BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AREOSPACE WORKERS
(Grievance of Rudy Lahmann)
Mr. James S. Pachmayer, Human Resources Manager, Rayovac
Corporation, 100 Ravovac Court,
Fennimore, Wisconsin 53809-0128, appearing on behalf of the Employer.
Mr. Dan Hilbert, Business Representative, International
Association of Machinists and Aerospace
Workers, 1210 Emerald Terrace, Sun Prairie, Wisconsin 53590, appearing on behalf of the
Rayovac Corporation, hereinafter referred to as the Employer, and the International
Association of Machinists and Aerospace Workers, Lodge 1406, hereinafter referred to as
are parties to a collective bargaining agreement that provides for final and binding arbitration
grievances. Pursuant to a request to initiate grievance arbitration the Wisconsin Employment
Relations Commission appointed Edmond J. Bielarczyk, Jr. to arbitrate a dispute over the
of an employee. Hearing in the matter was held in Madison, Wisconsin on November 29,
hearing written arguments were received by the undersigned by January 8th,
2002. Full consideration
has been given to the evidence, testimony and arguments presented in rendering this Award.
During the course of the hearing the parties agreed upon the following issue:
"Was there proper cause to discipline the grievant, Rudy
Lahmann and if not what is the proper
ARTICLE X DISCIPLINE AND
SECTION 1. No
shall be disciplined or discharged without good and sufficient
cause. If it is determined after investigation by the management and a representative of the
any employee was unjustly discharged, such employee will be reinstated with seniority rights
unimpaired; provided, however, that such investigation must be started by the Union within
working days after notice of discharge is given to the Union by the Company with reasons
and further, that notices of such investigations by the Union must be given to the
writing. This clause shall not apply for the first three months' of service as a person's
in the Tool Room and Maintenance Department because during this trial period the
be the sole judge as to a given person's fitness to remain in the employ of the Company.
. . .
ARTICLE XIII GENERAL
COOPERATION. It is agreed that the Union, through its national
organization and local officers, committees and employees covered by this contract will
with management in seeing that the workmanship of employees covered by this contract on
of the Company or on other tasks is brought to and maintained at an exceptionally high level
end that a high degree of operating efficiency shall be reached and maintained and to insure
high quality standards.
SECTION 2. MANAGEMENT
RIGHTS. The management of the plant and direction of
the working forces, including the right to hire, to distribute overtime, suspend or discharge
cause, and the right to transfer or relieve employees from duty because of lack of work, or
legitimate reasons, is vested exclusively in the Company. But this provision shall be
harmonize and not to nullify any other provisions of this Agreement.
In the practical application of this contract to the everyday
activity of the plant, it will be
necessary for the Foreman and the rest of the management to make many interpretations of
contract. For the successful conduct of this business, it is imperative and agreed that if any
disagrees with any interpretation made, that he/she will follow out instructions of his/her
and take up the matter as outlined in Article XIII. It is agreed that failure to follow out
of his/her Supervisor constitutes cause for discipline including discharge.
. . .
PERTINENT WORK RULES
EMPLOYEE CODE OF CONDUCT
Efficient operation of the Plant depends upon the combined efforts
and cooperation of all
employees. Misconduct of any type disrupts the operations of the Plant and hampers
safety, convenience, comfort and contentment.
Whenever a number of persons work together, a reasonable code
of conduct is necessary to
ensure these ideals. Such a code of conduct has been established for all employees.
these rules may result in corrective disciplinary action ranging from verbal warnings, written
warnings, suspensions, and/or immediate discharge. The action taken will vary depending
severity of the rule infraction. The rules listed below are not all inclusive.
. . .
Use of abusive, indecent, or threatening language.
. . .
20. Refusal to follow of failure to carry out
authoritative instructions of supervisor-
The Company operates a plant in Madison, Wisconsin whereat it employs Rudy
referred to as the grievant, as a second shift mechanic. A mechanic's primary responsibility
keep the Company's machines in operation. However, on occasion the mechanics are
do building repairs. On March 26th, 2001 the grievant was assigned by
first shift Plant Engineer
Jack Gordon to repair a door latch in the Employer's
lunchroom. The grievant, when repairing the latch, put it on backwards. Gordon, in
grievant's work, took seven photos of the backward placed latch, then issued an oral
the grievant for poor performance.
On March 28th, 2001 Gordon approached the grievant and gave him
a work order to repair a leaky
valve in a stool in a men's restroom. The grievant was aware that Gordon would soon be
the Employer's employ. On their way to inspect the repair job Gordon testified the grievant
stated he would only do work he was specifically directed to do and nothing more. Gordon
testified that the grievant stated "you will be gone," and also stated "you will be gone and
you will know it" to which Gordon responded "Lucky you". Gordon further testified that he
questioned the grievant as to whether this was a threat but that the grievant did not elaborate.
Gordon also testified that he informed the grievant he was an A Mechanic and that he was
expected to use his own initiative and take whatever action was necessary to prevent flooding
the area. Gordon also testified that he informed the grievant that if he needed any assistance
was to contact his supervisor. Gordon than left for the day.
On March 28th, 2001 the grievant was discussing his March
26th, 2001 verbal reprimand with Union Chair
Ernie Koepp at approximately 2:20 p.m. The grievant was questioning why he had to take
orders from Gordon, that it was not the normal practice and that work orders should have to
through the foreman. Koepp testified that at this time Gordon arrived with the work order
grievant to repair the leaky toilet, that Gordon stated he would take and show the grievant
he needed to do, and that when the grievant asked if he needed any tools that Gordon replied
Koepp further testified that approximately ten (10) to fifteen (15) minutes later the grievant
returned stating the toilet still leaked and that the grievant wanted a meeting with the
Manager, Randy Sweet. The grievant felt Gordon was harassing him and they met and
the matter with Sweet.
During the meeting with Sweet, the grievant explained he felt he was being harassed
by Gordon and
that he wanted his assignments to come from his immediate supervisor. Sweet told the
he would take the matter up with the supervisors, but also told the grievant he had to fix the
toilet. Sweet also explained to the grievant he could be disciplined and gave him several
of things he could be disciplined for. Sweet asked the grievant what he thought of this, and
grievant responded "You're out of your fucking mind." Thereafter the grievant returned to
production area. Upon his return to the production area the grievant was paged to repair a
production machine. After the grievant left Sweet met with the Human Resource Manager
Witthun and the Production Supervisor Scott Provost and decided to discipline the grievant
using abusive language, not being in the proper state of mind, and failure to do his job.
than sought out the grievant. The grievant was informed of his immediate suspension and
walked the grievant out of the plant. Thereafter, on April 2, 2001 the following letter was
April 2, 2001
Mr. Rudy Lahmann
2102 Koshkonong Road
Cottage Grove, WI 53527
The intent of this letter is to document your
incident of abusive, indecent and threatening
language, insubordination, as well as not performing your job duties up to company
March 28, 2001, you did not adequately perform the repair of a leak to a plumbing fixture in
Paperline area. You had intentionally not repaired the item, even knowing that work other
Jack Gordon told you needed to be done. In addition, you used abusive and indecent
towards Randy Sweet when he asked you to repair the leak properly. You also used abusive,
indecent and threatening language towards Jack Gordon when you were initially assigned the
The abusive and indecent language is a violation of Rule #16 in the Code of Conduct in the
Handbook and insubordination is a violation of Rule #20 in the Code of Conduct in the
You had a prior incident of insubordination
in September of 1996 where you were suspended for
5 days. In addition, you were given a verbal warning on March 26, 2001, for poor job
You are being issued a suspension which began on Wednesday, March 28, with a return date
Wednesday, April 4, 2001 for the above incident of abusive, indecent and threatening
insubordination and poor job performance.
If you have any future occurrences of this
nature, it will lead to more severe disciplinary action
up to and including discharge.
Sue Witthun /s/
Human Resource Manager
cc: Ernie Koepp Dick
Frank Graeber Randy Sweet
Thereafter the instant grievance was filed and processed to arbitration in accord with
grievance procedure. The record also demonstrates the grievant received a suspension for
insubordination in 1996.
The Employer contends the grievant used abusive language towards management,
displayed a disrespectful
attitude towards management and repeated his actions of stating that he is going to do only
the supervisor tells him to do on work assignments. The Employer contends the assignment
repairing a leaky toilet is well within the grievant's technical competencies. The Employer
contends the grievant challenged Gordon when the grievant informed Gordon he was only
to do the specific work that Gordon instructed him to do. The Employer points out that
informed the grievant he was to use his initiative to solve the problem and to prevent
flooding of the area. The Employer contends that the grievant crossed the line when he
"You're out of your fucking mind." The Employer contends the grievant was suspended for
abusive, indecent language, insubordination and not performing his job to Company
The Employer argues the grievant repeatedly stated he was only going to do what
told him to do. The Employer points out there is no dispute the grievant stated this. The
Employer asserts this behavior displays a disrespectful attitude towards management and such
behavior is insubordination. The Employer points out the grievant left the work site to
meeting with the Production Manager despite the fact the plumbing fixture was still leaking.
The Employer also points out the grievant does not dispute he made the statement to
Sweet. The Employer
argues the grievant's immediate apology demonstrates the grievant was aware this was
behavior and is not typical "shop talk". The Employer concludes given the grievant's March
2001 verbal reprimand and the grievant's July 1996 five day suspension for insubordination
Employer had just cause to discipline the grievant. The Employer would have the
deny the grievance.
The Union contends the Employer has used a scatter gun approach to justify
grievant. The Union argues that when the grievant stated to Gordon that he was "running
time" the grievant meant that Gordon was running out of time to get the grievant because
was leaving the Company at the end of the month. The Union asserts there was no threat.
had recently disciplined the grievant and they did not like each other. The Union also points
Gordon claimed the grievant had been argumentative yet Koepp's testimony does not support
Gordon's claim. The Union also points out Gordon did not put any sense of urgency into
conversation nor was there any mention of possible flooding. The Union
further asserts Gordon had a key to the locked door where the shut
off valve was located. The Union also questions why Gorgon waited
until the second shift to deal with the problem.
The Union contends that Sweet left out the context of his conversation
with the grievant when he claimed the grievant used abusive and
indecent language. The Union points out Sweet had, after the
grievant had explained his concerns of being disciplined by Gordon,
listed several examples of how he could be fired for a bad decision
or making a wrong phone call. Sweet than asked the grievant what
he thought about that to which the grievant made his reply. The
Union asserts the grievant was amazed at the absurd answers Sweet
listed and made a remark for which he immediately apologized. The
Union also points out that Koepp testified Sweet was more concerned
about being told he was out of his fucking mind and informed Koepp
he was not going to let anyone talk to him that way.
The Union also argues the grievant never refused to fix the leaky
toilet. The Union points out that after the grievant tightened the
flanges on the toilet it still leaked but only when flushed. The
Union asserts this was not an emergency situation. The Union
argues there is no evidence the grievant refused to fix the toilet
or that he refused to complete the assignment. The Union also
argues the Employer did not give the grievant the opportunity to
complete the work assignment. The Union also points out that when
Provost went to get the grievant the grievant was working on fixing
a production line problem.
The Union would have the undersigned sustain the grievance and direct
the Employer to make the grievant whole.
Herein the Employer issued the grievant a five (5) day suspension for
allegedly using abusive, indecent and threatening language,
insubordination, and not performing his duties in accord with the
Employer's standards. There is no dispute the grievant did use
an indecent word when responding to a question form Sweet.
However, the Employer has failed to demonstrate that anything in
the language used by the grievant, either in his conversation
with Sweet or with Borden, was abusive or threatening. At most
it was argumentative. While the Employer has a disciplinary
interest in making sure the grievant properly performs his duties
as he completes his work assignments, the fact the grievant
raised issues with how the assignments were made does not rise to
a disciplinary action. Sweet's view that the use of an indecent
term by the grievant was disrespectful may warrant some
disciplinary action. However, nothing in the testimony of either
Sweet or Borden leads to a conclusion that the grievant used
threatening or abusive language when discussing his work
assignment with them.
The undersigned also finds that there is nothing in the record that
would lead to a conclusion that the grievant was insubordinate.
The grievant was given a work assignment by Borden, fix the leaky
toilet. Borden accompanied the grievant to the toilet and
explained what he
believed was necessary to fix the problem. One would assume that
if there had been a danger of flooding Gordon would have turned off
the water before he left. The grievant commenced the job. When he
could not correct the problem he got his steward and went to talk
to Sweet. At the conclusion of his conversation with Sweet the
grievant returned to the plant floor. Upon returning to the plant
floor the grievant was paged to repair a production line problem.
When Provost went looking for the grievant he found him in the
midst of repairing the production line. Thus, there is nothing in
the record that would demonstrate the grievant intentionally failed
or refused to complete the assignment.
The undersigned would note here that when the grievant told Borden he
would only do what Borden specifically told him to do Borden
directed the grievant to use his skills and knowledge to
correctly finish the job. When the grievant tightened the
flanges on the toilet and it still leaked the grievant was aware
he needed a parts list and had to shut off the water. The fact
that the grievant went to the Plant Manager with his steward to
discuss his problem with Borden assigning him work does not lead
to a conclusion that the grievant was insubordinate and
intentionally failed to repair the toilet. Raising questions
about the assignment and the supervisor who assigned it is not,
in of itself, insubordination. Particularly when the supervisor
who made the work assignment has left the plant for the rest of
the day. At the conclusion of the meeting with Sweet the
grievant did not refuse to complete the assignment. The
undersigned concludes the Employer has failed to demonstrate the
grievant was insubordinate.
Therefore, based upon the above and foregoing and the testimony,
evidence and arguments presented the undersigned finds the Employer
has failed to demonstrate the grievant was insubordinate and
intentionally failed to repair an item, and, the Employer has
failed to demonstrate the grievant used abusive and threatening
language. The undersigned concludes the Employer did not have just
cause to suspend the grievant for five (5) days. The Employer is
directed to reduce the grievant's discipline to a written reprimand
for use of an indecent term and to make the grievant whole for any
The Employer had proper cause to discipline the grievant for using an indecent term
a discussion with a manager. The proper remedy is a written reprimand. The grievant is to
whole for any lost wages.
Dated at Madison, Wisconsin, this 28th day of March, 2002.
J. Bielarczyk, Jr., Arbitrator