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Title: US West Communications, Inc. and Communications Workers of America
Date: November, 1993
Arbitrator: Jack Calhoun
Citation: 1993 NAC 102

BEFORE THE ARBITRATOR

 

IN THE MATTER OF THE                                        )

GRIEVANCE ARBITRATION                                  )

            Between                                                          )

US WEST COMMUNICATIONS, INC.,                   )           OPINION

                                                Employer,                    )             AND

                                                                                    )           AWARD                                          and                                             )

COMMUNICATIONS WORKERS OF                     )

AMERICA, AFL-CIO, CLC,                                       )

                                                Union.                           )

--------------------------------

FMCS Case No. 93-098585

Jack H. Calhoun

Arbitrator

--------------------------------

 

 

Hearing Held

September 29 and 30, 1993

Phoenix, Arizona

 

 

REPRESENTATION

 

 

FOR THE EMPLOYER:                             FOR THE UNION:

 

John C. Toelle                                                     Larry R. Larson

Senior Attorney                                          CWA Representative

US West, Inc.                                       3001 W. Indian School Road

7800 East Orchard Road                            Room 12

Suite 390                                         Phoenix, AZ  85017

Englewood, CO  80111-2526


BACKGROUND

 

            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.

ISSUE

            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.

RELEVANT CONTRACT PROVISION

            The following provision of the parties' then-effective collective bargaining agreement is relevant to the issue in dispute:

Section 29.            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 following amounts:

 

            (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 unemployment benefits.

 

            (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 benefits."

 

            (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 suspended.

 

            (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.

 

STATEMENT OF FACTS

            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 West.

            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 metropolitan area.

            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 they worked.

            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 24.

            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. Worcester.

            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 morning.

            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 report.

            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 5:22 a.m.

            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 vouchers.

POSITION OF THE PARTIES

The Employer

            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 drinking.

            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

            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.

OPINION

            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 credited.

            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 October 1.

            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.

AWARD

            The grievance is denied.

            Dated this _____ day of November 1993.

 

                                                                                                                                                                                                       Jack H. Calhoun

 

 

04-93AZ

 

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