BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS UNION LOCAL NO. 695
ASSOCIATED MILK PRODUCERS, INC.
Teamsters Union Local No. 695, herein the Union, and Associated Milk Producers,
herein the Company, jointly requested the Wisconsin Employment Relations Commission to
the undersigned as an arbitrator to hear and to decide a dispute between the parties. The
was designated as the arbitrator. The parties waived the twenty-one day period in Article 3
issuance of an award. Hearing was held in Portage, Wisconsin, on July 16, 1998. A
transcript of the hearing was not made. The parties completed the filing of post-hearing
August 26, 1998.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated to the following issues:
1. Was the grievant (ET) properly suspended or should
he receive pay and benefits for any
or all of the period between September 24 through November 7, 1997?
2. Was the grievant (ET) terminated on December 10,
1997, in accordance with the contract?
The grievant was hired by the Company as a temporary employe on May 27, 1997.
June 30 the grievant was hired by the Company as a full-time employe with a seniority date
1/ All other dates herein refer to 1997,
unless otherwise specified.
The grievant was absent on June 27, during which time he was still a temporary
After becoming a full-time employe, the grievant was absent on July 24 and August 13. On
20, the grievant was given a verbal warning for the absence on August 13. On September 8,
grievant was given a written warning for being absent on August 19. The grievant was
half point for being absent for part of his scheduled shift on September 16. On September
grievant left work prior to the end of his shift because he was sick. The grievant worked for
hours on September 23, and then went home early again because he was still sick. On
the Company instructed the grievant's supervisor to give the grievant a three-day suspension
leaving work early on the previous day. However, the grievant had already left work due to
illness before he could be informed of the suspension. On September 24, the Company
the grievant, in addition to issuing the written three-day suspension notice to him. The
a written grievance on July 29, alleging that the Company had not counted his absences
The Company denied the grievance in writing on October 3. Said denial listed the absences
the grievant had been assessed points under the attendance policy, as follows:
6-27 1 point
7-24 1 point
8-13/14 1 point
8-19 1 point
9-16 2 point
9-22 1 point
9-23 1 point
At the monthly Union/Management meeting on October 30, the Union raised the
grievant's discharge and argued that the Company had incorrectly calculated the points for
grievant. The Company refused to discuss the grievance on the basis that it was not a proper
for the meeting. On October 31, the Union sent a letter to the Company setting forth what it
to be the errors in the Company's calculations of the grievant's attendance record. On
3, the Company contacted the Union's business agent and requested a meeting to discuss the
grievance. The Company and the Union met on November 6 to discuss the grievant's
At that meeting the Company agreed to make the following changes in the grievant's
record: to not count June 27 as an absence under the attendance policy; to remove the 2
assessed for September 16, because the grievant had worked his full shift on said date; and to
September 22 and 23 as one absence, rather than as separate absences. Those changes would
the grievant would have only four absences on his record, which amount calls for a written
On that basis, the Company agreed to reinstate the grievant. However, the parties did not
the issue of whether the grievant should receive any back pay for the period of September 24
November 7. The grievant returned to work on November 7.
The grievant was scheduled to work a four hour shift on Sunday, November 30, from
a.m. to 1:00 p.m. The grievant neither reported to work nor called in to report his absence
p.m. when the plant closed for the day. The grievant testified that he did try to call the plant
1:30 p.m. when he returned to Portage, but there was no answer. On December 2, the
informed the grievant that he would be suspended for three days, which suspension would
December 3, 4 and 5, because his absence on November 30 was his fifth absence in six
grievant argued that November 30 should be considered a half absence, rather than a full
since he had missed only four hours of work. The Company's Personnel Director, Tom
testified that he called the grievant at about 10:00 a.m. on December 3, and informed him
absence on November 30 would be counted as a half absence, that the suspension was being
withdrawn and, therefore, that the grievant should report to work on the second shift on that
December 3. The grievant testified that he did not receive any telephone call from the
December 3. The grievant did not report to work on December 3, 4 or 5, but he did work
Saturday, December 6, and Sunday, December 7. On Monday, December 8, Amend learned
the grievant's supervisor that the grievant had worked on December 6 and 7. When the
reported to work for the afternoon shift on December 8, Amend informed him that he was
discharged for being absent from work without notification on December 3, 4 and 5.
ARTICLE I -- RECOGNITION
The Employer recognizes the Union as the sole
and exclusive bargaining agent for all
full-time and regular part-time production and maintenance employees of the Employer at its
Wisconsin plant, including truck
drivers and laboratory technicians; excluding temporary
employees, office clericals,
management employees, professional employees, guards and supervisors as defined in the
. . .
ARTICLE VI B SENIORITY
. . .
Section Five. Termination of Seniority.
Seniority shall accrue from the date of last
hiring by the Employer.
An employee's seniority will
be terminated for any of the following reasons:
. . .
(d) If he is absent for a period of
two (2) working days without notifying the Employer.
. . .
ARTICLE XVI B MANAGEMENT RIGHTS
Except as specifically
limited by the express provisions of this Agreement, the
management of the plant, including but not limited to, the right to hire, promote, demote,
working forces, schedule employees, discharge for cause, maintain discipline, require
reasonable plant rules and regulations, maintain efficiency of employees, and to determine
equipment utilized, days and hours of production and the exclusive functions of management.
. . .
ARTICLE XX B ATTENDANCE POLICY
. . .
II. Disciplinary Policy.
(a) There will be no discipline for
the first two absences in any rolling six month period.
3rd Absence B Verbal Warning
4th Absence B
5th Absence B
Suspenison up to 3 days
6th Absence B
Discipline (suspension) up to and including discharge
Termination can occur if any
employee is suspended three (3) times in any rolling two (2) year
(b) An absence is defined as any
one or more consecutive work days absent. An absence of
5 or more hours in a work day is considered an absence. Late or absence of 10 minutes to 5
is considered a one-half absence. Fully paid time off, i.e. vacation, holiday, funeral, jury is
(c) Pre-scheduled short days or
short weeks do not count as an absence. This includes pre-scheduled, pre-approved time off
for doctor appointments or court appearances required by
(d) Management (Personnel
Department) may take mitigating circumstances into account.
. . .
POSITION OF THE
When calculating the grievant's absences, the Company should not have counted June
since he was a temporary employe at that time and was not a member of the bargaining unit.
Company was in error in assessing the grievant a half point for September 16, since the
at work for his entire shift on that date. The grievant should have been assessed only one
his absences on September 22 and 23, since the contract clearly states that two consecutive
will count as only one absence. Thus, the Company should have assessed only four absences
grievant as of September 24. Because it took the Company seven weeks to correct its
grievant's suspension should be reduced to a written warning and he should be made whole
wages during his suspension.
The Company did not have just cause to terminate the grievant on December 10.
grievant missed only four hours of work on November 30 and the contract is clear that an
of less than five hours is assessed only a half point. The Company failed to show that it
grievant that his suspension had been rescinded. Amend did not document the revocation,
though he had documented all the prior disciplinary actions involving the grievant. Amend
send a letter to confirm the phone call rescinding the suspension. Neither did Amend call the
on December 3 to find out where he was. Although Amend thought the grievant had quit, he
either issue any paperwork to change the
grievant's status or pull his time card. The exhibits relating to the telephone records
submitted by the Company fail to show the results of the search. The grievant should be
with full back pay.
POSITION OF THE COMPANY
The Company asserts that an absence during an employe's employment as a
employe can be counted because a temporary employe is covered by the contract and is
by the Union. Nothing in the contract excludes temporary employes from the application of
attendance policy. The Company has always counted absences occurring during an
temporary and/or probationary status under the attendance policy without any prior
objections. Advance notice of an absence does not excuse the absence. The Company is not
to consider mitigating circumstances.
The Company agreed to bring the grievant back to work without any admission of
but it did not agree to give him any back pay. The Union was responsible for the delay in
the matter to a conclusion. The Company's written response to the grievance was given to
Union steward on October 3. On October 13, Amend contacted the Union steward about the
grievance. The steward told Amend that the Company's response to the grievance had been
forwarded to the Union's Business Agent. The Business Agent, Wayne Schultz, did not
Company about the grievance until the regular Union/Management meeting on October 30.
On November 30, the grievant chose deer hunting over work and either failed to call
called in after the end of his scheduled shift, even though he knew he was in a precarious
because of his attendance record. The shift on November 30 was one work day and, thus,
it was one "work day's absence," which would justify a suspension for the fifth absence.
could be argued that the absence on November 30 was less than five hours and should be a
assessment, the Company agreed to give the grievant a break by reducing the full absence to
absence and to rescind the suspension.
Amend, in the presence of Supervisor James Clemmons, telephoned the grievant at
in the morning of December 3 and informed him that the suspension was canceled and that
report for work that afternoon. The Company had no reason to fabricate a telephone call and
attempted, without success, to obtain records from the telephone company to show that such
was made. The grievant was a short term employe who continuously looked for loop holes
Company's policies. The Company did have just cause to terminate the grievant.
It is clear from the evidence that the Company and the Union, at their meeting on
6, reached an agreement to have the grievant return to work on the following day.
is no evidence to contradict Amend's testimony that the parties failed to reach agreement on
whether or not the grievant would receive any back pay for the period of September 25 to
7. Rather, the back pay issue was left unresolved.
The Union accurately asserts that temporary employes are specifically excluded from
bargaining unit by the language of the recognition clause. Conversely, the Company
that the contractual attendance policy does not specifically exclude absences occurring while
permanent employe was in temporary status.
The Company submitted the disciplinary records of two employes who were
becoming full-time employes for absences including one absence during the time the
working as temporary employes. One of those employes, Leota Zabloudil, received a verbal
for three absences, one of which occurred while Zabloudil was a temporary employe. Later,
Zabloudil received a written warning for absences which also included the absence while she
temporary employe. The other employe, Nicole Behnke, received a verbal warning for
which included absences while she was a temporary employe. Thus, while it appears that the
Company has a history of including absences incurred as a temporary employe when
absences of a permanent employe for disciplinary actions, there is no evidence to show that
was aware either of those instances or of the Company's policy. Accordingly, it was
the parties at their meeting on November 7 to agree to exclude the absence of June 27 in
allow the grievant to return to work, even if the parties were not in agreement on what the
would be for future cases. The evidence does not establish that in so agreeing the Company
the Union's position that in the future absences incurred during employment as a temporary
would not be counted under the attendance policy when that employe became a permanent
Instead, the Company agreed to not count the absence of June 27 in this particular situation,
the grievant's attendance record would be reduced to the written warning step, which would
the grievant to return to work.
September 16 initially was counted as an absence only because of an error in
timecard. In fact, the grievant had worked his full shift on said date. However, whether or
September 16 was counted would have failed to make any difference in the level of discipline
to the grievant, since the date was counted as a one-half absence.
There was a basis for assessing a total of only one point for the grievant's absence on
September 22 and partial absence on September 23, rather than assessing a separate point for
of those dates, because both absences resulted from the same illness. Article XX specifies
absence on consecutive work days is to be counted as one absence. Said provision also
an absence of five or more hours is a full absence, while less than five hours is a one-half
That language is not clear on how to count those cases where an employe either missed
work because of illness or went home ill on one day and returned to work the next
day, but then went
home ill prior to the end of the employe's shift. Neither did the parties present any evidence
situations of such a nature. Since the language is ambiguous and could be given the
of either party, the Company's agreement to count September 23 and 24 as one absence,
two absences, does seem to have been a concession to resolve a grievance.
The agreement of the Company to compromise its positions and to allow the grievant
return to work on November 7 did not render those positions to be without basis. As noted
the language of Article XX is open to alternate interpretations. Therefore, the undersigned
believe the Company should be required to give the grievant back pay and benefits for the
September 24 through November 6.
The undersigned now turns to the issue of whether the grievant was terminated on
10, in accordance with the contract. The determination of this issue turns on whether the
was notified by the Company that his suspension was revoked and that he should return to
December 3 on his regular second shift, since the fact that the grievant did not report for
December 3, 4 and 5 is undisputed.
Amend testified that he spoke to the grievant on the telephone in the morning of
3. The grievant testified that, although he had been home during the morning of December
3, he did
not receive a telephone call from either Amend or any other management employe of the
on that date. Clemmons testified that he was with Amend when Amend telephoned the
December 3 and that, although the conversation between the grievant and Amend was not on
speaker phone, he did hear Amend both use the grievant's first name in addressing the other
and twice say that the grievant should report for work that afternoon.
As of December 8, Amend had neither sent a letter to the grievant confirming the
of his suspension nor made any written record of the revocation and the alleged phone call.
Union believes such failure supports the grievant's testimony that he did not receive a phone
from Amend. If the record showed such a delay to be unusual, the Union's argument might
been more persuasive. However, the exhibits show that Amend often did not initiate
action or make a written record of such action for several days after the event occurred, even
instances involving the grievant. The verbal warning given to the grievant was dated a week
violation occurred. The written warning given to the grievant was dated over two weeks
Further, the Union points to the fact that Clemmons allowed the grievant to work on
December 6 and 7 to show that the Company had not terminated his employment.
been a supervisor for about one month at that time. He testified that he was the only
the grievant's shift and that he did not know what to do when the grievant reported to work,
decided to wait and talk to Amend on Monday, December 8. Such a reaction by Clemmons,
a new and inexperienced supervisor, is not surprising and fails to establish that the grievant
received a phone call from Amend.
The documents submitted by the Company, relative to a request of the telephone
for records of local phone calls made from the Company on December 3, do not contain any
information to show whether Amend did or did not call the grievant.
The undersigned concludes that Amend did phone the grievant in the morning of
3 and tell him the suspension was being rescinded and he should report to work that
scheduled. The grievant, by failing to report for work on December 3, 4 and 5 without
Company of his absence, provided the Company with cause to terminate his employment.
was not eliminated by the fact that the grievant worked on Saturday and Sunday, December 6
The instant matter differs from the situation in the arbitration case cited by the
Anheuser-Busch, Inc., 108 LA 813. In that case the grievant had not been told to report to
after being told he was suspended. In the instant matter it has been concluded that the
told the suspension was being rescinded and that he should report to work.
Based on the foregoing, the undersigned enters the following
That the grievant is not entitled to any pay or benefits for the period of September 24
November 6, 1997; that the termination of the grievant on December 10, 1997, was in
with the contract; and, that the grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 23rd day of October, 1998.
Douglas V. Knudson, Arbitrator