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Title: Employer and Union
Date: July 17, 2001
Arbitrator: Philip Kienast
Citation: 2001 NAC 137

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            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
           
December 11, 2000?  If not, what is the appropriate remedy?

The parties also stipulated to eight joint exhibits and that the matter was properly before the Arbitrator for disposition.

Pertinent Agreement Provisions

ARTICLE 4 – DISCIPLINE, SUSPENSION OR DISCHARGE

            4.1  Warning Notice Regarding Complaint:  The Employer may discipline, including paying employees at a lower rate of pay as set forth in Appendix A, Wages, discharge or suspend a regular employee for just cause.  As long as the Employer follows its disciplinary policy, as set forth in this Agreement, just cause shall be deemed to have existed for all disciplinary actions.

            4.2  Non-Major Infractions:  For non-major infractions, a regular employee shall be subject to discharge, provided one (1) previous written warning had been issued to the employee concerning the same type of misconduct within a nine (9) month period as the cause for the discharge.  Additionally, a regular employee shall be subject to discharge if the employee has accumulated two (2) previous written warnings and committed another non-major infraction, regardless of the nature of the offenses, within a twelve (12) month period.

            4.3  Major Infractions:  Employees committing a major infraction shall be subject to immediate discharge without a prior warning.  The major infractions shall include, but are not limited to the following:

. . .

C.            Negligence.

. . .

E.            Serious violation of the Employer safety policy.

. . .

G.            Recklessness.

. . .

O.            Dishonesty.

            4.5  In the event that a disciplinary and/or discharge case is submitted to Arbitration at Step 4, 17.5, either party may request that the Arbitrator consider an employee’s entire work record, including previous warnings, if any, regardless of the date of issuance, for the sole purpose of determining the appropriate degree of discipline.

            4.6  A copy of such warning notice shall be given to the Local Union and the employees involved.  Warning letters to be considered as valid must be issued within ten (10) days, exclusive of Saturday, Sunday, and holidays, after the Employer becomes aware of the occurrence of the violation claimed by the Employer in such warning notice.

            4.7  Right to Protest Warning Notice or Discharges:  An employee may request an investigation of his discharge or suspension or any warning notice and the Union shall have the right to protest any such discharge, suspension or warning notice.  Any such protest shall be presented to the Employer in writing within ten (10) working days (exclusive of Saturday, Sunday and holidays) after the discharge, suspension or warning notice, and, if not presented within such period, the right of protest shall be waived.  Upon the filing of any such protest, it shall be processed in accordance with Article 17, Grievance Procedure.

            4.8  Written Notice of Termination:  The Employer shall give to a discharged employee a written notice of termination stating the reason, with a copy to the Local Union involved.

ARTICLE 17 – GRIEVANCE PROCEDURE AND JOINT CONFERENCE BOARD

            17.1  All disputes or grievances between the parties shall be handled pursuant to this Article.  A grievance under this Agreement shall be an alleged violation by the Employer of a specific provision of this Agreement, which shall be reduced to writing at Step 2.

. . .

            17.6  The arbitrator shall rule only on the basis of relevant evidence presented in the hearing before him and shall refuse to receive any information after the hearing except when there is mutual agreement, in the presence of both parties.  He shall have no authority to make a decision on an issue not submitted to him.  He is further without authority to amend, modify, nullify, add to, or subtract from any provision of the Agreement or to make a decision which is contrary or inconsistent with applicable laws or regulations.  The parties agree that the power and jurisdiction of any arbitrator chosen hereunder shall be limited to deciding whether there has been a violation of a provision of this Agreement and, if so, the appropriate remedy.

            17.7  The arbitrator shall render his award within thirty (30) calendar days after the close of the hearing or the submission of any written briefs presented by the parties, whichever is later.

            17.8  The fee of the arbitrator as well as other expenses connected with the formal hearing shall be borne by the losing party as determined by the arbitrator.  The costs pertaining to witnesses shall be the responsibility of the party requesting the witness.

Background

            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):

SUBJECT:  NOTICE OF TERMINATION

Eric,

The warning you received from Oregon Department of Transportation on December 4, 2000 must be considered an act of “negligence” and “recklessness” and a serious violation of the “Employer Safety Policy.”

Eric, as you know, these violations continue to occur.  We are concerned about your safety, the general public’s safety as well as the safety of the company.

After further review of your records from April 2000 to present, and in accordance with Article 4 (4.3-Major Infractions) where it states:

            E.            Serious violation of the Employer Safety Policy

            G.            Recklessness

            O.            Dishonesty

This letter hereby serves notice of your immediate termination.

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):

RE:            Letter of Warning

Eric:

On Nov. 16, 2000 Mike Godley informed me there was a new dent in the trailer he was driving.  I confronted you on this matter that evening.  When I asked if you pull off the road, you told me that you never pull the truck off the road.  I asked again, do you ever pull off the road; you started to say no and then changed your answer and told me that sometimes you do, but you did not last night.  After further discussion I suspended you with pay, and returned to the office.  I contacted Jason Hoefer, the Eugene driver, and he informed me that you pull off the road most of the time he is driving transport.  Eric this must be considered an act of dishonesty.

When I left the office you were on top of the trailer looking at the damage that had been done.  You then crawled down the lift-gate to get off the trailer.  Eric this is not a safe way to get on and off the trailer, there are ladders in the warehouse for this.  Eric this must be considered a safety violation.

This is a written letter notifying you that these acts are unacceptable.  In accordance with article 4 of the Union Contract, you are advised that this type of conduct will result in disciplinary action up to and including termination.

            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):

On Thursday April 6, 2000, while driving transport from Eugene you had an accident, which resulted in the loss of a trailer, and its contents.

This accident must be considered an act of carelessness, which could have been avoided.  Eric, it is your responsibility to maintain control of your vehicle at all times.

This incident must be considered an act of recklessness as stated in Article IV of the Union Contract.

As a result of this recklessness, you are advised that you will have three days suspension without pay, beginning Sunday, April 16, 2000.

In accordance with Article IV of the Union Contract, you are advised that any reoccurrence of such carelessness will result in disciplinary action.

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.

AWARD

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.

 

 

_________________________________
Philip Kienast
July 17, 2001

 

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