‘The Convey Belt Incident’ — Part II
WAR STORIES By Phil Cohen
Editor’s Note: This is Part II of “The Conveyor Belt Incident.” Check out Part I here.
Fighting for Cicero
At noon on June 1, I sat at the long table in the plant conference room with Cicero and the executive board to prep for the president’s grievance hearing. An hour later, management took their places across from us. Following standard protocol, Bill Wilkison presented the company’s case. He slid the list of plant rules subject to immediate termination across the table, with “creating a serious safety hazard” highlighted, noting that violating lockout/tagout procedure and walking on the conveyer belt both qualified as such. He concluded by remarking, “We all like Cicero but I think the parties agree that the rules have to be applied equally to everyone.”
I emphasized that Cicero never imagined his efforts to remedy stalled production amounted to dischargeable offences, citing the lack of specificity in the formal plant rules. Furthermore, the five employee updates defined his alleged infractions as only being subject to progressive discipline.
Rick, in his ever-present desire to prove himself the company’s lap dog interrupted. “But we can’t deny that Cicero’s actions constituted “creating a serious safety hazard” as spelled out in the rules. What if someone had turned the belt back on and Cicero had fallen to his death?”
I’d thoroughly researched the procedures and applications underlying the rules in question and responded to the disingenuous intrusion. “First off, I didn’t cut Bill off when he was making his case and I expect the same courtesy in return. The only other person who could turn the belt back on was Cicero’s supervisor, with whom he’d interacted during his several seconds on the belt. Even if we assume the unlikely possibility that the supervisor was drunk and wanted to restart the conveyor anyway, by the time he climbed the steps to reach the second level switch, Cicero would have long been off the belt, turned the equipment back on and been doing his job. You’re basing your case on an absurd hypothetical with an implausible outcome.”
Fully aware the die had already been cast and this hearing was merely a time-consuming formality, I laid out the union’s full case for the record as foundation for litigation.
Cicero wouldn’t have engaged his supervisor during the few seconds in question if he believed he was committing dischargeable offences.
Kmart was fully liable for his perceptions, having dramatically failed in its just cause obligation to provide workers with clear and unambiguous knowledge of the rules in question and the consequences for violating them.
While the company met its burden of proof that Cicero was out on the belt, the policy had been disparately enforced, with documented instances of both workers and supervisors ignoring the rule without incurring discipline. This important test of just cause is unrelated to fairness. The underlying legal principle is that allowing individuals to violate a rule with impunity generates the impression that the rule isn’t enforced.
Cicero had never been trained in lockout/tagout procedure as he didn’t work in the Maintenance Department.
Pursuant to Just Cause, the punishment didn’t fit the crime.
Cicero’s seniority and impeccable work record would be heavily weighted by an arbitrator.
“We’ve heard your arguments, will talk with our lawyers and get back with you,” said Bill when I was finished.
“One more thing, so there’s no misunderstanding,” I said. “Cicero remains the president of Local 2603 and will continue to represent our members. He’ll be present at all third-step grievance meetings while we’re dealing with this.”
“We can’t allow that,” replied the plant manager. “Cicero doesn’t even work here anymore. How can he still represent our employees?”
“Because he holds office in the local union and was elected by our members. You can no more remove a union officer than I can fire a supervisor.”
“Well, we have a plant rule that former employees aren’t allowed in the building except to attend their own grievance meeting.”
“Try throwing Cicero out of the room with me in there with him.”
“Would you agree to holding future grievance meetings at a hotel conference room”?
“No I wouldn’t. That would impose an enormous inconvenience on grievants and their shop stewards. Why don’t you see what you can work out with corporate?”
A third-step grievance meeting for other workers had been previously scheduled for June 9. Bill informed me two days prior that his superiors’ position remained firm about not allowing Cicero in the building, but the company was willing to pay for a conference room at the Holiday Inn.
“I’m obviously not going to cancel the meeting, but understand our showing up at the hotel shouldn’t be mistaken for agreement with the location.”
I entered the Holiday Inn fifteen minutes early and met Cicero in the lobby. He appeared surprisingly relaxed and in good spirits, even while informing me that Kmart had successfully challenged his application for unemployment benefits. Management arrived, followed by committee members and grievants. Once seated, I asked Bill and Rick what purpose had been served by interfering with Cicero’s ability to collect unemployment checks.
“People who fire themselves aren’t lawfully entitled to benefits,” Rick replied as if presuming to educate me. “Cicero willfully committed potentially fatal safety violations and based on the statutes, forfeited his rights to collect unemployment.”
“You must have been sleeping when I presented his case. There’s no point continuing this argument until I see you in arbitration and before the National Labor Relations Board. Right now, I’m here to represent other workers.” The docketed grievances were comparatively minor and the meeting concluded an hour later without further incident.
That evening, I faxed an NLRB charge to the agency’s regional director citing six allegations, the most significant of which were:
Cicero was fired because of his activities as local union president.
Kmart unilaterally changed the terms and conditions of employment by refusing to conduct third-step grievance meetings at the facility and not allowing the local president to accompany me on plant visits.
It was essential to inform workers about their president’s situation and what the union was doing about it. The next day I visited the warehouse with leaflets in hand, denouncing management for their illegal affront to local union democracy and right to representation. After a half hour of breakroom distribution, a clerical worker told me Bill Wilkison wanted to see me in his office.
The plant manager was on the phone with Kmart’s outside counsel for labor relations, Terry Lardakis. The self-congratulatory attorney didn’t work for a union-busting firm and frequently praised himself during negotiations for how closely he worked with unions to make things better for everyone. But I found him to be an arrogant, deceitful bag of wind. When typing contract language agreed to at the bargaining table, he often slipped in a sentence attempting to reduce the union’s entitlements. I always called him on it, making him sufficiently indignant to argue the point for an hour. Because of this he usually chose to bypass me and deal directly with the union’s southern regional director, Harris Raynor.
“Terry would like a word with you,” said Bill, handing me the phone.
“How are you today?” I cordially asked the attorney.
“I was doing very well, thank you, until the company faxed me a copy of your leaflet. We’re engaged in an amicable grievance process. We have nine more days to respond in writing, and you are way out of line with your remarks. I demand you walk into the breakroom right now, remove all leaflets and desist from any further distribution!”
“I have a legal and contractual right to communicate with my members any way I see fit!”
“This time it’s gone too far! You’re spreading lies about the company! I order you to pick up those leaflets NOW!”
“You order me?!” I responded. “Who the hell do you think you’re talking to? I’m returning to the breakroom to continue handing out leaflets. You can go fuck yourself!”
“I’m calling Harris and telling him about this conversation!” Lardakis shouted as I returned Bill’s cell phone.
Two days later Harris called. “You really pissed Terry off,” the director casually remarked.
“We pissed each other off, with the difference being that I was right.”
Harris laughed and continued. “Once Terry got things off his chest, he made the first overtures toward settling this and possibly bringing Cicero back. But he wants us to drop ten other discharge cases pending arbitration in return. Why do we have so many open cases? I thought that, other than Cicero, you were resolving things.”
“This is a really schizophrenic company and the left hand usually doesn’t know what the right hand is doing. But we can use this to our advantage. Once I receive the company’s third-step answers, I’ll notify Bill in writing of the union’s intent to arbitrate all unresolved discharges, but then candidly tell him which cases the union is actually committed to. This focuses his attention on the issues we’re ready to fight for and he knows enough to take me at my word regarding the rest. Why don’t you read me the names Terry’s referring to?”
“Better yet, I’ll email the list he sent and then call me back.”
Five minutes later, I reviewed a corporate spreadsheet detailing every unresolved termination at the Greensboro DC and got back with Harris. “All but one of these is ancient history and understood to be dropped by everyone on both sides in Greensboro, including the grievants. There’s never been a reason to send formal withdrawal letters and why put something in writing when not necessary? But we have a forklift driver whose case hasn’t even been heard at the third-step. He was fired for exceeding the disciplinary matrix but I’ve uncovered serious due process issues. We can’t in good conscience drop this one.”
“I’ll tell Terry we can agree to everyone except him because his grievance has merit and we could have charges filed against us or get sued if we don’t pursue it.” It would be an effective way to cynically speak in terms the lawyer could relate to.
On June 15, the parties held another grievance meeting at the Holiday Inn. As discussions were now underway regarding possible settlement of Cicero’s case and we were about to represent six other people, I pulled Bill aside before entering the conference room. “I’m sure you’ve read the NLRB charges by now. Usually, filing Board charges represents an act of war, but at this point we’re only at war regarding Cicero. We bring him back and the charges go away.”
Bill looked me in the eyes and calmly responded, “I know exactly what we’re doing here.”
That night Harris forwarded an email from Lardakis, presenting a draft of proposed terms for settlement. Unfortunately, the forklift driver’s name remained as a case to withdraw. I began referring to it as Terry’s list of the doomed.
“Tell Terry to review the evidence I presented at a third-step meeting held earlier today,” I suggested.
Two weeks later, a settlement agreement was executed by both parties and endorsed by Cicero. He was returned to work with full seniority but no back pay. The local president had been around the block enough times to have seen the company drag out arbitrations and the ultimate verdict for two years. He needed to restore the income necessary to support his six kids and was equally committed to his role as local union president. The forklift driver was also reinstated, and I withdrew the Board charges.
A week later, I stopped by the human resource office to discuss a couple of issues brought to my attention by workers. Rick raised his eyes from documents he was reviewing and confessed, “Please don’t ever tell anyone I said this, but Cicero should have never been fired.”
Cicero’s return to work gave him the upper hand during his appeal to the Employment Security Commission and he retroactively received his unemployment benefits, making him two-thirds whole.
A month later, Cicero and I were conducting a routine plant tour when a driver jumped off his forklift and embraced me like a long-lost brother. I’d represented dozens of workers at numerous locations during the intervening period and for an awkward moment had no idea who this person was. As he continued hugging me and expressing gratitude I suddenly realized he was the guy I refused to trade for Cicero’s return.
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.