Phil Cohen War Stories: The Union Saves a Good Man
War Stories By Phil Cohen
During the spring of 2008, 49-year-old Steve Garrett worked a second shift in the ICQA (Incoming Quality Control Assurance) Department at the Kmart Distribution Center in Greensboro, North Carolina. This small department was responsible for inventory control, product inspection, and organizing storage space in the huge warehouse. Forklifts were used to transport pallets of merchandise for these purposes.
Steve had been employed at the facility for eight years. His work ethic and level headed, friendly demeanor made him universally liked and respected by both co-workers and management. It would have been easier to find diamonds than unearth a critical remark ever made about this decent man.
On Friday, March 28, Steve reported to work at 3:30 p.m., attended the routine start-up meeting and proceeded to the ICQA office where he was the sole night employee. At 4:10 p.m., he was suddenly stricken with an urgent need to relieve himself and soiled his clothing with diarrhea dripping down his legs as he ran toward the restroom—an embarrassing experience for anyone.
Steve disposed of his underwear and socks, rinsed his pants in the toilet, then wiped his body at the sink with paper towels. Feeling dazed and confused, he wandered into the parking lot to sit in his car, attempting to dry his clothing by sitting on towels and stuffing napkins between his legs. He lost track of time and remained in the car for several hours, while management desperately tried to locate him. At 8:30 p.m., department manager Lee Graves was on break and observed him urinating in the parking lot.
Graves asked Steve if he’d been drinking and was told, “No I haven’t. I just suddenly had to go.” As the ICQA office lights were off, the manager inquired if Steve had gotten a pass to leave early, and received an unusual response: “I don’t know.” But because of his friendship and respect for Steve, the manager didn’t report the incident.
At 10 p.m., Graves and another manager saw the ICQA lights back on and upon entering the office, found Steve sitting at his computer, weaving back and forth and having trouble figuring out how to log in. Fifteen minutes later, they encountered him in Maintenance, driving a forklift erratically. They stopped him, noting his red eyes and slurred speech.
At that point, they felt obliged to contact Wilhelmina Timmons, night manager of the Loss Prevention Department. “LP” was the equivalent of Kmart’s secret police, responsible for intervention regarding incidents of theft or extreme employee behavior. Its officers all wore red polo shirts and workers simply referred to them as “The Red Shirts.”
The two managers led Steve to the LP office, where his speech remained garbled during the interview. Steve explained he was feeling sick accompanied by frequent urges to urinate, but couldn’t account for his level of disorientation and inability to function. His three interrogators all claimed to smell alcohol on his breath. Wilhelmina contacted numerous facilities to arrange for a substance abuse test based on reasonable suspicion but none were available at that hour. She then instructed Steve not to drive while under the influence and wait for a ride but he returned to his car and managed to make it home in one piece.
The three members of management involved in the incident submitted a joint report to Human Resources, recommending termination based on the employee’s level of intoxication. On Monday afternoon, Steve reported to work as usual, but was placed on suspension pending the outcome of an investigation.
Ten days later, Human Resource Director Rick Minichbauer met with Steve in his office and handed him a “Separation Report.” While management felt certain Steve had been drunk during the night in question, Rick had spent his long career working at union facilities. He understood that suspicion of substance abuse doesn’t provide just cause for discharge unless empirically documented by lab results.
Steve’s termination was therefore based on matters pertaining to specific elements of his conduct:
Theft of time–referring to six hours Steve was on the clock getting paid but not performing any work
Job abandonment–a rehashing of the first count
Insubordination–for driving home after being told not to do so.
Local 2603 President Cicero Hall called me and then filed a grievance that contractually would commence at the final step as it involved discharge. I immediately emailed an information request to Rick:
“The union requests all evidence used as the basis for terminating Steve Garrett, including but not limited to all written statements provided by management and hourly workers, and any other document, photo or video reviewed during the employer’s investigation. Please provide the grievant’s prior disciplinary record.”
I was handed a full response to my interrogatory several days later when I attended a labor-management meeting at the warehouse. Afterward, Cicero and I met with Rick in his office to discuss the case.
“It’s really a shame about Steve,” said the HR director. “He was a good worker and always conducted himself like a gentleman. Everyone, including me, really liked the guy. But Steve wasn’t only under the influence, but so drunk he couldn’t even function. Are you aware he actually urinated in the parking lot? There are certain types of behavior the company can’t condone, regardless of the associate’s past performance.”
“Given what an exceptional employee Steve has been for nearly a decade, would you be open, on a non-precedent basis, to considering a suspension without pay, followed by a last chance agreement?”
“If I even suggested an exception be made in this case, corporate would have my head. Sorry guys, this is an unpleasant situation for all of us.”
I reviewed Steve’s file that evening, consisting of numerous detailed accounts from the three managers involved, one statement from an hourly employee, and computer printouts documenting the grievant had been on the clock without working for nearly an entire shift. His prior disciplinary record was spotless.
I met with Steve at the union hall several days later and found him coherent and relaxed as he sat across from me at a conference table. He readily admitted all the allegations about his conduct during the night in question but insisted he hadn’t been drunk. “I did have a couple of beers with a friend at 1 p.m., and management may have smelled it on my breath but that didn’t make me intoxicated.”
“Steve, I’ve known you for a long time and you’ve always been a good union man, so I hate to tell you this, but the company knew better than to fire you for being drunk without any proof to back it up. So, they fired you for all the behavior you just admitted to.”
“I know,” he said. “I read the Separation Report.”
I then posed the million dollar question that I always ask when a worker has been discharged for conduct utterly inconsistent with their character and past record. “Has anything like this ever happened to you before…any time, any place? I’m talking about becoming disoriented to the point you didn’t know what you were doing?”
A minute of silence followed as Steve stared at the table, considering whether to be responsive. “Well,” he hesitantly began, “a couple of years ago I was shopping at Lowes and suddenly had to sit down because I became dizzy and started losing my balance. Two hours later a store manager found me and asked if I was OK but I was so out of it by then I couldn’t respond, so he called an ambulance. The doctors ran a bunch of tests at the hospital and found my blood sugar was at nearly fatal levels, so they gave me some meds to bring me back down to earth. I saw my own doctor the next day and he diagnosed me with diabetes and put me on medication. I’ve been fine until the other night. But I don’t see how this could explain what happened because my medication had it under control.”
“When’s the last time you saw your doctor?”
“About six weeks after what happened at Lowes and he said my blood sugar had returned to acceptable levels and I should just keep taking my meds, which I have.”
“Look, a lot can happen with diabetes over two years. If you do exactly what I tell you, I think I can save your job…and possibly save your life in the process.
“Do you remember that workshop you took with me about just cause, and how no one can get fired if the company doesn’t meet seven tests? Well, one of those tests is determining if there were mitigating circumstances beyond the employee’s control that contributed to their getting fired. But it’s the toughest part of just cause to win because we have to prove it in spades.
“I need you to get me the following ASAP: documentation and/or records from Lowes, the hospital you were taken to and your doctor. Sign a release to have your medical records included. Very important–get a full examination and lab tests from your doctor. I’ve got a hunch he’ll find your diabetes has gotten worse and prescribe new medication.
“This will be an essential part of our case. It will not only document the root cause of the episode that got you fired, but prove the problem is now being medically managed and won’t present future issues at work. Rick Minichbauer and the corporate lawyer are going to be evaluating our chances of winning in arbitration. No arbitrator will reinstate a worker with an ongoing problem, no matter how tragic, unless it’s been resolved.”
“So if I get all this, when will we go to arbitration?”
“We won’t have to. If your documentation is convincing I think I can get you back before we even need a grievance meeting.”
Steve was a bright guy and competently spent the next few weeks contacting the appropriate parties and getting the required materials. His physician provided the necessary medical records and on May 7, issued a Return to Work form stating that Steve was fit for duty as new medication had been prescribed to control the recently elevated blood sugar levels.
I called Rick, explained the situation and scheduled an off-the-record meeting for May 12, that would include Steve and Cicero. It was a better approach that jumping directly into the grievance process that would involve defensive members of management only interested in justifying their analysis and decision to terminate.
Steve was forthright but humble at the meeting, apologizing for any inconvenience he’d caused the company.
“You’ve been one of our best employees,” said Rick once our presentation was completed. “To be honest, I hated the thought of losing you but, didn’t see any alternative under the circumstances. I’ll be very candid since we’re off-the-record. I’m going to present these documents to Bill (the plant manager) with a recommendation to reinstate. If he’s on board, he’ll have to get a green light from corporate. I do have one question though. Why didn’t you bring all this up at the discharge meeting?”
“It never occurred to me because my diabetes was already being treated. The whole situation was humiliating and I didn’t want to make things worse by making excuses.”
A week later, Steve was back at his previous job with full seniority and his record expunged of discipline. He didn’t receive any back pay, but that was normal for this type of case. Arbitrators seldom order a make whole remedy when returning an employee to work based upon mitigation, because even though the grievant wasn’t responsible for the underlying circumstances, neither was management. Steve continued to work in ICQA without incident until retirement.
There are two significant takeaways from these events:
If Steve had worked at a nonunion plant, he would have been fired based on the night managers’ belief that he was intoxicated and left without any legal recourse.
The more thought provoking matter is why Rick Minichbauer, with both his extensive understanding of just cause and desire to retain a good employee, didn’t acknowledge how out-of-character Steve’s behavior had been and ask the same questions I did.
The answer is very simple. Managerial investigations tend to be little more than an exercise in rubber-stamping previously made decisions. They seldom take time to scratch beneath the surface of what appear to be straightforward incidents in search of the whole truth. Employees are considered expendable and the impact on human beings and their families isn’t a corporate consideration.
Human resource directors, even the few who actually give a damn, understand that keeping their job depends on maintaining levels of productivity that won’t tolerate distractions motivated by compassion or justice.
Phil Cohen spent 30 years in the field as Special Projects Coordinator for Workers United/SEIU, and specialized in defeating professional union busters. He’s the author of Fighting Union Busters in a Carolina Carpet Mill and The Jackson Project: War in the American Workplace