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Arbitration Decision

In re

Saint Gobain Norpro

[Tallmadge, Ohio]

and

United Steelworkers of America,

Local 1761-11

116 LA (BNA) 960

FMCS Case No. 010226/06676

October 16, 2001

Jerry A. Fullmer, Arbitrator *

This case1 concerns the discharge of the Grievant, H__, on January 3, 2001 for failing to remove the password from his work computer.

I. FACTS

A. Background Facts

The Company manufactures equipment for use in the distillation towers in the petroleum and petro-chemical industry. The plant involved is in Tallmadge, Ohio. The Union represents a unit of all employees in that plant. One of these employees, up until his discharge on January 3, 2001, was the Grievant. He had been employed by the Company for some five years at the time of the events in question. He was classified as a shipping/receiving attendant and worked on the first shift. The scheduled hours were 7:00 a.m. to 3:30 p.m.

The Company maintains a set of General Factory Rules and Regulations. There are some 31 prohibited actions and it is set out that:

“In each case, the disciplinary actions will be determined by:

Seriousness of the offense

Employee's overall employment record

Previous disciplinary actions”

Rule 11 provides that:

“Insubordination (including the refusal or failure to perform work assigned) is prohibited.”

The Grievant's past disciplinary record includes an incident on December 11, 1998 which was recorded by a memorandum of that date signed by Willie Edgerson, Production Supervisor:

“On Thursday 12-10-98 I was told H__ was parking his car in the office parking space. I ask H__ to please not to park his car in front of the office. H__ said I couldn't tell him to move or not to park his car in front of the office. H__ said only Al Williams the Plant Manager can tell him.”

There is no indication that this matter was grieved by the Union and/or the Grievant, even assuming that it could be.

B. The Facts Leading to the Grievance

The Company of course utilizes computers in its operations. Some of these control the operations of machinery such as CNC. Others are used in more administrative capacities such as the Company computer which the Grievant had in his work area for use in his shipping and receiving functions. It is possible to install passwords in these computers and it was such passwords which were at the center of the present case.

The events which led to the eventual discharge are essentially as follows:2 On December 18, 2000, on the second shift, supervision wanted to run some parts for the ISP on a punch. They attempted to run the equipment, but found that it had a password and could not be run without it. They were able to find the password (“asshole”) by calling a first shift computer programmer at home. The Grievant was not involved with this computer.

The following day a meeting was held between the Company (Manager Ford and HR Generalist Atkins) and the Union (Grafe, Gibbons, Johnson and Duncan) to discuss computers and passwords. The Company, seemingly alarmed by the impediment to production of the night before, communicated to the Union personnel that there should be no passwords on the computers. Apparently it came out in the course of this meeting that the Grievant as well had a password on his computer. Because of tensions involving the Union, or at least some particular members of the Union,3 and Mr. Ford, it was decided to ask Mr. Gibbons, a member of the Union Committee, to communicate the message to particular bargaining unit personalities, including the Grievant. The Company took the Union at its word and did not follow up on whether Mr. Gibbons delivered the message.

On December 21, 2000 there was a “broadcast message sent out to certain computers within the plant that said, `Can you help me, gay soldier boy.' ”The Company personages assumed that this message was probably directed at Manager Ford because of his prominent service in the military reserves. Mr. Ford and Union President Grafe had a discussion as to the computerology involved in sending such a message. Manager Ford went to the Grievant's computer and attempted to demonstrate, but could not because there was a password on it. President Grafe said “I'll talk to H__ [the Grievant] about it” and they then went to another computer to continue with the computerology.

On the beginning of the shift on December 22, 2000 there was supposedly a conversation between the Grievant and Supervisor Montgomery in which the Grievant asked Montgomery why “Ernie [Mr. Ford] wants into his computer so bad.”Supposedly Supervisor Montgomery asked the Grievant why he still had the password on his computer and the Grievant said “You're damn right it is. And I'm not taking it off until someone gives me or the Company gives me a good reason to do it.” The Holiday break ensued.

Mr. Atkins met with the Grievant on December 28, 2000 and asked him about the incident and whether he had anything personal on his hard drive. The Grievant was reported to have said “no”, but amended that to say that he had a “resume writer” on it. The Grievant reportedly admitted that he had been told by Mr. Gibbons to take the password off the computer. The Grievant denied the terms of the Montgomery-Grievant discussion as previously reported by Supervisor Montgomery. Eventually it was discovered that the Grievant's hard drive also contained a game entitled “Beachhead 2000” and that he had made unauthorized forays into the Internet.

On December 28, 2000, the Company filed an “Employee Disciplinary Report” in which the Grievant was given a suspension:

“H__ was told on Tue. 12/19/00 to remove the password from his work computer. The directive was conveyed by Karl Gibbons by agreement with the union committee. The password was still in place on Thurs. 12/21/00. On 12/22/00 H__ entered the supervisor's office and asked why management wanted on his computer. He was asked if there was still a password on the computer. He replied that there was and that it would remain in place until the company told him why they wanted into his computer.”

The Union's grievance on that subject was filed a few days later, on January 2, 2001:

“Employee was unjustly suspended for refusing to remove password on work computer. H__ claims that he removed password on Wednesday before suspension. He feels that he is being harassed by Norpro management.

Settlement requested in Grievance He be reinstated and reimbursed for any lost wages incurred, that his work record be clear of incident.

Agreement Violation Art. IV Section 1(A)”

The Grievant was discharged on the following day, January 3, 2001, in a seemingly undocumented action for the same reasons which led to his suspension. The Union's grievance ensued on January 7, 2001:

“Employee was suspended on 12/28/00 and then terminated on 1/3/01 for gross insubordination for refusing to remove a password from work computer after being informed by a Union official that Norpro management wanted it removed. Norpro management never followed up to situation even when management knew password was still on computer.

Settlement required in Grievance Reinstatement of job, any lost wages be made whole, any medical expenses incurred be made whole.

Agreement Violation Art. IV Sect 1(A)”

The grievances were processed through the steps of the grievance procedure to arbitration.

II. Potentially Applicable Contract Provisions

Article V Management Rights

Section 1. (A) The management of the plant and the direction of the working forces including the planning, direction and control of plant operations, the scheduling of work and the assignment of employees such work, the control and regulation of all equipment and other property of NCPPC, the methods, processes and means of manufacturing, the determination and the establishment of any new or improved production methods or facilities, the establishment and enforcement of reasonable rules of conduct, the right to maintain discipline and efficiency of all employees, and the right to hire, suspend, discharge, discipline for proper cause, transfer and relieve employees from duty because of lack of work are all vested solely and exclusively NCPPC. . . .

Article VIII Discharge and Suspensions

Section 1. (A) NCPPC may discharge or invoke a suspension against an employee for just cause; however, any employee claiming unjust suspension or discharge may appeal such suspension or discharge through the grievance procedure beginning with Article VII, Step 3 (Steps 1 and 2 being dispensed with) provided said employee has caused a written grievance to be presented to NCPPC no later than three (3) working days following the date of such suspension or discharge, failing which, the suspension or discharge shall be final and binding upon the Union, its members, and the employee involved.

III. Stipulated Issue

Was the discharge of the Grievant, H__, on January 3, 2001 for just cause? If not, what shall be the remedy?

IV. Positions of the Parties

The Company Position

The Company urges that the discharge of the Grievant was indeed for just cause. The Grievant was not discharged because he had a personal password on the Company computer, but because he chose to first ignore, and then defy clearly articulated directions to remove it therefrom. In addition he called his immediate supervisor a liar; denied that he had timely knowledge of the need to remove the password from the computer and denied having used the computer for personal reasons.

The Grievant had little respect for authority or truth. His position is inconsistent in that he claims that he did not have time to remove the password and, on the other hand, that he wanted confirmation of the seriousness of what Gibbons had told him. He claims that he learned of the seriousness of the Company's views on the password on the 21st. He claims that his own witness was lying on the point. The delay was caused by his insistence on talking to Ford before he removed the password. Mullet also indirectly challenged the direct examination of union official, Jim Grafe. The Grievant admits to seeing the note from Ford on the morning of the 19th. He fails woefully to describe why it took him an excess 48 hours to take the password off.

In accordance with the Company's rules and regulations (specifically rule 17), the Grievant's initial installation of a personal password on a computer and delay in removing same would not likely have been cause for discipline as serious as discharge. Eventually an investigation was pursued, and it was discovered that the Grievant had been engaged in prior incidents of defiance.

The Company would have been better served if it had not delegated to the communication function to the Union. But, there were reasons for this and the Union fulfilled its functions admirably. The Union does not challenge the reasonableness of the Company rules in this respect nor the importance which the Company put on the matter. The question is whether the arbitrator will permit an employee to get away with open, well-published defiance of a reasonable Company directive, especially when the Grievant's conduct was exacerbated by his repeated dishonesty throughout the investigation.

The Union Position

The Union maintains that there was not just cause for the Grievant's discharge. The Grievant's actions served to protect and conserve the intellectual and real property of the Company. The Grievant's only previous disciplinary infraction was for parking in the wrong place and that was just a note in the personnel file.

Both the Grievant and fellow employee, Mullett, put passwords on their computers so as to protect them from unwarranted entry by others. The Grievant was only notified to remove his password by the Union Grievance Committee Chairman, Gibbons. He is not an authorized representative of the management and the Grievant was never notified to do so by a management representative. The Grievant eventually removed his password on December 21, 2000, within an hour of the start of the business day. The Company then roared in with the computer technicians and removed the Grievant's hard drive.

When confronted on December 22, the Grievant emphasized that he had removed the password. The Grievant was discharged on January 4, despite the fact that the investigation had not been completed. The eventual analysis of the computer indicated that it did not have a password.

In concluding, the Union feels that the “gay little soldier boy” e-mail was offensive to the Grievant because of his military background. The Company has no written policy concerning the use of in-plants company computers. The Grievant was never given a direct order to instantly remove his password. The Company erred in relaying the message through a Union person. Eventually even the Company's computer experts found no basis for holding that there was a password on the computer.

The Grievant should be reinstated and made whole for all his losses.

V. Discussion

A. Introduction

The present case is a disciplinary one in which the Grievant was discharged on January 3, 2001 for actions which were described as “grossly insubordinate”. The discussion will be divided into the following subjects. It will first turn to the Company rule or rules involved. It will then turn to the Grievant's notice of the rule or rules involved. Then the discussion will treat the evidence offered to establish the violation of the rules. It will conclude, if necessary, with a discussion of whether the discharge penalty was too severe for the offense.

We turn to those issues in the order stated.

B. The Rule or Rules in Question

As indicated, the Company has a set of “Plant Rules and Regulations”. It has, as do most rules of this sort, a rule against insubordination:

“11. Insubordination (including the refusal or failure to perform work assigned) is prohibited.”

This is clear enough and the rule against insubordination is not contested by the Union, as such.

The matter of the password on the computer is a bit more obscure. There is no rule in the plant rules against employee's placing or maintaining a password on company computers. There were some overtones in the Union presentation and the Grievant's testimony that the Union felt that there were good reasons for employees to have passwords on their computers so as to protect employees against use of their computer by other employees who were unauthorized. For instance, there was testimony concerning an instance in which a somewhat bumbling employee had produced bad parts by getting into another employee's computer and operating “his” machinery and doing it badly. The overtone was that this reflected badly on the first employee because this had been done with “his” computer and machine.

But, the drift of this argument must be rejected. The Company owns the computers and, under the Management Rights clause (Article V), has the right to establish the conditions under which they are to be operated by employees. Whatever operational policies the Company establishes with respect to computers and passwords are to be followed by the employees in the bargaining unit.

The Company more or less concedes that prior to the events of this case it did not have any operational policies with respect to the use of passwords by bargaining unit employees. They were thus free to install such passwords. At the meeting on December 19, 2000 between the Company and the Union, the Company established an operational policy on the subject, i.e. “no passwords”. Under the Management Rights clause that policy came into effect.

We turn to communication.

C. Notice of the Rules and Policies

The Grievant may be charged with notice of the “Plant Rules” and its Rule 11 against insubordination. The Union does not maintain to the contrary.

Notice as to the operational policy against passwords is more complicated. At the end of the meeting on December 19, 2000 Union Committeeman Gibbons was delegated to tell the Grievant of the new operational policy, or more bluntly, to take the password off his computer. Mr. Gibbons testified at the hearing that he told the Grievant that he “did not need a password on his computer” in Mr. Gibbons' own words or “should not have a password on his computer...”, by answering “yes”to the words of his cross-examiner. Mr. Gibbons' testimony was that he was not sure whether his conversation with the Grievant was on the same day as the meeting (December 18) or the next day (December 19). The Grievant admitted in his testimony that he had been told by Mr. Gibbons that “I needed to remove the password off the computer.” His testimony was that this conversation took place on December 20, 2000 at about 3:20 p.m., i.e. near the end of his shift.

It seems then to be undisputed that the Grievant had some notice, through Union sources, of the Company's new operational policy at least by 3:20 p.m. on December 19.4 We turn now to the evidence of insubordination with respect to the new operational policy.

D. The Evidence Concerning the Claimed Insubordination Offense.

1. Introduction

It is not entirely clear whether the Company conceives of the Grievant's insubordination offense as essentially being his “dragging his feet”5 in removing the password from his computer or, alternatively, in bluntly refusing a direct order to remove the password. It appears to largely be the latter. This assumption is made because the “Employee Disciplinary Report” of December 28, 2000 speaks in terms of a “refusal”being “grossly insubordinate”. In any event, out of an excess of caution, both aspects should be considered.

2. “Foot Dragging”

As indicated, the evidence indicates that the Grievant's first notice of the new Company operational policy probably came at 3:20 p.m. on Wednesday, December 20, 2000. The Grievant's testimony is that he removed the password from his computer during the first hour of his shift (i.e. between 7:00 a.m. and 8:00 a.m.) on Thursday, December 21, 2000.

The Company indicates that on Friday, December 22, 2000 it had the hard drive removed from the Grievant's computer and had it shipped to the “computer services department in our corporate offices to go through and look at the material and the content on it.” The report from that department eventually indicated that the password had been removed from the hard drive prior to its removal. This verifies to some extent the Grievant's testimony that he had removed the password.

The exact timing of that removal may be in some dispute. The Company maintains that the “I'm not taking it off...” conversation between Supervisor Montgomery and the Grievant took place at the start of the shift on Friday, December 22, 2000. The tenor of this discussion seems inconsistent with the Grievant having taken his password off 24 hours before, i.e. at the start of his shift on Thursday, December 21, 2000. The Grievant's purported timing of the removal is also inconsistent with the testimony of Mr. Atkins that the Ford-Grafe examination of the Grievant's computer “after the first shift left” on Thursday, December 21, 2000 indicated that the password was still on the computer. It is inconceivable then that the Grievant had that conversation at, for example 7:05 a.m. and then took the password off at 7:55 a.m., as he testified, during the first hour of his shift.

We are left then with an undisputed fact that the Grievant did remove his password from his computer. He did it at the earliest between 7:00 a.m. and 8:00 a.m. on Thursday, December 21 or at the latest at some point on Friday, December 22 before the hard drive was removed and sent to the Company's home offices. Given his “knowledge point”6 of 3:20 p.m. on Wednesday, December 20, it appears then that he acted within a minimum of 70 minutes of work time (3:20 p.m. on Wednesday to 8:00 p.m. on Thursday) or a maximum of 16 hours and 10 minutes of work time (3:20 p.m. on Wednesday to 3:30 p.m. on Friday). It does not seem to the arbitrator that this length of time can be considered to be “foot dragging” or procrastination sufficient to justify an insubordination discharge.

We turn to the aspect of bluntly refusing a direct order.

3. Direct Refusal of a Direct Order

The alternative basis, i.e. direct refusal of an order to remove the password, seems to be the basis upon which the Company proceeded in this case. The previous discussion concerning the conversation between Union Committeeman Gibbons and the Grievant seems sufficient to have conveyed to the Grievant notice of the Company's new operational policies. But, it is axiomatic that a Union Commiteeman cannot give a direct order to a bargaining unit employee that he is duty bound to obey upon pain of being discharged. Only a supervisor can do that. The Gibbons-Grievant discussions of December 18 or 19 thus cannot furnish the basis of a “direct refusal or an order” insubordination discharge.

The conversation which is apparently relied upon by the Company is that between the Grievant and Supervisor Rob Montgomery. As related in the testimony of Mr. Atkins, the conversation took place at the beginning of the shift on Friday, December 22, 2000 and was to the effect of:

“And Rob informed us at that time, one question was asked, why did you still have it on, and his comments were, `You're damn right it is. And I'm not taking it off until someone gives me or the Company gives me a good reason to do it.' ”

The testimony of Supervisor Montgomery was to the effect that he couldn't recall the date of the conversation. The substance that he recalled is as follows:

“H__ [the Grievant] asked why Ernie [Mr. Ford] wanted in the computer so bad, and I asked him if he still had the password on the computer. He then said, `You're damn right, and I'm not taking it off until you tell me why you want in my computer so bad.' ”

The Grievant's testimony concerning the conversation was essentially that:

“Q. ... You have heard Rob [Mr. Montgomery] give testimony to the fact that you went in the office and had a conversation with him and you refused to take the password off, to your recollection did that conversation ever take place?

A. The conversation that took place was on the 14th of December when the passwords were placed on computers and me and Keith both at the same time informed them that we had put passwords on computers and at that time he had no comment.

Q. Did he tell you to take them off?

A. No.”

Even the Atkins/Montgomery versions of this conversation are bereft of any element of a direct order to the Grievant. The versions start with a question from Montgomery to the Grievant of whether he still had the password on his computer. The Grievant admitted he still had the password and then uttered a somewhat defiant statement to the effect of “You're damn right, and I'm not taking it off until. . . .” At this time, if Mr. Montgomery meant business he would have ordered the Grievant to remove the password forthwith, or alternatively, that he would be discharged if he did not do so. No such order appears in the record of the case. It accordingly cannot be held that the Grievant disobeyed a direct order to remove the password. In any event, as indicated above, the Grievant, by the close of business on the very same day, Friday, December 22, 2000, had removed the password from his computer.

VI. Conclusion

The Company had the right under the Management Rights clause to establish an operational policy precluding employees from retaining a password on the Company computers they used at work. Nevertheless, the Company's procedures to notify employees of this operational policy had some shortcomings and the evidence does not establish either a “foot dragging” or a “refusal of a direct order” offense on the part of the Grievant.

To the extent that it may not be otherwise clear, the stipulated issue on the merits is answered in the negative, i.e. the Grievant's discharge was not for just cause. The award draws its essence from the arbitrator's interpretation of Article V and Article VII of the parties' agreement and of the stipulated issue.

VII. AWARD

Grievance sustained. The Grievant is to be reinstated with full seniority and with back pay for the period between his discharge and his reinstatement. Should the parties be unable to agree on the calculation of back pay owing under this Award, the arbitrator retains jurisdiction of the case until October 16, 2002 to resolve only such disputes.

Endnotes

* Selected by parties through procedures of the Federal Mediation and Conciliation Service

1. Saint-Gobain NORPRO, Tallmadge Fabricated Products (hereafter referred to as “the Employer”) and United Steelworkers of America Local Union No. 1761-11 (hereafter referred to as “the Union”), are parties to a collective bargaining agreement dated April 1, 2000. The agreement provides in Article VII for settlement of disputes through a grievance and arbitration procedure. A dispute has arisen between the parties concerning the suspension and then the discharge of the Grievant, H__, on January 3, 2001 for failing to remove the password from his work computer.

2. The facts at this point are related largely from the Company's standpoint since it is its perceptions which eventually led to the discharge. The discussion below will deal with conflicts in facts.

3. Apparently involving the Grievant.

4. Company witnesses have no first hand knowledge of either the substance or timing of the Gibbons-Grievant discussions. Obviously then, their testimony as to the substance and timing must be accepted.

5. The arbitrator's vernacular for simply being dilatory in complying.

6. It bears repeating that we are talking here about simply the Grievant's notice of the Company's adoption of the no passwords operational policy. The timing of any direct order is another matter to which the discussion will soon head.

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