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National Arbitration Center |
Fruit & Vegetable Workers and
Grande Mushroom Farms
Arbitrator: Allen Pool
Citation: 2004 NAC 104
||C. ALLEN POOL, Arbitrator
Arbitrator's Case No. 4-14-03
ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES
Fresh Fruit & Vegetable Workers UFCW Local
1096, AFL/CIO – CLC
Arroyo Grande Mushroom Farms
(Issue: Termination, Tom Flores)
April 29, 2003
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.
I. Yen, Esq.
VAN BOURG, WEINBERG, ROGER & ROSENFELD
180 Grand Avenue, Suite 1400
Oakland, California 94612
R. O’Connor, Esq.
NOLAND, HAMERLY, ETIENNE & HOSS
P. O. Box 2510
Salinas, California 93901
Did the Company have just
cause to terminate Tom Flores? If
not, what shall be the remedy?
RELEVANT PROVISIONS OF
Article 6 –
Grievance and Arbitration Procedure
Grievances shall be processed in the following manner:
Any grievance shall be immediately taken up between the supervisor
involved and the Union Steward.
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.
3. If the grievance is not
settled n Step 2, the party filing the grievance may appeal it to
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.
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……
– Discipline and Discharge
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
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
Any act of harassment, sexual, racial, or other; telling sexist or racial-type
jokes; making racial or ethnic slurs.
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.
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.
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.
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 19th & 20th 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 20th.
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.
the morning of August 20th, 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
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 21st 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 21st. 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 21st
and after he wrote and submitted his Declaration on the same day.
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
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.
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 21st 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.
OF THE EMPLOYER
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.
OF THE UNION
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.
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.
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.
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
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.
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.
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.”
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.
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
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.
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.
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
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.
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.
the request of the parties, the Arbitrator retains jurisdiction over this matter
with regard to any dispute that may arise in implementing the remedy.
C. ALLEN POOL, Arbitrator
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Phone: 877 399-8028