IN THE MATTER OF ARBITRATION by YZvGEtUS

VIEWS: 11 PAGES: 24

									IN THE MATTER OF ARBITRATION )
BETWEEN                      )
                                )
  ZF INDUSTRIES, INC. –         )   GRIEVANCE NO’S: 36519 and
  TUSCALOOSA AXLE               )          36539 (Amended)
                                )
    SYSTEMS PLANT
                                )
                                )   FMCS NO.: 05115-51157-3
         and                    )
                                )
                                )   ARBITRATOR FILE NO.:
INTERNATIONAL UNION,            )                  F041505
UNITED AUTOMOBILE,              )
AEROSPACE AND                   )   NLRB CASE NO.: 10-CA-35239
AGRICULTURAL IMPLEMENT          )
WORKERS OF AMERICA, UAW     AND )
IT’S LOCAL UNION NO: 2083       )




                      OPINION AND AWARD

               ARBIRATOR: JOSEPH J. MANTIONE

               AWARD DATE:     APRIL 15, 2005


               APPEARANCES FOR THE PARTIES

COMPANY: J. Trent Scofield, Attorney for ZF Industries;
Ron Davis, Plant Manager; Dusty McDaniel, former Human
Resources Manager; Michael Morris, Operations Manager;
Tony Gulliland, Production Superintendent; Jeff Peoples,
Production Superintendent; Mike Luker, Production
Supervisor; Dorthea Brown, Labor Relations Specialist;
Steven Hance, Human Resources Manager; Richard McGraw,
hourly subpoenaed witness

UNION: Alvin L. Smith, International Representative,



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Region 8 UAW; Bryant Jones, co-worker of Grievant;
Terry Banks, Group Leader; Marvin Walker, co-worker of
Grievant; Jim Sanders, First Shift Alternate Shop Steward;
Richard McGraw, Local Union Vice-President; Ray Curry,
International Representative UAW; Troy McGee, Local Grievance
Chair; Anthony Wiley, Grievant


                    PROCEDURAL HISTORY


ZF Industries, INC.-Tuscaloosa Axle Systems Plant is

hereinafter referred to as the “Company”. The International

Union, United Automobile, Aerospace and Agricultural

Implement Workers of America, UAW and its Local Union No.

2083 is hereinafter referred to as the “Union” representing

the Grievant, Anthony Wiley.



A grievance (No. 36519) regarding the Grievant’s discharge

(effective October 5, 2005) was submitted to the Company

on October 8, 2004. After an unfair labor practice charge

(ULP) with the National Labor Relations Board was filed,

the NLRB Regional Director, on November 18, 2004 issued a

“Decision to Defer” based on the NLRB investigation and in

accordance with the NLRB “Deferral Policy” as set forth in

Collyer Insulated Wire, 192 NLRB 837 (1971) and United

Technologies Corp., 268 NLRB 557 (1984). The NLRB Case

No. is 10-CA-35239 regarding the alleged violations of the NLRA

Section 8(a)(1) and (3).



                                2
Part of the NLRB directive includes a “Notice to

Arbitrator” form which requests that a copy of the

arbitration award be forwarded to the Regional Director,

National Labor Relations Board, 233 Peachtree Street, NE,

Suite 1000, Atlanta, GA 30303-1531 at the same time that

it is sent to the parties. The arbitrator will comply

with this request.



On December 4, 2004 the Grievant filed an amendment

(No. 36539) which includes both the termination as an

alleged violation of the CBA and as an alleged violation

of the NLRA.   The parties have agreed to authorize the

arbitrator to decide both matters.



Using the services of the Federal Mediation and

Conciliation Service, Joseph J. Mantione was appointed

as Arbitrator for FMCS #05115-51157-3. An arbitration

hearing was held at the Sheraton Four Points Hotel in

Tuscaloosa, Alabama on February 11, 2005 @0900 CST.



During the course of the hearing both parties were

afforded full opportunity for the presentation of

evidence, examination and cross-examination of witnesses,


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and oral argument. Witnesses were sequestered during the

hearing and duly sworn. The parties elected to file post-

hearing briefs. The Arbitrator received the last brief on

March 18, 2005 and closed the record.



                                        ISSUE



The issues to be determined in this case are:

1) was the Grievant discharged for just cause and if

not/if so what is the proper remedy and

2) did the Company violate the NLRA when it discharged

the Grievant.




PERTINENT PROVISIONS OF THE AGREEMENT and WORK RULES


ARTICLE XIV – ARBITRATION

       The Arbitrator has authority only to interpret the collective bargaining
       agreement and to apply it to the particular case presented as specified in
       the written grievance. The Arbitrator shall have no authority to add to,
       detract from or modify in any way the terms of this Agreement or any
       agreements made supplementary to this Agreement, nor to apply the ruling
       to situations other that the particular case presented. The Arbitrator
       shall have no authority to consider more than one grievance at a time
       unless specifically agreed to in writing by the parties.

14.1   The decision of the Arbitrator shall be final and binding upon the Company,
       the Union, its members and the Team Members involved and shall be rendered
       within (30) days or as soon thereafter as possible from the day of the
       hearing.

14.2   The Company’s monetary liability shall be limited to a period of fifteen
       (15) workdays preceding the filing of a written grievance.

14.3   The Company and the Union will jointly share expenses of the Arbitrator.

ARTICLE III – EQUAL EMPLOYMENT OPPORTUNITY/NON-DISCRIMINATION
3.1    The Company and the Union agree to comply with all State and Federal Laws




                                               4
       relating to equal employment opportunity and shall not discriminate against
       any Team Member on the basis of race, color, creed, sex, religion, age,
       national origin or disability.

3.2    Team Members are entitled to be members of the Union or to refrain from such
       membership, to be active on behalf of the Union or to refrain from such
       activity. Neither the Company nor the Union will interfere with the rights
       of the Team Member.


ARTICLE IV – MANAGEMENT RIGHTS

4.1    It is recognized and agreed by the Company and the Union that the Management
       of the Company is, and shall continue to be, vested solely in the Company,
       and the Company, in its unreviewable judgement, may increase or decrease
       operations, remove or install machinery or appliances, determine work
       processes and procedures, maintain discipline, and enact Company policies,
       reasonable plant rules and regulations which are not in conflict with this
       Agreement.

4.2    Without limiting the generality of the foregoing, as used herein, the
       Company’s rights include, but are not limited to, the following:

       (a) The right to manage the plant;
       (b) The right to establish, modify or change work schedules or standards.
           Changes in plant work rules will not require Union approval, however,
           the Union will be notified in advance of any changes and shall be
           discusses at the Joint Advisory Board meetings;
       (c) The right to direct the working force, including the right to hire,
           promote, transfer, suspend, discipline or discharge for just cause or
           reduce the work force;
       (i) The allocation and assignment of work to Team Members;

4.3    The Company is a division of a larger corporate entity, which employs
       uniform policies and procedures essential to efficient and competitive
       business practices. The Company may be required to adopt or implement
       policies and procedures necessary to maintain competitiveness. The
       Company may in the exercise of its management rights initiate any new
       policy or procedure, or modify or discontinue any existing or future
       policy procedure, unless the new, modified or discontinued policy or
       procedure is governed by specific language of this Agreement.

ARTICLE VII – GROUP LEADER RESPONSIBILITIES

7.3    Group Leader duties will include but are not limited to the following:
       (d)     Prepare rotation schedule;
       (e)     Anticipate and resolve departmental issues with the supervisor;

ARTICLE XIII – GRIEVANCES

13.1   Representation. It is understood and agreed that Area Stewards (one (1)
       per shift) and Grievance Committee Members (one(1) per shift) are to work
       at their assigned jobs at all times except when it is necessary to perform
       their duties as expressly stated in this Agreement. The Area Stewards are
       expected to make every effort in expediting the investigation and processing
       so as to avoid unnecessary loss of time from the job during working hours.

13.1.2 The Union Representative shall remain on their work assignment until
       advised by his supervisor of a Team Member’s request to confer with him and
       until suitable arrangements can be made to prevent interruption of production
       or in any event within a reasonable amount of time after the request. If
       necessary, the Union representative may meet with the Grievant during the
       line up meeting and/or during the shift overlap.

ARTICLE XVI – LEGAL RIGHTS

       Nothing in this Agreement shall be construed as waiving any rights or
       protection granted to the Company, the Union, or any Team Member
       under any applicable Federal or State Law. Any provision of this Agreement



                                               5
           found to be in conflict with any Federal or State Law will not abrogate
           any other provisions of this Agreement.

ARTICLE XXVII – NO LOCKOUT – NO STRIKE

27.2.1 No Stoppages, Strikes, Slowdowns or Suspensions of Work. The Union and its
       members, individually and collectively, agree that during the term of this
       Agreement and any extension thereof, there shall be no interruption,
       slowdown, suspension of work and strikes.

27.5.1 Discipline for Violations. In the event of any violation of this Article,
       the Company shall have the right to discharge or discipline as deemed
       necessary any member of the Union who authorizes, instigates, aids,
       condones, engages or participates therein, or agitates such action.

Serious Offenses (PLANT RULE VIOLATIONS):
These violations may result in termination on the first occurrence:

           *            Insubordination or other disrespectful conduct which challenges or
                        undermines the authority of a supervisor or manager.

Work Rule Violations – Steps of Progressive Discipline:

           ZF Industries, Inc. understands that under certain circumstances violations
           of Company work rules are correctable. Please be aware, however, that any
           violation could be serious enough to result in warning, suspension or
           discharge.

           Example of these violations are work performance, violation of work rules,
           actions offensive to other team members or that interfere with productivity.

           ZF Industries, Inc.- Tuscaloosa reserves the right to discipline, up to and
           including termination, for any inappropriate behavior including but not
           limited to the examples above.

           Depending on the circumstances, corrective action will be applied
           appropriately in the Company’s judgment. In addition, it is not necessary
           that each progressive step be followed depending upon the seriousness of
           the violation as determined by management. Any of all of the above steps of
           progressive discipline may be omitted based on the particular circumstance.


                                  STIPULATION LETTER
October 1,2004


BY HAND DELIVERY
Mr. Anthony Wiley
2201 48th Street East
Apt# 307
Tuscaloosa, AL 35405


Dear Mr. Wiley::


The events that ocurred on September 22, 2004 have resulted in you receiving
disciplinary action. The work rule states "Insubordination or other disrespectful conduct
which challenges or undermines the authority of a supervisor or manager" may result in
termination on the first occurrence. Your insubordinate conduct on September 22 clearly
violates this work rule.


Due to your past work history, the company has decided on the following discipline, in



                                                                         6
lieu of termination. You will be suspended without pay beginning October 4 through
October 29, 2004. In addition to the suspension, you must do the following:


             (1) Successfully complete an anger management course through a company-
                sponsored EPS program. The company agrees to carry all financial obligations for
                the course and has enclosed applicable course information. It is your
                responsibility to timely enroll and complete this anger management course. The
                deadline for completing the anger management course is October 29, 2004.
                Should there be any scheduling problems which prohibit your completion of the
                course on or before October 29th, you must promptly contact Human Resources.
                Your employment will not be reinstated until the anger management course is
                 successfully completed.


             (2) Sign the enclosed Last Chance Agreement, stating that any other occurrence of
                insubordination will result in termination of employment. This Last Chance
                Agreement will be active for one year. You must sign and return the Last
                Chance Agreement to Human Resources before 5:00 p.m. on October 4,2004. If
                 you do not timely sign and return the Last Chance Agreement, your employment
                 will be terminated.


Assuming that you fulfill the requirements set forth above, you may return to the facility
on Monday, November 1, 2004 on your assigned shift / department.


We value you as an employee and your work record shows that you are an asset to this
company. We hope that we can put this incident behind us and move forward in a
positive manner.


Sincerely,
Dusty McDaniel
Human Resources Manager


Enclosures
cc: Al Smith (By U.S. mail, w/encl.)


I ANTHONY WILEY agree to all the stipulations in this letter, dated October 1, 2004
regarding the incident that occurred on September 22, 2004. Furthermore, I am aware
that my failure to timely comply with this letter will result in termination.


______________________________                            ___________________
Anthony Wiley, Production Assembler                                   Date

______________________________                            ___________________
Doretha Brown, Labor Relations                                        Date


_______________________________                           ___________________
Jeff Peeples, Production Superintendent                               Date




                                                                           7
                                               LAST CHANCE AGREEMENT

                                            ZFI-T AND ANTHONY WILEY


Employee Name__________________________________________________Date___________________________


This agreement entered into by the above referenced parties signifies a last chance opportunity to be reinstated to your former position of
employment with ZFI-T, under the following conditions:



1. Seniority will be reinstated

2. No back pay for disciplinary layoff will be paid. Mr. Wiley may use accrued vacation or personal time during the layoff period.

3. All statutory and contractual leave provisions will still be applicable.


4. Last chance agreement will be effective for one year from date of acceptance, not later than October 4, 2004.




The applicable company work rule prohibits: "Insubordination or other disrespectful conduct which challenges or undermines the authority of a

supervisor or manager. Violation of this work rule may result in termination on the first occurrence. The company has determined that Mr.

Wiley's conduct of September 22, 2004 clearly violated this work rule.


The company has chosen: (1) disciplinary layoff, (2) satisfactory completion of an anger management course, and (3) execution of this Last

Chance Agreement, in lieu of terminating Mr. Wiley's employment.




The below signed parties accept and agree this last chance opportunity is provided only as a last resort to correct Mr. Wiley's clear violation of the

above work rule prohibiting insubordination. The parties further accept and agree that any future violation of this work rule, during the Last

Chance Agreement period, will result in termination of Mr. Wiley's employment.



______________________________________                                _______________________________________
Doretha Brown                      Date                               Employee                          Date




                                                                              8
                                  TERMINATION LETTER
October 5, 2004


Mr. Anthony Wiley
2201 48th Street East
Apt# 307
Tuscaloosa, AL 35405


Dear Mr. Wiley:


On October 1, 2004, Doretha Brown met with you to present you with the discipline
decision which followed the incident of September 22. This discipline included: (1) a
four-week suspension; (2) enrollment in an anger management course; and (3) execution
of a last chance agreement. At that meeting, you refused to accept any of the above-
described discipline.


You were allowed until October 4 to reconsider and return the executed last chance
agreement. You did not do so. Based on your refusal to accept the discipline offered, the
company has no alternative other than to terminate your employment, effective October
5, 2004.


Also, Barbara Nolen will be contacting you regarding COBRA insurance and any other
continuation of benefits.


If you have any questions regarding this letter please contact me.


Sincerely,


Dusty McDaniel .
Human Resources




                                                         BACKGROUND

ZF Industries, Inc is located at 1200 Commerce Drive,

Tuscaloosa, Alabama. It is engaged in the manufacturer

of axels for the Mercedes Benz Plant in Vance, Alabama.

UAW Local 2083 is the exclusive Bargaining Agent for the

unit at this location of which the bargaining unit consists

of approximately three hundred (300) employees. The



                                                                        9
Grievant was formerly employed as a first-shift Assembler

on the Rear Axel (30B) Line for six years and also served

as duly elected President of UAW Local 2083. He was serving

his second consecutive term as President when discharged.




The Grievant was discharged by letter from Dusty McDaniel,

Human Resources Manager dated October 5, 2004 ostensibly

for refusal to accept insubordination discipline offered

as part of a Last Chance Agreement (LCA). The discipline

included:(1) a four-week suspension; (2) enrollment in an

anger management course; and (3) execution of a Last Chance

Agreement.




What is largely undisputed is that on September 22, 2004 the

Grievant had an approved absence from the plant to attend a

doctor’s appointment scheduled for 11:00AM. Supervision was

aware of this and he was told that scheduling arrangements would

be made to cover his line work during his absence.



During the Grievant’s absence a situation occurred on the

30B Line where the Grievant worked. Briefly, as it has

indirect bearing on the Grievant’s discharge, several line

workers objected to supervision regarding working short-


                               10
handed although this seems to have been routine operating

practice. As a Supervisor, Mike Luker approached a line worker

to inquire as to why the line was not running, a heated argument

ignited and the worker was instructed to come with the

supervisor to the supervisor’s office. The entire line, who had

been listening to the exchange, then thought that they were all

to come to this “meeting”. The supervisor denied that all were

invited.   Production

Superintendent, Tony Gilliland at the scene actually asked the

line workers if this was a “work stoppage” and was told it was

not. The line workers were then told that their concerns would

be relayed to upper management and that they were to return to

work immediately. The line workers returned to work with no

further incident. In point of fact, the subsequent handling of

the line issue between the Plant Manager and the International

Labor representative was handled satisfactorily by the parties.



The Operations Manager, Michael Morris shortly thereafter

met with the line workers and informed them that they had

just participated in an unauthorized line stoppage in

violation of the CBA and that is was a terminable offense.

There was further investigation of these events by Labor

Relations Specialist, Doretha Brown.




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It was decided by management that because of the

seriousness of the CBA violation, written disciplinary

warnings were to be given individually to the line

workers whom it was believed walked off the job without

permission. Management allowed Alternate Steward, Jim

Sanders and Grievance Chair, Troy McGee to attend these

individual discipline meetings that day as Union witnesses. The

meetings were to continue throughout the rest of the

workday until the last discipline letter was presented.



Testimony confirms that the Grievant returned from his

Doctor’s appointment at approximately 12:30PM and began

his regular line work. Other employees then informed him

of the occurrences during his absence. He left his station

without supervisor permission to find Union Vice President,

Richard McGraw. The Grievant then convinced McGraw to

accompany him to the supervisor’s office where the

disciplinary letters were being presented.



Testimony further confirms that the Grievant intruded into

an individual disciplinary meeting where there was already

authorized Union representation and kept repeating loudly

that he felt that the line incident and resulting discipline had

everything to do with himself. He was informed by Production


                               12
Superintendent, Jeff Peoples that this was about situations that

occurred when he was not even there and had nothing to do with

him. The Grievant seemed to refute this explanation, continuing

his tirade. He was finally warned that if he did not calm down

he would be sent home. Mr. McGraw then accompanied/escorted the

Grievant out of the office.



Production Superintendent, Tony Gilliland heard the

Grievant from the next office as the Grievant left and

subsequently called Operations Manager, Michael Morris

to come to the scene. The Grievant then confronted Mr.

Morris and began again stating loudly that he felt the

entire situation was about himself. Mr. Morris requested

that the Grievant come to his own office away from the

office where the disciplinary meetings were being held. The

Grievant refused. At that point Mr. Morris began asking him to

leave the plant and he repeatedly refused as well.



Human Resources Manager, Dusty McDaniel was called to

assist with the Grievant and he also instructed the

Grievant to leave the plant. Again, the Grievant refused.

When it became apparent that the police were about to be

called, the Grievant finally left the office with Mr.

McDaniel and eventually exited the plant.


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Plant Manager, Ron Davis immediately directed that a thorough

investigation be conducted. This was to include personal

interviews and written statements. The Grievant was suspended,

with pay, during the investigation. UAW

International Representative, Al Smith was informed of

the discipline penalty before it was presented to the

Grievant. The Grievant was to be disciplined for

insubordination.



Labor Relations Specialist, Doretha Brown and Mr. Peeples

presented the formal discipline papers to the Grievant on

October 1, 2004 at an off-site meeting with Grievance Chairman,

Troy McGee present. The Grievant declined to sign and accept the

discipline reiterating that he had done nothing wrong and gave

verbal notice that he would be filing a NLRB charge and taking

the case to arbitration. After being afforded until October 5,

2004 to accept the discipline, the Grievant was terminated.




                      COMPANY POSITION



The Company contends by it’s testimony and brief that there was

just cause to offer discipline at the one-step-short-of


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termination stage to the Grievant for insubordination and then

to ultimately discharge him when he refused to accept the entire

three part discipline package (LCA). While acknowledging that

the Grievant was the Local Union President, the Company position

was that during the charged insubordination incident he was not

acting in a representative mode and that he had no authority to

attend and interrupt the line workers’ disciplinary meetings and

disrupt the proceedings. The line workers were already

represented by two authorized Union representatives in these

meetings. He had no standing to disobey the repeated and direct

orders of three members of management to leave the premises. He

had no standing to refuse to come to the Operations Manager’s

office when requested.



This management is charged by law and the CBA with running a

safe and productive facility. It clearly felt that it had

probable cause to eject the Grievant from the plant for his

behavior and for management’s perception of the Grievant’s

aggressive and intimidating manner.



The Company makes a significant point of the fact that, despite

the Grievant’s insubordinate conduct, he was not immediately

discharged. Only after the Grievant rejected the Company

fashioned discipline that it felt would enable the Grievant to


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secure the tools he needed to control his emotions was he

discharged. The Company felt it was out of options at the

rejection point and had no alternative but to discharge the

Grievant. From the Company brief, ”It was never the Company’s

intent to terminate Mr. Wiley for his insubordinate behavior.

The discharge was a direct result of Mr. Wiley’s decision to

reject the lesser discipline offered to him”, and exercise his

option to instead grieve and charge his termination. This is a

further demonstration of the Grievant’s “unwillingness to follow

management’s direction”. The Grievance should be denied.



On the NLRA unfair labor practice charge, the company position

is that the Grievant’s discharge had nothing to do with his

Union or ULP charge-filing activities. There is no sustainable

proof of union animus that can be drawn from any testimony or

evidence. There is no proof brought forward at the hearing that

the Grievant’s conduct was protected under the NLRA.



The Company offers the testimony from Mr. Davis that the

Grievant’s Union position helped persuade him to craft a lesser

form of discipline than discharge to offer the Grievant in the

best interests of labor-management relations. Having working

with the Grievant on plant issues he felt that the unacceptable

behavior exhibited was correctable with professional assistance.


                               16
In any event, being an elected Union officer does not allow the

officer to behave in the manner the Grievant did and stay under

the protection of the NLRA. The alleged behavior was not

exhibited in a Union-Management meeting, a negotiating session,

a grievance meeting, or any other forum that the Act would have

covered. The key behavior that brought about this problem was

the Grievant’s repeated refusal to comply with a management

request to leave the plant. Had the Grievant followed the first

request, insubordination would not have been an issue. The ULP

charge has no merit and should be dismissed.



                    UNION POSITION



The Union asserts by its testimony and brief containing citings

therein that the Grievant was not discharged for just cause. The

Grievant’s Union activity was the primary reason for the

discharge and not because of insubordination as the Company

claims. The Grievant was acting in the capacity of an elected

bargaining agent for the employees and did nothing that would

warrant a discharge. The Union also contends that the Company

wanted to be rid of the Grievant for his Union activism.



It was argued that the Company offered the LCA because they knew


                               17
that the Grievant would not accept this settlement which

contained, in the Union’s view, some very harsh requirements.

Even if he did accept, he could be terminated for the most minor

of infractions. The Grievant felt he had done nothing wrong and

did not want to admit guilt. He decided to put his fate in the

hands of the Arbitration procedure and the NLRB.



By Management’s admission, the Grievant as Union President has

been included in Grievance and Joint Action Board meetings for

years. It could not be proven that the Grievant was a violent

threat so the effort was made to present him as insubordinate.

The Grievant was also trying to assist the Alternate Steward at

the meeting in question further legitimizing his presence.

Management is again trying to dictate the duties of elected

Union officials.



The Grievant did not engage is any illicit activity such as

instructing employees to disobey management orders or leading

the employees in an illegal work stoppage. The Grievance should

be sustained and the ULP charge upheld.



                         DISCUSSION



The Company and Union both cited numerous arbitration and NLRB


                               18
cases that buttressed their positions.   The arbitrator    took the

time to research and review each and every citing and argument.



The Company argument that this discharge should be considered a

voluntary resignation is found to be flawed and not supported by

testimony and documents. Specifically, the Grievant’s

termination letter of October 5, 2004 refutes this theory.

Further testimony and evidence indicate that at the time of the

discipline rejection, the Grievant gave notice that he was going

to seek relief from the NLRB and from arbitration. This does not

qualify as engaging in unwarranted “self-help”.



The well-settled standard of “work now, grieve later” applies to

the Grievant’s initial refusals to come to the Operations

Manager’s office and leave the plant. It will not additionally

apply in this case to his election to seek third party review.



The evidence and testimony by all witnesses in this case

incontrovertibly establishes that the Grievant refused in a very

forceful manner the several direct management requests to leave

the supervisor’s office, to accompany the Operations Manager to

his own office, and repeatedly to leave the plant. While this

illustrates some poor basic labor relations working

relationships by both parties, this nonetheless constitutes


                               19
insubordination and falls under the applicable Company rule. In

this case, at the first “leave the plant” request, the well

recognized option would have been to “leave now, grieve later”.

The burden of proof would be squarely on management’s shoulders

and accountability races up the chain of command.



One unfortunate issue that the Grievant will have to deal with

is that many otherwise rational people may have difficulty

distinguishing between passionate and potentially violent

behavior given events and the publicity accorded such in recent

history. The Grievant had a less than professional effect on an

already highly charged situation. When he could have been an

immediate source of reason, logic, and leadership, he instead

chose to become a lightning rod of intimidation ultimately

leading to his humiliating expulsion from the plant under a

police call threat. If the Operations Manager perceived that a

physical threat was imminent based on voice volume, close

physical proximity and aggressive body language, then that is

what he perceived and that is what he must have acted on. These

gentlemen knew each other too well or not well enough.



It is further found that there was not malicious and violent

intent on the part of the Grievant. Even in his excited state,

the Grievant was able to state that he was fully aware that he


                               20
could not curse or threaten or strike

anyone. He was conscious (if not totally knowledgeable of) that

there were generally accepted labor relations conduct

limitations and thresholds that a Union leader could not exceed.



Therefore, it is found that there was just cause for the initial

discipline of the Grievant. While, severe, it is within the

Company’s purview to fashion discipline that included the thirty

(30) day suspension. However, for the company-sponsored EPS

anger management course, the Grievant must first be referred to

the Health Care Professional for assessment and evaluation to

determine the length of the counseling if indeed any is

necessary and if so, the chances for success. Second hand

description of the Grievant’s needs by the HR Manager to the

Health Care Provider is not a professional means of assessment.



Further, I find that the Grievant was denied due process given

that an integral part of the crafted discipline was the “Last

Chance Agreement” - the execution of which stood in lieu of

termination. This LCA was not negotiated with the Union. The UAW

International Representative was simply aware of it through his

communication with Mr. Davis. The LCA was purely a document that

attempted to circumvent the joint labor-management decision

making and grievance process and was distinctive from the


                               21
management right to formulate, post and administer plant rules.



By rejecting the discipline, the Grievant was not demonstrating

a further unwillingness to follow management’s direction as

charged. He was exercising his legitimate option for arbitration

and his legal right to file a ULP.



As to the NLRA Section 8(a)(1)and (3)charges, after simultaneous

and due consideration of all the evidence and testimony on the

record, it is found that no violation exists. No Union animus

was discovered under any standard of proof. The

Grievant/charging party was disciplined for his insubordinate

behavior and not for his Union and protected activity including

the actual filing of ULP charges. Without his unacceptable in-

plant behavior exhibited on September 22, 2004, no discipline

would have occurred.



                         AWARD



1. Based on the hearing record, and testimony, and having heard

and read and reviewed the evidence and argumentative materials

in this case and in light of the above discussion, it is found

that the Grievant was initially disciplined for just cause.     The

Company has met it’s burden of proof that the Grievant was


                                 22
insubordinate by refusing management’s requests to go to the

Operations Manager’s office and repeated requests to leave the

plant.

However, it is further found that the Grievant was denied dues

process regarding being discharged for failure to accept the

discipline including the Last Chance Agreement. The Grievant is

to be reinstated subject to number 2. below.

2. The Grievant will be referred as soon as practicable but

within ten (10) days to the company-sponsored EPS anger

management Health Care Professional for assessment and

evaluation to determine the length of the counseling necessary.

After the Health Care Professional advises that the Grievant is

in possession of normal anger management capabilities that will

prevent a recurrence of the events surrounding September 22,

2004, the Grievant will be returned to work without back pay.

This individual program must be successfully completed within

thirty (30) work days or less. The Grievant is to be made whole

with respect to seniority and all benefits after his return to

work.

3. NLRB Case No. 10-CA-35239 is hereby dismissed.

4. The Arbitrator will retain jurisdiction in this matter for

the purposes of the remedy.



Dated:   April 15, 2004


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Joseph J. Mantione, Arbitrator

Largo, Florida




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