Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—Discharge of employee sustained by arbitrator, but termination date modified and back pay awarded, (Jul 23, 2025)

By WK Editorial Staff

The arbitrator found as a fact that the employer’s substantive cause for its decision to terminate the employee was his interference with the work of a supervisor, causing emotional upset that prevented her from continuing to work as assigned.

An arbitrator denied in part and sustained in part an employee’s grievance contesting his termination for confronting a supervisor in the facility’s parking lot and accusing her of harassment. The arbitrator found that the employee violated the company’s rule prohibiting interference with another employee’s work. However, the employer’s failure to conduct a meaningful investigation, such as interviewing the employee or reviewing security video, rendered the disciplinary process flawed. Accordingly, the arbitrator upheld the employee’s termination but modified the effective date and awarded back pay at the regular rate for the period preceding the revised termination date (Tarkett USA, Inc. and Teamsters Local Union No. 507 (Szuter, Arb. May 2, 2025).

The employer manufactures flooring products at its facilities in Ohio. Employees are represented by a union. Specifically, the union represented production, loading dock, and warehouse employees at the facility in question.

Disciplinary history. This arbitration pertains to an incident occurring on July 8, 2024, between the employee, who was then a union steward, and a supervisor. The employee had been working for the employer for approximately two years. He had several incidents of discipline or counseling during his tenure, including a “final” written warning with a suspension on November 15, 2023, followed by another warning on February 27, 2024.

The November 15 warning and suspension involved incidents with two separate female employees that involved threats and created a hostile work environment. The February 27 warning involved the employee’s refusal to clean up clutter that created a trip hazard.

On June 8, 2024, another worker filed a grievance claiming that a supervisor had been harassing him. On July 7, 2024, the supervisor wrote-up two employees. The employee was present as steward. Throughout the meeting the employee stared at the supervisor long enough for it to become uncomfortable. Later that day the employee and another steward collected signatures from four workers concerning their interactions with the supervisor.

Termination. On the night of July 8, security cameras in the parking lot showed some interaction between three individuals, the employee, a coworker, and the supervisor.

The employee testified that several bargaining unit members had complaints against the supervisor based on harassment and disparate treatment. The recorded confrontation included the employee yelling at the supervisor, “It’s harassment, it’s harassment, it’s harassment.” The supervisor reported the incident one hour after it occurred. Thereafter, the production manager sought to get the okay to fire the employee. The employee was terminated on July 9.

On July 10, 2024, the employee completed a grievance form seeking a hearing for reinstatement and seeking back pay. On July 24, the questioning began with the coworker at the incident and a business representative. The parties met on August 15. The basis of the employee’s termination was his interaction with the supervisor. The union appealed the grievance to arbitration on August 16, 2024.

Confrontation. The summary decision to dismiss the employee was based on the observation of a second supervisor that the supervisor was trembling and crying following the confrontation and her statement that the employee had accosted her in the parking lot and repeatedly accused her of harassment while yelling. Further, the production manager acknowledged that he was influenced by his recollection that the employee was already “on thin ice” as a result of his final warning and suspension a few months earlier.

The arbitrator found as a fact that the employer’s substantive cause for its decision to terminate the employee was his interference with the work of a supervisor while yelling at her in the parking lot, causing emotional upset that prevented her from continuing to work as assigned.

Affirmative defense. The union raises as an affirmative defense of the employee’s protected activity as a union steward at the time of his encounter with the supervisor in the parking lot. The facts that the union relied upon were that the employee was investigating several potential grievances concerning harassment by the supervisor.

The employer countered that the employee’s activities in processing a potential grievance was not the basis of its decision but rather it was his conduct towards the supervisor causing her to leave the shift. It relied on testimony by union officials that union stewards are trained not to yell at supervisors.

Disciplinary immunity. The arbitrator looked to four factors in determining whether an employee has disciplinary immunity for behavior as a union representative, including (1) the place where the employee’s action occurred; (2) the subject matter under discussion; (3) comparison of the employee’s action with the issue at hand; and (4) whether the employer provoked the employee’s conduct.

As an initial matter, there was no evidence on the fourth factor. The other factors were sustained in the record. The encounter took place in a parking lot, which is a public area as opposed to a private area like a conference room. Having selected that venue, the employee carried the burden of a higher level of discretion. Here, the employee admitted that he yelled at the supervisor. Further, the supervisor’s ultimate reaction of trembling and crying and leaving work underscored the factual finding of his misconduct. Thus, the union failed to prove by a preponderance of the evidence that the employee’s union activity should immunize him from discipline.

Procedural due process. The due process issues raised by the union were (1) the failure to give notice of the charges, (2) the lack of pre-discharge investigation and lack of objective hearing with proof, and (3) the severity of the termination in this instance.

Before discipline is imposed the employee is entitled to specific written notice of the precise information supporting the offense, observed the arbitrator. Here, the evidence clearly and convincingly established that misconduct as a cause for discipline was made with notice to the employee.

Investigation. However, the arbitrator expressed concern with the employer’s investigation and hearing fairness. The fact that the production manager considered the employee “to be on thin ice” was insufficient grounds to deprive him of an investigation that would have allowed him to present his explanations. That event was not cured by the Company’s later investigation after the termination when it discovered the video. Thus, the minimum due process for a pre-discharge investigation was not approximated here. Accordingly, the arbitrator was convinced that the Company had not proven that it conducted a fair pre-discharge investigation and hearing.

Penalty modified. Although the arbitrator was convinced that the employer failed with respect to the predischarge investigation and hearing, he nevertheless was convinced that discharge is the proportional penalty. However, the penalty of discharge was modified by revision of the termination date to August 16, 2024, with the period between July 8 and August 16 being compensated with back pay at the employee’s regular rate.

Attorneys: Brian Kelly for Tarkett USA, Inc. Joseph Mando for Teamsters Local Union No. 507.

Companies: Tarkett USA, Inc.; Teamsters Local Union No. 507

Cases: Labor Arbitration Discharge RemediesDamages