FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 00-02983

PACE LOCAL NO. 5-0731,

Union,

and

THE MEAD CORPORATION,

Company.
________________________________/

OPINION OF THE ARBITRATOR

March 15, 2001

After a Hearing Held February 6, 2001

At the Mead Paper Mill in Chillicothe, Ohio

For the Union: For the Company:

John W. Allen L. Gene Bussa
International Representative Manager, Human Resources
PACE International Union The Mead Corporation
3617 Lick Run Road PO Box 2500
Chillicothe, Ohio 45601 Chillicothe, Ohio 45601
 The Issue Presented

The issue presented by stipulation (JX 6) is the following:

Was the discharge of [Grievant] for just cause and if not what shall
the remedy be?

The issue must be decided within the factual context described below.

Threshold Issue of Recording the Hearing

Historically the arbitration hearings between these parties have been

recorded and transcribed by a court reporter, at the Company’s expense, a

custom which the Company recently discontinued. Before the hearing in this

matter began, the Union expressed its desire to tape record the hearing, to

which the Company objected. The arbitrator, in favor of any procedure

which results in more accurate fact finding, allowed the Union to record the

hearing, with the proviso that it furnish the Company and the arbitrator with

a copy of the tape recording and any transcript which might be produced

from the recording.

Confronted with the same issue in AFGE Local 1629 and VA Medical

Center, 87 FLRR 2-1190, LAIRS 17778 (Cornelius Arb 1987), the

arbitrator wrote:

In this case, the arbitrator allowed the union to record the

proceedings, provided only that the union make the recording
available to the VA. Accuracy is essential to due process and the

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 availability of a tape recording promotes accuracy in briefing and
decision making.
Although the arbitrator found that the collective bargaining agreement in VA

Medical Center authorized recording, it should be allowed unless expressly

forbidden by the labor contract.

Background

The Mead Corporation (“Company”) operates an integrated paper-

making and converting facility in Chillicothe, Ohio, at which production

and maintenance employees are represented by Local No. 5-0731 of the

Paper, Allied-Industrial, Chemical and Energy (“PACE”) Workers

International Union, AFL-CIO, CLC (“Union”). Relations between the

Union and Company are governed by a Labor Agreement effective August

1, 1995 (JX 1).1 The issue presented arose out of Grievant’s conduct on

June 3, 2000, and June 28, 2000.

On June 3, 2000, Grievant was working as a utility employee on a 12-

hour shift (UX 2), which began at 7:00 p.m. and ended at 7:00 a.m. the

following morning; his regular third shift ran from 11:00 p.m. to 7:00 a.m.

On one or more occasions during the third shift, Grievant’s supervisor asked

him to attend to certain rolls of paper which had been assigned duplicate

1
The Labor Agreement was executed by the United Paperworkers International Union, AFL-CIO-CLC and
its Local No. 731. United Paperworkers subsequently merged with the Oil, Chemical and Atomic Workers
International Union, to form PACE.

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identification numbers as the result of a computer glitch in some new

equipment. Grievant complained that the problem rolls were not his

responsibility, but the supervisor explained that Grievant must help out on a

temporary basis until the problem was resolved.

During the third shift, the supervisor observed that Grievant did not

seem to be particularly busy. By the end of the shift, Grievant had not

assisted with any of the problem rolls, claiming that he did not have time,

even though only 5 or 10 minutes would have been required to move a roll.

The supervisor reported Grievant’s conduct to other managers and, after a

meeting with the Union on June 9, 2000, Grievant was suspended for

loafing, pending further investigation by the Company (UX 3). Under the

Labor Agreement, loafing is punishable by discharge, as a fourth Group I

offense.2 Loafing would have been Grievant’s fourth such offense, as he

previously had been disciplined twice for failure to notify when absent

(Group I, Rule 7) and once for inefficiency (Group I, Rule 1). See JX 3.

The Union filed a grievance over his suspension for loafing, Case No.

00/199 (JX 5). By June 21, 2000, the Company had decided to offer him the

opportunity to return to work under a last-chance agreement. When the

Company’s efforts to contact Grievant proved unsuccessful, the assistance

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of the Union President was solicited. The Union President ascertained that

Grievant was in Colorado on a trip which had been planned back in April.

There ensued a series of telephone calls between Grievant and the

Company’s Manager of Human Resources.

The HR Manager made the Company’s offer of a last-chance

agreement subject to two conditions:

(1) That Grievant and the Union sign a written last-chance

agreement, which the Union indicated it would do; and

(2) That Grievant report back to work at his scheduled time.

Under normal circumstances, Grievant would have been scheduled to report

back for his regular, 8-hour shift at 11:00 p.m. on Wednesday, June 28,

2000. However, the work schedule for the week of June 26, 2000 was

revised on June 23, 2000, to require Grievant and others to work 12-hour

shifts, so that Grievant’s return time was changed to 7:00 p.m. on June 28,

2000 (CX 1). Such schedule revisions occur frequently at the Chillicothe

mill.

A message about the schedule change was left for Grievant on June

24, 2000 (UX 1), and he learned of the new return time on or before June

26, 2000. He informed the HR Manager that he was having difficulty

2
JX 1, Exhibit “A”, Company Rules, Group I, Rule 2. Under Article XX, Company rules are part and
parcel of the Labor Agreement.

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renting a truck on which to transport a pickup back to Ohio and asked about

the consequences of a late return. The HR Manager told Grievant that he

would be terminated if he reported late.

Grievant did not leave Colorado until 7:00 p.m. MDT, or 9:00 p.m.

EDT, on June 27, 2000, for the 24-hour trip back. About 10:30 a.m. on

Wednesday, June 28, 2000, Grievant telephoned the HR Manager and

informed the Manager that he was is Kansas City, Missouri. The Manager

expressed doubt that Grievant would be back on time and told Grievant that

the Manager could do nothing more for him if he were late.

Undeterred, Grievant telephoned the coworker whom he was to

replace and obtained the latter’s consent to rearrange their work schedules,

so that Grievant would not need to report until 11:00 that night. The

coworker completed a time trade slip and got it approved by the day-shift

supervisor (CX 2), who was unaware of the terms of the Company’s offer of

a last-chance agreement. Later that afternoon, the Union President learned

of the time trade and innocently mentioned it to the HR Manager, who

alerted the night foreman not to allow Grievant into the mill after 7:00 p.m.

When Grievant arrived about 10:30 p.m., he was refused entry and sent

home.

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 Grievant was terminated by letter dated June 30, 2000, which stated

in pertinent part:

On June 9, 2000, you were suspended pending investigation

concerning the events that transpired during third shift on June 3,
2000. …
The decision to terminate you is based on the prior discipline
that caused your original suspension on June 9, 2000, as well as,
your being absent for other than a satisfactory reason on Wednesday,
June 28, 2000 for your scheduled 7:00 p.m. to 7:00 a.m. shift which is
your fifth Group I rule violation. JX 4 @ 1, 2; emphasis supplied.

The instant grievance over the termination, Case No. 00/222, was

filed July 5, 2000, and denied by the Company at successive steps in the

grievance procedure (JX 2). The Union then demanded arbitration of case

No. 00/222. After a hearing at the mill in Chillicothe on February 6, 2001,

and subsequent briefing by the parties, the matter is ripe for decision.

The Grievances

In its opening statement delivered both orally and in writing, the

Union took the following position:

… [Grievant] then filed grievance 00-222 protesting that

discharge. [Grievant] had previously filed grievance 00-199
protesting his suspension on June 9, 2000.
The Union would agree the two grievances are properly before
the Arbitrator. …

The Union reaffirmed this position in its brief.

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 Although only Case No. 00/222 is mentioned in the title of the

Company’s opening statement, which likewise was delivered both orally

and in writing, the Company went on to assert:

The instant dispute arises as the result of the aggrieved’s

actions and behavior on June 3, 2000 and June 28, 2000.
The Company intends to establish through direct evidence that
the aggrieved engaged in behavior during the third shift on June 3,
2000 that represented loafing on the job, a violation of the mutually
agreed-to work rules in Group I that appear in the body of the
Collective Bargaining Agreement. This violation represents a fourth
violation for which the agreed-to penalty is discharge. (Emphasis
supplied.)

Thus, the text of the Company’s statement encompassed the conduct

involved in both grievances, as did its notice of discharge (JX 4). The

grievances are inextricably intertwined, and the Company at least implicitly

agreed with the Union about the proper scope of the arbitration. For these

reasons, both grievances are resolved in this single arbitration. See Labor

Agreement, Article XIV, Section 5.D (“mutually agreed”).

Discussion

Since termination of employment is the ultimate punishment in the

industrial world, clear and convincing evidence may be required to

uphold it.3 Because the parties have stipulated that the arbitrator may

3
In Elkouri & Elkouri, How Arbitration Works (ABA/BNA 5th ed 1997) @ 905-906, the authors comment
that, although there is general agreement that the burden of proof in a discharge case is on the employer, the

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impose a lesser penalty, the record has been searched for equities in favor of

Grievant, but none has been found. It does not appear that Grievant was

destined to retire from the Company. Indeed, it does not appear that a career

with the Company ever was one of his priorities.

In the barely three years Grievant was with the Company as a

permanent employee, he amassed an unenviable disciplinary record,

including a 30-day suspension for reporting off sick while in truth serving

time in jail. In the Company’s second step answer in case No. 00/222 (JX

2), Grievant is described as follows:

The grievant in this case has, for a short service employee,

perhaps the worse [sic] disciplinary record of any employee of the
Company.

He has been disciplined for numerous infractions including

several suspensions without any apparent effort on his part to change
his behavior.

It clearly appears that, in April of 2000, well before the events in

question, Grievant planned his trip to Colorado without making, or

intending to make, arrangements to cover his job responsibilities. That is,

even putting aside the events of June 3, 2000, Grievant was planning to take

an unauthorized absence from work, conduct which would have added yet

another blot to his already badly stained disciplinary record. Grievant’s

standard of proof is unsettled. In the absence of a firm standard, the arbitrator observes that the Company’s

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termination seems predestined, so that upholding his discharge is little more

than a concession to the inevitable.

The supervisor who observed and reported Grievant’s conduct of

June 3, 2000, reviewed production records and concluded that Grievant

could have performed at most 6 hours of work during the supervisor’s 8-

hour shift that evening (11:00 p.m.—7:00 a.m.). Even allowing for breaks

totaling less than an hour, Grievant had at least an hour to assist with the

problem rolls, a task which he failed and refused to do.4 Thus, there was

just cause for the Company to suspend Grievant on June 9, 2000, for

loafing. As previously explained, this fourth Group I offence was

punishable by discharge.

In its brief, the Union focuses upon Grievant’s conduct during the last

hour of his shift and seeks to discount his failure to assist with the problem

rolls, on the ground that the Company did not press a charge of

insubordination (JX 5). The difficulty with this reasoning is that Grievant’s

failure and refusal to assist with the rolls constituted loafing, regardless of

whether it constituted insubordination, at least when coupled with the

evidence satisfies a clear and convincing standard, and the Company so urges in its brief.
4
At the arbitration hearing, Grievant sought to excuse his behavior by suggesting that moving the rolls
would not have solved the equipment problem, which lingered at least through the date of the arbitration
hearing. Speculating about complex production problems was not Grievant’s job—moving the rolls with his
clamp truck was.

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supervisor’s review of production records and testimony regarding

Grievant’s activity, or observed lack thereof.

Equally clear and convincing is the evidence that Grievant failed to

accept the Company’s offer of a last-chance agreement. He could have

reported back to work on time but chose instead to risk his job for the sake

of a pickup truck. Grievant’s attempt to switch times with his coworker was

but a vain artifice to circumvent his agreement with the HR Manager, who

repeatedly told him that he must report by 7:00 p.m. The Union President

testified that Grievant left the President out of the loop and dealt directly

with the HR Manager himself. Thus, Grievant’s attempt to go around the

Manager at the last minute exhibited bad faith.

Award

With clear and convincing evidence, the Company had proved that

there was just cause for its suspension of Grievant in Case No. 00/199 and

for its discharge of him in No. 00/222. For all the foregoing reasons, the

grievances are DENIED.

Dated March 15, 2001

_______________________________
E. Frank Cornelius, Arbitrator

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