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Title: The Western Sugar Company and Teamsters Local 190
Date: August 18, 1997
Arbitrator: Thomas Watkins
Citation: 1997 NAC 109

In the matter of arbitration between:

THE WESTERN SUGAR COMPANY                                 TERMINATION:

Lovell, Wyoming                                                 FAILURE TO PERFORM DUTES,

                                                                               FALSIFICATION OF RESULTS

                       - and -

 

INTERNATIONAL BROTHERHOOD OF                 Brenda Brittenham, Grievant

TEAMSTERS,  Local No. 190

 

 

 

 

                                                                        THOMAS L. WATKINS, Arbitrator

 

 

APPEARANCES:

 

            FOR THE COMPANY:

 

                        Barry D. Lindgren, Director of Legal and Regulatory Affairs

                        Linda Childs, Lab Analyst; Witness

                        Larry Dunham, Factory Manager

                        Robert Palmer, Chief Chemist; Witness

 

            FOR THE UNION:

 

                        William J. O’Connor, Attorney

                        Brenda Brittenham, Grievant; Witness

                        Joe Dwyer, Secretary/Treasurer

 

 

 

HEARING HELD: August 14, 1997 in the conference room at 355 E. 5th Street, Lovell, Wyoming.

 

 

 

THIS PROCEEDING in arbitration was authorized under Article 18 of the Labor Agreement between the parties dated 1995-1999.  The Arbitrator was selected by the parties.

 


FACTUAL BACKGROUND

 

Except for the credibility issues discussed below, the case presented herein for decision is relatively simple and straightforward.  The Company is engaged in the business of processing sugar beets into sugar.  It operates 24 hours per day during a period called the “campaign,” generally mid-September through early February, but with only a skeleton crew during the periods in between.

The Grievant, Brenda Brittenham, was prior to her termination a seasonal laboratory lead person in the Employer’s facility in Lovell, Wyoming.  In that capacity she worked with one other person on her shift taking, analyzing and recording samples of the product in its various stages of processing from beets through juices to sugar.  These tests are critical to determining and maintaining process and plant efficiency as well as quality control.  Following the analyses and making hand notes, persons in the lab record the data in two places: on the juice sheet and on the computer through a software program known as LIMS. 

On each shift one test involves taking “cossette” samples four times, twice by each of the two lab workers.  This test consists of taking handfuls of cossettes (beets in shredded form), blending them, diluting the mixture, analyzing the solution, and recording the results.  It takes about twenty minutes from beginning to end.  On the day shift these are drawn at 8:00, 10:00, 12:00 and 2:00, with a recording in the computer within the hour, i.e., the 8:00 AM test is to be recorded by 9:00. 

The Chief Chemist for the plant is Robert Palmer, who was the Grievant’s immediate supervisor.  Palmer testified that he had been told during the last campaign (1996-97) that the Grievant might have missed doing some of her cossettes.  This Based on these reports and upon his past experience with Brittenham, Palmer decided to investigate.

On Thursday, February 13th the Grievant was scheduled to take the 10:00 AM and 2:00 PM cossette tests.  Palmer observed her consistently during the entire day.  She did the 10:00 test on time.  However, Palmer never saw Brittenham draw the 2:00 sample or analyze it, yet by 3:30 PM results had been recorded on both the handwritten juice sheet and on the computer [Co. Ex. 2, 3].  The Employer contends these entries were falsified.  Larry Dunham, the factory manager, sought to observe the Grievant the following day, but noticed nothing unusual.

On Monday, February 17th Palmer again carefully watched the Grievant, and he is certain that the 10:00 AM sample was not taken, analyzed or recorded by the time he left the plant at 11:26 AM.  This timing was confirmed by Linda Childs, another lab analyst, who testified that the sample was taken at approximately 11:45, about 15 minutes before the next sample was to be taken.

On the basis of this information Palmer and Dunham decided to terminate the Grievant for “failure to properly collect, prepare, and analyze samples” and “falsifying results” [Jt. Ex. 2].  On February 19th a grievance was filed stating that the Grievant was terminated without just cause, and seeking her reinstatement with all back pay, benefits and seniority [Jt. Ex. 3].  The matter was processed through the negotiated procedure, denied by the Employer [Jt. Ex. 4], and is now stipulated to be properly before this Arbitrator for a decision on its merits.  The issue is framed as follows:

Did the Employer discharge the Grievant for just cause?  If not, what is the proper remedy?

 

RELEVANT PORTIONS OF THE LABOR AGREEMENT

ARTICLE 31

DISCIPLINE AND DISCHARGE

The employer shall not discharge or discipline an employee without just cause.  At least one (1) warning notice, in writing, shall be given to the involved employee and to the Union, except that no warning notice need be given before an employee is discharged for a serious offense including dishonesty . . . willful neglect or willful carelessness.

 

POSITIONS OF THE PARTIES

            The Employer argues that taking the tests on time and recording the results so that they may be obtained by others in the plant is absolutely critical to effective product creation.  The Grievant knew and understood this.  Further, the lead person in the lab must set an example for others.  On February 13th Brittenham did not do the 2:00 test but instead simply made it up and posted the falsified results.  On February 17th she performed the test so late as to be nearly useless to the efficiency and quality of the operation.  The data, timely drawn and recorded, are essential.  Employees are not told that other tests are more important than cossettes.  For her infractions Brittenham was properly terminated.

            The Grievant states that on February 13th she ran the test on time and recorded the result.  Palmer was busy that day and/or simply did not see her do so.  On February 17th a “white strike” occurred with particularly bad results on its two dimensions, color and conductivity.  A white strike is one taken at the end of the process, the second-to-last test before the product is shipped.  The Grievant understood that determining the cause and cure for these data took precedence over all other tests.  Therefore, while she drew the cossette sample on time at 10:00, she postponed making the analysis until sometime before 11:00 AM.  Brittenham believes Palmer left the plant around 10:30.  Thus, she admits being somewhat late in doing the test, but less than an hour, and certainly not the nearly two hours contended by the Employer --her delay was justified by performing tests on the bad white strike.

 

ANALYSIS

            In discharge cases the Employer must prove with clear and convincing evidence that the employee is guilty of a dischargable offense and that s/he was afforded the rights of due process normally subsumed by collective bargaining agreements.  Here, the evidence is somewhat clouded by the differences in recollection as to the timing of the February 17th cossette test.  The other matter on which disagreements appeared is whether the lab worker is to give precedence to performing tests on white strikes over those on cossettes. 

As to February 17th, It seems likely that the Employer’s version is more accurate since two witnesses separately testified that Palmer did not leave until around 11:30 and that the sample had not yet been drawn.  It is also likely that while there is great importance associated with doing tests on white strikes, those tests take about the same length of time as the ones on cossettes: about 20 minutes.  Thus, even during a period of concern about a bad white strike and the attendant tests, there would still be ample time to take and analyze the cossette sample very close to the time scheduled, certainly no later than 10:30.  It seems probable that Brittenham did not do so until more than an hour later.  By her own admission Brittenham was late with her cossette test that morning, though not as late as the Employer contends.

That leaves us with one incident of an untimely test (on the 17th) and one that was not observed (on the 13th).  Without diminishing the importance of timely tests, for which discipline may be in order, it is the incident alleged to have occurred on the 13th which is the more serious because the contention is that Brittenham simply did not take the sample: she falsified the data.  Here we must squarely confront the matter of proof.  All we really know is that Palmer did not observe Brittenham taking the sample or performing the test.  He did not go into the lab and confront her.  No one else can confirm that she failed to perform her duty.  Indeed, only Brittenham knows with certainty whether she did or did not perform the scheduled test.  If she did not, or if she has not done so in the past, she is subject to termination since such behavior constitutes a dischargable offense.  She should note this well, for it becomes only a matter of getting truly caught, just once.

But our question here is whether the Employer has clear and convincing evidence of the offense.  I cannot find that it does.  There is not clear and convincing evidence that the test was fabricated on the 13th; and the delay in the conducting of the test on the 17th, while serious, does not constitute just cause for discharge on a first offense.  Therefore, the Employer has violated the Agreement with its decision and it must be modified accordingly.

 

DECISION

The termination of the Grievant is reduced to a written warning and suspension for her untimely sampling, analysis and recording of cossette tests.  She is entitled to no back pay or benefits from the original date of termination through the end of the 1996-97 campaign.  However, her seniority is to be restored to its original date, and nothing in this decision shall prejudice her eligibility for employment during the 1997-98 campaign.  As a condition of her reemployment she is to sign a statement that she has received and read a copy of this award.

 

 

                                                            ___________________________ 

                                                            THOMAS L. WATKINS, Arbitrator

 

August 18, 1997

Frisco, Colorado

 

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