International Brotherhood of DuPont Workers

 

Jim Flickinger - President     

Tony Davis - Vice President

Donny Irvin - Secretary/Treasurer 

Kenneth Henley - General Counsel 

"Workers Representing DuPont, Bemis and INVISTA Workers"

 

ARBITRATION SUMMARY

The Following is a summary of recent arbitrations and NLRB Decisions.  It is intended to be only a guide.

If you have any comments or questions, send an e-mail to the address located at the bottom of this page.

 

Union:  Edgemoor
Arbitrator:   Tener
Date:   January 28, 2003

Issue:  Discharge of an employee for numerous performance and safety problems for testing positive pursuant to a random drug test.

Result: Employee reinstated with backpay, subject to being tested for drugs upon his return to work pursuant to the Company's substance abuse program.  The Arbitrator found that the serious misconduct offenses in effect at the time only included being under the influence and, based on that definition, the employee did not commit a serious misconduct offense when he tested positive.  (According to the Arbitrator, the policy as changed after the discharge, to include "presence in the body", would have supported a finding of a serious misconduct offense.)  The Arbitrator further found that the substance abuse policy did not provide a basis for the termination - that under the policy an employee who requests help before performance is adversely affected, as was the case with the grievant, is to be offered assistance, not discharged.

Union:  Richmond
Arbitrator:  Aronin
Date:   January 27, 2003

Issue:  Discharge of an employee for his looking at pornography on the company computer.  The employee had been warned on an earlier occasion when he had looked at "inappropriate" although not pornographic content.   

Result: Case settled.  The employee was reinstated and placed in problem status.  The employee is restricted from use of the internet while on problem.

Union:  Richmond
Arbitrator:  Wolf
Date:   December 28, 2002
Issue:
  Discharge of a low seniority employee who was on problem status for sleeping at his workstation and testing positive on a for cause test taken after the sleeping incident

Result: Employee reinstated with seniority and all benefits but without backpay.  Arbitrator ordered the employee to drug testing during the first
six months after his return to work.  In reaching this decision, the arbitrator found the sleeping was "casual dozing" and not a premeditated act.
The arbitrator also found the "mere" act of falling asleep as not being a basis for a "for cause" test and noted that the employee had a medical
condition that may have brought on the sleeping rather than drug use.  As a result, the Company improperly considered the positive drug test a ground for the discharge.

Union:  Richmond
Arbitrator:  Gershenfeld, W.
Date:   November 7, 2002
Issue: 
Discharge of an employee for testing positive on a drug test 9 months after having tested positive on a drug test, having received 30 days inpatient treatment and having signed a return to work agreement.

Result: Grievance denied.  Arbitrator rejected the Union's request that the employee be granted a 90 day leave of absence. On the positive side, the Arbitrator appeared to accept the Union's argument that an employee who is on a return to work agreement and tests positive after 6 months, is entitled (as opposed to eligible) to a 90 day leave of absence if he has demonstrated (1) overall satisfactory performance, (2) past cooperation with EAP and supervision, and (3) overall commitment to recovery.  Unfortunately, based on the facts of this case, the Arbitration found that the employee was not committed to recovery and did not cooperate with his aftercare program.

Union:  Seaford
Arbitrator:   Aronin
Date:   October 17, 2002
Issue:
  The grievance centered around the Company hiring of non-unit limited service employees at a reduced hourly rate at a time when full service employees were on lay off status with a right of recall under the contract. 

Result: Case settled.  The Company agreed to hire a minimum of 30 full service employees.  These employees do not receive CTP benefits if they are laid off during the first 12 months after rehire as they had already received full CTP benefits from their first layoff. 

Union: Richmond
Arbitrator: Ira Jaffee
Date: September 20, 2002
Issue:
Placement of employee in problem status for a positive substance abuse test. Employee denied the accuracy of the test, pointing to delays in receiving the results back from the lab.

Result: Case settled. As the year was about up for the problem status at the time of the hearing, the settlement involved the Company removing all reference to the employee’s placement in problem status out of the Company’s files, where it otherwise would have remained for five additional years.

Union: Richmond
Arbitrator: Stan Aiges
Date: September 19, 2002
Issue:
Company transferred an employee within his job code to a different assignment, in a different location, to separate the employee from a former employee, now a supervisor. The employee had some ten years earlier been accused of sexually harassing that person and had signed a settlement agreement concerning such actions.

Result: Company was required to return the employee to his assignment as requested by the Union. Arbitrator ruled that in transferring the employee, the Company did not take into consideration the contractual factors of seniority, ability, performance and fitness; that the decision to transfer the employee was based entirely on the possibility of a lawsuit. Also, the Arbitrator found that the Rules of Progression and Regression did not provide the Company the right to force an employee to transfer involuntarily within job code except when in an excess situation.

Union: Richmond
Arbitrator: Louis Aronin
Date: September 10, 2002
Issue:
Discharge of short term employee for being absent unexcused and falsifying records while out in problem status. The employee had missed work, and did not call in, due to excessive consumption of alcohol. The employee then misrepresented the reason for his absence.

Result: Case settled with the employee being reinstated and placed in problem status, starting anew his one year probationary period.

Union: Clinton
Arbitrator: Louis Aronin
Date: July 19, 2002
Issue:
Discharge of employee for writing down readings from a machine when he allegedly did not go to the area to take the readings; i.e. falsification of records.

Result: Case settled with the Company paying the employee a sum of money for withdrawing his grievance. The employee had secured other employment.

Union: Clinton
Arbitrator: Louis Aronin
Date: July 18, 2002
Issue:
Discharge of employee for his participation in an altercation with another employee.

Result: Case settled with the Company paying the employee a sum of money for withdrawing his grievance. The employee had secured other employment.

Union: Richmond
Arbitrator: Louis Aronin
Date: June 19, 2002
Issue:
Discharge of an employee for allegedly harassing other employees over a lengthy period of time, primarily over their perceived work habits.

Result: Settled with the employee reinstated with virtually full backpay and placed in pre-problem status.

Union: Richmond
Arbitrator: Louis Aronin
Date: June 11, 2002
Issue:
Discharge of an employee for her performance on a functional capacity evaluation. The Company determined that, based on the results of the test, there was no work for which she was eligible that she could perform on the site.

Result: Settled with the employee being given another functional capacity evaluation, which she performed much better on, and thereupon being reinstated to her former job.

Union: Waynesboro
Arbitrator: Gladys Gershenfeld
Date: May 14, 2002
Issue:
Employee was discharged one week after his new hire probationary period was up for missing work and using vacation when he was actually sick. The employee’s last absence was on the final day of his probationary period.

Result: The employee was reinstated, with the Arbitrator noting that the Company had the right to terminate the employee during the probationary period and did not do so, even allowing him to work after the probationary period was up.

Union: Richmond
Arbitrator: Dan McConnell
Date: April 3, 2002
Issue:
Company refused to provide an employee with short term disability pay when he missed six days of work as a result of laser surgery on each eye. The Company claimed that the Plan did not cover time missed due to elective cosmetic surgery; that laser eye surgery was not a non-occupational “illness or injury” and so was not covered by the Plan. However, the Plan defines what disabilities are not covered – those due to injury or illness that are job related, those that are a result of participation in willful acts contrary to law, and those that occurred while serving in the armed forces.

Result: Case settled with the Company paying the employee the six days disability pay. The exclusions do not encompass a disability that occurred as result of elective cosmetic surgery. Moreover, it is not relevant in determining whether disability pay is owed that insurance does not pay for the cost of the procedure.

Union: Louisville
Agency: National Labor Relations Board
Date: March 19, 2002
Issue:
Union requested the Company provide to it information including the OSHA 200 logs, the First Report of Injury/Illness documents and the Workers Compensation claims documents, for all Dupont sites, from 1997 through 1999.

Result: The NLRB issued a complaint, and the Company later settled the case, providing the Union with the requested information, at no cost to the Union. The Union is using this information to make sure that health insurance monies are not being used for work related illnesses and injuries which should be paid for by Dupont as a workers compensation matter.

Union: Waynesboro
Arbitrator: Stan Aiges
Date: March 14, 2002
Issue:
Company threatened the president of the union with discipline for statements made in the local union newsletter concerning a supervisor. Company argued that the president's statements violated its policies as to how employees are to treat each other at the plant, its "People Treatment” policies.

Result: The case was settled just after opening statements were concluded, with the parties agreeing to a Consent Award that provided the following: the discipline was withdrawn; the Company agreed that the contract language providing that there is to be no discrimination against any employee because of their membership in the Union provides employees with the same protection as is provided by the National Labor Relations Act; and that should Dupont try and discipline an employee for what is arguably protected under the contract or the NLRA, the case would be submitted on an expedited basis to the same arbitrator.

Union:    Philadelphia
Arbitrator: Thomas DiLauro
Date: December 18, 2001
Issue:
Assignment of work that had been done by unit employees to co-op students who were not in the bargaining unit.                                                                    

Result: Company was ordered to stop assigning the work to co-op students and to provide backpay to the unit employees who would have done that work.

Union:      Richmond
Arbitrator: Barbara Zausner
Decision:   July 18, 2000
Issue: 
Refusal to upgrade the PT Lab job after a a new job evaluation had been conducted.

Result:     Grievance denied

Union:      Richmond
Arbitrator: Lew Amis
Decision:   June 23, 2000
Issue:  
    Placement of an employee on probation for creating a hostile work environment through sexual harassment; arbitrability.

Result:     Reduction of discipline to a pre-problem contact

Union:      Richmond
Arbitrator: Jeffrey Tener
Decision:   May 30, 2000
Issue:
      Discharge of an employee for violation of substance abuse rehabilitation procedure.

Result:     Reinstated with full seniority and backpay; placement in problem status.

Union:      Seaford
Arbitrator: Ira Jaffe
Decision:   March 24, 2000
Issue: 
     Discharge of an employee for causing a quality mix problem resulting in a loss in excess of $80,000; the Grievant had previously been discharged but was reinstated as a result of a mercy plea some 4 months earlier, with placement on probation for poor safety performance.

Result:     Grievance denied

Union:      Edgemoor
Arbitrator: Scott Buchheit
Decision:   March 1, 2000
Issue:  
    Discharge of an employee for violation of safety procedures.

Result:     Reinstatement with six months backpay and all benefits

Union:      Richmond
Arbitrator: Steven Wolf
Decision:   January 3, 2000
Issue:
  Placement of an exempt manager in a job in the unit.

Result:     Grievance denied

Union:      Louisville
Arbitrator: Edward Goggin
Decision:   December 30, 1999
Issue:
      Discharge of an employee for a second positive drug test within one year.

Result:     Grievance denied

Union:      Richmond
Arbitrator: Scott Buchheit
Decision:   September 13, 1999 and September 24, 1999
Issue: 
Whether the placement of an employee in the problem status (probation) is arbitrable
If arbitrable, whether it was "arbitrary, capricious or unreasonable" for an employee to be placed in problem status for wearing an offensive t-shirt and for causing delay in the submission of paperwork required pursuant to the substance abuse program.

Result:     The grievance is arbitrableThe discipline is reduced from problem (probation - fourth step of the procedure) to special contact (the second step of the procedure)

Union:      Seaford
Arbitrator: Joan Parker
Decision:   April 22, 1999
Issue: 
     Discharge of an employee for verbally threatening a supervisor and the supervisor's family.

Result:     Grievance denied

Union:      Waynesboro
Arbitrator: Joan Parker
Decision:   March 24, 1999
Issue: 
     Discharge of an employee for forging a doctor's note to obtain disability benefits.

Result:     Reinstated with full seniority, no backpay, no benefits, placed on probation for 12 months

 

 

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