BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
UNITED STEEL WORKERS OF AMERICA LOCAL
(Grievance of Keith Clarke)
Mr. George F. Graf, Murphy, Gillick, Wicht
& Prachthauser, Attorneys at Law, 300 North
Corporate Drive, Suite 260, Brookfield, Wisconsin 53045, appeared on behalf of the Union.
Mr. Jonathan O. Levine, Michael, Best & Friedrich,
Attorneys at Law, Suite 3300, 100 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202-4108, appeared on behalf of the
The above-captioned parties, herein "Union" and "Company", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Waukesha, Wisconsin, on February 15, 2000. There, the parties agreed that I should
jurisdiction if the grievance is sustained. The hearing was transcribed and both parties filed
were received by April 11, 2000.
Based upon the entire record and arguments of the parties, I issue the following
I have framed the issues as follows:
1. Is the grievance arbitrable?
2. If so, did the
Company have just cause to terminate grievant Keith Clarke and, if not,
what is the appropriate remedy?
Grievant Clarke, a Millwright, was employed by the Company for about 15 years
June 4, 1999 termination for horseplay (unless otherwise stated, all dates hereinafter refer to
Clarke previously was suspended for three days in 1997 for following a supervisor home and
received another three-day suspension in May, 1999, for abusive language directed at fellow
Tom Harmon, who has been employed for about 27 years, and who has served as a Union
steward for much of that time. Indeed, in his role as a Union steward, Harmon previously
represented Clarke on several occasions. (Since the first suspension occurred more than
ago and since his second suspension has been grieved, the merits of those suspensions are not
considered herein. Hence, the Company's discharge decision stands or falls entirely on
Company had just cause to discharge Clarke over the June 3 incident described
The facts leading up to the second suspension must be detailed because they center on
happened between Clarke and Harmon at a May 21 meeting where employes were discussing
quality of someone else's work. There, after Clarke complained about that person, Harmon
that he had never experienced any problems with that other person and that he was a good
Clarke then became very angry, got up from his chair, and walked over to Harmon where he
within a few inches of Harmon's face, at which point he yelled, "Shut the fuck up!"
the incident to management who, in turn, suspended Clarke for three days. Clarke returned
on June 3.
Harmon testified here that at about 1:15 p.m. on June 3, he was carrying a heavy
cylinder on his left shoulder while passing through an outside aisle; that Clarke was driving a
in the aisle that was coming towards him from the opposite direction; that Clarke laughed at
veered the steering wheel of the forklift towards him; that the forklift then accelerated and
at him; that one of the forks of the forklift pinned his left ankle against a raised concrete
pad; that he,
Clarke, then said, "You son-of-a-bitch. You've gone too far this time"; that he started to
but then returned to put the cylinder down; that he visited the Company's nurse who
small bruise on his left ankle; and that he then reported the incident to management.
On cross-examination, Harmon said that the Company's Safety Handbook requires
on vehicle roadways to walk on the left side of an aisle rather than the right side he was
June 3; that he could have taken a different path on June 3; that even though his personal
notes of the
incident (Company Exhibit 3) state he went to the maintenance department before he
went to the
nurse's office, he in fact first went to the nurse's office; that he never before had any
difficulties with Clarke; and that Clarke never threatened him on May 21.
For his part, Clarke testified that he first recognized Harmon when he was about ten
away; that he "tried stopping the truck"; that when he was in a dip or rut in the aisle way,
came out of neutral, the engine revved, and I came to a complete stop at that time"; that
about two feet away; that "As I'm trying to get out of the rut, I would be steering to the
Harmon told him, "That's it, you son-of-a-bitch"; and that he, Clarke, then laughed as
On cross-examination, Harmon testified that he used the forklift's inching brake to
going through the dip and that his foot never came off the accelerator; that "When I'm in the
[Harmon] is right beside me"; that while "The forks and the front tire passed him", "I did
him"; that the dip "made the truck swerve"; and that, "When I was in the rut, that's when I
the wheel so he would have enough room to to walk beside it." He also said, "I
didn't stop. I
proceeded to go to my destination." (Tr. 205). He was later asked: "So you never came to
complete stop?", to which he replied, "Not a full stop, no." (Tr. 207).
POSITIONS OF THE PARTIES
The Union claims that the Company lacked just cause to discharge Clarke because "it
impossible to discern the absolute truth" as to what happened during the June 3 forklift
that the Company has therefore failed to meet its burden of proving that Clarke committed
misconduct alleged against him. It also contends that "Harmon's version of the events is so
it cannot be credited"; that "Clarke's version of the events is more credible than Harmon's";
is "no real evidence to support the case. . ." against Clarke; and that the grievance should be
because a judge in Clarke's defamation case against Harmon ruled that it was impossible to
whether Clarke or Harmon should be credited regarding the June 3 incident. As a remedy,
asks that Clarke be reinstated with full backpay.
The Company, in turn, contends that it had good cause to discharge Clarke because
he could be fired for aiming his forklift at Harmon; because such misconduct "is good cause
immediate discharge"; because Harmon's testimony should be credited over Clarke's
because Clarke's defenses are without merit.
The first issue to be decided is whether there is any merit to the Company's claim
grievance is not arbitrable because the parties earlier agreed in the grievance procedure that
would not be reinstated if he failed a drug test which he eventually did. The record,
not so clear whether any such deal was ever struck. Hence, I find the grievance arbitrable.
As for its merits, this case turns entirely on the heads-on credibility clash between
Harmon over what occurred during the June 3 incident. If Clarke is believed, the grievance
sustained because Clarke did not do anything wrong when his forklift hit the rut and when it
missed hitting Harmon. If Harmon is credited, the grievance must be denied because Clarke
deliberately aimed the forklift at him in apparent retaliation for Harmon having previously
about Clarke's conduct on May 21, which in turn led to Clarke's three-day suspension. In
connection, it must be remembered that the Company bears the burden of proving that
Clarke, in fact,
engaged in the misconduct alleged. If it fails to meet that burden and/or if the record is too
as the Union suggests, the discharge must be overturned.
Since there is no independent evidence showing what happened other than the
the two chief protagonists, particularly close attention must be paid here to any major
and contradictions in their respective accounts. For if any such inconsistencies or
appear, that would be a telltale sign that the protagonist is not telling the truth.
I have examined all of Harmon's testimony and have concluded that there are no
contradictions within it to warrant discrediting his account as to what happened. The only
basis for finding otherwise is the fact that Harmon's contemporaneous notes of the June 3
(Company Exhibit 3) state that he complained to management and then went to the nurse's
when in fact he first visited the nurse. Harmon credibly testified, though, that he then wrote
did because he was very upset and because he initially wanted to complain to management,
changed his mind. Given my ultimate finding as to what actually occurred on June 3, it is
understandable as to why he made this error which goes to what he did
after the incident, rather than
to what happened during the incident itself.
The same is not true of Clarke's testimony, particularly his testimony at the civil
suit he brought against Harmon, a suit that was ultimately dismissed and then apparently
The transcript of that court proceeding ("Ct. Tr."), which I have considered for the limited
of impeachment (Company Exhibit 6), shows the following exchanges:
Clarke was then asked:
Q. You stopped at 12 inches, or passed at 12 inches?
A. At approximately 12 inches
yes, I passed him.
Q. Passed him and kept going?
A. Yes. (Ct. Tr. 18).
He later contradicted himself when he was asked:
Q. Did you come to an immediate stop when you
saw the forklift was getting close to
A. Immediate. As much as
immediate as I could, yes. The brakes on the truck aren't so good,
considering the momentum through the bump. I stopped as soon as possible, yes. (Ct. Tr.
He thus contradicted himself in this proceeding when he said that
he used the truck's inching brake
to slow down, rather than the regular brakes that would have caused the forklift to stop
it did. (Tr. 187, 208).
As for laughing at Harmon, Clarke said:
"The time that I did laugh was when he turned around and came
back and went to the office."
(Ct. Tr. 31).
Clarke was later asked:
Q. You laughed at him after you passed by him and
because he was going to the office to report
A. Yes. (Ct. Tr. 31-32).
Clarke was again asked:
Q. Do you agree you laughed at him when
he appeared to go to the office to report such an
A. Yes, I will agree to that.
(Ct. Tr. 34).
He later contradicted himself when he said:
"Twelve inches [which was the distance that Clarke claimed
separated the nearest part of his
forklift from Harmon] is when I laughed at him. He was right here beside me." (Ct. Tr.
Asked what caused the forklift to swerve, Clarke first testified:
"So I did hit the bump. But the result of hitting the bump made
the truck swerve. . .I personally
did not swerve that truck. When I hit the bump, yes, I didn't swerve. The forklift
He later contradicted himself when he said:
"I swerved to avoid the bump." (Ct. Tr. 21).
He further contradicted himself when he said:
"When I was in the bumps and seeing that it was Mr. Harmon, I
applied the brakes because, when
I seen him when I swerved, which put me directly in those bumps, I stopped. So when I
was directly right beside me 12 inches away." (Ct. Tr. 37-38).
Clarke therefore has given contradictory testimony as to: (1), whether he did or did
to a complete stop; (2), whether he used the regular brakes or inching brake; (3), when he
at Harmon; and (4), whether he did or did not deliberately swerve the forklift to avoid hitting
These self- contradictions make it impossible to credit any part of Clarke's testimony.
result, I credit all of Harmon's contrary testimony and find that Clarke on June 3 laughed at
when he first saw him in the aisle way; that Clarke then accelerated the forklift and
it at Harmon; and that the forklift hit Harmon's left ankle. Since Clarke's act was deliberate
outrageous, and since Clarke knew that that kind of misconduct could lead to discharge, it
concluded that he was guilty of the misconduct alleged and that the Company had just cause
terminate him pursuant to the Company's plant rules (Company Exhibit 5), which state:
FIGHTING OR HORSEPLAY
Fighting or horseplay will not be tolerated on Company premises
and will be cause for
disciplinary action including discharge.
In light of the above, it is my
1. The grievance is arbitrable.
2. That the Company had just cause to terminate grievant Keith Clarke. His
is therefore denied.
Dated at Madison, Wisconsin this 5th day of July, 2000.