American Arbitration Association Arbitration Pursuant to Agreement of the Parties Before Timothy J. Brown, Esquire

Transcription

1 American Arbitration Association Arbitration Pursuant to Agreement of the Parties Before Timothy J. Brown, Esquire In the matter of: PACE International Union : Local # : AAA Case No : Arbitrator Case # and : : Cascades, Inc. : Tissue Group : (Re: Ames Termination) DECISION AND AWARD Appearances: On behalf of Paper, Allied-Industrial, Chemical, & Energy Workers international Union Local Number Mr. Anthony Lupi PACE International Union PO Box Lehigh Valley, PA On behalf of Cascades, Inc. Richard L. Strouse, Esquire Ballard, Spahr, Andres & Ingersoll, LLP 1735 Market Street, 51st floor Philadelphia, PA Summary of decision: For the reasons stated in the following Decision, the subject grievance is denied. Dated: May 17, 2004 Timothy J Brown, Esquire Arbitrator 1

2 INTRODUCTION Cascades Tissue Group Pennsylvania, Inc. (the Company) is engaged in the manufacture of paper and tissue products at facilities located in Ransom and Pittston, Pennsylvania. PACE International Union, Local # (the Union) represents various employees at the Company s Ransom and Pittston, Pennsylvania locations. Grievant Jeff Ames was hired in August 2002 as an electrician assigned to the Ransom facility. Prior to and during his employment with the Company, Grievant served as a volunteer with local fire, ambulance and rescue units, and as a paid seasonal forest patrolman volunteer for the Pennsylvania Department of Conservation and Natural Resources (DCNR) Bureau of Forestry. Grievant is also certified to fight forest fires under the Specialized Crew Program of the PA Bureau of Forestry, Division of Forest Fire Protection. On August 21, Pennsylvania DCNR Supervisor Nicholas Lylo telephoned Grievant and asked if Grievant was interested in volunteering for a federal forest-fire fighting crew leaving for Montana the following morning. 2 Grievant said he was interested and Lylo told Grievant to check with his employer and get back to him. At 4:00 or 5:00 p.m. that afternoon, Grievant called Lylo and reported he was OK to go. At about 5:45 p.m. that day Grievant called the Company s supervisor office and left a voice message stating that he was calling off his shift scheduled to begin at 7:00 P.M. that evening. 1 All dates hereinafter are 2003 unless otherwise indicated. 2 When Grievant fought fires for the DCNR he was paid by the DCNR. When he fought fires for the federal government as a specialized crew member, he was paid by both the DCNR and the federal government. 2

3 Grievant flew to Montana the next morning. That same morning, (August 22) having heard from another electrician that Grievant might be gone for awhile, Electrical and Instrument Manager Paul Scychowski telephone Grievant s wife seeking information. The wife reported that Grievant had been called out-of-town on a fire emergency and that she did not know where he was or how long he would be gone. Scychowski advised her that Grievant s job was in jeopardy and that Grievant needed to call into work. Grievant s wife responded that she expected a call from Grievant later that evening and would give him the message. Grievant did not thereafter call the Company and failed to work as scheduled August 22, 26, 27, 30, 31 and September 1 and 2. On August 26, the Company mailed Grievant a letter stating that Grievant was required to contact the Company by noon Friday, August 29 or be considered to have voluntarily resigned his employment. Grievant did not contact the Company prior to noon August 29. In the afternoon of August 29 the Company s Mill Manager Ralph Monelli and Human Resource Manager Hope Coolbaugh met and decided to terminate Grievant. However, because it was a holiday week-end Monelli further decided they would wait until the following Tuesday to implement the termination. As of Tuesday, September 2, with Grievant having still not contacted the Company, the Company implemented its decision to discharge Grievant. 3 3 On September 2 Grievant s wife called the Company and left a message for HR manager Coolbaugh indicating that the initial letter of August 26 had arrived August 30 and requesting the HR manager to contact her to hear her side of the story. When Coolbaugh later spoke to Greivant s wife she told the HR manager that before he left Grievant had tried unsuccessfully to contact his supervisor and then gave Union steward Wheeler information about where Grievant was and how long he would be gone. Grievant was not present at the hearing in this matter. As a result there is no direct evidence as to why Grievant failed to make further efforts to contact his supervisor, or why Grievant did not indicate the reason for, and length of, his absence when he left his August 21 message on the supervisor office answering machine. 3

4 Grievant was informed of his termination by letter from the HR manager dated September 2. It stated in relevant part: As per my letter dated August 26, 2003, I requested you to contact this office by noon on Friday, August 29, My letter explained that you had missed three scheduled working days and failure to contact me would result in your having voluntarily resigned your employment. To date you have not contacted me nor have you reported to your scheduled shifts since August 21, This letter herby notifies you that the company is terminating your employment due to abandonment of job effective Tuesday, September 2, The Union filed a grievance over the termination and pursued the matter through the required steps of the contractual grievance procedure. Following the Company s denials of the grievance the Union filed for arbitration. The undersigned was selected by the parties to conduct a hearing in this matter and render a binding arbitration award. A hearing was held on April 20, 2004 in Wilkes-Barre, Pennsylvania. At the hearing, the parties were afforded the opportunity for examination and cross-examination of witnesses, presentation of relevant argument and introduction of relevant exhibits. Both parties presented closing oral argument and the dispute was deemed submitted at the close of the April 20 hearing. ISSUE The parties stipulated that there are no procedural issues presented in this matter and that the following describes the issue or issues to be resolved by the arbitrator: Was the Company s termination of Jeff Ames for cause and, if not, what shall be the remedy? 4

5 RELEVANT CONTRACT LANGUAGE The following provisions of the bargaining agreement were identified as relevant to the issues presented in this matter: ARTICLE 2 Management Rights Section 1. The management of the mill and the direction of the workforce are vested in the Company. These rights include, but are not limited to, the right to determine the size and locations of its mills and workforce; to subcontract and transfer work; to determine the methods, processes and materials used; to make, change, and enforce reasonable rules and regulations; to schedule, transfer and assign work to employees; train employees on equipment or procedures, to determine the content of jobs, to increase and decrease the number of jobs to fill or not fill a position, products to be manufactured; to determine standards of performance and to establish and revise policies and procedures to effect change necessary for orderly, efficient and profitable operation of the Company, and to discipline employees for just cause. The Company, therefore, reserves all rights not otherwise restricted by the express written provisions of the collective bargaining agreement. However, in exercising these rights, the Company shall not abridge any of the expressed written provisions of this collective bargaining agreement. ARTICLE 24 Absenteeism Policy A. Attendance Incident Definition: An attendance incident is any absence of one day. Each instance of tardiness or an early quit will constitute one (1) attendance incident. However, any absence of three (3) or more days will be treated as one (1) absence, if accompanied by a doctor s excuse for the period of illness or injury. B. Absence Definition: Any time an employee is not at work or leaves work for any reason with the following exceptions: 1) Contract-provided leave or time off: Vacation, Holiday, jury Duty, Military Leave, Funeral leave, 5

6 Absence for Official union business, absence for Company paid business, Sick Leave and Industrial leave. 2) Any absence approved, in writing, by the Company. C. Tardiness Definition: If you are not punched in at the beginning of your shift. Each tardiness will be recorded as one (1) attendance incident. D. Any employee who fails to call off or report off for a scheduled shift will automatically be subject to the disciplinary procedure. E. Employees whose attendance incidences are of an excessive, patterned, or unreasonable nature will be disciplined in accordance with the following absenteeism policy. No employee will be given a Verbal Warning until they have accumulated five (5) incidents unless they are a pattern. (1) An individual who becomes an attendance problem will be given a Verbal Warning. (2) If this individual continues to miss work, he will be given a Written Warning. (3) Further excessive attendance problems will result in three scheduled workday suspension. (4) After all the above steps, if the individual continues to have attendance problems, he will be discharged. No employee will be terminated for fewer than ten (10) attendance incidents in a 12 month rolling period. F. Violation of all Plant Rules, Operational Rules, and Incident Disciplines shall be managed under the following Progressive Discipline Schedule: (1) formal documented verbal warning (2) written warning (3) suspension (4) discharge for cause In these cases, the Labor Management Committee must be consulted before the action is taken to consider the facts 6

7 including the employee s overall record. G. This Progressive Discipline Schedule will operate under a 12 month rolling period. ARTICLE 25 Scheduling J. Employees shall make every reasonable effort to notify their Supervisor no later than two (2) hours preceding an intended absence from work for any reason. Employees calling less than two hours before their scheduled shift will receive an unreported absence and will proceed immediately into the next step of the discipline process. POSITIONS OF THE PARTIES The Company The Company firstly argues that its decision to terminate Grievant was for cause as contemplated by Article 2 of the bargaining agreement, and additionally contends that Grievant s post-termination conduct acts as further cause for discharge as well as a bar to reinstatement. Finally, and although disputing the Union s assertion that the terms of the absenteeism policy should be controlling of this matter, the Company argues, even under that policy the Company had sufficient cause to terminate Grievant. In regard to its accusation of job abandonment, the Company explains, Grievant s late August 2003 conduct took place within the context of (1) his having been subject to three counselings about the importance of promptly informing the Company about his being called to respond to fires, and (2) his having four unexcused absences on his record with less than twelve months of employment with the Company. The later two of the four 7

8 absences, the Company emphasizes, were for days for which Grievant had previously requested vacation time - a request denied by the Company due to his ineligibility for vacation under the terms of the Bargaining Agreement - and for which Grievant nevertheless called off. Within such a context, the Company argues, Grievant showed a clear lack of interest in retaining his job. Although Grievant did call on August 21, the Bargaining Agreement requires that call-offs be made at least two hours before the start of a shift. Grievant s August 21 call off was made only an hour and fifteen minutes before his scheduled shift. As a result, the Company contends, Grievant s absence of August 21 was unexcused. Notwithstanding the Company s previous counselings and repeated efforts to contact him in late August, Grievant thereafter made no contact with the Company. Under these circumstances, the Company asserts, it had good reason to conclude that Grievant had abandoned his position. The Company further argues that Grievant s post-discharge conduct constitutes further cause for termination and a bar to his reinstatement. In this regard, the Company explains, the Grievant, Union representatives and representatives of management met on September 17 to discuss Grievant s termination. During that meeting Grievant was given the opportunity to state his side of the story, and, among other things, Grievant stated that (1) he received a call about the national fire emergency between 3:30 and 4:00 p.m. and had fifteen minutes to provide his answer to the call and (2) if he did not agree to go to Montana he would have been taken off of the list for future fires. Following the September 17 meeting the Company contacted PA DCNR Forest Supervisor Lylo 4 to seek confirmation of Grievant s claims. Lylo (1) informed the Company that on August 4 Lylo testified in this case pursuant to a subpoena served by the Company. 8

9 21 he asked Grievant to let him know if he could go to Montana as soon as he could, and (2) explained that had Grievant declined to go it would have made no difference to his opportunity to volunteer to fight future fires as the program was completely voluntary. The Company argues that the information received from Lylo established that Grievant lied during the September 17 meeting, and asserts that Grievant s dishonesty is further cause for discharge and precludes his reinstatement. Finally, although the Company does not agree with the Union s argument that the absenteeism policy should be applied to Grievant s conduct, the Company nonetheless points out that as of his September 2 termination Grievant had more than the ten unexcused absences required for termination under that policy. The Union The Union asserts that the Company has failed to meet its burden of showing just cause for its termination of Grievant. This was not, the Union begins, a case where no one knew the whereabouts of the absent employee. On August 29, the day the Company made the decision to terminate Grievant, everyone knew Grievant was out West fighting forest fires. Grievant did not pre-plan the forest fire, the Union asserts, it was not a premeditated scheme to be away on vacation after a request for vacation had been denied. Rather, Grievant received a call to respond to a national emergency; to engage in activity for the public good. Contrary to the Company s claim, the Union stresses, Grievant did call in his absence on August 21 and leave a message on the supervisor phone before his shift, and he did call a second time later that night. Grievant s second call was answered by Ken Wheeler and Grievant told Wheeler he would be gone for two weeks fighting 9

10 forest fires. Whether or not Wheeler reported this to management does not change the fact that Grievant, having been unsuccessful in contacting his supervisor, tried again to call the Company and report his circumstance. Grievant did not specifically call Wheeler, the Union explains, anyone, including management, could have answered his late-night phone call. Thus, the Union urges, Grievant made a good faith effort to call in his twoweek absence. Moreover, the Union asserts, Wheeler s testimony establishes that, after receiving the late-night call from Grievant, Wheeler reported the specifics of the conversation to Supervisor Mike Hughes. 5 Thus, the Union argues, management knew of the reason for, and the anticipated length of, Grievant s absence by the early morning hours of August 22. Considering that he did report off, the Union argues, Grievant was justified in assuming that he would be excused for his fire-fighting-related absence if he provided documentation of his activity upon his return to work. Such had been the routine followed by the Company for every previous fire or emergency-related lateness Grievant had experienced during his employ with the Company. Moreover, the Union points out, consistent with his experience, Grievant did offer the Company documentation of his fire fighting activity upon his return to Pennsylvania. Although the Company may have attempted to communicate to the Grievant through the August 26 letter that the procedures for gaining approval of his absence had changed, the letter was not delivered to Grievant s home until August 30. Thus, the change had not been communicated to Grievant at the time of the August 29 decision to terminate him. As a result, the Union asserts, Grievant was never given the opportunity to 5 Supervisor Hughes does not recall having such a conversation with Wheeler, and testified that had he such, he would have told Wheeler to tell the electrical supervisor. 10

11 comply with the policy prior to his termination. The Union further argues that cause for termination due to absenteeism, the conduct at issue here, is defined in Article 24 of the Bargaining Agreement. There, the parties agreed upon the progressive discipline required prior to termination due to absenteeism. The Company failed to comply with the discipline steps contained in Article 24. Had the Company complied, the Union asserts, Grievant would have been given a three-work-day suspension covering August 30 and 31 and September 1. Thus, on September 2, the date of his termination letter, Grievant had not accumulated the ten unexcused absences required for termination. In fact, the Union further points out, the Company admits that it decided to termination Grievant on August 29, a time when Grievant had by everyone s count only eight unexcused absences, two less than the ten needed for termination under the terms of the Agreement. Consequently, the Union concludes, the company did not have cause to terminate Grievant. DISCUSSION Considering the totality of the evidence and arguments presented, I find that the Company has met its burden of showing cause for its discharge of Grievant whether measured under the for cause language of the Management Rights Article or under the Absenteeism Policy of the Bargaining Agreement. The Company had Cause to Terminate Grievant for Job Abandonment The Parties Bargaining Agreement does not prohibit the Company from terminating an employee due to job abandonment, and although the Agreement may 11

12 provide guidance as to what constitutes excessive absenteeism, the Agreement does not provide similar guidance as to what constitutes job abandonment. As a result, all of the circumstances must be considered to determine whether or not the Company had sufficient reason to conclude that Grievant exhibited disinterest in, or an unwillingness to retain, his position under its applicable terms and conditions. On at least three occasions Grievant was told by management to contact the Company immediately should he anticipate being late because of his responding to an emergency. The Company argues that these counselings were notice that Grievant was required to promptly call in anticipated absences. The Union claims the Company s repeated after-the-fact designation of Grievant s late arrivals as excused constituted notice that Grievant could provide after-the-fact documentation that his absences were for fire fighting related reasons and that such absences would also be excused. I find that the counselings simply emphasized the obvious; that the employee needed to notify the Company that he would be late, and additionally establish that Grievant was given the information needed to contact the Company at any time. The Company s history of providing Grievant after-the-fact excused designations may very well provide a good argument that the employee could reasonably expect such treatment by the Company in the future. However, being absent without notice for a two week period is a wholly different matter than being occasionally late for a few hours. Both the counselings and the after-the-fact designations of excused late arrivals occurred within the context of late arrivals only. There is nothing in the record to suggest that the Company either granted Grievant freedom to unilaterally decide not to report to work at all or excused Grievant from complying with its rules relating to calling in absences. 12

13 It is fundamental that an employer may reasonably expect and require that its employees show up for work when scheduled or notify the employer of their absences and reasons therefore in a timely manner. Here, Grievant failed to comply with these legitimate, fundamental tenets of the employment relationship. At the time Grievant learned of the Montana firefighting opportunity he also learned of its required two-week time commitment. Yet Grievant did not attempt to contact the Company before he made the two-week commitment to volunteer. Neutral witness DCNR supervisor Lylo credibly testified that Grievant accepted the assignment at 4:00 or 5:00 P.M. on August 21, a minimum of 45 minutes before Grievant left a message with the Company that he was calling off his August 21 shift. Additionally, when Grievant notified the Company that he would not be in to work on August 21, he said nothing of the extended nature of his absence and limited his notice to a single shift. Thus, notwithstanding that Grievant had the time, manner and means to make an appropriate request for leave from the Company, he independently decided to make a commitment to be absent for two weeks, and then, for some inexplicable reason, and again notwithstanding that he had the time, manner and means to provide the Company information about the reason for and extent of his absence, chose to leave an initial impression with the Company that he would be absent for only a single shift. Such conduct by Grievant is not consistent with a desire to continue employment with the Company. Moreover, Grievant, not being present at the arbitration of this matter, offered no information or explanation that would lead to any other conclusion. Considering such, and that (1) Grievant had previously exhibited his disregard for the legitimate staffing needs of the Company by calling off two days in July 13

14 notwithstanding that his vacation request for those days had been denied pursuant to the terms of the Agreement; (2) the Company received only vague or indirect information relating to Grievant s status as a result of its communications with other employees and Grievant s wife; (3) the Company made a good faith effort to give Grievant written notice that his job was in jeopardy; (4) the Company provided Grievant three days beyond the deadline provided in its notice to contact the Company; and (5) Grievant had worked for the Company for only twelve months, I find that Grievant exhibited an unacceptably cavalier attitude toward the responsibilities of his position with the Company and was unwilling to continue in his position under its applicable terms and conditions. Consequently, I conclude that the Company had just cause to terminate Grievant due to job abandonment. The Company had Cause to Terminate Grievant Under the Absenteeism Policy Even under the absenteeism policy standard of review urged by the Union, I find that the Company had cause to terminate Grievant. The Union s argument that some of Grievant s absences should not be considered because he would have been suspended under the progressive discipline provisions of the absenteeism policy is without merit. An employee s violation of a reasonable work rule does not work to elevate the employee to a position of determining the timing of associated discipline. Grievant had unexcused absences on 12/28 /02; 5/30/03; 7/29 & 30/03; 8/21, 22, 26, 27, 30 &31/03 and 9/1/03. As a result, I find that as of September 2, 2003, the date the Company actually implemented its decision, Grievant had more than the ten unexcused absences required 14

15 by the Absenteeism Policy for termination. Grievant. CONCLUSION The Company has met its burden of showing just cause for terminating 15

16 American Arbitration Association Arbitration Pursuant to Agreement of the Parties Before Timothy J. Brown, Esquire In the matter of: PACE International Union : Local # : AAA Case No : Arbitrator Case # and : : Cascades, Inc. : Tissue Group : (Re: Ames Termination) AWARD The subject grievance is denied. Dated: May 17, 2004 Timothy J Brown, Esquire Arbitrator 16