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In re
Interstate Brands Corporation
Akron, Ohio
and
International Association of
Machinists and Aerospace Workers
Local 1363
121
LA (BNA) 1580
FMCS
Case No. 05 (1228) / 0317-8
Filed
December 5, 2005
Reported
March 6, 2006
Thomas R. Skulina, Arbitrator, selected
by parties through procedures of the Federal Mediation and Conciliation
Service
Applicable Policy
Provisions
I. Attendance Control
Policy
Effective January 1, 1989,
Revised December 28, 2003.
4. Steps in corrective
disciplinary program for unexcused absences or incidents
Number of Disciplinary Action to be Taken
Penalty Points
3 Verbal written
warning
5 Written warning
8 Three (3) day suspension
without pay
(Active time off may be waived)
101/2 Discharge
II. Employee Honesty—June
1, 1998
Dishonesty (any violation
of this policy) will result in immediate dismissal ...
III. Employee Rules of
Conduct
... cause for
immediate dismissal upon first occurrence.
8. Dishonesty ... Violation of IBC Employee
Honesty policy.
IV. The Family and Medical
Leave Act of 1993 (Re Issued June, 2001)
“FMLA leave may be taken
intermittently whenever medically necessary to care for a seriously ill family
member ...”
The policy also set out point
assessments. An approved absence is one penalty point. Late for shift range
from one-half point for late with all to three points if call more than one
hour.
Absence from shift ranged from
one point to two points if less than two hour advance notice. AWOL no call is
three penalty points.
Facts
The Employer, Interstate Brands
Corporation, operates a bakery in Akron, Ohio. The grievant worked there as a
mechanic from June, 2000 through December 3, 2004.
In early 2004, the grievant was
granted intermittent FMLA leave to care for his sick wife. The leave was
granted along with a shift change beginning July, 2004. The work week was five
days with Wednesday and Thursday off. The shift was the night shift from
midnight to 8:00 A.M.
In early October, 2004, the
Chief Engineer (grievant’s supervisor) was told by an employee that there would
be a request to go hunting during Thanksgiving week. In 2003, too many
mechanics called off the last minute to go hunting in Thanksgiving week causing
scheduling problems for the Employer. The grievant was asked if he also was
going hunting that week and he said that he planned on hunting November 22 and
November 23rd. These dates fell on Monday and Tuesday. He was off Wednesday,
and of course, Thursday, Thanksgiving Day.
While recording FMLA absences on
the grievant’s attendance record, he observed that the grievant was eight and
one-half points under the attendance policy. If he calls off for two days, that would lead to a discharge since the total would
be ten and one-half points.
The grievant, with eight and
one-half points on June 6, 2004, received a three day suspension (time waived
by Employer) and was warned on August 4, 2004 that two more points for
attendance violations would result in immediate discharge.
Assistance was offered if there
was a personal problem and an Employee Assistance hot line number was listed.
The remarks about the intended
call off in Thanksgiving week, and the serious nature of an additional two
point negative attendance result, caused a meeting of the supervisor with the
Human Resource Manager. The Employer decided to conduct surveillance of the
grievant during the week of November 21st.
On Sunday, November 21st, the
grievant got off work at 8:00 A.M. There was no request to take off November
22nd or November 23rd.
At 8:35 P.M., on Sunday,
November 21st, the grievant called and indicated he would be off two days,
November 22nd and November 23rd, to care for his sick wife.
The Employer received the
investigators’ report and video. Upon review of this, the Employer decided that
the grievant had lied about being home two days to care for his wife.
On December 3rd, a meeting was
conducted with a union representative present. The grievant was showed the
films taken of him.
The grievant admitted receipt
and knowledge of the Employer’s Attendance Policy, Honesty Policy, and Rules of
Conduct. Dishonesty was a cause for immediate termination.
At the conclusion of this
meeting, the grievant was discharged.
On December 17th, a grievance
meeting was held and the video tapes of the surveillance were played. The Union
asked that the grievant be given a “second chance”. The Employer adhered to its
decision to discharge the grievant. This action ultimately led to the
arbitration.
The surveillance tapes and investigator reports were shown at the
arbitration hearing. Copies of the tapes were filed with the arbitrator.
The investigators watched a truck registered to the grievant and in the
Employer’s parking lot. At 8:06 A.M. Sunday morning, the grievant appears
wearing a tan jacket and dark hat. He gets in his vehicle at 8:16 A.M. He is
wearing ordinary street shoes, as far as I could see on the video.
At 1:37 P.M. the grievant had changed clothes. He is wearing full
camouflaged clothing, including, full shirt, trousers and a camouflage hat. He
had also changed into boots.
He is seen at what was later
discovered was his father-in-law’s house. At the initial hearing, he indicated
he did not recognize that person; namely, his own father-in-law.
A camouflaged duffel bag was visible in his vehicle before the
unloading into his father-in-law’s Ford truck/trailer. Three ATV’s are put into
this vehicle.
In the afternoon, the grievant gets money at an ATM (1:54 P.M.), gets supplies
at Family Dollar (1:56 P.M.), gets a case of beer and soft drinks at IGA
Supermarket (2:19 P.M.), gets to his father-in-law’s house (3:01 P.M.) to load
a truck. He and his father-in-law (on tape) loaded, in addition to 3 ATV’s,
guns, gasoline, coolers, food and a chain saw.
The grievant’s truck is then
parked at his father-in-law’s auto parts store where it was observed at 5:00
P.M. Wednesday, November 24, 2004.
The investigators lost the Ford
with the grievant and his father-in-law at 5:02 P.M. due to excessive speed
(they say) near Senecaville, Ohio.
Discussion
This arbitration involves a
discharge with unusual aspects. Surveillance films are not usually shown and
filed at wrongful discharge appeals.
The grievant was obviously
surprised at the first hearing where he was shown the films. Obviously, he
would recognize his father-in-law who he accompanied to West Virginia. The
Employer would not have obtained surveillance had the grievant not told his
supervisor that he was going to hunt at the beginning of the hunting
season.
The Union raised privacy issues.
The Union also brought out the issue that the grievant was not out a full eight
and one-half points.
The privacy issue could become a problem for the Employer. In this
case, I reviewed the tapes at the hearing and at my office, and I saw no
untoward invasion of privacy. The observations were made outdoors and in the
open.
In so far as the number of
points, this issue was not grieved timely. Whether the past points were
improper, is not before this arbitrator.
The Employer argued that I
lacked jurisdiction to change or alter the discipline.
There are many instances where arbitrators,
upon review, have ordered reduced discipline. In those instances, things
happened that did not happen here. The Employer, in reduced discharge cases,
showed either bias, ill will, flawed procedures, lack of just cause, or
breaches of the CBA. That is not true
here.
The coincidence that a predicted
hunting trip occurred when his wife gets a migraine is one thing. The fact that
two days were needed is beyond coincidence. He had announced earlier that he
planned to go hunting.
Other changes in the grievant’s
testimony that the load was to cover two months, as opposed to the testimony
upon cross that it was to cover only Thanksgiving, did not help the credibility
of the grievant.
If there had been no surveillance of the grievant, his and his wife’s
word would be the only evidence that the two days were taken to assist an ill
woman.
There was, however,
surveillance, and two men were loading a truck with the obvious purpose of
going on a hunting trip. They left on a Sunday, which was a work day that night
for the grievant.
The Employer proved that it had grounds to discharge the grievant.
Pursuant to the Employee Rules of Conduct, I was not given authority under the
circumstances of this case to award a lesser degree of discipline.
Award
The grievance is denied. Costs
of the arbitration shall be divided equally between the parties.