. Instead, it was
Novak (to whom the job had been assigned) who called on Mr. Mabry for assistance.
When Mr. Mabry arrived, he found the Appleton Papers roll unmarked with any
weight tonnage on it. Based
on his past (albeit limited) experience with rolls of similar size, Mr. Mabry estimated the
Appleton Papers roll to weigh
about 40,000 pounds. Nonetheless, he still attempted to weigh the roll, but was unsuccessful
due to what was later
determined to be a dead battery in the scale.
Mr. Mabry also found the yellow 12-ton beam already in place. He had worked on
the plant floor long enough
to know that because of its length this was the "lifting-beam of choice" for most employees.
Mr. Mabry had previously
seen 40,000-pound rolls successfully lifted and moved using the yellow 12-ton beam.
Indeed, he was aware that it was
common, permissible shop practice to use the yellow 12-ton lifting beam to move rolls
weighing 30,000 to 40,000
pounds. At hearing other shop employees validated Mr. Mabry's observations. Thus, on
June 25, 1997, Mr. Mabry
offered no objection to using the 12-ton beam for lifting and moving the Appleton Papers roll
that he believed to weigh
In fact, when he noticed Mr. Novak was having trouble in fastening a lifting strap to
one end of the roll, Mr.
Mabry moved to assist him. This action, in itself, is significant, for it does not appear to be
the action of a "willful"
or "reckless" employee, indifferent to possible damage to company or customer property. I
interpret it, instead, as the
action of an conscientious employee trying to make sure that the lifting strap was properly
secured so the roll could
not slide free.
At hearing, Mr. Mabry convincing claimed he was unaware that using a lifting-beam
for rolls weighing more
than the weight capacity printed on the beam required the permission of his supervisor. Mr.
apparently though not necessarily - contradicts that of Company trainer Jerry Riehl
who testified that he recalled
training Mr. Mabry. But Mr. Riehl's testimony in large part appears to be a general outline
of topics he covers with
trainees, and is not specific as to what he told Mr. Mabry. Mr. Mabry, on the other
hand, is specific and credible on
the point that his training did not include the operation of the beams.
Company trainer Jerry Riehl also testified he didn't discuss "safety ratings" of the
beams with trainees (i.e.,
how much weight the beam could actually support). He didn't have to. As
plant employees became aware that their
supervisors were occasionally authorizing the use of under-capacity lifting-beams, it seems
likely they began to
understand that the beams had a greater weight tolerances than those printed on them. Just
as experienced motorists
learn to what extent they can exceed the posted speed limit due to tacit (but well-understood)
tolerance of area traffic
enforcement officers, the record suggests that KRC employees became educated as to
allowable lifting-beam weight
I am satisfied that at the time of the Appleton Papers roll mishap, KRC employees,
including Mr. Mabry,
believed they had some latitude to lift rolls weighing more than the weight capacity of the
lifting beams employed
without first seeking permission of their supervisor. Sworn employee testimony is
unequivocal on this point (though
no one seemed able to explain the genesis of this practice). Clearly, it had some limits, for
occasionally employees did
seek permission. Nonetheless, given the frequency of the occurrences where beam capacity
was exceeded without
permission, the practice had become a part of the KRC shop culture.
Under these circumstances it strains credulity to believe the shift supervisors were
unaware of what was going
on. Yet, no discipline was awarded until the June 25, 1997 mishap occurred and property
damage resulted! At the
very least, there appears to have been an enforcement laxness
with respect to what the Company now claims was its uniform policy of requiring
supervisory permission to lift rolls
exceeding beam capacity. For these reasons I am imputing constructive knowledge of these
occurrences to the
1/ See Safeway Stores, 95 LA 63, 68 (Levak
1990). "Furthermore, the lax enforcement defense can be raised
even where management lacks actual knowledge of the practice of non-rule enforcement. As
is stated in Koven
and Smith, Just Cause: The Seven Tests, Kendall/Hunt, 5 at p. 316: 'The 'should have
known' test: But what if
company officials swear up and down that they knew of no drinking incidents and the union
cannot show that any
supervisor knew or condoned drinking? Suppose further that the union can prove that
drinking has been going on
to such an extent that it is hard to believe that management did not know. We come then to
the 'should have known'
test what lawyers like to call 'constructive knowledge.' What this means is that
where there is clear evidence of
widespread violation of a rule, one can conclude that the company reasonably 'should have
known' or 'must have
known' what was going on."
At least by implication the Company appears to have recognized that the accident
been prevented if the tonnage weight of the Appleton Papers roll had been written on it. To
the Company instituted a new policy following this accident under which all rolls are now
when unloaded from the delivery truck and the weight then written on the
roll. This policy appears
to have directly resulted from the June 25 misfortune. Had that policy been in place on June
1997, it seems unlikely that any accident involving the Appleton Papers roll would have
It is also instructive that the third-shift supervisor, Mr. Pingel, had not seen fit to
Novac (to whom he had assigned the task of moving the Appleton Papers roll) with any
instructions. Mr. Pingel, after all, was a ten-year employee of the Company. Presumably
had seen the roll. If he recognized it as having been previously serviced by the Company,
have known it was unusually heavy. Yet no cautionary alert or instructions were issued.
was on his own.
On the other hand, given the apparently deceptive weight of the roll, perhaps
veteran-employee (and supervisor) Pingel simply made the same mistake as rookie-employee
under-estimated it. (In his testimony Mr. Pingel acknowledged that one could get "some
idea" of a
roll's weight by observing its size.) If so, that might explain why Mr. Pingel didn't give
cautionary instructions to Mr. Novac as to how to move the roll. 2/
2/ Both alternatives, of course, are mere
speculation, and the record gives no hint as to the plausibility of
either. Neither does the record indicate that the Company made any finding of fault as to
Mr. Pingel. Mr. Pingel,
of course, is no longer a supervisor, but he claims his demotion was not related to the
mishap of June 25, 1997 that
occurred on his shift.
It is, of course, regrettable that damage to both company and customer property
But as the Union argues, "(s)imply because there was an accident involving significant
damage does not mean the grievant was responsible." Dietrich Industries,
Inc., 83 LA 287-289
(Abrams 1984). Neither does it necessarily mean that the grievant's conduct was "willful" or
Arbitrator W. L. Richard reached much the same conclusion:
The Arbitrator agrees to the extent that the seriousness of the
whether realized and actual or merely potential and inchoate, must be considered in
severity of the employee's breach of duty and the severity of the appropriate disciplinary
but it seems to this Arbitrator to be arbitrary to weight the consequences only if they are
ignore them if, through good fortune, they are minimized or avoided altogether. Under such
practice, an employee guilty of gross negligence involving a total disregard for his
property or the safety of others, with the likely potential for resulting fatalities or severe
may go uncorrected because through some unforeseen good fortune the likely result didn't
while an employee who commits the least degree of ordinary negligence may be severely
because, due to some fluke, the results are disastrous and of far greater magnitude than could
foreseen. That offends this Arbitrator's sense of fair play and justice." 3/
3/ T.W. Recreational
Services, 93 LA 302, 308-9 (Richards 1989). Arbitrator Richards goes on to express his
belief that all employees guilty of negligence under the same circumstances, or of the same
potential for damages
to persons or party, whether or not such damages occur, should be disciplined to the same
degree of severity, unless
something in their records gives legitimate reason for disparate
That is not to say the grievant is blameless. This is only to say his conduct falls far
being "willful or reckless." It does, however, constitute ordinary negligence.
It is a " . . .well recognized principle that negligence consists of failing to use that
ordinary care which would be exercised by 'the great mass of mankind' under the same or
circumstances . . ." 4/
4/ Rockweit v. Senecal, 197 Wis.
2d 409, 424, 541 N.W. 2d 575 (1995).
"A person fails to exercise ordinary care when, without
intending to do any wrong, he does
an act or omits a precaution under circumstances in which a man of ordinary intelligence and
prudence ought reasonably to foresee that such act or omission will subject him or his
the person of property of another, to an unreasonable risk of injury or damage." 5/
5/ Shannon v. Shannon,
150 Wis. 2d 434, 443-44, 442 N.W. 2d 25 (1989), cited with approval
v. Senecal, supra
Notwithstanding Mr. Mabry's good faith, albeit erroneous, estimate of the Appleton
roll weight, he understood that he should weigh the roll before attempting to lift it to a height
for moving it. He tried to weigh it. The scale didn't register. As was later learned, the
so dead so that even the "weak battery" signal on the scale wasn't activated. In my opinion,
Mabry's failure to contact a maintenance person to repair the scale so the roll could be
before being lifted was contrary to the procedure he had apparently absorbed. Such omission
negligence and would be even if there had been no unfortunate consequences.
as the procedure was undoubtedly designed for reasons of safety, its violation appears to
negligence per se.
Mr. Mabry's negligence is probably shared with others, although it is unlikely they
identified at this time. Thus, one can only speculate for what length of time the scale had
inoperative if the battery was so dead as to produce not even a "weak battery" signal. One
wonder how many other overweight rolls had been lifted with the same lifting beam while
battery was dead.
While these speculations do not absolve Mr. Mabry of his negligence, they are
putting his action in proper perspective. Like others preceding him who may have
a roll despite the battery-dead scale, Mr. Mabry simply had no reason to anticipate the
result that ensued.
As to remedy, both parties appear to agree that in the event a finding of either "willful
destruction or damage to company or customer property" or "negligence resulting in . .. .
of equipment . . ." the appropriate penalties are set forth in the Work Rules. The Company
argues that the Work Rules offer little room for arbitral discretion should a finding of
reckless" conduct have been made. In similar fashion, the Rules offer only limited discretion
an employee is found to have been negligent. 6/
6/ In effect, the Work Rules provide for a form
of progressive discipline. Niagara Frontier Transit System, 24
LA 783,785 (Thompson 1955), which is cited by the Company as support for the proposition
that the employer is
not required to apply the principles of progressive discipline in every case, contains an
excellent description of
In industrial practice
discipline is often "progressive or "corrective" in nature. Warning is tried before
suspension; suspension before discharge. Penalties are designed to correct if possible. While
practices of "progressive" or "corrective" discipline may be in wide use, it does not follow
that every Company
must, in the absence of contract, adopt such views. Every business and industry has its own
conditions. An arbitrator should be slow to substitute his own judgment as to the
appropriateness of penalties
on the basis of theories which seem to have wide appeal.
There is also
the consideration that ideas of "progressive" or "corrective"
discipline may not be applicable when the violation of a regulation on the part of an
employee involves money. Money is basic and central to the whole economic structure of
modern society. Morally and ethically fraudulent behavior in financial relationships is
subject to strong emotional disapproval. It seems more appropriate to apply the idea of
"progressive" discipline to loafing, negligence, incompetence, even
damage to machines
and equipment, etc., than to infractions which more or less deprive the Company
Under the terms of Work Rules governing the parties, negligence resulting in damage
property is a Level 3, Work Rule 4 violation. A first offense is subject to a written or
Accordingly, under all of the circumstances and based on the considerations
I deem a written warning appropriate discipline in this matter.
The grievance is sustained to the extent that the discipline imposed on the grievant is
to a written reprimand. The grievant shall be made whole by reinstatement with full back
seniority, and full benefits under the contract, subject to any set-off by reason of alternate
since discharge by the Employer.
I am retaining jurisdiction in this matter for a period of forty-five (45) days in the
party has any questions as to the remedy herein.
Dated at Madison, Wisconsin this 24th day of June, 1998.
Henry Hempe, Arbitrator