FMCS IN ARBITRATION PROCEEDINGS PURSUANT TO AGREEMENT BETWEEN THE PARTIES

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1 FMCS IN ARBITRATION PROCEEDINGS PURSUANT TO AGREEMENT BETWEEN THE PARTIES In the Matter of a Controversy between: ) ) IUE-CWA LOCAL ) ) FMCS No and, ) (Arbitrator s # ) ) SMITH S DETECTION PROTECTION ) SYSTEMS ) ) [Re: DISCHARGE] DECISION and AWARD APPEARENCES: Joe Katula, International Representative for IUE-CWA Local Stefan Jan Marculewicz, Esquire, Miles & Stockbridge P.C. for Smiths Detection Protection Systems SUMMARY For the reasons stated below, the subject grievance is granted with modification. Dated: June 30, 2003 Timothy J. Brown, Esquire Arbitrator 1

2 Decision Introduction This Arbitration concerns the December 12, 2002 termination of Gwendolyn Jordan (Grievant) by Smiths Detection Protection Systems (Employer or Company). IUE-CWA Local (Union) disputed Grievant s termination, and has pursued a grievance over the discharge through all relevant steps of the grievance procedure contained in the parties collective bargaining agreement. This arbitration arises pursuant to the Grievance-Arbitration provisions of that November 1, 2000 through October 31, 2003 agreement. The undersigned was selected by the parties to conduct a hearing on the matter and render a binding arbitration award. A hearing was held on May 6, 2003 in Edgewood, Maryland, at which time the parties stipulated that there are no procedural issues presented for my consideration, and that the matter is properly before me for determination. At the hearing all parties were afforded the opportunity to call, examine and cross-examine witnesses, introduce relevant exhibits, and present argument. Both parties filed post-hearing briefs in the matter, upon the receipt of which the dispute was deemed submitted. Issues matter: The parties stipulated to the following statement of issues presented for decision in this Was Gwendolyn Jordan discharged for just cause? If not, what shall be the remedy? Facts The Company designs engineers and manufactures chemical, biological and nuclear detection devices. The Company follows a lean manufacturing method of production. The lean process results in production lines dedicated to the production of one item for one customer. All employees on the production line not only log into the Company s time keeping program for pay 2

3 purposes, but also log into the specific job upon which the production line is working. To avoid delays in the production process all employees on a lean line begin and stop work at the same time, and take their morning and afternoon ten minute breaks and their 30 minute lunch at the same times. On December 10, 2002 the lean line on which Grievant was working was producing low level air purification units (or LLAPUs). The LLAPU line was a new line with four employees receiving their initial training that day. Senior Lean Specialist, David Morrison, was observing the line for purposes of making adjustments in the line process to meet efficiency expectations and Senior Manufacturing Engineer John Volz, was running the line that morning. Volz is normally not a direct production supervisor 1. That morning, the line s supervisor, Sue Chalk, was working on a bid proposal in her office and was only sporadically present on the line. The December 10, 2002 shift began at 7:00 a.m. Between 8:00 and 9:00 a.m. Morrison and Volz implemented a short humanity break whereby production employees were permitted to sit down for a short time while working. Morrison explained that such breaks are given in an effort to increase production on lines when employees are first learning to produce a new product. Production thereafter began to increase. Morrison testified that he believes at about 9:45 or 9:50 a.m. Volz and Chalk determined to continue the good production and delay the start of the 10:00 a.m. morning break for twenty minutes, and the he again believes that either Volz or Chalk cleared the change with the bargaining unit. Volz testified that the delay decision was probably announced to employees just before 10:00 a.m. either by himself or Chalk. No Company witness offered explicit testimony that Grievant was directly informed of, or otherwise acknowledged, the break schedule change. 1 Although the Company attempted to establish that Volz had no supervisory authority on the line that morning, such is not supported by the record. The line s usual supervisor, Chalk, testified that Volz was responsible for the line that morning and that she was not present on the line. Moreover, in Grievant s discharge documents, the Company refers to Volz as a supervisor. 3

4 Grievant was assigned the last work station on the LLAPU line. Grievant offered uncontradicted and unequivocal testimony that she was not aware of the morning break rescheduling when she left her work location to use the restroom just before what she thought was the start of the 10:00 a.m. morning break. Morrison testified that he observed Grievant leave the production line at 9:55 a.m. with her cell phone. Volz also testified that he observed Grievant leaving the line at about 9:55 a.m. Neither Morrison nor Volz attempted to stop Grievant or call her back to the production line. When grievant thereafter exited the restroom she thought her break was over. However, as she walked out of the restroom she observed that her fellow production line employees were in the cafeteria. Grievant offered un-contradicted testimony that when she then went into the cafeteria she was told by coworkers that the break had been extended. She then joined her coworkers on break. Grievant returned to the production line at 10:35 a.m. steps behind two other LLAPU line employees, Dustin Kreider and Donte Buckler. All three were stopped by Engineer Volz. Volz first spoke to Kreider and Buckler asking them why they were late, hearing their responses the acting supervisor explained to the employees the importance of promptness on the lean line. Both employees apologized and returned to their stations. Volz then turned to Grievant, explained that same need for promptness and asked her what her story was. Grievant responded to the effect: just take it out of my pay. Volz replied; OK, this is going on your record. Vloz then went to the Company s Human Resources Department and to supervisor Chalk. He reported to Chalk that Grievant had taken a 9:55 to 10:35 break and had treated Volz in an insubordinate way. After receiving the report from Volz, Chalk immediately checked the computer program and determined that Grievant had not logged out of either the job or the Company clock for the extended break period. Although employees are not required to log off for their normal daily breaks or lunch, Chalk testified that they should log out to extended break when they are on an extended break or lunch. Chalk manually corrected the time keeping program to reflect that Grievant had taken an extended break. 4

5 Chalk then went to the Human Resources Department and reported that she had a case of theft of time similar to a case involving ex-employee Pellegrini some five months earlier. Chalk then recommended that Grievant receive the same discipline as had been issued Pelegrini: that of termination for theft of time. The next day, December 11, 2003, Grievant was delayed in arriving at work by an ice storm. She punched in and logged into the account she was working on at 11:54 a.m. After punching in Grievant then proceeded to take her lunch break with the rest of her production line. She returned to the production area at 12:30. On December 12, 2003 Grievant and her Union steward were called to the Office of Director of Human Resources, Barbara Longmead, where Grievant was informed that she was being terminated. An attachment to her letter of termination states that on December 10, 2002 Grievant took an excessive morning break and was insubordinate to production supervisor Volz. The document further explained that by failing to log off of the job she was working and taking an excessive break Grievant violated Employer policies and procedures against: (1) willfully defrauding the company by falsifying time cards [and] inaccurately recording production time, and (2) exceeding authorized rest, lunch or clean-up periods. The attachment also stated that on December 11, 2002 Grievant logged into a job at 11:55 a.m. and then went to lunch under circumstances where Grievant would have been aware that her actions would have resulted in her getting paid for lunch, when lunches are unpaid time at the Company. Again, the document concludes that this conduct violated the policy against willfully defrauding the company by falsifying time cards, inaccurately recording production and related infractions. 2 Longmead testified that during the termination meeting Grievant became hysterical and went onto the production floor yelling and screaming that she, a single mother, was being 2 In addition to the reasons stated in her termination papers, the Employer claimed at the hearing that Grievant did not call in that day to report she would be late and, thus failed to comply with the company rule requiring a call from employees within two hours of their start-time to report lateness or absence. 5

6 terminated just before Christmas. Longmead further explained that Grievant ignored her repeated orders to come off of the floor and return to the office, and only returned when Longmead took Grievant by the arm and led her back into the office to conclude the meeting. Positions of the Parties The Company argues that there is no dispute that Grievant took a forty, rather than ten, minute break on December 10, 2002, and that her statement to manager Volz to take the time out of her pay not only acts as an admission that she knew she had been on the clock the whole time and that it was wrong, but also amounted to insubordination; a bold defiance of a person of authority rightfully inquiring where she had been for the past 40 minutes. Although the Company now argues that Grievant took 6 rather than 36 minutes of time on December 11, 2002, in the Company s view, the Grievant s conduct of that day evidenced a continuing unwillingness to comply with the Company s time rules. In any event, the Company continues, the events of December 11 were secondary to those of December 10, as Ms. Chalk had already reached the decision to recommend that Ms. Jordan be terminated before the events of December 11 ever occurred. The Company also relies on its past termination of ex-employee Pellegrini in August of 2002 and the Union s failure to protest that employee s termination. Pellegrini had disappeared for 40 minutes while on the clock and had been terminated for such conduct and the Union did not file a related grievance. Like the Pellegrini case, the Company continues, the employee here was on the clock for 40 minutes while away from her production line and knew she was being paid for the time. To make matters worse for Grievant, the Company argues, Grievant added insubordination rather than an explanation, to her bad conduct. Thus, Grievant s case is worse than the Pellegrini case where the Union agreed with the Company s decision to terminate. Finally, the Company argues that the conduct of Grievant in going into a tirade on the production floor and refusal to follow the repeated instruction of the HR Director to return to the 6

7 office upon receiving her notice of termination provides an independent basis for termination of the employee. The Union argues that the Company is treating Grievant differently than it treats other employees. Thus, on December 10, 2002 Grievant and two other employees, Dustin Kreider and Donte Buckler, returned late from their morning break, yet only Grievant received discipline for the incident, and in issuing discipline to her the Company failed to follow the principle of progressive discipline. Moreover, the testimony of Union witnesses established that employees frequently take on-the-clock and off-the-clock breaks in excess of 10 minutes and are not subject to discipline. For just cause to exist, the Union argues, reasonable rules must be reasonably and uniformly applied. As for the events of December 11, 2002, the company policy is clear that employees are not paid for lunch and employees do not log out when going on lunch break, there was no knowing taking of time on that day. As for the 10 th, the Union continues, there was no willful stealing of time that day either. In the months leading up to the 10 th employees had been permitted to be lax in their time and attendance because of a slow down in business. Employees had been coming in late, taking longer breaks and leaving early. It was unfair for the Company to suddenly single out one employee for discipline. The Union also asks how the Company could claim Grievant willfully stole time when the employee told the Company to take the extra time out of her pay. As for the Pelligrini case, the Union counters, that case was significantly different from the case at hand. There the employee left the facility property without punching out. The Union s investigation disclosed that the employee was observed leaving the building and that upon her return she snuck into the restroom and stayed there for a period of time before returning to the work floor. Sneaky conduct, the Union concluded, that showed Pellegrini was acting purposefully and attempted to hide her actions. Here, the Union investigated the events leading to the termination of Grievant and determined the discharge was unjust and not consistent with 7

8 Company policies. The Union has the right to pursue a grievance of disciplinary action seems unjust, the Union concludes.. Discussion Standard of Proof An analysis of a discharge for just cause such as is presented herein requires consideration of several factors, including whether; (1) the employer relied on a reasonable rule for the disciplinary action, (2) there was prior notice to the employee of the rule, and the consequences for violating the rule, (3) the disciplinary investigation was adequately conducted, (4) the employer was justified in concluding that the employee engage in the conduct as charged and (5) whether the discipline issued has been consistently applied to other employees charged with violation of the involved or similar rules. The burden of proving the employee engaged in the subject prohibited conduct rests upon the Company. There is no contract language in the instant case offering guidance as to the standard of proof the Company must satisfy to meet its burden. In the absence of contractual language providing guidance on the subject, many arbitrators require the Company to establish the violation of a rule relating to employee honesty, such as the rule against defrauding the Company at issue here, by a preponderance of the evidence. Others require clear and convincing evidence. And others apply the criminal standard of beyond a reasonable doubt. In my view such categorizing may be too formulistic. I believe the parties choose an arbitrator to exercise his or her own good judgment. Such judgment is best exercised on a case-by-case basis after due consideration is given to all of the evidence, argument and circumstances of the case to determine whether or not the arbitrator is satisfied that the grievant engaged in the conduct of which he or she is accused. Reasons for Discharge In this matter the reasons proffered by the Company at the time of the discharge and thereafter have changed and/or been modified. As a result, even before I can determine if Grievant s termination was for 8

9 just cause, I must first define the reasons proffered and relied upon for her discharge by the Company. On December 12, 2002 when the Union and Grievant were first notified of the discharge, the Company stated in writing that Grievant had violated rules against willfully defrauding the Company and its customer of time by taking an excessively long break with the intention of being compensated therefore and being insubordinate on December 10, and again taking 36 minutes for lunch on December 11 with the intention of being paid for the time. Although the notice mentions that Grievant arrived late on December 11, that statement appears to serve merely as a background reference for purposes of the subsequent discussion about Grievant taking her lunch period. There is no reference in the document to a failure to call in on Grievant s part or any suggestion that the discipline then being issued was a result of the late arrival of Grievant; a lateness apparently caused by an ice storm. Considering that the written notice of termination was the result of collaboration between the Grievant s direct supervisor, the Company s Human Resources director and inside legal counsel, I find that the omission of the December 11 lateness and/or failure to call in was intended and that neither was a supporting cause for Grievant s termination. By the time of the hearing in this matter, the Company position relating to events of December 11, 2002 had changed. Rather than claiming Grievant was intending to steal 36 minutes of time by taking lunch with her fellow lean line employees, the Company claimed she had intended to receive pay for six (6) minutes of time immediately preceding the lunch break, time during which she did not perform work. The Company has not fully explained its change of position relating to December 11, 2002 events. However, the evidence did firmly established that employees are not required to punch out for lunch and that lunch is automatically deducted from employees time, as is time prior to the start of a shift. By the time of the hearing the Company also added a new, post-discharge, reason for the termination; Grievant s conduct during the December 12, 2002 termination meeting. Changing or shifting reasons for a termination may be viewed as evidence that an employer is not confident of the legitimacy of the originally stated reasons for its conduct or as evidence of an attempt to obfuscate the true reasons for its actions. Here, I find that the Company s adding post-discharge/termination meeting conduct as reasons for not returning Grievant to work does neither. The Employer could not have known of such conduct by 9

10 Grievant at the time it produced the termination letter. However, I find that the Company s additions to, and modifications of, the December 11, 2002 related reasons for the termination place the veracity of those reasons into question. General policies of fairness and due process, particular in circumstances requiring discipline only for cause, require that an employer be held to the original reasons for discharge it provided to the Union and Grievant. This, is particularly so where, as here, the Company continued to rely upon the original reasons for the discharge through the steps of the parties grievance procedure. As a result, I find the Company has not met its burden of establishing cause for termination relating to any conduct by Grievant on December 11, Such is consistent with the testimony of Company witnesses at the hearing. Supervisor Chalk testified that the reason for the termination of Grievant was her conduct of taking a paid 35 minute break on December 10. HR Manager Longmead also testified that the decision to terminate was made based upon events of December 10 and that such was not communicated to the employee at that time due to a need to receive final approval from the Company s then traveling president. Additionally, the Company took the position in its post-hearing brief that the events of December 11, 2002 were only secondary to the events of the day before. As a result, I find that Grievant was terminated due to her conduct of December 10, 2002; alleged by the employer to be willful defrauding of the Company and insubordination. 3 In regard to Grievant s conduct upon learning of her termination, I do not find such to constitute a separate and sufficient reason for termination or bar to reinstatement. In this regard, as a general proposition one may reasonably expect that an employee will exhibit some degree of emotion upon learning of his or her termination. Although Grievant here may have overstepped the bounds of the Company s definition of reasonableness in her reaction to her notice by attempting to communicate her treatment to her fellow employees, the Company failed to show that her conducted interfered with production or otherwise caused any disruption to production. Considering such, as well as the fact that Grievant is protected by federal law in communicating with her fellow employees about terms and conditions of employment, and recognizing that her failures to immediately comply with the directives of the HR Director may be sufficient reasons for lesser discipline under other circumstances, I do not find her post-discharge conduct, under these circumstances, to constitute sufficient reasons for termination, or sufficient reasons to bar her return to the workplace. 10

11 Conduct of December 10, 2002 The Involved Rules Based upon the evidence presented in this matter, I find that the Employer s rule against willfully defrauding the Company and rule against insubordination are reasonable and that Grievant had adequate actual or constructive notice of these rule. It is well established that rules prohibiting fraud, stealing time and insubordination protect important employer interests, and that under appropriate circumstances severe discipline of an employee who violates such a rule is not beyond the limits of reasonableness. Such conduct by an employee breaches the confidence an employer may reasonably expect from its employees and may be assumed as existent in any employer-employee relationship, even in the absence of written or formally established policies. The real issues in this case are whether the Company has established that Grievant actually violated either of these important rules, and if so, to what degree. To determine if Grievant violated the Company rules at issue, the rules themselves, as well as past practice of the parties must be analyzed to determine their meaning. Rule 6.1 in combination with Rule 6.1.5, of the Company s Policies and Procedures provides: 6.1 The following are among those actions which will prompt immediate discharge: Willfully defrauding the company by falsifying time cards, inaccurately recording production and related infractions. To engage in a willful act one must act deliberately. To engage in fraud one must engage in a deliberate deception in order to secure unfair or unlawful gain. Thus, the Company s Rule repeats the concept of deliberate conduct in its proscription and clearly places emphasis thereupon. As a result, to show that Grievant violated Rule on December 10, 2002, the Company must establish to a relatively high degree of certainty that Grievant knowingly and deliberately left her work station that morning intending to be paid for time not worked, or that at some time during her break that morning she deliberately extended her break with the plan or intention of being paid for time not worked. The record does not show that Grievant acted with a willful or deliberate design to cheat the Company of time. No Company witness offered testimony sufficient to establish that Grievant had actual 11

12 knowledge of the break change. Senior Lean Specialist Morrison testified only that he believed Volz or Chalk cleared the break schedule change with the unit. Volz testified only that he believed the change was announced and that he wasn t sure whether he or Chalk announced the change. Although Chalk was called as a witness by the Company, she offered no testimony whatsoever to clarify the issue. In contrast, Grievant offered unequivocal testimony that she did not know of the change in the break schedule that morning. Such lack of knowledge is consistent with a number of facts in the record: (1) the employees normally took a break at 10:00 a.m.; (2) the break change was decided upon by management just minutes prior to the normal scheduled start of the break; (3) Grievant acted in an open manner when she left for her break in full view of the two members of management with responsibility for her line that morning; and (4) upon observing Grievant leave her work station neither observing Company manager made any effort to stop her or inform her of the schedule change. Nor does the fact that Grievant later joined her coworkers for their break, alone, establish that she developed a plan to cheat the company during the course of her extended break. Under the circumstances, such conduct could simply be viewed as conduct of an employee who was honestly mistaken as to the time for the break that morning. Of particular note in this regard is the fact that Grievant was told by her coworkers that the break had been extended, a circumstances consistent with the Company s practice in the then recent past. I also find convincing the Union s argument Grievant is being subject to a shifting standard of conduct with regard to the break issue. In this regard, I credit Union witnesses who testified that unit employees commonly take both paid and unpaid breaks of over ten minutes and do not receive discipline from the Company, and note that consistent with such testimony, the Company failed to take any formal disciplinary action against employees Dustin Kreider and Donte Buckler who also returned late from their break on December 10, Nor does the Company s prior termination of ex-employee Pelligrini establish that an employee violates Rule by simply being absent from his or her work station while on the clock. Although one incident may have a varying degree of precedent value to future events, one incident does not establish a 12

13 practice between the parties by which a term or condition of employment is created. In the Pelligrini case, the Union s investigation established that the ex-employee left the Company s property to perform a personal errand and returned to the property in an arguably surreptitious manner by attempting to make it appear that she had been using the restroom during her period of absence. Additionally, the employee was given 24 hours by management to correct the potential overpayment and did not do so. Under the circumstances, the Union exercised its judgment and determined that employee Pelligrini s conduct showed that she was in violation of the Rule. Considering that the ex-employee s actions as understood by the Union could have been interpreted as evidence of a deliberate, rather than a mistaken, attempt to cheat the Company of time, I do not find that the Pelligrini case controls the instant matter. Finally, and notwithstanding the manner of her communication on the issue, Grievant did instruct management to take the extra time out of her pay, conduct inconsistent with a design to cheat the company and consistent with an unintended error. Based upon the above, I find that the Company has not met its burden of showing that Grievant engaged in the deliberate conduct required by the rule at issue. As a result, her discharge for the claimed violation of of the Company s Policies and Procedures was without just cause. Insubordination As discussed above, when Grievant returned from her break acting supervisor Volz was discussing lateness with two other employees. When he released the two to return to their work stations Volz turned to Grievant gave her the same instructions and asked her what her story was. In response to his question, Grievant stated that he could just take it out of her pay. Volz ended the conversation by telling Grievant that the incident would be placed in her record. The company claims that Grievant s reply to Volz was insubordinate. Both Company and Union witnesses testified that Grievant did not yell her reply at Volz. Grievant also testified that she stated it matter-of-factly because, she claims, she didn t want to make an issue out of things, she didn t want trouble. 13

14 Volz testified that Grievant s response was stated in a manner he felt was disrespectful, that Grievant was acting as though she was being inconvenienced by Volz and that Grievant did not answer his question. Insubordination can take many forms of varying degrees of gravity including physical and verbal attacks upon a supervisor, threats, refusal to perform assigned work, displays of disrespect, use of inappropriate language and other acts of defiance to a supervisor s or manager s authority. Here, I credit the testimony of manager/acting supervisor Volz that he perceived that Grievant was acting in a disrespectful manner. Although Grievant may not have yelled at Volz, I find it well within reasonableness for the manager to consider her manner of delivering her remark and failure to answer a legitimate question asked, to be disrespectful of workplace authority. Such an act warrants discipline. However, such conduct does not rise to the level of physical harm or threats that would warrant termination on a first offense. Rather, a more appropriate level of discipline for Grievant s conduct is one that takes into account the Company s commitment to progressive discipline and places the employee on notice that future conduct of a similar nature will result in increasingly sever discipline. Such a concept was acknowledged by Volz in reply to Grievant s take-it-out-of-my-pay statement, wherein the manager told the employee that documentation of her conduct would go into her record. A lesser penalty is also consistent with testimony of supervisor Chalk, the member of management who initiated and first recommended discipline of Grievant. Thus, Chalk testified that it was not the insubordination of Grievant that got her fired, suggesting that such conduct, standing alone, warranted a lesser penalty. Consistent with these statements of members of management, I will order that a written warning for insubordination be placed into Grievant s employment record. Conclusion The Company s termination of Grievant was not for just cause within the meaning of the parties bargaining agreement. As a result, the Company is required to promptly offer Grievant reinstatement to her former or substantially equivalent position, make Grievant whole for wages and benefits lost due to her termination for the period beginning December 13, 2002 and running through the 14

15 date of actual communication of the Company s offer of reinstatement to the Grievant and Union, and expunge any and all records of Grievant s termination from its disciplinary and personnel files. The Company did establish that Grievant violated the rule against insubordination, and for such the Company may issue an appropriate written warning to be placed into Grievant s personnel file. 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. 15

16 FMCS IN ARBITRATION PROCEEDINGS PURSUANT TO AGREEMENT BETWEEN THE PARTIES In the Matter of a Controversy between: ) ) IUE-CWA LOCAL ) ) FMCS No and, ) (Arbitrator s # ) ) SMITH S DETECTION PROTECTION ) SYSTEMS ) ) [Re: DISCHARGE] Award The subject grievance is granted with modification. The December 12, 2002 termination of Grievant, Gwen Jordan was without just cause. The Employer is required to offer Grievant prompt reinstatement to his former or substantially equal position, make Grievant whole for wages and benefits lost due to her termination for the period beginning December 13, 2002 and running through the date of actual communication of the Company s offer of reinstatement to the Grievant and Union, and expunge any and all records of Grievant s termination from its disciplinary files. The discipline of Grievant for insubordination was for just cause, and the Company may issue an appropriate written warning therefore. Dated: June 30, 2003 Timothy J. Brown, Esquire Arbitrator 16

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