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Ross Runkel
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Ross Runkel |
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Title: Haggen,
Inc. and UFCW Local No. 1439
Date: November 12, 2005
Arbitrator: Donald
E. Olson, Jr.
Citation: 2005 NAC 121
________________________________
between
Haggen, Inc.
Employer,
ARBITRATION
FMCS NO. 05-55527
and
UFCW Local No. 1439
Union,
_______________________________
ISSUE: Discharge
Grievant: xxxxxxxxxxx
OPINION AND AWARD
of
Donald E. Olson, Jr.
APPEARANCES:
For Haggen, Inc
Ms. Elizabeth Fell, Esq.
For UFCW Local No. 1439
Mr. Aaron Streepy, Grv. Dir.
OPINION OF THE ARBITRATOR
PROCEDURAL MATTERS
This proceeding was conducted in accordance with the procedures set forth in
Article 35 of the parties’ collective bargaining agreement. A hearing
was held before the undersigned on October 11, 2005, in a conference room of the
Coast Center Hotel, located in Wenatchee, Washington. The hearing
commenced at 9:00 a.m. and concluded at 2:05 p.m. The arbitrator was
selected from a list supplied by the Federal Mediation and Conciliation Service.
The case number assigned this dispute was: 05-55527.
The hearing proceeded in an orderly manner. There was a full opportunity
for the parties to make opening statements, to submit evidence, to examine and
cross-examine witnesses, and to argue the matter. All witnesses testified
under oath as administered by the arbitrator. The advocates fully and
fairly represented their respective parties.
There were no challenges to the substantive or procedural arbitrability of the
dispute. The parties submitted the matter on the basis of evidence
presented at the hearing and through argument set forth in their respective
post-hearing briefs. Ms. Elizabeth Fell, a staff attorney for Allied
Employers, represented Haggen, Inc. d/b/a TOP FOODS, hereinafter referred to as
"the Employer". Mr. Aaron Streepy, Grievance Director,
represented the United Food and Commercial Workers Union, Local No. 1439,
hereinafter referred to as "the Union" and xxxxxxxxxxx, hereinafter
referred to as "the Grievant". The parties introduced three (3)
joint exhibits, all of which were received and made a part of the record.
The Employer introduced six (6) exhibits, all of which were received and made a
part of the record. Additionally, the parties stipulated the issue(s) to
be determined by this arbitrator regarding this dispute. The parties
requested an opportunity to file post-hearing briefs, which were to be
post-marked no later than October 31, 2005.
The
arbitrator received the Employer’s brief on November 1, 2005, and the
Union’s brief on November 2, 2005, at which time the hearing record was
closed. The arbitrator promised to render a written opinion and award
within fourteen (14) calendar days after the hearing record was closed.
This written opinion and award will serve as this arbitrator’s final and
binding decision regarding this matter.
AWARD
The stipulated issue(s) to be determined are:
Did the Employer have just cause
to terminate
the employment of the Grievant on March 10, 2005?
If not, what is the appropriate remedy?
RELEVANT PROVISIONS OF
THE COLLECTIVE BARGAINING AGREEMENT
ARTICLE 4 - DISCHARGE
4.3 No
employee shall be disciplined or discharged
except for just cause.
ARTICLE 31 - MANAGEMENT RIGHTS
31.1
Except as herein clearly and explicitly
limited in the express terms of this
agreement, the rights of the Employer in all
respects to manage its operations and affairs
shall be unimpaired.
RELEVANT PROVISIONS OF THE EMPLOYER’S POLICY
Haggen Store Crew
Handbook - Violence Free Workplace
Haggen does not tolerate any type behavior committed
by or against crew members that is threatening or
while not inconclusive, provides examples of
conduct that is prohibited:
*
Causing physical injury to you or another
person.
* Making threatening remarks.
* Exhibiting aggressive or hostile behavior
that creates a reasonable fear
of injury
to you or another person.
* Damaging Haggen property or property of
of another crew member or
guest.
* Being in possession of a weapon while on
Haggen property while on
Haggen business.
* Committing acts motivated by, or related,
sexual harassment or domestic
violence.
Any potentially dangerous situation must be reported
immediately to management and/or the Loss Prevention
Department. Reports can be made anonymously and
will be investigated. Those reports warranting
confidentiality will be handled appropriately and
information will be disclosed to others on a need to
know basis. Haggen will actively intervene at any
indication of a possibly hostile or violent
situation. Anyone determined to have engaged in
threats, threatening conduct, or other acts of
aggression or violence on Company premises will be
terminated and if applicable, be reported to the
proper authorities for prosecution.
At the time this dispute arose on March 7, 2005, the Grievant had been employed
as a journeyman produce worker at the Employer’s retail grocery store in
Wenatchee, Washington. In fact, the Grievant had been employed by the
Employer for eighteen (18) years. The parties had a collective bargaining
agreement in effect which covered the Grievant’s wages, hours, and conditions
of employment. Additionally, the Employer had an existing policy in
effect pertaining to a Violence Free Workplace, which was incorporated in the
Employer’s Crew Handbook.
On or about 3:45 a.m. on the morning of March 7, 2005, a vendors (Charlie’s
Produce) truck arrived at the Employer’s store in Wenatchee, Washington to
deliver products. The vendor’s facility is located in Seattle,
Washington. After the truck arrived the delivery driver named Rodney
Rodway, who works for Charlie’s Produce came into the store to make his
delivery. While Mr. Rodway was in the back room sorting invoices, the
Grievant approached him to inquire if there was any head lettuce on the truck.
Mr. Rodway then checked his invoices and responded that he did not see any head
lettuce on the invoices. At this time, the Grievant then asked if there
was any red romaine lettuce on the truck. Once again, Mr. Rodway checked
the invoices and responded that he did not see red romaine lettuce listed on the
invoices. Next, Mr. Rodway and Assistant Produce Manager, Joe Hernandez
unloaded the truck. It was at this time that Mr. Rodway noticed there was
a box of red romaine on his truck. He went back into the store and
informed the Grievant of the find. According to Mr. Rodway, the Grievant
then began using profanity and called Mr. Rodway in incompetent fool. Mr.
Rodway then retreated into the back room office to complete his paperwork.
As Mr. Rodway was attempting to leave the Employer’s store he went back out
into the store’s produce department, and attempted to apologize to the
Grievant. However, according to Mr. Rodway the Grievant exploded and began
to call him names, as well asking Mr. Rodway if he wanted "a piece of me."
Mr. Rodway, responded in kind, as he attempted to leave the store. At this
time, according to Mr. Rodway the Grievant rushed up to him, and in close
proximity to his face repeatedly asked, "Do you want a piece of this?"
and "Do you want some of this?" Finally, according to Mr. Rodway
the Grievant pushed him backwards with both hands. Mr. Rodway then found
Mr. Hernandez and reported the incident. Later, Mr. Rodway reported the
incident both to the Employer’s Produce Manager Josh Smith, and his
company’s Human Resources department. Thereafter, the Employer’s
corporate office was notified of the incident, and an investigation was
initiated. After the investigation was completed it was determined that
the Grievant would be terminated, based upon a violation of company policy.
The Grievant was notified that he was being terminated on March 10, 2005.
Thereafter, a grievance was filed on behalf of the Grievant, which was processed
through the various steps of the grievance procedure outlined in the parties’
collective bargaining agreement without resolution. The Union has taken
the position that the Grievant was not discharged for just cause, while the
Employer contends that it had just cause to do so. Moreover, the Union
claims the Employer did not prove by clear and convincing evidence that the
Grievant acted in a "threatening and violent nature" in violation of
its policy.
In
support of that contention, the Union claims the Employer did not have
sufficient evidence to prove that the Grievant physically pushed Mr. Rodway, or
that the Grievant’s language was abusive or threatening. Further, the
Union maintains the quantum of proof for discharge cases is by a clear and
convincing standard, when the alleged misconduct has criminal or severe civil
penalties possibly attached to such conduct.
Additionally,
the Union argues that the Grievant’s testimony is more credible than Mr.
Rodway’s. Furthermore, the Union contends the Grievant’s language
directed at Mr. Rodway was not threatening and did not cause a reasonable fear
of injury toward Mr. Rodway. In fact, the Union argued the Grievant’s
remarks directed towards Mr. Rodway were only made out of irritation and
frustration, and were not made with an intent to inflict pain, injury, or
otherwise harm Mr.Rodway. In addition, the Union avers that summary
discharge of the Grievant is much too harsh of a penalty for his alleged
misconduct, and was made in a punitive manner, rather than in corrective nature.
Likewise, the Union avows that a ruling in favor of the Grievant will not
prejudice the Employer’s ability to enforce its policy if it has clear and
convincing evidence of an employee’s alleged misconduct. Finally, the
Union requests that the Grievant be reinstated with seniority, benefits, back
pay, and interest.
On the other hand, the Employer argued that indeed the Grievant threatened and
assaulted Mr. Rodway during the early morning hours of March 7, 2005.
Moreover, the Employer contends that Mr. Rodway’s version of the facts
surrounding the dispute are more credible than the Grievant’s. In
addition, the Employer argues that the only appropriate penalty for the conduct
displayed by the Grievant on March 7, 2005, towards a vendor’s employee, is
simply discharge. Furthermore, the Employer insists that its past practice
is to always terminate employees engaged in conduct that amounts to threats to
co-workers, or committed acts of physical violence. Moreover, the
Employer argues that its decision to discharge the Grievant was not arbitrary,
capricious, discriminatory, or an abuse of discretion. Finally, the
Employer contends that the discharge of the Grievant was fully supported by just
cause, and as such, the grievance should be denied.
DISCUSSION
This arbitrator has carefully reviewed the entire evidentiary record, pertinent
testimony, and the parties’ excellent post-hearing briefs, as well as the
cited published arbitration cases. Unpublished arbitration cases cited,
but not furnished to the arbitrator received no consideration.
As a threshold matter, this arbitrator has given no weight to the Employer’s
claim that the Grievant was allegedly involved in a previous incident with
co-worker Hernandez, which was similar in nature. Obviously, this alleged
incident had no bearing on the Employer’s decision to discharge the Grievant,
since it only became known to the Employer’s agent the day before the actual
arbitration hearing. Clearly, in the opinion of this arbitrator that
alleged incident is not relevant in determining the merits of this dispute.
Although the term "just cause" is not defined in the parties’
collective bargaining agreement, this arbitrator is aware that the definition of
this specific term(s) seems to vary from case to case. However, this
arbitrator is convinced that at the very least, the Employer must demonstrate
that the misconduct upon which it administered the penalty of discharge to the
Grievant, has been adequately proven by the preponderance of evidence standard,
and if proven, was the penalty of discharge reasonable based upon the claimed
gravity of the situation giving rise to the misconduct attributed to the
Grievant.
This arbitrator rejects the Union’s contention that in this case the Employer
must prove that it had just cause to discharge the Grievant by the clear and
convincing standard of proof. Albeit the factual situation associated with
this dispute has overtones that might have given rise to elevating the standard
to "clear and convincing", it is this arbitrator’s opinion that the
burden of proof in this case has not risen to that level. Obviously, the
incident between Mr. Rodway and the Grievant on March 7, 2005, was not reported
to any law enforcement agency, but remained within the confines of the
Employer’s business, and its relationship with one of its vendors. As a
matter of fact, the only parties notified of the incident were the Employer and
the vendor (Charlie’s Produce). Without a public record having been
established, clearly there is no "social stigma" that can be attached
or attributed to the Grievant for his alleged actions, or lack thereof, on March
7, 2005.
Under these circumstances, this arbitrator concludes the "preponderance of
evidence" standard will apply in determining the merits of this dispute.
In brief, that standard places upon the Employer an obligation to convince this
arbitrator that the existence of the facts alleged against the Grievant have
been proven by the greater weight of evidence, or that its contentions are more
probable than not.
In this dispute the Employer has placed its faith in Mr. Rodway to prove its
case, while, on the other hand, the Union has solely relied upon the
Grievant’s testimony to rebut the Employer’s alleged claims. This
arbitrator notes that witnesses on both sides of this dispute were inconsistent
while testifying regarding certain factual details. However, that is
considered to be normal during any arbitration proceeding, especially as time
elapses. Clearly, this dispute hangs on issues surrounding credibility,
since the main witnesses were Mr.Rodway and the Grievant.
Frankly, this arbitrator concludes Mr. Rodway was more credible than the
Grievant relating to the facts associated with the incident of March 7, 2005.
Obviously, Mr. Rodway as a witness had nothing to lose or gain in this case.
He was only the victim. For the most part, this arbitrator finds no facts
to suggest that Mr. Rodway was mistaken regarding what took place in the early
hours of March 7, 2005, at the Employer’s facility in Wenatchee, Washington.
More importantly, this arbitrator was impressed by Mr. Rodway’s candor in that
he claimed to harbor no bad feelings towards the Grievant, even after the
incident of March 7, 2005.
Conversely, this arbitrator was struck with the Grievant’s demeanor and
attitude as he testified. Clearly, the Grievant’s mannerisms,
expressions, and attitude left a distinct impression with this arbitrator that
the Grievant is not an individual who relates well to perceived slights or
shortcomings of others.
Accordingly, this arbitrator concludes Mr. Rodway’s version of the facts
surrounding the interaction between him and the Grievant to be more plausible.
Clearly, the Grievant provoked the incident, rather than Mr. Rodway, In
addition, although there were no witnesses, this arbitrator believes the
Grievant, in fact, pushed Mr. Rodway with both of his hands during their
conversational exchanges in the early morning hours of March 7, 2005.
Anytime an individual such as the Grievant displays hostile and aggressive acts,
or physically assaults or commits battery on a vendor’s employee, he has then
stepped outside the bounds of societal civility which limits his protection from
being either disciplined or discharged.
In this case the Employer discharged the Grievant on March 10, 2005, in part,
for his aggressive and hostile behavior, which was displayed towards Mr. Rodway.
As a matter of fact, the Grievant admitted that he repeatedly asked Mr. Rodway,
"Do you want a piece of me?" and/or "Do you want some of this?"
These statements were made when the Grievant was "toe to toe" and
"face to face" with Mr. Rodway. On the other hand, Mr. Rodway
testified he felt threatened due to the fact that he might be punched by the
Grievant. Under these circumstances, this arbitrator is convinced that any
individual facing this same type of scenario would feel likewise. The
Grievant’s conduct in this case can only be described as totally unacceptable.
It is also conduct that cannot be tolerated, especially when it might affect a
relationship between the Employer and its vendors. Mere cursing or the use
of obscene and vulgar language in and of itself is not sufficient basis for
discharging employees in most cases, but can lead to severe reprimand in the
form of long term suspension, especially if directed at a vendors employees or
customers of a given business. In this case, the evidence sufficiently
demonstrates not only did the Grievant instigate the improper use of abusive
language directed at an employee of a vendor doing business with the Employer,
but also acted in an aggressive, hostile, and threatening manner towards that
same individual, as well as unlawfully touching Mr. Rodway, which in most
jurisdictions constitutes "battery". Fortunately for the
Grievant, Mr. Rodway did not press criminal charges against the Grievant.
Unquestionable, the Grievant’s conduct violated not only the Violence Free
Workplace provisions of the Employer’s policies, but also reasonable job
decorum so as to cause apprehension to Mr. Rodway, which in turn might cause
detrimental relationships between the Employer and this particular vendor, that
is, Charlie’s Produce.
The record is clear that the Grievant had received forewarning regarding the
consequences associated with a violation of the Violence Free Workplace
provisions, that is, "anyone determined to have engaged in threatening
conduct or acts of aggression on company premises will be terminated."
(Emphasis supplied). The Grievant was given a copy of the policy, and one
must assume he read same. Clearly, in the opinion of this arbitrator the
policy was reasonable and correctly implemented in this case.
Although the Grievant has been employed for several years with the Employer,
this fact alone does not constitute a mitigating factor, which would persuade
this arbitrator to reinstate the Grievant or modify the penalty of discharge.
Hence, based upon the evidentiary record and for the reasons set forth above,
this arbitrator concludes the Employer did have just cause to terminate the
employment of the Grievant on March 10, 2005.
AWARD
The grievance is denied in its entirety.
Dated this 12th day of
November 2005.
Tacoma, Washington
________________________________
Donald E. Olson, Jr., Arbitrator
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