BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
L.C.L. TRANSIT COMPANY, ELKHORN,
TEAMSTERS LOCAL UNION NO. 579,
Mr. Hans Schaupp, General Manager, L.C.L. Transit Company,
Inc., P.O. Box 19009,
2100 Riverside Drive, Green Bay, Wisconsin 54307-9009, appearing on behalf of the
Mr. Darrell Shelby, President, Teamsters Local Union No. 579,
2214 Center Avenue, Janesville,
Wisconsin 53546, appearing on behalf of the Union.
Teamsters Local Union No. 579, hereafter Union, and L.C.L. Transit Company,
Wisconsin, hereafter Employer, are parties to a collective bargaining agreement that provides
final and binding arbitration of certain disputes. The Union, with the concurrence of the
requested the Wisconsin Employment Relations Commission appoint Coleen A. Burns, a
its staff, as arbitrator to hear and decide the instant grievance. Hearing in the matter was
held on May
7, 2002, in Janesville, Wisconsin. The hearing was not transcribed. The record was closed
receipt of oral arguments on May 7, 2002.
The parties stipulated to the following statement of the issue:
Did the Employer have just cause to discharge Victor Bartosch?If not, what is the
DISCHARGE, SUSPENSION AND
Subject to the provisions of Article 4, Section 1(b), the Employer
shall not discharge or suspend
any covered employee without just cause, but in respect to the discharge or suspension shall
least one (1) written warning notice of the complaint to the affected covered employee prior
discharge or suspension, with a copy to the Local Union, except that no warning notice need
to a covered employee prior to discharge if the cause of such discharge is dishonesty or
which may be verified by a sobriety test. Refusal to take a sobriety test shall establish a
of drunkenness. A prior warning is also not required if the cause of discharge is: drug
as provided for in Article 26, Section 3 of this Agreement; the possession of controlled
and/or drugs, either while on duty or on Company property; or recklessness resulting in
accident while on duty; or failure to report any accident which the covered employee is
aware of; or
unprovoked physical assault on a company supervisor while on duty or on company property.
Termination or suspension of an uninsurable driver shall be subject to the grievance
procedure.Further, no prior warning is required where there is a discharge for refusal of a
assignment or the unauthorized use of equipment. Any covered employee who absents
work for three (3) successive days without notification to the Employer shall be considered a
voluntary quit. However, if requested by the covered employee or the Local Union, a
concerning such discharge or voluntary quit will be arranged. Discharge, suspension and
letters must be postmarked no later than ten (10) days following the Employer's knowledge
violation, except in those cases where a letter of investigation was issued within such ten (10)
period. A local meeting shall be required between the Employer and the affected Local
Union in an
effort to resolve grievances prior to docketing grievances in all cases involving discipline
otherwise provided herein. A phone
conversation shall satisfy this provision where mutually
agreed between a Local Union and the Employer.
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. Habitual absenteeism or tardiness shall be
to disciplinary action up to and including discharge.The parties recognize that where it can
that an employee arbitrarily and for no justifiable reason refuses to perform a reasonable
assignment after being given ample opportunity by the Employer to make a clear-minded
perform such assignment, may be considered as having voluntarily quit his job pursuant to
Section 1.Discharge or suspension for any infraction or offense, whether or not it is listed
be by proper written notice to the covered employee and the Local Union. Any covered
may request an investigation of his discharge or suspension. Should an investigation prove
injustice has been done the covered employee, he shall be reinstated. The Committee, Panel,
arbitrator provided for by Article 8, Section 1, Steps 4, 5 and 6 shall have the authority to
partial or no compensation for time off. Appeal from discharge must be submitted by the
employee in writing to the Employer within ten (10) days of the date the covered employee
the discharge. Appeal from a suspension or warning notice must be submitted by the
employee in writing to the Employer within ten (10) days of the date the covered employee
the suspension or warning notice. If no decision has been rendered on the appeal within
days, the case shall then be taken up as provided for in Article 8. Any driver discharged
his domicile point shall be provided the fastest available transportation to his domicile at the
Victor Bartosch, hereafter the Grievant, was first employed by the Employer in May
The Grievant left this employment in May of 1996 and returned to this employment in
1996. With the exception of a few short hauls, when the Grievant drove for the Employer
he and his
wife operated as a team.
In May of 2001, the Grievant and his wife were each assigned their own truck. The
made this reassignment in order to make more efficient use of personnel and equipment.
Recognizing that the Grievant was not happy about the reassignment, the Union
Representative met with the Employer and asked the Employer to reassign the Grievant and
as a team. This meeting was held shortly after the Grievant and his wife were separated. At
meeting, the Employer indicated a willingness to do what it could to have the two run
hook up at various terminals. The Employer did not agree to reassign the Grievant and his
a team. The Union and the Employer agree that the right of the Employer to make this
is not before the arbitrator.
Every two to three weeks following the Grievant's separation from his wife, the
contacted the Employer and requested that he and his wife be reassigned as a team. The
did not respond to these requests.
On August 9, 2001, the Grievant and the Employer's Driver Manager, Ron Payne,
a series of "QTRACS" messages. Payne initiated the exchange by denying the Grievant the
the Grievant had requested. Several times during the exchange, the Grievant responded with
profanity. This profanity involved Payne's mother and included swearing at Payne
well as at management collectively. Payne, who did not make any profane or abusive
eventually sent the following message:
I don't need the language, I asked what the "fuel" was for on the
breakdown message, you did
respond, that's why it was changed, now, if you have pay coming, I'll change it back. What
"fuel" problem? If it was just to fuel the truck then you know there's no pay
The Grievant responded with a statement in which he used the
"f-word" to describe the Company's
equipment; called Payne an "f-ng SOB" and told Payne to go "f" himself. When Payne
by reminding the Grievant that his contract did not provide pay for fueling the truck, the
responded that there was no "f'n" contract; called Payne a dumb SOB and told Payne to shut
Thereafter the Grievant and the Employer became involved in a dispute over whether
the Grievant's truck was being properly maintained. The Grievant, the Union, and the
to discuss the Grievant's concerns. At this meeting, the Grievant continued to maintain his
that the truck was not being maintained properly and the Employer maintained that it was.
Following a meeting on this dispute, the Grievant, who was in Savannah, contacted
Employer to request an oil change. Although the Employer understood that an oil change
been made in Elkhorn, the Employer agreed to the Grievant's request. Understanding that
Savannah mechanic believed that the oil had not been changed in Elkhorn, the Grievant
Employer General Manager Hans Schaupp at Schaupp's home to discuss the matter.
Following this discussion, the Employer had the oil analyzed and concluded that the oil
changed in Elkhorn.
On November 6, 2001, Hans Schaupp, General Manager, L.C.L. Transit
Company, sent the
following letter to the Grievant:
Dear Mr. Bartosch;
This letter is to serve as written notice
your conduct on the Morning of
November 3, 2001 will not be tolerated. On November 3, 2001 you called my home with
about the service performed on LCL Transit unit #2094. During this conversation you were
The foul language you used including numerous instances where the f
in describing the company, the equipment, and company personnel was unprofessional, rude,
uncalled for. This is not how LCL Transit Company's employees are to act in dealing with
another, customers, nor vendors of the company and is being taken very seriously.
further acts of using foul language, or being insubordinate to either myself, the management
customers, or outside vendors will be met with more severe disciplinary actions as outlined
Operating Agreement LCL Transit Company and the IBT local 579.
. . .
CC Teamsters Local 579 (Via Certified Mail # 7000 1530
0000 3241 0718) Rob Payne
(Driver Manager) Personnel File
On January 10, 2002, Robert Payne, Driver Manager of
Transit Company, sent the
following letter to the Grievant:
Dear Mr. Victor Bartosch:
This letter is to serve as written
confirmation of the telephone
conversation we had today in which your employment with LCL Transit Company was
Your termination is the result of your conduct on the afternoon of January 8, 2002 in which
verbally abused Ron Willing.
Your behavior was rude, insubordinate and
unprofessional and created a hostile work
environment. Your use of the "f-word" regarding company equipment and personnel is
and uncalled for. Additionally, your threat to physically assault another employee is
unprofessional and unacceptable. You were sent a warning letter on November 6, 2001.
type of behavior will not be tolerated at LCL Transit Company.
As a result of your
8, 2002 and your non-compliance with the warning letter, your employment with LCL
Company has been terminated effective today January 10, 2002.
. . .
CC: Hans Schaupp Personnel File
Teamsters Local 579 (Via Certified Mail #
7000 1530 0000 3240 9897)
The conduct that lead to the Grievant's discharge was
by the Employer's Service
Manager, Ron Willing; the Grievant; the Grievant's wife and another driver. Neither the
wife, nor the driver, testified at hearing. The driver, however, submitted a written statement
Union. In this written statement, the driver relates that as he, the Grievant and the
were talking, Willing approached the Grievant and his wife. This driver further states that
thing started to get ugly." The driver's written statement does not relate any statements or
of the Grievant, the Grievant's wife, or Willing.
Willing recalls that, on January 8, 2002, he noticed that the Grievant's wife's truck
was in the
parking lot and was due for service; that he approached the Grievant and his wife in the
as they were having a discussion with another driver; that he told the Grievant's wife that her
needed servicing and that he would like to do the servicing now; that she said that she
tractor to get home; that Willing said that he could send a pick-up; that she said that it would
work because she would have to get up at eleven to get her tractor and do her pick-up in
that the Grievant then involved himself; that the Grievant was aggressive; that the Grievant's
aggression escalated as the conversation continued; that the Grievant used foul language; that
Grievant brought up that Willing had sworn at the Grievant's wife at some time in the past;
the Grievant said that he would pack Willing's head up his ass and roll him out of there.
recalls that, at that point, he told the Grievant that he had had enough; that he was going to
Hans; and that the Grievant walked away, turned, and said "Fuck You."
The Grievant recalls the following: that at approximately 4:00 p.m. on the
January 8, 2002, the Grievant and his wife were in the yard and engaged in a conversation
another driver; that Willing approached the Grievant and his wife; that Willing discussed the
have both of their trucks serviced and told them that he could service both trucks "now"; that
Grievant and his wife explained that "now" was not convenient because both were scheduled
deliver loads in the morning and that both were going home to sleep; that the Grievant and
told Willing that they would bring the trucks back the next afternoon; and that Willing
the trucks be serviced that day and that the next afternoon was not acceptable. According to
Grievant, he then told Willing that he if he ever swore at his wife again that he would "put
up his asshole."
On or about January 11, 2002, the Grievant filed a grievance alleging that the
too severe. The Grievant requested his job back without loss of seniority or benefits and to
whole in every way. The grievance was denied at all steps and thereafter submitted to
POSITIONS OF THE PARTIES
On January 8, 2001, the
used foul language, physically threatened Ron
Willing and was insubordinate. The Employer has a right to protect its employees from
physical abuse. Within the one year period preceding his discharge, the Grievant
warning letter, which was not grieved. The Employer has followed the contractual
The Grievant has admitted to both instances of misconduct. The Employer has just
discharge the Grievant.
Prior May of 2001, the Grievant and
wife operated as a team. When the Employer
separated this team, it was like a divorce.
The Grievant, who did not deal well with the separation, was particularly concerned
his wife's welfare. The Grievant's outburst resulted from the stress of this separation from
The Union does not condone the Grievant's behavior, but considers discharge to be too
As set forth in the discharge letter of January 10, 2002, the Employer discharged the
for conduct toward Ron Willing that occurred on the afternoon of January 8, 2002. As
forth in the discharge letter, the Employer considered the Grievant to have verbally abused
and to have engaged in behavior that was:
. . . rude, insubordinate and unprofessional and created a hostile
work environment. Your use
of the "f-word" regarding company equipment and personnel is disrespectful and uncalled
Additionally, your threat to physically assault another employee is completely unprofessional
unacceptable. . . .
Article 30 of the parties' labor agreement provides, in
part, as follows:
. . . the Employer shall not discharge or suspend any covered
employee without just cause, but
in respect to the discharge or suspension shall give at least one (1) written warning notice of
complaint to the affected covered employee prior to discharge or suspension, with a copy to
Union, except that no warning notice need be given to a covered employee prior to discharge
cause of such discharge is dishonesty or drunkenness which may be verified by a sobriety
test. . . .
Article 30 identifies other conduct for which discharge may be made without prior
The Employer, however, does not claim that the Grievant engaged in such identified conduct.
The initial issue to be determined is whether or not the Grievant engaged in the
which the Grievant was discharged. The only evidence of the statements made by, and the
of, the Grievant and Willing on January 8, 2002 is the testimony of the Grievant and
the conflicting testimony from the Grievant and Willing, the undersigned cannot be sure if
Grievant told Willing that he "would put his teeth up his asshole," as the Grievant recalls, or
Grievant told Willing that "he would pack his head up his ass and roll him out of there," as
recalls. However, regardless of which version is credited, the statements attributed to the
are rude, unprofessional, and contain a threat to physically assault another employee.
The Grievant did not deny that, when Willing informed the Grievant that Willing
discuss the Grievant's conduct with Hans, that the Grievant responded "Fuck you." Thus, it
be concluded that the Grievant made such a statement. Although this statement does not
threat to physically assault another employee, it is rude, unprofessional, and disrespectful.
The Employer's "No-Harassment Policy" addresses "race, sex, national origin, age,
religion, or any other characteristics that is protected by law." Thus, notwithstanding the
arguments to the contrary, the Grievant's profane and threatening behavior is not the type of
that is prohibited by this policy. Nonetheless, to threaten a fellow employee with a physical
does create a hostile work environment.
Management has a legitimate need to preserve its authority. The use of objectionable
or abusive behavior under circumstances that is disrespectful of this management authority
Willing is the Employer's Service Manager. The Grievant used objectionable
engaged in abusive behavior, in the presence of other employees, at a time in which Willing
exercising management's authority to schedule equipment for needed service and to place the
Grievant on notice that the Grievant's behavior was not acceptable and would be reported to
Employer's General Manager. Willing's response to Willing was disrespectful of
authority and, under the totality of the circumstances, was insubordinate.
In summary, on January 8, 2002, the Grievant was verbally abusive to Willing and
to physically assault Willing. As is also discussed above, the Grievant's conduct on January
was rude, unprofessional, insubordinate, disrespectful and created a hostile work
the Grievant has engaged in the conduct for which the Grievant was discharged.
The conduct for which the Grievant was discharged is the type of conduct that
would warrant discipline. Thus, the next issue to be determined is whether the
circumstances of this
case require a different conclusion.
The November 6, 2001 letter from the General Manager indicates that this Employer
condone foul language, in general, and the "f-word" in particular. While acknowledging
that, in the
past, he has sworn on occasion, Willing stated without contradiction that, in this workplace,
common for foul language to be directed at equipment, but it is not common for foul
language to be
directed at another human being.
The Grievant and Willing agree that Willing approached the Grievant and his wife to
a legitimate business concern, i.e., the need to service equipment. The
Grievant's testimony indicates
that Willing was insistent upon servicing the equipment that afternoon. However, neither the
Grievant's testimony, nor any other evidence, presents a claim that Willing used profanity,
abusive, or threatened the Grievant, or the Grievant's wife, during the conversation of
The record demonstrates that the Grievant's use of the "f-word" was provoked by
statement that he would discuss the incident with "Hans." "Hans" is Hans Schaupp, the
General Manager, and a supervisor of the Grievant and Willing.
Willing had a legitimate business reason to discuss the incident with "Hans." By
the Grievant of his intent to do so, Willing did not reasonably provoke the Grievant into
using the "f-word." Given the lack of reasonable provocation, as well as the evidence that
such language is not
condoned in the Employer's workplace, the Employer correctly concluded that the Grievant's
of the "f-word" was uncalled for.
The Grievant and Willing agree that the Grievant's threatening comment was made
Grievant had discussed the Grievant's belief that, some months previously, Willing had
sworn at his
wife. Given this juxtaposition, the undersigned credits the Grievant's testimony that the
remark was a conditional threat. In other words, the Grievant was threatening to take certain
if Willing again swore at the Grievant's wife.
The Grievant's wife did not testify at hearing and Willing did not confirm that he
swore at the
Grievant's wife. Thus, for the purposes of this record, it is not possible to conclude what, if
may have transpired between the Grievant's wife and Willing. Assuming
arguendo, that the Grievant
correctly understood that some months previously Willing swore at the Grievant's wife for
such conduct by Willing, even if unprovoked and contrary to Employer policy, would not
provoke the Grievant's threat of physical assault. As the Employer concluded in the
of January 10, 2002, the Grievant's threat to physically assault Willing is unacceptable.
As discussed above, the Employer does not claim that the Grievant's conduct on
2002 involved conduct for which no prior warning is required. Rather, the Employer argues
has complied with the contractual requirements of progressive discipline by providing the
with a prior written warning notice of November 6, 2001.
As the Employer argues, the Grievant received a warning letter on November 6,
Union does not argue, and the record does not demonstrate, that this warning letter is not
The warning letter of November 6, 2001 rebuked the Grievant for using the "f-word"
notified the Grievant that the Employer considered the Grievant's use of the "f-word" to
company, equipment and personnel to be unprofessional, rude and uncalled for. The
also placed on notice that further acts of using foul language, or being insubordinate to the
Manager, management staff, customers, or outside vendors, were unacceptable and would be
with more severe disciplinary actions.
In summary, the record demonstrates that the Grievant engaged in the conduct for
Grievant was discharged. The record further demonstrates that this conduct is the type of
for which the Employer has just cause to discipline. The Union argues, however, that
too severe a discipline.
The Grievant claims that, prior to the time that he and his wife were separated and
their own trucks, the Grievant did not have any significant disciplinary problems. The
not demonstrate otherwise.
The Grievant acknowledges that the Employer's decision to separate the Grievant
wife created stress. According to the Grievant, this stress increased the longer the two were
separated and was exacerbated by the events of September 11, 2001 and reports that drivers
missing in Florida. The Grievant's testimony that his "stress" increased the longer the
separated from his wife is consistent with the evidence of escalating abusive and threatening
towards managers and supervisors.
Recognizing that he needed assistance in dealing with this stress, the Grievant sought
and psychological treatment. It is not evident, however, that prior to hearing, the Grievant
the Employer with any documentation that the Grievant was receiving such medical and
treatment, or that the Grievant's outburst on January 8, 2002 was due to depression, or any
medical or psychological condition.
The medical "documentation" submitted by the Grievant at hearing, i.e.,
a handwritten note
from Anne Pyle, MSW, CICSW, indicates that the Grievant was initially evaluated on
January 7, 2002
for stress, anxiety and depression related to stress in the workplace. This "documentation"
of providing a medical diagnosis, or a professional opinion, that the Grievant, in fact, suffers
depression, or any other medical condition that would account for the Grievant's behavior on
8, 2002. Nor does this "documentation" demonstrate that the Grievant is now able to
stress in a manner that would allow the Grievant to resume his work for the Employer
engaging in abusive and threatening behavior towards the Employer's supervisors and
On November 6, 2001, the Grievant received a written warning for using foul
including the "f-word" and for being insubordinate. Approximately two months later, on
2002, the Grievant used foul language, including the "f-word," and was insubordinate.
the Grievant, without any reasonable provocation, made a threat to physically assault the
Given the nature of the Grievant's conduct on January 8, 2002; the fact that the prior
warning was not sufficient to dissuade the Grievant from using the "f-word" and being
the absence of any documentation from a medical doctor or mental health professional that
Grievant is now able to handle the "workplace stress" that he claims precipitated his conduct
January 8, 2002; and the evidence that the source of this "workplace stress",
i.e., the Grievant's
separation from his wife, is not likely to change, it would not be reasonable to conclude that
imposition of a discipline less severe than discharge would be sufficient to correct the
escalating conduct of abusive behavior towards the Employer's supervisors and managers and
insubordination. Notwithstanding the Union's argument to the contrary, the Employer has
to discharge the Grievant.
Based upon the above, and the record as a whole, the undersigned issues the
1. The Employer has just cause to discharge Victor Bartosch.
2. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 16th day of August, 2002.