BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SPANCRETE INDUSTRIES, INC.
LOCAL 392, LABORERS' INTERNATIONAL UNION OF
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, by Attorney
Andrea Hoeschen, 1555 North Rivercenter Drive, Suite 202, P. O. Box 12993,
Milwaukee, WI 53212, on behalf of Local 392 and the Grievant.
Mr. Gary R. Noel, Employment Relations Manager,
N16W23415 Stoneridge Drive, Waukesha, WI 53188, on behalf of the Company.
Pursuant to the terms of the 1999-2004 labor agreement between Spancrete
(Company) and Local 392 Laborers' International Union of North America (Union), the
requested that the Wisconsin Employment Relations Commission designate a member of its
hear and resolve a dispute between them regarding whether the Company had just cause to
three-day suspension to Leadman Tony Niera for fighting with Welder Scott Howell on
7, 2002, at the Company's facility.
The Commission designated Sharon A. Gallagher, a member of its staff, as arbitrator
case. Hearing was held on March 4, 2003, at Waukesha, WI. No stenographic transcript of
proceedings was taken.
The parties presented oral arguments, documentary evidence and the testimony of
who were sworn on their oath or affirmation at the March 4th hearing. At
the end of the hearing, the
parties jointly agreed that the Arbitrator should issue a bench award in which
she analyzed the facts, evidence and arguments and decided the above-stated issues.
The parties also
agreed that the Arbitrator could issue a brief Summary Award stating her conclusions for the
Based upon all of the evidence and argument herein, I find that the Company did not
cause to issue a three-day suspension to Tony Niera as an "aggressor" in the fight between
Howell on November 7, 2002. The Company's Rules of Conduct, Rule 8,
require the Company to
determine which employee in a fight was the "aggressor" -- that is, the initiator of hostilities
which employee was the "defender" in the fight -- that is, the one attacked or who guards
or opposes the hostile action of another. Rule 8 then calls for the "aggressor" to receive a
suspension but states that the "defender" should receive a written warning for a first time
Here, the Company issued both Howell and Niera three-day suspensions immediately after
November 7th incident as it found both of them were aggressors in the
November 7th fight.
The Company reached this conclusion based upon its interviews of Howell and Niera
immediately after the fight. Company officials stated herein that they believed Niera was an
in the fight because he could have walked away from the fight but chose not to do so and
had attacked Howell from behind, knocking Howell's welding helmet down, after Howell
fight. The evidence in this case simply does not support a conclusion that Niera attacked
from behind. Rather, Howell stated herein that when his helmet fell down, he was facing
that the two of them then began to wrestle and that Howell fell over a stack of forms and
fall, Howell continued wrestling with Niera on top of him.
In addition, Rule 8 only requires the Company to decide who started the fight and
opposed the hostilities -- it does not require further analysis by the Company. To require the
attacked (Niera) to have greater self-control than his attacker (Howell) is unfair and not
by the albeit terse language of Rule 8.
Significantly, Scott Howell admitted herein that he initiated both the verbal
Niera, and Howell admitted initiating the physical altercation with Niera on November
bumping Niera in the chest. Howell also stated that he admitted he was the aggressor in all
to Company officials immediately after the November 7th fight.
Furthermore, no Company official
witnessed the entire altercation between Niera and Howell. Niera never made any statements
Company officials indicating that he was the aggressor on November 7th
and Niera consistently denied
initiating the fight with Howell to Company officials. In these circumstances, the Company
privileged to discipline Niera as an "aggressor" in the November 7th fight
under Work Rule 8, as Niera
was, in fact, the "defender."
Therefore, the Company did not have just cause to issue Niera a three-day
grievance is sustained. The Company may issue Niera a written warning for being the
the November 7th fight with Howell. The Company is also ordered to
expunge the three-day
suspension from Niera's personnel file and to make him whole (including back pay and all
for the three days he was suspended.
Dated at Oshkosh, Wisconsin, this 25th day of March, 2003.
Sharon A. Gallagher, Arbitrator