BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHEET METAL WORKERS' INTERNATIONAL
LOCAL UNION NO. 18
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jill M. Hartley, 1555 North Rivercenter Drive, Suite 202,
P.O. Box 12993, Milwaukee, Wisconsin 53212, appearing on behalf of the Union.
Michael, Best & Friedrich, LLP, by Attorney Eric H.
Rumbaugh, 100 East Wisconsin Avenue, Suite 3300, Milwaukee, Wisconsin
53202-4108, appearing on behalf of the Employer.
Sheet Metal Workers' International Association, Local Union No. 18, herein
Kees, Inc., herein Employer or Company, are parties to a collective bargaining agreement
provides for final and binding arbitration of certain disputes. On December 16, 1999,
advised the Wisconsin Employment Relations Commission they had selected
Thomas L. Yaeger from
its staff as arbitrator to hear and decide a grievance alleging the Employer violated the
bargaining agreement by discharging R.K. A hearing in the matter was held in Manitowoc,
Wisconsin, on August 2, September 6 and October 11, 2000. Briefing
was completed on January 4,
To maximize the ability of the parties we serve to utilize the Internet and
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 parties were unable to stipulate to a statement of the issue. The Employer
issue should be stated as "whether the grievant was properly terminated." The Union
issue should be framed as "was the grievant discharged for just cause." The parties did
agree that if
the Arbitrator finds the grievant should not have been discharged and orders reinstatement
pay that the Arbitrator should retain jurisdiction in the event the parties are unable to agree
extent of remedy ordered.
The undersigned frames the issue as follows:
Did the Company have just cause to terminate the grievant,
R.K.? If not, what is the
MANAGEMENT RIGHTS PLANT RULES
1. Nothing in this Agreement is intended to limit the
supervise and direct its work force, including the right to establish new jobs, increase of
number of jobs, change materials or equipment, schedule and assign work to be performed,
hire, re-hire, re-call, transfer, or layoff (sic) employees according to production needs, all
limitations imposed in this Agreement. The Company shall have the right to discipline or
employees for just cause, it being understood that the Company shall not discriminate against
employee under this Section. If it is determined that any employee has been discriminated
under this Section, said employee shall be offered reinstatement to his job with full
any lost earnings.
The company has the right to adopt and
maintain reasonable plant rules and safety regulations.
The Union is to be notified immediately of any changes in company rules.
. . .
1. It is expressly understood and agreed that the
not request and
the Union will not be required during the course of this Agreement to negotiate any other
wage payments other than that expressly agreed upon in Article VI.
2. It is understood that foregoing shall not bar the
Company from establishing
and/or maintaining reasonable standards of production provided that the Union reserves the
make its own independent study of such job standards if they are used as a basis for
discharge and subject such job standards to the grievance procedure.
. . .
R.K. began working for Kees, Inc., in January 1996. R.K. was hired as a welder;
he did not immediately start welding when he began with the Company. R.K. worked in the
Trougher Department on the punch press and other jobs within Kees for approximately his
then moved to welding. R.K. welded for a couple of months, then injured his shoulder and
placed on light duty by the former owner of the Company. At the end of 1998 or the
1999, R.K. went back to welding full time.
Within a few months of returning to full-time welding, R.K. sustained a shoulder
injury on the
job. The parties dispute when this injury occurred. The injury report submitted by R.K.
he was injured on March 21, 1999, but that was a Sunday and he was not scheduled to
work that day.
His supervisor signed the injury report on Monday, May 24, and R.K. advised the
Compensation Examiner, Dr. Brown, and his own physicians that he that he injured
himself on Friday,
May 21, 1999. Also, he testified he was injured while welding, but from
March 18th through the 24th
he was assigned to punching core blades and not welding. While R.K. had been
in his shoulders dating back to February 1999, he injured his shoulder when he and a
trying to lift a large jail grill. R.K. completed an accident report at the time of the accident
submitted it to the Company. Following his injury, R.K. saw his doctor who diagnosed the
as a rotator cuff injury and placed him on prescription medication.
The Company began a time study in mid to late February 1999. With the advent of
study, the Company held a meeting with the welders and informed them that the study
was for the purpose of determining pricing for parts. In connection with the time
study, the welders
were required to complete time sheets specifying the times it took them to complete their
Initially R.K. did not have any work restrictions as a result of the injury; however,
shoulders continued to bother him and the injury did not seem to get better so his doctor
to an orthopedic surgeon. R.K. first saw the surgeon, Dr. Northrup, on June 2,
1999. Dr. Northrup
reaffirmed Dr. Peschke's diagnosis of a rotator cuff injury, gave R.K. a
50 pound weight restriction
and indicated that he needed to watch what he was doing so that he would not continue to
injury. In addition, Dr. Northrup restricted R.K. from reaching and lifting at the
same time. R.K.
brought his work restriction into the Company the following work day and presented it to his
When, however, R.K. brought in his first set of doctor's restrictions on or about
June 3, 1999,
Norman and supervisor Ken Evrats met with R.K. and Union steward Tim Krupp and
that they intended to start monitoring his production and that if it went down, they would
disciplinary action. 1/
1/ Norman testified that he and
Evrats spoke with R.K. prior to June 3, 1999, regarding his production on an
R.K. received his first disciplinary warning on June 28, 1999. Norman and
Evrats met with
R.K. and Union steward Krupp over the discipline.
The next event which precipitated discipline occurred on July 19, 1999.
Evrats, came to his bench at approximately 6:30 a.m. and gave R.K. a job. The job
required R.K. to
weld sleeves. R.K. explained to Evrats that his shoulder was really bothering him and that
did not fit within his work restrictions.
The two got into an argument regarding the extent of the doctor's restrictions and as
Evrats brought over a platform and told R.K. to stand on it to weld the sleeves. R.K.
standing on the platform took a lot longer and when Evrats told him that he didn't care, R.K.
to speak with the Union steward.
On his time sheet for the morning of the 19th, R.K. indicated that
spoke with Evrats and
Krupp from 6:00 to 6:40 and spoke with Norman for fifteen minutes regarding the work
and job assignment. The following day, R.K. received a second written warning for
falsifying his time
sheet "by overstating the time he spent on various exempt items" and "talking to the Union
R.K.'s third disciplinary warning and corresponding three-day suspension occurred on
August 24, 1999. The August discipline was issued for alleged continued failure to
On November 17, 1999, R.K. was called in to meet with Norman, Evrats and
Krupp. At the
meeting Norman and Evrats criticized the manner in which he was putting parts in his sleeve
saying that it was inefficient. Norman also accused R.K. of wasting time by using a fork lift
skids onto his table. Norman also accused R.K. of walking around talking with people to
and using the restroom further away from his work station every hour on the hour.
The following day, November 18, 1999, R.K. was called into the office at the
end of his shift.
Norman, Evrats and Krupp were present and Norman informed R.K. that they had decided
terminate him because he was not getting enough work done.
POSITIONS OF THE PARTIES
R.K. was an unacceptably slow welder. R.K. has admitted he was a slow welder.
study showed that R.K. was by far the slowest welder at Kees. Throughout the grievance
progressive discipline process, neither R.K. nor the Union ever suggested that Kees was
wrong jobs, or that if more jobs were studied, R.K. would not appear to be so slow.
complained about R.K. and testified that R.K. worked very slowly, before and after his
R.K. was observed simply standing around and not working. There are no flaws with the
R.K. was progressively disciplined for poor productivity.
Staring in March 1999, R.K. was verbally counseled regarding his productivity, with
discipline. R.K. received a verbal waning for poor productivity on June 3, 1999. On
June 28, 1999,
R.K. received a written warning for poor productivity. On July 20, 19999, R.K.
received a second
written warning for falsifying his time sheet. On August 24, 1999, R.K. received a
suspension for poor productivity. On November 18, 1999, R.K. was terminated.
of his work and time study reports both confirmed that R.K.'s work continued to be far
R.K. was an unacceptably slow welder prior to his claimed injury. Kees did not
the problem of R.K. being a slow welder. Mr. Norman explained that, in retrospect, he
disciplined R.K. earlier than he did. Mr. Norman fully explained the timing of R.K.'s
Kees did not know how slow R.K. was, or have the graphic evidence of that slowness, until
study in early 1999.
R.K. has no medical justification for his slow work. Dr. Brown testified that
there was no
limitation on R.K. welding. R.K.'s RTW slips do not limit him from any of the welding he
Kees after his claimed injury. R.K.'s doctors would have testified adversely to him.
was fully within R.K.'s restrictions.
Kees otherwise followed R.K.'s restrictions the issue is whether
welding sleeves in general
was within R.K.'s restrictions. R.K. admits that welding sleeves was within his restrictions.
and unrebutted medical testimony in this case is that R.K. was fully able to weld within his
restrictions. R.K. has admitted that welding generally and welding
sleeves while standing did not
violate his restrictions. Dr. Brown testified that "holding a welding gun" to weld does
R.K. claims that his welding table was 41 or 42 inches high, because he had it up on
6 or 7
inch high blocks. Mr. Southworth confirmed on cross examination that he was "sure"
table had no blocks under it while R.K. worked at Kees. Mr. Buss has admitted that,
even with a
welding table on the highest blocks, and even holding a completed sleeve from the top, and
the sides, to remove it from a jig, a welder would never get his hands above chest level,
above shoulder level or heard level. Thus, it does not matter if R.K.'s welding table were
blocks his restrictions would not have been violated. Further, it is
uncontroverted that welders at
Kees control the height of their own welding tables; and that, if a welding table is on blocks,
the table higher, it is a simple task, well known to Kees' welders, to remove the blocks and
height of the welding table. R.K. never complained about the height of his table.
R.K. has advanced this syllogism: after his claimed injury, he had to switch from
while seated to welding while standing in order to comply with his restrictions; and this
sitting to standing made him weld more slowly. As Mr. Stenson testified, "if anything,
would be fasted." The other welders agreed. So, even if the "I wasn't used to welding
explanation was a good excuse for awhile after the May 21, 2000 injury, it certainly would
explained R.K.'s poor productivity through his termination, six months later. So, R.K.'s "I
because I had to change my welding position" argument must be rejected for three reasons,
which, separately or together, reveal the argument as disingenuous: (1) He was
familiar with welding
while standing prior to the injury; (2) He was slow long before his injury; and
(3) Even if there was
some time needed to "adjust" to welding while standing, even R.K.'s witness concedes that it
be a short adjustment time.
R.K.'s restrictions were not violated when he lifted completed sleeves off of a jig.
Sander explained, there is just no way a welder could get his hands above the level of his
removing a ten or twelve inch sleeve from a jig. The other welders who work with R.K.,
Mr. Buss, his own witness, testified that a sleeve can be lifted from the side, as shown
in Exhibit 28;
and Mr. Buss testified that he normally lifts completed sleeves from a jig grasping them from
Mr. Buss' testimony is fatal to R.K.'s case. Although all of his other co-workers had
that there is no operation in welding sleeves (of the type R.K. welded after his injury) that
require work above chest level. R.K. argued that his table was on blocks. R.K. lied on this
as well. His table was not on blocks. "I never measured it. How would I know that?" On
September 6, 2000, however, he testified that his table was "41 or 42 inches high."
Why was R.K.'s
table so high? R.K. on September 6, 2000, ventured for the first time that he needed
a high table
because he wears bifocals, and he needs to have a higher table to see. And, R.K. explained,
a lower table caused him to hold his head over his welding arc, and in the "carcinogenic"
The illogic of R.K.'s explanation exposes it as disingenuous. In his own
notes, R.K. twice offered an explanation different than his bifocals or "carcinogenic
back. R.K. wrote that the problem with standing higher (on a platform) was not bifocals, it
"Now I risk a back injury having to bend over to lift these parts off of the sleeve jig. Now I
shoulders and sore back from lifting parts off of sleeve after getting on platform and having
over to get them off sleeve jig." These two quotes, handwritten by R.K., tell us two things:
(1) When not standing on a platform, lifting sleeves would never have been above
chest level, if he
had to bend over to lift them when standing on a platform; and (2) R.K. was making
up this business
about needing a high table because of his bifocals or fear of carcinogens.
Welding standing on a platform is common at Kees, and welding standing on a
would not cause a welder to weld more slowly. One of the several accommodations offered
by Kees was the use of a platform to stand on while welding. R.K. objected to the use of a
indeed, he has literally mocked the use of a platform, suggesting that it was an outrageous
record evidence is uncontroverted that welding while standing on a platform would not cause
welder to weld more slowly.
After R.K.'s claimed injury, it is uncontroverted that he worked part-time, according
doctor's restrictions, and he was given smaller, lighter jobs. After R.K.'s claimed injury,
his supervisor, did much of R.K.'s set-up work for him.
R.K. has been consistently misleading in his testimony. R.K. regularly used a
from his workstation, several times per day, instead of the one near his workstation. His
watched R.K. "walk by" the near bathroom and walk to the far bathroom, or "walk laps"
shop, for "no apparent reason." As Mr. Sanders observed: "On the hour he would go
bathroom. On the hour. It would just like clockwork."
R.K. has also suggested that, when it appeared he was "wandering," he might not
going to the bathroom, he might have been looking for his supervisor. At all relevant times,
in place a paging system. Employees need only have gone to the office and ask to have an
paged. The office was immediately next to the welding area.
R.K. testified that he had to stop between each piece because his table was too small.
welders except for R.K. "filled" their tables with
completed sleeves before stopping work to clear
the table. But, R.K. did not he would weld one or two parts, and then
move them to a pallet.
R.K.'s claimed injury occurred on May 21, 1999, not March 21, 1999.
R.K. wrote on his
"First Report of Injury" that he was injured on March 21, 1999. That was a
Sunday and he did not
work that day. But, Ken Evrats, his supervisor signed the report on May 24, 1999.
And, Ms. Weis,
who processed the report, testified that she received it on May 24. It is her
handwriting on Exhibit 25
that notes the errancy of March 21, and that the date should be May 21.
R.K. told Unemployment Compensation claims examiner Kathleen Flanagan
problems began when I hurt my shoulder on 5-21-1999." R.K. told Dr. Brown that he
on May 21, not in March. Dr. Brown recorded twice that R.K. had told him
that his injury occurred
in May, not March. Dr. Brown is very confident that R.K. self-reported a
May 21, 1999 injury date.
R.K.'s own three doctors list his date of injury as May 21, 1999. It would have to be
coincidence for Dr. Brown, Mr. Evrats, Ms. Weiss, Ms. Flanagan,
Dr. Peshke, Dr. Northrup and
Dr. Moreno to all be wrong when they write and recall "May 21," if the date was
really March 21.
But, the final nail in the coffin of R.K.'s argument is the fact that R.K. testified that he was
when he was injured. But, from 10:30 on March 18, 1999 through March 24,
1999, R.K. was not
welding he was punching core blades in another area of the plant.
R.K. argued for the first time that his injury was in March, not May, after he heard
opening statement in this case pointing out that R.K.'s injury could not
explain his poor
productivity, because the poor productivity was documented months before the injury. R.K.
testified that, while welding, he held his hands in front of him, above chest level, with his
locked and his arms outstretched parallel to the ground. R.K.'s co-workers uniformly
no Kees' employee ever welds with his arms positioned as demonstrated by R.K.. This was
effort by him to make welding appear "higher" on his torso than it actually
was an effort to make
it appear that his restrictions were implicated.
For all of the above reasons, Kees had just cause to terminate R.K.'s employment.
proven that R.K. was an unacceptably slow welder, and his injury was unrelated to his poor
performance. For the foregoing reasons, the Company believes the grievance should be
The Company has the burden of proving just cause for R.K.'s suspension and
Discharge has been described as economic capital punishment. An employee's job seniority
contractual benefits, his reputation and opportunities for future employment are all at stake.
result, where, as here, a collective bargaining agreement limits an employer's right to
circumstances in which there is just cause, arbitrators have consistently placed the burden of
wrongdoing on the employer. These same principles of just cause apply to R.K.'s discharge
In this case, the Company failed to meet its burden of proving that R.K. was
discharged for just cause, or that it acted reasonably by terminating R.K.
The Company's time study was flawed and does not constitute just cause for R.K.'s
termination. The Company contends that its time study demonstrates that R.K.'s production
consistently slower than the other welders in the shop and, therefore, his termination for poor
productivity was warranted. There is no merit to the claim that R.K. was markedly slower
other welders. Rather, all the Company's figures show is that R.K. failed to meet 100% of
on the limited number of jobs on which he was time studied. Such "evidence" does not add
up to just
cause for termination.
Initially, although Norman testified that R.K.'s times were significantly out of line
of the other welders' time studied, he also admitted that there were a number of jobs, other
R.K.'s, which exceeded 120% -- a level at which the Company became
concerned and allegedly spoke
with welders about their times. The Company failed to present evidence of any times other
indicated on Exhibit 2, although apparently many more jobs were time studied through
mid-November, the time of R.K.'s termination. Considering that there were numerous other
studied, a number of which according to Norman exceeded 100% of standard, the Company
presented an incomplete picture of R.K.'s times compared to all other welders. There is,
no basis upon which to conclude that R.K.'s times were particularly bad compared to all
The Company admittedly skewed the results by studying R.K.'s times more closely
welders. Norman admitted that once it received feedback from R.K.'s jobs and determined
was not meeting its desired percentage of standard, it evaluated more of his jobs than it did
welders. Had other welders been studied to the same extent R.K. was, there is no telling
results would have been. They too may have experienced times like those R.K.
In addition, the credible evidence at hearing demonstrated that other welders often
weeks without turning in time sheets for their work. Even welders the Company called as
admitted that they had not always filled out their time sheets on a daily basis. Thus,
each of the welders who testified at hearing admitted that they did not consistently
sheets during 1999, some for only a few hours or a day or two at a time and some for weeks
time. Without full participation in the time study, it cannot be said that R.K. was any slower
other welders in the shop. Thus, the Company's time study was clearly flawed and the
"results" indicating that R.K.'s times were out of line with the rest of the shop are worthless
cannot be used to justify his discharge for poor productivity.
It is generally accepted that enforcement of rules and assessment of discipline must be
exercised in a consistent manner; all employees who engage in the same type of misconduct
treated essentially the same unless a reasonable basis exists for variations in the assessment
punishment. Those same principles requiring employers to apply rules and discipline evenly
employees can be applied here. For where the Company undertakes a program like the time
that is intended to be used for discipline against participating employees, it too, must be
equally and fairly. The time study was clearly enforced more strictly against R.K. than other
The Company's failure to uniformly apply and use the time studies among all employees
validity and destroys just cause for discharge.
R.K. was suffering from a documented shoulder injury for the duration of the 1999
which affected his ability to work. Even assuming, without conceding, that the Company's
accurately portrays the welding times of Kees' employees, R.K.'s slower welding times did
his discharge in light of his ongoing shoulder injury. R.K. testified credibly regarding the
date of his
injury. At hearing the Company attempted to portray R.K. as incredible and untruthful
date of his injury. According to R.K., he injured his shoulder during the third week in
he was lifting a heavy jail grill with a co-worker. The Company contends, however, that
occurred on May 21, 1999, and that his representations to the contrary are simply an
attempt to back
date his injury to cover for his poor performance. There is no merit to this position.
unemployment proceedings and arbitration hearing, R.K. has consistently testified that while
experiencing pain in his shoulders prior to March, the accident which necessitated the work
restrictions took place the third week in March, 1999. The accident report that R.K.
dated March 24, 1999. The notations suggesting that the date should actually read
May were not
placed there by R.K., nor were they added as a result of any discussions with R.K.. While a
of the Return to Work Records indicate an injury date of May 21, 1999, R.K. was not
for completing that portion of the forms, nor did he ever really pay attention to the date
Even assuming the precipitating incident in which R.K. injured is shoulder attempting
a heavy jail grill with a co-worker occurred in May, the evidence shows that R.K. was
pain in his shoulders prior to that incident. R.K.'s handwritten notes indicate that he had
Dr. P. for shoulder injury" and "had follow appt. for 4-20-99." In addition, in R.K.'s
grievance over his first written warning, he stated:
I have been having a lot of shoulder pain in recent months. It got
bad enough that I felt I should
see the Dr. on March 2, 1999. I called and made an appt. to see Dr. the earliest I
could get in was
3-26-99, I saw Dr. he said it was tendinitis and shoulder strain and put me on prescription
Thus, the evidence proves that R.K. was experiencing pain in his shoulders and was
under a doctor's
care for shoulder problems dating back to at least March, 1999, early on in the Company's
study. As such, any times allegedly monitoring R.K.'s productivity from March 1999,
termination in November 1999, were based on work he performed while injured. Such times
cannot be used to terminate R.K. for poor productivity.
The fact remains that the Company did not first discipline or even counsel R.K.
poor productivity until at least June 3, 1999, the date he presented his supervisor with
his first work
restrictions. While Norman testified that R.K. had been counseled previous to that time
his productivity, R.K. denied the same. Norman could not produce any documentation of
counselings which allegedly occurred prior to June 3, 1999, nor could he identify
when they took
place. Even assuming they took place, these informal discussions were not discipline and
cannot be used against R.K. for any purpose. Arbitrators consistently hold that allegations of
wrongdoing for which the employee was never reprimanded or punished, and therefore not
grieve, cannot later be relied upon for discharge.
Thus, given the documented onset of R.K.'s shoulder problems in March, 1999, and
timing of the Company's first discipline in June, 1999, there is no question that all of R.K.'s
poor production times occurred while he was under a doctor's care for shoulder tendinitis,
a rotator cuff injury. The Company unfairly and unjustifiably held R.K. to a production
which, because of his injury and continuing pain, he was not able to meet.
Vague and speculative testimony and prior incidents for which no discipline was
be used to support just cause for termination. The Company attempted to show through the
testimony of other welders that R.K. was always slow, thereby discrediting the clear
his shoulder injury affected his performance. None of the welders who testified, however,
any evidence to support this claim other than vague testimony and blanket assertions that
a slow welder prior to 1999. Although the Company would have the Arbitrator believe that
always slow and that his shoulder injury did nothing to affect his performance, they
proof to that effect. Company Exhibits 2, 3 and 4 are not discipline and therefore may
not be used
to infer that R.K. has always been slow and therefore deserved termination on
November 18, 1999.
Norman admitted that prior to the advent of the time study in February 1999, the Company
formal way of determining any welder's productivity or rate of welding speed.
Even if R.K.'s welding times were out of line with the Company's standard and other
his performance was affected by his shoulder injury. These facts constitute mitigating
negating just cause for discharge. The Company continually gave R.K. work that was
restrictions. Beginning on June 2, 1999, until his termination on November 18, 1999,
R.K. was under
medical restrictions from his doctors with regard to the type of movements and arm positions
could sustain. Despite the Company's knowledge and possession of the doctors' restrictions,
continued to give R.K. work outside his restrictions. Although the Company claims that it
R.K. work outside his restrictions, R.K.'s notes written during the months leading up to his
termination prove otherwise. Thus, contrary to the Company's assertions, the evidence
R.K. was asked to perform work that was outside his restrictions right up until the very end
employment with Kees.
R.K. had legitimate doctor's restrictions which prevented much of his normal welding
Both at the unemployment and arbitration proceedings, Kees implied that R.K. repeatedly
his doctors, seeking restrictions that would justify or explain his slow work; but failed to get
needed. The Company is apparently suggesting that R.K. never actually had a shoulder
rather, simply talked his doctors into creating work restrictions for him because he perceived
productivity at work to be an issue which could jeopardize his job. Such a suggestion is
without support. To the contrary, many of the work restriction forms indicate in the doctor's
handwriting that R.K. would be re-evaluated in a particular number of weeks, to which the
restriction sheet corresponds. Thus, Kees' suggestion that R.K. was attempting to justify his
poor productivity by asking his doctors to draft work restrictions for him is completely
Further, contrary to the Company's claims, R.K.'s doctors clearly did feel that he
limitations on his ability to weld. At hearing, the Company presented the testimony of
Brown, M.D. Dr. Brown performed an independent medical examination on R.K. on
1999, after his termination. Dr. Brown diagnosed R.K., just as his own doctors had,
shoulder pain from bilateral rotator cuff tendinitis. Dr. Brown testified, simply from
return to work slips, that there was no reason why R.K. could not, quantitatively, perform as
work as anyone else. Dr. Brown, however, admitted that he had no independent
seeing R.K. on December 9, 1999; nor had he ever been to Kees to observe what
welders are required
to do. Dr. Brown's testimony is no more than an interpretation of what another
doctor, with whom
he never spoke, wrote on a work restriction. As such, his testimony is wholly worthless to
of the quantity of work R.K. was able to perform.
Kees' assignment of work to R.K. which violated his work restrictions once again
cause for discharge. R.K. clearly could not be expected to perform up to Kees' alleged
job assignments which his doctors advised against. As such, any productivity problems are
not by an intentional act on R.K.'s part, but rather, by his incapacity to perform the work
his shoulder strain. R.K.'s continual shoulder pain
is a mitigating circumstance which negates just cause for discharge. R.K. continually
the Company that he experienced constant shoulder pain and was not able to weld to the
as he had before his injury.
Kees erred when it failed to take R.K.'s injury into consideration and terminated him
productivity. Given R.K.'s shoulder injury and constant pain, his discharge for failure to
work up to
what the Company considered acceptable capacity is clearly unfair and unreasonable. It is
of an arbitrator to set a discharge aside if he concludes that the penalty is unduly severe or
unreasonable under the circumstances of the particular case. R.K.'s termination for poor
is clearly too harsh under the circumstances.
The Company failed to prove that R.K. was intentionally wasting time or working
inefficiently. R.K. did not spend an inordinate amount of time wandering around the shop.
were a multitude of legitimate reasons for R.K. to be away from his welding table; however,
the welders who testified could say what the reason was for R.K.'s absence from his table
allegedly saw him walking around, because none of them asked him.
R.K. did not intentionally waste time by using the restroom farther away from his
station. R.K. credibly testified that he chose to use the farther restroom when he needed to
because the restroom closer to the welding tables was filthy. R.K.'s testimony regarding the
condition of the closer restroom is wholly supported by both Union and Company witnesses
R.K. did not inappropriately confront a co-worker. In R.K.'s letter of termination,
accuses R.K. of approaching another employee following his November 17, 1999
Norman and Evrats and accusing him of "ratting" on him. According to R.K.'s credible
when he returned to his work area after meeting with Norman and Evrats on
November 17, his co-worker Tim Southworth approached him and asked what was
said at the meeting. R.K. never
accused Southworth of "ratting" him out about anything. This alleged confrontation between
and Southworth provides no basis for termination.
R.K. did not engage in other poor welding techniques or work habits in an attempt to
intentionally waste time. Throughout the hearing the Company accused R.K. of a vast
variety of poor
and inefficient work habits and behaviors with the implication that each was done to
waste time and avoid work. There is no merit to any of these contentions. In addition to
alleged inefficient behaviors, the Company spent time attempting to malign the manner in
welded. According to R.K., before he injured his shoulder, he would always sit down while
welded. After his injury, however, he had to try to find other ways of welding and doing
would not irritate his shoulders. Therefore, he began trying to stand while he welded;
testified that because he was not used to it, it slowed him down and affected his
Company also suggested at hearing that
R.K. could have alleviated the problems that he experienced with his shoulders if he
would have taken
the blocks out from underneath his welding table. R.K. credibly testified, however, that he
to keep his table on 6-7 inch high blocks because he wears bifocals and needed his welding
job to be
higher and closer to his face so that he could see it.
The Company failed to prove that R.K. falsified his time sheet. Therefore, his
a result of progressive discipline cannot stand. R.K. received his second written warning for
falsification of his time sheet. According to the Company, R.K. misrepresented the time he
talking with Evrats, Krupp and Norman, and misrepresented the time he set up his
order to prove R.K. falsified his time sheet, the Company must prove that R.K. intended to
Kees regarding his activities on the day in question, July 19, 1999. The Company
failed to prove any
intent by R.K. to deliberately mislead it regarding the time he spent doing anything on
July 19, 1999.
To the contrary, the "evidence" regarding his representations about time spent talking to
individuals is no more than pure speculation on all sides. None of this "evidence" adds up to
to defraud the Company nor does it constitute deliberate misrepresentation by R.K. on
July 19. As
such, there was no just cause for R.K.'s second written warning for falsification and the
must be rescinded and wiped from R.K.'s record.
The Union concludes Kees, Inc. suspended and terminated the grievant, R.K.,
cause, and therefore, R.K. must be reinstated and made whole for wages and benefits lost as
of the Company's unjust discharge and contract violation.
The undersigned is persuaded that the record evidence established that R.K. was not a
efficient or productive welder before, during and after the time study that was performed by
Company. His co-workers testified that in their opinion he wasted a lot of time by leaving
station routinely every hour and heading to the restroom or other areas of the production
They also testified that the way he went about his work was very inefficient. When welding
he would weld one, put it on the skid, weld another, put it on the skid, and so on, whereas
welders would not take the time to put each completed sleeve on the skid after it was welded,
rather would stack the finished sleeves on their welding table and then move them all at once
their table was filled. Thus, the evidence clearly established that R.K. had a history of
performance as a welder.
The Company, prior to the time study it undertook in early 1999, met with all the
indicated they wanted welders to pick up their pace. In 1997 and 1998, supervision had
R.K. about his poor productivity. However, but for the discipline R.K. received for his poor
productivity while working on a shearing operation with another employee (slow pace and
conversation with his co-worker), R.K. was never formally disciplined for his welding work
productivity until after the Company had implemented its time
study of welders. But, beginning in June 1999, the Company commenced disciplining
R.K. for his
poor productivity as a welder. He received a written warning on June 29, 1999, for
productivity. He was given a second written warning on July 19, 1999, for falsifying
the amount of
time he spent talking with supervision and the steward about the job assignment he had been
for that day, and the work restrictions he had been placed under by his doctor. Then he was
a three (3) day suspension on August 24, 1999, for poor productivity. He was
November 17, 1999.
The crux of this case is whether the injury R.K. sustained and subsequent work
his treating physician provided him excused his poor productivity. In other words, was he
to perform that was outside his work restrictions, or could the Company reasonably expect
meet the productivity standards established for the welding jobs he was directed to perform
his existing work restrictions. R.K. alleged he was injured on the job on March 21,
the Company argued the alleged injury occurred on May 21, 1999. The undersigned
the overwhelming record evidence established that R.K. was not injured on March 21, but
May 21. First, March 21, 1999 was a Sunday and R.K. was not working that
day. Also, R.K. told
the State Unemployment Compensation Examiner he was injured on
May 21st. All of his "Return to
Work Records" completed by his physicians show "5/21/99" as the "Date of Injury."
I do not find R.K.'s testimony that he was injured on March 21, 1999 credible, and
his injury occurred on May 21, 1999.
Whether his injury occurred on March 21, or May 21, nonetheless, there
is no record evidence
to disprove his claim that he was in fact injured on the job. All of his "Return to Work
show that he was being treated for shoulder/rotator cuff tendinopathy, tendinitis, or shoulder
The earliest "Return to Work Record" in evidence is dated June 2, 1999. In that
"Return to Work
Record" Dr. Northrup stated R.K. could return to work without restrictions on
July 2, 1999, and
between June 2 and July 2 he could return to work with a 50 pound
lifting, carrying, or
pushing/pulling weight limitation. Dr. Northrup also stated R.K. should "avoid
reaching and lifting
at the same time." On June 8 R.K. was seen by Dr. Peschke and was
diagnosed with bilateral
shoulder strain, but the "Return to Work Record" completed by Dr. Peschke placed no
on his return to work. R.K. was seen again by Peschke on July 15, 1999. Peschke
wrote on the
"Return to Work Record":
Due to strain . . . which is slow to heal and can take up to 6 mo.
after stabilization for total
resolution. Currently may either be off work x 2 wk. or avoid any work above level of
chest for 2
wk. due to re-exacerbation of 5/99 strain.
The subsequent "Return to Work Records" R.K. presented the Company on
July 29, August 26,
September 14, October 5 and November 2 and November 10,
1999, had restrictions very similar to
those noted above.
There is no persuasive record evidence that the welding jobs assigned to R.K.
to perform tasks that were outside the noted restrictions. R.K. demonstrated his welding
which he believed placed him outside of or in violation of his restrictions when assigned a
welding work order. I am not persuaded, in light of all of the other demonstrations of
technique/form by Company welders, that R.K. had to weld in a manner that would have
of the "Return to Work Record" restrictions noted by his doctors. Also, I do not believe
raw materials to the welding table and into the welding jig, removing the finished sleeve
from the jig
and finally moving the finished product to the skid would have violated any of his doctors'
restrictions. Consequently, I am convinced that R.K.'s work assignments could have been
by him without violating any of the work restrictions that appeared on his "Return to Work
Consequently, I find that his poor productivity cannot be excused on the basis of his injury
subsequent work restriction established by his doctors.
An argument made in R.K.'s defense was that the time study conducted by the
flawed. The Union argued that not all welders turned in their sheets as required, that R.K.
injured during the period the time study was ongoing, and that other welders were slow.
even if all of these allegations were proven, the fact remains that there is no evidence to
the productivity standard R.K.'s performance was measured against was unreasonable. As
earlier, his productivity/performance was inadequate and cannot be explained by his work
Thus, I am left to conclude that the productivity standards as applied to him were reasonable,
did not meet them. Further, the progressive discipline did not result in his becoming more
and productive. Also, there is no record evidence establishing that there were other welders
after the time study were as inefficient and unproductive as R.K. and who the Company did
discipline for poor productivity. Thus, there is no basis upon which to conclude the
inappropriately in singling out R.K. for discipline because of his poor productivity.
Therefore, the undersigned is persuaded that the totality of the evidence in this case
established R.K. was an inefficient, low productivity welder, whose poor performance was
result of his medical condition. The progressive discipline the Company imposed upon R.K.
attempt to improve his productivity and eliminate his inefficient work habits was
these circumstances his termination was not inappropriate, and was for just cause.
Therefore, based upon the foregoing and the record as a whole, the undersigned
The Company did have just cause to terminate the grievant, R.K. Therefore, the
Dated at Madison, Wisconsin, this 26th day of July, 2001.
Thomas L. Yaeger, Arbitrator