BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL UNION NO. 695,
AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF
SILGAN CONTAINERS CORPORATION
FOR ITS MENOMONEE FALLS, WISCONSIN, CAN
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C.,
by Attorney Frederick Perillo,
1555 North RiverCenter Drive, Suite 202, P.O. Box 12993, Milwaukee, Wisconsin 53212,
on behalf of Local No. 695, affiliated with the International Brotherhood of Teamsters,
below as the Union.
Foley & Lardner, by Attorney
Thomas C. Pence, Firstar Center, Suite 3800, 777 East Wisconsin
Avenue, Milwaukee, Wisconsin 53202-5367, appearing on behalf of Silgan Containers
for its Menomonee Falls, Wisconsin, Can Plant, referred to below as the Company.
The Union and the Company are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The parties jointly requested that the Wisconsin Employment Relations
Commission appoint an Arbitrator to resolve a grievance filed on behalf of James Lortie,
referred to below as the Grievant. The Commission appointed Richard B. McLaughlin, a
of its staff. Hearing on the matter was held on August 20, 1998, in Germantown,
hearing was not transcribed. The parties filed briefs by September 16, 1998.
The parties stipulated the following issues for decision:
Was there just cause for the discharge of the Grievant?
If not, what is the appropriate remedy?
ARTICLE 6 DISCHARGE PROCEDURE
6.1 No employee shall be discharged or
suspended except for dishonesty, drunkenness, being
under the influence of or in possession of illegal drugs, or the illegal use of dangerous drugs,
just cause. At least one (1) warning notice shall be given in writing to the Union and to the
before discharge or suspension can be made except in cases of dishonesty, drunkenness,
the influence of or in possession of illegal drugs, or the illegal use of dangerous drugs, or
serious offenses as calling for no advance notice of discharge. . . .
6.2 . . . Should it be found that the
employee has been unjustly discharged or suspended, he shall
be reinstated and compensated for the time lost at his regular rate of pay.
The grievance questions the Grievant's termination. Roger Gato, the Company's
Manager, issued the Grievant a letter of termination dated March 11, 1998 (references to
to 1998 unless otherwise specified), which states:
On the afternoon of 3/8/98, you were observed placing Company
property in your vehicle. You
closed the vehicle and proceeded to return to you (sic) work area. Your supervisor, Mr.
Waite, asked you to go back to your vehicle and return the property to the Company. This
is a direct
violation of Article 6.1 of the Bargaining Agreement. It is also a violation of the Major
Conduct that are posted at the employee entrance. Your employment . . . is hereby
theft of Company property, effective 3/11/98.
The "Major Rules of Conduct" referred to in Gato's letter read thus:
(The following list identifies major categories of unacceptable
behavior which is prohibited at the
work place and violations generally warrant a written warning, suspension or immediate
. . .
- Theft, willful abuse or destruction of Company
property, tools or equipment or that of other
. . .
These major rules are part of a document headed "PLANT WORK RULES AND
CONDUCT." Among the explanatory paragraphs of that document is the following:
On a case by case basis and with regards to specific
circumstances, serious acts of misconduct
may be cause for a written warning notice, immediate suspension or discharge on the first
However, for violations of general rules under normal circumstances progressive discipline
applied. . . .
The grievance form alleges the discharge is unjust and cites Section 6.2 as the basis for
The Company's Menomonee Falls plant fabricates coiled steel into coated or uncoated
that can then be fabricated into cans and can ends by food processors. The Grievant worked
Coating Department, where epoxy or enamel coatings are applied to sheets of metal plate.
portion of the Coating Department relevant to the events of March 8 includes four separate
lines at which sheets of steel are fed through machines that apply, then cure the coatings.
Grievant, on March 8, worked as a feeder on one end of one of these four lines. The
machine was known as Coater Line 1. Immediately south of that machine was Coater Line
Grievant's wife worked as the feeder for that line on March 8. Immediately south of her line
Coater Line 3, which was operated on March 8 by Ken Lindner. Immediately south of his
Coater Line 4, which was operated on March 8 by Bob Dembiec. To the east of Coater
Lines 3 and
4 is a number of offices, including the Coating Department Office. The Supervisor of the
Department on March 8 was Howard Waite. South of Waite's office are a series of loading
To the east of the loading docks is a large, enclosed truck unloading area. The first three of
loading docks, viewed from Waite's office, are roughly four and one-half feet above the
of the truck unloading area. The furthest loading dock from Waite's
office extends into the truck unloading area. Adjacent to that platform is a dumpster
used by the
operators of lines 1 through 4. To the south of that platform is a stairway leading down into
known as the Compressor Area. Each of the loading docks has a doorway between the
Department and the truck unloading area. On the east edge of the truck unloading area are
doorways that can be used to shut the truck unloading area off from the outside.
To the south of Coater Lines 1 4 is an open area used to store sheets of steel.
separate the stored rows of steel plate, which in March, were ten to twelve feet high.
sheets of steel, to the south and west of the Coating Department, is an employee break room,
Press Department and the Machine Shop. There is a dumpster located near the Machine
Company assembles air hoses necessary to its manufacturing processes in the Machine Shop.
March was not a busy time for the Company, but it had decided to implement
operation on twelve hour shifts to build inventory for the then upcoming canning season.
shift ran from 6:00 a.m. until 6:00 p.m. On March 8, all four coater lines were running.
Feeder was given four breaks during their twelve hour shift. A Utility Operator was used to
each Coater Feeder to permit them to take their four breaks. Breaks were thus staggered
the shift to permit the Utility Operator to cover each coater line.
As the day shift progressed on March 8, the weather worsened and the Company
east bay doors to permit employes to move their vehicles inside the plant within the truck
area. At least Lindner, Waite and the Grievant took advantage of this opportunity. The
relevant here were all parked to the east of the loading dock closest to Waite's office.
Sometime toward the end of the day shift, probably around 4:30 p.m., Waite stood
Coater Lines 3 and 4, speaking with Dembiec and Lindner. The Grievant, who had been on
returned from the break room carrying at least his lunch box, a box of paper towels and a
of either air hose or electrical conduit.
Air hose is of a smaller diameter than conduit and is more flexible. Each end of a
coil of air hose has a bright silver colored coupling. The conduit used by the Company is
air hose and ribbed. Conduit can also have couplings on each end. The couplings are,
shorter and wider than air hose couplings. The two are somewhat similar in appearance, but
distinguishable if clearly seen. The paper towels used by the Company come in boxes of one
towels. The boxes are roughly five by five by twelve inches. A box of towels is worth
A four to six foot coil of air hose is worth perhaps $30. The Company assembles air hoses
necessary for its manufacturing processes, but cannot keep a current inventory of them, due
constant use and replacement. The Grievant and some other Coater Feeders use the paper
clean themselves, their equipment and steel plate during the coating process. Certain
employes to take material thrown into dumpsters in the plant. Some foremen expect
seek permission before salvaging thrown away material, others
do not. The Company will also permit employes to buy non-waste material or tools.
for example, has purchased a mallet from the Company. Employes who wish to use
material or tools seek permission to personally use or to buy such items.
As the Grievant came into the Coating Department from the break room, he headed
toward Waite, Dembiec and Lindner. Waite perceived the Grievant to deviate from this
to shift what he saw as air hose and a box of towels. The Grievant then proceeded east
farthest loading dock from Waite. He walked through the door to the loading dock, then
stairway to the south, into the Compressor Area. Waite was convinced the Grievant was
him, and walked down the loading dock area to keep the Grievant in view. Waite paralleled
Grievant's path as the Grievant walked east across the Compressor Area, then north past the
loading dock and into the truck unloading area.
The Grievant walked to his truck, pausing at the rear of the truck. Waite ultimately
him, telling him to bring the paper towels to his office. The Grievant did so, then returned
Line 1. While at Coater Line 1, Waite approached the Grievant, mentioned the incident,
returned to his duties. The Grievant remained on duty for the balance of his shift. Waite
did not ask
the Grievant to return the air hose or conduit, and did not inspect the Grievant's truck.
At the end of his shift, Waite prepared a memorandum for the review of his
. . .
1. This afternoon, I personally observed you walk to your Dodge
Truck and place the following
contents into the rear truck bed area of your vehicle and then close the glass door of your
The items were:
1 BOX, 100 count Multi-purpose wipers, 1-ply, 153 SQ.
IN., Multi Master
1 gray colored air hose with fittings . . . N/A
2. At that moment, I confronted you with the following witnesses
to my conversation and
R. Dembiec, Coater Feeder, Coater Line 4.
K. Lindner, Coater Feeder, Coater Line 3.
I watched you place the items in the back of your truck and then
you closed the glass door of
your truck cap. You walked away from your vehicle. I advised you to go back to the truck,
the items from your vehicle, and return them to the rightful owner (SILGAN). You
a gesture of shrugging your
shoulders and saying "What?". As I stood in the dock doorway
and looked at you, I pointed to
the back of your vehicle and motioned you back to your vehicle. Only then did you return to
truck and open your truck cap door. I watched you remove the unopened box of wipes from
vehicle and carry it back into the building. You carried the box to my office and left it
There is no disputing this action as both of the above mentioned
witnesses and I, as well as others
throughout the Coating Department office area observed you. You then walked to your
Feeder Position at Coater Line 1 and continued to work through the rest of your shift. I
walked over to you and told you privately, that against your better judgment, the use of
property for personal gain is wrong. I did this in hopes of you returning the air line that you
possession of in your vehicle. I never saw you return the second item and it was never
placed in my
Waite took a draft of this memo home with him to put into final
form for his supervisors.
Waite was not scheduled to work on Monday, March 9, but came in at roughly 5:30
report the incident to his immediate supervisor, Tim Dearth. Dearth determined the incident
be reported to Gato. After a thirty to forty minute meeting, Gato determined that the
paragraphs should be added to Waite's memo:
3. As a result of your illegal acts, I advised my superiors of your
theft of company property. In
accordance with your current Union Agreement, ARTICLE 6.1: No employee shall be
or suspended except for dishonesty, drunkenness, being under the influence of or in
illegal drugs, or the illegal use of dangerous drugs or other just cause. At least one (1)
shall be given in writing to the Union and to the employee before discharge or suspension
made except in cases of dishonesty, drunkenness, being under the
influence or in the possession of
illegal drugs, or the illegal use of dangerous drugs, or other serious offenses as calling for no
notice of discharge., et all. (sic)
4. I believe your removal of company
property to be a dishonest act in violation with Article 6
of your Union Agreement. Therefor, (sic) I will forward this matter to Tim Dearth for
disciplinary action and review.
Gato then discussed the matter with the Company's Plant
Superintendent, David McCarren, and
advised the Union's Chief Steward of the incident. Gato and McCarren decided the Grievant
be suspended while the matter could be investigated. The Grievant was not scheduled to
work on March 9 or March 10. He was offered, but declined the opportunity to work
March 9. Gato called him some time on March 9 and asked him to report for an interview
At 9:30 a.m. on March 10, the Grievant, a Union Steward, Gato, McCarren and
to review the incident. Waite read his written summary of the incident. The Grievant
towels and denied that he had taken an air hose. The Grievant denied he had towels,
indicated he put
the towels in his truck, then indicated he could not remember doing so, then indicated he put
on the ground next to his truck. He consistently denied stealing anything. He did not
or speaking with his wife while he walked to his truck carrying the towels and the air hose
After the meeting, Gato, McCarren and David Rubardt, the Company's Human
Director, discussed the incident and the meeting. At this discussion, the Company
discharge the Grievant.
The background set forth above is undisputed. The balance of the background is best
forth as an overview of witness testimony.
Howard E. Waite
Waite started work for the Company in July of 1988 as a management trainee. He
his training in December of 1997, and became a Supervisor in the Coating Department in
Waite noted he was speaking with Lindner and Dembiec near the east end of Line 4
4:30 p.m. on March 8, when he observed the Grievant walk around the far end of the steel
storage area. Waite estimated the Grievant was 26 to 28 feet from him, walking toward him.
saw a lunch pail in the Grievant's left hand, a white paper towel box under his right arm and
hose in his right hand. As the Grievant rounded the plate, he shifted the paper towel box
right arm to his left. After this movement, the Grievant moved perhaps four paces toward
then shifted his direction east to head back toward the doorway to the loading dock adjacent
Waite concluded the Grievant was carrying air hose since its couplings were a shiny
the line was flexible enough to bounce as the Grievant carried it.
The Grievant then proceeded onto the loading dock and down the cat walk into the
Compressor Area. Waite thought the Grievant's behavior was odd, and he walked down to
doorway of the loading area the Grievant had walked into. Waite then saw the Grievant
through the Compressor Area. Waite paralleled the Grievant's path from behind the
doorways to the
loading docks. As he did so, he was able to see the Grievant walk north through the truck
unloading area to his own pickup truck, which had been backed into the truck
unloading area. The
Grievant proceeded along the driver's side of his truck to the back of the truck bed. Waite
stopped in the doorway to the loading dock immediately south of his office. He positioned
however, out of the Grievant's line of sight into the plant. He watched the Grievant put
lunch box, open the shell of his truck bed, then pull the tailgate down to permit him to put
the air hose
and towel box into the truck. The Grievant sat on his tailgate for a while, manipulating
then closed the tailgate and proceeded to the driver's door of the truck. After this, the
walked back alongside his truck, heading for a stairwell which led back into the plant.
Waite then walked into the doorway of the loading dock, and shouted to the Grievant,
was walking up the stairwell, empty-handed. Waite called "Hey!" The Grievant looked
shrugged his shoulders, and responded "What?" Waite then called, "You know what." The
hesitated, then Waite told him to go back to his truck and bring the items he had placed in it.
Grievant returned to his truck and came back carrying a box of paper towels. The Grievant
Waite's office, then returned to his duties on Coater Line 1. Waite approached the Grievant
east end of Coater Line 1 and stated that he did not condone the Grievant's behavior, that the
was not done, and that misappropriation of Company property was wrong. He did not use
"steal" or "theft" during this conversation.
He did not, at any time on March 8, ask the Grievant to return the air hose. He
hoped the Grievant would respond by doing the right thing and returning the hose. Beyond
the incident, Waite played no role in the decision to discharge the Grievant.
Waite acknowledged Coater/Feeders can legitimately use paper towels to clean
or their equipment. He maintains storage of such towels in his office for this purpose,
further noted Lindner and Dembiec did not bring any of the Grievant's conduct to his
Gato stated that he determined the Grievant should be discharged. From his
is too serious to ignore and the Company must maintain a no tolerance policy toward theft of
type. The meeting of March 10 convinced him that Waite's account of the incident was
than the Grievant's, and the only reason the Grievant was not able to steal the towels was
timely intervention. He detailed the basis for this conclusion by noting that Coater/Feeders
get towels from Waite's office; that the Grievant altered his route from the break area,
sixty feet to his walk to his truck; that Waite observed the Grievant putting Company
his truck; and that the Grievant was unable to offer a consistent account of his behavior on
His demeanor during the March 10 interview was, in fact, "somewhat defiant."
Gato noted the Company does not have a formal policy on employe use of scrap, but
believed employes were expected to ask for permission before taking material from the plant,
if the material had been placed in a dumpster. That the Grievant did not take any Company
off of the plant site was, to Gato, irrelevant. The Grievant's intent to steal, and the
legitimate interest in sanctioning such behavior made the removal of the items from the plant
irrelevant. He noted this is the first time the Menomonee Falls Plant has had to confront
The specifics of McCarren's and Gato's testimony regarding the March 10 meeting
slightly, but only on minor points. McCarren noted the inconsistency of the Grievant's
March 10 as a significant point to all of the Company's managers. He also noted the
he was nervous on March 8 because other employes were making fun of him.
Dembiec testified under subpoena. He stated he saw the incident from the time the
walked around the plate storage area. When Dembiec first saw him, the Grievant was
feet away, carrying his lunch box and a box of paper towels on one side and carrying a coil
sort on the other. Dembiec thought Waite first saw the Grievant when he was walking down
stairs into the Compressor Area. As the Grievant walked through the loading dock doorway,
walked from Coater Line 2 to the same doorway to dump some trash in the dumpster. He
heard Waite call "Hey!" to the Grievant. At this point, he and Lindner called "thief" a
times, then quit. He noted they quit when it became apparent the incident was no joke.
Dembiec saw the Grievant open the rear of his truck, but noted he could not see
When the Grievant threw the box of paper towels onto Waite's desk, he then left the office,
Waite the bird while Waite's back was turned, and returned to Coater Line 1.
Dembiec noted the Grievant routinely goes to his truck after taking his break. The
always parks his truck in the truck unloading area if given the opportunity, and usually goes
the south loading dock doorway to get there. Dembiec did not get the impression the
avoiding him by selecting the route he took on March 8. He noted that he felt employes
scrap material, but should ask permission to do so.
Lortie noted she took some scrap material to the dumpster adjacent to the loading
is next to the Compressor Area. After she had dumped the pail, she saw the Grievant
the doorway leading to the stairway that connects the Compressor Area to the loading dock.
asked him what he was going to do with the conduit, and he responded that he expected to
use it on
his air compressor. She said Waite, Lindner and Dembiec were talking and sometimes
together near the end of Coater Line 4 when she left her work area and when she returned to
did not think they were laughing at the Grievant. She acknowledged that the Grievant is
regarding heckling and has a temper.
Grosklaus stated that her understanding of Company policy is that material thrown
dumpster can be taken, but that permission is required to take any non-scrap item from the
could not recall Doris Lortie being mentioned at any grievance meeting she attended as
Steward. She noted that the Grievant stated, at the grievance meetings she attended, that he
the box of towels on the rear bumper of his truck, and returned to get them after Waite
The Grievant stated that he preferred to use paper towels to the rags currently
the Company, especially during the quality control process that uses copper sulfate.
He noted that on March 8 he pulled his truck inside the truck unloading area. There
nothing unusual in his work day until he took his break around 4:30 p.m. He took his final
the shift in the break room, where he had a snack and read alone. Sometime around 4:50
left the break room carrying his lunch box and a thermos. He got towels in the Press
As he passed the Machine Shop, he noted a length of conduit, which had been placed in the
several days before. Thinking it was scrap, he decided he would take it for use with his air
compressor. He placed the coil of conduit on his left wrist while he carried his thermos in
hand. He had the box of paper towels under his left arm, while carrying his lunch box in his
hand. He proceeded across the plate storage area. He could hear Waite, Lindner and
laughing in the background as he approached the loading dock area. He saw his wife
emptying a pail
into the dumpster. She asked him why he had the conduit, and he explained what he hoped
with it. He then proceeded to his truck.
The Grievant noted that he proceeded on the same route he always took to his truck.
this route to avoid unnecessary contact with other employes. He did not believe that
he was being heckled on March 8, but had, through past experience, learned he could
with others. There were, he stated, four vehicles parked in the truck unloading area. He
the back of his truck, placing the towels and the conduit on the back bumper and placing the
and lunch box on the paved floor. He then opened the tailgate, putting the conduit in the
After that, he went to the front door of the driver's side of his truck, putting his thermos and
box in the cab. At that point, Waite yelled at him. He affirmed the accuracy of Waite's
regarding their verbal exchange. He carried the box of towels past Waite and Lindner, and
them in Waite's office. He did not think Dembiec was with them at that time. He denied
the bird" to Waite, but acknowledged he was quite upset with Waite. Shortly after he
Coater Line 1, Waite grabbed him by the shoulder and said something to the effect that
Waite did not
condone stealing or that if the Grievant wished to steal, he should be more discreet about it.
The Grievant acknowledged that, during the March 10 meeting, he offered
accounts for his behavior on March 8. He noted he could only roughly recall what he said at
Until Gato phoned him on March 9, he had no idea his job was in jeopardy. Gato was the
supervisor who directly accused him of theft. The meeting of March 10 clearly concerned
of his job, and he became so nervous he could not function well. He did not challenge
actions on March 8, because he feared any response on his part could be considered
or might become insubordinate if he confronted Waite. He noted he was never asked by the
Company to return the air hose, which he brought to the arbitration hearing.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Company's Brief
After a review of the evidence, the Company contends that the Grievant "stole
the Company" and "was caught red handed." Under arbitral precedent, theft constitutes
for the "capital offense" of discharge. That the items stolen may be of little value cannot
theft is a fundamental act of dishonesty warranting the termination of the employment
Nor can the Union's arguments alter these considerations. If burden of proof can be
considered at issue, then "the better authority" under arbitral precedent "suggest that proof
clear and convincing is sufficient" in cases involving moral turpitude. More
significantly here, the
burden of proof is an academic point since "there is no reasonable doubt (the reasonable
standard) or significant doubt (the clear and convincing standard) that (the Grievant)
The implausibility of the Grievant's account is amply established by the evidence.
Grievant's contention that he mistakenly left the paper towels by his truck is belied by the
he obtained the towels far from the storage area for his work station. Beyond this, the
circuitous route through the plant demonstrates his intent to steal. His emotional and his
reactions to Waite's accusation demonstrate the conduct of a man seeking to avoid the truth.
can the Grievant's assertion that the air hose was a scrap piece of conduit be accepted.
are visibly different. Credible testimony from a co-worker contradicts the Grievant's wife's
corroborative testimony. Even if the Grievant's account concerning the conduit could be
his theft of the paper towels is sufficient to warrant discharge.
That Waite discovered the Grievant's theft before the Grievant left Company property
no consequence. The intent to steal is the basis for discipline. To conclude that paper
secretively into an employe's truck are not actually stolen until the truck passes beyond
property is meaningless hair-splitting.
That Waite could have more thoroughly investigated the circumstances of the theft is
irrelevant. That Waite "told the story of his investigation warts and all" actually
credibility of his story." Nor can the Grievant credibly claim that the conduct of co-workers
him to behave oddly on March 8. The testimony "from all witnesses" establishes that the
was not mistreated that evening.
That Company rules authorize discipline or discharge for theft cannot be read to
sanction less than termination. No employe can credibly claim surprise that theft would be
by discharge. The facts are even more egregious here "since even now (the Grievant)
lie about his conduct on March 8, 1998."
Viewing the record as a whole, the Company concludes that "the grievance should be
The Union's Brief
The Union initially contends that "(b)ecause the charge . . . is theft, the Company
not only the burden to prove the offense but the obligation to establish it by . . . evidence
reasonable doubt." Arbitral precedent establishes this and that "(t)heft is composed of action
intent." If either element is missing, the Union argues that the discharge must be reversed.
The Union contends that to prove "the 'action' prongs of the offense, both taking
asportation must be proven." The element of intent, the Union argues, should not
be implied "based
upon a purely circumstantial case." Each element must be demonstrated beyond a
reasonable doubt, which means that "(t)he Arbitrator need not find that (the Grievant)
but only that there is some other credible explanation for the facts than that presented by the
The evidence will not establish that the Grievant attempted to steal the paper towels.
element of intent "is missing." The Grievant did not try to remove the towels from the
if it is assumed he put the towels in his truck, "there is still no theft, because the loading
dock is inside
the employer's building." Established arbitral precedent demonstrates theft cannot be found
facts. That the Grievant had a legitimate use for the towels further underscores the
credibly finding the intent to steal. A detailed review of the testimony establishes, according
Union, that "Waite's account is not credible," and that the Grievant did no more than forget
towels when he became flustered at Waite's conduct. Even if Waite's account could be
credible, the Union argues that "the Company still failed to meet its burden of proof." That
towels were momentarily inside the Grievant's truck "is the entire
circumstantial case for intent to
steal." That case "is not convincing proof even if believed." The Grievant has paid for
property in the past and has no demonstrated record of dishonesty.
The evidence is even weaker regarding the air hose, since "the Company cannot even
that a piece of hose is missing . . . (and) (t)here is literally no corpus
delicti." Waite's testimony that
he saw the Grievant carry hose, not conduit, lacks credibility, and Dembiec did not see the
carry hose or conduit. That the Grievant produced the conduit he took from the trash bin is
evidence of the weakness of the Company's case. The assertion that the Grievant brought to
hearing a piece of conduit not taken from the trash bin "is a weak and pathetic contention."
Grievant freely admits he took the conduit from the trash bin, and the evidence establishes
Company does not discourage and actually encourages such conduct.
Viewing the record as a whole, the Union concludes that there "was no just cause for
discharge." The most charitable view of the Company's case would indicate the Grievant's
was a minor one of protocol and did not rise to the level of theft." Since the Company's
not provide for discharge for theft, but only a warning, suspension or discharge, the
exercise his discretion to reinstate (the Grievant)." The Union concludes the Grievant
reinstated and made whole."
The stipulated issue is whether the Company had just cause to discharge the Grievant.
Because the parties have not stipulated the standards defining just cause, the analysis must, in
opinion, address two elements. First, the Company must establish the existence of conduct
Grievant in which it has a disciplinary interest. Second, the Company must establish that the
discipline imposed reasonably reflects that interest. This does not state a definitive analysis
imposed on contracting parties. It does state a skeletal outline of the elements to be
relies on the parties' arguments to flesh out that outline.
The discharge rests on theft. The parties do not dispute that proof of theft requires
misappropriation and the intent to steal. Issues of intent are best avoided as matters of proof
of the difficulty of establishing states of mind. Here, however, the Company's work rules
between general and major rules of conduct. Theft is covered as a major rule warranting,
on the circumstances, punishment from a warning to immediate discharge. This discretion
consideration of intent unavoidable. If the Grievant had been wasteful in his use of a box of
towels, the loss of that box would, presumably, warrant a warning to address correctable
The same economic loss, if the box was stolen, can warrant a more stringent sanction for the
dishonesty manifested in theft tears at the basis of the employer/employe relationship.
The acts of misappropriation turn on the Grievant's placement of a box of towels
air hose into the bed of his locked truck. The evidence poses a fundamental factual issue
regarding the box of paper towels. Gato testified that the discharge sanction can rest on theft
paper towels alone. This makes analysis of the air hose issue arguably irrelevant. It is,
necessary to examine because resolution of the point is of some relevance in addressing the
theft of paper towels.
The allegation that the Grievant stole an air hose rests on Waite's testimony.
factual dispute can be resolved by crediting his testimony over the Grievant's. In my
however, resolving disputed fact based on individual witness credibility is persuasive only
is no other means available. The relationship of individual testimony to known fact is more
than attempting to weigh the personal credibility of conflicting witness accounts. In this
testimony of neither Waite nor the Grievant can be rejected, standing alone, as incredible.
Whether the Grievant carried an air hose or conduit represents a troublesome issue of
there is little known fact to assist in the determination. However, what corroboration exists
the Grievant's account over Waite's. Initially, it must be noted that while air hose and
visually distinguishable, they are sufficiently similar in appearance that over distance they
mistaken. This means that Waite's testimony that he perceived an air hose can be granted
resolving the issue whether the Grievant actually held an air hose. Corroboration of this
point lay within Waite's control. Had Waite looked in the bed of the Grievant's truck, the
may never have resulted. That he did not cannot resolve this issue, but underscores that the
of the most fundamental corroborating fact cannot be held against the Grievant.
More significantly, what corroborating fact exists favors the Grievant's account. His
production of the air hose at hearing is not determinative, but a fact worth noting.
conduit was assembled after the discharge requires a series of assumptions that strain
a minimum, the production of the conduit was a bold move. That the conduit was worn, and
of components not distinguishable from those used by the Company attests to craftsmanship
Grievant's part or truth. The conclusion that the Grievant faked
the wear on those components is less plausible than the conclusion he produced the
conduit he took
from the plant. His wife's testimony that he held an air hose on March 8 is also entitled to
weight. It is not necessary to conclude she is more credible than Waite to note that Waite's
did not place her anywhere near the Grievant on March 8. Dembiec's testimony, however,
that she was. Dembiec, unlike the Grievant's wife, testified at least in part adversely to the
That Waite's account does not include her does not mean he misrepresented the point.
does indicate he was not sensitive to fact not supporting his feeling that the Grievant was
hose. Underscoring this is Waite's testimony that he did not check the Grievant's truck for
hose to give the Grievant the opportunity to "do the right thing" by returning it. This
irreconcilable to other testimony. Waite's testimony underscores Gato's conclusion that the
Company viewed the theft of the paper towels, standing alone, to warrant discharge. Waite's
on and after March 8 offers no support for concluding that if the Grievant had returned an
on March 8, he could have expected any fate other than the one he received. This does not
that Waite's testimony was incredible. It does, however, underscore that he was not
sensitive to facts
conflicting with his view that the Grievant was stealing.
In sum, what corroborative evidence exists on the point favors the Union's view that
Grievant took an air hose from a dumpster on March 8. The first element of the cause
then, on the allegation that the Grievant stole paper towels on March 8.
The factual issues are more troublesome regarding the box of paper towels. This
be resolved as an issue of fact. Broader contentions asserted to preclude making this
are not persuasive. That the Grievant did not remove the towels from Company property
present a basis to conclude the Grievant did not steal them. Removal from Company
be a necessary element to criminal theft. To bring this consideration into labor arbitration
however, that the Company cannot assert a legitimate interest in enforcing standards of
stringent on its employes than those imposed by government against its citizens. That the
agreed to a just cause standard does not mean it agreed that industrial justice and criminal
synonymous. That the Company did not check the Grievant's truck at the time or as he left
complicates, but does not preclude, determining whether or not the Grievant intended to steal
Nor can the Company's investigation be dismissed as so flawed that it is unnecessary
consider whether the Grievant, in fact, intended to steal the box. As noted above, Waite
resolved the factual issue by looking into the Grievant's truck rather than shouting at him to
items with him into the plant. The evidence establishes that Waite had reason to question the
Grievant's behavior. Beyond this, there is no persuasive evidence that any of the
representatives who reviewed the incident acted in other than the good faith belief that the
warranted consideration as theft.
In sum, resolution of the first element of the cause analysis requires determining
Grievant, in fact, sought to steal the box of paper towels. Resolution of this fact is
the evidence will not support the conclusion that the Grievant intended to steal the box of
The strength of the Company's case should not be understated. Waite's testimony
dismissed as incredible. That testimony establishes that the Grievant deviated from what
perceived as a northerly path through the dock area to take a longer, more circuitous route
the truck unloading area. Beyond this, the Grievant's anger after the incident coupled with
inconsistency of his defense of his actions can reasonably be viewed as the action of a guilty
That he did not take towels out of Waite's office affords reason to believe the towels were
for someplace other than Coater Line 1.
The strength of the Company's case should not, however, be overstated. Waite's
as a witness and the substance of his account manifest his sincere belief that he caught the
in the act of theft. The correspondence of his belief to fact is not, however, beyond
Ignoring the dispute regarding what the Grievant carried or how, if at all, he switched his
hand to hand, it is not apparent why he would change course as Waite testified. If he was
was stealing, his conduct is impossible to explain. Why would he alter his course to avoid
only to take the detected materials to his truck? The alteration of course would seem to
and react to, detection. More significantly, Dembiec testified that the Grievant did no more
follow the path he typically takes. It was a longer path on March 8 because he parked his
further to the north than typical. As noted above, Dembiec did not testify as a defender of
Grievant. This under-scores the significance of that testimony.
The Grievant's anger and inconsistent explanations can be taken to manifest guilt.
testimony that the Grievant was sufficiently angry at Waite to "flip him off" is credible. The
is that his anger and the inconsistent explanations that followed are difficult to view as a
to the charge of theft. Those reactions can no less plausibly be taken to manifest confusion
His anger, standing alone, is unremarkable. He has a reputation as thin-skinned. More
as will be discussed below, it is difficult to treat his anger or confusion as an unequivocal
the charge of theft.
That the Grievant took towels from an area other than Waite's office supports the
of theft. That support cannot be ignored, but cannot be treated as unequivocal. It is not
that the Grievant would take towels from the Press Department, if he needed them on his
Coater Line 1. Where he got them does not resolve, but begs the issue of intent.
Ultimately, resolution of this point cannot be restricted to the Grievant's conduct
alone. As noted above, there is reason to infer the Grievant intended to steal the paper
broader view of the context of the alleged theft, however, manifests fundamental doubt
Grievant's intent from each witness to the event. That doubt was resolved against the
the Company, but cannot be so resolved here.
Waite's testimony cannot be dismissed as incredible, but is hard to reconcile with the
conclusion that he believed in all sincerity that the Grievant intended to steal. As noted
failure to see the Grievant's wife manifests a certain unwillingness to perceive fact other than
supporting his belief the Grievant was stealing. Beyond this, it is difficult to understand why
not clearly confront the Grievant with an accusation of theft. The ambiguity of his response
he was himself less than sure what the Grievant was doing. That the theft of paper towels
summary discharge is difficult to reconcile with returning the Grievant to work on Coater
Line 1 for
the balance of his shift. No less difficult to account for is permitting the Grievant to leave a
air hose in his truck to be taken home at the end of the shift. The evidence does not indicate
8 was a particularly busy or unusual shift. That Waite told the Grievant the matter would
there falls something short of confronting a thief with the consequences of theft.
This ambiguity makes it impossible to read too much into the Grievant's anger and
inconsistent explanations for his conduct. Waite never confronted him with an accusation of
That the Grievant would be angry at Waite is as readily explained by the inference that he
paper towels and felt harassed as by the inference that he had just been caught stealing
March 8, the Grievant was permitted to finish his shift. On March 9, he was offered
being summoned to the March 10 meeting. Against this background, it is difficult to read
into his stumbling explanations for his conduct at that meeting. Until that meeting, the
was in was not unequivocally apparent. That he consistently denied stealing the air hose and
cannot be ignored. That he had trouble accounting for the events of March 8 is troublesome,
Testimony of other witnesses underscores the fundamental ambiguity of the events of
8. Dembiec noted that he and Lindner yelled "thief" at the Grievant, only to stop when they
the matter was not a joke. It is undisputed that Waite, Lindner and Dembiec spoke during
part, if not
all, of the time the Grievant walked from the plate storage area through the truck unloading
his truck. How Lindner and Dembiec could think the matter was a joke is impossible to
Waite's testimony. Waite effectively stalked the Grievant. How Dembiec could see this as a
matter is not apparent, unless it is assumed that he did not think the confrontation unfolding
him was a fundamental charge of theft. It thus appears that Dembiec, no less than any other
was uncertain on what was happening until well after the fact.
In sum, the record manifests that Waite sincerely believed that the Grievant stole
property on March 8. The record will not, however, support a conclusion that this sincere
corresponds to proven fact. The evidence indicates that certainty regarding the theft evolved
each level of review. This is not necessarily objectionable. The Company sought to defend
security of the workplace, and viewed as a policy matter, the incident was significant. This
however, mask the fundamental factual ambiguity which plagued the incident from the
occurred. Against this background, the first element of the cause analysis has not been met.
Company has not proven the Grievant intended to steal an air hose or paper towels on March
The remedy set forth below flows from Section 6.2 and does not require further
The Award employs the terms used by Section 6.2 regarding reinstatement.
Before closing, it is appropriate to tie the conclusions stated above more closely to
arguments. As discussed at hearing, the Grievant's length of service or past performance
no bearing on this grievance, which turns on whether or not he intended to steal on March 8.
parties each advanced arguments regarding the burden of proof, and the quantum of proof
to meet that burden. These arguments can become relevant in cases in which both parties
their burden to produce evidence and doubt remains on a fact or facts of consequence to the
determination. In theory, any doubt left upon review of the evidence must be resolved
party bearing the burden of proof. In theory, quantum of proof concepts specify the amount
necessary to turn a determination against the party bearing the burden of proof. This was a
well-litigated case, in which both parties amply met their respective burdens to produce
evidence produced fails to establish that the Grievant in fact intended to steal on March 8.
underscores only that the evidence is insufficient to infer intent to steal. Characterizing the
proof as "beyond a reasonable doubt" or "clear and convincing" cannot alter this conclusion.
absence of the inference of intent to steal, just cause for the discharge does not exist.
The Company asserts that even though it has not confronted theft issues in the past, it
reasonably institute a no tolerance policy, which must be respected without regard to the
issue. This contention cannot be faulted. However, it focuses on the second element of the
analysis. How severely to sanction theft is an academic point when the intent to steal has not
There was not just cause for the discharge of the Grievant.
As the remedy appropriate to the Company's violation of Section 6.1, the Grievant
reinstated and compensated for the time lost due to the discharge at his regular rate of pay.
References to the discharge shall be expunged from his personnel file(s).
Dated at Madison, Wisconsin, this 4th day of December, 1998.
Richard B. McLaughlin, Arbitrator