1994 NAC 107 Local 555, United Food & Commercial Workers, AFL-CIO & CLC and Safeway, Inc.

Title: Safeway, Inc. and the Local 555, United Food & Commercial Workers, AFL-CIO & CLC
Date: April 26, 1994
Arbitrator: Luella E. Nelson
Citation: 1994 NAC 107

In the matter of arbitration between:

Local 555, United Food & Commercial Workers, AFL-CIO & CLC

and

Safeway, Inc. (Meat Warehouse)

Suspension and Discharge of Jerry

Thommen

FMCS Case No. 94-03058

LUELLA E. NELSON, Arbitrator

This Arbitration arises pursuant to Agreement between Local 555, United Food & Commercial Workers, AFL-CIO & CLC ("Union"), and Safeway, Inc. (Meat Warehouse) ("Employer"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on February 15, 1994, in Clackamas, Oregon. The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute. Both parties filed post-hearing briefs on or about March 29, 1994.

Mr. Ed Clay, Grievance Director, UFCW Local 555, P. O. Box 23555, Tigard, OR 97281-3555.

Mr. Alvin Carder, Director of Labor Relations, Safeway, Inc., P. O. Box 523, Clackamas, OR 97015.

Was Mr. Thommen discharged in accordance with Article II, Section 2.4 of the contract? If not, what is the appropriate remedy?

2.4 No member of U.F.C.W. Local No. 555 shall be discharged without good and sufficient cause.

19.1 ... The Employer agrees to provide the Union upon request with the reasons for discharge within fifteen (15) days of the request....

(b) ...[I]n cases where it is concluded that an employee has been improperly discharged, the Arbitrator may reinstate the improperly discharged employee. The Arbitrator shall not render an award which requires the Employer to pay an improperly discharged or suspended employee for time that employee has not actually worked in excess of the wage and benefits the employee would have earned had he worked his normal schedule during the ninety (90) calendar days immediately following the date of the discharge; nor shall the Arbitrator be entitled to require the Employer to pay benefits on behalf of an employee for a time period the employee has not actually worked in excess of the ninety (90) days allowable herein....

(b)[sic] The award of the Arbitrator shall be written and shall be final and binding on both parties. The expense and fees of the arbitrator shall be borne by the losing party, as determined by the Arbitrator, who shall specifically rule on this issue.

21.1 Over the term of this Agreement there shall be no resort to strike action (which includes sit-downs, slowdowns, stoppages of work) by the Union, its officers, agents and/or any or all bargaining unit personnel, nor any lockout by the Employer. Any employee violating this provision of the Agreement shall be subject to such disciplinary action including discharge, as the Employer finds warranted by the circumstances.

The Employer suspended Grievant on October 28, 1993, and converted his suspension to a discharge on November 9. The Employer alleged that Grievant "disrupted the work force and instigated a near walk out by the employees" on October 23, 1993. The Union asserts that Grievant did not disrupt work and did not call for a walkout.

Grievant has worked at the Employer's meat warehouse since 1970. He at one time served as working foreman; he later demoted to forklift driver, and then to order filler. At the time of his discharge, he was working as an order filler. Except for a verbal warning for tardiness several years before his discharge, he had never received discipline.

Meat Warehouse Manager Fern Taylor testified that Quality Inspector Wendell Way complained to her about Grievant in late September or early October 1993. Way claimed Grievant was hanging around the office and getting on the floor late. Taylor instructed him to make note of the time Grievant came to work and get back to her.

In September 1993, Grievant filed an internal complaint alleging Way was "watching" him, used profanity, called him names, and "stuck his finger" in his chest. He filed a grievance over the same matter, which the Union presented too late to be timely. The investigative report on the internal complaint was prepared October 25, 1993. That report recounted that Way acknowledged using intemperate language, but claimed Grievant had called him a "weasel." Way also complained that Grievant had filed a grievance over his performing unit work and assigning a driver to do unit work. The investigative report recommended no discipline against Way, and referred any action against Grievant to the Employer.

Meanwhile, Distribution Center Manager Carlos Catala met with Grievant and Way about the incident between them. Grievant refused to talk about making up. Catala told Grievant there were two sides to every story, and offered to get to the bottom and investigate the dispute. Catala had only recently come to the warehouse, and did not know either man. Grievant testified that Catala also threatened to suspend him pending the investigation. Catala denies making this threat.

Grievant has been the shop steward for approximately 10 years. The Employer maintains no written rules specifying what a steward can or cannot do, nor does the Agreement mention this subject. Taylor testified it was not uncommon for Grievant to leave work to discuss problems with her. She acknowledged that other employees also came to her office about problems, singly or in groups, and with or without Grievant. Employee James Sherman testified the Employer has always had an "open door policy" for employees with problems. However, his usual practice was to bring problems to his shop steward, and let the steward resolve it. Employee John Christensen recalled going to the office with two other employees to discuss an earlier problem for 10-15 minutes.

Grievant testified his difficulties with Way began after Grievant moved to a later shift. Employees then began reporting that Way performed unit work before Grievant came to work. Grievant discussed these reports with Taylor, but did not file a formal grievance. Grievant testified a planned grievance on the unit work issue was "lost in the shuffle" over the harassment charge. No grievance over unit work was filed in his 10 years as steward.

The Employer scheduled an overtime day on October 23 to convert its manual inventory system to a computerized storage system. The conversion had to be completed on October 23 to permit the Employer to service its stores the next day. Grievant volunteered to work a half day on October 23. He began his day shortly before 5 a.m. and left around 11:45 a.m., for a total of 6.73 hours of work. Other warehouse employees worked between 5.98 and 13.75 hours that day.

The Employer solicits volunteers for overtime days, and drafts from the bottom up to cover any shortfall. Grievant, Sherman, and Christensen testified it was common to volunteer for only part of a day. Sherman was unaware of employees being prevented from leaving early on volunteer days.

Grievant approached Taylor around 9 a.m., complaining heatedly that Way was again performing unit work. Taylor responded the work Way was doing was not unit work. Grievant then left her office. He later re-entered the hall near Taylor's office, followed by seven employees. All parties agree that only Grievant and Taylor spoke. A dispute exists regarding how the other employees came to accompany Grievant to the office and what was said there.

Taylor testified Grievant returned 30-45 minutes after their first conversation, and announced, "We are leaving." Grievant added that Way was doing unit work and the employees would not put up with it. Taylor said employees could not walk out. Grievant responded this was voluntary work, and employees could leave whenever they wanted. Taylor said employees were committed to work, and could not just leave. Taylor then inquired what work Way was doing and when he was doing it. Grievant responded Way did unit work whenever he (Grievant) left. Taylor told Grievant he was mistaken about what was unit work.

Taylor then turned to the assembled employees and told them they faced possible suspension or termination if they walked off. She told them the proper procedure was to file a grievance with the Union. Grievant commented the Union would do nothing about it. Taylor urged employees to think for themselves, and repeated the possible disciplinary consequences of walking out. Taylor then left the group. She testified the other employees headed back into the work area, while Grievant walked toward the exit. Five minutes later, she found him working in the warehouse.

Taylor testified that employee Dawn McFee and supervisor Nita Williams were in the office when Grievant and the others arrived. Williams testified she exchanged glances with McFee while Taylor was talking to the employees. McFee testified she was on a break at the time, and the incident was over by the time she returned.

Williams recalled Grievant saying they were walking out because they were sick and tired of Grievant doing their work. Taylor denied Way was doing unit work, and Grievant reiterated the claim and said they would walk out. Taylor informed him of possible suspension or termination. Grievant pointed out it was a voluntary overtime day. Taylor responded they were committed to work and could not just leave. Grievant said Way did unit work whenever Grievant was not around, and again said they were walking out. Taylor told employees to make up their own minds.

According to Williams, Taylor came into the office and told Williams and McFee to stop data entry until she learned whether employees would walk out. After Taylor left the employees, Williams heard Grievant say the others could do what they wanted, but he was leaving and was not going to put up with Way doing his work. The other employees returned to work, and Grievant went the other direction. 10-15 minutes later, Taylor told Williams and McFee to resume data entry.

Grievant testified he learned of Way's performance of unit work from Sherman. After protesting to Taylor, he returned to the warehouse. He reported Taylor was not going to do anything about Way, he was sick of it, and he was going home. He also said employees could do what they wanted. Grievant testified he was sick of the situation with Way, which had escalated over the past few weeks. He further testified he had already put his time in and had other things to do.

Grievant testified some employees followed him when he later returned to the office. He was aware that other employees were also upset over the unit work issue. He told Taylor he was going home if she was not going to do anything about the situation. Taylor told him not to do that. He pointed out it was a volunteer day, and that he could go home. She warned him of possible discipline, and urged him to file a grievance. Warehouseman Jack Duncan came out of the office and suggested he go through channels.

Grievant testified he agreed to call the Union. The assembled employees returned to work, while he went to the lunchroom to call his Union representative.[1] The lunchroom lies in the same direction as the exit. After leaving a message on the Union representative's answering machine and unsuccessfully trying his pager, he returned to work. He told his co-workers he was going to finish the aisle where he was working, then go home.

Grievant denies attempting to call a walkout. He testified the issue of a walkout did not arise until his interview as part of the Employer's investigation.

At the Employer's request, several employees prepared written statements about the events of October 23. Forklift driver Roger Demming's statement alleged, in relevant part,

I was asked if I was going to join the walkout with the rest of the workers that was being called for by [Grievant]. ...

Jim Sherman came by where I was working ... just prior to the crew actually walking out and asked if I was leaving with the rest of the crew ....

Demming did not join the employees in going to Taylor's office. He testified it was Sherman who asked him to join the walkout, both initially and later. He testified Grievant's name was not mentioned at any time, but he assumed Grievant was the only one with any authority to call a walkout because he was shop steward. At some point, perhaps after the event, a working foreman told him Grievant had called the walkout.

Duncan testified he was in the office when Grievant and the other employees arrived. He recalled Grievant complaining about Way doing unit work, then saying he was going to leave. Taylor suggested he not do so, then left. Duncan went to Grievant and suggested he contact the Union. Grievant agreed, and headed for the phone while the other employees returned to work. Duncan did not recall Grievant mentioning anyone but himself leaving.

Sherman testified he saw Way doing unit work on October 23, and informed Grievant of it. Grievant said he would talk to Taylor. He later returned and reported Taylor was not going to do anything about it. Grievant said he was tired of talking to Taylor and was going home or to do something different. He told Sherman to do what he wanted. Grievant never called for a walkout or strike, nor did he suggest Sherman go to the office. Sherman remained on his forklift. His work partner, Duncan, went to the office to pick up the paperwork for their next assignment.

While Duncan was gone, Sherman began wondering why nothing was being done about Way. He decided to go to the office to talk to Taylor about Way's performance of unit work. He saw other employees also going to the office. Sherman testified he did not intend to leave when he went to the office. Sherman arrived just as Taylor was warning employees of discipline if they left. Grievant and the employees agreed he should call the Union. Grievant later reported he was unable to reach the Union, and said he was going to finish his aisle and go home. Sherman denied having the conversation described by Demming, or talking to anyone about walking out.

Employee Gregg Faulhaber testified he went to Taylor's office to find out what she intended to do about Way performing unit work. He learned of the dispute when Grievant and Christensen approached him and told him of Way's conduct. Grievant told him it was up to him whether to go to the office. When Faulhaber saw other employees going to the office, he went with them to support the Union. At the office, Grievant complained about Way doing unit work. Taylor responded he should file a grievance, then went back to work. Grievant told employees he would file a grievance. Faulhaber testified he wanted to pressure Taylor into doing something, and that a walkout was an option, depending on Taylor's response. He did not recall anyone saying anything to Taylor about walking out.

Christensen testified he was working with Grievant on October 23. Grievant told him he had gone to talk to Taylor about Way doing unit work. He said he was leaving, that Christensen could do what he wanted, but that "we" should talk to Taylor about it. Christensen went to the office, along with other employees and Grievant. Christensen testified he went to find out what Taylor was going to do about the unit work issue. He recalled Grievant complaining about Way doing unit work while Grievant was not there to see it. Taylor warned of discipline if employees left. The employees agreed Grievant should call the Union. Christensen testified Grievant never suggested a strike or walkout, and that the subject did not come up before he got to the office. He recalled going to talk to Demming with Grievant, but did not recall talking to Faulhaber.

Order Selector Ricardo Arellano testified he saw a commotion and asked what was going on. Several employees told him Way had done unit work; he did not recall who told him. He testified he had no conversation with Grievant that morning. He went to the office to discuss the problem and hear what Taylor was going to do. He only recalled Grievant discussing the unit work problem, and Taylor telling employees they could get in trouble.

On October 26, Catala notified the Union in writing that he was investigating the events of October 23. Catala noted the investigation could lead to discipline, including termination. On October 28, he suspended Grievant and issued written warnings to the other employees who went to the office. He warned Grievant and the others that further discipline could ensue.

Catala testified he initially wanted to suspend everyone involved, but was convinced by Taylor and Williams that Grievant was the instigator. He interviewed all the employees on November 5. He recalled that Arellano said Grievant had talked to him, and that Demming stuck to his written account. Catala testified he made the decision to terminate Grievant after November 5. He concluded the other employees were not as culpable.

Meanwhile, on October 29, Taylor sent Catala a computer E-mail message. Taylor reported, inter alia, that the Union representative had suggested taking Grievant's length of service into consideration. Catala responded that day, "Jerry's lenght [sic] of service will be taken into consideration in that we will offer to let him resign rather than terminate him."

Section 2.4 must be read in conjunction with Article XXI. Article XXI is clear and unambiguous. It gives the Employer the exclusive right to determine the discipline for involvement in any of the prohibited actions. The Arbitrator cannot ignore such clear-cut language or legislate new language. Therefore, the only question is whether Grievant participated in the prohibited actions.

All eight employees participated in a "stoppage of work" as described in Article XXI. They therefore subjected themselves to discipline. Article XXI prohibits more than strikes or work slowdowns. A slowdown and stoppage of work occurred when Grievant travelled throughout the warehouse. He talked to employees and encouraged their participation in a "planned walk-out." A stoppage of work certainly occurred when all eight employees left their work station and spent 5-10 minutes badgering Taylor. Each employee violated the principle of "work now, grieve later."

Even after the other employees returned to work, Grievant went toward the exit, possibly hoping others would follow. It is possible that, upon seeing them return to work, he changed his mind and returned to work via the lunchroom. If he went to the lunchroom to call the Union, he should have known that no one at the Union works on Saturday. This was part of his continuing "stoppage of work."

Section 2.8 allows "duly authorized representatives" of the Union to visit, observe working conditions, and see the Agreement is carried out. It does not bestow such privileges on a shop steward. Nothing in the Agreement recognizes shop stewards, and no special privileges are bestowed upon them. Grievant should have conducted such business as filing a grievance on his own time, not while he was being paid time and one half. October 23 was a mandatory overtime day. If not enough employees had volunteered to work, Taylor would have drafted from the bottom up. Everyone was required to work.

The Union cannot rely on an "off handed remark," pirated from the E-mail system, to show that the decision to terminate occurred before an investigation. The Union would rather ignore the complete investigation that occurred thereafter. It was not improper to suspend Grievant pending investigation while others were only put on notice of the investigation. The Employer took this action based on the initial investigation, including discussions with Taylor and Williams.

After Grievant's suspension, the Employer fully investigated the incident and considered the evidence. It decided to limit the discipline of the other employees to warning letters, but to terminate Grievant. Employers have the authority to use selective discipline based on relative fault.

Grievant had been shop steward for 10 years without incident. A charge of discrimination based on union activity cannot rest on mere surmise, inference, or conjecture. Clear proof is required to sustain such charges. Grievant was a liability to the Union, the employees, and the Employer. He has no claim on mercy. The Employer's action was proper. The grievance should be denied in its entirety.

The contractual standard of "good and sufficient cause" is the same as "just cause." The Employer has not met the tests for "just cause."

Grievant had no forewarning that his actions could result in discipline or discharge. He had never been disciplined for going to Taylor about problems or informing the crew of the outcome of those visits. His own departure from work was not a basis for discipline, because he had already worked longer than he had promised. When warned in the second meeting that he and others could be disciplined for leaving, Grievant returned to work for another two hours.

The Employer has failed to show that the alleged misconduct occurred. No slowdown or work stoppage took place. Grievant therefore could not be guilty of violating the no-strike clause. The contract language cited by the Employer to justify its position does not apply.

The investigation was adequate to determine guilt or innocence. However, because the Employer decided to terminate Grievant before the investigation, it ignored the most important facts. No witness testified that Grievant called for a walkout or asked or ordered them to do anything.

The Employer did not conduct a fair and objective investigation. After deciding to terminate Grievant, it interviewed witnesses only to validate that decision. A fair investigation would have shown that Grievant neither called for a walkout nor disrupted the work force.

The Employer did not secure proof of the charges against Grievant. The employees did not go to the office to walk out, and Grievant did not call for this action. He only did what had been his long-standing practice--taking problems to Taylor and reporting the result to employees. He was simply going home at the end of the work period for which he volunteered, because he was angry with Way for doing unit work. Even then, he worked another 2½ hours after speaking with Taylor.

Grievant received disparate discipline. All eight employees went to the office at the same time. The Employer took the unfounded position that all eight intended to walk out, but suspended and terminated only Grievant.

The penalty of discharge was too severe. The Employer failed to prove the charges of disrupting the work force and instigating a near walkout. Grievant is a 23-year employee. He has no history of being anything but a model employee until Way began violating the Agreement. The Employer's dissatisfaction over his attempts to enforce the Agreement is not justification for such a severe penalty.

In this discharge case, the Employer must establish, by clear and convincing evidence, that it had good and sufficient cause for Grievant's discharge. The discharge must stand or fall on the grounds cited by the Employer at the time--i.e., that he "disrupted the work force and instigated a near walk out by the employees."

Article XXI is clear and unambiguous. Employees are prohibited from engaging in "strike action," which explicitly includes sit-downs, slowdowns, and stoppages of work. Such conduct is a very serious matter, as it offends the reciprocal obligations of the Agreement. If it occurs, the Agreement gives the Employer discretion to discipline or discharge as it deems appropriate.

The pivotal point is the meaning of "strike action," as used in Article XXI. That term does not include every instance in which one or more employees cease performing duties during work hours. In labor relations parlance, a "strike action" is a withholding of services as an economic weapon, or to gain a concession from one's employer. If the cessation of work is merely an incidental by-product of other permissible conduct, it is not a "strike action."

Unlike some contracts, this Agreement does not specify that grievance activity must be conducted on non-work time. No evidence exists that the Employer has prohibited the presentation of concerns during work time or overtime hours. On the contrary, Grievant and other employees have routinely brought concerns and grievances to management, singly and in groups, during work time. Thus, the presentation of a grievance during work time or overtime is not a "strike action" unless coupled with an intention to withhold services to gain a concession.

In a like vein, not every discussion between a shop steward and unit employees during work time constitutes a work stoppage or disruption. In this workplace, employees have had the option of presenting their concerns themselves or having their steward take grievances to management and report the results.[2] No evidence exists that the Employer has ever prohibited the brief pauses in work incidental to such a discussion.

The issue of unit work was a recurring employee concern in this workplace. On this occasion, Taylor questioned Grievant's interpretation of "unit work." Grievant's initial response was to throw the issue back to the employees and urge them to talk to her about it. Those employees who heard of the dispute from other employees, rather than from Grievant, understood a walkout was possible. Such a distortion of the original message often occurs with word-of-mouth transmission. However, on this record, Grievant himself did not call for a walkout or other work stoppage.

No evidence exists that the employees "badgered" Taylor. This meeting was consistent with the accepted practice of seeking her out under the "open door" policy. It ended when Taylor walked away. Grievant served as the sole employee spokesman throughout this brief exchange.

The evidence of intent to engage in a work stoppage is in conflict. Taylor heard Grievant say "We are leaving." Williams heard him say "We are walking out." The Union's witnesses, as well as employee witnesses called by the Employer, recall him saying "I am leaving." Even if Grievant only said "I am leaving," he coupled it with a statement of the same grievance he had presented earlier that day. In that context, Taylor and Williams reasonably interpreted his remarks to mean the group was leaving because of that grievance. The ensuing conversation demonstrated a basic disagreement about the obligation to remain at work on an overtime day. Taylor's measured response averted any further misunderstanding on that score. The employees simply returned to work--even Grievant, who had already worked his half day. No walkout occurred.

It is debatable whether Grievant mistakenly believed that employees as a group were free to leave at will, and whether he voiced that belief. It is clear that he personally had fulfilled his work obligations for the day and was free to leave. As a 23-year employee, he is entitled to the benefit of the doubt. Certainly, he was inartful in stating the group concern in conjunction with his own intention to leave. However, the record does not clearly and convincingly establish that he urged or planned a work stoppage. In these circumstances, the Employer has not carried its burden of demonstrating that he engaged in "strike action" within the meaning of Article XXI, Section 21.1.

Having concluded that Grievant did not engage in "strike action," it follows that no cause existed for his discharge under Article II, Section 2.4. He therefore must be reinstated and made whole in accordance with the provisions of Article XIX, Section 19.3(b) of the Agreement. The Arbitrator retains jurisdiction over the remedy and any disputes arising therefrom.

1. Mr. Thommen was not discharged in accordance with Article II, Section 2.4 of the contract.

2. As a remedy, the Employer shall reinstate Grievant and make him whole consistent with the provisions of Article XIX, Section 19.3(b) of the Agreement.

3. The Arbitrator retains jurisdiction over the remedy and any disputes arising therefrom.

4 Under Article XIX, Section 19.3(d) of the Agreement, the Employer is the losing party, and shall bear the expenses and fees of the Arbitrator.

[1] No evidence exists on this record of the days or hours when the Union representative was available by phone.

[2] This common practice works to the advantage of all parties. It is more efficient for the shop steward to present an issue affecting the entire unit than to have every concerned employee approach management. The steward is also more likely to be familiar with the manner in which similar concerns may have been resolved in the past, and thus more able to suggest appropriate solutions for the problem.