FMCS IN ARBITRATION PROCEEDINGS PURSUANT TO AGREEMENT BETWEEN THE PARTIES

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1 Timothy J. Brown, Esquire Arbitrator and Mediator P.O. Box 332 Narberth, PA (610) FMCS IN ARBITRATION PROCEEDINGS PURSUANT TO AGREEMENT BETWEEN THE PARTIES In the Matter of a Controversy Between: ) ) UFCW LOCAL 1776 ) ) FMCS No and, ) (Arbitrator s # ) ) EAGLE FAMILY FOODS ) ) [Re: DISCHARGE] Decision and Award Appearances For UFCW Local 1776: Robert D. Mariani, Esquire, The Law Office of Robert D. Mariani, 108 North Washington Avenue, Scranton, PA For Eagle Family Foods: J. Howard Daniel, Esquire, Haynsworth, Baldwin, Johnson & Greaves, 918 South Pleasantburg Drive, Greenville, SC Summary of Award For the reasons stated below, I find (I) the dispute to be properly before the Arbitrator and (II) the subject termination of Grievant Gregory Carpenter violated the terms of the involved Last Chance Agreement negotiated by the parties. Respondent Eagle Family foods is to promptly offer Grievant reinstatement and make him whole for wages and benefits lost as the result of his June 19, 2001 termination. Dated: January 2, 2003 Timothy J. Brown, Esquire Arbitrator

2 Introduction This matter concerns the October 23, 2001 termination of Grievant Gregory Carpenter pursuant to a last chance agreement. (Referred to herein as LCA ). The Union, UFCW Local 1776, pursued a grievance on the matter claiming the termination was contrary to the terms of the LCA. The Employer, Eagle Family Foods, countered that it acted consistently with the agreement and further insisted (as it continues to do) that under the express terms of the LCA the termination of grievant is not subject to the grievance or arbitration procedure. Following unsuccessful pursuit of the grievance, the Union filed for arbitration under the terms of the parties collective-bargaining agreement, and the parties, through the offices of the FMCS, selected the undersigned as arbitrator in the matter. On October 17, 2002 a hearing was held before the undersigned during which all parties were given the opportunity to submit evidence, call and examine witnesses and make argument. The proceedings of October 17, 2002 were transcribed by court reporter and copies of the record delivered to the Union, Employer and the undersigned. Both the Union and Employer submitted timely briefs, the record was closed and case deemed submitted on November 22, Issues Presented The parties stipulated that the Arbitrator has the authority to determine the issue or issues presented based upon the evidence and argument of the parties. In the Employer s view, the issues would best be stated as: Is this case arbitrable under the last chance agreement, and if so, did the Company have the right to terminated Gregory Carpenter 2

3 under the terms of the last-chance agreement? The Union s view is that the issues presented should be stated as: Does the last chance agreement require that the company have cause for the termination of Mr. Carpenter, and, if so, did the Company have cause for the termination of Mr. Carpenter under the last chance agreement, and if not, what shall be the remedy? Based upon my analysis of the facts, evidence and arguments of the parties, I have determined the issues presented to be as follows: 1) Is this dispute, or any part of this dispute, arbitrable? 2) In the event disputes arising under the LCA are arbitrable, was the Employer s termination of Gregory Carpenter permissible under the terms of the agreement? 3) If the termination of Gregory Carpenter was contrary to the terms of the LCA, what shall be the remedy? Which Document(s) Reflect the Agreement of the Parties? The Employer, and Union 1 are parties to a collective bargaining agreement. The LCA was negotiated in settlement of a grievance over the June 19, 2001 termination of Grievant for unauthorized use of his supervisor s computer and was effective by its terms for one year beginning July 2, The LCA provides the following terms: 1 UFCW Local 176 initially negotiated the CBA on behalf of the bargaining unit. Local 176 subsequently merged into Local The Employer raised no objections or issues relating to the full participation in this matter by The merits of the computer-use related termination are not before me. 3

4 LAST CHANCE AGREEMENT Effective with my return to work on from a disciplinary suspension of employment, I agree to the following. Any violation (as determined solely by management and for cause) will result in my immediate termination of employment with Eagle Family Foods without any recourse to the grievance procedure (including arbitration) This agreement will last one year from today. Violation non-compliance of the following including but not limited to: 1. Performing all requirements of the job. 2. Following the directives of my supervisor and management associate. 3. Maintaining good relationships with supervisor/managers/associates. This includes no intimidating behavior/language, sexual/non-sexual harassment, or inappropriate language/behavior. 4. All safety rules and practices. 5. All good manufacturing rules and practices. The LCA is dated July 2, 2001 and signed by Grievant and four representatives of the Union. The LCA is not signed by a representative of the Employer. The Employer s representative and the same four Union representatives executed a July 2, 2001 memorandum relating to the LCA and other terms of the parties grievance settlement. However, the memorandum is not signed by the Grievant. In relevant part, that untitled memorandum provides: 3. Greg Carpenter will be on a Last Chance probation for a period of one year with out any recourse to the grievance procedure (including arbitration). Additionally, Grievant received a July 2, 2001 letter from the Employer s Plant Manager also outlining the elements of the grievance settlement and stating in regard to the LCA: You will not be eligible for unemployment insurance during this period, and will be placed on a one-year last chance probation without recourse to the grievance procedure, (including arbitration). 4

5 Although the Employer did not execute the document entitled Last Chance Agreement first quoted at length above, I find that document to best reflect the essence of the understanding between the parties (and Grievant). Of the three documents quoted above; (1) the LCA, (2) the memorandum between the Union and the Employer and (3) the letter from the Employer to the Grievant, only the LCA is entitled Agreement and only the LCA reflects assent by each of the three parties. Thus, the Employer authored the LCA and both the Union and Grievant signed the document. Should ambiguity in the LCA exist, the other two documents may be helpful in offering insight into the intention of a party or parties. However, where there is contradiction between the LCA and other two related documents, the LCA is controlling. The LCA does not Prohibit Arbitration as to its Meaning LCA that; The Employer claims that the agreement at issue, particularly the statement in the Any violation (as determined solely by management and for cause) will result in my immediate termination of employment with Eagle Family Foods without any recourse to the grievance procedure (including arbitration) effectively granted the Employer the exclusive right to determine what conduct by Grievant would constitute cause for termination, and that such exercise of discretion was intended to be beyond the reach of the collective-bargaining agreement grievance or arbitration procedures. In the Employer s view it would be unreasonable to interpret the agreement in such a manner as to grant Grievant reinstatement without a corresponding 5

6 benefit to the Employer of enjoying the right to terminating the employee without recourse to the grievance arbitration procedure. The Union, like the Employer, focuses upon the same language of the LCA and counters that the meaning and appropriate application of the LCA is subject to determination through the arbitration process acknowledged by the parties in their bargaining agreement. Where there is a dispute as to the meaning of language contained in the agreement of the parties, such as the meaning and impact of the term and for cause at issue here, it is, the Union argues, exactly the type of dispute the parties agreed would be resolved through arbitration. Moreover, no other reasonable interpretation of the LCA is possible, the Union continues, particularly where the language specifically requires cause for termination. Findings as to Arbitrability The meaning of language within a bargaining agreement is the type of dispute classically subject to arbitration provisions of collective bargaining agreements. Here, the parties collective bargaining agreement contains a broad grievance and arbitration provision. Although the LCA, as a product of bargaining, should be given meaning as written, the LCA should also be subject to narrow interpretation and given a meaning that is consistent with the underlying bargaining agreement. In order to find that the LCA changes the terms of the underlying bargaining agreement, the language relied upon must do so in a clear and unambiguous manner. Here, the LCA does not contain such clear and unambiguous language relating to disputes over the meaning of the parties agreement. As a result, I find that the instant dispute, so much as it pertains to the 6

7 meaning of the language of the LCA, was not intended by the parties to be entirely excluded from the grievance arbitration procedure. As to the meaning of the LCA, the dispute is properly before the arbitrator. The Meaning of the LCA An initial review of the disputed language of the LCA reveals that the parties intended to: (1) notify Grievant that he would be placed on a very short disciplinary leash, (2) grant the employer a substantial amount of discretion in determining what conduct would justify termination of the employee during the term of the Agreement and (3) significantly limit the ability of Grievant and the Union to submit an Employer decision to terminate under the LCA to the grievance/arbitration procedure. Notwithstanding such, I find that the agreement does not grant the Employer the unfettered discretion to determine what constituted cause under the agreement, or to terminate the Grievant simply for any reason deemed proper by the Employer. Rather, I conclude that the parenthetical language within the disputed language of the Agreement - (as determined solely by management and for cause) - acts to modify the immediately preceding reference to [a]ny violation. Testimony from witnesses of both Parties disclosed that the content of the parenthetical was the subject of both focus and modification by the parties in negotiation of the agreement. Taking the plain meaning of the language of the agreement and considering the testimony of witnesses from both the Union and the Employer, the record establishes that the parties intended that both modifiers - (1) as determined solely by management, and (2) and for cause be given effect when applying the agreement. As a result, I interpret the disputed phrase as 7

8 stating that any violation of the Employer s established rules and procedures will result in Grievant s immediate termination without any recourse to the grievance arbitration procedure, if, and only if, the violation meets both of two equally important requirements: (a) The violation is one that could constitute cause, and (b) Management determines, in its sole discretion, that such a violation warrants termination. For Cause It is well established in labor arbitration that where, as in the present case, an employer s right to discipline an employee is limited by the requirement of cause, the employer has the burden of proving that the discipline at issue was for cause. Cause whether described as cause, just cause, good cause or for cause is a term of art in collective bargaining agreements. Cause consists of a number of substantive and procedural elements. Primary among its substantive elements is the existence of sufficient proof that (1) the employee engaged in the conduct for which he or she was disciplined, (2) that the involved employee knew or should have known that engaging in such conduct would likely result in discipline and (3) a requirement that discipline be administered even-handedly, that similarly situated employees be treated similarly. In most cases, (although for reason explained below, not in the instant matter,) cause would also require a reasonable relationship between an employee s misconduct and the punishment imposed, and that disparate treatment in regard to the severity of discipline be avoided. Primary among the procedural elements of cause is the 8

9 requirement that employees be given a reasonable amount of due process in the administration of discipline. Here, the Union has argued that the reference to for cause in the disputed language should be read as requiring cause for termination. Such would require that Grievant engage in a violation of the Employer s rules and policies that would, absent the LCA, warrant termination. I deem such an interpretation too broad. Based upon the language of the LCA and testimony at the hearing, it is evident that the parties intended that Grievant be held to the same rules and policies as other unit employees but that he be subject to a stricter disciplinary progression than other employees, and as indicated above, that the Employer enjoy wide discretion in determining whether or not to terminate Grievant. Grievant testified that he understood the LCA to mean that he would be under the same set of rules as everyone else and that if he was terminated he would have the right to pursue whether or not cause existed through the grievance/arbitration procedure. The Employer s Plant Manager, Ferlin Patrick testified that he drafted the portion of the LCA at issue here and that: The intention was that he was not going to be terminated for something trivial; that in the committee meeting they brought up if he steps over the line there, you know, they re out to get him. For cause meant determined solely by management, and it would be for a legitimate violation. (T. pg.98) Based upon the language of the LCA and record testimony, the interpretation of cause most consistent with the intention of the parties, and which I adopt, would permit the Employer to exercise its sole discretion to terminate Grievant in the event Grievant engages in conduct that would qualify as cause for discipline of any type 9

10 however minor or severe. Thus for example, should Grievant have engaged in conduct warranting the most minor of discipline, such as an oral warning, the LCA effectively provides that the Employer is free to exercise its sole discretion and terminated Grievant for such violation, and further that such a decision by the Employer would not be subject to contest through the grievance / arbitration procedure. On the other hand, should the Employer rely upon conduct by Grievant that would not constitute cause for discipline at even the most minor level, a resulting termination of Grievant would be subject to the grievance / arbitration procedure because such conduct by the Employer would constitute a violation of the LCA. Consistent with the above, the narrow issue presented to the arbitrator here is whether or not the Employer has presented sufficient evidence to show that it relied upon proven conduct by Grievant of a nature that would constitute cause for any form of discipline. If the answer to such an inquiry is in the affirmative, the Employer s conduct may not be subject to review in arbitration and the grievance must be denied. If the answer to such an inquiry is negative, the Employer s conduct would constitute a violation of the LCA, would be subject to review in arbitration, and the grievance must be granted. Did the Employer have Cause to Discipline Grievant? The Employer notified Grievant of his termination by letter of October 23, 2001 stating; You have violated and failed to comply with your last chance agreement with Eagle Family Foods, initiated for one year period starting July 2, (This Agreement was made when you had returned from a disciplinary suspension of employment). 10

11 You failed on three separate occasions by the following: 1. Failure to notify your supervisor or a member of management that you were not capable of performing all the requirements of your job when reporting for work on October 18, Failure to follow the supervisor s directions on August 9, Failure to maintain good relations with associates by approaching an associate with whom you had been previously instructed not to contact, due to inappropriate behavior/remarks. (Week of July 15, 2001). Consequently, your employment with Eagle Family Foods is terminated as of October 23, 2001 Notwithstanding the language of the discharge letter identifying three separate incidents of alleged violations of the LCA by Grievant, the Employer takes the position that Grievant was terminated because of the first enumerated (October 18, 2001) incident described in its October 23, 2001 letter. Incidents 2 and 3, the Employer argued, are only relevant because they establish that the Employer had the opportunity to terminate Grievant under the LCA on two earlier occasions and chose not to do so, thus showing that the Employer has already bent over backwards to be lenient to Grievant and predisposed to be fair to the employee. Under the circumstances of this case, and based upon the representations of the Employer, I find that incidents 2 and 3 are not relevant to the issues presented in this arbitration. Events of October 18, 2001 Grievant arrived at work on Thursday, October 18, 2001, with a light duty note from his doctor and his left wrist in a bandage. He went directly to the maintenance office to check in with his supervisor Leo Vadnais, to get his assignment for the day and submit the doctor note. At the time, Grievant was not aware that his supervisor and plant manager were out of town. Present in the room were fellow maintenance worker Mark 11

12 Copp and Maintenance Coordinator Elaine Wagner. Copp immediately asked Grievant what was going on with his wrist. Grievant held up his left hand and responded that his doctor wasn t sure if he had carpel tunnel or not and wanted to put the employee on light duty for a while. Grievant believes that when he held up his hand he was holding the doctor s note and said light duty, but he doesn t know if Wagner noticed the note. Grievant testified that his statements were directed to both employees and that Wagner heard his statements. Wagner, according to Grievant, responded Okay and then informed Grievant that a light fixture he had ordered had arrived. Grievant replied that he would get to it a little later if he felt up to it. Wagner testified that Grievant arrived at the department on October 18, 2001 at about his 1:00 pm starting time. She informed him that emergency lights had arrived. Grievant responded that he didn t think he could do the job because he was having a problem with his wrist. She responded; Oh that s a shame, and suggested another job he could do. According to Wagner, Grievant neither held up a note nor said the words light duty. She does recall that the employee was wearing a wrist bandage at the time. Grievant did not inform any other member of the Employer s management about his condition. He testified that he had informed Wagner of the situation and she was the next in his chain of command to his supervisor. Wagner ordered parts, monitored the budget, handed out work assignments and knew everything about the maintenance department, according to grievant. Grievant worked October 18, 19, 20 and 21. On Monday, October 22, 2001 he began work at his usual time. Maintenance Coordinator Wagner testified that when Maintenance Department supervisor Vadnais, arrived at work that day after being away 12

13 at a convention, she mentioned to him that Grievant was having problems. The supervisor asked Wagner if there was a note, and Wagner said no. Supervisor Vadnais confirmed that when he returned Wagner told him Greg had a brace on his hand and couldn t install a light the previous Thursday. Grievant testified that he intending to discuss his wrist condition with his returning supervisor as soon as he reported to work on Monday. However, Grievant received his first assignment of the day from Supervisor Vadnais by page and follow up telephone call. Toward the end of the call Grievant told the supervisor he had to get with him. Vadnais told Grievant to address the job assignment first and they would deal with whatever [Grievant] had later. Grievant later came upon Vadnais in a hallway. The latter said he had heard Grievant had a problem with his wrist and asked what was going on. Grievant replied that they were not sure if it was carpel tunnel and they put him on light duty. Vadnais asked Grievant if he had a light duty note and grievant responded he did in his truck. Both Vadnais and Grievant the walked to Grievant s truck and retrieved the note. 3 Grievant then drove uptown to for a needed part. Upon his return to the workplace, he was called to the Human Resources Department and was there informed by HR Director John Cox that he was being suspended. On October 23, 2001, via the letter previously quoted, Grievant was informed that he was terminated. According to the Employer, Grievant violated a well established rule requiring employees to notify a member of management when they are limited to light duty. HR Director Cox testified that Grievant had previously experienced periods of light duty restriction and had always complied with the notification rule. He further testified that all employees, including Grievant had been informed of the Employer s policy to 3 The note doctor states; Light duty x 2 wks. Thank you. 13

14 report illness or injury to the employee s immediate supervisor or a member of management at safety meetings and by memorandum admitted into evidence as Company Exhibit 9. (Attached hereto as Appendix A) HR Manager Cox also testified that the requirement of prompt employee notification of injury is important to the Employer because an employee could aggravate an injury or medical condition, and such a circumstance could affect the safety of the employee and others. The Employer also emphasized the policy required that notification be made directly to a supervisor or member of management to permit adjustment of assignments or schedules, and argued that Maintenance Coordinator Wagner is neither a supervisor nor member of management. In this case, Cox concluded, the employee was shortly into his probationary period and there were three incidents, and it was his last chance agreement and the only alternative was to terminate Mr. Carpenter. Discussion It is unnecessary to determine whether Wagner is or is not a supervisor. The evidence established that the Maintenance Coordinator held a special status as a recognized conduit for information from maintenance employees to management. She was outside of the bargaining unit, distributed work assignments to unit employees, received a weekly salary, shared an office with the maintenance supervisor and was present, reported directly to the Maintenance Department Supervisor and continued to distribute work assignments in the absence of the maintenance department supervisor. More importantly for purposes of the instant matter, Wagner was perceived by both 14

15 employees and management as a legitimate conduit for information between maintenance department employees and management. Thus: (1) The Employer s written policy on reporting accidents (Appendix A) provides that in addition to supervisors and members of management, information on job injuries could be reported to the employee s lead person or group leader, two positions within the bargaining unit and cloaked with even less aura of management character than the Maintenance Coordinator; (2) The Employer s plant manager testified that it would have been appropriate for Grievant to give his doctor note to the Maintenance Coordinator on October 18, 2001 and she would have given the document to management; (3) Upon learning of Grievant s wrist issue on October 22, 2001, supervisor Vadnais asked Wagner if there was a note, a question reflecting his expectation that she would have been made aware of such; (4) Wagner testified that other supervisors would pass work requests through her to the Maintenance Department and (5) Grievant testified that the Maintenance Coordinator was a recognized member of the staff to receive such information on behalf of the Employer. Based upon these facts I find that the Employer s policy on reporting light duty does not require notification directly to a supervisor or member of management only. Rather, the policy additionally permits notification to the Maintenance Coordinator; an established conduit of information between management and unit employees. In regard to other requirements claimed to be in the light duty policy, there appears to be no written policy specifically dedicated to light duty. The Employer policy submitted as Employer Exhibit 9 identifies only accidents as its subject. Although the policy does not mention light duty status situations specifically, the Employer s witness testified that the written policy also applied 15

16 to light duty incidents. The October 23, 2001 termination letter issued to Grievant by the Employer states that Grievant failed to notify his supervisor or a member of management that you were not capable of performing all the requirements of your job. (Emphasis added.) Grievant testified that he does not recall seeing the written accident policy, but acknowledges that the Employer requires that light duty status be promptly reported. Importantly, the on-the-job accident policy focuses upon notification and neither requires written notification nor provides employees formal notice that failure to comply with the policy will result in discipline. I find the Employer s light duty policy to be an informal one. Like the accident policy, the overriding requirement of light duty policy is that timely notice be communicated to the Employer. Here, there is no dispute as to the authenticity of Grievant s October 18, 2001 doctor note or that the note was issued on October 18, Based upon the testimony of Grievant, maintenance coordinator Wegner and supervisor Vadnais, and the obvious character of Grievant s wrist bandage, I find that Grievant through his statements and actions provided Wegner sufficient information to place the Employer on notice of Grievant s light duty status. Grievant thereby complied with the Employer s light duty notice requirement. Additionally, the Employer offered no evidence or argument of any harm done due to Grievant s failure to additionally hand his doctor note to Wagner rather than keeping in safe until the return of his supervisor. 16

17 Conclusion Based upon the record as a whole and particularly noting the following, I find that Grievant s conduct on and about October 18, 2001 does not constitute cause for discipline: (1) Grievant provided the Employer prompt oral and visual notice of his light duty status, (2) Grievant may be faulted, if at all, merely for his exercise of judgment in safekeeping his note until his supervisor returned to work; (3) there was no showing of harm caused the Employer or the purposes underlying the reporting policy by Grievant s retention of his doctor note until the return of his supervisor; (4) there is no evidence of intent by Grievant to hide his light duty status; and (5) the Employer offered no prior incident of employee discipline for oral notice of light duty status under circumstances similar to those presented here. The Employer s termination of Grievant was not for cause within the meaning of the LCA. As a result, the October 23, 2001 termination of Grievant was in violation of the LCA. The Employer is required to offer Greivant reinstatement to his former or substantially equal position, make Grievant whole for wages and benefits lost due to his termination consistent with the terms of the parties bargaining agreement, and expunge any and all records of Grievant s termination from its disciplinary and personnel files. Additionally, the parties are to consider the LCA to have expired by its terms on July 1, The Arbitrator s jurisdiction over this matter is retained (1) for a period of thirty days after the date of the attached Award and (2) only for purposes of determining remedy related issues. 17

18 FMCS IN ARBITRATION PROCEEDINGS PURSUANT TO AGREEMENT BETWEEN THE PARTIES In the Matter of a Controversy Between: ) ) UFCW LOCAL 1776 ) ) FMCS No and, ) (Arbitrator s # ) ) EAGLE FAMILY FOODS ) ) [Re: DISCHARGE] Award The subject grievance is granted. The October 23, 2001 termination of Grievant, Gregory Carpenter was in violation of the July 2, 2001 Last Chance Agreement negotiated by the parties. The Employer is required to offer Grievant prompt reinstatement to his former or substantially equal position, make Grievant whole for ages and benefits lost due to his termination, and expunge any and all records of Grievant s termination from its disciplinary files. Dated: January 2, 2003 Timothy J. Brown, Esquire Arbitrator 18