BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION NO. 43
VULCAN CONSTRUCTION MATERIALS COMPANY,
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jill M. Hartley, 1555 N. RiverCenter Drive, Suite 202,
Milwaukee, Wisconsin 53212, appearing on behalf of the Union.
Mr. Sam L. Frazier, Senior Labor Counsel, Vulcan Materials
Company, 1200 Urban Center Drive, Birmingham, Alabama 35242, appearing on behalf of
Teamsters Local Union No. 43, hereinafter the Union, with the concurrence of
Construction Materials Company, LP, hereinafter the Company, requested the Wisconsin
Employment Relations Commission, hereinafter the WERC, to submit a randomly-selected
five WERC-employed arbitrators from which the parties would mutually select one person to
as Arbitrator to hear and decide the instant dispute involving Grievant Joe Kortendick,
the Grievant, and in accordance with the grievance and arbitration procedure contained
parties' collective bargaining agreement dated June 1, 2002, through May 31, 2005,
Agreement. The undersigned, Stephen G. Bohrer, was so selected by the parties. On March
2003, a hearing was held in Racine, Wisconsin. The hearing was transcribed. On April 14,
both of the parties' briefs were received and the record was closed.
The parties stipulated to the following issues:
1. Did the Company have just cause to terminate the
2. If not, what is the appropriate
ARTICLE 13. DISCHARGE OR SUSPENSION
The Employer shall not discharge or suspend any employee
without just cause, but in respect to
discharge or suspension shall give at least two (2) warning notice [sic] of the complaint
employee to the employee, in writing, and a copy of the same to the Union and job steward
. . .
. . .
The Company is a producer of construction aggregate and operates a rock quarry in
Wisconsin. The Union is the exclusive bargaining representative for the Company's truck
mechanics. The Grievant, Joe Kortendick, is a truck driver for the Company at the quarry
worked in that capacity from October 15, 2001, to the date of his termination on October 21,
except for two months in the winter, during which he was laid off.
Significant events leading up to the Grievant's termination are as follows: On July
the Company issued a written Employee Warning Notice to the Grievant for a safety
because the Grievant was "standing on platform of truck while box is still partially raised."
September 7, 2002, the Company issued a written Employee Warning Notice to the Grievant
carelessness because the Grievant "backed into water pipe in East quarry . . ." with his truck
damaged the water station. Neither of these two Employee Warning Notices were grieved.
October 16, 2002, the Grievant struck three out of five vertical steel support beams while
truck through a tunnel at the Company's quarry. On October 21, 2002, the Company issued
Employee Warning Notice to the Grievant for a safety violation and for carelessness for the
16 incident and terminated him later that day. At all relevant times, the Grievant was
85-ton dump truck used to transport rock aggregate.
The Union timely filed a grievance on behalf of the Grievant stating that the Grievant
wrongfully terminated. The grievance was processed through all of the steps of the
grievance procedure and was then advanced to arbitration.
Additional background information is set forth in the Positions of the Parties and in
POSITIONS OF THE PARTIES
The Company had just cause to terminate the Grievant. Therefore, the grievance
Article 13 only requires that two warning notices be issued prior to suspension or
not that the warning notices must be for the same or similar offense. If the latter
adopted, employees could potentially receive numerous warning notices for different offenses
immune from suspension or termination. Such an interpretation is both contrary to an
efficient workplace and it is illogical as to the parties' intent of the meaning of Article 13.
Alternatively, the two prior incidents on July 11, 2002, and September 7, 2002, are
of the Grievant's inattentiveness and disregard for safety. The Grievant stated at the hearing
"didn't have a clue" that his actions were unsafe with regard to the first incident on July 11,
This summarizes the Grievant's attitude or inattention regarding safety. With regard to the
incident on September 7, 2002, and although the damage was minor, it still reflected the
inattentiveness and was safety related. Further, another driver claimed by the Grievant to be
in the second incident was first mentioned by the Grievant at the hearing, but was never
even though such information may have obviated the need for a second warning notice at that
Even if Article 13 requires that the two prior warning notices be for the same or
offense before considering discharge, such was the case here. Both the July 11 and the
7 incidents had safety overtones and were safety related. In addition, and when comparing
incident with the most recent accident on October 16, 2002, the latter involved considerably
damage. Moreover, and when comparing all three incidents, they all reflect the Grievant's
inattentiveness to safety matters which is contrary to the Company's goal of stressing safety
The Company was fully justified in terminating the Grievant. The October 16
the second incident within a month and was the third safety-related incident within three
Company handbook states that carelessness resulting in property damage
warrants discipline. There is no question that these rules were communicated to all
including the Grievant. In addition, and after having received two prior warning notices, the
was aware that his conduct was unacceptable. It is noted that the Grievant does not contend
first two warning notices were improper.
An employer may terminate an employee for careless workmanship if that employee
previously warned without salutary effect, citing GATX Terminals Corp., 94 LA 21 (Baroni,
1990); Copperweld Bimetallics Group, 83 LA 1024 (Denson, 1984); and Thatcher &
Inc., 76 LA 1278 (Nutt, 1981). Further, an employer has a duty to protect the safety of its
employees. See, e.g., In re San Diego Trolley, Inc., 112 LA 323 (Prayzich, 1999) and In re
Gertenslager Co., 116 LA 531 (Curry, 2001).
In this case, the penalty of discharge is warranted. The Grievant was given two prior
warnings for carelessness and inattentiveness to safety, both of which occurred within two
and within three months of the final incident. This pattern of conduct, coupled with the
relatively short service with the Company, dictated that he be discharged.
Prior to making its decision to terminate, the Company considered mitigating
to determine if a lesser penalty should be imposed. With regard to due process, the decision
terminate was done within five days of the final incident and following a complete and fair
investigation, including an opportunity for the Grievant to be heard. With regard to fair
there was no evidence indicating that the Grievant was treated any differently than other
With regard to length of service, the Grievant's ten months of employment was considered
his work record. With regard to considering the Grievant's alleged cause of the final
Company concluded that the cause was due to inattentiveness and not to hitting a pothole.
supported by the record which shows that the pothole was 164 feet from the first beam which
struck, that the tire track leading up to impact was 44 inches from the wall, and that the tire
30 inches from the wall at impact. Company Exhibit 2, picture #7, shows the tire track
and heading directly into the wall. It is noted that an examination of the truck was done
incident and that it revealed no defects. This evidence supports the theory that the Grievant
no attempt to steer the truck back toward the center until after he had hit the beams.
In addition, the Grievant drove this same route numerous times during his
the Company, he had driven over 20 times through the tunnel that same day, he knew the
of the beams and the clearance required to safely pass through, and he knew the condition of
that morning. However, and because of the repetitive nature of driving back and forth, the
testified that he was "lax" at the time of the incident. This further supports the Company's
that the accident was due to inattentiveness and not due to hitting a pothole.
The Union has failed to offer evidence that discharge of the Grievant under these
circumstances was so severe that it would "shock the conscience" of the Arbitrator, citing In
Sandusky Cabinets, Inc., 112 LA 373 (Morgan, 1999).
As stated by Company witness Kollver, had the final accident been the only incident,
something less than discharge would have likely occurred. However, it is the Company's
responsibility to ensure employee safety and, when it is threatened, to take action and
threat. Under these circumstances, the Company had no choice but to discharge the
especially when previous attempts at remedial action did not improve the Grievant's attention
The Company violated Article 13 of the Agreement when it discharged the Grievant
just cause. Therefore, the grievance should be sustained and the Grievant should be
made whole for all lost wages and benefits.
The Company has failed to prove that the Grievant's actions on October 16, 2002,
unsafe or careless as alleged; rather, the Grievant simply misjudged his placement in the
veering off of the road due to hitting a pothole. Therefore, his termination was improper.
The condition of the road inside of the tunnel was out of the Grievant's control.
that condition becomes worse after numerous trips through the tunnel by the trucks.
Company occasionally sends a grader through during the day to improve the road's
Grievant had not seen one during the morning leading up to the accident. Moreover, there
lights inside the tunnel, other than the Grievant's truck's headlights, there were no lines on
within the tunnel to guide the Grievant, and bright sunlight at the end of the tunnel near the
beams makes things somewhat more difficult to see at that point. The Grievant was forced
with this situation, i.e., poor visibility and the road's conditions, as best and as safely as he
The Grievant did not see and was unable to avoid the pothole which forced him off of the
crown and into the beams.
The truck in question on that day was fully loaded, had a total weight of
300,000 pounds, and was traveling. After the Grievant hit the pothole, he appropriately and
eased the truck back toward the center, as opposed to an erratic movement, so as to avoid
over the truck. Despite Company witness Michael Kollver testimony refuting the Grievant's
that there was no danger with the truck tipping over from an erratic correction to the steering
Kollver admitted that Kollver doesn't drive a truck daily and, therefore, Kollver does not
level of driving experience as the Grievant. The Grievant's failure to properly correct his
was not the result of any carelessness or an unsafe act, but rather was the result of the
the tunnel and his desire to drive as safely as possible.
The distance between the pothole which caused the Grievant's truck to veer and the
point of impact does not prove that the Grievant was careless. Even if that distance was 164
as the Company contends, the Grievant tried to slowly correct his position so as to
avoid turning over the truck and damaging the vehicle or injuring himself. Simply
Grievant had a significant distance within which to correct his position does not necessarily
The fact that the Grievant may have misjudged his position in the tunnel does not
or imply that an unsafe or a careless act has occurred, citing Dietrich Industries, Inc., 83 LA
(Abrams, 1984). This incident was nothing more than an accident which the Grievant
tried to prevent. Such an act does not rise to the level of a dischargeable offense.
In addition, the termination of the Grievant under these circumstances is unduly
the "punishment does not fit the crime", citing Mississippi Valley Gas Co., 41 LA 745, at
(Hebert, 1963); and Barnstead-Thermolyne Corp., 107 LA 645, 653 (Pelofsky, 1996). At
most, the Grievant is guilty of being overly cautious when slowly guiding his truck back to
so as to avoid tipping over.
The Grievant's prior warnings are not serious enough or similar enough to warrant
Article 13 states that the employer "shall give at least two (2) warning notice [sic] of the
against such employee to the employee. . ." The phrase "the complaint" suggests that the
contemplated that the warning notices must be for the same offense or infraction. Although
similarities among the Grievant's three infractions, they were not the same, thus invalidating
under these circumstances. With regard to the July 10, 2002, incident, the Grievant
was unaware at
the time that his conduct was a safety violation and, therefore, that circumstance should not
toward the requisite two warning notices. At best, the Grievant only had one prior warning
same complaint: the September 7, 2002 warning.
Moreover, other arbitrators have considered similar language to the language at issue
case and have found that where the proper warning notice has not been given, that discipline
be reversed, citing National Car Rental System, Inc., 75 LA 518 (Zumas, 1980); Airco,
62 LA 1130 (Traynor, 1974). See also, Northern California Grocers Assn., 53 LA 88, 89
(Eaton, 1969), and Pacific Oil Co., 52 LA 173 (Moran, 1969).
In this case, the Grievant had only one prior warning for the same complaint: the
incident on September 7, 2002. The first incident on July 10, 2002, was neither similar nor
enough to count toward the required two warning notices necessary before the Company
discharge an employee. As such, the Grievant's discharge lacked just cause and he should
reinstated and made whole.
The stipulated issues before me are whether the Company had just cause to terminate
Grievant and, if not, what is the appropriate remedy.
I agree with the Union that discharge from employment is widely recognized as the
severe penalty that can be imposed in industrial relations and that the burden of proving an
employee's wrongdoing is generally on the employer. See, Elkouri and Elkouri, How
Works, 5th Edition, p. 905 (1997).
I also readopt my approach to the subject of "just cause" as was stated in my decision
School District of Grantsburg, WERC, MA-11735 (Bohrer, 10/02):
As is normally the case, the term "just cause" is not defined in
the parties' labor agreement.
While the term is undefined, a widely understood and applied analytical framework has been
developed over the years through the common law of labor arbitration. That analytical
consists of two basic elements: the first is whether the employer proved the employe's
and the second, assuming this showing of wrongdoing is made, is whether the employer
that the discipline which it imposed was justified under all of the relevant facts and
The relevant facts and circumstances which are usually considered are the notions of
discipline, due process protections, and disparate treatment.
Id., citing S & M Rotogravure Service, Inc., WERC, A-5720 (Jones, 6/99).
Thus, the initial point for determination is whether the Company has proven the
The Grievant's conduct on October 16, 2002.
On October 16, 2002, the Grievant had driven through the tunnel without a problem
of times that morning and prior to the accident. The Grievant estimates that over the course
of a little
more than five hours, he had driven that route fully loaded between 20 and 22 times.
math, the frequency of these trips occurred approximately, and on the average, once every
The condition of the tunnel's road that morning, and according to the Grievant, "was
damp as always." According to the Grievant, "the ruts to [the side of] where the road is
the water to run off it always tends to be soupy, muddy, soft." This softer rut
material on the sides
of the road was described by the Grievant to be like "mud" or "slop." Significantly, the
described the tunnel's route that morning as having "many potholes." Photographs of the
that morning inside of the tunnel and near the site of the collision show that these many
scattered throughout and were both on the road's center crown as well as the ruts or sides of
road. Although there was testimony that the road's condition does worsen over time, there
testimony that the road had suddenly gotten worse during the morning in question. Further,
Grievant testified that he did not
recall whether a grader had gone through the tunnel that morning to smooth out the
route as was
sometimes done by the Company. I understood this testimony to mean that the Grievant did
remember, not that he remembered it did not occur. It was undisputed that it is not safe to
fully loaded truck in these muddy ruts on the sides of the road because of the decreased
control and steer a heavy truck in this material and in particular near where the steel beams
I conclude that the Grievant was or should have been on notice of the tunnel's
day given the frequency of his trips and given the usual nature of the conditions that
Further, andunder these conditions, it was incumbent upon the
Grievant to take precautions when
traveling through the tunnel to stay in the center of the road in the event that he hit a pothole
would alter his position and so as to avoid coming closer than necessary to the muddy ruts
the walls next to the steel beams. The issue then becomes whether the Grievant took
precautions to maintain a position in the center of the tunnel.
The incident report and record state that the Grievant's truck was 17 feet wide and
maximum clearance width of the tunnel at the point of the beams is 35 feet. From this
it is establishedthat had the Grievant been in the middle of the tunnel
at the point where he passed
under the beams, he would have had 9 feet of clearance on each side of his truck.
The Grievant testified that upon hitting the fateful pothole, the impact caused his
"ease" toward the right. I find that the Grievant's descriptive, i.e., eased, to be especially
concluding that the Grievant was driving too close to the right side of the tunnel. Had he
driving anywhere near the center of the tunnel, it is unlikely that the truck would have
as much as nine feet. Further, Company witness Kollver's undisputed testimony was that
incident there had been "a lot worse [pot]holes than this and nobody's hit the wall prior." In
Kollver testified without dispute that the deepest pothole that day was measured to be no
1 ½ inches deep.
I agree with the Union that the condition of the tunnel was out of the Grievant's
However, the Grievant's placement of his truck while driving through the tunnel was within
Grievant's control. The Grievant knew or should have known given the many potholes and
damp and muddy conditions that it was imperative to stay well away from the sides of the
the ruts. He did not. I disagree with the Union that the Grievant's misjudgment of his
not equate to an unsafe or careless act. Under these circumstances, it does. Had the
misjudged his position, it is unlikely that hitting a pothole that morning would have caused
to ease into the beams. Therefore, and I find, the Grievant did not take adequate precautions
maintain a safe distance from the side walls of the tunnel and that he was driving in an
on October 16, 2002.
Having found that the Company has proven that the Grievant was driving in an
on October 16, 2002, I turn toward the Company's other allegations of prior misconduct in
September of 2002.
The Grievant's prior conduct in July and September,
A photograph of the actual infraction in July of 2002was
produced at the hearing and it
showed the Grievant conversing with another employee while standing directly underneath
most protruding lip of that box. Company witness Kollver described this infraction as "a big
because we don't want If we blow a hydraulic hose or something were to happen to
that truck, the
box comes down and hits that guy right about the top of the head and would drive his head
down to his shoulders . . ." This description of the seriousness of this infraction went
I note that the conduct in July was never grieved. Although the Grievant at the
claimed that he did not know at the time that standing in such a way was unsafe, his failure
such an argument at the time of the prior incident through the grievance procedure severely
Union's ability to now persuasively assert a lack of misconduct relative to that incident. In
Company has proven the Grievant's misconduct in July of 2002.
I agree with the Union that the Grievant's conduct in July of 2002 is not the same as
Grievant's conduct on October 16, 2002. However, I disagree that the two events are not
from a safety point of view. Both could have resulted in serious personal injury to the
understood Kollver's above descriptionrelative to the July incident to
mean that had the truck not
been properly working, the Grievant could have been seriously hurt and/or killed. With
regard to the
October 16th incident, it is self evident that had the Grievant hit all five of
the tunnel's support beams,
instead of only three, that there was a potential for the tunnel to collapse resulting
to the Grievant. Also, both infractions involved, in a broader sense, the disregard for the
safe use of
the Company's equipment.
The parties do not dispute that on September 7, 2002, the Grievant backed his truck
water pipe and damaged the water station. This discipline was also never grieved. At the
and for the first time, the Grievant stated that someone else had been directing him
had failed to tell him to stop in time. The Grievant did not come forward with this
information at the
time of the September incident because, and according to the Grievant, "I didn't feel it, you
justified the wrongdoing on my part. I tend to not like to point fingers at other people trying
justify things." In my opinion, the Grievant's failure to bring forth this information
following the discipline calls into serious question whether the Grievant can
convincinglybring it up
now, especially when there is no other evidence or witness to back this claim up. Thus, the
has proven the Grievant's misconduct in September of 2002.
Comparing the misconducton September 7, 2002, to the
misconducton October 16, 2002,
both involved the Grievant not properly using Company equipment, i.e., the Grievant's
Although the Grievant was written up for "carelessness" and not for "safety" in September of
I do not find it unreasonable to construe this infraction as an unsafe act or to conclude that
September incident is related to the October incident from asafety
Article 13 of the Agreement requires that the Company "shall give at least two (2)
notice [sic] of the complaint against such employee to the employee . . ." before it can
suspend the employee. The Union asserts that the phrase "the complaint" suggests that the
contemplated that the warning notices must be for the same offense or infraction. I agree
is one interpretation. However, an equally plausible interpretation is that the infractions
"the complaint" be related or similar. There was no evidence presented at the hearing on
parties' intended this language to mean other than the express language itself. I am not
that this language is unambiguous or that it requires that infractions underlying Warning
for the same offense or act. Therefore, I give this ambiguous language a construction that is
reasonable and equitable and I interpret "the complaint" to mean that the underlying
related or similar. Elkouri, supra, at 513-514.
Applying Article 13 to the case at hand, there is no dispute that the Grievant received
written warning notices and that the requisite copies were given. I have already found that
complaint" is interpreted to mean that the underlying facts leading to the collective warning
be related or similar. Further, I have found that the Company has proven the Grievant's
of misconduct and that they were all safety related. Therefore, the final issue before me
whether the discipline was justified.
Was the discipline of the Grievant justified?
As stated above, the issue of whether discipline was justified in
cases like theseis dependent
upon all relevant facts and circumstances, including notions of progressive discipline, due
protections and disparate treatment.
In this case, the Grievant was advised, in writing, that he was acting in an unsafe or
manner in July and September of 2002. He accepted that discipline and without a grievance
instances. As I have already found, the Grievant did not take adequate precautions to ensure
was driving in the middle of the tunnel the morning of October 16, 2002, and was
again found to have
acted in an unsafe manner. Thus, and at the time when he hit the pothole that eased his
truck into the
ruts and beams, he was on notice to correct his misconduct, but he failed to do so.
The evidence was that the Company did an investigation, including inspecting the
inspecting the truck for any defects and determining that there werenone. In addition, the Company
gave the Grievant an opportunity to tellhis side of the story. Further,
and before the Company
decided to terminate the Grievant, it considered the past work record of the Grievant, the
the Grievant's employment, and the underlying facts and seriousness of the third infraction
incident. The cost of the anticipated repairs to the tunnel, i.e., ten thousand dollars, supports
of the Company that this was a relatively serious accident. The Company also considered
relatively short period of time that had elapsed between the three instances
(a little over three months)
prior to deciding to terminate. Finally, there was no evidence of disparate treatment by the
toward other employees.
The combination of the above relative facts and circumstances leads me to find that
Company acted in a manner which was consistent with notions of progressive discipline, due
protections, and that there was no showing of any disparate treatment. Therefore, the
In summary, I find that the Company has proven the alleged misconduct by the
Company has also established that the discipline which it imposed was consistent with Article
the Agreement and that the discipline imposed was justified under all of the relevant facts
circumstances. Therefore, there was just cause for termination.
Based upon the foregoing and the record as a whole, it is the decision and Award of
undersigned Arbitrator that the Company had just cause to terminate the Grievant.
grievance is denied.
Dated at Eau Claire, Wisconsin, this 25th day of April, 2003.
Stephen G. Bohrer, Arbitrator