Inc. and the Local
555, United Food & Commercial
Workers, AFL-CIO & CLC
This Arbitration arises pursuant to Agreement
between Local 555, United Food & Commercial Workers, AFL-CIO & CLC
("Union"), and Safeway, Inc. (Meat Warehouse) ("Employer"),
under which LUELLA E. NELSON was selected to serve as Arbitrator and under which
her Award shall be final and binding upon the parties.
Hearing was held on February 15, 1994, in Clackamas, Oregon. The parties had the opportunity to examine and cross-examine
witnesses, introduce relevant exhibits, and argue the issues in dispute.
Both parties filed post-hearing briefs on or about March 29, 1994.
On behalf of the Union:
Mr. Ed Clay, Grievance Director, UFCW Local 555, P. O. Box 23555, Tigard, OR 97281-3555.
On behalf of the Employer:
Mr. Alvin Carder, Director of Labor Relations, Safeway, Inc., P. O. Box
523, Clackamas, OR 97015.
Was Mr. Thommen discharged in accordance with Article II, Section 2.4 of
the contract? If not, what is the
RELEVANT SECTIONS OF AGREEMENT
ARTICLE II - MEMBERSHIP AND UNION SECURITY...
No member of U.F.C.W. Local No. 555 shall be discharged without good and
ARTICLE XIX - GRIEVANCE AND ARBITRATION
... The Employer agrees to provide the Union upon request with the
reasons for discharge within fifteen (15) days of the request....
Jurisdiction and Authority....
...[I]n cases where it is concluded that an employee has been improperly
discharged, the Arbitrator may reinstate the improperly discharged employee.
The Arbitrator shall not render an award which requires the Employer to
pay an improperly discharged or suspended employee for time that employee has
not actually worked in excess of the wage and benefits the employee would have
earned had he worked his normal schedule during the ninety (90) calendar days
immediately following the date of the discharge; nor shall the Arbitrator be
entitled to require the Employer to pay benefits on behalf of an employee for a
time period the employee has not actually worked in excess of the ninety (90)
days allowable herein....
(b)[sic] The award of
the Arbitrator shall be written and shall be final and binding on both parties. The expense and fees of the arbitrator shall be borne by the
losing party, as determined by the Arbitrator, who shall specifically rule on
ARTICLE XXI - STRIKES AND LOCKOUTS
Over the term of this Agreement there shall be no resort to strike action
(which includes sit-downs, slowdowns, stoppages of work) by the Union, its
officers, agents and/or any or all bargaining unit personnel, nor any lockout by
the Employer. Any employee
violating this provision of the Agreement shall be subject to such disciplinary
action including discharge, as the Employer finds warranted by the
The Employer suspended Grievant on October 28, 1993, and converted his
suspension to a discharge on November 9. The
Employer alleged that Grievant "disrupted the work force and instigated a
near walk out by the employees" on October 23, 1993.
The Union asserts that Grievant did not disrupt work and did not call for
Grievant has worked at the Employer's meat warehouse since 1970.
He at one time served as working foreman; he later demoted to forklift
driver, and then to order filler. At
the time of his discharge, he was working as an order filler.
Except for a verbal warning for tardiness several years before his
discharge, he had never received discipline.
Meat Warehouse Manager Fern Taylor testified that Quality Inspector
Wendell Way complained to her about Grievant in late September or early October
1993. Way claimed Grievant was
hanging around the office and getting on the floor late.
Taylor instructed him to make note of the time Grievant came to work and
get back to her.
In September 1993, Grievant filed an internal complaint alleging Way was
"watching" him, used profanity, called him names, and "stuck his
finger" in his chest. He filed
a grievance over the same matter, which the Union presented too late to be
timely. The investigative report on
the internal complaint was prepared October 25, 1993. That report recounted that Way acknowledged using intemperate
language, but claimed Grievant had called him a "weasel."
Way also complained that Grievant had filed a grievance over his
performing unit work and assigning a driver to do unit work.
The investigative report recommended no discipline against Way, and
referred any action against Grievant to the Employer.
Meanwhile, Distribution Center Manager Carlos Catala met with Grievant and Way about the incident between them. Grievant refused to talk about making up. Catala told Grievant there were two sides to every story, and offered to get to the bottom and investigate the dispute. Catala had only recently come to the warehouse, and did not know either man. Grievant testified that Catala also threatened to suspend him pending the investigation. Catala denies making this threat.
SHOP STEWARD ACTIVITIES
Grievant has been the shop steward for approximately 10 years. The Employer maintains no written rules specifying what a
steward can or cannot do, nor does the Agreement mention this subject.
Taylor testified it was not uncommon for Grievant to leave work to
discuss problems with her. She acknowledged that other employees also came to her office
about problems, singly or in groups, and with or without Grievant.
Employee James Sherman testified the Employer has always had an
"open door policy" for employees with problems.
However, his usual practice was to bring problems to his shop steward,
and let the steward resolve it. Employee
John Christensen recalled going to the office with two other employees to
discuss an earlier problem for 10-15 minutes.
Grievant testified his difficulties with Way began after Grievant moved
to a later shift. Employees then
began reporting that Way performed unit work before Grievant came to work.
Grievant discussed these reports with Taylor, but did not file a formal
grievance. Grievant testified a
planned grievance on the unit work issue was "lost in the shuffle"
over the harassment charge. No
grievance over unit work was filed in his 10 years as steward.
OCTOBER 23 WORKDAY
The Employer scheduled an overtime day on October 23 to convert its
manual inventory system to a computerized storage system. The conversion had to be completed on October 23 to permit
the Employer to service its stores the next day.
Grievant volunteered to work a half day on October 23.
He began his day shortly before 5 a.m. and left around 11:45 a.m., for a
total of 6.73 hours of work. Other
warehouse employees worked between 5.98 and 13.75 hours that day.
The Employer solicits volunteers for overtime days, and drafts from the
bottom up to cover any shortfall. Grievant,
Sherman, and Christensen testified it was common to volunteer for only part of a
day. Sherman was unaware of
employees being prevented from leaving early on volunteer days.
Grievant approached Taylor around 9 a.m., complaining heatedly that Way
was again performing unit work. Taylor
responded the work Way was doing was not unit work.
Grievant then left her office. He
later re-entered the hall near Taylor's office, followed by seven employees.
All parties agree that only Grievant and Taylor spoke.
A dispute exists regarding how the other employees came to accompany
Grievant to the office and what was said there.
Taylor testified Grievant returned 30-45 minutes after their first
conversation, and announced, "We are leaving."
Grievant added that Way was doing unit work and the employees would not
put up with it. Taylor said
employees could not walk out. Grievant
responded this was voluntary work, and employees could leave whenever they
wanted. Taylor said employees were
committed to work, and could not just leave.
Taylor then inquired what work Way was doing and when he was doing it.
Grievant responded Way did unit work whenever he (Grievant) left.
Taylor told Grievant he was mistaken about what was unit work.
Taylor then turned to the assembled employees and told them they faced
possible suspension or termination if they walked off.
She told them the proper procedure was to file a grievance with the
Union. Grievant commented the Union
would do nothing about it. Taylor
urged employees to think for themselves, and repeated the possible disciplinary
consequences of walking out. Taylor
then left the group. She testified
the other employees headed back into the work area, while Grievant walked toward
the exit. Five minutes later, she
found him working in the warehouse.
Taylor testified that employee Dawn McFee and supervisor Nita Williams
were in the office when Grievant and the others arrived.
Williams testified she exchanged glances with McFee while Taylor was
talking to the employees. McFee
testified she was on a break at the time, and the incident was over by the time
Williams recalled Grievant saying they were walking out because they were
sick and tired of Grievant doing their work.
Taylor denied Way was doing unit work, and Grievant reiterated the claim
and said they would walk out. Taylor
informed him of possible suspension or termination.
Grievant pointed out it was a voluntary overtime day.
Taylor responded they were committed to work and could not just leave.
Grievant said Way did unit work whenever Grievant was not around, and
again said they were walking out. Taylor
told employees to make up their own minds.
According to Williams, Taylor came into the office and told Williams and
McFee to stop data entry until she learned whether employees would walk out.
After Taylor left the employees, Williams heard Grievant say the others
could do what they wanted, but he was leaving and was not going to put up with
Way doing his work. The other employees returned to work, and Grievant went the
other direction. 10-15 minutes
later, Taylor told Williams and McFee to resume data entry.
Grievant testified he learned of Way's performance of unit work from
Sherman. After protesting to
Taylor, he returned to the warehouse. He
reported Taylor was not going to do anything about Way, he was sick of it, and
he was going home. He also said
employees could do what they wanted. Grievant
testified he was sick of the situation with Way, which had escalated over the
past few weeks. He further
testified he had already put his time in and had other things to do.
Grievant testified some employees followed him when he later returned to
the office. He was aware that other
employees were also upset over the unit work issue. He told Taylor he was going home if she was not going to do
anything about the situation. Taylor
told him not to do that. He pointed
out it was a volunteer day, and that he could go home. She warned him of possible discipline, and urged him to
file a grievance. Warehouseman Jack
Duncan came out of the office and suggested he go through channels.
Grievant testified he agreed to call the Union.
The assembled employees returned to work, while he went to the lunchroom
to call his Union representative.
The lunchroom lies in the same direction as the exit.
After leaving a message on the Union representative's answering machine
and unsuccessfully trying his pager, he returned to work.
He told his co-workers he was going to finish the aisle where he was
working, then go home.
Grievant denies attempting to call a walkout.
He testified the issue of a walkout did not arise until his interview as
part of the Employer's investigation.
At the Employer's request, several employees prepared written statements
about the events of October 23. Forklift
driver Roger Demming's statement alleged, in relevant part,
I was asked if I was going to join the walkout with the rest of the
workers that was being called for by [Grievant]. ...
Jim Sherman came by where I was working ... just prior to the crew
actually walking out and asked if I was leaving with the rest of the crew ....
Demming did not join the employees in going to Taylor's office.
He testified it was Sherman who asked him to join the walkout, both
initially and later. He testified
Grievant's name was not mentioned at any time, but he assumed Grievant was the
only one with any authority to call a walkout because he was shop steward.
At some point, perhaps after the event, a working foreman told him
Grievant had called the walkout.
Duncan testified he was in the office when Grievant and the other employees
arrived. He recalled Grievant
complaining about Way doing unit work, then saying he was going to leave.
Taylor suggested he not do so, then left.
Duncan went to Grievant and suggested he contact the Union.
Grievant agreed, and headed for the phone while the other employees
returned to work. Duncan did not
recall Grievant mentioning anyone but himself leaving.
Sherman testified he saw Way doing unit work on October 23, and informed
Grievant of it. Grievant said he
would talk to Taylor. He later
returned and reported Taylor was not going to do anything about it.
Grievant said he was tired of talking to Taylor and was going home or to
do something different. He told
Sherman to do what he wanted. Grievant
never called for a walkout or strike, nor did he suggest Sherman go to the
office. Sherman remained on his
forklift. His work partner, Duncan,
went to the office to pick up the paperwork for their next assignment.
While Duncan was gone, Sherman began wondering why nothing was being done
about Way. He decided to go to the
office to talk to Taylor about Way's performance of unit work.
He saw other employees also going to the office.
Sherman testified he did not intend to leave when he went to the office.
Sherman arrived just as Taylor was warning employees of discipline if
they left. Grievant and the
employees agreed he should call the Union.
Grievant later reported he was unable to reach the Union, and said he was
going to finish his aisle and go home. Sherman
denied having the conversation described by Demming, or talking to anyone about
Employee Gregg Faulhaber testified he went to Taylor's office to find out
what she intended to do about Way performing unit work.
He learned of the dispute when Grievant and Christensen approached him
and told him of Way's conduct. Grievant
told him it was up to him whether to go to the office.
When Faulhaber saw other employees going to the office, he went with them
to support the Union. At the office, Grievant complained about Way doing unit work.
Taylor responded he should file a grievance, then went back to work.
Grievant told employees he would file a grievance.
Faulhaber testified he wanted to pressure Taylor into doing something,
and that a walkout was an option, depending on Taylor's response.
He did not recall anyone saying anything to Taylor about walking out.
Christensen testified he was working with Grievant on October 23. Grievant told him he had gone to talk to Taylor about Way
doing unit work. He said he was
leaving, that Christensen could do what he wanted, but that "we"
should talk to Taylor about it. Christensen
went to the office, along with other employees and Grievant. Christensen testified he went to find out what Taylor was
going to do about the unit work issue. He
recalled Grievant complaining about Way doing unit work while Grievant was not
there to see it. Taylor warned of
discipline if employees left. The
employees agreed Grievant should call the Union. Christensen testified Grievant never suggested a strike or
walkout, and that the subject did not come up before he got to the office.
He recalled going to talk to Demming with Grievant, but did not recall
talking to Faulhaber.
Order Selector Ricardo Arellano testified he saw a commotion and asked
what was going on. Several
employees told him Way had done unit work; he did not recall who told him. He testified he had no conversation with Grievant that
morning. He went to the office to
discuss the problem and hear what Taylor was going to do.
He only recalled Grievant discussing the unit work problem, and Taylor
telling employees they could get in trouble.
On October 26, Catala notified the Union in writing that he was
investigating the events of October 23. Catala
noted the investigation could lead to discipline, including termination.
On October 28, he suspended Grievant and issued written warnings to the
other employees who went to the office. He
warned Grievant and the others that further discipline could ensue.
Catala testified he initially wanted to suspend everyone involved, but
was convinced by Taylor and Williams that Grievant was the instigator.
He interviewed all the employees on November 5.
He recalled that Arellano said Grievant had talked to him, and that
Demming stuck to his written account. Catala
testified he made the decision to terminate Grievant after November 5.
He concluded the other employees were not as culpable.
Meanwhile, on October 29, Taylor sent Catala a computer E-mail message.
Taylor reported, inter alia, that the Union representative had
suggested taking Grievant's length of service into consideration.
Catala responded that day, "Jerry's lenght [sic] of service will be
taken into consideration in that we will offer to let him resign rather than
POSITION OF EMPLOYER
Section 2.4 must be read in conjunction with Article XXI. Article XXI is clear and unambiguous. It gives the Employer the exclusive right to determine the
discipline for involvement in any of the prohibited actions.
The Arbitrator cannot ignore such clear-cut language or legislate new
language. Therefore, the only
question is whether Grievant participated in the prohibited actions.
All eight employees participated in a "stoppage of work" as
described in Article XXI. They
therefore subjected themselves to discipline.
Article XXI prohibits more than strikes or work slowdowns.
A slowdown and stoppage of work occurred when Grievant travelled
throughout the warehouse. He
talked to employees and encouraged their participation in a "planned
walk-out." A stoppage of work
certainly occurred when all eight employees left their work station and spent
5-10 minutes badgering Taylor. Each
employee violated the principle of "work now, grieve later."
Even after the other employees returned to work, Grievant went toward the
exit, possibly hoping others would follow.
It is possible that, upon seeing them return to work, he changed his mind
and returned to work via the lunchroom. If
he went to the lunchroom to call the Union, he should have known that no one at
the Union works on Saturday. This
was part of his continuing "stoppage of work."
Section 2.8 allows "duly authorized representatives" of the
Union to visit, observe working conditions, and see the Agreement is carried
out. It does not bestow such
privileges on a shop steward. Nothing
in the Agreement recognizes shop stewards, and no special privileges are
bestowed upon them. Grievant should
have conducted such business as filing a grievance on his own time, not while he
was being paid time and one half. October
23 was a mandatory overtime day. If
not enough employees had volunteered to work, Taylor would have drafted from the
bottom up. Everyone was required to
The Union cannot rely on an "off handed remark," pirated from
the E-mail system, to show that the decision to terminate occurred before an
investigation. The Union would
rather ignore the complete investigation that occurred thereafter.
It was not improper to suspend Grievant pending investigation while
others were only put on notice of the investigation.
The Employer took this action based on the initial investigation,
including discussions with Taylor and Williams.
After Grievant's suspension, the Employer fully investigated the incident
and considered the evidence. It
decided to limit the discipline of the other employees to warning letters, but
to terminate Grievant. Employers
have the authority to use selective discipline based on relative fault.
Grievant had been shop steward for 10 years without incident. A charge of discrimination based on union activity cannot
rest on mere surmise, inference, or conjecture.
Clear proof is required to sustain such charges.
Grievant was a liability to the Union, the employees, and the Employer.
He has no claim on mercy. The
Employer's action was proper. The
grievance should be denied in its entirety.
POSITION OF THE UNION
The contractual standard of "good and sufficient cause" is the same as "just cause." The Employer has not met the tests for "just cause."
Grievant had no forewarning that his actions could result in discipline
or discharge. He had never been
disciplined for going to Taylor about problems or informing the crew of the
outcome of those visits. His own
departure from work was not a basis for discipline, because he had already
worked longer than he had promised. When
warned in the second meeting that he and others could be disciplined for
leaving, Grievant returned to work for another two hours.
The Employer has failed to show that the alleged misconduct occurred.
No slowdown or work stoppage took place.
Grievant therefore could not be guilty of violating the no-strike clause.
The contract language cited by the Employer to justify its position does
The investigation was adequate to determine guilt or innocence.
However, because the Employer decided to terminate Grievant before the
investigation, it ignored the most important facts.
No witness testified that Grievant called for a walkout or asked or
ordered them to do anything.
The Employer did not conduct a fair and objective investigation.
After deciding to terminate Grievant, it interviewed witnesses only to
validate that decision. A fair investigation
would have shown that Grievant neither called for a walkout nor disrupted the
The Employer did not secure proof of the charges against Grievant.
The employees did not go to the office to walk out, and Grievant did not
call for this action. He only did what had been his long-standing practice--taking
problems to Taylor and reporting the result to employees.
He was simply going home at the end of the work period for which
he volunteered, because he was angry with Way for doing unit work. Even then, he worked another 2½ hours after speaking with
Grievant received disparate discipline.
All eight employees went to the office at the same time. The Employer took the unfounded position that all eight
intended to walk out, but suspended and terminated only Grievant.
The penalty of discharge was too severe.
The Employer failed to prove the charges of disrupting the work force
and instigating a near walkout. Grievant
is a 23-year employee. He has no
history of being anything but a model employee until Way began violating the
Agreement. The Employer's dissatisfaction
over his attempts to enforce the Agreement is not justification for such a
Grievant should be returned to work and made whole for lost wages and
In this discharge case, the Employer must establish, by clear and
convincing evidence, that it had good and sufficient cause for Grievant's
discharge. The discharge must stand
or fall on the grounds cited by the Employer at the time--i.e., that he
"disrupted the work force and instigated a near walk out by the
Article XXI is clear and unambiguous.
Employees are prohibited from engaging in "strike action,"
which explicitly includes sit-downs, slowdowns, and stoppages of work. Such conduct is a very serious matter, as it offends the
reciprocal obligations of the Agreement. If
it occurs, the Agreement gives the Employer discretion to discipline or
discharge as it deems appropriate.
The pivotal point is the meaning of "strike action," as used in
Article XXI. That term does not
include every instance in which one or more employees cease performing duties
during work hours. In labor
relations parlance, a "strike action" is a withholding of services as
an economic weapon, or to gain a concession from one's employer.
If the cessation of work is merely an incidental by-product of other
permissible conduct, it is not a "strike action."
Unlike some contracts, this Agreement does not specify that grievance
activity must be conducted on non-work time.
No evidence exists that the Employer has prohibited the presentation of
concerns during work time or overtime hours.
On the contrary, Grievant and other employees have routinely brought
concerns and grievances to management, singly and in groups, during work time.
Thus, the presentation of a grievance during work time or overtime is not
a "strike action" unless coupled with an intention to withhold
services to gain a concession.
In a like vein, not every discussion between a shop steward and unit
employees during work time constitutes a work stoppage or disruption.
In this workplace, employees have had the option of presenting their
concerns themselves or having their steward take grievances to management and
report the results.
No evidence exists that the Employer has ever prohibited the brief pauses
in work incidental to such a discussion.
The issue of unit work was a recurring employee concern in this
workplace. On this occasion, Taylor
questioned Grievant's interpretation of "unit work." Grievant's initial response was to throw the issue back to
the employees and urge them to talk to her about it. Those employees who heard of the dispute from other
employees, rather than from Grievant, understood a walkout was possible.
Such a distortion of the original message often occurs with word-of-mouth
transmission. However, on this record, Grievant himself did not call for a
walkout or other work stoppage.
No evidence exists that the employees "badgered" Taylor.
This meeting was consistent with the accepted practice of seeking her out
under the "open door" policy. It
ended when Taylor walked away. Grievant
served as the sole employee spokesman throughout this brief exchange.
The evidence of intent to engage in a work stoppage is in conflict.
Taylor heard Grievant say "We are leaving."
Williams heard him say "We are walking out."
The Union's witnesses, as well as employee witnesses called by the
Employer, recall him saying "I am leaving."
Even if Grievant only said "I am leaving," he coupled it with a
statement of the same grievance he had presented earlier that day.
In that context, Taylor and Williams reasonably interpreted his remarks
to mean the group was leaving because of that grievance.
The ensuing conversation demonstrated a basic disagreement about the
obligation to remain at work on an overtime day.
Taylor's measured response averted any further misunderstanding on that
score. The employees simply
returned to work--even Grievant, who had already worked his half day.
No walkout occurred.
It is debatable whether Grievant mistakenly believed that employees as a
group were free to leave at will, and whether he voiced that belief.
It is clear that he personally had fulfilled his work obligations for the
day and was free to leave. As a
23-year employee, he is entitled to the benefit of the doubt.
Certainly, he was inartful in stating the group concern in conjunction
with his own intention to leave. However,
the record does not clearly and convincingly establish that he urged or planned
a work stoppage. In these
circumstances, the Employer has not carried its burden of demonstrating that he
engaged in "strike action" within the meaning of Article XXI, Section
Having concluded that Grievant did not engage in "strike
action," it follows that no cause existed for his discharge under Article
II, Section 2.4. He therefore must
be reinstated and made whole in accordance with the provisions of Article XIX,
Section 19.3(b) of the Agreement. The
Arbitrator retains jurisdiction over the remedy and any disputes arising
Mr. Thommen was not discharged in accordance with Article II, Section 2.4
of the contract.
As a remedy, the Employer shall reinstate Grievant and make him whole
consistent with the provisions of Article XIX, Section 19.3(b) of the Agreement.
The Arbitrator retains jurisdiction over the remedy and any disputes
Under Article XIX, Section 19.3(d) of the Agreement, the Employer is the
losing party, and shall bear the expenses and fees of the Arbitrator.
/s/ Luella E. Nelson
LUELLA E. NELSON - Arbitrator
No evidence exists on this record of the days or hours when the Union
representative was available by phone.
This common practice works to the advantage of all parties.
It is more efficient for the shop steward to present an issue
affecting the entire unit than to have every concerned employee approach
management. The steward is also
more likely to be familiar with the manner in which similar concerns may
have been resolved in the past, and thus more able to suggest appropriate
solutions for the problem.