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Another Case

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Turkeytop
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Another Case

Post by Turkeytop » Mon Sep 14, 2020 10:15 pm

Employee A – White male, age 28
Seniority – three years
Job title – Labourer
Rate of pay - $24.77/ hr
Employee Record -Good

Employee B – Aboriginal male, age 36
Seniority – Five years
Job title – Welder
Rate of pay - $31.85/ hr
Employee Record - Good

The Company employs 45 people in its steel fabricating shop. They custom fabricate large structural steel products. Building trusses, bridge arches etc.

The two employees are friends. Most days, during their 30 minute unpaid lunch break, the two eat their lunch together in Employee A’s van in the Company parking lot.

The foeman suspected the two of drinking beer during their lunch break. They always smelled of beer after they returned to work

The foreman decided to check and see if he could catch them at it
The next day, he waited until the pair had been out in the van about 5 minutes, then went out to investigate.

It is possible they were drinking. When the foreman approached the van, employee A started the engine and began to drive away.

The foreman was determined to stop them and leaped out in front of the van. Employee A jammed on the brakes, but the van skidded in the gravel striking the foreman and knocking him down.

The foreman wasn’t seriously injured Just bruises and abrasions. Also his glasses were broken.

The Company called the Police. The police administered an alcohol test to the driver. They found he did have a level of alcohol in his blood but not enough to be legally impaired.

As for running into the foreman, the police concluded it had been unavoidable. It had been the foreman’s own fault for jumping into the path of the van. The police did not lay any charges.

The Company fired employee A (the driver) for endangering another employee (the foreman)

The Company suspended Employee B for 1 week for consuming alcohol on Company property.

Employee A filed a grievance alleging improper discharge. He asked to be reinstated with no loss of pay or benefits.

Employee B filed a grievance alleging improper discipline and asked to have the discipline removed from his record and to be made whole for all lost wages.

Does the grievance of Employee A succeed?

Does the grievance of Employee B succeed?

Is the Foreman entitled to Workers Comp for his injuries and broken glasses?



Rate This
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Re: Another Case

Post by Rate This » Mon Sep 14, 2020 11:27 pm

No, No and Yes.



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MotorCityRadioFreak
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Re: Another Case

Post by MotorCityRadioFreak » Mon Sep 14, 2020 11:57 pm

Does said company have a zero tolerance for drinking on the job? Sounds like a stupid question, but I know of a local retail outlet that had beer Fridays and had kegs in their office. The office was essentially a distribution center with a small warehouse in the back. And this was 5 years ago. Seemed like a big liability to me.

I will assume that this company has a zero tolerance policy towards alcohol and answer accordingly.

Employees A and B have no basis for their grievance.

Yes, the foreman has a basis for his grievance due to the fact that this occurred during work hours, especially if he was on the clock and not on break. This is under the understanding that the foreman was not intoxicated by drugs and alcohol.

I love these btw. It takes me back to business ethics class.


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Turkeytop
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Re: Another Case

Post by Turkeytop » Tue Sep 15, 2020 12:40 am

Yes, the foreman has a basis for his grievance due to the fact that this occurred during work hours, especially if he was on the clock and not on break. This is under the understanding that the foreman was not intoxicated by drugs and alcohol.
First off, the foreman doesn't have a grievance. He's Management, not Union. I don't know whether or not he filed a claim for Workers Comp. I expect he didn't. But he should have. I'm certain it would have been allowed.

But I wasn't about to give free advice to the a**hole.



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MotorCityRadioFreak
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Re: Another Case

Post by MotorCityRadioFreak » Tue Sep 15, 2020 1:05 am

My bad. I meant he had a case.


"I think that those who would try to make you feel less than who you are, I think that's the greatest evil."- Fred Rogers
"Those who fail to learn from history are doomed to repeat it."-Winston Churchill
I don't respond to trolls.

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G G
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Re: Another Case

Post by G G » Tue Sep 15, 2020 3:21 am

It doesn't really matter. It's a union shop so it will likely close up and move someplace else where unnecessary regulation will support actual profitability or go bankrupt.


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Mike Oxlong
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Re: Another Case

Post by Mike Oxlong » Tue Sep 15, 2020 6:06 am

IMO:
There's a little something in the scenario that jumps out at me. Unpaid lunch. They are not on the clock. That tells me they could pull out of the lot and go grab some McD's or something like that as long as they are back on the job in 30 minutes. They can say they were on their way to grab a snack and didn't see the leaping foreman.

If this went to arb, the arbitrator may very well say that since they are not being paid during lunch, they are free to have a brew or two as long as it don't push their blood level alcohol above the legal limit. And in this case, they were not. So both employees just may get back with lost wages.

The foreman should be let go, or at least given more than a few days off without pay, for jumping in front of the van.
That was a bonehead move. The supervisor should of known better than to pull a stunt like that.
However, he did get hurt at work. So he is entitled to comp in my opinion.

Let's face it, smelling beer on someone don't mean they are anywhere near being under the influence enough to impair job performance. I can run my hammer drill just fine with a few beers in my belly.



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craig11152
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Re: Another Case

Post by craig11152 » Tue Sep 15, 2020 6:30 am

What jumps out at me is a potentially drunk welder welding structurally significant products. That guy should have his torch gloves and face shield taken away. Let him be a drunk laborer with his pal
Of course nothing to do with TT's post.


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kc8yqq
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Re: Another Case

Post by kc8yqq » Tue Sep 15, 2020 6:34 am

Employee A: Yes, he was not at fault according to the police. If anyone, the foreman should have been fired for putting his life in danger (using poor judgement).

Employee B: Yes, as there was no evidence such as not seeing (a photo would be ideal) the actual beverage. It could have been non-alcoholic beer he was drinking.

Foreman: Yes (especially if in Michigan), it is job-related even though he caused his own injury.

The foreman should have had more patience with dealing with this pair. He could used other methods, such as an alcohol test, hidden camera(s), binoculars, and etc. Eventually, one or both employees would have slipped up.



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Turkeytop
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Re: Another Case

Post by Turkeytop » Tue Sep 15, 2020 9:08 am

The Union tackled the easy case first. (Employee B) suspended for drinking alcohol on Company property.

In any arbitration case involving discipline or discharge, the burden of proof is with the employer. They must prove the employee committed the alleged infraction.

This has to come through under oath testimony from a witness. In this case there was no witness who had observed the employee drinking. The cop had administered an alcohol test to the driver, but not to employee B.

The Company had zero evidence to support its case.

The guy had already served two days of a one week suspension. I told the Company they should cut their losses and bring him back immediately. They agreed.

Besides, the guy was a damned good welder.



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audiophile
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Re: Another Case

Post by audiophile » Fri Sep 18, 2020 3:58 am

Employee A gets one week suspension. He was guilty of drinking on the property.


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Turkeytop
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Re: Another Case

Post by Turkeytop » Fri Sep 18, 2020 1:32 pm

audiophile wrote:
Fri Sep 18, 2020 3:58 am
Employee A gets one week suspension. He was guilty of drinking on the property.
He was disciplined for endangering another employee, not for drinking on the property. They can't later on alter the grounds for the discipline.

They could argue that alcohol was a contributing factor, but to get that into evidence, they would have to call as a witness the police officer who administered the test. If they did that, the Union would get from him, in cross examination, that it was the foreman who put himself in danger.

That's what I told the Plant Manager. At the end of our meeting, I told him his case was very weak. He said he would call me after he talked with the Company's lawyer.



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