1994 NAC 102 Big Bear Markets and UFCW Local 135

Title: Big Bear Markets and UFCW Local 135
Date: September 9, 1994
Arbitrator: Jack H. Calhoun
Citation: 1994 NAC 102

BEFORE THE ARBITRATOR

IN THE MATTER OF THE )

GRIEVANCE ARBITRATION )

Between )

)

BIG BEAR MARKETS, )

) OPINION

Employer, ) AND

) AWARD

and )

)

UNITED FOOD AND COMMERCIAL ) FMCS No. 94-03098

WORKERS, LOCAL 135, )

)

Union. )

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

Jack H. Calhoun

Arbitrator

Hearing Held

August 12, 1994

San Diego, California

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

REPRESENTATION

FOR THE EMPLOYER: FOR THE UNION:

Karen L. Bilotti Fern M. Steiner

Luna, Brownwood & Rice Georgiou, Tosdal, Levine & Smith

3430 Camino del Rio North 600 "B" Street, Suite 2300

Suite 300 San Diego, CA 92101-4508

P.O. Box 85844

San Diego, CA 92186-5844

BACKGROUND

The employer, Big Bear Markets, and the union, United Food and Commercial Workers, Local 135, are parties to a collective bargaining agreement that sets forth the terms and conditions of employment for bargaining unit employees during the period of time the grievance was filed. On September 18, 1993, the Grievant, Jose R. Rodriguez, was discharged. Failing to resolve the matter after a grievance was filed, it was submitted to arbitration for a final determination. A hearing was held on August 12, 1994, at which time counsel agreed the matter was properly before the arbitrator.

ISSUES

There were differences between the issues as framed by each party. After reviewing the record, I have determined the issues to be as follows: (1) whether the Grievant was terminated while he was still on probation, as defined in the agreement; and (2) if he was not terminated during the probationary period, whether he was discharged for just cause, and if not, what is the remedy.

RELEVANT CONTRACT PROVISIONS

The following provisions of the parties' collective bargaining agreement are relevant to the issues in dispute.

ARTICLE 3 - DISCHARGE

A. DISCHARGE FOR CAUSE

1. Employees may be discharged for good cause.

2. Employees who are discharged for failure to perform work as required, or excessive absenteeism, shall first have had a prior warning, in writing, of related or similar offense, with a copy sent to the Union.

. . .

F. PROBATIONARY PERIOD

1. The first forty-five (45) calendar days of employment shall be considered a trial period, during which time an employee may be terminated for any reason and he shall have no recourse to the grievance procedure...

2. Insofar as part-time employees are concerned, the probationary period shall be 261 hours of work but in no event to exceed sixty (60) calendar days.

. . .

The Grievant was hired as a part-time clerk's helper on July 19, 1993. He worked an average of 31 hours per week at a wage of $5.00 per hour. On July 28, 1993, he was given a verbal warning for failing to clean certain shelves as assigned. He was informed at that time that further failure of work performance would result in a written warning. During the week of September 12, a note was entered on his time records that he did not show up for work on a day for which he had been scheduled to work. During the last week of his employment, ending September 19, the Grievant's records show he worked Monday and Tuesday, did not work Wednesday, Thursday, or Friday, worked a full shift on Saturday, which was September 18, 1993, and was fired at the end of the day.

No warning of any kind was given to the Grievant regarding missing work. When he came to work on the 18th, no one advised him he was being terminated. At the completion of his shift, he was told by his supervisor he was being let go. No one called or wrote him prior to the 18th informing him he was terminated. He had a telephone in his residence.

During the last week of his employment, the three days that he did not work, Wednesday, Thursday, and Friday, were days he had been told to take off. At the time of his termination, the Grievant was told he was still in his probationary period. The written termination notice states he was released from probation due to unreliability in reporting to work.

After the Grievant was terminated, and as part of his inquiry into the propriety of it, a union representative received a letter from the employer's human resources manager. The letter stated that the Grievant's probationary period was figured as being from July 19 to September 19. It went on to state that the probationary period had always been figured in that manner, not by the actual count of 60 days.

The store where the Grievant was employed closed on January 8, 1994; therefore, the Grievant could not have been employed by the employer beyond that date.

The employer's notice of termination shows the Grievant was released from probation due to unreliability in reporting to work. He was terminated on the 62nd day of his employment, which was beyond the 60-day probationary period in the collective bargaining agreement. However, he could not be terminated prior to that time because he did not show up to work for three days prior to his discharge, and he was unavailable by telephone.

The management official who terminated the Grievant did so because he erroneously believed the probationary period had not ended, but he also felt there was cause to discharge him regardless of whether he was within the probationary period because of the Grievant's unreliability during the course of his employment, including not showing up for work and not performing duties while on the job.

The Grievant's time cards show he did not show up for work on a regularly scheduled shift the week before his discharge. They show he did not work the last three days immediately prior to his discharge on the 18th. A review of all his time cards shows he worked four or five days each week and none of his days off were consecutive, yet during the last week he was off three consecutive days. It does not make sense that he would not be scheduled to work for three consecutive days, based on the number of scheduled days off he had had in the past. The fact that his time card for the last week did not carry the no-show notation, as had the card the week before for the day he missed, can reasonably be explained. It was a moot issue on the last card because he had been discharged.

The employer made a good faith effort to give the Grievant a chance, but after a warning, he failed to show up for work once during the week of the 12th and again during the week of the 19th. Management had cause to terminate him because of the work he missed. Although the employer actually terminated the Grievant on the 62nd day of his employment, it did so in good faith, thinking the 19th was the 60th day, not counting the extra day in both July and August.

The Grievant's testimony regarding his efforts to seek employment after he had been discharged by the employer should not be credited. At the worst, he could only have worked for the employer 16 weeks until the store closed. The most back pay he is entitled to from the employer is $2,472.00 minus his earnings beginning October 10, 1993, until January 8, 1994.

The evidence shows the Grievant was terminated on the 62nd day of his employment. He came to work on the 62nd day and worked his whole shift. He was not told he was fired when he arrived, nor was he told he was unreliable. At the end of the shift he was told he was discharged because he was in the probationary period.

The employer believed the Grievant was being terminated during the 60-day probationary period, but it failed to do so. Cause for the discharge is irrelevant.

There is no evidence on the record to show the Grievant was remiss, no one testified to prove it. No one said when he was schedule to work but did not show up.

The collective bargaining agreement provides that when employees are discharged for failure to perform work, or for excessive absenteeism, they shall have had a prior warning, in writing, of a related or similar offense, with a copy sent to the union. There was no written warning given the Grievant, a verbal warning was given.

The employer had the burden to establish: (1) the Grievant was terminated during the probation period, or (2) there was just cause for his termination. There is no evidence that the facts occurred as the employer alleged. Speculation as to what occurred is not sufficient to establish just cause.

The employer's good faith is meaningless. There was no evidence regarding the Grievant's attendance.

The Grievant was terminated beyond the 60-day probationary period, as the employer concedes. The employer goes on to argue, however, that he could not be terminated properly within the period because he did not show up for work for three days prior to his day of termination, and he was unavailable by telephone.

Two facts belie the employer's argument. First, the Grievant testified he did have a telephone in his residence. Second, when he came to work on the 62nd day, he was allowed to work the entire shift without being told he was to be discharged. Even so, it is clear the employer believed the Grievant was being discharged within the contract probationary period. However, the employer's good faith belief is not sufficient to overcome the clear and unambiguous provision of the contract, which states there is a 60-day probationary period within which the employer may terminate for any reason. Beyond the 60-day period, the employer must comply with requirements of good cause as provided in Article 3 of the agreement.

The contract provides that the probationary period shall be considered a trial period, "during which time an employee may be terminated for any reasons and he shall have no recourse to the grievance procedure...." The inference is clear that after the probationary period has been completed, the employer is no longer permitted to terminate employees for any reason, but rather must be able to prove it had just cause.

The evidence does not support the employer's contention that it had cause to terminate the Grievant. The employer terminated him by stating he was being released from probation due to unreliability in reporting to work. The notice of termination did not state that a part of the reason was because he had not been performing his duties while on the job. The verbal warning given the Grievant on August 28, 1993, cannot be considered sufficient to satisfy the contract requirement for a prior written warning before discharge for failure to perform required work can be imposed.

The Grievant was absent from work on a regularly scheduled work day during the week prior to the week of his termination. The time card indicated "no show" for that day. The Grievant did not deny that he failed to report as scheduled on that day. Yet, he received no warning from the employer about the incident.

The employer contends certain conclusions should logically be drawn from the fact that the Grievant's days off were never consecutive. He worked four or five days a week, but the days off were one at a time. He missed three consecutive days immediately prior to his separation, and in the employer's mind, it makes no sense to conclude he legitimately had those days off. He was a no-show for one or two of those days, the employer argued.

The employer's contention notwithstanding, the only evidence on the record about the days off are the time cards for the last two weeks of the Grievant's employment and the testimony of the Grievant. The time card shows a blank space for the three days the Grievant was off just before the day he was discharged. The time card for the previous week contains a written note saying "no show." When asked on cross-examination, the Grievant stated he had been told to take the three days off. No employer witnesses were called to rebut his testimony or to explain why there was no "no show" comment entered for the three days he was off the last week of employment. Even if, as the employer urges, there was no notation because it was by then a moot point, he had been terminated, there still was no written warning given regarding his absenteeism.

In summary, I find that the employer failed to discharge the Grievant within the 60-day contract probationary period. By failing to do so, the employer had the burden to prove the discharge was for good cause. The employer did not prove it had good cause for the discharge. The discharge was for unreliability, but no written warning was made prior to the termination. The employer did not comply with the written warning provision of the contract prior to discharging the Grievant. Accordingly, I will enter an award sustaining the grievance and ordering back pay.

The grievance is sustained. The employer shall pay the Grievant full back pay for lost earnings, minus his earnings between the date of his discharge and January 8, 1994. Back pay shall be for the period from the date of discharge until January 8, 1994.

I will retain jurisdiction over any dispute arising out of implementation of the remedy ordered.