BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
UNITED BROTHERHOOD OF CARPENTERS AND
OF AMERICA, LOCAL 1521
EGGERS INDUSTRIES, INC.
Murphy, Gillick, Wicht & Prachthauser, by Attorney Sandra Graf
Radtke, Brookfield Lakes Corporate Center, 300 North Corporate Drive, Suite
260, Brookfield, Wisconsin 53045, appearing on behalf of the Union.
Mr. Gary J. Milske, Personnel Manager, Eggers Industries,
Inc., 164 North Lake Street, P.O. Box 1050, Neenah, Wisconsin 54957-1050, appearing on
behalf of the Company.
The above-captioned parties, hereafter referred to as the Union and the Company,
respectively, are parties to a collective bargaining agreement that provides for final and
arbitration of grievances. Pursuant to a request for arbitration, the Wisconsin Employment
Commission appointed the undersigned to decide a grievance. A hearing, which was
held on September 29, 1999, in Neenah, Wisconsin. The record was closed on
November 2, 1999,
upon receipt of the parties' post-hearing briefs.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The Union frames the issue as follows:
Was the Grievant discharged for just cause under the
bargaining agreement and if
not, what is the appropriate remedy?
The Company frames the issue as follows:
Did the Grievant refuse a reasonable job
request and resign rather than perform the work?
If not, what is the appropriate remedy?
The undersigned adopts the following statement of the issue:
1. Did the Company discharge the Grievant,
or did the Grievant quit her employment with the
2. If the Company discharged the Grievant,
did it do so with just cause?
3. If not, what is the appropriate remedy?
2.1 The management
of the plant and direction of the working forces, including the right to hire,
suspend or discharge for just cause, to assign jobs, to promote and/or transfer employees
plant, to increase and decrease the working force, to establish standards, to determine
be handled, fabricated or manufactured, the schedules of production and the methods,
means of production or handling are vested exclusively in the Company.
. . .
2.5 When an employee covered by this
agreement has their classification eliminated by
management, thereby requiring the Company to change the employee's job, the shop steward
be present at such meeting between the employee and the Company. An employee who has
their non-temporary job classification eliminated will continue to receive their current rate of
pay for a minimum
of 60 days.
HOURS OF WORK
. . .
3.6 Any temporary
transfers of employees from job to job by management will not result in any
decrease in the regular straight time base rate of pay to the affected employees during this
assignment. Employees transferred will not be forced to work in a higher class job. If an
volunteers to work a higher class job, said employee is subject to the overtime provisions in
4.9 for the higher class job.
. . .
. . .
10.6 Loss of
seniority: An employee shall lose his/her seniority for the following reasons:
a) If the employee leaves the service of the
b) If the employee in (sic) discharged for
just cause. (Unjust discharges shall be considered under
Article thirteen (13) of this agreement.)
. . .
LEAVE OF ABSENCE
. . .
11.2 A request for
absence from work for one (1) full day or less may be granted orally by the
employee's Department Manager if the absence is within one (1) calendar week of the
. . .
ARTICLE THIRTEEN GRIEVANCE
13.1 A grievance
within the meaning of the grievance procedure is any difference between the
Company and an employee covered by this agreement as to any matter involving
application of any of the provisions of this agreement. Should any grievance arise, the
employees concerned shall continue to work as assigned by the Company, and the procedure
hereafter set forth shall be followed in the settlement of grievances. All grievances shall be
in writing, within five (5) working days from the day either the employee(s) or the Union
reasonably could have known, that the cause of such grievance occurred. Once reduced to
the grievant assigns to Local Union #2832 the authority for final agreement or disposition.
Grievances not presented in writing within the time limits specified shall be deemed waived.
employee shall maintain the right to Union representation at any step of the grievance
Grievances shall be handled as follows:
. . .
In April of 1999, the Company advised Union President David Riedel that there
changes in veneer lay-up and that some veneer lay-up positions would be eliminated. Riedel
told which positions or shifts would be affected by the changes.
In subsequent discussions, the Union indicated a preference for the elimination of
because of its understanding that the contract provides that the mill is to run on two shifts.
also requested the Company to put something in writing. In the month of July, the Union
that the second shift would be eliminated first and then the third shift.
The third shift employe in veneer lay-up was more senior than the second shift
veneer lay-up. The second shift employe in veneer lay-up, Michele Hoerning, hereafter the
commenced employment with the Company in 1992. During the Grievant's employment, her
husband, Will Hoerning, has supervised the Grievant.
On June 7, 1999, at the Grievant's request, she met with the Company's Vice
President-Operations, Harold Reichwald, and Will Hoerning. The Grievant requested this
meeting because she
thought that she was being mistreated by one of her supervisors. During this meeting, the
told Reichwald that she thought this supervisor was not treating her with respect because she
woman. Reichwald told the Grievant that he would talk to the supervisor about her
that he did not share the Grievant's view of the supervisor.
On June 8, 1999, when the Grievant reported to work, she was told that the
conducting an experiment and that she could not perform her veneer lay-up duties. The
was assigned other duties.
On July 1, 1999, the Company Personnel Manager, Gary Milske, issued a letter to
that states as follows:
RE: Elimination of Veneer Lay-up Position
Effective July 1, 1999, the company has
decided to eliminate one veneer lay-up position. Since
Michelle Hoerning is the least senior lay-up person and the company doesn't care which shift
a position, Michelle's position is eliminated. If for any reason, this job is reinstated during
18 months, Michelle will be offered the position before it is posted.
The Company will keep Michelle's wages at
their current level for 60 days or until she bids on
another job, if that occurs before 60 days. At the end of 60 days if she has not bid on
her rate of pay will be adjusted to a helpers rate.
The Union received this letter on or about July 1, 1999, and gave a copy to the
Following the elimination of her veneer lay-up position, the Grievant continued to
work on second
shift, performing work as assigned by her supervisor. Pursuant to Article 2.5 of the
bargaining agreement, the Grievant continued to receive the wage rate of her veneer lay-up
Shortly after the Grievant received a copy of the July 1, 1999 letter, the Company
second shift veneer lay-up position. The Union advised the Grievant that the Company first
this position to a third shift employe. When the Company offered this position to the
did not accept the position.
On July 27, 1999, Will Hoerning's supervisor, Jeff Look, gave Will Hoerning a
small package of
veneer lay-up orders and told Will Hoerning to have the Grievant perform the lay-up work
evening. The Grievant had performed this type of work in the past, when she held the
At the beginning of second shift on July 27, 1999, Will Hoerning gave this veneer
assignment to the Grievant. Thereafter, the Grievant and Will Hoerning engaged in a
about the work assignment. Following this discussion, Will Hoerning told the Grievant that
Union needed to be involved.
At approximately 3:15 p.m. on July 27, 1999, the Grievant met with Union
President Riedel and
had a discussion about the veneer lay-up work assignment. Immediately following this
Riedel and the Grievant went to the office of the Company Personnel Manager, Gary Milske.
Milske, the Grievant and Riedel discussed the veneer lay-up work assignment.
twenty minutes into the meeting, Will Hoerning was asked to join the discussion. All four
remained in Milske's office for the duration of the meeting. The meeting ended at
The following morning, the Grievant received a telephone call from Union
Representative Gregory Coenen. During this telephone conversation, Coenen told the
Milske had telephoned Coenen and told Coenen that the Grievant had quit her employment.
On the morning of July 28, 1999, after the Grievant had received this telephone
Hoerning went in to the shop to speak with Harold Reichwald to explain what had happened
ask that the Grievant be taken back to work. Reichwald brought Milske into this meeting
told Reichwald and Will Hoerning that he (Milske) had accepted the Grievant's resignation.
On July 28, 1999, Milske prepared a letter notifying the Union that the Grievant
had quit her
employment and had a copy of this letter hand delivered to the Union. The Company has a
of preparing such letters. Normally, however, the Union receives the letters about a week
employe has quit.
On July 30, 1999, a grievance was filed on behalf of the Grievant. The grievance
alleges that the
Company had violated Article 2, 2.5 and 10.4(g) of the collective bargaining agreement and
that the Grievant be made whole. On August 4, 1999, Milske issued the following response
RE: Michele Hoerning's Grievance
This letter is in response to the above
referenced grievance. Michele Hoerning claims she took
a sick day and did not quit. The company disagrees.
On July 27th, 1999, Michele Hoerning &
Dave Riedel came to my office at 3:30 p.m., Michele
explained that she would not lay-up veneer as requested by her supervisor because her job
eliminated. I explained that since she was getting Class 2 pay the company could have her
Class 2 work. She requested to waive the pay and I said I would discuss the issue with
Reichwald, Jeff Look and Rob Boudry the next day, but that night she would have to lay-up
and file a grievance if she thought the company was violating the contract. She continued to
to do the work. I explained that she would be terminated if she refused and at that point she
Dave Riedel and I both tried to talk her out
of quitting. She requested that Will join the meeting
and asked Will what he thought she should do. He said, "it's your call." At this point she
would take a sick day and I told her we all knew she wasn't sick and she never mentioned it
For over two hours I explained that if she
thought the company was wrong, she should do the
work requested and file a grievance. Only if she felt her safety was at stake should she
refuse to do
the work. She continued to refuse the work and say she would quit. At 5:00 I accepted her
resignation and she said "Will, take me home."
The following day Will asked Harry
Reichwald and myself if we would consider rehiring Micky.
I stated that Michele had clearly quit, after being asked not to, and that I would not consider
I respectfully request that the Union
withdraw the grievance.
Thereafter, the grievance was submitted to arbitration.
The Company's General Rules of Conduct include the following:
. . .
8. Employees are to accept all reasonable
job assignments and shall obey the orders of their
Department Manager or the Assistant Department Manager at all times.
1st Offense Discharge
. . .
At the arbitration hearing, the Grievant submitted the following letter, dated September
164 N. Lake Street
Neenah, WI 54956
Mrs. Hoerning was referred to me by her
neurologist, Dr. Janelle Cooper of LaSalle Clinic for
psychological treatment. She was first seen on July 8th, 1999. She,
unfortunately, has been diagnosed
with multiple sclerosis, a serious neurological condition. This condition is often associated
serious mood disorders such as depression. She is therefore sensitive to stressful situations.
nevertheless is able to continue working 100% at her present job at the current time. She
me on July 27, 1999 in extreme emotional distress after being informed that she was no
longer in the
employment of Eggers Industries, where she has worked for eight years. She was
that hospitalization was considered, but her care was managed by her husband, and
was avoided. She is on medication to reduce her anxiety and stress. She and her husband
informed me that her mental condition worsened and became quite serious during, and after,
discussion with the Eggers personnel manager. She has reported to me that she considered
treatment from the personnel manager to be "badgering." She continues to experience
emotional distress, and it appears that her work situation makes a large contribution to her
Daniel J. Neunaber, Ph.D
Chairman, Psychology Department
While this letter indicates that Dr. Neunaber saw
the Grievant on July 27, 1999, the
Grievant states that Dr. Neunaber saw her on July 28, 1999. Thus, Dr. Neunaber did not
the Grievant on the day of her conversation with Milske, but rather, saw her on the
day, after the Grievant had been notified that Milske considered the Grievant to have
her employment with the Company.
POSITIONS OF THE PARTIES
Rule No. 8 of Company Exhibit No. 1, General Rules of Conduct, states that
to obey all reasonable job requests and that failure to do so results in immediate discharge.
Grievant confirms that she refused to perform the work because she did not have the job
The testimony establishes that, on several occasions, it was explained to the Grievant
she felt the Company was in error, the proper response would be to perform the work and
grievance. The Grievant understood this explanation, but continued to refuse to perform the
The testimony establishes that the Grievant stated on several occasions that she had
alternative but to quit. At the close of the meeting, Company Personnel Manager Milske
the Grievant's decision to quit.
The Grievant's employment with the Company ended at 5:30 p.m. on
July 27th when her
resignation was accepted and she told her husband to take her home. Had Milske not
resignation, the Grievant would have been terminated at that point for having refused to
reasonable work request.
If the Grievant became too upset to work, she brought it upon herself by refusing to
the work requested. She was not upset or sick when she first came into the Personnel
office, and, did not become so upset that she could not perform a job that she had performed
several years. To allow an employe to claim that he/she is too upset to work whenever they
disagreement with management would totally undermine Rule No. 8.
The Grievant's employment with the Company ended when she left Milske's office.
the personal day granted the Grievant by her husband was not valid.
The Grievant never informed the Company of her illness prior to hearing. The
statement indicates that she could perform 100 percent of her duties. Therefore, she
performed the work requested and file a grievance as the Company asked her to do. Had the
Grievant's husband truly believed that the Company could not require the Grievant to
work, then her husband would have assigned the work to another employe and the Personnel
Manager would not have become involved.
The Grievant repeatedly refused to perform a reasonable work request, was informed
consequence of her refusal, stated on several occasions that she had no alternative but to
finally had her resignation accepted.
The Company's assertion that the Grievant quit is absurd and against the weight of
evidence. The Grievant was excused by her supervisor and documented as being on a
The supervisor's testimony that he has authority to grant a personal day is not refuted by the
Company. The Company clearly violated policy, as well as State and Federal law, in
The Company created this situation and has to take some responsibility for the
invoked. The Grievant, as stubborn as she was in the meeting, did not say or do anything
with an employe actually quitting a job. It was a debate, not the Company saying if you do
there will be a consequence. The Personnel Director testified that it was like beating a dead
When the Personnel Director left the room, only he left with the understanding that
Grievant had quit, and that is not sufficient. The Grievant did not believe she had quit and
intended to quit. Mr. Riedel testified that he did not believe her to have quit. The
supervisor did not
take it to be a quit, or he would not have marked her down as taking a personal day.
Several times during the meeting with the Personnel Director, the Grievant expressed
was not feeling well. The Personnel Director immediately and curtly took it upon himself to
leave. The Grievant is an adult and knows when she is not feeling well. It may have been
for the Personnel Director to demand a medical slip if he doubted whether or not she was ill,
should not have outright denied the request.
As it turns out, the Grievant actually was ill. She has a very serious chronic health
The doctor's note in evidence tells us this and also substantiates that she was not feeling well
day in question.
Under both the Federal and State Family Medical Leave Acts, it is very clear that the
does not have to utter magic words to invoke those statutes. The employe does not have to
want family medical leave." The employe need only state that leave is needed. It is
the employe gives the employer sufficient information that a reasonable employer would
there might be a need for family medical leave. The appropriate action would have been for
Personnel Director to grant the leave and demand that the Grievant verify a serious health
within two to three days, as the statute dictates. Had the sick day been properly granted, the
would not be in the position she is in today.
Consistent with arbitral precedent, the Arbitrator must look at the totality of the
circumstances and the specific facts. The specific facts and the totality of the circumstances
putting the Grievant back to work and making her whole.
The Grievant does not have a history of refusing valid work assignments or receiving
discipline. The Grievant was not trying to cause trouble or be insubordinate. She was upset
of many preceding factors: losing her job; being assigned to work under a man she
perceived as a
sex discriminator; being denied first dibs on her old job; and being asked to perform work
believed violated the collective bargaining agreement, a belief that was supported both by her
supervisor and the Union President. The Company's treatment understandably made the
angry and then the Company had the gall to ask her to perform the very work that was taken
her in the first place.
Additionally, the Grievant became emotional and stubborn, traits brought upon by her
condition. The Company's approach to the matter, i.e., a pointless and
emotional two-hour debate,
compounded the situation in that it made emotions soar higher. The Grievant became
and probably was not exercising her best judgment, which is under-standable, given her
condition. The Company should have just told the Grievant what her options were.
Even in her emotional state, she did not just storm out the door. She went to her
and asked for an excused absence.
While the Grievant's reaction to the Company's work assignment may not have been
wisest, mitigating circumstances warrant giving the Grievant a second chance. Whether or
Company knew of the Grievant's medical condition, the Grievant suffers from the medical
and was affected by the Company's actions.
The Grievant should be reinstated and made whole for her losses. Even if one
the Grievant should have some consequence for her actions, the result here is too harsh.
factors lead to the conclusion that the Grievant should not have the most severe of all
loss of her job. The Arbitrator should rule that the Grievant was not terminated for just
award the Grievant an appropriate remedy under the facts and circumstances of this case.
Testimony Concerning Events of July 27, 1999
On July 27, 1999, when the Grievant was given a veneer lay-up assignment by her
Will Hoerning, she told her supervisor that she did not want to do the assignment. Will
the Grievant that she did not have to do the assignment. The Grievant then told Will
she would get the Union President and go to the Personnel Office. The Grievant met with
President, Dave Riedel, and then they both went to the office
of Personnel Manager Gary Milske. The meeting with Milske began at 3:25 or 3:30
Grievant gave Milske the stack of veneer lay-up tickets and told Milske that she did not think
had to do the veneer lay-up assignment. The Grievant told Milske that her job had been
that she no longer had the job title; and that, according to the contract, she did not have to
higher-paying job because in her eyes she was a helper. Milske responded by telling the
go out and do the work. Riedel told Milske that the Grievant should not have to do the
because her job had been taken away. The Grievant repeatedly asked Milske why she should
to do the veneer lay-up assignment when her job had been eliminated. Milske repeatedly
Grievant to perform the work and file a grievance. Milske told the Grievant that the
holding her rate of pay for sixty days and that the Company policy was to ask employes to
work at that rate. At some point during the meeting, the Grievant asked for a sick day. At
of this request, the Grievant was crying, felt very upset and felt that she was being badgered.
denied the Grievant's sick leave request. Riedel asked that the Grievant be given a personal
Two or three times during the conversation, the Grievant told Milske that he was giving her
alternative but to quit, but that the Grievant never told Milske that she quit. The
between Milske and the Grievant went back and forth like an argument and the Grievant
more upset. The Grievant became sick to her stomach; concluded that she was not going to
to do the job; looked at Will Hoerning; told Will to take her home; and left Milske's office.
The Grievant went back to the shop floor for her belongings and asked Will Hoerning
could take a personal day because she was so upset. Will Hoerning told her he would put
for a personal day. The Grievant and Will Hoerning left the Company's premises.
When the Grievant arrived at home, she was very upset, stressed out, and
disturbed. Will Hoerning tried to settle the Grievant down and telephoned the doctor.
On July 28, 1999, the Grievant saw Dr. Neunaber. The Grievant understood that
Dr. Neunaber wanted to hospitalize her.
At the start of second shift on July 27, 1999, Will Hoerning gave veneer lay-up
tickets to the
Grievant. This veneer lay-up work was the type of work that the Grievant had performed
held the second shift Veneer Lay-up position. The Grievant asked why he was giving her the
that she no longer had that job title, that she was a helper and that she did not have to do the
lay-up work. Will Hoerning responded that she was right and that she did not have to do the
When the Grievant continued to question why she was being given the veneer lay-up work,
Hoerning explained that he had been given instructions to have her perform the work. When
Grievant continued questioning Will Hoerning about the work assignment and said that she
have do the work assignment,
Will Hoerning told the Grievant that the Union needed to get involved. After
President Riedel indicated that he needed to go to the Personnel Manager with the subject.
Approximately fifteen or twenty minutes after the Grievant and Riedel began their
with Personnel Manager Milske, Will Hoerning came into the meeting room. At that point
Milske told the Grievant to do the job and file a grievance. The Grievant responded by
Milske was making her do a job that had been taken away from her; that according to the
she was a helper; and that Milske was forcing her to do something that she should not be
During the ensuing discussion, Milske told the Grievant that she was entitled to her opinion,
the proper way to resolve the issue was to do the work and file a grievance. The Grievant
that she felt that she did not have to do the job. On a couple of occasions, the Grievant told
that he was giving her no option or alternative but to quit because he was forcing her to do
that violated the contract. Milske told the Grievant not to quit, that she was overreacting,
should not quit, but rather, she should do the job. At some point in the conversation, the
asked for a sick day because she was feeling sick and Milske said no, that he did not believe
was sick. Following this denial, Milske and the Grievant had further discussion. During
discussion, Milske told the Grievant to go out and perform the job and the Grievant
Milske was forcing her or giving her no option but to quit because of what Milske was trying
the Grievant do. At some point in the discussion, Union President Riedel asked if the
have a personal day because the Grievant was distraught. Milske responded that he could
not do that.
At some point in the discussion, the Grievant asked Will Hoerning what she should do and
responded that it was her decision to make. At the end of the meeting, the Grievant told
Hoerning to take her home, that she was not feeling well. Will Hoerning and the Grievant
After leaving the meeting room, the Grievant went into the mill and Will Hoerning
how things were going. The Grievant asked Will Hoerning for a sick day or a personal day
she was not feeling well and would not have been able to perform the job. Will Hoerning
that the Grievant was very upset, distressed emotionally, and that, in her condition, the
not have the concentration necessary to perform the veneer lay-up job correctly. Will
granted the Grievant a personal day for the purpose of providing the Grievant with an
to relax, think things over, and to consult further with Will Hoerning.
Will Hoerning drove home with the Grievant. The Grievant was still upset.
telephoned the Grievant's regular doctor. The Grievant's regular doctor could not see the
but referred the Grievant to another doctor. Will Hoerning then went to the quarterly
meeting at the Timber Rattler game. At the game, Will Hoerning told Jeff Look that the
not going to be laid up that evening.
On the morning of July 28, 1999, the Grievant received a telephone call from Union
Representative Coenen in which Coenen stated that the Company had informed him that the
had quit her employment and that the Company had accepted her resignation.
On the morning of July 28, 1999, following the Grievant's receipt of this telephone
Hoerning went into the plant to give Reichwald an explanation of the events of
July 27, 1999, and
to ask Reichwald if he would consider taking the Grievant back to work. During this
with Reichwald, Will Hoerning stated that he believed that he probably was a problem
because he had
told the Grievant that she did not have to do the job. Will Hoerning also stated that, if there
a cool-down period for the Grievant to discuss the matter with Will Hoerning or Riedel,
have been different, but in the Grievant's state of mind at that time, it would not have
When the doctor saw the Grievant, the doctor indicated that he wanted to admit the
into the hospital for observation because of her state. When the Grievant and Will Hoerning
home, Will Hoerning was able to calm the Grievant down and the Grievant was not admitted
At approximately 3:15 p.m. on July 27, 1999, the Grievant confronted Union
and explained that the Company wanted her to lay up veneer that night. The Grievant
be very emotional and Riedel told the Grievant to settle down. Riedel set up a meeting with
Riedel went into the meeting with the purpose of asking the Company to grant the
a special waiver of the sixty days to allow the Grievant to immediately be signed down as a
so that the Grievant would not be obligated to do the lay-up job that night. Milske
saying that the Company would not allow this. Riedel stated that there were two other
qualified in veneer lay-up and Milske strongly stressed that the Company wanted the
Grievant to do
the job. Riedel did not consider the Company's request to be reasonable. During the
got emotional and tense. During the meeting, Riedel asked Milske to allow the Grievant to
either a personal day or a sick day and Milske denied these requests. On three different
the Grievant told Milske that he gave her no other alternative but to quit. Approximately
different times, Milske told the Grievant that she should do the work and file a grievance.
meeting, Milske asked Riedel to have the Grievant do the job and file a grievance. Riedel
to the effect that it would be redundant to file a grievance after the fact, being that there
qualified people that could have done the job. At the conclusion of the meeting, the
had tears in her eyes and was crying, asked Will to take her home.
In early August, Riedel presented the Grievant's grievance to the Local Union
Board. Riedel attempted to explain what had occurred on July 27, 1999, and expressed his
that the Company had coerced and forced the Grievant to quit.
At approximately 3:30 p.m., the Grievant and Riedel entered Milske's office. The
told Milske that Will Hoerning had asked her to lay up veneer that night and that she did not
she should be required to do that work because her job had been eliminated. Milske
it was the Company's position that she was being held at her Veneer Lay-up rate of pay for
and, during that time period, the Company could ask her to do the work because the
done this in the past. The Grievant responded that the Company had eliminated her job and
not have to do the work. Milske responded that he understood her point of view; that he and
a difference of opinion; and that he believed that the Company could ask her to do the work.
asked the Grievant if the job was illegal or dangerous and the Grievant responded no.
explained that if the job was not illegal or dangerous, then the Grievant could not refuse to
the work; that the Grievant could perform the work under protest and file a grievance; and
grievance would be resolved at a later date and nobody's job would be in jeopardy. The
continued to refuse to do the work and to indicate that she would quit if Milske insisted that
Grievant do the work. Will Hoerning was asked to join the meeting. When Will Hoerning
meeting, he was told that the Grievant was refusing to do the job and that Milske was trying
the Grievant to do the work and file a grievance. The Grievant then asked Will Hoerning
should do and Will Hoerning told the Grievant that it was her choice. Milske spent probably
telling the Grievant that she should not quit, that she was making a mountain out of a
the Grievant should do the job and file a grievance. The Grievant said that Milske was not
any choice but to quit. The Grievant then indicated that she was upset and could not perform
work. Milske, believing that this claim was a ploy to get out of work, disagreed with that.
the meeting, the Grievant was asked on at least ten occasions to do the work, file a grievance
to quit. Several times during the discussion Milske told the Grievant that they were just
themselves. On several occasions, Milske informed the Grievant that, under the disciplinary
procedure, the first step for refusing to do a job is termination. During the meeting, the
that the Company's request was not reasonable and violative of the collective bargaining
Riedel told Milske that he thought the company was violating the collective bargaining
Milske told the Grievant that if the Grievant continued to refuse to do the work, his only
would be to terminate her and the Grievant responded that then she was going to quit. As
approached, Milske said that we have to wrap this up. Milske indicated that he would accept
Grievant's resignation; the Grievant said "Will, take me home" and the Grievant left
Arbitrator's Discussion With Respect to the Events of July 27,
All of the four participants to the meeting of July 27, 1999, testified at hearing.
is variation in their testimony, there is general agreement on the majority of material facts.
consideration of this testimony, the undersigned concludes the following:
The Grievant's immediate supervisor, Will Hoerning,
veneer lay-up work to the
Grievant on July 27, 1999. When the Grievant objected to this assignment, the Grievant's
supervisor told her that she did not have to do the veneer lay-up work. The Grievant did not
this decision of her immediate supervisor. Rather, the Grievant brought the issue of veneer
work assignment to the Union President. The Union President and the Grievant then brought
of the veneer lay-up work assignment to the Company's Personnel Manager.
During the ensuing meeting with the
Company Personnel Manager, the Company Personnel
Manager told the Grievant to do the veneer lay-up work. On multiple occasions, the
explained why she felt that she should not be given the veneer lay-up work assignment. The
Personnel Manager told the Grievant that she was entitled to her point of view, but that the
did not share her point of view and explained why the Company believed that it was entitled
the veneer lay-up work to the Grievant.
On multiple occasions, the Company
Personnel Manager told the Grievant that the appropriate
way to proceed was to do the work and file a grievance. The Grievant did not agree to
work and file a grievance. Rather, the Grievant continued to argue that the Company should
require her to do the work. On multiple occasions, the Company Personnel Manager
this argument of the Grievant by reiterating that the Grievant should do the work and file a
On multiple occasions, the Grievant told
the Company Personnel Manager that his insistence
that she perform the work would provide the Grievant with no alternative but to quit. The
Personnel Manager advised the Grievant that she was overreacting, that the Grievant should
but rather, that the Grievant should do the work. When the Company Personnel Manager
Grievant that they would have to wrap up the meeting, the Grievant told her husband to take
and left the meeting. 1/
1/ Of the four witnesses
to the meeting of July 27, 1999, Gary Milske is the only witness to claim that the
Grievant specifically stated that she quit, or to claim that, at the end of the meeting, Milske
specifically stated that
he accepted the Grievant's resignation. Given this fact, the undersigned has not found
Milske's testimony on these
two points to be persuasive.
Of the four
witnesses to the meeting of July 27, 1999, Will Hoerning is the only one to claim that the
Grievant's statement to take her home was accompanied by the Grievant's statement that she
was not feeling well.
Given this fact, the undersigned has not found Will Hoerning's testimony on this point to be
Prior to the end of the July 27, 1999 meeting, the Grievant clearly indicated that, if
Company required the Grievant to perform the veneer lay-up work, then the Grievant would
employment rather than perform the work. Although the Grievant attempted to persuade
not require her to perform the veneer lay-up work, Milske was not persuaded. Rather,
the meeting, Milske clearly maintained the position that the Company wanted the Grievant to
When Milske indicated that the meeting had to end, the Grievant did not tell Milske
would perform the veneer lay-up work assignment. Rather, she told her husband to take her
and then left the meeting. By this conduct, the Grievant confirmed her earlier statement,
i.e., that she
would quit rather than perform the veneer lay-up assignment. Contrary to the argument of
this conduct of the Grievant during the meeting of July 27, 1999, provided Milske
with a reasonable
basis to conclude that the Grievant had resigned her employment.
Denial of Personal Day
The Union argues that Milske violated State and Federal law, in denying the Grievant
personal day. Inasmuch as the Union does not identify the State and Federal law alleged to
violated, the undersigned does not find this argument to be persuasive.
The Union also argues that the Company violated policy when it denied the Grievant
personal day. Article 11.2 of the parties' collective bargaining agreement, relied upon by the
states that an employe's Department Manager may grant an employe's request for an absence
work for one (1) full day or less.
Under the language of Article 11.2, the decision to grant or deny an employe's
a personal day is solely within the discretion of management. Milske confirms that, as
Manager, he has authority to discipline and to grant sick days and personal days.
Milske also confirms that supervisors, such as Will Hoerning, have discretion to grant
day and that Milske generally does not interfere with this exercise of supervisory discretion.
record does not demonstrate the Company has any other policy or procedure with respect to
for personal days.
According to Will Hoerning, Union President Riedel asked Milske for a personal day
the Grievant was distraught, a very nervous upset individual. (T at 72) While Riedel's
this point is not entirely clear, it appears that he asked for a personal day because "things got
emotional, feelings were getting very tense." (T at 54)
It is not evident that the Company has a practice of granting the personal day requests
employes that become emotional or upset at work. Indeed, the one instance in which the
demonstrates that an employe was granted a personal day "on a moment's notice" involved a
in the family.
Notwithstanding the Union's argument to the contrary, it is not evident that Milske
any policy by refusing to grant the Grievant a personal day when requested to do so during
meeting of July 27, 1999. Nor is it evident that this refusal was an abuse of management
As a general rule, Will Hoerning's supervisory position would provide him with
grant the Grievant a personal day. However, during the meeting of July 27, 1999, the
Manager specifically denied a request to provide the Grievant with a personal leave day.
Grievant and Will Hoerning acknowledge that they were present when the Personnel
the request to provide the Grievant with a personal leave day.
It was not reasonable for either Will Hoerning, or the Grievant, to conclude that Will
Hoerning had authority to override the Personnel Manager's decision to deny the request to
Grievant a personal day. Nor would it be reasonable for the undersigned to conclude that
Hoerning had such authority.
Moreover, as the Company argues, the Grievant's resignation was effectuated at the
left Milske's office. Thus, as the Company also argues, Will Hoerning's decision to grant
Grievant a personal day was not timely.
Denial of Sick Day
Riedel's testimony does not contain any claim that, during the meeting of July 27,
Grievant stated that she was not feeling well, or that the Grievant made any other statement
describing her emotional or physical state. Indeed, Riedel recalls that he, and not the
requested a sick leave day or a personal day. Riedel apparently made this request because
emotional and tense." (T at 54)
The Grievant recalls that, after she and Milske went back and forth, she asked for a
and that Milske denied it. The Grievant does not claim that her request for a sick day was
accompanied by a statement that she was feeling sick, or by any other explanation of why
requesting a sick day. The Grievant claims that, at the time of the request she crying, felt
and felt that she was being badgered. The Grievant further claims that, as she and Milske
and forth, she became more and more upset and became sick to her stomach. The Grievant,
does not claim that, during the meeting of July 27, 1999, the Grievant told Milske that she
sick to her stomach, or that the Grievant provided any other information on her physical or
Milske recalls that the Grievant appeared perfectly fine for the first hour of the
then indicated that she was upset and could not perform the work. Milske, who told the
he did not agree that she was too upset to perform the work, concluded that these comments
Grievant were a ploy to get out of performing the work. Milske's direct testimony does not
any claim that, during the meeting of July 27, 1999, the Grievant stated that she was not
or that the Grievant made any other statement describing her emotional or physical status.
examination, Milske agreed that the Grievant said that she did not feel well.
Will Hoerning, who came into the meeting approximately fifteen to twenty minutes
had started, recalls that, after Milske and the Grievant exchanged views on their respective
the Grievant requested to take a sick day because she was feeling sick. Hoerning further
Milske denied the request and stated that he (Milske) felt that the Grievant was not sick.
recalls that, following this denial, Milske and the Grievant continued to exchange views and
the end of the meeting, the Grievant told Hoerning "take me home, I am not feeling well"
left the meeting. (T at 73)
All four of the witnesses to the meeting of July 27, 1999, recall that, at the end of
on July 27, 1999, the Grievant told Will Hoerning to take her home. Will Hoerning is the
witness to recall that a statement that she was not feeling well accompanied this statement of
Grievant. Inasmuch as this testimony of Will Hoerning is inconsistent with all three of the
witnesses, it is not persuasive.
Contrary to the argument of the Union, the record does not demonstrate that, at
during the meeting, the Grievant expressed that she was not feeling well. Rather, the record
demonstrates that the Grievant made such a statement on one occasion, i.e., at
the time that she
requested a sick day.
The undersigned is persuaded that the Grievant pronounced that she was sick only
became clear that Milske was not going to accept the Grievant's position, or otherwise
Grievant from performing the veneer lay-up assignment. The timing of the Grievant's sick
request supports Milske's conclusion that the Grievant was not sick at the time he denied her
The testimony of Will Hoerning confirms statements made in Milske's letter of
1999, i.e., that when Milske denied the Grievant's sick leave request, he stated
that he did not believe
that she was sick. It is not evident that the Grievant took issue with this statement. Nor is it
that the Grievant attempted to explain the nature of her illness, other than to state that she
upset to work. Following the denial of her sick leave request, the Grievant remained in the
continued to argue that the Company should not assign her the veneer lay-up work. This
of the Grievant supports Milske's conclusion that the Grievant was not sick at the time that
her sick leave request.
Will Hoerning, Riedel, or Milske, do not claim that, during the meeting of July 27,
Grievant appeared to be sick. Milske recalls that the Grievant appeared "stubborn" because
was clenched. Riedel recalls that, at the time that the Grievant left the meeting, she was
Hoerning does not provide any testimony concerning the Grievant's physical appearance
meeting with Milske. 2/ Nor does the Grievant describe her physical appearance during the
other than to state that she was crying.
2/ Will Hoerning states
"Dave Riedel also requested that Gary possibly think about giving her a personal day
because she was distraught, a very nervous upset individual, and that was denied." (T at 72)
This testimony is not
a model of clarity. The most reasonable construction of this testimony is that Hoerning is
not reporting his
observations of the Grievant's physical state, but rather, is relating Riedel's statements to
Milske. Will Hoerning's
comments concerning the Grievant's physical appearance at times other than in the meeting
with Milske are not
relevant to the determination of whether or not Milske had a reasonable basis to conclude
that the Grievant was
not sick at the time that he denied her request for sick leave.
The evidence of the Grievant's physical appearance is consistent with an individual
vigorously argued that the veneer lay-up work should not be assigned; has had this argument
repeatedly rejected; and has indicated that she would rather quit than perform the assigned
veneer lay-up work. Indeed, the Grievant acknowledges that she was upset and crying
because she felt like the
Company was badgering her into performing work that she did not feel that she was required
perform. (T at 31) The evidence of the Grievant's physical appearance at the time she
leave does not demonstrate that it was unreasonable for Milske to conclude that the Grievant
sick. Rather, such evidence is consistent with Milske's conclusion that the Grievant was just
Contrary to the argument of the Union, the record does not demonstrate that Milske
unreasonably denied the Grievant's request for sick leave. Rather, the record demonstrates
Milske had a reasonable basis to conclude, as he did conclude, that the Grievant's request for
leave was a ploy to avoid performing the veneer lay-up work assignment.
A Personnel Manager's opinion, per se, is not generally
sufficient to deny an employe's sick
leave request. In the present case, however, the Personnel Manager did not form this
opinion in a
vacuum, but rather, had the opportunity to interact with and observe the Grievant for a
period of time. The Grievant's conduct, as well as the circumstances surrounding the
request for a sick day, provided Milske with a reasonable basis to conclude that the Grievant
Work Rule 8 would have little meaning if an employe could avoid having to perform
work by claiming to be sick. Under the circumstances of this case, the Grievant had the
refuting the Personnel Manager's conclusion that she was not sick.
Had the Grievant wished to have Milske give consideration to her medical condition
when she requested sick leave, then the Grievant could have provided timely notification of
medical condition to Milske. The Grievant did not notify Milske of this condition until
29, 1999, the date of the arbitration hearing. Such notification is not timely. Accordingly,
may not rely upon the Grievant's medical condition of MS to argue that Milske acted
when he refused the Grievant's request for sick leave.
The grievance filed on behalf of the Grievant does not claim that the Company has
the State Family Medical Leave Act. Nor is it evident that, prior to hearing, the Union
claim that the Company has violated the State Family Medical Leave Act. Accordingly, the
undersigned does not consider this issue to be appropriately before the arbitrator.
Totality of the Facts and Circumstances
The Union argues that the totality of the facts and circumstances support
Notwithstanding the belief of the Union President to the contrary, the Company did
the Grievant to quit. Rather, the Company's Personnel Manager advised the Grievant to not
to perform the work and to file a grievance. Not only is the Personnel Manager's advice
with well-established labor law principles, it is also consistent with the language of Article
states as follows:
A grievance within the meaning of the grievance procedure is any
difference between the
Company and an employee covered by this agreement as to any matter involving
application of any of the provisions of this agreement. Should any grievance arise, the
employees concerned shall continue to work as assigned by the Company, and the procedure
hereafter set forth shall be followed in the settlement of grievances. . . .
In the present case, the Grievant and the Company had a "difference" as to the
of Article 3.6. The Grievant believed that the Company could not require her to perform
veneer lay-up work because she was a helper and, thus, in a lower class job. The Company
believed that it could
require the Grievant to perform the veneer lay-up work because she was receiving the veneer
wage rate and such an assignment was consistent with past practice. As the Personnel
correctly concluded, the "difference" between the Company and the Grievant is a grievance
the meaning of the parties' collective bargaining agreement.
The "work now, grieve later" rule was best explained by Arbitrator Harry Schulman
Motor Co., 3 LA 779, (1944). He there stated:
The employee himself must also normally obey the order even
though he thinks it improper.
His remedy is prescribed in the grievance procedure. He may not take it on himself to
be sure, one can conceive of improper orders which need not be obeyed. An employee is
expected to obey an order to do that which would be criminal or otherwise unlawful. He
to obey an improper order which involves an unusual health hazard or other serious sacrifice.
in the absence of such justifying factors, he may not refuse to obey merely because the order
some right of his under the contract. The remedy under the contract for violation of right
lies in the
grievance procedure and only in the grievance procedure. To refuse obedience because of a
contract violation would be to substitute individual action for collective bargaining and to
grievance procedure with extra-contractual methods. And such must be the advice of the
committeeman if he gives advice to employees. His advice must be that the safe and proper
is to obey supervision's instructions and to seek correction and redress through the grievance
Purpose of Grievance
Some men apparently think that when a
violation of contract seems clear, the employee may
refuse to obey and thus resort to self-help rather than the grievance procedure. That is an
point of view. In the first place, what appears to one party to be a clear violation may not
at all to the other party. Neither party can be the final judge as to whether the contract has
violated. The determination of that issue rests in collective negotiation through the grievance
procedure. But, in the second place, and more important, the grievance procedure is
the contract precisely because the parties anticipated that there would be claims of violations
would require adjustment. That procedure is prescribed for all grievances, not merely for
doubtful ones. Nothing in the contract even suggests the idea that
only doubtful violations need
be processed through the grievance procedure and that clear violations can be resisted
individual self-help. The only difference between a "clear" violation and a "doubtful" one is
former makes a clear grievance and the latter a doubtful one. But both must be handled in
Some men apparently think also that the
problems here involved are evils incident to private
profit enterprise. That, too, is a totally mistaken view, as a moment's reflection will show.
problems of adjustment with which we are concerned under the contract are problems which
and require adjustment in the management of an enterprise under any form of economic or
organization. Any enterprise -- whether it be a privately owned plant, a governmentally
unit, a consumer's cooperative, a social club, or a trade union -- any enterprise in a capitalist
socialist economy requires persons with authority and responsibility to keep the enterprise
In any such enterprise there is need for equality of treatment, regularity of procedure, and
of conflicting claims of individuals. In any industrial plant, whatever may be the form of
economic organization in which it exists, problems are bound to arise as to the method of
promotions, the assignment of tasks to individuals, the choice of shifts, the maintenance of
the rates of production and remuneration, and the various other matters which are handled
the grievance procedure.
Incidents of Human
These are not incidents peculiar to private
enterprise. They are incidents of human
organization in any form of society. On a lesser scale, similar problems exist in every
shall do the dishes, who shall mow the lawn, where to go on a Sunday, what movie to see,
a reasonable spending allowance for husband or daughter, how much to pay for a new hat,
and so on.
The operation of the union itself presents problems requiring adjustment quite similar to
involved in the operation of the company -- problems not only in the relations of the union to
employees but also in the relations between the members of the union. Anyone familiar with
problems knows that the conflict of desires within the union is quite comparable to that
union and the company. And any active member of Local 600 knows that the frictions and
within a large union may be as numerous and difficult as those between
the union and the company. Such "disputes" are not necessarily
evils. They are the normal
characteristics of human society which both arise from, and create the occasion for, the
human intelligence. And the grievance procedure is the orderly, effective and democratic
adjusting such disputes within the framework of the collective labor agreement. It is the
of civilized collective bargaining for jungle warfare.
Need of Authority in
But an industrial plant is not a debating
society. Its object is production. When a controversy
arises, production cannot wait for exhaustion of the grievance procedure. While that
being pursued, production must go on. And some one must have the authority to direct the
in which it is to go on until the controversy is settled. That authority is vested in
supervision. It must
be vested there because the responsibility for production is also vested there; and
be accompanied by authority. It is fairly vested there because the grievance procedure is
adequately recompensing employees for abuse of authority by supervision.
The Grievant did not object to the veneer lay-up work assignment because it involved
unusual health hazard or other serious sacrifice. Nor did the Grievant object to the veneer
work assignment because it was criminal or otherwise unlawful. Rather, the Grievant
objected to the
veneer lay-up assignment because she believed that such an assignment violated the collective
bargaining agreement. As Arbitrator Shulman states above, disagreements about whether or
employer is violating the collective bargaining agreement are precisely the type of disputes
required to be resolved through the grievance procedure.
Prior to the meeting with Milske, the Grievant's husband, in his capacity as
the Grievant that he agreed that she should not have to do the work assignment and indicated
she did not have to do the assignment. The Grievant, however, did not accept this
decision of her husband, but rather, chose to remove the matter from her husband's authority
place the matter before the Company Personnel Manager. Having brought the matter to a
supervisory authority than her husband, the Grievant is bound by the decision of the higher
supervisory authority. It would not be reasonable for the Grievant, or the arbitrator, to
her husband's supervisory opinion was entitled to be given greater weight than that of the
In response to the Grievant's repeated claim that the Company was violating the
bargaining agreement by requiring her to do the veneer lay-up work, the Personnel Manager
repeatedly responded that the Grievant should do the work and file a grievance.
Notwithstanding the Grievant's belief to the contrary, the repeated response of the
Company was not
"badgering," but rather, was sensible advice which the Grievant, to her detriment, chose to
As the Union argues, the Grievant, the Union President and the Grievant's husband
believe that the Grievant had been given a reasonable job assignment. Their belief, however,
not excuse the Grievant from the contractual obligation to perform the job assignment and
the reasonableness of the job assignment. Nor does the fact that only Milske advised the
to "work now, grieve later," protect the Grievant from the reasonable consequences of her
to go home, rather than to perform assigned work.
The Grievant's decision to go home, rather than to perform assigned work was not
product of the heat of the moment. Rather, the Grievant had at least two hours to decide
course of conduct. It is not evident that, during these two hours, Milske was abusive toward
Grievant. Rather, the record indicates that Milske listened to the Grievant's arguments;
why he did not accept her arguments; sought to dissuade the Grievant from quitting; and
Grievant that the appropriate course of action would be to perform the assigned work and
issue of whether or not the Company had violated the collective bargaining agreement
through the grievance procedure.
It is evident that the Grievant became upset when she was told of the veneer lay-up
assignment. It is also evident that the Grievant's upset increased during the two-hour
with Milske. It is not evident, however, that, during the meeting with Milske, the Grievant
irrational, or otherwise not competent to make decisions.
In the early stages of the meeting with Milske, the Grievant indicated that she would
rather than perform the veneer lay-up work assignment. Thus, the Union's argument that the
of the meeting and the intensity of the meeting impaired the Grievant's judgment is not
The Grievant had knowledge of her medical condition of MS on July 27, 1999, and
consulted with her psychologist concerning this condition on July 28, 1999. As discussed
Milske did not receive notice of the Grievant's medical condition of MS until September 29,
the day of the arbitration hearing.
On July 28, 1999, Will Hoerning asked Reichwald to consider rehiring the Grievant.
It is not
evident, however, that Reichwald was advised of the Grievant's medical condition of MS
meeting. Nor is it evident that, during the processing of the grievance, any Company
representative was made aware of the Grievant's medical condition of MS.
By raising the issue of MS for the first time at the arbitration hearing, the Grievant
deprived the Company of the opportunity to give consideration to the claim that MS is a
factor. To allow the Grievant to present this claim to the arbitrator would not only
undermine the parties' contractual grievance procedure, but also, unfairly hold the
accountable for information that it did not possess at the time that it concluded that the
resigned her employment. The claim that the Grievant's medical condition of MS is a
factor has not been raised in a timely manner and, thus, will not be considered by the
Contrary to the argument of the Union, the discussion between Milske and the
not a pointless debate. By her own admission, the Grievant knew that the Company's work
provide for immediate discharge for failure to accept all reasonable job assignments. By this
rule, the Company has confirmed its significant interest in having employes perform assigned
In summary, the Grievant's absence from the worksite on July 27, 1999, was not an
absence. This absence from the worksite was preceded by several statements that a
would construe to be a declaration that the Grievant would quit rather than perform the
Contrary to the argument of the Union, the Grievant, by her words and conduct,
Milske with a reasonable basis to conclude that the Grievant had resigned by voluntarily
service of the Company. By accepting the Grievant's resignation, Milske did not discharge
An employe's prior work record is relevant to the determination of whether or not an
employer has just cause to discharge an employe. It is not a mitigating factor where, as
employe is not discharged, but rather, quits her employment.
Based upon the above and foregoing, and the record as a whole, the undersigned
1. The Company did not discharge the Grievant.
2. The Grievant quit her employment with Company.
3. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 4th day of January, 2000.
Coleen A. Burns, Arbitrator