Title: Bridgestone/Firestone, Inc. (Dayton
Tire) and United
Steelworkers of America, Local 998L
STATEMENT OF THE CASE
Bridgestone/Firestone, Inc. (“Company”) and the United Steelworkers of America and its Local 998L (“Union”) are parties to a master collective bargaining agreement which became effective September 21, 2000. The Agreement governs the wages, hours, and other terms and conditions of employment of all production and maintenance employees at the Company’s plants, including the Dayton Tire plant located at Oklahoma City, Oklahoma. It also provides for a grievance procedure culminating in final and binding arbitration as the mechanism to be used to resolve any disputes concerning the interpretation or application of its terms.
At issue in this case is a grievance which was filed by the Union on April 5, 2002, protesting the Company’s decision to discharge the grievant, Jeromy Buchanan. The grounds for the discharge were set out in a letter to the grievant dated April 5, 2002, which reads as follows:
You were recently suspended for a thirty (30) day period for walking off of the job. The suspension was administered in lieu of discharge based on facts provided by you at the 48-hour fact finding meeting. However, the Company has since learned that the information provided by you to be false. Also, you applied for FMLA benefits and cited the same false information as the reason you required FMLA.
In light of these new facts you are being discharged, effective immediately, for walking off of the job as well as providing misleading information in an effort to obtain FMLA benefits.
It is the Union’s contention that the discharge of the grievant is improper and should be overturned for several reasons. First, the Company denied the grievant substantive due process by subjecting him to “double jeopardy” by twice disciplining him for misconduct in which he had engaged on February 28, 2002. Second, the Company breached an agreement with the Union to suspend the grievant for thirty days in lieu of discharge for such misconduct. Third, in any event the Company did not have just cause to discipline the grievant. Fourth, the grievant is the victim of disparate treatment. As a remedy the Union requests that the grievant be reinstated with full seniority and made whole for all wages and benefits he has lost.
Following the selection of the undersigned as arbitrator a hearing was conducted at Oklahoma City, Oklahoma on August 27, 2002. In the course of the hearing both parties were afforded ample opportunity to present evidence, to cross examine witnesses called by the opposing party, and to offer arguments in support of their respective positions. In accordance with Article XI, Section 4(a)(2) of the collective bargaining agreement a decision was issued by the undersigned within forty-eight hours (excluding intervening Saturdays, Sundays, and holidays) after the conclusion of the hearing. The basis for that decision will be set out and explained in the discussion and analysis which follows.
SUMMARY OF THE EVIDENCE
The events which gave rise to the instant dispute occurred on February 28, 2002. The grievant was working on the day shift on that occasion because he had traded shifts with another employee. His shift was scheduled to begin at 7:00 a.m. and end at 7:00 p.m., but he did not show up until noon because he had overslept.
Mark Latimer, the day shift Supervisor in the warehouse where the grievant was working, testified that he met with the grievant in his office at about 1:00 p.m., at which time the grievant requested a “leave and return” in order to leave the plant and come back at a specified time. Latimer explained that such a leave can be authorized if it is necessary and the workload allows it. When Latimer asked the grievant why he needed to leave, he informed Latimer that he would rather not say because it was a personal matter. Latimer then told the grievant that if it involved something like a court appearance he could be excused. The grievant responded that he did have a ticket to take care of and Latimer told him that he could handle that on his day off and then denied his request for a “leave and return.”
Following that conversation the grievant then began walking toward the break room. Latimer intercepted him and told him that he had to work two hours before he could take a break. This caused the grievant to become agitated and he told Latimer that he thought he was an idiot. Rather than taking any action against the grievant for that remark Latimer decided to ignore it and simply instructed the grievant to go back to work, which he appeared to do.
Shortly thereafter Latimer received a call from Clock Card Supervisor Jackie Rose, who told him that the grievant had told her that he had to leave and return. Although she reminded the grievant that Latimer had denied him permission to take leave he left anyway at about 1:15 p.m. Latimer then reported the incident to the Human Resources Department for appropriate action.
Latimer testified that the next time he saw the grievant was in an investigatory meeting that was conducted on March 4, 2002. During that meeting the grievant claimed for the first time that the reason he had to leave work was to take care of his daughter, who was sick, because his babysitter was unavailable. Latimer testified that the only reason the grievant gave him for needing to leave work was personal business or needing to take care of a ticket.
Assistant Human Resources Manager Danny Young testified that he was contacted by Mark Latimer and informed that the grievant had left the plant without permission. Latimer told him that the grievant had come in five hours late and that at about 1:00 p.m. asked for a leave and return, which he denied because the grievant had not given a good reason other than a vague reference to “personal business.” Young then scheduled a fact finding meeting with the grievant and the Union, as required by the contract, on March 4, 2002, the purpose of which was to gather the facts and hear the grievant’s side of the story so that Management could make an informed judgment as to what action should be taken.
Young testified that after Latimer outlined the events that had occurred on February 28 the grievant explained that his child, Raven, had a respiratory condition and needed care and because his babysitter was not available he had to leave work to take care of the child himself.
After the meeting Young checked with the benefits office and verified that the grievant’s child did have a respiratory condition and that her mother, who was also employed at the plant, had been granted FMLA on occasion to care for her. Based on this information Young concluded that although the grievant had committed a serious offense in leaving the plant without permission, it was somewhat justified under the circumstances. He also assumed that the grievant’s reference to “personal business” in his discussion with Latimer when he requested permission to leave work concerned his child. As a result, he decided that a suspension, rather than discharge, was in order for the grievant’s offense. Consequently, he reached a verbal agreement with the Union to issue the grievant a thirty day suspension, which the Union agreed not to grieve. He emphasized, however, that at the time he issued the suspension he was under the mistaken belief that the only reason the grievant left the plant was to care for his child.
Young further testified that shortly after he issued the suspension he was contacted by the grievant’s regular Supervisor, Bo Faucett, and was told that he had heard that the grievant had left work on February 28, 2002, to participate in a basketball game sponsored by the plant league. Young then checked with the league basketball coordinator and obtained a score sheet, which showed that the grievant played in a game which began at 2:00 on that occasion and that he scored some points. Upon receipt of that information Young conducted a second fact finding meeting on April 3, 2002, in which the grievant admitted for the first time that after leaving work he played in a basketball game sponsored by the Dayton league. When asked why he did not mention the game when he was previously questioned, he stated that it was “irrelevant.” Young testified that following that meeting Management made a decision to discharge the grievant because he had lied and misled the Company concerning the reason he had left work on February 28, and that he filed a false claim for FMLA for that occasion.
On cross examination Young agreed that during the first fact finding meeting he had reason to doubt the veracity of the grievant’s story because he had given conflicting reasons – i.e., personal business and a parking ticket – for wanting to be excused from work. He made a decision, nonetheless, to resolve the matter by issuing the grievant a thirty day suspension because he had determined that the grievant’s child did have a respiratory condition.
Justin Kimbrough, who was a participant in the Dayton Tire basketball league and played in a game that took place on February 28, 2002, was subpoenaed as a witness for the Company. Kimbrough testified that he had a brief conversation with the grievant shortly before 2:00 on that occasion when the grievant’s team was scheduled to play. During that conversation the grievant informed Kimbrough that he had asked his supervisor for a leave and return and when it was denied he just left work so that he could play in the basketball game.
The grievant testified that he was late for work on the day in question because he had overslept. While on the way to work he got a call from his mother informing him that he needed to pick up his child because she was sick and the babysitter was not available to look after her. Consequently, immediately upon his arrival at work he told Clock Card Supervisor Jackie Rose that he had to leave and return that day in order to look after his baby.
The grievant testified that he subsequently spoke with Latimer and told him that he needed to leave and return for personal business and that Latimer told him that he could not authorize leave unless he had a legitimate reason, such as a court date. After that conversation he started to take a break and when Latimer told him that he could not take one since he had not worked that morning he became upset and called Latimer an idiot.
The grievant testified that he then went to the office and told Jackie Rose that he had no choice but to leave work. After that he went to his mother’s house, picked up his child, and went home. At about 1:45 a close friend, Chad Ediger, and his girlfriend stopped by his house for a visit and they agreed to keep the child for about an hour while he went to play a basketball game. He testified that he arrived at the gym just as the game started and that he returned to his home when the game ended, at about 3:00 p.m. and took care of his child.
The grievant testified that when he was asked during the March 4 fact finding meeting why he did not tell Latimer why he needed to leave work, he explained that he wanted to keep his personal life private. He added, however, that during the meeting he told the Company that when arrived at work he informed the Clock Card Supervisor that he had to do a leave and return at 1:00 because his child was sick and his babysitter was not available. He also informed the Company that he would be processing a claim for FMLA.
The grievant testified that he did have a conversation with James Kimbrough at the gym on February 28, but it was his recollection that he talked to him after the game rather than before. He also recalled discussing the leave and return with Kimbrough and stated that he never told him that it was for the purpose of participating in the basketball game.
Chad Ediger, a long-time, close friend of the grievant, testified that he and his girlfriend, Liz Woodrow, drove to the grievant’s house some time before 2:00 on February 28 to pick up a game he had left there. While they were there the grievant asked them if they would watch his child for a short while so that he could play in a basketball game. They agreed to do so and the grievant was gone for about an hour before returning to look after his child.
Clock Card Supervisor Jackie Rose was called as a rebuttal witness by the Company. She testified that when she first spoke with the grievant on the day in question she simply gave him instructions as to where he should report to work. She denied that the grievant told her at that time or at any other time that he needed to leave work to care for his child. She testified that she next spoke with the grievant at about 1:00, at which time the grievant informed her that he needed to leave because he had something to attend to. She in turn told him to wait until Latimer got back to the office and he said that he could not wait, after which he left the plant.
DISCUSSION AND DECISION
The central issue to be resolved herein is whether the grievant was discharged for just cause. In order to meet the just cause standard the Company must bear the burden of proving that the grievant did in fact engage in the misconduct of which he is accused; that discharge is a reasonable and just penalty for such misconduct in the light of any mitigating factors or extenuating circumstances which may be reflected by the record as whole; and that the grievant knew or reasonably could be expected to know that such misconduct could subject him to discharge.
Arbitrators generally agree that once proof of the offense has been established the determination as to the appropriate penalty lies generally within the discretion of Management. However, some limited arbitral review with respect to that issue is proper. In that regard it is generally understood that if the penalty is so harsh given the nature of the offense and any mitigating factors that it is found to be fundamentally unfair, or if was imposed for proscribed reasons other than the underlying offense, or if it was imposed under circumstances that denied the grievant his due process rights the penalty can be rescinded or modified by an arbitrator.
Prior to analyzing the “just cause” aspect of the grievance, the Union’s argument that there is double jeopardy or penalty twice assessed for the same act must first be addressed. In that regard the Union argues that because the Company had reached an agreement with the Union to suspend the grievant for thirty days for leaving the plant without permission, the subsequent decision to discharge him for the same offense subjects him to double jeopardy. The flaw in this argument is that it is based on the erroneous predicate that the Company assessed an additional penalty for the same offense. On the contrary, this is not a matter where the Company had second thoughts about whether the thirty day suspension was a sufficiently severe penalty for the grievant’s infraction. Rather, this case involved new evidence which uncovered an entirely different infraction – i.e., providing false and misleading information – for which additional discipline was warranted.
The suspension was for the grievant’s act of leaving work without permission. The discharge was for his acts of dishonesty. While the former is subsumed in the latter and was the triggering incident for the discharge, the penalties, Company actions and basis for action are different. The fact that they are connected, related, or that a nexus between them exists does not make them two penalties for the same act.
In addition, in view of the grievant’s untruthfulness during the March 4, 2002, investigatory meeting, even if a separate offense were not present, there would be no valid claim of double jeopardy. As the arbitrator explained in Boise Cascade Corp., 74 LA 1012, 1016 (Bowles, 1980), “[w]hat double jeopardy presupposes is that there is a full hearing before the first penalty is imposed.” In this case the grievant prevented a full hearing by misleading the Company with respect to the critical fact that he participated in a basketball game after he left work without permission.
Turning next to the issue of guilt, the weight of the credible evidence fully supports a finding that the grievant provided false and misleading information to the Company when he was questioned on March 4, 2002, as to the reasons he left work without permission on the date in question. Moreover, the legitimacy of his current assertion that he left work because of the need to care for his infant child remains highly suspect at best and totally incredible at worst. To begin with, contrary to the assertion made in the Union’s pre-hearing brief the grievant did not immediately upon his arrival at work on February 28, notify his supervisor of his need to leave to care for his child. By all accounts, about an hour after his arrival at work the grievant asked his supervisor for permission to leave and return and cited “personal business” as the reason he needed to do so. In addition, the grievant’s testimony that he told Clock Card Supervisor Jackie Rose that he had to leave to take care of his baby was flatly contradicted by Rose, whose credibility has far more weight than that of the grievant because, unlike the grievant, she has no interest in the outcome of this proceeding.
If the grievant had a legitimate need to leave work on February 28 to care for his child it defies credulity that he would not have informed his supervisor of that fact because he would have then had had a reasonable assurance that that would have been an acceptable excuse for a leave and return. Moreover, the veracity of his claim that he did not tell Latimer about his baby because it was a “private matter” is undermined by his testimony that he did tell Rose that he needed to leave to take care of his baby. In short, if he considered it proper to tell Rose, it makes no sense that he would not have also told Latimer.
The credibility of the grievant’s story that the real reason he left work was to care for his baby is also undermined by the testimony of Justin Kimbrough, a disinterested third party who had no incentive to give false testimony. Kimbrough testified that he spoke with the grievant prior to 2:00 p.m. on February 28, which was the time the grievant’s game was scheduled to begin, and that the grievant told him that he had left work after his request for a leave and return was denied so that he could play in the basketball game. This testimony eliminates any doubt that the grievant’s real motive for leaving work was not to care for his baby but to play basketball. Moreover, it shows that the grievant’s story about the need to care for his baby and the subsequent intervention by some friends who agreed to baby-sit for him long enough for him to play in the basketball game was just another fragment in the grievant’s tangled web of deceit. In addition, the fact that the grievant was not forthcoming about his participation in the basketball game when he was first questioned further weakens his credibility.
Finally, it is a well established legal principle that when a potential witness is available and appears to have special information relevant to the case and where his or her relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if the testimony is not produced an inference arises that it would not have been favorable. In this case, since the grievant’s defense is predicated entirely on his claim that he left work after he was contacted by his mother and told that he needed to pick up his baby, his failure to call her as a witness to verify that assertion creates an inference that her testimony would not have supported his claim.
Having determined that the grievant did in fact engage in the misconduct of which he is accused, the next issue concerns whether or not discharge is an appropriate penalty for those offenses. As previously noted, where proof of misconduct has been established, arbitrators are generally loathe to substitute their judgment for that of Management with regard to the penalty. Nonetheless, I have concluded that there are several compelling reasons for reducing the penalty in this case. First of all, although Work Rule 7, which pertains to leaving work without permission, calls for a penalty of discharge, the unrefuted facts show that the penalty for such an offense has historically been a suspension of two to four weeks. Thus, if the grievant had been truthful about the reason he left work when first questioned the worst punishment he could have expected would likely have been a suspension.
Second, although the grievant did violate the spirit and intent of the rule which prohibits the making of false statements of any kind, his offense was relatively innocuous because it was not for the purpose of allowing him to gain anything of monetary value. Instead, it was simply a foolish, albeit serious, error in judgment on the part of the grievant, when he misled the Company in an effort to provide an acceptable justification for leaving work without permission.
Finally, it is a widely accepted arbitral principle that disciplinary action should be designed to correct improper behavior rather than punish the offender, and that discharge should be reserved for either extremely serious offenses or for instances where the employee has failed to make a positive response to corrective measures. In this case there is no compelling evidence to suggest that the grievant is beyond redemption or will continue to be a problem employee if he is given another chance. He should be advised, however, that if he does not learn from this experience and correct what heretofore has been an insubordinate attitude and lack of concern for his job, his future employment will be in serious jeopardy.
As to remedy I have concluded that the grievant is entitled to reinstatement with full seniority but without back pay for lost earnings or other benefits. In essence, the discharge is being converted to a lengthy disciplinary suspension. The reasons for this conclusion are two fold. First, in light of the fact that the grievant did commit a serious offense, a back pay award would unjustly reward him and unfairly penalize the Company. Second, this penalty will send a message to other employees that similar acts of dishonesty will not be tolerated and can have severe disciplinary consequences.
In accordance with the foregoing opinion and for the reasons set forth therein the grievance is sustained in part and denied in part. The Company is hereby directed to reinstate the grievant with full seniority but without back pay for lost earnings and other benefits.
Stanley H. Sergent
September 7, 2002
Mr. Michael E. Norton
Mr. Charles Armstrong
Enclosed herewith are two copies of my Opinion and Award in the above-captioned dispute. Also enclosed is my statement for services rendered and expenses incurred in this regard. It has been a pleasure to assist you in this matter and I will look forward to the opportunity to be of service in the future.
Please advise me as to whether or not you consent to publication of the award. If you decline to respond to this inquiry within the next thirty (30) days, I will assume that you have no objection.
Very truly yours,
Stanley H. Sergent
Cc: Jim Neal
September 7, 2002
Mr. Michael E. Norton
Mr. Charles Armstrong
Grievance No. 7832
To fee: (Travel, hearing, study, and preparation) $3,600.00
Airfare and airport parking
TOTAL FEE AND EXPENSES: $4,279.89
Amount to be paid by the Employer ....................................................................................................$2,139.94
Amount to be paid by the Union ..........................................................................................................$2,139.94
(Taxpayer Identification Number - 65-0264789)
Please remit payment to Stanley H. Sergent at the Sarasota, Florida, office
Mr. Michael E. Norton
Mr. Charles Armstrong
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028