BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL 695
RAYOVAC CORPORATION (PORTAGE
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by Mr.
Nathan D. Eisenberg, on behalf of the Union.
Foley & Lardner, by Mr. Michael H. Auen, 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 Portage, Wisconsin, on August 7, 2001. The hearing was transcribed and the parties filed
that were received by October 4, 2001.
Based upon the entire record and arguments of the parties, I issue the following
The parties have stipulated to the following issue:
Did the Company violate Article 21, Section 5, of the contract
when it laid off grievants Troy
Henning, Dennis Dorn, and Dan Shutts out of order of seniority and, if so, what is the
The Company's Portage, Wisconsin, plant manufactures and/or produces lithium cell
and zinc air batteries. (The dispute here is limited to the lithium batteries and all references
hereinafter refer to the lithium batteries.) The cell batteries are made on cell make
some cell batteries subsequently have tabs added to them in a separate area of the plant called
autoweld or value added. This allows the tabbed batteries, which are much more expensive
regular batteries, to be precisely placed in circuit boards. There are about 13 large
machines that perform this added tab function.
The Company in March, 1999, moved the production of lithium batteries from its
plant to its Portage plant. That, in turn, led to considerable difficulty and various production
problems which took some time to resolve. Hence, the Company has become very
the quality of the tabbed batteries and how well its machinists can produce them.
Traditionally, some machinists only work on the cell make, some only work on the
and still others work on both cell make and autoweld. Thus, Todd Hugget, Tim Frey, Troy
Dennis Dorn and Don Shutts worked on cell make; C. Walter, D. Pudrowski, and Pat
worked on autoweld or value added; and Scott Jones, Jim Light, Val Jaksic and John Pejskar
cross-trained and could work on both cell make and autoweld.
As related below, the Company in February, 2001, laid off grievants Dorn, Henning
Shutts and retained the other mechanics.
Union Steward John Jerome, an electrical technician, testified that changeovers occur
the size of a battery changes on cell make or tabs are changed on autoweld; that machinists
work on changeovers; that changeovers are difficult to perform; that he has never filled out
Change Checklists; and that work orders are always filled out.
On cross-examination, he said that he has never held a mechanic's position at the
some changeovers have taken two weeks; that he does not know how much time it takes to
autoweld changeover; that there is no separate classification in the contract for cell make
and autoweld mechanics; and that while there is a "learning curve" in moving from cell make
autoweld, mechanics can do so because "the basic knowledge is still there." He also said
he went to the Appleton plant, he trained "both mechanics and technicians in cell make" for
Portage plant and that he did not train mechanics for autoweld.
Grievant Henning, a mechanic II, started employment on August 25, 1999, as a
even though the Company offered to hire him in the higher mechanic II classification. He
working on cell make when he was laid off on February 15, 2001, (unless otherwise
stated, all dates
hereinafter refer to 2001), and he testified that he sometimes worked on value added; that he
performed mechanical changeovers on the value added machines "four or five times"; and
that he did
so alone on two occasions. He said that his request to be cross-trained was denied by his
because "we were so busy. . ."; that he "very often performed changeovers on cell make";
he is skilled to do a changeover on value added.
On cross-examination, Henning testified that he received cross-training from Pat
value added in the last two weeks of his employment and that he personally performed two
changeovers on his own. He also said that he never filled out a Product Change Checklist
the value added changeovers (Company Exhibit 7), and that he still needed more training for
Carol Kuhnau, the lithium products manager, testified about the difficulties
the Portage plant after the Appleton plant closed. She said that the autowelder is "going to
up to place the tabs to the exact location. . ." and to set up the proper calibrations; that the
builds its own autowelder machines internally without any manuals; and that changeovers for
autowelds formerly took too long and were too expensive. She replied, "Oh, absolutely not"
asked whether cell make mechanics can transfer to autowelder and vice-versa without added
and said that lower production needs necessitated the February, 2001 layoffs.
She said that certain employees were laid off because:
The operating mode was one shift of cell make which we had five
trained cell make mechanics.
We had two shifts of this value added, which we had three value added trained mechanics.
four trained mechanics with dual skill sets that could function in both equally well. Out of
trained cell make mechanics, we only required two. We only needed two on first shift.
three cell make mechanics would be laid off.
She explained that the Company maintains records called "Product Change Checklists",
whenever changeovers occur; that the Product Change Checklists (Company Exhibit 7)
Henning never performed any changeovers between June, 2000 February 13, 2001;
Henning did work on value added. She said that Henning was laid off "Because he had not
the proper training that the other people had received. He was not he could not
effectively do a
changeover or had not performed a changeover on his own." She added that her conclusion
based on the "supervisor's input and by the
documentation that we required for each changeover", and that the changing production
dictated that there be more, and not fewer, changeovers. She also said a mechanic would
between 2 and 4 months to be properly trained in cell make and 2 to 6 months on value
On cross-examination, Kuhnau testified that, "The key decision in making the layoff
we had five cell make mechanics, and we only required two", and that proper documentation
supervisor's knowledge determined whether a person has certain skills. She stated that it
three people were involved in a changeover" in mid-February (Company Exhibit 7),
mechanic Jones who did so with the help of other personnel on February 12 and
February 13. She
also said that it looked like mechanic Light performed changeovers in January, 2001, and
they had performed the changeover, they had the skill. I did not say they had to show that
two months. I said it could take two to six months to learn that skill."
On re-direct, she testified that she did not know whether Jones worked on
the same shifts as Pudrowski and Walter; that they could have worked on different shifts;
the changeovers on February 12 and 13 took multiple dates and that more than one mechanic
on them. She added that some autowelder changeovers can be done in a day and that a poor
can "hinder production for shifts afterwards."
Third Shift Production Supervisor Herb Maier testified that in February, Jones,
and Walter worked on the third, second and first shifts.
Lithium product manager Doug Kortbein testified about the training needed before a
can do a changeover. He said a mechanic normally teaches another mechanic on how to do
changeover; that most changeovers take more than one day; that it normally takes "many
months typically" before a mechanic can be fully proficient in performing a changeover on
own; and that Henning probably could not learn how to do a changeover in two weeks. On
cross-examination, he said that engineers, not mechanics, design the machines; that product
checklists are not always signed; and that mechanics may sign-off even though they have not
all of the steps.
POSITIONS OF THE PARTIES
The Union claims that the Company violated Article 21, Section 5, of the contract
Henning and Dorn were qualified to work on changeovers; that their "relative ability was
equal" with that of Jones, Jaksic and Light; and that the Company therefore has failed to
burden of proving that the junior employees retained over them were substantially more
The Union thus contends that the Company's "reliance on the dual skill set as the sole basis
determining layoffs was arbitrary and capricious"; that the Company "grossly overstates the
of time necessary to become proficient as a mechanic
in value added"; and that the Company erred by relying on documentary evidence that
is of "dubious
validity". As a remedy, the Union asks that Henning and Dorn should be reinstated to their
positions and be made whole. (Since the Union's brief does not ask for Shutts' recall
because he in any event is less senior than any other mechanic, his situation is not discussed
The Company, in turn, contends that it "was permitted to retain mechanics out of
and "that those retained had better qualifications" than Henning and Dorn. It thus claims that
is no proof in the Product Change Checklists that Henning ever performed changeovers.
This case turns on whether the Company has met its burden of proving that Henning
Dorn were not qualified to perform changeovers pursuant to Article 21, Section 5, of the
Section 5. Skilled Group (Schedule B) Employees
Layoff and Recall
Skilled group employees (those persons employed in
classifications listed in Schedule B) will
be laid off with consideration of factors such as job performance and ability to insure an
operation. Such considerations being equal seniority shall govern, and employees within the
classification will be laid off in accordance with their seniority within the classification (those
employees with the least classification seniority being laid off first). The Company
shall have the
burden of proof of substantiating each deviation. (Emphasis added).
The skilled group employee(s) laid off may, if they have
sufficient plant wide seniority, be
placed in the production unit. The Company will assign the skilled employee to a production
based on Article 21, Section 3. Skilled group employees who are assigned to a production
maintain their recall rights to their former skilled classification for a period of up to two (2)
from the date they are assigned to a production position.
If the skilled group employee(s) laid off
does not have sufficient plant wide seniority to be
placed into the production unit the employee will be laid off. However, prior to layoff the
must execute a waiver indicating whether or not he desires to obtain recall rights based on
seniority to a production job. If he desires such right, he will be placed on the production
and be given one opportunity. If the employee declines the one
opportunity he shall lose all seniority rights.
If he waives his right to be placed on the production
recall list, he shall preserve recall rights only to a skilled group classification.
In agreement with the Company, I find that the Company under this language had valid
reasons for laying off mechanics in February, 2001, and that the Company at that time could
mechanics who could not perform changeovers because it has the inherent managerial right to
establish its "dual skill set."
This finding is based on lithium products manager Kuhnau's uncontroverted testimony
changing production needs at that time necessitated the closing down of a cell make
and that the Company needed trained mechanics to perform changeovers because it did have
to train them at the time of the layoff.
This case therefore boils down to two disputed factual questions: (1), how long does
a mechanic to be properly trained for changeovers; and (2), did Henning have sufficient
skills so that he could do changeovers on his own at the time of his layoff?
As to question (1), Kuhnau testified that it takes between 2 and 4 months of training
proficient on cell make and 2 to 6 months on value added. Product manager Kortbein
it takes "six months, typically" before a mechanic can be fully proficient in performing a
on his/her own. If this were true, the grievance would have to be denied because it is just
unreasonable to demand that the Company must retain employees who need all that time
fully proficient in doing changeovers.
Here, though, Henning testified that he on his own had worked on two
changeovers on the
value added machines after he worked on about two other changeovers with Pat Pejskar right
his layoff. If he did work on four separate changeovers, he could have had the same or
as some of the junior employees who were retained, which means that he should not have
The Company attacks Henning's claim by pointing out that none of the Product
Checklists refer to him; that no supervisor ever okayed his work; and that Pat Pejskar only
on one changeover between January-February, thereby discrediting Henning's claim that he
Pejskar worked on several changeovers together. The Company thus argues that
it must be assumed
that Henning did not work on any changeovers on his own. If the Product Change
always accurate, this argument would carry the day and the grievance would have to be
the very reasons advanced by the Company.
However, Jerome testified without contradiction that he has never filled out Product
Checklists and, more importantly, Kortbein acknowledged on cross-examination that the
Change Checklists are not always signed. Hence, it is entirely possible that Henning worked
changeovers just as he said, even though he never signed off on the Product Change
is why it is also possible that Pat Pejskar worked on more than one changeover and why he
have trained Henning. Absent any stronger proof by the Company in support of its claim
Henning never worked on changeovers, I credit Henning's testimony that he did so.
The record also indicates that while some changeovers are very complex and that they
require several months of training, that is not always the case. Thus, Jones who had
seniority date of January 22 - could only have received several weeks of possible training
worked on changeovers right before Henning's layoff. This supports the Union's claim that
only needed the same amount of time before performing two changeovers on his own right
This record is therefore murky as to just how much training is needed to perform all
some changeovers and whether the Company's records properly document who works on all
changeovers. While such an unclear record in many cases would dictate the denial of a
because of a union's failure to prove that a laid-off senior employee was just as qualified as a
employee who was retained, the Company under Article 21, Section 5, of
this contract bears the
burden of proving the "deviation" as to why Henning was less qualified than more junior
Since Jones had a class seniority date of January 22, and since he only worked on
changeovers between February 12 and 16 (Company Exhibit 7), the Company has not
burden of proving that Henning could not have done those changeovers. After all, if Jones
how to do them in less than a month, why is it that Henning also could not have done that
Company does not offer any reasonable answer to this critical question.
I therefore conclude that the Company has failed to meet its burden of proving that
more qualified than Henning. I also find, however, that the Company has met its burden of
that Dorn was properly passed over because he was not as qualified as the other mechanics
retrained at the time of his layoff.
In order to rectify the Company's violation of Article 21, Section 5, the Company
immediately offer to Henning his former position and it shall make him whole by paying to
benefits, including seniority, that he would have earned from the time of his layoff to the
time of his
reinstatement, offset by any monies he received that he would not have received but for his
In order to resolve any questions that may arise over application of this remedy, I
my jurisdiction for at least sixty (60) days. The Company at the hearing objected to my
jurisdiction, but I conclude that I should do so here for the reasons I spelled out in
and Drivers, Warehouse and Dairy Employees, Local 75, 114 LA 677 (2000).
In light of the above, it is my
1. That the Company violated Article 21, Section 5, of the contract when it laid
grievant Troy Henning, but that it did not do so when it laid off grievants Dennis Dorn and
Shutts out of order seniority.
2. That to rectify the Company's improper layoff of grievant Troy Henning, it
him whole by undertaking the remedial action stated above.
3. That to resolve any questions that may arise over application of this Award, I
retain my jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin, this 11th day of January, 2002.