Title: The Martin-Bower Company and Teamsters Local
IN THE MATTER
UNION 986, FMCS No. 94-22464
FOR THE UNION:
Debra S. Goldberg
Pappy & Davis
55 West Monroe
3424 Wilshire Boulevard
Los Angeles, CA 90010-2258
The employer, Martin-Brower Company, and the union, Teamsters Local
Union 986, are parties to a collective bargaining agreement that sets forth
the terms and conditions of employment for bargaining unit employees during
the time pertinent to the issue in
dispute. On June 8, 1994,
Herlinda Guerrero, a driver for the employer, was discharged for gross
negligence, dishonesty, insubordination, and damaging the employer's
reputation with its customers. A
grievance was filed on June 11, 1994. Failing
to resolve the matter at earlier steps in the grievance procedure, it was
submitted to arbitration. A
hearing was held on October 21, 1994, at which time the parties agreed the
matter was properly before the arbitrator.
Post-hearing briefs were filed.
The parties agreed that the issue in dispute is whether Herlinda
Guerrero, the grievant, was discharged for just cause, and, if not, what is
the proper remedy.
The following provisions of the parties' collective bargaining
agreement are relevant to the issue:
The management of the business and operation of its warehouse and
direction of the working forces and the authority to execute all of the
functions and responsibilities incidental thereto, including but not limited
to, the right to maintain efficiency in it's [sic] operations and to establish
reasonable standards of production, to establish reasonable rules and
regulations for the conduct of its employees and the efficient operation of
its business, to hire, discipline, or discharge for cause and to relieve
employees from duty because of lack of work, are vested exclusively in the
Company, except that such right, functions, and responsibilities are subject
to, and shall not be exercised in such manner as to conflict with any of the
provisions of this Agreement.
4. Suspension or Discharge.
Except in the case of discharge, the Company will not make use of
personnel records of previous disciplinary action against an employee in any
proceeding where the disciplinary action occurred one or more years prior to
the date of the event which is subject of such proceedings.
In the exercise of its rights, as set forth in Article II (Management
Rights), Management agrees that a non-probationary employee shall not be
peremptorily discharged, except for those conditions set forth in Article III.
Section 1. In all other instances
in which Management concludes that an employee may, if he believes that he was
unjustly dealt with, request a hearing with and receive a statement of offense
from a designated Company representative. [sic]
A Union representative shall be given the opportunity to be present.
The facts concerning the case shall be made available to both parties
at the hearing. Thereafter,
Management shall conclude whether the suspension shall be converted into
discharge or, dependent upon the factors of the case, may be concluded as of
that date, extended, revoked, or modified.
Notwithstanding any other time limitations appearing in Article X,
Grievance and Arbitration Procedure, any suspension, discharge, or layoff may
be made the subject of a grievance, but only if the grievance is submitted in
writing to the Company and signed by the employee aggrieved within five (5)
calendar days after such suspension, discharge, or layoff.
The above provision does not apply in the case of probationary
of discharged, suspended, or laid-off employee to present a grievance within
the time limits herein setforth [sic] constitute a waiver of any claim that
the discharge, suspension, or layoff was not for just cause.
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
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
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
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
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
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
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
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 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 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
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'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
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.
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
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
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
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
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
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.
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
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028