Company, he had worked at other jobs including sales counter, outside work,
estimater, and had
helped with kitchens.
In October of 1993, the grievant was injured when shingles fell off a trailer and hit
him in the
back of the head. He suffered a series of work limitations that lasted at least through
1995. It was his testimony that some of his injuries and corresponding work restrictions
injuries were permanent.
In February, 1996, the grievant developed serious back problems which he believed
consequence of his truck driving. Though there is no dispute that the grievant was injured,
worker's compensation insurance carrier and grievant have disputed whether or not the
work-related. It was the grievant's testimony, confirmed by letter, that on February 7, 1996
became sore while he was driving a straight truck to Union Grove, Wisconsin. The next
driving, he felt a sharp pain in his lower back, radiating into his legs, such that he had
his left leg sufficiently to engage the clutch. He stopped, exited his truck due to the pain,
attempted to walk off his pain for approximately 15 to 20 minutes. He thereafter drove to
site, despite the fact that he could not sit up straight in the seat. Upon his arrival at the job
grievant got out of the truck and could not stand up straight.
The grievant went to see a doctor and on September 10, 1996, provided the Company
the following note: "No driving truck. Return to work recommendations to be determined by
Jayaprakash (attending physician)." During this period of disability, the Company had
with work at a counter sales job, a light duty position.
On October 31, 1996, the grievant brought the following medical note from his
physician: "Reassess. . .work-hardening today. Hold work till I can define permanent
It was the testimony of Paul Miller, R.J.'s supervisor, that on October 31, the grievant was
break room taking a break from his work at the counter. According to Miller, he came in to
the grievant was doing. The grievant indicated, "I can't do this anymore." The grievant
acknowledges making that comment, but he indicates that the context of his comment was
doctor wanted him to hold off until a reevaluation, and that the parties would take it from
On November 6, 1996, the grievant brought an updated medical evaluation to the
That evaluation contained the following summary: "Client appeared limited in the majority
due to an increase in low back pain. This was also found during the musculo-skeletal
spasms were noted in the paraspinals. The following are recommendations based upon Mr.
performance with the functional tasks.
1. Limit carrying up to 40
pounds on an occasional basis, up to 20 pounds on a frequent basis,
and up to 10 pounds on a continuous basis.
2. Limit lifting up to 50
pounds on an occasional basis, up to 25 pounds on a frequent basis, and
up to 12.5 pounds on a continuous basis.
3. Limit pushing/pulling up to
40 hfp on an occasional basis, up to 20 hfp on a frequent basis,
and up to 10 hfp on a continuous basis.
4. Limit sitting up to two hours
at one time with a 10-15 minute break before resuming sitting.
5. No limitations with
6. Limit forward bending to an
7. Limit walking up to 30
minutes at one time with no more than 4-5 hours per shift.
8. Client to continue with
home exercise program (stretching and strengthening) as instructed
in work-hardening program.
This letter, written by the grievant's therapists, had Dr.
Jayaprakash's written concurrence
which provided: "Will place him on permanent limitations with the functional capacity
This was the first indication the Company had that the injury/disability might be permanent.
On December 6, 1996, Paul Miller called the grievant to a meeting. At the time, the
had been on light duty for several months. The Company felt it had no work he could do.
Company's version of the December 6 conversation is reflected in its December 11 letter to
grievant. Excerpts of that letter include the following:
"During our meeting on 12/6/96, we discussed the permanent
physical limitations placed on you
by Dr. Jayaprakash. In light of those limitations, I asked if there were any positions at Big
which you thought you could perform. You said that you did not really think so. On
Buck received a letter (which you said you had not seen) dated 11/27/96 from United
Insurance Company indicating the medical opinion that the injury to
your lower back was not work-related, but
due to other factors. . . (Letter cites Article 31 of the
As a result of your permanent physical
limitations (per Dr. Jayaprakash) and your inability to
satisfactorily perform services required in your category of employment, under the current
you shall no longer be an employe of Big Buck Building Centers, Inc. Your last day of
October 30, 1996, and as we discussed under the provisions of family medical leave, your
insurance will continue. . ."
It was Miller's testimony that the grievant did not claim there were existing jobs which
perform, nor did the grievant ask for a different job.
The grievant offers a different version of the December 12 exchange. It was his
that he was asked if he could drive a truck. To this question he replied "no". He was
asked if he could drive a forklift, and replied that he could not drive one on gravel. He was
he could lift shingles and load customers, and replied that his new restriction was forty
then indicated that Miller asked "Is there anything out there you can do?", to which he then
"I don't think so." He testified that Miller then indicated, "I have no other option than to
you at Big Buck." The grievant indicated that he was shocked, and in response to Miller's
help including a letter of recommendation, replied that he ought just mail it to him and left.
context of the conversation, according to the grievant, related entirely to outside work.
It was the grievant's testimony that at some point he came into the store to see about
foreman who he heard had been hurt. While in the store, he saw Miller who indicated that
rather the grievant not come around unless he was there to make a purchase.
A grievance was filed on January 2, 1997. The grievance seeks reinstatement and
A grievance hearing was held on February 6, 1997. It was the testimony of Miller
the course of that hearing the Union abandoned that portion of its grievance that alleged
termination, and which sought reinstatement. The Union official present at that meeting,
DeHahn, is no longer with the Union, and did not testify. Mr. J., the grievant, was
and denies that any part of the grievance was withdrawn. On February 10, 1997, Miller sent
then-Teamsters Local 43 president, a letter which included the following:
"In response to grievance hearing for R.J., February 6, 1997:
1. Per our discussion at the hearing
the issues as identified in the grievance (attached) filed
January 2, 1997, have been withdrawn by the Union and are not contested.
2. I now understand that what you
would like to accomplish for R. is that he remain on the
Union seniority list for a period of 24 months under Article 31. If an employe becomes
disabled (so that he cannot satisfactorily perform services required of his category of
or disabled for 24 months or more, he shall no longer be an employe hereunder.'. . ."
On January 31, 1997, the grievant filed a claim for worker's
compensation alleging, among
other things, a minimum of five percent permanent partial disability, and "temporary total
for February 7 August 1, 1996 and November 1, 1996 and continuing."
Subsequent to the grievant's discharge, the Company filled a number of vacant
Evidence conflicts as to whether he was capable of performing those positions. There is also
question as to whether certain positions are in the bargaining unit. The most notable of the
is a counter position that the Company advertised in the newspaper. Miller testified that the
is not in the bargaining unit. J. testified that he believed he could do the job, that he
believed he had
a good rapport with contractors, and a good knowledge of building materials.
The parties were unable to stipulate the issue to be decided, and advanced the
Union believes the issues to be:
1. Is the discharge of the grievant justifiable?
2. If so, was the Employer still
required to place the grievant into any other vacancy, then
available, or which later opened up?
The Employer advances the following three issues:
1. Is the issue of whether the Employer violated the
collective bargaining agreement when it
terminated the grievant's employment before this arbitrator?
2. If the arbitrator determines
the issue of whether the Employer violated the agreement in
terminating the grievant's employment is before him, did the Employer violate the terms of
3. Under the circumstances of
his termination, was the grievant entitled to remain on the
Employer's seniority list for 24 months after his discharge pursuant to Article 17 of the
RELEVANT PROVISIONS OF THE COLLECTIVE
It is agreed between the parties hereto that
the terms and conditions of this Agreement shall apply
to all yard salesmen, truck drivers, helpers, yardmen and warehousemen in the employ of the
Employers whose place of business is situated in Racine & Kenosha Counties, and
. . .
ARTICLE 10. SCALE OF
The Employer agrees that he will pay the
following minimum scale of wages for regular yard
salesmen, truck drivers, helpers, yardmen and warehousemen:
. . .
MAINTENANCE OF STANDARDS
The Employer agrees that all
conditions of employment relating to wages, overtime differentials
and working conditions shall be maintained at not less than the minimum standards in effect
time of the signing of the Agreement, and the conditions of employment shall be improved
specific provisions for improvement are made elsewhere in this Agreement.
17. QUITS, DISMISSAL AND LAY-OFFS
It is hereby agreed between the
parties that the last employee laid off by any of the Employers
may be rehired on a part-time basis at full Union scale pay upon mutual consent of the
employee and Union. If a full-time employee is laid off, and offered part-time employment
Article 22, he may choose to
reject such part-time employment
without losing seniority rights. His status on the seniority list
shall continue in effect for two (2) years from the lay-off date. It is agreed that the
notify the Union of all contemplated discharge of employees at least forty-eight (48) hours
the discharge occurs, provided, however, that discharge for proven dishonesty or intoxication
alcohol, drugs or other substances shall not require the forty-eight (48) hours'
Employees under Article 22 are not
subject to the provisions of this contract with respect to
notice. A separate seniority list for part-time employees, however, shall be maintained. If
employee quits, he shall be immediately removed from the seniority list.
22. OUTSIDE TRUCKS, CASUAL EMPLOYEES, SEASONAL
HELPERS, YARD SALESMEN
(A) The Employer agrees that
drivers of all hired or outside trucks shall receive the same
rate of pay and will be under the same working conditions as the Company's regular drivers.
regular Company drivers must be working before any hired truckers shall be used by the
(B) Incidental or casual
employee limited to yard work only may be employed for purpose
of loading or unloading incoming merchandise from box cars or trucks to designated storage
during peak periods. This may be done while all regular employees are engaged in regular
employment and shall not be used to displace any regular part-time employee presently
or laid off. The pay for the incidental or casual employee shall be as agreed by and between
Employer and said employee.
(C) Employers may hire
seasonal non-driver employees during summer and peak periods.
Such employees shall not become a seniority employee where the Union has been notified of
employment. No seasonal employee may be hired if regular employees are available for
not working. Seasonal employees are not eligible for any benefits. A seasonal employee
engaged for no more than one hundred eighty (180) work days in any calendar year. The
such seasonal employees shall be as agreed by and between the Employer and said
(D) Employer may employ
part-time sales employees for the purpose of servicing
customers. Part-time employees shall make no deliveries or use power equipment except to
cuts or more material for delivery. No part-time
employees may work if full-time
regular employees are laid off except as provided in Article 17.
(E) Part-time employees covered
in (D) above hired after July 1, 1993, shall be paid
minimum of the Federal minimum wage rate. All employees covered by Article 22 are
discretionary discharge which may not be discriminatory.
Should any controversy arise
between the parties hereto governing the interpretation of this
Agreement, or any part thereof, which cannot be settled to the satisfaction of both parties,
controversy shall be referred to a new Joint Union-Company grievance committee; two from
Union and two for the Company, with Union and Company as co-chairmen. Majority
be final and binding. If no majority decision, then arbitration within ten days. When
arbitration, the parties jointly notify the arbitrator from the Wisconsin Employment Relations
During such time as the matter is
pending, there shall be no strike or lockout. The decision of
a majority of members of such arbitration committee shall be binding upon both parties to the
The Employer agrees that should the
arbitration committee decide that a discharge or lay off
is unjustifiable, the affected employee shall be reinstated with full back pay.
It is further agreed between the
parties hereto that the matter of membership in the Union shall
in no case be subject to arbitration.
The filing fee required by the
Wisconsin Employment Relations Commission for arbitration shall
be split equally between the Union and the Employer.
An employee may continue his
employment under this Agreement as long as he is both physically
and mentally able to satisfactorily perform the services required in his category of
under this Agreement for the normal operation of the business. If an employee becomes
permanently disabled (so that he cannot satisfactorily perform services required in his
employment), or disabled for 24
months or more, he shall no longer be an employee hereunder.
POSITIONS OF THE PARTIES
The Company recites the facts underlying this dispute, including testimony and
the Union withdrew the unjust termination and request for reinstatement portions of the
during the February 6, 1997 joint committee meeting. The Company contends the only issue
remaining is whether the grievant is entitled to remain on the seniority list for 24 months
17. The Company further notes that on February 16, 1997, the Company advertised for an
sales counter position to which the grievant had been assigned at the time asserting that he
longer continue to perform that work. The Company notes that the grievant did not apply
position nor did he request reinstatement.
The Company argues that the issue of whether it properly discharged the grievant is
before the arbitrator since it was withdrawn by the Union and the joint committee agreed to
withdrawal. Article 28 of the Agreement states that any resolution reached by a majority of
committee is binding. No step was ever taken to give new life to these issues following the
committee decision. Therefore, argues the Company, the arbitrator is not free to override
decision and decide issues not before him.
The Company contends that should I determine that the issue of whether the
violated the Agreement when it terminated the grievant is before me, I must find that the
has not been violated. The Company points to Article 31 and contends that it is absolutely
under that language, that the grievant was no longer employed under the Agreement pursuant
stated terms when he advised the Company of his permanent disability disqualifying him for
it had available under the Agreement. Relying upon the testimony of Miller, the Company
that the grievant indicated there was no work that he could perform, and in fact the counter
position was a light duty job that the grievant was unable to perform in October of 1996.
The Company notes that it accommodated each of the grievant's requests, including
assignment, since his initial injury in October of 1993. The restrictions disqualifying him for
available work came from his own treating physician, and not a Company-secured physician
outside third party evaluation.
The Company contends that the grievant is not subject to Article 17 of the Agreement
time of his termination. The Company contends that Article 17 is applicable only to
subject to periodic layoff, and not to an individual who has been terminated.
The Union recites the facts underlying this dispute. It contends that Article 28 of the
agreement requires that all discharges be justifiable. The Union refers to Articles 17 and 31,
entitle a disabled employe to retain their employe status for a period of 24 months.
The Union contends that the language of the Agreement entitles a disabled employe to
his employe status for 24 months unless he is unable to satisfactorily perform services
required in his
"category of employment", and notes that the grievant held jobs ranging from counter person
estimator to warehouseman to driver. The Union notes that the Employer advertised for
these same jobs within weeks of the time the grievant was terminated, and contends that the
grievant's category of employment appeared to be wherever the Employer needed him. As
example, the Union notes that the grievant worked as a counter person. The Employer
counter person and the grievant should have been deemed available for a period of 24 months
either Article 31 or Article 17 and should have been recalled to work when the advertised
were being filled.
The Union points to testimony relative to employe Bob Noll who it characterized as
been in a situation virtually identical to the grievant's and who was allowed to stay on the
list for 24 months. The Union points to Article 15 of the labor agreement and contends that
Maintenance of Standards clause requires that that working condition be maintained.
The Union contends that the grievant was capable of performing work that he had
in the past. His only limitations were as to outside heavy labor or warehouse work.
The grievant was terminated on December 6, 1996, because the Company believed he
no longer capable of performing any work that it had available. The work limitations he
in December of 1996 arose from a back injury incurred on or about February 7, 1996.
There was a
dispute as to whether the injuries were compensable under worker's compensation. There
dispute that the grievant was injured.
There is a factual dispute as to precisely what was said during the December 6
However, the meeting ended with the Company terminating the grievant. The Company
its understanding of the content of that conversation in its December 11 letter where it
it understood the grievant to say that he did not believe there were any positions he could
A grievance was filed, contesting the Employer's action. That grievance, while seeking
does not claim that there is work that the grievant is capable of performing. There was no
at least no written challenge, of the Company's December 11 version of its conversation with
The grievant's January 31 worker's compensation claim contends an ongoing
disability. The Company's February 16, 1997 posting of a counter position was not grieved.
all the circumstances, I believe the Company was warranted in concluding that the grievant
unable to perform any work at its facility. The record does not support a finding that either
or the grievant did anything to meaningfully dispute the Company's view in that regard.
The Union contends that Article 28 establishes an unjustifiable standard against which
arbitrator can measure the Company's decision to terminate. I agree that such a standard
However, I credit the Company's testimony relative to the February 6, 1997 grievance
believe that meeting was the grievance committee meeting referred to by Article 28 of the
agreement. Miller testified that the termination and/or reinstatement elements of the
dropped. The grievant denies that. However, Miller sent DeHahn a detailed letter both
that to be the case, and going on at length to discuss and explore the consequences of leaving
grievant on the seniority list for a period of 24 months. That letter was never rebutted. I
difficult to believe that the Union would not have made some response, had it come out of
meeting believing that the termination and/or reinstatement components of its grievance were
viable. The context in which this meeting occurred included the fact that the grievant was
disabilities arising from a year-old work-related incident, and had submitted a worker's
claim contending that there was ongoing temporary total disability.
Assuming the lack of response is explained by the turnover in Union leadership, and
reflect agreement that the heart of the grievance was dropped, I believe the Employer's right
terminate the grievant is controlled by Article 31 of the Agreement. I do not believe that
applies in this dispute. I agree with the Company's analysis that the seniority list status of
created by Article 17 is a benefit available to an employe who is laid off. That is not the
fact in this
I do believe that Article 31 is applicable. That Article addresses the circumstances of
employe who is unable to perform his job. Article 31 assures continued employment for an
physically and mentally able to satisfactorily perform the services required in his category of
employment. The Union correctly notes that key to an analysis of this provision is a
as to what constituted the grievant's category of employment. When he was injured, the
worked as a loader/driver. It was clear he was unable to perform such work. The Union
given his history of performing virtually every job in the operation, the grievant's category
employment should be considered "all jobs of the Employer" or at least all jobs which the
has previously performed. However, such a construction would render the words "category
employment" meaningless. I do not believe that the words ". . .his category of employment
this Agreement. . ." can be construed to mean any and all jobs of the Employer, or any and
held by the grievant at any point
in time. Given its most expansive reading, the words are limited by the scope of the
Article 4 and Article 10 apply this agreement to ". . .all yard salesmen, truck drivers,
and warehousemen in the employ of. . ." Miller testified that the indoor counter position is
bargaining unit position. There is nothing in the record to suggest that the grievant is
performing any of the work described in the jurisdictional paragraph of the collective
Article 31 also refers to "disabled for 24 months or more." The sentence appears to
employe status after 24 months of disability. At the hearing (conducted 23 months after the
1996 onset of the disabling condition) there was no indication the grievant was capable of
work described by Article 4.
I do not believe the Noll incident to be relevant to this proceeding. The record is
to whether or not Mr. Noll was permanently or temporarily disabled. Similarly, other facts
to Mr. Noll's condition were not made a part of this record. I am not prepared to conclude
Maintenance of Standards clause makes this rather uncertain case dispositive of this dispute.
The grievance is denied.
Dated at the City of Madison, Wisconsin this 2nd day of July, 1998.
William C. Houlihan, Arbitrator