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Title: Coca-Cola Bottling Co and Teamsters Local 125 
Date: 1999
Arbitrator: Perry Zirkel
Citation: 1999 NAC 110

HEARING

            The hearing in this matter was held in Somerset, New Jersey, on 8/10/99.  The representative for the Company was attorney John R. Bode.  The representative for the Union was attorney Sanford R. Oxfeld.  The witnesses for the Company were warehouse manager Arthur Yannaco and employee relations manager Lois Grumet.  The sole witness for the Union was the grievant, Jack Johnson, Jr.  The joint exhibits were the collective bargaining agreement (J-1) and the grievance (J-2).  The Company's 12 exhibits included attendance control policy documentation

(C-1 thru C-4, C-7, C-8), the EAP brochure (C-5), Company correspondence to the grievant (C-6, C-9,  C-10) and the termination letter (C-12).  The Union's sole exhibit was a set of health insurance forms for the grievant (U-1).  The hearing closed upon the submission of the posthearing brief on 9/24/99.

 

FACTS

            The Company operates plants and distributing depots in various locations including Carlstadt, New Jersey. 

            In May 1996, the Company hired Jack Johnson, Jr., as a temporary, summer employee.

            On 10/1/96, the Company hired him as a permanent employee.  He worked as a warehouse laborer during the second shift, which was from 6 pm to 2 am.  His regular duties include operating a forklift to load inventory on trucks.

            Johnson had continuing attendance policies.  In accordance with the Company's attendance control policy,[1] he reached Step IV on 9/16/97, resulting in a two-day suspension.[2]

            After some improvement, which put him back at Step II, on 1/27/98 he received a written warning (Step III) as a result of two more occurrences in January.

            After less sustained improvement, which put him back at Step II, on 4/7/98, he  moved back to Step III, receiving a written warning as a result of two or more further occurrences in late March and early April.

            After reoccurrences that continued to re-start the specified 60-day period, on 5/12/98 he received a 3-day suspension as a result of not only absences of 4/15/98 and 5/4/98 but also an additional absence on 5/11/98 in the interim between the triggering, previous occurrence and the disciplinary review meeting.[3]  At  the meeting, the Company representative gave Johnson a copy of the employee assistance program (EAP) booklet.[4]

            Johnson was late on 6/18/98.  Per the Carlstadt warehouse manager's past practice in interpreting lateness as not a full occurrence, the Company did not re-commence the 60-day period, which ended on 7/10/98.

            On 7/25/98, Johnson was again absent. 

            On 7/27/98, perceiving that he was "close" to discharge, Johnson, via his Union representative notified the Company that he wished to avail himself of the EAP based on a purported weekend alcohol problem.  He applied for, and the Company approved for 26 weeks, short-term disability benefits.  He understood that he had to complete the treatment program as a condition for return to work.

            He met thereafter with the EAP counselor at Laupheimer Associates who referred him to the Mt. Carmel program for substance abuse problems.

            On 8/8/98, Johnson missed his first appointment at the Mt. Carmel facility, and the warehouse manager sent him a notice to immediately correct the situation and that failure to do so "may subject your employment to disciplinary action up to and including termination...."

            On 10/20/98, the Mt. Carmel facility terminated Johnson from its treatment program for "very minimal participation" despite repeated discussions as to the necessity for such.[5]

            On 10/28/98, Johnson contacted the warehouse manager to request return to work.

            On 11/2/98, the EAP coordinator at Laupheimer Associates recommended to the Company that "[g]iven the safety-sensitive nature of his position and his lack of follow-up ... that he not be allowed to return to work at this time."

            On 11/9/98, the Company sent Johnson a notice terminating his disability benefits and employment.

            However, after a meeting at the Union's request soon thereafter, the Company agreed to give Johnson another opportunity to complete the EAP-referred treatment program because he reported and the Company confirmed that he had not received his disability benefit payments.[6]  The Company's employee relations manager stressed the necessity of full compliance and warned him of termination if this contingency were not met.  She asked him to contact her if any further payment or other participation-related issues arose.

            On 11/23/98, Mt. Carmel readmitted Johnson to its program under strict attendance requirements, which included a written documentation requirement, based on his prior poor participation.  Although Johnson received notices of substantial amounts due to his health-care insurer, he did not notify the employee relations manager or other Company representative.[7]

            On or about 1/27/99, an EAP representative at Laupheimer Associates informed the Company's employee relations manager that Mt. Carmel had again terminated Johnson from its program for noncompliance.

            On 2/8/99, the Company sent Johnson a termination letter based on his failure to "live up to the terms of our agreement."

            On 3/5/99, the Union filed a grievance on Johnson's behalf.

           

 

CONTRACTUAL PROVISIONS

 

ARTICLE 2A  -  MANAGEMENT RIGHTS

 

            The Union and the Employees agrees that the right to operate and manage the business ..., are vested exclusively in the Company.  These rights include ... the right  to ... discipline, discharge, ... and rehire the employees ..., to establish ... and enforce rules of employee conduct ..., and to maintain or improve efficiency within its operations.... provided, however, that none of these rights shall be exercised by the Company contrary to any provision of this Agreement.... 

 

ARTICLE 20 - ARBITRATION

 

            ....  The arbitrator shall have no authority to substitute his judgment for that of the Company's with respect to the amount of the discipline imposed....

 

ARTICLE 22 - DISCHARGE

 

            The Company may discharge any employee for just cause.  If the Company disputes the justice of the discharge, it may refer such dispute to arbitration as provided for above.

 

ATTENDANCE/LATE NOTIFICATION POLICY[8]

 

....  It must be understood that each sixty (60) day period begins from the date of the last occurrence....  For each sixty (60) day period that is free of occurrences, one (1) full step of the disciplinary procedure shall be removed from the employee's record.....

 

An employee shall become subject to progressive steps of disciplinary procedure for this policy, when, during a sixty (60) day period or less, his attendance parallels one of the guidelines outlines below.

 

Step I - Counseling

 

Employees will be counseled by their supervisor if, during a sixty (60) day period the following is accumulated:

            A. Absent three (3) occurrences or;

            B. Late arrival six (6) occurrences or;

            C. Early departure three (3) occurrences or;

            D. Any combination of three (3) occurrences of the above.  Lateness are [sic] considered to                be half an occurrence....

 

Step II - Verbal Warning

 

Employees shall receive a verbal warning by their supervisor if, during a sixty (60) day period after Step I the following accumulated:

            A. Absent two (2) occurrences or;

            B. Late arrival four (4) occurrences or;

            C. Early departure two occurrences or;

            D. Any combination of the above.  Lateness are [sic] considered to be half an occurrence.

 

Step III - Written Warning

 

Employees shall receive a written warning by their supervisor, if during a sixty (60) day period after Step III the following is accumulated:

            [same four alternatives as under Step II]

 

Step IV - Suspension

 

Employees shall receive a suspension and will be required to attend a disciplinary review, if during a sixty (60) day period after Step II the following is accumulated:

            [same four alternatives as under Step II]

At this time .... referrals [shall be] made to employee assistance programs dealing with drug and alcohol abuse, family violence, counseling, etc., as appropriate.  Whether the employee elects to take advantage of the employee assistance program or not they [sic] will continue to subject to the disciplinary procedure.

 

Step V - Discharge

 

Employee shall be subject to discharge if, during a sixty (60) day period after Step IV the following is accumulated:

            [same four alternatives as under Step II]

At a disciplinary conference, the Company will review the advisability of maintaining the employment relationship.  It is understood that if ... past issuance's [sic] of discipline have failed to correct the individual's record, the employee shall be discharged from the Company.

 

 

ISSUE

            Whether the Company had just cause for the termination of the grievant?  If not, what shall the remedy be?

OPINION

           

 



                [1] See infra note 2 and accompanying text.

                [2] During the 8 and 1/2 month period preceding 9/16/97, his record included 23 absences and 7 other partial or complete occurrences (C-1).

                [3] During the 12-month period ending on 5/12/98, Johnson had accumulated 40 absences and 12 other attendance incidents.

                [4] The booklet explains that when management refers an employee to the EAP, the employee must "cooperate and follow the recommendations of the counselor or treatment facility" and that failure to do so may result in "disciplinary action, up to and including termination" (C-5).  The booklet also explains that, depending upon the medical coverage, the employee "may be responsible for expenses of any professional resources to which you may be referred by the [initial] EAP counselor."

                [5] His program consisted of three days of group therapy and one session of individual therapy weekly for an 8-week period on an outpatient basis.

                [6] The delay in the grievant or his physician returning the forms contributed to the lack of prompt payments.  In any event, the employee relations manager's investigation disconfirmed the other reason that Johnson proffered for his noncompliance, Mt. Carmel's alleged requirement of a $20 copayment for each treatment session.  According to his testimony, the facility terminated him for nonpayment, but he did not report the matter to the Company, relying instead on the Union-requested meeting a month later.

                [7]  Moreover, each entry on the notices put into evidence contained this instruction, along with a specified appeal procedure: "Please submit an itemized bill with the provider's full name, address,, telephone number, and tax identification number."

                [8] This policy is included as one of the addenda in the contract booklet and is not necessarily part of the collective bargaining agreement.

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