Chapter 2 was guilty of dishonesty and to a sufficiently serious

he was not terminated for just cause, he will award no back wages or benefits and only that seniority

which Sax possessed as of the date of his discharge.

AWARD

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It is thus unnecessary to assess the Company’s argument that the Union has attempted to

achieve through arbitration what it failed to obtain in negotiations, and that consequently the

grievance should be denied. The evidence (C-15, p. 2, item 42) suggests that this may indeed have

been the case, but it does not do so definitively. The evidence that the Company’s no-relative rule,

again notwithstanding the choice of words “anti–nepotism policy” for it in the employee handbook

publications, has been reasonable, longstanding, consistently enforced and well known is far more

convincing, and is persuasive in this case by itself.

The Board, with definite misgivings because of Mr. Walton’s excellent work record and his

71/2 years of seniority, must deny his grievance.

AWARD

Keith W. Walton was properly discharged. The grievance is denied.

Case 11

A LAID OFF GLASS WORKER

DISCUSSION

The Union is absolutely correct in pointing out that the relevant language of Article 12, Section 9 is

clear and unequivocal. It straightforwardly commands that employees who have been removed from

a classification due to a reduction in force “will be returned to that classification in seniority order”

as “openings occur” in it. And, assuming only that an opening did in fact occur in the Glass Worker

classification, the Company was indeed obligated to return Ronald Petrie, as the senior laid-off Glass

Worker, to it (because he was “physically able to return to work and perform in a satisfactory

manner”).

By the same token, if no opening occurred, the Company cannot be said to have violated the

Labor Agreement by not recalling Mr. Petrie, as the Union—which has freely admitted that despite

its 1994 and 1997 bargaining efforts there are no curbs on either overtime or temporary transfers in

departments where people are on layoff—also recognizes.

Did, then, an opening occur?

In resolving this all-controlling question, the arbitrator cannot grant any meaningful weight

per se to the fact that the Company has recalled employees in the past for very short durations.

As for Supervisor Battle’s admitted assertion that he “sure could use an extra person” in the

Glass Department, it also does not—by any means—confirm that an “opening” as the parties

understood the term had occurred. All that can be said of it is that it indicates an entirely

understandable supervisory need to counter what was obviously (given the OT and TT work) a

recently increased workload.

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All of these latter conclusions notwithstanding, would a fair and reasonable man still have to

conclude—given the preponderance of glass room hours—that an opening had indeed occurred and

therefore that the Company in not recalling Mr. Petrie violated Article 12, Section 9?

As both of the experienced and able parties to this dispute are undoubtedly well aware, it has

been generally recognized by arbitrators, so consistently that no citation of arbitral precedent is

deemed to be necessary here, that employers have the unilateral right to determine whether

openings and vacancies exist in the absence of some provision of the contract limiting this right and,

of course, in the absence of arbitrary and capricious exercise of this authority.

The existence of limiting language is not in question here. Neither Article 12, Section 15, nor

Article 19, Section 6, detracts remotely from this right, implicitly granted the Company by Article 3,

Section 2. Nor does any other portion of the Labor Agreement do so.

But neither can the Company be said to have exercised its authority to determine the

existence of an opening arbitrarily or capriciously in the circumstances of this case. Its abstention

from recognizing such an opening was, from its consistently uncontroverted testimony, based upon

It is simply not enough, given these conclusions, for the Union to argue that based on the

work load history of the glass room starting in January, 1997, there “definitely” was an “opening.”

The arbitrator has no reason to doubt the sincerity of the Union in its assertion that the Company

AWARD

The grievance is denied. The Company did not violate the Labor Agreement when Ronald Petrie was

on layoff by working the remaining Glass Department employees on overtime and temporarily

transferring other employees into the department without recalling Mr. Petrie.

Case 12

ALLEGED INSUBORDINATION

DISCUSSION

At the core of this dispute is, quite clearly, the single question as to which of the two versions of

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severe.

In resolving this question of credibility, I cannot agree with the Company that Supervisor

Coogan has “nothing” to gain here and that the grievant stands to gain “everything” (Company Post–

Hearing Brief, p. 4). Obviously, Mr. Whitney’s potential gain lies in the granting of his grievance and

the striking down of his suspension. Mr. Coogan nonetheless also stands to profit if his version and

not Whitney’s is accepted, at the very least in having the record preserve him as a practitioner of

sound management in the September 24 situation and not as a deviator from such desirable

management. In all fairness, it has to be recognized that neither of the only two witnesses was an

entirely disinterested one.

As for the Company contention that the grievant gave conflicting testimony at the hearing,

my own normally comprehensive notes fail to indicate such an inconsistency. But even granting all

benefit of the doubt to the Company, and assuming that Mr. Whitney under direct examination said

that “Lester did not answer my question” and under cross examination denied that he had asked any

question at all, I would still hesitate to equate this inconsistency with proof of insubordination. Such

factors as narrowness and a failure to properly understand what was being asked of him at the

hearing could have caused Whitney to show himself in this less impressive light. Certainly, this

inconsistency, which under no conditions was remarked on by the Company at the hearing itself,

seems a very shallow reed on which to connect the grievant to the public showing of disrespect for

Coogan with which he has been charged.

AWARD

The Company violated the Labor Agreement in issuing a partial day suspension to David Whitney

for his September 24, 2000 actions because it has not proven that it had good and sufficient cause to

do so. The grievant is consequently to be made whole for all monies lost on that date and the

suspension is to be removed from his record.

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Case 13

A LAID OFF SENIOR EMPLOYEE

DISCUSSION

Seniority is, of course, a vital ingredient in collective bargaining. Most professionals in the field,

indeed, would presumably have no quarrel whatsoever with the well-known description of the late,

eminent Arbitrator Saul Wallen that it is really the “soul” of the labor contract. It might not be going

too far to state that as a general proposition seniority is to unionism what breathing is to life.

Was this senior employee, in fact, so able?

At the outset, the Chairman must exempt two Union contentions from receiving any

meaningful weight in resolving this question. In the first place, it is by no means as “obvious” as the

Union has argued that the grievant’s having been classified in the Grade 7 sheet metal assembler

category by itself meant that the Company acknowledged that she could perform all job duties

encompassed by the job description for this classification. As the Company has correctly pointed out

(Company post-hearing brief, p. 22), the job description for the Grade 7 sheet metal assembler

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is hardly tantamount to saying—in the face of Paragraph 85—that “ability to efficiently perform the

work involved” is no longer required if sufficient job classification seniority is held.

But the Union, in its painstaking and comprehensive probing of the record on behalf of

Mrs. Hanna, has offered other arguments that cannot so easily be dismissed. The grievant’s ability

was not in any way, apparently, ever questioned throughout her work history, including her time

spent in Grade 7 sheet metal assembly employment. It is also an established fact, as the Union has

asserted, that Fred Chrysler, the General Foreman of Department 36, agreed in his testimony at the

hearing (Tr., p. 166) that Mrs. Hanna was performing her job assignment on the Model 303 aircraft

efficiently.

It is true, further, that Malcolm Entem was, in settlement of his November 16, 1996

grievance, placed in an Overhead Millwright position “for a period of not less than one (1) week to

Paragraph 85 does stipulate accepted and agreed-upon procedures which bind the parties,

but these procedures provide only that the rule of seniority shall prevail on a division-wide basis on

related work or on work previously performed, based on the “ability to efficiently perform the work

involved.” And the word “efficiently,” as the Company has pointed out, has meaning. In both

everyday and common dictionary usage, it means the quality of being productive, with a minimum

of waste, immediately—not “ultimately,” “following a training period” or “after a period

of familiarization,” but now. For the Chairman to ignore this clear and unambiguous language by not

enforcing it would be for him to blatantly abdicate his function.

The fact that Mrs. Hanna’s past work record was unblemished, while clearly to her credit, is

irrelevant to a determination that she possessed the needed ability on work that she had not in fact

previously performed. Nor is it any more relevant that her work on Model 303 jobs either wholly or

Against this Union case, on the other hand, stand two uncontroverted factors. One, despite

her undeniable performance of some relatively minimal aspects of the “critical” jobs such as

assistance on floor-boards, the grievant had never completely performed even the easiest of the

“critical” jobs, with their cycles of anywhere from eight hours to five days, or any other jobs of

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demonstrated past practice to provide either a trial period or training, the Company consequently

acted properly and prudently, for the sound business reasons of efficiency and expeditious

performance, in its treatment of the grievant regarding the “critical” jobs. If it did anything here that

was wrong, discriminatory or capricious, this has not been persuasively proven by the Union, as

conscientious as its efforts have been.

What, however, of the Union’s further position that at the very least Mary Hanna should

have been transferred to the Grade 9 sander-bond classification of work instead of being placed on

layoff on November 16, 1996?

Hanna unquestionably had performed this work, and satisfactorily; junior employees

uncontrovertibly were retained to do this work; and it is clear that this lower-rated position could

What is not unclear, however, is one compelling fact: the question of whether or not the

grievant was entitled to a Grade 9 sander bond job on November 16, 1996 was not raised by the

Union prior to the instant arbitration hearing. The record, as voluminous as it is, is absolutely

barren of any evidence that it was raised prior to July 19, 1997 on behalf of Mrs. Hanna. Apparently,

and ironically, it was the Company that first pointed out to the Union that the grievant (as well as

AWARD

The Company did not violate the present Collective Bargaining Agreement between the parties on

November 16, 1996, when it placed Mary Hanna on layoff.

Case 14

THE CREATIVE REPORTER

DISCUSSION

Mr. Richard’s version of his November 16 activities did change somewhat from November 16 to

December 5, as the Company has pointed out (although the statement that it did so “repeatedly” may

be unwarranted). But the arbitrator is not as convinced as the Company would like him to be that

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the grievant’s omission of any of the four spools on his second production sheet stemmed from

Richard’s hope, presumably guilt-ridden, that Foreman East would thereby be persuaded to drop the

whole matter. Richard attributes the omission to East’s statement to him that he would now get paid

for none of the four spools, of course, and, given the obvious heat in which the Richard-East

confrontation took place, this explanation is credible. At least, in fairness to Richard, it cannot be

entirely dismissed as a possible reason for the grievant’s incomplete amended production sheet.

Nor can Richard’s 21 years with the Company be rejected out of hand as a potentially

mitigating circumstance. As both parties are well aware, long seniority can certainly work in an

employee’s favor, particularly where the extreme penalty of discharge for a first offense is involved.

Beyond this, as Union Exhibits 2 and 3 illustrate, discharge is not invariably the penalty for an

done at all.

Richard’s motive in engaging in such creative reporting was not related to any time

dimension. Time was not of such essence, as the grievant candidly admitted at the arbitration

hearing, that the minute or so needed to weight the wire was even remotely a consideration. But it

hardly requires a comment such as that made by Local Union President Stanley Bostic at the

December 5 grievance meeting (“this is the first time you caught him—not everyone is honest . . .”)

(Company Exhibit 3) to unearth what the motive in fact was. In the absence of a showing by either

the Union or the grievant of any other credible motive except a desire to gain financially by inflation

of the production report it can only be concluded that this was indeed what triggered Richard’s

erroneous reporting on November 16.

Nor can much help for the grievant’s case be discovered in pondering the Steelworker

arbitration awards submitted by the Union. None stemmed from circumstances that were very

comparable to the ones surrounding the instant case (not even, indeed, the Bethlehem Steel award

that constitutes the only one submitted in its entirety by the Union, because the double jeopardy on

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AWARD

The Company had just cause to discharge the grievant, Scott Richard.

Case 15

TEN DAYS TO LEARN

DISCUSSION

If the last sentence of Paragraph 51c is no more a binding commitment on the Company than the

previous sentence, which unequivocally makes the giving of qualification time subject to a Company

determination that the involved employee can in fact learn the desired job within the qualification

period, this is simply not apparent from a reading of this last sentence.

In words that could hardly be more clear cut and straightforward, the last sentence leaves

absolutely no discretion to the Company in the case of employees with twelve years of seniority at

the time of application. They “will be given” ten working days to qualify and this provision is

AWARD

The Company violated Paragraph 51c of the Labor Agreement in May, 2004, when it denied Nancy

Felder ten working days to learn the job of Tube Inspector and Packer. The parties are directed to

Case 16

THE DISCHARGE OF MATTHEW B. FLYNN

DISCUSSION

As Mr. Flynn presumably would be the first to admit, in his two years and four months of

employment he was hardly a model employee. Prior to July 25, 2008, he did indeed establish a record

that was something less than outstanding and even granting full recognition to the Union argument

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that much of this record predated his successful treatment for substance abuse the fact remains that

he was respectively disciplined for both dishonesty and careless workmanship well after this

treatment.

By his own frank admission, moreover, Flynn was insubordinate on July 25 in twice refusing

orders to talk following the alleged shoving incident (although my notes show that he has admitted

to no more than this regarding the events of that date, justifying both his walking away from Wyner

AWARD

The discharge of Matthew B. Flynn was for proper cause.