BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SERVICE EMPLOYEES INTERNATIONAL UNION,
AMERICAN BUILDING MAINTENANCE JANITORIAL
(Peggy Thomas Discharge)
Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, S.C.,
by Attorney John Brennan, P.O.
Box 12993, Milwaukee, WI 53212, appearing on behalf of Service Employees International
Mr. Hilton Ritter, Branch Manager, 633 West Wisconsin
Avenue, Suite 810, Milwaukee,
WI 53203, at the hearing, and McGuire, Woods, Battle & Booth, LLP, by
Attorney Holly Ann
Georgell, 77 West Wacker Drive, Suite 4500, Chicago, IL 60601-1635 on the
brief, appearing on
behalf of American Building Maintenance Janitorial Services, Inc.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Employees International Union, Local 150 (hereinafter referred to as the Union) and
Building Maintenance Janitorial Services, Inc. (hereinafter referred to as the Company)
the Wisconsin Employment Relations Commission designate a member of its staff to serve as
arbitrator of a dispute over the discharge of Peggy Thomas. The undersigned was so
A hearing was held on February 12, 1999, in Milwaukee, Wisconsin at which time the
afforded full opportunity to present such testimony, exhibits, other evidence and argument as
relevant to the dispute. The parties submitted post-hearing briefs, which were exchanged
the arbitrator on April 14, 1999, whereupon the record was closed. Subsequent to the
closing of the
record, the undersigned was advised that the Regional Director of Region 30 of the National
Relations Board had administratively deferred a pending unfair labor practice charge over the
termination to arbitration, and was requesting a copy of the Award when it was issued.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Now, having considered the testimony, exhibits, and other evidence, the arguments of
parties, and the record as a whole, and being fully advised in the premises, the undersigned
The issue before the arbitrator is whether the Employer had
cause to terminate the
grievant and, if not, what is the appropriate remedy?
II. RELEVANT CONTRACT
Agreement Between Local 150, SEIU and
Milwaukee Downtown Janitorial Contractors
August 1, 1997 through July 31, 2000
. . .
ARTICLE 2 - NONDISCRIMINATION
SECTION 2.1 -
NONDISCRIMINATION: No employee or applicant for employment
covered by this agreement shall be discriminated against because of membership or activities
Union. Neither the Employer nor the Union shall discriminate for or against any employee
applicant for employment covered by its Agreement on account of race, color, religious
national origin, age (except as allowed by law), sex, marital status, physical handicap or
or any other protected class as defined by State or Federal law. It is the policy of the
the Union that the provisions of this Agreement shall be applied to all employees without
race, color, religious creed, national origin, age (except as allowed by law), sex, marital
physical handicap or veteran status or any other protected class as defined by State or
. . .
ARTICLE 6 SENIORITY
. . .
SECTION 6.3: TERMINATION OF
Seniority shall cease if an employee:
1) Voluntarily quits;
2) Is discharged for just cause;
3) Is laid off for a period of time that
exceeds the length of his service with the company, or;
4) Any employee absent from work without
notice for any three (3) days in any six (6) month
period will have their seniority terminated, unless the employee can prove that
beyond there (sic) control.
. . .
ARTICLE 8 - GRIEVANCE PROCEDURE
SECTION 8.1 -
GRIEVANCE PROCEDURE: In the event that an employee feels that his
or her rights under this Agreement have been violated, a grievance may be filed and adjusted
1) Before filing a written grievance, the
employee must present his/her complaint directly to
his/her immediate supervisor within five (5) work days of the alleged contractual violation.
immediate supervisor shall have five (5) work days within which to respond in writing.
2) In the event the grievance is not
resolved, a written grievance shall be prepared and presented
to the account representative within five (5) work days after the immediate supervisor has
to the grievance. The written grievance shall be adjusted and resolved in writing by the
Representative or other representative designated by the Branch Manager of employer within
work days of receipt by him/her of the written grievance.
3) If the matter is not satisfactorily resolved
at that level, the grievance may be presented to the
Milwaukee Branch Manager who shall give his/her written response within five (5) work
receipt by him/her of the grievance.
4) During the steps of the grievance
procedure, the aggrieved employee may have the assistance
of a Local 150 Union Representative of their choice.
5) In the event that a grievance is not satisfactorily resolved as set
forth herein, the charging party
has the right to have the matter arbitrated. If the parties cannot agree upon an impartial
the parties shall request the Wisconsin Employment Relations Commission appoint an
6) All determination and awards of an
arbitrator hereunder shall be final, conclusive, and binding
upon all the parties, executors, administrators, or successors.
7) For the purposes of this Article "work
days" shall not include Saturday, Sunday, holidays, or
any other non-work day, unless otherwise agreed by both parties.
. . .
ARTICLE 12 - MANAGEMENT RIGHTS
SECTION 12.1 -
MANAGEMENT RIGHTS: The management, direction and control of
operations are and shall remain within the sole discretion of the Employer. This shall
include, but not
be limited to, the assignment of work, determination of the products to be used, the
reasonable work standards, work rules and other facilities, the hiring, promotion, and the
of employees for just cause, the curtailment of all or part of the Employers (sic) operation
other functions formally and the proper function of the Employer, except as limited by the
clauses of this written Agreement.
The Employer will discuss with the Union
the effects of any changes in the hours of work and/or
changes in work schedules. The Employer will not subcontract in any case where such
result in job loss to current unit members.
. . .
The Company provides janitorial services to buildings in and around Milwaukee,
The employes of its downtown Milwaukee operations are represented by the Union. The
Peggy Thomas, had been employed by the Company for over ten years as a custodial
employe at the
Firstar Center. Her immediate supervisor was Charles Willis. For six years, until the time
discharge in October of 1998, she was the steward for the 5:00 p.m. - 1:00 a.m. shift.
On October 13, 1998, the grievant arrived at the Firstar Center shortly before her
She encountered fellow steward Margaret Tippet. Tippet and another steward, Bernice
had been scheduled to have a grievance meeting with Willis about a claim by an employe
Candler that Willis had unfairly singled her out for criticism in front of other workers. The
asked Tippet how the meeting had gone, and Tippet replied "You know how it is -- he turns
everything to his advantage." The grievant saw Wrancher in the lobby, but did not speak
at that point. She went downstairs to the Company's office, punched in and asked supervisor
Ramirez if she could go back upstairs to speak with Wrancher and Tippet. Ramirez gave her
The grievant spoke with the two stewards about the grievance meeting, and they said
had been resolved. Wrancher told her that Willis had refused to let the employe sit in on the
even though it was about her grievance. The grievant asked them if the written grievance
submitted to management, and Wrancher said she was so upset that she had forgotten to hand
The grievant took the written grievance with her, and gave it to Ramirez, asking that she in
it to Willis. The statement of the Candler grievance, which Tippet wrote on October 8th,
Charles was discriminating when he was yelling at a female
employer (sic) when there was 2
males (sic) employers (sic) in the room at fault also. There was no reason to disrespect or
in the manner he did, causing her to get upset and go to the clinic under stress. That is
Charles called the Union stewart (sic) names and said he is tired of all his employees.
. . .
REMEDY REQUESTED: If Charles is tired it's time to move on
before somebody gets hurt.
After handing the grievance to Ramirez, the grievant went to get her equipment for
Ramirez approached her and told her that Willis wished to speak with her. She replied that
wish to argue with Willis, but Ramirez repeated that he wanted to see her. The grievant
went to the
conference room. Willis and administrative assistant Muriel Wilson were seated at the table,
stood in the doorway, and Miranda Milton-Pass was in a nearby room handing out supplies.
is some dispute about what was said, but in essence Willis asked why the Candler grievance
filed in written form, and he and the grievant had words. In the course of their exchange,
him he was "full of shit" and he told her to punch out. When she asked why, he told her
suspended pending termination for cursing at him. She indicated that she had no intention of
and Willis had building security called to escort her out. The grievant dropped off her keys
before anyone from security responded to the call.
On October 27th, the Company's Personnel Manager Veronica Vinson sent the
letter advising her that her employment had been terminated for violating work rule #6:
The use of profanity, abusive language, swearing, threatening
gestures or fighting with another
ABM employee, supervisor, customer or tenant will cause immediate suspension pending
your employment with ABM. Any of these will not be tolerated at any time for any reason.
The instant grievance was thereafter filed. It was not resolved in the lower steps of
grievance procedure and was referred to arbitration. A hearing was held on February 12,
which time, in addition to the facts recited above, the following testimony was taken:
Miranda Milton-Pass: Miranda Milton-Pass testified that
she is a supervisor for ABM and
was in an adjoining area with a view of the October 13th meeting between Willis and the
She said that when Willis got the grievance form, he told Ramirez to get the grievant,
grievance had already been resolved. According to her written statement of the incident,
prepared in Willis's presence on October 15th, when the grievant entered the room and sat at
conference table, Willis, referring to the grievance, said "What is this? You didn't bother to
the meeting, and this has been resolved and I'm not going to go over it again! You should
at the meeting, you're supposed to have a meeting first before a grievance is filed, and you
to attend!" Referring again to the written grievance form, Willis said "In the grievance you
statement stating that to resolve the grievance it will be to have me removed from the
not going anywhere, I'm through talking to you and you can go back to work!" According
to Milton-Pass, the grievant replied "Charles, you are full of shit and your ass will be out of
here, I bet you
that!" Willis told her to punch out and go home and she asked why. He told her it was
swore at him, and she said she wasn't going to leave. He ordered her to punch out and
building and she told him if he wanted her to leave, he could punch her out. Willis then
Wilson to call security, and the grievant left. Milton-Pass said she never heard any profanity
Willis during this exchange. While Willis is her supervisor and was present when she wrote
statement, she denied being coerced to make a statement.
Muriel Wilson: Muriel Wilson testified that she is the
Company's administrative assistant
at the Firstar building, and was present for the October 13th meeting. When the grievant
Willis asked her what this was, referring to the grievance, and the grievant told him it was a
grievance. He told her that she had not bothered to attend the grievance meeting and he was
going to discuss it with her. He noted that the grievance requested that he be removed and
wasn't going anywhere. At that point, the grievant stood up and said "you're full of shit"
ordered her to punch out. She asked why and he said it was for cursing at him and she
She refused and Willis told Wilson to call security. The grievant left. Wilson said that she
see the grievant punch out, even though she had
been told to. Her observation was that neither Willis not the grievant were upset
during this meeting,
and that they were simply having words with one another. On cross-examination, Wilson
employes frequently use profanity but not towards supervisors. She recalled one incident
employe told her in profane terms what he was not going to do, and she believed he was
Hilton Ritter: Neither Aida Ramirez nor Charles Willis
attended the arbitration hearing.
However, Branch Manager Hilton Ritter presented a handwritten statement prepared by
October 15th and an October 14th memorandum from Willis to Veronica Vinson setting forth
version of events. Ritter was advised that hearsay documents are entitled to less weight on
points than live testimony would receive.
Ramirez's statement said that Willis told the grievant the meeting to discuss Candler's
grievance was at 3:00 p.m. and she did not bother to attend. The grievance had been
resolved in that
meeting and he was not going to go over it again. He told her that before a written
presented a meeting had to be held, and she did not attend the meeting. He noted that the
resolution of the grievance was for him to be removed from the building and that he wasn't
anywhere. He told her he was through with her and she should go back to work. The
Willis that "his ass would be out" before hers and that he was full of shit. Willis told her to
and go home, because she was suspended pending review for cursing at him. The grievant
wasn't going anywhere and Willis told Wilson to call security. The grievant left before
Willis's memorandum to Vinson recounted the events as:
. . .
Around 5:30 p.m. Peggy Thomas came to the office as I had
requested. Peggy sat down and I
asked her to explain why the Union was filing this grievance since I had met with Bernice
and Margaret Tippet at 3:00 p.m. earlier in the day and felt that we had resolved all of the
Peggy had not attended this meeting, even though it was her who requested it. The
dated 10/8/98 which was several days before our meeting and violated the correct union
procedure according to the SEIU Local 150 Union Agreement.
I also stated to Peggy that the remedy
requested in the grievance was to have me removed from
the account. I told her I was not going anywhere and that our meeting was over and she
the meeting and go back to work. Peggy said to me that "my ass would be out before her,
I was full of shit." At
that point I told Peggy to punch out and go home and that she was
being suspended pending
termination review for cursing at me. Peggy said "I'm not going anywhere". I then
Wilson to call building security and have them come to the office to escort Peggy from the
Peggy then left the office but returned and
threw her keys on the table and left. Security came
to the office and said they had seen Peggy on the way to the security desk to exit the
Thomas did not punch out as requested prior to leaving.
Ritter also presented a copy of an April 24, 1998 termination letter to an employe
Duncan for threatening a supervisor. He was advised that, without some information about
employe and the circumstances of the termination, it would be difficult to say what weight
accorded the document. Ritter presented copies of previous discipline from the grievant's
file, including a March 8, 1996 written warning for failing to punch out when instructed, and
8, 1997 verbal warning for failing to punch out.
Ritter made a narrative statement, indicating that he believed the dispute on the 13th
Union's fault for not following the proper procedures for grievance processing. In
noted that the contract calls for a first step meeting, and does not specify who has to be
Thus the exclusion of Candler was not improper. The contract also gives the supervisor five
give a response, so the Union was wrong to present a written grievance immediately,
that was dated five days before the meeting with Willis.
Darryl Evans: Darryl Evans testified that he is the business
representative for Local 150 and
services the ABM contract. He said that he receives many employe complaints from the
building and that most of them concern Willis swearing at employes. Evans said that he
grievance of the employe who swore at Muriel Wilson. The employe had responded to a
from Wilson by saying "I already did that -- fuck you, I'm not going to do that anymore."
with Willis on the grievance and Willis suggested that Evans counsel the employe not to use
language. On cross-examination, Evans said that he could not recall the employe's name
did recall the meeting. He acknowledged that he received complaints from workers on
other than ABM, and that he had not personally heard Willis use profanity.
Peggy Thomas: Peggy Thomas testified that she was not
able to be at the meeting over the
Candler grievance because she was caring for a sick child. Her understanding of that
that it concerned Willis meeting with three employees, two males and one female, and
the table, telling the female that he was tired of her "sneaking shit." When she reported to
conference room as ordered, Willis held up the Candler grievance, pointed to the remedy
said "This right here is not gonna happen." Willis was
angry and shouted at her about not following the proper grievance procedures, to
responded "You didn't follow procedures either." He told her to get her butt out of the
she tried to object, but he cut her off and said "Get your ass out of here and go to work."
repeated it again, then said "You're susp... no, you're fired. No, you're susp... no, you're
never see the inside of this building again." She replied that she had been in the building
he had, that she saw no reason that she should leave. He told her to punch out and go home,
protested that she hadn't done anything. He told her she was fired, and she told him he was
shit. She waved her hand at him, threw her keys on the table and walked out. He followed
and repeated "you're fired" several times. When she asked why, he said it was because she
at him. As she rode up the escalator he called her a bitch.
According to Thomas, Willis was in the habit of referring to employes in degrading
called the three stewards "Snoop Doggy Dog," "Hunchback" and "Smurf," and referred to
black employes as Aunt Jemima. While there is a great deal of profanity used at work,
between Willis and the employes, Willis would not react to a man swearing at him.
However, if a
woman talked back to him, he would react very strongly. Thomas recalled an incident
employe named Eric whose vacation request had been denied. Willis called her into his
said she should talk to Eric because he had been calling Willis a "bastard" and a
among other things. She did talk to Eric, but no discipline was ever imposed in that case.
recalled a grievance meeting involving the three stewards and another employe named
had been disciplined. Daniel was getting upset, so Willis terminated the meeting. After
Willis revealed that Daniel had told him to "suck his dick." Thomas said she did not believe
was telling the truth, but she knew there was no discipline for the alleged comment.
Looking at the
prior discipline presented by Ritter, Thomas said she had no recollection of ever receiving
reprimands for failing to punch out, and had never before seen the corrective actions forms
claimed to have found in her file.
On cross-examination, Thomas said she was familiar with the grievance procedure
thought there was nothing inappropriate about immediately moving to a written grievance
refused to even allow Candler to sit in on the meeting over her own grievance. She said that
never denied swearing at Willis. When shown the former personnel director's summary of a
meeting, which said "Ms. Thomas denied she had ever used profanity," Thomas said she
spoken in that meeting, that Vinson spoke for the Company and Evans spoke for her. She
the Candler grievance omitted any mention of Willis saying Candler was "sneaking shit"
Tippet forgot to include it. She denied that Willis ordered her to punch out, and said she
out because she had done nothing wrong.
Bernice Wrancher: Bernice Wrancher testified that she was
present for the Candler
grievance meeting and that when she asked where the other people including Candler were,
Willis said he wouldn't allow them to attend. She told him it could not be resolved
without all of
them being present. Later she briefly explained to the grievant [Thomas] what had happened
gave her the written grievance because she had forgotten to file it.
Wrancher said that profanity was very common in the building, and that Willis cursed
frequently. She had seen Willis curse in front of members of the public, including one
he called her a "stupid bitch" in front of a bunch of people in the Galleria area. Her
the grievance meeting with the employe named Daniel is that Willis claimed Daniel told him
treat people so cruel and so dirty, you must be sucking Hilton's dick." Nothing happened to
after this meeting.
On cross-examination, Wrancher said that she did not include the reference to
in the Candler grievance because she did not consider the use of that term to be cursing. She
that she cried when he called her a stupid bitch, because her feelings were hurt, and because
is an ordained minister and should not speak to her like that.
Additional facts, as necessary, will be set forth below.
IV. ARGUMENTS OF THE
A. The Arguments of the Company
The Company takes the position that the grievant was discharged for just cause. She
to having directed profanity at her supervisor and did not return to her work when ordered to
She also failed to punch out when she did leave, despite a direct order from Willis to punch
Moreover, she threatened Willis's physical safety by presenting a grievance in which the
relief said "Charles is tired. It's time for him to leave before someone gets hurt."
The grievant is a Union steward, but her conduct in this matter is not protected in
It is well established that stewards do not have the right to engage in flagrant
including the use of profanity directed personally at a supervisor. In this case, the grievant
even acting as a steward, since it was clear that the meeting was over when she engaged in
misconduct. Moreover, a review of her conduct shows that it would not have been protected
if the meeting was on-going. In his award in Trans-City Terminal Warehouse, 94 LA 1075
(1990), Arbitrator Marlin Volz established four criteria for judging whether behavior is
(1) the place of the discussion, i.e. in an
office or conference room or on the production floor;
(2) the subject matter of the discussion, i.e., whether it pertained to grievances, negotiations,
administration of the contract or to
some unrelated subject matter; (3) the nature of the employee's
outburst, i.e. relevant to the
argumentation of the subject matter or extraneous name calling, screaming, obscene gestures;
whether the outburst was, in any way, provoked by the employer . . .
Here the conduct occurred in front of three co-workers, not in a private meeting. The
uttered by the grievant, the written threat to his safety, and the insubordinate refusal to
had nothing to do with the substance of the Candler grievance. Clearly the grievant's
intended to provoke Willis. Finally, there was no provocation. The grievant's conduct fails
of the tests set forth by arbitrator Volz.
Stripped of any special protection as a steward, it is plain that the grievant's conduct
discharge. The arbitrator must keep in mind that she admits the misconduct, and that it is
not his role
to second guess management in the selection of a penalty once the underlying offense is
work rules here expressly authorize management to skip steps in the progressive discipline
when the offenses are serious enough. There are few offenses more serious than threatening
supervisor and insubordination. The grievant's record already includes a verbal warning and
warning for insubordination, and the Company cannot be expected to tolerate this behavior
The Union's claim that management somehow condoned profanity must be rejected.
Evans could not even remember the name of the employe who allegedly received only a
for swearing at Wilson. Wrancher's claim that Willis swore regularly is at odds with her
that she would be shocked to hear an ordained minister swear. The supposed evidence of
incidents of profanity without disciplinary consequences are self-serving and implausible.
solid evidence in the record is the recent discharge of an employe for directing abusive
As a steward, the grievant has a duty to follow the contract to the letter. Her
October 13th falls short of any reasonable standard. On the record, she richly deserved to be
terminated. Accordingly, the grievance should be denied.
B. The Arguments of the Union
The Union takes the position that the grievant did nothing wrong, and that she should
reinstated and made whole. The grievant is a steward and was presenting a grievance.
acting in their official capacity owe a duty only to their members and stand as equals to
officials. Unlike when they act in their capacity as employes, they are not under the control
direction of the Company. Thus they are entitled to a greater degree of latitude in their
approach when they present grievances. There is a long line of cases in which arbitrators
accepted the use of even harsh and profoundly offensive language when
it is used to express a steward's views. Here, the grievant used the words "shit" and
"ass" in a
grievance meeting. These words are nothing remarkable in the workplace at large, and they
cannot form the basis for a discharge when used in grievance processing. A contrary result
chill aggressive representation and impair the protected rights of all employes.
The relatively few cases in which a steward is successfully disciplined for bad
generally involve flagrant insubordination in front of other workers. This incident took place
Company conference room, away from the other workers. Moreover, Willis rather clearly
the grievant to anger, dressing her down, raising his voice, telling her he wouldn't accept the
grievance, brusquely dismissing her without letting her speak, and directing profanity at her
The record is clear that vulgar language is used regularly in the workplace without
disciplinary consequence, and that Willis himself is one of the chief offenders. Given this,
that the grievant acted within the scope of the protection customarily afforded a steward, it is
possible to find just cause for discipline. Accordingly, the arbitrator must sustain the
order her reinstated and made whole.
A. The Grounds for Discipline
The grievant was discharged for using a profanity towards her supervisor. While the
Company's brief attempts to make the case that she was also disciplined for refusing a direct
to punch out and that she threatened her supervisor with physical harm, these allegations do
considerable violence to the factual record of the case. Refusal to punch out is not
mentioned as a
grounds for termination in any of the grievance documents. Former Personnel Manager
Vinson's write-up of the October 20th grievance meeting states that the suspension pending
investigation was for using profanity, and that the only issue discussed in the meeting was
that allegation was true. The letter of termination states that she was discharged for violating
rule #6, which bars the use of obscene language and gestures. While a refusal to punch out
possibly have been subjectively considered by management as part of the overall sequence of
leading to discipline, I cannot find that it was a significant factor in the termination.
As for the allegation that Thomas threatened Willis by giving him the Candler
is absolutely no basis for this conclusion. Contrary to the Company's theory, the record is
Thomas did not write the grievance. Tippet wrote the grievance. Moreover, counsel
document. Granting that there are some strike-outs in the wording of the "Remedy
portion, the arbitrator's copy says "if Charles is tired, it's time to move on before somebody
hurt." This clearly refers back to the statement attributed to Willis in the main portion of the
grievance form: "Charles called the Union
stewart (sic) names and said he is tired of all his employees." Willis himself, in
berating Thomas for
submitting the grievance, referred to this section and said the Union was asking that he be
from the building, and that he was not going anywhere. He gave no indication that he
as a threat of violence. As with the refusal to punch out, nothing in the grievance documents
that a threat of violence played a role in the discharge decision, and this interpretation was
applied to the grievance form until the arbitration briefs were filed after the hearing.
Inasmuch as the
form, read in context, does not constitute a threat, and since it was not taken as a threat, and
in any event the grievant did not author the form, the allegation that she made a threat to her
supervisor cannot be given any weight.
B. The Grievant's Status as a Steward - Protected Versus
According to the Union, the grievant was disciplined for actions she took in her
Union steward. Stewards are not immune from discipline for their conduct, but where
insubordination charges are leveled as a consequence of actions taken to advocate for
is a stronger degree of protection afforded a steward than to other employes. 1/ This
not extend to conduct which is particularly egregious or flagrant, 2/ but, in order to
get beyond that
threshold, if the grievant's acts were taken in her official capacity, they must by definition go
somewhat beyond those which would ordinarily be considered "just cause" for discipline.
issue, then, is whether the grievant was, in fact insubordinate. If so, the question is whether
conduct was protected concerted activity. If so, the next question is whether her behavior
egregious as to strip her of the Act's protection. If the grievant was removed from the Act's
protection, the final question is whether the penalty imposed is consistent with a just cause
1/ See Southern Indiana Gas & Electric,
85 LA 716 (Nathan, 1985); Maxwell Air Force Base, 97 LA
1129 (Howell, 1991); Bornstein, et al., Labor and Employment Arbitration, 2nd Ed.
1997), at §12.03(3) and cases cited therein.
2/ See Trans-City
Terminal Warehouse, 94 LA 1075 (Volz, 1990) holding that obscenity and personal
insults directed towards a supervisor while protesting managerial decisions may remove a
Union president from
the protection of the NLRA; See also Hamburg Industries, 271 NLRB No. 108 (1984);
Co., 242 NLRB 523 (1979); Traverse City Osteopathic Hospital, 260 NLRB 1061 (1982);
Corp., 171 NLRB 1651 (1968).
1. Insubordination / Work Rule Violation
The grievant does not deny telling Willis that he was "full of shit" nor saying to him
to the effect of "your ass" would be out of the Firstar Building before hers would be.
Whether these relatively mild vulgarities rise to the level of insubordination depends
upon the context
-- the nature of the workplace, the audience, the manner in which they were said and, most
importantly, the purpose for which they were said. The central question is whether they
for the purpose of conveying disrespect for Willis's authority or position. I believe that it is
reasonable reading of the record to say that they were. Moreover, they violate the clear
Work Rule #6, which bars ". . . use of profanity, abusive language, swearing, threatening
fighting with another ABM employee, supervisor . . ." On the face of it, the grievant's
contrary to an established work rule. Thus, without deciding any penalty issues such as
treatment, proportionality or mitigating circumstances, I conclude that the Company had just
to at least consider discipline for the language used in the October 13th meeting.
2. Protected Activity
The Company initially asserts that this could not have been protected activity, since
announced that the meeting was over before the grievant ever uttered any profanity. It is
Willis had finished his statement at that point and had told the grievant to get back to work.
However, even by his telling, the grievant had been given no opportunity to speak. It may
Willis believes a grievance meeting can consist of summoning the steward, berating her for
grievance and then announcing that the meeting is over without hearing any response, but
would come as a surprise to most persons familiar with grievance processing and the concept
concerted activity. Whether the grievant is acting as a steward does not depend on whether
wants her to act as a steward. I am not suggesting that the grievant could, on her own
simply linger in his office and claim she was still in a protected grievance meeting. That is
happened here. She was summoned to a meeting with a supervisor. The subject of the
a grievance she had filed. The supervisor stated his position. She responded. No
of this record could yield the conclusion that the grievant was not acting as a steward in a
meeting when she addressed Willis.
The Company cites Arbitrator Volz's Award in Trans-City Terminal Warehouse as
offering an analytical structure for steward misconduct cases. In that case, Arbitrator Volz
the NLRB's Atlantic Steel Company 3/ test for determining whether alleged
insubordination is protected activity:
(1) the place of the discussion, i.e. in an office or conference
room or on the production floor;
(2) the subject matter of the discussion, i.e., whether it pertained to grievances, negotiations,
administration of the contract or to some unrelated subject matter; (3) the nature of the
relevant to the argumentation of the subject matter or extraneous
name calling, screaming,
obscene gestures; (4) whether the outburst was, in any way, provoked by the employer . . .
3/ Atlantic Steel Company, 245 NLRB No.
107, 102 LRRM 1247 (1979).
As to the first factor, the meeting was held in a conference room in the ABM office
basement of the building. While the Company claims that the remarks were made in a work
in front of co-workers, this is not what the facts show. Workers go to the area to get
it is not in any way analogous to a shop floor. The persons present in the room, other than
grievant, were all supervisors or management employes. Miranda Milton-Pass was in an
area handing out supplies, and was within earshot of the exchange. Milton-Pass was a
when she testified at the arbitration hearing, but it is not clear whether she was in the
in October of 1998. Whether she was or not, it cannot be said that by making her comments
location, the grievant was making an effort to show up Willis in front of the work force.
Consideration of this factor would tend to show that the grievant's conduct was protected.
The subject matter of the discussion was Willis's view of how the grievant had
Candler grievance and what he thought of the remedy requested. This is textbook protected
As for the nature of her outburst, according to management witnesses, she said he was full of
that his ass would be out of the building in response to his statement that the remedy
requested in the
grievance -- his removal -- was never going to happen. This relates to the protected topic
it may be crude, it is not an extraneous outburst or an ad hominen attack. Consideration of
second and third factors would support the conclusion that the vulgarities were uttered in a
Finally, there is the question of provocation. Again using the management witnesses'
accounts, Willis called the grievant into a meeting, delivered a monologue on her deficiencies
steward and the implausibility of the relief requested in the grievance, informed her that the
was resolved when she had just been told by her fellow steward that nothing had been
in the meeting, and then, giving her no opportunity to respond, summarily dismissed her,
that the meeting was over and she should get back to work. While his position as a
entitles Willis to a certain amount of respect, the grievant's status as an equal at the shop
of labor relations would seem to require a corresponding measure of respect. Any
would find his approach in this grievance meeting to have been provocative.
Having considered each of the four factors identified by the Board and Arbitrator
bearing on the question of protected activity, I conclude that the grievant was engaged in
activity in her meeting with Willis on October 13th.
3. Egregious Behavior
Even protected concerted activity may be stripped of the Act's protection if the
behavior was "so flagrant, egregious or opprobrious so that [she] lost the protection of
of the NLRA." Trans-City Terminal Warehouse, at 1079. Again, this is a matter of context
the totality of the circumstances. Looking at the sequence of the meeting itself, and again
version related by management's witnesses, Willis delivered his monologue to the grievant,
responded by saying he was full of shit, whereupon he immediately suspended her pending
for using profanity. This is not an employe who was out of control and screaming, or
management's repeated efforts to have her end the meeting. Nor are the vulgarities used so
uncommon and extreme as to be, by themselves, egregious. Indeed, the great weight of the
is that profanity is not uncommon in this workplace. Darryl Evans testified that he
employe who, in response to a direct order from Muriel Wilson, said "I already did that --
I'm not going to do that anymore." Evans testified without contradiction that Willis's
reaction to this
was to ask Evans to counsel the employe not to use that kind of language. 4/
Wrancher and Thomas
both testified without contradiction to an incident in which Willis told them another employe
either told him to suck his dick or accused him of sucking Ritter's dick. In either event,
there was no
resulting discipline. Wrancher testified without contradiction that Willis himself regularly
profanity at employes, including calling her a "stupid bitch" in the Galleria area of the
the public was present. Given all of this, it is impossible to conclude that either the
behavior or words during the grievance meeting on October 13, 1998, were so egregious as
remove her from the protections of the Act. 5/
Company expresses skepticism about this testimony, noting that Evans could not remember
employe's name. Muriel Wilson, appearing as a management witness, was the first to testify
to this incident. She
did not know what discipline had been issued and she, too, was not able to remember the
employe's name. The
record supports the conclusion that it occurred, and Evans' testimony on the disposition of
the case is both credible
5/ Even in the instance
cited by the Company to support its choice of penalty, the April 24, 1998 discharge of
employe Duncan, while the termination letter cites the rule against profanity, the underlying
discipline notice cites
refusal to perform work when ordered to, directing abuse and profanity at the supervisor,
refusal to follow work
orders in general, a history of poor work performance, and walking off the job. On its face,
that case is not
comparable to the grievant's situation.
C. Just Cause for Discharge
I have concluded that the grievant's conduct on October 13, 1998, was protected by
8(a) of the National Labor Relations Act. Terminating an employe for statutorily protected
is inconsistent with a just cause standard. I would note, however, that even if the grievant
subject to the Act's protections in this instance, discharge would not be an appropriate
grievant has over ten years of service with the Company. Her disciplinary record consists of
warning from March of 1996 for failing to punch out when directed to do so, and a verbal
from April of 1997 for what appears to have been an inadvertent failure to punch her time
card at the
end of the shift. The parties agree that the Company uses a system of progressive discipline,
would be hard to conclude that discharge was the next appropriate penalty under a
system for an employe with her record. In light of the apparent lax enforcement of the rules
profanity, and the very minor or non-existent penalties imposed for far more serious cases
discussion in Section B(3), above), such a conclusion would be impossible.
On the basis of the foregoing, and the record as a whole, I have made the following
The Company did not have just cause to terminate the grievant. The appropriate
to immediately reinstate her to her former position, without loss of seniority or benefits, and
her whole for her losses.
The arbitrator will retain jurisdiction over this matter, for the sole purpose of
remedy, for a period of sixty (60) days from the date of issuance.
Dated at Racine, Wisconsin, this 25th day of May, 1999.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Daniel Nielsen, Arbitrator