BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MILWAUKEE PRINTING PRESSMEN AND
ASSISTANTS' UNION LOCAL NO. 7
SELLS PRINTING COMPANY, LLC
(Gary Schwartz Grievance)
Murphy, Gillick, Wicht and Prachthauser, by Mr. George F.
Graf, on behalf of the Union.
Reinhart, Boerner, Van Deuren, S.C., by Mr. John H.
Zawadsky, on behalf of the Company.
The above-captioned parties, herein "Union" and "Company", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in New Berlin, Wisconsin, on November 30, 2001. The hearing was not transcribed and the
subsequently filed briefs that were received by January 3, 2002.
Based upon the entire record and arguments of the parties, I issue the following
The parties have stipulated to the following issue:
Whether the Company had just cause to terminate grievant Gary
Schwartz and, if not, what is
the appropriate remedy?
Grievant Schwartz, a Pressman 1 for about a year, was employed by the Company
11 years before he was terminated on July 20, 2001 (unless otherwise stated, all dates
refer to 2001) because of poor work performance. Before becoming a Pressman 1, Schwartz
unblemished work record.
Sales Representative Linda Wilber testified that the Strong Fund is the Company's
customer and that it complained about the poor color quality of its newsletter that was
October 25, 2000. She spoke to press room manager Jim DeLisle about the problem and the
Fund was given a $10,000 credit. Schwartz was given a first-step written warning for the
quality of the Strong Fund newsletter which he did not grieve (Joint Exhibit 3). On
cross-examination, Wilber testified that Schwartz signed all the time pulls on June 26
when faulty product
for J.B. Power was produced; that she does not know who else was responsible for that
that that run lasted several shifts.
Pressroom manager DeLisle, who formerly worked as a Pressman 1, testified that the
Company produces a "high end" product. He said that a Pressman 1 must do quality checks
10 or so minutes; that Schwartz was disciplined over the October 25, 2000, incident because
responsible for the poor quality and color fluctuation of the Strong Fund job; and that
Adams, the Pressman 1 on the second shift that day, also was disciplined for that poor
Exhibit 4). DeLisle said that Schwartz subsequently was disciplined and suspended without
three days after running poor product for another Strong Fund newsletter on February 13
Exhibit 5); that, "this was a drastic reoccurrence of the same problem"; that Schwartz
remorse when DeLisle spoke to him; and that Schwartz then asked to move back to his prior
a Pressman 2. DeLisle added that he refused to honor Schwartz's request for a demotion;
Company has no formal policy governing such reassignments; and that the Pressman 2 was
disciplined over the February 13 incident because he was in charge of registration.
DeLisle added that Schwartz was responsible for the blue scumming problem on a
for J.B. Power on June 26 that was run on his web because he sampled the product
and that about
1400 out of the 2800 pieces run were no good. He also said that Schwartz at the second step
grievance said that the samples taken from that job were not his; that Schwartz then again
be transferred to the Pressman 2 position; that Schwartz said the press had broken down on
and that he took the Pressman 1 position only because he did not want the Company to hire
from the outside.
DeLisle said that the Company did not immediately terminate Schwartz because it
conduct a proper investigation; that Don Valen, a Pressman 2, also was written up over the
incident because he should have checked things out (Joint Exhibit 8); and that
this is the first time a Pressman 1 has been fired. DeLisle explained that Schwartz was
than demoted on July 20 because Schwartz would still have quality problems that could lead
to a loss
of customers and that a demotion would be a poor message to the rest of the employees who
learn to do their jobs properly.
On cross-examination, DeLisle said that some scum is hard to see; that he did not
all of the bad product produced on June 26; that no bad product was shipped to S.B. Power;
"We shipped the job short." He "surmised" that Schwartz was responsible for the June 26
product even though his initials were not on all the product as is customary. He also said
other employees Dietz, Purdoon, Keith Friberg, Earl Smith, John Simzick (and his
previously disciplined for producing bad product, and that Schwartz had a clean work record
he became a Pressman 1 in July, 2000.
DeLisle acknowledged that after Schwartz received his second discipline in February,
(Joint Exhibit 5), he asked to be transferred back to his prior position by saying: "I'll take
back." DeLisle explained that employees Mike Witt and Simzick were allowed to return to
Pressman 2 jobs for non-disciplinary reasons pursuant to their requests and that Schwartz
do so here because such a "message" to other employees would be that they can walk away
do not properly do their jobs, which is something the Company cannot tolerate because of
to produce the very highest quality product. DeLisle initially told the Union that all of
June 26 time-pulls were lost, but they were subsequently found and given to the Union at the
Dan Kipp, the Vice-President of Administration, testified that Pressmen 1 Witt and
were transferred to Pressman 2 positions on the first shift for "personal reasons", rather than
disciplinary reasons, and that Smith eventually was transferred to a Pressman 2 position on
shift after the contract was changed regarding shift preferences.
For his part, Schwartz testified that he had a clean work record before he became a
1 on July 1; that he was a Pressman 2 for about four years before then; that he accepted the
1 position after everyone else turned it down; that he received his first discipline in
(Joint Exhibit 3) because there were dirty PMS on the Strong Fund's cover; and that he did
it because it was "water under the bridge". He said that he told foremen Jim Kaye and Bob
that he wanted to transfer back to his Pressman 2 position even though that paid about
$3.00 an hour
less, and that the Company refused to honor his request.
As for June 26, he said that the foreman approved the color alignment; that he
problems with the machine which were not corrected until about 11:45 p.m.; and that he
1000 samples. He explained that all of his time-pulls that day involved separate pages and
not stapled, unlike the time-pulls that the Company's witnesses
earlier identified as being his even though they did have staples. Schwartz added that
department puts on the staples; that Joint Exhibit 12 contains his handwriting; that the
signatures identified (Joint Exhibits 12-13) could not be shipped to any customer; and that
samples could have been placed in the wrong bin by the jogger, or they could have come
garbage bin. Schwartz told the Company that he did not produce the samples and said that
the time-pulls were missing for about 2-3 weeks. He also asked the Company in July to
return to his former
Pressman 2 position, but to no avail. He subsequently grieved his termination on July 23
On cross-examination, Schwartz testified that he on June 26 did not have any
the press; that the foreman had approved the color; that the scum problem had something to
color; that he took and marked about 1000 samples; and that Valen's problem that night were
by water and the rollers shrinking. He said that he has seen the jogger on other occasions
pick up the
wrong samples; that the scum came from his web; that he does not remember checking the
he "at times" was a competent Pressman 1; and that four years is not long enough to know
be fully competent in that position. He also said that DeLisle told him after receiving his
discipline that he would be fired if he again made that kind of mistake. He did not grieve
discipline and he did not tell the Union that he wanted to transfer back to his former second
Eric Boos, a Pressman 2, worked the second shift on June 26, at which time a power
of about 40 minutes occurred. That caused major problems for the press which had to be
He said that about 30,000 pieces for the S.B. Power job were run by the end of his shift and
bulk of it was done." He also said that former second shift foreman Jim Hirt had approved
for the color adjustment; that Hirt never sampled any product on June 26; and that no
run after Hirt had signed it.
On cross-examination, Boos testified that the Pressman 1's responsibility is "greater
rest of the crew"; that the Pressman 1 must make computer entries for a run; that time-pulls
quality checks; that James Pardun, the Pressman 1 on the second shift on June 26, also did
Boos also said that no product was run after the press went down on June 26; that the "Press
down" when the third shift started at 11:00 p.m.; that scummy product was unacceptable for
Power job on June 26; and that the Pressman 1 is in charge of providing leadership on a job.
Valen, a Pressman 1, worked with Schwartz on the June 26 third shift and received a
warning over his role in that matter (Joint Exhibit 8). He testified that the press was down;
specials were not done; that there were a "few thousand to go"; that he had to fix a scummy
and that "Everything was drying up." On cross-examination, Valen said that the product for
Power was unacceptable and that he does not know what happened to the web Schwartz was
working on at that time.
POSITIONS OF THE PARTIES
The Union contends that the Company lacked just cause to discharge Schwartz
are "too many holes in the Company's case" and that it therefore has failed to meet its
proving that Schwartz on June 26 was responsible for the bad product produced that day.
also claims that the "Company's evidence appears to be seriously tainted" because its proof
to the "chain of evidence is non-existent. . ." The Union asks for a make-whole remedy that
back pay and, at his option, Schwartz's return to work as either a Pressman 1 or Pressman 2.
The Company asserts that it had just cause to terminate Schwartz because of the
carelessness and inattentiveness to his job responsibilities" he exhibited when he ran bad
October 25, 2000, February 13, 2001, and June 26, 2001. It also argues that Schwartz
improve his performance even though he was capable of doing so; that "the gravity of the
performance deficiencies" warranted his termination; and that "The demotion was not a
because it would not cure Schwartz's performance problems and because a demotion "would
sending the wrong message to his other employees."
Since he did not grieve these matters, I find that the Company had just cause to
Schwartz over the poor quality of his work product on October 25, 2000, and February 13,
I further find that the Company has the absolute right to insist that its employees produce the
highest quality of product possible and that, as a result, it can discipline employees who
fail to meet its quality standards. See Johnson Controls, 95 LA 182 (Dworkin, 1990);
Shipbuilding, 101 LA 683 (Koenig, 1993); Reynolds Metals Co., 72 LA 1051 (Frost, 1979);
& T Industries, Inc., 73 LA 857 (Madden, 1979); Interstate Brands Corp., 73 LA 771
1979). Moreover, the Company can terminate employees who fail to respond to progressive
discipline. See BHP Petroleum, 102 LA 321 (Najita, 1983); Lockheed Missiles and Space
101 LA 804 (Gentile, 1993); Arden Farms Co., 45 LA 1124 (Tsukijama, 1965). All this is
Company had just cause to terminate Schwartz over the June 26 scumming problem if the
has met its burden of proving that he was partly responsible for that problem.
The Company argues that he was responsible because the second shift did not set
specials; because Schwartz acknowledged that he did not review the specials that were run on
web; because the time-pull "shows the same scumming as found on the specials"; because
employee Valen corroborated that mistakes were made on the third shift; because both he and
Schwartz experienced scumming problems on their shift; and because "the same problem
on Schwartz's run. . ."
However, these circumstances must be weighed alongside other factors cutting the
Thus, Schwartz accepted responsibility for his earlier October 25, 2000, and
February 13, 2001,
mistakes by not grieving over them and by even suggesting his own demotion after his
2001, mistake. Hence, it would be out of character for him to not accept responsibility for
26 scumming problem. Moreover, it is difficult to assume that Schwartz on June 26 would
pull as "specials" product that was so defective and which the Union claims is "like a death
give these to Quality Control people."
More importantly, it is not at all clear that the "specials" produced at the hearing
Schwartz's web on June 26. Thus, pressroom manager DeLisle testified that he initially told
Union that the June 26 time-pulls were lost and that they were first presented to the Union at
20 termination meeting. Given Schwartz's denials that he produced those "specials", and
eyewitness who could testify that he/she saw Schwartz produce that faulty product, the
case turns on whether it can be inferred that Schwartz produced the product attributed to
Exhibits 12-13). The Company therefore is required to document its chain of custody so that
be conclusively established that that product was produced by Schwartz. The Company also
required to explain who collected those specials on June 26-27 and why they were lost. By
to do any of that, the Company has failed to rebut Schwartz's claim: "I know I did not run
Since the Company bears the burden of proof in discipline cases, I conclude that the
failed to meet its burden of proving that Schwartz, in fact, was responsible for the faulty
was mysteriously lost. The Company thus lacked just cause to terminate him.
To rectify that contractual violation, the Company shall immediately make Schwartz
by paying to him a sum of money, including all benefits, that he would have earned from the
his termination to the Company's offer of reinstatement, minus any monies Schwartz
that time that he would not have received but for his termination. In addition, and pursuant
Union's request, Schwartz shall have the option of returning to work as either a Pressman 1
The Company maintains that a demotion to the Pressman 2 position will not cure
failure to meet the Company's exceptionally high quality standards and that it would send the
message" to other employees. Since Schwartz worked as a Pressman 2 without
incident, and since
the Company here has failed to meet its burden of proving that Schwartz was responsible for
26 scumming, it is not at all certain that Schwartz will have any further problems in
quality product. It also is far from certain that such a demotion constitutes a "wrong
other bargaining unit employees. The Company here, after all, has demonstrated that it will
tolerate bad product and that it will go to the mat whenever it is produced. Hence, the only
"message" being sent here is that employees risk losing their jobs if they repeatedly produce
product and that Schwartz is being
returned to work only because the Company did not properly account for who
scumming samples which form the core of the Company's case. Moreover, it must be
that this Award turns on the very unique facts of this case and that, as a result, nothing
be misconstrued to mean that employees have the right under the contract to generally bump
Lastly, and in accord with the parties' agreement, I shall retain my jurisdiction for at
(60) days to resolve any questions that may arise over application of the remedy.
In light of the above, it is my
1. That the Company lacked just cause to terminate grievant Gary Schwartz.
2. That to rectify that contractual violation, the Company shall make grievant
Schwartz whole by taking the remedial action stated above.
3. That to resolve any questions that may arise over application of the remedy, I
retain my jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin this 12th day of February, 2002.