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Title: Retail, Wholesale and Department Store Union and Pilgrim’s Pride Corporation
Date: June 30, 2005
Arbitrator:  Robert E. Wages
Citation: 2005 NAC 113

 

  In the Matter of Arbitration between:

Pilgrim’s Pride Corporation,
         Employer

Retail, Wholesale and Department
Store Union,
         Union

               James Fletcher, Grievant

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OPINION AND AWARD

 

Robert E. Wages,
Arbitrator

APPEARANCES   

For the Employer:
            Roy Scholl, Attorney at Law and Ted Simmons, General Manager

For the Union:
            George Davies, Attorney at Law; Randy Hadley, Union Representative; James Fletcher, Grievant.
            Also appearing as a witness for the Union was Johnny Ray Bowden.

Pursuant to agreement of the parties, this matter was submitted to the undersigned as an arbitrator mutually agreed upon by the parties.  A hearing was convened on April 29, 2005, at the Employer’s offices in Athens, Alabama.  At the conclusion of the hearing, the parties agreed to a mutual exchange of briefs.  Briefs were submitted on June 17, 2005.

Based upon the sworn testimony, documentary evidence, arguments of counsel, and the briefs, the undersigned has considered the entire record and renders this Opinion and Award.

FACTUAL BACKGROUND

Pilgrim’s Pride Corporation (hereinafter referred to as “Employer” or “Company”) operates a chicken processing facility in Athens, Alabama and has done so since taking over from a predecessor employer, ConAgra Poultry Company, in November 2003.  The Retail, Wholesale and Department Store Union, AFL-CIO, (hereinafter referred to as the “RWDSU” or the “Union”) represents the employees in a bargaining unit at the facility and is a party to a collective bargaining agreement with the Employer.

James Fletcher, hereinafter referred to as “Grievant,” is a 16 year employee of the Employer or its predecessor company.  Grievant has worked as a “store” driver and a “live haul” driver.  At the time of this hearing, Grievant was employed as a “live haul” driver but had been reassigned to other duties.  Live haul truck drivers are responsible for picking up chickens from the various growers under contract with the Employer and delivering those chickens to the processing plant.  These drivers are responsible for operating trucks pulling trailers on which the contract growers place chicken pens or crates and then hauling those loaded trucks to the processing plant.

For several years the Employer has utilized a Driver’s Alert System (hereinafter referred to as the “alert system”) relying on phone call alerts[1] from the public (for example: How Am I Driving?  Please call 1-800-etc.) to assist it in improving driver safety performance and safety awareness.  While the “alert system” has been employed, the Grievant has been the subject of six phone calls, all but one expressing criticism.  On October 5, 2004, Grievant received a written warning based upon what the Employer alleged to be a trend of unsafe driving acts as reported through the “alert system.”  This warning was followed by a January 9, 2005, driver alert from the “alert system” that resulted in the Employer taking action under a provision of the Employer’s Safety Program that called for suspension of driving privileges where a driver commits an unsafe act for which he or she has been warned in the past.  Pursuant to the collective bargaining agreement, Grievant filed the instant grievance in response to the Employer’s action.

ISSUE

The parties stipulated to the following issue:  Was the suspension of Grievant’s driving privileges in January 2005 for just cause?  If not, what is the remedy?

EMPLOYER’S POSITION

The Employer asserts that, pursuant to Article 2[2] of the Collective Bargaining Agreement, it has the right to establish such safety rules as are necessary for the safe and efficient operation of its plant and equipment.  It is within this authority that the Employer has promulgated its Fleet Safety Manual and utilizes the “alert system.”  The Employer argues that Grievant committed an unsafe act about which he had been previously warned. In such a case, the Fleet Safety Manual[3] provides for the discipline of employees up to and including termination of employment.  The suspension of driving privileges falls within the scope of this discipline.  Employer further argues that Grievant was on notice of the safety rules in this regard; had acknowledged receipt of the safety rules; and had been trained in their application.  In addition, in its Brief, the Employer maintains that it is reasonable for the Employer to insist that its drivers adhere to safe driving practices and follow the law of Alabama[4].  The fact that Grievant had received two written warnings regarding unsafe driving, coupled with the final adverse report from the “alert system,” establishes, according to the Employer, an unsafe driving record authorizing suspension of driving privileges.

UNION’S POSITION

The Union maintains there is no credible evidence that the Grievant engaged in unsafe driving practices as reported by callers to the “alert system.”  Thus, there is simply no just cause for any discipline in this case.  The Union further argues that if, in fact, just cause for discipline is found, the punishment is not commensurate with the alleged violation.  In making its assertion, the Union emphasizes that the “alert system” specifically states it is non-disciplinary in nature.  The Union also notes that the confidential call-in reporting accepted by the “alert system” deprives Grievant and the Union of any opportunity to investigate the allegations that result in discipline.  The Union also asserts vigorously that Grievant had denied each of the reports generated by the “alert system” and the system itself is prone to being used for mischief by unnamed parties seeking to adversely affect drivers. 

ANALYSIS

As noted in the companion case involving these same parties and Grievant O’Neal Townsend, just cause is not an elusive indefinable standard in the world of industrial relations[5].  Once again, the concept is summarized as follows:

·Did the employee violate a rule or standard of conduct reasonably calculated to meet an operational need of the employer?
·Were employees on notice that such conduct would or could result in discipline?
·Did a fair and objective investigation take place to determine the violation?
·Was the punishment consistent with prior such incidents, commensurate with the violations, and did it take into consideration mitigating factors?

In this case, the Employer seeks to discipline the Grievant for speeding based upon a phone call to the “alert system.”  The specific incident took place on January 9, 2005.  It is the Employer’s position that this incident, because it followed a written warning on October 5, 2004 (Employer Exhibit #2), justifies the Employer’s imposition of a suspension of driving privileges as sanctioned by ¶4.17.5 of the Employer’s Fleet Safety Manual (Joint Exhibit #3).  The Employer further notes that Grievant had also been given a warning on October 9, 2003, (Employer Exhibit #7) for receiving his third unsafe call-in report under the “alert system.”

Grievant did not grieve the October 9, 2003, letter of warning; nor did he grieve the October 5, 2004, letter of warning.  However, during the course of the hearing, Grievant’s counsel put evidence in the record purporting to rebut the contents of each adverse call to the “alert system.”[6]  Indeed, from all appearances, the Grievant during the course of the follow-up to each of the “alerts,” clearly did not agree with the criticism leveled against him.  Moreover, a review of the complete “alert system” record, (Union Exhibits A, B and D) suggests several examples where the allegations set out in the reports were not verified by a subsequent investigation conducted by the Grievant’s supervisor, and frequently no further action was recommended.

There is no question that the Employer’s utilization of the “alert system” is a well-intentioned effort to be pro-active about driving habits of its drivers.  The calls generate a follow-up investigation that requires attention from the immediate supervisor, safety manager, and the driver to respond to the reported incident.  The system was implemented by the predecessor employer, ConAgra, and kept over by Pilgram’s Pride.  As stated in Employer’s Exhibit #1:

“This program is not about identifying drivers for punishment, but rather prevention.  If there are any drivers within our company who are at higher risk of an accident, we want the opportunity to identify that driver and particular risk factor to be able to correct that behavior before an accident occurs.  Remember, the fact that our drivers spend more time and miles on the road than the average person automatically puts them at higher risk of an accident regardless of their own driving behavior.  This is not about assigning blame but about changing behavior.  We do not want any of our drivers hurt, no matter whose fault it is.” (original emphasis)

The testimony of Ted Simmons, the General Manager of the Athens complex, buttresses the foregoing when on cross examination he responded to Union counsel’s question about the ability to defend oneself against false allegations by saying, “There’s nothing to defend, this is purely reporting, not to punish, not to discipline…”

As noted above, an extensive record was developed in this case as to the various driver alerts regarding the Grievant dating back to January 2003.  For each alert, the Employer noted the safety concerns (Employer Exhibits 3,4,5,6,8 and 9) and the Union rebutted the contents (Union Exhibits A, B, D, E, F and G).  The arbitrator finds it unnecessary to make findings regarding these various alerts.  The alerts generated under the Employer’s program are naked, unadulterated hearsay; the callers are not identified; there is no right to confront the accuser and thus no ability to cross examine; there is no method by which to test the factual assertions.  As a consequence, the Arbitrator is not willing to permit this evidence, standing by itself, to be determinative of discipline.[7]

Moreover, the Arbitrator finds it unnecessary to consider at any length the notion that someone “had it in” for Grievant and therefore the calls made to the “alert system” should be viewed with skepticism on that basis.  This credibility defense is simply immaterial to the disposition of this matter.

The arbitrator also disagrees with the contention that the written warning issued on October 5, 2004, should serve as a predicate for invoking ¶4.17.5 of the Fleet Safety Manual as a basis for discipline.  According to Mr. Simmons, this warning letter was prompted by the driver alerts of July 8, 2004, and August 5, 2005.  Specifically Mr. Simmons’ personal observation of the events of August 5, 2005, verified the facts on the caller alert and led to the warning of October 5, 2004.  The July 8 incident was not given credence by the Grievant’s immediate supervisor (Union Exhibit D).  Mr. Simmons testified regarding the events of August 5 that involved following too close, improper lane changes, and failure to signal.  Nowhere is speeding mentioned.  In the January incident the only alleged misconduct is speeding.  Assuming arguendo that the October 5 warning could be used as a predicate for application of ¶4.17.5, the alleged violation of January 9, even if proven, is not a repeat of a violation outlined in the October letter.

The Arbitrator recalls and relies on Employer Exhibit 1 and the bold type admonition that the “alert system” is non-disciplinary in nature to resolve the just cause determination in this case.  The Employer cannot implement a program under the pretense of it being non-disciplinary in nature and then use it for discipline.  If the just cause standard requires notice, it cannot be fairly argued that a “bait and switch” satisfies the notice requirement.  The Employer argues that the prior warning constituted notice that further unsafe acts would result in discipline.  Assuming that the prior warnings do constitute notice in this context, the just cause standard requires the Employer to establish by a preponderance of the evidence that Grievant committed a subsequent unsafe act.  The Arbitrator concludes that the January 9, 2005, report generated by the “alert system” does not meet that burden.

The Employer sincerely argues that failure to act on the caller alerts generated under the “alert system” could expose the Employer to liability in the form of negligent entrustment.  The Employer has available an array of tools by which it can sort out the deficiencies of Grievant’s driving habits. Indeed, the “alert system” seems well suited for use as probable cause for the Employer to closely monitor Grievant’s driving habits thereby establishing first hand accounts of his behavior.  By choosing to rely on public critiques through anonymous phone calls in the “alert system,” the Employer invites challenges based on not only the Employer’s own words set out in bold type, but also what this Arbitrator concludes is a well-taken challenge based on the quality of the hearsay evidence compiled against the offending employee.

It is well established in labor arbitration where the Employer’s right to discipline is limited by the requirement that any such discipline be for just cause, the Employer carries the burden of so proving.  For the reasons more fully set out above and summarized below, the arbitrator concludes that the Employer has not met this burden in this case:

  • The Employer cannot use the Driver Alert System, contrary to its stated written purpose, as part of a disciplinary process;
  • The Employer cannot rely on hearsay, with little or no direct evidence, to establish misconduct;
  • The Employer failed to account for the several instances where the Grievant’s immediate supervisors could not verify the factual allegations of the call-in reports;
  • The Employer failed to establish by any evidentiary standard that the misconduct of January 9, 2005, took place at all.

AWARD AND REMEDY

The Grievance is sustained.  The Employer is ordered to reinstate Grievant’s driving privileges and to make grievant whole for any and all wages, benefits, and seniority, which, but for the action of the Employer, would have inured to the benefit of the Grievant.

RETENTION OF JURISDICTION

The Arbitrator retains jurisdiction for a period of sixty (60) days from the date of this Award to resolve any questions regarding the remedy as set forth above.

 

Dated this __________ day of ______________, 2005

                                                            
Robert E. Wages
Arbitrator

 
[1] These alerts are formally called Driver’s Alert Incident Call Reports and will be referred to in this decision as “driver alerts, alerts, call-in alerts, etc.”
[2] Article 2, entitled Management Rights provides as follows:
It is the sole responsibility of the Company to determine the selection, direction, size and make-up of the work force including the right to hire, discharge for just cause, layoff, demote, assign, reassign, transfer, discipline and suspend; to relieve employees from duties and assignments because of lack of work, to determine the appropriate job classifications and the number of employees within a given classification, to set shift schedules and hours of work, to set reasonable standards of quality and quantity of work, to determine the methods and processes of productions, to determine the qualifications and capabilities of the employees and assign them their duties, and to make and apply rules and regulations of efficiency, cleanliness, safety, discipline and other working conditions, provided this will not be used to avoid any provisions of this Agreement.  It is agreed that management maintains and retains all of its rights, powers, privileges and authority and that they are all vested solely and exclusively in the Company unless specifically relinquished or modified by this Agreement.
[3] ¶4 of the Fleet Safety Manual provides in ¶4.4 as follows: “The following conduct is prohibited and will subject the individual to disciplinary action, up to and including termination.  These acts include, but are not limited to: ¶4.8-Violation of common safety rules, regulations and practices, and ¶4.17.5-Repetition of a violation for which a driver has previously received a warning.
[4] Employer’s Brief, pg. 3
[5] E.g. See Arbitrator Carroll Daugherty’s Opinions in Grief Brothers Cooperage Corp., 42 LA 555 (1964) and Enterprise Wire Company, 46 LA 359 (1966); See also, Abrams and Nolan, Toward a Theory of “Just Cause” in Employee Discipline Cases, 85 Duke Law Journal 594 (1985). 
[6] It could be argued that the failure to file a grievance as a result of the letters dated October 9, 2003 and October 5, 2004 deprived Grievant of his right to challenge the factual basis of those letters.  However, the arbitrator is unconvinced this constitutes a “settled record” under the circumstances of this case, thus depriving Grievant from challenging the underlying facts of those letters.  This is particularly true where, as here, the letters themselves seem to fly in the face of the Employer’s stated program.
[7] See generally, Elkouri & Elkouri, How Arbitration Works, Sixth Edition, Bureau of National Affairs (2003) pp. 366-368 and the litany of cases and arbitral thought regarding the use of hearsay.

 

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