Title: Employer and Union
This proceeding is in accordance with the parties’ Agreement. A hearing in this matter was held on May 31, 2001 and the record closed upon receipt by the Arbitrator of post hearing briefs on June 26, 2001. The parties stipulated the issue for decision as:
Did the Employer have just cause when it discharged Eric Danielson on
The parties also stipulated to eight joint exhibits and that the matter was properly before the Arbitrator for disposition.
Pertinent Agreement Provisions
The Employer is in the business of selling and delivering beverages in central Oregon. Eric Danielson had driven transport and delivery vehicles for the Employer since 1987 prior to his discharge. The grievant’s written notice of termination of December 11, 2000 states (J6):
The warning citation was issued for driving in excess of the posted speed limit. The allegations of a “serious safety violation” and “dishonesty” appears to refer back to a letter of warning issued the grievant on November 22, 2000 which stated in pertinent part (J3):
Mr. Danielson grieved this warning letter and it was being timely processed at the time of his termination. The parties stipulated the arbitrator was to also determine whether just cause existed to issue this warning.
The Employer contends it had just cause to discharge because it followed the disciplinary policy set out in the Agreement. It argues the grievant received a written warning for careless and reckless driving in April of 2000 and committed a second act of careless and reckless driving within nine months of that warning. Moreover, it also argues the grievant had received two written warnings as well as a third disciplinary incident within twelve months. The Employer notes that the parties clearly agreed in Article 4 that an employee could be discharged under either set of circumstances.
The Union contends the grievant’s driving was not reckless or careless on November 11, 2000 when he was issued a warning for excess speed by Sgt. Stupfel of the Oregon State Patrol. It argues other matters in the discharge letter related to the November 22 letter of warning which was improperly issued because there was insufficient evidence to support the allegations made in the warning.
Analysis and Conclusion
The first question to be addressed is whether or not the Employer had just cause to issue the letter of warning of November 22, 2000. As to the charge of dishonesty, the evidence in the record does not support the allegation. Mr. Dynge was well aware that the grievant would pull off the road from time to time in order to stay in touch with the driver of the second truck. Mr. Dynge knew this because he ordered the grievant to do so after the second truck broke down after falling behind Mr. Danielson one night on the drive from Eugene to Coos Bay.
Jason Hoefer who drove the second truck on the night in question testified both he and the grievant had been told by Dynge that standard operating procedure was for the grievant to pull over and wait for Hoefer so they could help each other in case of a breakdown. On the night in question, Mr. Hoefer stated the grievant only had to pull over once, about half way to Florence, at a place where he typically waited for Hoefer to catch up.
The foregoing adds credibility to the testimony of the grievant that he responded to the question about pulling off relative to the inquiry about the dent on the top of the trailer. Mr. Danielson testified his negative response to Mr. Dynge was intended to indicate he had not pulled off the road and hit something with a trailer that could have caused the dent. Mr. Dynge’s question was asked in the context of his investigation of how the trailer got dented. It appears reasonable that the grievant responded accordingly, especially since Mr. Danielson was well aware that Dynge knew he routinely pulled off the road to stay in contact with the second truck.
There is absolutely no evidence that Mr. Dynge ever went to the one place Hoefer had told them the grievant had pulled off the road to see if there was any evidence the trailer had hit something. Accordingly, Dynge had no clear evidence the grievant gave him a dishonest response to his question. Taken together, the evidence suggests miscommunication rather than intent by the grievant to deceive.
Turning to the alleged safety violation, the Employer’s own policy nullifies the inclusion of this incident in the disciplinary warning letter. The policy states in pertinent part (E5):
16. Employees observed working in a manner that might cause immediately injury to themselves or other employees will be warned of the danger and a written warning letter will be referred to their personnel file. A second warning will result in disciplinary action. A third violation of this policy will result in termination.
It is clear from the last paragraph of the November 22 letter of warning that this alleged safety violation was part and parcel of discipline. According to the Employer’s own policy just cited, an employee working in ways that might cause injury can only be disciplined for it after a second warning. The record contains no evidence of the grievant ever being given a non-disciplinary first warning for working in an unsafe manner.
In light of the above analysis, the Employer has failed to prove the grievant was either dishonest or deserving a disciplinary warning for working in an unsafe manner. Accordingly, the Arbitrator will void the November 22, 2000 warning letter and order it removed from the grievant’s file.
Given the foregoing conclusion, the Employer must prove the warning ticket issued the grievant on December 4, 2000 constitutes a second instance of reckless or careless behavior for which the grievant had been given a written warning less than nine months earlier. The grievant was given that warning for an accident that destroyed a trailer along with the product in it. The letter states (J2):
This warning was not grieved and therefore is presumed to have been given for just cause.
The question is whether or not the warning citation issued by State Patrol Sgt. Mike Stupfel rises to the level of recklessness and negligence on the part of the grievant as alleged in the Employer’s discharge letter. Sgt. Stupfel testified if he had seen children in the school zone or the speed of the grievant’s truck had exceeded 45 he would have issued a citation for speeding rather than the mere warning he gave the grievant for going 40 in a 30 mph zone (20 mph only when children are present). The simple fact is the grievant did not receive a speeding citation. More importantly he did not receive a citation for reckless or negligent driving. Absent such citation there is no persuasive evidence that the grievant’s driving on the day in question was reckless or negligent.
The Employer cannot simply characterize conduct as reckless or negligent to prove the offense. It must offer evidence sufficient to convince a reasonable person that the behavior was in fact reckless or negligent. It produced no such evidence in this proceeding. By contrast, the record discloses the grievant was only warned to watch his speed based on Sgt. Stupfel’s observation of Danielson going 40 in a 30 mph speed zone that soon transitioned to a 45 mph speed zone (U1-3).
Under a just cause provision the Employer must prove by convincing evidence the employee is guilty as charged. It has failed to do so in this case. Accordingly, the Arbitrator concludes the Employer did not have just cause to discharge Eric Danielson and will order him reinstated and made whole.
1. The Employer did not have just cause when it discharged Eric Danielson on December 11, 2000.
2. Mr. Danielson shall be reinstated to his former position.
3. The Employer shall pay the grievant for wages and benefits lost from the date of discharge to the date of reinstatement.
4. The Employer shall remove the warning letter of November 22 from the grievant’s file.
5. The Arbitrator retains jurisdiction for the sole purpose of adjudicating any disputes concerning the ordered remedy.
6. Pursuant to Section 17.8 the Employer is the losing party and shall pay the arbitrator’s fee and expenses.
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