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Title: Employer and Union
Date: January 25, 2001
Arbitrator: Philip Kienast
Citation: 2001 NAC 140

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            This proceeding is in accordance with the parties’ Collective Bargaining Agreement.  A hearing in this matter was held on December 14, 2000 and the record closed on January 10, 2001 upon receipt of all post hearing briefs.  The parties stipulated the issue for decision as:

            1.            Did the Employer have just cause to discharge Laura Altman?

            2.            If not, what is the appropriate remedy?

The parties also stipulated that if the answer to the first question is no, then the parties be permitted an opportunity to determine the appropriate remedy and, if they fail to agree, the Arbitrator shall subsequently determine the appropriate remedy.

Pertinent Agreement Provisions

ARTICLE 16 – GRIEVANCE AND ARBITRATION PROCESS

. . . .

Arbitration

Section 16.15  After the Company has received a written notice of intent to arbitrate under Section 16.10 or Section 16.14(b) of this Agreement, the grievance shall be arbitrated subject to the following conditions:

(a)  The provisions for arbitration shall apply only to controversies regarding the true intent and meaning of any provisions of this Agreement or regarding a claim that a commitment made in this Agreement has not been fulfilled. 

. . . .

Section 16.16  The decision of the arbitrator shall be final and binding on both parties, and the Company and the Union agree to abide by such decision.

Section 16.17  The arbitrator shall have no authority to change, add to or subtract from the terms of this Agreement.

Section 16.18  In disciplinary cases, the arbitrator shall determine whether the discipline was for just cause.  If the arbitrator concludes the discipline was not for just cause, the employee shall be reinstated with back pay.  Under no circum­stances shall the Company be liable for back pay for more than eighteen (18) months after the date of the disciplinary action giving rise to the grievance.

Section 16.19  Each party shall pay for the expenses of its own witnesses.  The expense of the arbitrator or neutral third party and the general expenses of arbitration shall be borne equally by the Company and the Union.

ARTICLE 17 – DISCIPLINE

Section 17.1  At any meeting between a representative of the Company and an employee in which discipline (including warnings which are going to be recorded in the personnel file, suspension, demotion or dismissal for just cause) is to be taken, a local union representative shall be present if the employee so requests.

Section 17.2  If the affected employee did not request local union representation, and such action was taken, notice shall be given to the appropriate local union representative.

Section 17.3  In the event an employee is dismissed, suspended, demoted or had a warning put in their personnel file, a charge that the action taken was without just cause shall be handled in accordance with Article 16 of this Agreement.

Background

            The grievant, Laura Altman, was a sales consultant in the Employer’s Seattle office.  In addition to a base salary, a sales consultant receives incentive pay based on the amount of telephone services she or he sells such as new lines of service, call waiting, caller ID, etc.  All active employees also receive a discount or concession on phone service provided by U.S. West, with certain limitations.  For instance, an employee can receive no more than two lines of service at their principal residence at the discount rate.  Additional services added to either of these two lines is also discounted.

            The Employer’s policy on employee discounts states that the employee requesting the discounted service must fill out Form R605-0095, have it signed by his or her supervisor and forward it to the Concession Order Processing Center (E3:  Sec. 1, p. 6 and Sec. 6, p. 1).  However, it is uncontested that on occasion sales consultants take service requests from co-workers directly and process them but are still responsible for assuring that service is appropriate with company policies. 

            In the course of investigating an inappropriate concession granted employee Theresa Winters, the Employer discovered one of the grievant’s co-workers, Larry Willis, had three discounted lines of service as well as fictitious directory listings on two of these lines.  Fictitious listings are prohibited by Employer policy and procedures (E13).  Records disclosed all three lines of service plus the listings had been accomplished by Laura Altman.

            Lee Zavala investigated the matter for the Employer.  He interviewed Ms. Altman on August 5, 1998 in the presence of Union representative, Shane Hatch, and Courtney Jackson, a manager acting as note taker.  The grievant acknowledged she was aware of the Code of Business Ethics and Conduct.  She also stated she was aware of the limit of two concessionary lines of service.  She admitted adding a third line of service but claimed she was unaware it was at the discount or concession rate. The grievant was sent back to work following the interview pending further investigation.

            Following the grievant’s vacation and a strike by unit employees the grievant returned to work on September 1.  On September 2 she was called in and told she was being discharged for failing to protect the Employer’s assets and maintain accurate records, specifically for knowingly defrauding the Employer by granting improper concessions, entering fictitious names in the phone directory and manipulating the incentive system.

            The Employer contends that uncontested documentary evidence discloses Laura Altman established three lines of service for Larry Willis within five months.  Each of these lines was at the concession rate and that on the first two lines of service she entered the name Willis Keever in the telephone directory (Keever was the last name of Mr. Willis’ roommate).  The Employer argues that adding a third line of service at the concession rate as well as listing a name the grievant knew was fictitious are serious violations of company policy.  The Employer notes there is no credible evidence the grievant was only in error or negligent in her actions and therefore argues it had just cause to discharge the grievant.

            The Union contends the grievant did not knowingly violate company policy in making changes to Larry Willis’ telephone service.  It argues the Employer did not prove she made these changes with intent to defraud the Employer or provide Mr. Willis discounted service to which he was not entitled.  It argues that in itself there is nothing wrong with an employee earning incentive pay for service it sells to co-workers.  Finally, the Union argues the grievant was subject to disparate treatment.  It maintains another employee, Theresa Winters, did the same thing the grievant did, but was suspended rather than discharged.

Analysis and Conclusion

            A decision as to whether just cause exists for discharge in this case rests squarely on whether Ms. Altman did what she did with intent to defraud the Employer or, alternately, her behavior was simply careless or negligent.  The person responsible for the decision to discharge, Ann Smith, the regional sales manager, testified she concluded the grievant intended to give away services to a workmate and personally collect incentive pay connected with the transaction.  Ms. Smith further testified she came to this conclusion because the grievant had 7 years experience as a sales consultant and was well aware of the policy and procedures of the Employer.  Moreover, if she had a question she could consult the policy on line or ask a manager for clarification.  Finally, if she proceeded while still uncertain then she should have made notes on the transaction document to explain why she took the action she did.  Because of the foregoing, Ms. Smith concluded the grievant’s actions were “intentional” and therefore a “serious violation” of the code of ethics as well as other company policies.

            Ms. Altman’s testimony was consistent with that of Ms. Smith.  She stated she knew David Keever was Larry Willis’ roommate and that she was not permitted to list fictitious names like “Keever Willis” in the directory.  Therefore, the Arbitrator concludes she deliberately violated company policy in listing a fictitious name.

            The grievant further testified she added a third line of service for Mr. Willis.  However, she claimed she was unaware it would be granted concession based solely on the fact the main line was a concession line.  Indeed, she testified she had been previously told that if a concession line were given incorrectly that the company’s systems “would catch it downstream.”

            The Arbitrator finds the grievant’s testimony on this last point to be incredulous.  She testified she was aware of the policy that required each employee desiring concession service to file a form approved by a manager and then to be implemented by the Concession Order Processing Center.  In the face of such an elaborate formal system of checks and balances known to the grievant it is unbelievable she could simultaneously believe any mistake she made in ordering phone service for a fellow employee would be corrected “down the line.”  If that were the case then why would the company have a special center for processing manager approved written requests from employees for discounted phone services?

            Ms. Altman also testified she only processed one or two concession orders a year from co-workers.  Given this fact, it is not credible that the grievant would have forgotten in April of 1998 that the previous November she had established two separate main lines with concession for Larry Willis.  The grievant testified she was well aware she could add explanatory notes to any order that might raise problems.  The grievant made no notes on the April 16, 1998 order she processed for Mr. Willis.  Her failure to do so causes the Arbitrator to conclude she added the third line knowing it would receive concession since the main line she had put in five months earlier had been a concession line of service.

            In light of the foregoing, the evidence is clear and convincing the grievant willfully and deliberately violated the Code of Ethics and Conduct by helping a fellow employee improperly receive a third line of concession service; and violated long established policy by entering a fictitious listing in the directory.  In addition, Ms. Altman received unwarranted incentive pay for adding the third line of service.  The question now turns to whether she was treated differently from another employee, Theresa Winters, who also violated the Code of Ethics and Conduct by establishing an improper concessionary line of service for her son.  When confronted with her violation she admitted she had caused the concession account to be created and thought it was alright to transfer her concession privilege to her son because she did not live in the area serviced by U.S. West.  She went on to say she would reimburse the Employer for any lost revenues.  The Employer suspended Ms. Winters for 5 days with a final warning requiring her to pay all amounts due on the line in question (U4).

            In comparing Ms. Winters’ case with that of the grievant, the Arbitrator notes one prominent difference.  Ms. Winters owned up to her conduct and offered to repay any loss to the Employer whereas Ms. Altman tried to cover up her responsibility by making incredulous assertions as well as contradictory statements.  For instance, on cross examination Ms. Altman admitted she knew David Keever was Mr. Willis’ roommate, however, on redirect she stated she “thought ‘Keever’ was Mr. Willis’ middle name.”  She asserted errors on concession matters would be “caught downstream” while also stating she was well aware of the formal policy on using the Concession Center to establish discount service for employees.

            In the final analysis, Ms. Altman compounded her offense by engaging in an attempt to cover up her deliberate and willful violations.  By doing so she seriously aggravated her offense as compared to Ms. Winters.  Accordingly, the Arbitrator does not find the grievant was subjected to disparate treatment.  While the offenses of both Altman and Winters were serious, Ms. Winters was mitigated by her admission of guilt and offer of repayment.  By contrast, Ms. Altman aggravated the seriousness of her offense by her lack of candor, incredulous excuses and lack of an offer to reimburse the Employer for its losses.  Therefore, the Arbitrator concludes the grievant was discharged for just cause.  The Employer properly exercised its disciplinary discretion.

AWARD

1.         The Employer did have just cause to discharge Laura Altman.

 

 

___________________________________
Philip Kienast
January 25, 2001
Bothell, Washington

 

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