BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
RAY O VAC CORPORATION
UNITED AUTOMOBILE, AEROSPACE AND
IMPLEMENT WORKERS OF AMERICA, UAW LOCAL
Murphy, Gillick, Wicht & Prachthauser, by Attorney George F.
Graf, 300 North Corporate Center, 300 North Corporate Drive, Suite 260,
Brookfield, Wisconsin 53045, appearing on behalf of UAW Local Union 1329.
Foley & Lardner, by Attorney Michael H. Auen, Suite 3800,
777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202-5367, appearing on behalf of
Ray O Vac Corporation.
Ray O Vac Corporation, hereinafter Company, and International Union United
Aerospace and Agricultural Implement Workers of America UAW, Local Union 1329,
Union, are parties to a collective bargaining agreement that was in effect at all times relevant
proceeding which provides for final and binding arbitration of certain disputes. A request to
arbitration was filed with the Commission on January 17, 2002. Commissioner Paul
A. Hahn was
appointed to act as arbitrator on February 18, 2002. The hearing took place on April
9, 2002 at the
Ray O Vac Corporation plant in Madison, Wisconsin. The hearing was transcribed. The
given the opportunity to file post hearing briefs. Post hearing briefs were received by the
on May 20, 2002. The parties declined to file reply briefs. The record was closed on May
The parties stipulated to the following issue:
Whether the grievant was discharged by the
Company for Just Cause? If not, what is the
ARTICLE IV MANAGEMENT
Consistently with the provisions of this Agreement, the
management of the plant and direction
of the working forces, including the right to hire, distribute overtime, suspend or discharge
and proper cause, and the right to transfer or relieve employees from duty, because of lack
or other legitimate reasons, is vested exclusively in the Company.
For the practical and successful conduct of
this business, it is imperative and agreed that every
employee shall follow the instructions of his supervisor and that in cases where he disagrees
supervisor's interpretation of the contract or feels that he is unfairly dealt with by any
shall take the matter up as outlined in the applicable grievance procedure. It is agreed that
an employee to follow instructions of his supervisor constitutes cause for disciplinary action
. . .
ARTICLE XIV GENERAL
. . .
Section 5. When a suspension, disciplinary
layoff or discharge of an employee is
contemplated, the employee, where circumstances permit, will be offered an interview to
to answer the charges involved in the situation for which such discipline is being considered
he is required to leave the plant. An employee who, for the purpose of being interviewed
discipline is called to the plant or removed from his work to the supervisor's desk or office
to an office, may, if he so desires, request the presence
of his steward to represent him during such
an interview. All warning notices (excluding notices
of suspension and discharge) will be in effect for a period of one (1) year from the date the
warning is issued.
. . .
ARTICLE XX GRIEVANCE
. . .
. . .
(a) Such arbitrator shall have no
power or jurisdiction to change, add to or subtract from the
terms of this agreement. Such arbitrator shall have no power to modify or nullify any of the
provisions of this agreement for the purposes of a particular case. The arbitrator shall issue
a decision within ninety (90) calendar days after submission of final briefs.
. . .
(i) Neither party will be
permitted to assert in any arbitration proceeding any ground or to rely
on any evidence not previously fully disclosed to the other party.
STATEMENT OF THE CASE
This arbitration involves Ray O Vac Corporation and UAW Local 1329. (Jt. 1) The
alleges that the Company violated the collective bargaining agreement by discharging the
without just cause for allegedly failing to be ready to start work at the start of his shift, for
unauthorized coffee break and for not following the instructions of a supervisor when
report to work. (Jt. 2)
The Company operates a plant in Madison, Wisconsin which is involved in packaging
Company's product. The incidents that led to the discharge of the Grievant occurred on
2001. The Grievant was scheduled to begin work at 4:30 a.m. and was assigned to a
designated as the AA ProPack line. This packaging line needs a full crew of
employees to properly function. The Grievant left his home in sufficient time to arrive
at work and
begin his shift on time, but while driving to work, he received a speeding ticket, resulting in
late for work. At approximately 4:36 a.m., the Grievant used a plant telephone to call
superintendent's office and spoke to supervisor Nowaczyk. The Grievant asked whether he
needed to work that day and was told that he was needed and that he should report to his
Production superintendent Tesmer, who was responsible for Grievant's assigned production
AA ProPack line, found that the Grievant was not at his work station at 4:30 a.m. as
get that line staffed and running Tesmer took an employee off the C/D Bulk line and put him
AA ProPack line. The production superintendent was now short of the seven employees
to work the C/D Bulk line, an incentive production line. Production superintendent, Tesmer,
with Nowaczyk, and learned that the Grievant was in the plant. Both supervisors then went
for the Grievant.
Grievant was not near the time clocks but was found by the two supervisors in the
where he was getting a cup of coffee and talking with the employee in charge of the
Production superintendent Tesmer, upon observing Grievant getting a cup of coffee, told
that he was needed on his scheduled line and for him to get going. The Grievant responded
did not like what he perceived to be harassment by the production superintendent. While
dispute between the Grievant and the supervising representatives of the Company about how
times Grievant was directed to go to work and how many times the Grievant stated that he
like to be harassed, the Grievant ultimately followed the supervisors downstairs to the
At about 5:05 a.m., when the employees on Grievant's production line changed job
the Grievant went to the production superintendent's office and told Tesmer that he was sick
he was going to leave at first break. At the first break, the Grievant left work. The record
dispute between the Grievant and Company representatives as to when the Grievant informed
supervisors that he was sick; the Grievant testified that he told Nowaczyk when Grievant
whether the Company needed him to work; Company witnesses testified that Grievant never
he was sick until he stopped by the superintendent's office at 5:05 a.m. and said that
he was going
to leave at first break because he was sick. There is also a dispute between the parties, as
by their respective witnesses, whether Grievant's absence on his line and the removal of an
from the C/D Bulk line caused disruption to production. A Union steward testified that the
line ran without the employee transferred to the AA ProPack line because of the
at the start of the shift although not as effectively; Company witnesses testified that both lines
run as effectively or at all until Grievant arrived at the AA ProPack line and the
transferred back to the C/D Bulk line at about 4:50 a.m. At that point, both
lines were running with
a full compliment of employees.
The Company regarded Grievant's punching the time clock and then going to have
an unauthorized break. The Grievant should have gone directly from the time clock to his
station. The Company further justified its discharge on the basis that when instructed by
and production superintendent Tesmer in the cafeteria to leave the cafeteria and get to his
work station, the Grievant failed to follow that direction and was passive-aggressive toward
supervisors by accusing them of harassing him. The Company also took into account in its
decision three previous disciplines to the Grievant: May 2, 2001 where the Grievant
written warning for using work time to make personal phone calls, (Ex. 5) a verbal warning
conduct with a fork lift on May 7, 2001 (Ex. 6) and a two and one-half day suspension
for using abusive language toward his supervisors on February 21,
2001. (Ex. 7)
The parties processed the discharge of the Grievant through the contractual grievance
procedure but were unable to reach a resolution. The matter was appealed to arbitration.
was raised as to the arbitrability of the grievance. Hearing in the matter was held by the
on April 9, 2002.
POSITIONS OF THE PARTIES
The Union's position is that while Grievant's actions were not totally appropriate on
1, 2001, those actions did not warrant the discharge of a 15-year employee who had a good
employment record until his last year of his employment. The Union argues that on the
August 1, 2001, the Grievant was sick but decided to come to work and would have been on
scheduled line at 4:30 a.m. except that he received a traffic ticket on his way to work.
based on the Grievant's testimony, takes the position that Grievant told his supervisor when
to the plant that he was not feeling well and that the supervisor told him that it was the
decision whether he worked or not. Despite his not feeling well, the Grievant punched in
to his locker which is next to the cafeteria and, since his route to his work station went
cafeteria, he stopped to get a cup of coffee and briefly told the cafeteria employee about his
The Union argues that when supervisors Tesmer and Nowaczyk found Grievant in the
cafeteria they only had to tell him once to get to his work station and that the Grievant
followed the two supervisors to his work station. Grievant admitted that he told the
he felt they were harassing him; however, the Union points out that there is no evidence in
of any orders being given nor of any refusal of any order. The Union argues that these
between the supervisors and Grievant from the cafeteria to
his work station cannot under the evidence be considered insubordination. In fact, the
it was Tesmer who acted irrationally and caused the harassment statement from the Grievant
Tesmer confronting the Grievant in the cafeteria even though Tesmer had been told by
that the Grievant was in the plant and was on the way to his work station.
The Union refutes the Company's position that the Grievant's absence caused
problems. The Union relies on the testimony of Union officer Meyer that no one was
the C/D Bulk line but in fact an employee was brought down from the labor pool which is
set up to
cover absences. The Union argues that there was no lost production and that the lines
efficiently. Further the Union submits these lines can and do operate temporarily without a
compliment of employees.
The Union takes the position that Grievant did not take an unauthorized break.
not stop to take a break after he punched in on August 1st but merely
stopped to get a cup of coffee
on the normal route he would take from his locker, to pick up his shoes and safety glasses,
to go back
downstairs to his scheduled line.
The Union argues that some penalty may have been appropriate but certainly not
The Union submits that the Company has handled incidents similar to
August 1st involving other
employees by giving those employees a written warning or at most a modest suspension.
Union points out that the Grievant is a 15-year employee and the evidence from the
August 1 does not establish a reason for discharge. The Union submits this is
particularly true as the
Grievant was sick and still came to work and Grievant's actions were caused by the
reactions which border on harassment. Ultimately, the Union posits, the Grievant should
consented to come to work and should not be fired because he tried to accommodate the
In conclusion, the Union submits that for the reasons discussed herein, the Arbitrator
sustain the grievance, setting aside the discharge of the Grievant and fashioning an
remedy based on the facts presented.
The Company takes the position that the discharge for events that occurred on August
considered in light of the fact that in the previous six months before August 1, 2001 the
noted above, had been disciplined three times for abusive language toward a supervisor,
resulted in a two and one-half day suspension without pay, a written warning for using work
make personal phone calls and a verbal warning for unsafe conduct with a forklift. The
notes that all the discipline was in writing and that each
of the disciplinary documents informed the Grievant that future inappropriate behavior
in more severe disciplinary action, specifically including discharge. The Company argues
Grievant acknowledged at hearing that he understood that discharge could result for any
inappropriate conduct. The Company also notes that none of the aforementioned discipline
The Company submits that when Grievant arrived at work at 4:36 a.m. on August 1,
he spoke with supervisor Nowaczyk and discussed whether he was needed to work.
him that he was needed to work. The Company argues that the testimony from Nowaczyk is
conclusive that the Grievant at that time never told Nowaczyk that he was sick. Shortly
Tesmer, the production superintendent who was responsible for the AA ProPack line,
Grievant was not at his work station at 4:30 a.m. and in order to get that line staffed
and running he
took an employee off the C/D Bulk line and put him on the AA ProPack line.
Because Tesmer was
now short on the C/D Bulk line he went to see Nowaczyk for help. Nowaczyk told
Tesmer that the
Grievant was in the plant and both went looking for him. The Company submits that Tesmer
ask the Grievant in the cafeteria no less than three times to come to work and that the
delayed and procrastinated by going to the condiment table for sugar and/or cream and then
proceeded to follow the supervisors downstairs to the production lines. The Grievant did not
and in fact took his time and on several occasions accused the supervisors of harassing him
and at no
time did he say that he was sick.
The Company submits that when the Grievant went to speak with Tesmer at the
office at 5:05 a.m. it was the first time that Grievant announced to anyone in
management that he was
sick and stated then to Tesmer that he was leaving at least in part because he did not need
harassment that he felt he was receiving from Company representatives.
The Company submits that the C/D Bulk line, because of the transfer of an employee
AA ProPack line, did not run for the first 20 minutes on August 1, 2001, and that without
employee transferred to the AA ProPack line, the C/D Bulk line, which normally needs a
seven employees, did not operate efficiently. Because the CD Bulk line is incentive
employees can make their incentive only when the line runs efficiently.
The Company then summarized its argument by stating that Grievant did receive
discipline and that Grievant knew and understood that future misconduct such as occurred on
1, 2001 could result in discharge. The Company submits that the Grievant did three things
on August 1, 2001, first by taking an unauthorized break in that he punched in and then was
coffee and socializing with an employee in the cafeteria before coming to his work station.
the Company submits the Grievant was non-cooperative with supervisors Tesmer and
and became passive-aggressive with the two
supervisors by continually claiming that he was getting harassed and Grievant delayed
going to his
line to make the point that he was being harassed. Third, the Company argues that the
not actually sick but continued this passive-aggressive behavior to carry out the Grievant's
he was being harassed and that this allowed him to avoid his work assignment.
The Company notes that the collective bargaining agreement is very clear that "the
an employee to follow instructions of his supervisor constitutes cause for disciplinary action
discharge." The Company argues that the Grievant is not a candidate for leniency, that he
serious recent disciplinary record, and that his conduct was deliberate and intentional as
negligent and that he plainly did not get the message from the previous progressive
Company submits to the Arbitrator that employees have an obligation to comply with
instructions such as "we need you on the line" and that the Company has an obligation to
discipline and order in the work environment. Intentional, uncooperative behavior, the
submits, even if done in a passive-aggressive manner, is improper and serious and warrants
Further, the Company argues that the Union's position that the Grievant received
treatment fails because the Union only attempted to prove disparate treatment by submitting
disciplinary record of just one other employee, by the name of White. White was disciplined
with a five-day suspension for avoiding work. A second suspension of ten days resulted
mitigation of a termination decision but that the reason for the mitigation was never entered
record. The Company argues that one example of perhaps different discipline for a similar
occurrence, which the Company argues was not as serious as the Grievant's, does not result
of disparate treatment.
The Company submits to the arbitrator that the general view of arbitration case law is
arbitrators do not sit to impose personal standards of discipline or a standard that is
despite Union arguments to the contrary. Most arbitrators, the Company argues, believe that
management has acted in good faith on accurate facts and there is no existing proof that the
is different than that imposed in other cases, management's decision should not be disturbed.
this line of argument, the Company submits, the penalty issue is not whether what the
on August 1, 2001, warrants termination, it is his past record that make this discharge proper
cause even if there is debate about the seriousness of his conduct on August 1, 2001.
In conclusion the Company submits that the Grievant's termination in the
forth in the record was for cause and the grievance should be denied.
This arbitration involves the discharge of the Grievant from his employment with the
Company on August 3, 2001 for incidents that occurred on August 1, 2001.
(Jt. 2) The Union
alleges that the Company violated the parties' collective bargaining agreement because the
did not have just cause for the discharge. (Jt. 1 & 2) The record
establishes three reasons for the
discharge: the taking of an unauthorized break; failure to follow a directive of a supervisor
to get to
work; insubordination by the continued accusation by the Grievant to a supervisor that the
was "harassing" the Grievant. The Company also took into consideration in making its
decision three previous disciplines of the Grievant in the six months previous to
2001. (Jt. 2, 5, 6, & 7) The facts are not in dispute
except as described above.
I find that the record establishes that the Grievant took an unauthorized break after he
punched the time clock on his arrival at work on August 1, 2001. It really does
not matter if the
Grievant was late, or was sick, which is disputed, the rule of the plant is that once an
punches the time clock, the employee is expected to go straight to his assigned work station.
the Grievant clearly did not do; he instead went to his locker and then went to get a cup of
took time to tell the employee in charge of the cafeteria about a traffic ticket he received on
to work that morning. (Er. 3, Tr. 69 & 70) Grievant
knew that he was to be at his work station on
the AA ProPack line at 4:30 a.m. He was admittedly late when he punched in at
4:36 a.m. which if
anything should have encouraged or required him to hasten to his work station as he knew or
have known that his absence might cause problems with starting the production line to which
assigned. Once he was in the plant and was told by supervisor Nowaczyk that he was
whether he told Nowaczyk that he was sick or not as Nowaczyk testified, Grievant took his
getting to work. (Jt. 2) If an employee is a team player, as alleged by the
Union for working even
when sick, the employee should not have to have two supervisors come look for him to get
work after the employee is on the clock.
The Union argues that this short period of time was not a big deal as there was no
production. However I accept the Company's factually supported position that it had to
employee from the C/D Bulk line to Grievant's line in order to get production
started. (Er. 3 &
Tr. 13 & 14) Union witness Meyer testified that the Bulk line on
which he was assigned can run with
one less employee and disputes that an employee was transferred. (Tr. 121) But
Meyer also testified
that the line for twenty minutes operated with only six employees and did go down more than
until the seventh employee was on the line at
4:50 a.m. (Tr. 115 & 116) I credit supervisor Tesmer's
testimony that he did transfer an employee off Meyer's C/D Bulk line because of Tesmer's
contemporaneous notes of the August 1 incident. (Er. 3) I credit that the
Company did lose
production on August 1st, particularly on the C/D Bulk line, an
incentive based production line.
Grievant's unauthorized break mattered.
I find that the Grievant failed to properly respond to Tesmer when directed by
to work. I credit Tesmer and Nowaczyk over Grievant that when Tesmer said "Doug, we
on your line, let's go", Grievant failed to respond in a timely manner. This may not have
been a direct
order and it may not have been a direct refusal on Grievant's part but insubordination can
an improper response by an employee to a directive or request from a representative of
Had Grievant responded immediately it might be a different story, but he did not.
(Tr. 16 & 51)
Unfortunately for Grievant, his attitude exemplified by the incidents in the three previous
and his accusation of harassment does not help him when trying to convince me that his
that he followed Tesmer downstairs to the line immediately is accurate. The Grievant admits
he should have been working rather than getting coffee and talking with the cafeteria
attendant. (Tr. 77) Grievant admits he accused Tesmer at least once of
harassing him and he admits
he 'blows up' easily. (Tr. 78, 82 & 84) These actions
by Grievant do not support a finding contrary
to Tesmer and Nowaczyk that he responded immediately to the directive to go down to his
The accusation by Grievant that Tesmer was harassing him is really tied to the
discussion. I have treated it separately because the Union argues that Tesmer, by his actions,
the reaction from Grievant and therefore it was really Tesmer's fault. It is a good argument
advance on behalf of the Grievant, but I reject it. I simply do not believe it is harassment
for one or
two supervisors to look for Grievant when he is in the plant but is not at his work station and
production lines are being affected. I recognize that supervisors are under pressure from
to get production running on time. If one looks closely at the language all witnesses agreed
used to get Grievant to his job, it was hardly language that would indicate that Tesmer was
should have elicited a response by Grievant that he was being harassed. Grievant could have
should have responded to Tesmer's statement that he was needed and let's go by saying I am
way and been so. Yet, Grievant takes his time and accuses Tesmer of harassing him on
occasions which I credit over Grievant's testimony that he only said it
once. (Tr. 16, Er. 3,Tr. 70)
Although Nowaczyk only heard Grievant make the harassment statement once, as the Union
the record indicates that Nowaczyk may not have heard the statement even once as he
he went into the bathroom after Tesmer's first directive to Grievant that Grievant was needed
line. (Tr. 51)
I find that the use of the harassment language by Grievant to be insubordination when
at in the light of his abusive language toward two supervisors, one of whom was Nowaczyk,
February of 2001 for which he received a two and one-half day
suspension. (Tr. 53 & 54 and Er. 7)
These types of statements toward management representatives are and can become a not so
form of intimidation toward supervision that
can lead to a reluctance by supervisors to carryout the directives toward Grievant that
to run the plant. The statements can also have an adverse effect on the discipline that is
in any employment situation to ensure an environment that is conducive to order and
I find that the Company has proven that Grievant violated the Company's code of
contained in the employee handbook for which the Grievant acknowledged receipt and an
terms. (Er. 8 & 9, Tr. 47 & 48)
Grievant took an unauthorized break and was insubordinate
on August 1, 2001.
The issue then becomes did Grievant's actions warrant discharge. I find that coupled
the three disciplines against Grievant in February and May of 2001, which Grievant did not
by filing a grievance, the Company did not arbitrarily or unreasonably discharge the
Union makes a disparate treatment argument. The Union argues that employee Leo White
disciplined twice in 1994 and once in 1997 with five and ten day suspensions is proof that
discharge of Grievant was excessive discipline of Grievant after fifteen years of
employment. (Er. 11 & 12 & U. 13)
White's first two disciplines were for refusal to do a job
assigned to him and the last discipline was for belligerence toward co-workers. While there
similarities, the facts of the incidents of White and Grievant are different and White's most
discipline occurred over four years ago. I also do not believe disparate treatment is shown
example unless the situations are similar and of recent vintage. As confirmed on the record,
discipline is the only situation the Union brought forth to prove the disparate treatment
argument. (Er. 14 & 15 & Tr. 133)
I am not unmindful of the significance of upholding a discharge of a fifteen year
But I cannot say that the Company did not have just cause or was arbitrary in its discharge
Grievant's actions and resulting discipline in the six months before his discharge are not
of a fifteen year employee who values his job with this Company and I find the Company
met the just
Based on the foregoing and the record as a whole, I issue the following
The Company did not violate the collective bargaining agreement when it discharged
Grievant. The grievance is denied.
Dated at Madison, Wisconsin, this 7th day of June, 2002.
Paul A. Hahn, Arbitrator