BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION LOCAL 662
SAPUTO CHEESE USA, INC.
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Attorneys at Law,
by Mr. Jonathan M. Conti, on behalf of General Teamsters Union
Foley & Lardner, Attorneys at Law, by Mr. Bernard J. Bobber,
on behalf of Saputo Cheese USA, Inc.
General Teamsters Union Local 662, hereinafter the Union, requested that the
Employment Relations Commission appoint a staff arbitrator to hear and decide the instant
between the Union and Saputo Cheese USA, Inc., hereinafter the Company, in accordance
grievance and arbitration procedures contained in the parties' labor agreement. The
subsequently concurred in the request and the undersigned, David E. Shaw, of the
staff, was designated to arbitrate in the dispute. A hearing was held before the undersigned
November 18, 1999, in Thorp, Wisconsin. There was no stenographic transcript made of
and the parties submitted post-hearing briefs in the matter by January 7, 2000. Based upon
evidence and the arguments of the parties, the undersigned makes and issues the following
The parties agreed to waive the contractual time limit for the issuance of an award
stipulated to the following statement of the issues:
Did the Company violate the Collective Bargaining Agreement by
relieving the Grievant from
duty for non-compliance with its Good Manufacturing Practices? If so, what is the
The following provisions of the parties' Agreement are cited in relevant part:
Section 8.1 The Employer shall not discharge
nor suspend any employee without just cause
and shall give at least one (1) warning notice of the complaint against the employee to the
in writing and a copy of the same to the Union affected, except that no warning notice need
to any employee who is discharged or suspended if the cause of such discharge or suspension
dishonesty or drunkenness or use of non-prescription drugs while on duty or recklessness
in serious injury or other flagrant violations. Discharge or suspension must be by proper
notice to the employee and the Union affected. Written warning notices shall be effective for
(9) months from the date of notice.
. . .
Section 28.1 Management of the Company and
direction of the work force is vested solely
in the Company, subject to the terms and provisions of this Agreement. Such rights include,
not limited to: determine size and makeup of the work force, hire, discipline, and discharge
cause, transfer and relieve employees from duty due to lack of work or for other legitimate
prescribe reasonable rules of conduct, and change methods of operation of design of product.
. . .
The Company owns and operates a number of cheese manufacturing plants in the
including the plant in Thorp, Wisconsin it purchased from Stella Foods, Inc., in late 1997.
plant was previously owned by Dean Metropolis from 1990-1993. Stella Foods owned the
1993 until late 1997, when it was purchased by the Company. The Union represents the
non-supervisory production and maintenance employes at the Company's plants, including the
plant. There are three buildings at the Thorp location: the whey plant, the dairy and
May of 1999, Dale Paul was the Dairy Manager, Tony Farr was the Packaging Manager,
Woods was, and is, a supervisor in packaging and Matthew Wirth was, and is, the
Resources Manager. The Grievant has been employed at the Thorp plant since May of 1985.
left the Company's employ shortly before the arbitration hearing and Paul was made Plant
The Company and its predecessors at the Thorp plant have had "Good Manufacturing
Practices" (GMP's) in force that are personal hygiene and sanitary practices employes are to
In the 1970's and 1980's, there were no written policies in that regard. Metropolis
practices regarding the use of hair nets and not allowing the wearing of jewelry, but did not
them very stringently. When Stella Foods purchased the plant, it started enforcing the
forth in the GMP's in a pamphlet issued to each employe sometime after 1993. The GMP's
permit the wearing of jewelry, including rings. Stella's GMP manual, in force since 1993,
relevant part as follows:
All employees must follow specific personal hygiene and sanitary
practices to avoid physically,
chemically or biologically contaminating the foods produced by Stella Foods, Inc. and to
the laws, rules and regulations of Federal, state, and local government agencies.
These practices apply to all employees in
plants and facilities where food is prepared, processed,
packaged and stored. Consider these practices to be the least you can do to prevent
Go beyond the requirements if situations occur at your facility that require more restrictive
and sanitary practices to avoid product contamination.
. . .
Foreign Material Prevention
Employees, visitors and outside contractors must take all
necessary precautions to prevent
contamination of foods with microorganisms or foreign substances, including but not limited
perspiration, cosmetics, tobacco, chemicals and medication.
* Wearing of jewelry,
including but not limited to pins, bracelets, necklaces, wristwatches, rings
and earrings is prohibited, since jewelry presents both a sanitary and safety hazard.
. . .
Employes asked Stella's management whether wearing wedding rings would be
permitted and were
told they could do so if they wore gloves.
After Saputo purchased the plant in late 1997, the Company held a meeting of
January of 1998, including the Grievant, where they were instructed as to how to follow the
At the meeting, the Company's instructor advised employes that no jewelry at all, including
would be allowed. The GMP pamphlet was read to the employes, and all were given a
Company used the same GMP pamphlet that Stella had in force. Paul testified that there
subsequent plant meetings at which the GMP's were discussed, including the "no jewelry"
requirement. Paul also testified that upon observing another employe wearing a ring, he
employe to remove his ring and the employe did so.
The Company at some point rewrote the GMP pamphlet, keeping essentially the same
"Introduction", and adding somewhat to the "Foreign Materials Prevention" section:
Foreign Material Prevention
Employees, visitors and outside contractors must take all
necessary precautions to prevent
contamination of foods with microorganisms or foreign substances, including but not limited
perspiration, cosmetics, tobacco, chemicals and medication.
* Wearing of jewelry,
including but not limited to pins, bracelets, necklaces, wristwatches,
rings, earrings and other jewelry (including ornaments in exposed pierced body areas) is
prohibited, since jewelry presents both a sanitary and safety hazard.
The Grievant's supervisor, Duane Woods, testified that as the packaging supervisor
packaging plant, he had attempted to enforce the GMP's with the Grievant in the past
failure to wear a hairnet and his continuing to wear a ring. He testified that he would make
of waiting at the base of the stairways to remind the Grievant to put his hairnet on or about
a ring. Woods testified that he has told the Grievant on several occasions that he had to get
off and that when the Grievant stated that he would wear a glove, he told him that that was
enough, that the ring had to come off. Further, according to Woods, the supervisor in the
him that when the Grievant was working over there on a trial basis, he had to talk to the
about him still wearing his ring, although Woods could not say whether the supervisor had
Grievant he could wear a glove over it. Woods further testified that the Grievant had not
anything about his religious beliefs about removing the ring until the grievance was filed and
had not previously stated that he could not physically remove the ring. While Woods
he had reminded the Grievant verbally a number of times of the need to remove the ring, he
that he did not put the earlier warnings in writing. Woods testified that he was present with
when he talked to the Grievant and told him that he had to remove the ring.
On the afternoon of May 17, 1999, Woods issued the following notice of suspension
To: James Ciolkosz
Subject: Violation of Good
Date: May 17, 1999
Jim, you have been spoken to on many
occasions about the wearing of a ring on your finger.
You have been told that it is a violation of the Saputo Cheese USA, Inc. Good
Practices Policy to wear your ring while on the job. I have asked you to remove it, and on
May 14 Tony Farr spoke to you about this matter. While you were working at the Dairy,
spoke to you about this issue.
Jim, As you have repeatedly ignored all previous requests to
remove your ring I must regrettably
take more serious steps and inform you that I am suspending your employment until you
ring from your finger while on the job.
You may return only when you have removed the ring.
Duane Woods /s/
Woods testified that the Grievant told him that Farr had said he would be in
the GMP if he made an appointment to have the ring removed, and that when Woods asked
Grievant if he had made an appointment, he was told that the Grievant's doctor was on
that he (the Grievant) would get back to them when he did make an appointment.
The Grievant testified that he weighed approximately 180 pounds when he was first
and that he now weighs approximately 225 pounds. The Grievant testified that when Stella
out with the GMP's that said no jewelry, those with wedding rings without stones were
wear gloves. He testified that the first time he was told that he could not wear a glove over
would have to remove the ring was on May 14th when Farr spoke to him.
At that time he told Farr
that he could not physically remove it and Farr replied that he knew that, but the Grievant
make an appointment. When the Grievant asked Farr when, he was told "just not a year."
Grievant testified that he was not told by Farr that he had to do it immediately, or by the
Monday at the latest, although, Farr did tell him that he should consider this his official
warning. The Grievant also testified that when he came to work on Monday, he called his
the noon hour to make an appointment for June 9 or 10, as he did not sense any urgency.
Grievant was told that the doctor was on vacation until after Memorial Day, and that his first
back was pretty well booked up. The Grievant testified that he then returned to work
and saw Woods, who told him to come to the office, and then gave him his suspension letter.
Grievant testified he asked Woods why, as Farr had told him it was okay as long as he had
appointment. Woods responded by asking whether he had made an appointment and the
said "yes", at which time Woods told him he was suspending him anyway. The Grievant
his relationship with Woods was "shaky at times." The Grievant testified that he could not
ring past his knuckle and that in the past, when Woods had seen his ring he had pointed to it
"Get a glove on it", which the Grievant did not consider a warning or that he had to take the
According to the Grievant, he was not told until May 17 that he either had to remove the
ring or leave
work. The Grievant did concede that he may have been told by either the instructor from the
company or by Farr that there would come a time when the ring would have to come off, but
was not until May 14 when Farr spoke to him that the Grievant was made to understand it
have to come off, but it was his understanding that there was not any immediate problem as
he got an appointment to have it removed. The Grievant further testified that when he came
discuss his grievance with Wirth and Farr that they then made it clear to him that it was
he have the ring removed as soon as possible, and that he then called the clinic and, having
the situation, got an earlier appointment for June 1st.
On May 21st, the instant grievance was filed. In the grievance, the
Grievant alleged that the
suspension was unjust because wearing a wedding ring was not an issue under OSHA or
it was discriminatory because it was his religious belief to wear the ring, that it had been
okay in the
past to wear the wedding band with a glove, and that he had not had his ring off since he
and was not given ample time to see if he could have a doctor remove it. A conference was
date with Wirth, Farr, Woods, the Grievant and the local steward, at which time it was made
to the Grievant that it was necessary to have the ring removed as soon as possible.
On May 25, 1999, Wirth sent the Grievant the following letter giving him until May
return to work:
May 25, 1999
Mr. Jim E. Ciolkosz
12600 Hwy 27
Cadott, WI 54727
Dear Mr. Ciolkosz:
Following our phone conversation of Friday, May 21, 1999 the
company has determined that you
are fully capable of returning to work. Thus, you are expected to return back to work on
28, 1999 at 8:00 p.m. You will be required to be in compliance with all Saputo Cheese
Manufacturing Practices" upon your return to work.
Failure to return to work on May 28th, will be
considered as your voluntary resignation from
Saputo Cheese USA Thorp.
If you have any questions, do not hesitate to call me at (920)
Matthew R. Wirth /s/
Matthew R. Wirth
Regional Human Resources Manager
The Grievant testified that he called Farr on May 27 after receiving the letter and was
Wirth was out until after Memorial Day and gave him the telephone number of the
Corporate Director of Human Resources. The Grievant called that individual and explained
situation and was told that he could come back on June 1st instead of May
28th. The Grievant
reiterated that when Farr told him on May 14 to get the ring off, he did not tell him or else
The Grievant had the ring removed on June 1st and returned to
The parties were unable to resolve the grievance, and proceeded to arbitration of the
before the undersigned.
POSITIONS OF THE PARTIES
The Company alleges that the Grievant has a history of non-compliance with the
GMP's and that in March, April and May of 1999, Woods spoke to him about his
and instructed him to remove his ring on approximately five separate occasions. Having
remove his ring despite these warnings, the Grievant was accordingly relieved of his duties
complied with the rules by removing his ring, when he appeared at work on Monday, May
Instead of removing his ring, the Grievant filed the instant grievance on May 21.
The Company first asserts that it acted within its contractual rights by relieving the
of his duties until he complied with the GMP's. The Grievant was repeatedly verbally
warned in the
prior two months about his non-compliance and was instructed to remove his ring.
his past behavior, the Grievant resisted compliance and in fact was the only employe in the
facility who failed or refused to remove his jewelry as required. The Company's action is
sanctioned by the Agreement, which states that the Company may "relieve employes from
to lack of work or for other legitimate reasons. . ." The Grievant's ongoing failure to
the GMP's is obviously a "legitimate reason." The GMP's are not a matter of convenience;
they are serious sanitary and safety rules to protect the health and safety of the consumers of
Company's products. The Company makes it very clear in the GMP's themselves that they
minimal requirements imposed on all employes and are necessary to comply with the law and
minimize risk to health contamination or damage to the food product.
The Union's argument that the action of relieving the Grievant is actually a
suspension that is unjust because it was not preceded by written notice, should be rejected for
reasons. First, the action here was not the equivalent of a standard disciplinary
suspension of the type referred to in Article 8 of the Agreement. Unlike a disciplinary
a set period of time, the Grievant was not required to miss any time at all in this case. Even
Grievant concedes he could have returned to work on May 17 had he simply removed his
further concedes that he did not even try to remove the ring at home, nor call any type of
clinic to get
advice on how to remove the ring or go to a hospital emergency room to have the ring
even try a jeweler. In reality, he imposed the lost work time on himself by failing to comply
GMP and by failing to make even a minimal attempt to comply. The fact that the notice
word "suspension" does not, in and of itself, substantively convert the action into the
a disciplinary suspension.
Even assuming that the action constituted a disciplinary suspension, the Company
with Section 8.1 of the Agreement. The Company did not have to predicate any disciplinary
suspension upon prior written notice under the terms of that provision because of the
ongoing and repeated refusals to comply with the GMP's which constituted "flagrant
they were open, repeated, ongoing, and committed despite seven verbal warnings from
in violation of the express written GMP's. Further, even if the violations are not considered
flagrant, the Company still complied sufficiently to meet the requirements of 8.1, since it did
written notice of the complaint against the employe as he was being relieved from his duties.
8.1 does not include a specific amount of time by which a written notice must precede the
action, or give the employe an express right to cure. The Agreement only requires that the
give at least one notice of the complaint against an employe in order to impose a suspension
discharge. The May 17, 1999 memo to the Grievant is such written notice of the complaint,
warns him that he will not be permitted to work until he complies with the GMP. In the
this case, the employe was fully and exclusively in control of his own compliance with the
thus, his ability to return to work, and the written notice should be deemed sufficient to
Section 8.1 In addition, the Union's "hypertechnical arguments" about the alleged lack of
written notice is merely grasping at straws. Even the Grievant concedes that once he was
by Farr that he was required to remove his ring, he understood the requirement and did not
written notice to help him understand further or to motivate him to comply.
The Company asserts that it was not until the arbitration that the Grievant claimed for
time that he was never informed prior to May 14 that he was required to remove his wedding
That new story is simply not true. Woods told the Grievant on some five prior occasions
that he was
required to remove his ring, consistent with the Company's application of the GMP's, and as
Grievant was expressly instructed at the training session in January of 1998. The Grievant
claimed in the grievance process or his written grievance that he was not told before May 14
ring had to come off. This new story can only be true if Woods is lying. Not only does
have any incentive to lie about this, the substance of his other testimony and candor at the
confirms that he has told the truth. On the other hand, the Grievant has played the system
out of work until June 1st and is now
attempting to recover backpay. The allegation that Woods would lie about these things
due to some
vague tension between he and the Grievant is "just plain nonsense". Further, the fact that
Grievant is spinning new tales is made clear by his testimony about former Packaging
The Grievant's stories about his conversations and understandings with Farr are not credible,
the Union apparently made no effort whatsoever to require Farr's presence at the hearing.
Acknowledging the importance of Farr to his story, the Grievant claims he asked Farr to
arbitration, but there is no indication in the record of any attempt whatsoever by the Union to
subpoena Farr. On the other hand, the Company did not subpoena Farr because, until it
Grievant's new story at the hearing, it had no indication that he was claiming that Farr's
were important. Further, the Grievant's attempt to shift responsibility to Farr is inconsistent
written grievance. While the Grievant claims that Farr expressly told him on May 14 that he
be in compliance if he simply made a doctor's appointment, that is contradicted by the
confession that Farr unequivocally told him that the ring had to come off. If the Grievant
believed that the May 17 removal was unjust based on Farr having expressly told him he
considered in compliance if he simply made a doctor's appointment, the Grievant would have
stated in his written grievance, but he did not do so. This is especially telling, as the
specifically enumerate several different arguments he thought would show the Company's
to be unjust. Moreover, the story is further contradicted by the fact that Farr is the manager
rejected and signed the grievance. If Farr had really told the Grievant he only needed to
appointment in the relatively near future, why would he have rejected the grievance and
May 17 removal of the Grievant from work until he complied with the GMP's? Just as Farr
say any such thing, it is similarly untrue that the Grievant had no idea prior to May 14 that
required to remove his ring.
The Union also seems to be critical of the Company for not escalating the matter
into an adversarial proceeding by overtly disciplining him with written warnings prior to his
The Company, however, has not had to discipline any employe to obtain compliance with the
Anyone with common sense who works in a food manufacturing facility understands the
importance of full and strict adherence to the rules regarding personal hygiene and sanitary
conditions. As explained in the testimony of both Paul and Woods, in all other instances of
non-compliance, the Company has merely had to verbally inform the employe of such and
has immediately complied.
The Company concludes that it had a legitimate reason to relieve the Grievant from
on May 17th until he complied with the Company's GMP and requests that
the grievance be denied.
The Union asserts that Stella had previously allowed those employes who did not
or were unable to, remove their wedding bands to comply with the GMP by wearing gloves
rings, and that Saputo continued that policy when it bought the plant in 1997. Even after the
meeting in January, 1998 regarding the prohibition against jewelry, Farr told the Grievant
could comply with the no jewelry rule by wearing a glove over the ring. Between March
of 1999, the only mention the Grievant heard from any of his supervisors regarding the
his wedding ring was the occasional statement that he needed to "get a glove on it". It was
May 14, 1999, that Farr approached the Grievant and told him that wearing a glove over the
no longer acceptable, and that he needed to remove it. The Grievant told Farr that he was
physically capable of removing it, and Farr replied that he was aware of that. The Grievant
he would call his doctor to set up an appointment to have it removed, and Farr stated that
acceptable, provided that it was not a "year from now". The Grievant's understanding then
as long as he had an appointment scheduled and continued to wear the glove, he was in
with the GMP. At no time during their conversation did Farr tell the Grievant that if he did
remove his ring by Monday, he would be suspended, nor did Farr give the Grievant a
about the ring at this time. The Grievant reported for work on Monday, May 17 and during
break telephoned his doctor and the earliest appointment the Grievant was able to schedule
June 9 or 10. When the Grievant returned from his lunch break, Woods approached him and
that he was being suspended for wearing his wedding ring. The Grievant informed Woods
had told him that if he scheduled a doctor's appointment to have the ring removed and wore
over the hand, he would be in compliance. Woods asked the Grievant whether he had an
appointment, to which the Grievant replied that he did, but Woods nonetheless suspended
Woods never issued a written warning to the Grievant prior to the suspension.
After the Company sent the Grievant a letter on May 25 stating he had to return to
May 28, the Grievant called his doctor on May 27 and was able to move his appointment up
1. The Grievant informed the Company on May 28 that he had moved up his appointment,
the Company refused to permit him to return to work. The Grievant had the ring removed
1. The Union asserts that it was common knowledge in the plant that the Grievant was not
capable of removing the ring from his finger and that at no time did anyone from the
the Grievant's finger to determine how tight the ring was.
As to the alleged contractual violation, the Union asserts that the Company did not
cause to suspend the Grievant. Section 8.1 of the Agreement requires the Company to have
cause before discharging or suspending an employe. In this case, the Grievant had never
disciplined in any manner for wearing his wedding ring until his suspension and the
Company has been lax in enforcing its rule against wearing jewelry at work. Like
permitted employes, including the Grievant, to comply with the rule by wearing a glove over
wedding ring, and continued that policy until May 14, 1999, when Farr informed the
would no longer be in compliance with the rule by simply wearing a glove over the ring.
point, the only time the Grievant had been warned about the ring was the occasional
he needed to "get a glove on it (his ring hand)". When Farr finally informed the Grievant
needed to remove the ring, and that a glove was not sufficient, he did not direct the Grievant
remove the ring immediately, nor did he warn him that failure to remove it by the following
would result in his suspension. Rather, he lulled the Grievant into believing that scheduling
appointment to have the ring removed in the near future and continuing wearing a glove
in the interim. The Grievant was not physically able to remove the ring himself and
scheduling of an appointment to have it removed was not some kind of delaying tactic, but
The Union asserts that arbitrators will disturb penalties imposed by an employer
without clear and timely warning where the employer, over a period of time, had condoned
violation of the rule in the past" leading employes "reasonably to believe that the conduct in
is sanctioned by management." Elkouri and Elkouri, How Arbitration
Works, (Fifth Edition, 1997)
at 933. When Woods suspended the Grievant on May 17, the Grievant had done nothing to
the suspension, but had merely followed what a Company supervisor had told him to do,
an appointment to have the ring removed and continue to wear the glove over the ring.
the Company nonetheless deemed the Grievant's conduct to be in violation of the work rules.
some point between May 14 and May 17, the Company determined without warning that the
was no longer in compliance with the rule. The Union concludes that the Company did not
cause because the Grievant had never been warned that he could be suspended and because
in compliance with Farr's May 14 instructions.
Next, the Union asserts that the Company violated Section 8.1 of the Agreement by
to issue the Grievant a written warning prior to his suspension. Assuming,
arguendo that the
conversation between Farr and the Grievant can even be considered a verbal warning, Woods
have the authority to suspend the Grievant on May 17 because the Company never previously
him a written warning as required by Section 8.1. Even assuming that Farr's directions on
constituted a verbal warning, Woods should have issued the Grievant a written warning
a suspension for wearing his ring to work on May 17. The Company clearly did not follow
progressive discipline required by the Agreement in this case since the suspension was not
of "dishonesty, drunkenness or use of non-prescription drugs while on duty or recklessness
in serious injury", nor can his failure to remove his ring immediately on May 17 be
"flagrant violation". The Union cites arbitration awards in which, under contract language
to that in Section 8.1,
arbitrators held that the employe who had been terminated was entitled to a written
prior warning and
therefore ordered the company to reinstate the employe and make him whole. In one case
similar progressive discipline language, an arbitrator found that the offense did not fall within
specifically listed in the agreement for which there could be discharge without a prior
rejected the employer's argument that it could discharge the employe without warning
employe handbook stated that such conduct would not be tolerated. The arbitrator concluded
language in the labor agreement takes precedence over the unilateral employe handbook.
although the company's Handbook in this case prohibits the wearing of jewelry while
Agreement requires the Company to issue a written warning prior to suspending an employe
type of offense. Also, the Handbook makes no mention of the possible consequences of
jewelry at work. Section 8.1 of the Agreement therefore controls this case.
Lastly, the Company attempts to argue that it allegedly gave the Grievant a number
warnings prior to the suspension such that they somehow collectively amounted to the
a written warning. That argument is without merit. Woods' alleged verbal warnings issued
March and May simply consisted of reminders to the Grievant that he needed to keep a glove
ring at all times. At no time during these very brief exchanges did Woods ever tell the
he needed to remove the ring and that failure to do so would result in discipline. Further
Woods did not issue the Grievant "verbal warnings" is the fact that not any of these verbal
was memorialized in writing, as was Woods' normal practice. Thus, the Company violated
8.1 by suspending the Grievant without prior warning.
The Union asserts that the Grievant was indefinitely suspended on May 17. The fact
doctor's appointment was initially scheduled on June 9 or 10 was due to the doctor's
prior to that. Regardless, the appointment was not so far in the future as to be unreasonable,
was in compliance with Farr's instructions on May 14. After the Grievant was suspended,
his grievance on May 21. While the Grievant was eventually able to move his appointment
up to June
1, the Company nonetheless refused to let him resume working prior to that date. Thus, the
did not unnecessarily delay his return to work and the Company played a role in that delay.
any allegation that the Grievant did not have the ring removed earlier because he wanted to
farming done in the interim is without merit. He did no more farming work during the time
suspended than he normally would have while working full-time. For all of the foregoing
the Union asks that the suspension be rescinded and the Grievant be made whole.
The first issue is whether the Company's actions on May 17, 1999 involving the
constituted a "suspension" within the meaning of Section 8.1 of the Agreement, or whether it
non-disciplinary in nature, as the Company asserts. The maxim, "If it quacks, it's a duck"
this case. While it is true that the Grievant had some control over how long he would be off
he was nonetheless involuntarily suspended from his work without pay for being in violation
work rule. The purpose behind this particular work rule does not distinguish this case from
involving a suspension without pay for violating a work rule. Therefore, it is concluded that
8.1 of the Agreement applies.
Section 8.1 requires that the Company have just cause to suspend or discharge an
and that the employe has been given "at least one (1) warning notice of the complaint against
employe in writing. . ." unless the cause of the suspension or discharge is "dishonesty or
or use of non-prescription drugs while on duty or recklessness resulting in serious injury or
The Company first argues that if Section 8.1 is found to apply, a written warning was
required in this case because the Grievant's actions constituted a "flagrant violation". That
preceded by examples of conduct that the parties have agreed justifies the immediate
severe discipline without the need for prior warning. The conduct is of the type that is
recognized as being so serious and so obviously wrong that one is assumed to know that if
engages in such conduct, severe consequences will follow. The Grievant's conduct in this
not fall within that category. Also, although the Grievant openly failed to comply with the
Company's "no jewelry" rule as written, it was not a "flagrant violation" within the meaning
Section 8.1. There is evidence that even after the training session in January of 1998,
permitted to wear a wedding ring as long as a glove was worn over it. Even according to
log of his contacts with the Grievant about wearing his ring, Woods said nothing to him
about it until
March 8, 1999.
The record also indicates that the Grievant was not given adequate warning of the
consequences of not removing his ring. While Woods testified that he told the Grievant on
those occasions that the ring had to come off, the Grievant testified that Woods only told him
a glove on it", or something similar. That factual dispute aside, Woods conceded that he did
warn the Grievant prior to May 17th that he would be suspended if he did
not remove the ring,
although he felt that the Grievant was aware of that possibility from the GMP pamphlet.
pamphlet does not, however, make any statements about potential disciplinary consequences
violating the GMP's. The record also demonstrates that Woods was not averse to issuing
warnings to the Grievant for violating GMP's, and in fact had issued a verbal warning (with
confirmation) to the Grievant in February of 1997 for not wearing a hair net after being
spoken to about it. (Company
Exhibit 5). Other than claiming it tries to obtain compliance with the GMP's
short of disciplining
employes, the Company does not explain why, if the Grievant had been verbally warned on
occasions about wearing his ring, the warnings were not confirmed in writing and why he
receive a written warning prior to the suspension.
With regard to what the Grievant was told on May 14th by Farr, it
accompanied Farr on that date, and he did not contradict the Grievant's testimony as to what
said. The Grievant testified that Farr told him he was giving him a verbal warning, but did
him to have the ring removed by Monday or he would be suspended from work; rather, he
acknowledged that the Grievant could not remove the ring himself and indicated it would be
to make an appointment to have it removed in the near future. The Grievant's unrebutted
was that he reiterated to Woods on May 17th what Farr had told him on
May 14th and that Woods said
he was suspending him anyway. Woods was present for that testimony and was not called to
The Company also asserts that Section 8.1 does not provide a time frame by which
notice of the complaint against the employe must be provided, and that therefore the May
of suspension satisfies that requirement and further, that the requirement is just a
of those arguments is persuasive. The purpose of requiring a written warning prior to
severe discipline is to place the employe on notice of the seriousness of his conduct and the
consequences, and to provide the employe an opportunity to correct his/her conduct, and
avoid the more serious discipline. Those purposes are obviously not served by permitting the
employer to give the written warning at the same time the more severe discipline is imposed.
same reason, the requirement of a prior written warning is not a mere technicality. Further,
8.1 also requires additional written notice of the suspension or discharge. The parties
not intend then that the earlier written warning notice and the notice of suspension could be
The burden of providing a prior written warning is not onerous, and could easily
met by the Company in this case. It is concluded from the above that the Grievant was not
adequate warning of the consequences of not having his wedding ring removed by Monday,
and that the Company failed to provide the written notice in that regard required by Section
the Agreement prior to imposing a suspension.
For the foregoing reasons, it is concluded that the Company violated Section 8.1 of
parties' Agreement when it relieved the Grievant from his duties without pay on May 17,
for not complying with the Company's Good Manufacturing Practices. As to remedy,
demonstrates that the Grievant took steps to move up his appointment to have his ring
did not unreasonably delay his complying with the GMP's and return to work. Therefore,
make whole remedy is deemed appropriate in this case.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance is sustained. The Company is directed to immediately make the
James Ciolkosz, whole by paying him all pay and benefits he would have received under the
Agreement, but for the Company's action in removing him from work from May 17, 1999
Dated at Madison, Wisconsin this 25th day of February, 2000.
David E. Shaw, Arbitrator