Nabisco Brands, Inc. and American
Federation of Grain Millers, Local 58
Harry J. Dworkin, Arbitrator. Award issued Jan 14, 1991
ISSUES
Discipline Fighting-- Profanity--Suspension
RELEVANT CONTRACT PROVISIONS
Article 24 of the collective bargaining agreement sets forth the Principal Company
Rules, including the rule against fighting:
132. For the benefit of all employees, we are listing below items which constitute infractions of some existing rules and regulations:
4. Fighting on Company property.
Some employees have been careless in observing these rules, and, in the future, all employees will be required to strictly observe all plant rules. Any employees who deliberately violate any plant rules will be liable for disciplinary action.
FACTS
The Company operates a flour mill in Toledo, Ohio, with a work force that includes approximately 150 bargaining unit employees. An incident occurred on October 4, 1988, which involved two employees, R and B (who is the grievant), both of whom were assigned to the Maintenance Department. The evidence establishes that employee R, with some 18 years of service and an otherwise favorable work record, had attended an apprenticeship meeting, where his work performance was the subject of evaluation. It appears further that R had been subject to criticism and had received a less than favorable evaluation, which caused him to be demonstrably upset and even angry. Following the meeting, R returned to the Maintenance Dept. and approached B who was at the time engaged in performing his assigned tasks. The evidence indicates that as R entered the area, he addressed grievant B, but that the latter did not immediately respond. R then stated Ive said hello to you twice and you didnt respond. B is alleged to have responded to R with the following verbiage:
Well, I didnt hear you, and any way, tough s____ . Go f___ yourself.
R appeared to be deeply offended, or angered by Bs response. R aggressively approached B and directed one or more blows towards B, knocking him to the floor. One or more punches landed in Bs face; however, B did not actively engage in the physical altercation, nor did he strike back. Upon learning of the altercation in the Maintenance Dept., an investigation was conducted, pursuant to which management determined that both employees R and B had engaged in misconduct, in violation of a plant rule that prohibits fighting on Company premises. Inasmuch as R was adjudged the aggressor, he was subject to a 60 day suspension, without pay. B was assessed a five day disciplinary suspension on the grounds that he engaged in misconduct in directing obscenities towards R which, under the circumstances, were calculated to further anger R and accounted, in part, for Rs violent response towards B. Management represented at the arbitration that R was not discharged for fighting in violation of the plant rule, inasmuch as he acted under provocation on the part of B. Management determined that B was not entirely blameless and that his use of gross obscenities of an inflammatory nature towards R was designed to induce violence.
Under all the circumstances, management determined that a five day suspension by reason of Bs provocation and failing to avoid the violent behavior of a fellow employee, constituted just cause for discipline. A grievance was filed by B, which was denied. The answer of the foreman consisted of the following: disciplinary suspension for fighting on the job was warranted. Grievance denied.
POSITIONS OF THE PARTIES:
THE COMPANY
The Company maintains that the five day disciplinary suspension meted out to the grievant was warranted, and for just cause; the penalty was corrective in its purpose, and commensurate with Bs misconduct, including directing obscene language towards a fellow employee R, and in failing to retreat or to act in a prudent manner so as to avoid, or lessen the violent behavior on the part of R. Pursuant to managements version of the occurrence on October 4, 1988, in the Maintenance Dept., R had returned from the apprenticeship meeting, and was engaged in discussing with two other employees concerning his treatment, and evaluation. In the course of the discussion, R expressed the opinion that he had been unfairly evaluated and manifested a high degree of disappointment and even anger. It is represented further that grievant B approached R and the two other employees and butted in, stating to R you are just f___ing mad at how they [apprenticeship training committee] evaluated you. In response, R approached B breast to breast and nose to nose. B, however, continued to use profane language towards R. R represented to management that he saw B flinch, and thought B was getting set to strike a blow. R thereupon struck B in the face, and B fell to the floor. Later that afternoon, R, apparently realizing that he had acted improperly, apologized to B and asked him to forgive him.
R acknowledged during the course of the arbitration hearing that he was angry and upset when he returned to the Maintenance Dept. R admitted further that the obscene language used by B was frequently used throughout the shop and constituted shop talk. Pursuant to Rs testimony, he stated to B that I would appreciate it if you wouldnt speak to me that way, thereby indicating that he objected to Bs use of profanity, and obscenity towards R. R testified further that B had provoked him and failed to heed his request that he refrain from directing profane remarks towards R, which request B ignored and continued cussing at R, stating: I dont f___ care what you want, at which point, R approached and struck B in the face one or more times. The use of profane language was contrary to Rs religious and moral beliefs, as expressed during the arbitration hearing. R testified further that B must have known of Rs objection to profane language, which was of long standing, and of which his fellow employees were well aware.
Under the circumstances, B was considered as having engaged in provocative behavior towards R and that his misconduct warranted a measure of corrective discipline. Included in the improper behavior attributed to B was that he should have refrained from continuing to use obscene language and should have complied with Rs request that he discontinue directing offensive remarks toward him. The Company feels that Bs provocative language and his over-all behavior under the circumstances, fall under the umbrella of the rule against fighting on Company premises, for which discipline was warranted. The penalties assessed against each were deemed reasonable, and for just cause, notwithstanding that neither employee had previously been disciplined, and both had favorable work records.
The UNION
The Union points out that the plant rule is confined to fighting on Company premises, there being no rule that prohibits use of obscene language by employees. Accordingly, inasmuch as B was not the aggressor, and did not engage in any physical combat with R, his behavior did not warrant any discipline whatsoever. The use of profane language is commonplace and in the nature of shop talk, for which no discipline is warranted. Moreover, B retreated in an effort to avoid Rs aggressive behavior; he kept backing away from R and at no time struck R. Accordingly, B was not subject to any discipline, notwithstanding R may have objected to Bs use of obscene language. By reason of all the circumstances, including the fact that there is no rule that prohibits the use of profane language, and the fact that the grievant B was not charged with fighting in violation of the rule, his behavior did not warrant any discipline, by reason of which the suspension should be expunged from his personnel file, together with reimbursement for lost wages.
QUESTIONS
1. Do you think that Bs behavior falls under the umbrella of the rule against fighting on company premises? Explain.
2. Is the disciplinary action taken toward B justified?
3. Do the facts that there is no rule that prohibits the use of obscene language and the fact that this language is commonplace (shop talk) give any merit to Bs case?
4. How would you decide this case? Why?