AMERICAN ARBITRATION ASSOCIATION Before Timothy J, Brown, Esquire

Transcription

1 AMERICAN ARBITRATION ASSOCIATION Before Timothy J, Brown, Esquire In the matter of: Boilermakers, Local 88 : (Union) : : AAA Case No and : Arbitrator Case # O31101 : Esschem Company : (Company) : : (Termination of Andrew Shemo) Decision and Award Appearances: On behalf of Boilermakers. Local 88; Mr. Philip J. Evans, Intl. Brotherhood of Boilermakers. Iron Shipbuilders, 2629 Ogden Ave., Boothwyn, PA On behalf of Esschem company; Daniel P. O Meara, Esquire, Montgomery, McCracken, Walker & Rhoads, LLP, 123 South Broad Street, Philadelphia, PA Summary of decision: For the reasons stated in the following Decision, the subject grievance is granted, as modified herein. Dated: February 18, 2004 Timothy J Brown, Esquire Arbitrator

2 Decision Events Leading to the Grievance On August 28, , grievant Andrew Shemo, one of three Colorists employed by polymer manufacturer Esschem, Inc. (the Company), telephoned his employer and reported that he would not be present on his scheduled 4:00 p.m. to midnight shift because his shoulder and arm were sore. At the time of his call Grievant was aware that he had exhausted his paid leave and, as a result, would be absent from work without pay. Later that evening, Grievant and his girlfriend Georgina Clark, an Esschem day-shift employee, were observed by a third company employee on a television broadcast of a Philadelphia Eagles, NFL pre-season football game. Because of Grievant s absence, the Company was not able to run all of its coloring mills during its August 28 4:00 p.m. to midnight shift and fell behind in its production schedule. On August 29 Company management heard of Grievant s television appearance and conducted an investigation into Grievant s absence of the day before. During the investigation Vice President of Operations Ed Sobaleski learned from Clark that she and Grievant had been to the football game the night before. When Grievant later arrived at the plant to start his 4:00 p.m. shift he was directed into a meeting with representatives of management and his Union, International Brotherhood of Boilermakers, Iron Shipbuilders, Local 88 (the Union). Grievant was asked by management if he had attended the Eagles game the night before and admitted that he had. He was asked if he had anything to say and replied that he may have exercised bad judgment (or been stupid) and 1 All dates are 2003 unless otherwise indicated. 2

3 that he stood on his record. Grievant was then told by the Company s president that he was being terminated because he lied to management. The Union filed a timely grievance over the August 29 termination of Grievant. The parties processed that grievance through the grievance procedure of the Parties May 19, 2002 to May 18, 2006 bargaining-agreement. This arbitration arises pursuant to the arbitration provisions of that collective-bargaining agreement. The undersigned was selected by the parties to conduct a hearing on the matter and render a binding arbitration award. The hearing was held in Essington, Pennsylvania on January 19, At the hearing all parties were afforded the opportunity to call, examine and cross examine witnesses, introduce relevant evidence and present argument. Both parties presented closing argument, at the conclusion of which the record in this matter was deemed closed. The parties stipulated that there are no procedural issues to be resolved and that the matter is properly before the arbitrator for decision. matter: Issues The parties stipulated that the following issues are presented for decision in this Was Grievant Andrew Shemo terminated for cause, and if not, what shall be the remedy? Positions of the Parties The Company urges a finding that the August 28 conduct of Grievant amounted to cause for discharge whether or not specifically covered by its Shop Rules. The Company 3

4 takes the position that although Section of the Agreement 2 provides that the Union s members will observe the Shop Rules posted from time to time by the Employer, such language does not limit the Company s right to discipline or discharge for other reasons. By virtue of the Management Rights Clause of the Agreement (Article 6.01) 3, and other language providing that no employee shall be discharged or disciplined without good and sufficient cause, (Article 9.01) the Company argues that it also has the right to discipline and discharge for any reason constituting good and sufficient cause whether or not listed in the Shop Rules, as long as such is not inconsistent with the terms of the bargaining agreement. In any event, the Company continues, Grievant s August 28 conduct violated Shop Rule 3. That Rule prohibits [f]alsification of Employer s records (including, but not limited to, production records, personnel records, time cards, etc.) and provides for discipline up to and including discharge on the first violation. In this case, the Company argues, when Grievant called the Company and reported that he could not come to work because of shoulder and arm pain a record of the reasons for his absence was made. Such record, the Company continues, was false because Grievant was not experiencing the neck and shoulder pain he reported and lied to management so that he could attend a football game rather than work as scheduled. Such dishonesty amounts to good and sufficient cause provides; the Union agrees that its members will observe the Shop Rules of the Employer as posted on the Bulletin Board from time to time, provided such Shop Rules are not inconsistent with the provisions of this Agreement (see Attachment C ). 3 In relevant part, the Section states: it is agreed that nothing in this Agreement is intended, nor shall it be constituted as denying or in any manner limiting the rights of the Employer to control and supervise all operations and direct the work force except to the extent expressly provided in this agreement. All rights and responsibilities of Management, not specifically modified by this Agreement, are retained by Management. 4

5 for discharge. This is particularly the case where, as here, the Company explains, the Employer must have unquestioned trust of its employees because of the expansive size of its facility (60,000 square feet) and small number of union employees (30) and supervisors. The August 28 th dishonesty of Grievant has made such trust in the future impossible, according to the Company. Alternatively, the Company argues, whether or not Grievant knew that he was going to the football game prior to the time he called off is of little consequence to the dishonest nature of his conduct. If Grievant was well enough to go to a football game he was well enough to work. His failure to work on August 28 caused disruption in the Company s on-time-delivery program and resulted in the Company paying another Colorist eight hours of overtime. The Company is entitled to expect honesty from its employees. Grievant conduct was dishonest and justified his discharge. The Union acknowledges that the Company may discipline for good and sufficient cause and argues that such has been defined by Article of the Bargaining Agreement as well as by the practice of the parties as conduct described in the Shop Rules. According to the past practice of the parties, the Union claims, any addition or change to the Rules must be the subject of bargaining and agreement with the Union. Here, the Company did not follow required procedure to either negotiate a rule that would cover the alleged conduct of Grievant or apply an existing rule to his circumstances. Effectively, the Union continues, the Company violated the Agreement by unilaterally changing the Shop Rules. Moreover, Grievant s conduct should be viewed as falling within the absenteeism policy contained in the Shop Rules (Rule 19) and should have been dealt with pursuant to that 5

6 rule, as modified by the parties. 4 Finally, the Union urges, even assuming Grievant acted as the Company claims and the Company may discipline outside of the Shop Rules, his conduct was not egregious, did not cause the Company measurable harm and does not constitute good and sufficient cause for the ultimate discipline of termination. This is particularly so, the Union concludes, where the Grievant received no prior warning or progressive discipline prior to his termination. Discussion An analysis of a case claiming discharge for good and sufficient cause as is presented here requires consideration of several factors, such as; (1) whether or not the employer relied on a reasonable rule for the disciplinary action, (2) whether there was prior notice to the employee of the rule, and the consequences for violating the rule, (3) whether the disciplinary investigation was adequately conducted, (4) whether the employer was justified in concluding that the employee engaged in the conduct as charged and (5) whether the discipline issued was appropriate given the relative gravity of the offense and has been consistently applied to other employees charged with violation of the same or similar rules. The burden of establishing that Grievant was discharged for good and sufficient cause is the Company s. 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 such contractual language, many arbitrators require that where the rule or policy at issue 4 In 2001 the parties negotiated a new shop rule on absenteeism. According to an April 26, 2001 memo from Edward Sobolewski, the shop rule states that; Any unexcused absence or more than 9 excused absences (called in at least one hour before shift starts with supervisor s permission) in a 12-month period (January to December) before a written warning is issued (upon the tenth absence). After that; two written warnings, then discharge. This does not include absences covered by a doctor s note. 6

7 relates to an employee s honesty, such as the Company s claim here, the Company must establish the violation of the involved rule or policy by a preponderance of the evidence. Many other arbitrators require clear and convincing evidence of the violation. And yet other arbitrators apply the criminal standard of beyond a reasonable doubt. In my view such categorizing may be too formulistic. 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 sufficiently satisfied that the grievant engaged in the conduct of which he or she is accused. Here, after considering all of the evidence and arguments of the parties, I am not convinced that Shop Rule 3 was intended by the parties to cover the type of indirect, record-related conduct at issue in the instant matter. However, I agree with the Company s argument that the language of the bargaining agreement does not limit the definition of good and sufficient cause for discipline purposes to conduct contained in the Shop Rules. The language of Article does not expressly limit the rights of the Company reserved in the management rights clause (6.01). Nor does Article 21.2 so much as refer to good and sufficient cause on its face or in any way attempt to offer a definition of the phrase. Additionally, it is unreasonable to expect parties to a bargaining agreement to anticipate and specifically codify any and all forms of unacceptable employee conduct. In the absence of clear contract language to the contrary, it may be presumed that certain types of misconduct are so obviously wrong that (1) employees should know they are prohibited, whether or not specifically included in a set of work rules, and (2) are of such serious nature that employees could reasonably anticipate discipline or termination should they be 7

8 found to have engaged in such conduct. Relevant to this case, whether or not such is explicitly stated in a rule, an employer may reasonably expect that its employees will act honestly and will not attempt to steal or defraud the company of time or money. It may also be presumed that reasonable employees will anticipate that when an employee engages in dishonest conduct, depending upon the circumstances, such may constitute cause for discipline or termination. Here, Grievant was neither seeking nor expecting pay for his time off, and the record does not support a finding that he otherwise attempted to steal or defraud the Company. 5 The dishonesty of which Grievant is accused by the Company is the act of lying to management. Management claims that at the time Grievant called the Company on August 28 he knew he was going to a football game and he intentionally mislead his employer by falsely claiming he could not go to work because of a sore arm and shoulder. An underlying presumption of the company s claim is that Grievant s lie was premeditated and part of an overall scheme to go to a football game rather than go to work. Both the intentional and premeditated natures of the lie alleged by the Company add to the potential seriousness of Grievant s conduct. The record does not support the finding of an intentional, premeditated scheme presumed by the Company. It is undisputed that Grievant called off at about 1:30 p.m. on August 28 claiming neck and shoulder pain and that Grievant attended a football game later that evening. Although these facts justify the Company s suspicions as to the veracity of 5 Although the Company claims that it was required to pay eight hours of overtime resulting from Grievant s absence on the 28 th, the record establishes that the overtime was incurred after Grievant was terminated at the start of his shift on the 29 th. Thus, grievant did not work on the 29 th due to the Company s decision to terminate him. Whether the overtime eventually paid by the Company was caused by Grievant s absence on the 28 th (his doing) or the 29 th (arguably the Company s doing), or both, is not clear. In any event, I do not find that any such costs associated with Grievant s conduct equate to an attempt to steal or defraud the Company. 8

9 Grievant s reasons for calling off work, neither these facts alone or the suspicion they raise, meet the Company s burden of establishing the violation alleged. This is particularly true where, as here, Grievant denied on the witness stand that he knew of the opportunity to go to the football game, and confirmed that he was experiencing neck and shoulder pain, at the time he telephoned the Company on August 28. The Company argues that Grievant s claim that he did not have knowledge of the availability of the football tickets when he called off should not be credited because of the timing of the delivery of the tickets to the facility only an hour or so after the employee called off and because Grievant did not claim such during the investigation or grievance meetings. Contrary to the Company s argument, the record supports Grievant s witness-stand claims. In this regard, I particular rely upon the testimony of Edward Sobolewski, the Company s Vice President of Operations. Sobolewski testified on direct examination that during his investigation on August 29 he asked Georgina Clark about Grievant going to the game with her the previous night and that Clark stated that when she told Grievant about the tickets and he expressed interest in going to the game she reminded him that he had already called off work and that he should not go to the game, but he could do what he wanted. Whether Grievant had the wherewithal to raise the timing of events during his investigative interview with management or not, the testimony of the Company s own witness counters any argument that the testimony of Grievant concerning his lack of knowledge about the tickets at the time of his phone call is a recent fabrication. Additionally, I find that Grievant s ready admissions during the investigation that he went to the game and that he exercised bad judgment are more consistent with a spur-of-themoment-like decision to attend the game as reported to management by Clark than a willful 9

10 and continuing scheme to deceive the Company. As a result, I credit Grievant s testimony that he did not know of the football tickets and that he had shoulder and neck pain at the time of his August 28 call to the Company. These conclusions do not establish whether or not Grievant accurately reported the seriousness of his physical condition when he called off on August 28. If Grievant was experiencing pain at the time of his call but his pain was mild enough not to interfere with his performing his job, his report that he could not work would have been untrue. On the other hand, if Grievant believed he could not perform his job at the time of his call to the Company and his condition subsequently improved to the point where he could attend the game, his failure to go to work would be a serious offense but would not necessarily rise to an act of willful dishonesty. The Company s argues that if Grievant was well enough to go to the game he must have been well enough to work. I agree with the Company s conclusion. However, such only serves to establish that Grievant was well enough to work at the time of the game and does not resolve the issue of whether he was well enough to work at the time he called off. The only evidence in the record of Grievant s condition at the time he called off is the August 28 statement that he was too sick to work offered to the Company by Grievant. Considering Grievant s nine years of employment with the Company with no record of prior discipline, where as here the evidence is not conclusive as to what point in time Grievant became well enough to work, considerations of due process and fairness warrant that he be given the benefit of the doubt on this issue. As a result I find that the record 10

11 evidence fails to establish that Grievant intentionally lied to the Company and further find that the Company did not have good and sufficient cause to terminate Grievant. 6 Although Grievant may not have lied to the Company, his failure to report to work when he was able on August 28 at the time he knew that his absence would cause the Company disruption was nevertheless a serious breach of his duty owed his employer. Such a conscious disregard for the interests of the Company amounts to more than a violation of the attendance policy and constitutes good and sufficient cause for substantial discipline. As a result, I shall order that Grievant s termination be reduced to a ten workday suspension beginning August 29, 2003, and further order that the Company offer Grievant reinstatement to his former or substantially equivalent position and make Grievant whole for his lost pay and benefits caused by his termination from the conclusion of the final day of his suspension to the date of his return to work or his failure or refusal to accept an offer to return to work. I shall retain jurisdiction over this matter, limited to issues of remedy only, for a period of thirty days following the receipt of this Decision and Award by the parties. Dated: February 18, 2004 Timothy J Brown, Esquire 6 The arbitration decisions finding cause for termination cited by the Company in its prearbitration brief are distinguishable from the facts here. In the cases cited by the Company the involved employees either inappropriately received compensation for their absence, admitted lying to their employer when they requested leave or lied during their employer s subsequent investigation of their absence. Here, as discussed above, I do not find that Grievant lied at the time he requested leave and the record is clear that Grievant received no pay for his time off and, rather than lie during the Company s investigation of his absence, Grievant was straight forward and candid in his responses to questioning by management. 11

12 AMERICAN ARBITRATION ASSOCIATION Before Timothy J, Brown, Esquire In the matter of: Boilermakers, Local 88 : (Union) : : AAA Case No and : Arbitrator Case # O31101 : Esschem Company : (Company) : : (Termination of Andrew Shemo) Award The subject grievance is granted, in part. The Company (1) shall reduce the August 29, 2003 termination Grievant Andrew Shemo to a ten work-day suspension without pay beginning August 29, 2003, (2) shall offer Grievant reinstatement to his former or substantially equivalent position and (3) shall make Grievant whole (less mitigation) for lost pay and benefits caused by his termination from the conclusion his suspension to the date of his return to work or his failure or refusal to accept an offer to return to work. Any offer of reinstatement made pursuant to this Award must be made in writing and must provide Grievant a minimum of one week from his date of actual receipt of the offer to respond to the offer. Dated: February 18, 2004 Timothy J Brown, Esquire 12