BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION NO. 579
L.C.L. TRANSIT COMPANY INC.
(Grievance of Manfred Payne)
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by Mr.
Nathan D. Eisenberg, on behalf of the Union.
Michael, Best & Friedrich, by Mr. Donald J. Vogel, on behalf
of the Company.
The above-captioned parties, herein "Union" and "Company", are
signatories to a collective bargaining agreement providing for
final and binding arbitration. Pursuant thereto, hearing was held
in Janesville, Wisconsin, on April 27, 2001. There, both parties
agreed that I should retain my jurisdiction if the grievance is
sustained. The parties there presented oral arguments in lieu of
Based on the entire record and arguments of the parties, I
issue the following Award.
The parties have stipulated to the following issue:
Did the Company have just cause to terminate grievant Manfred
Payne and, if not, what is the appropriate remedy?
The Company, a food grade bulk carrier, maintains a truck
washing and repair facility in Elkhorn, Wisconsin.
There, grievant Payne washed truck tanks from the time of his
September 15, 1999, hire to the time of his September 15, 2000
termination (unless otherwise stated, all dates herein refer to
2000). Payne suffered an on-the-job injury in March which caused
him to miss work on and off until September 5, 2000, when he
returned to work.
Safety Manager Michael Ott, who is based in the Company's
Green Bay offices, testified about some of Payne's past work
problems which included repeated tardiness, not calling in, leaving
work early, and sleeping on the job. Ott was unable to go into the
specifics of certain events because the Company has lost most of
the contents of Payne's personnel file. Ott said that incident
reports are not given to employees; that Payne was on and off
worker's compensation because of his injury; and that he wanted to
fire Payne in July, but did not do so because it is too difficult
to hire new employees and because Payne was receiving disability
payments at that time.
Ott testified that Payne on September 5 following a doctor's
full back-to-work release - only performed about half the work that
a truck washer normally performs, and that he, Ott, therefore
issued Payne a warning letter on September 6 (Company Exhibit 5),
. . .
Dear Mr. Payne:
This letter is written to serve as a warning
notice that your
productivity as a tank washer with LCL Transit has been
unacceptable and future occurrences will be met with more severe
disciplinary action up to and including termination. You and I
have had numerous discussions today regarding the fact that
personnel performing the tank wash job function within our company
are able to complete the wash process in 1 hour and 2 hours for a
tank that contains chocolate. Over the past two days your
performance was significantly slower than the time it normally
takes to complete this function which has forced us to issue this
. . .
Ott added that Payne's productivity was so too low on September 7
that a driver filed a formal complaint against him, which is why he
that day suspended Payne without pay for five days and that he then
expressly told Payne to report back for work on September 14 at
Payne did not report for work on that day and he did not call
in. He did report for work on September 15. The Company that day
fired him via a September 15 letter (Joint Exhibit 5), that stated:
. . .
Your employment with LCL Transit
Company has been marred with
a series of attendance problems from leaving work early without
permission to occurrences of not attending work without notifying
LCL Transit management. On September 7, 2000 your employment with
LCL Transit was suspended for a period of 4 ½ days. You were
instructed to return to work on Thursday, September 14, 2000 at
7:00 am, this conversation was conducted by Mike Ott and witnessed
by Keith Steingle of LCL Transit management and Jim Grebing,
mechanic for LCL Transit. Being that you did not return to duty on
the specified date, compiled with your attendance history your
employment is terminated effective immediately.
. . .
On cross-examination, Ott testified that he did not personally
witness many of the incidents listed on Company Exhibit 1 which
he gleaned from Company records and which detailed Payne's alleged
work deficiencies - and that his initial September 6 warning letter
was not copied to the Union.
Then-Operations Manager Clayton Weir testified that he
personally witnessed the May 22 incident report given to Ott
relating to his failure to show up at work (Company Exhibit 2);
that he personally spoke to Payne regarding the July 26 incident
report relating again to his failure to show up at work (Company
Exhibit 3); and that Payne's incident reports which he provided
to Payne whenever he asked for them - were about an inch thick and
covered such matters as sleeping on the job, being late, and
leaving early from work on about 6-10 occasions. He also said that
he was not present when Payne was suspended on September 7 and that
he faxed the Company's September 15 termination letter to Payne
from the Green Bay office.
On cross-examination, Weir said that he did not copy Union
Exhibit 1 and various incident reports to the Union. He also said
that he was too lenient with Payne at the beginning of his
employment because of his personal problems and that Payne's doctor
sent a second letter to the Company stating that Payne was fully
released to return to work in September.
Asked what specific incidents listed on Company Exhibit 1 he
personally witnessed, Weir replied that he had first-hand knowledge
of, inter alia:
Payne leaving work early on March 22, March 23,
March 28, June 6
and July 24 without proper notice.
Payne's March 23 suspension.
Payne's failure to call in on time on May 22.
Payne's time card falsification on
Union Business Agent Darrell Shelby testified that he was
never copied with any prior incident reports or even with the
Company's September 15 termination letter and that he first learned
about Payne's termination when Payne filed his September 15
grievances (Joint Exhibit 2-4). He also said he was never orally
informed about any of Payne's earlier work problems.
For his part, Payne testified that he injured his finger on
the job and that he underwent surgery on March 24, which is why he
missed several days of work at that time. He also said that he
returned to work on light duty "on and off"; that he was not one
hundred percent recuperated when he returned to work on September
5; and that the doctor at that time had placed him on a graduated
Asked about Company Exhibit 1 which listed his alleged work
deficiencies, Payne stated that he never received a warning for
March 1; that he left work early on March 23 because he needed
surgery; that he did not recall the March 28 incident and that he
was not warned about it; that he got permission to leave early on
May 22; that he did not recall the June 6 incident and that no one
ever spoke to him about it; that he called in on June 12; that he
did not understand the July 17 entry; that the July 18 incident
never occurred; and that he did not recall the July 24 incident.
He also said that he did not report to work on September 14 because
he believed he was to return on September 15.
On cross-examination, Payne testified that he never discussed
the July 26 incident relating to supposedly not showing up at work
(Company Exhibit 3), with Weir; that he only received notice of
Company Exhibit 6 which relates to him not showing up for work on
March 15; that he got permission to leave work early on March 22
and on all other occasions; that he initially grieved Company
Exhibit 6 and that a Company representative subsequently told him
"don't worry about it" because it would be rescinded; that he did
not recall receiving a copy of Company Exhibit 4; and that his
personal doctor sent the Company a letter setting forth his back-to-work restrictions. He also
initially said "I was not given a
specific date" as to when he should return to work after his
September suspension. He then was confronted with his September 7
time card (Company Exhibit 7), which stated - in his own
handwriting - that: "Suspended for 5 days was told to report 14
Sept. 000700." Payne then said "I did make a mistake in writing
that" because he was told to return to work in five days, which he
took to mean September 15.
POSITIONS OF THE PARTIES
The Union claims that the Company lacked just cause to
terminate Payne because the Company failed to provide it with
notice of Payne's disciplinary actions; because some of the
incidents charged against Payne occurred when he was on worker's
compensation and when he had legitimate reasons for being absent or
leaving early; and because Payne was only disciplined over his work
performance, as opposed to not showing up for work on September 14,
which it calls a "minor issue". As a remedy, the Union seeks a
traditional make whole order that includes Payne's reinstatement
and back pay.
The Company asserts that it had just cause to terminate Payne
because the incidents between September 7 September 14 "cannot be
looked at in a vacuum"; because Wier's testimony rather than
Payne's testimony must be credited; because the Union must have
been aware of the incident reports even if the Company did not
provide them; and because Payne received a full release to return
to work in September.
This case turns on Article 30 of the contract, entitled
"Discharges, Suspension and Voluntary Quit", which states:
Subject to the provisions of Article 4, Section 1(b), the
Employer shall not discharge or suspend any covered employee
without just cause, but in respect to discharge or suspension shall
give at least one (1) written warning notice of the complaint to
the affected covered employee, prior to discharge or suspension,
with a copy to the Local Union, except that no warning notice need
be given to a covered employee prior to discharge if the cause of
such discharge is dishonesty or drunkenness which may be verified
by a sobriety test. (Emphasis added). Refusal to take a sobriety
test shall establish a presumption of drunkenness. A prior warning
is also not required if the cause of discharge
is: drug intoxication as provided in Article
26, Section 1 of
this Agreement, the possession of controlled substances and/or
drugs, either while on duty or on Company property; or recklessness
resulting in serious accident while on duty; or failure to report
any accident which the covered employee is aware of; or unprovoked
physical assault on a company supervisor while on duty on company
Further, no prior warning is required
where there is a
discharge for refusal of a work assignment or the unauthorized use
of equipment. Any covered employee who absents himself from work
for three (3) successive days without notification to the Employer
shall be considered a voluntary quit. However, if requested by the
covered employee or the Local Union, a hearing concerning such
discharge or voluntary quit will be arranged. Discharge,
suspension and warning letters must be postmarked no later than ten
(10) days following the Employer's knowledge of the violation,
except in cases where a letter of investigation was issued within
the ten (10) day period. A local meeting shall be required between
the Employer and the Local Union in an effort to resolve grievances
prior to docketing grievances in all cases involving discipline
unless otherwise provided herein. A phone conversation shall
satisfy this provision where mutually agreed between the Local
Union and the Employer.
The warning notice as herein provided
shall not remain in
effect for a period of more than nine (9) months from the date of
said warning notice. Habitual absenteeism or tardiness shall be
subject to disciplinary action up to and including discharge.
This language provides for two important procedural
a notice requirement to the Union whenever formal discipline is
issued and progressive discipline for an employee.
As to the former, Union Business Agent Shelby testified that
he did not receive copies of the September 7 suspension letter, the
September 15 termination letter, or any prior incident reports.
For his part, Weir admitted that he never copied any incident
reports to the Union.
The Company's failure to comply with the notice requirement in
Article 30 is simply inexcusable, as this requirement is one of the
most important provisions in the entire contract because it enables
the Union to offer aid and protection to employees facing
discipline. That is why it must be complied with in all
circumstances. The failure to provide such notice therefore can
warrant overturning a disciplinary action. See How Arbitration
Works, Elkouri and Elkouri (BNA, 5th Ed., 1997), p. 919.
But, in order to do so, it must be clear that the failure to
provide such notice was prejudicial. Id., at 919-920. If it was
prejudicial, the discipline must be overturned. If it was not
prejudicial, the discipline cannot be overturned on this basis
Here, the failure to give proper notice was not prejudicial
because Payne deliberately chose not to report to work on June 14
after Ott on June 7 had expressly ordered him to do so. While
Payne asserts otherwise, I credit Ott's contrary testimony since:
(1), Ott testified in such a credible manner; and (2), Payne's own
June 7 time card (Company Exhibit 7), states in his own
handwriting: "Suspended for 5 days was told to report 14 Sept.
Moreover, Payne chose to only work at about half speed on June
5, 6 and 7 after he received a full release from his doctor to
return to work. While Payne asserts that he was only released to
do part of his job, I credit Ott's contrary testimony that Payne
had received a full release from his doctor.
Payne's refusal to perform a full day's work for a full day's
pay after he returned to work in September and his subsequent
refusal to report for work on September 14 show that he really was
not interested in keeping his job. In addition, while Payne
claimed that he was not guilty of any of the work infractions noted
in Company Exhibit 1, I credit Weir's testimony that Payne
regularly left work early without permission; that he did not show
up at work when scheduled; and that he falsified his time card.
It is true that progressive discipline is mandated under
Article 30 of the contract for most offenses. However, it is clear
that Payne by September simply no longer wanted to work on the
Company's terms. Moreover, the Company in any event properly
followed the progressive disciplinary chain when it issued him a
written warning on September 6; when it suspended him on September
7; and when it finally terminated him on September 15. In
addition, and for the reasons stated above, it had just cause to
issue all of those disciplinary measures. As a result, Payne was
not prejudiced over the Company's failure to provide the Union with
the notice called for in Article 30, which is why his termination
But, I again want to point out that the Company is skating on
thin ice when it does not provide the Union with the notice
required in Article 30. Here, it avoided falling through the ice
only because the record so clearly establishes that Payne simply no
longer wanted to work for the Company and because its lack of
notice therefore was not prejudicial. That may not be true in the
future if it ever again fails to provide such notice.
In light of the above, it is my
That the Company had just cause to terminate grievant Manfred
2. That his grievance is hereby denied.
Dated at Madison, Wisconsin this 15th day of May, 2001.
Amedeo Greco, Arbitrator