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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

 

________________________________

In the Matter of the Arbitration

                         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
          violent in nature.  The following list of behaviors
          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.

BACKGROUND

     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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