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Title: Palan's Piggly Wiggly and United Food and Commercial Workers, Local 1444
Date: December 11, 2002 
Arbitrator: Stan Michelstetter 
Citation: 2002 NAC 127 

BEFORE THE ARBITRATOR

_______________________________________________
In the Matter of the Arbitration of a Dispute Between

PALAN'S PIGGLY WIGGLY

and

UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1444

_______________________________________________
Appearances:
  
         Previant, Goldberg, Uelmen, Gratz, Miller, Brueggeman, Attorneys at Law S.C., by Naomi E. Soldon, appearing  on behalf of the Union.
  
         Consigny, Andrews, Hemming & Grant, S.C., Attorneys at Law, by Richard R. Grant, Appearing on behalf of the Employer.

  ARBITRATION AWARD

Palan's Piggly Wiggly, herein referred to as the "Employer," and United Food and Commercial Workers, Local 1444 , herein referred to as the "Union," having jointly selected the Undersigned from a panel of arbitrators provided by the Federal Mediation and Conciliation Service as the impartial arbitrator to hear and decide the dispute specified below; and the Undersigned having held a hearing on September 25 and October 14, 2002, in Janesville, Wisconsin: and each party having filed post-hearing briefs, the last of which was received December 11, 2002.

ISSUES

The parties were unable to agree to a statement of the issues, but agreed that I might state them.  I state them as follows:  

The parties stipulated to the following statement of the issues:

1.  Was the grievant demoted from her Department Head position in violation of the Agreement?

2. If so, what is the appropriate remedy?

RELEVANT AGREEMENT PROVISIONS
“* * *

ARTICLE I - RECOGNITION AND MANAGEMENT CLAUSE

* * *

1.17   The management of the business in all its phases and details shall remain vested in the Employer.  The rights of the Employer, the Union and the employees shall be respected and the provisions of this Agreement for the orderly settlement of all questions regarding such rights shall be observed.”

***

ARTICLE II - WAGES, HOURS AND WORKING CONDITIONS

***

 Section 7

There shall be one (1) head cashier, one (1) first assistant manager, and one (1)bakery/deli manager.

When sales average $200,000 per week based on the previous twenty-six (26) weeks, there shall be two additional classified employees called a produce manager and a second assistant manager.

ARTICLE III -  SENIORITY

Section 1

3.1.1 Seniority shall be defined as the length of continuous employment with the Employer within the bargaining unit except that service as a Department Clerk or Utility Clerk shall not be included as seniority for any other classification.

Seniority shall apply in all cases unless specifically excluded.

Where conflicts in seniority dates arise, the employees’ order of birthday (i.e., January more senior than February) shall prevail.  This tie breaker procedure shall not apply where seniority dates have already been determined by some other method.

***

Section 3

***

3.1.3            When a department head is reduced in classification, the employee shall be returned to his former classification with full seniority accumulated in both classifications.

3.1.4    An employee’s seniority will be broken by the following:

1. Discharge for just cause.

2. Voluntary quit.

3. Absence from work due to layoff for a period of one (1) year.

4. Failure to report back to work within seven (7) calendar days after receiving notification in writing to return to work following layoff.

5. Failure to return to work in accordance with the terms of a leave of absence.

6. Promotions to management for a period of two (2) years.

Section 2

3.2.1    Each employee shall accrue seniority within the following department classifications:

1. Department heads, each as a separate classification

2. Regular clerks (stocker, cashier, produce)

3. Department clerks (bakery, deli)

4. Utility clerks

When an employee in a higher classification is subject to layoff, the employee may either accept an uncontested layoff or may return to the employee’s former classification (if any) with the  full seniority accumulated in both classifications; provided, however, upon any subsequent promotion, the employee has only the actual seniority accumulated in the higher classification.

Section 4

3.4.1    A reduction in classification of a department head may be subject to the provisions of the grievance procedure.

***

ARTICLE VII - GRIEVANCE PROCEDURE

7.1               Any complaints of violation or infraction of any section of this Agreement shall be handled promptly in the following manner:

***

7.1.3     Should they, however, be unable to settle the same, the matter shall be submitted in writing within twenty-one (21) calendar days after its initial presentation as outlined in 7.1.1 above, with specific reference to the Article and Section of the Agreement involved, to a Board of Arbitration composed of one of the following: One (1) to be selected by the Employer and one (1) to be selected by the Union.

The Board of Arbitration shall render a decision within ten (10) days from the date of notification to arbitrate.

7.1.4       In case of disagreement, a third (3rd) member shall be chosen by an arbitration board.  Should the arbitration board be unable to agree on the third (3rd) member within five (5) days, either the Union or the Employer may request Federal Mediation and Conciliation Service to submit a panel of five (5) qualified arbitrators.  The third (3rd) member of the arbitration board shall be selected by the members representing the Employer and the Union, each alternately striking a name until one (1) remains as the selected arbitrator.

***

Section 2

***

7.2.3       Retroactive wage payments shall not be made for a period of longer than one (1) year from the date the grievance is filed.

Section 3

 It is agreed that nothing herein contained shall in any way prohibit the Employer from discharging any employee, providing it is for just cause.

Section 4

A discharge may be handled as a grievance.  However, the matter must be submitted as a grievance in writing within fifteen (15) days from the date of dismissal.  Final settlement, including the decision of the board of arbitration, must be made within the ten (10) days from receipt of such written notice.  If the board of arbitration is unable to reach a decision, the procedure as outlined in Article VII, Section 7.1.4 shall be followed.

***”

FACTS

The Employer operates a grocery store in Janesville, Wisconsin.  The Union represents virtually all of the employees of the Employer, including employees in the classifications of department head.  The Department Head position includes an employee titled Front End Manager.

The store operates on basically two shifts with some employees scheduled to overlap.  The store’s hours are from 7:00 a.m until about 10:00 p.m.  The first shift reports at 6:00 a.m. and leaves at 2:00 p.m.   The second shift reports on or after 2:00 p.m. and ends at 10:00 p.m. 

The Employer hired Paula McGuire in October, 1993, in a bargaining unit position.  She was assigned as a cashier.  She served in various position in the office after that time.  She was promoted to Front End Manager (also known as “Head Cashier’) on December 29, 1996.  She earned $13.05 per hour in the Head Cashier position.  

The Employer demoted her from Head Cashier on or about October 22, 2001, for the stated reason of her “inability to lead, coach and train the staff” which it alleged resulted in a decline of morale and production among the staff she was responsible for.   Ms. McGuire grieved the demotion and the same was properly processed to arbitration.

The Head Cashier is lead person position.  The Head Cashier reports to the owner and/or  Tom Sheridan, the Personnel Manager.  The Head Cashier schedules him or herself, and the schedule does vary as needed.   The Head Cashier is responsible to supervise all of the front end personnel.  This includes the personnel in the front office (assistant frond end managers and office help) and the cashiers.   The Head Cashier is responsible to insure that the front end personnel are properly trained.  He or she is responsible to schedule, plan and organize the front end operations in order that sufficient personnel are present when needed.  It is his or her responsibility to insure that front end personnel perform their work in accordance with the Employer’s procedures and policies, honestly, safely, efficiently and courteously to customers.   The Head Cashier is responsible to correct minor disciplinary situations with oral instruction and or warning.  The Head Cashier will recommend to the owner or Personnel Director that more severe discipline be taken, as appropriate.   The Head Cashier’s recommendation is given great weight in the decision as to discipline. The Head Cashier is also responsible to ensure that the front end operates to the Employer’s standards for cleanliness. The Head Cashier evaluates the employees he or she supervises.

Additionally, the Head Cashier is responsible to run the front office when he or she is on duty.  In that regard, he or she does the morning book work, deals with customer complaints or requests, and supervises the assistants in the front office.   The morning book work includes accounts receivable,  bad checks, reconciling cash, preparing work schedules and time keeping,   The Head Cashier is responsible for the proper handling of all payments and money. 

Because the Head Cashier is responsible for employees on both shifts even though the Head Cashier is not present, it is an essential element of the job that the Head Cashier delegate some responsibilities to others, establish appropriate lines of communication for the employees on the other shift and works sufficient hours on the other shift.  It is the Head Cashier’s responsibility to be aware of how others are functioning even when the Head Cashier is not actually present.  

POSITIONS OF THE PARTIES

The Union takes the position that the Employer violated Section 3.4.1 of the Agreement when it demoted Ms. McGuire without just cause.   In its view, the proper standard of review of the Employer’s actions is the “just cause” standard.   Section 3.4.1 provides that the demotion of a department head is subject to the grievance procedure and the better view is that in the absence of any other standard for review, the Employer should be required to show just cause for its action.  In the Union’s view, Ms. McGuire properly handled all of the elements of her job.  The Employer’s arguments that she did certain minor things incorrectly is insufficient to show just cause, even if the Employer were correct.  The Union concludes however, that many of these criticisms were shown to be incorrect or without merit.  The Employer has never challenged her book work, for example.  The  Union contends that the Employer’s claim that she lacked leadership was also without merit.   For example, she was not unreasonably tardy as alleged by the Employer.  However, the Union also contends that any tardiness could not affect her leadership ability because even when she arrived late, she arrived before any of the other employees she supervised.   Further, the Employer’s argument that she failed to work nights is without merit.  In its view, Ms. McGuire is credible when she testified that she was never told that she had to work nights until close.  She did admit that she was told to work some nights to 6 or 7 p.m.   Her time records demonstrates that she complied by working until 6 or 7 p.m. at least one night per week.   Similarly, the evidence does not support the Employer’s position that she scheduled herself to be off weekends.   The time records show she worked 30 out of 41 weeks when she was present. [She had  valid leaves of absence for the other periods.]  Similarly, it argues that Ms. McGuire was proper in delegating training duties to others.  Even the witnesses for the Employer admitted that there were times that they did talk to Ms. McGuire by telephone or in person.   In short, the Union argues that the Employer has failed to show that anything Ms. McGuire did created a morale problem or contributed to a morale problem among employees. 

Additionally, the Union argues that the Employer failed to adequately give Ms. McGuire an opportunity to correct any deficiencies in her work performance.  The Employer never told her that she was the cause of morale problems.  Instead, it gave Ms. McGuire instructions of things to do.  Ms. McGuire complied with all of these instructions.   No one told her she had to work until close. 

Finally, the Union argues that the Employer violated the contract and the law by conditioning its offer to return Ms. McGuire to her former front office assistant position on her withdrawing her  grievance protesting her demotion.  The Union also contends that this offer was illegal for that reason.  Ms.  McGuire did not have to accept that offer.  The Union seeks to have Ms. McGuire reinstated to her former position and made whole for all lost wages and benefits. 

The Employer argues that it did not violate the Agreement when it demoted Ms. McGuire.  In its view, the Union must bear the burden of proof to establish that the Employer violated the Agreement.  Under Section 1.17, the Employer retains the right to manage its business.  Section 3.1.3 recognizes that department heads may be demoted and returned to their former positions.  IN its view, the existence of this provision is the parties recognition of the Employer’s right to demote department heads for issues relating to their leadership even if they have not engaged in misconduct.  Department heads are part of the management team and, as such, the Employer must have flexibility to replace them when they are not meeting management’s expectations.  In its view, the Employer’s actions should be overturned only if they are arbitrary or capricious. 

The Employer argues that Ms. McGuire’s demotion was proper in any event.  Ms. McGuire contended that she did nothing wrong.  However, the Employer argues that her testimony is not credible.  In its view, she knew what was expected of her and either was unable or unwilling to do what was needed.   The Employer contends that Personnel Director Sheridan was credible when he testified that there were many deficiencies during Ms. McGuire’s entire tenure and that she had repeated counseling regarding those matters.  The testimony of Ms. McGuire’s co-workers supports the view of the Employer.  They all agree that Ms. McGuire did not significantly participate in training and did not provide leadership to them when they assumed her responsibilities.  Ms. McGuire avoided being personally available for problem solving, preferring instead to require them to deal with her by written note.  They testified that this method was inefficient and that Ms. McGuire often did not solve the problem even when they did communicate by note.  She so regularly failed to return telephone calls to her home that these witnesses said they gave up trying to communicate with her at home.   Their testimony demonstrated their frustration in working with Ms. McGuire and that there were many situations in which operational efficiency and customer service were undermined. 

It also argues that Ms. McGuire is not credible when she testified that she had no warning.  It relies upon the testimony of both Mr. Sheridan and Mr. Palan that they met with Ms. McGuire in July and specifically told her to make changes in her approach because morale and efficiency were suffering.   It also relies on the testimony of both that they regularly talked to Ms. McGuire about working nights, weekends, and about her leadership skills.    Finally, it notes that Ms. McGuire refused the offer to return to her former position and that the offer was not conditioned on her withdrawing her grievance.   It seeks to have the grievance dismissed. 

DISCUSSION

The first issue in this matter is the standard of review for the demotion of a department head.   Section 3.4.1 provides that a reduction in classification of a department head is subject to arbitration, but it does not state what the standard of review is.   The standard of review is, therefore, properly determined by reviewing the evidence in the agreement as a whole.  

Section 1.17 reserves to management the “management of the business in all its phases and details,” but also ambiguously provides that the “rights of the * * * employees shall be respected * * * *”[Emphasis supplied.]  Disciplining and demoting employees for inability to meet the minimum standards for their job classification are functions generally preformed by any management and which are fundamentally reserved to management by this provision.   The terms “rights” of the employees and “shall be respected” used in this context can be read as a broad restriction.  As a broad restriction it might require that management’s exercise of its prerogatives must always be reasonable.  It also could be read more narrowly as referring only to the “rights” which are only created under other terms of the agreement.  

Section 3.1 provides that discharges must be for just cause.  By expressing this standard for discharges but not expressing any standard for other disciplinary actions, I conclude that the parties intended that the just cause standard should not apply to the demotion of a department head.  Section 8.4 prohibits the Employer from unlawfully discriminating against any employee in any way (including, but not limited to, demotions).    This provision would also have the practical impact that the Employer’s personnel decisions be rational and not be a pretext for other motivations. 

Section 3.1.2 permits the employer to reduce hours or layoff employees presumably for lack of work.  Section 3.2.1 might have had the impact that department heads who were laid off for lack of work would be separated from employment, but for the terms the parties added in Section 3.1.3.   Section 3.1.3 provides for the right of laid off department heads to “bump” back into their former position in the event of a layoff, but Section 3.1.3 is not drafted in a manner parallel to Section 3.2.1 which relates to a “layoff” or “reduction” in hours.   3.1.3 appears to provide for the right to return in any situation in which a department head is reduced in classification, including, but not limited to when a department head is demoted for misconduct or poor performance.  It is unclear why the parties chose to specify what would happen when a department head was reduced in classification for a reason other than layoff when the parties did not bother to specify what happened in similar circumstances if employees were reduced in classification for misconduct or poor performance[2].   Certainly, the department head positions in this unit are highly paid and also involve more responsibility than other unit positions.   The positions are distinguished from other positions in the unit in that they involve significant responsibility over fellow employees and involve understanding and maintaining the Employer’s standards for operations.   The better view of Section 3.1.3 is that it embodies some recognition on the part of the Union that the Employer is entitled to substantial discretion in the choosing and changing departments heads.    In this context, the better view of the agreement is that the Employer has the burden to produce evidence as to its reasons for a demotion of a department head.[3], but the Union bears the burden of persuasion to show by a preponderance of the evidence that the Employer’s action was arbitrary, unlawfully discriminatory, or capricious. 

It is important to make note with respect to Nicolet High School v. Nicolet Education Association, 114 Wis.2d 114 (Ct. App., 1983), reversed 118 Wis.2d 707 (1984).  In that case, the Court of Appeals found an arbitrator exceeded his authority when he applied the standard of arbitrary and capricious in a manner which was inconsistent with the way that standard was used in the law of Wisconsin.  In that case, the management rights provision stated that the exercise of the authority to non-renew a teacher by management could only be reviewed for the existence of a violation of the specific provision.   In this case, the management rights clause provides that in the exercise of management discretion to demote an employee, the rights of the employee “shall be respected.”   This is, itself, a restriction on the exercise of the right to demote.   The standard of review specified above is a somewhat greater restriction than the one involved in Nicolet.  The standard discussed above is applied in the context of labor-management relations and is a standard of review of personnel decisions in the context of the way those decisions are ordinarily made in the field.   In this context, one would expect that the management decision would be made on the substantial and believable evidence known to management and also on the basis of a reason which are recognized in labor relations as a sound reason for a personnel decision.   The judgment must be one which is reasonable for management to make based upon the facts that it knew.   For example, in this case, the Grievant has been in her position for some five years.   It would make sense that where the facts suggest that the  Grievant has performance problems which might be correctable, that the Employer would at least give her some warning and an opportunity to change.

The main reason that the Employer demoted Ms. McGuire was that she failed to maintain the morale of the employees she supervised, particularly those on the night shift, and that she failed to maintain adequate communication with the employees she supervised.   In the Employer’s view, she was not adequately in control of the employees she supervised.    One major issue which arises from the parties’ presentation relates to the core functions of the Front End Manager position and the level of responsibility which the position has.   The Front End Manager has many duties, but the primary duty of the Front End Manager is to supervise about  twenty to thirty front end employees.  These include some full-time employees, but also include many part time employees who are mostly students.   This responsibility extends to all the employees under his or her supervision including those who work the evening shift and weekend days.  The demands on the Front End Manager are substantial.  The Front End Manager must prioritize his or her time and must delegate many duties.  One of the essential functions of the Front End Manager is to establish and maintain lines of communication adequate enough that he or she is aware of supervisory issues which arise even on the shifts he or she is not working.  This would entail creating relationships with employees in which they are comfortable addressing those concerns to the Front End Manager and in which the employees perceive that those concerns are being adequately addressed.  It would also entail promptly addressing problems which occur on any shift or insuring that those problems are adequately addressed.   The Front End Manager reports directly to management.   Accordingly, a  successful Front End Manager would insure that employees don’t have to bypass the manager to get their concerns addressed.  

 The evidence reveals that the Employer came under significantly increased competition  from new grocery stores which opened in the areas.  The Employer was very concerned that its front end operation be efficient and customer friendly.  In this regard, the Employer made efforts to increase the quality of supervision and to insure that there was more supervision on the weekends and evenings.  It is in this context that the Employer concluded that Ms. McGuire failed to maintain an adequate supervisory relationship with the people she supervised.

The Employer supported its decision to remove Ms. McGuire from her Front End Manager  position with the testimony of Tom Sheridan who is the Human Resources Manager.  He stated that Ms. McGuire had difficulty with her “people” skills from the beginning of her promotions.  He said normally new department heads progress to full rate in a year  or year and a half.  However, Ms. McGuire took almost three years.  He said from the beginning she shied away from direct supervision of her employees and that he and she frequently discussed his and her concerns about her “people skills.”

He said that Ms. McGuire failed to take the steps necessary to establish the appropriate supervisory relationship with those employees who worked evenings and weekends.  He said that she failed to maintain the morale of the employees she supervised and, to some extent, failed to set an appropriate example by working weekends, nights and reporting on time.  He said that employees on these shifts expressed concerns to him that they were required to do Ms. McGuire’s work, that they had difficulty communicating with her about their problems and that morale among these employees deteriorated to the point that it was necessary to replace her. 

The tenor of Mr. Sheridan’s testimony was that it was his belief that there were proven ways for a Front End Manager to set a proper example and maintain an appropriate supervisory relationship.  These techniques included reporting to work on time, promptly returning from break, working at least one evening per week past 9:00 p.m., working every other weekend, directly training new employees as much as practical, and encouraging employees to call her with their problems at any time she was off.   The testimony of Audrey Nicole Petit indicates that these techniques can be applied successfully to achieve an appropriate supervisory relationship.  Mr. Sheridan and Mr. Dan Palan addressed Ms. McGuire’s difficulty with her “people skills” primarily by addressing these factors.

Mr. Sheridan testified that Ms. McGuire concentrated primarily on doing book work rather than focusing on her relationships with the employees she supervised.  He stated that she felt uncomfortable training the students and working with them directly.  He also testified that she tended to avoid working night hours and that this became more pronounced later in her tenure.  It was his belief that she should actively train the night personnel and that she should at least oversee their training.  He also testified to the effect that she avoided making herself available by telephone or other wise to answer the inevitable questions which arise when Ms. McGuire is not on duty.   It is undisputed that Ms. McGuire preferred to deal with questions by having people from the night shift leave her notes.   He also believed that she avoided working weekends.  He stated that Ms. McGuire arrived late too often on the mornings when she opened the store.  Although, it was not something of which management was really consciously aware, he noted that Ms. McGuire had also had a number of long breaks.  He said the principle result of this was that there was very low morale among the employees Ms. McGuire supervised. 

There is clear evidence in support of Mr. Sheridan’s conclusion that Ms. McGuire’s communication and other “people skills” undermined morale and kept her isolated from many of the people she supervised.   His position was supported by the testimony of former employees; Jesse Hayes, Audrey Petit, and Eric Hill.  Each testified as to their frustration in communicating with Ms. McGuire only through notes, their assumption of duties without adequate support from Ms. McGuire and their consequent low morale and isolation from Ms. McGuire.   Each went over Ms. McGuire’s head and repeatedly addressed their concerns to management.  

Specifically, Mr. Hayes testified he was an office worker under Ms. McGuire’s supervision.  He primarily worked nights.  He assumed additional duties beyond his office work because he saw that they needed to be done and no one was doing them.  These duties included scheduling employees and dealing with special scheduling needs.  They also included training employees and insuring that they performed their job correctly.  He identified employees who were performing poorly and on one occasion disciplined an employee.  He said that Ms. McGuire did not train him in his office duties or in the duties he assumed.  Ms. McGuire did not assign the duties he assumed.  He merely took them on.  He assumed responsibility to schedule employees on the night shift and adjust their schedules to meet their personal needs.

He testified that he primarily communicated with Ms. McGuire by leaving notes for her when she arrived in the morning . He said that he tried to call her home when he had problems he could not handle.  He left messages, but his calls were not returned.  He abandoned those efforts because she did not return his calls.  He testified that it was difficult to communicate with a note.  He also said that the method of communication was often too slow to get a timely response.  Further, he said that even when he did handle a problem with a note, Ms. McGuire often didn’t resolve the problem.

 Mr. Hayes’ testimony indicates that he did not believe that the duties he took on were delegated to him, but rather that they were abandoned by Ms. McGuire.  He did not believe that Ms. McGuire was supervising him or that she was adequately supporting him in his assumed role.   He by-passed Ms. McGuire with his day-to-day problems and frequently went over her head to management about his concerns. 

Ms. Audrey Petit’s testimony was similar.  She was a high school student when she was an office assistant who worked for Ms. McGuire.  She ran the office on nights and weekends.  She opened the store on weekends.   She oversaw the front end personnel while she was on duty   She was trained by Ms. Nunn who she viewed as Ms. McGuire’s assistant.  She said she communicated with Ms. McGuire by notes.   She said that there were times she talked to Ms. McGuire by telephone, but that particularly near the end, she communicated primarily by note.  She said that Ms. McGuire did not return her phone calls and that she avoided making those calls.  She took on additional responsibilities.  These included answering the questions from other staff, including during her off-duty hours.  She said she was happy doing the additional work, but told management she did not think it was fair that she was not paid appropriately for doing the work.   This evidence supports the Employer’s conclusions to some extent as to morale and supports it conclusions with respect to the communication issues.  

Mr. Eric Hill testified he was an office assistant who worked for Ms. McGuire.  He said that over time he learned to do more tasks with the help of fellow employees and on his own.   This included doing scheduling and time and attendance.  He said that Ms. McGuire taught him to open the store, but that she otherwise did not participate in his training.   He believed that Ms. McGuire should have been more involved in the training of him and other employees.  He said that Ms. McGuire never checked with him to see that the work he was doing was getting done properly.  He also said that he had difficulty communicating with Ms. McGuire.  He communicated with her by note.  He said that when he called her home, she did not return the call.  He also expressed frustration with the process of using notes.   He said that Ms. McGuire did not work nights and that he frequently complained to management about that. 

Mr. Hill’s testimony showed that he felt that he was required to take on responsibilities that he should not have been required to take on, that he felt that Ms. McGuire did not supervise him and that she did not support him in his duties or answer his questions    The testimony of all of these employees demonstrate that there was credible evidence known to the Employer to support its judgment that Ms. McGuire contributed to the lack of morale and failed to maintain adequate lines of communication with the employees she supervised.   

The Union defended Ms. McGuire on the basis that she was properly performing all the duties of her job and, in essence, that the problems which occurred were beyond her control.  The essential issue in this matter was maintaining appropriate lines of supervisory communication with the employees she supervised.  Ms. McGuire’s own testimony as a whole indicates that she was not really aware of the morale problems of the employees on the night shift and that she did not believe that there were any difficulties with the way she was supervising those employees.  The Union is correct that Ms. McGuire did try to comply with some of Mr. Sheridan’s suggestions.  For example, she did work evenings until or 7 p.m. once a week.  This compliance might have been successful, if she had also changed the way she dealt with the employees she supervised.  She still continued to work in a way which undermined her relationship with the employees she supervised and accordingly in a way which hurt morale.  

An example of this was Ms. McGuire’s delegation of responsibilities to subordinates.  The Union is correct that Ms. McGuire had so many responsibilities that her job required that she delegate many of them.  One would expect that Ms McGuire would have made a reasoned choice to prioritize her time and reasoned choice to delegate less important duties.  One would expect that she would personally communicate with the person to whom she assigned the duties and would train the person in those duties.  One would also expect that she would make herself available to answer questions and to otherwise provide direct support to the person performing the duties.  Instead, Ms. McGuire  just abandoned large parts of her work.  Others believed that they were forced to move in to fill the void.  Even then, the record establishes that Ms. McGuire isolated herself by confining communication to notes and by refusing to even acknowledge the phone calls made to her home.  This was not delegation, but abdication. 

 Another example, was her participation in training of cashiers and others on the night shift.  The Union is correct when it asserts that it was impossible for Ms. McGuire to participate in the training of all of the employees she supervised.  However, it appears that she asserted little or no control over the training of employees.  It is also obvious from the testimony of the employees she supervised that she did not use their initial training as a time to open channels of communication between them and her.   For example, Mr. Hill was trained largely in 1998.  He testified that he was trained by a number of others.  He did testify that Ms. McGuire trained him on how to open the store.  Nonetheless, he did not perceive Ms. McGuire as a mentor or a person who was accessible.  Thus, it is very  unlikely that Ms. McGuire used training situations to open those lines of communication.  Ms. Petit testified in a similar manner.  She said she started in 1997 and learned new duties throughout her tenure.  She was trained by the owner’s wife and by Ms. Nunn who she viewed as Ms. McGuire’s assistant.  It was appropriate for Ms. McGuire to delegate her training duties to Ms. Nunn if she was her assistant.  Nonetheless, Ms. Petit did not believe she could effectively communicate with Ms. McGuire about her concerns and Ms. McGuire failed to insure that Ms. Petit had adequate lines of communication with Ms. Nunn..  Similarly, the testimony of many of the witnesses about training of new employees in the night shift make it clear that Ms. McGuire did not even pay attention to scheduling training and did not participate at all.   Accordingly, Ms. McGuire failed to use delegation and training situations as an opportunity to open communications. 

The Union also defended Ms. McGuire’s use of notes as an appropriate method of communication.  It also legitimately argued that she did work two times per week until 6 p.m.   It properly implied that it was unfair and impractical for her to be available all of the time from her home.  In its view, it was proper for her to avoid responding to calls made to her home and proper for her to essentially delegate a large part of the problem solving to those on the night shift.  The difficulty is that Ms. McGuire took no responsibility to actively delegate those responsibilities to some one on the night shift and did not support them in their performance.  Her process of using notes was frustrating and inefficient for those who assumed her responsibilities on the night shift.  Her choice to frequently ignore telephone calls to her home rather than affirmatively respond isolated her and undermined the morale of those who assumed those responsibilities.   Ms. McGuire could have made different choices which would have left those who performed those duties feeling supported and confident in dealing with issues on their own. 

It is also very possible that some of the frustration expressed by the witnesses for the Employer was from factors beyond Ms. McGuire’s control.   For example, She did not have the authority to financially reward those who assumed responsibilities.  Nonetheless, there is substantial evidence which indicates that Ms. McGuire’s “people skills” interfered with her effectiveness.   

The next issue in this matter is whether Ms. McGuire had an adequate opportunity to change  her behavior.  It is an elementary principle of labor relations that an employee is entitled to at least one clear warning that his or her conduct will lead to his or her discipline for those matters which are  neither so obvious that the employee should have known better or so serious that more severe discipline is warranted.   The one-warning principle has less importance in situations in which the cause of the problem is inability to perform the work adequately. 

Ms McGuire testified on direct examination that no one in management ever told her that she was not performing her job duties correctly or gave her any verbal warning.  She stated that no one told her she was “hurting morale” or that she was not properly leading, coaching or training the staff.  There is no evidence that anyone in management ever told Ms. McGuire that the employees she was supervising were complaining about her to management.   Mr. Sheridan testified that Ms. McGuire’s “people skills” were always a matter of discussion between the two of them.  His testimony indicates that management approached the problem by suggesting that Ms. McGuire use the techniques management thought would lead to an effective supervisory relationship.  Mr. Sheridan testified that he told her to work some evening hours on repeated occasions.  It is unclear how specific he was.  Ms. McGuire would schedule herself to work until 6 or 7 p.m., but the effort would fade.  Mr. Sheridan testified that his expectation was that she would work until 9 p.m. at least one night per week. 

            He testified that he and Mr. Dan Palans held a formal meeting with Ms. McGuire in July 2001.  He stated that he and Ms. McGuire had a discussion before that meeting in which he told her that the meeting was about her job performance.  This meeting followed a period in which Ms. McGuire took three three-day weekends in a row.   He essentially said that they discussed the fact that the weekends and the great number of times she came in late created a poor example for employees and tended to undermine morale.  It is clear in that meeting that he told Ms. McGuire that she would have to work evenings.  She resisted the idea and suggested that they hire a night manager instead.  He  testified that he specifically told her that they were not getting morale or production out of the night people.  Mr. Sheridan and Mr. Palans both testified that Mr. Palans told Ms. McGuire that if she did not meet their expectations that “changes would be made.”   I find Mr. Sheridan and Mr. Palans’ testimony about this meeting credible.   The ordinary disciplinary practice here is for management to “talk to” department heads.   That is about as far as discipline goes for department heads here.  In this context, the fact that Mr. Palans and Mr. Sheridan held this discussion with Ms. McGuire and that she was told that if she did not meet their expectations “changes would be made” is sufficient to be a very direct warning to Ms. McGuire that she had to change her work habits and, more importantly, that she had to improve her “people skills” to deal with morale and productivity problems.

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