Termination Upheld When Safety Violation Was Intentional And There Were Prior Disciplines

The Labor Arbitration Institute have arbitrators discuss hypothetical employment arbitration scenarios and state how he/she would have ruled. These “decisions” by arbitrators can be helpful in assessing how an arbitrator would rule in real world cases. In this scenario, a two-year employee rigged one of the two handles/levers on a press machine so that the machine would go faster and to alleviate some pain in his left arm that was hurting due to carpal tunnel syndrome. All five arbitrators on the panel would have upheld the discharge because the two levers were specifically there for safety reasons, the conduct was intentional, there was no prior request for an accommodation for carpel tunnel, he had prior discipline for other types of non-safety incidents, and the fact that the Company’s investigation may not have been 100% thorough was adequate enough.

What we can learn from the conclusions these arbitrators came to is that prior disciplines, even if they are for dissimilar conduct, can be used against you as progressive discipline, especially if it’s within a short span of time, and that relying on incomplete training or investigation as a basis for turning over a discipline/discharge comes up short in the face of other factors such as the ones discussed above.

Below is the complete discussion as issued by the Labor Arbitration Institute.

Conference Reporter – Labor Arbitration Institute

Safety Violation with a Poor Record

At this month’s program in Miami, the arbitrators on the panel discussed a case of a 2-year employee. He was a press operator. He had two years with the company, but had bid into a press operator position only 4 days earlier.

The press has two handles or levers. The reason for this is to ensure that the operator does not have either hand near the pinch point. In other words, the operator must use both hands at the same time in order for the press to work.

Four days into the job, the employee is discovered to have tied up the left-hand lever to a post. This allowed him to operate the press with just the right-hand lever. The supervisor asked him why he did this, and he gave two reasons. 1) he could work faster and thus, earn more incentive pay (true); and 2) his left arm was hurting due to carpal tunnel syndrome.

He was discharged for reasons which the panelists address below.

Decision

All five arbitrators on the panel would have upheld the discharge. What is interesting about this is how strongly they all felt, that:

1. There may not be a rule which specifically covers two levers, but the employer can rely upon its general safety rules.
The company went to the expense of providing two levers. These safety devices are there for a reason. The purpose of the device is to keep the employee out of harm’s way. The employee is jeopardizing his own safety.

2. It was intentional.
The union cited two prior cases in which employees were given a written warning. But in each case, the employees committed a one-time mistake. Both were the result of not thinking, and it doesn’t appear that either employee acted deliberately. On the other hand, the grievant did this for 3 days and it was intentional. In fact, is he cheating the other employees by gaining incentive pay that they cannot obtain the same way?

3. He didn’t ask for an accommodation.
He could have asked for an accommodation based on the carpal tunnel, but he didn’t.

4. He had a poor record.
He is a two-year employee, and he has this record: written warning for graphic statements to a supervisor and two written warnings & a 3-day suspension for attendance violations.

5. The Company investigation was adequate enough.
The union argued that the investigation should have included an interview of the trainer. Then, management would have learned that his training lasted only 15 minutes. The company counter-argued that the co-worker who trained him was only a few feet away on each of the 4 days that he worked, and thus available for any retraining. All of the arbitrators on the panel felt that an investigation does not have to be 100 percent. A lesser investigation will not nullify the discipline when the employer’s reasons for the discharge (#1-#4) are as strong as they are here.