Title: United Parcel Service and Teamsters Local 222
FOR THE COMPANY:
Holland & Hart, Attorneys, by John M. Husband
Stephen W. Cook, Attorney
Russell T. Monahan, Attorney
Bill Wright, Grievant; Witness
HEARING HELD: September 5, 2001 at the offices of the Local Union, 2641 South 3270 West, West Valley City, Utah. All testimony was taken under oath or affirmation.
THIS PROCEEDING in arbitration was authorized under Article 28 of the Agreement between the parties dated August 1, 1997. The Arbitrator was selected by the parties through the procedures of the Federal Mediation and Conciliation Service.
POST HEARING BRIEFS were timely filed by both parties on September 19, 2001.
BACKGROUND AND ISSUE
The case presented herein for decision involves the discharge of the Grievant, Bill Wright, for dishonesty. Wright was a feeder driver with United Parcel Service [hereafter UPS, Company or Employer], making long hauls with tractor and trailers to various cities from the Salt Lake City [SLC] distribution center. He had been in the employ the Company for nearly 26 years. Unlike many matters of this sort the instant case is refreshingly free of nearly all factual disputes. These facts are stipulated or uncontested except as noted:
1. Among several other regulations, the Department of Transportation (DOT) has a “15-hour rule” which requires that a driver not drive after having been on duty 15 hours following eight consecutive hours off duty. [Co. Ex. 2] However, a meal period is off duty time, so if a one-hour meal time is taken during the 15 hours, the ‘clock’ time is extended to 16 hours. Wright acknowledges being thoroughly familiar with the rule.
2. On February 6, 2001 Wright reported as usual prior to his start time of 11:00 p.m. in order to make a delivery run to Twin Falls, Idaho. He picked up his “in-vehicle information system” [IVIS] box, entered the numbers of the trailers he was to haul, and then hooked the IVIS into the housing on his tractor. He left SLC at 11:32 p.m. Since Wright reported at 11:00 p.m., his 15 hours would expire at 2:00 p.m. the following day, or 3:00 p.m. if he took a one-hour lunch break.
3. Wright arrived at Twin Falls about 4:00 a.m., but experienced difficulties with his tractor. The next few hours were spent trying to resolve those problems and getting his trailers unloaded, and during which he had at least two conversations with dispatch in SLC. He received mixed signals as to whether he should or should not take a lunch period while waiting.
4. About 8:00 a.m. he spoke with Kirk Larsen, the SLC dispatch supervisor about what he should do. This conversation represents one of only two substantive differences in recollections offered during testimony. According to Wright, he told Larsen that he might be running out of time, i.e., that if he did not depart by 10:00 a.m. he would risk violating the DOT maximum of 15 hours of on-duty time. He added that even if he was running out of hours, if he could get past Ogden he would just “come on in.” Larsen responded, “Don’t tell me that. I don’t want to hear that.”
According to Larsen, the debate concerned the number of trailers that Wright would bring on his return: the Grievant insisting that he bring only one (rather than two) so he could make better time. It was in this context that Larsen make the remark quoted above. In response to Wright’s observation that if he did not leave Twin Falls soon he might run out of hours, Larsen told Wright he should take a lunch period. He also told the Grievant to try and make Ogden before he reached the 15-hour maximum; and if he could not, he was to pull over and another driver would be sent to relieve him.
5. At 10:03 a.m. Wright left Twin Falls, knowing that he had to be back in SLC by 2:00 p.m. and believing he could make it. The roads were snowy and slick. Sometime between 12:30 and 1:00 p.m., and approximately an hour north of Ogden, he spoke with Eric Zulliger in dispatch indicating that a traffic accident had slowed his progress and that he might not make it. Zulliger relayed the message to Larsen who then called Wright back. This conversation represents the second difference in testimony, although both parties acknowledge that the men discussed a lunch break and the chances of reaching Ogden. According to Wright, he again repeated his intention, and Larsen repeated his comment, “Don’t tell me you’re coming on in [to SLC]. I don’t want to hear it.” But again, Larsen testified he told Wright not to drive past 2:00, that to do so would violate DOT regulations, and if he could not make Ogden by that time without a lunch hour, he was to pull over and await a relief driver. Larsen began arrangements for dispatching a relief driver.
6. At approximately the same time, 1:00 p.m., Wright disconnected his IVIS from its housing in order to have it appear that the truck was stopped. The IVIS cannot accept changes in status while the truck is in motion. The disconnection thus makes it appear [Co. Exs. 7, 8] that his truck was stopped and Wright was off duty for a meal break when in fact he was continuing to drive; i.e., it makes the IVIS show that the DOT regulation was not violated.
7. Wright arrived at 2:34 p.m. in SLC. During an exchange which followed he admitted the disconnection of the IVIS and the violation of the 15-hour rule, and he asserted that he could do “anything he wanted with his lunch period.” He assumed he would receive a warning letter for his “bending of the rules.”
8. On February 16, 2001 the Grievant received a letter constituting “official notification of your termination of employment” for dishonesty from the Division Manager. [Co. Ex. 10] It stated, “Your dishonest actions relate to your falsifying company records regarding ICC Hours Violations on February 7, 2001.”
A grievance protesting the termination was subsequently filed and processed through the negotiated procedure. The labor-management committee deadlocked over its disposition, and it was automatically sent to arbitration. Here the issue to be decided is stipulated to be:
Was the Grievant terminated for
just cause? If not, what is the
RELEVANT SECTIONS OF THE LABOR AGREEMENT
ARTICLE 28 – GRIEVANCE PROCEDURE
SECTION 2 –
HANDLING OF DISCHARGES AND SUSPENSIONS
We expect honesty from our people in their handling of money, merchandise, and property with which they are entrusted. We insist on integrity in the preparation and approval of all reports.
We expect our people to be honest with respect to intangible things as well –in the time, effort, and full performance of their jobs; in fair play in dealing with other; and in the acknowledgment of mistakes or other shortcomings.
The great majority of our people are of high moral character.
However, when we do discover a dishonest person in our organization, we
deal with that individual quickly and firmly.
For our company to be known for its integrity, each one of us must meet
POSITIONS OF THE PARTIES
The Employer argues in support of its decision to discharge: (1) The DOT rules are well known to and understood by the Grievant, yet he knowingly violated them. (2) Wright was specifically told not to violate those rules by his supervisor on multiple occasions on the day in question. Larsen additionally told Wright he could take a lunch period so as to extend his deadline to 3:00 p.m., but he chose not to take one. (3) To the extent this matter turns on credibility, at least two other people overheard Larsen tell Wright not to violate the rules and not to drive in to SLC if he could not make it back by 2:00. Larsen is also to be believed here because were he as a supervisor to ignore the rule or its violation he would endanger his own job and the operating license of the Company. (4) UPS has an Integrity Policy with which Wright is quite familiar, and he recognized that employees could be discharged for violation of it. (5) Wright not only disregarded this knowledge and Larsen’s instructions, he manipulated the IVIS system to show no violation of the DOT regulations --by claiming a lunch period when in fact he continued to drive. This is fraudulent and clearly constitutes dishonesty. (6) Dishonesty is a ‘cardinal’ offense under the Agreement, justifying immediate termination on the first offense. Wright knows and understands this. (7) The Grievant is clearly guilty. Even the Union admits that the situation was “not handled in an appropriate manner.” (8) All other cases cited by the Union are notably different. In none of them did the employee pull the IVIS from its housing so that driving could not be monitored; no other employee claimed to be on a lunch period when actually s/he was driving in violation of DOT regulations; no other employee intentionally violated those rules after having been specifically told not to do so; and no other employee misrepresented the facts.
In sum, it is clear that the Grievant knowingly engaged in fraudulent and dishonest behavior for which he was properly discharged. The Employer therefore asks that the grievance be denied.
The Union notes in support of the grievance, first, that the burden of proof lies with the Company to establish with clear and convincing evidence that Wright is guilty of dishonesty. This it is unable to do for at least four reasons: (1) There was no intent to deceive. The Grievant removed the IVIS from the housing to be able to manually enter data, a function that could not be done while the vehicle was moving. His purpose was not to engage in a dishonest act but rather to manipulate the IVIS device solely to enable his driving on in to the SLC terminal. (2) The Employer produced no contractual provision or policy to the effect that removing the IVIS from the housing would be considered “dishonesty.” Indeed, the Employer produced no document that describes when or under what circumstances an IVIS may be removed. (3) None of the Grievant’s behavior benefited himself, except insofar as he may have been able to return home at an earlier time. He stole nothing; he did not report hours he did not work; and he gained nothing monetarily. If anything, he may have actually saved the Company money by not having to be picked up somewhere beyond Ogden. (4) At no time did the Grievant attempt to hide or cover up what had occurred. Larsen knew Wright intended to drive on in, but never directly told him to take a meal period and never instructed him to pull over and be relived. Wright testified, “If Larsen had told me directly not to do what I indicated I was going to do, I wouldn’t have done it.” The Grievant was completely forthright during the investigation of the charges and during the hearing. He never misrepresented the facts to the Company, and he never intended to deceive. Taken together, it is clear the Grievant did not commit the cardinal sin of dishonesty.
Even if the Grievant is guilty of some lesser offense such as insubordination, the penalty does not fit the offense. Violations of the DOT rules are routinely handled by warning letters and progressive discipline [Un. Ex. 1]. The Grievant has been employed for nearly 26 years and certainly deserves nothing more severe than a warning. For each and all of these reasons the Union asks that the grievance be upheld and that the Grievant be returned to work with all back pay, benefits, seniority and a cleansed record.
There is a contention here that this case turns on the matter of credibility. I do not agree because even though there are significant discrepancies about what Wright was or was not directed to do (or warned against doing) during his conversations with his supervisor, the fact is that both Wright and the Union acknowledge that he knowingly violated the DOT’s “15-hour rule,” and he willfully removed the IVIS from its housing specifically for the purpose of hiding the violation. The contents of the conversations between Wright and Larsen, if they could be established with precision, would show on the one hand that Wright was announcing his intention to a supervisor who did not want to hear about it, or on the other that Wright was guilty of gross insubordination by disobeying the reasonable, clear instructions of his supervisor. If Larsen did not issue direct orders to Wright, he should have. But neither scenario helps us with the matter of dishonesty.
What makes this case unique is the Union contention that by engaging in behavior that both violates a federal regulation and produces a false record, but doing so openly and “honestly,” one cannot be found to have been dishonest. At worst, argues the Union, the culprit is guilty of insubordination, but he is really only guilty of a minor rules infraction.
It raises an interesting philosophical question: Can one be honestly dishonest? Or put another way, does the openness and candor convert what might otherwise be dishonesty into some lesser offense, like insubordination? It is the question of what constitutes “dishonesty,” its very definition, that is central to the matter before us because under this Agreement dishonesty must be established for the discharge to be upheld.
Dishonesty, somewhat like harassment, is a conclusion based upon facts, i.e., actions, words or behaviors. The questions in such matters are, What did the person do? And, Does that constitute dishonesty? Dishonesty is normally held to include lying, deceit, material representation, fraud, cheating, theft, misappropriation, and, generally, falsification of company records. Indeed, the majority of arbitrators, presented with cases involving falsification of records as the premise for dishonesty, do not distinguish between the two charges. One who did, however, was Arbitrator Canestraight, in a case similar to ours. He held that because he could not determine intent, the grievant could not be found guilty of dishonesty; but he was still dischargeable because of his deliberate falsification of company records, which, as here, the grievant admitted.
Intent is crucial when distinguishing the behavior from oversights and “honest errors.” A few arbitrators have held that willful deceit is essential for dishonesty to have occurred. As Arbitrator Felice stated,
In order to sustain the discharge, the Company would have to prove that the Grievant did, in fact, falsify Company records and that he intended to willfully deceive or defraud the Company. The critical element of intent to deceive or defraud must be evident since it is the key to determining the severity of discipline to be imposed.
Felice quotes American Steel Foundries in support of his position:
The element of the offense that makes deliberate falsification of Company records dischargeable is the dishonest intent to deceive by doing so. If that element is lacking, as might be the case by reason of having made a mistake or error, the offense is not so seriously regarded. In the absence of intent to deceive, the element of trust is not destroyed and it is not unreasonable to continue the employment relationship . . . When the Company establishes that a record was falsified, and particularly that this was done deliberately or purposefully . . . [it] raises a presumption that this was done with intent to deceive.
Taking all of these cases together, even without the wording of the Agreement and the strongly written Integrity Policy of the Company, an employee is subject to being summarily terminated if he engages in behaviors that are knowingly and willfully deceitful, especially where the employer suffers some real or potential loss as a result. An employer is entitled to accurate relevant information in order to properly conduct its business.
This conclusion helps us return to the behavioral questions posed earlier: What did the person do? And does it constitute dishonesty? There are two ‘tests’ central in the review of a decision to discharge in dishonesty matters, including those based upon the creation of fraudulent records: whether the misbehavior was deliberate, and whether it was meant to deceive.
In this respect another more recent case is of particular note because it is so comparable to our own. In it the grievant sought to conform to DOT regulations on the number of hours worked by intentionally creating inaccuracies in the reporting of his time. The grievant acknowledged that he had lied on the records so he could hold another driving job and because he felt the company was unconcerned about the accuracy of the information. As in our situation, the grievant did not attempt to hide his noncompliance with DOT regulations from the employer, nor did he intentionally try to deceive the employer even though he was falsifying the information. The Union raised identical arguments to those in the matter here before us.
Arbitrator Wallin distinguished his case from one involving hurried or careless errors; he also noted that no other employee “engaged in the same or similar misreporting of time, after clear warning, as did [the] Grievant.” Wallin upheld the discharge for dishonesty with the comment,
It must be remembered that while the DOT regulations apply jointly to employers and drivers, the effectiveness of the record system depends heavily on the integrity of the individual drivers. Employers must be able to rely on the honesty of their employees for the system to work. The record contains no evidence of the existence of a suitable alternative means of achieving compliance with the DOT regulations.
What is absolutely critical in our case, therefore, is not Wright’s possible defiance of Larsen, but his willful violation of the DOT regulation and his removal of the IVIS computer to cover it up. His motive may or may not have been to “protect” himself or the Company from having a record of the violation: we cannot know with certainty his intent. But there is no question he knew it to be wrong. No employee need be specifically told that disconnecting an IVIS under such circumstances is an act of dishonesty.
While Wright’s openness with the Company may allow him to contend that he was not deceitful with respect to the Employer, he certainly was dishonest with respect to the records on which the Company and the DOT must depend. In short, it is not necessary for the Grievant to have deceived the Company for dishonesty to have occurred; it is quite sufficient that he has deceived the DOT, and by doing so potentially put at risk the Employer’s license to operate. Being “honest” about the behavior makes it no less offensive.
Thus, it is ultimately the Grievant’s admissions regarding his defiance of the DOT regulation and his disengaging of the IVIS computer that provides clear and convincing evidence of his dishonesty. In the end his admissions do not mitigate against his fate, they confirm it. As a 26-year employee, Wright understood the DOT rule and the Company’s Integrity Policy, just as he also understood that dishonesty was a ‘cardinal’ offense under the Agreement. To an even greater extent than a newer driver, he knew the importance of not only complying with DOT regulations, but also the importance of accurate record keeping which would demonstrate that compliance.
Finally, when the other cases presented by the parties are considered, there is no evidence that the Employer has acted in an arbitrary, capricious, or discriminatory manner with respect to Wright. The Company maintains an Integrity Policy which is apparently uniformly and strictly enforced. Nothing in the record would support a contention that employees who willfully and intentionally violate that policy, or the language of the Agreement relating to dishonest acts, are not terminated for their dishonesty. Therefore, the decision of the Company cannot be modified.
The grievance of Bill Wright is denied.
THOMAS L. WATKINS, Arbitrator
September 28, 2001
 The Company sought to introduce the past disciplinary record of the Grievant even though all of the offenses were more than nine months old, contending that Section B did not apply to ‘cardinal’ offenses. The Arbitrator denied admission of the evidence. In one sense the issue is moot: if in fact the current offense is found to constitute “dishonesty,” no prior record is needed; and if the behavior is judged to be something other than dishonesty, then the nine-month preclusion must apply. In a prior case, Arbitrator Dole held that such records were admissible for the purpose of showing notice, i.e., that the grievant knew his actions constituted disciplinable misbehavior, but not as a justification for the discipline meted out. (UPS v. IBT Local Union 568, Edwards discharge, 1994) In the instant case there is no dispute about the awareness of the Grievant as it relates to knowledge of either DOT regulations or the Company’s Integrity Policy.
 Co. Ex. 1.
 There is disagreement as to whether there were two or three such conversations.
 Terminations are regularly upheld in matters where such falsification willfully occurred, i.e., where an intent to deceive was established. See 96 LA 644 (Hilgert, 1991); 96 LA 823 (Concepcion, 1991); (96 LA 1090 (Cipolla, 1991); 103 LA 498 (Nolan, 1994); 106 LA 945 (Klein, 1996); 106 LA 997 (Bowers, 1996); 108 LA 628 (Feldman, 1997); 110 LA 84 (Ruben, 1997); 110 LA 242 (Snider, 1998); 111 LA 429 (Prayzich, 1998); 114 LA 1595 (Nauyokas, 2000).
 97 LA 296 (1991).
 DiFalco (102 LA 910), 1990, is the only other published arbitrator of recent vintage to distinguish between these two offenses. But several others have held dishonest record keeping to be insufficient justification for discharge where extenuating circumstances existed, such as the absence of training, oversight, poor communications, etc. See 96 LA 704 (Allen, Jr., 1991); 96 LA 904 (Marino, 1991); 102 LA 55 (Landau, 1993); 108 LA 1134 (Skulina, 1997); 110 LA 631 (Najita, 1998). In all of these the discharge was reduced to an unpaid suspension.
 100 LA 767 (1993). See also 106 LA 801 (Nathan, 1996).
 81-1 ARB Section 8144, p. 3628.
 See 97 LA 912 (Prayzich, 1991); 101 LA 1101 (Bognanno, 1993); 102 LA 979 (Sergent, 1994); 109 LA 1047 (Kaplan, 1997).
 78 LA 208 (Belkin, 1982).
 See 99 LA 277 (DeLoach, 1992); 100 LA 457 (DiLauro, 1992); 100LA 948 (Goldstein, 1993); 102 LA 316 (Duff, 1994); 110 LA 33 (Gentile, 1998); 111 LA 392 ((Draznin, 1998); 114 LA 940 (Rivera, 2000); 115 LA 20 (Fullmer, 2000).
 Like the “Canestraight” case at f.n. #5, it too involved the Teamsters.
 100 LA 1106 (Wallin, 1993).
 Supra at 1110.
 Supra at 1111.