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Title: Fresh Fruit & Vegetable Workers and Arroyo Grande Mushroom Farms
Date: April 29, 2003
Arbitrator: Allen Pool
Citation: 2004 NAC 104

IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES

            This Arbitration arose pursuant to Agreement between FRESH FRUIT & VEGETABLE WORKERS, UFCW LOCAL 1096, AFL/CIO - CLC, hereinafter referred to as the “Union”, and ARROYO GRANDE MUSHROOM FARMS, hereinafter referred to as the “Company”, under which C. ALLEN POOL was selected by the parties to serve as the Arbitrator.  The Parties stipulated that the matter was properly before the Arbitrator and that his decision would be final and binding.  The parties also stipulated that the Arbitrator, if the Award is in favor of the Union, should retain jurisdiction over any disputes that may arise regarding implementation of the remedy.
            The hearing was held in the City of Arroyo Grande, California on April 14, 2003 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and argument.  The witnesses were duly sworn. .  The Union made an Oral Closing of its presentation and the Company submitted a “Letter Brief” as its closing.  The “Letter Brief” was timely received on April 25, 2003 at which time the record was closed. 

APPEARANCES:

STIPULATED ISSUE

            Did the Company have just cause to terminate Tom Flores?  If not, what shall be the remedy?

RELEVANT PROVISIONS OF THE AGREEMENT

Article 6 – Grievance and Arbitration Procedure

(B)              Grievances shall be processed in the following manner:

Step 1.   Any grievance shall be immediately taken up between the supervisor involved and the Union Steward.

Step 2.   If the Grievance is not resolved in Step 1, the grieving party shall file the grievance in writing with the other party……. The Company and the Union shall meet within ten (10) workdays after presentation of the written grievance.  A Union representative may fully participate in the Step 2 meeting.

Step 3.   If the grievance is not settled n Step 2, the party filing the grievance may appeal it to arbitration…..

Within these limitations, the arbitrator’s authority shall include: (1) awarding back pay to employees for any loss of earnings from the company; (2) awarding damages to the company in appropriate circumstances; and (3) ordering compliance by all parties with the provisions of this Agreement……. The decision of the arbitrator shall be final and binding on the Company, the Union, and the employee or employees involved.

All expenses of the arbitration including the meeting room, catering, transcript, etc., and the salaries and other costs of the arbitrator shall be borne by the losing party.  If a question remains as to who is the losing party, the arbitrator deciding the case shall have full authority to determine the percentage of costs to be borne by each of the parties.  Each party shall pay the cost of presenting its own case……

Article 9 – Discipline and Discharge

(A)       The Company shall have the sole right to discipline and discharge the workers for just cause, providing that the exercise of this right will not violate this Agreement.  No worker shall be disciplined or discharged except for just cause.  No worker shall be discharged unless the Company has given at least three (3) warning notices before proceeding with discharge in cases of absenteeism, tardiness, or quality of work…….

….. No warning will be required before suspension or discharge for other offenses, including but not limited to, dishonesty, flagrant insubordination, theft of company property, safety violations, consuming alcohol or illegal drugs on the property, reporting for work under the influence of alcohol or illegal drugs.

RELEVANT PROVISIONS OF THE COOPERATE HUMAN RESOURCE POLICY & PROCEDURE MANUAL

5.              Rules and Discipline

5.0.1        Unacceptable Activities

Generally speaking, we expect each person to act in a mature and responsible way at all times.  We have nonetheless listed several obvious unacceptable activities below in order to avoid any confusion.  The types of misconduct identified are merely examples of conduct that may lead to disciplinary action.  Your avoidance of these activities will be to both of our benefit.  Consult your supervisor is you have any questions regarding any of the unacceptable activities listed.  The occurrence of any of these activities, due to their seriousness, may result in some form of disciplinary action up to and including immediate dismissal without warning:

- Engaging in criminal conduct or acts of violence, or making threats of violence toward anyone on company premises or when representing Monterey Mushrooms; fighting, horseplay, or provoking a fight on company property; negligent damage of property.

- Any act of harassment, sexual, racial, or other; telling sexist or racial-type jokes; making racial or ethnic slurs.

5.0.2        Disciplinary Actions 

Monterey Mushrooms is committed to maintaining a work climate that promotes maximum development and achievement.  We encourage open and direct communication between all employees and their supervisors. Hopefully, such communication will tend to promote resolution of employee concerns in an atmosphere of mutual trust and in a manner that is generally responsive to individual circumstances.

We nevertheless may initiate disciplinary action when a problem arises that adversely affects the quality of work or the work environment.  Out management may at any time initiate whatever disciplinary action it deems appropriate (up to and including immediate discharge) in accordance with the facts and circumstances involved.

BACKGROUND

            Arroyo Grande Mushrooms, located in Arroyo Grande, California, is involved in the growing, processing, and marketing of mushrooms.  The Company is one of several similar facilities engaged in the same activity and affiliated with the corporate entity known as Mushroom Farms, Inc. whose headquarters are in Salinas, California.  Most of these mushroom-growing facilities are located throughout California’s Central Coast region.
            The Grievant had been employed with the Company for eleven (11) years.  His job was that of Driver which included but was not limited to delivering product (mushrooms) to customers.  His duties included handling the requisite paperwork for the Company.  The events that led to his termination took place on Monday and Tuesday on August 19^th & 20^th of 2002.
            Sometime on Monday, while at work, the Grievant was told that Brian Muth, the Growing Manager, wanted to see him the next morning Tuesday, August 20^th.  The Grievant had an appointment an 8:00 a.m. to have some blood drawn at the Blood Laboratory in Santa Maria that Tuesday morning.  Santa Maria is about a 30-minute drive south of Arroyo Grande.  Prior to having blood drawn, he was required to fast for a 12-hour period.  The Grievant made arrangements for the time off to go to the laboratory with another driver and had informed his Lead Foreman of the appointment.  When he was told he was to meet Tuesday morning with the Growing Manager, Brian Muth, he called the laboratory and changed his Tuesday appointment from 8:00 a.m. to 10:30 a.m.
            On the morning of August 20^th, the Grievant reported to work at 7:00 a.m.  He learned he was to drive to Sweetwater Tech in San Luis Obispo and pick up a large motor mounted on a pallet and bring it to the Arroyo Grande plant.  The trip to and from San Luis Obispo would take about an hour.  However, the truck he was to drive was not ready at that time.  The truck was not ready for use until approximately 9:00 a.m. at which time the Grievant departed to pick up the motor.
            Prior to his departure, the Grievant was given the requisite paperwork that consisted of (1) a Receiver (actually an invoice) and (2) a “manually cut check” for payment of the motor.  The manually cut check warrants some explaining.  Since the vendor the Company was purchasing the motor from was not a vendor with whom they regularly do business with, a check to pay for the motor needed to be manually written out and signed by a manager at the plant.  In this case, that was Grower Manager Brian Muth.  To manually cut a check, according to Mr. Muth’s testimony, the manager at the Arroyo Grande plant needed to first secure prior approval from the Controller at the corporate office in Salinas, Mushroom Farms Inc.  This would insure that the manually cut check would clear with the bank.
            The manually cut check was written out with the correct amount of the purchase price and signed by Brian Muth.  The check had a carbon copy.  The carbon copy of the check along with the invoice or a copy of it was to be returned to the Company’s office manger, Eric Palacio,  on the Grievant’s return from picking up the motor.
            On the Grievant’s return, a series of events occurred that led to his termination.  The Grievant returned from his trip at or about 10:00 a.m.  He testified that on his return he called the blood laboratory and Norma Perez, the office assistant.  The Grievant laid the Receiver (Invoice) on Ms. Perez’s desk.  (This is a point I will address later because the Office Manager, Eric Palacio was not aware of this until a few days later.)
            Mr. Palacio, in his August 21^st Declaration wherein he stated what happened in his encounter with the Grievant, said that the Grievant had forgotten to bring back the carbon copy of the check and the Receiver (Invoice).  Mr. Palacio, in his Declaration stated that the Grievant told him he “forgot it at the place” (Union Ex. 1).  Mr. Palacio’s told the Grievant that he needed that carbon copy of the check “to process the check so it won’t bounce”.  This encounter took place in the hallway. Manager Brian Muth entered into the conversation and told the Grievant, “Tommy, you need to go pick the check up so Eric can do his job.”  The Grievant asked if he could pick up the copy the next day.  His request was denied.  The Grievant walked out, slamming the door and left to get the carbon copy of the check (Union Ex.-1).
            Again, according the Mr. Palacio’s account of what occurred in Union Exhibit No. 1, the Grievant returned from his second trip about an hour later.  The Grievant walked up to the door leading to Mr. Palacio’s office and started yelling, “here is your fucking check” and threw it on the ground (floor) and walked away.
            The office assistant, Norma Perez, was working at the copier where she was unable to see the Grievant but overheard the entire exchange.  She asked Mr. Palacio “Why is he so mad?”   Mr. Palacio answered, “I don’t know maybe because of his doctor appointment.”  After that, Mr. Palacio walked over to pickup the check from the floor whereupon he asked the Grievant, “where is the receiver” (Union Ex. 1)?
            It was apparent that Mr. Palacio, at this time was not aware that the Grievant had placed the Receiver/Invoice on Ms. Perez’s desk on his return from the first trip.  Moreover, Mr. Palacio was not aware of this at the time he wrote out his declaration the next day, August 21^st.  And, he testified, on re-direct that it was at “some time” before he realized that he had all the paperwork; that is, the Receiver and the check’s carbon copy.  The evidence record did not reveal the exact time of the Office Manager’s awareness but it was certainly after the commencement of the investigation on the morning of August 21^st and after he wrote and submitted his Declaration on the same day.
            Accounts of what actually occurred after Mr. Palacio asked the Grievant “where is the receiver” differ.  According the Mr. Palacio, the Grievant started yelling at him “like out of control” saying he had lost his doctor’s appointment.  He wrote that the Grievant got really close and started yelling in his face and “Then, he (Grievant) said,"You know what I’ll deal with you tomorrow.  He walk back a bit and said, ‘Tell Art (Lopez), I left and I don’t care if he writes me up or fires me.” (Union Ex.-1).
            The Grivant’s account of what happened after the Office Manager, Eric Palacio, asked “where is the Receiver” was reflected in his testimony.  He testified that he looked back and saw Mr. Palacio chuckling and that he “just blew up”.  He approached Mr. Palacio speaking in a loud voice and swearing, “You think this is fucking funny?”
            Norma Perez, the office assistant who did not see but overheard the entire exchange, testified that she heard the Grievant speak in a loud voice saying “You think this is fucking funny.  You made me miss my medical appointment.  She also heard him say to Mr. Palacio “I will deal with you tomorrow.”  According the Ms. Perez, the Grievant then left the premises.
            Mr. Palacio immediately reported the incident to the Growing Manager, Brian Muth.  He told Mr. Muth that he would not be reporting to work the next day that he was concerned for his safety.  Mr. Muth testified that he told him to document the incident.  Mr. Muth then spoke with Ms. Perez about the incident confirming that both she and Mr. Palacio were “afraid” at the time.  A few minutes later Mr. Palacio was outside where he waved down the Plant Manger, Art Lopez, and reported the incident to him.
            The next morning Plant Manager Art Lopez met with the Grievant to commence his investigation of the incident.  The Grievant made it known that he wanted to have a representative from the Union present.  Mr. Lopez honored his request.  At the same time, Mr. Lopez placed the Grievant on suspension pending the outcome of the investigation.  A letter notifying the Union of this action was sent the Union’s President, Pete Maturino, that same day.
            The investigation continued four of five days later when the Plant Manager, Art Lopez met with the Union President, Pete Maturino and the Office Manager, Eric Palacio.  The Grievant was not present at the meeting.  Mr. Maturino had instructed the Grievant not to attend and that he would represent him at the meeting.
            At this meeting, Mr. Maturino asked the Mr. Palacio what he thought the Grievant meant when he said to him “I’ll deal with you tomorrow”?  Mr. Palacio responded, “I don’t know”.  Mr. Maturino also asked Mr. Palacio if the Grievant threatened him.  Mr. Palacio’s response was No!  Plant Manager Art Lopez, in his testimony, confirmed that Mr. Maturino asked Mr. Palacio what he thought the Grievant meant by the statement “I’ll deal with you tomorrow” and that Mr. Palacio’s response was “I don’t know”.
            During the hearing, the statement made by the Grievant to Mr. Palacio was altered from “I’ll deal with you tomorrow” to “I’ll take care of you tomorrow”.  The evidence record did not support the alteration.  In his declaration of August 21^st wherein he wrote his account of the incident, Mr. Palacio stated that the Grievant’s statement to him was “I’ll deal with you tomorrow” (Union Ex.-1).  Ms. Lopez, in her testimony, recalled that the Grievant said “I’ll deal with you tomorrow”.
            On August 26, 2002, Mr. Lopez notified the Grievant that his employment with the Company was terminated.  The reason for the termination given by Mr. Lopez in his letter was that the Grievant “verbally abused and harassed a fellow employee (Eric Palacio).  That he (Palacio) felt threatened for his health and safety and was refusing to present himself for work unless the Company took appropriate action to insure his safety.  This Company will not tolerate this type of behavior.  Therefore, we must take the action of termination for harassment of a fellow employee.” (Joint Ex. –2).  A grievance was filed by the Union and was processed to this Arbitration.

POSITION OF THE EMPLOYER

            The Company had just cause to terminate the Grievant.  The Grievant violated the Company’s Zero-Tolerance Policy for harassment and violence in the workplace.  The facts are not in dispute.  The Grievant verbally abused, assaulted, threatened, and harassed a fellow employee, his Office Manager.  The Company does not tolerate this type of behavior.  Termination was the appropriate action.  The Grievance should be denied.

POSITION OF THE UNION

            The Company did not have just cause to terminate the Grievant’s employment.  The Grievant did speak loudly and did use foul language, but the incident did not a include physical assault or a threat.  Termination was too severe an action.  The Company should have applied the concept and practice of progressive discipline.  Given the mitigating circumstances, a lesser penalty would have been more appropriate.  The Grievance should be sustained and the Grievant should be made whole for all lost benefits and income with interest.  

DISCUSSION

            A considerable amount of time was spent in the hearing discussing the Company’s Corporate Human Resource Policy & Procedure Manual (Company Ex. 1).  The topic of discussion centered on the Manual’s Article 5 - Rules & Discipline, Unacceptable Activities and Discipline Actions and its zero-tolerance policy with respect to harassment and violence at the workplace.  The purpose of the Policy according to the testimony of Company’s Corporate Human Resource Manager, Joe Guadamaz, was to insure uniformity of implementation by all company officials at all facilities including Arroyo Grande Mushroom Farms.
            Although the Policy is applicable to all facilities, Mr. Guadamaz on re-direct testified that the Policy Manual is restrained where there is a negotiated Collective Bargaining Agreement in effect between a facility, a company and the Union.  Mr. Guadamaz testified that the Manual is used as a training instrument with all newly hired employees and then again for re-training on a yearly basis for all employees.  On re-cross, Mr. Guadamaz testified that employees are not given a copy of the Manual.  The record also showed that a copy of the Manual was not -posted at the work site.
               A Human Resource Policy & Procedure Manual such as this is common and, for obvious reasons, can be very useful and beneficial to both management and the employees.  The Manual was a unilaterally promulgated set of rules and regulations which management has the right to create and implement.  There is a caveat, though.  Where a provision in the Manual conflicts with a negotiated provision of the Collective Bargaining Agreement, the negotiated provision in the Agreement prevails and imposes a restraint on management.  One such restraint is the just cause standard contained in Article 9 of the Agreement.
            The just cause standard is complex and difficult to define.  However, there are two commonly accepted principles on which the standard is based that have evolved over the years.  One is Due Process and the other is Progressive Discipline.  The essence of due process is one of fairness, that management will, with respect to discipline and discharge matters, not be unreasonable, arbitrary, or capricious in taking action against an employee.
            Progressive discipline, the other principle, requires that summary discharge will be limited to serious, egregious misbehavior or repeated offenses.  To put it another way, discharge is an appropriate action only if a lesser penalty will not serve the interests of management.  A lesser penalty given for the purpose of correcting unacceptable behavior can be of benefit to both management and the employee.  The employee is given the opportunity to correct the unacceptable behavior and retain his/her job.  Management, in return, is able to retain a trained and valued employee.
            A pivotal question in this case was whether the evidence record supported the specific charges levied against the Grievant in the Termination Letter written by the Company manager, Art Lopez, and dated August 27, 2003 (Joint Ex. 2).  The specific charges were that the Grievant (1) verbally abused and (2) harassed Eric Palacio, the Office Manager.  Mr. Lopez also stated in the Termination Letter that discharge was the appropriate action because Mr. Palacio “was refusing to present himself for work unless the Company took appropriate action to ensure his safety.”  Mr. Lopez went on to state that, “This Company will not tolerate this type of behavior.  Therefore, we must take the action of termination for harassment of a fellow employee.”
            The Grievant admitted that his behavior, his conduct towards Mr. Palacio was inappropriate and wrong.  He admitted that he used loud and foul language in speaking to Mr. Palacio.  The Grievant’s admission brought forth two questions that needed to be addressed.  One was whether the Grievant’s behavior was serious enough to warrant summary discharge.  The second was whether discharge was the only way in which the Company’s interests could be served.
            How serious was the Grievant’s behavior?  He was accused of verbal abuse.  Abuse, according to any standard, English language dictionary, is defined as insulting or coarse language or unreasonable treatment by word.  Did his behavior meet this definition?  Yes! Was it serious enough to warrant to summary discharge?  The answer is no, but his behavior did warrant a lesser penalty.
            The Grievant was also accused of harassing the Office Manager, Eric Palacio.  Again, according to any standard, English language dictionary harassment means to disturb or irritate persistently, and it implies systemic persecution by besetting with annoyances, threats, or demands (emphasis added).  Was the Grievant’s behavior towards Eric Palacio persistent or systemic?  The answer is No!  By his own admission, the Grievant verbally abused Mr. Palacio; but he did not harass him.  The Grievant’s behavior was an isolated, one-time occurrence wherein, as he characterized it, “I just blew up”.  Moreover, the evidence record showed that there had been no similar incidents involving the Grievant and that the two employees had had a positive relationship in the past.
            The Company, in its opening statement and its Letter Brief, added to the specific charges by alleging that the Grievant also assaulted and threatened Eric Palacio.  The evidence record did not support these additional charges.  Assault, as any standard, English dictionary will show, is a term of law that means an unlawful attempt or threat to injure another physically.  Mr. Palacio testified on cross-examination that at the investigation meeting held 4-5 days following the incident attended by himself, Art Lopez, and Union President Pete Maturino he acknowledged that the Grievant made no physical threat toward him.  He also testified that he told Mr. Maturino and Mr. Lopez at the meeting that he did not know what the Grievant meant when he uttered the phrase, “You know what, I’ll deal with you tomorrow.”  Mr. Lopez’s testimony on cross-examination acknowledged Mr. Palacio’s statement at the investigation meeting that he did not know what the Grievant meant by the statement.  However, it was clear the Mr. Palacio, at the time, was concerned for his safety and felt that something may happen to him.  The point here, though, is that the Grievant did not physically threaten Mr. Palacio or verbally assault him.
            The Grievant freely admitted that he was at fault that he “just blew up”.  The question here was whether a lesser penalty could have served the Company’s interests and alleviated Mr. Palacio’s concerns for his safety.  The answer is Yes!  The Grievant was an eleven-year employee with a good work record.  These were mitigating factors that should have been considered by the Company.  He was deserving of no less.  The Company’s failure to consider his years of service and work record was unreasonable to say the least.
            The Company’s interest in maintaining a work site free of violence and an environment wherein employees treat each other with respect could have been met with a penalty less than summary discharge.  Given the circumstances at the time of incident, it was natural for the Office Manager, Eric Palacio, to be afraid and concerned for his safety.  It was apparent that his concern was real enough that he made it known to the Company that he would not “present himself for work unless the company took appropriate action to ensure his safety”.
            The Company’s response to his concern was to terminate the Grievant.  That action was unreasonable.  Given the circumstances, termination was not the appropriate action.  A lesser penalty with the concomitant warnings to the Grievant would have been appropriate and would have served the Company’s interest and served to alleviated Mr. Palacio’s concerns for his safety.
            For the reasons discussed in the foregoing, it is my decision that termination of the Grievant was not the appropriate penalty.  A lesser penalty would have been more appropriate and, at the same time, would have served the Company’s interest.
            Now to the question of what lesser penalty would have been an appropriate at the time.  The Grievant admitted that he was at fault, and that his behavior was wrong, “I just blew up”.  After careful consideration of the evidence record, it is my decision that an appropriate lesser penalty would have been a five (5) day suspension without pay.  The Grievance is sustained.

AWARD

            The Grievance is sustained.  The Company did not have just cause to terminate Tom Flores.  However, the Company did have just cause to impose five (5) day suspension without pay.  The termination is reduced to a five (5) day suspension without pay.

REMEDY

            The Company is directed to immediately reinstate Tom Flores to his position and to make him whole for all benefits and lost income plus interest at the legal rate.
            At the request of the parties, the Arbitrator retains jurisdiction over this matter with regard to any dispute that may arise in implementing the remedy. 

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