BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHEET METAL WORKERS INTERNATIONAL UNION,
GREENHECK FAN CORPORATION
(Termination of P.B.)
Mr. William Haus, Attorney at Law, Haus, Resnick & Roman,
LLP, 148 East Wilson Street, Madison, Wisconsin 53703-3423, appeared on behalf of the
Mr. Ronald J. Rutlin, Attorney at Law, Ruder, Ware &
Michler, LLSC, 500 Third Street, Suite 700, P.O. Box 8050, Wausau, Wisconsin 54402-
8050, appeared on behalf of the Company.
On January 3, 2003, the Sheet Metal Workers International Union, Local 565 and the
Greenheck Fan Corporation filed a request with the Wisconsin Employment Relations
seeking to have William C. Houlihan, a member of the Commission's staff, hear and decide
grievance pending between the parties. A hearing was conducted on January 7, 2003 in
Wisconsin. A transcript of the proceedings was taken and distributed on January 23, 2003.
Post-hearing briefs were submitted and exchanged by May 1, 2003.
This dispute addresses the termination of employee P.B.
BACKGROUND AND FACTS
Greenheck Fan Corporation of Schofield, Wisconsin manufactures air movement
equipment including fans, dampers, louvers, kitchen ventilation hoods, energy recovery, and
air units. Its Schofield plant is approximately 1,000,000 square feet, and is divided into 11
facilities. Greenheck employs approximately 900 production and maintenance employees in
Schofield, who are represented by the Sheet Metal Workers International Union, Local 565.
Company and Union are signatories to a collective bargaining agreement, the relevant
which are set forth below.
The grievant was hired on June 13, 1988. In 1995, she was employed as a power
and worked in Plant 3 on the A-1 and A-2 manufacturing lines producing spun aluminum
Her supervisor at the time was Tim Weiss. From June 26, 1995 through November 24,
grievant was absent. She initially advised the company that she had back pains due to her
the A-2 manufacturing line. She subsequently informed Greenheck that she was suffering
During her absence, the grievant, who was on short-term disability leave, filed a
claim with the State of Wisconsin Department of Industry, Labor and Human Relations.
complaint was subsequently resolved, and the grievant returned to work in November of
1995 as a
power assembler in the SP department where she produced a sub-assembly of the ceiling and
fans produced in the SP area. Company witnesses testified that the grievant was placed in
department to accommodate her need for relatively light work in a structured, repetitive
The grievant worked in the power assembler position in the SP department without incident
March, 2001. At that time, she informed Mr. Weiss and Mr. Weiss' supervisor, Ken
Tokarz that she
was upset by the way a co-worker, C.M., was treating her. The company conducted an
concluded that there was no harassment of the grievant by Ms. M., but further concluded
was childish behavior occurring. Ms. M. was directed to behave professionally and stop
grievant names. Following the investigation, Mr. Weiss and a member of the union's
monitored the situation.
In the spring of 2001, Mr. Weiss was moved to a different supervisory position, and
longer the grievant's supervisor. On October 12, 2001, Weiss received a message on his
from the grievant, indicating that she could no longer work in the SP department and asking
to return her call. The grievant subsequently informed Mr. Weiss that Ms. M. was no
on her, but would only talk to her when it concerned work. According to Weiss, the
indicated that she should be moved to Facility 8 to do assembly work, or that she should be
On that same day, October 12, 2001, the grievant went on Family Medical Leave and
thereafter, short-term disability leave until December 20, 2001. During her absence, she
number of letters to the company. One of those letters requested a full investigation of the
harassment and hazing by Ms. M. In response to the letter, the company conducted an
Additionally, company officials spoke with union officials and it was agreed that the union
conduct a separate investigation. At the conclusion of those investigations the company and
met, and compared notes. On November 1, 2001, Mark Berg, the company's Human
Manager, sent the grievant the following letter, summarizing the investigations:
Over the past couple of weeks the company and the union
been conducting separate
investigations in the SP area to determine if there is any improper activities occurring
employees. Yesterday the union and the company met to compare findings from the
As it turns out, the findings of both parties are very similar. First, we felt that the
to were not as forthcoming as they would have been about activity in the area. However,
the information they were willing to give, we have been unable to establish any evidence of
harassment in the area. We did discover that there have been inappropriate comments made
employees and in general immature activity between employees. That in itself does not
harassment. Given our findings, the company and the union agreed that no changes or
personnel will be made at this time. We are planning on speaking to the entire department
immature behavior and inappropriate comments and we will increase supervision in this area.
When the doctor has released you to
to work, we are anticipating that you will work
in the SP area. If you are not comfortable in that area, we would suggest that you post into
different area or look at moving to a different shift.
I hope you are doing well at home and on
the road to recovery. We look forward to you
getting better and seeing you here at Greenheck. If you have any questions or require
information, please let me know.
Subsequently, Mr. Berg received a letter, dated November 6, 2001 from the
physician expressing the belief that working with Ms. M. is detrimental to the grievant's
requesting that the grievant be allowed to move to another location. The next day, Berg
the grievant who informed him that she would not return to the SP department and that the
she would work was Facility 8. Berg informed the grievant that moving to
Facility 8 was not an option: the work was too heavy; there were no openings in
Facility 8; Ms. M.'s
son was a supervisor in Facility 8; and Facility 8 was not under the control of the grievant's
supervisor. Berg offered to have the grievant moved to the Gravity Assembly department,
would allow her to work 6:30 a.m. to 2:30 p.m. in a department that was across the plant
SP department. Berg also indicated that the grievant's pay would be reduced after 90 days
she was requesting a transfer. However, the grievant refused to accept this alternative and
she would not return to work.
On November 7, Berg sent the grievant the following letter:
As we discussed over the phone, the company has received the
request from your doctor asking
us to move you to a different location. I also understand from Tim Hintz that you prefer to
6:30 a.m. 2:30 p.m. shift. Based on those requirements, we plan on moving you to
Department. This move puts you on the other side of the facility from SP's, yet keeps you
the same hours. We would keep you at your current wage for a period of 90 days. If you
posted out in that time frame, we would move you to the top wage for a Gravity grade 3.
this move, we feel we have accommodated the request of your doctor as well as your request
keeping your shift the same. You indicated on the phone that this was not an acceptable
and that you would not be coming to work on Monday. I am very concerned about your
employment with Greenheck based on this comment. Please be aware that in the contract it
that "No employee shall be absent without a reasonable excuse. If he is absent for three (3)
consecutive working days without a satisfactory excuse, he shall be deemed to have quit and
employment shall terminate." It is now your decision whether this action is taken or not. I
you choose to come to work on Monday morning at 6:30 in the Gravity area.
On November 9, the grievant sent Berg a letter which
that she suffered from anxiety
and panic disorder and alcoholism within the meaning of State and Federal disability law.
further indicated that should she be directed to work in the Gravity department, it would
effect on her disability. The grievant wrote that such a placement would cause her
C.W. from the following situations:
. . .
1. "Attending the same monthly
meetings with her present.
2. Contact with her inside some
departmental restrooms or going to and from.
3. Her stopping by in the same
department that I would work in to talk to co-workers
and passing by"
. . .
The grievant's letter expresses her view that such an assignment would disable her.
The grievant sent Mr. Berg a second letter dated November 12, which took issue
unwillingness to permit the grievant to transfer to Plant 8. A third letter, dated November
attempted to alleviate the company's concern relative to the grievant being supervised by
The grievant did not return to work on November 12. She did return on December
She returned to Facility 5, where, after five hours of work she suffered a panic attack and
subsequently went home. She informed her supervisor that the pace was too fast. Her
psychologist provided the following letter:
January 8, 2002
Greenheck Fan Company
P.O. Box 410
Schofield, WI 54476-0410
Dear Mr. Berg:
I am writing to give you an update on my
contact with P. Since my last letter to you I have
received the results of psychological testing which she completed and have had additional
with Ms. B. It is clear that her current level of anxiety precludes affective functioning at
I would recommend that she be placed on medical leave as of December 20, 2001. It is my
understanding that Dr. Reed of the Marshfield Clinic has placed her on Zoloft and that she
taking Zoloft on Friday, December 7, 2001. It is further my understanding that such
generally take six to eight weeks to have their full affect. Her attempt to return to work
weeks on the medication may very well have been premature.
The testing results show a profile that is typical of persons who
are characterized by anxiety and
depression. They tend to be tense, worried, with sleep problems, and being over-reactive to
threats. There is generally some constraint around showing anger. These persons usually
history of good achievement, sometimes done in a rather compulsive manner with a very
of responsibility. When the responsibilities accumulate to an overload these persons tend to
overwhelmed and collapse into an anxiety state. The profile is also typical of persons who
have a good prognosis in therapy. They tend to have good achievement histories, which
probability of improvement and return to previous functioning.
Ms. B. plans to continue therapy with me
and to continue cooperation with the medication. It
is hoped and anticipated that this will result in an improvement in her condition, enabling her
to work with a target date of Monday, January 21, 2002. At that point she will have been
medication for seven weeks, which puts her into that six to eight week window. We also
had an opportunity to discuss some of the underlying stresses.
Thank you for your consideration in this
matter. I would be glad to complete a proper form. If
that is necessary, please fax it to me at the number on this letterhead. If you require a
to work statement closer to January 21, 2002, please advise me of that. If there are
about the medication, that of course would need to be addressed to Dr. Reed.
Richard W. Hurlbut /s/
Richard W. Hurlbut, Ph.D.
On December 28, the grievant's boyfriend, also a Greenheck employee, called Berg
him if the grievant could be moved to a different area of Facility 5 upon her return to work.
after speaking with the grievant's boyfriend, Berg received a call from the grievant, who
Berg that she would not return to Facility 5 and that she would only return to Facility 8.
also informed Berg that if something happened to her that weekend, it would be on his
then hung up. Concerned over the grievant's safety, Berg called the company's Employee
Program and asked the representative to call the grievant or her boyfriend to make sure
happened. Thereafter, Berg received a call from the EAP representative who informed him
grievant's boyfriend indicated he would stay with her to make sure she was safe.
The grievant used medically approved leave through January 18, 2002. On
January 21, 2002,
the grievant returned to work at a different position in Facility 5. Her new position involved
performing a toggle-locking function. For the grievant's first day back, Greenheck
boyfriend to Facility 5 so that he could support her return.
While working at the toggle-lock function, the grievant contacted Mr. Weiss, who
was her supervisor, and alleged that other employees in Facility 5 were blackballing her.
to Weiss, the grievant claimed that other employees would not talk to her nor socialize with
Weiss investigated the grievant's allegations and concluded that the grievant had had
co-workers and had talked to them about how she was being paid so much more money than
were. Weiss concluded that there was no validity to the grievant's concern that she was
The grievant took a leave of absence beginning May 1 through June 7, 2002. She
vacation from June 10 through June 14, 2002. The grievant returned to work on Monday,
On Thursday, June 20, the grievant called Mr. Weiss and alleged that someone had
equipment. Thursday, June 20 was the last day the grievant came to work.
The grievant raised two concerns with Mr. Weiss. First, the grievant claimed that
toggle-locking machine on which she was working had a cracked piece of material. Weiss
claim and found that a piece of material was cracked, and directed a maintenance employee
to fix the
machine. The grievant also alleged that an employee or employees had deliberately left a
machine on so that material would feed out of the machine and create a danger to her.
On Monday, June 24 the Company and the Union agreed that the Union would
investigation into the grievant's safety allegations. The Union did so, and found no evidence
substantiate the grievant's claim and so informed the Company. On Tuesday, June 25,
called Mr. Berg and informed him that she had spoken with the Department of Labor and
regarding her safety concerns. She was referred to the local police department. The
the local police department and initiated an investigation. On Wednesday, June 26 the
a voice mail message for Mr. Weiss indicating ". . .I am not coming into work, cause I feel
Tampers is an unsafe place for me to work, and until the Company can prove that it's a safe
I am not coming into work. . ." Later in the day, Berg spoke with the grievant
and advised her that
she had been away from the company without a reasonable excuse for three days. The
requested a meeting with herself, her boyfriend and the Union and Berg. Berg replied that
have a conversation with her if she provided documentation as to why she had been away for
On Thursday, June 27, Berg had a conversation with the grievant. Berg's
notes, corroborated by his testimony, included the following:
. . .I told P. I would be willing to hold that meeting if she can
provide us documentation as to
why she has been off for three days, because at this point I consider her to be away from
without a reasonable excuse. I told P the typical way this is covered is by an excuse from a
P indicated she is not at work because she
feels it is unsafe and she has spoke to the Everest
Metro Police, because she feels that there are employees who are trying to hurt her by
equipment. I explained to P that Tom Hintze and Phil Darr her union reps have investigated
claims and were unable to substantiate them. Tim then called P and told her to come into
next day or bring in a doctor's note. P acknowledged the conversation took place but still
comfortable coming in. She also stated that Everest Metro is planning on coming in to
evaluation. I indicated that we would cooperate with them in any way if they do choose to
I said that I believe the operation is safe and that I don't have concerns about safety.
If Everest Metro does not find anything, P's only other way to
cover this absence is with a note
from the doctor and if she cannot provide one, she would be terminated. P was upset with
I went on to explain that she is choosing to stay away from work. The Union has indicated
that it is
safe and she could have made herself available for work to be reassigned, but she refused to
come in. P said that she would be willing to come in if I would guarantee she would not get
I told P we couldn't do that. Although I believe that her operation is safe, it is a
environment and people can have accidents. I also told her that others are doing that work
one has gotten hurt. P asked if we are just waiting for them to get hurt. . .
P called me back about fifteen minutes
later. She indicated that she had contacted her
doctor's office. She wanted me to call the doctor and explain why we are demanding a
as they don't believe it's a medical issue. I told P that I am not allowed to speak to her
I am not demanding a medical note, rather I am telling her how people normally provide
documentation to show a reasonable excuse why they are gone for three days. P indicated
do not feel the situation is a medical situation, and will not give her a note to cover her
The Everest Metropolitan Police Department conducted an investigation. In a letter
July 1, 2002, addressed to the grievant, Daniel Vergin, Chief of Police, indicated
". . .I personally viewed these machines in operation, and the
proximity of the role former to the
toggle-lock machine and I do not feel that even if someone feeds the extruded metal through
machine that it would create a hazard to you or anyone else in the area.
As far as the police are concerned, there is
no criminal act taking place at Greenheck, nor any
conduct that would warrant any further investigation."
On or about July 2, 2002, Berg determined to terminate the grievant for being absent
work for three consecutive days without a satisfactory excuse. Prior to calling the grievant,
telephoned Tim Hintze and informed Hintze that the company was going to go ahead and
the grievant. Berg thereafter called the grievant and informed her that she was being
Berg confirmed that termination by letter dated July 2, addressed to the grievant. That letter
Please consider this as written notification
of the termination of your employment from
Greenheck Fan Corporation effective June 20, 2002, your last day worked. Since that time
not come into work because of concerns you have regarding the safety of your equipment.
Union has conducted an investigation and the Company has investigated the situation as well.
Everest Metro Chief of Police has also conducted an investigation and has found no evidence
wrongdoing. During this time you have chosen not to make yourself available to work.
investigations have demonstrated that there is no basis to support a claim that the equipment
operate is unsafe or that any person is trying to cause harm to you. Based on these findings,
terminating your employment as you have been away from work for three or more
without a reasonable excuse.
Your health and dental benefits will
terminate on June 30, 2002; you will receive additional
information on continuing these benefits at a later date.
On July 3, the Union filed the following grievance:
This letter will serve as the Union's grievance in what I consider
the wrongful termination of P.B.
As you know, P was absent from work for more than three (3) days. However, P did make
efforts to arrange a meeting with the company to discuss the issues that caused her to be
work, to find a solution to the problem that would allow her to return.
I myself spoke to you on Monday and asked for an extension of
the three-day rule until we could
meet. You told me no. Given P's efforts and my own, I can only conclude that the
forth a course to prolong a meeting past the third day in an effort to justify terminating P.
In addition, the Company violated the collective bargaining
agreement when it terminated P
without Union representation. Work rule 27 on pages 55 and 56 clearly state that "All
actions taken by the Company shall be done in the presence of a shop committeeman or
Further, under Step 4, "Termination of Employment", "A member of the Union committee
asked to attend this meeting with the employee." No union representative was present.
The Union is seeking P's reinstatement with
P being made whole for any wages and benefits that
she has lost now and in the future by the Company's actions.
The Company believes the issue to be:
Did the Company violate the collective bargaining agreement
when it terminated the grievant
effective June 20, 2002, for violating Work Rule 20, found at pages 53 and 54 of the
bargaining agreement? If so, what is the appropriate remedy?
The Union regards the issues to be as follows:
1. When the Employer discharged the grievant on
July 2, 2002, for being absent for three
consecutive days in June, 2002, was such discharge for just cause? If not, what is the
2. If the discharge was with
just cause, was it proper for the Employer to retroactively set the
date for the discharge so as to precede the date on which the employee was informed of the
discharge? If not, what is the remedy?
3. Did the Employer violate the terms of the
collective bargaining agreement by the manner in
which it implemented the discharge?
This Award addresses each of those issues.
RELEVANT PROVISIONS OF THE COLLECTIVE
. . .
B. Management Prerogatives
Nothing in this Agreement is intended to
limit the Company's right to supervise and direct its
work force, including the right to establish new jobs, increase or decrease the number of
materials or equipment, schedule or assign work to be performed, hire, rehire, recall,
transfer or lay
off employees according to production needs, all subject to the express limitations imposed in
Agreement. The Company shall have the right to discipline or discharge employees for just
including any violation of this agreement, and any violation of the work rules, a copy of
being attached to this Agreement and approved by all parties, it being understood that the
shall not discriminate against any employee under this Section. If it is determined that any
has been discriminated against under this Section, said employee shall be offered
reinstatement to that
employee's job with full compensation for any lost earnings.
. . .
20. Employees must notify the Company, using the
designated call-in system, prior to the
start of their shift if they are unable to report to work or will be late. In the event of an
emergency, the employee must contact the Company as soon as possible and may designate a
member to place the call for them if they are unable to do so. Employees wishing to apply
Family/Medical Leave (under FMLA 1993) must designate their request 30 calendar days in
for planned absences or as soon as practical for unforeseen circumstances, no later than two
following their return to work. No employee shall be absent without a reasonable excuse. If
absent for three consecutive working days without a satisfactory excuse, he shall be deemed
quit and their employment shall terminate.
. . .
27. A violation of the terms of the
labor agreement or any of these work rules, except
those that call for immediate discharge, shall subject the violator to disciplinary action as
proper under these rules and under the following reprimand procedure:
. . .
. . .
Step 4. Termination of Employment.
A reprimand form will be completed,
indicating the reason for the reprimand and presented
to the employee by his supervisor and the Manager of Manufacturing or the Human
Resources Manager. A member of the Union Committee will be asked to attend this meeting
with the employee.
All Disciplinary actions taken by the
Company shall be done in the presence of a shop
committeeman or steward. The Union shall promptly be given a copy of any reprimand.
employee who works for four (4) months without committing another offense of the same
thereafter return to Step 1 of the reprimand procedure as to offenses of that nature. Any
action taken before August 15, 1975, shall not be subject to this procedure.
. . .
The Company regards this as a relatively simple matter, dictated by three critical
Work Rule 20 is in the Agreement as a result of good faith negotiations between the parties;
grievant had been put on notice that she would be terminated if she did not provide a
excuse for her absences; and 3) the grievant intentionally refused to report for work for three
consecutive working days and failed to provide a satisfactory excuse for her absences,
violating Work Rule 20. These facts are alleged to be indisputable. The Company argues
on the clear and unambiguous language in Work Rule 20, the grievant was deemed to have
resulting in the termination of her employment with the Company.
The Union regards the Company's approach as oversimplistic, and lacking just cause.
Union notes that the grievant had a long medical history that compromised her ability to
job, and that the employer was aware of her condition. The Union goes on to point out that
discharge letter, dated July 2, is the sole basis for discharge in this proceeding. The
that given the medical condition of the grievant, a mechanical application of the three-day
rule is inappropriate. The Union notes that the Company did not submit Dr. Hurlbut's letter
January 8 which characterized the grievant as ". . .overreactive to security threats. . . ."
contends that Hurlbut's letter essentially predicted the event that led to her termination. The
notes that all of the employer witnesses believed the grievant was sincere in her concerns.
The Union contends that the employer ignored this fact. Berg refused to call the
did he ask to see the grievant's medical file prior to discharge. He did not refer her to EAP,
as he had
previously done. In essence, the Company treated her as an employee without such medical
problems. The Union believes that the grievant's termination reflects Company opportunism.
Union asks "Why is the grievant culpable in a situation that is explained by her known
panic medical problems?" The Union goes on to suggest the answer, "Is it because the
suddenly decided that it preferred not to deal with these issues and because it saw what it
to be an opportunity to discharge Ms. B.?"
The Union concludes that the employer is overreacting. According to the Union, the
has a good prognosis. The Union argues "It is a violation of the just cause standard to use
Rule 20 as a pretext for imposing the ultimate penalty on a sick employee who is capable of
performing her job duties and whose condition is susceptible to treatment."
Dr. Hurlbut did predict an overreaction to security threats. The Union urges me to
that the grievant's absence, beginning June 20, was a product of her anxiety and depression.
there is no medical support for that conclusion in the record. This is a record which is
with absences supported by contemporaneous medical verification.
The Union's contention that the Company did not call the doctor, nor conduct an
review of the medical file, nor refer the grievant to the EAP is premised on the belief that
employer had an affirmative duty to do these things before it could invoke its rights under
20. This record shows that the employer went to great lengths to accommodate this
There were a number of job changes. The Company, and the Union, conducted a series of
investigations under circumstances where the employer was no doubt skeptical. There was a
lost time. The Company reassigned the grievant's boyfriend to facilitate one of her returns
The Company has done a number of things to accommodate the grievant in the past.
inference is that once the employer has embarked on such a course of support, it is not free
Also implicit in this argument is that it is the Company's responsibility to identify, and
"satisfactory" and/or "reasonable" excuse for analysis and review. All parties acknowledge
an objective and rational standard, no such excuse existed. The Company asked the grievant
produce an excuse that would take into consideration her anxiety and depression. No such
has ever been forthcoming. The inference from this, according to the Union, is that the
should assume that the absence is medically prompted. Nothing in the contract requires that.
This is a situation where the Company struggled to find work and worksites
the needs of the grievant. Her employment produced distractions, concerns among
formal and informal complaints and investigations, and a stream of unreasonable demands.
sincerity is not in question. The Company was presented with a situation where the
to come to work. She called OSHA, the Department of Labor, the police, her doctor and
No one came forward to explain or offer satisfaction for her absence. Whether the employer
motivated by opportunism or a form of institutional exasperation and frustration is irrelevant
whether or not it possessed the right to terminate the grievant. The real question presented is
whether or not the Company was in a position to end its accommodation to the grievant?
The Union claims that it is a violation of just cause to terminate a sick employee.
employee is sick. Whether or not this incident is a manifestation of her illness is something
doctor could have shed great light upon.
The Union contends that it is a violation of just cause to terminate an employee who
of performing her job. It is not obvious that the grievant is capable of performing her job.
certain work that she is unable to perform. There are certain work sites she is unable to be
missed a lot of work. At the time in question, she either would not or could not come to
The Union contends that it is a violation of just cause to terminate an employee who
condition which is susceptible to treatment. This employee was undergoing treatment. The
relies heavily on Dr. Hurlbut's January 8 opinion. That opinion was authored six months
incident giving rise to the discharge. It is that opinion letter that forms the basis of the
that the grievant's condition is susceptible to treatment. However what the letter said is "The
is also typical of persons who tend to have a good prognosis in therapy. They tend to have
achievement histories, which supports the probability of improvement and return to previous
functioning." This is a general profile. The specific prognosis is a hope and anticipation
condition will improve sufficiently to permit her to return to work.
That portion of the doctor's letter specific to the grievant indicated a treatment with
The letter predicts that the drug will take full effect on or about January 21, 2002. The
indicates that an initial return was premature based upon this schedule. Following this
grievant suffered a blackballing concern in April, a disability leave in May, and the sabotage
that led to her termination in June. It is not at all clear that the treatment was working.
The Union contends that the language of the contract does not support the Company's
that Rule 20 was violated. The Union argues that it is not unreasonable for an employee
for her personal safety to stay away from the source of her anxiety. The Union contends that
grievant is disabled due to her anxiety/panic disorder. If that is so, there should have been
The Union contends that there is no requirement that a "satisfactory excuse" be found
contemporaneous writing. Here, however, there was never a doctor's excuse specific to the
absence, proffered. The Union contends that the Employer should have relied upon Dr.
prior documentation. This is an invitation to the Employer to play doctor, to engage in a
of an employee's mental health. It requires the Employer to assess the effectiveness of the
and the relationship of the drug regimen to the workplace and other stimuli. I think this is
to the doctor.
The Company contends that the doctor refused to give the grievant a note excusing
30 absences. The Union contends that it is unclear from the record whether she ever actually
with her doctor about the circumstances surrounding the June absences. The grievant did not
The ambiguity as to the conversation with her doctor could have been clarified by her
information is exclusively within her knowledge. She is responsible for bringing it forward.
The Union contends that the Employer acted improperly in discharging the grievant
retroactively. The formal discharge decision was made on July 2. The Union contends the
cannot make that termination retroactive. The discharge letter does say ". . .We are
employment. . .", and I would normally agree that that cannot be accomplished retroactively.
However, the language of work Rule 20 provides "If he is absent for three consecutive
without a satisfactory excuse, he shall be deemed to have quit and their employment shall
The language is silent as to what specific date the quit and termination shall be considered
but the day following the third consecutive working day is a fair inference. The testimony in
record is that that date is how this matter has been handled in the past. To the extent that is
consistent with the language of the Agreement, it is a reasonable construction of those terms.
termination letter is a follow-up document and serves to confirm the result. Its timing
ongoing police investigation, which the grievant put into motion, to conclude. I do not
letter can serve to alter the collective bargaining agreement.
The Union claims the Company failed to follow Step 4 of the reprimand procedure.
reprimand form was not presented in the presence of a shop committeeman. I do not believe
fatal to the termination. The Union representative was called before the termination call was
and the subsequent letter sent. The fact is the employee was not at the plant; because she
come to work. Work Rule 27, the Reprimand Procedure, is applicable to those
circumstances ". .
.except those that call for immediate discharge." The consequence of a violation of Work
is discharge. Rule 20 appears applicable, and obviates the reprimand process contained in
The grievance is denied.
Dated at Madison, Wisconsin, this 15th day of August, 2003.
William C. Houlihan, Arbitrator