BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION
W.S. DARLEY AND COMPANY
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by Ms.
Andrea F. Hoeschen, on behalf of the Union.
Mr. Jeffrey S. Darley, Executive Vice-President and Chief
Operating Officer, on behalf of the Company.
The above-captioned parties, herein "Union" and "Company", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Chippewa Falls, Wisconsin, on November 10, 1999. The hearing was not transcribed and
parties agreed I should retain jurisdiction if the grievance is sustained. The parties there
oral arguments in lieu of filing briefs. Pursuant to their joint request, I issued a "bench"
which this Award augments.
Based upon the entire record and arguments of the parties, I issue the following
Since the parties were unable to jointly agree on the issues, I have framed them as
1. Is the grievance arbitrable?
2. If so, did the Company
properly terminate grievant Robert McRoberts and, if not, what is the
As I related at the hearing, there is no merit to the Company's claim that the
grievance is not
arbitrable because the Union did not request arbitration in a timely fashion.
Thus, Union Business Representative Gary L. Franz by letter dated June 8, 1999
otherwise stated, all dates refer to 1999), informed Company Vice-President and Chief
Officer Jeffrey S. Darley that the Union would appeal grievant McRoberts' termination to
if the Company did not accept the Union's latest settlement offer (Joint Exhibit 11).
stated: "If you can not agree to our request, then I will proceed to arbitration to settle this
I will await a response from you." Franz's letter followed the parties' ongoing efforts to
McRoberts' grievance. Darley did not respond to Franz's letter.
The 20-day deadline for appealing grievances to arbitration therefore did not
in because Article 9 of the contract states:
"If the Company's answer at Step 2 of the grievance procedure is
not acceptable, the Union may,
within twenty (20) days of the Company's Step 2 answer, demand arbitration. Such demand
be in writing and addressed to the Personnel Manager."
Since Darley failed to respond to Franz's June 8 letter in a timely fashion, the 20-day
began to run. I thus find that the Union's' July 30 request for arbitration was timely (Joint
As for the merits of the grievance, the record shows that grievant McRoberts, a Stock
on January 20 faxed the following handwritten note to Personnel Manager Mary Knutson:
"I have taken a position with another company. My last day of
work at Darley will be Monday,
February 2, 1999." (Joint Exhibit 3).
The Company asserts that following receipt of this note, it was free to terminate
McRoberts at any
time because nothing in the contract prevents it from terminating an employe after it has
such a resignation note. McRoberts thus was told on January 21 that his resignation was
immediately and that he would not have any insurance coverage for February, 1999.
admitted he "got mad" after he was told he would not have any more insurance coverage.
on January 22 subsequently attempted to report to work, but to no avail.
By letter dated January 22 (Joint Exhibit 4), the Company informed McRoberts:
This letter is written to confirm that I have received your notice
of resignation dated January 20,
1999. In as much as you have advised us you wish to continue your employment through
February 1, 1999, you have been advised by Gene Normand that the company has accepted
resignation effective at the close of business on January 21, 1999.
. . .
The Company's claim that it could terminate McRoberts before his resignation date is
merit since Article 6 of the contract, entitled "Seniority", states:
. . .
Section 3. Seniority
shall terminate for the following reasons:
(a) The employee is laid off and
not re-employed, or performs no work for the Company for any
reason for a period of two (2) years.
(b) The employee leaves the
employment of the Employer of his/her own volition.
(c) The employee is discharged
for just cause or during the probationary period.
(d) The employee, after having
been laid off, fails to notify the Employer within forty-eight (48)
hours after delivery of notice of work, whether or not he/she will return to work, or if the
employee, after notifying the
Employer that he/she will return to work,
fails to return to work within subject to a one (1)
step roll-back, whichever is less. The roll-back requirement shall not apply to any employee
who previously occupied the new job. Such previous occupants shall receive their current
rate of pay or the highest rate attained when previously occupying the job, whichever is
greater, but in no event shall the rate be more than the top rate for the new job.
. . .
These are the only circumstances under which an employe
can lose seniority and be terminated under
the contract. McRoberts' resignation note did not change any of this because his note made
that he wanted to leave "the employment of the Employer of his/her own volition" effective
2. McRoberts' involuntary termination on January 22 hence was not "of his/her
own volition" and
thus was contrary to Article 6, Section 3, (b), above.
The Company asserted at the hearing that it nevertheless had just cause to terminate
McRoberts under Article 6, Section 3, (c), because of his supposed disruptive behavior on
21 when he admittedly swore on the shop floor in the presence of other employes and when
supposedly swore at Plant Manager Fred Normand who testified that McRoberts told him
and "Fuck you and fuck this place." McRoberts testified he told Normand "Fuck that" and
this place," but he flatly denied ever telling Normand "Fuck you."
One problem with the Company's claim is that swearing on the shop floor is common
been tolerated by the Company in the past. Thus, McRoberts testified that supervisors Mike
Kevin Lafort, (2), and Denise Schvey (?) have sworn. Union Steward Ken Schick testified
and Andy Watson have sworn and that employes Jeff Cronin, Clark Kraemer (?) and Tony
have said "fuck" in front of supervisors. Given this practice of swearing, McRoberts could
summarily discharged for cursing on the shop floor.
That, though, is a separate question of whether employes can curse at supervisors.
they cannot because that constitutes gross insubordination. However, it is not at all clear that
McRoberts swore at Normand, as McRoberts flatly denied doing so and there were no
corroborate Normand's testimony. However, even assuming he did, the Company never told
McRoberts at the time of his January 22 termination he was being fired for swearing at
Company first made that claim in an April 16 letter to Franz (Joint Exhibit 6).
That was way too late. The Company must set forth in full detail
all the reasons it is
terminating an employe at the time of his/her termination pursuant to Article 7, Section 2, of
contract which states:
Section 2. Just Cause
Notification. Employees shall not be disciplined or discharged
without just cause.
If the Employer feels there is just cause for suspension or
discharge, the employee shall be
notified in writing at the time of the discharge or suspension for the reasons therefor.
By failing to do so here, the Company violated one of the most
important parts of the contractual just
The Company's termination also violated Article 7, Section 3, of the contract which
for progressive discipline and which states:
Section 3. Procedure. The
Employer recognizes the concept of progressive discipline
commensurate with the nature of the offense. The usual disciplinary progression shall
A. Oral reprimand.
B. Written warning.
. . .
This progressive discipline must be followed. When it
not, a discharge decision can be
overturned. That is particularly so where, as here, the Company only suspended employe
his second alleged act of insubordination and where it only gave
him an oral warning over his first
act of alleged insubordination. In addition, Normand testified that another employe was
reprimanded for swearing. By subjecting McRoberts to a much stiffer penalty here, the
failed to treat similarly situated employes similarly, which again is violative of the
All in all, then, the Company violated McRoberts' rights by terminating him on
rather than on February 2, as he had requested in his resignation note; by violating Article 7,
when it failed to tell him on January 22 that he was terminated at least in part because of his
bad behavior; by not following the progressive discipline mandated in Article 7, Section 3;
subjecting McRoberts to disparate treatment.
To rectify these contractual violations, the Company shall immediately expunge all
to McRoberts' termination from its personnel files and it shall make him whole for all money
benefits, including overtime, that he otherwise would have earned but for his
termination, less any monies he would not have received but for his termination. If
there is any
dispute over how any unemployment compensation benefits must be offset, the parties will so
In light of the above, it is my
1. That the grievance is arbitrable.
2. That the Company did not properly terminate grievant Robert McRoberts.
3. That the Company shall make him whole in the manner described above.
4. That I shall retain my jurisdiction for at least thirty (30) days to resolve any
involving the application of this Award.
Dated at Madison, Wisconsin this 29th day of November, 1999.
Amedeo Greco, Arbitrator