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Title: Safeway Stores, Inc and UFCW Local 7
Date: May 16, 2000
Arbitrator: Thomas Watkins
Citation: 2000 NAC 120

 

In the matter of arbitration between:

SAFEWAY STORES, INC.
Denver, CO

                        and

UNITED FOOD & COMMERCIAL WORKERS
Local 7

DEMOTION

  ______ ______, Grievant

Case No. 98-1562

THOMAS L. WATKINS, Arbitrator

 

APPEARANCES:

 

            FOR THE COMPANY:

 

                        Mountain States Employers Council by Gus Achey

                        Karin Ranta Curran, MSEC

                        John Hock, First Assistant Manager; Witness

                        Bob Macklin, Store Manager; Witness

                        Gary Pickel, Labor Relations Manager

 

            FOR THE UNION:

 

                        John P. Bowen, Associate General Counsel

                        ______ ______, Grievant; Witness

 

HEARING HELD:  April 4, 2000 in the offices of Mountain States Employers Council, 1790 Logan Street, Denver, CO 80202.

THIS PROCEEDING IN ARBITRATION was authorized under Article 45 of the Agreement between the parties dated June 30, 1996.  The Arbitrator was selected by the parties.

POST HEARING BRIEFS were timely filed by both parties on May 12, 2000.


INTRODUCTION AND ISSUE

The matter presented herein for resolution involves the demotion of the Grievant, ______ ______, from Second Assistant Manager [SAM] at Store #136 to his current position of All Purpose Clerk at Store #141.  ______ had been a Head Clerk since 1993, but was promoted to SAM in April 1995.  He became SAM at Store #136 in April 1997 and in that capacity served under three different Store Managers, ending with Bob Macklin, who arrived in April 1998.

According to the Company, Macklin and Assistant Manager Hock met with the Grievant daily and weekly regarding his priorities and the time he was failing to spend in the front end.  They were also concerned about his delegating abilities.  On July 27, 1998 ______ did not complete a form to the satisfaction of Macklin, so the Grievant received a verbal warning.  [Co. Ex. 1]  Macklin felt that ______ was still not measuring up to standards some three weeks later, so on August 14 the Grievant received a written warning for failing to “stay on the front end,” failing to respond to a service call, not having a sense of urgency about service matters, and failing to properly follow through.  [Co. Ex. 4]

According to Macklin there was still no improvement over the next two weeks, and he concluded that ______ could not or would not do a satisfactory job as SAM.  Therefore, on August 29 ______ was demoted for failure to (a) follow through, especially on a safety module, (b) complete assigned duties, (c) delegate, (d) organize and prioritize, and (e) provide “acceptable” service to the front end.

A grievance was filed by the Union on September 4, it was normally processed through the negotiated procedure, denied by the Employer throughout, and is now stipulated to be properly before this Arbitrator for a decision on its merits.  The issues to be decided are framed as follows:

Was the Grievant demoted without just cause in violation of the Collective Bargaining Agreement?  If so, what is the proper remedy?

 

 

RELEVANT SECTIONS OF THE AGREEMENT

ARTICLE 6

RIGHTS OF MANAGEMENT

 

Section 13.  The Employer retains the right to manage the store or stores, to direct the working forces, and to make necessary reasonable rules and regulations for the conduct of business, providing that said rules and regulations are not in conflict with the terms of this Agreement in any way . . .

 

ARTICLE 27

SENIORITY

 

Section 73.  Demotion for Just Cause.  Except under the provisions of Section 75, no employee shall be demoted from a higher classification without just cause.[1]

 

ARTICLE 30

TRANSFER FROM STORE TO STORE

 

Section 79.  Transfers from store to store shall not be made or denied for capricious, arbitrary or discriminatory reasons. . . .

 

ARTICLE 45

DISPUTE PROCEDURE

 

Section 128.  The arbitrator shall have all the rights, power, and duties herein given, granted and imposed upon him; but his award shall not change, alter or modify any of the terms and conditions set forth in this Agreement.  The expense of the impartial arbitrator shall be paid by the losing party.  In the event neither party wins the total arbitration, the expenses shall be shared equally by the parties.


 

 

POSITIONS OF THE PARTIES

 

The Employer argues that (1) the expectations of Macklin were reasonable; (2) Macklin provided the Grievant with explicit instructions as to what was expected; (3) a service focused store demands attention to the front end and this requires the physical presence of the SAM when he is the only management in the store; (4) the Grievant spent an inordinate amount of time in task-oriented activities rather than effectively managing the front end; (5) he was told on many occasions that his primary concern should be to work at the front of the store in order to coordinate customer flow, assess check out lines, monitor availability of carts, assist customers and generally endure that the business runs smoothly; (6) ______ had troubles delegating and prioritizing his time; (7) his deficiencies also included various mistakes and omissions relative to deposit control sheets, drawer audits, and safety committee responsibilities; (8) between April and August he received at least two warnings that his behavior was not meeting expectations; and (9) Macklin explicitly warned the Grievant that if he failed to improve in these areas, along with better “follow through” and delegation, he could not be allowed to continue as a SAM.

When his behavior did not change there was no choice but to remove him from his position as Second Assistant Manager.  No employer is required to retain an employee who fails to perform at an acceptable level, especially one in a position that is filled by way of management discretion.  On at least a few occasions ______ chose to ignore Macklin’s directions outright, because he had a different philosophy.  But that is not ______’s to create: store philosophy and values are the province of the store manager.

Therefore, while it is unclear whether ______ was unable to perform the functions of his job, or whether he chose not to perform them, demotion remains the only choice of the Employer.  ______ never demonstrated any sustained improvements on his assignments.  Finally, since the Employer action involved no arbitrary, capricious or discriminatory elements, its decision to demote the Grievant cannot be disturbed.

The Union contends that the Grievant had performed acceptably as a SAM for over three years and his accomplishments were well received by three prior store managers.  It was only the arrival of Macklin which precipitated ______’s difficulties.  Ultimately, the Employer noted only three specific incidents: an improperly filled out data control sheet, not responding to a customer service call, not staying directly on the front end, and not completing a safety module on time.  None of these, collectively or individually, provide just cause for demotion. 

The decision of management should be reversed because: (1) there was never a deterioration of his performance, only a raising and changing of expectations; (2) there is much more to the job of SAM than the few ‘deficiencies’ cited by the Employer, and on all of these the Grievant was performing acceptably; (3) ultimately this matter appears to turn on a change of management style, and the instructions of Macklin to ______ were to become “more customer oriented,” a matter left open to considerable discretion on the part of the SAM; (4) while Macklin testified that he had counseled the Grievant on many prior occasions, he could point to only three specific problems for which discipline was issued; (5) even among those three, the “control data sheets” issue is of no merit since there are no instructions as to how those documents should be created and no guidelines to establish that the Grievant was in any way deficient; (6) there is only the most general allegation that ______ was inattentive to customer needs; (7) ______ could not have completed the safety module on time because he had not received needed information from several employees including some from management, and further, this was the Grievant’s first effort at this assignment; (8) ironically, although the Employer bases its action on the Grievant’s not paying enough attention to customer service, he was on the service desk when management felt he should have been elsewhere; (9) Hock had worked several months with the Grievant and never before found his work to be substandard; and (10) neither Macklin nor Hock ever provided to the Grievant any specific standards of performance or a timetable for improvement.

Ultimately there is not the slightest evidence that the Grievant behaved less effectively after Macklin arrived than he did before.  The problem was that Macklin had different expectations than other managers, and his were at odds with those of the Company.  ______ was a SAM who knew his job and did it well.  The Employer is unable to demonstrate any overall decline in the Grievant’s job performance, and it has failed to show that the Grievant is unable or unwilling to perform the duties required of the position.

For each and all of these reasons, the Union asks that the grievance be sustained and that the Grievant be reinstated to the position of Second Assistant Manager and made whole for all losses since his demotion, plus interest on monies lost.

 

ANALYSIS

 

The parties and the Arbitrator are in agreement on a rather refreshing number of key elements in this case.  First, we agree that the proper guidelines for demotion were well articulated by Arbitrator Goodman fourteen years ago.  In the well-cited Comacho decision Goodman wrote,[2]

It is submitted that the only question to be asked in demotion cases is whether the employer has clearly demonstrated that the employee was unable or unwilling to meet the basic requirements or qualifications for the job.  If the employer meets this burden, it should make absolutely no difference if the demotion were disciplinary or non-disciplinary; absent restrictive language in the contract, i.e., “there shall be no disciplinary demotions,” management should not be bound to this artificial distinction.

 . . . . .

[M]anagement’s right to demote is premised upon proof that the employee is substantially deficient at the position or that the quality of the employee’s workmanship has so deteriorated that it is no longer of the quality that is required by the position.  Of necessity, the standard mandates evaluation of performance, albeit formal or informal, over a period of time.  Isolated instances of misconduct or other adverse attitudes or behavior of a temporary nature will not suffice to justify demotion.  For these variant misconducts, discipline, as a corrective measure, is the more appropriate response.  But again, this disciplinary record, as it reflects upon overall ability, is certainly an appropriate factor in the equation.

 

This is consistent with the great preponderance of arbitration decisions including the oft-quoted Thompson Brothers case.[3]  Since the just cause standard is specified in the Agreement, Goodman adds, “To question if the demotion were for just cause is to ask if the employee has demonstrated an inability or unwillingness to perform within those reasonable expectations of management, and if so, was it fair and reasonable to

demote, under the circumstances.”  These standards are again embraced here, as they


have been in all cases submitted by the parties.

Second, the parties agree that it was essentially a change in management style that ultimately precipitated the demotion.  There is no real question of whether the duties of the SAM position were understood by the Grievant: he had been in that position for more than three years.  What changed was the arrival of Macklin, who had very different expectations of his Assistant and Second Assistant Managers. 

Third, when it comes to the expectations this places upon the worker, I am confident we would all agree with Harry Schulman:[4]

. . . [T]he obligation to perform satisfactorily is a continuous condition of the maintenance of the better job and that an employee’s performance, though once adequate, may fall below standard and merit demotion, either because his own performance has deteriorated or, though it has not deteriorated, because the standard in his occupation has been raised by the greater ability of those around him.  Such a demotion would be an instance of the Company’s continuing interest in the satisfactory performance of each of its jobs.

 

Fourth, the Rivera decision[5] demands that a grievant be given notice of his deficiency and a reasonable period to correct the inadequacy (the latter point was also addressed in Comacho), a requirement that should cause little controversy.  Indeed, it is completely consistent with the analyses of Goodman and of Harry MacLean who reasoned in the Humpphreys case between these parties that the grievant could not be demoted because of the “absence of any previous attempts by the Company to correct grievant’s performance . . .”[6]

This brings us to a rather short list of elements on which the parties disagree.  Let us take them in order.

1.  Paraphrasing the questions raised by Schulman and Goodman, did the Employer, through Macklin, have reasonable expectations for the Second Assistant Manager position?  Yes.  It is true that his expectations were different than previous managers and perhaps with those at other stores; and they apparently do not exist in writing outside the general concepts of “Superior Service.”  However, it is within management’s discretion, consistent with earlier notations, for management to establish such expectations, and Macklin’s were not in any way unreasonable.

The Union insists in this regard that the standards were vague, ill-defined and ultimately inadequate for measuring performance.  But the testimony indicates they were clearly and frequently stated, and even the Grievant does not contend they were unreasonably high.  Indeed, nothing in the record establishes that they were excessive, or that they were inconsistent with normal duties of SAMs.[7]  As to the matter of whether ______’s behavior could be measured against them, we must move to the next question.

2.  Were the expectations well communicated to the Grievant, did he fully understand them, and did he have a reasonable opportunity to meet them?  Yes, to all three questions.  Macklin as well as Hock met with ______ on several occasions over four months regarding the expected standards and behaviors of SAMs.  The Union points out that there were only three identified deficiencies during this period, which is too few to establish just cause, and inadequate as a reasonable “period of time”  [Goodman].  The evidence supports a different conclusion.


While it is true there were only a few different types considered by management to be inappropriate, at least one, the failure to adequately cover the front end, was regular and frequent.   ______ never indicated he did not understand Macklin’s expectations, nor did he ever state that he could not comply.  Four months would seem to be a reasonable period for correction.  During this period, his behaviors were observable and his progress measurable, providing the necessary evaluation of performance by Macklin and Hock.  The Grievant was counseled on at least eight separate occasions, yet he failed to demonstrate acceptable, sustained improvement in his performance.

Rather, ______ testified that “Customer service is not my strength,” and he personally disagreed with Macklin about some of his policies.  He refused to spend as much time in the front end as Macklin and Hock required; he admitted that he sometimes “cut corners,” that he did not delegate as much as he could, and that he ignored advice to stop cashing checks. 

Whether these responses indicate “inability” or “unwillingness” to perform at a level acceptable to Macklin is of no moment: his behavior meets Goodman’s test of being “substantially deficient,” and collectively they provide just cause for action against the Grievant.

3.  Was he clearly warned of the consequences of his failure to meet expectations?  This is a critical matter since both the earlier arbitrators and the arbitration literature support the position that the failure to place employees “on notice” of their unacceptable performance may be, by itself, sufficient reason to reverse a demotion.[8]  ______ received a verbal reprimand on July 28, and a notice of unsatisfactory work performance, marked “serious,” on August 14.   He was counseled once more thereafter.  Macklin testified he made it absolutely clear on August 22 that ______ would be demoted if he did not improve.  When he did not, he was demoted on August 29.  One cannot conclude that he did not receive adequate warning.

4.  Was it fair and reasonable to demote the Grievant under the circumstances?  This is the only remaining question from Goodman and others: whether the action to demote was free of arbitrary, capricious, and discriminatory elements as required in all such cases.[9]  There is no evidence in the record to indicate that the Employer’s action was unfair, ill-considered, malicious, or vindictive.  Further, there is nothing substantive in the record establishing that others in the same position committed the same offenses without penalty, or that the same action would not have been taken against any other employee in the same circumstances.

While this is a matter that might have been satisfactorily resolved through a transfer, that is not the issue before us.  Given the case as framed and the conclusions which follow from the record, the issue earlier stated must be answered in the negative, and the decision of the Employer cannot be disturbed.

 

DECISION

The grievance of ______ ______ is denied.

 

 

 

                                                                        ______________________________ 

                                                                        THOMAS L. WATKINS, Arbitrator

 

 

May 16, 2000

Frisco, Colorado



[1] Section 75 concerns layoffs and is not relevant in this case.

[2] Safeway Stores, Inc. and UFCW Local 7, Josie Comacho, Grievant, decided May 3, 1986.

[3] Thompson Brothers Boat Manufacturing Company, 55 LA 69, 73 (Moberly, 1970).  See also, 83 LA 564, 87 LA 92, 93 LA 311, 93 LA 808, 94 LA 199, 95 LA 777, 102 LA 711, 112 LA 272, 112 LA 566, and Elkouri and Elkouri, How Arbitration Works, 5th ed. (BNA, 1997), pp. 780-4.

[4] Ford Motor Company, Opinion A-30 (1943) as cited in Elkouri and Elkouri, supra.

[5] Safeway Stores, Inc. and UFCW Local 7, Richard Rivera, Grievant (Reed, 1987).

[6] Safeway Stores, Inc. and UFCW Local 7, Carol Humpphreys, Grievant (MacLean, 1996).  Note also that the Valdez case, cited by the Union, is not relevant here since in that case the Employer used demotion inappropriately as a response to a matter of theft (Snider, 1986).

[7] See supportive cases at 95 LA  777 and 112 LA 566.

[8] 91 LA 9 (Cerone, 1988) a grievance which was upheld because of the absence of warning, and 94 LA 199 (O’Grady, 1990) wherein the arbitrator denied the grievance in part because of repeated warnings.

[9] See, for example, 93 LA  311, 94 LA 199, 95 LA 777, 102 LA 711, 112 LA  272.

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