BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHEET METAL WORKERS INTERNATIONAL
LOCAL UNION NO. 565
GREENHECK FAN CORPORATION
OF SCHOFIELD, WISCONSIN
William Haus, Haus, Roman and Banks, L.L.P.,
Attorneys at Law, 148 East Wilson Street,
Madison, Wisconsin 53703-3423, appearing on behalf of Sheet Metal Workers International
Association, Local Union No. 565, which is referred to below as the Union.
Ronald J. Rutlin and Bryan Kleinmaier,
Ruder, Ware & Michler, L.L.S.C., Attorneys at Law, 500
Third Street, Suite 700, P.O. Box 8050, Wausau, Wisconsin 54402-8050, appearing on
Greenheck Fan Corporation of Schofield, Wisconsin, which is referred to below as the
as the Employer.
The Union and the Company are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The Union and the Company jointly requested that the Wisconsin
Relations Commission appoint Richard B. McLaughlin, a member of its staff, to act as
resolve a grievance filed on behalf of Lisa Zywicki, who is referred to below as the
on the matter was conducted on December 20, 2002, in Wausau, Wisconsin. In a letter filed
Commission on January 17, 2003, the Company submitted a document to be included in the
as a Company exhibit, and stated its willingness "to reopen the record to allow the Union to
examine Mr. Pieczynski . . . who prepared the enclosed
letter." In a letter filed with the Commission on January 21, 2003, the Union formally
submission of the letter, arguing that reopening the record would be pointless . . . (and)
the proffered letter into evidence would be unfair and prejudicial." I ruled on the
in a letter to the parties dated February 6, 2003, which states:
. . .
Prior to stating my conclusion, I think it is
necessary to narrow the focus of what is in issue.
Mr. Haus has stated a series of forceful arguments on the propriety of the post-hearing
I do not, however, think this line of argument provides a basis to determine the issue posed
case. Mr. Rutlin does not seek to sneak the exhibit in post-hearing to avoid the procedural
available while the hearing was in process. Rather, he offers the evidence and a willingness
the hearing. The issue is less a matter of propriety than of the wisdom of reopening the
Policy concerns surrounding whether post-hearing submissions can subvert the integrity of
process exist. However, as a general matter, the absence of discovery in grievance
recourse to formal considerations concerning what should be considered "newly discovered
something less than a definitive guide to the wisdom of reopening a hearing.
More specifically, nothing in the litigation
of the grievance indicates this matter demands a
rote legal analysis of a formal evidentiary issue. On balance, I think the record is better
accepting the letter into evidence as Employer Exhibit 2, than by rejecting it.
This conclusion demands some
elaboration. The record includes Union Exhibit 3, which is
a series of documents that can be read to establish treatment for a work-related condition. I
the Employer's submission of Employer Exhibit 2 is intended to rebut that reading. As I
noted, I do not believe it is a persuasive contractual means of resolving the grievance to
determine whether or not the underlying condition is work-related within the meaning of
Against this background, Union Exhibit 3
establishes at most that there may be a contractual
basis to treat the condition as if it was a work-related condition. I do not like to rule on the
a potential line of argument through an evidentiary ruling and thus admitted Union Exhibit 3
hearing. I suspected that the weight the exhibit can be expected to carry is dubious, but
found it more
desirable to entertain argument on its weight than on its admissibility. These considerations
Employer Exhibit 2. On balance, the
record is better served by symmetry on this
issue than by more formal considerations. I could
reject Employer Exhibit 2 and preserve it as an offer of proof. To do so, however, leaves
Exhibit 3 as an admitted exhibit, thus lending it the appearance of greater weight to the
The alternative is to reopen the record. I
do not feel this does the record any appreciable
good. I do not want to dictate what you may choose to enter by way of post-hearing
However, I do not believe that further hearing can enhance any argument that draws on
3 or Employer Exhibit 2. Arguments may be available, but I do not believe they are
central to a determination of this matter to justify the cost and delay inherent in further
I do not consider either exhibit to bear directly on a determinative issue means that the
cross-examination on Employer Exhibit 2 should not work any prejudice to the Union.
opinions the two exhibits embody will neither be enhanced nor undercut by further
exhibits do no more than underscore the testimony of the direct participants to the underlying
and its evaluation.
I take the January 10, 2003 letter into the record . . .
Janice L. Harter-Weisser prepared a transcript of the hearing, filing with the
Commission on January
21, 2003. The parties filed briefs and reply briefs by March 31, 2003.
The parties did not stipulate the issues for decision. I have determined the record
Did the Company violate the Collective Bargaining
when it discharged the
If so, what is the appropriate remedy?
Hours of Work/Overtime:
. . .
F. Effective February 15, 1998, the following attendance
policy will be applied to all
employees covered by this agreement:
6 incidents in a rolling 12-month period =
8 incidents in a rolling 12-month period =
10 incidents in a rolling 12-month period
= 3-day unpaid suspension
11 incidents in a rolling 12-month period
= termination of employment
An "incident" is defined as any occurrence
of scheduled work time that is missed, including
voluntary overtime. Bereavement leave (defined by this contract), civic duty, authorized
Family/Medical Leave (per the Family/Medical Leave Act of 1993), scheduled vacation,
(defined in this contract) or authorized company release shall not count against the
attendance record for disciplinary purposes. . . . Employees with recurring absenteeism
or employees with less than 12 months of employment having multiple incidents may be
more restrictive written attendance expectations than those outlined above. Being placed on
more restrictive attendance expectations does not restrict an employee's access to the
procedure outlined in this agreement.
Effective April 1, 2001,
employees receiving two (2) absenteeism reprimands at the same
level within a rolling twelve (12) month period will be placed on a rolling (18) month
instead of the rolling 12 month program. Once they have gone 12 months with no
reprimands they will return to a rolling 12 month program.
. . .
. . .
B. Management Prerogatives
. . . The Company shall have the right to
discipline or discharge employees for just cause . .
The Union filed the grievance on July 29, 2002 (references to dates are to 2002,
otherwise noted). The grievance form alleges "wrongful termination" and seeks the Grievant
made whole in every way." Mark Berg, the Company's Human Resources Manager, filed a
response to the grievance that states:
. . . (The Grievant) has a history of poor absenteeism and on
9/18/01 she was placed on more
restrictive attendance guidelines in order for her to maintain her employment at Greenheck.
of 2002 she was suspended for 3 days based on the restrictions and reminded that if she has
absence before 9/18/2002, she will be terminated. On 7/19/02 (The Grievant) told her
minutes after she came to work that she was sick. Later in the shift the supervisor took (the
Grievant) to the emergency room out of concern for her health and the doctor prescribed
so she could not return to work. Her absence was not work related nor did it qualify for
Therefore the absence does count against her. It is a no fault attendance policy and the
not become an excused absence because the supervisor took (the Grievant) to the hospital.
Grievant) violated the terms of her attendance restrictions and therefore her termination is
The Company hired the Grievant on April 27, 1998, and
discharged her on July 25.
As administered by the Company, an absence on consecutive days traceable to a
counts as a single incident. The Company issued the Grievant a verbal reprimand for
November 8, 1999; a written reprimand for absenteeism on December 1, 1999; and a verbal
reprimand for absenteeism on March 26, 2001. The March 26, 2001 reprimand form states:
(The Grievant) has had seven occurances of absenteeism in the
past 12 month period. This is
excessive and must be brought under control. Since (the Grievant) finished her probationary
in the last half of 1998, she has had a poor attendance record. This is her 3rd reprimand for
absenteeism in the past 1 1/2 years. If this poor absenteeism record continues, (the Grievant)
placed under more restrictive guidelines as allowed by our contract.
On September 19, 2001, the Company issued the Grievant a written reprimand for
reprimand form states:
(The Grievant) has had eight occurances of absenteeism in the
past twelve month period. In
March (the Grievant) was given a verbal reprimand for excessive absenteeism. At that time
stated that if this continues that she would be placed under more restrictive guidelines as
our contract. Since then (the Grievant) has had two more occurances. This is (the
reprimand for absenteeism. At this time we will be putting her under those new guidelines,
as follows. If (the Grievant) has one or more occurances in the next 30 working days, two
occurances in the next 6 months, or 3 or more occurances in the next year, further
will be taken, up to and including discharge. This will be effective on the date this
On March 12, the Company imposed a three-day suspension on
the Grievant for absences on
February 11 and 25. On July 25, the Grievant received a Reprimand Sheet that documented
discharge, and which states:
(The Grievant has been given several reprimands for absenteeism
in the past year. She was put
on special restriction on 09/19/01. Which explained to her that if she misses 1 day or more
in the next
30 working days, two or more in the next six months, or three or more in the next year
disciplinary actions will be taken up to and incuding discharge. Since then (the Grievant)
a suspension on 03/1/02 for violation of these restrictions. She now has another occurance
was not work related and resulted in two days away from work.
Scott Wisnewski was the Grievant's immediate supervisor for the
third shift, from 11:00 p.m. through
7:00 a.m., for the two years preceding her discharge.
The events of the Grievant's shift that started at 11:00 p.m. on Thursday, July 18,
the discharge notice. The core of those events is not disputed. It was a warm and humid
and sometime early in the shift, the Grievant had a conversation with Wisnewski in his
the conversation, she noted that she was not feeling well and asked if he could approve her
vacation for the balance of the shift. Wisnewski informed her he could not. She returned to
Sometime later, Eric Kaiser passed the Grievant's work station, and stopped to talk to
Kaiser is one of the Company's First Responders. A First Responder is an employee who
received sufficient training in first aid and emergency medical response to administer basic
within the Company's facilities. The Company posts a list, including pictures, of its First
so that employees are aware of who is available to provide assistance. First Responders do
diagnose medical problems, but can recommend to supervisors the provision of further care.
Kaiser asked the Grievant how she was feeling, stating that she looked pale. She
by describing in detail how she felt. Kaiser stated he would check in on her again. He
perhaps forty-five minutes later, and on learning that she did not feel better, informed her
that he did
not think it was safe for her to continue working. He took her to a supervisor's office that
was air-conditioned. Kaiser called Devlin Verley, a Union Steward, to the office. Verley
discussed the situation with Kaiser. Kaiser left the room and asked Verley to watch the
Verley thought she appeared pale, and asked her how she felt. She informed him that she
headache and felt somewhat disoriented. He felt her cheek and arm, and perceived her skin
clammy. Kaiser returned with an ice pack and some wet paper towels. They applied the ice
the back of her neck and the paper towels to her forehead.
Verley contacted Randy Kurth, another Union official, to determine if the Grievant
home without creating an incident under the Policy. Kurth advised Verley to see if
approve of her staying in the air conditioned office for a half-hour or so, and if that was not
to see if Wisnewski could do something else for her. Verley contacted Wisnewski, asking
come to the office, and tried to reach the Grievant's husband.
Wisnewski came to the office and spoke with Verley and Kaiser. Kaiser stated he
concerned that the Grievant might be suffering from heat exhaustion, and recommended that
taken from the facility for treatment. Wisnewski accepted the recommendation and took the
to the emergency room at Wausau Hospital, indicating to a nurse that the problem might be
related. The Grievant remained in the hospital for roughly three hours. Wisnewski waited
treatment to be completed. A nurse asked the Grievant about her symptoms, took her blood
pressure, and had her lie down in a dark room. A physician ultimately assessed her and
to administer fluids. The Grievant could not keep the fluids down. The physician prescribed
for her headache and Phenergan for her nausea. Because the Grievant thought she might be
the physician gave her a pregnancy test before administering the medication. Ultimately, the
returned to the emergency room, and Wisnewski drove her back to the facility. The
unable to reach her husband, and could not drive due to the medication. Wisnewski took her
Wisnewski documented the incident on a form entitled "Supervisor's Accident
Report." Under the heading "Treatment administered" the form sets out boxes to be
including one for "First Responder" and one for "Transported to medical facility by cab
by" that also included a blank line for completion. Wisnewski did not check the "First
box, but checked the latter box, adding his first name to the blank line. He completed a
for "Describe, in detail, what happened" thus: "Severe headache and dissiness. Possible
exhaustion????" He attached to this form a form generated by Wausau Hospital that had
completed by the treating physician, and given to Wisnewski on the Grievant's discharge
emergency room. The physician completed the form entry
"Diagnosis/Impression" thus: "Headache." The physician completed the form entry
instruction" thus: "No driving or dangerous work for 12 hours after Vicodan or phenergan."
physician completed the form entry "Unable to work until" thus: "7/19/02."
The Company employs two nurses, Jeanne Klemm and Patricia Heckel. Klemm
Wisnewski's report and the attached document shortly after the start of her shift at 6:00 a.m.
18. Klemm decided that Wisnewski's note regarding possible heat exhaustion could not be
with the emergency room form, and she decided to speak to the treating physician. She
emergency room, identified herself to the nurse who took the call, and indicated that she
learn if the illness was work related. The nurse left, came back, and then told Klemm she
with the treating physician, who said the illness was not work related since the Grievant had
with a headache prior to the start of her shift. Klemm then asked if the Grievant could be
to work her shift on July 19 and the nurse answered in the negative. Klemm phoned Mark
the Company's Operations Manager, and left a voice mail to the effect that the illness was
related. Sometime after this, the Grievant phoned Klemm and they discussed the situation.
On July 19, after receiving Klemm's message and discussing the matter with
Haase phoned Jon Krueger, the Company's Vice-President of Human Resources. Haase
Krueger that the Grievant had missed work and had reached the point where the Policy
termination. Haase informed Krueger that Berg was on vacation, and unavailable for
Krueger reviewed the Grievant's personnel file and discussed the situation with Haase and
officials. He also consulted Heckel. Klemm left a note for Heckel concerning the Grievant
Klemm left on vacation at the end of her shift on July 18. During the course of these
Krueger learned that Kurth had discussed the Grievant's situation with Berg, and believed
had excused her absence. Krueger deferred final determination of the matter until he could
The Grievant did not report to work on the shift that ran from the evening of July 18
the morning of July 19, which was her final scheduled shift for the week. She did report for
four scheduled shifts. Sometime during this period Berg called into the Company and he and
discussed the situation. Berg informed Krueger he had not authorized the Grievant's
At roughly 6:30 a.m. on July 25, Verley summoned the Grievant from her work
a meeting with Krueger, Haase and Wisnewski. Verley did not know what the meeting was
Krueger informed her that her absence on July 18 and 19 was not work related, and could
excused under the Policy, which thus demanded her termination. The Grievant took the
the illness was work related as demonstrated by Wisnewski's taking her to the Hospital, and
excused by Berg. Krueger responded that the final absences brought about the termination
because of her history of absenteeism.
The Grievant did not pay any of the costs for the emergency room treatment, believes
costs were paid by the Company's Worker's Compensation Insurer, and has documentation
payment was made for a work related condition. The Company and its Worker's
insurer believe the payment was made in error and the absence should be treated as a not
The background stated above is essentially undisputed, and the balance of the
best set forth as an overview of witness testimony.
Krueger stated that the Company does not permit an employee to use vacation to
incident under the Policy into an excused absence. The creation of more restrictive
under the Policy resulted from situations in which an employee with recurring absenteeism
would push the Policy to its limits in each rolling one year period. The Policy was
the labor agreement to specify what had before been administered as a matter of practice.
Wisnewski testified that the Grievant approached him sometime around 11:10 or
on July 17. She asked him if he could approve a vacation day for her because "she wasn't
well" (Transcript [Tr.] at 61). He responded that he was not allowed to do that. She
questioning whether she had "to fall down behind my line or by my line to get an excused
(Tr. at 71).
Sometime around 12:45 a.m. on July 18, Verley or Kaiser called him to the Plant 3
He found Verley, Kaiser and the Grievant in the room. The Grievant had ice packs on the
her neck. Kaiser told him that he thought the Grievant might have heat exhaustion, and
further attention. He took Kaiser's advice and transported the Grievant to the emergency
After treatment he took the Grievant back to the plant, and then home. They did not discuss
treatment in any depth, but the Grievant did ask him if the absence would count against her
Wisnewski told her that "it will have to be determined through the Nurses and HR (Tr. at
determination that it was not work related was not made until July 23, after discussions
Krueger, Haase and Heckle.
Wisnewski has placed at least two other employees on special attendance guidelines.
the first incident in which he had to convey an employee on those restrictions from the plant
Berg spoke with Kurth by phone on July 18. Kurth did not identify the subject of the
asked if an employee who left work on a work related illness would incur an incident under
Policy. He indicated there was some urgency to the question because the affected employee
make a decision regarding reporting for work that night. Berg responded that work related
did not count as an incident under the policy. He repeated this response during the
processing of the
After his phone conversation with Verley at 12:45 a.m. on July 18, Kurth left the
Around 3:00 p.m. on July 18, he received a phone call from the Grievant. She informed
him of the
events of that morning, and asked what she should do. He informed her to wait until he
Berg. He described the Grievant's situation to Berg and asked what he should tell her to do.
asked for time to contact the nurse, and indicated he would call back. By 4:30 p.m., Berg
called back, and Kurth phoned Berg. He informed Berg that he had to "get an answer
woman has to know whether she has to come in tonight or not" (Tr. at 115). He relayed this
because the Grievant had informed him that Klemm had told her if she did not report to
July 18 absence would count as an incident. Berg responded, "tell her it won't count against
if anybody says anything, tell him Mark Berg said so" (Tr. at 115). Kurth then phoned the
and told her to stay home.
Kurth noted that he informed Berg that the illness was work related.
The Grievant stated that a thermometer at her work station recorded about ninety
degrees on the evening of July 17. At roughly 11:45 p.m., she went to Wisnewski's office
parts for a blower that she was working on. As Wisnewski searched his computer, she sat
told him to take his time, since the office was air-conditioned. She then told him she had a
headache, and asked him if she could take a vacation day and go home without incurring an
under the Policy. He said he could not approve that use of vacation, noted he could not find
and told her to work on something else. She returned to work.
After Wisnewski drove her home, the Grievant went to sleep. When she arose, she
Klemm to advise her that the physician had told her not to work that evening. Klemm
that she had phoned the emergency room and determined the absence would not qualify as an
absence, and that if she could not report for work that evening, it would count as an
acknowledged that the doctor's orders made a return to work impossible for that evening
was cleared to do so by another physician. The Grievant responded that
her car was at the Company's facility, her husband was at work and she had no way to
get to a
doctor. She then phoned Kurth to seek his advice.
She testified that no one told her that the absence of July 18 would constitute an
added, "Had I known that, I would have never left the building" (Tr. at 132). The treating
did not tell her she had heat stroke or heat exhaustion, but did tell her that her symptoms
the illness was related to work. The Grievant acknowledged that she did not and could not
that the illness was work related. She noted that no one from the Company discussed her
or her view of the incident prior to the discharge meeting on July 25. No one from the
sought any documentation from her, or the release of any of her medical records.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Company's Brief
After an extensive review of the record, the Company contends that arbitral precedent
establishes the standards defining just cause, and that "absenteeism may satisfy the just cause
and form the basis for discipline." Similarly, arbitral precedent establishes that "no fault"
plans are consistent with the just cause standard "so long as the attendance policy
traditional just cause principles, such as notice, progressive discipline, equal treatment, and a
investigation which confirms that a violation occurred."
The record establishes that the Company met each of these elements. A review of
Grievant's work record establishes that she received numerous items of discipline concerning
attendance. On September 19, 2001, the Company issued a written reprimand that confirmed
Grievant's placement on "more restrictive guidelines." The Union did not grieve the
the imposition of more restrictive guidelines. In March of 2002, the Company suspended the
Grievant for three days for an absence that could have provoked discharge. The Company's
progressive discipline could not alter the Grievant's pattern of excessive absenteeism.
Even though the Company's use of progressive discipline establishes it afforded the
ample notice of the disciplinary consequences of her conduct, her testimony "proves that she
understood how the absenteeism provision was applied." This is true regarding the July 18
since the Grievant asked Wisnewski if leaving Greenheck to go to the hospital would count
incident under the Policy. Thus, no Union argument that the Grievant was an "unwitting
who was tricked by the deceptive employer" can be proven.
When informed of the July 18 incident, Krueger undertook an investigation "to
whether the absences were incidents under the absenteeism provision or whether they
one of the exceptions." Krueger reviewed the Grievant's personnel file, including her
more restrictive guidelines. This review established that "the critical determination . . .
whether the Grievant's absences qualified as exceptions under the absenteeism provision."
consulting Heckel, Krueger concluded that the July 18 absence "was not caused by a
injury or illness." Krueger thus determined discharge was the appropriate sanction, and he
determined to withhold implementing the discharge until he determined whether Berg had
the absence. When he determined Berg had not excused the absence, Krueger's investigation
The investigation was fair, establishing that the Grievant's headache preceded her
shift on July
18, and that the treating physician did not consider the absence work-related. The Grievant's
to leave work earlier in the shift confirms this, as does her failure to supply the Company
information establishing that her July 18 illness is work-related.
In light of the investigation's conclusion that the July 18 absence was not work
Company "had to determine what level of discipline was appropriate." Given the Grievant's
disciplinary history and the imposition of more restrictive guidelines, discharge was
absenteeism Policy rests on collective bargaining, and discharge is firmly rooted in the
provisions as well as arbitral precedent.
Since discharge "satisfies the elements of just cause," the grievance should be denied
The Union's Brief
The Union states the issues for decision thus:
Did the Employer have just cause to discharge the Grievant?
If not, what is the appropriate remedy?
After a review of the evidence, the Union focuses on the parties'
conflicting statements of the issues,
and asserts that the "Employer's proposed issue would effectively preclude the Arbitrator
applying the just cause standard." This "mechanistic application of the attendance policy"
be read to defeat the application of just cause. The language of the attendance Policy,
authorizing more restrictive expectations, demands the rejection of the Company's
The Union contends that the Company's investigation was "insufficient and failed to
valid factual basis to justify the discharge under the just cause standard." Whether or not a
is based on misconduct, arbitral precedent places the burden of proving just cause to
terminate on an
The Union does not dispute that the Grievant worked under more restrictive
that she reported to work on July 18 with a headache. The basic facts underlying the
also uncontested. She became ill during the course of her shift, working in high heat and
becoming pale, nauseous and light-headed. These are symptoms of heat exhaustion. The
investigation "reflects a very shallow, flawed, careless and incomplete inquiry and record."
Wisnewski's report neglects to mention treatment by a First Responder or specific symptoms.
was unaware of First Responder intervention and never contacted anyone with first hand
of the Grievant's symptoms. No Company employee sought medical records or contacted the
Grievant. Viewed as a whole, the Company "was focused on justifying its discharge
than focusing on making the right decision."
This incomplete investigation cannot establish just cause to discharge. The Company
have handled (the Grievant's) removal from work on July 17-18, 2002 as an 'authorized
release' under the contractual attendance policy" and in any event the absence "was certainly
constructive 'authorized company release' under the undisputed circumstances of the
Company trains employees regarding the symptoms and treatment of heat exhaustion, and the
Company expects employees to use First Responders. This establishes the significance of the
symptoms manifested by the Grievant on July 18. A First Responder treated the Grievant for
heat exhaustion. By transporting the Grievant to the hospital, Wisnewski effectively affirmed
authorized company release. Krueger's after-the-fact assertion that she assumed the risk of
her job by leaving the facility cannot be considered a reasonable assessment of the facts. It
the First Responder program and established Company training, and puts a disincentive on
administering the care that can prevent the worsening of heat exhaustion symptoms.
The contrast to Company authorization of absences due to car or weather related
is stark. The Grievant did no more on July 18 than was expected of her, and the Company
not be permitted to excuse a mechanical breakdown more readily than "a breakdown of the
employee's health while on the job."
Beyond this, the "preponderance of the evidence is that (the Grievant's) illness was
related.'" That the Grievant reported for work with a headache "cannot be treated as
evidence" that her leaving the facility "was not work related." Application of Worker's
Compensation precedent indicates that a "preexisting condition" can still result in
Whether or not such precedent is considered, it "is far more likely than
unlikely that (the Grievant) was suffering from the early stages of heat exhaustion and
that the quick
action taken by the First Responder averted a more serious situation." The Company should
permitted to "retroactively reconsider the decision of its supervisor on the recommendation of
The Grievant's personnel record as a whole cannot obscure that the July 18 incident
evaluated "on a stand alone basis." That incident "does not constitute an occurrence within
meaning of the Collective Bargaining Agreement . . . nor form the basis for a discharge with
The Company's Reply Brief
The Company notes that arbitrators have stated the standards defining just cause in
ways, but that the Union's sole citation overstates commonly accepted statements of the
burden of proof, including those I have applied in past cases. A review of the record
that the Company proved that the Grievant's non-work related illness of July 18 constitutes
incident under the Policy. When viewed against the Grievant's work history, this establishes
significant enough disciplinary interest to warrant discharge. Nor does the Union's
the Company's "mechanistic" application of the Policy hit the mark. Rather, the Company's
application of the Policy incorporates the traditional standards of just cause, and the
placement on more restrictive expectations was not grieved. Thus, the Union's view
the clear language in the Agreement."
The Union's view of the investigation misstates its purpose and its performance. The
of the investigation was to determine whether the July 18 incident was an incident under the
or one of its exceptions. The reliability of the investigation is established by the Union's
produce evidence contradicting any of its conclusions. An examination of the Union's
establishes that they are "all factually incorrect." Klemm did speak with the Grievant, and
delay to speak with Berg worked to the Grievant's advantage. The evidence establishes the
"did not make its final decision until it obtained all of the relevant facts."
Since a legitimate illness that causes an absence constitutes an incident under the
Union "must transform the Grievant's headache which caused her absence . . . into a
illness." The Union failed to do so. Wisnewski's testimony establishes that no employee
the grievant left work due to the heat or humidity of July 18. The Grievant's attempt to get
vacation day earlier in the shift belies the Union's contention. Nor can the Union's focus on
Responder obscure that the treating physician was the sole competent person to diagnose the
That Wisnewski drove the Grievant to a hospital falls short of qualifying the incident
"authorized company release." To credit the Union's argument creates the "ridiculous"
where an employee can report to work ill, then secure a First Responder's assistance to force
supervisor to transport an employee to a medical facility thus excusing an inexcusable
the Policy. Company determination of an "authorized company release" is an act of
should be overturned only if it is arbitrary or capricious.
A review of the evidence establishes that the Grievant's past conduct created her
of July 18. That conduct warranted her termination, and the grievance should be denied in
The Union's Reply Brief
To treat the Grievant's past disciplinary record as more than
background to the events of July
18 makes the discipline for the incident double jeopardy. The issue is whether the absence is
"incident" within the meaning of the Policy and whether discharge is the appropriate
Nor can the Company obscure that its investigation ignored the existence and the
of a First Responder's attention to the Grievant's symptoms. The Company's training
its creation of the First Responder program precludes minimizing the significance of the
symptoms unless a double standard is to govern employee health and safety issues concerning
exhaustion. Company assertions concerning the Grievant's documentation of her condition
obscure the flaws in its own investigation. Nor can those assertions obscure that sustaining
discharge puts the job of any employee who follows established procedures regarding heat
at risk. This conclusion "is contrary to common sense and to any reasonable application of
The Union does not dispute that absenteeism can constitute just cause for discharge or
existence of the Grievant's disciplinary history other than the events of July 18. The
discharge cannot, however, be persuasively rooted in those events. Its investigation ignored
Wisnewski's concurrence in the First Responder's recommendations. Krueger's after-the-fact
attempt to reopen the decision is not credible.
The treatment afforded the Grievant belies the assertion that she suffered from a
that has not relation to work. An examination of the precedent cited by the Company
authority governing this grievance, since the Union does not dispute that the attendance
properly administered, complies with the just cause standard. The evidence will not support
conclusion that it was properly administered. That the Grievant knew of the Policy's
short of establishing that she knew that she placed her job at risk by accepting a ride to the
The evidence establishes that Wisnewski did not so inform her and that had he done so she
have remained at the facility.
The Company's investigation was fatally flawed under relevant precedent. At best,
investigation shows that the Grievant reported to work with a headache, and sought to leave
early in her shift. This shows no more than that she sought to avoid the strictures of the
application, and says nothing about the symptoms of heat exhaustion that she experienced and
treated for. That heat exhaustion is work related is beyond dispute. The Company's
sought to document an already-made decision to discharge rather than to determine whether
discharge was appropriate. Against this background "the arbitrator should order that the
be reinstated with a full make-whole remedy."
I have adopted the Company's statement of the issues as that appropriate to the
Company's is broader to highlight that the labor agreement includes the Policy and a just
provision. There is no dispute that each must be given effect, but the Company's statement
issues makes this explicit.
The Company also notes the standard I apply to define just cause:
(W)hen the parties do not stipulate the standards defining just
cause, two elements define it.
First, the employer must establish conduct by the Grievant in which it has a disciplinary
Second, the employer must establish that the discipline imposed reasonably reflects its
does not state a definitive analysis to be imposed on contracting parties. It does state a
outline of the elements to be addressed, relying on the parties' arguments to flesh out that
The Union cites the Daugherty standards, but the parties have not
stipulated to their application. The
Company also persuasively argues that this is not a case that turns on burden of proof
The record is amply set forth and argued.
The parties' arguments pose, in my view, a single determinative point. The
persuasively contends that an incident under the Policy put the Grievant at the threshhold of
discharge. If the July 18 absence constitutes an incident under the Policy, then the Company
established each element of the cause analysis, since it has a contractual disciplinary interest
incident and since an incident puts the Grievant's position at risk.
The determinative point of contention is whether the July 18 absence should
"authorized company release." If it does not, it is an incident under the Policy. In my
Company's arguments are persuasive with a single exception that precludes labeling the July
absence as an incident. The Company's determination that the July 18 absence counts as an
is an act of discretion, not a Policy mandate. Its exercise of
discretion rests solely on one part of the Grievant's statements that is inconsistent with
statements viewed as a whole. There is no other factual support for it, thus leaving the act
discretion as an abuse of discretion.
That placing the Grievant on more restrictive expectations and the specific sanctions
violation of those expectations is an act of Company discretion is explicit in Krueger's
implicit in the testimony of all the Company witnesses. The essence of the Company's case
the treating physician's statement that the July 18 absence was not work related removed any
discretion from the matter and established the absence as an incident.
The difficulty with this position is that even if the statement accurately states a
diagnosis, it does not displace the Company's discretion. The form attached to Wisnewski's
states "headache" as the cause of the illness, but this states a symptom, not a diagnosis.
for nausea means something more than a headache was at issue. Whether the physician
the headache was a migraine or something else, the fact remains that there is no diagnosis of
More significantly, even if treated as a diagnosis, the physician's conclusion that the
was not work related turns solely on the Grievant's statement that she reported to work with
headache. This is a fact that the Grievant freely admitted to everyone who asked her,
Wisnewski. If this fact alone established an incident, it is impossible to understand why
told her to return to work when she first complained of it. Similarly, it is impossible to
why Wisnewski deferred to the First Responder's recommendation of further treatment, if the
headache, standing alone, constitutes an incident.
Plainly the headache did not stand alone, and the Grievant was charged with an
because she left work. She did not, however, leave work on her own volition, but on
recommendation, in which Wisnewski at least acquiesced. The Company contends that this
became an illness when the emergency room nurse reported to Klemm that the absence was
The difficulty with this assertion is that it ultimately states an act of the Company's
not the physician's. The physician informed Klemm no fact beyond that already known to
Company. The Grievant also testified thus:
Q. Did any doctor ever tell you that you had heat
Q. Did any Doctor ever tell you that
you had heat stroke?
Q. Did any Doctor ever tell you that
this was related to your work?
A. Yes (Tr. At 137).
This exchange highlights the fundamental factual ambiguity in this case. The
Grievant's account is
treated as credible to the point at which a medical diagnosis becomes an issue, then rejected.
presumes that the testimony of the emergency room nurse establishes reliable proof of a
diagnosis. It does not. It does no more than affirm that the physician accepted the
statement of the headache's inception as fact, as did everyone else who spoke to the
underscores the reliability afforded her testimony, but this accentuates the ambiguity in the
Why should the Grievant's credibility be rejected concerning the statement that the physician
indicated the symptoms were work related?
This underscores that the Company exercised discretion in crediting part of the
account, but discrediting others. The difficulty with the record is that there is no factual
support this act of discretion. Rather, the Company asserts that it had no discretion but to
matter as an incident. This line of argument permits Wisnewski to accept the First
recommendation of further attention and thus avoid possible complications if the First
recommendation was accurate, then summarily reject it the following Tuesday, when he and
reviewed the matter. However, Klemm offered them no facts to rebut the symptoms
Kaiser, Verley and freely available for Wisnewski's observation. The fact that the headache
the July 17 shift rests only on the Grievant's statements. How is the rest of her testimony
the symptoms to be rejected, without any opposing facts?
In sum, the fundamental ambiguity posed by the grievance is that the Grievant
work, then left work as recommended by a First Responder and as approved by a
assert the absence is not an "authorized company release" under the Policy, it is necessary to
that the treating physician entered a diagnosis that the matter was not work related. There is
evidence of a diagnosis absent the Grievant's testimony, which also indicates that the
informed her there was a tie to work, and that she suffered symptoms consistent with heat
Thus, the Company's conclusion that the absence constitutes an incident under the Policy
crediting part of the Grievant's account while discrediting other parts of it. There is,
reliable factual basis for doing this, and thus no factual basis for the Company's act of
the absence of a factual basis, the conclusion is an abuse of discretion, and this precludes
the absence an incident under the Policy. There is, then, no demonstrated Company
interest in the July 18 absence. As testimony establishes, the Grievant's absence on the shift
started on the evening of July 18 poses no issue beyond those addressed above.
This is a well-argued case, and it is necessary to tie the conclusions stated above
to the arguments. Whether or not the absence is compensable under Chapter 102, Stats.,
role in the resolution of the grievance. It is apparent that the Company and its insurer hold a
faith belief that the July 18 absence is not compensable under Worker's Compensation. The
holds a good faith belief to the contrary. The parties have not
mutually sought a contractual view of this statutory matter, and I can see no persuasive
offer one. The contract does not demand it, and it is unlikely the evidentiary record will
This grievance does not, in my view, pose any issue concerning when or how the Company
choose to bind itself to a physician's opinion of what is work related under Chapter 102,
Rather, the issue is when and how the Company chooses to exercise its discretion
an "authorized company release" under the Policy. The conclusions stated above must be
to these facts. The Company's assertion that its supervisors are not bound by the
of a First Responder is persuasive, and this decision should not be read to contradict this.
no less persuasive would be the Company's assertion that it is not bound to the opinion of
particular physician. If, for example, the Grievant had seen a personal physician the
no faith in, it presumably could exercise its discretion not to treat the diagnosis as binding on
either event, the act of discretion is the Company's, and in either event, the review of the
must turn on the supporting facts.
Here, the July 18 absence was unprecedented. It was not like prior illnesses, in
employee could not or would not report for work. As the Company points out, such
as incidents under the Policy, without regard to cause. In this case, the Grievant did report
and never chose to leave. Rather, she followed Kaiser's and Wisnewski's lead. If
believed Kaiser, Verley or the Grievant was being less than honest, he could have declined to
the recommendation or further investigated either on his own or through further discussions
treating physician. He deferred the matter to Klemm and to Human Resources. This is not
wrong, but highlights that an exercise of discretion was made, analogous to permitting an
to leave work early in the face of bad weather. The Policy permits such discretion.
The difficulty with the discretion exercised here is that the Company asserts there
to be exercised, due to a nurse's statement of the physician's views to Klemm. As noted
discretion is flawed as a matter of fact. No diagnosis was made, and accepting the assertion
by the Company as a diagnosis rests solely on the Grievant's testimony. That testimony is
but once credited undercuts the Company's assertion of the diagnosis. This fundamental
cannot be resolved on this record, for there are no facts to rebut the Grievant's testimony on
symptoms or on the physician's response to them. That difficulty cannot be held against the
and highlights that treating the absence as an incident under the Policy renders the reference
"authorized company release" meaningless. The Company chose not to excuse the absence,
absence of support undercuts the Company's discretion.
The Company argues that this view can encourage bogus use of First Responders.
of fraudulent claims is ever-present, but I do not believe the conclusions stated above will
asserted affect. A First Responder does not bind the Company, and a First Responder who
embellishes a recommendation puts their own position at risk. Beyond this, such a
will be subject to the review of a medical professional who is beyond the control of the First
Responder or the employee. The point of the conclusions stated above is that the Company
exercise its discretion. In this case, Klemm, Wisnewski or any other Company
have put the inquiry to the physician more pointedly. In my view, not even the physician
can bind the
Company unless the Company chooses to be so bound. This means the basis of the
opinion is vital.
The Company's decision to accept that part of the physician's diagnosis that it chose
bound by does not necessarily reflect a poor investigation. Rather, it reflects the Company's
of discretion. It chose to view the absence as an incident. This is a good faith act of
choice, however, deliberately ignored the factual basis for the "diagnosis." This act was
flawed, given that the diagnosis rests on the credibility of the person whose statements
point were neither sought nor credited. The Grievant's testimony thus assumes significance
not have if the basis of the diagnosis had been examined in detail.
Berg's and Kurth's recall of their conversation concerning the July 18 absence differ,
difference affords no reliable guidance to resolve the grievance. Berg's response assumed
was work related. Whether he specifically authorized the absence does not affect the
The parties have not argued the remedial issue. The Award thus states general make
relief, since the event precipitating the discharge cannot be counted as an incident. This
Grievant on enhanced restrictions, but expunges any reference to the absences of July 17 or
incidents under the Policy.
The Company did violate the Collective Bargaining Agreement when it discharged the
As the remedy appropriate to the Company's violation of Article IV, Section F and
12, Section B, the Company shall reinstate the Grievant and make her whole by
compensating her for
the difference between the amount she earned and the amount she would have earned but for
Company's treating her consecutive shifts starting on July 17 and July 18 as an incident.
Company shall also amend the Grievant's personnel file(s) to expunge
any reference to the July 25 discharge, and to reflect that her absences on her
starting on July 17 and 18 are authorized company release days.
To address any issue regarding the implementation of the remedy set forth in this
will retain jurisdiction over the grievance for not less than forty-five days from the date of
Dated at Madison, Wisconsin, this 17th day of June, 2003.
Richard B. McLaughlin, Arbitrator