‘The Conveyor Belt Incident’
WAR STORIES By Phil Cohen
Prologue
The most important part of a collective bargaining agreement lies in two simple words: Just Cause. Sometimes buried within the most unlikely contract article, you’ll find, “The company can discipline or fire employees for just cause.”
These two short words invoke the Just Cause Doctrine. It’s been interpreted and defined over decades of litigation, and requires management to meet seven tests before they can uphold discipline or discharge.
By contrast, nonunion plants are covered by the Employment-at-Will Doctrine. To put it simply, management can legally fire a worker for any reason, without justification. But in union facilities, due process and democracy penetrate the plant gate onto the shop floor. The true value of just cause extends well beyond remedied injustices. It means countless abuses of authority never take place, because management is aware of its legal ramifications.
There are numerous variations in how the seven tests of Just Cause have been presented, but here they are in plain English:
Can management prove the employee was guilty as charged?
Was the plant rule enforced the same for everyone?
Does the punishment fit the crime?
Did management clearly communicate the rule and its consequences to workers?
Were there mitigating circumstances beyond the employee’s control that contributed to the reason for discipline?
Did the company perform a fair and thorough investigation?
Was the plant rule reasonable?
The first test embodies the principle that a worker is innocent until proven guilty. The other six tests can each override the employer’s proof of guilt but these are affirmative defenses. The burden rests upon the union to prove management’s violation of due process.
The President of Local 2603
I was assigned as an internal organizer and service rep at the Greensboro Kmart Distribution Center in 1997, following a bitterly contested and divisive first contract campaign. An employer run decertification was defeated in 2003 and the warehouse remained an ongoing part of my workload.
The buck stopped with me to provide good representation, sandwiched between utterly dysfunctional management and an equally irrational local executive board. The shelf life of a plant manager at the poorly-run facility was three years, and in 2008 I began working with the fourth contestant, hoping to advance his career by making the distribution center (DC) profitable.
By that time, I’d finally managed to stabilize Local 2603 and the bargaining relationship. The latest plant manager, Bill Wilkison, had spent seven years running the corporation’s highly successful Pennsylvania warehouse, which was represented by the UAW. He seemed to understand that good labor relations were an essential ingredient of productivity. Retail distribution centers are evaluated based on the number of cartons slammed in and out of the building per hour, measured against operating costs.
During this period, I covertly trained promising shop stewards to run for higher office and replace old-guard executive board members with leaders who could engage management professionally. The naked truth is there are two reasons people run for local union office. Unfortunately, some individuals see it as an outlet for rage and a way to throw their weight around. They’re hungry to get elected and if successful, become so consumed with fighting both management and the union rep that effective representation gets lost in the shuffle. But there are also extraordinary individuals driven by genuine altruism.
The current president of Local 2603 was Cicero Hall. I’d mentored him from steward to board member and finally for the top position. Like many people who become local union leaders for the right reasons, he’d been a reluctant warrior, believing there must be others who could do the job better. I’d taken Cicero to dinner at a nice restaurant and talked for hours convincing him to run for president. Within months, he was beloved by the entire membership and highly respected by management. Unlike his predecessors, Cicero understood the contract and could argue it with a level head. He was smart enough to be a conscientious employee, making his efforts as a union rep above reproach (or so he thought.) As time passed, we became very close friends.
The human resource director retired and Bill replaced him with Rick Minichbauer, who had an extensive background working with various unions. He was a short, slender man in his late fifties with grey hair and an affable personality. Having been employed by numerous companies across the country, his ultimate goal was no longer promotion, but simply surviving at Kmart until retirement. To that end, he was a master at brown-nosing his superiors, but that didn’t usually affect our negotiations.
Normalizing the collective bargaining relationship at the warehouse had involved walking on water for a decade, but it seemed as though I’d finally reached dry land. Cicero became such a competent local president that I saw his potential to eventually become a business agent in his own right.
Cicero worked as a picker in the Casepack module; an enormous three story metal structure where large boxes of inventory were stacked on shelves for Kmart retailers. When a store ordered an entire case of a specific product, a conveniently located picker received a barcode. The worker would use a scanner to locate the proper carton and then hoist it onto a conveyor belt for its long, winding journey to the shipping docks.
On the afternoon of May 17, 2010 Cicero was working on the module’s second level when the belt malfunctioned, shutting down his part of the department. He turned off the conveyor and climbed a ladder used to cross over the belt. Once on the other side, he observed a box jamming the system. Cicero crawled onto the belt for under five seconds to remove the box. In the process he exchanged greetings with his supervisor who was on the ground floor. A minute later he reactivated the conveyor and Casepack resumed full operation.
The next morning, Cicero was summoned to the Human Resource office and fired by Rick Minichbauer for failure to follow proper lockout/tagout procedure and violating plant rules by going out on the belt. The local president called me, saying he hadn’t even been aware that his efforts to assist productivity constituted rule violations subject to discharge. I scheduled a meeting with Bill Wilkison that afternoon.
The primary pitfall of union reps engaged in good relationships with management is that over time, diplomacy evolves into personal interaction, sharing stories about family and telling jokes. Conducting business on a human level usually serves to lubricate and expedite the process, benefiting workers. But if the day unexpectedly arrives when management betrays the detente, some reps feel trapped in a quandary between fighting for their members and being antagonistic toward friends. The inner conflict compromises reaction time and effectiveness.
It’s essential for good union reps to possess a killer instinct, able to pivot on a dime and cut the heart out of people dealt with amiably for years. We can never forget for a second that our only obligation is to serve our members, by any means necessary.
I entered Bill’s office at 1pm. The tall, broad shouldered man sat behind his desk, joined by newly-hired assistant manager Arthur Jeffries, positioned at a small table on the far end of the room. Rick Minichbauer stood between them.
I listened politely as Bill explained that Cicero had committed life threatening safety violations that warranted his termination. Rick began pacing the room with an idiotic grin on his face, repeatedly stating as if it were amusing, “Cicero’s done it this time!” He periodically made eye contact with me as if to share the humor. I knew better than to think he really believed it. This was his Oscar winning performance at kissing butt.
I turned to Bill and cut to the chase. “You fire my local president without even calling me?! We’ve spent two years building a productive relationship. You’re about to destroy it! Cicero has been here for ten years with a spotless record. It’s pretty damn clear he was acting in good faith, trying to keep his department running. The entire incident lasted several seconds and was witnessed by his supervisor, who had no problem...”
Bill cut me off. “Look Phil, you know as well as anyone that the rules are the rules and have to be enforced the same for everyone.”
“Don’t bullshit me!” I shouted. I don’t give a damn about your fuckin’ rules if you don’t give a damn that the union needs Cicero to help run the local. If I leave this office without a resolution, we’re at war!” The worst bargaining tactic is presenting an issue on humanitarian grounds. It only makes management defensive, having been trained since college that compassion is a weakness. It’s more effective to speak a language they understand.
“Sit down with me for a minute,” beckoned the assistant manager from across the room. Once I was seated he calmly implored, “There’s no reason to make this personal. We have a business to run and sometimes have to do what’s necessary. We’re meeting with you as a courtesy to discuss what happened.”
“Fuck you too!” I responded, my cold blue eyes piercing his. “Most of the time it isn’t personal. But you fire my local president, it’s just as personal as if you walked up on my front lawn and slapped my girlfriend in the face. What you do to Cicero, you do to me! I will drag you through the mud in arbitration and before the National Labor Relations Board. You’re an amateur and new in this building so understand this: I’ve gotten over a dozen members of mid-level and senior management fired for making trouble with the union and hurting Kmart in the process. Don’t push your luck!”
I got up and moved directly in front of Bill’s desk. “Don’t throw away a good relationship and a local president whose part of it. Until I hear otherwise all bets are off.”
Grievances involving discharge commenced at the third (final) step of the process. An expedited hearing for Cicero was scheduled for June 1. I sent Rick an information request for all documents pertaining to the rules in question and began collecting written employee statements regarding individuals who’d engaged in activity similar to Cicero’s without being disciplined.
Kmart had its own peculiar vocabulary regarding every aspect of employee relations. Most employers define the steps of progressive discipline as verbal and written warnings, leading to termination when a certain threshold is reached. Kmart referred to progressive discipline as the matrix, with associate interview records leading to notices of correction, culminating in discharge.
On May 20, the company responded to my interrogatory with five procedural revisions distributed to and signed by all employees during the past two years. As I expected, management’s own documents weakened their argument.
Four of the plant rule updates included instructions not to walk on or over conveyor belts, describing the penalty for infractions as being in accordance with the employee matrix. The matter wasn’t addressed in the Employee Handbook or list of offenses subject to immediate discharge. As Cicero had a spotless record, the worst he should have been subject to was an associate interview record.
Two of the updates referenced lockout/tagout purely as maintenance protocols prior to beginning and ending repairs. This is standard industrial policy to prevent mechanics from working on moving equipment. Cicero was a production employee who had never received lockout/tagout training.
On May 25, I visited the warehouse to tour the shop floor and speak with workers. Between shifts, I stopped by Bill Wilkison’s office to see if he’d given further consideration to Cicero’s case.
“Shut the door,” he said as I entered. The manager sat behind his desk, leaning far back in the chair and rubbing his shaved head. After a few moments he sat up straight. “I guess you’re here to discuss Cicero.”
“No, I’m here to discuss the weather.”
“I wish you were. Look…off-the-record…I’ve been thinking about what you said and perhaps we were a bit too hasty in making a decision. But we informed corporate the day Cicero was terminated. I got back with them and shared your concerns about how this will influence labor relations but they were adamant about holding fast to our position. We’ve worked hard to build a productive relationship here. I’d hate to see things go back to chaos, like in the old days I’ve heard about.”
The best strategy to achieve results from an intractable employer is through a stick-and-carrot approach, keeping management focused on what the union has to give and could just as easily take away. “I’d also hate to see our relationship disintegrate. We’ve done a lot to help the business and workers through our labor-management committees. So, for right now, I’m willing to keep things the way they’ve been, but as far as Cicero goes, I’m coming after you with prejudice. If you can keep the two separate in your mind, so can I. But this truce won’t last forever.”