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Hearing held on October 27, 2015, in Washington, D.C.

Before: Stephen E. Alpern, Arbitrator

Appearances

For the Union For the Employer

Daniel Fields, Jr. Thomas P. Dowd, Esq.

SEIU Local 722, President Littler Mendelson, P.C.

Statement of the Case

As parties to a collective bargaining agreement, effective from July 1,

2014 to June 30, 2017 (“the Agreement”), the Union and the Employer

submitted this matter to arbitration. The dispute involves the termination of

the Grievant. The undersigned was selected by the parties under the

auspices of the Federal Mediation and Conciliation Service to decide the

matter.

Issue Presented

Based upon the parties’ stipulation, the issue presented in this matter is:

Was the termination of the Grievant for just cause and, if not, what shall

the remedy be?

Relevant Provisions of the Agreement

***

10.2 Authority of the Arbitrator: The arbitrator shall have the authority

to apply the provisions of this Agreement and to render a decision on any

grievance properly coming before him, but he shall not have the authority to amend

or modify the Agreement or to establish any terms or conditions of the Agreement.

Further, he shall have the authority to apply and interpret the provisions of this

Agreement only insofar as may be necessary to the determination of such

grievance.

The Employer is a hospital in Washington, D.C. that provides health

care services for patients. It employs approximately 5,200 employees. The

Union represents approximately 1,900 of the employees at the Hospital. The

Hospital has a number of departments, one of which is the Supply Chain

Department, formerly the Central Distribution Department. Paul Littleton is

the Director of the Supply Chain Department.

The Supply Chain Department is the internal delivery system for

medical supplies and linens that are delivered by an outside vendor on a

three-times daily basis. To accomplish its work, the Supply Chain

Department has three shifts, with at least one supervisor for each shift: the

night shift (from 11:00 pm to 7:30 am), which is responsible primarily for

inventorying hospital supplies; the day shift (from 6:30 am to 3:30 pm), which

delivers supplies from the first delivery truck of the day; and the evening shift

(3:00 pm to 11:30 pm), which delivers supplies that arrive from two later

delivery trucks to the Hospital’s receiving dock to the various appropriate

locations throughout the Hospital.

The two later trucks are supposed to arrive between 2:30 and 3:00 pm

and between 8:30 and 9:00 pm, although the trucks are often late. Before

the first of the two later trucks arrive, it is the job of the evening supervisor to

divide up the expected delivery between the Material Handlers at work on

any given day. When the first of the two evening shift trucks arrives, the

supplies are off-loaded onto the receiving dock in totes (containers which are

approximately 18” x 24” x 36”), and placed in appropriate lanes, depending

on their intended delivery location, as shown on the tote itself. It is the job

of the Material Handlers to deliver the supplies to the appropriate Hospital

locations. To do this they use flatbeds (four wheeled carts), to deliver the

materials in the totes. The Material Handlers wheel the flatbeds to the

appropriate location, put away the supplies in the totes, place any broken

down boxes and other trash in a tote or totes, and take the totes with them

as they leave. On the way back to the receiving dock to load more totes,

they are supposed to drop off broken down boxes and other trash to the trash

area, which is attached to the department and on the way back to the

receiving dock.

Until his termination, the Grievant had been employed in the Supply

Chain Department since June 25, 2012. He was initially hired as a Material

Handler, but, by the time of his termination, Grievant had risen to the level of

Lead Material Handler for the evening shift. In addition to the general duties

of a Material Handler, the Grievant, as Lead, was responsible for answering

medical materials calls, handling returns into the department, and making

sure others perform satisfactorily.

On October 7, 2014, the Grievant arrived for work at 2:50 pm, ten

minutes early for the evening shift, which begins at 3:00 pm. He did not have

his badge as he had misplaced it. He told either his evening shift supervisor,

Sheila Manio, or the day shift supervisor, Lucille Hunter, that he didn’t have

his badge and to note that he was there early. One of them indicated that it

was acceptable for him to work without the badge.

While it is the job of the evening shift supervisor to divide the delivery

work between the Material Handlers, also known as breaking down the lines,

the parties dispute who performed that task on October 7, 2014. The

Employer claims that the evening shift supervisor, Manio, broke down the

lines and provided the Material Handlers with a performance sheet report

that provides the breakdown. The Employer introduced into evidence a

performance sheet which contained the assignments of all of the Material

Handlers on the October 7 shift. The Union contended that copies of the

performance sheets were not given to individual employees. Instead, the

Union asserts that for each shift the supervisor gives each Material Handler

a sheet of paper with that employee’s assignment for the shift. The employee

then signs his or her individual assignment sheet, which the shift supervisor

also signs.

The Union asserted that Manio did not know how to break down the

lines and that the other evening supervisor, Jamila Hagens, handled that

task. When Hagens wasn’t there, the Grievant made the assignments,

apparently through oral instructions. As Hagens was absent on October 7,

2014, the Grievant broke down the lines. and that the performance sheet

report does not reflect the real breakdown. The Union further claims that the

6

performance sheet report introduced into evidence was not given to the

Material Handlers on October 7. At the hearing the Grievant did not recall

the specific breakdown for that shift.

The parties agree that there were five Material Handlers for the

October 7 evening shift, including two temporary employees, one of whom

did not arrive until after 7:00 pm that night. The Employer’s policy regarding

supply delivery is that if, at the end of the evening shift, totes remained to be

delivered, the Material Handler should ask to stay overtime, if possible, to

finish the work. The supervisor would normally grant the request. However,

when it is not possible for the employee to stay late, the night shift will finish

delivering the supplies, after a supervisor is informed of the remaining work.

The key is that the Material Handler needs to notify a supervisor that the

materials are there and need to be delivered. However, as between the

temporary employees and the regular Material Handlers, it is the regulars

who are responsible for making sure the work is done.

On October 7, 2014, the temporary employees left on time. At that

time, there were totes remaining. The Union disputes, however, that the

totes were necessarily originally assigned to the Grievant, as it disputes that

the performance sheet report that so states was actually used for that shift.

The Union claims that the Grievant nevertheless intended to complete

the delivery of the supplies in the remaining totes. According to the Union,

the Grievant went to the bathroom before returning to the receiving dock to

load more totes, leaving the flatbed used to carry the totes outside the

bathroom. When he came out, the flatbed was gone. He looked for the

flatbed unsuccessfully and then went to the supply room to get another one,

also unsuccessfully, as the only flatbeds there were broken. In the supply

room, the Grievant ran into Mark Gibson, the night shift supervisor. He asked

Gibson if he had seen a flatbed lying around, as he needed it for the

remaining totes in receiving. After he showed Gibson the remaining totes.

Gibson told the Grievant that he could leave, as the night shift employees

probably had the flatbed because it was already clear the evening shift

needed help completing the supplies deliveries that night. He told the

Grievant that, rather than wait for them to return with the flatbed, he could

leave and the night shift would finish the deliveries. The parties agree that

all supervisors can direct employees in the department.

The Employer alleges instead that on October 7, 2014, at

approximately 11:30 pm, the Grievant entered the supervisors’ office, where

Manio and Gibson were working. According to both Manio and Gibson, the

Grievant told Manio that he was finished with work and needed to catch the

bus home. Manio asked whether he had completed all of his work and he

stated that he had. Manio walked the Grievant to the elevator to confirm

when he left, as she knew that he did not have his badge. At the elevator,

she complimented him on finishing his work, and he again affirmed that he

had.

The Union alleges that the Grievant did not enter the office that night

to speak to Manio, and instead ran into Manio at the elevator on his way out,

at 12:00 am or later. At that point, she asked him if he was done. He replied,

“I guess I am,” and left.

After the Grievant left, Manio learned that two or more totes had been

left at the receiving dock and the supplies had not been delivered. She

attributed those totes to the Grievant. She also learned that trash had been

left in one of the empty totes. She also attributed that tote to the Grievant.

Manio then telephoned Gibson to ask him to witness the two problems. He

did and he attributed the totes to the Grievant also.

Manio then emailed her supervisor, Littleton, with a copy to Gibson, to

notify Littleton that the Grievant had not delivered the totes. The email did

not mention the trash or any concern regarding the badge. Littleton

instructed Manio to write up the discipline, which she did. In addition to the

failure to deliver the supplies, she included in the write-up the trash issue.

When she received the final version for her signature, it included an

additional offense of failure to badge in and out on October 5 and October 7.

Manio signed the discipline but did not consider the badge issue to have

been part of the basis for her discipline.

As the Grievant had received two prior disciplines, one in June 2014,

and the other in September 2014, he was at the third step in the discipline

process. The Agreement provides that “a third offense shall subject the

employee to discharge.” The Employer discharged the Grievant on October

13, 2014. Prior to the discharge, neither Manio nor Littleton asked the

On October 14, 2014, the Union filed a grievance. On January 16,

2015, a grievance meeting was held. On July 8, 2015, the Employer denied

the grievance, stating in its decision letter that “the Hospital’s silence through

the prescribed time limits is considered a denial of the grievance.” JX-7. The

matter was referred to arbitration.

1) The Employer’s Arguments

The Employer contends that the Agreement provides clear and direct

language that permits the Hospital to impose three steps of progressive

discipline with the third step warranting termination. The Grievant is at the

third step. For this step, there are three charges: 1) failure to complete work

assignment while notifying the supervisor that he had; 2) leaving trash in his

totes at the end of his shift; and 3) failing to badge in and on out October 5

and October 7, as required.

The Employer has withdrawn the alleged badge offense from

consideration in this arbitration. As to the other two, sustaining either charge

is cause for termination, given that the Grievant is at the third step. The

preponderance of the evidence establishes that the Grievant both failed to

finish his work while telling his supervisor that he had and left trash in his

totes in the receiving area.

The preponderance of the evidence establishes that the Grievant failed

to finish delivering his assigned work on October 7, 2014, while telling his

supervisor, Manio, that he had, and that the other supervisor, Gibson, did

not give the Grievant permission to leave, even though his work had not been

completed.

The Employer argues that the Hospital policy is that the evening shift

employees must complete the delivery of the medical supplies before they

go home for the day. The Grievant’s timecard, showing that the Grievant

worked overtime on most days confirms this policy. Further, this frequent

need for overtime explains why Manio would congratulate him for having

finished his work on time on October 7, 2014. It also made sense that she

would accompany him to the elevator that night, as she knew he didn’t have

his badge. It finally makes sense that Manio would be upset when she found

the Grievant’s undelivered product in the receiving area, since he had not

told her the truth.

The Grievant’s version does not make sense. He had an over-inflated

view of his contributions as a Material Handler. He also was disdainful of

Manio, claiming that she did not know how to use the computer or break

down the lines. He claimed that he had to break the lines down for her.

Especially given the Grievant’s own statements as to his importance to

Manio keeping her job, she should have no motivation to terminate the

Grievant, or to lie about either the totes or the trash. The Grievant also failed

to establish any motivation on the part of Gibson to lie, as the two appeared

to have a good relationship.

The Grievant’s other reasons given at the hearing for not being able to

timely deliver the supplies do not matter, as the fundamental question is

whether Gibson gave the Grievant permission to leave because of the flatbed

problem, after the Grievant told him about the remaining undelivered

supplies. Especially since the Grievant never mentioned the flatbed

conversation during the grievance meeting, as well as for the other reasons

stated above, the answer is no. Therefore, the two charges should be

sustained.

As a result, termination is warranted at this third step of progressive

discipline. This is particularly so since the Grievant was not a long-term

employee with an otherwise pristine record, and so there is no basis for

mitigation. The grievance should be denied.

2) The Union’s Arguments

The Union asserts primarily that the Employer failed to meet its burden

of proving the charges alleged against the Grievant. It secondarily argues

that, even if proven, the charges do not warrant removal and that the

Employer should have interviewed the Grievant to obtain his side of the story

before terminating him.

As to the first of the two remaining alleged offenses, the failure to

complete the work and telling his supervisor that he had, the Employer failed

to prove that it is more probable than not that the Grievant left the work

behind without notifying his supervisor. According to the Grievant, on

October 7, 2014, he was the one, not Manio, who assigned the Material

Handlers to their various tasks, also known as breaking down the lines. This

was because he was the Lead Material Handler and Manio did not know how

to break down the lines. On October 7, then, the Material Handlers did not

use the performance sheet report that the Employer introduced to establish

who had responsibility for the various assignments on that day. That

document was not even the type of document they used to assign work.

Instead, the correct document would have had signature lines for both

employee and supervisor. Since this was the document the Employer relied

on to tie the Grievant to the totes, the Employer failed to prove that the totes

left behind were the Grievant’s assigned work for the shift. Instead, it was

actually the supervisor’s responsibility to make sure the work was complete.

Further, it does not make sense that the Grievant would have the full load of

responsibility that the performance sheet indicates he had. That is

particularly so, given his other significant responsibilities as Lead Material

Handler.

More importantly, on October 7, 2014, the record establishes that the

Grievant had permission to leave from Gibson, who did not want the Grievant

to have to wait around for the return of a flatbed, which he believed one of

the night shift employees had anyway. The Grievant’s testimony on this

matter is credible. By contrast Gibson’s testimony that he did not recall this

conversation is not credible.

Further, Manio should have checked on the Grievant’s work before he

left and did not. When Manio mentioned the Grievant’s work when they saw

each other at the elevator before the Grievant left, given her uncertainty

about it, she should have checked.

Manio’s testimony that she was trying to make sure that the Grievant

did not miss the bus that night also doesn’t make sense. As is clear from the

Grievant’s time records, he almost always missed the 11:45 pm bus. Finally,

Manio should have interviewed the Grievant before terminating him.

On all of these bases, the Employer has failed to establish by a

preponderance of the evidence that the Grievant left despite failing to

complete his work assignment while notifying the supervisor that he had. The

Employer therefore has failed to prove this charge.

As to the second of the remaining offenses, leaving trash in a tote at

the receiving dock, the Employer also failed to prove that the Grievant did

so. This is because the Grievant remembers dumping his trash that day, as

he always did. It made no sense for him to leave his trash as the trash

dumping location was on the route back to the receiving department.

Especially given that he was at the second step of discipline, he would never

leave his trash, as he knew the possible consequences. Finally, the

Employer did nothing to associate the trash with the Grievant other than

establish that it was in a tote for which he allegedly had responsibility.

However, the trash could have been anyone’s. The Employer failed to meet

its burden of proof.

The Union further argues that the Employer did not establish that the

Grievant should be terminated for these offenses, even if it otherwise met its

burden of proof. Also, the Employer failed to meet with the Grievant to

discuss his side of the story. For these reasons, the grievance should be

sustained.

1) The Alleged Badge Offense

As the Employer withdrew from consideration the offense related to the

Grievant’s badge, the Arbitrator need not decide this matter.

2) The Alleged Trash Offense

The Arbitrator finds that the Employer has not met its burden to prove

that the Grievant committed the trash offense. While the Arbitrator does not

doubt that there was trash left in a tote, the Employer failed to prove that the

Grievant put it there. The totality of the evidence the Employer provided on

this issue was that there was trash in a tote that Manio believed was

assigned to the Grievant. For reasons further explained below, the Employer

has failed to establish by a preponderance of the evidence that the tote was

actually assigned to the Grievant. Further, even if it had been, because the

tote was in the receiving area, anyone in that area could have placed the

trash in it. No one asked the Grievant whether he was responsible for it.

Not only did the Employer fail to establish that the Grievant placed the

trash in the tote, but the Union provided credible testimony that the Grievant

would not have done that. The Grievant testified that depositing his trash

was the easiest part of his job. He testified that the trash department was

attached to his department and that a Material Handler can simply deposit

the trash on the way back to the receiving dock. He understood that

depositing trash was part of the job and there would be no reason for him to

fail to do that. That is especially so since he knew he had two steps already,

and wanted to ensure that he did not commit another offense. The Arbitrator

credits the Grievant’s testimony because it was detailed and given in a

straightforward manner. While the Grievant generally had a good recollection

of the events, he was candid when he could not recall specifics such as the

precise work assignments he made on the evening in question. Based upon

the Employer’s failure to sustain its burden to show by a preponderance of

evidence that the Grievant left trash in his tote, and the Grievant’s credible

testimony, this charge is not sustained.

3) The Alleged Tote Delivery Offense

There is no question that, at the end of the evening shift, there were

totes remaining in the receiving area that contained supplies that had not

been delivered to their respective areas. The witnesses, both for the

Employer and for the Union, testified that the Employer’s policy was that if,

at the end of the evening shift, totes remained the Material Handler should

ask to stay overtime to finish the work. Normally, the supervisor would grant

the request. However, when that was not the case, the night shift would finish

delivering the supplies. The key was that the Material Handler needed to

notify a supervisor that the materials remained.

In briefing, the Employer alleged that the Material Handlers had to stay

to finish their work regardless of whether that took the employee beyond the

shift end. The implication was that the employee could not simply notify the

supervisor about remaining work so that the supervisor could ensure that the

night shift employees finished the supply delivery. That assertion is not

supported by the record. At some point in their testimony, the Employer’s

witnesses, Littleton, Gibson, and Manio, all acknowledged that, if a Material

Handler could not finish the assigned work, it was acceptable to leave after

notifying the supervisor of the remaining work and receiving permission to

leave. The Grievant testified to this as well. All agreed that the Employer

encouraged the Material Handlers to remain until their work was done, but

the alternative remained.

The Grievant testified that he followed this policy. He testified that he

notified Gibson about the remaining totes and that Gibson allowed the

Grievant to leave, as otherwise he would have to wait for the return of a

flatbed. The Employer’s witnesses and the Grievant agreed that notification

to, and permission from, a supervisor, such as Gibson would be sufficient for

a Material Handler to properly leave work. Therefore, if the Grievant’s

testimony about the flatbed and the permission to leave is credited, the

charge cannot be sustained.

.

For the reasons stated below, the Arbitrator credits the Grievant’s

testimony and finds that he notified Gibson that the totes remained and that

Gibson gave the Grievant permission to leave. In contrast, the Arbitrator

does not credit Gibson’s testimony on these points. Moreover, other aspects

of Manio’s and Littleton’s testimony are problematic, further undermining the

Employer’s position.

Gibson’s testimony firstly did not ring true, as he appeared highly

evasive on the witness stand. He took an inordinate amount of time to

answer questions; he stared at unrelated documents during these long

pauses; then while answering, rather than looking at the representative

questioning him or at the Arbitrator, he looked away. His demeanor simply

was not forthright.

Gibson’s testimony (like that of Manio and Littleton) was inconsistent

with the Employer’s other witnesses or at least embellished. Manio testified

that at the end of the Grievant’s shift, approximately 11:30 pm, the Grievant

entered the supervisor’s office and told her that he was finished and needed

to catch the bus. Gibson’s testimony contained elements not testified to by

Manio. He remembered the Grievant telling Manio, “I’m finished up for the

day and all work has been completed,” and when she pressed him, asking,

“are you sure all your work is done,” the Grievant allegedly replied, “Yes, I’ve

taken care of all my assigned work for the day, and I will be leaving.” Manio,

who brought the charges against the Grievant, never claimed that the

Grievant made these statements. Instead, Manio claimed that the Grievant

simply stated, “I finished my work.” Gibson’s testimony does not ring true,

both because it is not reflective of what Manio claimed occurred and because

it appeared to be simply too perfect to be credited as true.

Gibson also testified in a very definitive way about matters of which he

could not have had such definitive knowledge. He testified that the

performance sheet which the Employer alleged tied the undelivered supplies

to the Grievant, was the same document that either Manio or the other

evening supervisor, Hagens, gave to the employees every day at the

beginning of the evening shift. On cross examination, it became clear that

Gibson did not have any real basis for that statement, as he had never seen

it happen, given that he is not at work at that point in time.

He further testified, in a definite manner, that in the October 2014 time

period there were “plenty” of flatbeds. As Gibson’s shift rarely put supplies

away, according to his own testimony, and instead did inventory with

handheld computers, it seems unlikely that he would have such certainty

about the quantity of flatbeds.

Gibson’s further testimony about the flatbeds appeared problematic,

inconsistent, and a bit incredible. In response to the question about whether

all of the flatbeds were operational, Gibson testified that, of the ones

available, all were operational. The corollary of this statement is that some

were not available. As to those, it appears likely that they were not available

because they were not operational. Yet, Gibson testified that, in his three

years with the Employer, he had never seen a broken flatbed. This seems

unlikely.

Gibson’s testimony was otherwise internally inconsistent. On the

important point, which Manio corroborated, that there would not have been

discipline if the Grievant had told a supervisor that there were totes remaining

before he left, Gibson first stated that no discipline would be forthcoming in

that situation. Then, on a leading question from the Employer’s

representative on the issue shortly thereafter, he contradicted himself,

testifying that such a notification would not exempt an employee from

discipline for leaving totes undelivered. On an another important point,

whether the flatbed conversation in which he gave the Grievant permission

to leave had occurred, Gibson testified he knew that he hadn’t talked to the

Grievant that night, other than when the Grievant told Manio that he was

leaving. Oddly, he also testified that the Grievant was the Lead Material

Handler and he typically talks to the lead from the previous shift so that he

can “distinguish what needs to be done, or what hasn’t been done.” For all

of these reasons, the Arbitrator does not credit Gibson’s testimony,

particularly on the important question of whether he gave the Grievant

permission to leave on October 7, 2014, after the Grievant informed him that

there were supplies remaining that needed to be delivered.

The testimony of Manio is also problematic. Her testimony about

accompanying the Grievant to the elevator as he left for the night is

particularly troubling. Manio testified that she walked the Grievant out of the

office because she knew he didn’t have his badge and she wanted to ensure

she had the correct time for his departure. She then made a point of

testifying that she did not see him swipe his badge to clock out, which is odd

because she knew he did not have his badge. As well, she did not thereafter

record his departure time, as is clear from the Grievant’s time records from

that date, which show him taking unscheduled time off on October 7, 2014.

The parties are in agreement that the Grievant worked that night. 

Manio also emphasized that she walked the Grievant to the elevator in

part to compliment him for finishing his work that evening. Given that she

testified emphatically that there was sufficient time during the shift for him to

complete his work, it does not make sense that she would make such a point

of congratulating the Grievant for doing what she deemed simply

appropriate.

Manio’s testimony that there was sufficient time for the Grievant to

finish his work by the end of his shift on October 7 is suspect for other

reasons as well. Manio did not know what time the first truck for the evening

shift arrived that day. While it is supposed to arrive between 2:30 and 3:00

pm, she admitted that it is regularly late and further that it could have arrived

at 4:30 pm that day. Without knowing when the trucks arrived, it would be

very difficult to know whether there was sufficient time to deliver all of the

supplies from both of the truck deliveries before the 11:30 pm shift end. And,

while it is clear from the Hospital’s own records that supplies for the Material

Handlers arrive on the second truck as well as the first truck, Manio testified

otherwise, stating that all of her supplies came on the first truck, although

she later changed that testimony. Certainly, if Manio is to be believed that

all of the supplies for which the Grievant was responsible came on the first

truck, it is all the more important that she know when that truck arrived.

Otherwise, her testimony that the Grievant had sufficient time during his shift

to deliver the supplies for which he was responsible is suspect.

Finally, on this issue, that the Grievant had sufficient time for his

deliveries, the Grievant’s own time records show that he was rarely able to

complete his deliveries before the 11:30 pm end time, given that in a fourweek

period including October 7, 2014, he was rarely able to leave on time,

staying over from 15 minutes to an hour and fifteen minutes regularly.

Manio’s emphatic statement that the Grievant had sufficient time to make his

deliveries during his regular shift is simply inconsistent with the record

evidence.

The most troublesome aspect of Manio’s testimony is that she did not

ask the Grievant for his side of the story. She had sufficient time to do so,

as the Agreement allows for discipline to be meted out within ten (10) working

days of the date the supervisor became aware of the offense. The Grievant

worked the next three days in a row. Whether Manio did or not also work is

immaterial as someone could have heard the Grievant’s side of the story.

This entire matter could have been avoided had she or someone else

confronted him and he explained the matter. On the other hand, had the

Grievant not explained immediately thereafter that Mr. Gibson gave him

permission to leave after seeing the work left behind, the Employer’s case

would be substantially improved. Manio did not make that effort.

Littleton’s testimony had problematic aspects as well. He testified that,

if the Material Handlers cannot complete their deliveries by the end of their

shift, they typically stay late to finish. Alternatively, and less often, the night

shift will complete the deliveries. However, generally speaking, the Material

Handlers complete the supply delivery by the end of their 11:30 shift. The

Grievant’s time records, as explained above, directly contradict that

assertion. Littleton at another point in his testimony further contradicted

himself on this point, saying that, generally, the Material Handlers are able

to complete the deliveries from the first truck of the evening shift, but not from

the second truck.

Although the badge offense is no longer in issue, Littleton’s testimony

about the offense generally undermines his credibility. He testified that he

learned about the alleged badge offense from the supervisor. However,

Manio testified that she never raised this matter with Littleton and it is not

included in the email by which Manio communicated about the offenses to

Mr. Littleton. Manio further testified that she did not include the badge charge

in the discharge notice that she drafted but that it was inserted by someone

else before she signed the letter.

The Grievant’s testimony, by contrast, showed no evasiveness or other

evidence of concoction. It included a level of (consistent) detail not found in

the Employer’s witnesses’ testimony, and made sense. The Grievant

testified in the manner of one who had been holding his information in for a

long time and who wanted to get it out. It was apparent that he wasn’t

thinking about what information would be most useful to his case or

otherwise, as he quickly fully answered the questions asked, sometimes

even before they had been finished. His manner bespoke of candor. He

looked at the representative questioning him or the Arbitrator and otherwise

showed no signs of evasiveness.

The Grievant’s testimony also included a level of detail that lent an air

of credibility. As well, those details did not change as his testimony

progressed. The step by step explanation of his encounter with Gibson when

Gibson gave him permission to leave (which he repeated more than once),

gave a strong impression of truth due to its consistent detail.3 Even the

Grievant’s testimony about what he said to Manio at the elevator rings true

in its detail, that he “guessed he was” done. The indecision makes sense

since there were deliveries remaining, but Gibson did not want the Grievant

to wait on the clock for the flatbed’s return.

The Grievant’s testimony was also consistent with the documentary

evidence. The Grievant testified that the regular, non-temporary Material

Handlers, including himself, regularly stayed beyond their shift end to

complete their work. They simply asked for overtime when there was work

remaining, and the supervisors would grant the overtime. That was the

policy and that policy was corroborated by the Employer’s witnesses. The

Grievant testified that he had no problem with the policy. That fact is reflected

in the Grievant’s time records, which show during the four work weeks

including October 7, that the Grievant nearly always worked late. The

Grievant also testified that, by the time he spoke to Gibson about the flatbed,

he had already missed the 11:40 pm bus, as they spoke at approximately

that time. Missing the bus was not unusual for the Grievant, as is clear from

the time records. Therefore, it makes no sense that the Grievant would tell

Manio that he was leaving because he needed to catch the bus, as he had

already missed it. And it makes no sense that he would seek to leave for no

reason (other than the bus that he had already missed), when he knew there

was work remaining. That is especially so since he knew the policy, had no

problem with the policy, and he was at the second step of discipline, and

knew what the third could mean. Quite simply, the Grievant had

demonstrated his willingness to work overtime and there was no reason why

he would have been unwilling to work it on October 7.

Further, the Grievant knew that all that he had to do if he needed to

leave at the 11:30 pm shift end, or close thereto, was to explain to Gibson

what needed to be done. The night shift would fill in, as they had done before.

Gibson and Manio both corroborated that testimony, stating that when that

had happened in the past, no discipline was forthcoming. There is no logical

basis, given all of this, for the Grievant to leave without pointing out the

remaining work.

The Grievant’s testimony about the performance sheet, which was the

Employer’s basis for claiming that the remaining totes (and the totes with the

trash in them) were assigned to the Grievant, also made sense. While Manio

testified that she gave the performance sheets to the Material Handlers every

day for them to do their job (as they had a breakdown of the assignments for

each Material Handler), the Grievant disagreed. He testified that, during this

time period Manio did not know how to do the breakdown. While she had

been a supervisor in the department in the past, she hadn’t been responsible

for the breakdowns then. Because she had returned to the Employer as a

supervisor fairly recently, she was having trouble with it, according to the

Grievant. As a result, when Hagens, the other evening supervisor, was

there, Hagens did the breakdown and gave each Material Handler a sheet

that showed their own individual work. They were supposed to sign it when

they received it, and Hagens signed it at the end of the shift. The Grievant

testified that when Hagens was absent, he did the breakdown, giving the

other Material Handlers their assignments, apparently orally. He then did

what was left, as the Lead Material Handler.

The performance sheet that the Employer introduced as the document

given to the Grievant and the other Material Handlers on October 7, 2014,

with their assignments did not have signatures or a place for signatures. It

included the work of all of the Material Handlers, rather than each individual’s

work only, which was also odd. Further, it included a total of the amount of

work for each employee (which makes no sense as that would quite possibly

cause dissension among employees). Accordingly, the Arbitrator finds that

the performance sheet introduced into evidence is not evidence of the

assignments for October 7, 2014.

Instead, the Arbitrator credits the Grievant’s testimony that he gave the

assignments out for the Material Handlers on October 7, 2014. Given the

passage of time, the Grievant understandably does not recall to whom he

assigned each element of work the work. However, given the finding that he

assigned the work that evening, and that the Employer’s performance sheet

was not given to the employees that night for their assignments, there is no

basis for concluding that the totes left behind had been assigned to the

Grievant.

It is clear that as the Lead Material Handler, the Grievant sought to

insure completion of the unfinished assignments. He did not complete that

work simply because of the flatbed problem and the assurance from Gibson

that the night shift would finish the supply delivery when they returned with

the flatbeds.

The Employer argues that the Grievant’s testimony cannot be credited

because the Union failed to provide a motivation for Manio or Gibson to lie.

In fact, the Grievant’s testimony about Manio’s lack of competence and his

general air of superior competence to that of Manio reveals such a

motivation. It is highly likely that Manio had become frustrated with the

Grievant’s attitude toward her. As such, it is quite possible that, when she

believed something was amiss involving the Grievant, she was all too eager

to embrace it. As she steamed ahead, perhaps Gibson did not believe he

could roll events back and explain what really happened. There is no

certainty here, but some real possibilities. Given what occurred, the Grievant

would do well in the future to allow his supervisors to supervise, regardless

of his personal views about their incompetence.

Based upon the above credibility determinations and upon the entire

record in this matter, the Arbitrator finds that the Employer has failed to show,

by a preponderance of the evidence that the Grievant committed the acts

with which he was charged.

1. The termination of the Grievant was not for just cause.

2. The Grievant shall be reinstated to his position within the Supply Chain

Department at the level of seniority he would have had absent termination.

3. The Grievant shall receive all backpay, benefits and entitlements dating

from his termination to the date of reinstatement subject to the terms of the 

Agreement.

4.The Arbitrator will retain jurisdiction for ninety days from the date of this

Award to resolve any disputes regarding compliance with this Award.

Dated this 20th day of January, 2016

Stephen E. Alpern

Arbitrator