Title: US West Communications, Inc. and
Communications Workers of America
THE MATTER OF THE
WEST COMMUNICATIONS, INC.,
Case No. 93-098585
29 and 30, 1993
FOR THE UNION:
Larry R. Larson
3001 W. Indian School Road
East Orchard Road
Phoenix, AZ 85017
The Employer, US West Communications, and the Union, Communications
Workers of America, were parties to a collective bargaining agreement that
covered the terms and conditions of employment of bargaining unit employees
during the period of time pertinent to the grievance at issue. On October 1, 1991, the grievant, Lester Worcester, was
placed on suspension without pay pending the final results of an internal
security investigation of his conduct as an employee.
On October 17, 1991, he was discharged.
The Union subsequently filed a grievance, which was not resolved at
earlier steps in the grievance procedure. The
matter was submitted to arbitration for a final and binding decision.
A hearing was held on September 29 and 30, 1993, at which time the
parties agreed that the matter was properly before the arbitrator.
Post-hearing briefs were filed on October 21, 1993.
The following issue was stipulated to by the parties: Was the grievant, Lester Worcester, discharged on October 17,
1991, for just cause? If not, the
remedy shall be as defined in Article 29.4(a) of the collective bargaining
agreement that was in effect beginning August 13, 1989.
The following provision of the parties' then-effective collective
bargaining agreement is relevant to the issue in dispute:
In disciplinary cases, the arbitrator shall determine whether the
discipline was for just cause. If
the arbitrator concludes the discipline was not for just cause, the employee
shall be reinstated on the following basis:
(a) If it is established that a
dismissal or suspension which is arbitrable was effected without just cause, the
dismissed or suspended employee shall be reinstated in employment effective as
of the date of such action and shall receive his or her regular rate of pay for
time lost from the date of dismissal or suspension reduced by the sum of the
(1) Any amount other than wages,
received from the Company at the time of dismissal or suspension, plus any
service pension payments made during the time of dismissal or suspension;
(2) Any amounts paid to or
receivable by the employee as wages in other employment since the date of
dismissal or suspension;
(3) Any amounts paid to or
receivable by the employee for the period since the date of dismissal or
suspension as unemployment benefits under any provision of present or future
law; provided, however, that such amounts shall not be withheld in the situation
where the employee is required, by state law or otherwise, to repay such
(b) For purposes of this Article,
and for no other purpose whatsoever, the term "regular rate of pay"
shall be the sum of the following factors:
(1) Straight time earnings at the
rate provided in the agreement between the parties which was applicable for the
period of time lost from the date of dismissal or suspension;
(2) Overtime at the rate of pay
provided in the applicable agreement between the parties based upon actual
scheduled overtime, as opposed to incidental assigned overtime, worked by
employees performing the same or similar functions as the dismissed or suspended
employee and within the immediate assigned crew or other representative unit to
which the employee would have been assigned during the time lost from the date
of dismissal or suspension. In addition, the employee's "fringe benefit"
entitlements shall be determined as though the employee had in fact not been
dismissed or suspended. The Company
shall reimburse the employee for those expenditures which he/she was required to
make either to continue the same "fringe benefits" which he/she would
have had during the time of the suspension or dismissal or which he/she was
required to make because he/she was not covered by such "fringe
(c) In case of suspension, the
employee shall receive pay for time lost at the employee's base wage rate plus
any tour differentials to which the employee would have been entitled if not
(d) If it is established that a
demotion, which is arbitrable was effected without just cause, the demoted
employee shall be reinstated in his or her prior job classification effective as
of the date of his or her demotion, and shall receive his or her regular rate of
pay from the date of demotion reduced by the amount of wages actually paid by
the Company during the period of demotion except as restricted by Section
29.4(e). Demotions due to medical
restrictions are not subject to the Arbitration procedure.
(e) The Company shall under no
circumstances be labile for back pay for more than twelve (12) months (plus any
time that the processing of the grievance or arbitration was delayed at the
specific request of the Company) after the date of the disciplinary action.
Delays requested by the Union in which the Company concurs shall not be
included in such additional time.
The grievant, Mr. Worcester, had worked as a cable splicer for US West
Communications in Phoenix for approximately 18 months at the time he was
discharged. He had over 20 years of
service with Illinois Bell immediately prior to beginning his employment with US
In June of 1991 Mr. Worcester and William Gunn were assigned a complex
cable splicing project that entailed considerable work in and around an
underground vault. Because of the
nature of the work and the location of the job site, the work was done at night.
Their normal work week was Sunday through Wednesday.
Each shift started at 8:00 p.m. and ended at either 6:00 a.m. or 6:30
a.m., depending upon whether they took at 30-minute lunch break.
Mr. Gunn assumed the role of unofficial lead worker because of his
superior familiarity with Phoenix-area operations and the fact that he too had
over 20 years of service in the system. He
often asked Mr. Worcester to perform certain tasks that he deemed essential to
getting the project work done.
Prior to commencing their work at the job site, Mr. Worcester and Mr.
Gunn reported to two different US West-owned yards where they parked their
personal vehicles and picked up US West trucks.
Their shift started at the time they picked up the trucks. Mr. Worcester's reporting site was the Wells Fargo yard, and
Mr. Gunn's was the Evans yard, each located in a different part of the
It took several minutes to get from their reporting sites, the yards, to
the job site where most of the work was done.
They were entitled to two coffee breaks of about 20 minutes during each
half of the 10-hour shift. The
break could be taken at their discretion, either early or late.
Typically, upon arrival at the job site, the two individuals set up
barricades, opened the manhole, performed safety checks, and did other
job-related tasks, and then began splicing inside the underground area.
Prior to the end of the shift, they sealed the manhole, removed the
barricades, and returned to their respective reporting sites at the end of the
shift. Anywhere from 75% to 90% of
the total project work time could be spent by the workers inside the underground
vault; however, there were job-related tasks that could require them to be away
from the job site, either at the same time or at different times.
When their shift was over, they were expected to send copies of their
time sheets by facsimile machine to their immediate supervisor, Mark Jefferies.
As a practical matter, Mr. Worcester filled out his time sheet and gave
it to Mr. Gunn, who did the actual transmitting of both time sheets each day
On September 19, 1991, David Livingston, who is an administrative manager
with US West and a team manger with Mr. Jefferies, noticed that Mr. Worcester's
time sheet had arrived, according to the receiving facsimile machine time stamp,
at 5:15 a.m. Since he believed
Worcester was supposed to be working until 6:00 or 6:30 a.m., Mr. Livingston
decided to confer with Mr. Jefferies upon Jefferies' return to work on September
After conferring with Jefferies, on the evening of September 24 Mr.
Livingston went to the job site at 7:30 p.m. to see what was going on.
When he arrived, neither Worcester nor Gunn was present.
The first US West truck arrived at 9:55 p.m., but Livingston could not
see whether it was Worcester or Gunn.
In the early morning of September 25, Mr. Jefferies went to the yard to
which Mr. Gunn reported to work and to which he returned after completing his
shift. He saw that at about 5:40
a.m. the US West truck that Mr. Gunn used had already been parked and locked.
Time sheets submitted by Worcester for the shift beginning on September
24 at 8:00 p.m. and ending the next morning at 6:00 a.m. showed he had worked
those hours. Mr. Gunn's sheet
showed similar hours worked.
Jefferies and Livingston discussed their concerns over the time
discrepancies with Cliff Frederick, their superior, who decided, after checking
with his supervisor, to refer the matter to US West's security department for an
internal investigation. Mr.
Frederick made his decision to refer because he wanted to make sure the
employees were actually doing what they were thought to be doing, and because he
wanted experienced expert investigators to do the necessary investigation.
Mr. Jefferies contacted Eileen Herrmann, Security Manager and former FBI
special agent, later on September 25 and informed her that Worcester and Gunn's
time sheets showed discrepancies for the period since September 1, 1991.
Ms. Herrmann conducted a surveillance of Mr. Gunn's reporting site on
September 26, beginning at 4:45 a.m. At
5:42 a.m. Gunn left the site in his personal car after parking the US West
truck. The time sheet for the
September 26 shift starting at 8:00 p.m. showed Mr. Worcester worked from 8:00
p.m. to 6:00 a.m. the next day.
Ms. Herrmann suggested to Mr. Jefferies that the surveillance of
Worcester and Gunn be continued for another shift, and that two investigators
would be needed. The continued
investigation was approved for the shift beginning September 29, 1991 and ending
September 30, 1991. At a later
time, approval of surveillance for the September 30-October 1 shift was
obtained. Ms. Herrmann contracted
with James Hopper, a retired FBI agent who had extensive surveillance training
and experience, to assist her in completing the investigation.
During the first night of surveillance, September 29, Mr. Hopper saw
Worcester arrive at his reporting site at 9:49 p.m.
He got his assigned US West truck and arrived at the job site at 10:00
p.m. He and Mr. Gunn put up
barricades until 10:14 p.m., at which time they went across the street to an
all-night donut shop. They stayed
until 11:21 p.m. before they went back to the job site.
During the time at the donut shop, Mr. Hopper heard Mr. Worcester say he
had been able to watch only 45 minutes of a television program that came on that
evening at 8:00 p.m.
When they went back across the street to the job site, Worcester and Gunn
were observed by Hopper to be doing tests and conferring until 1:02 a.m. when
they sat on the street curb for about 15 minutes.
They then entered the manhole. Hopper
did not see them again until 3:10 a.m. when Worcester and Gunn were in one of
the trucks driving north. At 3:20
a.m. they were both back at the job site. From
3:20 a.m. until 4:00 a.m. they were only periodically observable to Mr. Hopper.
From 4:15 a.m. until 4:33 a.m. a woman visited them.
When she left, they secured the job site, and at 5:02 a.m. drove away in
their assigned trucks. At 5:19 a.m. Worcester arrived at his reporting site and left
in his own car at 5:22 a.m.
During the second night of surveillance, beginning on September 30, Mr.
Hopper saw Worcester arrive at his reporting site at 9:45 p.m. He left in his assigned truck and drove to the job site where
he helped Mr. Gunn set up barricades until 10:10 p.m. They both then went across the street to the donut shop and
stayed until 11:15 p.m., at which time they returned to the job site.
From 11:15 p.m. until 12:15 a.m. they worked around the manhole.
At 12:15 a.m. they left the job site in Mr. Worcester's truck.
They returned at 1:58 a.m.
At 2:02 a.m. Mr. Hopper saw Mr. Gunn go to his truck, get a beverage
bottle, and drink from it as he joined Mr. Worcester.
At 2:33 a.m. Mr. Gunn walked to the rear of his truck while carrying a
beverage bottle. He then rejoined
Mr. Hopper saw no further movement until 4:02 a.m. when Worcester walked
over to Mr. Gunn's truck. At 4:06
a.m. they both walked over to a block wall near the job site, according to
Hopper, sat down, and continued to drink beverages.
At 4:07 a.m. a woman joined both men at the wall.
At 4:30 a.m. Worcester was seen by Hopper to get another beverage bottle
from his truck. The woman left at
4:39 a.m. It was stipulated to by
the parties at the hearing that had the woman testified, she would have said she
did not see Mr. Worcester consume alcohol during the time she was present that
Worcester and Gunn remained on the wall until 4:59 a.m. when they began
securing the job site. AT 5:19 a.m.
they left for their respective reporting sites.
During the second night of surveillance Hopper did not see either
Worcester or Gunn enter the manhole.
After Worcester left the job site on October 1 at 5:19 a.m., Mr. Hopper
followed him to his reporting site and saw him leave that site in his own car at
5:26 a.m. Mr. Hopper then returned
to the job site where he had seen Worcester and Gunn drinking beverages.
He picked up three empty Budweiser beer bottles which, according to him,
were cool and damp. Two other bottles that lay nearby were dry and dirty, and for
that reason he did not pick them up. He
turned the three bottles over to Ms. Herrmann along with his surveillance
During the period of time that Mr. Hopper watched Mr. Worcester's
activities, Ms. Herrmann watched Mr. Gunn as he entered and exited his reporting
site. A preliminary report on both
her and Hopper's observations was made by Ms. Herrmann to Mr. Jefferies and
other managers on October 1, 1991.
Based on the information furnished by Ms. Herrmann, and other information
already obtained, Mr. Frederick decided to suspend both employees without pay
pending the final results of the internal investigation. On October 1, 1991, Frederick and Livingston went to Mr.
Worcester's reporting site at 7:35 p.m. to inform him of his suspension.
He arrived at 9:49 p.m. and was informed that because he had willfully
violated the US West Code of Business Ethics and Conduct he was suspended
indefinitely until the internal investigation was completed.
When he was suspended, Mr. Worcester asked if he could have Union
representation. He was told he
could and was offered telephone numbers. He
declined the offer.
On October 8, 1991, an extensive interview with Mr. Worcester was
conducted by Ms. Herrmann. Mark
Jefferies and Mike Corkill, the area representative for the Union, were present
for the interview. Mr. Worcester
explained the nature of the splicing work the two were doing, including how long
splicers stay inside the manhole. He
pointed out their break time and lunch break activities.
During the interview Mr. Worcester said he usually started work at 8:00
p.m., even if he was not at his reporting site at that time, because he did work
out of his own vehicle prior to arriving to pick up the truck at the yard.
He stated he did not keep records of the work he did prior to reporting
to the yard to get the truck. He
said he usually got home from work in the morning at about 6:15 a.m.
He also stated that he believed they were on flexible time, meaning they
could change hours within an established shift.
He said it was a habit to write standard hours of 8:00 p.m. to 6:00 a.m.
on the time sheet.
When he was shown his daily time sheets for the shifts in question,
Worcester acknowledged his handwriting on them and his signature.
The sheets indicated he worked from 8:00 p.m. to 6:00 a.m.
Mr. Worcester said he took certain company tools home with him in his car
when he expected to do work on his way to work the next day. When questioned about specific dates he had done work before
reporting to his work site, he could not recall. He could not recall arriving at his reporting site at 9:45
p.m. on September 30, 1991. He
could not recall exactly what he did at the job site that night, nor how long he
spent at the donut shop. He did not
recall whether he went into the manhole the night of September 30-October 1.
When Ms. Herrmann told him he had been seen drinking from a beverage
bottle and that subsequent investigation had resulted in beer bottles being
found at the site, he said he does not drink beer.
He said he takes bottles of Coke to work with him.
He said Mr. Gunn did not drink beer that evening either, but that Gunn
drinks Budweiser. He said that at
any time, beer bottles can be found in the area.
When told that he left his reporting site at 5:26 a.m. on October 1,
1991, Mr. Worcester said it was possible.
He said he did not know that he and Mr. Gunn had spent over an hour in
the donut shop on September 29 and that he was at a loss to explain his comment
about not being able to watch more than 45 minutes of a television movie that
evening, he said he could not remember. As
to working on the 29th, he remembered; however, he could not remember exactly
what he did or where he went when he left the job site at one point during the
shift. He could not remember
whether a female visitor stopped at the job site on the 29th. He had no recollection of departing his reporting site at
Mr. Worcester explained during the interview that the work was affected
by the fact that Mr. Gunn's injured shoulder prevented Mr. Gunn from doing some
of the necessary tasks. He said
that the period of time they were not working because of Mr. Gunn's shoulder
injury was the last two weeks of their employment.
Worcester provided a written statement to Ms. Herrmann in which he stated
he felt he had made a serious error in his decisions.
When asked to explain that statement, he said it referred to the time
reports, according to Ms. Herrmann's notes.
The Union representative present at the interview said Worcester
indicated the statement referred to Worcester's failure to pursue Union
representation at the time he was suspended.
Toward the end of the interview Worcester said the last couple of weeks
of time reporting were inaccurate. He
also apologized in his written statement for not accurately reporting the time
he worked. He adamantly denied
drinking on the job.
When Ms. Herrmann's investigation report was issued on October 16, 1991,
Mr. Frederick, who was responsible for Mr. Worcester's firing, decided that he
was guilty of the alleged violations of false reporting and drinking on the job.
He consulted with Mr. Jefferies and legal and labor relations officials,
who reviewed the matter and concurred.
A termination interview was held on October 17, 1991. It was attended by Mr. Jefferies, Mr. Corkill, Mr.
Frederick's delegate, Mr. Livingston, an unnamed CWA representative, Mr.
Worcester, and Mr. Gunn. Mr.
Jefferies read a prepared statement that set forth the conclusions of the
investigation: (1) Both willfully
falsified time sheets on September 24, 29, and 30, 1991 in reporting time
worked, and (12) both were observed consuming alcoholic beverages on the job
site while engaged in company business on September 30, 1991.
The statement noted that either one of the violations, in and of itself,
was grounds for dismissal. It also
noted that both employees were covered by the US West Code of Business Ethics
and Conduct, and that both were dismissed at that time.
Both employees were upset at their dismissal.
Gunn admitted to falsifying time sheets and offered twice to make
restitution. Worcester said he had
falsified the time sheets also, but he did not think that was reason for
termination. Both denied drinking
alcohol on the job and insisted the charge be removed.
On November 15, 1991, by letter from Mr. Corkill to Mr. Frederick,
Worcester and Gunn requested that US West take their fingerprints for comparison
with any found on the three beer bottles that Mr. Hopper had picked up on the
morning of October 1. Their prints
were taken by a forensics specialist firm and the beer bottles were examined for
latent prints on November 25, 1991. The
results of the comparison were inconclusive.
The prints on the bottles could neither be identified nor eliminated as
having been made by Worcester or Gunn.
Mr. Corkill, who in addition to being a Union representative, is also an
employee of US West and has considerable experience as a splicer.
He testified at the hearing and said Worcester and Gunn could have
legitimately been outside the manhole and away from the job site for a variety
of technical reasons. Each splicer has his own style, he believed, and a lot of the
work Worcester and Gunn were responsible for could have been done above ground
around their trucks. He believed it
was US West policy that employees are empowered to do their work as they see
fit, as long as they get the job done and it does not conflict with other
policies. The job Worcester and
Gunn were doing could be done many different ways. He further believed Ms.
Herrmann had arranged Mr. Worcester's interview statements in her investigation
report to suit her own purpose. Mr.
Corkill felt that Mr. Frederick decided to suspend both employees immediately
because of the alcohol-use allegation and the fact they drove company trucks.
Mr. Gunn testified that he agreed with Corkill's statements regarding the
necessity to be away from the job site on occasion and to be working around the
trucks. He said he served as lead
man on the job, communicated with Worcester during off-duty hours, and asked him
to do certain jobs before reporting to the yard.
He said Worcester did not drink alcohol on the job, nor did he see
anyone, including the female visitor, drink alcohol around the job-site area.
On September 1, 1991, Mr. Jefferies made a quarterly progress review
report on Mr. Worcester in which he indicated Worcester met all standards with
respect to job safety, quality, productivity, expenses, and attendance.
At the time of the report, which Worcester was shown on an occasion away
from the job site, Jefferies told him everything was fine and good.
Although Mr. Worcester was accustomed to having supervisors visit his
work site during his previous experience, he never saw or talked to a supervisor
at the job site in question here. No
one questioned him on the job. He
acknowledged that the organization presently has fewer supervisors than in the
past. He contended that although he
did company business using his own vehicle, he made no claim for mileage,
despite the fact the collective bargaining agreement provided for reimbursement
in such cases. He also contended
that although he performed work prior to his actual starting time, he did not
claim early call-out pay as provided in the agreement.
Ms. Herrmann and Mr. Hopper testified that identifiable fingerprints are
usually not obtainable from objects because of smudging and erasures.
In only about 20 percent of the cases are prints positively identified.
The US West Code of Business Ethics and Conduct sets forth the standards
by which employee conduct is judged. It
is written in general terms, for the most part, but it does specifically
prohibit dishonest or illegal activities by employees on company premises and
indicates disciplinary action, including dismissal, may result where violations
are found. Use of alcoholic
beverages while engaged in company business is specifically disallowed.
The Code of Conduct provides that discipline be imposed in accordance
with the seriousness of the violation. Such
discipline can range from a reprimand and probation to suspension, demotion, and
dismissal. Periodically, each
employee is required to have the code reviewed with him by a supervisor and a
copy of it is given to the employee. Mr.
Worcester acknowledged his receipt of a copy of and understanding of the Code on
April 10, 1990.
None of the management employees of US West involved in this
matter--Livingston, Jefferies, and Frederick--confronted Mr. Worcester and Mr.
Gunn immediately after they suspected they had falsified their time sheets
because the management employees wanted to make sure an unbiased, objective, and
expert investigation was done to give Worcester and Gunn the benefit of any
doubt that existed.
Employees who are going to be late for work have the opportunity to call
their supervisor and request permission. Neither
Mr. Worcester nor Mr Gunn called to obtain such permission.
Mr. Jefferies testified that at Mr. Worcester's interview, Worcester said
the only beer Gunn ever drank was Budweiser.
Jefferies said no one else was seen by Mr. Hopper where the three cool,
damp Budweiser bottles were found and no Coke bottles were found at or near the
job site. He stated no Coke bottles
were found on Worcester's or Gunn's truck.
Mr. Jefferies has counseled employees for taking long coffee breaks and
discussed productivity problems with others, but he has never terminated or
suspended an employee for taking a long coffee break or for lack of
productivity. Worcester and Gunn
were not terminated for productivity reasons, according to Jefferies.
US West has a progressive discipline policy that is applied when an
employee has a poor performance problem; however, non-performance is treated
differently than poor performance. Some
offenses, such as falsification of records, drinking alcohol on the job, and
carrying weapons, are not handled under the progressive discipline policy.
Other employees have been terminated for falsifying time sheets and
OF THE PARTIES
The Employer contends that it is undisputed that Mr. Worcester was
informed he was being terminated because he had violated two known and
established practices of US West: Drinking
on the job and falsification of records. Each
offense, independent of the other, is adequate grounds for dismissal.
The Employer's policies and standards were communicated to Mr. Worcester
and he recently had been trained in their application.
The policies are designed to protect the reasonable and legitimate
business of US West. It was
uncontested that the standards were well-known and understood to be necessary to
the efficient and safe operation of work. In
the past, the Employer has used the two standards as grounds for dismissal of
any employee who violated either of the two, according to the Employer.
Because of the grievousness of the violations by Mr. Worcester, the
Employer did not follow its progressive discipline policy.
Progressive discipline need not be applied in cases of proved dishonesty,
the Employer argues. The weight of
arbitral authority holds that discharge is the appropriate penalty for
first-offense dishonesty regardless of the amount of loss incurred by the
employer, the length of service of the employee, or his exemplary record.
Progressive discipline is not applicable in such cases because an
employee need not be forewarned that he could be discharged for dishonest acts.
Progressive discipline is intended to make clear to the employee what
performance is required and to offer proper training to him for improvement.
Such offer is not legitimate where the employee is dishonest or
untrustworthy. It is
well-recognized that in dealing with serious forms of misconduct, employers may
forego progressive discipline and discharge the employee summarily.
Both offenses with which Mr. Worcester was charged are sufficiently
serious to warrant immediate dismissal.
The Employer maintains that the unrebutted circumstantial evidence
presented against Mr. Worcester indicated that he did consume alcoholic
beverages on the job. He was
observed with long-neck brown bottles in his hand and was seen drinking from
them in a specific area after he got them from his assigned truck.
The observer did not see him return the bottles to the truck.
After Mr. Worcester left the job site, the observer retrieved three
Budweiser bottles that were still cool, moist, clean, and smelled of beer.
The observer saw no other individuals in the area at the time of the
Arbitral law recognizes that circumstantial evidence is sufficient to
form conclusions as to what happened at a specific time in a specific place, the
Employer contends. Circumstantial
evidence is evidence that raises an inference with respect to some other fact.
It may be defined as a deduction of fact that may be logically drawn from
another fact or set of facts established. The
strength of the inference depends upon the strength of the circumstantial
evidence. Circumstantial evidence
may be more probative than direct evidence since direct evidence may be
falsified through the perjury of a witness.
The Employer argues that it is undenied that there was an immediate,
thorough, and unbiased investigation in this case, there was no contrary
evidence presented by the Union. Termination
has been imposed upon employees who have committed similar acts.
There were no mitigating circumstances offered.
Mr. Frederick testified he considered Mr. Worcester's work record,
including his training, evaluations, term of service, and age.
Despite such considerations, he decided to terminate him.
Such good faith decisions should not be disrupted without overwhelming
reason. No such reason was
presented at the hearing.
The Union argues that Mr. Worcester was not observed on September 24,
1991, by Mr. Livingston because Livingston did not approach the vehicle he saw
arriving at the job site. Mr.
Livingston was unable to identify whose vehicle he saw.
The Employer's allegation of falsifying time records on September 24 by
Mr. Worcester has no merit.
The investigator hired by the employer was briefed by Ms. Herrmann, who
misinformed him of the nature of the work Worcester would be doing.
Closer to 75 percent of the work, rather than 90 percent, would be
performed in the manhole. Moreover, there were many duties that needed to be, or could
be, performed away from the job site, according to the Union.
It was necessary for Worcester to go to the central office to set up tone
generators, the Union maintains, and to perform related duties.
He had to perform certain tasks at the cross connect boxes and at various
other terminal locations. Because a
complete stock of necessary materials and equipment was not maintained at the
yards to which Worcester and Gunn reported, it was necessary to pick up supplies
and equipment at a remote location 12 miles away, requiring a one-hour trip.
Many of the required tasks at the job site could be done above ground,
the job entailed more than sitting in the utility hole splicing cable, the Union
contends. Because Mr. Hopper had
been told practically all the work would be done underground, he was biased
toward activity outside the utility hole. If
he had followed Mr. Worcester and Mr. Gunn, he would have observed them doing
more of the non-job-site tasks that were required.
On September 30 Mr. Worcester was not observed until he drove to his
reporting site at 9:45 p.m. There
is no evidence to show he did not perform work after he left home and before he
arrived at the reporting site, the Union maintains.
When Mr. Hopper saw Worcester on the morning of October 1, sitting on the
wall drinking beverages, Hopper did not know what the beverage was or where it
came from. Both Mr. Gunn and the
female visitor said no alcoholic beverage was consumed. Mr. Gunn also said he had never seen Mr. Worcester drink
alcohol on the job.
The Union questions the amount of time Mr. Hopper had to observe between
5:26 a.m. and 5:30 a.m. on October 1. Further,
the Union argues that the bottles retrieved by Mr. Hopper were long neck;
however, the bottles shown by Ms. Herrmann during the processing of the
grievance were short neck. When Ms.
Herrmann said she had bottles with fingerprints, Mr. Worcester said,
"Good." He emphatically
denied drinking alcohol on the job and he requested during the grievance
procedure that the prints on the bottle be compared with his.
At 4:00 a.m. on October 1, the lighting was poor at the job site, the
Union argues. Mr. Hopper testified
that the bottles could just as easily have been root beer. He never positively identified the beverage that was consumed
at the job site. He had problems
seeing clearly from his post 355 feet away.
It was Hopper's unfounded charge of alcohol consumption that caused the
Employer to suspend Worcester and Gunn immediately, according to the Union.
Mr. Worcester had a perfectly clean employment record for over 20 years.
His latest quarterly progress report showed he was meeting standards just
14 days prior to his suspension. The
progress of the job he was doing was satisfactory.
The Union contends, therefore, Mr. Worcester should have been afforded
progressive discipline. The
Employer's evidence was incomplete and speculative.
Mr. Worcester's explanation should have been given more weight. Termination in this case is excessively harsh when all facts
are considered, the Union argues.
It should be noted this case focuses on whether Mr. Worcester was
terminated for just cause. Although
much of the evidence is about both his and Mr. Gunn's activities, Mr. Gunn's
grievance is to be heard by another arbitrator.
The grievant was charged with falsifying his time records and consuming
alcohol on the job, either of which is a serious offense.
It was the Employer's burden to supply clear and convincing evidence that
the grievant committed one or both of the offenses for which he was discharged.
As to the charge of falsifying time records, the evidence on the record
is overwhelming that the grievant committed the offense. Indeed, he admitted it during his interview with Ms. Herrmann
and when he was later terminated. Even
without his outright admission, there is ample evidence from which a conclusion
can be drawn that he started late and left early. There is no evidence that he actually performed job-related
duties before he came to work on the days in question or that he worked after he
left his reporting site on those mornings.
His statement about missing part of a television program while in the
donut shop, which was overhead by Mr. Hopper, belies any suggestion that he was
working prior to arriving at the reporting site shortly before 10:00 p.m.
Although the Union's witness pointed out convincingly the many tasks that
could have been performed away from the job site, there is no evidence on the
record to show that he in fact was doing work before and after he was observed
at his reporting site. It is not
the evidence of what he was doing or not doing during the hours from
approximately 10:00 p.m. to 5:30 a.m. that proves the falsification of records
charge, but rather the clear evidence he came to work approximately two hours
late and left one-half hour early and submitted time sheets for 10 hours' pay.
His admission that he falsified his time sheet is sufficient in itself to
prove the charge. Moreover, the totality of Mr. Worcester's observed activities
and conduct during the nights in question, including his late arrivals to work,
hour-long coffee breaks, sitting on a wall drinking beverages, visiting with the
female, and leaving before his shift ended do not lead one to beleive he had
done company work prior to, and after, reporting to the yard. That
conclusion is reinforced by the fact that he claimed no mileage reimbursement
for using his own vehicle, did not claim early call-out pay, and offered no
records to show he had worked prior to actually showing up at his reporting
site. The grievant's conduct
compels the conclusion he took advantage of the trust placed in him by his
superiors and was dishonest.
The proof of the charge against Worcester of consuming alcohol while on
duty is circumstantial. He
emphatically denied it and Mr. Gunn and the female visitor said the grievant did
not drink alcoholic beverages on the morning of October 1 while at work.
Mr. Gunn's testimony was self-serving, as is obvious, and cannot be
credited as compared to Mr. Hopper's testimony.
The stipulated statement as to what the female visitor would have
testified must be given little weight. She
had a bias toward her friends it can be assumed, and she was not called as a
witness and subjected to cross examination.
Her statement must be balanced against the testimony of Mr. Hopper
regarding the events of that morning.
Mr. Hopper was a trained and experienced observer who had no personal
interest in the outcome of his investigation.
He had no reason to fabricate a story.
His observation of the grievant and Mr. Gunn drinking beverages from
bottles, coupled with the fact that he later retrieved three cool, damp beer
bottles that smelled of beer at an early morning hour in a location where only
the grievant and Mr. Gunn had been, convinces me beer was drunk by either the
grievant or Mr. Gunn or both. There
was no contention that the female visitor drank beer while with them; therefore,
I have discounted that possibility.
The Union argues that Mr. Hopper testified that the bottles could have
been root beer bottles. That is
true--he did state that while he was observing the grievant and Mr. Gunn
drinking beverages, he could not tell whether it was beer.
He went on to testify, however, that when he returned to the job site and
went to the location where he had observed them, he saw the three cool, damp
beer bottles that smelled of beer, not root beer bottles.
The circumstantial evidence offered by the Employer logically points to
the conclusion that beer was consumed on the job site on October 1.
Although Both Gunn and Worcester testifeid that no beer was drunk by
them, if, with nothing more, I beleived their bare denial over Mr. Hopper's
testimony, I would have to ignore altogether Hopper's observations and his
finding of beer bottles at the job site where they were seen by him to be
drinking. Mr. Hopper is a trained
gatherer of evidence whose observations must, without proof to the contrary, be
The grievant asked to be fingerprinted after he had been terminated.
That act, however, can be viewed as one of desperation, hoping that no
proof of guilt could be found at that late date.
That the results of the process were inconclusive is not supportive of
his position. The two former FBI agents, Herrmann and Hopper, testified
that such results are usual.
Mr. Worcester's dishonesty in reprting his time, coupled with the
convincing circumstantial evidence on the beer-drinking issue, compel the
conclusion he drank beer on the job.
I conclude that the Employer carried the burden and proved clearly and
convincingly that the grievant falsified his time records on September 30 and
October 1. I also conclude that the
Employer proved beer was drunk by the grievant on the job on the the morning of
Mr. Hopper may have been misinformed by Ms. Herrmann as to what he could
expect to see at the job site, as the Union argues.
That, however, did not diminish his ability to see and report.
Although he may have expected to see the grievant enter the utility hole
and stay inside it for long periods of time, what he actually saw was something
quite different. That he failed to follow the grievant during the course of
the night as he left the job site is insignificant. What Mr. Hopper did observe is the critical element of this
case. He saw the grievant report to
work almost two hours late and leave 30 minutes early. He also observed the grievant taking one-hour breaks.
There is no evidence to show that the grievant worked prior to showing up
at the reporting site or that he worked after he left it.
At no time during the grievance procedure did he contend that he was busy
performing job-related duties during those times.
To the contrary, he admitted to falsifying his time sheets.
Having found that the Employer carried the burden and proved that the
grievant committed the violations with which he was charged, I turn now to the
question of whether the grievant was afforded due process.
It is uncontested that the Employer had policies that prohibited conduct
such as that engaged in by the grievant. Those
policies were known to the grievant and they were reasonably related to the
protection of the Employer's legitimate business interest.
Furthermore, there was evidence offered to show that the Employer had
terminated employees for like violations.
Due process requires that an accused employee be informed promptly of the
charges against him in reasonable detail and be given an opportunity to explain.
The Employer in the instant case did exactly that.
The grievant was informed of the nature of the charges on October 1 when
he was suspended. The grievant had
opportunity to tell his side of the story at the interview with Ms. Herrmann on
October 8. It was at that interview
that he admitted his time records were not accurate.
The Employer conducted an extensive investigation after Mr. Livingston
brought to the attention of his supervisors what he thought to be violations of
company policy. Two trained and
experienced investigators, who were not proved to have any reason to be less
than totally objective, personally observed the damaging conduct for which the
grievant was subsequently terminated. The
results of the investigations were reviewed by management officials, including
Mr. Frederick and legal and labor relations specialists.
The decision to terminate the grievant was not a matter that was taken
lightly by Mr. Frederick; he was aware of the grievant's work record and tenure
with the organization.
The Union believes the penalty imposed by the Employer on the grievant
was excessively harsh and that he should have been given a chance at
rehabilitation under the Employer's progressive discipline policy. In my view, the weight of authority is against corrective
discipline in cases such as this. Corrective
discipline is intended to be applied in those cases of less serious infractions
of rules. See International
Harvester Co., 12 LA 1190 (McCoy, 1949).
Where the offense is extremely serious, such as where time cards or
production records, on which pay is based, are falsified, discharge is usual.
This type of conduct is equated with stealing the employer's money and is
dealt with accordingly. See United
States Steel Corp., 53 LA 1008 (McDermott, 1969).
The use of drugs on the job is one of the offenses for which summary
discharge is sustained. See Resolving
Drug Issues, Elkouri and Elkouri, BNA 1993 at p. 279.
The final consideration in this case is whether the discipline imposed by
the Employer was reasonably related to the seriousness of the violation that was
proved and the service record of the grievant.
The penalty in a discipline case should fit the circumstances.
In my opinion it does in this case.
Despite the fact that the grievant had worked over 20 years in the
organization, he committed an extremely serious offense involving dishonesty.
Such offenses warrant summary discharge regardless of the length of
service of the employee because the employer-employee relationship has been
irreparably harmed. The grievant
has proved himself to be untrustworthy. The
grievant's work record and long service notwithstanding, the penalty was proper.
There is no evidence on the record of other mitigating circumstances that
would serve to compel a reduction in the penalty, such as unusual job tensions,
personality problems, mental impairment, harassment, malice, or provocation.
Accordingly, the grievance must be denied.
The grievance is denied.
Dated this _____ day of November 1993.
Jack H. Calhoun
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028