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Ross Runkel

Title: The Martin-Bower Company and Teamsters Local Union 986
Date: January 3, 1995
Arbitrator: Jack H. Calhoun
Citation: 1995 NAC 108

            STATEMENT OF FACTS

            The employer uses tractors and trailers, driven by its drivers, to distribute frozen and refrigerated food, and dry products to customers.  The tractors are equipped with computers that monitor the speed, miles, RPMs, and destinations of the vehicle.  The trailers are separated into three compartments, one for dry goods, one for refrigerated foods, and one for frozen foods.  A Thermo-King unit located in the front of the trailer is used to cool the refrigerated and frozen food compartments.

            The established policy of the employer is that when drivers are on a route delivering orders, the temperature in the frozen compartment of the trailer should not exceed zero degrees and the temperature in the refrigerated compartment should not exceed 45 degrees.  If either exceeds the established level and it does not come down upon the driver's arrival at the next delivery stop, the driver is to notify his supervisor.  All drivers are periodically made aware of the policy and they are taught how to operate the Thermo-King unit.  Acceptable temperatures are critical to product preservation and delivery.  The maintenance of proper temperatures is more important than prompt deliveries.

            The grievant had been employed by the employer since November of 1991 as a driver.  On June 2, 1994, at 10:30 p.m., she picked up her tractor and trailer and drove from Los Angeles to Las Vegas so that she could begin making deliveries at 6:00 a.m. that morning.

            She made six delivery stops on June 3 and recorded the temperature readings of the freezer and refrigerator unit each time.  The first five readings were all within the acceptable range, the freezer unit was well below zero and the refrigerator unit was below 45 degrees.  On the last stop, at 11:35 a.m., when the grievant checked the gauges, she noted on her manifest that the freezer unit read minus 10 degrees and the refrigerator read minus 135 degrees.  She checked the gauge again at 5:30 p.m. and read minus 10 degrees for the freezer unit and minus 120 degrees for the refrigerator unit.

            The minus 135 and 120 readings were obvious errors by the gauge because it was not possible for the compressor unit to cause such low temperatures.  Temperatures at that level would have damaged the dry foods and the refrigerated foods.  No such damage was done.  All products were accepted by the businesses to which they were delivered on June 3.

            It was not uncommon for the gauges on the trailers to indicate erroneous readings when the actual temperature and condition of the food products was acceptable.  All drivers do not call the supervisor each time they see an abnormal reading on the gauges.  They sometimes try to adjust the gauges in an attempt to get them to work properly.

            The grievant checked into a motel on June 3 after making her deliveries.  She was told she had to have her belongings out of the room by 11:45 a.m. the next day.  The following morning she began her first delivery at 5:10 a.m.  The temperature readings showed minus 10 degrees for the freezer and minus 133 degrees for the refrigerator.  The intended recipient at the first stop refused four boxes of calamari rings because they were thawed.

            The grievant immediately called the office of the employer's transportation supervisor, Javier Botello, at 6:45 a.m. and again at 7:00 a.m.  She received no answer, so she drove to her second scheduled delivery stop and called Mr. Botello again at approximately 7:45 a.m.  She told him there was something wrong with the freezer unit, the gauges were reading wrong.  She said she had inspected the merchandise and found everything to be frozen that was supposed to be frozen.  He asked her to use a probe to determine the temperature level of the products.  She told him she did not have a probe with her.  She had never been issued a probe by the employer. 

            The grievant told Botello she was going to complete the delivery at the second stop.  He told her he was going to have a Ryder Truck Leasing representative meet her at her third stop.  Ryder services the employer's equipment in the Las Vegas area.  The grievant received a call from Ryder before she completed her second delivery, saying they were going to send someone out immediately.  She informed the caller she was through with the second stop delivery and was going on to her third scheduled stop.  She said the food was frozen and that she would call Botello if problems arose.  None of the products were refused at the second stop.  After completing delivery to the second stop, the grievant called Botello again and told him everything was fine.  He told her to check everything and to give him the readings from the gauges, which she did.  They showed plus 15 degrees for the freezer and minus 138 degrees for the refrigerator.  He then told her to go to her next scheduled stop and call him from there when she had finished her delivery.

            The grievant arrived at her third and last scheduled stop at 9:05 a.m. on June 4.  The gauges now showed plus 50 degrees for the freezer and minus 138 degrees for the refrigerator.  She set up rollers from the trailer to the premises of the intended recipient and loaded them with the products from the freezer unit.  Due to the fact that only one person from the customer's staff was helping unload, the products sat a long time on the rollers.

            Ultimately, the customer at the last stop of June 4 rejected the frozen merchandise because a part of it was thawed.  All of the refrigerated merchandise was accepted.  The grievant called Botello and told him what had happened.  He told her to go to Ryder.  She reloaded all the rejected items, which had been sitting outside the trailer all the while, and drove to the motel, which was located two minutes from the Ryder facility, because it was nearing the deadline for her to retrieve her belongings.

            When she got to the motel, she discovered that the maids had already removed everything she had left in her room.  She inquired of the manager as to where her things were.  After a period of time the manager found them and she then left for Ryder.

            According to the computer records, the grievant spent 47 minutes at the motel, from 11:09 a.m. until 11:56 a.m.  She arrived at Ryder at 11:58 a.m.  Botello was on the telephone with one of the Ryder employees at the time she arrived because he had expected her to go directly from her last stop to Ryder; therefore, he had called to find out if she had arrived.

            The Ryder mechanic had spoken with Botello earlier that morning before the grievant arrived and told Botello that he, the mechanic, would not be able to fix the unit and that the vehicle should be taken to the Thermo-King facility.

            The grievant talked to Botello while the Ryder mechanic looked at the Thermo-King unit.  Botello asked her what had taken her so long to get from the last stop to Ryder.  She explained that she had stopped by the motel to get her things and they had trouble finding them.

            During the time the grievant was talking to Botello, the mechanic at the Ryder station examined the Thermo-King unit briefly and decided he did not know how to fix it.  He noted that the temperature in the freezer was plus 58 degrees.  He did not indicate to the grievant whether he had fixed the unit.  The grievant believed he had fixed it because he told her he did not see anything wrong and the temperature had fallen to minus 10 degrees by the time she was ready to leave.

            The Ryder mechanic asked the grievant if she knew where the Thermo-King repair facility in Las Vegas was located.  She replied that she did not.  She did not understand from his remarks that anyone expected her to go to Thermo-King.  Botello did not tell her to go to Thermo-King when she talked to him upon arriving at the Ryder facility.  She believed the unit was functioning properly because of the mechanic's earlier remarks and the fact that the temperature had fallen from plus 55 degrees to minus 10 degrees during the time she was at the Ryder facility.

            The grievant talked to Botello again before she left the Ryder facility and told him the unit was working properly and the temperature was below zero.  He instructed her to return to her home base.  According to the grievant and a witness who heard Botello's conversation with her, Botello did not tell the grievant to go to Thermo-King to have the freezer checked. 

            The grievant left Las Vegas for the Los Angeles area at 12:28 p.m.  At 3:13 p.m. she arrived at Barstow and stopped to use the restroom and eat.  She read the temperature gauge and saw that the freezer unit showed 92 degrees.  She moved switches back and forth in an attempt to make a change, but it did no good.  She then called Botello and told him what had occurred.  She left Barstow at 3:55 p.m. and drove to the warehouse where it was determined that none of the product was salvageable.  The loss was valued at $2,600.  The grievant was suspended on June 6, 1994, pending the employer's investigation of the matter.

            The employer's transportation manager, Gary Ojeda, investigated the circumstances surrounding the grievant's June 3 and 4 trip and concluded she had been negligent, dishonest, and insubordinate in her performance, and her conduct damaged the employer's reputation.  He based his conclusion on his review of her manifest; an interview with her; conversations with the Ryder mechanic, the store manager at the third stop where all products were rejected, supervisor Botello; and the overall condition of the product in the trailer.

            In determining the appropriate penalty to be assessed against the grievant, the employer considered the grievant's prior disciplinary record.  It showed she had received a written warning for a vehicle accident; a written warning for violating the attendance policy; a verbal warning for submitting inaccurate paperwork; a verbal warning for not following instructions about dropping off a trailer; a verbal warning for not keeping her trailer in good condition; and a written warning for violation of attendance policy.

            Other drivers employed by the employer have had problems keeping the temperature of the frozen food at the desired level, and they have been disciplined for their negligence.  None of them was discharged; however, the product involved was not ruined, and the drivers were not found to have been dishonest or insubordinate, nor was the employer's reputation damaged.

            At the time Botello had two of his telephone conversations with the grievant on June 4, Tim Flannigan, another driver employed by the employer, was present and heard Botello direct the grievant to go to Ryder and have the equipment fixed.  When the conversation was over, Flannigan asked him why he did not use Thermo-King in Las Vegas.  Botello said they had had problems with Thermo-King.  Flannigan also inquired as to the possibility of placing the trailer in cold storage.  Botello said it was not feasible.

                        POSITIONS OF THE PARTIES

The Employer

            The employer maintains it proved by a preponderance of the evidence that the grievant was guilty of negligence, dishonesty, insubordination, and damaging its reputation with a customer.  Those acts, plus the grievant's prior disciplinary record, make the penalty of discharge appropriate.

            The grievant knew the Thermo-King unit was malfunctioning at 11:30 a.m. and at 5:30 p.m. on June 3, but she failed to report to her supervisor.  On June 4, when she reported the problem to her supervisor, he told her to go immediately to Ryder.  Instead, she went to her motel and stayed for 47 minutes, even though the motel was only two minutes from the Ryder facility.

            At her second stop of June 4, the grievant told Botello that everything was frozen, yet at the next stop the customer refused all the frozen goods.  The product was thawed and the grievant should have been aware of that fact before attempting to deliver the product.

            The Ryder mechanic inspected the Thermo-King unit, found that he could not fix it, and noted the gauge read 58 degrees.  He told the grievant to go to the Thermo-King facility to have the unit repaired, but she did not go.

            The grievant drove to Barstow and reported a 92-degree reading to Botello.  He told her to go directly to her home base.  She instead spent 42 minutes in Barstow before leaving.  Although she said she had a sugar problem, she did not mention that to Botello or to anyone during the investigation.

            The employer had a right to determine the reasonable behavior of its employees and had the right to discharge the grievant for her several acts of gross negligence that lead to a $2,600 loss.  Her negligent handling of a food product was especially serious because she potentially jeopardized the life and health of consumers who ate at the restaurants she serviced.

            The grievant told Botello that the Thermo-King unit was fixed at Ryder and was reading minus 10 degrees.  However, the Ryder mechanic had told her to go to the local Thermo-King facility to have it repaired.  She did not tell Botello of this, instead she said the unit was fixed.

            Drivers are on their own when making deliveries; supervisors are not present.  The employer has a right to rely on the drivers to be honest when reporting from the field.  The grievant provided her supervisor with inaccurate information which affected the supervisor's handling of the situation.

            At the second stop on Jun 4, the grievant told Botello the product was fine when, in fact, twenty minutes later the meat was completely thawed.  For ten pounds of beef to go from frozen to completely thawed at room temperature takes from 15 to 17 hours.  The meat could not possibly have been frozen when the grievant said it was.

            The mechanic at Ryder should be believed over the grievant.  He was a disinterested witness who had nothing to gain or lose.

            The grievant testified she spent 47 minutes looking for her clothes at the motel.  The more plausible explanation is what she initially told the transportation manager--she took a shower and then got her clothes and left.  It was not until the first grievance meeting that she first stated she had a sugar problem and had to eat in Barstow.  The grievant failed to disclose her hypoglycemia when she answered medical questions required by the Department of Transportation.

            The store manager at the grievant's third stop on June 4 told employer officials that the chicken was thawed and smashed and the boxes with french fries were wet and collapsed.  She said the beef was completely thawed.  The damage caused to the employer's reputation is incalculable.

            The discipline imposed was appropriate considering the seriousness of the grievant's conduct and her work record.  Although the union attempted to show she was discharged because she was the sole female driver, there is no evidence to substantiate that claim.

            Other drivers who were disciplined but not discharged for temperature-related problems did not cause the product to be lost nor were they guilty of dishonesty, insubordination, and damage to the employer's reputation.

The Union

            The union's position is that the employer failed to show by a preponderance of the evidence that the grievant was guilty of gross negligence, dishonesty, insubordination, and damaging the employer's reputation with its customers.  The employer failed to establish that the grievant's termination was for just cause.

            The employer did not show any intentional wrongdoing or bad faith on behalf of the grievant.  It was reasonable for the grievant to stop by the motel to pick up her belongings before going to Ryder.  She believed she had to retrieve her things before 12:00 noon and thought that since it was only a couple of minutes from Ryder she could do so quickly.  She did not know at the time it would take 47 minutes.  She would have had to stop by the motel before driving back to Los Angeles.  Whether she did it before or after going to Ryder was immaterial, since Botello testified it takes meat 14-16 hours to thaw.

            It was not unreasonable for the grievant to stop at Barstow to use the restroom and get some food.  She began work at 5:00 a.m. that day and had been on duty for a long time.  While the grievant's medical record makes no mention of her hypoglycemic condition, the grievant did not feel a need to indicate this to the examining physician because the condition is under control if she eats properly.

            The amount of time the grievant spent at Barstow was not excessive.  She checked the gauges after parking the tractor and trailer, walked a distance from the parking area, spent time on the telephone with Botello, ordered food, and walked back to the parking area.

            The grievant was not insubordinate or negligent because she was never instructed by her supervisor to take the trailer to Thermo-King.  She reasonably believed the unit had been repaired.  Botello spoke with the Ryder mechanic before she arrived at the Ryder facility.  The mechanic told Botello he would not be able to fix the unit and it would have to be taken to Thermo-King.  When Botello spoke with the grievant, he did not tell her to take the unit to Thermo-King.

            Botello had no intention of telling the grievant to take the unit to Thermo-King, as evidenced by his conversation with Flannigan, who asked him why he had not directed her to Thermo-King.

            The grievant was not negligent for failing to take the unit to Thermo-King when, as the employer asserts, the Ryder mechanic gave her instructions as to its whereabouts.  The Ryder mechanic was not the grievant's supervisor and he never told her he had not repaired the unit.  He said he found nothing wrong with it.  She decided the unit had been fixed and left.  The grievant did not understand from her conversation with the Ryder mechanic that she was to go to Thermo-King.  It is reasonable to assume she believed the mechanic was advising her of the location in case she had future problems.

            The evidence shows that, if there was any negligence involved, it was on the part of Botello.  The grievant reported the temperature readings as required and called her supervisor throughout the day when problems started.

            The condition of her load on June 3 was acceptable and there was no reason to call in.  It is not uncommon for the gauges to show aberrant readings and the actual temperature to be within the normal limits.  Drivers do not call in each and every time they see aberrant readings.

            The condition of the food was acceptable the morning of June 4 even though the packages of calamari were rejected at the first stop.  The customer only examined two of the four packages and the grievant assumed they had shifted and had been damaged.  All the other frozen items were accepted.

            None of the frozen food was rejected at the second stop; therefore, it is reasonable to conclude that the condition of the frozen items, as of the second stop on June 4, was acceptable.  Based on that and on the fact that aberrant readings were not necessarily indicative of a problem, it was reasonable for the grievant to have concluded that she could proceed to her third stop.  The grievant had never been issued a probe; therefore, she had to rely on the gauges and her physical inspection of the product.

            While the third customer rejected all the frozen products, the grievant did offer to sort through the items and provide the customer with enough frozen food to hold the customer over until more could be delivered.  The employer failed to produce any evidence to substantiate its claim that the grievant damaged its reputation with its customers.

            After the customer rejected the products, the grievant called Botello.  Instead of calling Ryder to verify that its personnel would be able to fix the unit, he simply told the grievant to go there, contrary to the recommendations of Flannigan.  Botello failed to ever clearly communicate to the grievant that she was to go to the Thermo-King facility and the evidence shows he had no intention of doing so.

            The evidence demonstrates that the grievant was treated in disparate fashion.  Ojeda testified there have been rejected items before because they were thawed or for other reasons and that the drivers were not necessarily terminated because items had been rejected.  It depends on the circumstances.  Flannigan testified he knew of two other drivers who engaged in far more culpable conduct but were not terminated.

            The grievant did her best to adjust the knob, took the unit to Ryder as instructed, and indisputably did not create the faulty condition that existed.  Yet, she was terminated and the other two drivers who were clearly negligent were not terminated.

DISCUSSION

            The grievant was discharged for gross negligence, dishonesty, insubordination, and damaging the employer's reputation with its customers.  The employer had the burden to prove by a preponderance of the evidence that she committed those acts and, therefore, there was just cause to terminate her employment.

            Negligence is the failure to do that which a reasonably prudent person would have done under the same circumstances or doing that which a reasonably prudent person would not have done under the same circumstances.  Anaconda Co., 69 LA 879 (Allen 1977).  There is a difference between ordinary negligence or carelessness and gross negligence or intentional wrongdoing.  Gross negligence is an intentional wrongdoing that justifies severe penalties, including discharge.  It is the want of even slight care, as distinguished from ordinary care.  It is almost a willful disregard of what is being done and an almost complete inattentiveness to the job.  Burgess Mining and Manufacturing Co., 61 LA 952 (Grooms 1972).  Establishing negligence requires proof, among other things, that the act or omission was unreasonable.  Borough of Carlisle, 82 LA 1 (Woy 1984).  Contributing fault by management or by the employee's supervisor is a defense to a charge of negligence.  Abex Corp., 55 LA 499 (Volz 1970).  Where an employee is guilty of wrongdoing but management, ordinarily the supervisor, is also at fault in some respect in connection with the employee's conduct, the arbitrator may be persuaded to reduce or set aside the penalty assessed by management.  How Arbitration Works, Elkouri and Elkouri, Fourth Edition, BNA (1985).

            Dishonesty is defined as a disposition to lie, cheat, deceive, or defraud.  It violates fundamental principles of the employer-employee relationship.  Southern California Education Co., 70-1 ARB §8066 (Sinclitico 1969). 

            Insubordination has been defined as the willful and deliberate defiance of managerial or supervisory authority.  Hub City Jobbing Co., 43 LA 907 (1964).  Common to all forms of insubordination is a willful and deliberate defiance of managerial or supervisory authority, and for a penalty of insubordination to be upheld the order or directive of the supervisor must have been clear and understood by the employee.  Labor and Employment Arbitration, Bornstein and Gosline, general editors, Matthew Bender, Vol. 1, 1994, §20.04(1).

            Impairment of customer relations or damaging an employer's reputation with its customers is a form of disloyalty to the employer and may be punished by discipline, including discharge.  Pontiac Press, 44 LA 402 (Keefe 1965).  The normal duty of an employee includes an obligation to do his best so as to enhance rather than endanger the best interests of the employer.  Los Angeles Examiner, 49 LA 453 (Jones 1967).

            The evidence on the record as a whole does not support the charges against the grievant.  The employer failed to carry its burden of proving by a preponderance of the evidence that it had just cause to discharge the grievant.

            It was not unreasonable for the grievant to stop at the motel to retrieve her clothes on her way to the Ryder facility.  She knew she had to be out of the room by the deadline and reasonably believed she could get her belongings within a few minutes and proceed to Ryder.  Under the circumstances, it made no difference whether she picked up her belongings before she went to the Ryder facility or afterward.  The damage to the product was the same regardless because, as it turned out, the unit was never repaired.  Her supervisor, acting contrary to the advice of another driver and the Ryder mechanic, did not direct her to go to the Thermo-King facility where the unit could have been repaired, thus preventing the long exposure to high temperatures.  The extra minutes she was forced to spend at the motel getting her clothes, which was not her fault, were relatively insignificant compared to the total time it took to get back to Los Angeles.

            The grievant was in contact with Botello several times during the morning of June 4.  He could have told her to go to Thermo-King at any time that morning to have the unit repaired by specialists, yet he deliberately chose a different course of action.  She did as instructed by him.  In accordance with the practice of other drivers, she did not call in on June 3 when she noted the first irregular reading.  It was not uncommon for the gauges to show irregular readings and the actual temperature of the product to be normal.

            The grievant called Botello early June 4 and reported the condition of the frozen food and the fact that the calamari had been refused at the first stop.  Her report was not dishonest, it was based on her observation of the product.  She followed his instructions as a reasonably prudent person would.  The grievant did not engage in deliberate defiance of her supervisor's authority.

            When the customer at the last stop refused all the frozen goods, the grievant acted as a responsible employee.  She did her best to accommodate the needs of the customer.  There is no evidence to support a conclusion she impaired the employer's reputation with the customer.

            The focus of this dispute centers around what happened at the Ryder facility when the grievant reported there.  The mechanic testified he told the grievant how to get to the Thermo-King facility and told her to go there.  The grievant testified he did not tell her to go there, but rather told her the location of the facility and said he did not see anything wrong with the unit.  I have credited the grievant's testimony because witness Flannigan testified he heard Botello talk to the grievant and nothing was said about her going to Thermo-King.  Moreover, Botello told Flannigan the Thermo-King in Las Vegas had caused problems.  It is unlikely the Ryder mechanic would have told the grievant to go to Thermo-King unless Botello had told him to do so.  There is no doubt that Botello did not tell the grievant to go to Thermo-King.

            It was not unreasonable for the grievant to believe the Ryder mechanic had corrected the problem and simply gave her directions to Thermo-King for future reference, given his previous statement and the fact the gauge had dropped.  It seems clear that Botello should have accepted the recommendation of Flannigan and the Ryder mechanic and told the grievant specifically to go to Thermo-King.  He was the supervisor and the one in a position to have all the facts at hand, not the grievant.  She acted in a reasonable manner in accordance with what the circumstances and Botello's instructions required.

            The stop the grievant made in Barstow cannot be deemed unreasonable.  She needed to use the restroom and eat.  She had to park a distance from the restaurant and it took time to call Botello and get her food.

            The employer argues that since one of its witnesses, Botello, testified that it takes 15-17 hours to thaw beef at room temperature, the grievant should have known the product was not frozen when she told Botello it was.  However, it is clear that some of the product was in fact still frozen at the last stop on June 4, although the customer rejected all of it.  Moreover, the product had to sit outside the customer's premises for an unduly long time.  It must be remembered that Botello was remiss in handling the whole situation; therefore, his credibility regarding events, including the time it takes to thaw beef, is in question.  It appears he ignored the employer's policy that states integrity of the product is more important than prompt delivery.  He had all morning on June 4 to direct the grievant to go to Thermo-King where specialists could handle the problem.  Instead, he finally directed her to go to Ryder where the mechanic had already told him he did not know how to repair the unit.  Given the manner in which her supervisor handled the situation, the grievant exercised ordinary care and prudence in carrying out her duties as an employee.  She did not willfully defy supervisory authority; on the contrary, she reacted to his instructions in a reasonable manner.  She did not lie, but rather told the truth as she believed it to be.  Further, she offered to leave the remaining frozen food with the last customer in an attempt to alleviate difficulties.

            In summary, I do not find the grievant was negligent, dishonest, insubordinate, or disloyal to her employer.  Accordingly, in the award that follows I will sustain the grievance and order the appropriate remedy.

AWARD

            The grievance is sustained. 

            The grievant shall be reinstated to her former position, with full seniority and other rights she had at the time of her discharge.  She shall be given back pay, minus any interim earnings, from June 6, 1994 until the time of her reinstatement.

            Dated this 3rd day of January 1995.

                                                                        Jack H. Calhoun

14-94CA

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