GEORGE M. MAROVICH, District Judge.
NOW COMES DEFENDANT, BCTGM Local 316-G, by and through its counsel, Laurie M. Burgess, Burgess Law Offices, and submits the following statement of undisputed facts:
1. This Court has jurisdiction over this matter pursuant to the Federal Arbitration Act, 9 U.S.C. § 10, et. seq., and Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, and venue is proper in the Northern District of Illinois. (Ex. F. Answer to Counterclaim ¶1)
2. BCTGM Local 316G ("the Union"), is now, and at all times material herein was, a labor organization within the meaning of Section 2(5) of the National Labor Relations Act, 29 U.S.C. § 152(5), and Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185. (Ex. 1, Answer to Counterclaim ¶2).
3. General Mills and the Union are parties to a Collective Bargaining Agreement called the "Supplemental Agreement" (the "Supplemental CBA"), (Ex. A hereto), and are also parties to a Master Agreement (the "Master CBA") with the Union's affiliated International, Bakery Confectionery Tobacco Workers & Grain Millers International Union ("International Union"), and each of its Local Unions, including Local 316G in West Chicago, Illinois. (Ex. B hereto). (Answer to Counterclaim ¶4, 5).
4. The Master Agreement includes the following provisions:
1.02.2 — This contract represents the agreement reached between the parties as a result of having collectively bargained in respect to rates of pay, wages, hours of employment, and other conditions of employment, and its purpose is to promote and insure harmonious relations and understanding between the Company and its Employees. To that end the Company pledges itself to give its Employees considerate and courteous treatment, and the Employees, in turn, pledge themselves to render the Company loyal, efficient, and cooperative service.
1.02-3 — In consideration of these promises and the mutual promises of the respective parties herein contained, the parties hereto mutually covenant and agree to and with each other as follows:
5. On or about March 21, 2012, the Union appealed a grievance concerning the termination of General Mills Employee and Union member Leysa Walsh from employment (hereinafter "the grievance) to arbitration. (Answer to Counterclaim ¶ 7, Grievance, Ex. C).
6. On or about January 31, 2013 an arbitration pertaining to the grievance was held before Arbitrator Barbara W. Doering pursuant to the terms of the Parties' Master Agreement. (Counterclaim Answer ¶8, Master Agreement, Ex. B hereto, Arbitration Transcript Ex. D hereto).
7. On August 10, 2013, Arbitrator Doering issued her Decision regarding the grievance. (Counterclaim Answer ¶10, Arbitrator's Decision and Award, Ex. G).
8. In her Decision, Arbitrator Doering ordered that the grievant (Walsh) be reinstated to her job on 2
9. In her Decision, Arbitrator Doering found that the Company through its agent, Ms. Oberg, "did not provide copies of UX (Union Exhibit) 2 or any other documents to the grievant and the Union either at the suspension meeting the day before, or at the termination meeting." (Ex. G p. 14) Emphasis in original)
10. In her Decision, Abitrator Doering noted that at Hearing, "the Union made 4 or 5 contentions in its opening statement(s) and an additional argument developed during the hearing in connection with Company exhibits, records, and contentions that the Union felt had been unreasonably withheld to the extent of compromising due process with respect to the grievant's defense and its ability to assess and argue its case." (Ex. G p. 15).
11. In her Decision, Arbitrator Doering stated that some of the "considerations" that "weighed" in on her Award included:
"1) the Company's not having provided copies of the relevant Attendance documents and the 3 FOB forms at least at the suspension meeting (if not on 2/16) so hat the Union representatives could have a chance to review them before the termination meeting. For that matter, by citing the Attendance Policy as one of 3 policies violated, the Company should have produced minutes (probably of the 2/16 meeting, but certainly of the suspension meeting so that the Union could be clear on what was going on prior to the termination meeting. The point of a protocol of suspension prior to termination —
12. In her Decision, Arbitrator Doering ordered in part that "the Company shall pay to the Union an amount equal to the amount of hourly pay in the grievant's job at her 2012 rate for 3 weeks less 2 days — which was the amount of time from 2/16/12 to 3/5/12 that the Company took to consider and investigate — for the fact that Mr. Sikich did not have the grievant sign Attendance Reviews and the fact that the Company did not provide the Union with copies of relevant documents at the suspension hearing." (Counterclaim Answer ¶12, Arbitrator's Decision and Award, Ex. at p. 27).
13. The Parties' Master Agreement provides in pertinent part that the Arbitrator's decision "shall be final and binding on all parties involved." (Counterclaim Answer ¶13, Ex. B, Master Agreement page 16, Section 9.03).
14. General Mills has not complied with the portion of the Arbitrator's Decision awarding money to the Union as described in paragraph 12 above. (Counterclaim Answer ¶14).
NOW COMES DEFENDANT, BCTGM Local 316-G, by and through its counsel, Laurie M. Burgess, Burgess Law Offices, and in response to Plaintiffs Complaint states as follows:
1. This Complaint arises from, and jurisdiction of the Court is founded upon, the provisions of the Federal Arbitration Act, 9 U.S.C. § 10, et. seq., and Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, which vest federal courts with jurisdiction over suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce without regard to the citizenship of the parties.
2. Venue is proper in this District and Division under 28 U.S.C. § 1391(b), in that Defendant resides or may be found in this District and Division.
3. Plaintiffs are engaged in business within the State of Illinois and, for the purposes of this Complaint, in West Chicago, Illinois.
4. Defendant, BCTGM Local 316G ("the Union"), is now, and at all times material herein was, a labor organization within the meaning of Section 2(5) of the National Labor Relations Act, 29 U.S.C. § 152(5), and Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, which represents employees engaged in an industry affecting commerce, and maintains a place of business and otherwise transacts business within the State of Illinois and the geographic area comprising the Northern District of Illinois. Defendant's offices are located in West Chicago, Illinois.
5. General Mills operates a food manufacturing plant in West Chicago, Illinois (the "West Chicago Plant"). The plant spans about 40 acres and manufactures popular breakfast cereals including Cinnamon Toast Crunch and Chex, meal helpers such as Hamburger Helper and Chili Mack, and snacks such as Bugles. Hourly production and warehouse employees are represented by the Union.
6. General Mills and the Union are parties to a Collective Bargaining Agreement called the "Supplemental Agreement" (the "Supplemental CBA"), the effective dates of which are September 19, 2010 to September 20, 2014. See "Exhibit A."
7. General Mills is also party to a Master Agreement (the "Master CBA") with the Union's affiliated International, Bakery Confectionery Tobacco Workers & Grain Millers International Union ("International Union"), and each of its Local Unions, including Local 316G in West Chicago, Illinois, the effective dates of which are April 25, 2010 to Saturday April 26, 2014. See "Exhibit B."
8. The Master CBA contains a grievance procedure for the resolution of disputes between General Mills and the Union, as well as provisions for arbitration of grievances. (Ex. B, at pp. 15-17, Article 8. Grievance Procedure; Article 9. Arbitration).
9. Under Article 9 of the Master CBA, an Arbitrator's authority is limited to "grievances relating to the interpretation or application of the provisions of this Master Agreement and any Supplemental Agreement. . ." (Ex. B. p. 16, Section 9.03.).
10. The Master CBA further provides that "no grievance shall be subject to arbitration unless it has been processed through all the steps of the grievance procedure outlined in Article 8." (Ex. B. p. 16, Section 9.04).
11. The Master CBA also limits the potential remedies when the Arbitrator finds that a grievant has been unjustly discharged. Section 9.08 of the Master CBA states that, in such instances, the Grievant: "shall be given an opportunity to return to work. If he [the Arbitrator] finds that he [Grievant] should be paid for any time lost, such time shall be determined by the Arbitrator." (Ex. B. p. 17, Section 9.08).
12. Nothing in the Master CBA or the Supplemental CBA permits an Arbitrator to order any remedy other than the "make whole" relief described above in the case of an arbitration involving an employee's termination. Neither the Master nor the Supplemental CBA authorize an Arbitrator to order that the Company pay a penalty of any kind to the Union in relation to an arbitration involving an employee's termination.
13. Leysa Walsh (the "Grievant"), is a member of the Union and is employed by General Mills at its West Chicago Plant.
14. General Mills requires that employees at its West Chicago Plant use a plastic fob that works as a key to open the employee entrance and to clock in at the time clocks. If the employee does not have his or her fob, the employee must fill out a paper form headed "Missed Punch or Time Correction Form."
15. Grievant was discharged, effective March 6, 2012, for issues involving her completion of "Missed Punch or Time Correction Foi is" in February 2012.
16. The Union filed a grievance regarding the Grievant's discharge. The written grievance articulated the nature of the grievance and the remedy requested as follows: "unjustly terminated asking to be reinstated and to be made whole for any monies lost." See Grievance Form, "Exhibit C."
17. The grievance was appealed to arbitration on March 21, 2012. See Ex. C.
18. The arbitration hearing was held on January 31, 2013 before Arbitrator Barbara W. Doering. See Arbitration Transcript, "Exhibit D."
19. The parties stipulated to the following issue for Arbitrator Doering to decide: "Did the Company have just cause for the discharge of the Grievant, Leysa Walsh, and if not, what shall be the remedy?" See Ex. D, p. 6.
20. During the arbitration hearing, the Union objected to the entry of certain evidence, claiming that the Union had requested a copy of all documents that were going to be used in arbitration, but that certain documents General Mills relied on in the arbitration were not included in the documents provided to the Union in advance of the arbitration. See Ex. D, p. 54-56.
21. Specifically, the Union objected to the entry of attendance review forms that the Union claimed it had requested, but not previously received, as well as screenshots from the Company's attendance system, "Workbrain," and a copy of a form used by the Grievant to request a replacement fob on February 2, 2012. See Ex. D, p. 53-55, 202-205, 321-322.
22. The Company denied that the Union was entitled to pre-arbitration discovery of the Company's intended exhibits, but offered the Union a chance to review the Exhibits before they were relied upon in the arbitration. See Ex. D, p. 55.
23. The Parties submitted Post-Hearing Briefs to Arbitrator Doering on May 3, 2013. See Company's Post-Hearing Brief, Attached as "Exhibit E;" Union's Post-Hearing Brief, Attached as "Exhibit F."
24. On August 10, 2013, Arbitrator Doering issued her Award. In her Award, Arbitrator Doering found that the Grievant had intentionally committed the offenses for which her employment was terminated, but found that there was not just cause for discharge, only a "significant penalty." See Arbitrator's Decision and Award, Attached as "Exhibit G," Award p. 27. Thus, the Arbitrator ordered that the Grievant be reinstated but only reimbursed for one week's pay.
25. In addition, Arbitrator Doering ordered that "the Company shall pay to the Union an amount equal to the amount of hourly pay in the grievant's job at her 2012 rate for 3 weeks less 2 days — which was the amount of time from 2/16/12 to 3/5/12 that the Company took to consider and investigate — for the fact that Mr. Sikich [Company witness] did not have the grievant sign Attendance Reviews and the fact that the Company did not provide the Union with copies of relevant documents at the suspension meeting." Id.
26. In so doing, Arbitrator Doering decided issues outside of the scope of her authority and ordered a remedy other than that permitted by the Master and Supplemental CBA.
27. General Mills incorporates paragraphs 1 through 26 as if restated fully herein.
28. The portion of the Arbitrator's Award ordering that the Company pay the Union for allegedly not having the Grievant sign Attendance Reviews and allegedly not providing the Union with copies of relevant documents at the suspension meeting should be vacated by this Court.
29. Because arbitration is based on a contractual agreement to arbitrate, the scope of the arbitration is inherently limited to a determination of contractual rights and those matters the parties have agreed to arbitrate. An arbitrator exceeds his or her contractual authority by ordering a remedy that does not draw its essence from the collective bargaining agreement. An arbitrator's award should be overturned if it exceeds the scope of the authority conferred by the parties.
30. Arbitrator Doering's Award exceeded her authority by deciding issues outside of the scope of the grievance and outside the scope of the authority granted to her by the CBA, and by ordering a remedy outside of the remedies permitted by the contract. Accordingly, her Award does not draw its essence from the CBA and should be vacated on this basis.
WHEREFORE, Plaintiffs respectfully request that this Court
(a) Enter an Order vacating the portion of the August 10, 2013 Award ordering that the Company pay the Union for allegedly not having the grievant sign Attendance Reviews and allegedly not providing the Union with copies of relevant documents at the suspension meeting;
(b) Grant General Mills its incurred costs, including reasonable attorney's fees, in bringing this action; and
(c) For such other and further monetary and equitable relief that the Court may deem just and proper.
Defendant DENIES that Plaintiff is entitled to any relief in this matter. Defendant further avers that under well-settled law, Plaintiff lacks any reasonable basis for bringing this suit, and that the action is frivolous.
WHEREFORE Defendant respectfully prays that this Court DENY any relief to Plaintiff, and instead award attorneys' fees and costs to Defendant in answering this Complaint and defending this action.
NOW COMES Defendant, Counter-Plaintiff BCTGM Local 316-G, by and through its counsel, Laurie M. Burgess, Burgess Law Offices, and as and for its counter-claim against Plaintiff Counter-Defendant, alleges and states as follows:
1. This Court has jurisdiction over this matter pursuant to 29 U.S.C. Section 185 of the National Labor Relations Act.
2. The Defendant Counter-Plaintiff BCTGM Local 316-G (hereinafter "the Union") is a voluntary, unincorporated association and is a labor organization as defined in 29 U.S.C. Section 152(5).
3. The Plaintiff Counter-Defendant General Mills, Inc. and its affiliate General Mills Operations, LLC, (hereinafter "General Mills") is a corporation organized and existing under the laws of the State of Illinois, and is an employer within the meaning of 29 U.S.C. Section 153(2).
4. General Mills and the Union (hereinafter jointly referred to as "the Parties") are parties to a Collective Bargaining Agreement called the "Supplemental Agreement" (the "Supplemental CBA"), the effective dates of which are September 19, 2010 to September 20, 2014. See "Exhibit A" to Complaint.
5. General Mills is also party to a Master Agreement (hereinafter the "Master CBA") with the Union's affiliated International, Bakery Confectionery Tobacco Workers & Grain Millers International Union ("International Union"), and each of its Local Unions, including Local 316G in West Chicago, Illinois, the effective dates of which are April 25, 2010 to Saturday April 26, 2014. See "Exhibit B" to Complaint.
6. The Master CBA contains a grievance procedure for the resolution of disputes between General Mills and the Union, as well as provisions for arbitration of grievances. (Complaint Ex. B, at pp. 15-17, Article 8. Grievance Procedure; Article 9. Arbitration).
7. On or about March 21, 2012, the Union appealed a grievance concerning the termination of Union member Leysa Walsh from employment (hereinafter "the grievance) to arbitration. See Complaint Ex. C.
8. On or about January 31, 2013 an arbitration pertaining to the grievance was held before Arbitrator Barbara W. Doering. See Arbitration Transcript, "Exhibit D" to Complaint.
9. On or about May 3, 2013 the Parties submitted Post-Hearing Briefs to Arbitrator Doering. See Company's Post-Hearing Brief, Attached as "Exhibit E" and Union's Post-Hearing Brief, Attached as "Exhibit F" to Complaint.
10. On August 10, 2013, Arbitrator Doering issued her Decision regarding the grievance. See Arbitrator's Decision and Award, Attached as "Exhibit G" to Complaint.
11. In her Decision, Arbitrator Doering ordered that the grievant (Walsh) be reinstated to her job on 2
12. In her Decision, Arbitrator Doering ordered in part that "the Company shall pay to the Union an amount equal to the amount of hourly pay in the grievant's job at her 2012 rate for
3 weeks less 2 days — which was the amount of time from 2/16/12 to 3/5/12 that the Company took to consider and investigate — for the fact that Mr. Sikich did not have the grievant sign Attendance Reviews and the fact that the Company did not provide the Union with copies of relevant documents at the suspension hearing." See Arbitrator's Decision and Award, Attached as "Exhibit G" to Complaint at p. 27.
13. The Parties' Master Agreement provides in pertinent part that the Arbitrator's decision "shall be final and binding on all parties involved." See Master Agreement page 16, Section 9.03.
14. General Mills has failed and refused to comply with the portion of the Arbitrator's Decision awarding money to the Union as described in paragraph 12 above.
15. General Mills' failure and refusal to honor the Arbitrator's Decision and pay the Union the money awarded to it by the Arbitrator constitutes a breach in the Parties' Agreement.
WHEREFORE, the Defendant Counter-Plaintiff Union respectfully requests that this honorable Court:
(a) Order Plaintiff Counter-Defendant General Mills to comply with the Arbitrator's Award;
(b) Award Defendant Counter-Plaintiff Union its costs in bringing this action and defending against the instant Complaint; and
(c) Award any other relief that this Honorable Court deems just and equitable.
General Mills, Inc. and its affiliate General Mills Operations, LLC, ("General Mills" or "Plaintiff"), by and through their attorneys, hereby answer Defendant's Counterclaim as follows:
1. This Court has jurisdiction over this matter pursuant to 29 U.S.C. Section 185 of the National Labor Relations Act.
2. The Defendant Counter-Plaintiff BCTGM Local 316-G (hereinafter "the Union") is a voluntary, unincorporated association and is a labor organization as defined in 29 U.S.C. Section 152(5).
3. The Plaintiff Counter-Defendant General Mills, Inc. and its affiliate General Mills Operations, LLC, (hereinafter "General Mills") is a corporation organized and existing under the laws of the State of Illinois, and is an employer within the meaning of 29 U.S.C. Section 153(2).
4. General Mills and the Union (hereinafter jointly referred to as "the Parties") are parties to a Collective Bargaining Agreement called the "Supplemental Agreement" (the "Supplemental CBA"), the effective dates of which are September 19, 2010 to September 20, 2014. See "Exhibit A" to Complaint.
5. General Mills is also party to a Master Agreement (hereinafter the "Master CBA") with the Union's affiliated International, Bakery Confectionary Tobacco Workers & Grain Millers International Union ("International Union"), and each of its Local Unions, including Local 316G in West Chicago, Illinois, the effective dates of which are April 25, 2010 to Saturday April 26, 2014. See "Exhibit B" to Complaint.
6. The Master CBA contains a grievance procedure for the resolution of disputes between General Mills and the Union, as well as provisions for arbitration of grievances. (Complaint Ex. B, at pp. 15-17, Article 8 Grievance Procedure; Article 9. Arbitration).
7. On or about March 21, 2012, the Union appealed a grievance concerning the termination of General Mills Employees and Union member Leysa Walsh from employment (hereinafter "the grievance) to arbitration. See Complaint Ex. C.
8. On or about January 31, 2013, an arbitration pertaining to the grievance was held before Arbitrator Barbara W. Doering pursuant to the terms of the Parties' Master Agreement. See Arbitration Transcript, "Exhibit D" to Complaint.
9. On or about May 3, 2013 the Parties submitted Post-Hearing Briefs to Arbitrator Doering regarding the grievance. See Company's Post-Hearing Brief, Attached as "Exhibit E" and Union's Post-Hearing Brief, Attached as "Exhibit F" to Complaint.
10. On August 10, 2013, Arbitrator Doering issued her decision regarding the grievance. See Arbitrator's decision and Award, Attached as "Exhibit G" to Complaint.
11. In her Decision, Arbitrator Doering ordered that the grievant (Walsh) be reinstated to her job on 2
12. In her Decision, Arbitrator Doering ordered in part that "the Company shall pay to the Union an amount equal to the amount of hourly pay in grievant's job at her 2012 rate for 3 weeks less 2 days — which was the amount of time from 2/16/12 to 3/5/12 that the Company took to consider and investigate — for the fact that Mr. Sikich did not have the grievant sign Attendance Reviews and the fact that the Company did not provide the Union with Copies of relevant documents at the suspension hearing." See Arbitrator's Decision and Award, Attached as "Exhibit G" to Complaint at p. 27.
13. The Parties' Master Agreement provides in pertinent part that the Arbitrator's decision "shall be final and binding on all parties involved." See Master Agreement page 16, Section 9.03.
14. General Mills has failed and refused to comply with the portion of the Arbitrator's Decision awarding money to the Union as described in paragraph 12 above.
15. General Mills' failure and refusal to honor the Arbitrator's Decision and pay the Union the money awarded to it by the Arbitrator constitutes a breach in the Parties' Agreement.
16. General Mills failure and refusal to honor and comply with the Arbitrator's Decision is unjustified since the Arbitrator's Award clearly draws its essence from the Parties' Agreement.
WHEREFORE, the Defendant Counter-Plaintiff Union respectfully requests that this honorable Court:
(a) Order Plaintiff Counter-Defendant General Mills to comply with the Arbitrator's Decision and Award;
(b) Award Defendant Counter-Plaintiff Union its costs in bringing this action and defending against the instant Complaint; and
(c) Award any other relief that this Honorable Court deems just and equitable.
Plaintiff reserves its right to assert additional affirmative defenses as established by the facts of this case.
The hearing was held on January 31, 2013 in Geneva, Illinois before the undersigned Arbitrator, Barbara W. Doering. The parties stipulated there were no arbitrability issues. All witnesses were sworn and a transcript was taken. Both parties had full opportunity to question the witnesses and present evidence. Both parties indicated at the hearing that they would submit post-hearing briefs and it was further agreed that they would have the opportunity to file reply briefs. Briefs were received in early May and the record was closed on May 28, 2013, when the Arbitrator learned that the parties had decided not to file reply briefs.
Did the Company have just cause for the discharge of the Grievant, Leysa Walsh, and, if not, what shall be the remedy?
The grievant, Leysa Walsh, was discharged for 3 instances in February 2012, for what the Company concluded to be "falsification" of her (actual) "time-in" on the paper form that substitutes for punching-in when an employee does not have his/her FOB. The Company says she did it deliberately in order to avoid possible suspension or termination under the Attendance Policy. The Union argues that the paper FOB form does not specify accuracy to the minute — which is literally all that was involved here, just 1 minute in one instance and 2½ in the others — and contends that grievant did not knowingly or intentionally do anything wrong.
A plastic FOB is issued to employees that works both as a key to open the door at the employee entrance and to clock or "punch"—in and out at the time clocks about 20 to 30 yards down the hallway from the entrance, near the employee locker room. If an employee does not have his/her FOB, the employee must wait for someone to open the door and then, not having the FOB with which to punch-in, must get and fill out a paper form headed "Missed Punch or Time Correction Form", known as FOB-form, in order to be paid for the shift.
The form is an 8½ by 11" sheet. Under the heading (as above), the first line calls for "Name" and "Employee #". Below that, the employee is to indicate SHIFT, and below that is a chart on which to write the necessary information. Collapsed into single spacing, the chart and what appears below it looks like this:
The employee, after filling out the FOB form gives it to his/her team leader. The team leader enters the time-in and out into the computer — a system called "workbrain" — and retains the paper form. Ms. Walsh's Team Leader, John Sikich said he has a file of them that is maybe 3 inches thick, going back 2, 2'/2 or 3 years. He said the only ones in it for Ms. Walsh were the 3 at issue here. (T. 75).
Mr. Sikich, who's been with the Company 38 years and a team leader at this plant for 30 years, said that for the last 2, 3, or 4 years, the Company has "paid to the punch" — that is, the clock starts when they "punch in" with the FOB and they are paid for every minute. (T. 27).
The record indicates
The contractual Attendance Policy (JX2, p.18-20) is arranged as a point system for "occurrences" and counts all absence, tardiness or leave-early except those in excluded categories (which include FMLA leave)
There is a provision for Roll-Back which allows employees to "roll back or reduce their occurrences in the program by completing 346 hours of work without occurrences or suspension." General language at the beginning of the Attendance Policy states:
Employees can access their time records in the "workbrain" computer program at one of several computer kiosks with their employee I.D. number and password — a protection that the grievant said she took advantage of a couple of times a week.
Once an employee gets into the steps of discipline, the employee is notified on paper by ASC (admin. support, clerical) putting a copy of an "Attendance Review" and attached "GMI-Attendance Report by Employee" in the employee's mailbox (T. 46) and later in person by the employee's team leader who goes over these with the employee. The "Attendance Review" (1
The grievant, Leysa Walsh, was hired September 15, 2008, and was thus a 3½ year employee at the time of her termination on March 6, 2012. At some point in the 2 years prior to July 2011 — where her Attendance Reviews start — she had sought and obtained approval to use "intermittent" FMLA leave.
FLMA is among the exclusions from the point system and does not show up on the Attendance Reviews or the accompanying point-count on the "GMI-Attendance Report By Employee" issued with the Review unless certain occurrences are, at the time of issuance, still "pending" approval "with Reed." (The Reed Group was the Company's 3
Below is chart (created by the Arbitrator) of the grievant's points from one year to the next.
For 2011, the Reports reveal that the grievant started with 4.5 pts, had 1 pt. roll-back in early March, but a `A occurrence for a Late on April 15
There was a one point roll-back Oct. 19 (now 5.5 pts), but absence on Oct. 31 and 4 minutes
Thus, the grievant began 2012 with "workbrain" showing her at 7.5 occurrences, against a background of 5 review meetings with Mr. Sikich, the last 2 on Dec. 21 and 23, 2011. Ms. Walsh's signature does not appear on any of the Attendance Review forms
On Wednesday, February 1, 2012, Team Leader John Sikich said he spoke to his manager, Kareem Kayyali, in the morning about a concern he (Sikich) had about the grievant, Leysa Walsh, not being there on time. He said (at arbitration) that, in January, he had noticed the employee she was to relieve, Mary Gallo, hanging around a bit later than usual or at the time clock after the others had gone with no one on line zero and one, yet when he did the timecards he saw a punch for Leysa and he ". . . kind of had a feeling that maybe someone could possibly have been punching Leysa in or she was coming in late and not punching in."
The video shows the grievant approaching the door in a black jacket and a shoulder bag,
The grievant filled out a FOB-form showing "time-in" as 2:45 and "time-out" as 10:45 (her regular start and end times) leaving the line for "Reason" blank, and slid it under the office door. Her recollection was that she hadn't filled it out until a couple of hours into her shift. Mr. Sikich was asked on cross when employees are supposed to fill out FOB-forms, and replied they should get it filled out right away and make sure he has it, but that sometimes they get it to him during break. He said in this case, he believes he got the FOB form the 2
The Arbitrator notes that UX 1 also shows a changed time the following day, Thursday February 2
Interim Period to Next Instance:
The exhibits
February 8
On February 8
The video for the 8
The FOB form she turned in again just shows her regular start and ending times —
Where Mr. Sikich, on February 1
Interim Period to Next Instance:
After being observed 1 minute late Wednesday, Feb. 8
February 14:
The third instance occurred on February 14
Other Testimony concerning these "occurrences"
It is undisputed that no one spoke to the grievant about how she filled out the FOBform on February 1
The grievant, Leysa Walsh, said she was aware of the camera at the front entrance (T. 279) and that she also knew there was a clock on the other side of the door inside the building (T. 297). Ms. Walsh testified that she did not believe she was doing anything wrong in the way she filled out the FOB-forms. She said no one said anything to suggest that she was and she didn't see any discrepancy in work brain. (T. 277, & 282-284). Asked what she thought she was doing, she replied that she was ". . . just making sure John [Skikich] remembered to put me in the system for being there at work." She was then asked about what Mr. Sikich claimed he said on the 14
February 16
On February 16, 2011, Mr. Kayyali and Ms.Oberg met with the grievant, Leysa Walsh accompanied by her Union steward, Lee Bernard, and Union VP Dan Krga in the HR office. The Company did not offer any notes or minutes of the meeting. The Union later created confusion with its notes of the later termination meeting (UX 5) which its attorney mistakenly thought were notes of this meeting.
Q. And did she provide you with any type of explanation for why the FOB forms were inaccurate?
He said that was the only explanation she gave and said: ". . . I believe we asked some questions around — just our protocol around Attendance Reviews and ensuring that we're advising employees of their attendance status." As to whether they advised her of the next steps, he said:
On cross, Mr. Kayyali was asked if he recalled raising her overall attendance with her, answer, "Yes, 1 did highlight that." He was also asked on cross if he knew she had FMLA entitlement (yes) and that a number of her absences were covered under federal law (yes) and was he involved in the decision to terminate (yes), and then: "How many points did she have at the time of her termination?" to which he replied: "I honestly can't remember." (T. 124)
Interim Period to Next Meeting:
The next meeting did not occur until March 5
Interim (Company side) and Meeting of Monday, March 5
Ms. Oberg testified that after the meeting on 16
The March 5
The Termination Meeting, March 6, 2012: Attending
The termination letter was given to the grievant at this meeting. It is not clear whether that was was done at the outset or at the end. In relevant part it states:
As to what was said, the Union's notes (UX 5) indicate:
Union officer Rich Henderson added in testimony that when Kareem read the bullet point about attendance, he interrupted to ask why they were citing the Attendance policy (3rd bullet on termination letter) when they have a separate policy for attendance terminations and the Attendance Policy was not the reason they were firing her. (T. 264). Henderson said the Company did not explain that they viewed it as motive and that he (Henderson) told Kareem he thought it irrelevant.
Ms. Oberg, without saying she said so at the meeting, explained at arbitration that the Attendance Policy was twice-referenced in the termination letter because the Company believed Ms. Walsh's motivation for falsifying FOB forms was to avoid termination under it. She said it was just a "data point", though, and not the reason they terminated her.(T. 145-146). Ms. Oberg said that on the date of termination, Ms. Walsh had 8 points. On cross, she indicated that at the time of the meeting she had had a report from ASC showing that and agreed that UX 2, an Attendance Review/Report without any of Mr. Sikich's handwriting (i.e.the front page is not filled out) dated February 24, 2012 would have been the report she had. On its front, UX 2 indicates Occurrence Level: "Suspension — Based on an update from REED group received on 2/24/12."
Although Ms. Oberg did not add to what the Union's notes indicate the Company said at the March 6
Ms. Walsh, when asked whether she remembered saying those things, said she probably would have said she didn't understand the process because she didn't understand. She said she was crying and sobbing because she didn't know exactly what was happening or what they wanted in the meetings where they were accusing her of falsifying something. She was asked if, in fact she had forgotten it in her car, and said, yes. She was asked about having said something about getting a new FOB or something being wrong with her FOB, and said she did have to get one from the storeroom and it had to be activated and that took a lot of time. As to why, when she told the Company about getting the new FOB activated, she was offering information like that, she replied "I don't — because they asked, 1 guess." (T. 289-291).
The Outcome:
At the conclusion of the March 6
The Company said Ms. Walsh broke their trust. As to why she did it, the Company said that on February 1
The Union made 4 or 5 contentions in its opening statement(s) and an additional argument developed during the hearing in connection with Company exhibits, records and contentions that the Union felt had been unreasonably withheld to the extent of compromising due process with respect to the grievant's defense and its ability to assess and argue its case. In its opening statement it said that:
—putting shift start and ending time on FOB forms is standard operating procedure in this plant, and the Union would put in stacks of documents that would overwhelmingly convince the Arbitrator that, by doing that, Ms. Walsh was "not doing something uncustomary" (T. 13) and that she had no reason to believe she was doing anything wrong. (T. I59-160). (In its brief p.8 & 25, it added to this argument and to its last contention below — entrapment— that she was merely doing what Mr. Sikich had told her to do.).
— the certification above employee signature on FOB forms is not clear warning that you are to write the exact time you came into and left the plant. The reasonable inference and clear understanding of employees is that it is just to show that you were there that day, so that you would be paid. (1.159-160).
— the amount of time involved is so minimal as to be ridiculous as a basis upon which to terminate an otherwise worthy employee. (T. 13).
— the grievant was
— the Company engaged in entrapment. They saw her come in a minute or two late and instead of speaking to her about it, they set out to watch and check the time against her FOB forms until they could say ". . . 3 times, you're fired." (1.16). If Mr. Sikich thought there was some problem with her tagging off for her relief, it was his obligation under the corrective disciplinary policy to tell her. (T. 158).
In general:
With or without a rule saying so, being shown to have attempted
At the point where there is
In cases of alleged dishonesty, the Employer must prove not only that the employee did whatever it was, but also that
This case:
In this case, the 3rd paragraph above has particular relevance because, indeed, in this case it is only a matter of a couple of minutes on 3 occasions and a FOB form on which the employee certifies (only) that the time shown (8 hours each time) represents all the time worked on the date indicated.
The Union's arguments:
The Union's arguments are to a large extent interrelated. Its first contention and its last both have a component of "everybody's doing it" and therefore the Company cannot just suddenly pick out one employee and declare that inaccuracy of a few minutes with respect to "time-in" on a FOB form is "falsification" subject to summary discharge. The Union says the Company particularly cannot do that where the form itself does not appear to call for "exact time" and is typically turned in before leaving (so that `time-out' has to be a guess).
As promised in its opening statement, the Union offered a number of documents along with the testimony of Union officers Kwosek and Gonzalez in support of its claim that based on what others were doing, Ms. Walsh had no reason to believe there was anything wrong in the way she filled out the FOB forms. Union Officers Kwosek and Gonzalez both testified it is their understanding that employees are just to put in their regular shift hours on FOB forms and that is what they do. They pointed out that there is no written posting or verbal instruction from management (T. 216) or anything said in employee training (T. 163,164) to advise employees otherwise. The Union put in a set of FOB forms for each of them and 3 other sets as well. The Company put in additional FOB forms to rebut the Union sets.
After reviewing the whole thing (more detail provided in Attachment 1), it is the Arbitrator's finding that:
But as to the contention
Secondly, while the wording of the "certification" over the employee signature
In a relief job, particularly where suspicion relates to start time, it is not particularly odd
While not having checked the video as to when the grievant left may have deprived her and the Union of the possibility of proof that she actually worked a full 8 hours — whether she actually worked 8 hours or 7 hours and 57 or 59 minutes is not the issue here.
Thus, the Arbitrator rejects the Union's (first) contention that the grievant had general reason to just put in shift hours based on "practice".
This was also not entrapment (the Union's last contention). The Company did not encourage her to be late — quite the reverse. She had received Attendance warnings for 3 lates — her last 3 occurences — in the last 6 months. The Arbitrator also rejects the idea that she had specific personal reason to have filled out FOB forms as she did, based on her claim of having been told 3 years earlier by her team leader, John Sikich, that all she needed to do was put her shift hours on FOB forms so that she would be paid. The Arbitrator does not find that claim credible. Somebody may have told her that's what they did, and Mr. Sikich may never have commented or objected to it when she did that, but the claim that he told her to just write in the hours of her shift was just not credible to the Arbitrator and sounded like constructive recall on her part.
In fact, in view of the grievant's much more recent dealings with Mr. Sikich — in particular the Attendance warnings for a 4 minute late on 11/1 and a 1 minute late on 12/13, delivered to her just before Christmas 2011 — there was no reason for the grievant to believe in January and at the beginning of February 2012 that a lateness of just a few minutes at the start of her shift would be regarded as unimportant. There was also no reason for Mr. Sikich to think she might believe that. And, the Union's contention that the Company, in particular Mr. Sikich, encouraged the conduct for which she was terminated (its entrapment contention) is found to be without merit.
Mr. Sikich testified that he became suspicious in January that she was somehow coming in late, despite the fact that when he did timecards he saw a punch for her. The fact of his suspicion was made known to her and her Union representatives when she was first confronted at the meeting February 16
The 3 Instances in February
Against the facts of the "punch window" for those in relief jobs and the grievant having received the last 2 warnings (Attendance Review/Reports) for being late by just a few minutes barely a month before, the Arbitrator came to the conclusion that,
On thinking about this, it became apparent that every time she used a FOB form she was just a little late. If she could have been on-time or a minute early instead of a minute late on just one of the dates that she used a FOB form and put shift starting time as "time-in", that would have gone a long way to counter the impression that when she used a FOB form it was because she was a little late. Or even if she had actually punched in a few minutes late with her FOB, and had just taken her (½) occurrence, that too would have helped. For that matter, it certainly would have helped if she had just been able to manage not to be late 3 times in 3 weeks. The best evidence, though, would have been if it could be shown that she had used a FOB form at least once when she wasn't late. The grievant and the Union say she had used FOB forms many times before and if the Company had not lost them, these would show it was her consistent practice just to write down the start and end time of her shift. The dates with times highlighted in pink on UX 1 were offered as showing changes for which there would probably have been a FOB form. It seems reasonable that she may have used FOB forms before. The problem is, however, that obtaining the exhibit, UX 1, was not thought of until August 2012, which was not in time to have checked the video — which erases in 90 days —to see if her actual "time in" was at or before shift starting time.
The 2 paragraphs above are the Arbitrator's initial conclusion that it was done knowingly with intent to deceive, but without yet having weighed other considerations relevant to the penalty of summary discharge, such as:
1) the Company's not having provided copies of the relevant Attendance documents and the 3 FOB forms at least at the suspension meeting (if not on 2/16) so that the Union representatives could have a chance to review them before the termination meeting. For that matter, by citing the Attendance Policy as one of 3 policies violated, the Company should have produced minutes
2) even though the relief "punch window" and willingness to pay pre-shift overtime show that it
The Union's reaction both at the termination meeting and at arbitration was that a minute or two on 3 occasions is a ridiculously small amount of time to treat as cause for summary discharge. And, even though the grievant had used a FOB form on each of the 3 occasions showing herself to have been on time, the Union remained firmly of the view that this should have been handled under the Attendance Policy or at least with corrective discipline. In her opening statement the Union's attorney stressed 47 seconds. Actually it was 53 or 57 seconds approaching the door and 60 seconds on passing through it, but the thought put forward by 47 seconds is "right on".
Each instance
3) the fact that the Company did not make clear to the Union that it was not just the point-total it viewed as motive, but also the recent Attendance discipline specifically for being just a few minutes
4) it does not appear that anyone had been fired before for putting in the shift starting time as "time in" on a FOB form on a day or days when, in fact, the employee was a few minutes late. At least the Company did not claim anyone had been (and it is perhaps not clear that they would have been on first offense in view of the relatively small amount of harm. see last para. #2 above). It seems likely to the Arbitrator that it probably never occurred to either party that anyone would deliberately use a FOB form to avoid a (½) occurrence for being a couple of minutes late.
5) And lastly because there is also more information that came out at the hearing.
The Union, in addition to putting in exhibits and testimony (already covered here) to try to show that Ms. Walsh had reason to believe the way she filled out the FOB forms was appropriate, or at least not inappropriate, also worked hard at trying to show through testimony that her attendance status would not have been reason to try to deceive the Company about being a minute or two late. At least it's the Arbitrator's view that what follows was an effort to show that the grievant would not resort to cheating in the matter of being late.
The Union attorney, when questioning Mr. Sikich, asked him if he was aware that the grievant had the use of intermittent FMLA. He said he was. The Union attorney then suggested to him that if Ms. Walsh was really trying "to cover up for a missed time" she could have claimed it was FMLA usage, couldn't she? (T. 104). Objected to as speculative, the Union rephrased, asking whether the grievant had ever claimed to him that she was late because of her federally protected right to use FMLA intermittent time off. He answered: "No." (T. 104).
Many hours later (it was a long hearing), the Union attorney asked Ms. Walsh what intermittent leave means to her. She replied "That it could be used as needed." Question: "For what increments of time?" She replied: "Any time up to 12 hours per day." Question: "Could you use the FMLA time for 10 minutes if you wanted to?" Answer: "As far as I know." Question: "Could you use it for 5 minutes if you wanted to?" Answer: "I believe so." Question" "Did you ever use your FMLA time for short increments like that, 5 minutes, 10 minutes?" Answer "No." (T. 273).
On cross examination, the grievant changed her answer to "I don't believe so", and was asked again and yet again, but refused to be more definite. (T. 295).
The Company, through rebuttal witness, Assoc. HR Manager, Brenna Shaeffer, brought out that the grievant had, in fact, sought FMLA to cover having been 4 minutes late (not in the November 1 instance that both they and she had probably forgotten, but) on February 20
It must be noted here that the Union attorney could not have known about the grievant's having used FMLA for a 4 minute lateness, when questioning Mr. Sikich. In fact, unless the grievant mentioned it to the Union attorney, the Union attorney could not have known that she was even late again in February, before the Company finalized its decision, because the Union had not been given the grievant's complete attendance record and even UX1
Additionally, the Arbitrator notes that Reed approval of the 4 minutes on February 20
In their briefs, the Company does not mention the February 20
While the Arbitrator can understand that neither Party wanted to mix this matter up with FMLA usage, the Union brought up the possibility of using intermittent FMLA and in an apparent contention that not having done so was a point in the grievant's favor. That the Arbitrator appreciated it as a point in her favor may well have been clear on the Arbitrator's face. In any event, the Company decided it did not want that testimony to go unanswered. The problem for the Arbitrator with both Parties, in their briefs, having apparently decided the subsequent "late" need not (should not?) be considered for or against the grievant is, first, that
Being late by a very few minutes was the particular problem. It was not just her Attendance "point total" (the only explanation the Company had offered as motive at the termination meeting and in opening statement at arbitration) that was relevant about the grievant's attendance record, but also the fact that her last 3 warnings under the Attendance Policy were for lates of a very few minutes and the last 2 of these warnings (for 4 minutes on Nov. 1
Secondly, though the Company in its brief makes no mention at all of FMLA, it cites cases, however, of terminations for: 1) falsifying health insurance form; 2) filing false claim for on-job-injury; 3) a warehouse employee caught on video allowing a customer to place additional items on a pallet without paying for them, 4) an acid plant employee responsible for monitoring pH levels who was concluded on the basis of circumstantial evidence to have concealed the missing strip chart that would show tracking of pH levels in an incident where the plant had to he shut down on account of emitting fumes — which strip chart unbeknownst to him had been found in 5 pieces in the plant prompting him to change his story when confronted with it; (brf. p.11-13, brf.p.16 re surprise confrontation). All of those situations are more obviously serious in terms of the harm or risk of harm to the Employer than turning in FOB forms showing on-time arrival where the employee was actually one to 3 minutes late on 3 occasions, even where there is clearly no grace period after shift start and the employee knew it because the Company provides a 10 minute pre-shift window and pays to the punch.
The Arbitrator is of the opinion that the circumstantial evidence is very strong and sufficiently establishes that the grievant knowingly and with the intent to deceive her Employer, put down her shift starting time on a FOB form each of the (only) 3 times she was running a little bit late, before being confronted about it, in February 2012 in order to avoid further accumulation of (½) occurrence attendance points. It was an abuse of the Attendance Policy as well as a violation of trust. The fact that the Company was not more forthright by providing documents at points where it should have, would not really have changed that.
The Contract provides:
The Arbitrator finds the circumstantial evidence persuasive that the grievant intentionally sought to deceive the Company on all 3 occasions in February 2012 on which she put her shift starting time on the FOB forms she submitted and that it amounts to abuse of the Attendance Policy, and "falsification", hut, in view of all 5 factors on p. 21 (the 5
Instead, and as remedy, the grievant shall be reinstated to her job on 2"d shift or to a comparable job on that shift,
Further, as part of the remedy here, the Company shall pay to the Union an amount equal to the amount of hourly pay in the grievant's job at her 2012 rate for 3 weeks less 2 days — which was the amount of time from 2/16/12 to 3/5/12 that the Company took to consider and investigate — for the fact that Mr. Sikich did not have the grievant sign Attendance Reviews and the fact that the Company did not provide the Union with copies of relevant documents at the suspension meeting.
The Arbitrator will retain jurisdiction to resolve any issues that may arise with respect to remedy, which, if not invoked by one party or the other within 60 days after receipt of this Award shall then expire.
