Maurice Kelmant, Arbitrator. Award issued January 18, 1994.
ISSUES
DisciplineGross insubordinationWearing political emblemsNotice of discipline.
FACTS
On September 25, 1992, the Company issued the following policy statement. It was in the form of a memo addressed to supervisors and was read aloud to gatherings of employees on both shifts:
Wearing buttons and displaying posters which state political preferences
have the potential to cause controversy among employees. Such controversy sets
up the possibilities of interference with production. All employees have plenty of
time outside of Minster Machine Company to state their candidate and political
preferences. Minster Machine Company is a place of business and not a political
forum for debate. Please convey to the employees in your department that the
Company would appreciate their cooperation in complying with the policy of not
wearing or displaying buttons and posters which state political preferences.
As might be expected, the new policy was not greeted with universal enthusiasm. At the regular monthly meeting with management on October 1, union officers voiced their objections. Their request for a written copy of the company memo was rebuffed with the comment that the subject was covered by the longstanding no-solicitation rule in the published plant rules. Queried about the specific consequences of violating the ban on political displays, Minster Vice President, Ronald Olding, answered that he had not yet given thought to that matter and, within a week, the Union filed two grievances against the No-political-displays policy.
On October 12, four days after the grievances were launched, Local 3210 President, Walter Pohlmann, met one-on-one with Mr. Olding to pursue the unanswered question of disciplinary sanctions. Mr. Olding reviewed with him the Companys Corrective Action Guide, a document posted on the plant bulletin board which classified job offenses according to seriousness, and spelled out the progression of penalties for each category. In the less serious grouping, including absenteeism, loafing on the job, poor workmanship, and gambling during work hours, a first violation is dealt with by verbal reprimand. Not until the fourth infraction can the employee incur a suspension of up to 3 days. At the other extreme, misconduct characterized as intolerable, such as theft, physical assault, or selling drugs, is dischargeable per se. In the middle range are violations deemed serious. These wi1l subject first offenders to a written warning plus possible suspension for 3 to 5 days. The Corrective Action Guide does not list all conceivable disciplinary infractions. Rather the guide concludes with this statement:
The types of infractions shown are examples of the more commonly known types.
However, the listing is not intended to be all-inclusive. Specific infractions which
are not listed would be handled the same as similar types of infractions.
Looking through the guide, Mr. Olding expressed his tentative impression to Mr. Pohlmann that disregard of the new policy against political emblems should be equated to failure to follow safety rules or standard procedure or refusal to perform assigned work (insubordination) both being offenses found in the intermediate serious category. Neither the company vice-president nor the union president discussed specifically the case of a button-wearing employee who did not comply with a supervisors direct order to remove the political paraphernalia. Later in the day on October 12, Mr. Olding verbally confirmed to Pohlmann that violations indeed would be punishable as a serious infraction. The Union still lacked a written copy of the new policy, and at the monthly union-management meeting on November 5, it submitted a formal demand for the document. Eventually, on November 24, at a grievance conference on an unrelated matter, the Company furnished the Union with the 9-25-92 memorandum to supervisors.
S is a machine tool builder with 19 years of company seniority. On September 25, he learned about the new company rule from two union committeemen. (S himself was and is the vice-president of Local 3210.) He immediately went to the office of the plant superintendent, Gene Burke, and demanded a written copy of the companys statement. Burke told him that the memo could not he shared with him because it was addressed to supervisors. S was later present at the assembly of second-shift employees at which a foreman read the memo to the workers. Once more, the grievant requested and was refused a written copy of the statement. In his capacity as a union officer, S attended the October 1 meeting with management (discussed above), and he was conversant with the October 8th grievances challenging the new policy. Because of illness and car trouble, S missed work from October 12 through October 14 and was out of touch with co-workers and union colleagues. Thus, he was unaware of Walt Pohlmanns discussion on October 12 with Mr. Olding on the subject of disciplinary penalties.
Since repeated requests for the document had been unproductive, S decided on his own to violate the political display ban in a way that would yield written evidence of the company policy in the form of a disciplinary warning. Accordingly, he reported for his October 15/16 shift with a Clinton-for-President button pinned to his cap. Although the shift started at 4:30 in the afternoon, it was not until 1 AM, that he was approached by a supervisor, John Yinger, and told to remove the campaign button. S instead requested union representation. Kevin Pollack, steward on the second shift, was called over and they were joined by Marv Monnin, who as Night Shift Superintendent, was the ranking management official on the premises. Mr. Monnin asked the grievant what he was trying to prove by keeping the button on his cap. Monnin indicated that he would oblige with a written warning and also remarked that the situation could accelerate very quickly up the disciplinary chain to the point of Ss being walked out the door if he did not comply with Yingers order. At that point, the grievant removed the Clinton button from his cap and completed his work shift without further controversy. When S came to work the next day, he was slapped with the three-plus-day suspension at issue before this arbitrator. The suspension notice stated:
ACTION TAKEN: Suspension from work without pay from the start of your shift
On Friday Oct 16, 1992 until the start of your shift on Wednesday Oct 21, 1992.
REASON: Actions on the morning of October 16th, 1992 were a willful and
deliberate violation of a known company policy. In so doing, you are guilty of
gross insubordination.
POSITIONS OF THE PARTIES
THE COMPANY:
As a union officer and longtime employee, the grievant knew very well that the correct way to challenge the companys policy against wearing political emblems was not by defiance, but through the grievance procedure. Indeed, as he also knew, grievances were already underway and there was no reason to fear that the employer would not be a cooperative adversary in processing the grievances. There was no need or justification for creating a confrontation at work. While it may he true that S was unaware that the local union president had been told that political display infractions would be treated as a serious job offense, grievants ignorance is no excuse and provides no defense. An employee who openly defies Company policy, does so at his peril. And while a 3 to 5 day suspension, in addition to a written warning, is not a sanction that management invariably resorts to for first-time violators, in this case, the suspension was clearly warranted because of the willful and totally unnecessary nature of the grievants actions. Even if the arbitrator might favor a milder penalty, the labor agreement expressly strips the arbitrator of authority to tamper with a suspension or a discharge that is for just cause.
THE UNION:
S does not object to, nor does the Union grieve, the issuance of a written warning for violating the company policy against wearing political buttons at work. In fact a written warning is exactly what the grievant sought and that Mr. Monnin obliged him with. The Unions position is that a written warning was the sum total of disciplinary action meted out by supervisors on the scene and that Mr. Oldings subsequent decision to add on a three day suspension amounts to double jeopardy. The Union also charges management with a lack of even-handedness in administering the new policy, citing the instance of another employ N, who wore a political button at work on October 12, was told by a supervisor to remove the button or he sent home, and who then acceded, without receiving any penalty at all.
QUESTIONS
1. The employer claims that the grievant blatantly violated the company policy.
Do you agree? Why or why not?
2. The union claims that management lacks even-handedness in administering the
new policy. What do you think?
3. The employer argues that the grievant knew the correct way to challenge a
company policy and, therefore, his actions were willful and deliberate. Is this
important to the case? Why or why not?
4. Did the vice-presidents comments to the union president about the gravity of
political button infractions constitute a notice to employees? Why or why not?
5. How would you decide this case? Why?