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Title: Fred Meyer Inc. and Bakery, Confectionary, Tobacco Workers and Grain Millers Local 114
Date: April 2001
Arbitrator: Sandra Gangle
Citation: 2001 NAC 116

FEDERAL MEDIATION AND CONCILIATION SERVICE

BEFORE SANDRA SMITH GANGLE, ARBITRATOR

 

In the Matter of the Arbitration                                     )

between                                                                       )

BAKERY, CONFECTIONERY, TOBACCO          )

WORKERS and GRAIN MILLERS,                      )

LOCAL 114                                                                )    FMCS Case No. 01-03472

                                                Union,                          )    DECISION AND AWARD

                        and                                                       )

FRED MEYER, INC.,                                               )    Vickie Kroger Grievance      

                                                Employer                      )                                                          

                                                                                     )                                                          

_________________________________________  )

 

Hearing Conducted:                           February 27, 2001

Representing the Union:                     Terry W. Lansing, Business Agent
                                                         BCTGM Local 114
                                                         901 SE Oak Street, Suite 104
                                                         Portland, OR  97214

Representing the Employer:               Cynthia Thornton, Asst. Vice-President
                                                         Fred Meyer, Inc.
                                                         P.O. Box 42121
                                                         Portland, OR  97242

Arbitrator:                                         Sandra Smith Gangle
                                                         Sandra Smith Gangle, P.C.
                                         
                P.O. Box 904
   
                                                      Salem, OR  97308

Date of Decision:                               April 5, 2001

 

   BACKGROUND

            This matter came before the arbitrator pursuant to a collective bargaining agreement, effective between June 15, 1997 and June 17, 2000, between the Bakers Union, Local 114 (hereafter “the Union”) and Fred Meyer, Inc. and an extension agreement, dated June 17, 2000.  Jt. Ex. Nos.1 and 1A. 

            A grievance was filed following the discharge of the Grievant on August 26, 2000.  See Jt. Ex.  No. 2.  The parties, having been unable to resolve the matter during the grievance procedure, mutually selected Sandra Smith Gangle, J.D., of Salem, Oregon, through selection procedures of the Federal Mediation & Conciliation Service, as the labor arbitrator who would conduct a hearing and render a decision in the matter.

            A hearing was conducted on February 27, 2001 in a conference room of the Northwest Food Employers, Inc., Tigard, Oregon.  The parties were thoroughly and competently represented by their respective representatives throughout the hearing.  Fred Meyer, Inc. (“the Employer”) was represented by Cynthia Thornton, Assistant Vice-President.  The Union and the Grievant were represented by Terry Lansing, Business Agent, BCTGM, Local 114.

            There were no objections to procedural or substantive arbitrability of the stipulated issue regarding the Grievant’s discharge.  The Employer raised an objection to the substantive arbitrability of a second issue that had been identified by the Union, involving an alleged reclassification of the Grievant’s position.  The arbitrator informed the parties that she would not have jurisdiction to decide the substantive arbitrability issue unless the parties agreed to grant her such jurisdiction.  Otherwise, a court of law would have to hear and decide whether the alleged reclassification was an issue that was covered by the parties’ collective bargaining agreement and was therefore arbitrable. 

            The parties then agreed that the arbitrator could proceed with the hearing on the stipulated issue only.  They agreed that the reclassification issue would be stayed and could be raised separately at a future time by the Union, if it should choose to do so.

            The parties were each afforded a full and fair opportunity to present testimony and documentary evidence in support of their respective positions.  The arbitrator tape-recorded the hearing as an adjunct to her personal notes.  The parties agreed that the tapes would remain the arbitrator’s personal property and would not be considered an official record of the hearing. They would not be available to any party following the hearing for any purpose.

            The following witnesses appeared and testified under oath and were subject to cross-examination: 

            (a) For the Employer:  Heather Keever and Keith Morris; 

            (b)  For the Union:  Vickie Kroger (Grievant) and Mary Ellen LaBrasseur.

            At the close of the hearing, the parties elected to present oral closing argument, rather than written briefs.  The arbitrator officially closed the hearing following the closing argument.  The parties stipulated that the arbitrator would have a two-week extension of the 30-day time limit that is set forth in the parties’ collective bargaining agreement for submission of her Decision and Award, as she would be out of the country during most of the month of March.

            The arbitrator has considered and weighed all the testimony and evidence offered by the parties at the hearing and has carefully considered the final arguments of the parties in reaching her decision.

STATEMENT OF THE ISSUE

            The parties stipulated that the issue before the arbitrator in this matter is as follows:

            Did the Employer violate Article 4.6 of the parties’ 2000 contract when it discharged the Grievant? 

          If so, what is the remedy? And who is the losing party?  

    RELEVANT CONTRACTUAL PROVISIONS

 

ARTICLE II-UNION SECURITY

 

2.7       This Agreement shall not apply to the bakery department manager who shall be exempt from the Union and the terms of this Agreement.   Nothing in this Agreement shall be construed to prohibit anyone in a supervisory capacity from performing any work normally done by bargaining unit employees.

2.8       . . . . [T]he parties recognize the necessity of providing a continuity of operations, high productivity and service to the Employer’s customers.  Therefore, the parties understand that the Employer may utilize non-bargaining unit employees, including but not limited to, bakery sales and retail grocery employees, to perform work that crosses “classic” bargaining unit lines.

 

ARTICLE IV—SENIORITY

4.6.            Seniority shall be terminated by:

                        a. Discharge for cause

                        b. Voluntarily quitting

                        c.  Periods of absence in excess of six (6) months.

ARTICLE IX—VACATION

 

9.4                 Vacations shall be taken as mutually agreed between the Employer and the employee providing that the first two (2) weeks of a vacation may be consecutive at the employee’s option.  Preference in the scheduling of vacations shall be given according to seniority.

9.5            Vacation schedules shall be posted by April 15th of each year.

 

ARTICLE XVII – ADJUSTMENT BOARD AND PROCEDURE

17.3     Jurisdiction and Authority.                (a)  The jurisdiction and authority of the arbitrator shall be confined exclusively to the application or interpretation of a specific provision or provisions of the Agreement at issue between the parties.  The arbitrator shall not have the right to alter, amend, delete, or add to any of the terms of this Agreement.  The arbitrator may consider the entire Agreement in making his award.

            (b)        The Arbitrator shall have the authority to resolve the grievances or dispute, and in cases where it is concluded that an employee has been improperly discharged, the Arbitrator may reinstate the improperly discharged employee.  The Arbitrator shall not render an award which requires the Employer to pay an improperly discharged or suspended employee for time that employee has not actually worked in excess of the wage and benefits the employee would have earned had he worked his normal schedule during the ninety (90) calendar days immediately following the date of the discharge; nor shall the Arbitrator be entitled to require the Employer to pay benefits on behalf of an employee for a time period the employee has not actually worked in excess of the ninety (90) days allowable herein.

            (d)        The Award of the Arbitrator shall be written and shall be final and binding on both parties.  The expenses and fees of the arbitrator shall be borne by the losing party, as determined by the Arbitrator, who shall specifically rule on this issue. 

17.4     The Arbitrator shall render the decision and award within thirty (30) days of the close of the hearing or the receipt of the briefs, whichever is later; any Arbitrator failing to comply with these provisions shall not be compensated except for actual costs incurred.  The moving party shall notify the Arbitrator of this provision during the selection process. . .

                                                                        Jt. Ex. No.1.
 

  STATEMENT OF THE FACTS

            The undisputed facts of this matter are as follows:

1.      The Grievant was hired by the Employer in 1995, after a hiatus from a previous six-year period of employment with the Employer.  Beginning on February 16, 1998, the Grievant  worked in the Bakery Department of the Scappoose store.

2.      The Grievant’s immediate supervisor was Heather Keever, Bakery Manager, from July of 1998 until her discharge in August of 2000.  Keever’s supervisor was Food Manager Keith Morris.  There were four regular employees in the bakery, including Keever and the Grievant.

3.      Keever handled the scheduling of employees in her department.  She usually posted a hand-written schedule on Tuesday for the following workweek.  Then each Thursday, the Food Manager would post a computer-generated schedule, based on Keever’s schedule.    See, e.g. Employer Ex. Nos. 3 and 4. 

4.      Keever kept a large monthly desk calendar on her desk for the purpose of receiving advance requests for vacation time by her staff and for other notes.   It is undisputed that employees could make vacation requests at any time. The process for ensuring approval of vacation requests is in dispute in this matter and will be discussed elsewhere in this report.

5.      Sometime in July of 2000 the Grievant wrote her name on several boxes on the August page of Keever’s desk calendar[1], indicating that she wanted to take a week-long vacation.  She had been offered the opportunity of going on a trip to Hawaii with a friend and she wished to accept the offer.  She did not inform Keever verbally of the request.

6.      Keever learned of the Grievant’s vacation request on or about July 31, when she tore off the July page on her calendar.  She noted that the Grievant was requesting the same time period that had been requested for her own vacation.  See Employer Ex. No. 1(a).  She spoke to the store’s KSP ( key personnel specialist) about the Grievant’s vacation request and was told not to discuss it with the Grievant until a meeting could be arranged with Manager Morris.

7.      On August 9, 2000, at 5:00 p.m., a meeting was held between Morris, Keever and the Grievant.  Several issues were discussed, including the Grievant’s vacation request.  The meeting ended when the Grievant requested Union representation.

8.      The computer-generated work schedule for the week of August 13-20 was posted on or about August 10.  That document showed that the Grievant was scheduled to work on August 13, 14, 18 and 19.  See Employer Ex. No. 3.  The Grievant actually worked on August 13, 14, 15 and 16.  Her shifts on the 18th and 19th were covered by other employees from the store.

9.      Keever sent out an e-mail request to other store departments asking if anyone wished to cover in the bakery department during the week of August 20-27.  There were no responses to that request.

10.  Mgr. Morris posted the schedule for the week of August 20-27 on Thursday, August 17, showing that the Grievant was scheduled to work on August 20, 21, 22, 23, 26 and 27.  See Employer Ex. 4.  She did not work on the first four of those days as she was in Hawaii. 

11.  The Grievant returned from her trip and reported to work on August 26.  At that time, Mr. Morris met with her and asked her if there was any reason for her failure to report on August 20-23 besides her having taken a vacation.  When she said there was no other reason, Morris gave the Grievant her final check and a Notice informing her that she was being terminated for taking an “unscheduled/unapproved vacation” on the dates of August 19, 20, 21, 22 and 23.  See Employer Ex. No. 7

12.  The Grievant filed a grievance over her termination.  It is that grievance that is the subject of the instant arbitration.

POSITIONS OF THE PARTIES

            A.            The Employer:            The Employer contends it had cause, as required by the parties’ collective bargaining agreement, to discharge the Grievant.  She took an unscheduled, unapproved vacation during the week of August 20, 2000 and missed four days of work.

            The Employer contends that it notified the Grievant on August 9 that her requested vacation was not approved. She would be required to work as scheduled unless she could find coverage for any shifts that she wanted to take off.  Her manager notified her that, if she failed to obtain coverage and then took the vacation anyway, she would be terminated.      

            The Grievant’s supervisor tried to help her find coverage, by sending out an e-mail request.  Coverage was only found for the dates of August 18 and 19, however.  No coverage was found for the dates of August 20-23.  When the Grievant failed to report on those days, she violated her obligation to work as scheduled.  Her supervisor then had to sacrifice her own vacation, which had been pre-approved, to cover for the Grievant’s absence. 

            In the alternative, the Employer contends that the Grievant voluntarily resigned from her position when she failed to report for work during the stated time period.  The Employer points out that the Fred Meyer Employee Responsibilities document, a copy of which the Grievant received upon her hire in December of 1995, provides that the following conduct is considered as a voluntary resignation or quit:

            2. Refusal to work a scheduled shift.

            3.  Failure to personally notify the PIC of an absence prior to the scheduled work shift.    

            4.  Failure to return to work from an approved leave of absence as scheduled.

                                                                           See Employer Exhibit No. 6.  

            The Grievant was told that coverage was available for her on August 18, but no coverage had been found for August 20-23.  Therefore, when she failed to report for those scheduled shifts, she effectively demonstrated that she had resigned from her position.

            B.             The Union:             The Union denies that the Grievant resigned or quit.  Also, the Union contends that the Employer did not have cause to discharge the Grievant when she took her vacation and went to Hawaii. 

            First of all, the Employer failed to comply with the contractual requirements of scheduling vacations according to seniority and of posting the vacation schedule by April 15 of the year.  Second, the vacation process was not written down anywhere and it was unclear and arbitrary as applied to the Grievant in this instance.  It was the Grievant’s reasonable understanding that all she had to do to schedule a vacation was write her request on the supervisor’s calendar.  Unless such a request was expressly denied, it was approved. 

            The Grievant followed the established process when she requested her vacation in this case.  She believed her supervisor would obtain coverage for the days she would miss.  No one warned her that she would be discharged for failure to report.  Therefore, the discharge was improper and should be set aside.

            The Union also raises a due process argument.  Management had already prepared the Grievant’s final paycheck and termination notice before the Grievant returned to work on August 26.  This showed that Management made its decision to discharge the Grievant without conducting a proper investigation.  Also, the reason that was given for the discharge was not the real reason at all.  Management had other unstated reasons for firing her, such as a personality conflict between the Grievant and her supervisor and/or some customer complaints.  Yet none of those reasons had been adequately investigated.

            The Union asks the arbitrator to grant the grievance, reinstate the Grievant to her position and order that she be made whole for her losses, to the extent permitted by the labor contract.

DISCUSSION

            I.  Did the Grievant resign or quit?

            The Employer has contended that the Grievant voluntarily resigned from, or quit, her position with Fred Meyer.  Indeed, if she did intend to resign, none of the concepts that are associated with discharge for cause would be applicable.  Therefore, the arbitrator will begin by analyzing this issue.

            The following examples of voluntary resignation are included in the Employer’s list of Employee Responsibilities, a document which the Grievant signed upon her initial hire:

            1. Walking off of the job.

            2. Refusal to work a scheduled shift.

3.  Failure to personally notify the PIC of an absence prior to the scheduled work shift  (First incident – 3day suspension)  

            4.  Failure to return to work from an approved leave of absence as scheduled.

            5.  Failure to return to work when called back from lay-off.

                                                                                    Employer Ex. 6(a).

 

            According to Elkouri and Elkouri, How Arbitration Works, 5th ed. (BNA, 1997) at 894-95, an employee’s intent to resign may be proven by analyzing the objective facts and circumstances that existed at the time.  If those facts were “such as to lead management reasonably to conclude that intent to resign exist[ed], the matter may be treated as resignation even though the individual never actually state[d] any intent to resign”.  Id.  The question for the arbitrator, therefore, is whether Management reasonably believed in this case that the Grievant intended to resign.

            The evidence shows that the Grievant made a written request to take vacation time off from her job, so that she could accept a friend’s offer of a free trip to Hawaii.  She wrote her name on her supervisor’s desk calendar sometime in July, showing that she wanted to take the vacation August 17-24.  On each of the boxes for those dates, she wrote the words “Vickie off”.  On some of the boxes she also wrote “Vacation-off to H”.  On the box for August 17, she drew a “smiley” face and wrote “Please-tickets to Hawaii”.   See Employer Ex. No. 1(a).

            On August 9 she met with her manager and supervisor to discuss the vacation request.  There was some discussion regarding finding “coverage” for the Grievant’s requested absences.

            The Grievant did not demonstrate at any time that she intended to sever her employment relationship with Fred Meyer. At all times she indicated she only wanted a “vacation”. When she returned from her trip, she called to ask when her next work shift was scheduled and, upon learning that she was scheduled to work on August 26th, she reported for work on that day. 

            The facts and circumstances do not show that the Grievant voluntarily resigned from her job.  Her conduct in failing to show up for work on August 20-23 cannot even be described as “failure to personally notify the PIC of an absence prior to the scheduled work shift”.  The arbitrator is persuaded that both the Grievant’s supervisor and manager were well aware, from their conversations with the Grievant and from her conduct, that she was on a trip to Hawaii, which she considered a “vacation” and that she intended to return to work when she arrived back in Oregon.

            The Grievant was discharged for failure to report to work as scheduled.  Therefore the Arbitrator must determine whether the Employer met the contractual standard for the discharge.

            II.  Was the Grievant discharged for cause?

            The parties agreed in Article 4.6 of their labor agreement that an employee’s seniority could be terminated by “discharge for cause”.  There is no definition of “cause”, however, in the agreement and neither party offered any negotiation history to support their respective contentions regarding the correct interpretation that should be given to the word “cause”. 

            The Employer’s representative contended that the standard of “cause” simply required the Employer to avoid arbitrary or capricious conduct in making the discharge decision.  She pointed out that the arbitrator is expressly prohibited in Article 17.3 from adding to, altering, or amending any language of the collective bargaining agreement. 

            The Union, however, argued that “cause” should be interpreted in the same manner as “just cause”, “good cause” or “proper cause”, which are phrases commonly found in other labor agreements and for which there is a long-standing body of arbitral authority. 

            The U.S. Supreme Court has held that an arbitrator may not dispense his or her own brand of industrial justice.  The arbitration award must “draw its essence” from the parties’ collective bargaining agreement.  Steelworkers v. Enterprise Wheel & Car, 80 S.Ct. 1358 (1960).   Where, however, there is no specific definition of a term in a collective bargaining agreement and there is no evidence of pre-contract negotiations regarding the meaning that the parties themselves assigned to the term when they selected it, custom and practice in the industry, or in labor relations in general, may be relied upon to assist in defining the term.  

            The great majority of labor agreements require “just cause”, “justifiable cause”, “proper cause” or, simply, as in this case, “cause”, to support an employer’s decision to implement disciplinary action or discharge.  It has generally been held that, absent a specific definition to the contrary in the particular collective bargaining agreement that contains the term, there is no significant difference between those standards.  They should all be treated in the same way as the most common standard, “just cause”.  See, Worthington Corp., 24 LA 1, 6-7 (Arb. McGoldrick, 1955); see also, cases cited in Elkouri, How Arbitration Works, supra at 887.

            Arbitrator Carroll Daugherty developed seven questions, or “tests”, for determining just cause in Enterprise Wire Co., 46 LA 356, 362 (1966).  According to Daugherty, a “no” answer to any of the seven questions usually leads to the conclusion that there has not been just cause for the particular disciplinary action.  See generally, Koven and Smith, Just Cause: The Seven Tests (BNA Books, 2nd ed., 1992).  Arbitrator Daugherty’s tests can be summarized in four categories or elements, as follows: (1) Did the employee have adequate notice of the rule alleged to have been violated and the consequence of violating the rule? (Notice);  (2) Was a thorough and fair investigation conducted before the Employer made the decision to discipline, including interviewing the grievant to learn his/her version of the facts? (Due process);  (3) Did the Employer produce adequate proof that the grievant was guilty as charged? (Proof); and (4) Was the penalty that was imposed reasonable, considering the seriousness of the grievant’s proven misconduct and the work record of the Grievant? (Appropriateness of the penalty).

     There is no question in this case that the Grievant failed to report for work on August 20, 21, 22 and 23, 2000.  Therefore, element #3 (Proof) is self-evident and no further discussion is needed.  The three questions that the arbitrator must answer, then, are: (1) whether the Grievant had notice that her vacation was not approved and knew that she would be discharged if she failed to report on those four days (Notice);  (2) whether a fair investigation was conducted before the decision to discharge was made (Due Process); and (3) whether the penalty that was imposed was appropriate to fit the proven misconduct (Appropriateness of the Penalty).

            A.  Notice:            The Grievant testified that she believed her absence had been pre-approved as vacation.  She said she followed the process that had always been followed in the bakery.  She requested her vacation by writing her name on the days she wanted to take off on her supervisor’s desk calendar.  She said it was her understanding that she did not have to do anything else.  There had never been a requirement of obtaining “approval” for a vacation before. Also, the Grievant denied that anyone ever told her that her vacation request was “unapproved” or that she should not take her trip to Hawaii.  She said she believed the Employer would find coverage for the days she would miss.   She also denied that anyone ever told her she would risk being fired if she failed to report for work on any of the days she would be away. 

            The Employer’s witnesses, whom the arbitrator found to be credible, testified quite differently.  Both Ms. Keever and Mr. Morris testified that, during an August 9 meeting with the Grievant, they informed her that “her vacation request was unapproved, unless she could find coverage for the days she would miss”.  They said they agreed to help her locate coverage, in that supervisor Keever would send out an e-mail notice to other store employees.  Morris acknowledged that he told the Grievant, “If there’s any way we can get it covered, then we can take another look at it”.  He also said he told Keever to “break her neck to do what she could to get it covered”.  However, he said the ultimate responsibility was the Grievant’s to find the coverage and, if sufficient coverage could not be found, the vacation would remain unapproved. 

            Morris also testified that he told the Grievant during the March 9 meeting that “she would be terminated if she took the vacation without approval.”   He said he reminded the Grievant on August 14 or 15 that, although coverage had been found for her scheduled shifts on the 18th and 19th, “we still have another week to cover”.  He indicated that he intended that comment to remind the Grievant that her vacation remained “unapproved” as of that date.

            Mr. Morris’s testimony was supported by other evidence in the record.  First of all, the notes he took during the August 9 meeting with the Grievant indicate that the discussion focussed on six different issues, one of which was the Grievant’s vacation request.  On the line beside “vacation”, the words “Term. if not approved” were written.  See Employer Ex. 5. 

Also, Morris testified that Union Representative Lansing called him on either August 10 or 11, to discuss the issues that had been brought up during the August 9 meeting.  Morris said that Lansing told him during that conversation, “The [Grievant’s] vacation is approved and she’s going”.  In response, however, Morris said he clearly informed Lansing, “No, it is not approved”.  Mr. Lansing was present at the hearing and could have testified regarding any misrepresentation of the conversation he had had with Mr. Morris.  Since Lansing failed to rebut Morris’s testimony, the arbitrator finds that Lansing knew, on August 10 or 11, that the Grievant’s vacation was not approved.  Therefore, even if the Grievant herself had somehow misunderstood the intent of her manager during the August 9 meeting, she should have learned through her Union representative’s intervention that her vacation was “unapproved”.

            Finally, the evidence shows that the Grievant herself told a different story when she testified under oath at an unemployment hearing than when she testified at the arbitration.  Since there were inconsistencies in her statements in the two forums, the arbitrator has found that the Grievant’s testimony at the arbitration hearing lacked credibility. 

            First, the Grievant did not tell the hearings officer, as she told the arbitrator, that vacation requests had always been approved in the past.  Instead, according to a transcript of the unemployment hearing, when the hearings officer asked the Grievant, “When you had requested vacation time in the past, how were you informed that your vacation was or was not approved?”, she said, “[Ms. Keever] would say yes or no.”[2]   Secondly, when asked what had happened when the August 2000 vacation request was made, the Grievant replied, “[Y]ou know, I really don’t believe [Keever] actually said yes or no”.  She admitted that, because Keever did not say anything at all, she had simply assumed that the vacation request had been approved.

            The Grievant also told inconsistent stories regarding the issue of coverage.  She first told the Hearings Officer that her manager had said coverage would need to be found for only one day of her requested vacation.  She acknowledged having written on her pre-hearing statement, “I was called into the office by the store manager and food manager a couple of days before my vacation to tell me they had all but one of my vacation days covered.”  She admitted, however, that that statement was untrue.  The schedule was not even out for the week of the 20th at the time the Grievant had met with Morris.  Although Morris had acknowledged that the 18th and 19th were covered, he had warned her that there was still a week that needed to be covered.

            The arbitrator finds that the Grievant had ample notice that her vacation would not be approved unless adequate coverage could be found for all the dates she would be absent.  Also, she knew that she herself was responsible for finding coverage if she wanted to obtain approval for the vacation.  And finally, she was aware that, if she took days off without finding adequate coverage, she would risk the penalty of termination.

            B.  Due Process:              The Union raised several contentions that the Grievant’s due process rights had been violated.  First, they pointed out that the Grievant’s final paycheck and termination notice (on a form entitled “Employee Warning Notice”) had already been prepared before she arrived at work on August 26th.  Therefore, Management had already made a decision to terminate the Grievant while she was still away on her vacation.  No investigation was conducted into her reasons for missing work on August 20-23.  Also, the notice itself was inaccurate, in that it stated the Grievant had been absent on five workdays, August 19, 20, 21, 22 and 23, when in actuality she had missed only four days.  August 19 had been covered.  

            Secondly, the Union contended that the Grievant was discharged for reasons other than her failure to report on August 20- 23.  There had been some customer complaints against her that had never been investigated.  Also, there was a personality conflict between the Grievant and her supervisor, Ms. Keever.  Management really wanted to get rid of the Grievant for those other reasons.  The vacation issue was blown out of proportion and was used as a pretext, just so that Management could remove her from the bakery staff.

            Manager Morris testified that he conducted an investigatory meeting with the Grievant on the morning of August 26, before he delivered the final paycheck and discharge notice to her.  He said that he was willing to listen to the Grievant’s story in order to determine whether something he was unaware of might have happened, or whether there were some mitigating circumstances that he should consider.  When the Grievant failed to offer such mitigation, however, he went ahead and delivered the paycheck and discharge notice.  He was fully prepared, he said, to stop the whole process and reverse the paper work, in the event some new information had come to light which would change the decision that had been tentatively made.

            The arbitrator agrees that it was premature for Mr. Morris to have the Grievant’s discharge notice and final paycheck prepared before he conducted the investigatory interview with the Grievant on August 26.   Once a discharge decision has been made, it is unlikely that an employer will want to reverse itself as a result of talking to the person that is the subject of the discharge action.  Also, the Union is correct that the discharge notice was premised on an incorrect fact, namely that the Grievant had missed five workdays, when in actuality she had missed only four days. 

            The arbitrator is not persuaded, however, that those errors were sufficient to constitute violations of the Grievant’s due process rights in the handling of the discharge.  First, Mr. Morris testified emphatically that he was ready and willing to reconsider the decision to discharge the Grievant, and that he would have stopped the process immediately, had some new information  come to light, such as evidence of illness or injury to the Grievant, that would have shown that her absence on August 20-23 was due to causes unrelated to the unapproved vacation.  Second, the error that the Employer made when it included the date of August 19 in the statement of charges against the Grievant is insufficient to support a due process argument against just cause.  There is no evidence indicating that the Employer would have, or should have, made a different disciplinary decision, if it had correctly concluded that the Grievant had missed four days of work due to her unapproved vacation, as opposed to five days.

            Finally, evidence in the record does show that some customer complaints had been made against the Grievant and that there was a personality conflict between the Grievant and her supervisor.  The complaints were discussed during the August 9 meeting in Morris’s office and they were also discussed in a subsequent telephone conversation between Morris and Union Representative Lansing.   As for the personality conflict, Morris testified that he once overheard the Grievant call Ms. Keever a “pig” and that he had counselled her about the impropriety of such name-calling.  Also Keever herself acknowledged that there had been a history of communication difficulties between herself and the Grievant.  In fact, their communication problem was the very reason her KSP had instructed her not to talk to the Grievant about the vacation request between July 31 and August 9, when a meeting could be structured where there would be a witness present to listen to the conversation between the two women. 

            It is unfortunate that the communication link was so poor between the Grievant and her supervisor.  Indeed, this case might never have reached the level it did reach if the Grievant and Ms. Keever had been able to talk to each other.  In spite of that reality, however, the arbitrator is not persuaded that Management’s stated reason for discharging the Grievant was pretextual only. Management could, and did, decide to discharge her for the sole reason that she had failed to report on four scheduled work days during the week of August 20 because she was taking a “vacation” without Management’s approval. 

            For the stated reasons, the arbitrator is not persuaded that the Grievant’s due process rights were violated.

            C.            Appropriateness of the Penalty:            The Union’s final argument is that discharge was too harsh a penalty under the circumstances and that the Grievant should be reinstated to her position.  Ordinarily, arbitrators are reluctant to substitute their judgment for that of Management in decisions regarding the extent of discipline that has been imposed for a particular offense.  Arbitrators are authorized, however, under just cause analysis, to review the evidence to determine whether, under all the facts and circumstances, including mitigating and aggravating circumstances, the disciplinary action that Management took was unreasonably harsh.

            In this case there was evidence of the following mitigating circumstances:  (1) The Grievant had five years of seniority with Fred Meyer and had worked a previous period of six years for the Employer as well; (2) Ms. Keever had not been meeting the collective bargaining agreement’s requirement of posting vacation schedules by April 15 of each year[3];  (3) Communication between Ms. Keever and the Grievant was poor and the supervisor’s delay in responding to the Grievant’s vacation request between July 31, 2000, when she first knew of it, and August 9, when the meeting with Mr. Morris took place, may have contributed to the Grievant’s belief that her request had been approved;  and (4)  Mr. Morris’s direction to the Grievant during the March 9 meeting regarding “coverage” was somewhat vague and unclear, as Morris on the one hand said it was the Grievant’s obligation to find the necessary coverage, but on the other hand directed Ms. Keever to do all she could to help the Grievant find coverage. 

            On the other hand, there was evidence of the following aggravating circumstances: 

(1) The Grievant knew, when she wrote her name on Keever’s calendar sometime in July, that Keever had already requested her own vacation during the same time period that she was requesting;  yet, in spite of that awareness, the Grievant failed to verbally inform Keever of her vacation request, although that had been the prior practice in the bakery; as a result, the opportunity of finding coverage for the Grievant’s desired vacation was delayed;  (2) When the Grievant went ahead and took her vacation, even though no coverage had been found for August 20-23, she caused her supervisor to sacrifice her own pre-approved vacation in order to juggle shifts and cover for the Grievant’s missed shifts.

            The arbitrator does not find that the mitigating circumstances in this case were sufficiently great to outweigh the aggravating circumstances.  Therefore, the arbitrator does not agree that the penalty of discharge was unreasonably harsh, under just cause principles.  While other managers might not have reached the same decision that Mr. Morris reached, under the facts that existed on August 26, 2000, the arbitrator cannot say with positive assurance that Morris’s decision was unreasonably harsh. 

AWARD

            For the reasons set forth in the preceding analysis and discussion, the arbitrator has determined that the Grievant was discharged for cause, as required by the parties’ collective bargaining agreement.  The grievance is denied.

            Pursuant to Article 17.3 of the parties’ agreement, the arbitrator hereby declares that the Union is the losing party.  The Union shall be responsible for paying the arbitrator’s fees and expenses in the entirety.

                        DATED this _______ day of April, 2001.

                                                           ___________________________________

                                                             SANDRA SMITH GANGLE, J.D.

                                                            Arbitrator

[1] It appears that the Grievant erased some of the dates she initially requested and substituted alternate dates on the calendar. The Grievant denied making such chnagement, e

[2] The arbitrator notes here that the Grievant wrote the word “please” on the calendar beside her name on the first of the August vacation dates that she requested.  This shows that she was asking for approval.  The word “please” would have been entirely unnecessary, if she had believed that her vacation request would be automatically granted.

[3] This is really a moot point, however, because the Grievant did not know, prior to April 15, 2000, that she would have the opportunity of going to Hawaii in August.  She testified that the invitation was extended to her in July.

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