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Title: Canteen Vending of San Diego and Teamsters Local 683
Date: June, 1998
Arbitrator: Jack H. Calhoun
Citation: 1998 NAC 108

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

 

CANTEEN VENDING OF SAN DIEGO,                                             )

                                                                                                                )                               OPINION

and                                                                                                         )                               AND

                                                                                                                )                               AWARD

SALES DRIVERS, HELPERS AND DAIRY                                       )              

EMPLOYEES, INTERNATIONAL                                                         )

BROTHERHOOD OF TEAMSTERS,                                                 )

LOCAL NO. 683                                                                                   )

_____________________________________________________________________________

 

American Arbitration Association No. 73 L 300 00002 98

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

 

 

 

HEARING HELD

April 10, 1998

San Diego, California

 

______________________________________________________________________________

 

REPRESENTATION

 

FOR THE EMPLOYER:                                                         FOR THE UNION:

 

Jody A. Landry                                                                    Thomas Tosdal

Littler Mendelson, P.C.                                                   Tosdal, Levine, Smith & Steiner, P.C.

701 “B” Street, 13th Floor                                                                600 “B” Street, Suite 2300

San Diego, CA 92101-8194                                                             San Diego, CA 92101-4508

 


 

BACKGROUND

 

                Canteen Vending of San Diego (the employer) and Sales Drivers, Helpers and Dairy Employees Local Union No. 683, an affiliate of the International Brotherhood of Teamsters (the union), are parties to a collective bargaining agreement that provides, among other things, that employees in the bargaining unit may only be disciplined for cause.  The grievant, Robert Winner, was discharged on September 29, 1997.  The parties stipulated the matter was properly before the arbitrator.  Post-hearing briefs were filed.

ISSUE

 

                The parties agreed that the issue to be decided is whether the discharge was for cause and, if not, what is the proper remedy.

RELEVANT CONTRACT PROVISIONS

                ARTICLE 20 — Management Rights

Except as specifically delineated herein, Canteen reserves all rights customarily assumed by the management of any corporation.

 

Those rights include, but are not limited to the right to manage and direct the work force; add to and delete from the work force; select, direct, discipline for cause the employees of the company; determine the hours of work, shifts and work assignments of the employees; determine the means and methods of operation; sources of products and supplies; determine how and by what means our products are delivered to our customers; what products will be sold and what price will be charged; the right to establish and occasionally modify rules and regulations.

 

STATEMENT OF FACTS

 

                The employer’s business is operating vending machines throughout San Diego County. The grievant started working for Canteen Vending as a route driver in 1972 in Philadelphia.  He transferred to San Diego in 1990 and did the same kind of work: stocking vending machines, cleaning and maintaining them, putting money into the machines and taking money out of them, and driving a company truck to carry out his duties.

                During the time the grievant worked in San Diego, he was supervised by Mike Pulsipher, who had worked as a route driver for the employer prior to his promotion in 1990.  Mr. Pulsipher was familiar with the duties and responsibilities of the route driver position.

                Beginning in late 1990, the grievant was given several verbal and written warnings about the way he was doing his job.  In September of 1990, he received a memorandum from a supervisor about outdated potato chips the grievant had left in a vending machine.  The memorandum pointed out the problem and advised it was the second time the problem occurred at that machine.  On November 13, 1990, he received a memorandum from Pulsipher regarding the unclean condition of a machine and additional problems with having machines run out of coffee and cream.

                On January 11, 1991, the grievant was given a written warning about leaving outdated products in vending machines on his route.  He was advised that if it happened again, stronger disciplinary action, including termination, would be imposed.

                On March 17, 1992, the grievant was given a written warning for losing five bags of money amounting to $666.15.  He was advised that it was his responsibility to safeguard company money and future violations of rules could lead to dismissal.

                On June 12, 1995, the grievant received a memorandum from Pulsipher confirming a conversation they had had earlier regarding money shortages on the grievant’s routes.  The memorandum advised the grievant that it was to serve as a warning to him and that further problems could result in termination.

                On January 30, 1997, after Canteen Vending had just received a letter from one of its customers about problems the customer was having with vending machines operated by Canteen, the grievant was issued another memorandum from Pulsipher.  Pulsipher pointed out complaints about bad and outdated food and sour milk being found in a dirty machine.  The grievant was advised that if it happened again on his route, he would be terminated.

                On April 10, 1997, the grievant received a memorandum from Pulsipher regarding machines that the grievant had not been filling up to the proper amount thereby causing shortages.  He was advised that failure to correct the problem could lead to termination.

                On August 21, 1997, the grievant was issued a memorandum from Pulsipher that stated the grievant had left 15 to 20 outdated products in a vending machine.  The memorandum went on to state that it was the final warning and if company polices were not followed, termination would result.

                In September of 1997, a new owner was in the process of purchasing Canteen Vending of San Diego.  Because of the forthcoming purchase, an audit of the company’s vending machines was conducted.  Dirty machines, outdated products were found on the grievant’s route.  A bird’s nest was found in one of the machines.

                The new owner of the company, Neil Cheadle, reviewed the grievant’s personnel file, talked with others about the grievant’s performance and talked to the auditors. Cheadle and Pulsipher met with the grievant on September 26, 1997, and told him his performance was extremely substandard and was putting the company in jeopardy.  He was told he had one last chance to correct his behavior, and any more dirty machines, outdated products or failure to bring his route up to par would definitely lead to his termination.  He was instructed that on the following workday he was to call the office upon completion of his work at each site and to wait there for a company representative to arrive and check his work.

                The day the grievant was to comply with the September 26th instructions was September 29th, Monday.  When the grievant finished his first stop he called.  Pulsipher told him he would be there in ten minutes.  When Pulsipher arrived the grievant was not there, but the machines had been serviced and cleaned, however, not to a satisfactory level.  Pulsipher paged the grievant from headquarters and had him return to his first stop where Pulsipher told him what deficiencies to correct.

                At the second stop, the grievant did his work, met Pulsipher, who pointed out additional things that needed to be done.  The grievant did the work and then went to his next stop.

                At the next stop, the grievant cleaned and filled the machine and left.  When Pulsipher, Cheadle and a manager arrived, he was gone.  The three found three outdated products in the machine.  They left and went to the last stop.  There they found the grievant’s truck parked in a public parking lot and unlocked.  Inside the truck was a large amount of cash, about $1,400.00, and a hand held computer.  The grievant was not in sight.  He returned to the truck within a few minutes.  He was terminated later that day.

                The employer has published work rules for its operations that were effective June of 1994.  The grievant knew he was required to comply with requirements related to cleaning his machines, removing outdated products and safeguarding money and property entrusted to him.

                The rules list examples of offenses that may result in immediate discharge, offenses that call for strong disciplinary action and will ordinarily result in suspension or discharge, and offenses that will generally be subject to progressive discipline.  Those offenses that are subject to progressive discipline are categorized into first, second, and third offenses and are described as being subject to a rolling twelve-month period.

                The offenses alleged against the grievant, gross neglect of duty and failing to safeguard company assets, are listed in the rules as offenses that can lead to termination.

                As to money handling, the rules provide that money collected by an employee or issued to an employee is the employee’s responsibility.  The rules also provide that trucks and safes are to be locked at all times.

                On October 2, 1997, Pulsipher noted several problems that were discovered subsequent to the grievant’s termination.  His truck was dirty and contained outdated products.  He had received a parking violation citation that had not been paid.  Cards showed he had not serviced certain accounts.

SUMMARY OF EMPLOYER’S POSITION

                The employer contends the grievant was discharged for just cause pursuant to Article 20 of the collective bargaining agreement.  The misconduct for which he was terminated is covered by company rules that prohibit it.  The rules are reasonably related to maintaining discipline and efficient operations.  The employer could not remain in business if it failed to ensure its machines are clean and filled with non-expired products, or if its money, vehicles and equipment are not safe guarded.

                The grievant admitted at the hearing he knew he was required to clean machines, remove outdated products and safeguard company money and property.  He knew the applicable standards and was given numerous warnings that outlined those standards.  He knew he could be discharged for his conduct.  On four occasions in 1997 he was warned that his performance failures could lead to his discharge.

                The penalty for the violations at issue is reasonably related to the seriousness of the offenses the grievant committed.  He failed to clean the machines, to pull old products, and to safeguard property and money entrusted to him. Such failures came after he was warned and after he was told he would be monitored.

                The evidence submitted at the hearing established that the grievant engaged in the conduct for which he was dismissed.  The testimony of Pulsipher and Cheadle, and of the grievant himself support this.

                The union presented no evidence to show the grievant was treated unfairly. Claiming unfair treatment because the grievant had a number of years of service is not enough, it must be backed up by reliable evidence.   There was no allegation that other employees committed similar offenses and were treated differently.

                The grievant should not be given a second chance. As a general rule, the determination of the  penalty for misconduct is a function of management, particularly where the rules are clear and the conduct is intolerable, as in this case.  Arbitrators should hesitate to substitute their judgment on penalty for that of management unless discrimination, unfairness, or capricious and arbitrary actions are proved.  Mere length of service alone is not sufficient to render the penalty of discharge too severe.  The failure to secure company assets and the willful disregard of duties warrant termination without regard to length of seniority or past record.

SUMMARY OF UNION’S POSITION

                The union contends the employer did not have just cause to discharge the grievant.  He was a long term employee whose 25 years with the organization weigh in his favor.

                The events of September 29, 1997, standing alone, do not constitute cause for termination.  Company witnesses admitted that the “cleanliness” issues at certain of the stops were minor.  The grievant waited for an extended period for the managers at one of his stops but was forced to leave because of limited parking.

                Although the company claimed the truck was unlocked, no theft of money or property occurred.  The grievant was only a short distance away and had been gone only a few minutes.

                The incidences of the 29th alone cannot establish just cause for discharge of a 25 year employee.  Moreover, discharge for leaving the truck unlocked would violate the progressive discipline procedure found in the company rules for a class C violation.

                The warnings given the grievant earlier in 1997 were for events that were innocent or very minor infractions.  On January 30th the grievant was warned about bad food, sour milk and dirty machines because a customer wrote a letter of complaint.  The letter, however, alleged more breaches by other employees than the grievant.  The other employees were not issued warnings.

                The April 10th warning was based upon the alleged failure to fill the machines to inventory.  However, drivers inventoried their machines in accordance with inventory cards provided by the company.  The fault for the inventory shortages that resulted in the warning was that of the company, not the grievant.

                On August 21st, Pulsipher met the grievant at one of his stops, checked the machine and said it was satisfactory.  Only later did Pulsipher say there had been outdated product in the machine.

                The company’s rules provide that warnings disappear and cannot serve as a basis for discharge if they are over twelve months old.  Therefore, warnings given the grievant prior to September of 1997 must not be considered.  Even if the prior warnings are considered, the facts do not demonstrate a poorly performing employee over the period of 1972 to 1996.  Given the time period since the grievant had received notification of deficiencies over outdated products and cleanliness, six to seven years, and numerous stops the grievant had to make, no consistent problem with the grievant can be identified.

                The alleged post-termination discoveries made by the company regarding the condition of the grievant’s’s truck and the outdated products subsequently found cannot be used to buttress the grievant’s’s discharge.  The decision to discharge must stand or fall upon the reasons given at the time of discharge.

                Cheadle and others were in the grievant’s truck on September 29th but they did not use the condition of the truck as a basis for the decision to discharge. Also, the September 1997 audit revealed some outdated products on the grievant’s route and the problem was corrected.  How then could outdated product of April of 1997 have been found?  The person who allegedly found this outdated product did not testify.  Hearsay must not be relied upon as the only proof of a critical matter.

                The deficiencies in performance did not rise to the level of just cause for discharge of a 25-year employee.  A final effort of progressive discipline, a suspension, would have been most in conformance with principles of just cause.

OPINION

                The employer proved clearly and convincingly it had just cause to discharge the grievant.  Contrary to the union’s position on the question, it is proper to consider an employee’s past record when assessing the degree of discipline imposed by an employer.  Where there is no provision in the collective bargaining agreement to the contrary, as here, it is appropriate to consider evidence of the grievant’s past record when the propriety of the penalty is at issue.

                It is also appropriate to consider evidence of the grievant’s misconduct and poor performance that was discovered by company officials after the grievant was discharged.  The evidence had bearing on the charges against the grievant that formed the basis for his discharge.  The new evidence was related to the same kind of behavior that led to the discharge.  No new issues were raised by the post-discharge evidence, it was more of the same kind of evidence upon which the discharge was based.   

                The cumulative effect of the grievant’s disciplinary history weigh heavily in the instant case.  While the individual instances alone of rule violations by the grievant may not have been sufficient to sustain the discharge, the grievant’s conduct on September 29, 1997, constituted the final act that warranted his dismissal.  That is especially so since he was explicitly warned the prior Friday by Cheadle and Pulsipher that he would be given a last chance and that if he failed, he would be dismissed.  Moreover, the final warning came after he was informed on four separate occasions in 1997 that failure to perform as expected could lead to his termination.  In addition, he had a long history of negligent performance and inattention to his responsibilities.

                There is no formula for progressive discipline.  While it is common for an employer to impose warning, suspension and discharge on employees who have performance related problems, it is not an absolute requirement absent such provision in a collective bargaining agreement.  Counseling, verbal warnings and written warnings can be sufficient to warrant discharge without imposing a disciplinary suspension where, as here, such counseling and warnings were given over an extended period of time and were sufficient to provide the grievant with proper notice that his work needed improvement and correction.  Where an employee appears immune to correction after an number of oral and written warnings have been given it is unnecessary to impose a suspension prior to discharge, especially in cases such as this where the grievant’s acts amounted to egregious violations of company rules.  Even after the grievant was given one last chance, he continued to violate the rules.

                The employer’s rules list examples of three levels of offenses for which varying degrees of discipline may be imposed.  The first is classified “A” offenses and may result in immediate discharge. The second is classified “B” offenses and may result in suspension or discharge. The third is “C” offenses which are subject to progressive discipline.

                The union argues that the grievant’s offense of leaving the truck unlocked with equipment, cash and products in it fell in the “C” class.  I disagree.  That offense and others fell under the “B” class as gross negligence of duty and failure to safeguard company assets.  The rolling 12-month period applies only to the less serious class “C” offenses.

                The evidence on the record does not support the union’s argument that, while the grievant was given a warning as a result of a letter from a customer, other employees who had responsibilities for some of the areas of complaint were not warned.  The grievant was warned about those areas for which he was responsible.  Further, there is no evidence to show other employees had similar performance problems like the grievant.

                The union argues that the individual who found outdated products in one of the grievant’s machines during the audit prior to the change of ownership did not testify and Cheadle’s testimony was critical hearsay and, therefore, cannot be relied upon.  Cheadle himself went out and  checked one of the grievant’s accounts and found substandard conditions.  He also reviewed the grievant’s personnel file and talked to others about the grievant’s past performance before forming an opinion and deciding to give the grievant one last chance rather than terminate him immediately.

                The grievant received three written warnings in the nine months prior to his termination.  He was warned that his failure to improve his performance and comply with employer policy could result in his discharge.  The Friday prior to his discharge, he met with the owner and his supervisor and was told this was his last chance and if he failed to comply with policies he would be discharged.  An employee who wanted to keep his job would have adhered to those polices.

                The penalty imposed by the employer was reasonably related to the seriousness of the continuing offenses committee by the grievant over a long period of time.  His years of service cannot serve to warrant a reduction in the penalty.  Given his history of performance deficiencies, reinstatement even with a substantial suspension without pay would serve no useful purpose.

                The grievant was discharged for just cause.

AWARD

                The grievance is denied.

                Dated this ____day of June 1998.

 

 

 

                                                                                                                ______________________________

                                                                                                                Jack H. Calhoun

 

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