BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS UNION LOCAL 43
Mr. Jeff Lloyd, P.O. Box 129, Pleasant Prairie, WI 54158,
appearing on behalf of Lloyd
Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, S.C., by
Attorney John J. Brennan,
P.O. Box 12993, Milwaukee, WI 53212, appearing on behalf of Local 43.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Teamsters Union Local No. 43 (hereinafter referred to as the Union) and Lloyd
(hereinafter referred to as the Company) requested a panel of arbitrators from the Wisconsin
Employment Relations Commission. The undersigned was selected from that panel to serve
arbitrator of a dispute over an unpaid suspension imposed on Dale Rasmussen. A hearing
on December 11, 2001, at the Company's offices in Bristol, Wisconsin, at which time the
afforded full opportunity to present such testimony, exhibits, other evidence and arguments
relevant to the dispute. The matter was submitted on oral arguments at the end of the
whereupon the record was closed. Now, having considered the evidence, the arguments of
parties, the relevant contract language, and the record as a whole, the undersigned makes the
following Arbitration Award.
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 stipulated that the issues before the Arbitrator are:
1. Was the Grievant suspended for just cause? If not,
2. What is the appropriate remedy?
. . .
ARTICLE 10. DISCHARGE OR
The Employer shall not discharge nor suspend any employee
without just cause, but in
respect to discharge or suspension, shall use the following steps of progression of discipline:
(1) written reprimand, (2) written warning, (3) one (1) day suspension, and (4) discharge.
To be valid, warning letters must be sent to the employee and the Union within ten (10) days
of known violation. Except, that no warning notice need be given to an employee before he
is suspended if the cause of such discharge or suspension is dishonestly or drunkenness,
may be verified by a sobriety test (refusal to take a sobriety test shall establish a presumption
of drunkenness); or taking, being under the influence of, addiction to, or possession of
controlled substances and/or drugs, either while on duty or on Employer property;
recklessness resulting in serious accident while on duty, or carrying of unauthorized
passengers, or falsification of employment applications or DOT required driver certification
documents. 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. Discharge must be by
written notice to the employee and the Union. Any employee may request an investigation
as to his discharge or suspension. Should such investigation prove that injustice has been
done an employee, he shall be reinstated.
. . .
The Company operates a trucking business in southeastern Wisconsin, hauling liquid
Jeff Lloyd and Jack Lloyd manage the Company. The Company is affiliated with Quality
Many of the tankers it hauls are owned by Quality Carriers and a great deal of its business is
Quality Carriers. The Union is the exclusive bargaining representative for the Company's
The Grievant, Dale Rasmussen, is a driver for the Company.
On September 18, 2001, the Grievant was involved in a rollover accident while
Company tanker through central Illinois. No one was injured in the accident, but the trailer
$61,000 worth of damage. The police investigated and the Grievant was not issued any
Two days after the accident, the Grievant was interviewed by Jack Lloyd and Jeff Lloyd, and
provided the following account of the accident:
Statement from Dale Rasmussen
September 20, 2001
I was traveling southbound on 157 at
approximately mile maker 96 1/2 in the right hand lane,
approaching a construction area.
Time of day: Approximately 16:55
Weather: Heavy rain
I was traveling approximately 45 MPH
when I noticed a fifth wheel horse trailer passing on the
left hand side while approaching the up coming construction sight. Note: Merging lane was
Horse trailer started to merge right as I
continued to travel south bound. The horse trailer forced
my unit to the shoulder of 157, I had to lock up my brakes to avoid hitting this vehicle,
wet pavement trailer started to slide off black top and got caught in soft shoulder.
Because of the split second I had to make
the proper decision. I did the best I could to avoid
causing injury to people in the vehicle that forced me over and to the up coming vehicles
down for the construction site.
Once my unit got caught in the soft
shoulder due to the heavy rain I could not bring it back and
the unit rolled over. I honestly feel I did everything I could possibly do to prevent an
would have endangered the lives of others.
The Lloyds conducted a second interview with the Grievant and in the course of this
interview, he said he had seen the headlights of the vehicle hauling the trailer. After this
the Lloyds expressed skepticism about the existence of the second vehicle and suggested that
Grievant may have fallen asleep. In particular, Jeff Lloyd questioned how the Grievant
known the headlights on the other vehicle were on if, as claimed in the first interview, he did
the vehicle until it was passing him on the left.
On September 26th, the Grievant was advised that he was being
suspended from driving until
the investigation was completed and on the 28th, Quality Carriers ordered
the Company not to allow
the Grievant to operate or haul any Quality Carriers' equipment because it judged his
The instant grievance was filed protesting the suspension imposed by the Company.
Secretary-Treasurer Gerald Jacobs spoke to Jeff Lloyd about the Grievant's case and Lloyd
the impression that the suspension was imposed at Quality Carriers' insistence, and that
trying to persuade Quality to back off. The Grievant was reinstated after 21 days. The case
resolved in the lower steps of the grievance procedure and was referred to arbitration.
At the arbitration hearing, Gerald Jacobs noted that the contract language had been
in the last round of bargaining to provide for a specific progression of discipline. The
required a warning and a reprimand before a suspension could be imposed unless there was
recklessness involved. Jacobs expressed the opinion that the Grievant's suspension was
because of pressure by Quality Carriers and that Jeff Lloyd disagreed and tried to persuade
the Grievant did not deserve discipline. Jacobs said that he believed that Quality wanted a
suspension and that the 21-day suspension was the result of Lloyd's lobbying for the
Jacobs acknowledged, however, that both Lloyds said after the second interview that they
there was no other vehicle involved and that the Grievant simply drove off the road because
tired. Jacobs testified that his review of Union records did not show any suspensions for
with warnings being the highest level of discipline.
Jeff Lloyd testified that the suspension was based on the Company's independent
that the Grievant's accident was preventable and was caused by his own recklessness. He
the Company owned the rigs and denied that Quality Carriers was dictating the Company's
to accidents. Lloyd acknowledged that there were examples of accidents where employees
only warnings, but observed that those were very minor incidents, while this accident was a
rollover that caused $61,000 in damage. Lloyd pointed to the discrepancy in the Grievant's
statements as to when he first saw the other vehicle and also noted that a professional driver
operating a tractor and tanker in heavy rain, in a construction zone, approaching a merge,
had a duty to be on even more cautious than usual. Lloyd also noted that there was no
corroborate the Grievant's claim to have been forced off the road.
Additional facts, as necessary, will be set forth below.
ARGUMENTS OF THE PARTIES
The Arguments of the Company
The Company argues that the seriousness of this accident justifies going outside of
progression of discipline and imposing a lengthy suspension on the Grievant. Indeed, the
argues, it was only the Grievant's long and clean record with the Company that kept him
fired. This was not simply negligence the reasonable conclusion from the events is
that the Grievant
acted recklessly and the contract specifically allows more serious discipline in cases of
The Company dismisses the Union's citation of other accidents, noting that they were
serious than this incident and provide no basis for comparison. The Company also disputes
Union's claims that it somehow acted at the behest of Quality Carriers. The Company's
was made independently, on the basis of the facts of this case. After reviewing those facts,
Arbitrator should conclude that the Company acted appropriately and in accordance with the
contract. For these reasons, the grievance should be denied.
The Arguments of the Union
The Union takes the position that there is no basis whatsoever for the suspension in
The Grievant gave a reasonable and credible explanation of the September 18 accident, and
nothing to contradict his claim that the accident was unavoidable. The Company's supposed
about when he saw the car come up alongside him is completely irrelevant. What does it
Union asks, when he saw the vehicle? The important fact is that it cut him off and forced
him to the
shoulder in a heavy rain. He was faced with a choice of hitting another vehicle or hitting the
It is unfortunate that the tanker was damaged, but the Grievant's choice was a reasonable one
the circumstances and there is no proof of recklessness.
The Union acknowledges the problem faced by the Company in trying to abide by its
collective bargaining agreement while trying to placate Quality Carriers. That problem is not
Grievant's making and the Company cannot offer him up as a sacrifice to Quality Carriers'
The contract provides him with clear and specific protections and the Arbitrator must uphold
contractual provisions. Accordingly, the grievance should be sustained and the Grievant
The collective bargaining agreement contains a clear progression of discipline,
a written reprimand and proceeding to a written warning, a 1-day suspension, and a
Grievant, in this case, was suspended for 21 days, without any prior discipline in his record.
the lack of prior discipline and the length of the suspension, the Company's burden, in
is to prove that it could have discharged the Grievant for his September
18th accident. The contract
recognizes that some conduct does not call for correction and will justify summary discipline.
of such infractions is included in Article 10. The infraction which is relevant to this
"recklessness resulting in serious accident while on duty." 1/
1/ The Union claims the
Company acted at Quality Carriers' behest in suspending the Grievant, while the
Company denies that. I find it unnecessary to address this disagreement. Whether Quality
had an opinion in this
matter or not, the contract is between the Company and the Union, and the Company bears
the burden of justifying
its actions under the just cause standard and the progressive discipline system contained in
Certainly, the Grievant's accident on September 18th was on duty
and was serious. The
question under the contract is whether it was due to recklessness. By specifying
parties have agreed that the accident must not only have been the Grievant's fault, but that it
have been caused by more than simple negligence. Recklessness is marked by "indifference
to . . .
consequences, under circumstances involving danger to life or safety to others, although no
intended." [Black's Law Dictionary, 5th Ed., West, 1979.] Arbitral case
law frequently distinguishes
between negligence and recklessness by holding that the latter requires a degree of
approaching a willful disregard of the consequences of an act. 2/
2/ See, for example,
Acme Concrete Corp., 33 LA 960 (Bonebrake, 1959); Ingalls Shipbuilding Corp.,
62-1 ARB 8084 (Murphy, 1961); United States Potters Association, 64-1 ARB 8125
American Synthetic Rubber Corp., 66-2 ARB 8627 (Dolson, 1966); Kaiser Sand and
Gravel, 68-2 ARB 8616
(Koven, 1968); Conrock Company, 73-2 ARB 8363 (Petrie, 1973); Pepsi-Cola Bottling
Group, 79 LA 597
(Hannan, 1982); T. W. Recreational Services, 93 LA 302 (Richard, 1989); GATX Terminals
Corp., 94 LA
21 (Baroni, 1990); See also, William Prosser, Law of Torts, 4th Ed.,
The degree of care which one expects of a person is not, of course, an abstraction,
question of recklessness may depend upon the circumstances of the specific case. A person
a fire by smoking a cigarette in a no-smoking area of an office may be said to have been
One who does so in a gasoline storage facility may be said to have been reckless. Likewise,
handling a knife carelessly may be said to be negligent, while a person handling a gun with
lack of care may be reckless. The degree of negligence in this latter case would be
heightened if it
was shown that the person mishandling the gun was employed as a firearms safety expert.
care is expected of experts and of persons in situations where it is obvious that there is a
heightened risk from a mishap.
The Grievant here is a professional truck driver, controlling a tanker on a public
Clearly, there is a substantial risk of harm inherent in any mishap. Just as clearly, the
degree of care
one would expect from a professional driver would increase if like the Grievant, he was
through a construction zone in a heavy rain. Thus, the Company had the right to expect that
Grievant would exercise great care under the circumstances as they existed on September
Having said that, there is no evidence that he failed to exercise such care.
As described by the Grievant, he was cut off by another vehicle. The Company
the hearing that he should have backed off as the vehicle passed, knowing that a merge was
approaching. However, the merge was still a mile off and there is no evidence that the other
abrupt move into the Grievant's lane was caused by the proximity of the merge or that the
was sealing the other vehicle off in the left lane. The accident, as described in the
statement to the Company, was clearly caused by the other driver's error.
The Company expressed skepticism about the Grievant's account, on the grounds that
second interview, he said he saw the headlights of the other vehicle as it came up along side
whereas in the original interview, he said he first noticed the vehicle as it was passing him in
lane. From this, Jeff Lloyd concluded that there never was a second vehicle and that the
really just fell asleep. Frankly, that conclusion does not follow. The discrepancy noted by
relatively minor and is subject to so many explanations that basing a recklessness charge on
amounts to an exercise in pure speculation. The Company's theory is not impossible, but it
is not the
only reasonable conclusion to be drawn from the record evidence, nor even the most
Grievant's explanation of the accident is at least equally plausible. It is consistent with the
conclusions drawn by the police and with his record of safe driving.
The Grievant was involved in a serious accident and a great deal of damage was done
Company rig. However, in order to justify the level of discipline imposed here, the
the burden of proving that the accident was caused by the Grievant's recklessness. On the
before me, it cannot be said that he was even negligent, much less reckless. Accordingly, I
The Grievant was not suspended for just cause. The appropriate remedy is to remove
reference to the discipline from the Grievant's personnel file and to make him whole by
for all monetary losses incurred by virtue of the suspension.
Dated at Racine, Wisconsin, this 14th day of February, 2002.
Daniel Nielsen, Arbitrator