FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between Grievance No. 111

Grievant Douglas H. Briolat
PACE LOCAL 6-0628,
Union,

and

TOWER AUTOMOTIVE, INC,

Company.
________________________________/

OPINION OF THE ARBITRATOR

May 15, 2006

After a Hearing Held April 13, 2006

At the Tower Automotive Business Unit in Elkton, Michigan

For the Union: For the Comapny:

Michael A. Flora Kenneth M. Gonko

International Representative Attorney at Law
USW Local 2-628 The Danielson Group, PC
9260 Dean Road 55921 Gratiot Avenue
Fenton, MI 48430 Chesterfield, MI 48051
 I. The Parties And Their Dispute

Grievant was employed as a fork-lift driver at the Elkton, Michigan

Business Unit of Tower Automotive, Inc. (“Employer” or “Company”), where

he was represented by Local No. 6-0628 of the Paper, Allied-Industrial,

Chemical and Energy Workers International Union, AFL-CIO CLC (“Union”

or “PACE”). The collective bargaining agreement between the parties was

received as JX 1 (“CBA”).

On July 28, 2005, Grievant signed a Voluntary Layoff form providing:

I … WAIVE MY PLANT-WIDE SENIORITY RIGHTS FOR THE

PURPOSE OF VOLUNTERING FOR LAYOFF OUT OF THE PLANT.
WHILE ON VOLUNTARY LAYOFF, I UNDERSTAND THAT I ALSO
WAIVE ALL BUMPING RIGHTS TO OTHER CLASSIFICATIONS. CX 3.

Thereafter he received a Lay Off Notice dated August 6, 2005 (CX 4), which

directed him to return to work on September 6, 2005.

Grievant testified that he did some work around his house and departed

for Michigan’s Upper Peninsula (“UP”) about five o’clock on the afternoon of

August 10, 2005, leaving his wife at home. Unbeknownst to Grievant, earlier

that same afternoon, management had decided that fork-lift drivers needed to be

recalled effective August 15, 2005 (CX 5). The Union was notified and signed

off on the recall (id.).

The Company’s efforts to notify Grievant of the recall began at 5:17 PM

on August 10th (CXs 7 & 8). On the first attempt to reach him by telephone at

2
the cell-phone number which he had given the Company back in 2003 (CX 10),

a female answered, said he wasn’t home, and hung up. An immediate follow-up

call produced only a hang-up. A call the next morning produced only five rings

followed by a busy signal. A message for Grievant about the recall was left on

an answering machine that afternoon.

In accordance with the Company’s Recall Contact Procedure (CX 6), the

Company sent Grievant a letter dated August 11, 2005, by certified mail, which

stated:

This is to advise you that you have been recalled back to work for 2nd
shift as a Fork Lift Operator effective 8/15/05.

Failure to respond within 3 days of receipt of this letter, will result in your
termination of employment. CX 9.

Delivery of the letter was restricted to Grievant himself (id.).

Efforts to contact Grievant by telephone resumed on August 18, 2005,

when another message was left on an answering machine (CXs 7 & 8). Two

more messages were left the next day. On August 20, a man answered the phone

and stated that Grievant did not live at the number being called. Upon further

questioning, the man acknowledged that the Company’s messages for Grievant

had been left on the answering machine. That call produced an Incident Report

(CX 16) and marked the end of the Company’s efforts to contact Grievant by

telephone.

3
 In the meantime, the Postal Service made three unsuccessful attempts to

deliver the Company’s letter to Grievant, on August 12, 17, and 27, 2005 (CXs

7 & 9), each time leaving a PS Form 3849, Delivery Notice/Reminder/Receipt

(CX 13). Although Grievant spoke with his wife by telephone during his

absence, he testified that she did not tell him about the postal notices. The letter

was returned to the Company on August 31, and the Company began measuring

the 3-day period within which Grievant was supposed to report back to work,

counting the day the letter was returned as the first day.

Grievant further testified that he returned home Thursday evening,

September 1, 2005. His mail was in a packet available for him, although he did

not inspect it upon his return. The next day he worked, tearing down a building

in Bad Axe, Michigan.1 While he and his crew members were at lunch, one of

the Company employees who had attempted to contact him about the recall

came into the restaurant and exchanged pleasantries, but said nothing about the

1
From http://sports.yahoo.com/top/news?slug=dw-voicenames&prov=yhoo&type=lgns, reporting on The
People's Voice Ridiculous Town Name Contest:

Bad Axe, Michigan. How cool would it be to be able to say you were from this place? Named
when the founder found an old, worn down axe in the abandoned hunter's cabin he settled the
town around.

Great idea for a column.

Ed Gunther
Willoughby, Ohio

I don't think the teams at Bad Axe High School (if there is one) should have a nickname. They
don't need one. Simply being Bad Axe is enough.

4
events at the Company. Grievant’s testimony on this point was corroborated by

a crew member, who knew the Company employee and the employee’s family.

On Saturday evening, September 3, Grievant finally got around to

looking at his mail, when his discovered the notices of the Postal Service’s

attempts to deliver. Because it was the Labor Day weekend (September 3-5,

2005, CBA @ 33) and Grievant was due to report to work on the following

Tuesday, he did nothing.

When Grievant reported to work on September 6, 2005, his time card

was missing. When he inquired about it, he was told to wait in an office, where

he was met by a Company official who handed him a Separation Notice, dated

that day, which recited:

“DISCHARGED”
3 Days No Report—failure to return when recalled
August 31, 2005 – September 1 & 2, 2005

Dated Hired: 8-24-93

Last Day Worked: 8-05-05 (VLO 8-06-05)
Termination: 9-02-05 CX 11.

A Union official was present at the time.

A grievance was filed immediately (JX 2). The exchanges were terse:

Union: The Union is demanding that Employee be reinstated and made

whole.

Company: Discharge was proper action.

Union: No answer from Company.

5
 Company: Discharge is proper and just.

Company: Discharge stands.

Neither party cited any provision of the collective bargaining agreement.

The Union demanded arbitration. The CBA calls for a rotating panel of

arbitrators chosen by the parties annually from a list prepared by the Federal

Mediation and Conciliation Service (Art IV, § 5.C). A hearing was held on

April 13, 2006, at the Company’s Elkton Business Unit. The parties were

skillfully represented by agents who were well prepared and refreshingly

cooperative. Briefs were mailed by May 12, 2006, and this decision is rendered

within the thirty (30) days required by the CBA (id.).

II. Applicable Provisions Of The Collective Bargaining Agreement

Art IV—Grievance Procedure, § 5.C provides in pertinent part:

The Arbitrator shall have no power to add to or to subtract from, to

disregard or to modify any terms of this Agreement. The decision of the
arbitrator shall be final and binding upon all parties. The arbitrator shall
render his or her decision within thirty (30) days of the close of such
hearing. The expense and salary incident to the services of the arbitrator
for all cases during the life of this Agreement shall be borne by the losing
party. Such party to be designated by the Arbitrator.

Art IV—Grievance Procedure, § 6.A provides in pertinent part:

It is important that complaints regarding unjust or discriminatory layoffs

or discharges be handled promptly according to the grievance procedure.
… If the employee is found to have been unjustly dealt with, he or she
will be returned to work by the Company with full pay for all time lost.

Art V—Seniority, § 3.E provides:

6
VOLUNTARY LAYOFF – When the Company decreases the work
force within a classification in accordance with the provisions of Article
V., Section 4.A. & C. [sic], senior employee(s) within that classification
may desire to volunteer for layoff, thus providing junior employee(s) in
that classification, in terms of plant-wide seniority, the opportunity to
work while the senior employee is laid off out of the Plant. The
“Voluntary Layoff” provision shall be available to an employee up to tow
[sic] (2) times per contract year. In order to provide for the administration
of the “Voluntary Layoff” provision, the following shall apply:

1. In the event that an employee(s) desire a “Voluntary Layoff”, they

shall complete a “Voluntary Layoff” form and submit it to the
Company. Completion of the form, and filed with the Company,
by the employee(s) shall be an acknowledgement by the
employee(s) of their desire to waiver their plant-wide seniority
rights and be laid off out of the Plant. The employee(s) will be
given a copy of the “Voluntary Layoff”.

2. In order for employee(s) “Voluntary Layoff” to be valid, the

employee(s) completed form must be on file with the Company
five (5) work days prior to all Layoffs within a classification.

3. Once the Company has received and filed employee(s) “Voluntary

Layoff”, it shall become and remain permanent and binding upon
the employee and the Company until the employee(s) request it be
removed, by employee(s) signature and date. Request for removal
from “Voluntary Layoff” must be on file at the Human Resources
Support Office at least five (5) work days before it is valid.

4. Upon processing a layoff, the Company will lay off the most
senior employee(s) within the respective classification … in terms
of their Plant-wide or Department seniority, who have submitted to
the Company, a “Voluntary Layoff”. In the event there are no
“Voluntary Layoffs” on file for a classification, the Company will
lay off the least senior employee(s) within the respective
classifications(s) according to their Plant-wide or Departmental
seniority.

5. Employees will be on Voluntary Lay-off for up to thirty (30)

calendar days, starting with the day following such lay-off.

7
 Employees layoff notices will have the date on which the
employee is required to return to work, and the Company is not
obligated to notify employees other than at the time of voluntary
layoff as indicated on the layoff notices. Employees not returning
to work will be handled under Sec. 8. A. 4.

6. At such time as the Company recalls all of the employees on

layoff, within a classification, those employees who are laid off out
of line with their seniority will be required to return to work.

7. Those classifications that are laid off other than by plant-wide

seniority, shall be included with those employee(s) who desire to
file with the Company a “Voluntary Layoff”.

8. The Company will not deny any employee(s) right to

unemployment compensation because of the “Voluntary Layoff”.

9. Employees returning from “Voluntary Layoff” will return to the

shift from where they departed.

10. Employees on “Voluntary Layoff” waive all bumping rights to

other classifications.

11. When an employee of voluntary lay-off status (a) signs his/her

name to be considered for a bid position AND (b) possesses
seniority placing that employee in line to be asked to try out for the
bid position, the company will make a ‘reasonable attempt to
contact’ that employee. ‘Reasonable attempt to contact’ is defined
as calling the employee’s last known telephone number for a
period of no more than three (3) working days to notify the
employee of their opportunity to try-out. If the employee cannot
be reached by telephone by the close of business on the third
working day, the employee’s name will be withdrawn. The
company will then proceed to the next eligible name on the bid
list.

Art V—Seniority, § 8 provides in pertinent part:

A. An employee shall lose seniority for the following reasons:

8
 2. An employee is discharged for just cause.

4. An employee fails to report for work for three (3) consecutive working
days when recalled by the Company by telephone, messenger, registered
mail, provided, however, that no employee shall lose seniority if failure
to report to work is caused by sickness or accident and the Company
Human Resources Office or employee’s Area Leader is notified within
three (3) consecutive working days of this condition.

B. Employees must notify the Company of their proper name, post office
address, or change of name or address. The Company in turn will forward
such information to the Union. The Company will rely upon the last
name and address submitted to it by an employee. It is the responsibility
of the employee to notify Elkton Business Unit Human Resources of one
(1) contact telephone number.

Art VI—Hours And Wages, § 2.C provides:

No claims for back wages shall exceed the amount of wages the
employee would otherwise have earned at his or her regular rate of pay
less any unemployment compensation he or she may have received
during the period in question.

Art IX—General, §§ 3.A & B provide:

A. The Union recognizes the right of the Company to manage its

business and to direct and supervise the work force to meet its operational
requirements, and to conduct its operations in a safe and effective
manner. It further recognizes that it is the responsibility of the Company
to maintain order, discipline, and efficiency in its plant, to hire
employees, and to discipline and discharge employees for just cause.

B. These rights are subject to the provisions of the Agreement.

III. The Positions Of The Parties

The Union claims that Grievant has been on voluntary layoffs before and

never has been called back early. He did not have actual knowledge of the

9
recall. The Company made no effort to send a messenger to his house, as

described in the CBA. Although Grievant may not have kept the Company

informed of his correct phone number, the Company had an emergency contact

through whom Grievant could have been reached.

The Company employee who was involved in the effort to notify

Grievant should have told him about the recall when the employee encountered

Grievant in the restaurant on September 2, 2005. Had the employee done so,

Grievant would have returned to work timely. In the absence of countervailing

information, Grievant justifiably relied on the return date specified by the

Company in the layoff notice and in fact returned to work by that date. Under

these circumstances, Grievant’s discharge was unjust, and he should be

reinstated with seniority, back pay and benefits.

The Company counters that the fault lies solely with Grievant for not

providing it with a current phone number, as expressly required by the CBA.

Had Grievant informed the Company where he could be contacted in the UP,

the Company would have contacted him there. The Company went by the recall

book and treated Grievant just like it does other employees. It would have been

discriminatory to go through his emergency contact, since the Company does

not do that for other employees. The situation is clearly governed by express

provisions of the CBA, which call for discharge.

10
 IV. Discussion

This is a difficult case for the arbitrator, because neither party is

blameless. It is made more difficult because of a lack of specificity in the

contract provisions. The Union comments on this latter point in its Brief @ 5:

The fact that Doug failed to change his phone number is not by itself
cause for termination. The contract does not specifically lay out any
penalty for failing to update contact information. (Emphasis supplied.)

Thus the arbitrator is faced with the task of weighing the equities in a case in

which all of the details are not spelled out in the labor agreement.

In reaching a decision in this case, the arbitrator relies heavily upon his

reasoning in a previous case in which many of the issues pertinent here were

addressed. Unfortunately the opinion in that case was not published at the

request of a party, presumably because of the many missteps recited in the

opinion. To respect the request for privacy, the case is referenced as Union X

and Employer Y, or simply X and Y; a redacted copy has been furnished to the

parties in the instant case. The pertinent facts were as follows:

IV.A. The Case Of Union X and Employer Y

An employee was suspended temporarily pending an investigation into

his possible misconduct. When the employer sought to countermand its action,

it had great difficulty contacting the employee, who had left town. Following

numerous unsuccessful attempts to reach the employee by telephone, the

11
employer sent him a certified letter, stating in pertinent part:

Your Department Management has made multiple attempts to contact

you for a discussion regarding your return to work. To date you have not
replied.

With this letter I am placing you on notice to make an appointment with

me within three (3) days of delivery of this letter. The purpose of this
appointment is to discuss your employment status. If you do not make
and keep an appointment with me, within three days, your employment
will be terminated. (Emphasis supplied.)

It was undisputed that, although notices of delivery attempts were left at the

employee’s residence by the Postal Service, the letter was not in fact delivered

but was returned to the employer.

The employer defended on the basis that the employee had failed to

provide it with his current phone number and that its numerous attempts to

contact him or leave a message on his answering machine were unsuccessful

solely for that reason. The employer also interposed its good-faith efforts to

contact him by certified mail.

The arbitrator addressed these defenses as follows:

The [employer], of course, contends that it was unable to contact [the

employee] through no fault of its own. However, the [employer] has had
his phone number in its records for years, albeit in its medical
department. An employee’s telephone number is not part of his protected
FMLA [Family and Medical Leave Act] medical records; i.e., not part of
his “medical certifications, recertifications or medical histories” within
the meaning of 29 CFR § 825.500(g). Moreover, [the employee’s]
FMLA Tracking Form …, on which that number clearly appears,
contains no medical information whatsoever. All any supervisor or the
[Employer] Officer had to do was call medical and get the number. …

12
 (Emphasis in original.)

The [employer] makes much of its efforts to contact [the employee] by

certified mail and draws inferences from notations on the returned
envelope, which are better characterized as mere suppositions. … The
arbitrator respectfully declines to draw inferences from the returned
envelope because no witness had any personal knowledge of its handling.
The important point is that it never was delivered, and the letter inside
expressly conditioned [the employee’s] responsibility to contact the
[employer] upon actual delivery. (Emphasis supplied.)

The [employer] might have had a stronger case had it sent both a certified
letter and a copy by first class mail, or sent the letter by first class mail
and requested confirmation of delivery. Had the [employer] done so …,
[the employee] might have received the letter when he returned home the
next day. Sending it by certified mail alone served only to delay
communication under circumstances in which the [employer] had some
reason to believe that [the employee] might not be there to sign for
certified mail. In any event, [the employee] never received the letter, and
that is the operative fact in this arbitration.

While mindful of the adage that “[a] foolish consistency is the hobgoblin

of little minds”2 and that “being consistently wrong can hardly be sanctioned as

right,”3 the arbitrator believes that rational consistency is an important aspect of

the integrity of arbitration. Without it, arbitration is a crap shoot. With it, the

process is somewhat predictable. Therefore, the arbitrator strives to achieve a

rational consistency in this and the X and Y case.

IV.B. The Company’s Letter

As in X and Y, Grievant’s termination expressly was conditioned upon

his actual receipt of the Company’s letter:

2
Ralph Waldo Emerson, Self-Reliance
3
Dennard v Richards Group, Inc, 681 F2d 306, 318; 3 EBC 1769, 1779 (CA 5, 1982)

13
 Failure to respond within 3 days of receipt of this letter, will result in your
termination of employment. CX 9; emphasis supplied.

Also as in X and Y, it is undisputed that Grievant did not receive the letter.

Consistency requires that similar decisions be rendered in both cases.

Here, Grievant’s failure to receive the letter can be attributed to the

Company’s unilateral decision to restrict delivery to Grievant himself, as only

registered mail is mentioned in the CBA, which says nothing about restricted

delivery. The Company’s own Recall Contact Procedure (CX 6) likewise calls

only for certified mail but not for restricted delivery. While the arbitrator agrees

with Arbitrator Walt in the Predecessor Case, infra, that there is no substantive

distinction between registered and certified mail for purposes of compliance

with the contract, restricting delivery to the addressee alone makes a significant

difference in the likelihood that he will be timely notified of a recall. Because of

the explicit restriction on delivery, the Postal Service was not authorized to

deliver the letter to Grievant’s wife, who in turn could not accept delivery for

him.

The Company’s lengthy brief is conspicuously silent on this pivotal

point. Though the Company in its Brief @ 9 cites Stroh Brewery Co, 92 LA 930

(Berquist Arb 1989), it fails to note the applicable contractual language from

that case, which expressly addresses the issue presented here:

Notice of recall shall be given by direct contact, telegram, or by

14
 registered mail (return receipt from addressee only) to the employee's last
known address. Id. @ 930; emphasis supplied.

The contract in the instant case contains no such language. Ironically, just as in

X and Y, the Company could have finessed the issue simply by sending a copy

of the letter by regular mail at a cost of only 37¢.

The Company seeks to cast suspicion, if not blame, on Grievant’s wife,

with regard to the letter (Company Brief @ 20). The difficulty with this tactic is

that it lacks evidentiary support. Although a blank postal notice was introduced

(CX 13) and although the form does have a block for Sender’s Name, the actual

notices were not introduced, and there was no evidence that the Company’s

name appeared on the notices left with the wife.

Moreover, even if the wife saw the actual Company envelope (CX 9),

there is absolutely nothing on it to suggest any sense of urgency regarding its

contents. It was not marked “recall notice”, “urgent”, “immediate action

required”, or in any other way to indicate that the letter was time-sensitive.

Grievant previously had taken a number of voluntary layoffs and never had

been recalled. There are many reasons other than recall why an employer might

send an employee a certified letter that is not time-sensitive; e.g., an important

letter informing an employee of vested pension benefits. Thus, there is

insufficient evidence to place any blame on Grievant’s wife, who was not called

as a witness by either party.

15
 However, the arbitrator does agree with the Company, that Grievant’s

testimony about his wife’s role was suspicious (Company Brief @ 20). Grievant

initially testified that his wife went up north with him, but after a break in the

hearing, he recanted and testified that she remained at home the whole time.

Like the Company, the arbitrator draws negative inferences from Grievant’s

performance on the witness stand and factors it into the remedy.

Although it is undisputed that Grievant himself violated the CBA by

failing to furnish the Company with a current phone number, the Company had

an emergency contact number for him, through which he might have been

reached. As in X and Y, the Company’s rationale for not using all available

information in its efforts to contact Grievant before firing him simply does not

withstand scrutiny. At the very least, the situation constituted a financial

emergency for Grievant, who testified that he never would have volunteered for

layoff had he known that he was going to lose his job.

For the foregoing reasons, the balance of liability must rest with the

Company. However, Grievant’s culpability will factor heavily into the remedy,

as neither he nor his Union presents any excuse for his failure to furnish the

Company with a current telephone number for direct contact with himself.

IV.C. The Case Between The Parties’ Predecessors

Without objection by the Company, the Union introduced a copy of the

16
Arbitration Opinion And Award (UX 3) in Local 628, Allied Industrial Workers

of America, AFL-CIO and Active Industries, Inc (Walt Arb 1977) (“Predecessor

Case”), a similar case between the parties’ predecessors, involving the very

contractual provision from which the current provision is derived.4 The decision

on liability in the instant case is consistent with that in the Predecessor Case, the

essentials of which are excerpted below, inasmuch as the opinion is

unpublished:

Grievant’s separation was effected under Article V, §9 (a) (4), which

states:

SEC. 9. (a) An employee shall lose seniority for the following

reasons: …

(4) An employee fails to report for work for three (3) consecutive
days when recalled by the Company by telephone, messenger,
registered mail or telegram … .

[The grievant] was laid off on February 25, 1977. On March 16, 1977,
the following recall notification was mailed:

This is to advise you to report for work at 3:00 P.M., March 17,
4
On the website maintained by the Elkton Chamber of Commerce, www.elktonchamber.com, the corporate
succession is explained as follows:

1945 Active Industries Inc began shipping metal stampings out of Elkton. At the time it was expected
to employ 50-60 men and women. Today the company employs over 750. Henry Drettmann was the
founder and owner of the company. The company was sold and changed names in the late ninety’s. The
plant now operates under the name Tower Automotive.

The hearing in this matter was held at 81 Drettman Drive.

The union succession is more complicated but is described at http://en.wikipedia.org/wiki/Paper,_Allied-

Industrial,_Chemical_and_Energy_Workers_International_Union. The merger of PACE and United Steelworkers
of America was announced just prior to the effective date of the CBA. The union now is known as the United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International
Union, abbreviated as the "United Steelworkers" or by the acronym USW. For the sake of simplicity, the arbitrator
continues to use PACE. See also Company Brief @ 1, n 1.

17
 1977 (Thursday) (2nd shift). You are being recalled as a Production
Operator.

An attempt was made to contact grievant by telephone Wednesday,

March 16, but he could not be reached.

The letter of recall was sent on March 16, 1977, by certified mail. The
certified receipt was signed by Betty Emmons, whom grievant testified is
his sister. When grievant did not report for the second shift on Thursday,
March 17, Friday, March 18, or Monday, March 21. He was separated
from employment on Tuesday morning, March 22, 1977.
…
It is essential, however, that the notice required under §9 (a) (4) be
accorded an employe and the Company may not affect his or her
separation in the absence of specific compliance. … Where a registered
letter … is directed to the address provided by the employe, that
notification is sufficient and fully complies with the contractual mandate.
…
[R]esolution of the grievance issue here is determined by the fact that the
recall notice was not delivered to grievant’s address of record. The
grievant testified, and it is not disputed by the Company, that his sister
resides at a different and separate residence from his; that while both
premises are located on the same parcel of land, the buildings are
separate as are the mailboxes. A notice delivered to the wrong address,
even though in close proximity, constitutes no notice at all if not actually
received, and it is immaterial that the individual receipting for the notice
is a close relative. Had grievant’s wife accepted the certified letter, that
notification patently would have been sufficient. Or had grievant’s sister
lived at his residence, and not in the separate home of his parents, the
receipt of the certified letter by her also would have complied with
Article V, §9 (a) (4). But an employe cannot be charged with the receipt
of a recall notice where it is delivered to an address other than that which
had been provided, even though properly addressed by the Company.
(Emphasis in original.)

VI. The Decision

Despite some differences between the Predecessor Case and the X and Y

case, they seem to suggest the following principle: An employee may not be

18
terminated for failure to report back timely upon recall from layoff unless (i) he

receives notice of the recall as specified in the contract; cf. Predecessor Case, or

(ii) unless his failure to receive such notice is entirely his own fault; cf. Riverside

Markets, 110 LA 297 (Harlan Arb 1998). While it is true that Grievant is not

blameless, it seems unduly harsh to impose the ultimate penalty of termination

upon him. The Company did not have to restrict delivery of the recall notice; it

could have sent a messenger to Grievant’s house; and its employee could have

notified Grievant in the restaurant. On balance, the scales of justice seem to tip

in Grievant’s favor; his culpability can be factored into the remedy.

The Company suggests that it would have been inappropriate for its

employee to have informed Grievant about his termination in the restaurant

(Company Brief @ 17-18), but that suggestion overlooks the timeline. The

unrefuted testimony was that the chance meeting took place at lunch on

September 2. Grievant was recalled to the second shift (CXs 5 & 8), which

would not have begun until later in the afternoon (CBA @ 22-25). Thus, the

Company would not have yet decided to terminate Grievant, since it could not

do so under the contract until he failed to show up later that day. Thus, the

employee could not have told Grievant about any termination.

However, the employee most certainly could have told Grievant that he

had been recalled, as that had been the employee’s work assignment earlier

19
during the course of the events in dispute. Had the employee done so, Grievant

could have returned to work within the 3-day grace period afforded by Art V, §

8.A.4. Thus, the Company’s suggestion misses the mark; the Union hits it.

Union Brief @ 8.

The only possible impediment to an equitable remedy is the language of

Art IV, § 6.A, which seems to implicate just cause principles:

It is important that complaints regarding unjust or discriminatory layoffs

or discharges be handled promptly according to the grievance procedure.
… If the employee is found to have been unjustly dealt with, he or she
will be returned to work by the Company with full pay for all time lost.
(Emphasis supplied.)

Fortunately, a case cited and followed by Arbitrator Walt in the Predecessor

Case provides a solution.

In that case, Midland-Ross Corp, 49 LA 283, 287 (Larkin Arb 1967), the

arbitrator held that, in the presence of contract provisions seeming to distinguish

between a disciplinary discharge (e.g., CBA, Art V, § 8.A.2, discharge for just

cause) and discharge for another stated reason (e.g., CBA, Art V, § 8.A.2,

failure to return timely when recalled), just cause is not an issue. This arbitrator

follows Arbitrators Larkin and Walt and holds that just cause principles are not

applicable to the instant case, so that Art IV, § 6.A does not compel the award of

backpay. Grievant was not treated unjustly, just erroneously.

While seeking to distinguish the Predecessor Case (Company Brief @

20
18-19), the Company does agree that the just cause issue was correctly decided

there and cites Stroh Brewery, supra, in further support (Company Brief @ 9).

Indeed, in a case decided just May 1, 2006, the arbitrator himself noted the

distinction between a disciplinary discharge effected for just cause and a

discharge for violation of a specific contractual provision, and upheld the latter.

The arbitrator does, however, differ with the Company’s reading of the

Predecessor Case, insofar as the Company suggests that the letter in that case

was misaddressed (Company Brief @ 18-19). Rather, the arbitrator reads it as a

case of misdelivery (“But an employe cannot be charged with the receipt of a

recall notice where it is delivered to an address other than that which had been

provided, even though properly addressed by the Company.”).

Throughout its Brief, the Union champions just cause, a doctrine which

the arbitrator rejects as inapplicable here for the reasons explained. The Union

does go on to focus on the essence of the case:

The penalty for failure to respond “when recalled by the Company by

telephone, messenger, registered mail” is plainly laid out in the
agreement in Article V-Seniority on pages 18 and 19. The problem here
is that in order to respond to a recall an individual must first be contacted,
by one of the above methods, in order to be aware of the recall. In Doug’s
case this did not happen. Since there was no contact there was no failure
to respond … . Union Brief @ 6.

VII. The Remedy

With the just cause hurdle cleared, the arbitrator can formulate what he

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perceives to be an equitable remedy under the facts of this case. Grievant is to

be reinstated without loss of seniority. The CBA, Art IV, § 5.C requires the

arbitrator to determine “the losing party” and to assess arbitration costs

accordingly. That will be the Company. However, because of Grievant’s own

culpability, he is not awarded backpay or lost benefits. He has long held two

jobs, so that he has not been penniless since his loss of one of them.

In addition, because of Grievant’s poor attendance record (CX 15) and

questionable testimony, a further condition is placed upon his reinstatement: For

the duration of the current contract, in each contract year, Grievant is to be

treated as if he already has had four (4) unexcused absences, just as he did when

he was terminated. See CBA @ 56 (authorizing termination for a total of 7

unexcused absences in a single contract year), Company Brief @ 21. That is to

say, if Grievant has three (3) more unexcused absences in any contract year for

the duration of the contract, the Company may terminate him.

The arbitrator has found such conditions reasonably necessary in cases of

problem employees seeking reinstatement, to help ensure that reinstatement is a

workable remedy; see, e.g., SEIU Local 79 and United Methodist Retirement

Communities, 32 LAIS 270 (Arb 2004) @ IX-339, citing Hill & Sinicropi,

Remedies in Arbitration (BNA 2nd ed 1991) @ 146-147, 154-156.

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 VIII. The Award

For the foregoing reasons, the grievance is SUSTAINED IN PART AND

DENIED IN PART. Grievant is to be reinstated without loss of seniority but

without backpay or lost benefits. For the duration of the current contract, in each

contract year, Grievant is to be treated as if he has had four (4) unexcused

absences; upon accumulation of three (3) more in any one contract year, the

Company may terminate him. Costs of the arbitration are assessed against the

Company.

Dated May 15, 2006

_____________________________
E. Frank Cornelius, Arbitrator

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