BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION, LOCAL
AMERICAN MATERIALS CORPORATION
General Teamsters Union, Local 662, hereinafter referred to as the Union, and
Materials Corporation, hereinafter referred to as the Company, are parties to a collective
agreement which provides for the arbitration of disputes arising thereunder. The Union
request, with the concurrence of the Company, that the Wisconsin Employment Relations
Commission designate a member of its staff to act as an arbitrator to hear and decide a
a discharge. The undersigned was so designated. Hearing was held in Eau Claire,
February 18, 1998. The hearing was transcribed and the parties submitted post-hearing
were exchanged on April 20, 1998.
The grievant was a redi-mix driver for the Company for over 5 years until his
May 14, 1997. The incident giving rise to the grievant's discharge occurred on May 12,
he delivered a load of concrete to Gordon Smith of Quality Masonry.
Smith was putting a foundation wall or basement wall under an existing house. In the
used cement block for the basement walls but had just begun to use concrete forms for a
which he completed with two courses of cement block on the top. The concrete when it left
had a 4 inch slump according to the batch ticket. Slump is the amount of fall or drop that
when an amount of concrete is removed from a cone container. The wetter the concrete, the
the slump. With greater slump, the concrete has less strength. Smith was pouring an
and there was only one location from which to unload the concrete. As Smith was relatively
pouring concrete walls, he asked the grievant to help him out to get the right slump to flow
forms yet retain its strength. Smith liked to pour a 5 5 ½ inch slump. Smith
testified that the
grievant added 5 gallons of water to the load of concrete. The grievant testified that with
approval he added no more than 15 gallons initially and then added another 5 gallons to the
concrete appeared to be very loose; that is, had a very high slump. Smith questioned the
about the looseness of the concrete and the grievant said it would be all right and some guys
The day after this pour, the wall had cracks running across it and had sank below the
the forms. On May 14, 1997, Smith called the Company and spoke with Ron Brown, the
President of Redi-Mix Operations and complained that the wall had settlement cracks and the
was delivered too wet. Brown proceeded to the job site and examined the wall and
the wall was not safe and estimated that the concrete was poured in excess of an 8 inch
Brown told Smith to remove the wall and the Company would pay for the removal and the
of it with a resulting cost of about $2,000 ($1,600 for labor, $500 for concrete).
On May 14, 1997, at a meeting between the grievant and Company officials, the
terminated. Ron Brown informed the grievant that the Company would not contest his
Unemployment Compensation claim if he did not file a grievance over his discharge. The
did not respond to this offer and there is no written document memorializing an offer and
On May 20, 1997, the grievant filed the instant grievance alleging he was discharged without
cause. The matter was appealed to arbitration on July 17, 1998.
The parties were unable to agree on a statement of the issues. The Company stated
1. Is the grievance barred by a mutual settlement of the
2. Did the Union timely request
arbitration in accordance with the collective bargaining
agreement, specifically Articles 29 and 30?
3. Did the Company have just cause to terminate Bruce
If not, what is the appropriate remedy?
The Union states the issues thusly:
1. Did the Company have just cause to
terminate Bruce Edington?
If not, what is the appropriate remedy?
The undersigned adopts the issues as stated by the Company.
The Employer shall not discharge, suspend,
or otherwise discipline any employee without just
cause. Appeal from discharge or suspension must be taken by written notice within five
days from the date of discharge or suspension or notice thereof, whichever is
earlier. The discharge
and suspension grievance shall commence at Step 3 of the Grievance Procedure as set forth
29 of this Agreement.
. . .
Any grievance must be presented
within five (5) days of its occurrence or it shall be barred. A
grievance shall be processed as follows:
1. The grievance
shall be presented to and discussed with the employee's supervisor by the
employee and steward, if requested.
2. If a satisfactory
settlement does not result from such discussion within three (3) days, the
grievance may be discussed with the steward and management.
3. If not settled satisfactory (sic) within
five (5) days of Step 2, the grievance may be reduced
to writing and referred to the management and the Business Representative of the Union.
4. If not settled
satisfactorily in this discussion, either party may notify the other within five (5)
days (excluding Sundays and holidays) after a deadlock in Step 3, of their desire to Arbitrate.
The party desiring Arbitration shall notify
the other party of its desire to arbitrate and within five
(5) days the Employer and the Union shall each select one (1) member
who shall act on the
Arbitration Committee. Should the Committee be unable to arrive at a decision within five
exclusive of Sundays and holidays, it is agreed that an arbitrator appointed by the
Employment Relations Commission will be accepted by both parties. It is
understood that the
Arbitration Committee shall not have the authority to change, alter or modify any of the
provisions of this Agreement.
. . .
The Company contends that the grievance should be dismissed because the Union and
grievant settled the matter by entering into an agreement whereby the Company agreed not to
the grievant's Unemployment Compensation and the grievant agreed not to grieve his
submits that the validity of the agreement is undisputed and the Company performed its part
settlement agreement so the grievance should be dismissed and the grievant and the Union be
to perform their part of the bargain. The Company further argues that it is no defense to
the Company could have breached this agreement because the Union and grievant did.
The Company insists that the grievance is not timely because the grievant and Union
the five-day time limit for requesting arbitration in Article 29 of the agreement. It asserts
Company made it amply clear to the Union on June 16, 1997, that the grievance would not
and thus deadlock was reached on that date. It points out that no request for arbitration was
until mid-July, a month later. The Company states that it was not required to object to the
of the arbitration appeal before the hearing in this matter. It argues that the grievance should
dismissed because it did not comply with the procedural requirements of the grievance
As to the merits, the Company submits that the grievant was discharged for just cause
he intentionally violated several of the Company's rules in order to quickly pour a load so he
make it to a Union meeting. It claims that it is undisputed that the thin, soupy concrete the
poured was severely defective and created a safety hazard to Smith's clients. It maintains
evidence establishes that the grievant watered down the concrete. It submits that he added
before arriving at the job site and added more and then intentionally attempted to mislead
telling him that others pour it thinner. It notes that a pour which should take an hour was
done in 23
minutes and the grievant bragged to Union Steward Abley that he had "sluiced up" the load
shown Smith how to pour a wall. It suggests that the grievant was not able to explain why
was defective and testified he added 20 gallons or less to the load which could not have
concrete to a slump of 8 or higher.
It argues that the grievant was responsible for assuring that the load of concrete did
the yard if it was above the ticketed slump of 4 inches. Additionally, according to the
grievant admitted he knew the long-standing rule that water was not to be added to the load
the customer's authorization. It claims that the grievant's conduct was unreasonably
because if it had not been discovered, the defective foundation would have posed a serious
It further observes that the Company incurred the cost of removing and repouring the wall.
that the grievant's version does not add up and he had noted on the delivery slip on other
jobs as few
as 10 gallons added but indicated nothing was added on the batch slip in this case. It
the grievant could not explain this.
The Company maintains that the grievant's account is totally unsupported and the
conclusion is supported by Vice President Brown as well as two independent witnesses,
Abley. The Company insists that it had just cause to discharge the grievant. It concludes
that for the
three reasons set out above, the grievance must be denied.
The Union contends that there was no just cause for the grievant's discharge. It
the evidence fails to support the Company's speculation that the grievant added too much
the concrete. It claims that the Company's own evidence shows that the grievant's pour was
same consistency as the repour. It notes that the repour batch should have left the plant at a
slump and 38 gallons of water was added at the job site which would bring it to a 9 inch
assuming the numbers are accurately recorded. The grievant's pour on May 12, 1997,
the Union was in excess of an 8 inch slump, so if the repour batch was not too wet, neither
grievant's. The Union notes that the grievant added about 30 gallons to an 8 yard load at a 4
slump on May 10, 1997, at the same site and got consistency that was perfectly acceptable.
that the Company's explanation is that its own evidence is wrong. It states that the repour
alleged to be in error but there is no evidence to support this theory.
It argues that the Company speculates that the concrete was too wet because the
unloading time was too short. It insists that the Company's own evidence contradicts this
Brown estimated about 10 minutes a yard to unload the pour on May 12, 1997, the 12 batch
put in evidence show an average of 5.18 minutes per yard to unload and the only 5 inch
3.24 minutes per yard, whereas the grievant used 3.83 minutes to unload a 5 inch slump.
The Union claims that all water was added at the contractor's request. It submits that
if the wall failed because the concrete was too wet, any water added was at Smith's request
grievant added 15 gallons and then 5 more as Smith desired. It argues that there is no
the grievant added any water without Smith's approval. It points out that Smith, a contractor
years, admitted he acquiesced in the grievant's adding 5 more gallons and Smith's story that
on the grievant makes no sense. It asserts that if Smith thought the load was too wet he
rejected it. It claims the only reasonable explanation is that Smith poured a bad wall and
seeks to shift
the blame and save the cost of redoing the wall. It argues that the Company cannot meet its
of proof by presenting a single interested witness to contradict the grievant. It states that
there is no
credible reason for an experienced redi-mix driver to add water to a load without the
permission and the Company's suggestion that the grievant was in a hurry to attend a Union
is just speculation.
The Union contends that no major safety regulation was violated, the Company never
identified the specific safety regulation in question, the Company's safety director knew of no
regulation violated on the May 12 concrete pour and no safety regulation was mentioned at
grievant's discharge meeting.
The Union asserts that if the grievant did do something wrong, discharge is too
penalty. It submits that progressive discipline should be followed and the grievant's failure
the water added on the batch ticket deserves only a written reprimand because the rule was
not followed by everyone, was not specifically told to the grievant and was not in writing. It
that the grievant was never put on notice or warned that failure to record water added was
for immediate discharge. It states that the grievant has had no prior discipline to justify any
beyond the first step.
Turning to the procedural defenses, the Union insists that the grievant did not waive
to file a grievance over his discharge. It accepts that the Company told the grievant right
discharge that it would not contest his Unemployment Compensation if he refrained from
it, but the grievant never said he wouldn't file a grievance. It points out that there was no
evidence of any settlement because there was none. The Union argues that any waiver
it must be knowing and intelligent and there was no evidence presented that the grievant
waiver. It states that even if there was an agreement, the grievant repudiated it four days
the Company suffered no prejudice as a result as it was free to contest his Unemployment
The Union maintains the grievance is timely and arbitrable. It submits that the
the burden of proof that the appeal to arbitration was not timely. It observes that this
raised for the first time at the hearing on February 18, 1998, some seven months after the
filed. It submits that the Company waived its defense by never raising a timeliness objection
the hearing. Besides, according to the Union, the appeal was timely filed as the contract
an appeal must be filed within 5 days after a deadlock and deadlock did not occur until July
so the appeal was timely. The Union argues that the time limits are not mandatory because
contract does not specify the consequences of failing to meet the five-day requirement such
grievance will be considered denied and not arbitrable. It insists that the language is
not mandatory and the grievance is arbitrable. It concludes that the Company cannot sustain
burden of proving just cause by inferences, speculation and contradictory evidence and the
should be reinstated and made whole.
The first issue is whether there was a mutual settlement at the time of the grievant's
The evidence establishes that after the Company told the grievant that he was discharged that
not oppose his Unemployment Compensation if the grievant would not file a grievance.
a settlement of a discharge is a significant event and must be shown by clear evidence. The
in this case fails to show that the grievant agreed to the Company's offer. There is nothing
No evidence was offered quoting the grievant as saying he accepted the offer or that it was
him or anything else to indicate assent. In order for a settlement, there has to be a bilateral
i.e. an offer and acceptance, a promise for a promise. Here, the evidence merely establishes
unilateral contract. The Company made an offer and the grievant's acceptance could be
action, i.e. he did not file a grievance. Here, however, the grievant did file a grievance four
so there was no acceptance by action on his part. Furthermore, this occurred before any
forbearance by the Company. The arbitration case cited by the Company, Health Care
Retirement Corp., 99 LA 917 (Hockenberry, 1/92, is not applicable to the instant case. The
in Health Care indicated that the Company made an offer and there was a counter-offer, with
Company offering $2,000, then $6,000 and finally accepting the Union's counter-offer of
Here, there was no give and take, offer and counter-offer. It must be concluded that no
was reached. Even the follow-up letter sent to the grievant by Mr. Brown on May 16 does
any quid pro quo for the Company's not contesting the grievant's
Unemployment Compensation (Ex.
2). A discharge settlement should be clear and unambiguous and here the evidence fails to
a settlement occurred and the Company's defense is rejected.
Turning to the timeliness issue, the Company claims that the grievance was not
arbitration in a timely fashion. Article 29, Section 4, states that either party may notify the
within five (5) days after a deadlock in Step 3, of their desire to arbitrate.
This language does not establish a clear time from which to appeal. The time starts
from when the
parties reach deadlock. "Deadlock" is somewhat fluid and comparable to an impasse in
in that it is not always apparent when deadlock or impasse is reached. In Taft Broadcasting
163 NLRB 175, 64 LRRM 1386 (1967), the Board enumerated a number of conditions in
determination of impasse and stated that whether a bargaining impasse exists is a matter of
The issue then is when did deadlock occur. The record indicates that Vice President Brown
Business Agent Dan Alexander met about the grievance around May 22, 1997 (Tr. 17).
apparently requested information and sent a letter dated June 2, 1997, to Brown stating that
still waiting for the information which was necessary to expedite the processing of the
4). On June 12, 1997, Brown called Alexander who was on vacation. Brown and Alexander
spoke on June 16, 1997, by phone and Brown said the Company was not going to take the
back (Tr. 19). The parties met on July 16, 1997, and Alexander asked if there was any kind
settlement of the grievance and Brown said no and that as far as he was concerned it was a
case (Tr. 21). Alexander had also spoken to Paul Ayres, the Company's owner, after the
1997 conversation with Brown, and Ayres told him that if the Union had any offers, it
them to Brown as Brown had the exclusive decision to decide the matter (Tr. 229). In my
deadlock was not reached until July 16, 1997, because it was at this point that it was clear
was no willingness to consider the matter further. The Union appealed the case to arbitration
17, 1997, so the appeal is deemed timely. Having found that the grievance is timely filed,
there is no
need to address the Union's waiver or the absence of consequences arguments.
As to the merits, the evidence clearly established that the concrete poured by the
May 12, 1997, for contractor Smith's basement wall contained an excessive amount of water.
pictures, which are worth a thousand words, clearly show that the concrete was too wet (Ex.
Vice President Brown, with 25 years in the redi-mix business, was of the opinion that the
was poured in excess of an 8 inch slump and he tested the wall with rebound gun (Tr. 38,
is a case of res ipsa loquitur, the wall speaks for itself. The question then is
how did the excess water
get into the concrete. Smith ordered 6 yards at a 4 inch slump (Ex. 14). The load master
grievant's redi-mix truck. Once the concrete is in the truck, it is the driver's responsibility
sure that it does not leave the Company plant at a greater slump than that specified (Tr. 133).
slump is greater than that specified, then the driver, who has a slump meter and checks the
not leave the yard but report that the load is too wet and it is either dried or dumped (Tr.
the instant case, the grievant never reported that the load was too wet at the plant and it was
responsibility not to leave the plant if it was. There was no evidence that the load master or
itself was greater than a 4 inch slump when it was loaded and left the plant. The grievant
when he arrived at the site, he ran out a bit of the concrete (Tr. 180), and Smith told him he
it looser so the grievant added no more than 15 gallons (Tr. 181). The grievant testified that
started the pour but the concrete was not getting all the way to the backside so he asked if he
add 5 more gallons which he did for a total of
less than 20 gallons. Smith disputes everything but the 5 gallons. I don't find the
testimony credible. The grievant had delivered a load two days before to the same job site
told him he would appreciate the grievant's help because he had never poured into wall
The grievant on that day had a 4 inch slump and added 10 to 12 gallons of water and then
additional 5 and the pour was fine (Tr. 178-179). If the grievant on May 12, 1997, had
added at most
only 5 gallons more than on May 10, 1997, the slump would not be greater than 8 inches. If
addition of 15 to 17 gallons of water will bring a 4 inch slump load to a 5 or 5 ½ inch
slump, then the
addition of 20 gallons would bring the load to a 6 or 7 inch slump. The repour which
fine required at least 30 gallons of additional water (Ex. 15) from a 5 inch slump. I
conclude that the
grievant intentionally added at least 40 to 50 gallons of water to the load without Smith's
or permission. I base this on my calculation that it took 15 to 17 gallons to increase the
slump to 5
or 5 ½ which translates to 10 to 12 gallons for each inch of slump for a 6 yard load.
Thus, to go from
a 4 inch to an 8 inch slump would require a minimum of 40 to 48 gallons, not the less than
admitted by the grievant. When the grievant was discharged, he was told he was being
for intentionally pouring a bad wall by adding too much water, a charge the grievant did not
the time (Tr. 14, 132, 185). Furthermore, I credit Norm Abley's testimony that the grievant
he sluiced up the load (Tr. 125). It was his opinion that meant the addition of 70 to 80
water. Abley had nothing to gain from his testimony whereas the grievant who denied
statement (Tr. 196) has his job at stake.
The grievant knew it was an absolute rule that a driver was not supposed to add
without the contractor's approval as he testified so on cross examination (Tr. 190). The
an experienced driver and could certainly tell the difference between a 5 to 5 ½ inch
slump that Smith
wanted and asked the grievant's help in getting and the over 8 inch slump that resulted in a
The Union argued that the time factor to unload the concrete was similar to other pours in
(Ex. 11). Yet the repour took one hour and five minutes compared to 23 minutes for the
pour on May 12, 1997. It obviously takes longer to pour a basement form under a
from a single spot than other types of concrete pours, so the time argument carries no
does, however, further support the conclusion that the grievant added excessive water to the
Thus, the record demonstrates that the grievant intentionally added excessive amounts of
the load without the contractor's permission in violation of a rule he clearly understood.
With respect to the penalty of discharge, the Union contends that discharge is too
Here, the grievant is an experienced driver who intentionally added an excess amount of
water to a
load of concrete which resulted in a bad wall which the Company had to pay to have
replaced and this harmed not only the Company's relation with Smith but Smith's with his
homeowner. The grievant did not admit he made a mistake or error in judgment but simply
he did anything wrong. Under these circumstances, discharge is warranted and appropriate.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
1. The grievance is not barred by any mutual settlement.
2. The grievance was timely appealed to arbitration.
3. The Company had just cause to terminate the grievant, Bruce Edington, and
grievance is denied.
Dated at Madison, Wisconsin, this 13th day of July, 1998.
Lionel L. Crowley, Arbitrator