IR 05000483/1978012
| ML19312B605 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 01/08/1979 |
| From: | James Keppler, Norelius C, Phillip G NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| To: | |
| Shared Package | |
| ML19312B604 | List: |
| References | |
| 50-483-78-12, 50-486-78-02, 50-486-78-2, NUDOCS 7904030093 | |
| Download: ML19312B605 (54) | |
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Sl' CLEAR RECl'LATORY COMMISSION OFF]CE OF INSPECTION A';D ENFORCEMENT
REGION III
Report No. 50-4S3/78-12; 50-486/78-02 Subject:
l'nion Electric Company Callaway Plant, l'a i t s 1 and 2 Licenses No. CPPR-139 and No. CPPR-140 A contractor employee alleged that he was discharged as a direct result of bringing allegations of construction deficiencies to the NRC.
Period of Investigation:
'! arch 29 and 30 and October 31-November 3, 1978 Investigators: A[N dh-
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Reviewed By:
gh j e 79 ames G.
Kep.r Director
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REASON FOR INVESTICATION
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On March 28, 1978, Region III received a letter dated March 23, 1978, from
an iron worker, Mr. William J. Smart, requesting an investigation of his I
discharge from his employment, stating that he "...was unfairly discharged without justification. The termination of my employment is the direct j
result of my having publicly and officially informed the NRC of unsafe
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building violations and unauthorized deviations from orint and specifi-cations plus the use of substandard materials." A copy of this letter is attached to this report as Exhibit A.
BACKGROL'ND INFORMATION
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On October 14, 1977, a St. Louis Post Dispatch Reporter contacted Region III by telephone indicating he had received allegations from an iron j
worker employed at the Callaway Site, William J. Smart.
On Octobe-lo,
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1077, two Region III inspectors interviewed Smart who made several allegations regarding the qualitv of construction materials and cuality control practices. An investigation of these allegations nas conducted during the period October 26-28, November 2-4,'21 and 22, 1977.
During this investigation Smart was interviewed again on October 28, 1977, to assure all pertinent concerns had been identified.
The findings are contained in Report No. 50-483/77-10.
On December 13, 1977, the findings of the investigation were discussed with the licensee and later the same day with Smart at his residense.
During this meeting Smart requested that the Region III representatives accompany him to the Callaway Site since he wished to coint out a specific construction deficiency to them.
During this site visit Smart made additional allegations.
These allegations were the subject
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of a second investigation conducted by Region III during the period December 13, 14, 18-22, 1977, and January 3-6, 1978.
The results of this investigation are contained in Report No. 50-483/77-11.
Subsequently Mr. Smart, through an intermediary, by letter dated January 12, 1978, reiterated allegations previously discussed with
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the NRC and related some new concerns as well.
These new concerns were reviewed as part of the routine inspection program, and the findings are included as part of Inspection Reports No. 50-423/78 nl, No. 50-483/78-02, No. 50-483/78-03, and No. 50-483/78-07.
On February 14, 1978, the. findings of the second investigation were discussed during a meeting with Smart, his intermediary and represen-tatives of the Missouri Public Service Commission and on the following day the investigation report was released during a press conference by Region III.
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On February 19, Smart and his intermediary held a press conference calling for an investigation by the General Accounting Office and by letter the same date brought their concerns to the attention of Senators
j Thomas Eagleton and John Danforth.
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By letter dated March 23, 1978, Smart notified Region III he had been j
discharged from his employment and requested an investigation.
i Following the receipt of Smart's letter, arrar.gements were nade to inter-
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view him on March 29, 1978, to obtain information regarding the circumstances
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relating to his discharge. Upon arrival at the Callaway site on March 30, i
1978, the NRC investigators were informed by Union Electric Company (UE)
l Site Management that the UE contract with Daniel International Corporation -
(Daniel), a contractor engaged in the construction of the facility and Smart's former employer, did not provide for any UE responsibility for or l
control of Daniel personnel or labor relations matters.
The Daniel project manager advised that he had been instructed by his
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management to provide nothing to the investigators pending the arrival
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of the Daniel Vice President for Labor Relations and a lawyer representing Daniel.
i Following their arrival, the vice president and the lawyer stated it was i
Daniel's position that the NRC had no legal basis for conducting the inves-l tigation and access to pertinent records and personnel was denied. A letter j
stating this position was obtained, a copy of which is attached to this j
report as Exhibit B.
On April 3, 1978, the Director, Office of Inspection and Enforcement, NRC issued an Order to Show Cause to the licensee why construction permits No. CPPR-139 and No. CPPR-140 should not be suspended until such time as
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the investigation was allowed to be conducted.
On April 21, 1978, UE requested a hearing into the matter as provided for
in the order. On May 11, 1978, the NRC issued a Notice of Hearing and
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appointed the members of the board to hear the matter.
On June 15, 1978, Smart filed a petition to interven. which was granted. After a prehearing conference on June 16, 1978, and oral arguments on August 23, 1078, the
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board issued its Initial Decision on the Order to Show Cause on September 28, 1978. On the basis of the board's findings and conclusions in their Initial Decision, the board ordered that the Director, Office of Inspection'
and Enforcement was authorized to suspend the construction oermits until the
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investigation was permitted and that the Initial Decision would become effec-tive in thirty days.
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Or. October 6,1978, UE filed an exception to the Initial Decision accom-l panied by a motion seeking a stay of the effectiveness of the Initial
Decision pending the outcome of the appeal board's review. Following receipt of the motion.-the appeal board held an off-the-record conference with the counscis for the respective parties on October 18, 1978.
At this conference an agreement was reached that the investigation could be con-l ducted but that the information obtained would be retained by Inspection l
and Enforcement on a confidential basis and protected from disclosure until fifteen days after the appeal board made its decision. This agree-
ment was made a part of the Memorandum and Order issued by the appeal i
board on October 20, 1978 which dismissed the motion for a stay regarding the effectiveness of the Initial Decision as moot, i
SUMMARY OF FACTS The investigation, which was conducted on March 29 and 30 and October 31-November 3, 1978, included an interview with Mr. Smart, the iron worker l
who was fired; with several personnel with whom he had worked and who were present at the time of the firing; and with management personnel.
From late December 1977 or early January 1978. it was common knowledge among site personnel including management thc c Mr. Smart had brought
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allegations of improper construction practices to the NRC. His allegations I
and the NRC's investigations of them had received extensive news media I
coverage in Missouri. As a result of this publicity an atmosphere of
pressure was felt by the other iron workers and their supervisors.
Those interviewed could not precisely define the nature of the pressure they felt.
Some iron workers and their supervisors said there seemed to be an unusual amount of higher level management attention given to
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any project where Smart was employed. For example, they saw the pick-
up trucks used by management drive around and stop more of ten than normal. Other iron workers were apparently divided in their view of Smart in that some were sympathetic to him because of bis apparent concern for safety while others reacted negatively because they felt
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his allegations reflected unfavorably upon the work performed by the i
iron wc kers. Although site management instructed the iron worker's
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j supervisors to treat him the same as they would any other iron worker, the other iron worker supervisors became unwilling to have him under
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their supervision. They considered the responsibility for supervising
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Smart as a potential problem they would prefer to avoid.
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The investigation disclosed that near the end of the work day on March 20, 1978, a f oreman on the job gave an order to Mr. Smart to straighten a bent bar.
Smart looked at the foreman but did not respond and no further words were spoken by either man.
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Smart went back to his duties without straightening the bar.
The following morning the foreman informed the general foreman that he was firing Smart for dis-obeying an order.
Daniel management and the union steward were contacted and met to discuss the facts surrounding this situation.
The union steward believed that it was questionable as to whether the order 5 -d been heard and indicated there was not adequate grounds for the firing.
After hearing this the foreman agreed to take Smart back on his job.
However, Smart then stated that he wished to be transferred to another crew.
He was advised by the union steward that no other crew would take him and that he would have to remain with the same crew.
The general f oreman on the job indicated that if Smart stayed under his supervision he would resign his position.
Daniel manag(ment then discussed the matter with the foreman and general foreral and decided to fire Smart.
Based upon Smart's contention that he had not heard the order, not because he had come to the NRC, his discharge was the subject of a grievance filed by the union. The grievance procedure was followed culminating in binding arbitration.
Following a hearing held on September 22, 1978, the arbitrator issued a decision in favor of Mr. Smart on November 1, 1978, reinstating him with back pay.
Following this investigation a copy of the arbitrator's decision was received from the licensee by Region III on November 13, 1978, a copy of which is attached to this report as Appendix A.
In conjunction with this investigation, a random sampling of 25 workers of different crafts engaged in safety-related wcrk onsite was taken to determine whether the firing of Mr. Smart had any chilling effect
on the workers willingness to come forward to the NRC with safety re-lated allegations. Of the twenty-five workers interviewed, one said he would not come to the NRC if he possesscd information about construc-tion problems and his position was reinforced by Smart's discharge.
Two other employees, who were in their first week at the site, expressed fear for their jobs and their fear was increased when they were in-
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formed by the NRC interviewer of Smart's discharge.
Thev, however, said they would come to the NRC if they were assured of confidentiality.
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CONCLUSION Based on interviews and review of material in the Daniel International files, there was nothing to indicate that the licensee or Daniel Inter-national deliberately sought to fire Mr. Smart because of his coming to the NRC with allegations.
Yet, the awareness of Mr. Smart's allegations and the attendant publicity given to him and the Callaway site caused a
" feeling of pressure" by other workers in Smart's gang and his immediate supervisor. This pressure caused some iron worker supervisors to be urwilling to take Smart on their gang, and this was a contributing fi.ctor in his discharge from the site.
With regard to the order to bend a bar which was the immediate incident which led to Smart's discharge, considering the facts that the order was only given once, that there was no verbal acknowledgement of the order by Smart, and that the area of work was often noisy, there appcars to be reasonable doubt that the order may have been beard by Mr. Smart.
At the same time, thers was no specific indication that the foreman was looking for an excuse to fire Smart in connection with Smart's making allegations to the NRC or that he nav have used this occasion to carry out any preconceived plan to fire Smart.
It is noted that the arbitrator, in his decision regarding the firing of Smart (Attached as Appendix A) states that the Company's reauest not to have Smart reinstated, should the discharge be found to not have been made for good cause, " casts doubt upon the Company's motivation for the original discharge last Ma r ch. '"
While the investigation did not disclose any evidence to support the contention that the licensee or contractor planned to fire Smart as a direct result of his br ing made allegations to the NRC, neither
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did it rule out the pos blity that Smart's allegations to the NRC and the related publicity ay have indirectly contributed to his firing.
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DETAILS Persons Contacted Morgan Doyne, General Superintendent, Callaway Construction, UE Robert Powers, Site QA Group Leader, UE Walt Weber, Manager, Nuclear Construction, UE Bob L. Banks, Vice President, Industrial Relations, Daniel Lynn L. Laughlin, Attorney, Thompson, Mann and Hutson Hal Starr, Project Manager, Daniel Wallace Sykora, Assistant Project Manager, Daniel T. C. Smith, Assistant to the Project Manager, Daniel G. M. Stephens, Construction Manager, Daniel Andy Kennedy, Assistant Construction Manager, Daniel Dave Powell, Area Superintendent (by telephone)
Bill March, General Foreman, Daniel Charles Hathcock, Former General Foreman, Daniel Dave Smashey, Forner Foreman, Daniel Joseph J. Hunt, Business Agent, International Association of Bridge, Structural and Ornamental Iren Workers Bob Cross, Iron Workers Union Steward William J. Smart, Discharged Iron Worker, Daniel
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In addition to the above, ten iron workers, six pipefitters, three welders, five electricians and one laborer were interviewed.
i Interview with Mr. William J. Smart i
j On March 29, 1978, William J. Smart was interviewed concerning his being discharged by Daniel.
Smart stated he was first employed by D-aiel at d
the Callaway construction site in January 1977.
He had worked at the
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site in various capacities since that time with some short breaks in employment.
In addition to working as an iron worker he had been a
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foreman, a general foreman and a union steward, the latter two being on the second shift.
He indicated that about the end of November or in early December 1977 e he was demoted from general foreman on the second shift to a foreman's job on the day shift. He said he was demoted because he refused to have his men work one night when the wind chill index was a -57. He
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worked as an iron worker foreman on the day shift until about the begin-ning of March 1978. While he was a foreman, a general foreman prepared a reprimand against him fof claiming pay for one minute overtime although he had had pay deducted on other occasions for being a minute or two late.
He indicated the reprimand had been withdrawn about eight days ago.
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Smart said it was well known he had made allegations to the NRC and because (
of it, he felt his employer was looking for a basis to fire him..He said some work performed a few weeks before in the diesel generator building had I
been done incorrectly. He felt'that as a foreman he might be held respon-I sible and it would be used as a means of discharging him.
Since he suspected j
he might be set up for discharge in this manner, he asked to be relieved from his foreman's job and to work as a journeyman iron worker.
His request
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was approved and he worked as a member of an iron worker crew from early March 1978 until his discharge on March 21, 1978.
I Smart said that on the afternoon of March 20, 1978, he was working with
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another iron worker tying rods in an area referred to as the pump house j
hole when, according to the foreman, the foreman ordered the two of them j
to straighten a bent bar.
He said he did not hear the order and stated that he would not refuse to follow a foreman's order.
He said it was very noisy in the hole because there were pumps and generators running and there were laborers and carpenters as well as about 18 iron workers working in
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the a:ea.
He said the iron worker working with him said he did not hear j
the foreman give the order either.
Smart went on to say that he talked j
with the foreman before quitting time that day and the foreman said nothing to him about the matter at that time.
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A few minutes after he began work the next morning, March 21, 1978, he was pulled of f the job to meet with the foreman, the general foreman and the union steward. During this discussion, the foreman said he was fired for refusing to follow an order the previous day.
Smart told them he did l
not hear the order. The foreman admitted he did not repeat the order and
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Smart had not said anything to indicate he heard the foreman.
The steward said that under the circumstances described there was not a sufficient I
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basis for firing Smart. The foreman then agreed to let the matter drop and to return to work.
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another one.
The steward said he could not be transferred because no
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other general foreman would take him because of the attention he had
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attracted by his contacts with the NRC.
Smart stated'that the steward told him he was being continually pressured to get Smart fired. The
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steward told the general foreman he would either have to keep Smart og
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fire him. The general foreman said in that case Smart was fired.
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Smart said he requested a service letter through the union.
He made available for examination a letter dated March 27, 1978 he received
from Daniel which stated that the reason for his discharge was " Refusing f
Direct Work Order."
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Smart said the union had filed a grievance regarding his being fired and
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that he expected the matter would be eventually decided by arbitration.
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Smart provided the names of the foreman, the general foreman and the steward as well as the names of seven individuals he thought were present when the
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foreman said he gave the order.. Smart also stated that no action was taken against the other iron worker who was working with him and who was also
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instructed to straighten the bent rod.
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Interviews with Iron Workers As indicated above, Smart provided the names of seven individuals whom he thought were present in the pump house hole on the afternoon of March 20, 1978.
One, an iron worker, was no longer employed at the site having l
terminated on May 12, 1978. A laborer foreman was absent from work and declined to be interviewed according to both Daniel management and the
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union steward.
One iron worker, who was interviewed, stated that he was not at work on March 20, 1978 and therefore could not provide firsthand information regarding the issuance of the order by the foreman.
He did state, how-ever, that he had worked in the pump house hole before and after that
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date and that the noise level was normally high because of the operation i
of pumps, compressors and welding machines.
A second iron worker stated that although he was a member of the same work crew with Smart he was not working in the pump house hole at the time the foreman ordered Smart to straighten the bar.
He did state, however, that it was noisy there because of the pumps and welding machines.
He also said he had experienced difficulty hearing what the foreman said to him on occasion when he was only about eight to ten feet away from him.
Two other iron workers stated that they were working in the area and they did nat hear the order. Both stated it was noisy in the area.
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On November 2, 1978, the individual who was tying rods with Smart when the order was given to Smart was interviewed by telephone since he is no longer employed at the site.
He stated that he heard the foreman call Smart's name.
They both turned and looked at the foreman but nothing further was said so they returned to tying rods. He also o
stated there was a lot of noise in the area that day.
He said he was a pipefitter by trade but had been working at Callaway on a permit as an iron worker. He_said no action was taken against him by Daniel l
because the order was given to Smart and only indirectly to him. He i
indicated that since it was recognized that Smart was the journeyman iron worker and he~was working on a permit, the instruction would be I
given to Smart to do something with h;s help. This was corroborated i
during interviews with other iron workers and supervisory personnel.
It was indicated it would be normal under the circumstances for the foreman to have said something like " Bill, you and Jim straighten that bar."
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The iron workers interviewed indicated that they felt those who were asso-ciated with Smart as workers or supervisors during the last two or three months he worked at Callaway were under pressure because of the oublicity given to Smart's allegations to the NRC.
One of them expressed the opinion that Smart was fired because he had made allegations to the NRC and that the charge of refusing to fo. low an order was just a means of accomplishing his discharge.
The others expressed the opinion his discharge was for his failure to follow an order but that they felt it was doubtful he heard the foreman give tb-der.
One indicated it was his view that a worker is not usually fired for act following an order once but that workers are fired if they repeatedly failed to follow orders.
Interview with Union Steward On November 1, 1978, the iron workers' steward was interviewed.
He corrob-orated the information pro,ided by Smart concerning the discussion between the foreman, the general t'oreman, Smart and himself on March 21, 1978 which culminated in Smart's discharge.
The steward said after that discussion he did not consider the tasis for Smart's discharge as acceptable.
He and the general foreman then dis-cussed the matter with Daniel site management in their of fices ut ile Smart and the foreman returned to the pump house area.
After this discussion, he accompanied the Assistant Project Manager and others to the pump house to speak to the foreman. The Assistant Project Manager questioned the foreman as to whether he was certain that Smart had heard the order.
The foreman said he felt sure Smart had heard him.
The 1ssistant Project Manager then said Smart's discharge would stand.
The steward said he informed Smart that he was fired but that he would file a grievance regarding it.
The stewerd said he subsequent 1v looked into the circumstances of Smart's
discharge further. He talked with a laborer foreman who initially told him he had heard the foreman give the order to Smart.
Later, however, the laborer foreman came to him and said he had heard nothing and did not wish to be further involved.
The steward said the laborer foreman ref. sed to appear at the arbitrator's hearing and had indicated to him he would *
not talk to anyone about the matter.
The steward said he had also talked with the individual who had been tying rods with Smart when the order was issued.
The steward said the individual told him he had not heard the foreman say anything and it was noisy in the pump house hole. The steward said he also talked further with the foreman and general foreman and both of them contended it was not noisy.
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The steward indicated that after it became known that Smart had made alle-gations to the NRC, the people who worked with Smart and the supervisors felt they were under pressure. His allegations received publicity bv the news media and there was a feeling that Smart and those around him were the focus of attention.
The steward said no one in Daniel management ever applied any nressure upon him to get rid of Smart.
He said the general foreman once mentioned to him that his superiors were anplying pressure on him to get rid of Smart.
Interview with Daniel Management Personnel During the period October 31-November 2, 1978, the following Daniel site management personnel were interviewed:
Project Manager, Assistant Project Manager, the Assistant to the Project Manager, the Construction *'anager, and the Assistant Construction Manager.
The Area Superintendent, who in March 1978 was the Rebar Superintendent, was interviewed by telephone on November 7, 1978 since he was on vacatien during the period of the onsite investigation.
These individuals acknowledged that it was well known that Smart had made allegations to the NRC months before the date of his discharge.
They stated it had been their position that in view of the resulting publicity and the attention that Smart had attracted, it was particulary important to make certain he was treated no differently than any other iron worker on the site.
The Assistant to the Project Manager, who indicated he was responsible for the site labor relations matters, stated that he had given that instruction to Smart's general foreman.
He advised the general foreman that Smart "should not be bird-dogged" but, on the other hand, he was not to be regarded "as a sacred cow."
- The Assistant to the Project Manager said this instruction was given during a discussion held to consider giving Smart a formal reprimand for poor performance; i.e.
Iow work productivity of his crew.
This took place about six weeks before Smart was fired and while he was still a foreman.
It was, however, decided that the basis for a reprimand was not sufficient to support it.
g The Assistant to the Project Manager said another reprimand had been written against Smart when he was a foreman for an attempt to draw unauthorized overtime. A grievance was filed regarding the reprimand and was processed through the grievance steps to the Daniel corporate office. The reprimand was then withdrawn at the instruction of the corporate office.
In such cases, the written reprimand is withdrawn from the employee's personnel file and destroyed.
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The Assistant to the Project Manager stated that the discharge of workers on a large construction site is not unusual.
He said over 350 had been discharged at the Callaway site since construction began and many of those
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discharges had been for refusing to follow orders. He indicated 40 workers had been discharged for this reason or insubordination during 1978.
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The Assistant to the Project Manager stated that Smart was changed from a general foreman on the second shift to a foreman on the day shift in December 1977 because of a general manpower cutback on the second shift.
He said Smart was changed from a foreman to a journeyman iron worker in
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early March 1978 at Smart's request.
All of the individuals specifically denied that there had been any
expressed or implied intention to find a means of getting Smart fired or removed from the construction site. They denied either conveying
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or receiving such an instruction.
It was indicated that Smart's immediate supervisor was instructed to assure that Smart stayed in his work area and not be allowed to roam around the site.
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I The information provided by the members of management who were involved in the discussions on March 21, 1978 concerning Smart's discharge was consistent and corroborated the information obtained from others.
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Both the Assistant Project Manager and the Assistant to the Project
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Manager stated that if they had wanted to get rid of Smart there were easier ways to accomplish it than having him fired for refusing to follow an order.
It was further indicated that if he had been discharged when he was a general foreman or a foreman, he would not have had the grievance procedure available to him and his discharge could not have
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i been a matter for arbitration.
The Assistant Project Manager indicated that since he was aware of the
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general sensitivity that exiated regarding Smart and that his discharge
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would in all likelihood result in a grievance and go eventually to arbi-
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tration, he wrote a memorandum setting forth all of the pertinent infor-mation he had regarding the discharge. The date appearing on the typed
memorandum, March 27, 1978, represents the day the memorandum was typed
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and not necessarily the date he prepared it.
A copy of this memorandyp was obtained and is attached to this report as Exhibit C.
The Assistant Project Manager indicated that the foreman and general foreman involved in Smart's firing were required to prepare notarized i
statements concerning the matter for the same reason he wrote the memo.
I Copies of these statement 9-were obtained and are attached to this report as Exhibits D and E, respectively.
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As part of the company's preparation for the arbitrator's hearing, the
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foreman who fired Smart was also instructed to prepare a statement of j
the circumstances of the' discharge.
He indicated this instruction
originated with the lawyer representing Daniel during his visit to.the I
site at the end of March 1978.
This statetant, which was not dated, j
was therefore written by the foreman sometime after March 1978.
A copy
of the foreman's handwritten statement was obtained and is attached to this report as Exhibit F.
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Interview with General Foreman On November 1, 1978, the general foreman, who is no longer employed at the Callaway site, was interviewed.
The general foreman stated that during the time Smart worked under his
supervision as a foreman he was not doing his job adequately. On several
occasions Smart had left the area where his crew was working and was gone for as long as three hours. The general foreman said he did not know where Smart was during those periods but on at least one occasion he found him relaxing in the construction shack.
The general foreman said he spoke l
to Smart several times about leaving his crew unsupervised. He said he
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was about at the point of firing Smart when Smart asked to be removed from his foreman's position to a journeyman iron workers job.
He said the reason for the request was that the iron workers were working overtime
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anu Smart could earn e.re total pay as an iron worker than he was earning as a foreman.
The general foreman said that when the foreman told him that Smart had refused to obey an order, he had had enough and agreed with the foreman i
to fire Smart. He said that while the refusal to follow an order is a legitimate reason for firing a worker, his previous experience with Smart did influence him.
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The general foreman said that he might have fired Smart earlier, when Smart was a foreman, but he was aware that Smart had made allegations to the NRC and he felt firing him would create a problem.
The general foreman said that the iron workers superintendent wanted him to assign Smart to a non-QC area, that is non-safety-related work, so that Smart would not be %n a position to stir up trouble. The general foreman said he did not feel he could do that because it would be disruptive to the activities for which
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he was responsible. He then spoke to the Assistant to the Project 5'anager who instructed him to treat Smart just as he would any other iron worker.
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The general foreman said there was a feeling of pressu e on the job af ter
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Smart made his allegations.
Some of the iron workers were upset because
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they felt that Smart's allegations reflected unfavorably upon them.
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said members of management seemed to spend more time in the area where Smart i
was working. He indicated this could have been to assure that Smart was doing his job and not looking around f or things to use as a basis for more i
allegations.
The general foreman said no one ever pressured him or even suggested he
,
should get rid of Smart. He said the individual who was the Rebar i
Superintendent at that time once said to him that Smart should be fired I
but he did not take him seriously because the Rebar Superintendent fre-quently said to fire someone but he did not mean it.
The general foreman said that he was at the pump house on March 20 and had-called to the foreman, who was farther away from him than Smart, to have someone straighten a bent bar.
The general foreman said that since it was i
late in the day, the pumps, compressors and other noisy pieces of equipment were not running. The foreman had no difficulty hearing him.
The general foreman said he then left the area so he was not present when the foreman
gave the order to Smart.
i The general foreman's account of the discussions that took place on the j
following day, March 21, was consistent with those previously obtained.
!
He added, however, that he had taken the position with Daniel management that if they didn't follow through with firing Smart, he would quit.
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j Interview with the Foreman
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On November 1, 1978, the foreman, who is no longer employed at the Callaway site, was interviewed.
f The foreman said that Smart had asked for a change in status from foreman to iron worker about two weeks before he was fired. He said that Smart made the request for this change because the iron workers were working
,
a lot of overtime and he would earn more total income as an iron worker than he would as a foreman.
The foreman indicated that when he agreed to take Smart as a member of his-crew, the foreman asked the Rebar Superintendent if he had to treat Smart differently because Smart had received a lot of attention and publicitu as a result of making allegations to the NRC.
The Rebar Superintendent told
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him that he should treat Smart the same as any other iron worker in his
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crew.
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The foreman said the general foreman told him that when Smart was a foreman, the general foreman had instructed Smart to do things and
Smart had not done them.
The foreman said the general foreman told him Smart did not refuse to follow instructions, he just ignored them.
-The foreman said that on four or five occasions prior to the occurrence
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for which Smart was fired, he had told Smart to do something and Snart had not done it.
The foreman expressed the opinion that Smart acted as though he was trying to get fired.
The foreman confirmed that the general foreman had given him the order to have the bar straightened before he ordered Smart to do it.
He said he.
was certain that Smart heard him tell him to straighten the bar.
He said both Smart and the man working with him both straightened up,. turned and looked at him. Smart shook his head, shrugged his shoulders and both of them went back to tying rods. A laborer foreman who was standing near the foreman said. "He isn't going to do it, is he."
The foreman said the l
laborer foreman, however, later refused to become involved in the matter.
He also said other iron workers heard him give the order but they would not say that they did. The foreman then instructed two other workers to
!
straighten the rod.
He indicated they were farther away from him than Smart and they had no difficulty hearing him and they proceeded to i
straighten the rod.
l The foreman said that the straightened rod was not used although it had
only a small bend in it.
He said that bent rods were not supposed to be straightened and perhaps Smart felt that by being ordered to straighten
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it, he was being set up.
i The foreman said he did not fire Smart at the time that he gave the order because it was too lete in the day.
He said it takes an hour or more to
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fire a man and to clear him from the site.
It is therefore customary l
under those circumstances to discharge a man the following morning.
!
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The foreman said that when he informed the general foreman the next
morning that he was going to fire Smart because of what had taken place the previous day, one general foreman agreed with him.
The-foreman's
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account of what transpired after that was consistent with that described
- by others.
t The foreman stated that Smart was fired for not obeying an order and that his making allegations to the NRC had nothing to do with it.
He said no one had issued an instruction or implied that he should find a basis for firing Smart.
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Interview with the Union Business Agent
On November 3, 1978, the business agent of International Association of Bridge, Structural and Ornamental Iron Workers was interviewed.
He indicated that in the contacts he had had with Daniel and with union members employed at the Callaway site, he had not received any indication
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that Daniel had initiated any effort to get rid of Smart because he had
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made allegations to the NRC.
He said that as far as he was concerned Daniel had fired Smart for not following an order.
The union had invoked the grievance procedure on the basis that the employer's contention that
'
Smart had heard and refused to follow the order could not be supported.
The business agent also advised that he had just been informed that the arbitrator had issued his decision and he had ruled in Smart's favor.
He said he had not yet received a copy of the arbitrator's decision.
The business agent stated that in his contacts with union members employed at Callaway he had received no indication that Smart's firing had any effect on their willingness to bring construction deficiencies to the attention of the NRC.
He expressed the opinion, however, that in view of Smart's being fired, workers would be more reluctant to provide infor-mation to the NRC.
Random Sample of Worker Attitude On November 2, 1978, the investigators, accompanied and assisted by Region III inspectors E. R. Schweibinz and W. A. Hansen, toured the construction site and randomly interviewed various craft workers who were engaged in activities on safety related structures, equipment or components.
The workers were not requested to identify themselves except as to their craft.
The interviewers identified themselves as NRC representatives and requested that the workers respond to questions as part of a survey being made.
The workers were questioned as to their willingness to bring improper construction practices or construction deficiencies to the attention of management and the NRC.
They were also asked whether the firing of Smart had affected them in this regard. A total of twenty-five workers
were interviewed. The survey group consisted of ten iron workers, six pipefitters, five electricians, three welders o. 4 one laborer.
Two of the twenty-five were females.
Included as part of the survey group were the iron workers who had been primarily interviewed regarding the circumstances of Smart's discharge since similar information was also requested and provided during those interviews.
o Of those interviewed one iron worker said he would not come to the NRC and his position was reinforced by Smart's discharge.
Two pipefitters, who were in their first week at the site, expressed fear for their jobs and their fear was increased when they were informed by the NRC inter-viewer of Smart's discharge. They, however, said they would come to the NRC if they were assured of confidentiality.
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Three other iron workers stated they would not come to the NRC but this was not out of fear but because they regarded their responsibility as being fulfilled by reporting such things to their foreman.
If the fore-man did nothing, that was the foreman's affair and they would not p:e-sume to question his judgment.
Although some workers indicated some apprehension as e rerult of Smart's being fired, all but the iron worker referred to above said they would come to the NRC if they became aware of improper construction practices which they perceived to be significant.
Review of Records On October 31, 1978, Daniel site management was requested to provide Smart's personnel file and any internal correspondence relating to his employment and discharge.
The material provided in response to this request was reviewed and copies of pertinent material were obtained.
In addition to the items referred to above as Exhibits A through F, copies of the following were also obtained:
Note by Powell undated, Exhibit G Handwritten employment summary Re Smart, Exhibit H Letter, Smart to Smith dated November 22, 1978, (correct date probably March 22, 1978), Exhibit 1 Letter, Smart to Smith dated March 22, 1978, Exhibit J Letter, Hunt to Smith dated March 22, 1978, Exhibit K Letter, Smita to Smart dated March 27, 1978, Exhibit L Meeting note dated March 28, 1978, Exhibit M Letter, May te Hunt dated April 5, 1978, Exhibit N Letter, Hunt to Smith dated April 21, 1978, Exhibit O Letter, Hunt to Snipes dated May 12, 1978, Exhibit P
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EXHIBIT A Page 1 of 1
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DANIEL INTERNATIONAL CORPORATION
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CALLAwAv PLANT
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P. O DOX IOS FULToN MISSOURI 65251
4 314 8 47 6 3 8 t l March 30, 1978
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Mr. G. Investigation Sepcialist Nuclear Regulatory Commission 799 Roosevelt Road Glen Ellyn, Ill.
60137
Dear Mr. Phillip:
You have inquired into Daniel Construction Company's basis for the discharge cf William Smart.
As you know, the discharged employee has filed a grievance on this matter, as he is entitled to do under the terms of the Callaway Project Agreement.
We believe the discharged employee hr: selected the proper forum.
In addition, I have been advised you have no legal basis for conducting this investigatien.
Therefore, based upon advice of legal counsel, I must refuse to provide the information requested.
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,B.
L. Banks, Vice President Industrial Relations Daniel International Corporation su BLB/b
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MEMO TO FILE:
Bill Smart
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SUBJECT:
Invastigative Report to insure that Mr. Smart was terminated because of NRC allegations.
not REPORT:
On Tues' day March 21 at approximately 8:00 a.m. I received a phone call from G. M. Stephens, Construction Manager that he had been informed that Mr. Smashy (Ironworker Foreman) at the Pumphouse had " fired" Mr. Bill Smart.
I asked for the reason and was told that "He refused to follow a direct order from his Foreman".
I then got with Mr. Stephens to investigate the matter as Mr. Smart has been a controversial figure due to NRC allegations.
I went to the Craft trailer where we met with Mr. Cross (Ironworker Steward), Mr. Hathcock (Ironworker General Foreman), Mr. Powell (Craft Superintendent), and Mr. Stephens.
I listened to all the pro's and con's of whe* h;r the termination was correct.
The Steward saying Bill did not hear the order.
The General Foreman saying Mr. Smart refused to follow a direct order.
The General Foreman stated that he would not work the man any more because of all"the problems Smart has caused him.
He said he is always
. bitching.nd moaning about something.
His (Mr. Smart) last com-plaint was that he could be a welder.
I then requested to talk with the Foreman (Mr. Smashy) who had fired Mr. Smart.
I went to the Pump House area.
I asked the Foreman (Mr. Smashy) was he f lly convinced that Mr. Smart had refused to follow his order.
He stated that he was convinced.
I then asked for the details of the termi-nation.
The Foreman (Mr. Smashy) told me that he told Mr. Smart to bend some re-bar and that Mr. Smart just shrugged his shoulders and
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EGIBIT C
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3/27/78 Bill Smart
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c Page 2 continued to tie re-bar.
I asked him if he was sure Mr. Smart heard him.
He answered "Yes I think he heard me."
I then asked did he confront Mr. Smart again and he said "No" I just went and got another member of my crew to bend the re-bar.
A Labor Fore-man was summoned, Mr. Mellor, to corroborate the story.
The Labor Foreman (Mr. Mellor) said he heard Mr. Smashy (Ironworker Foreman)
give Mr. Smart the instructions and also saw Mr. Smart shrug his shoulders and just continued to tie rod.
I asked the Labor Foreman (Mr. Mellor) if he thought Mr. Smart heard the instructions.
The Labor Foreman (Mr. Mellor) said "Yes" I think he heard the order.
The Tronworker Steward (Mr. Cross) asked the Labor Foreman if he (Mr.
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Mellor) liked Mr. Smart.
The Labor Foreman (Mr. Mellor) stated that he didn't know Mr. Smart, but also commented he didn't like him for some of the things he has said.
At that time Mr. Cross (Ironworker Steward) stated that he was not taking any Laborer's word for anything.
l The Ironworker Steward (Mr. Cross) then asked the Labor Foreman if he
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was sure that he (Mr. Mellor) heard the orders being given because Bill Smart was going sue him (Mr. Mellor), The Local Union, and Daniel.
This comment seemed to scare the Labor Foreman (Mr. Mellor).
They then called Mr. Smart's working partner'" Jim" I asked if he heard the orders being given.
He stated that he was working about 12' from Mr. Smart and the only thing-he heard was Mr. Smashy call Mr. Smart's name.
My final questions were directed to Mr. Smashy the Ironworker Foreman:
Are you sure that Mr. Smart heard you give the order? Yes I believe he hear.d me."
I then asked had Mr. Smart done this before.
Mr.
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EnlIBIT C Page 2 of 3
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Bill Smnre
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Mr. Smashy answered "No" I asked has Mr. Smart given you any problems in the past?
Mr. Smashy answered " Problem, no, but his attitude is terrible and he is always bitching and moaning about something."
I made the decision to go ahead and discharge the man as there was no apparent connection between Mr. Smart's termination and the NRC allegations.
Mr. Smart did have some conversation with the NRC at the Warehouse prior to leaving the Site at 11:00 a.m.
Tuesday March 21, 1978.
Mr. Cross (Ironworker Steward) informed me that a Grievance on behalf of Mr. Smart would be filed.
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Subsequent Report:
At about 10:00 a.m. March 21, 1978 the Labor Foreman (Mr. Mellor)
called my office and said that he had to see me.
He (Mr. Mellor)
came to my office and told me that he would not be able to say
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anything regarding the Smart te rmin ation.
He (Mr. Mellor) told me
^he had a new baby and a wife and could not afford trouble or a law s ui t.
He told me if I tried to force him to say anything he would quit his job.
He (Mr. Mellor) also told me he had talked to Mr.
- o Cross (Ironworker Steward) and told him' that he didn' t want any trouble sud that he wouldn't talk.
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EXHIBIT C Page 3 of 3
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On Honday March 20, 1978 at approximately 4:00 p.m.
I gave Mr.
Bill Smart a direct order to bend some re-bar.
Mr. Smart ignored my order, shrugged his shoulders and continued on with what he was doing.
I am sure that Mr. Smart heard my order and chose to ignore it.
Mr. Smart has had a bad attitude since be came to my crew.
After Mr. Smart ignored my order I contacted my General Foreman, Mr. Hathcock.
Mr. Hathcock advised me to terminate Mr. Smart with my concurrence.
I did not treat Mr.
Smart any different than any other member of my crew and expected the same work from him.
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This statement was made by my own free will.
d/ -r
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COUNTY OF CALLA'n'.'.Y
$
STATE OF MISSOURI Subscribed and sworn to before me this 28th day of March 1978.
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NOTARY PUBLIC My Commission Expires:
9. 2-20
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EXHIBIT D Page 1 of 1
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On Monday March 20, 1978 at approximately 4:00 p.m. Mr. Smashy Ironworker Foreman at the Pump House area advised me that Mr.
Bill Smart had failed to follow a direct order.
Mr. Smart had a bad attitude toward this job.
After some discussion it was decided, with Mr. Smashy's concurrence to terminate Mr. Smart.
The shift had ended by the time the decision was made so there-fore on Tuesday
- ning March 20, 1978 I prepared the paper work to clear Mr. Smart from the site.
I at no time have. had pressure put on me to fire Mr. Smart because of any allegations made to the NRC.
This is signed on my own free will.
t J.
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STATE OF MISSOURI
,, COUNTY OF CALLAk'AY Subscribed and sworn to before me this 29th day of March 1978.
v
&.UBLIC O
L i,b NOTAR'1 My Comission Expires :
QJ - 30 s.
EXHIBIT E Page 1 of 1
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tt y . . . . .. . - . ' . - 03,@)$$$$$ ' !.!b ' 1978 d , Tl.'.!" - - _ ~ . I Ason CLLATIONS , . EXHIBIT J , -.... = - - - _.. - Page 1 of 1 _, - - _ _ _.. _ -- _ _ _ _ _ .. ..,_ _ _ _ _ _ _ _ _ _ _ _ ~~~ '-~ J [5 ^ '-~ ~~ ~ "~ ~ ~ ~ ~ " ~ - ~ ' i~~ .. - - -
1.strutne D00rd intets first nr.,! tia,j 7! up,jny, President - E**tChlar M!rtung inst Frulay of tuch ennti., ct Bru. T H os Neorro3 1800 39th St.
au.,smu s.nes., International Association'of ' %"."0'su,,.,.r, ... Bridge, Structural, Ornamental Iron Workers, {
- osu= 2. nun. 2 Machinery Movers and Riggers e.,i a
a a u, ,,v,.,, Local Union No. 396 Asst. Business Apent 447 3003 EAas MAwrvon 647-3009 1600 Chrt St.
Asst. Bus 1=sas Apeut 87. kt 14. Mo., 63H0
- **
PM Ch 22, 1 @ Hr. 7. C. S~.ith Danici International Corp.
P.O. Ibx 103 Fulton,1:1ccouri 65251 Deer Sir, mis is en official notice that vc intend to 1:rteko tho grieva.Te procedure es outlined in our Project /.crocnont in the ter:inction . of our re.ber, itillian Snart, on " arch 21st.
We rogaest that a service letter re;crding this ter:.ination bo for-warded to our office.
, Enclesed are cepies of lotters fron Id. S. art.
! Sincerclar yours joS9*: h. bs,, Jay / G i s'~.unD, JJH:Cr d ... opeiuB13 i ' ? \\ ,,,
- .
- MMUIk) 1.iA,!.? 231978 il.*.*I _ LA00k itkL AllONS ' .s EXH'",IT K Page 1 of 1-e - _ ~., - 7-,.-,, ,,.-. _ _ - -. - - - - - - - - m._ -- -:-_- . -, - . - - --
--- - DANIEL INTERNATIONAL CORPORATION ... - .
( CALLawAY PL&td7 "
i-P e. gria ios '
' * TULToN. MISSOUHI 6*1251 g.
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, March 27, 1978 / . Mr. William Smart - . Box 126 - Portland, Mo. 65067 CERTII'IED MAIL _ RETURN RECEIPT REQUESTED
Dear Mr. Smart:
This service letter is per your request by letter of March 22, 1978.
Nature and Character of Service: Ironvarher Period of Last Employment: 5/26/77 - 3/21/78
, Reason for Discharge: Refusing Direct Work Ord.:r.
Sincerely, $[ T.
C.
Smith Assistant to Project Manager TCS/js cc: D.
C.
Snipes
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Page 1 of 1 .=== rem - _ - ,,._ _ qq==*=====***e===*****..**
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-.- o ~ . % a , . . STEP 5 GRIEVANCE HEETING '
MARClf 28, 1978 Attendees: Bob Nimo L!n. Pield Joe llunt Jim I'^ .; t e Brucu May , t IAtter to formally advise Joe Hunt that Smart's reprimand would be removed from his work record.
Hunt contended that he forwarded a letter to T. C. Smith on January 19, 1978, on behalf of Newell McQuerry concerning our refusal to rehire McQuerry.
Prior to February 14, 1978, McQuerry was terminated for . falsification of company records.
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. % EXHIBIT M . Page 1 of 1 l ' ' ' ~,._..e m ,n. _ ... - ~ ...-,. -..... - -. ---........~. ..... -...... -.... _... . - *
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- - - -_ AR [' * DANIEL INTERNATIONAL CORPORATION ' CALLt.way PLANT , , . P. O. som ite FULTON. MISSOURI 65251 . . esi4 eve.sisi . . . April 5, 1978 . .
. . Mr. Joseph J.
Hunt, Jr.
Iron Workers Local 396 2500 59th Street St. Louis, Mo. 63110 - -1.
- - .. .... . ..,.. - , ,-
Dear,
Mr. Hunt: , ..- ... - . . , - , , , please.be advised that the written reprinand'given to. William - Smart on December 12,.1977, concerning falsification of a' , company time card, will be removed from Mr. Smart's personnel file.
. See you at the Labor Man gement meeting.
Sincerely, ' , )447 kd t? ^ Bruce C.
M Labor Relations Administrator . BCM/js
cc: D.
C. Snipes H. J.
Starr T. C. Smith Jim LaCoste , , e t - . ' , J . .
.. , ' PF EXHIBIT N ' Page 1 of 1
nan. u. v.nt.om u =~a.8 c.
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.. . ..-._.m - Re csrding Secret:ry IntCTnQlional As.<o.-iation' of j r,.a n e w, Bridge, Structural, Ornamental Iron Workers' . rse-u sureur.r, ,,, . amng. neur. ar-Machinery Movers and Ri88crs ' n.....,, a, a no m,nou m m Loca! Union No. 396 Aest. DasAsse Apast g7 3oog EAx1, HAntrTox H74009 2500 E978 Sr.
Aest. Dmoiness Agent Er.1.ocis, uo., s3110 <D ~ April 21,1978 !>. T. C. Sr.ith Danici International Corp.
P.O. Tr.100 Fulton, :D 65251 Dec: Sir, Pursuant to conversation trith ; o
- 5. Deuc Snipes this date, trho has in'er.cd us that o nenbor, :5..11111c. Sr.7rt, tould not be reinstated on ;*oa job clic, this ' c to cd'.-1:e ; ou that
. Local Union 3?6 is invokin:; Step 5 of the tricecnce pro:cire , in this case.
.Ver-truly yost:,- h.. \\. lL, - ' JJH:gr
- 'Jod h. Hent, r.
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Danici International Corp.
Daniel Scilding Creenville, S.C. 2?602- /,
.
- ': 978
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v A t:, U . , . . , p y- - - us: c.s ;s.~:.ws:: @d g *,..:L::.;} 1 rreuttu ihnra s.::ets ll.18 c.::d i:...: ; i.:.:..y.
. 1.c.ns:Er.r 2500Mt.lsSt.lcci;.:p sc:t IM.'c; cj c..*a :.2,st';,,;t 3 ::: U.1I::.:::..0T13:1 );;c::z.::p Secret:ry $11M'Tr.CD.Diul At:ociatuoit;.of ' . .. "$:i'.*f5: :,,,:crg.n cm.,,, Brid,Se, 5t.a:tural, Ornamental Iron Wori crs, [ DOC}}ii1Ci*y [dOVCPS CDCI Si"rincr5 Jc-- :t J. *.It' 7 Ja.
C:.:!::::2 A:::s: . ne __..:... n __.
Locci U3dc>t No. 396
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J... . . . 721 Oliva Circ S, Gr.ito 03 , - .. - St. L.,ulu,1i0 Q1u'l . - , - , . I,. 4. C..e,.i., ,, ... . Dr.r.ic1 M C ';2 tic.21 Corp.
P.O. L.'.: 103 - FtGton, 1.0 63'51 . 3I5 @IS D. f5 9
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" In the Pattcr ca th] ArbitrCricn b2tv;cn ,........................... . .. . . . Daniel Construction Co:pany, I Callavay Project, A bivasion of
Dan:e1 International Corporarten, . E*EI Y"# n; S Case Nc. 7CK/17143 and . . . - Interta.:oaal Association of Brid g e, Structural, Orta:3 n t21 . Iron. rkers, !bchinery Movers
and P.iggers, Local Union No. 396,
Unior . . ............................ /.; p e a ra n c e s . For the Co:pany B. J. Starr, Project ?anager L. Lloyd Laughlin, Attorney C. Daniel Ell:ey, Attorney For the Union Earry J. Levine, Atte ney Joseph J. Pant, Euriness Representatisc k'illia: S= art, Grievant . . A,rw.......... ,..,,... ... .... ...
- .
........~.4 . . "nic arritre :on arisc< under t i.. < - 1 ; n c..', tc, ..t betweer. th i ,, Cor.any and ti. Urlo' f rid s.e-O c F. u:.'. r 1 cnt e red in t o ::..;. u:.Let 3., . 1975 fc tha durction.: i t h e c o n v. ru c t i e r. o f t he Ur. i c r. Ei( u ri c Lo ps.n,. S i C'11avay County 1:aelear Units I and 2.
,i, In accordance with that agreement, the parties selected the undersigned ' arbitrator through the Federal Mediation and Conciliation Service.
By mutual ~ the hearing was held in Jefferson City, Missouri on Friday, a gr e em er.t. ' September 22, 1978. The parties appeared as set forth above, presented witnesses and documentary evidence and cross-examined the other',s vitnesses.
. Appendix A Page 1 of 15 o . .
r The arbitrator tape recorded the procecding end, on the request of the
' Cospany, providsd it with a copy.
It was agresd that the parties would ftle . briefs postnarked no later than Saturd,y, Octobe.r 1.'. and they were rec eived by the arbitrater on October 16 and 17, thuc closing the heariLb.
. Re Arbitrarility ~~ At the outset of th h niirg-t? - -.- c, c; tr-e/ th srbitrab';;;; of ti.: g.-levan.e on tne tre.nds tha. tt< U. ion 's r equerc. for art:tr : tr . ca:+ too latt.
The Uri - a r gu c t: that *t.* Cor pa r. 's obj ot if ;r. :. .. :: 1. c besaute it was never raised prict to the a: :.i tra t ior.. While both sides vigcr'::1.
, pursued this argu ent, I find it unnecessary to t'esol.e because ant tbe.
el ement in the case disposes of the issue of arbitrability.
The discharge occurred on March 21, 1978. Article VII of the Pro,#ect . Agree:est provides, in pertinent part, after setting out the several steps ~ fro: 1 te 5: "Sec.2 In the event the dispute is not resolved by the procedures provided above within twenty (20) days after the filing of the written grieva:.:e, either psrt: csy, .. witnin the ic11owing ten (10) dsys, serve upon the other -itten notice requestir.: that the dirpate be resolvcd by arbit:atic.:." . And "Sec. 6 An: grie.ar:c r.: t f il '..' i .. ! ; e with the Emp;cyer Oi u ' ' " ?: .. the acv of the L ru: . or t?' ., j gr evar.ce is be.sec s'.ia a l be fe.
>: ;cci-c.. Initially the Union took the position that it fernally grieved the matter only in May so that it met the Section 2 time limits. However, when I inquired about the impact of Section 6, which recuirer, filing of a grievance .
- Appendix A Page 2 of 15 . ' -.. .. . -
i
__ _ within 10 days of its occurrence. It asscrted that the grievance was - , , t imely filed by the Union's March 22, 1976 letter to F.r. T. C. Smith of Personnel from Joseph J. Hunt, Jr., the Union's Businest Agent.
That letter states in part: . ~ "This is an official netice that we intend to invoke the grievance procedure as authorized in out Pr oj(- t Agreement in the ter=ination of our mecher, Willia: St:rt, on tbrch 21_;." However, the 'Jnion't request for arbitia*. en (Toi;t r h '. ' - 'M ". - - e dated Fay 12, 15^3.
The Co:pany vir. rcusly contend: that tna-ri2.
t.t. ex- .t ' '. - , lir.its specifici by the Proje:t Agrae:aSt 3r. bert.'. '.. _.. - se t -: M !, '* < once a ti=cly grievar:c is iLled, thert are 20 da:c with:n vhich the gr..- ante procedure ope:2tes.
If by the expiratien ef t'.a* O' day., the diap..tc ' ter. air.s unresolved, eit her party "may, within the follovir.; ten (20) de;;. serve upen the other written notice requesting that the dispute be rescl'. ' by arbitration".
This ceans that if a party seeks artirration, it cust 6o so withfr thes e ti=e limits.
The Unier's writtr-re; ace for arhi:rsti.sn ,, ci c.r2 ;. f:'15 c :tride the for= ally c: ecified time lied:<.. _
Ho ever, as se often is the case, r.anage:ent and union practi,e dsri to substanti:11y from the formalities of the agreement.
The Project Personnel n, Director, who handled this ar d other craf t grievances under t;._, Proj2:t Agreement, testified without centradiction that the practtee war.L as folleus for discharge cases.
As soon as the Co:pany received any rptificatter. o: , Union dissatisfaction with a disciplinary action, be (the Personnel Directer) and a Union official vould get together as soon as possible brt in no event later than 10 days after the disputed occurrence was handled in the 4th s:cp. The several steps are set out in Section 1 of Article VII.
, . Appendix A Page 3 of 15 __ . .. p L
"stetion 1.
1. tae event that any dicpute crise'. -
.
' of th. fr.terpittation or appliestion of tais Agrter.e;.t, exclusive of ques * ions of jurisdiction on work. * h. follo int. procedures sh:.11 be pursued as the er.:1 aive . . means for resolving the dispute: " Step 1.
The Steward shall meet with the fore =an involved.
,
" Step 2.
If the grievance is not settled ir Step 1, the steward and the foreman shall meet with the area superintendent.
" Step 3.
If the grievance is not settled in Step 3, the business Representative of the Union shall =eet with the gener:1 superintendent.
" Step 4.
If the grievance is not settled in Step 3, the Business Ferresentative of thc Union shn12 nee: vith the general superintendent or the project manager.
" Step 5.
If the grievance is net settled in Stes 4, an Interna:iord Represen;;;;.e c.r.al. =ce:.irr 2 represcatative of the Erplcyer's C.':porate i. ber Relat f or.s Group. upon prcept re;/c e f r i:' -: ; 2::;. i In this cauc, 1:.. Hunt called hit an# van *c' to get toi.th.a s'e.
t is grievonce on Parch 12.
But, the Pers nnel Directer was unsble te de so.
Mr. Hurt ekpressed concern ever meetir.g the 10 day tic: lir/.t 1 posed, not by t c icr=al , Prej ect Agreement, but by the parties' (including other cr ft unien par-ies) i practice.
The Personnel Director assured Mr. Hunt that he would vaivc cny tic < beyond the ten days by adding whatever delay was caused by his inability to ceet.
l In fset, they met within the ten days. However, this episode is signific6nt to show that the parties operated under the Project Agreemant quite differently fro:,its formal time requirements.
Delays caused by inability of the parties' representatives to get togethec^ vere added to the tice limits and the agreement-prescribed limits were waived.
.. % Appendix A Page 4 of 15 .. ' T,
I l So, ths Forsonnal Director tertified, the Lator.1.'i 3G days withit. which . . . to request arbitration starting af t er the Dire.tc r c; Labor Ke:atiore denied
the grie.ance at the 5th Step TI t Unicn =71e th : r e.;u. on ?' 12,
1.
_ received the Conpany'r oral decisio. de:. yin; the f rie.ancc.
The Ceep,:.y's for:a1 notification of that actien was in its ? 2:*.cr cf - May if, the co:pletion of the 5th Step.
Hence, the demand for arbitratir- , was timely and the dispute is arbitrabic.
-The Itsues The sole questions before the arbitrator are: (1) Was the Grievant, Willian != art, discharged by the Cc=pany fer disobeydr.; a fore =an's order? , (2) If he was, was ter=fnation prere:" (3) T f he was not, what is the aporcpriate rer..dy? Evidence. Tiriinns e-d Dircu;rfer.
The Grie..n* ?. . ','ill l s: i- .r*f c- ' ..
- -
.. Generci Ferc?.:- T:. e a r 1.- e r. v- - -- '
- .- <
. . + co.:s t ruc t ion o f t he Ca' _...- '.. **i.; P:.nt, a i.. .4 t.
. .. .
' . s t ru c t e d f : r t.a,. :.- L tu r.: C.. : 2..y. T1.2 .:d _.o .. d i r v:.
- -..
- ..
. on March 21, 1975 h.. sed upon events of the pric: day.
This arcount fccures upon the eem.ts of those two days; earlier events will be di: ussed lat:: for thei: pos ible utility in explaining actions and decisions that o:curre; on March 20 and 21, 197S.
s On March 20, the Grievant worked as a Journeyman Ironworker in the Pump House under the direction of Foreman David Smashy who was i directing a gang of journeymen Ironuerkers laying rods for reen, forced - concrete. The Pu=p House is a large building and the rod laying and Appendix A Page 5 of 15
..... . . i , - --- t -
, . tying v:s bring donc cbout 30 f eet below ground level in a hole about 20L . . . feet by 200 feet. At the ti=e in question, about 4 p.M., P.r. Se, shy steed ' severa; feet above where the gang was workir.g A Cencral Farc an directs several Tore cr., vac, in turn darc:t t: . ~ gang. M.r. Charles i.e.thecek, vcs th Goncre! I r: ( -.r dir ectirig Mr.1: . gan;; ( azoa; ethe-i;. Mr. Lt..c .., d ~ ;... ; tt- ~ i,ad ' h '. . 3-c-. ' Fore an, t:1 king oc ro'. .. cr: ca.
. 'e 4,-
- .
- . .2
alic ve, t c ! d Mr. 5:s st - to have sc.-e + c: 'r tr-s *.. '" e :
. .. tk. S:a ch;. testified that he called Pr. S art by ma. tl.r t M-5: art ste:d up fro: the verk he was doing, tying rods, and oched at r.1 :. He sr.id that MJ. Underwood, a "per:1 man" (not an Ircnverke: in the local whose test ers were doing the job), was working next to Mr. S= art and also s: cod up.
Mr. Stachy sail that hc told Mr. S= rt, fro: a distance of abcut 10.to 20 feet, to straighter t !.c rod and indicated which one, but that Mr. S= art "snirked", that he thinks Mr. Snart shrugged his shoulders, shook his head es;3 fro: side to side ar.d went bac'.
- the work of tying rods.
(Mr. Hathec:k had lef+ the T;:p H: se by,this ti=t, ar7arently.)
Mr. Sr uhy dd.d not tr rat the crier Tre Tcre=2n also testified that a Laborer Forest i, Me. Meller, st:rdi.; nearb; s..:.. so s-
- thin; li',e, "He's net going tm d..
it".
Mr. S - sl.-. teld tve other Ire.- --ist-(iiennich and bar: cat, te straid.ter. the rod and tl.ty ic ae.
In addition to the gant of Ironworkers, Carpenters and Laborcrs were
i at work in the Puup hsase, but, Mr. Hatacock cr.; Mt. St shy testi:le-that no i ca:h2nery was goir.g and that it was " dead quict".
As tl.e Car.psny bricf states and I observcd, Nr. 5:ssby speaks very caf etly, unusu:11-so.
Nonetheless, . Mr. Smashy " assumed" that Mr. Smart heard him and that the alleged he..d shake indicated a purposeful refusal.
(For the reasons noted below, I do not fully . %
. Appendix A Page 6 of 15 -
i
i e Se . *
m
crcdit Pa. Sesshy's testimany.)
Mr. Smashy did not tell cnyone of the inciden: .
that cvoning (quitting time was 4:30 P.M.) although he testified that he regarded the incident as a challenge to his authority of a kind whicF c:ala . not be perci:ted.
11 one such successful challenge takes place, he said, his ,autherity as Foreman would be undermined.
However, there was no testi r:.) ~ that asy Ironworker observed the incident.
A Laborer Foreman, Mr. Me;!or, re-ported;y observed the exchange lo' later, e:e rdfr to the Assiston: Projort Manager, scid he did no-went to t r im olvc' in any way.
Af ter the startit.g time the re>:t day, Pr. Seasiy told hr. 1:..h:t..% tcc: "Eill S= art refused to straighten the red".
(He did ret on thic c:;a:iu, cell Mr. Hatheoch that a short ti=e earlier Mr. Smart had allegedly been insuborci-natc; nor did he tell anyene else.
That supposed incide:.: could not have influenced Mr. Eathcock's decision to discharge Mr. Snsrt.)
Mr. Rathec;k cLked him if he would be villing to sign parcrs discharging Mr. Start.
Mr. Smashy indicated that he would and later die se when Mr. Hathcock (not he) decide d to dis-charge Pa. Start.
Sor.n after the 5:1r.hy-Hathcock convers :fon, they tc 1.
1:I. 5 Art fic: the Pu:p House and went with hit to Lobert Cross, the I::
- rker Steward.
k* hen the alleged incident wat rece.tated te Mr. Cres s 1:. '%. S 2::'c prescnce, the la tt er r..,f d t ha t he had heard no such ordcr.
Mr. F 'th. asked }:r. Start if he was hard ef hearing.
Mr. S=:rt e-id. "Tnct's n .s of,.# godda: business".
I re;n . Scathy's ge sti-r a.- a bi s-he elm. r.:. - an' d " rhetorical, if not sarcarrie.
Mr. Frs rt 's s1.arp rcp2y w.c, in such - set:2 : , mild stuff.
(in an office, it might be anot!.er tatter.)
Moreover, in the construction craf ts, journeynen and foremen f requently change roles.
Indeed, in the past, Mr. Smashy had played Journeyman to Mr. Smart as Foreman.
Personal formal deference plays no part in these relationships.
Of course, ' , Appendix A Page 7 of 15 .... . _ _ ee _
._.
the Journeynsn t;ust perform his job as the Tereran direetc ar,d nay not . . undermine the Toreman's authority.
But, in this setting, Mr. Smart 's respo:,se
does not convey an insaberdinate attitude; it expresses no = ore than irritation and carries the message," Don't treat me like a schoolboy".
And Mr. Sna:by must "not have taken offense because, after Mr. Smart asserted that be had not heard the order described, Mr. Smashy asserted that he was villing to take Mr. Start back on his gang. This willingness suggests that "r.
Snathy eithcr tr<e
- j ty.e.
, good faith of Mr. Scart's denial or, possibly had so e doubt whethc: Mr. 3rc had heard hi=. That villingnest certainly is inconsistent with the vie thc.
Mr. S= art had been it. subordinate, because Mr. Smashy var quite firr tht: a suc-cessful ins.bordination voald be fe.*al to his a'th9:ity.: It 32s^ it ir:;..:ste-- with the all ged ecrlict insubordination, the alleged "rmir'.' .' n d t h e. c: n<.;,ativs vag cf the head Sc attributed te Mr. Sr:rt.
- :.d c e d. as I he--d thet-ter rie::. t
. detailr, they 4-ediately stru:k r.e ' c: ellishrent s decipr.ed to s trcng ier, at c questionable story.
The re:ord does not af firnatively establish that Mr. Enart heard L:.: order, if it was given.
I find it unbelievable that it was " dead quict" in a w:rk place . where 5 r 6 Ironworie:s are tying rods, and a sant cf Laborcrr Lt.: a gar of eCarpenters all are doing their thing. Althcutr. Mr. Hathcoth and Mr. Scashy testified that the corpressor and other machtncs were net operating (alt'.m-gh they often were operating in the Pump House), I find that the record F does not establish that Mr. Rathrock effectually ccmmanicated his order across a distance of 40 feet and a height differ (ntial of about 10 feet or that the softspoken Mr. S=ashf gave a direct ordcr to Mr. Snart that effectivJay rrr ani- - cated itself to his hearing and consciousne:s.
Nor does conscious, purposeful disebed:enet c f Mr. Smashv's allcrea cra.or make sense in view of Mr. Smar. 's other croi put.d (: e._c t:n: /ay.
- . .. . Appendix A Page 8 of 15 . es 4 ee e em e T
M.. 5:. :.i t, w!:. t es: 1 f f e.1 1.
. c. t h r v ac r.:9 i 15.1
- b r d..
.. . ^ of the elleged orde ar.d i t. r. ' n t. : - *: , !' v.
- t :
. . . erti c u, -c .s , a t 14. S aa s hy 's r equest, to f2:.; : n.- rodt. r. - t r.s t tha; lay proprr. <;ece; . and aligned af ter Mr. St..asty could nat get the, strair,ht ncd avsy.
"r. S a r t undertook that tnsk.
Mr. Smashy conf ar:ed the incident but said that ;- . had occurred earlier in the day.
I find it unbelievabic that Mr. S= art veuld be so industrious, obliging and workmanlike early in the af ternoor. and insubordir.a:ely ref use a simpic, direct order soo:. thereaf ter.
It is true that PJ. Jares Undervoad, a "perr.it man" no longer e=plo, cd on this project, testified that Mr. Smashy called Mr. S= art's nar.c at ab:ut the time of the alleged order and that he (Underwcod) and S= art straightened up frc: tying rods and looked at Mr. Seashy, wh: then said nothing.
Wh e r. I hea:1 this testi=ony, I did :r: believ( the last part of it.
It appeared t =r (ever. beierc I heare: P. != art 's dif f erin; versieni th2-Mr. U:.dervor u v, tiyi;.; t- '.e h 1;:ul et M.
Suart- ! L-s.c : a:. - - . . .- - 5: - :+ - /. t f it e :. 1: the dir..c:ri.n vi: '
,, '. .:._.
- ..
- - . of the in:iifr:. M.. Undervoc 1.
? _. - of i.' e t -- - st. d:tr.c... v2th Mr. Cr:r s +.nd ':r. Est h:ocr on Me ren 2. suct v:
. s:wo;: a d... . - and what was trte, I could not figure o..:. Unictrur.atel:. it is not ur.:: ---
for f ellow er.ployees to try to provide obli :ing testi=;ny.
Eowever, it ofte.
t does not fit the circu.: stances.
Mr. Underwoed's partial substantiation cf , Mr. S= ashy's version (as well as his partial cor.tradiction) did not persuste ::. Mr. Starr's testicony struck me as direct, candid ar.d not f ashior.cd f r.r t!.e occasion.
I think it most likely that,he was involved in the realigning task at the ti=e of the disputed incident.
But even if he were tying rods, it ' appeared to r.e that his denial that he heard and refused a direct order (which r.
Apr-7 dix A Page 9 of 15 ^ i =...,. - =
- * *.
} . h
r - ~ - , ' I cm not ct all sure was given) was candid.
Mr. S= art is a brirht, q uir.'r and , , streng-=inded person.
His single mindednes-fit s his descrip:ive that wher he is i=:erced in an ectivity, Fe be onic M.11.'a.: te von ir $ _n n, around ni=. So ths:, if the vritt. crc A12: Jand
<t (.. .; e.
';; ., 'about that), it nains rence ttat it :n d : not have ver,iste ed.
.tpe:12.' given Mr. Snashy's quiet ca nn c t, it would very likely not penettste M.. '. an 's conscieusness wher, he was engrosted it. a tasi.
It tales an a:tually coc=u Icated order, one apprehended by the e=ployee, before insabordina. ion can take place.
The record does not af fir =atively establish, ac it cu.: to justify a dischstge for insubordinatien, that such an order was in fact giv er, or effectively co=nunicated.
Mr. Smashy's testimony alone does net establish the requisi:e showing and Mr. Smart's testi=eny casts serious doubt upor. it.
Ncr do I find confircation in Mr. Mellor's statement.
/dthough Mr. S= ashy, Mr. Cross and Mr. Syrera each reported Mr. Meller's asser: ion that Mr. Meller sai', "Et's r.o: going te do it" (or some such thing), it doesn't confirn th: l'. Mell.'r did su candid:y nor that he would testif;. that the circumst:n:ce a indica:ed that PJ. Str.: : probably heard and con rehended an orde la c'. a r.
o ppo r t ur.;' : y t o e.ca l c r e s hs t Mr. Mc l.i er wru ld s ay h' h:::2.,nd s.'w, ! c..nt _ f attach any probative weight to the substance cf the report of what h c.- i ; tc others.
But, even if the record did establish an order communicate _ and ac usily . f defied (about which I entertain some doubt), Mr. Hathcock, the General Fore =an who decided upon Mr. Smart's discharge, clearly did not make the decision to discharEe Mr. Smart,becauce of that alleged insubordination.
Ee testified that he reached that conclusion immediately af ter talking to Mr. Smashy and before the conference with Mr. Cross.
Early in his testimony, the General l Foreman also asserted that this decision was influenced by Mr.r Smart's allegedly ] inadequate performance a few weeks earlier when Mr. Smart was a Foreman.
But ,
o Appendix A Page 10 of 15 l y j -... _ . L o
- __ ._ th t story ca e in co many vorsions by the witness, that it became unbelievabic .
- cnd made it cppaar that the witness was casting about to givc greater cubstance to his decision to fire Mr. Smart for insubordination.
As that version Ly..n , to unravel, it encrced that soon after Mr. Seart was assigned at a Foren.r ,under Mr. Hathco:L's jurisdiction, the latter observed a yellow truck driver 'ay the pssje::'s Assistant Genercl Superin: ender.t repeatedly circling tt. a-where Mr. Start worned.
In Mr. Hathrock's opinfor., th:: activi:y cr.;i er.'., have the purpose of keerin; Mr. Start un'er survcillan c, a su rv eil;.m :. unusual for its intenci:y.
In add;t e:., Mr. Fa:hco:P var int:r2:ted net :- allow !L. S =c r t to work in sev2ra areas, a situa icn Mr. Hatheeci found ha=pering to the perfor:ance of his job as a GenercI Fore :n.
So, he tes: fic' that he deduced that Mr. Sr. art would have to " toe the line pretty close", that . Mr. Start had te be " extra careful" and war in a "special post:fon" becaure o: the allegations Mr. S= art made to the Nuclear Regulatory Cc==ission (although he also testified that Mr. Stith, the Ce:pany's Proj ect Personnel Director, tc3d him to treat Mr. S: art the same as anyone else).
He testifiud that no one "ever ca:e right out" and told him to fire Mr. S=srt, but quite c'.estly that is wh.
thsu= of the C::;ary's special at t on::vr to and restriction-e upo n - Start added up :: for Mr. Hatt::ck.
The prob:lility that Mr. Ha:heock creide' te use / t'he incident as en excus? ic ree-ro:: c? 17 Mr. F. th:nN 's ref. t _e to C:-.- . pressure on hi: about r.
Start v. :" c'rfor:n e vir. ::. irc e, Sr t'at, a the situatier arose or March 21. he ag'eef, ha se. J t' < - Or h:pp: rc ge* r '. S * f the headache ths: Mr. Snar: represented an' .ve: the Corpan the decir.-- n: . thought it wanted. Also, the record cacts rent doubt up>n thc Co: par-.rsertier.
" that discharge without some warnihg would be the normal treatment of a non-flagrant failure of a Journeyean to follow a Foreman's order. The Unian established that several separations for insubordination were in collusion .- with the for'bmen involved to enable the employees to collect their pay
.- Appendix A Page 11 of 15 . .... .
p - im=ediately whereas a quit would entail a delay cf a week or so. And, tha~ record . . . shows, a verbal warning would be the appropriat e sanction for a non-serious ' f ailure to f ollow an order, with the seriousness lef t to the Toreman's discretion.
. Mr. Smart also alleged tha4 at the interview with Mr. Cross, it was agreed by Mr. S= ashy and Mr. Hathcock to take Mr. Smart back but that )*. Eatheoci decided to fire h2: v$ an t'r. 5 st t se. i d.
tv * l e n ::: prt'cr to work elsevt.'re. s ; journe ir cr ' sc. e..s = . : e.' ot in - ;-
. ... but fer hit d. sire to trans'c: L;-e..t, it appeerr to te... -,.. tem. s.srhy - clearly er, ressec hts villingr.ess to t:ke Mr S:rrt bsch cr. his ga.g.
Mr. Hathccch (as h? himself asserted) ne.sr did core th.m ceep silent, cif r.o* actively agree, and did not depart free his first decision to di: charge Mr. E art.
Af ter the conferencc with Mr. Cross, Mr. Wallace L. Sykora, Assistant Proj ect l'anarc r, wa s infont.6d of the General Toreman's decision to discharge Mr. Smart for alleged refusf. tc follow Mr. S= ashy's order.
Mr. Sykora testified that he took special pains in inquiring whether adequate c.idence existed to show the refusal (although he did not talk with Mr. Smart) because he was aware that that action vould be publiciced and subject the Company to possitic criticis: if %ee=ingly unjustified.
When he inquired whetner Mr. Smart had heard the order, it was Mr. Eathcock who assured him that he had.
But, Mr. Esthecck wcc not present and at this juncture would be trying to justify his decisier.
Ee oIs- % spoke to Mr. 5 shy who told him, as he ':.ri testified, that he hai c3>une?. Mr. S=;rt heard hi:3.
But, it is no* at all le r tr.at 'ir Sykc.
...cid ti. : tic. Smashy was wills te take ":. :.. m ;. , c-M p.3 W.
e :..n e id- , is inconclusive, it seems cere likely 12.:,: Mr. Sykorn was not told of this.
The Laborer Toreman reportedly told Mr. Sykera that he had told Mr. Sncehy that Mr. Smart was, not going to do what he had been told to do, but that soon there-after he called Mr. Sykora to say that he had a wife and baby and did not want - . Appendix A Page 12 of 15 . _. _ _.,. - 3- .
r- , . .to get involvad.
(Mr. Cross had, without doubt, tc1d Mr. Meller that . . . Mr. Scart might sue the Company, the Union and Mr. Mellor, thr-Laborer.
hat . M. S= art testified that Mellor, the same day, apologized to hic and told hir, that he was just trying to support the Toreman.
As noted I cannot attach much weight to the reports of what the Labore: Toreran said one way or another.
Af ter this inquiry, Mr. Sykora ratified Mr. Ratheock's decision to dis-charge Mr. S= art.
Nothin+g that Mr. Sykora said or did on March 21 inditete.- an icproper zetivatien :n his part or in his acticn: on behalf ef the C c; n. , But Mr. Rathtock madc the basic decision on beh:': of the Conpany te dis:..2:gc Mr. S= art and that decision was not based upon " good cause".
It is her? for the Co pany's dccisien to rise above this pelluted s m. ; ; c cvt: t aug' t v.e r c is r: tvider. e that the General Fore,u racv' -
,. r-I' ro re: --f.
his de:isi:n.
higher levc1!. o.~ supervisien c: _inatily 2: .:t di osa the deci en-c- supcrvisors unic : th-y h.ve af firnative reasen: for dcing sc.
In this situa;ien, . Mr. Sykcra relied cn the General Foreman's version of what cecurred.
That version necessarily was shaped to justify the decision but did not disclose his actual =otivation.
The General Foreman is the agent of the Company; his cotiva-P tion for the disenarge is attributable to it.
Hence, I conclude that the Cc=pany did nat sustain its burden of sh:.in; that it discharged Mr. Smart for refusal to follow a Foreman's order.
' p ' Remedy In its brief, the Company urted that should the ditcharge be fotad not to have been made for good cause, back pay but nct reinstatenent would be the proper remedy.
It based this suggested course on the ground of the Grievant's testimony at,the hearing and his adamant opposition to the CalldUay Project as . Appendix A Page 13 of 15 . ......... - -. . y
, - _ _ __ -. .anif estod in the nu. rous s' 3 eg.i: 1.
n [ t.. j r.
. . :- 1( - - .. ....t-o . o . jaticsion".
Ant, while the Coex'ay states ths: "It sc coac co.t:: "
. _ . criticis: for employees and recognizes the rigt* of employees to cd 're;r rl.cir co: plaints to Goverr. ment agencies...this does not provide erployetc a;stlutt ' license to cpenly display their disloyalty to the co:.pany...Such dis'cya: t y flies in the f ace of all rational employer-employee relations".
The Cor.pany made no such argument at the herring and so the issue ws: not effectively raised.
This is no mere procedural pecadille.
The cther parties did not address the issue with their proof or in the Union's brici. Indeed, in the considerable discussions of what factual question was at issue, both co:pary and Union agreed that it was whether the Cc=pany had good cause to discharge Mr. Start because he did not obey a direct orde r of this Fore =an.
At the hearing, :).c Cc:pany took pains te aveid the issue of whethcr its dis-charge was notivcted by Mr. Star:'s activities in relation te the 1;ur'e:r Regulatory Cc= ission.
The Ce:pt.
's arg. <r.: about reced;. and the issue of what c pla ee activity tilytttesc;sinst rainstate=ent ai.:p1; were not add:essed.
Hac the fer;an-desired to raise those issues, it could have d:ne so at the hearing.
It ct.ose 'not to. The effor* :ones too late in the brief.
Moreover, the request seems tantamount te arguing that even if the Company failed to establish good cause for discharge, the Aibitrator should find gegd cause in Mr. Smart's alleged disloyalty as discussed and explored at the hearing.. Alternatively,it amounts to the proposition that if the Coepany violated the agreement by improperly dischargipg Mr. Smart, it could use that as a spring-board for being quit of him for an entirely different reason, a reason which it had not asserted as grounds for discharge and which it impliedly disowned in the testimony of Mr. Sykora.
Inde(d, as noted, the request cast's additional doubt upon the Company's notivatien for t!.c original ds charge last March.
' , i i Appendix A Page 14 of 15 '
......
e , . Tor 012 of thase reasonr., I conclude that the usual ren.dy for
' . un ctified dischstr,e, reinstatement, shru}d be ordered.
, ! !
A**'4PO : The Grievante is granted on the gtour.d thr.t the Cc:pany did not a l establish that Mr. Snart had been discharged for being insubordini. e . l . j by disobeying a direct crder f ro:- his Tot er.:. He is ordered i reinstated with bac}. pay and all intidents of ceployr.cnt that i l otherwise would have been his from March 2J, 1975 on ard.
I ! Respectfully submitted, ! . !
I i Mert on C. Be rnst ei:.,
Arbitrator ! , ! j Now.. Se r 3, I c a i $t. 1.o u w,.%.u c a : i
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