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Title: Borden/Meadow Gold Dairies and Teamsters Local 2
Date: April, 1997
Arbitrator: Jack H. Calhoun
Citation: 1997 NAC 113






                                                                                           )                               OPINION

and                                                                                     )                               AND

                                                                                            )                               AWARD

INTERNATIONAL BROTHERHOOD OF                        )              

TEAMSTERS LOCAL UNION NO. 2                      )



FMCS NO. 97-02359-7












February 18, 1997







FOR THE EMPLOYER:                                                         FOR THE UNION:


KEITH KING                                                                                         D. PATRICK McKITTRICK


BORDEN SERVICES COMPANY                                           P O BOX 1184

180 EAST BROAD STREET, 27TH FLOOR                GREAT FALLS, MT 59403-1184




                Teamsters Union Local No. 2 (the union) and Borden/Meadow Gold Dairies (the employer) are parties to a collective bargaining agreement that provides employees may only be discharged for just cause.  The grievant, Kathy Buckles, left her employment with the employer on March 18, 1996, after informing the plant manager and the general manager that she could no longer work with the plant manager.  She filed a grievance on April 17, 1996.  The parties agreed the issue in dispute was properly before the arbitrator.  Post-hearing briefs were filed.



                The issues in dispute are: (1) Whether the grievance was timely filed, and (2) whether the grievant was discharged for just cause, and if not, what is the proper remedy.





Section 1.  The Company agrees to meet jointly and deal with accredited representatives of the Union whose names shall have been certified to the Company in writing by the Union to discuss any disputes that may arise.  There shall be no strike, slowdown, or stoppage of work on the part of the Union or lockout on the part of the Company.  Such disputes shall be settled in accordance with the following procedure:


Step 1.  The employee, steward, or business agent shall first take the problem up with the Supervisor.  If the problem is not settled at this step, the grievance must be presented in writing within fifteen (15) days (except discharge or suspension cases, which must be presented in writing within five (5) days) from the time the aggrieved employee acquired knowledge of such grievance to the Plant Manager, or their authorized representative or the grievance shall be forfeited.


Step 2.  If no decision is reached within ten (10) days from the date the grievance was presented in writing to the Manager, the matter will be submitted to a committee composed of two persons appointed by the Union and two persons appointed by the Company, who shall meet jointly at a time and place mutually agreed upon each month.  Meeting to be held by mutual agreement if there are grievances to be heard.  Special cases (discharges) may be handled in another state by mutual agreement.  A grievance scheduled for committee may be waived by mutual agreement between the parties.  The decision by the majority of the committee shall be final and binding upon both parties.  Failure to meet jointly by either party shall be construed to be a binding decision in favor of the party attending the meeting.  The aggrieved employee shall have the right to attend the grievance meeting, providing they do so at their own expense and no pay.





Section 1.  The company shall not discharge or suspend any employee without just cause and shall give at least one warning notice of a complaint against such employee, to the employee, in writing, and a copy of the same to the Union, except that no warning notice need be given to an employee before he/she is discharged or suspended if the cause for such discharge or suspension is dishonesty, striking and/or threatening an employee or member of management, proven drunkenness, or possession of intoxicating beverages, being under the influence of intoxicating beverages, being under the influence or in possession of illegal drugs, or the usage of dangerous drugs while on duty, carrying unauthorized passengers in a Company vehicle, recklessness resulting in a serious accident while on duty, refusal to comply or assist in the operations or services of the Company when reasonable requests are made by supervisory personnel, or other serious just cause, which are not in conflict with the provisions of this Agreement, and inability to pass a physical examination prescribed by Governmental requirements.

                . . .




                The employer is engaged in the manufacture and sale of milk and milk related products.  The grievant started work at the Great Falls plant in April of 1987, as a laboratory technician under the supervision of Ella Mae Howard, who at that time was quality control supervisor.  Ms. Howard later became plant manager in Great Falls and the grievant became quality control supervisor.

                The quality control supervisor position is in the bargaining unit that is represented by the union.  Ms. Howard was in the bargaining unit when she was quality control supervisor as was the grievant both before and after she assumed the position.  Because of the large volume of work required of the position, both Howard and the grievant had to work "off the clock", that is to say, they worked more hours than they were paid for.

                Jodeen Figgner, who oversees all the employerís quality control functions, visited the Great Falls plant and did an evaluation of the grievant.  The grievant was rated good to very good in all areas of performance except communications and aiding new employees.  The grievant was a good employee who had never received any discipline.  During their discussion of the grievantís evaluation, Figgner and Howard told the grievant to figure up her compensatory time because they could not afford to pay her for the overtime hours she had worked, she would have to take time off.  Figgner told the grievant she wanted to emphasize in writing that the grievant was not getting out into the plant as much as she should so that the grievant could get more money.  Howard said the grievant would only get the same raise as other bargaining unit members.

                Beginning in 1994, the problem with the laboratory unit, which was made up of the grievant, one other full-time position and a part-time position, came to the attention of the union.  Mr. Manzer, the unionís business representative, had a conversation with Ms. Howard about the quality control supervisor position.  Howard wanted the position to be a management position outside the bargaining unit.  Manzer informed Howard the position was properly in the bargaining unit and was to remain there.  He further informed her that it was not an issue that should be addressed between Howard and the grievant, but could properly be addressed in another forum.

                During this conversation with Howard about the volume of work of the position, Manzer found out that Howard had worked "off the clock" when she held the quality control supervisor position, and that the grievant had done the same since she took over the job.  He discussed the grievantís "off the clock" work and agreed the grievant could take compensatory time off at one and one-half time for the extra hours she had worked.  The grievant ended up with approximately six weeks of compensatory time off.  She had earlier agreed to that method of compensation for the extra hours she had worked.

                Over a period of approximately two years prior to the grievantís termination, both Manzer and his predecessor, Earl Brandt, expressed their concern in writing and orally to Ms. Howard and Joe Bengoechea, general manager, about the treatment Howard was giving the grievant.  They informed Bengoechea that Howard was threatening the grievant with the loss of her job and had said the job was going to become a non-bargaining unit job.  Brandt informed Bengoechea that the grievant was being threatened with the loss of her job for not performing all tasks assigned to her despite the fact she was not given time enough to do the job.  The grievant had been doing more work since she became quality control supervisor than Howard had done when Howard held the position.  Yet, Howard constantly belittled the grievant for not spending more time on the plant floor than the grievant spent there.

                Manzer had several conversations with Howard about the fact that the grievant did not have enough time to do all the work that was expected of her.  Howardís response was to the effect that the grievant simply was not getting the work done and she, Howard, wanted it done.  Howard admitted to Manzer that the grievant had been working "off the clock."  The grievant had over a period of about nine years found it difficult to work for Howard, but once Howard became plant manager, it became increasingly difficult.  The work load in the laboratory had increased, but the grievantís request for additional personnel had gone unfulfilled.  In fact, the part time position had suffered a reduction in hours.  Howard repeatedly threatened the grievantís job and generally kept the laboratory in an uproar.

                On March 2, 1996, one of the laboratory employees informed the grievant that Howard had told her two plans were in store for the laboratory, but Howard did not know at that time which one would be implemented.  Howard said in any case, however, she, Howard, would be taking over the quality control position because the grievant was not doing her job.  The grievant called the union representative, Earl Brandt.  Brandt told her Howard was not going to take over the quality control supervision job.  He also told her she was going to have to learn not to take things Howard said so personally.  The grievant asked him why the union was not doing anything and Brandt told her that at this point, Howard had done nothing wrong.  At that point, the grievant began dreading the upcoming three-day quality control meeting in Ogden, Utah.

                On March 18, 1996, after a staff meeting at the plant, Howard talked to the grievant alone and said that in order to solve some of the problems in the laboratory, they were going to start splitting the grievantís shifts so that she could come to the plant at all different times.  Howard went on to say she did not know who would be in charge of making out the grievantís schedule, Howard or someone else.  Howard told the grievant the union had already approved the change.  Howard told the grievant the quality control supervisor job was not an eight-to-four-thirty job.  The grievant replied by saying she never thought it was, the incumbent of the position should be able to come to the plant and check on things anytime.   The grievant reminded Howard that it was Howard and Figgner who had set her on the eight-to-four-thirty shift a year ago.

                After the talk with Howard, the grievant went home to get ready to go to the three-day quality control meeting in Ogden, Utah.  Prior to actually preparing for the trip, she talked to Manzer, the union representative.  Manzer told her he knew nothing of Howardís plan to split the grievantís shift.  He later wrote a letter denying any knowledge or approval of the matter.

                At that point the grievant became angry and frustrated.  She knew that both Howard and Figgner would be at the quality control meeting and that they intimidated her.  The grievant then called Howard and said she was not going to Utah with her and she was not going to work for her anymore.  The next day the grievant called Joe Bengoechea and told him what she had done.  A few days later she went to the plant and picked up her check.

                Over an extended period of time, Howard repeatedly told Manzer the plant needed a quality control supervisor who was out of the bargaining unit, there were not enough hours in the regular day to do the job.  The grievant told him on numerous occasions how Howardís attitude was affecting her.  Manzer had several conversations with Howard and Bengoechea regarding the situation.  They promised to take a look at it and come up with a plan and review it with the union and the employees affected.  It was never done.

                The union made an attempt to resolve the dispute that had been created in the plant by urging representatives of the employer to meet and discuss the problems and conditions in the laboratory.  A meeting was held between union and management representatives on April 15, 1996, at which time the problem was addressed.  No agreement or settlement was reached.  On April 19, 1996, the union filed a written grievance with Ella Mae Howard.  At no time prior to arbitration did the employer raise the issue of timeliness.  At step two of the grievance procedure, the parties agreed to waive the submission of the matter to a joint committee and instead proceed directly to arbitration.


                The employer contends the grievance was not timely filed under the terms of the collective bargaining agreement.  The grievant resigned her position on March 18, 1996, but the union did not file the grievance until April 19, 1996.  The grievance was filed outside the time limits set forth in the agreement which states that any grievance not timely filed will be forfeited.

                The employer did not waive the time limits for filing the grievance.  A waiver of any timeliness objection must be established by clear and substantial evidence, it cannot be done by implication unless the implications are of such a nature to create a legal and positive presumption that a waiver was done.

                The January 30, 1996, letter from the union to the general manager did not mention a meeting let alone comment about meeting after negotiations.  There was never any decision concerning waiving the time limits for filing a grievance.  Manzerís April 4, 1996, letter did not mention a grievance or postponing time limits.  His June 26, 1996, letter suggests the parties meet during negotiations; however, he testified there was an agreement to wait until after negotiations.

                In his April 19, 1996 letter, Manzer tried to make the case that the grievance had been pending for months.  The resignation occurred on March 18, 1996.  One cannot grieve an event before it occurs.  There was no history of prior disregard of time limits.

                The unionís claim that the employer waived the timeliness objection by raising it for the first time at the arbitration hearing is not the law.  The parties waived step two of the grievance procedure; therefore, at the hearing was the first time the issue could have been raised, but even if it were not, the right is not waived to raise it before the arbitrator.

                The grievant resigned her position without notice and quit showing up for work.  She later had a change of mind and filed a grievance.  In her grievance, she stated her problems were all caused by the plant manager and she had been pressured into quitting by harassment and intimation.  She identified specific complaints against the plant manager; however, none of them shows intolerable harassment, intimidation, or pressure.  Possibly the grievant did not want the responsibilities or stress of being a supervisor and she quit.

                The grievant was never disciplined nor was she accused of not working.  Her problems were in her own mind or were of her own making.  The employer violated no provision of the contract.  There are no grounds for converting her resignation into a constructive discharge.

                There were no onerous and intolerable working conditions present.  The grievant was not deprived of her dignity.  She intentionally and voluntarily quit her job, she was not coerced into doing so.  She cannot be allowed to change her mind about leaving and attempt to convert her action into a constructive discharge by blaming everyone but herself for her perceived problems.

                Since the grievant quit, there is no need for the employer to prove anything.  The burden of proof is on the union.  As to intent, the presumption is the employee had the requisite capacity to make the decision to resign.  It is not appropriate to treat a quit as something other than a quit unless there is clear evidence that the employee lacked the mental capacity to understand what he was doing.  There is no reason to doubt the grievant had the mental capacity to know what she was doing when she quit.

                The plant manager did not violate the agreement, discipline improperly, harass,  intimidate, threaten or in anyway act in an manner that would lend credence to the grievantís claim.  No grievance was filed claiming a contract violation.


                The union contends the grievance was timely filed.  An attempt was made to resolve the issue at step one of the grievance procedure; however, the employer delayed.  The union took the next step and presented it in writing well within the time limits of the agreement.  The parties submitted the issue to step two where they agreed to submit it to arbitration rather than have the joint committee hear it.  At no time before or during the step two activity was the issue of timeliness raised.  Even if there was a question of timeliness, it was waived at step two when the parties agreed to proceed to arbitration on the merits of the case.  It is a well-established principal of arbitration that procedural issues not raised prior to arbitration are waived.

                The grievant was constructively discharged.  There were a continuous series of acts and  omissions by the employer which were so intolerable to her that she had to leave her employment until such time they could be brought before an arbitrator.  The grievant, throughout her career with the employer, was never disciplined, not even as much as an oral reprimand.

                Even when the plant manager, Howard, was in the quality control supervisor position, there was too much work to do.  She worked "off the clock."  Howard stated in a document she wrote to her supervisor that she did not have enough time to be out on the floor and requested more help.  Yet, when she became plant manager, she added job duties and responsibilities to the grievantís already onerous workload.  At the same time, she denied the grievantís request for additional help.  She even reduced the hours of one of the part time employees, while insisting the grievant do more, including being out on the floor more.

                The amount of work done by the plant manager, when she was in quality control, on a monthly basis was  done by the grievant on a weekly basis.  The grievant performed substantially more work than did her predecessor.

                Beginning in 1994, the grievant suffered constant harassment and intimidation from management, including the plant manager.  The grievant was told by her that the grievant was responsible for the work and it should be done, even though the plant manager knew it could not be done in an eight-hour shift.  The grievant was told to work "off the clock" and get the work done.

                When Jodeen Figgner met with the grievant in 1995 and gave her a good evaluation, she still insisted that the grievant work harder because she was not completing all of the additional work they had put on her.  The grievant was working "off the clock" and doing more than Howard had done, yet her request for more help was refused.

                Throughout the time in question, the employer was repeatedly threatening to take the grievantís job out of the bargaining unit.  The plant manager would meet with the employees and make the threat.  The grievant was in overwhelming constant fear.  While the grievant was off work using up compensatory time, the plant manager called the grievantís subordinates into her office and told them that changes were going to be made, that the grievantís position was going to be taken out of the bargaining unit.  Such threats and actions were constant and repeated.

                The plant manager ignored information the grievant gave her concerning the cleanliness of the plant and equipment.  Some of the products had a high bacteria count.  Both Howard and Figgner belittled the grievant and her work causing her considerable anxiety and stress.  She was overwhelmed by the undue pressure of figuring out how she could do any more work.

                When Howard told the grievant her shift was going to be split and that the union had approved it, the grievant felt it was the last straw.  The pressure and harassment were too much. She broke down.  When Manzer returned her call, he found her in an emotional state and very distraught that she could not stand it any longer.

                Manzerís testimony that he had made no agreement with the plant manger to allow the grievantís hours to be split went uncontradicted.  Howardís statement was untrue.

                Two employees testified without contradiction that since the grievant left, some of the duties she performed are not being performed now.  Howard has taken over some of the duties.

                Manzer testified without contradiction that the grievant had an overwhelming workload foisted on her, she was understaffed, and the employer repeatedly caused discontent and instability in the unit by threatening the grievantís job.  When the grievant protested working "off the clock" to the union and the union made it clear that it was going to insist the quality control position remain in the bargaining unit, it as clear what the employer was going to do:   increase the pressure on the grievant to the point she would have no alternative but to leave until matters were corrected.  The grievant left stating she could no longer work with Howard.

                The unionís evidence and testimony on the record was not contradicted.  There was no attempt by the employer to contradict the evidence and testimony even though Howard was present at the hearing, but did not testify.

                The critical factors to distinguish between a voluntary quit and a discharge are the circumstances surrounding the disputed action and the intent on the part of the employee involved.  A quit is generally defined as a declaration unequivocally and clearly indicating that the employee completely severed the relationship with the employer.  Resignations that are forced and do not reflect the actual will of the employee are discharges.

                In the instant case, there was no such declaration.  The grievant never intended to quit, but rather to leave because of the employerís actions.  She had no recourse but to leave and file a grievance so the matter could be brought to a head.

                The employerís actions demonstrate a clear case of a constructive discharge.  For over a year and a half, the employer imposed conditions on the grievant that were designed to force her to leave.  The employer did not want the quality control supervisor to be paid overtime for the necessary work that had to be done.


                The employer waived its procedural arbitraribility objection when it did not raise it prior to the arbitration hearing.  Unlike substantive arbitratibility objections, which may be raised at any time, procedural objections must be brought early in the processing of the grievance through the procedural steps of the collective bargaining agreement.  Moreover, the parties agreed at step two of the grievance procedure to proceed to arbitration on the merits of the case.  Further, it is not clear from the reading of the agreementís grievance procedure that the grievance was not otherwise timely filed because the union was engaged in an attempt to resolve the problem that caused the grievance up until a few days before it was filed.  Consideration of the merits of a grievance should not be denied unless to do so would clearly violate the terms of the collective bargaining agreement. Such is not the case here.

                The union maintains the grievant was constructively discharged because she left her employment after the employer created a situation that was so intolerable she had to leave so that it could be brought before an arbitrator.  Constructive discharge is a well-recognized principal in arbitration.  According to Arbitrator Runkel in Cowlitz County Public Utility, 99 LA 80 (1992), its purpose is to prevent an employer from unfairly forcing an employee to resign rather than being discharged.  The concepts of just cause do not apply when a resignation occurs; therefore, some employers present employees with an "option" of being discharged or resigning, with the hope that the employee will resign and not be able to claim just cause principles .  In order to avoid such injustice, the concept of constructive discharge was created.

                The focus of the substantive issues in this case is on the question of whether the grievant resigned or was discharged by the employer.  If the grievant quit her job, just cause principles do not apply.  If she was discharged, those principals do apply.

                In How Arbitration Works, (4th ed., 1995) the Elkouris state, at pp. 655;

                                When an employee voluntarily resigns, concepts associated with discharge are not generally applicable.  Thus, where the employee provided clear intent to resign, arbitrators have refused to treat the matter as discharge.  Moreover, where the facts and circumstances are such as to lead management reasonably to conclude that intent to resign exists, the matter may be treated as resignation even though the individual never actually states any intent to resign.


                                However, if intent to resign is not adequately evidenced or if a statement of intent to resign is involuntary or coerced, an alleged resignation will be treated as discharge for purposes of arbitral review.  A similar result has sometimes been reached where a resignation was made under severe emotional stress or was based upon a mistake concerning material facts.


                In Corvlitz County, supra at 83, Arbitrator Runkel discusses a number of cases where arbitrators have dealt with the question of whether there was a resignation by the employee or a discharge by the employer.  He concludes that the question turns on the employeeís mental condition at the time and that it is the job of the arbitrator to examine the mental condition of the employee to determine whether the employee was mentally competent to make a decision at the time the employee quit.  He states that the task of demonstrating mental incapacity is on the employee and that the task not be made too easy, he states:

                Certainly, there are many situations when an employee decides on one day to quit and then reconsiders at a later time.  Such decisions may be made while the employee is angry, is under stress, has a chemical imbalance, has been taking drugs, or is suffering other conditions where the employee is not operating at 100 percent of normal mental capacity.  It is not appropriate for arbitrators to treat these quits as something other than quits unless there is clear evidence that the employee lacked the mental capacity to understand what he was doing.  The presumption should always be that individuals operate with sufficient capacity (although they may be somewhat impaired) to understand what they are doing.  It should not be enough for an employee to show merely that he was somewhat impaired or that he was unable to clearly think through every rational ramification of a decision.


. . . on the issue of mental capacity or incapacity, the presumption is that the employee has the requisite capacity.  The burden of producing the evidence of incapacity and the burden of persuading the arbitrator that the employee was incapacitated is upon the union.


                As to how mental incapacity is proved, Runkel concludes it usually comes from a health professional, such as a psychiatrist, psychologist, psychiatric social worker, or mental heath counselor who had been treating the employee.  The evidence must show that the employee was not able to make a sound decision.  Where no treating health care professional testifies, there must be clear evidence from fellow workers and others who observed the employeeís irrational behavior.

                In the instant case, the employer did not give the grievant a choice of being discharged or resigning.  While it is true the facts on the record support the conclusion that the plant manager and the grievant did not get along and the plant manager acted in a manner that lacked ordinary  refinement, such lack of civility; however, is not tantamount to egregious conduct that would warrant the conclusion the grievant had not choice but to quit.  The grievant had worked around the plant manager nine years, she no doubt had come to know her personality shortcomings and lack of consideration for others.  The grievant could have done as she had been doing: do her job to the best of her ability within the time she had available.  By so doing, if she were ever disciplined she could pursue her remedy under the collective bargaining agreement.  The working conditions at the plant were not so onerous and intolerable as to create a situation that was unbearable.  The grievant was not deprived of her dignity.

                The grievantís intent to resign was manifested on three occasions.  First, she called Howard and said she could not work with her anymore.  Second, she called Bengoechea and said the same thing to him. Finally, she went to the plant and picked up her check.  It was a month later that she filed a grievance.  In the meantime, she filed for unemployment compensation with the state.  Ill-advised as it may have been, the grievant amply indicated her intent to quit.

                There is no evidence on the record to support a finding that the grievant lacked the necessary mental capacity to make a rational decision at the time she called Howard and said she could not work with her any longer, or that she subsequently lacked such capacity when she called Bengoechea and later picked up her check.  There is no evidence on the record to show the grievant engaged in irrational behavior while at work or elsewhere.  She may well have been angry and under stress, but she knew what she was doing, she had the requisite capacity to make a decision.

                Having decided that the grievance was timely filed, that the grievant was not constructively discharged, and that the employer did not have to prove it had just cause to terminate the grievant, I will enter an award reflecting that determination.


                The grievance is denied.

                Dated this ____day of April 1997.





                                                                                                                Jack H. Calhoun


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