BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL BROTHERHOOD OF
WORKERS, LOCAL UNION NO. 494,
MANNING LIGHTING COMPANY
(Steven Schelk Termination)
Mr. Andy Manning, 1810 North Avenue, Sheboygan, WI
53082-1063, appearing on behalf of Manning Lighting
Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, S.C., by
Attorney John J. Brennan, P. O. Box 12993,
Milwaukee, WI 53212, appearing on behalf of IBEW Local 494.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Brotherhood of Electrical Workers Local 494 (hereinafter referred to as the Union) and
Manning Lighting Company
(hereinafter referred to as the Company) requested that the Wisconsin Employment Relations
the undersigned as arbitrator of a dispute over the termination of Steven Schelk. A hearing
was held on December 15,
2000, at the Company's offices in Sheboygan, Wisconsin, at which time the parties were
afforded full opportunity to
present such testimony, exhibits, other evidence and arguments as were relevant. The parties
submitted the case on
oral arguments at the end of the hearing, whereupon the record was closed.
Now, having considered the testimony, exhibits, other evidence, contract language,
arguments of the parties
and the record as a whole, the undersigned makes the following Award.
The issues before the Arbitrator are:
Did the Employer have just cause to discharge the grievant? If
2. What is the appropriate remedy?
Personal performance, attitude and behavior
create an image within the community and in the eyes of our
customers. We expect that all of our employees will adhere to strictest levels of
confidentiality, accuracy and
professional personal behavior at all times.
It is our firm desire to be fair in the
administration of work rules. Certain rules and regulations are essential and
have been developed for the overall efficiency of the Company and well being of all
employees. We ask that all
members of this organization cooperate in the observance of these rules to insure our
common protection and benefit.
It is impossible to list all unacceptable
behavior. The following offenses are advisory only but should provide a
guideline as to what is considered unacceptable behavior. Manning Lighting reserves the
right to exercise discretion
in penalizing violations and to impose penalties for acts not specifically identified within the
in any of these areas will be considered a violation of Company policy serious enough to
warrant disciplinary action
up to and including termination. Serious misconduct may result in immediate discharge
. . .
Refusal to comply with instructions from
supervision or refusal to follow work rules or policies. Disobedience
. . .
Repeated failure to be at a specified workstation
ready to begin work at scheduled start times and after breaks.
Leaving a specified workstation without the permission of a supervisor. Stopping work
before the specified
. . .
The Company manufactures lighting fixtures at its Sheboygan, Wisconsin plant. The
Union is the exclusive
bargaining representative of the shop, production and maintenance employees of the
Company, including those in the
classification of Fixture Maker. The Grievant, Steven Schelk, was employed as a Fixture
Maker for two years, until
he was discharged in August of 2000. He was discharged for walking off the job.
In March of 2000, the Company introduced a set of shop rules and a no-fault
attendance policy. The policy
is based on assessing points for occurrences and it treats a tardy as worth the same number
of points as a full day's
absence. On August 25th, the Grievant arrived at work and punched in
about a minute late. He went into Supervisor
Chari Perl's office, told her he punched in one minute late and asked if he would be charged
for an occurrence. She
said that he would be.
According to Perl, when she told the Grievant he would be assessed an occurrence,
he turned and walked
towards his work station and out of sight. She went back to doing paperwork and shortly
thereafter, heard the
Grievant's voice yelling "Well, that's gotta change." She looked up, but could not see him.
A few minutes later, the
Company's delivery person came into her office and asked what that was all about. She
asked what he meant and he
said the Grievant had just come into the locker room, said "Well I told her ass off" and then
punched out and left.
According to the Grievant, when Perl told him there would be an occurrence
assessed, he told her "In that
case, I'm gonna leave." He went to his work station, turned out the light and went to punch
out. As he did so, he said
loudly "That policy is bullshit." As he went out he saw the delivery person and told him the
attendance policy was
bullshit and had to be changed.
The next day was a Saturday, and the Grievant was scheduled for overtime work.
came to work on time,
but his time card was missing. He asked Perl why he had no time card and she told him he
should take it up with his
steward on Monday, but that there was no work for him that day. He asked why and she
told him he had walked off
the job. He replied that he had told her he was leaving and she said he hadn't. He then left.
The instant grievance was thereafter filed. It was not resolved in the lower steps of
the grievance procedure
and was referred to arbitration. At the hearing, in addition to the facts recited above, the
following testimony was
Cheri Perl testified that she was one of the two supervisors at the Company, but not
the Grievant's direct
supervisor. She consulted with the Operations Manager after the Grievant left on August
25th, and they agreed that
he was guilty of walking off the job, which amounts
to a voluntary quit. The two determined that the Grievant should not be allowed to
work on Saturday, pending a
discussion with his steward on Monday. She also spoke with Steward Pam Straus and told
her what had happened.
Perl said that she had had two prior instances in which an employee had not yet
punched in for work and,
upon being told they would be assessed an occurrence for being late, said they would leave,
since an absence counted
the same as a tardy. She said she was not aware of any prior case in which an employee left
without advising the
Steven Schelk testified that he arrived a few seconds late on August
25th. He waited while Perl finished a
conversation with someone else, then went to her office. He was certain he told her he was
leaving, although he did
not know if she heard him and he denied telling anyone that he had "told her ass off."
Schelk said he had twice before
punched in late, discovered he was going to be assessed an occurrence, and told his
supervisor, Drew Schickert, that
he was leaving. He said he was not aware of any policy differentiating between someone
who had punched in and
someone who had not.
Jerry Keifenheim testified that he has been the Local's business representative
Manning Lighting for nine years. He recalled an incident several years before this one in
painter had become angry and stormed out of the building yelling. The painter was
the Union and the Company negotiated a settlement, reducing the penalty to a five-day
with a last chance agreement. On cross-examination, he acknowledged that at the time of the
with the painter, the Company did not have any written policies on attendance or walking off
Andrew Schickert testified that he has been a supervisor at the Company for the past
In that time, he had two incidents in which employees other than the Grievant found out they
going to be assessed occurrences and told him they were going to leave. One of these
already punched in and the other had not. He confirmed that the Grievant had previously
notice to him, after being told he was being assessed an occurrence. Schickert said he knew
instance in which an employee left without telling his or her supervisor.
Additional facts, as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Position of the Company
The Employer takes the position that the Grievant was discharged for walking off the
job, in clear violation
of the rules. Walking off the job is a serious violation and the Company is entitled to treat it
as a voluntary quit. The
Arbitrator should not accept the Grievant's claim
that he told Perl he was leaving. There is no reason for Perl to lie about this and it is
that, in a face to face discussion, she could somehow have missed him saying he was going
work. The Grievant's version does not make sense and the Arbitrator should accept Perl's
and conclude that he did, in fact, walk off the job.
The Company acknowledges that it handled the situation with the painter differently,
but he was a different
employee. He had 30 years with the Company and a good work record. Moreover, at the
time there was no clear,
written rule governing this conduct. The Grievant is a short service employee, who
knowingly violated a clear, written
The Position of the Union
The Union takes the position that there was not just cause for discharge and asks that
Grievant be reinstated. Although the Company introduced evidence that other employee had
punched in before they left, that is irrelevant. The key issue is whether the Grievant told
was leaving. The Company bears the burden of proof on that point and it has simply failed
to do so.
This is one person's recollection pitted against another's and there is no way to say with
whose recollection is more accurate. The Grievant's claim that he told Perl he was leaving
sense, since he plainly knew the rules and knew how to avoid violating them. Indeed, he
exactly the same thing several times before and each time had informed a supervisor that he
The Union also notes that, in the one prior case where an employee was accused of
off the job without notice, the ultimate penalty was a five-day suspension. The Company's
to distinguish that case is not valid. It may be that there was no written rule against walking
job at that time, but this is not some technicality that an employee would not realize was
Whether there is a written rule or not, it is clearly wrong and the damage to the employer is
Thus, the penalty in both cases should be the same.
The issue here is whether the Company had just cause to discharge the Grievant.
There are two basic elements
to that issue. The first is whether the Grievant is guilty of walking off the job without
notice. If so, he is clearly open
to discipline under the Company rules and the question becomes whether discharge is the
Is the Grievant Guilty of Walking Off the Job?
The question of whether the Grievant walked off the job is one of credibility
either he said he was leaving
work or he did not. I agree with the Company's argument that it is not plausible that Perl
would have missed him
saying he was leaving in the course of their
conversation. They were the only two people in her office and they were having a
There is no reason to think that she was distracted or not paying attention. If it was said,
have heard it, and she must be lying when she says he left work without notice. Further, she
consciously have done this to cause his discharge, since she immediately reported it to the
manager and participated in the discussions leading to the termination decision. She also
related it to the Union Steward.
The Union asserts that it makes no sense that the Grievant would have failed to tell
her he was leaving, since
he knew the rules and had given notice before when he left because of an occurrence under
the absence policy. I agree
that this would have been a poor decision, but I also note that the Grievant was, by his own
admission, quite upset on
the morning of the 25th. He was shouting about it afterwards and
apparently made some strong comments to another
employee as he left. Depending upon how upset he was, it is possible that he was not using
his best judgment at the
Balanced against the question of how likely it is that the Grievant would have done
this is the question of why
Perl would lie. From the testimony of the two supervisors, employees have gone home in
the past before starting to
work when told they were being assessed an occurrence for being tardy, including the
Grievant. None of those
employees were disciplined and at this hearing, both supervisors seemed to feel that there
was no basis for discipline
in those circumstances, so long as the supervisor was notified before the employee left.
Indeed, Schelker's initial
reaction to the discharge, before he was told the Grievant did not give advance notice, was
that he could not understand
why the Company was making such a big deal out of the incident. Given an attendance
policy that for some reason
treats a tardy the same as a full day of absence, that point of view makes a certain amount of
The Grievant has a motive to lie, in that his job is on the line, but that is not
determinative. The denial of an
innocent man sounds much the same as the denial of a guilty man and I cannot assume that
he is guilty in order to
resolve the credibility question. The more relevant point is that I can see no motive for Perl
to lie or for the Company
to want to frame the Grievant. Given this, and considering Perl's demeanor on the stand, I
believe it is substantially
more likely than not that she is telling the truth. That conclusion necessarily causes me to
discredit the Grievant.
The Company's burden is to prove, by a preponderance of the credible evidence, that
the Grievant failed to
give notice before leaving on August 25th. While the evidence is not so
clear-cut that I can say there is no doubt of what
happened, I do find that Perl is the more credible witness, and that the preponderance of the
evidence establishes the
charge against the Grievant. As noted earlier, walking off the job without notice is grounds
for discipline and the issue
then is whether discharge is an inappropriate penalty.
Is Discharge an Appropriate Penalty?
The Company rules specify that "leaving a specified workstation without the
a supervisor" is grounds for discipline "up to and including termination." Walking off the
generally considered a serious offense and in the absence of evidence that a more lenient
practice has been followed in the past, termination is not on its face a disproportionately
response. Here, however, the Union urges that the penalty is too severe in light of the only
case. In that case, the shop painter stormed out of the building in the course of some type of
He was fired, but the parties negotiated a settlement reinstating him with a five-day
a last chance agreement. The Union suggests that this is a more appropriate penalty.
The prior case involved a negotiated settlement to return a long service employee
had been fired in the
absence of any written rules on attendance and walking off the job. While the Union is
correct that walking off the
job is not some sort of technicality, and that with or without a written rule an employee who
walks off might reasonably
expect discipline, the issue here is the appropriateness of the penalty and the question is not
whether there is cause for
discipline. It is whether there is cause for discharge. On that point, the lack of a written
rule, combined with the long
service of the employee involved in the prior case, would have raised substantial questions
about whether the painter
had reasonable notice that his conduct could cost him his job. Neither the mitigating
circumstance of long service nor
the problem of lack of notice is present in this case. The Grievant is a short term employee
and he walked off the job
in the face of a written rule against leaving the work station without notice, and allowing
immediate termination for
serious misconduct. An argument of disparate treatment requires that the employees being
compared be similarly
situated. I conclude that the personal history of the Grievant is not similar to that of the long
service painter and that
both the rule violated by the Grievant and the penalty for violations are much clearer than
they were when the painter
was disciplined. Thus, the Grievant is not similarly situated to the only other employee
disciplined for walking off the
job and the prior case does not control the penalty determination in this case.
In conclusion, the preponderance of the credible evidence establishes that the
left work without
advising his supervisors, and thus, is guilty of walking off the job. This is a violation of the
Company's work rules and
those rules allow for termination as a penalty for this offense. Discharge is not, on its face,
a disproportionately harsh
response and while the only other case involving a walk off resulted in a suspension and a
last chance agreement, the
Grievant's case is clearly distinguishable from the prior case. Thus, I conclude that the
Company was entitled to
discipline the Grievant for his conduct and that the choice of discharge as a penalty was not
an abuse of discretion.
On the basis of the foregoing, and the record as a whole, I have made the following
The Employer had just cause to discharge the Grievant. The grievance is denied.
Dated at Racine, Wisconsin, this 4th day of January, 2001.
Daniel Nielsen, Arbitrator