2016 Aug-18 PM 03. US. DISTRICT COUT ND. OF ALABAN ) ¢ In the Matter of Arbitration ) ( ) Re: FMCS No. 16-52192-3 between ¢ } Grievance: Termination ¢ Larry Richardson PECO FOODS INC. J iC ) and C ) ¢ RWDSU ) ¢ Hearing: Embassy Suites Hotel Tuscaloosa, AL May 17,2016 Both Briefs Received by: June 27, 2016 Representatives: For the Company: Stephen J. Carmody, Esq. Robert M. Weaver, Esq. For Union: Nicolas Stanojevich, Esq. Arbitrator: William H. Holley, Jr. EXHIBIT ecBackground This matter of arbitration is between Peco Foods, Inc., hereinafter also referred to as Peco or the Company, and the Retail, Wholesale and Department Store Union, Mid-South Council, hereinafter also referred to as RWDSU or the Union. This Arbitration involves the decision by Peco to terminate Mr. Larry Richardson, hereinafter also referred to as the Grievant Mr. Richardson’s employment was terminated as the result of an incident which occurred on January 22, 2015. On January 30, 2015, a Grievance was filed by Mr. Richardson. The Grievance stated: Step 1 - Statement of Grievance: Unfairly termination. Union’s Request: All back pay to be paid up in full and seniority to be restore to full. On February 3, 2015, Mr. Stephen Johnston, HR Director, denied the Grievance and the Union appealed. On February 23, 2015, Mr. Johnston denied the Grievance. The Grievance was appealed to arbitration wherein a hearing was held on May 17, 2016. Both parties were afforded full opportunity to present evidence and to examine witnesses who testified under oath. Both parties submitted post-hearing briefs which were received by June 27, 2016. Upon receipt of ‘both briefs, the record was closed.Is the Grievance arbitrable? Did the Company have just cause to terminate Larry Richardson? If not, what is the appropriate remedy? Relevant Provisions of the Labor Agreement ‘Article 2 - Management Rights ‘The Company retains the sole right to manage its business, including but not limited to the rights to decide the number and locations of plants, the number and types of machinery and equipment to be used, the products to be processed or produced, the methods and place of production, the ‘schedules or production, the size of the work force, plus the right to hire, assign, layoff, recall, transfer and promote employees, to maintain order and efficiency in its plant operations; to discipline and discharge ‘employees for just cause; to set job requirements and determine the individual qualifications of all employees; to determine the starting and quitting times and the number of hours to be worked by all employees; to discontinue all or any part of its business operations; to control, regulate or discontinue the use of supplies, machinery, equipment and other property ‘owned, used, possessed or leased by the Company. Management shall have all other rights and prerogatives, including those exercised unilaterally in the past, subject only to those restrictions on such rights as are expressly provided in this Agreement. The above management rights as set forth above are vested exclusively in the Company, provided these will not be used to avoid any of the provisions of this Agreement. Article 10 - Grievance and Arbitration Procedure 1. The procedure of the Article shall be the exclusive means for the disposition of all grievances arising under this Agreement.‘The term “grievance” as used in this Agreement means any dispute, claim or complaint arising under and during the term of this Agreement and filed by an employee in the bargaining unit of the Union. Grievances are limited to matters of interpretation or application of express provisions of this Agreement, and they shall be processed as promptly as possible in accordance with the following steps, time limits and conditions herein set forth: Step I: Step 2: The employee shall discuss the grievance or complaint with his immediate supervisor within five (5) workdays after the event giving rise thereto, or within five (5) workdays following the date on which the grievant had or reasonably should have had knowledge thereof. In the event the employee so requests, the appropriate steward shall be present at this step. The supervisor shall give an answer within five (5) workdays after the grievance is received. Grievances resolved at this step are on a non-precedent setting basis. If the grievance is not settled in the manner provided for in Step I, it may be presented to the appropriate superintendent or his designated representative within five (5) workdays after receipt of the Step 1 answer. The grievance must be presented in writing on a form to be provided by the Union and must state the following information: (@) Name or names of employee(s) involved; (b) Department or departments involved; (©) Date and time of the occurrence or discovery of the grievance; (@ Facts of the incident on which the claim is based; (©) Specific provision of this Agreement alleged to have been violated; (® Remedy requested;(g) Date and time this grievance was submitted at Step 1; (a) ‘Signature(s) of the aggrieved party or parties. ‘The superintendent shall give the Company's answer in writing within five (5) workdays after ‘the grievance is received. Step 3: In the event the grievance is not settled in Step 2, then the grievance may be appealed in writing to the Plant Manager or his designated representative within five (5) workdays after receipt of the Company's answer in Step 2. The Plant Manager or his designated representative shall give an answer in writing within five (5) workdays from the date of appeal. In the event the grievance is not settled, then the aggrieved party or parties shall have the right to request arbitration as provided in this Agreement. Step 4: Prior to submitting a grievance to arbitration, the union and company may mutually agree to utilize the services of the Federal Mediation and Conciliation Service to mediate a settlement. Any mediated settlement agreed to by the parties will be final and binding on the parties. Should this meeting fail in settling the item in question, either of the parties hereto may request arbitration. Should a Company representative fail to give his written answer within any time limit set forth above, the Union may appeal the grievance to the next step at the expiration of such time limit. The grievance shall be considered settled if not appealed to a higher step within an established time limit and shall not be subject to any further proceeding. This provision may be waived in specific instances by mutual written agreement of the parties. Discharge grievances shall be processed initially at Step 3 of the grievance procedure, and the written grievance shall be filed with the Plant Manager or his designated representative within five (5) workdays following the date of discharge.‘The Union may refer the grievance to the International Representative of the Union at any step, but only one step, in the grievance procedure provided not more than five (5) additional days are added to the step at which the International Representative gets involved. {If the Union desires to take a grievance to arbitration, it shall give vwritten notice to the Company of its intent within fifteen (15) calendar days of the expiration of the time limit or the date of the Company's answer at Step 3 of the grievance procedure. The parties shall then attempt to select an impartial arbitrator. If they are unable to agree upon a choice within seven (7) calendar days afier the Company's receipt of the Union's notice of intent to arbitrate, the parties may jointly request the Federal Mediation and Conciliation Service to submit a list of seven (7) arbitrators from which the arbitrator will be selected. After receiving the FMCS panel, the impartial arbitrator shall be selected by each party striking in tum, one strike at a time from the list of seven (7) years. The Union, as moving party, shall have the first strike. The name remaining on the FMCS panel after each party has exercised its strikes shall become the impartial arbitrator. The arbitrator so selected shall conduct a hearing on a mutually agreeable date at which time the parties shall be afforded full ‘opportunity to state their positions with respect to the issues involved and to present evidence, exhibits and arguments to the arbitrator. Thereafter, the arbitrator shall issue a written opinion and award based on the evidence presented at the hearing, The fee of the arbitrator as well as the other expenses of holding the arbitration hearing shall be borne equally by the Company and the Union; however, each party shall bear the expense of its own representative, its own witnesses, and preparing and presenting its ‘own ease. Ifa transcript of the proceedings is deemed necessary by either party, its cost shall be paid by the party ordering same. ‘Only one grievance shall be submitted to an arbitrator for determination at any one time. However, it is understood that ‘more than one grievance involving the same issue or issues may be submitted jointly to the same arbitrator. The jurisdiction and authority of the arbitrator and his opinion and award shall be exclusively limited to the interpretation and specific application of the written provisions of this Agreement. The10. ML arbitrator shall have no power to add to, subtract from, or modify the terms of this Agreement, or any supplementary agreements, nor rule on any matter except on grievances occurring while this ‘Agreement is in full force and effect between the parties. The arbitrator shall be bound by the facts and arguments submitted to him and may not go beyond the articles and sections of this ‘Agreement, or established past practices, in rendering his opinion and award. In any dispute submitted to arbitration, the arbitrator shall be limited to rendering an award which is remedial. Any award of back pay made pursuant to the provisions of this Article shall be limited to the amount of wages the grievant would otherwise have ceamed from his employment with the Company during the period involved (not to exceed eight (8) hours in any workday), less any ‘unemployment or other compensation for personal services that he may have received from any source during this period. No back pay shall be awarded for any period during which the employee, in accordance with his seniority standing, would have been laid off for economic reasons. Under no circumstances shall an employee bbe made more than whole in any dispute involving back pay. ‘The opinion and award of the arbitrator shall be final and binding upon the parties when rendered upon a matter within the authority of the arbitrator and within the scope of matters subject to arbitration as provided in this Agreement. Article 17 - Company Rules ‘The Company retains the right to make such reasonable rules and regulations not in conflict with this Agreement, as it may from time to time deem best for the purpose of maintaining order, safety and/or efficient operation of the plant, and after reasonable advance notice thereof to the employees and the Union, the Company shall require compliance therewith by its employees. The Union reserves the right to question the reasonableness of the Company's rules and regulations by filing a written grievance with the General ‘Manager or his representative within fifteen (15) calendar days of the receipt of said rules and regulations. In the event the matter is not satisfactorily settled between the parties, it may be submitted directly to arbitration by the parties. Any rules and regulations, ‘changes or modifications, not so grieved within the specified time provided for in the Article shall be deemed reasonable.2. The Union agrees to uphold the rules and regulations of the Company in regard to punctual and steady attendance, proper and sufficient notification in the case of necessary absence, conduct on the job, and all other reasonable rules and regulations established by the Company. This initial set of work rules to be in full force and effect during the term of this Agreement is subject to modification as provided in Section 1 of the Article. 3. The Union and Company recognize that among other things although not limited to the following, the following items shall constitute proper cause for discharge or discipline as the Company's discretion shall dictate: dishonesty, intoxication or use of alcoholic beverage while on duty or on Company premises; recklessness resulting in a serious accident; use of narcotics; gross negligence or neglect of duty; theft; smoking in a prohibited area (after one warning notice); endangering the safety of other persons; falsification of Company records; sleeping on the jobs fighting; insubordination to a supervisor or Company designee in charge of designating work; gambling; tardiness in reporting to regularly appointed work after waming by Company; violation of traffic laws and ordinances by employees operating motor vehicles while ‘on business for the Company; and the failure or refusal of any employee to perform work which is assigned to him by the Company. All Company rules and regulations are subject to the grievance procedure ‘The Company: Peco decided to terminate the employment of Larry Richardson for making a comment about “slinging some lead” in the workplace during a Company safety meeting. Richardson argued that it was all a misunderstanding and he was just kidding and that everyone kids around about violence at work.Peco submitted that the Arbitrator does not have jurisdiction to decide this Grievance because, although the Union met the deadline for filing a Step 3 Grievance of Peco’s decision to terminate the employment of Richardson, it did not demand arbitration of Peco’s decision within the proscribed time period of the Collective Bargaining Agreement (CBA). Even if the “Arbitrator concludes he has jurisdiction over the Grievance, Peco was well within its broad right under Section 17 of the CBA to terminate Richardson for cause, and therefore, for this additional reason, the Arbitrator should deny the Union’s grievance. If the Grievance is for some reason granted by the Arbitrator, Richardson is not entitled to any back pay because he did not mitigate his damages by making a good faith effort to obtain replacement employment and the Union did not prosecute the request for a hearing in an efficient and reasonable manner. ‘The Company stated that it terminated Richardson's employment on January 23, 2015. On January 30, 2015, within the time period set forth in Section 10 of the CBA, the Union grieved the Richardson termination. On February 3, 2015, Peco denied the Union’s Grievance, ‘After the initial denial, the Union appealed to the plant manager. Peco denied the secondary appeal on February 23, 2015. According to the fax transmission receipt, the Union received notice of the denial of the Grievance at 4:10 p.m. on February 23, 2015, On March 23, 2015, thirteen days beyond the deadline for submission to arbitration, the Union sent a certified letter to Peco requesting arbitration. On March 25, 2015, the Union submitted the request to the Federal Mediation and Conciliation Service (FMCS). Also on ‘March 25, 2015, Peco received notice from the FMCS with a list of panelists. Peco received the certified letter from the Union on or around April 1, 2015. Peco forwarded the FMCS email andletter to its attorney. From receipt of the letter dated March 23, 2015 until January 7, 2016, neither Peco nor its attorney heard anything from the Union about the Richardson arbitration. On January 7, 2016, during a discussion with James Shackelford (Shack), the Union’s representative, about the timing of contract negotiations for a renewed CBA, Shack asked about the status of the Richardson arbitration. Shack was told that neither Peco nor its counsel has heard form the Union or its attomey about striking the panel. On January 12, 2016, counsel for Peco was contacted by the Union’s counsel about selecting an arbitrator. Union’s counsel asked that a new panel be requested of FMCS and that they restrict the panel to local arbitrators to keep the costs down. On February 25, 2016, FMCS sent a new panel of proposed local arbitrators. Counsel for Peco and Counsel for the Union selected an arbitrator on March 21, 2016. Notice ‘was sent the next day to FMCS about the selection of this Arbitrator. ‘The Company stated that on January 21, 2015, during a safety meeting discussing work rules, Larry Richardson, a Peco maintenance employee, told his immediate supervisor, Rodney Forte, that he was going to “sling some lead.” Upon reflecting on Richardson’ statement , Forte informed his supervisor and they reported it to Human Resourees. Complex Human Resource Director Steven Johnston launched an immediate investigation into the threatening statement. He called Richardson and the Union’s representative in for a meeting and during the meeting, Richardson admitted to making the statement. When asked what he meant by the statement, he claimed that he could not explain the statement, During the investigation, Richardson made no mention that it was a joke. His explanation was “I know what other people think I mean, but I 10don’t know what I mean.” At the arbitration hearing, Richardson would claim that he was only joking. Richardson’s fellow workers confirmed that he made the statement during the meeting. Faced with the admission by Richardson that he made the threatening comment in a safety meeting with other workers and confronted with Richardson's perplexing response during the investigation, Johnston contacted Corporate Human Resouree Director, Steve Conley to discuss discipline. On January 22, 2015, Johnston recommended and Conley approved the immediate termination of Richardson’s employment based upon his terroristic threat and his confusing explanation. They based their decision on a common sense interpretation of the “sling some lead” remark made by Richardson and his inability to explain the comment's meaning. At the hearing, Johnston testified that threats of violence are not tolerated by Peco. He has consistently recommended termination of any employee who makes a confirmed threat of violence in the workplace. Johnston interpreted Richardson's comment about slinging lead as threat of gun violence. ‘The Company contended that Articles 10 and 17 of the CBA allow Peco great leeway in terminating employees for cause, Article 10 states: “The Company retains the sole right to manage its business, including but not limited to the rights. . .to discipline and discharge employees for just cause. ..” Article 17 states: “The Union and the Company recognize that among other things although not limited to the following. ..” The non-inclusive list does not specifically include making a threat in the workplace, but other Peco work rules govern this type of behavior: “unlawful harassment is prohibited by this Policy and consists of verbal or physical conduct that is abusive toward an individual. . .[and] has the purpose or effect (1) creating an ulintimidating, hostile or offensive working environment. ..” The Union defended by claiming that Richardson was just joking around. However, if this is the ease, Peco was well within its rights to terminate him for cause for violation of the no horseplay and practical jokes rule, “Horseplay and practical jokes are prohibited.” Peco has a duty to its employees to provide a safe workplace free from violence or threats of violence. A statement during a company meeting by an employee about “sling some lead” in the workplace violates this rule and is within the broad coverage of Article 17's termination for cause. Within the time period set forth in the CBA, the Union sought relief under Step 3 of the grievance procedure for Richardson’s termination. In accordance with Step 3, Peco conducted a meeting with the Plant Manager, Tim Daniel, during which Peco personnel considered the Union’s position and the Grievance was denied and Step 3 was completed on February 23, 2015. ‘That same day, the Union was sent notice of Peco’s decision to deny the grievance. In accordance with Article 10 of the CBA, the Union was required to request in writing a notice to arbitrate on or before March 10, 2015. CBA, Article 10 states: 6. If the Union desires to take a grievance to arbitration, it shall give written notice to the Company of its intent within fifteen (15) calendar days of the expiration of the time limit or the date of the Company's answer at Step 3 of the grievance procedure. On March 23, 2015, Shack sent a certified letter on behalf of the Union requesting arbitration of the termination of Richardson. At the arbitration hearing, Shack confessed that the ‘Union had not submitted a written request for arbitration in a timely manner. 12‘The CBA allows the Union to go directly to Step 3 of the Grievance Procedure. CBA, Article 10 states: 4. Discharge grievances shall be processed initially at Step 3 of the grievance procedure, and the written grievance shall be filed with the Plant Manager or his designated representative within five (5) ‘workdays following the date of discharge. If the appeal deadline is missed, the CBA presumes that the Grievance is abandoned: “The grievance shall be considered settled if not appealed to a higher step within the established time limit and shall not be subject to any further proceeding,” Article 10 at #3 at p. 9. “There is no question that the Union timely filed a Grievance in accordance with Step 3. ‘However, the Union’s failure to submit the Grievance for arbitration after Step 3 in a timely fictional prerequisite. Without a timely request, the Arbitrator cannot rule on 1. The procedure of the Article shall be the exclusive means for disposition of all grievances arising under this Agreement. 9. The jurisdiction and authority of the arbitrator and his opinion and award shall be exclusively limited to the interpretation and specific application of the written provisions of this Agreement. The arbitrator shall have no power to add to, subtract from, or modify the terms of this Agreement, or any supplementary agreements, nor rule on any matter except on grievance occurring while this ‘Agreement is in full force and effect between the parties. Article 10 at pp. 8, 10. ‘Mr. Richardson testified that he received unemployment compensation and that he worked part-time on occasions for American's Thrift. He did not have copies of applications or 13otherwise establish any effort of a good faith effort to obtain gainful employment after his termination of employment. He did not provide any testimony as to the amounts he received during alternative employment. The delay between filing for arbitration and the arbitration hearing is the Union’s fault for not contacting Peco about selecting an arbitrator and scheduling an arbitration hearing. Assuming for some reason the Arbitrator rules in the Union's favor, back pay is not warranted. ‘The Company argued that an arbitrator's authority to rule on a Grievance emanates from the Collective Bargaining Agreement executed by the Union and the Employer. An arbitrator only has jurisdiction to rule on matters that are procedurally sufficient. The Union met the deadline for grieving a termination of employment, but missed the deadline set forth in the CBA for submitting Peco’s denial of the Grievance to arbitration. Thus, the Arbitrator has no authority to rule on the Union's Grievance. Even assuming arguendo that the Union has met the jurisdictional prerequisites, Peco was well within its broad rights under Section 17 of the CBA to terminate Richardson’s employment for cause. If, for some reason, the Arbitrator accepts the Grievance and rules in Richardson’s favor, he is not entitled to back pay. ‘The Company argued that the Arbitrator has no jurisdiction over the Richardson Grievance. Arbitrators only have the authority to rule on issues as provided under the terms agreed to by the Employer and Union in the applicable Collective Bargaining Agreements. Here, the Arbitrator has no jurisdiction to rule on the Grievance because of the untimely request by the Union to arbitrate. 14‘The Company argued that the Arbitrator has no jurisdiction over the Richardson Grievance. Arbitrators only have the authority to rule on issues as provided under the terms agreed to by the Employer and Union in the applicable Collective Bargaining Agreements. Here, the Arbitrator has no jurisdiction to rule on the Grievance because of the untimely request by the ‘Union to arbitrate. Similar jurisdictional objections have resulted in dismissals of Grievances by arbitrators. In the matter of the Arbitration Between [Grievant 11 and [Respondent 1], 2015 WL 10489697 (2015), the employer argued that the Grievance was not timely filed because the Union submitted it beyond the ten day period provided for in the Collective Bargaining Agreement. For the first time at the arbitration, the Employer raised the untimeliness defense. The arbitrator held as follows: Because the Union’s filing on December 9, 2009 was more than 15 ‘working days after receipt of the level Ill response (on November 9, 2009) this Arbitrator finds that the Union has failed to comply with the 15 ‘working day deadline required by Article IV of the Collective Bargaining ‘Agreement. It is with heavy heart that this Arbitrator finds, as a ‘consequence of the prior findings, that I have no jurisdiction to decide the merits of this case because Article IV subparagraph M states that where the time limits have not been met “. . the grievance has been dropped or settled on the basis of the last answer to the grievance”. Since the grievance in this case is deemed by the terms of the Collective Bargaining ‘Agreement to have been dropped or settled, there is no issue that can be appealed to arbitration. Id. at p. 5-6. ‘The arbitrator in In the of the Arbitration Between [Grievant 1] and [Re nt 11,2015 WL 10489697 (2015), considered untimeliness of the same amount of days as the Union was delayed in this arbitration. The arbitrator held as follows: 15[The grievance was filed] 13 days after the contractually provided deadline for filing. Even allowing an abundance of benefit to the Grievant, there is no evidence found in the record of this hearing that would excuse this late filing. Accordingly, the timeliness must be enforced in this case. The grievance must be considered as not filed within the timeliness the parties agreed to in their labor contract. AAs such the eontract bars the Arbitrator from hearing and deciding the grievance on its merits. 1d. at p. 13. It is uncontroverted and admitted that the Union did not comport with the timing requirements of Section 10 of the CBA. The Union claims waiver because the amount of time that lapsed between the time of filing of the Grievance and the arbitration hearing. As set forth clearly above, the Union was responsible for the delay in the hearing. After Union’s attorney contacted counsel for Peco, the arbitrator was selected, a hearing was scheduled, and a hearing completed without delay. So delay cannot be used as a factor in denying the jurisdictional argument. At the hearing, the Union presented no evidence of ongoing negotiations, interference, past practice of ignoring time limits, or a good faith mistake in calculations. The Union’s only defense is the fourteen month time lapse between the untimely filing and the hearing on the matter. Likewise missing is any language in the CBA that will allow consideration of any untimely filed request for arbitration... The Arbitrator lacks jurisdiction to consider the Union’s Grievance, and therefore, it should be dismissed. Even assuming arguendo the Arbitrator has jurisdiction over the grievance, Peco was well within its rights under the CBA to terminate Richardson for cause. Workplace threats of violence are very serious and must be met with an immediate and thorough investigation. Future liability and Peco's policies demand this much. Peco immediately investigated the threatening 16comments. After its investigation, Peco decided that, based upon the nature of the statement and the inability of Richardson to explain his comments, to terminate his employment. Established arbitration jurisprudence confirms that threats or acts of violence in the workplace constitute just cause for immediate discharge with or without the existence of prohibiting rules. In re NITEC Paper Corporation United Steelworkers of America, Local 12970 1980 WL 635100 *2 (Goodwin, 1980); in re Certainteed Corporation, IG Group / Kansas City, . E Over-Thes i fer Drivers, W: en 41,1982 WL 985826 *S (Madden, 1982); In re Broward Community College (Davie, Fla.] Federation of Public Employees, 1997 WL 34982911 *5 (Thornell, 1997); In ze Mason Hanger Corporation (Amarillo, Texas) Pantex Guards Union, Local 38, Intemational Guards Union of America, 1998 WL 35551499 *6 (Baroni, 1998); In.re Visteon Climate Control Systems, Ltd. [West Senec, NLY.Jand United Auto Workers, Local 55,2004 WL 6340946 *7 (Fullmer, 2004), In the arbitration, In Re tation Services) and [Grievant-Labor Union]. 1997 WL 34881061 (Strasshofer, 1997), the Union proffered an argument that joking of this nature occurs in the workplace all the time and therefore should excuse the threat of violence which resulted in the employee's discipline. “This type of defense mounted against a Union grievant is typical when relying on ‘shop talk’.” Id, at *5. Arbitrator Strasshofer denied the Union's Grievance holding that, under the circumstances, it was reasonable for the Employer to conclude that the Grievant's statements were threats of violence. 7Peco surmised that Richardson's comment during a safety meeting about “slinging some lead” was tantamount to workplace violence threat, Evidence supporting Peco’s conclusion was Richardson’s inability to explain his comments and the fact that he understood that the comments could be perceived by others to be a threat of violence. Peco was well within its rights to discharge Richardson under the terms of the CBA. Based upon recent workplace gun violence incidents, any discipline short of termination would not be justified and could result in a negligent retention claim. ‘The Company argued that Richardson has not mitigated his damages and has not established a good faith effort to obtain employment. Peco established that Richardson did not make a good faith effort to seek alternative employment after his termination of employment with Peco. Choosing instead to collect unemployment compensation and work every now and then at the Thrift Center. Arbitrators have consistently held that terminated employees have an obligation to mitigate the amount of back pay loss. A discharged employee has to make a reasonable effort to mitigate “damages” by seeking substantially equivalent employment. Back pay may be wholly or partially denied where the employee has failed to take advantage of reasonable employment opportunities. Arbitrator Donald N. Jafife refused to award back pay where the terminated employee failed to prove a good faith pursuit of alternative employment. In the Matter of Arbitration Betwee ant [Respond Lectric and Services), Employer, 2010 WL 3808437 (Jaffe, 2010). Arbitrator Jaffe explained the mitigation requirement of the discharged employee: 18It isa cardinal rule of contracts that an injured party is under a duty to mitigate its damages and may not recover those damages which it could have reasonably avoided. The duty to mitigate is limited as follows: “The rale requiring one injured by a wrongful act or omission of another to minimize the damages resulting does not require a party to make extraordinary efforts, or to do what is unreasonable or impracticable. Ordinary and reasonable care, diligence and prudence are the measure of the duty. [Citation omitted.] The efforts of the injured party to prevent or lessen his damages include a reasonable expenditure of money as part of his damages.’ [Citations omitted.]” ‘The Arbitrator recognizes that one is not required to incur extraordinary expense, however, in this instance, the record is devoid of the efforts, if any, of the Grievant to mitigate his damages or what income he had. The burden of proof to present evidence of a reasonable undertaking to mitigate damages rests with the Grievant and is not for the Arbitrator to speculate. sane Back pay may be wholly or partially denied where the employee has failed to take advantage of reasonable employment opportunities. The Grievant had a duty to mitigate his damages in this case. Id. at *16. Richardson had a duty to mitigate his damages. He did not do so and, therefore, the “Arbitrator should not award any back pay. To award back pay would be inequitable and reward Richardson for his dilatory actions. The Arbitrator should not throw “good” money toward “bad” behavior. The Union did not seek to prosecute this arbitration in an efficient and timely fashion and, therefore, Richardson is not entitled to any back pay. The Union instituted an almost ten month, delay in seeking to select an arbitrator and holding an arbitration hearing on this Grievance. Like the failure to mitigate by not seeking alternative employment in good faith, the Union's tactics 19should not be rewarded with back pay. Arbitrator Harry Dworkin wrote in Dayton Tire and Rubber Co.: An employee may not passively observe conduct which if permitted to continue would give rise to a claim for monetary compensation, without acting in a reasonably prudent manner. A union, or an employee, may not sit idly by in the fact of a contract violation with the expectation of reaping benefits inuring from the conduct of the employer. The foregoing principles have been enunciated in various forms; they are suggested by the phrases “equitable estoppel”, “Rule of Laches”, and “failure to make timely protest.” Dayton Tire & Rubber Co., 46 LA (BNA) 1021, 1027 (Dworkin, 1966). Arbitrator Bonnie Bogue examined the same type Union delay as present in here: The issue was resolved at the hearing by a bench ruling that the grievance ‘was arbitrable because the Union had given the Company timely notice that it intended to demand arbitration, so that it preserved its right to arbitrate the grievance. However, the Union had then delayed actually initiating arbitration for several months. Because of the undue delay between June and November 1993, it was ruled that a back pay award, if any is ordered, would be reduced so that the Company is not liable for that period of improper delay by the Union. In Re [Respondent] (Agricultural Services) and [Grievant | - Labor Union}, 1994 WL 16893509 *10 (Bogue, 1994). Arbitrator Bogue held: back pay to be offset by (1) what he would have eared between June 9 and November 29, 1993, the period when the Union improperly delayed ‘moving the matter to arbitration, and (2) any earnings which the Grievant received from other sources, including any unemployment benefits, between the date of his termination on February 8, 1993, and the date of his reinstatement. Id. at *18. 20Because of the failure to mitigate by establishing a good faith search for employment, the ‘Arbitrator should not award Richardson back pay. The Union unreasonably delayed in prosecuting this Grievance. For this additional reason, there should be no award of back pay. The Company concluded: The Union failed to request arbitration within the required amount of time. ‘The language of the CBA commands the Arbitrator reject the tardy grievance. By the terms of the CBA, the grievance must be considered abandoned and, therefore, the Arbitrator has no jurisdiction. Richardson made a terroristic threat of harm during a company safety meeting. Peco reasonably interpreted his statement as a threat of violence. The Arbitrator should therefore deny the Union’s grievance and support eco’s decision to terminate. If for some unlikely reason the grievance is upheld, Richardson's dilatory tacties and the Union’s unexplainable delay ‘warrant a denial of back pay. Company Brief, p. 16. “The CBA provides that Peco must have just cause to discipline or discharge an employee. Mr. Richardson filed a Grievance over his discharge, and the Grievance was processed pursuant to the provisions of the grievance procedure of the CBA. Failing to reach a resolution, the Union referred the Grievance to arbitration. ‘The Union and Peco are signatories to a CBA that covers certain employees employed by Peco at its poultry processing facility in Tuscaloosa, Alabama. The grievant, Larry Richardson, ‘was a full-time employee whose duties included among other things, janitorial services and auclean-up in the shipping department. He was a long-term employee who had worked for Peco for approximately 23 years. “The events which gave rise to the Grievance occurred on January 21, 2015. Larry Richardson began his shift, as he did every moming with his co-workers in a changing and locker room known as the warm-up room. Mr. Richardson’s shift ran from 8:30 am to 5:00 pm, and he often arrived up to thirty minutes early to prepare for work. While the employees were preparing {for their shift, Supervisor Rodney Forte entered to address some preliminary matters. Mr. Forte reported that employees on the previous shift had been throwing frozen CO, pellets, orice, in contravention of Company policy. Mr. Forte wanted to remind Mr. Richardson and his fellow employees that throwing ice violated Company policy and would not be tolerated. In connection with his announcement, Mr. Forte said something to the effect of, “y'all don’t need to be throwing ice on the floor,” Mr. Richardson responded, “I don’t throw ice, | throw lead.” Several employees in the room laughed at the quip. Mr. Richardson testified, and the statements of his co-workers corroborated, that the employees in the shipping department take a tone of light playfulness at work. They often joke with one another about a variety of topics, with each person attempting to get a laugh out of his co-workers. When asked why he made the comment, Mr. Richardson responded, “to get a laugh.” Nobody in the room felt threatened by Mr...Richardson’s comments. Mr. Forte admitted that he did not feel threatened by the comment. There was no air of tension or stress in the room. Mr. Richardson’s comment was not said in anger or frustration. The employees in the warm-up room continued as though it werebusiness as usual. Despite these realities, Mr. Forte felt it necessary to report the comments to his superiors. ‘The parties presented conflicting evidence as to when the next step in this process ‘occurred. Mr. Forte indicated that he reported Mr. Richardson's statement around 9:00 a.m., and a meeting occurred around 9:30 a.m. Union Steward Alonzo Parr and Mr. Richardson, however, placed the timing much later — closer to lunch. Mr. Forte approached Mr. Richardson while he ‘worked and informed him he was needed in the conference room. Nobody informed Mr. Richardson why, and he entered the conference room unaware of what would happen. ‘Human Resources Director Stephen Johnston, Supervisor Rodney Forte, and other members of Peco Management were waiting for Mr. Richardson in the conference room. Mr. Richardson was surprised to hear that he had been called in as a result of the comment he made that morning. He never denied making the statement. When Management asked him what he ‘meant, “ he responded with “I don't know” and “I didn’t mean anything by it.” Mr. Parr asked Mr. Forte if he felt threatened by Mr. Richardson’s comments. Mr. Forte replied that he had not. Mr. Forte testified that he only reported the comment at all because of recent UPS workplace shooting. Mr, Johnston asked Mr. Richardson to exit the room and allow Peco to discuss the matter. ‘After a short wait, Mr. Richardson was summoned back into the room, and was told to finish his lunch and return to work. No sooner had he finished lunch, Peco again summoned him to the 23conference room. Mr. Johnston informed Mr. Richardson that he should go home for the day and return in the morning. He would be paid for the remainder of the day. ‘When Richardson returned to work the following morning, Peco Management confronted Richardson in the parking lot before he could enter the building. Jobnston informed Richardson that Peco had decided to terminate him, effective immediately. When Richardson inquired as to the reason, Johnston cited his comment: “I don’t throw ice, I throw lead.” Union Steward Alonza Parr met Richardson outside and, after understanding the situation, advised Richardson to leave. On January 30, 2015, the Union filed a Grievance on behalf of Richardson. The Grievance cited an unfair termination and requested that Richardson be reinstated with full pay and restoration of seniority. While the exact dates are unclear, the Grievance form reflects that the Employer and Union met on at least two occasions. Johnston denied the Grievance on February 3, 2015 and again on February 23, 2015. Union Representative James Shackelford testified that, upon receiving Peco’s final answer on February 2, he verbally notified the Company of the Union’s intent to arbitrate. On March 23, 2015 the Union memorialized that notice in a written communication from Shackelford to Johnston. Both Johnston and Shackelford testified that, following the written notice of intent to arbitrate, the Union and Employer met on multiple occasions to discuss Richardson's case. Unable to reach a resolution, the parties proceeded to arbitration. The parties requested two FMCS panels before agreeing on an arbitrator. No evidence which explained the gap of time 24between the notice of intent to arbitrate on March 23, 2015 and the hearing on May 17, 2016 was put forward. ‘The Union argued that the Grievance should be sustained and Richardson should be retumed to work and made whole for all losses. The Grievance is procedurally arbitrable. The parties have never strictly adhered to timelines and the Union notified Peco immediately after the third step decision that it intended to arbitrate the Grievance. Throughout the fifteen months that lapsed between Pecos third step Grievance answer and the arbitration hearing, the parties met on multiple occasions to discuss a potential resolution. Despite the length of time, Peco waited until its opening statements at the hearing to raise a challenge to the Grievance’s procedural arbitrability. Second, Peco failed to carry its burden of showing just cause for Richardson’s termination. Peco did not show that Richardson violated Company policy when he said “I don’t throw ice, I throw lead.” Peco did not even show that the comment was threatening. The ‘Arbitrator should therefore sustain the Grievance and require Peco to return Richardson to work and make him whole for all losses. ‘The Employer argued that it should net be liable for all backpay in the event that the ‘Arbitrator sustains the Grievance. The Employer alleged that the Union was responsible for delaying the processing of the arbitration. However, the Employer never put on any evidence of fault on either party as to the delay and cannot therefore expect a limitation on backpay on those grounds. Furthermore, the CBA does not place the responsibility for requesting a panel or scheduling an arbitration on any party in particular. 25Procedural arbitrability questions often present arbitrators with difficult decisions. On the cone hand, there exists a general presumption that, where possible, a Grievance should be decided on its merits rather than on technicalities. On the other hand, an arbitrator's authority is limited to interpretation and application of the partics’ bargained-for agreement, The lack of strict adherence to timelines should not prevent the arbitrator from reaching the merits of the underlying dispute. The parties do not have a history of strict adherence to timelines, the Employer suffered no prejudice, and the Employer had ample opportunity to raise the issue of arbitrability well before the hearing date, but chose not to do so. If the Employer wanted to challenge the procedural arbitrability of the Grievance, it should have and could have done so fifteen months ago when it became aware of any iscrepancy. This Arbitrator has observed that, While it is not inappropriate for the Company to bring forth the question of arbitrability at the arbitration hearing for the first time, the Company has the burden to prove that the Grievance is not arbitrable. When the question concems procedural arbitrability, the Company should challenge the timeliness of the Grievance when it became aware of any failure to file an appeal on the Grievance in accordance with the Agreement. Without a challenge coupled with proceeding with the Grievance through the steps of the Grievance provides evidence that the Company had accepted the Grievance and had not challenged the arbitrability of the Grievance. Keebler Co., 118 LA 326 (Holley, Jr., 2003) ‘That case is distinguishable from this one in that the Employer did not raise the issue of substantive arbitrability until cross-examination of a Union witness. However, the substance of the observation remains valid. The Employer here was aware of the objection to arbitrability on March 23, 2015. Despite that knowledge and multiple meetings to resolve the Grievance 26between that time and the hearing, the Employer never once raised the objection. For the entire 15 months, both parties accepted the Grievance as arbitrable and proceeded. Other arbitrators have held that waiting until a hearing or just before a hearing to raise substantive arbitrability concerns constitutes a waiver of those objections. Ardco, Inc., 108 LA 326, 330 (Wolff, 1997); ‘Stone Container Corp., 105 LA 385, 388-89 (Berquist, 1995); Masolite Concrete Prods., 103 LA 10, 14 (Keenan, 1994). Peco suffered no prejudice which resulted from the Union’s late notice of its intent to arbitrate, Shackelford provided undisputed testimony that he notified Mr. Johnston of the ‘Union’s intent to arbitrate upon receipt of Peco’s answer at Step 3. Though the CBA calls for written notice, Shackelford’s verbal notice and the Employer’s subsequent failure to raise any objection reveal that Peco suffered no harm or loss. The Employer provided no evidence that the parties adhere strictly to timelines in the Agreement. The very Grievance in this case is evidence of the lax approach. The CBA reads, “{dlischarge grievances shall be processed initially at Step 3,” and sets Step 4 as an optional resort to mediation. ‘The parties met only twice, both times with Johnston in HR. The parties never requested or engaged in mediation. The law abhors forfeitures and this case presents no compelling reason to resort to such an extreme result. ‘The Union argued that Peco did not have just cause to terminate Richardson. The CBA. between the parties requires that Peco prove that it had just cause to discharge Richardson. Just cause is a nebulous concept and a penalty that is not just under all circumstances is to be set aside, The employee is entitled to an individualized application of the standard - the specific facts of his case should determine the existence or lack of just cause. In proving the offense, and 27that it had just cause to terminate the Grievant, the Company cannot simply show that a set of facts happened, it must show that, under all the facts and circumstances, that the discipline imposed was commensurate with the purported offense. Koven & Smith, Just Cause: The Seven Tests, pp. 23-24, 2" Ed, (Farwell, 1992). ‘The Union contended that the burden is on Peco to establish that it had just cause to discharge Richardson. It must prove each and every element of the offense; in this case, that he threatened a fellow employee or violated Company rules as to horseplay, harassment, and workplace violence. This purported offense, if proven, must, under all ofthe facts and circumstances of this case, warrant discharge of Richardson. The undisputed facts can lead to only one conclusion: Richardson did not threaten anybody at the Peco facility. An objective view on his statement, “I don’t throw ice, I throw lead” cannot result in a finding that the language is threatening. First, the comment is not directed at any person in particular. Second, the comment is general and vague. Third, the comment was made in a casual, lighthearted tone. Fourth, and most telling, nobody present felt threatened by the statement, Where arbitrators have found comments to be threats which justify discipline or discharge, those threats have been personal, specific, spoken in anger, and actually taken as threats. 148036-AAA, 2013 LA Supp... 148036 (Grissom, 2013) (Grievant talked often about hostility at work resulting in someone committing a workplace shooting, and miming drawing pistols from her belt and firing.); (148217-AAA. 2013 LA Supp. 148217 (Wienstock, 2013) (“I 28should drive this truck through your side of the building.); 150380-AAA, 2011 LA Supp. 150380 (Humphries, 2011) (Grievant referred to employee's home as being full of “fake ass bitches” and inquired loudly about acquiring a gun because she needed to “shoot” the “fake ass bitches.”); Cooper Lighting Division, HID Products, 2008 LA Supp. 119128 (Holley, Jr, 2008) (*. I will bust your mother fucking head with the hammer.”). Richardson’s comments contain none of those elements. The comment was not personal or directed at anyone. The comment was not specific. At most, it was a vague reference to shooting a gun. Those who heard the comment laughed and that nobody was angry at the time it was made. Nobody in the room was threatened by the comment or took it as threat. The supervisor who reported it, Mr. Forte, testified that he was not threatened by the comment and did not think it was a threat. The record reveals that Richardson’s comments were not only not threats, but they were mere shop talk — part and parcel of the everyday back and forth in the shipping department. Richardson testified that employees in the shipping department engage in that kind of talk on a regular basis. The employees say they are merely “janking” — joking with one other and trying to get laughs. Calvin Sewell and Charles Hughes provided statements in the record — which the Employer introduced ~ which reveal the regular nature of these comments in the shipping department. 29Regularity of conduct does not justify legitimate rules violations. It does, however, shed light on the context in which particular statements are made, When assessing whether a comment is a threat, context is critical. Arbitrator Goldstein observed, [a]ll threat cases are viewed initially through a prism of common sense. No arbitrator is going to ignore what are generally accepted understandings of words and actions, in order to uphold or reverse the discipline. Consider how difficult itis to apply common sense to the words along, .. {w]hat becomes apparent is that threats are not always clear, not always immediate (in the sense of time), and never said without context (including provocation). Of course, it does not matter whether the threat was carried out, but the factual record surrounding the threat is critical to the case. Airtran Airways, 131 LA 254 (Goldstein, Howayeck, Sauer-Clark, 2012). ‘The factual record surrounding the alleged threat is clear: Richardson’s comment was merely a quip intended to get a laugh. No threat occurred. ‘The Union claimed that Peco’s failure to conduct a reasonable investigation and this failure directly led to their erroneous decision to terminate Richardson. Johnson testified that he never spoke with any of the bargaining unit employees present at the time of Richardson's ‘comments. Instead of engaging in careful inquiry as to the context of the comment, Johnson discussed the comment with Management in isolation and out of context. The only context Johnston applied to the comment as the fear of workplace violence raised by the recent UPS shooting. In that context, any reference to a firearm could be seen as a threat. When pressed, tion. He Johnston testified that not every reference to shooting or guns would result in termit said each comment would require a contextual analysis that depended on the circumstances in which it was made. Despite testifying to this effect, Johnston readily admitted that he did not 30extend the same diligence to Richardson’s investigation. Doing so would have revealed that the comment was not a threat and that discipline was inappropriate. ‘The Union argued that it is true that employers must be careful about workplace violence. Recent events in the world have left everyone concemed on high alert. Guns make people nervous, and employers are understandably concerned. “While reasonable persons can differ as to what actions actually constitute threats, expressions of co-worker dislike which include the mere mention of weapons are deserving of employer intervention.” 150380-AAA, 2011 LA ‘Supp. 15030 (Humphries, 2011). Arbitrator Humphries’ observation came in the context of a shooting threat directed at a specific employee who worried for her safety as a result. The employer's intervention revealed that the comment, though not serious, still was worthy of discipline because of its effect. In Richardson’s case, a proper intervention by Peco would have revealed that nobody was threatened and no concer existed. The reality of workplace violence only further underscores the importance of investigating each allegation seriously and thoroughly. Such an investigation would have revealed that Richardson was not a threat and posed no danger to anyone. The Union concluded: For the above cited reasons, the Union respectfully submits that Mr. Richardson’s grievance is arbitrable, and his discharge was not for just cause. The Union requests that this grievance be sustained and that Mr. Richardson be reinstated and made whole, including but not limited to, lost seniority, health benefits, and any other benefits of employment. The Union also respectfully requests thet, if the Honorable Arbitrator sustains the grievance in whole or in part, he retain jurisdiction for a reasonable period for implementation of his award. Union Brief, p. 12. 31Analysis and Discussion This matter of arbitration involves contract interpretation and application, procedural arbitrability, evidence and testimony, and arbitral principles. The first question that must be answered is whether or not the Grievance is procedurally arbitrable. If the Grievance is not arbitrable, this arbitrator should not consider the merits of this matter. Procedural arbitrability is ‘a matter about the interpretation of the Collective Bargaining Agreement. Procedural Arbitrability: Procedural arbitrability and timeliness of Grievances are subjects which have been addressed frequently over the years by arbitral authorities. First Arbitrator Vernon Stouffer addressed the arbitrability issue and stated: ‘The prineipal reason for strict adherence to contractual time limitations for processing of Grievances is so that the Grievances will be quickly and efficiently processed. Any relaxation of the time requirements, rather than benefiting (sic.) any of the parties, actually leads to the ultimate destruction of the utility of the Grievance procedure. ‘The Company and the Union in consummating the currently-effective Collective Bargaining Agreement expressly agreed to the time limits for processing Grievances, and also that an Arbitrator would have no authority to add to, subtract from or change the Agreement. Precision Extrusion, Inc, 49 LA 341 (Stouffer, 1967). Likewise, Arbitrator Dennis Nolan writes: ‘Where the time limitations are clear, a breach of them will usually be held by an Arbitrator to make the case non-arbitrable, however strong the case 32‘might be on the merits. In part this simply represents the will of the parties who must have meant “ten days” if they said “ten days.” In part, it also represents a recognition that an effective Grievance procedure requires quick and efficient processing of Grievances. If the Arbitrator waives adherence to agreed rules, he contributes at the same time to a ‘weakening of the process which those rules were created to protect. But “the law abhors forfeitures,” and so do Arbitrators. Asa result, they will eagerly look for reasons why a case is arbitrable even though the Grievance has been filed or processed late. Dennis Nolan, Labor Arbitration Law and Practice, St. Paul, MN: West Publishing Co., 1979, pp. 111-113. Other Arbitrators have had to face the conflicting motives of the encouragement of arbitration as the alternatives to conflicts and the Arbitrator’s obligation to the parties to uphold the integrity of the Agreement that they, themselves, negotiated and wrote. thas long been a national policy to encourage arbitration of Grievances as an alternative to strikes and other forms of labor strife. Accordingly, arbitrators are generally reluctant to deny the arbitrability of Grievances due to procedural defects when to do so would thwart industrial harmony. However, itis also generally recognized that promptness in filing and handling Grievances is essential to good labor management relations. This seems to have been recognized by the parties when they added the time limits in their contract and emphasized their point by providing that an Arbitrator would be powerless to change them. Cement Asbestos Products Co,. 70 LA 181-182 (Alexander Cocalis, 1978). Like other Arbitrators since, Arbitrator Updegraff 70 years ago recognized the need to abide by the time limits. ‘The time limitations have a part to play similar to those in adjustment of legal rights. Statutes of limitations exist to limit or terminate all sorts of legal rights and procedures since, though “the law abhors forfeitures,” it proceeds upon the principle that, ifrights are not pursued while the 33disputes are reasonable recent or fresh, justice may fail because evidence has disappeared, witnesses have moved off and been lost, or collateral rights entitled to recognition have appeared which rest upon the establishment status quo. John Deere Tractor Co.,.3 LA 743 (Updegrafi, 1946). Thus, it is clear that no matter how sympathetic an Arbitrator may be to the merits of a Grievance, itis his duty to abide by the contract language that the parties had negotiated. Long ago, it was decided that Arbitrators do not give another interpretation to contact language where the language itself is clear and unambiguous. As other Arbitrators have stated: - contract language still governs and where it is specific and covers several aspects, showing detailed intent of the Parties to bind themselves, it may not be brushed aside. . . . Purex Corporation, LTD, 58 LA 764 (A.B. Cummins, 1972). . «Where the contract between the parties provides for definite time limits in processing grievances, the Arbitrator is bound to respect these limits which have been imposed by the parties themselves by mutual agreement. Republic Oil Refining Co., 15 LA 640 (Ralston, 1950). Additional arbitral authority is provided in Fairweather’s Practice and Procedure in Labor Arbitration, 4" ed., Ray J. Schoohoven editor, Washington, D.C.: Bureau of National Affairs, 1999. When a grievance has not been filed within the time limits set forth in the collective bargaining agreement, the arbitrator generally will dismiss the claim as nonarbitrable unless the opposing party has waived this procedural defect. Because the parties have limited the cases that they agree to arbitrate according to the terms of their agreement, the arbitrator lacks authority to hear an untimely grievance. Arbitrators have dismissed 34grievances as untimely not only on the ground that the arbitrator lacks authority to hear the grievance under the agreement, but also on the ground that the establishment of a time limit reflects the parties’ recognition that grievances should be heard promptly before evidence is lost and recollections have dimmed. Strict adherence to such guidelines is encouraged since the guidelines support the “quick and efficient resolution of such grievances.” Furthermore, time limits are valuable in that they “strengthen the bargaining relationship between the parties by encouraging disputes to be brought forward when they occur. They add finality to the collective bargaining process by ensuring that the parties will not have to waste tie or financial resources on stale claims. Time limits are designed to avoid stalls, surprises, and unreasonable delays and to encourage a reasonably speedy resolution of labor disputes. . .” Time limits should be perceived as “self-imposed ‘statutes of limitation’ and not just mere formalities.” pp. 123-124, In How Arbitration Works: If the agreement does contain clear time limits for filing and prosecuting arievances, failure to observe them generally will result in dismissal of the grievance if the failure is protested. Thus, the practical effect of late filing in many instances is that the merits of the dispute are never decided. But ‘where there are ambiguities in the wording of the contractual time limits, or uncertainty as to whether time limits have been met, all doubts should be resolved against forfeiture of the right to process the grievance. Moreover, even if time limits are clear, late filing will not result in dismissal of the grievance if the circumstances are such that it would be unreasonable to require striet compliance with the time limits specified by the agreement. In the present matter the Union argued that the parties had been “lax’ in complying with the time limits established in the Grievance Procedure. This argument must be rejected due to a lack of evidence or any previous practices between the parties. 35‘The Company argued that the Union did not give written notice to the Company of its intent to arbitrate 15 days from the expiration of time limits of the Company's Step 3 answer. This evidence supports this argument and the Company could have challenged the procedural arbitrability of the Grievance at this point. In fact, the parties did not comply with the Agreement in that they did not “jointly request” the FMCS to submit seven arbitrators from whom to select. Instead of challenging the procedural arbitrability of this Grievance, the parties proceeded to attempt to select an arbitrator. When they did not succeed on the first panel, the parties requested a second panel. On the second attempt, they were successful and they proceeded to arbitrate. During this time, the parties met in attempts to resolve the Grievance; however, there is no evidence that the Company claimed the Grievance to be non-arbitrable until the date of the hearing. Although it is not improper for the Company to claim that the Grievance is non-rbitrable at the hearing, the claim does not mean that the Grievance is non-arbitrable. In this matter, the ‘Company fully participated in meetings after the Step 3, in selecting the arbitrator, and in establishing a place, time, and date for the hearing without the mention of a procedural defect in the processing of the Grievance. Therefore, the conclusion is that the Company accepted the Grievance and waive its challenge to the Grievance procedural arbitrability. The Company pointed to Article 10.3 which states: Should a Company representative fail to give his written answer within any time limit set forth above, the Union may appeal the grievance to the next step at the expiration of such time limit. The grievance shall be 36considered settled if not appealed to a higher step within an established time limit and shall not be the subject of any further proceeding. This provision may be waived in specific instances of mutual written agreement of the parties. Like the explanations above, the Company did not invoke this provision after Step 3. The Company fully participated with the Union in pursuing arbitration and therefore, accepted the Grievance for arbitration and waived its challenge to procedural arbitrability. Tuming to the merits, the Union first claimed that the Company did not conduct a proper investigation. Arbitrator Norman Brand has addressed both the subject of a fair investigation and due process and has written: ‘There are two types of “opportunities to be heard” that arbitrators concern themselves with, The first arises during an investigation by management ‘before the decision to impose discipline has been made. There is a general notion that the employer must conduct a fair investigation before taking disciplinary action. Arbitrator Carroll Daugherty’s discussion of the seven tests of “just cause” is frequently cited for this proposition. He asserted that arbitrators must ask seven questions to determine whether there was a just cause for discipline. Among these are: Did the Company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? Was the Company's investigation conducted fairly and objectively?” This procedural requirement of a “fair” investigation is sometimes seen as an aspect of “due process” by arbitrators. But since the requirement is more properly viewed as a “just cause” requirement, it will not be considered here. 37‘A second type of opportunity to be heard involves management's hearing the employee’s side of the story. In some instances the contract contains & specific requirement that the employee be given an opportunity to explain. In other instances arbitrators see it as an aspect of procedural fairness and sometimes call ita “due process” requirement. In the absence of a specific contractual requirement for a hearing prior to imposition of discipline, some arbitrators-but not all-interpret the just cause provision to require a hearing as part of “industrial due process.” ‘Norman Brand, “Due Process in Arbitration: Employment and Labor Axbitration, eds. Tim Bornstein, Anne Gosline, and Marc Greenbaum, New York: Matthew Bender, 1997, pgs. 15-17 to 15-18. Arbitrator Brand quotes other arbitrators: ‘A just cause proviso, standing alone, demands that certain minimal ‘essentials of due process be observed. One at least of those minimum. essentials is that the accused have an opportunity, before sentence is carried out, to be heard in his own defense. In another case an arbitrator reasoned that a failure to get the employee's full story before discharge, even though the employee denied engaging in the conduct that caused the discharge, represented a denial of due process sufficient to reduce the discharge to a suspension. Ibid..p. 15-18. In this matter, Richardson was called to a conference room with a meeting of managers. Richardson had union representation present. At the meeting, Richardson admitted to saying: “I don’t throw ice; I throw lead.” In addition, he testified that he did not know why he said it, he said it to get a laugh, and he apologize for saying it. The Company did not interview any employees who were present at the warm up room to assess their reactions; the managers accepted Forte’s explanation and Richardson’s admission. Forte testified that he did not feel threaten. Employee statements reveal that they were not threaten. For a threat to be valid, 38someone has to be threaten. There is an absence of anyone who contended that they were ‘threatened. ‘The Company stated that Richardson was terminated for making a threatening statement ina safety meeting. He admitted that he said: “I don’t throw ice; I throw lead.” ‘Threatening a co-worker may be grounds for discipline or discharge if the person threatened has reason to fear for his safety. Whether a specific statement is a threat depends on the context, the way the words are used, and the circumstances existing at the time the words are used. Lack of perceived dangerousness in an alleged threat may result in discharge being overturned. Where a certified nurse’s aide threatened to Kill herself and several other employees if medical tests demonstrated she had cancer, the arbitrator found no just cause for discharge, despite a rule establishing threats as a major violation warranting immediate discharge. ‘Though the arbitrator determined the grievant was guilty of making the statements, he overtumed the discipline because witnesses did not see the threats as serious, there was no evidence that the grievant was disposed to violence, the employer failed to give the grievant an opportunity to explain her conduct, and the grievant had a good work record. Conversely, @ discharge was upheld where a co-worker perceived the threat to shoot as serious, due largely to the grievant's extensive history of abusive behavior suggesting a strong propensity for violence. ..- ‘Where a threat is specific and is in the speaker's power to carry out, arbitrators will not hesitate to impose discipline, up to and including discharge. One arbitrator upheld the discharge of a white employee who threatened an older and smaller black employee for using a vending ‘machine that was the subject of a union boycott. The arbitrator found that racist threats against one’s life cannot be considered a joke or a norm of conduct. ‘The more specific and credible the threat, the graver the misconduct. ‘Another arbitrator upheld the discharge of an employee who threatened to rape co-worker’s wife if he did not join the union. It was not necessary to determine whether the grievant was joking when he made the remark, because the effect of the remark~as opposed to the grievant's intent~ sufficiently intimated the co-worker. . . Norman Brand, Discipline 39and Discharge in Arbitration, Editor-in-Chief, Washington, D.C.: The Bureau of National Affairs, 1998, pgs. 276-277. “The Courts have also provided guidance for determining whether or not a threat exists. ‘Metz v. Dept. of Treasury, 780 F.2d 1002-1003 (1986) provides an appropriate framework to determine whether words by a Grievant used constitutes a “threat”. In some cases, however, it is difficult for the agency to determine if a threat has been made. This court has held that the board must use “the connotation which is reasonable person would give to the words” in order to determine if the words constituted a threat. In order to apply the reasonable person standard, however, the board must weight the evidence. We direct the board to consider the following, ‘evidentiary factors in deciding whether an employee threatened his supervisors or coworkers: (1) The listeners’ reactions; 2) The listener's apprehension of harm; (3) The speaker's intent; (4) Any conditional nature of the statements; and (9) The attendant circumstances. ‘The United States Supreme Court provided the basis for these standards by writing “the statute initially requires the Government to prove a true “threat.” This standard applies to Government agency regulations as well as the statute construed in Watts. Our guidelines effect the appropriate standard by directing the board to give objective evidence heavy weight. ‘The standards direct the board to apply the reasonable persons who heard the statements actually did. For instance, a listener who reacted by calling police after hearing a statement is more likely to have heard a threat than a listener who did nothing. Likewise, an employee who made a generalized conditional statement is less likely to have intended to threaten a coworker than an employee who stated a simple threat. We do not instruct the board to rely on objective evidence alone. A credible supervisor might testify 40that he feared harm; such testimony tends to show that an employee made a threat. Evidence of an employee’s intent in making a statement can show that the statement was a threat. Rumors, however, or fear based on rumors, cannot suffice to prove that an employee threatened anyone. While we do not instruct the board to disregard subjective evidence of fear of intent, we do direct the board to give objective evidence heavy weight. Arbitrator Margery Gootnick has addressed the subject after analyzing numerous arbitrator decisions. She stated: ‘Threatening a fellow employee may be grounds for discharge, but more commonly results in discipline short of discharge. Making threats is considered serious misconduct if the person threatened has reason to fear for his safety. ‘Threats made spontaneously during an angry outburst may be less serious than threats made deliberately and with the intent to intimidate fellow employees. ... ‘The more specific and credible the threat, the graver the misconduct. . . . ‘An employee who makes a threat my be guilty of serious misconduct even if he has no intention of carrying it out, for intimidation of a co-worker is itself an employment offense. .... ‘Verbal threats cannot be evaluated in a vacuum, but ordinarily should be examined in the factual context in which they arise. . . . Words alone do not necessarily make statements inappropriate or violative of acceptable employee conduct; the words must be viewed in the context in which they are used, the manner in which they are used and the general environment or circumstances existing at the time they are used. Margery Gootnick, “Violence,” Employment and Labor Arbitration eds. Tim Bomstein, Ann Gosline, and Marc Greenbaum, New York: Matthew Bender, 1997, pp 19-12 to 19-18. In this matter, Richardson was not specific; he did not direct his words at any one; no one considered his words to “be threatening”, even his supervisor; no one called the police; he was 41not sent home immediately; he apologized for making the statements a short time after he made the statement. Richardson could not explain what he meant because it was a “stupid” comment, but short of a threatening comment. ‘The Company contended that it could have terminated Richardson for violating the rule against horscplay and Anti-Harassment Policy. ‘The subject of horseplay or “shop banter” has been addressed. Arbitrators often distinguish horseplay from misconduct, based upon intent. Horseplay is generally characterized as conduct that is without malice, is playful, childish, or impulsive. One arbitrator defined horseplay, by reference to Webster’s Ninth New Collegiate Dictionary, as “rough and boisterous play.” Where the horseplay is intended to injure a fellow worker, however, it is misconduct. Horseplay has the potential for physical injury or property damage. It becomes misconduct when there is, injury or damage as the result of “an intentional act of wrongdoing.”. ... 1 ‘Was the conduct intentional or accidental? 2. Was there a risk of injury or damage to other employees or company property? 3. Was the workplace atmosphere generally conducive to playful acts?. .. The key factor in a horseplay case is whether the conduct involves an intentional act of wrongdoing. If an arbitrator is convinced an employee ‘engaged in such wrongful conduct, severe discipline such as discharge likely will be upheld. If an arbitrator is convinced that either the conduct ‘was unintentional or the result was intended, severe discipline is unlikely to be upheld. ... 1. Horseplay Tolerated. A common mitigating factor is that horseplay generally is tolerated or condoned in the workplace. A related factor is that similar conduct should result in a similar discipline. If the arbitrator concludes that supervisors also engaged in or tolerated horseplay, significant discipline is unlikely. ... 42Discharge is likely to be reduced to lesser discipline if horseplay is common in the workplace... . ‘Some decisions appear to turn on the reaction of the disciplined employee in response to the conduct in question. Arbitrators consider whether the disciplined employee admits his conduct, seems to genuinely regret that it ‘occurred, and is contrite. These characteristics of postincident behaviors appear to be used as another means of determining whether the employee truly intended the consequences of his or her actions. Discipline and Discharge, Norman Brand, editor-in-chief, op.cit, pgs. 286-290. Also, James R. Redeker wrote: 1. Whether the actions of the employee were intentional and were committed with the apparent purpose of wrongdoing; 2. Whether the actions of the employee had the potential for physical injury or property damage; & Whether the tone of the workplace or the general behavior of employees in the workplace created an atmosphere which condoned such behavior; 4, Whether the employee is contrite to such an extent that the employer can expect that the conduct, or similar conduct, will not be repeated in the future. .. Arbitrators distinguish between misconduct and horseplay when reviewing cases of discipline for employee misconduct. Misconduct is defined as those incidents which have “the potential for physical injury and property damage,” and are the result of “intentional acts of wrongdoing.” Horseplay is generally viewed as behavior which is essentially without malice but childish and infantile behavior, resulting from “uncurbed impulse,” “yielding once to such a temptation,” or the “fallible nature of the human condition.” James R Redeker, Employee Discipline, Washington, D.C.: BNA, 1989, pgs 305-306. In reviewing the evidence presented, horseplay and anti-harassment as reasons for Richardson’s termination did not surface until the arbitration hearing at which time it was too late to be used to 43justify the Company's earlier decision to terminate Richardson. Up to that point, the evidence showed that Richardson had been terminated for making a threatening statement: “I don’t throw ice; I throw lead.” It would be inappropriate for the Company to wait to the arbitration hearing to add another reason for Richardson's termination. In regard to the remedy requested by the Union, the Company contended that Richardson did not attempt to mitigate the amount of backpay by seeking employment. Richardson testified that he received unemployment compensation for a period of time and worked for an American Thrift store. When asked whether he had copies of applications for jobs, Richardson answered that he had two or three at his home, but did not bring copies to the hearing. Thus, this testimony and evidence may be used to determine the amount of backpay. For certain, Richardson is entitled to backpay for the difference between (1) his unemployment compensation for the period of time he received it and his usual pay at Peco and (2) his pay at the thrift shop and what he ‘would have eamed if he had not been terminated. ‘The parties must decide the remainder by determining whether or not Richardson made a reasonable good faith effort of seeking other employment, ‘The Union requested this Arbitrator retain jurisdiction to assist in deciding any difference between the parties on this “make whole” remedy. Decision Based on the Agreement and the evidence, the Grievance is arbitrable and is sustained. ‘The Company is directed to reinstate Larry Richardson to his former job, restore his seniority, 44and make him whole for his losses (See explanation above). This Arbitrator will retain jurisdiction for 60 days from the date of this decision. 2 1s~ 0b Li ritthne OH Helto, Date William H. Holley, Jr. V, Arbitrator 45