Company asserts that the arbitrator erred by placing Golden back into the workplace because (1) the arbitrator improperly exceeded the scope of his authority by "dispensing his own brand of industrial justice," and (2) placing a known dangerous individual such as Golden back into the workplace violates the public policy of workplace safety.
Defendant United Paperworkers International Union, Local 286 ("Union") cross-moves for summary judgment to enforce the arbitration award. The Union argues that the arbitrator did not exceed the scope of his authority and that the conduct Golden displayed did not rise to the level of violating public policy. For the reasons outlined below, I will grant the Union's Motion for Summary Judgment, thereby enforcing the arbitration award. I will deny the Company's Motion for Summary Judgment.
I must take the facts as found by the arbitrator. See United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987).
The Company hired Golden in 1963, thirty-one (31) years before the incident giving rise to this action. Golden started as a utility person and later moved to the sheeting department. Paperworkers Local 286 v. G.B. Goldman paper Co., No. 14-300-1538-94A, 14 (1995) (Symonette, Arb.) (hereinafter "Arbitration Award"). In 1980, Golden transferred to the maintenance department because he claims he was being harassed by his fellow employees in the sheeting department. In 1983, Golden rotated onto the third shift, the late-night shift, and remained in the maintenance department until 1989.
In 1992, Golden was assigned to a clamp truck. He worked in the receiving department and did not encounter other employees on that shift. Although he was eventually given a permanent assignment in the receiving department, on September 19, 1994 -- the date of the incident giving rise to Golden's termination -- he was temporarily assigned to work on the roll line because of a driver's absence. Id. at 14. Golden had been working at the Company for thirty-one (31) years when he was discharged.
Golden was assigned to drive the clamp truck on the roll line during the third shift on the day in which the incident giving rise to his discharge occurred. The clamp truck is a fork-lift with a claw-like clamp instead of a fork. The clamp truck is used to remove wrapped rolls of paper from a line. The clamp truck clamps around the roll of paper and rotates it from a horizontal to vertical position. The driver then transports and stacks the roll in the warehouse area of the plant. Golden had removed a roll of paper from the line when the incident-in-question occurred. Emanuel Ofori, an employee working as a sheeter (a production position) had returned from the receiving dock after emptying a box truck of refuse. A box truck is a large rectangular container that is moved with the assistance of a hand propelled jack. In order to return to his area of production, Ofori was using the hand propelled jack to guide the box truck through an aisle between stacks of rolls and across an aisle in the area where Golden was removing and transporting rolls of paper. The area was just wide enough for the box truck to slip through. Id. at 3.
In order to stack a roll he had just removed, Golden had to drive his truck past Ofori and the box truck. Ofori, however, had stopped before reaching the aisle to permit Golden to drive the clamp truck past him. Id. at 10. At this time, Golden drove the clamp truck into the box truck, pushed it off its jack, and continued transporting the roll to the warehouse area. Charles McKinstry, another employee who was eight (8) feet away at a nearby water-fountain, saw the incident. Id. at 3.
Ofori reported this incident to the third shift supervisor, Donald Harmer, claiming that Golden deliberately attempted to hit him. Harmer then spoke to McKinstry who also said that Golden's actions were intentional. Upon returning to his work station, McKinstry saw Golden talking to another employee while at the same time pointing his finger at him. McKinstry approached Golden and another altercation followed. McKinstry warned Golden that if he had anything to say to him he should say it to him personally. Golden then called McKinstry a liar and a coward and proposed that they settle their differences at the end of the shift. McKinstry responded that they could settle their differences at that moment. Golden walked away. Arbitration Award at 11-12.
Thereafter, Harmer confronted Golden about the incident. Hearing Harmer's accusations, Golden became belligerent and loud. Golden denied trying to hit Ofori and insisted that Ofori had no business being in the area he was at the time of the incident. Golden also called Harmer a "racist" and asserted that when Harmer whistled in Golden's direction that Harmer intended to sexually harass him.
At the end of the shift, Harmer reported this incident to the plant manager, Chuck Doman, recounting his conversations with Ofori, McKinstry, and Golden. Doman asked Harmer's advice on what action should be taken as a result of the incident. Harmer recommended that Golden be terminated. Doman drafted and signed a letter dated September 19, 1994 which stated:
This is to inform you that you are suspended for 3 day [sic] with the intent to discharge for harassing, intimidating and threatening bodily harm to your fellow employees. Do not report to work or attempt to gain access to G.B. Goldman Paper Co. The union was informed of our intentions.
Id. at 4. Doman sent the letter to an address where Golden had lived several years before, and as a result, Golden did not receive the letter until one full year later. All this time after the incident, although not mentioned by the arbitrator, presumably Golden was still working or he would have had notice of the grievance. On September 20, 1995, when he finally received the letter from Doman, Golden filed his grievance.
At the arbitration hearing on May 12 and June 22, 1995, the Company called upon several of its employees to describe the September 19, 1994, incident, and further to testify about what management contended was a continuing pattern of threats and intimidation by Golden towards his fellow employees. The background evidence that the Company presented at the arbitration hearing included testimony by Ofori that Golden had accused him of intentionally scratching Golden's car quite some time before, and that since that encounter, Golden had threatened to kill Ofori and had constantly referred to him as a "sick dog." This had been reported to management on several occasions. Id. at 10.
The Company also offered testimony from two other of their employees, Myron Iwanycky and Al Szymanski, maintenance men also assigned to the third shift. Both men testified that in August 1994, they were driving a golf cart down the main aisle when Golden came out of one of the side aisles barely missing them and forcing them to swerve. The arbitrator made no finding that Golden was driving a clamp truck during this incident. They testified that they felt Golden intentionally tried to injure them. Iwanycky claimed that Golden regularly called him a "sick dog" and a "pervert." Szymanski asserted that "on numerous occasions" Golden would drive the clamp truck at him and/or drop paper rolls in his path. Szymanski also claimed that Golden had threatened to kill him and referred to him as a perverted homosexual.
Mario Tatum, a maintenance man and member of the Executive Board of the Union, testified that he and Golden were friends for most of his twenty-two (22) years with the Company. He testified, however, that their relationship changed after Golden once told him that Golden believed that other members of the maintenance department were sexually harassing him by grabbing their genitals in his presence. Id. at 13. Tatum expressed his disbelief and suggested that Golden must be joking. After that time, Golden asserted Tatum also sexually harassed him. Golden would confront Tatum, an African-American, and call him a "white man's nigger" and an "ass-kisser." On one occasion, Golden and Tatum yelled back and forth until the plant manager broke up the confrontation. Tatum testified that Golden's harassment had reached a point such that it would be in everyone's best interests if Golden were terminated.
Don English, a supervisor for the Company and former co-worker of Golden's, testified about a claim Golden made asserting that English had made an attempt on Golden's life. One morning thirteen years earlier, while English was driving toward the plant with his wife and children in his car, he moved into the left lane to pass a refuse truck. As he was passing, Golden drove by in the opposite direction. English waived at Golden. When he got to work, another employee informed English that Golden claimed that English had tried to kill Golden in his car on the way to work. When English subsequently confronted Golden about this, Golden replied that English had attempted to run him off the road and that the vice-president and plant manager, Harry Hoopes, had orchestrated this scheme. Furthermore, Golden asserted that as a reward for those efforts, Hoopes had made English a supervisor. English also testified that since that time Golden constantly harassed and threatened him and that Golden often refers to him, an African-American, as a "white man's nigger" and "Harry's puppet." In addition, English claimed that in 1987 Golden pushed him in the presence of a salesman and threatened to "kick his ass." English claims to have reported this incident to management. Id. at 13-14.
Golden also testified at the arbitration hearing. He denied trying to hit Ofori. Instead, he explained that in the congested area in which he was working he had to drive around people throughout the shift. Id. at 14. Golden testified about how his co-workers sexually harassed him in the sheeting and maintenance departments. He explained that since 1980 Hoopes had conspired against him and harassed him. He claimed that in 1984 when Hoopes attempted to fire him, Hoopes slapped Golden in a meeting with both union representatives and management present. Consistent with the testimony of Don English, Golden also contended that Hoopes bribed English to attempt to kill him. Golden also testified that Hoopes co-opted Union officers in an attempt to force him from the plant. Golden claimed that the father of Union Business Agent Carlos Simone, Jr., had worked with Hoopes against him. Golden maintained throughout, however, that he never threatened or intimidated anyone with the clamp truck. Id. at 15.
Based upon the testimony presented at the arbitration hearing, the arbitrator concluded that "[Golden] did harass, threat [sic], and intimidate employees in violation of company rules." Id. In addition, the arbitrator found Golden
to have open contempt for all of the employees involved and in essence substantiated the accusations leveled against him by the other employees. Despite his lengthy and often rambling testimony, the grievant appeared to disregard the charges asserted against him and defiantly asserted that management conspired against him and that certain employees harassed him. None of these accusations were substantiated by the grievant.
Id. The arbitrator concluded that Golden did not attempt to kill Ofori or any of the other employees but did not find credible Golden's explanation that he drove close to other employees or hit Ofori's box truck because of congestion in the work area. The arbitrator found Golden to be a "trained and experienced driver" who was capable of maneuvering his truck with "due caution" on the plant floor. Id. at 15-16. As a result, the arbitrator concluded that
because of the animosity between [Golden] and the other employees on the shift[, Golden] drove his vehicle recklessly in order to intimidate those employees in the area . . . Given the grievant's attitude as demonstrated by his testimony, it is reasonable to believe that his action was intentional.
Id. at 16.
While the arbitrator determined that discipline was warranted under the circumstances of this case, he found that the Company had not properly followed its own internal progressive disciplinary procedures. Under the Shop Rules, the Company has one set of rules for Group "A" offenses and another set of rules for Group "B" offenses. Group "A" offenses are subject to immediate discharge for the first violation while Group "B" offenses are subject to progressive discipline such that the employee is first entitled to a written warning and then a five (5) day suspension before ultimately being discharged.
The Shop Rules state:
1. General Rules$