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Title: The Pepsi® Bottling Group, Inc. and International Brotherhood of Teamsters, Local 381
Date: February 15, 2000
Arbitrator: David Robinson
Citation: 2000 NAC 138

FEDERAL MEDIATION AND CONCILIATION SERVICE ARBITRATION

THE PEPSI® BOTTLING GROUP, INC.,            )   CASE NO. 990902-15534-A

[Santa Maria],                                                        )

                        Employer                                        )   In Re:  Billy Batiste Discharge

            and                                                             )               AWARD

INTERNATIONAL BROTHERHOOD OF          )    

TEAMSTERS, LOCAL 381,                                 )

                        Union.                                            )Arbitrator:  David K. Robinson, J.D.

_______________________________________)

DATE AND PLACE OF HEARING

Friday, November 12, 1999 at Santa Maria Inn, Santa Maria, California

APPEARANCES

For Employer                                                         For Local Union

Amy W. Adelman, Esq.                                          George A. Pappy, Esq.
Kilpatrick Stockton, LLP                                        Pappy & Davis
100 Peachtree Street, Suite 2800                            2550 North Hollywood Way, Suite 501
Atlanta, Georgia 30309-4530                                 Burbank, California 91505-1055

STIPULATED ISSUE

Did the Company violate the Collective Bargaining Agreement of May 1, 1995 (“CBA”)?

by discharging Billy Batiste?  If “yes,” what is the appropriate remedy?

WITNESSES AND PERSONS PRESENT

Company Witnesses

Appearing by phone:  Kim Kendrick and Ron Adams (Cookie Crock Employees)

Appearing in person:  Wayne Matthews (Pepsi’s Territory Sales Manager), Michael Outlaw (Products Availability Supervisor), and Jerry Jenkins (Sales Manager)

Union Witness

William (Billy) Batiste (the grievant)

Other Persons Present

Mary Beth Denooyer, Company’s Human Resources Manager;  Charlie Silvas, International Brotherhood of Teamsters (“IBT”), Local 381 Secretary, and Ray Navarez, IBT, Local 381, Recording Secretary

 . . .

RELEVANT AND MATERIAL CBA PROVISIONS

AND RULES CITED IN TESTIMONY

             The Collective Bargaining Agreement (“CBA”) of May 1, 1995 (Joint Exhibit 1)

ARTICLE II- MANAGEMENT RIGHTS

Section 4.  The Union recognizes that the Company may discharge any employee who while on duty is guilty of . . .or violation of Company rules and regulations, .  .  .  

COMPANY RULES (5 pages, signed by Billie Batiste on 5-12-89)

[T]HE FOLLOWING VIOLATIONS OF COMPANY RULES WILL BE SUFFICIENT GROUNDS FOR TERMINATION OR SUCH OTHER DISCIPLINARY ACTION DEPENDING ON THE FREQUENCY AND SERIOUSNESS OF THE OFFENSE, AS DETERMINED BY THE COMPANY.  NORMALLY TWO (2) CORRECTION INTERVIEWS FOR THE SAME OFFENSE OR THREE (3) CORRECTION INTERVIEWS FOR VARIOUS OFFENSES WITHIN A ONE (1) YEAR PERIOD MAY MAKE AN EMPLOYEE SUBJECT TO TERMINATION.  HOWEVER, THE FIRST OR ANY SUBSEQUENT VIOLATIONS MAY RESULT IN DISCHARGE . . . .  [T] HESE COMPANY RULES INCLUDE, BUT ARE NOT LIMITED TO:

            5.  THEFT OR STEALING OF COMPANY OR CUSTOMER’S PROPERTY OR . . .   .

            . . .

            11.  FAILURE TO REPORT COMPANY VEHICULAR ACCIDENTS OR PERSONAL INJURY ACCIDENT FROM EMPLOYEE NEGLIGENCE . . .  [A]CCIDENTS INVOLVING COMPANY EQUIPMENT, PROPERTY . . . MUST BE REPORTED VERBALLY TO THE COMPANY AS SOON AS POSSIBLE AND IN WRITING NO LATER THAN THE SAME DAY.  DO NOT ACCEPT OR OFFER TO MAKE A SETTLEMENT WITH ANYONE.  DO NOT ACKNOWLEDGE RESPONSIBILITY OR FAULT.  WRITE DOWN ALL REQUIRED INFORMATION AND STATE SIMPLY THAT A FULL REPORT WILL BE MADE TO THE COMPANY, WHICH, IN TURN, WILL REPORT THE ACCIDENT TO ITS INSURANCE COMPANY.       (Emphasis added).

            . . .

            17. ENGAGING IN ANY CONDUCT ON COMPANY PREMISES . . . OR ON COMPANY BUSINESS WHICH COULD CAUSE UNFAVORABLE IMPRESSIONS OF THE COMPANY. 

THE GRIEVANCE RECORD OF MAY 28, 1999[1]

[B]atiste was suspended without any written document for the alleged theft of a hand truck from Cookie Crock Market.  Batiste was terminated without the company proving that it was Mr. Batiste’s intention to steal the hand truck.  At the time of the termination, neither Mr. Batiste nor the Union Representative was issued anything in writing pertaining to his termination.

 Relief Requested:  reinstatement with full seniority, loss of wages and benefits [sic].  Also, removal of anything in Mr. Batiste’s file pertaining to this incident, as there was no criminal intent and we feel this accusation is a defamation of Mr. Batiste’s character.

EXHIBITS RECEIVED: SEE EXHIBIT ADDENDUM

FACT AND TESTIMONY SUMMARY

            1.         William Billy Batiste (sometimes “Mr. Batiste” or “grievant”) was employed by The Pepsi® Bottling Group, Inc. “Company” in the Spring of 1989, was suspended [subject to further consideration] on May 20, 1999 and was terminated on May 24, 1999.  The grievant was, at the time of discharge, a Delivery Driver, one of the four classified jobs under the CBA.  A Delivery Driver delivers merchandise that has been pre-ordered or pre-sold by Advance Salesmen or Driver-Salesmen.  The quantity of merchandise to be delivered is predetermined and the merchandise is pre-billed.  Mr. Batiste drove a Pepsi® side loader truck.  He delivered merchandise by stacking it on a 2- wheel hand truck or, for smaller deliveries, by carrying the merchandise from his truck to the customer.  Pepsi® hand trucks are painted red (Cookie Crock hand trucks are blue).  On the job, the grievant wore a distinctive blue uniform with the Pepsi® emblem.

            2.         On Wednesday, May 19, 1999, Mr. Batiste left the Pepsi® site in his side loader truck at approximately 7:10 A. M.  His normal route is to service customers located south on US Highway 1 from Santa Maria.  On May 19, 1999, he was assigned an alternate route, although one he knew and serviced occasionally, north to San Luis Obispo, through that city and then to his first stop at Morro Bay, about 8 miles north of San Luis Obispo.  His first stop was scheduled at 8 A.M. at the Shell Station in Morro Bay.  There were four stops there (See Exhibit Company 3).  Next stops were in Cayucos about 5 miles farther north from Morro Bay.  US 1, a few miles thereafter, changes to a 2- lane from a 4-lane highway.  The next stop was in Cambria.  About 19 miles north of Cambria was his last stop at Piedros Blancos.  From there, his route returned southward, backtracking the same route, making some stops on the way.  His last stop on the return journey was in Cayucos.

            3.         In Cayucos at a Supermarket stop, Mr. Batiste mistakenly ran over his Pepsi® hand truck, making it difficult to move large orders of product into customer locations on his remaining route.  As he drove, a construction worker waved him to stop.  Heeding the warning, Mr. Batiste got out and then saw his red Pepsi® hand truck “stuck underneath the truck.”  It was so bent that he had to store it in one of the side doors.  At Cayucos, Mr. Batiste was between 50 and 60 miles North of the Pepsi® Bottling Plant.  There were several more stops still to be made, some of them farther north on the Highway, between Cambia and Piedros Blancos.  Some, but not all of the stops, could be hand delivered.

            4.         Mr. Batiste decided to “borrow” a hand truck from another location.  Although company policy was to call in and report the event, he did not do so.  The Cookie Crock in Cambria was the only major location remaining on his route where he knew there would be a hand truck since he had delivered there a few weeks before and had seen hand trucks there.  He parked the Pepsi® Side Loader truck alongside the store, left the motor running and went inside to borrow a hand truck.  He took a truck and, according to his testimony was looking for Kim  [Kim Kendrick, the Cookie Crock Manager].  He couldn’t find Kim to ask him for permission to “borrow” a hand truck.  The store was very busy.  As he talked to one employee he knew there he noticed that his side loader Pepsi® truck was causing problems with traffic so he quickly left to move the truck.  From his driver’s position, Mr. Batiste saw Kim walking in the front of the store but he had no place to park.  Mr. Batiste then decided to use the Cooker Crock hand truck to make his next delivery at the Exxon Station and Convenience Store.  The Exxon Store is in Cambria on the opposite side of town from Cookie Crock.  To his surprise, Mr. Batiste said, there were two hand trucks at Exxon.  An Exxon store manager [Eric, according to Mr. Batiste] offered to lend one for the rest of the route.  As Mr. Batiste was loading product on the Cookie Crock truck, a Cookie Crock employee [Ron Adams] approached him and pointed out that he [Batiste] had the Cookie Crock’s hand truck.  Mr. Batiste did not deny it and remarked that he was borrowing it [the hand truck] and said that he then opened up his bay door and showed the destroyed Pepsi® hand truck.  Adams, according to Batiste, then told him he {Batiste] had to take the Cookie Crock hand truck back to Kim Kendrick when he was finished.  Mr. Batiste finished at Exxon and then returned the Cookie Crock hand truck to Kim.

            5.         When Mr. Batiste returned the Cookie Crock hand truck to Kim Kendrick, Kim said he had already called Pepsi® to report the unauthorized taking of his hand truck.  Mr. Batiste told Kim he didn’t mean to come in and take without asking permission, that he didn’t have a place to park and just left (with the Cookie Crock hand truck).  Mr. Batiste said he had the Cookie Crock hand truck for about 20 minutes since the Exxon was about one quarter mile away.  Mr. Kendrick told him that, in effect, he had stolen the hand truck.

            The grievant finished his route North, returned the Exxon tuck, and returned to the Pepsi® plant in Santa Maria.  Upon returning to Pepsi® at about 3:30 P.M., Mr. Batiste gave the mangled hand truck to a Pepsi® mechanic, Paul Gibson, who then gave him a useable one.

            Mr. Batiste denied knowledge of any rule that he had to report a damaged hand tuck on an accident report.

            6.         Next day, May 20, 1999, Mr., Batiste met privately at the request of Mike Outlaw (Products Availability Supervisor) in Mr. Outlaw’s office.  The time was about 6:45 A.M.  Mr. Outlaw wanted to know what happened at the Cookie Crock.  Mr. Outlaw had a telephone conversation the day before with Mr. Wayne Matthews of Pepsi® about a call Mr. Matthews had received from the Manager at Cookie Crock.  The grievant then told Mr. Outlaw that he had destroyed his own hand truck, intended only to borrow a hand truck but was unable to get permission because of the circumstances that day.  Mr. Outlaw, according to Mr. Batiste, remarked that he knew he wasn’t going to steal it, that he had to finish his day, and that he was a long way from the plant.  Mr. Outlaw told him that he [Mr. Outlaw] did not condone what was done, told him to go home and that he would be suspended until he talked to other people.  Later that afternoon, in a telephone conversation between Mr. Outlaw and Mr. Batiste, Mr. Batiste was told to be at a meeting on Monday, May 24.  As Mr. Outlaw recalled the Batiste explanation:  Mr. Batiste had to go back inside the delivery location (Cayucos) after delivering product, and not realizing his hand truck was not on the back of the side delivery truck, he got into the cab and then inadvertently backed over the hand truck.  When asked by Mr. Outlaw why he didn’t’ report the incident Mr. Batiste replied that he didn’t know.  When asked why he didn’t get permission to take the hand truck (from Cookie Crock), Mr. Batiste said that he didn’t know but that “it was stupid”.  Mr. Outlaw was unsure of the exact words but that Mr. Batiste had said something like he didn’t think anybody had seen me.  Mr. Batiste told Mr. Outlaw of some presently occurring mitigating personal circumstance that may had clouded his [Mr. Batiste’s] judgment.

            Later on May 20, Mr. Outlaw personally went to Cookie Crock and interviewed both Mr. Adams and Mr. Kendrick about the event.  He sent a written report to Human Resources at Pepsi® in Torrance and a report to his unit manger, Jerry Jenkins at the Santa Maria plant.  At another time, he met with Wayne Matthews and Jerry Jenkins about the matter.  The decision to terminate was later communicated to him.

            7.         At the Thursday, May 20 private meeting with Mr. Outlaw, Mr. Batiste testified that he asked Mr. Outlaw if he should have somebody present during the meeting.  Mr. Outlaw just told him to go home.  Mr. Outlaw testified, to the contrary, that he had asked Mr. Batiste if he wanted a Union Representative present but that Billy did not take him up on the offer.  On Monday May 24, Mr. Batiste and Ray Nevarez, his Union Representative, met with Mr. Outlaw and Mr. Jerry Jenkins (Sales Manager).  A letter was sent (Joint Exhibit 3) on May 28, 1999 authenticating Mr. Batiste’s termination effective immediately.

            8.         Mr. Kim Kendrick is Cookie Crock’s manager.  His office is above the sales floor in a way to allow him to observe the activity on the floor.  While sitting at his desk, he saw a Pepsi® Employee (later identified as Mr. Batiste) enter the store.  When Mr. Kendrick looked out again, he saw a Pepsi® employee (later identified as Mr. Batiste) leaving with one of the Cookie Crock Market hand trucks (a blue painted hand truck).  He got up and went downstairs to try to catch the man but was unsuccessful.  When talking to employees about the incident, one of them, Ron Adams, made clear that he was going home to lunch and would find the Pepsi® driver and confront him.  Not long after Mr. Batiste did return to Cookie Crock with their hand truck.  Batiste said to him that he intended to return it and was borrowing it.  Mr. Kendrick was sure that Mr. Batiste told him that he had left his [Pepsi®] hand truck at his stop in Cayucos.  Mr. Kendrick told him that he [Mr. Kendrick] had reported the incident by phone to Pepsi®.  When Batiste returned, Mr. Kendrick had already received a phone call from Ron Adams from home where he was lunching to tell him that he found the driver at the Exxon station and that the driver was bringing the hand truck back and would talk to him [Mr. Kendrick].  Mr. Batiste is not the regular Pepsi driver to Cookie Crock but an occasional driver.  Mr. Kendrick recognized him though and noted he was dressed in the usual Pepsi® blue uniform.

            9.         Mr. Ron Adams, retail clerk at Cookie Crock, was the man who stopped Mr. Batiste at the Exxon station.  In conversation with Mr. Batiste, he testified that Batiste told him that he had run over his hand truck at the last delivery site and was going to take Cookie Crock’s for just a minute.  Showing Mr. Adams the mangled hand truck, Mr. Batiste added that he “couldn’t take this truck ”back to the plant or he’d get fired.”  When asked by Mr. Adams why he did not ask to borrow the hand truck, the answer was that “you guys were so busy he didn’t think anybody would notice.”  Mr. Adams then told him that his boss had seen him from the office window and then told him to take the truck back and talk to Mr. Kendrick.  Both Mr. Adams and Mr. Kendrick testified that their blue hand trucks are not allowed out of the store.

                10.       Pepsi’s Territory Sales Manager, Mr. Wayne Matthews testified.  He received the call from Kim Kendrick, Cookie Crock’s Manager about the hand truck incident.  Mr. Kendrick was upset.  The regular Pepsi® driver to Cookie Crock delivery had already been there that day before the Batiste incident.  From Mr. Kendrick he heard two different versions of what Batiste had said:  that he had left the hand truck at a previous stop and that he had run over the truck at a previous stop.  According to Mr. Matthews Mr. Batiste should have called in and reported the truck damage to his immediate supervisor so that there could have been a accident investigation filled out and a drug and alcohol screening could have been conducted.  Through Mr. Matthews, the Last Chance Agreement (Company Exhibit 1) was entered into evidence with the description of one preventable accident and other matters.  Mr. Matthew acknowledged that the two-year period had expired on December 3,1998 and that after the incident Mr. Batiste had passed the required drug and alcohol-screening test.

            11.       Jerry Jenkins, the Company’s Unit Sales Manager testified.  He described his job as general manager for the entire marketplace [served by Pepsi® Santa Maria plant].  He testified that Mr. Batiste violated Rules of Conduct 7, 11, and 17.  The decision to discharge was a group decision made by him, Mary Beth Denooyer, Human Resources Director, Wayne Matthews, Mike Outlaw, and Steve Longfield, Mr. Jenkins immediate supervisor.  He said that all had agreed that the taking of the hand truck was a theft.  At a meeting on May 24, 1999 (the termination meeting) in the conference room, Mr. Batiste and his Union Representative, Ray Navarez, Mike Outlaw and Jerry Jenkins, the witness were present.  When Mr. Jenkins announced that the violation was a clear-cut example of theft and that Mr. Batiste’s behavior was unacceptable, Mr. Batiste immediately got up and left the meeting.  On Friday afternoon of that week, May 28, Ray Navarez brought in the Grievance Report (Joint Exhibit 2).  Shortly after, Mike Outlaw delivered the May 24, 1999 termination letter to the Local Union office that same day, May 28.  He responded to a question about the dates (24th and 28th) that the termination was made clear on the 24th to Mr. Batiste and to Ray Navarez.  On Cross-examination, he remembered that Mr. Outlaw said, “We have decided to terminate your employment based on theft.”  Then Billy Batiste spoke and said he had not stolen the hand truck.  When asked if he had permission, the reply was that he didn’t know.  The entire meeting lasted five to seven minutes.  The termination letter was drafted by Mr. Jenkins but signed and delivered by Mr. Outlaw.

            When testifying as a rebuttal witness, Mr. Jenkins testified that even if Mr. Batiste’s employment record had been  “squeaky clean” he would had terminated him for the incident on May 19, 1999.

            12,       Billy Batiste testified.  He was hired in 1989 and worked as a part time merchandiser.  He became a full time employee in 1991 as a driver serving “fountain” customers sometimes known as a “syrup route.”  When classifications were changed and the pre-sold technique was installed, he became a regular driver servicing Pepsi® accounts.  His usual route was Santa Maria - Lompoc - Santa Ynez and return.  On Wednesday, May 19, 1999, he was assigned the Santa Maria through San Luis Obispo to begin deliveries north of San Luis beginning at Morro Bay to Piedros Blancos and return route.  In Cayucos at the Cayucos Supermarket (10:25 A.M. delivery) as he stood with his hand truck at the back of the truck when he realized he did not have the invoice.  He went back into the supermarket, got a copy, and returned.  But he went directly to the cab of the truck instead of first attaching the hand truck.  A construction worker hailed him down as he was driving away.  The hand truck he left at the back of the Side Loader truck when he went back into the store was stuck underneath the Pepsi® side loading truck.  The red Pepsi® hand truck was no longer useable, so he put it in one of the empty side doors of the side loader truck.  His next few deliver stops were fountain accounts and he could carry the product in without the need for a hand truck.  His next stop was at the Exxon station in Cambria.  He thought it unlikely that the Exxon station would have a hand truck he could use but did remember using a Cookie Crock hand truck there when he delivered to Cookie Crock a few weeks earlier.

            In Cambria, he parked beside the Cookie Crock because there was no room in the parking lot.  He left the flashers on and the truck running.  He went into the back room, saw 2 hand trucks, took 1, and looked for Kim Kendrick (Manager).  He couldn’t find Kim and then headed to the front of the store where he said he intended to ask another person if he could borrow a truck.  After briefly conversing with somebody he didn’t think could give permission, he noticed out the window that his Pepsi® side loader truck was causing problems for other cars.  So, he went outside and moved the truck.  There was no place to park so he decided to keep the hand truck while he went to his next stop at the Exxon Station just down the road in Cambria.  There, he saw that Exxon had 2 hand trucks.  He commented to the manager, Eric, that had he known they had trucks he wouldn’t have borrowed from Cookie Crock.  He got permission to use an Exxon hand truck for his delivery north in Piedros Blancos,

            While he was loading Pepsi® product destined for the Exxon station onto a hand truck, the employee from Cookie Crock came up and said the hand truck was from his [Cookie Crock’s] supermarket.  Mr. Batiste testified that he acknowledged that, told him he had to borrow it, and lifted up the bay door and showed him [Adams] the unusable Pepsi® hand truck he had run over.  With the admonition from the Cookie Crock employee to return the truck to Kim as soon as he was finished, the confrontation ended.  Billy Batiste took the truck back to Kim about 1/4 mile back on the other end of Cambria.

            Kim Kendrick was visibly upset when Mr. Batiste returned the truck to him.  Mr. Batiste apologized.  Kim told him that he had already called Pepsi®.

            Mr. Batiste had the Cookie Crock’s hand truck for about 20 minutes.  He used an Exxon hand truck to finish his route and then while returning south to Pepsi® at Mountain Vista, he dropped off the Exxon hand truck.  He turned in the damaged Pepsi® hand truck to the mechanic when he returned to Pepsi®.  The mechanic then gave him another.

            His recollection of the meeting the day after the Cookie Crock hand truck incident with Mr. Outlaw is different from Mr. Outlaw’s.  Mr. Batiste denied that Mr. Outlaw asked him as the meeting began if he wanted to have a union representative present.

            When asked by Mr. Outlaw about what happened at Cookie Crock, he told him he went into the store intending to borrow a truck with permission because he had destroyed his own but because of the circumstances [referring to the parking lot congestion created by the Pepsi® truck] he had to leave without obtaining permission.  He remembered Mr. Outlaw saying that he [Outlaw] knew he didn’t intend to steal it since he was one hundred miles away from the plant and did what he had to do to finish the day.  Mr. Outlaw said he didn’t condone what he had done but would have to suspend him until he heard the view of the other people involved.  Mr. Batiste denied saying, when asked by Mr. Outlaw, about the incident, “what incident.”  Mr. Batiste testified that he asked if somebody should come in with him and sit down and sign pieces of paper (as before when he was suspended) including his past experience of writing his version of events.  When asked again why nobody was in there, Mr. Outlaw told him to go home.  Mr. Outlaw said, at one point, he didn’t understand why you [Batiste] did that without asking.  Mr. Batiste explained that he was having some difficult domestic problem at home.  Mr. Batiste left believing that he was to call later that afternoon for a decision.  During a telephone call later that afternoon, there was inconclusive conversation except that Mr. Outlaw told him [Batiste] he had left a lot of people “hanging.”  On the day following, Friday, Mr. Batiste called again and was told to meet with Mr. Outlaw on Monday [May 24] at 4 P.M.

            On cross examination, Mr. Batiste admitted that he could have called from a delivery location to report to his supervisor that he had run over his hand truck but that he didn’t do that.  He said when he looked underneath the truck as he was retrieving the hand truck he could see no damage to the Pepsi® side opening truck.  Mr. Batiste insisted that the person he talked to at Cookie Crock (a box boy) had no authority to give permission and that the others were very busy.  He acknowledged not asking anybody to find the manager so he could ask for permission.  He said when he saw Kim standing in the front of the store he tried to make eye contact but couldn’t because there were a lot of cars.  On cross, Mr. Batiste replied that he couldn’t roll the window down to talk to him because he [Kim] was not that close and that Kim could not have heard over the sound of the motor.  He said the he realized that he had picked the worst time in the world to try to maneuver the Pepsi® side loader around in that area so he decided to keep going to Exxon a short distance away.  After he returned the Exxon hand truck, he made all other deliveries by hand carrying them.  Only the Exxon delivery required a hand truck because he had to park far away from the gas station.  He used the Exxon hand truck at Piedros Blancos, about 9 or 10 miles north of Cambria and then returned the hand truck to Exxon on his route back.  For his remaining 4 or 5 other accounts he hand carried product although a hand truck would have been helpful in most of those deliveries.

            Mr. Batiste testified he didn’t call his manager to report the hand truck damage because he knew from experience that his manger wouldn’t drive 100 miles to bring him a hand truck and because there was nobody else working up the coast [Central Pacific Coast].

            13.       At the termination meeting on May 24, Mr. Outlaw said “We are here to fire Billy for theft.”  Batiste then said, “How can you fire me for theft when you looked me in the eye and told me that you knew I didn’t steal it?  Mr. Outlaw explained that it didn’t matter what he [Outlaw] had said, it was a business decision.  Later as the meeting progressed, Mr. Batiste became upset and left the room.  During the middle of the confrontation,  Ray Navarez requested Mr. Batiste’ file and asked other questions.  Mr. Outlaw said that Billy is a very marginal employee. The argument over theft continued.  Mr. Batiste said the decision to terminate had been made and they [Pepsi® managers there] did not want to hear his explanation.

POSITIONS OF THE PARTIES

 Company

            Termination is the correct discipline for Mr. Batiste.   He failed to report his destruction of the Pepsi® hand truck.  He took without any permission of Cookie Crock one of their hand trucks and walked out with it.  From his office window above the sales floor, the Store Manager, Mr. Kendrick, actually saw Mr. Batiste walking away with the hand truck.  Mr. Kendrick then dashed out to stop him but was too late.  Had permission been asked it would have been denied according to testimony.  Mr. Batiste brought the hand truck back only after another Cookie Crock employee confronted him at the Exxon station.  Taking the hand truck without permission was a violation of the customer’s [Cookie Crock’s] trust.  By any reasonable definition that act constituted theft.

            The Company’s discharge decision was not arbitrary, capricious, or unreasonable.  There was an investigation and careful consideration among several people.  Mr. Matthews not only talked to Mr. Kendrick, he also drove from Santa Maria, California to the Cookie Crock’s location approximately 100 miles North of the plant to get statements from Mr. Kendrick and Mr. Adams.  Mr. Batiste’s past employment history at the Company was examined before the discharge decision was made.

            Proving intent under the strict criminal law burden of “beyond a reasonable doubt” is not necessary in this industrial setting.  Mr. Batiste took a customer’s property without permission in violation of clearly stated Pepsi® rule.  Mr. Batiste had signed the rules and had notice.  What Billy Batiste did is inherently wrong.  This was an act of theft prohibited by Company policy, a policy Mr. Batiste knew about.

            Not only did Mr. Batiste violate the rules by taking a customer’s property and by failing to report the damage to the hand truck he ran over, he also violated the rules that prohibit creating an unfavorable impression of the Company.  Surely, walking into a customer’s place of business, taking a customer’s hand truck without permission, and then walking out with it undermines the impression the customer would have of the Company.

Local Union

            Although the CBA does not include just cause for termination, just cause is implied and is required.  The Company did not meet the burden to prove just cause for termination.  The Grievant did not commit theft.  He did not take customer property with any intent to deprive the customer of his property.  He had to borrow a truck in order to complete his deliveries for his employer.  Taking the property without permission was a decision that was not smart but it was not theft.  He borrowed the hand truck with the intention to return it and he did return it.

            The Company failed to conduct an adequate investigation.  The decision to terminate was made collectively in the face of mitigating facts and statements made to Company supervisory personnel.  No evidence could establish to a reasonable Company decision maker that Mr. Batiste had any intent to steal a hand truck.  He was borrowing a hand truck to complete Pepsi’s business with the intention to return the borrowed hand truck in a short time.  There may have been poor judgment but there was no criminal conduct.

            Discharge is improper.  Mr. Batiste should be reinstated with back pay and with no loss of benefits or seniority.

DISCUSSION

The CBA in effect (May 1, 1995 Agreement) and the Applicable Rules

Article II of the CBA covers management rights.  At Section 1 is the declaration that the right to direct the working force is unqualified and gives examples of retained management rights.  At Section 2, among other things, the Company has the reserved right that it may discharge an employee who while on duty is guilty of drunkenness, insubordination, or violation of Company rules and regulations

Under Article XIX (General Provisions), Section 10(c)(a) (Rights Reservation), a management-reserved right is to conduct and operate the business as it has been operated before and in a manner it deems fit, proper, and fair to employees.  (Emphasis added).

In the CBA, there is no specific Article or Section in the CBA addressing discharge or discipline including progressive discipline.  However in the first paragraph of the Company Rules there is set forth a progressive discipline schedule and clear disclosure that the first or any subsequent rule violations that may result in discharge (discharge for a first violation would likely be only for an egregious infraction).  Discipline or termination is unambiguously set out and is based upon the frequency and seriousness of the offense    Normally, under the scheme, two (2) interviews for the same offense or three (3) for various offenses within a one (1) years period may make an employee subject to termination.

The Company Rules consist of 5 pages and were signed by Billy Batiste, the Grievant, on May 12, 1989.  Articles 5, 11, and 17 were specifically charged as being violated by the Grievant and will later be discussed.

Due Process and Just Cause for Termination

Just cause for discharge is not explicitly spelled out in the CBA.  The CBA vaguely refers to just cause by language within its reserved management right to operate the business, as it may deem fit, proper, and fair to employees.  (Emphasis added).  CBA Article XIX, Section 10 (c).

A well-established principal of employment and labor law is to require that an employer have just cause before the employer discharges an employee.  See, generally, Discipline and Discharge in Arbitration, Ch. 2 , BNA Books (N. Brand, Ed. 1998).  There is no strict set of rules.  Just cause analysis includes considering due process and requires that employers treat employees fairly during the disciplinary process.  Just cause is a balancing of the employer’s objectives and an employee’s obligation to give satisfactory work.  The employee’s obligation is regular attendance, obedience to reasonable work rules, giving quality of work, avoiding conduct that would interfere with the employer’s ability to operate the business successfully.  In return, discipline of employees by the employers goals are to rehabilitate a potentially satisfactory employee, deter similar misconduct and protect its ability to operate its business and deal with its customers successfully with a qualified working force.  The essence of what is “just cause” was succinctly described by Arbitrator Wolff in Indiana Convention Center & Hoosier Dome, 98 LA 712, 719 (1992) as

[t]he Employer in carrying out its inherent or express right to discipline employees, must do so in a manner that is not unreasonable, arbitrary, capricious or discriminatory.

 

Overwhelmingly, arbitrators imply “cause” or “just cause” into management rights language.  If a company intends to exclude just cause discipline from its reserved management rights, the exclusion must be made explicitly clear in the CBA.  Van Waters & Rogers and Teamsters Local 407, 102 LA 609, 611 (Feldman, 1993).  See also, SFIC Properties, Inc. v. International Association of Machinists & Aerospace Workers, District Lodge 94, 103 F.3d 923, 925-926 (9th Cir. 1996), cert denied 522 U.S. 823I consider just cause to be required in this disciplinary matter.  The burden of proof is on the Company.  The measure of the burden will be discussed later.

Due process or industrial due process is a term of art describing elements of fundamental fairness in the disciplinary process.  The requirements I look for include whether there was (1) timely action by the employer; (2) a fair investigation; (3) a precise statement of the charges or violations; (4) a chance for the employee to explain before discipline is imposed.  Two other elements often included in arbitration analysis are to make sure that the employee is not punished twice for the same offense and whether or not the Weingarten right has been properly afforded when a classified employee reasonably believes discipline would likely result from a proposed  discussion initiated by  a supervisor.  These factors are tempered by my unexpressed “you did what!!  Test” arising from my experienced skeptical thoughts as evidence gradually unfolds in each case.

Here, the Grievant was accused of taking the property of a customer without permission.  The property taken was a blue hand truck belonging to Cookie Crock.  The taking was quickly reported by the Cookie Crock Store Manager in a telephone call from Cambria, California to Pepsi’s sales manager at Santa Maria shortly after the occurrence.  The substance of the call was then related to Mr. Batiste’s immediate supervisor, Mr. Outlaw.

 Mr. Outlaw confronted Billy Batiste early the next day about what had happened.  The Grievant acknowledged taking the Cookie Crock hand truck, acknowledged backing over his Pepsi® hand truck and explained his version of what happened.  Mr. Batiste explained that he needed to finish the delivery route; had no intention of stealing the hand truck only to borrow it; that he had taken it back to Cookie Crock; and that he was far away from the Santa Maria plant at the time he ran over his own Pepsi® hand truck.

The testimony was inconclusive about whether or not there was clear or timely warning requiring the need for union representation if a suspension could be the result of the meeting.  Mr. Outlaw testified, that he gave Mr. Batiste the opportunity to get a union representative but that Mr. Batiste did not take him up on that.  However, Mr. Batiste insisted in his testimony that he reminded Mr. Outlaw that when he was being suspended before, that a union representative was with him and he clearly was told why he was being suspended.  But during the ensuing office conversation, Mr. Outlaw said according to Mr. Batiste in effect, that he knew Mr. Batiste wasn’t going to steal the hand truck because he had to finish his day and was a hundred miles away from the plant.  According to Mr. Batiste, Mr. Outlaw said he didn’t condone what Billy had done but had to suspend him until he found out the story from the other side [Cookie Crock’s version].  I find that Mr. Outlaw unintentionally lulled Mr. Batiste into not insisting on Union Representation at the May 20 meeting.

The same day, Mr. Outlaw drove north to Cambria to investigate and interview the people involved.  Armed with his investigative notes and with his impressions, he met with supervisory personnel.  After consideration of the incident and the employment history of Mr. Batiste, Pepsi management personnel decided to discharge Mr. Batiste.  The discharge meeting occurred on May 24.  Mr. Batiste and a representative of IBT’s local union 381 were present.

I turn to just cause in this case and the necessary burden of proof.  The burden is a heavy one.  Few arbitrators’ decisions allow the least stringent “preponderance of the evidence” test to govern discharge cases.  Some, I among them, prefer the “clear and convincing evidence” test.  A large number of arbitrators insist on the “beyond a reasonable doubt” burden.  See, for example, Marlin Rockwell Corp., 24 LA 728, 729-730 (Somas, 1955) and Dockside Machine & Boiler works, Inc., 55 LA 1221, 1226-1227 (Block 1970).  Discharge ends a person’s livelihood earned from the discharging employer.  In some industries, a discharge is almost a death knell for other employment in that particular industry.  In other circumstances, the stigma of discharge stays with an employee, particularly when theft is the grounds for discharge.  My preference for the clear and convincing evidence is because it is a significantly heavy burden but grants more leeway to an employer who uses the discipline for an egregious infraction, even a first infraction, as necessary to maintaining control of the classified working force and for such reasons as safety at the work site, or for preserving the expected public image of law enforcement or public safety personnel.  See City of Las Vegas and International Association of Firefighters Local 1285 (Robinson, 1995).

I consider now at whether Pepsi® met its burden of just cause in discharging Billy Batiste or whether it violated the CBA in discharging Billie Batiste.  The violations charged arise under Pepsi Rules 5 (Theft of Customer’s Property); 11 (Failure to report company vehicular accidents or personal injury resulting from employee negligence or actions involving company equipment or property); and 17 (Engaging in conduct that could cause unfavorable impressions of the Company).

Company Rule 5

Pepsi® terminated Mr. Batiste for theft of a hand truck owned by Cookie Crock, a customer of Pepsi®.  All definitions of theft, whether under common law or statutory law, require an element of intent not only to take but also to deprive the owner of the property.  Intent turns on the credibility of the witness who took the item and the events and circumstances of the taking.

Indeed, Mr. Batiste took a Cookie Crock mobile hand truck and took it without permission.  He took the hand truck because he no longer had a useable hand truck to effectuate delivery of Pepsi® merchandise to remaining Pepsi® customers on the delivery route that day.  He had negligently backed over his Pepsi® red hand truck on an earlier delivery and needed a hand truck to continue on Pepsi’s scheduled delivery route.  Cookie Crock was so busy, Mr. Batiste explained, that he couldn’t get permission.  Moreover, he was maneuvering the over the roadside loader Pepsi truck in a congested parking area around Cookie Crock.  Mr. Batiste was not very persistent in trying to find a person who could give permission for him to borrow a hand truck.

Once he had the blue Cookie Crock hand truck, he used it for his next scheduled Pepsi® delivery at the Exxon Station, at the opposite end of Cambria, California from the Cookie Crock location.  He said he had the truck for 20 minutes.  Mr. Adams, a Cookie Crock employee, was going home to lunch and volunteered to find Mr. Batiste and get the hand truck back.  Mr. Kendrick, the Cookie Crock manager and Mr. Adams had talked after Mr. Batiste wheeled the mobile truck out of Cookie Crock.  The Pepsi® Daily Document Report shows “11:55 Exxon Cambria” and helps establish the time.  The same Daily Document Report shows that there were five deliveries yet to be made including the farthest one North at Piedros Blancos, California, recorded on the Document Record at 12:20 P.M.  After Mr. Adams found Mr. Batiste at Exxon and told him to take the hand truck back to Cookie Crock, Mr. Batiste returned the hand truck shortly after and continued northward to make delivery in Piedros Blancos with a hand truck borrowed from the Exxon Station with the manager’s permission.

A blue hand truck is not a likely object to have been stolen had Mr. Batiste intended to steal.  A thief would have to consider that its color, blue, was different from the Pepsi’s red truck and would have instantly been spotted as “different” causing questions or detection when the truck returned to the Santa Maria plant.  There is little to no market value for a used hand truck even with better than usual wheels as is a Pepsi® hand truck.  Theft by a long-term employee under the circumstances here is implausible.  What is more likely is that Mr. Batiste was credibly attempting to get his work for his employer done and he knew he was too far away from the Pepsi plant at Santa Maria to expect Pepsi® to replace the mangled red Pepsi® hand truck.  He intended only to borrow the Cookie Crock hand truck, as was his explanation to his supervisor the morning after.  The circumstances and the evidence establishes to my satisfaction that Mr. Batiste testified credibly that he did not steal a hand truck belong to Cookie Crock with intent to keep it -- only  to  borrow it for a short period of time.  He borrowed the hand truck in the furtherance of Pepsi business and not for his personal gain.

Rule 11

There is no merit to the claim that Mr. Batiste violated Company Rule 11 by failing to report the damage to the red Pepsi® hand truck.  The hand truck’s monetary value is surely less than $100.  The hand truck is a necessary tool used by every Classified Delivery Driver.  The mangled hand truck was handed to a Pepsi® Mechanic when Mr. Batiste returned to the plant after his route was finished on May 19, 1999.  Another hand truck was quickly given to Mr. Batiste and placed on or in the Side Loading Pepsi Truck.  Mr. Batiste testified that he had no indication that the mangling of a hand truck was to be reported.  That the mechanic was working on another hand truck at the time indicates that the mobile hand trucks are frequently repaired or replaced.

My reading of Rule 11 is that it is intended to cover an accident between a Pepsi vehicle, a capital equipment item and a third party’s equipment or between Pepsi capital equipment; damaging other Pepsi® capital; equipment because of the negligence of a Pepsi® employer; or to cover an accident involving personal injury to a third party involving Pepsi® capital equipment.  This view is reinforced by the language cautioning the Pepsi® employee not to accept or make a settlement offer or acknowledge fault or responsibility.  Had there been any damage to the Pepsi® Side Loader when it was backed over or onto the hand truck causing it to become bent and unusable, I would differently view Batiste’s failure to report the hand truck damage.  There was no evidence introduced by Pepsi® to support any damage to its side loader truck.  Damage to an inexpensive mobile hand truck under the circumstances of May 19, 1999 is trivial and does not rise to the level of an actionable work place offense or event contemplated in Rule 11.  While it is true that Mr. Batiste had notice of the rules (signed for them on 1989), it is unlikely that he could, from the written rules, be alerted that an inexpensive hand truck was intended to be equipment covered by the rule.

Rule 17

As Mr. Kendrick say his firm’s hand truck being taken by a Pepsi® employee, he quickly but unsuccessfully tried to stop Mr. Batiste from leaving with the hand truck.  Mr. Kendrick was justifiably angry and quickly called Pepsi® to complain.  Before an hour had elapsed, Mr. Batiste had returned the blue hand truck to Mr. Kendrick. The rule’s subjective language, “could cause unfavorable impression of the Company” is sufficiently broad to cover almost any circumstance including the event here.  Mr. Kendrick acknowledged that when Mr. Batiste returned with the Cookie Crock hand truck that told him [Mr. Kendrick] that he had intended to return the hand truck and was only borrowing it.  Mr. Kendrick replied that he “basically stole the hand truck.”  Mr. Kendrick testified that Mr. Batiste said he had left his truck at his last stop in Cayucos.

Mr. Kendrick may have been upset about Pepsi for a short time but was able to vent his concern when he talked to the Pepsi sales manager by phone just after the incident and when Mr. Batiste returned the hand truck shortly after.  Next day, Mr. Outlaw went to Cambria and interviewed Mr. Adams and Mr. Kendrick.  Pepsi’s concern was surely evident to Mr. Kendrick.  There is nothing to suggest any lasting bad impression that would damage the business relationships among Mr. Kendricks, his employer and Pepsi®.

The stated reason for the discharge in Exhibit J-3 was “theft. “  I move to that issue.

The Company concluded that the temporary taking was a theft.  The Company argues that discharge for theft is appropriate and should be upheld here.  Employee theft, in industrial relations, is not treated lightly.  The Company properly points out that theft by an employee from his employer is terminable even when the item stolen is of minute monetary value or when the theft is of compensable time by misrepresenting time worked.  In North view Village, 95 LA 104 (Cibolla, 1990) an employee received more pay mistakenly than was due her.  She knew of the overpayment but never paid it back.  Even though she belatedly said she intended to call her employer about the unearned over payment she never took steps to do so.  Kroger Co., 104 LA 234 (Cabe, 1995) and Food Giant, Inc., 79 LA 833, 834 (Dallas, 1982) are illustrative of the long standing common law in employee-employer relations that theft even when of trifling value is not to be tolerated.  As arbitrators grapple with the application of the facts to appropriate discipline in the work place, proven theft is never treated lightly or brusquely forgiven.

Discharge for theft is appropriate provided discharge is carried out within the disciplinary provision of the CBA or, as here, the CBA and its necessarily included rules and the employee’s action has been proved to be a theft.  But what Mr. Batiste did was not an act of theft qualifying for discharge -- he borrowed, used, and promptly returned the hand truck belonging to a customer.  He did not take the hand truck with any intent to keep it, he borrowed the truck so he could finish Pepsi’s business on that delivery route.

What Mr. Batiste did wrong was fail to call his supervisor to report the damage and get advice on what to do about replacing the mangled Pepsi® hand truck.  Further by hurriedly taking matters into his own hands, he could not get his supervisor’s idea of what to do when Mr. Batiste was so many miles away from the Pepsi® plant and still had more deliveries to make before he could return the 70 or more miles back to the plant.  But his judgmental error did not amount to a theft.  Mr. Batiste did what he did in order to complete the work of his employer -- delivering Pepsi® merchandise to the remaining Pepsi customers where a hand truck delivery of goods was necessary.

Faced by a Hobson’s choice to complete the route as the more important job duty or stop, report the problem, and wait for a hand truck from Pepsi®, he chose to borrow a hand truck without permission.

Mr. Batiste used poor judgment when he borrowed Cookie Crock’s hand truck without permission even though his use was for only a short time.  His conduct did not amount to theft.  The employer violated the agreement by discharging Mr. Batiste under all the circumstances of this case.  Discharge is too harsh a remedy for Mr. Batiste’s conduct on May 19, 1999.

The Company did exercise its right to consider Mr. Batiste’s past employment history when making its decision to discharge.  There was one serious infraction in 1996 embodied in a Last Chance Agreement dated in December 1996.  Under the agreement, Mr. Batiste could be terminated for any violation of Company rules during a 24-month continuous period.  But by own terms, the 24-month continuous period ended on December 3, 1998.  Underlying the agreement was that Mr. Batiste forgetfully drove away from a diesel pump after pumping fuel into his truck without first removing the hose nozzle from his truck and putting it back onto the diesel fuel pump.  Mr. Batiste did successfully pass the mandatory drug and alcohol test administered because of the incident.  Here, the Company apparently gave little or no weight to Mr. Batiste’s dilemma when he was faced with having no hand truck to deliver the remaining Pepsi® customer accounts when he was nearly 70 miles away from the Pepsi® plant.

I hold that Mr. Batiste did not violate Rule 5 in that he did not steal (commit a theft) of the property of a customer.  Mr. Batiste failed to report his damage the Pepsi® hand truck promptly.  I find though that the damage to a hand truck was of so trivial a nature as not to require a formal notice or testing for alcohol abuse or the like as contemplated by Company Rule 11.  I find that Mr. Batiste’s conduct was cause for only a temporarily unfavorable impression of Pepsi® by Cookie Crock’s Manager.  Prompt attention to Cookie Crock’s complaint likely erased any lasting bad impression.

CONCLUSION

The Company violated the Contract when it discharged Mr. Batiste given all the circumstances of this case.

 Discharge was too disproportionate and severe a penalty.  Rarely do I substitute my judgment for that of the employer.  However, here, the higher supervisors gave too little weight to the dilemma faced by Mr. Batiste.  He was confronted with maintaining and completing his Pepsi® mandated delivery schedule but without a useable hand truck.  Had the problem occurred at a reasonably close proximity from the plant, getting another from the plant or having one taken to him from the plant would have been an easy solution.  But Mr. Batiste was more than 60 miles away and still had more deliveries to make.  One or more remaining deliveries required the use of a hand truck, and would take him even farther north on the highway before he could return to the plant. 

 By quickly taking matters into his own hands, Mr. Batiste lost the experience and value of consulting with his supervisor about the hand truck problem.  I am convinced that the size of his Pepsi® side loader truck and the congestion in the Cookie Crock parking lot contributed to Mr. Batiste’s not getting permission to use a Cookie Crock hand truck.  What Mr. Batiste hurriedly did was wrong and is not completely excused by the circumstances.  Earlier that morning, he negligently damaged his Pepsi® hand truck, the event setting the problem into motion.  But his error does not, in my opinion, justify as drastic and final a remedy as discharge.

AWARD

1.  Mr. Batiste’s discharge is reduced to a one-month suspension (May 20 to June 20) without pay.  Mr. Batiste shall be reinstated without loss of seniority or benefits.

2.   There shall be no interest assessed against Pepsi® for the back pay due.

. . .

3.   Any direct or indirect reference to “theft of Cookie Crock’s hand truck” shall be stricken from Mr. Batiste’s personnel file.

                                                                  DATED this 15th day of February 2000

 

                                                                   ________________________________

                                                                                   David K. Robinson

                                                                                   FMCS Arbitrator

[1]               Quoted in relevant part.

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