2006 NAC 110 Utah Power and Light and IBEW Local 57

Title: Utah Power and Light and IBEW Local 57
Date: September 9, 2006
Arbitrator: Burton White
Citation: 2006 NAC 110

The parties in this dispute are Utah Power & Light Company (Employer or Company) and the International Brotherhood of Electrical Workers, Local 57 (Union or IBEW). The Employer is a subsidiary of PacifiCorp (Corporate). The arbitration was held pursuant to the provisions of the collective bargaining agreement (CBA) entitled, “Labor Agreement for Power Delivery between Utah Power & Light and Local 57 of the International Brotherhood of Electrical Workers” (Agreement or CBA) from January 26, 2003, through January 25, 2006. (Jt. 1.)

The hearing was held on April 27 and June 9, 2006. The parties agreed that the matter was properly before me as Arbitrator to hear the dispute and to issue a final and binding decision. Both parties participated in the hearing; each had full opportunity to present evidence, call and cross-examine witnesses, and argue its case.[1] The parties requested that if I were to determine that the grievance addressed in this matter is to be upheld in whole or in part, that I retain jurisdiction to assist the parties, if need be, in the interpretation and application of my Award. (Tr. II, p. 235.)

The parties elected to make closing arguments in written briefs. They set Friday, July 14, 2006, for simultaneous submission of briefs. Both documents were postmarked on that date. The second of the two was received on July 19, 2006, whereupon the record was closed.

ISSUE

Was the Grievant terminated for just cause on October the 12^th, 2006?
If not, what is the appropriate remedy?

1.8 Should the Company establish any new department or materially rearrange any of its present departments so that the definitions or rules then in effect will not apply, then the parties hereto will meet at least 30 days before said change is to be made for the purpose of arranging classifications, wages, hours and schedules of work.

1.14 The supervision and control of all operations and the direction of all working forces, including the right to hire, to suspend or discharge for proper cause, or to transfer employees or to relieve employees from duty because of lack of work or other legitimate reasons are vested exclusively in the Company. The Company retains the right to exercise discipline in the interest of good service and the proper conduct of its business. An employee, who had been laid off, disciplined or discharged or the employee's representative shall be advised of the reason or reasons for such action upon request, and shall be entitled to a hearing as hereinafter provided in Article 5.

4.2.1 Overtime is the actual time worked by a regular employee other than the regular employee's working hours. ***[2]

4.2.2 Employees who are required to work overtime shall be paid for such overtime as follows:

· For work beyond eight (8) hours in a day or hours outside the normal daily work schedule or work week or the regular hours or days of a temporary shift.

· For all hours after 16 continuous hours until the appropriate break in hours has been satisfied as described in Section 4.2.3.

· When multiple time and one‑half pay provisions overlap, double time would be paid during the overlap time period.

· It is understood that the double time rate of pay is the maximum overtime payment for any hour worked. ***

4.2.3 Unpaid rest periods of 4 to 8 hours, as determined by supervision, shall not change the pay status of two times regular rate for employees who return to work immediately after such rest periods. Rest periods of more than 8 hours will be sufficient to change one's pay status. If such unpaid rest periods extend into the employee's regular scheduled work hours, such employees will receive only straight time pay for the rest period hours occurring during the employee's regular scheduled work hours. Any call-out within two hours of an employee's regular quitting time or within two hours of a previous call-out shall be bridged back to the previous quitting time or previous callout for the purpose of calculating sixteen (16) continuous hours to achieve double time compensation. Employees will be paid only for time worked and do not receive compensation for the bridged time identified above.

4.2.9 Employees who are required to work more than two (2) hours overtime after the regular quitting time shall be compensated for a meal by the Company and the first subsequent meal at five and one-half (5 1/2) hours with additional meals at intervals of not more than six (6) hours thereafter while they continue to work. Meals will be compensated by the Company for employees who work more than two (2) hours before their regular starting time, including holidays and regular days off. Breakfast compensation will be provided for employees who report to work one and one-half hours (1 ½) or more before their regular starting time, including holidays and regular days off. (breakfast compensation only) [sic]

Pre-arranged overtime meals on holidays and regular days off will be compensated as stated in "Payment for Meals" Memorandum of Agreement.

5.1 Employees of the Company shall have the right to a hearing on any difference of opinion with respect to matters of promotion, demotion, discipline, layoff or discharge.

The award of the arbitrator shall be final and binding upon both parties and upon the employee(s) involved. The fees and expenses of the arbitrator, and any other expenses agreed to by the parties prior to the arbitration, shall be shared equally by the Company and the Union. The arbitrator shall have the power and authority to arbitrate only those matters expressly made subject to arbitration by the terms of this Agreement, and shall rule only on the issues submitted in writing for arbitration. The arbitrator shall not have power to alter or amend the Agreement.

This provision shall not be construed to prevent further conferences between the parties hereto for the purpose of settling the dispute at any time before the decision of the arbitrator.

5.5. In the event it is decided in the manner provided in this Agreement that the employee has been suspended, demoted, laid off of discharged without cause, the employee's record shall be cleared of such charges and the seniority restored: and the employee shall be reimbursed for any loss of wages resulting by reason of such suspension, demotion, layoff or discharge.

Payment for meals will be made to bargaining unit classification employees and management personnel when extended work hours are required by the Company. The provisions of Section 4.2.9, 10 and 11 [sic] of the agreement between I.B.E.W. Local 57 and the Company cover the cases of extended days and early call out. Employees will be allowed a reasonable period of time to eat meals provided under this policy but will be on their own time during the meal period-time off for meals is not subject to overtime pay.

The Company will reimburse employees $7.00 for breakfast, $8.00 for lunch, and $17.00 for
dinner.

The type of meal to be reimbursed will be determined by the hour during which the meal would
normally be furnished. The following time periods will be used in making this determination:

Meal allowances will be disallowed for bargaining unit employees if no overtime is reported for
the corresponding day that is marked for the meal allowance.

In accordance with Article 1, Section 1.8 of the collective bargaining agreement between Local 57 and PacifiCorp's Power Delivery business unit, the parties have met and resolved the issues associated with the staffing and operating parameters for the Wasatch Restoration Center (WRC). The parties recognize that with reorganizations of this scale, additional issues may arise after the WRC is operational. The Company and the Union are committed to jointly resolving any future issues that may arise.

Regular Hours: The hours for the shift on which the employee is scheduled for that day; [sic] is considered their “normal work day.”

Regular Day Shift (RD):
Eight-hour shift beginning at 0700 and ending at 1500; scheduled Monday through Friday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day.

Day Shift (D):
Ten-hour shift beginning at 0700 and ending at 1700; may be scheduled either Monday through Thursday or Tuesday through Friday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day.

Afternoon Shift (A)
Ten-hour shift beginning at 1300 and ending at 2300; may be scheduled either Monday through Thursday or Tuesday through Friday. Logistic specialist shift (a) to begin at 1500 and end at 0100, Monday through Thursday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day and will receive 4% shift differential per the working agreement.

Weekend Day Shift (W)
Twelve-hour shift beginning between 0700 and 0900; scheduled Friday through Sunday or Saturday through Monday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day. Will receive 2% differential added to base pay and will receive 40 hours pay for 36 straight-time hours worked.

Weekday Graveyard Shift (WDG)
Ten-hour shift beginning at 2100 and ending at 0700 the following day Monday through Friday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day and will receive 7% differential per the working agreement.

Weekend Graveyard Shift (WG)
Twelve-hour shift beginning at 1900 and ending at 0700 the following day Friday through Monday or Saturday through Tuesday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day. Will receive 7% differential per the working agreement. Will receive 2% weekend differential added to base pay and will receive 40 hours pay for 36 straight-time hours worked.

(d) Time worked in excess of 10-hours in a day when scheduled for 10-hour days …

The Union and Company agree that the following provisions will supersede any conflicting language in the Collective Bargaining Agreement with regard to these shifts as established:

IV. Application of other Agreement provisions to persons governed by this MOA

A. A Joint Shift Implementation Committee shall be established and will meet as needed to review the implementation of this MOA. The Company Labor Relations Designee and the Union Business Manager must approve and sign all amendments of changes to this agreement.

C. The Joint Shift Implementation Advisory Committee will meet as needed to review and resolve problems that may arise within this agreement. The Collective Bargaining Agreement will be the final interpretation concerning the terms and conditions not superceded by this Memorandum of Agreement.

D. While it is the hope that issues can be resolved without resorting to grievances and arbitration, it is understood that the grievance and arbitration provisions of the Collective Bargaining Agreement apply to disputes that cannot be resolved by the Joint Committee.

Termination without prior warning or notice is appropriate for any serious misconduct or serious performance problems. The Company’s management determines whether conduct or performance problems are such that it is appropriate to terminate an employee without the benefit of a prior warning.

Examples of serious misconduct and serious performance problems include the following:

In order to evidence the effectiveness of PacifiCorp’s internal controls governing fiscal reporting, every employee (both exempt and non-exempt) is required to prepare a timesheet and attest to its accuracy by signing and dating it. The timesheet must then be submitted to the supervisor for review and approval. [Remainder of paragraph omitted.]

Employees (or their designated proxies) must accurately log their hours worked, hours off, type of hours and cost objects, and report that time using a payroll-approved timesheet for each day. The timesheet must then be approved by the supervisor before being entered in SAP, …[3][Remainder of entry omitted.]

Foremen/crew leads/supervisors (or their designated proxies) must accurately log crew hours worked, hours off, type of hours and cost objects, and report that time using a payroll-approved timesheet for each day. After the foreman/crew lead/supervisor has fully completed the timesheet, each employee in the crew must attest to its accuracy by signing and dating it. [Remainder of entry omitted.]

Falsification of timesheets is considered a fraudulent action under the Fraudulent or Dishonest Activities and Whistleblower Protection Policy. Falsification of timesheets includes, but is not limited to, intentional overstatement of regular or overtime hours worked knowingly charging the wrong accounting, failure to report personal time taken or alteration of timesheets that have previously been approved or recorded.

3.4 Corrections
No changes will be allowed without prior approval from the supervisor. If extensive changes are required, a new timesheet should be generated and submitted to the supervisor, along with the original timesheet, for review and signed approval. Otherwise, minor changes may be marked on the old timesheet and initialed by the supervisor to indicate approval before being entered in SAP. ***

An Arbitrator’s Audience. In my view, in addition to the advocates of the parties to whom an Opinion is submitted, grievants and other employees, supervisors and other management personnel are key parts of the audience for arbitrators’ Opinions. In the public sector, the audience may well also include the public. One cannot assume that all members of such a wider audience necessarily will have access to the documentary evidence or to the specifics of the testimony presented at a hearing, or that they will be as familiar as are the advocates with other details of the case or with arbitration practices, procedures, and standards. With that larger audience in mind and where I deem it may be helpful to a reader’s understanding, I provide background for my comments.

The individuals who play a part in this dispute. Arbitrators’ Opinions can become permanent records, at least in the archives of the parties. Arbitrations can deal with very personal and private matters and, during the course of an arbitration, assertions can be made that may not be factual. Moreover, in fulfilling their obligations to the parties, arbitrators are often called upon to make assessments of the credibility and job performance of individuals on each side of a dispute.

Whenever I can do so without sacrificing clarity, I compose my Opinions to identify persons by roles rather than by names. Since the parties are aware of the identity of individuals, this device does not place them at a disadvantage, but it does erect a somewhat effective shield against easy identification by persons not directly involved in a case.

To assist the reader, I present the following chart. The individuals are listed in the order in which they testified.

1. At the time of his termination, the Grievant, an employee with some thirty years service, was employed at the Company’s Wasatch Restoration Center (WRC) as a [Journeyman] Lineman. (Tr. 2, p. 58, ll.18-25; p. 59, l. 20-p. 60, l. 2.)

2. There had been a previous termination. On June 11, 2004, the Grievant—a Foreman at the time—was terminated by the Company for:

· Deliberate alteration or falsification of Company and or/work related records.

3. The matter was grieved (see Co. 2 and 3) and a settlement was reached. Under the settlement the Grievant was reinstated as a Journeyman Lineman and assigned to the afternoon shift at the WRC. By the terms of the settlement, the time between the termination and the reinstatement was to be considered a disciplinary suspension. (Co. 3.)

4. Prior to the current matter, the Grievant had no discipline during his employment other than the matter addressed in items 2 and 3 above. (Tr. II, p. 69, ll. 3-7.)

5. The Company established the WRC for the purpose of restoring power as soon as possible after an interruption. To this end, the facility was staffed 24 hours a day, 7 days a week. (Tr. I, p. 34, l. 21- p. 35, l. 3; Jt. 2, p. 1.)

6. Because of the schedule and the purpose of the WRC, the parties negotiated a Memorandum of Agreement (MOA) that contained terms and conditions of employment that were specific to that facility. (Jt. 2.) The CBA applied to the WRC except as modified by the MOA. (Of particular relevance to the dispute before me are the provisions in the MOA that identify shifts and provide for paid meal breaks (page 2), define overtime (page 4), add details about meals—i.e. compensation for meals and how the paid meal period relates to work—(page 7), and show how the MOA interfaces with the collective bargaining agreement (page 8).)

7. At the time of the events that figure in the current dispute, the Grievant’s regular schedule was four ten-hour shifts, 0700 hours to 1700 hours.[5] (T. I, p. 87. ll. 5-12; II, p. 87, ll. 1-2.) He worked Monday though Thursday. (Tr. II, p. 87, ll. 4-5.)

8. The events that led to the termination that is the subject of this arbitration took place during a continuous period of 32 hours “on the clock” that began at 0700 hours on Wednesday, September 21, 2005, and ended on or about 1500 hours on Thursday, September 22, 2005.[6]

9. The CBA defines overtime as “the actual time worked by a regular employee other than the regular employee's working hours”.[7] (Jt. 1, §4.2.) There are two overtime rates of pay: (1) time-and-one-half for hours worked “outside the [an employee’s] daily work schedule” and (2) double-time “For all hours after 16 continuous hours until the appropriate break in hours has been satisfied…”. (Jt. 1, §4.2.2.) (The “appropriate break” is addressed in Jt. 1, §4.2.3.) It appears that these provisions apply to the WRC. Since the Grievant worked a 10-hour shift, his rate of pay increased to time-and-one-half upon completion of ten hours of work and to double time for all hours after sixteen continuous hours of work. (Tr. I, p. 43, ll. 1-6.)

10. The MOA defines overtime—for employees on the Grievant’s schedule—as “(a) Time worked in excess of forty (40) hours in any scheduled forty-hour (40) hour [sic] workweek or … (d) Time worked in excess of 10-hours in a day when scheduled for 10-hour days…. (Jt. 2, p. 4.)

11. With relation to the specifics of this dispute, the Grievant was part of a work crew that had several assignments during the span of work time that began at 0700 hours on Wednesday, September 21, 2005, and ended some time in the morning of September 22. They were sent to one job at 0700 hours on Wednesday, diverted to a second job at 2300 East at 0900 hours (Tr. II, p. 71, ll. 16-19) and remained there until 1900 hours (Tr. II, p. 75, l. 24-p. 76, l. 2). They were sent to a third job—a bank—where they worked until 0530 on Thursday September 22^nd (Tr. p. 76, l. 9-25). They were then sent to a fourth assignment at Bryan Avenue. (Tr. II, p. 80, l. 22-p. 81, l.6) (See also Co. 7a, 7b, and 17.)

12. The Grievant returned at the WRC on Thursday, September 22, at “11:35:55 [a. m.]”. (Co. 16, p. 9.)

13. The Grievant sought and received permission to leave the facility. (Tr. I, p. 190, ll. 19-20.)

14. At 1500 hours, he asked the Timekeeper to “clock” him out. (Tr. II, p. 92, ll. 9-10.) (See footnote 6 .)

15. The Grievant’s time card for September 22, 2005, was computer generated. A crew’s foreman calls in the data about work time in the field that gets printed on the card. (Tr. I, p. 275, ll. 7-19.) The timekeeper (Timekeeper) prepared the time card (Tr. 1, p. 249, ll. 1-16), she printed it out, and she handed the document to the Grievant. (Tr. I, p. 248, ll. 8-12.)

16. The Grievant signed the card at approximately 1500 hours on September 22, 2005. (See footnote 6.)

17. In reviewing time cards that were submitted on September 22^nd, the Graveyard Shift Manager (GSM) became concerned about the hours of work (and costs) associated with the work that had taken place at 2300 East. (Tr. I, p. 35, l. 12-p. 37, l. 4; Co. 6.) At some time subsequent to the Grievant’s signing of the time card—possibly the night of September 22^nd—the GSM noted that the Grievant’s time sheet for September 22, 2005 (Co. 7b) reported that he had worked from 0700 hours until 1700 hours on Shift Before Shift Work; that is, on double time. (Tr. I, p. 52, ll. 1-10.) On the Grievant’s time sheet, those ten hours were all assigned to the Bryan Avenue job. The GSM thought that the “costs and manpower were too high for that particular job”.[8] (Tr. I, p. 37, ll. 1-4.) He wrote an e-mail that triggered an investigation into those factors. (Tr. I, p. 36, ll. 19-25 and p. 39, ll. 5-9.)

18. The Labor Relations Consultant (LRC) conducted the investigation. (Tr. I, p. 79, l. 19-p. 80, l. 18.) He conducted interviews with employees who had worked on the projects. The interviews took place on September 29 (Co. 10, 11 and 12), and on October 3, 2005 (Co. 13). He interviewed the Grievant on October 4, 2006 (Co. 15). Other management officials interviewed a third member of the crew on October 11, 2005. (Co. 20.) The Company stipulated that this interview took place after the decision had been made to terminate the Grievant. (Tr. I, p. 127, ll. 13-15; see also, Tr. I, p. 130, l. 22-p. 131, l. 2.)

19. The Grievant was off work until Monday, October 3, 2005. Friday, September 23, 2005, started his three-day weekend off work. He was off his next workweek on pre-approved sick leave. (Tr. II, p. 98, ll. 24-5; Un. 5.)

20. The Grievant acknowledges that during his absence fellow workers apprised him that an investigation was underway at the workplace about the work time and related costs of activities on September 21-22, 2005. (Tr. II, p. 105, l. 21-p. 106, l. 8.).

21. The Company (through the LRC) first learned of the meal that had been eaten on the morning of September 22, 2005, during the LRC’s interview on October 3^rd of the worker who had served as the Grievant’s foreman on September 21-22. (Co. 13. Tr. I, p. 150, l. 12-p. 151, l. 11.)

22. On October 3, the Grievant’s “Employee Time Report” for September 11 to September 25, 2005 appeared in his mail slot. The time that document was available to him and what he did upon obtaining that report is part of the dispute before me.

23. On October 4, 2005, the LRC interviewed the Grievant as part of the investigation into the job related costs of work that had taken place on September 21-22, 2005. (Co. 15.) In the course of that interview, the Grievant mentioned the morning meal, told of leaving the workplace about 1500 hours on September 22, and gave his version of how he came to sign a time sheet that showed him leaving at 1700 hours that day.

24. The LRC summarized the results of his investigation to the Director of Operations for Utah North. (Tr. II, p. 15, ll. 8-18.) The Director called for a “calibration meeting” [9] with the Managing Director of Field Operations. (Tr. II, p. 16, ll. 15-16.)

Your employment with PacifiCorp is being terminated for your violations of Company Policy and serious misconduct. Specifically:

· Deliberate alteration or falsification of Company and / or work related records.

On September 22, 2005[,] you signed your time sheet indicating time worked from seven a.m. to five o’clock p.m. (07:00 to 17:00) without any break in work time. During our investigation on October 4^th, 2005[,] you admitted to eating a breakfast meal at a restaurant which was not reported on the time sheet you signed. Further, you signed the time sheet indicating you had worked until five o’clock p.m. (17:00)when in fact you left work at three o’clock p.m. (15:00).

27. A grievance was filed (Jt. 4), but the parties were unable to resolve the dispute. The matter was then submitted to arbitration

· The Grievant committed time theft and deliberate falsification of time records when he:

o Deliberately failed to disclose he had taken an hour break to eat breakfast at a restaurant and thus continued his pay at the double time rate, and

o Failed to correct time card that showed that he left work at 1700 hours rather than at 1500 hours. The result was that he collected double time pay for work he did not perform.

· The Grievant came forward to correct his time card only after he became aware that the Company was investigating the costs of the involved jobs.

· The Grievant was aware of Company policies that stated that “falsification of time records or time theft” would result in discharge.

· The Grievant was on “final written warning” as a result of “previous similar misconduct”.

· The Company “has consistently terminated employees for time theft or falsification issues”.

· The Grievant’s years of service do not outweigh his conduct especially since “he had a final written warning … for a previous suspension regarding quite similar conduct.”[10]

(Quotations in the above summary are from pages 4 and 5 of the Employer’s Post-Hearing Brief.)

· Reporting the meal in question “was neither the practice nor [was it] required by the Company when the meal was half an hour, which it was.” The parties are currently addressing the difference in contract interpretation that came to light as a result of the event.

· The Grievant signed a time sheet that showed he stopped work at 1700 hours when he actually stopped two hours earlier, but under the circumstances, this was “an innocent mistake”.

· The Grievant’s “past record is not determinative” because the Company has failed to prove “its falsification charges”. Moreover, the event that gave rise to the prior discipline is significantly different from the current matter.

· The Company failed to provide due process: the investigation was unfair and the Company did not provide the Grievant “notice of charges and an opportunity to clear himself before termination.”

(Quotations in the first three bullets in the above summary are from page 6 of the Union’s Post-Hearing Brief; the quotation in the fourth bullet is from page 24 of the Brief.)

Termination without warning. The Employer has established a policy that provides in relevant part:

Examples of serious misconduct and serious performance problems include the following:

Quantum of Proof. In my view, arbitrations under collective bargaining agreements are not judicial proceedings. Even so, standards applied by courts—including rules of evidence and views about quantum of proof—provide helpful guides to the parties and to the arbitrator. Because the Union urges me to require proof beyond a reasonable doubt,[11] I present my views about quantum of proof in discharge cases.

In their book, Evidence in Arbitration, Marvin Hill and Anthony Sinicropi state:

It has been suggested that the most useful way to think of the quantum of proof is to think in terms of variable degrees of caution. The West Coast Tripartite Committee has reasoned that an arbitrator may wish, on balance, to be more persuaded than not (preponderance) in many cases; pretty certain (clear and convincing) in some others; and completely convinced in yet others. Quantum of proof, according to Arbitrator Edgar Jones, is simply suggestive, not definitive, of the degree of caution that an arbitrator will exercise in a certain case.[12]

The Union suggests that proof beyond a reasonable doubt is the appropriate standard when an arbitrator reviews a termination based on dishonesty. It cites several relatively early arbitration cases to buttress this suggestion. In his book, Discipline and Discharge in Arbitration, Arbitrator Norman Brand articulates the position:

The typical falsification case involves dishonest conduct—lying, cheating, or fraud—and, therefore, many arbitrators believe a more stringent quantum of proof (such as proof beyond a reasonable doubt) is necessary. Again, this is because the actions alleged constitute a crime or an act of moral turpitude.[13]

Brand acknowledges, “There is a divergence of opinion among arbitrators as to which standard of proof applies in disciplinary proceedings.” Other authorities indicate that proof beyond a reasonable doubt is a minority view:

Regardless of the nature of the conduct at issue, the body of arbitral case law appears to be leaning toward a clear and convincing standard rather than proof beyond a reasonable doubt or a mere preponderance of the evidence.[14]

A diminishing minority of arbitrators accept the argument that discharge in these instances is the equivalent of “economic capital punishment” and therefore apply the criminal-law standard of proof “beyond a reasonable doubt.[15]

… [W]ith respect to discharge for … potentially unlawful conduct, … the greater weight of authority … [favors] clear and convincing evidence and preponderance of the evidence as opposed to beyond a reasonable doubt.”[16]

… [P]roof beyond a reasonable doubt, the recognized standard in criminal proceedings, is of dubious utility in arbitration, even in cases that involve actions of “moral turpitude.” While arbitrators will, on occasion, insist that this most stringent standard should apply in cases involving discharge for events that may be criminal in nature, on the basis that a finding of just cause may create an impairment to the grievant’s reputation and future employment, it does not represent the prevailing rule.[17]

I hold the view that when determining whether a discharge was for just cause, the just cause standard requires something more than proof by a “preponderance of evidence.”

Involuntary loss of employment is a most serious matter and it is more serious still when that loss is triggered by a charge—such as dishonesty— that could bring opprobrium to the employee. Even so, I do not deem the standard for conviction in a criminal case to be appropriate in labor arbitration. Loss of employment is not analogous to imprisonment (loss of freedom) or loss of property that can be imposed in a criminal case.

In any event, I do not understand why it should be more difficult to discharge a person shown (by clear and convincing evidence) to be dishonest than it is to terminate an honest person for serious or repeated misconduct.

Burden of Proof. In a helpful pamphlet, Evidence and Proof in Arbitration, Marvin F. Scheinman has written:

… [W]here the issue is the discharge of an employee for cause, the employer is said to have the ultimate burden of proving a legitimate severance. Once the company has established a prima facie case—one that will suffice until contradicted and overcome by other evidence—the burden shifts to the union, which must refute the legitimacy of the severance or show that there is not cause for discharge.[18]

Just Cause. The parties have agreed that “The supervision and control of all operations and the direction of all working forces, including the right … to suspend or discharge for proper cause… are vested exclusively in the Company.[19] (Jt. 1, Section 1.14.) As the stipulated Issue Statement indicates, the parties have assigned me the task of determining whether the Grievant was terminated for just cause.

In my view, an appropriate way to determine whether just cause exists in a termination case is to apply the following questions: (1) Did the employee know, or should s/he have known, that the conduct that led to termination was incorrect and that discharge was a likely result of the conduct? (2) Did the employer establish that the employee did what s/he was discharged for? (3) Was the process administered fairly and regularly? (4) Was the penalty “within an ambit of reasonableness”?[20]

On September 21, 2005, the Grievant started work at 0700 hours at his straight-time rate. Time-and-one-half applied for all hours worked after the end of his regular shift; that is, after 1700 hours. Double-time started at 2300 hours that same day. The dispute before me involves the following areas of disagreement between the parties about the facts of the case:

· the rate of pay, if any, that was appropriate for a meal that the Grievant consumed on the morning of September 22, 2005,

· the circumstances surrounding the issuance of the Grievant’s time card for that day,

Did the Grievant know, or should he have known, that the conduct that led to termination was incorrect and that discharge was a likely result of the conduct? (Hereinafter: Forewarning)

The Company presented evidence about two acts by the Grievant that in its view warranted termination. It summarized its position as follows:

The company contends … [the Grievant‘s] employment was terminated for just cause after he deliberately failed to disclose he had taken an hour break to eat breakfast at a restaurant while he was receiving double time pay from the company. On this same date, the company contends … [he] left well before 5:00 pm, [sic] yet did not change his time card to reflect the time he had actually left (approximately 3:00 pm), in effect, collecting double time pay for work he did not perform.

The Company contends this constituted time theft and deliberate falsification of time records.[21] (Co. Br. p. 4.)

In the Company’s view, the Grievant had been terminated in 2004 for conduct “very similar” to that which resulted in the termination in 2005. (Br. p. 4.) This argument must be assessed bearing in mind the several changes that had been instituted by the Company between the Grievant’s termination on June 11, 2004, and his reinstatement on July 5, 2005, and considering the degree to which the Company made the Grievant aware of its expectations of him and of the changes that it thought applied to his conduct and his work.

The Meal The Grievant’s 2004 termination took place in the following context. On May 22, 2004, he (then a Foreman) and his crew had been working overtime on a weekend day off. After working all night, the crew took a breakfast meal break that lasted 3½ hours but the Grievant reported it as lasting 30 minutes. They also took an evening meal break that lasted 1½ hours but that was reported as being time worked. (Co. 1.) At the time of these transgressions, there was no provision in the collective bargaining agreement for a paid meal period. The Grievant, as Foreman, reported for the entire crew. (Tr. I, p. 22, ll. 2-10.)

Upon the Grievant‘s reinstatement, his termination letter was modified to reduce the “termination to a suspension” and he was informed, “Any further incidents may result in further disciplinary action, up to and including termination of your employment with PacifiCorp”. (Co. 8; my emphasis.) He was also given a copy of the Journeyman Lineman and Line Crew Job Expectations that contained—with relevance to the meal dispute—the advice that “Employees are allowed … a 30 minute lunch period based on operational needs”. (Co. 9, p. 2.) Although the two management representatives who were present at the reinstatement meeting testified at the arbitration, only one—the LRC—was asked about what had taken place at that meeting and he described communications—other than Company 9—in general terms:

And we went through the shift work expectations, made emphasis about what's expected, how important it is to abide by these expectations so that he didn't find himself in another situation. (Tr. I, p. 79, ll. 10-13.)

Upon his reinstatement, the Grievant was assigned to the Wasatch Restoration Center. Several conditions were different from what had applied in his 2004 assignment. The differences are found in Company Exhibit 5, the “Time Reporting and Approval Policy” and in Joint Exhibit 2, the Memorandum of Agreement (MOA) that deals with the “Staffing and Operating Parameters for the Wasatch Restoration Center,”

In 2004, the Grievant had worked under the terms of Article 4 of the CBA that address a forty-hour workweek consisting of five eight-hour days. Weekends were not scheduled workdays; weekend work was covered by overtime. The MOA modified Article 4. The WRC was a “7day/24hour per day operation”. (Jt. 2, p. 1) and the Grievant’s workweek consisted of four ten-hour days, Monday through Thursday. Under the CBA, meal times were not considered paid time. The WRC MOA modified this and provided for a paid meal period. (Jt. 2, pp. 2 and 7.)

The arbitration record makes clear that the parties to the MOA have markedly different interpretations of the relevant language in that document and of how that language relates to the CBA itself. I have not been assigned the task of determining the correct interpretation of the language in connection with that dispute, but I note here —and will address in more detail later in this document—the language of the MOA is, in my opinion, not as clear and unambiguous as the Company’s arguments suggest. (The Company contends that the paid meal provision applied only to meals eaten “on the fly”.)

Language that is ambiguous is language that is capable of two or more reasonable interpretations and this reality must be considered when answering the question whether that by neglecting to note the sit-down breakfast as time not worked, the Grievant was falsifying time records.

The Time Sheet The Employer argues that its policy regarding Time Reporting (Co. 4) and its Discipline Guidelines (Co. 21) were known to the Grievant. However, the Company offered no evidence to establish that these documents were provided to the Grievant.

I am less concerned with the Discipline Guidelines than I am with the Time Reporting policy since there are certain types of conduct that every employee should know are unacceptable even when such a point is not made in writing and communicated to all on the payroll.[22]

The policy regarding Time Reporting is another matter. The record indicates that the Company developed this policy and implemented changes in procedure related to it as a result of the conduct that led to the Grievant’s 2004 termination. (Tr. I, p. 22, ll. 11-21.) This policy was placed on a Company website and made known to employees by means of a cover e-mail addressed to Corporate employees. (Co. 5.) The e-mail was sent September 22, 2004; that is, after the Grievant had been terminated and before his reinstatement.

The cover e-mail bore an internal link which, when clicked, would take the reader to the newly created policy. However, only employees with an e-mail account would have received the electronic communication. In apparent recognition of this, the cover e-mail bore the request in bold-faced capital letters, “SUPERVISORS, PLEASE SHARE THIS INFORMATION WITH EMPLOYEES WHO DO NOT HAVE ACCESS TO EMAIL.” There is no evidence in the record that the Company provided the Grievant with the policy. Indeed, the Grievant testified without contradiction that he did not have an e-mail address and that he had not seen the policy before the termination now in dispute. (Tr. II, p. 111, l. 24-p. 112, l. 4.)

As will be discussed in further detail later in this document, the Grievant was interviewed but one time in relationship to the 2005 termination. That interview took place on October 4, 2005, and—as the notes taken by the LRC indicate—the Grievant stated that the Timekeeper “charged [his] time out” and that he “does not fill out time sheet so he does not know what the time [worked on September 22] was charged to. … [His White Slip Foreman[23]] was in charge of keeping the time.” (Co. 15, p. 3.) At the arbitration the LRC—the person who conducted the investigation——testified that:

Based upon the change in the policy for time reporting, every individual has responsibility for their own time and to make sure that the time reported for them is accurate. And that’s why we have each individual sign their [sic] time cards. (Tr. I, p. 154, ll. 10-14.)

However, in my view the arbitration record indicates that although the Company held the Grievant accountable under the new policy, the Company failed to establish that it had made the Grievant aware of that policy.

The Grievant testified that upon his return from suspension he was given a copy of the Journeyman Lineman and Line Crew Job Expectations (Co. 9). The portions of that two page document that have relevance to time reporting state, “All information recorded on company documents must be accurate and timely”, and “Time recorded on time sheets must be accurate”. He acknowledged that he knew that his time records had to be accurate, but the evidence indicates, and I conclude, that he was not made aware that it was his responsibility to provide the data on which the records were based:

Q. (Mr. Ortiz) Did they tell you you would be actually keeping your own time records for purposes of the hours, instead of the foreman, the way it had been done before?

A. I knew there was a new program that you had to initial your time sheets daily, but I wasn't in charge of entering that or making any phone calls. And there was a new time sheet that was different than what I was used to from when I worked here before, a daily time sheet. And the codes and that kind of thing, I wasn't real familiar with.

The foreman would fill out the time sheet, and then I would ask them at the end of the day, "Does that look right to you?" because I don't know the times, I don't know the job numbers, because the foreman would do all that. (Tr. II, p. 63 ll. 10-24.)

Q. After you returned at any other time were you given any training by the Company with respect to how to report your time, your meals, your restaurants, or anything of that nature?

A. There would be some general meetings that they would talk about accuracy on time sheets as a general open discussion that I recollect. Like I said, you know, we signed them, but I didn't know the times that were called in or whatever, so I basically -- and they didn't want me to be the boss, because they took that away from me after they put me back to work, so I relied upon the one in charge to fill them out. And I didn't know the times they had called in or the accounting numbers or what we were doing. (Tr. II, p. 65, ll. 3-22.)

I conclude from the evidence that the Grievant was not provided a copy of the Corporate Time Reporting and Approval Policy nor was he provided any training in that policy or how procedures had changed between the time of his termination on June 11, 2004, and his reinstatement on July 5, 2005.[24] I also conclude that he was not provided a copy of the Discipline Guidelines.

Although there is no evidence that the Employer had made the Grievant aware of its Discipline Guidelines, the Grievant knew—and he should have known—that theft, deliberate falsification of work-related records, or willfully deceptive conduct could lead to discharge.

There is no indication that the Company made the Grievant aware of the requirements of its Time Reporting and Approval Policy.

The provisions of the MOA with respect to a paid meal period and their relation to the CBA are not as clear and unambiguous as the Company believes; therefore, the MOA cannot be taken to provide notice that payment would apply only to meals eaten “on the fly”.

The record indicates that there was confusion among management about how overtime meals were to be handled.

Did the Employer establish that the Grievant did what he was discharged for?

The Union does not dispute … [the Grievant] signed his time sheet on September 22, 2005, showing he worked until 1700 hours when he reported off at 1500 hours. The Union does not dispute grievant did not report the meal in question.” (Br. p. 5.)

The issue is not whether the Grievant did as the Union concedes he did. The question is whether—to use the Company’s terminology—these acts constituted “Deliberate[25] alteration or falsification[26] of Company and/or work related records”. (Jt. 3; my emphasis.) The Company must prove that the Grievant’s admitted acts were purposefully done to deceive and mislead.

The Meal. Two aspects of the September 22^nd breakfast meal are in dispute: the duration of the meal and the propriety of considering the meal to have been eaten on Company time.

The Duration of the Meal. Although they disagree on many aspects of the breakfast controversy, both parties agree that a paid meal break on work time (as opposed to a meal on paid rest time) is to last but thirty minutes.

The Employer argues, “By all accounts, at the time the investigation was conducted, the actual time taken for this meal was anywhere from an hour to an hour and a half.” (Br. p. 11; my emphasis.) The brief makes three references to the arbitration record in support of this contention. (Br. p. 17.)

The first reference was to Company Exhibit 13, the Labor Relations Consultant’s notes of his interview of the Grievant’s White Slip Foreman. Those notes state that the Acting Foreman said that the three man crew “stopped & ate meal @ approximately 10:00 a.m. -11:30.” During his appearance as a witness, the LRC was asked by Company Counsel, “Did you get an understanding during … [your interview with the employee who served as the Grievant’s foreman] about how much time they took off for this breakfast?” The Consultant answered, “I believe he indicated that an hour or so [was spent] at the restaurant.” (Tr. I, p. 93, ll. 11-15.) The Acting Foreman did not appear at the hearing—he had been terminated for a different matter.

The second reference in the Company’s post-hearing brief was to Company Exhibit 15, the LRC’s notes of his interview with the Grievant. All that document states about the meal was, “Went and had breakfast after job was completed. [G]ot back to shop at 11:30 a.m.” (P. 3.)

The third reference was to Company Exhibit 20, typed notes made by Day Shift Manager[B] of the interview conducted with the third member of the crew. That document states, “… [The three members of the crew] went to breakfast at a restaurant about 9:30 to 10:00 a.m. *** … [The interviewed worker] is guessing that his breakfast lasted about 1 hour….” [27]

Putting aside the obvious fact that the workers who were interviewed did not provide exactly the same information and that the times they cited were—at best—guesses, the workers’ input does appear to support the conclusion the Company drew from that input; namely, that the breakfast lasted an hour to an hour and a half.

I note that the Company’s argument is based upon accounts at the time of the investigation. It was not until November 9, 2005—nearly one month after the Grievant was terminated—that the investigation—through a Union request—obtained information that had been available in the Company’s files since the date in question: the phone call to report the restoration of power at the Bryan Avenue job had been time stamped as having been made at 9:32:29 a.m. on September 22, 2005. (Un. 2.)

In his direct testimony, the LRC was asked about his interviews with the Grievant and the Acting Foreman:

Q. Based on … [these interviews], were you able to get a sense as to when they actually stopped working and went to this restaurant?

A. I was, based upon the times that they identified that the power was back on and what they both said. They indicated it was around 9:30ish.

Q. So they stopped working approximately 9:30. Were you actually able to confirm through other records when they truly returned to the restoration center? (Tr. I, p. 104, ll. 1-10.)

There are two problems with this sequence. First, notwithstanding the information gained in the interview, as the Company drew its conclusions about the time spent eating, it appears to have persisted with the view expressed in Company Exhibit 17, that the power had been restored at 8:00 a.m. Second, the evidence indicates that the crew did not leave the job site at 9:30. My reasons for these conclusions follow.

Although, when interviewed, the crewmembers reported that the power had been restored at 9:30 a.m., the evidence strongly suggests that neither the LRC nor the Company gave those reports any credence.[28] Employer Exhibit 17, a chart the Consultant had available to aid in the investigation (Tr. I, p. 107, l. 19-p. 108, l. 4), indicates that the power was restored at 8:00 a.m.[29] In fact, when under cross-examination, the Labor Relations Consultant testified as follows with regard to Employer Exhibit 17:

Q. (Mr. Sandack) Now, we go down the page a little bit and it says, "Power restored." And that seems to suggest that the power was restored at 8:00, but that's not correct, is it?

Q. Well, yes, you do, because you've got this exhibit in here that says that the power -- excuse me, didn't you e-mail an exhibit ***

Q. Is that an e-mail that was sent to you telling you when the power was energized?

A. This is when the dispatcher gave a time stamp of when … [the First Responder] called in.

A. So I don't know if in CAT [CAD?] Ops[30] the power was restored at 8:00 or at this time. So I don't know if it was restored in the system at 8:00, or if that was the time. All I know is the time that the radio reflects when … [the First Responder] called in was that time.

A. I don't know what they do in the field. That's something you would have to ask them. (Tr. I, p. 178, l. 6-13; ll. 23-p. 179, l. 11.)

Of even more importance, in light of the facts that the decision to terminate was made at a “calibration meeting”, and that the Director of Operations, who—with the LRC—were the only participants at that meeting to testify at the arbitration, is that the Director relied on the report of the LRC.[31] Moreover, his testimony indicated that he had no clear idea of when the power had been restored on September 22, 2005:

Q. (Mr. Sandack) Did that statement concern you, the power was restored at 8:00 a.m., and didn't you understand they didn't come back from the shop until 11:30?

A. As I understood it, when we were listening to that, the power restoration time stamp was 8:00 a.m. I think, as memory serves me, 9:30 is when they wrapped up. That could have been power restored, work site cleanup and those kinds of things. It was along the general time frame as described and laid out in testimony.

Q. Well, in fact, the Union got some documentation after he was terminated that the power was restored at 9:30. So did you get some information that Company Exhibit 1 was wrong -- Company Exhibit 17 was wrong in that regard, didn't you, after the termination? That's Union Exhibit 2.

Q. Did you understand that Company Exhibit 17 was wrong with respect to the statement that the power was restored at 8:00 by reason of Union Exhibit 2?

A. The time stamp on the two different documents was probably brought to my attention and discussed, but it had no real relevancy to the meal period and the time sheet alteration.

THE WITNESS: The employee testimony -- they're the ones that brought the lunch issue up, the pay, and the time of leaving. The time stamps on the two documents in question were all presented, they were all there, but there was not relevancy to what time the power was turned on. The fact is, it would have put more question in that the extended duration of the outage is overstated by an hour-and-a-half -- or, excuse me, understated on the previous document.

Q. (BY MR. SANDACK) Well, … [the LRC] never showed you when the power was actually restored with documentation, Union Exhibit 2, obviously, because it was generated after the termination, right?

A. We were looking for collaboration on the voice -- all calls in and out of the dispatch center are taped, and they're date and time stamped.

The call reporting that the power had been restored was time stamped at “9:32:29”. (Un. 2.) The evidence—Union Exhibit 2—also suggests that this documentation surfaced on November 9, 2005. The Grievant was terminated on October 11, 2005.

The evidence is that the power was restored at “9:32:29”. There is no dispute about the following: clean up is necessary after power is restored. The Grievant described what had to be done:

A. Well, we had it energized, which we called in and told them the power had been restored, but we still had cleanup.

A. Picking up the old wire, removing -- getting our rope that we had used to pull the wire through the trees. The tree trimmers had been there and we had wire that we replaced all wrapped up in the tree limbs and fences, and we had to roll all that up, and roll up the wire reel that we had used and put it back into the truck, put our tools away.

A. I think we called in about 9:30, and it probably took us 45 minutes to clean up. (Tr. II, p. 81, l. 24-p. 82, ll. 14.)

Based on the evidence presented at the arbitration, I make the following findings of fact:

I make the following analysis pursuant to these facts. The period between the two fixed points of time is 2 hours 3 minutes and 26 seconds. Assuming that the cleanup took exactly 45 minutes, the period between completion of job and return to the Center is reduced to one hour, eighteen minutes, 26 seconds.

One must then consider travel to the restaurant and then to the WRC. The only evidence in the record on these points indicates that the restaurant was but a few blocks off course from the return route to the Center and that the Center was across the City from Bryan Avenue. (Tr. II, p. 82, l. 16-p. 83, l. 9.) Thus, except for the few blocks detour, travel time was from the job site to the WRC. The only evidence in the arbitration record about travel time reported that the drive to the restaurant took approximately fifteen minutes (Tr. II, p. 83, l. 21) and the travel time from the restaurant to the Center took about one half-hour (Tr. II, p. 85, ll. 5-9.) When one adds 45 minutes of travel and 30 minutes of eating and subtracts them from the one hour, eighteen minutes, 26 seconds that remained after clean up, the difference is a mere 3 minutes and 26 seconds.

Whatever the accuracy of the workers’ time estimates and my analysis of their information, it is clear that in making its determination to terminate the Grievant, the Employer did not adequately consider such clearly necessary matters as cleanup and travel time in determining the duration of the time spent at breakfast.

Although my analysis of the time is based on the information that is available in the arbitration record, it may be in error. Had the Employer made its own analysis of the information and arrived at a different conclusion, I would not substitute my reasoning for that of the Employer (assuming that the Employer’s analysis was a reasonable interpretation of the facts). My point is that—at least as the arbitration record reveals—the Employer made no analysis of how the Grievant and his fellow crewmembers utilized time during the morning of September 22, 2005.[32] Moreover, the evidence indicates that the decision-makers had serious misunderstandings about when the work was over and, therefore drew faulty conclusions about how much time was spent at the restaurant.[33]

I will return to these matters when I address the question of whether the process leading to the Grievant’s termination was administered fairly and regularly.

Company witnesses contend that since the crew was on double-time, they had to report the meal period as “time not worked”. (Tr. I, p. 169, l. 25-p. 170, l. 3.) Under those circumstances, the crew would have been entitled to straight time pay for the time spent eating (according to some Company witnesses) or to no pay at all (according to other Company witnesses).[34]

The MOA that—along with the CBA—governs terms and conditions of work at the WRC states, in language that is repeated for all shifts worked at the Center, “Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day.” (Jr. Ex. 2, p. 2 my emphasis.) It also states, “Overtime meals will be compensated as per Section 4.2.9 of the Labor Agreement”, and “Employees working shifts with a paid meal period shall eat as work permits.” (Jt. 2, p. 7; §F.)

As I have noted earlier, the assignment given to me by the parties does not include authority to make a final and binding interpretation of this language. Although the parties addressed the bargaining history that led to adoption of the provisions, it may well be that they did not present all the evidence that would be relevant to determining the intended meaning of the language that found its way into the MOA. Nevertheless, given the task the parties have assigned me, I must interpret the language according to my understanding of the record made before me. I note that my interpretation should be considered as applying to this case only.

There is simply no support for the union contention there was a good faith basis to believe the employees were justified to go for a sit-down restaurant break for this duration of time under these circumstances. Paying for overtime meal breaks is contrary to the Collective Bargaining Agreement which sets forth the provisions under which overtime meals will be billed.

Assuming arguendo that this entire break was only 30 minutes, it is still contrary to the overriding principle of the WRC that if employees are being paid for lunch, they should be able to “eat on the fly” rather than going in for a sit-down meal. The MOU [sic] has no language, and was obviously never intended to apply when crews are already receiving double-time wages and meal reimbursements in exchange for the extended hours of work. (Br. pp. 22-23; emphasis in the source.)

This incident itself brought to light legitimate differences between the Union and the Company as to whether the meal had to be reported and the proper rate of pay for this time under the MOA for the WRC. ***

The Company acknowledges that the meal took place during the employees’ regular shift, rather than during extended hours. The Company did not charge and has not proved the meal took more than one-half hour. Consequently, the WRC MOA is quite clear, it is considered a paid meal.

The Company believes meals may only be taken on the fly, as business allows and not in a restaurant based on the discussions it said took place in negotiating the MOA. But employees were entitled to a paid break. There is no showing the lunch break could “not be observed based on operating circumstances” as allowed in the WRC MOA. (Br. p, 29.)

There is sharp difference in testimony as to what was discussed about the paid meal break when the MOA was being negotiated. The LRC testified:

Through the discussions -- when we jointly developed this MOA, there was a lot of discussion around -- and we used the term "eat on the fly." Meaning that we didn't want them sitting down at restaurants, we wanted them to grab something and be in a position to go. Either take their lunch with them or go through a drive through, grab something, and be ready to go. (Tr. I, p. 88, ll. 12-18.)

Q. (Mr. Sandack) … Now, is there anything in the memorandum that prohibits them from taking their 30-minute break in a restaurant?

Q. Was that really discussed, per se, the overtime and a double-time situation, during the negotiations of the Memorandum of Agreement?

A. It was not. To my recollection, it was never mentioned. (Tr. II, p. 219, ll. 9-17.)

*** But the time of an overtime meal during their shift was an area that we specifically did not cover with clarity in the MOA, but the MOA did reflect that the contract provisions pertain to this. And eating on their own time on an overtime situation was clearly spelled out in the agreement.[35]

Q. The reason that it wasn't clear in the MOA is because you didn't really discuss it, did you?

A. We did not discuss it in the joint meetings. No, we did not, the specifics. (Tr. II, p. 30, ll. 13-21; p. 31, ll. 13-16,)

Neither party presented negotiating notes or any other documentary evidence of what was discussed in the negotiations that created the Memorandum of Agreement for the Wasatch Restoration Center.

I note the following. The cited testimony from the LRC indicates that the term “eat on the fly” was used during the bargaining and—at least when it was used by him— that term meant that “we didn’t want them sitting down in a restaurant”. However, that meaning was not articulated in the negotiated agreement. In his testimony, the Director of Operations reported that a joint Union-Management committee was established and “we came up with the concept of eat on the fly, or eat at the convenience of the work”.[36] (Tr. II, p. 18, ll. 16-18.)

The end product of the bargaining—that is, the MOA—does not prohibit taking the paid meal break in a restaurant. The MOA does contain language that is relevant to this discussion; namely, that at the WRC, an employee’s “Regular Hours” are defined as follows, “The hours for the shift on which the employee is scheduled for that day … is [sic] considered their ‘normal work day’.” (MOA, p. 1.) The Grievant was regularly scheduled Mondays through Thursdays for a ten-hour shift beginning at 0700 and ending at 1700. As the MOA states, “Employees on this shift have a 30 minute paid lunch break to be based on operating circumstances each day.” (MOA, p. 2.) It also states, “Employees working shifts with a paid meal shall eat as work permits.” (MOA, p. 7.) Given this, it is at least arguable that even when an employee is on overtime but—because the work has circled the 24 hour clock—is now working within that employee’s “normal work day”, a meal break that is taken between the completion of one job and assignment to another and that lasts only 30 minutes is a break “ based on operating circumstances”, or “as the work permits” even if that meal is consumed in a restaurant.

The Employer contends through its witnesses that there is a section of the CBA that expressly provides, “Employees will be allowed a reasonable period of time to eat meals under this policy but will be on their own time during the meal period—time off for meals is not subject to overtime pay.” (Jt. 1, p. 66.) The phrase “this policy” appears to refer to the special section of the CBA dated January 26, 1989, that bears the heading “Payment for Meals During Extended Work Hours.”[37]

Clearly, the provision was written before the MOA was created. In my reading, the provision appears to apply to compensation for the costs of meals rather than pay for time involved in eating meals. Given the fact that the CBA does not provide for any paid meal breaks, it may well be that the statement that “time off for meals is not subject to overtime pay” was adopted to make clear—in the context of the bargaining rules in existence at the time—that while a payment would be made to defray the cost of meals when “extended working hours” are called for, payment for the time off to eat those meals would not be made. It is also at least arguable that the paid lunch break provided for under the MOA is not time off for meals.

The 1989 provision speaks of “extended hours”. It seems clear that an employee is working extended hours when he or she works during hours that are outside the employee’s regular shift, but it does not necessarily follow that the term also applies when the overtime circles the clock and continues into the employee’s regularly scheduled hours of work.

The Union and Company agree that the following provisions will supersede any conflicting language in the Collective Bargaining Agreement with regard to these shifts as established…,

Overtime meals will be compensated as per Section 4.2.9 of the Labor Agreement.[38]

It is at least arguable that although the Grievant reached his “Regular Hours” on Thursday, September 22, 2005, a “normal work day” (as those terms are defined in the MOA), by working around the clock, he was in a shift that, by terms of the MOA, was entitled to have a “30 minute paid lunch break to be observed based on operating circumstances each day.”[39] Company witnesses were adamant that they never intended such an interpretation, but they did not seek to express that intention in the language of the MOA.

The Time Sheet. The Employer charges that after returning to the WRC on September 22, 2005, and informing fellow workers and management personnel of his desire to rest rather than work, “For no apparent reason, rather than clocking out and going home as he should have done, … [the Grievant] simply wandered around the shop area, engaging in a series of conversations.” According to the Company, “Although there may have been some time actually cleaning or restocking his truck, there was no discernible work … [the Grievant] performed for the company after he left the job site at Bryan Avenue between 9:30 and 10:00 that morning. Nevertheless … he signed off on a time card claiming double time wages through 5:00 pm that afternoon.” (Br. pp. 24-25; emphasis as in the brief.) Except for the last sentence in the quoted passage, I have given this argument no weight since the Employer did not include these concerns in the termination letter.[40]

· The White Slip Foreman called in work times for his crew, including the time for the Grievant.

· On September 22, 2005, before he actually signed out, the Grievant received permission to leave early from his immediate supervisor. (Tr. I, p. 190, ll. 19-20.)

· According to the Grievant, it was 1500 hours when he asked the Timekeeper to clock him out. (Tr. II, p. 92, ll. 9-10.) As I noted in Background Fact #15, the Timekeeper prepared the time card, she printed it out, and she handed the document to the Grievant for signature. The time card reported the Grievant as leaving at 1700 hours rather than at 1500 hours. The Grievant signed the card. (Co. 7b.)

The Grievant says that he did not realize that the time card had him leaving at 1700 hours.[41] The Company asserts that each employee has the clear responsibility to make sure that his time card is correct. The Grievant testified that he attempted to correct the time sheet as soon as he became aware of it through a time-worked summary that he received late on October 3^rd, his first day back at work after September 22, 2005. The Company argues that if the Grievant attempted to correct the time sheet, he did it only after fellow workers had informed him that the investigation into the work time for September 21-22 was going on. (Br. pp. 28-9.) The facts are that the Grievant was so informed during the period of his absence from work. However, post hoc ergo propter hoc was and remains a fallacy in logic.

The Company notes that on his first day back at work, the Grievant went to the Field Operations Manager, a friend, before he had received the document that he claims triggered his concern about his clock out time and asked the Manager to “vouch” for his time on September 22^nd. The Company argues, “If any time card error was simply an oversight, why would … [the Grievant] be trying to solicit employees to vouch for him?” (Br. p. 29.)

The Company also notes that although the Grievant testified that he asked Day Shift Manager[B] about the change needed on his time card and that the Manager agreed to take care of it, the Manager testified that he had no recall of such a request. (Br. p. 30). I note that the manager did not testify that this exchange did not occur; he said that he could not recall it. As the Company acknowledges, the Manager’s testimony was disputed. Not only did the Grievant testify that the Manager had agreed to correct the matter, the Shop Steward corroborated the Grievant’s assertion. He testified that when the Grievant reported during his interview by the LRC that he had given the time sheet summary to the Manager, the Manager, who was present at the interview acknowledged this. (Tr. II, p. 188, ll. 1-25.) In such a situation, and absent indications that witnesses were not credible, corroborated testimony trumps a lack of recall.

The Company notes that the Grievant did not go to the Timekeeper upon his return to work and asks, “If, in fact he thought she had made a mistake in clocking him out, why would he not have gone to her first and asked her to confirm this with a manager so that it would be crystal clear that this was not an intentional act on his part?” (Br. p. 30; emphasis in the source.) The Grievant would have no need to speak to the Timekeeper if he had been told by the Day Shift Manager that he would take care of the matter.

The Company raises some valid questions, but in the final analysis, the legitimacy of the Grievant’s discharge rests not upon his ability to prove his innocence, but upon the Company’s ability to establish the legitimacy of the discharge.

There are two types of "opportunities to be heard" that arbitrators concern themselves with. The first arises during an investigation by management before the decision to impose discipline has been made. There is a general notion that the employer must conduct a fair investigation before taking disciplinary action. Arbitrator Carroll Daugherty's discussion of the seven tests of "just cause" is frequently cited for this proposition. He asserted that arbitrators must ask seven questions to determine whether there was just cause for discipline. Among these are:

Did the Company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

Many arbitrators maintain that an employer should conduct “a careful and unbiased investigation of the charge” that leads to “the conclusion that sufficiently sound reasons exist to discipline the employee before taking disciplinary action. When an investigation is found to be less than thorough, some arbitrators have concluded that the just cause standard has not been met.[43]

The Duration of the Meal. Triggered by the e-mail from the Graveyard Shift Manager, the investigation consisted mainly of the Grievant’s time cards (Co. 7a and 7b), those of his Acting Foreman (Co. 14a and 14b), and those of other workers (Co. 18a and 18b; 19a and 19b), interviews with the workers (Co. 10, 11, 12, 13, and 15), and a color-coded time line chart created by the GSM (Co. 17.) The chart diagrammed the GSM’s understanding of what happened and when, and itemized each employee’s work of the day showing, half-hour by half-hour, when the workers were receiving straight-time, time and a half, and double time pay.[44]

The first phase of the investigation concentrated on what had happened in the field on September 21 and 22, 2005. Three investigations were conducted on September 29, 2005 (Co. 10, 11, and 12.) The Acting Foreman, who had been on administrative leave, was interviewed on October 3, 2005. (Co. 13.) In his account of the events of the two days, he mentioned—as reported in the notes—that he and his crew “stopped & ate meal @ approximately 10:00 a.m. -11:30”. The LRC testified as follows:

*** And during all of this time, he shared with us that after they finished the early morning job, that he and … [the other two members of his crew] went to a restaurant for breakfast.

Q. Had you seen anything in any of the time cards that you had reviewed that there had been any indication that there had been a break taken for a morning breakfast, or any type of rest period in any regard?

A. There was no indication on the time card for a break in time for this meal break.

Q. Did you get an understanding during … [this] testimony about how much time they took off for this breakfast?

A. I believe he indicated that an hour or so at the restaurant. (Tr. I, p. 93, ll. 1-15.)

At this point in the investigation, the breakfast meal and its duration, the fact that the meal was consumed in a restaurant, and the fact that the meal had not been noted on any of the crew’s time cards were added to Management’s concerns about the time and costs of the work, and the Grievant’s erroneous time card. Two of these items (the matter of the sit-down meal and the lack of notation on the time card) rested on interpretations of the MOA, but the duration of the meal was a matter that cried out for factual determination.

A crew of three had been at the restaurant, and each presented information about that event in the course of their interviews. While it was clear that all three were providing information about the same event, the details they presented differed, and, in at least one case, their input required interpretation.

The Company never determined how long the breakfast actually took. (See footnote 33.) The Company brief speaks of the matter as “an hour break to eat breakfast at a restaurant” (p. 4), “by all accounts, at the time the investigation was conducted, the actual time taken for this meal was anywhere from an hour to an hour and a half” (p. 11), “between travel time to the restaurant, and … eating the meal, easily an hour or more of time was spent….”[45] (P. 17.) As noted above, the Operations Manager indicated his conclusion was based on “testimony” from the affected employees.

Also as noted above, the investigation did not appear to have considered cleanup or travel time. At the very minimum, the investigation could have consulted some service such as MapQuest to determine how much travel time was likely to be needed in moving from the job to the restaurant and then to the WRC.

The Time Card. The arbitration record is silent as to how the Grievant’s incorrect departure time entered the system. Clearly, the Grievant had no direct access to the data bank that supplied the times printed on the time card. During his cross-examination, the LRC stated:

Q. Well, but in your mind at that time you believed that he had misreported his time, not only with respect to the meals, but also with respect to the two-hours on the 22nd; isn't that correct?

Q. You asked him about it, or did it simply come up? Did you bring it out in the context of, "What did you do then?" and that kind of thing?

A. There was a question, and … [the Grievant] responded he does not fill out his time sheet, so he does not know what the time was charged to. … [The Acting Foreman] was in charge of keeping the time.

A. Based upon the change in the policy for time reporting, every individual has responsibility for their own time and to make sure that the time reported for them is accurate. And that's why we have each individual sign their time cards.

As noted, there was only one interview of the Grievant. The LRC did not ask him what the crew did between the restoration of power and the time they went to breakfast (Tr. 1, p. 158, ll. 4-6) or how long he was at breakfast (Tr. 1, p. 156, ll. 7-9).

Perhaps of even more importance, the LRC did not speak to the Timekeeper. As I understand the record, at some time in the afternoon of September 22, 2005, the Grievant asked the Timekeeper to clock him out. The Grievant testified that this event took place at 1500 hours. The Employer has speculated that it may have been much earlier. The Timekeeper was the person most able to provide definitive information both about the time the Grievant asked to be clocked out and about how the departure time of 1700 was

printed on the form.[46] She was not included in the investigation.[47] She was not called as a witness. At hearing, the question arose about which party should have called her as a witness, but—in my view—the key question is, “Why wasn’t her input sought in the investigation?” She was a source of information that could have helped to establish the actual time the Grievant was clocked out and—more importantly—to explain why the time card reported that he had left at 1700 hours. Her input could well have served to support or to undercut the Grievant’s contention that he signed the card without paying much attention to it; and, it seems to me, her input was essential to a full and objective investigation.

A second type of opportunity to be heard involves management's hearing the employee's side of the story. In some instances the contract contains a specific requirement that the employee be given an opportunity to explain. In other instances arbitrators see it as an aspect of procedural fairness and sometimes call it a "due process" requirement.

In the absence of a specific contractual requirement for a hearing prior to imposition of discipline, some arbitrators—but not all—interpret the just cause provision to require a hearing as part of "industrial due process." As one arbitrator has asserted:

A just cause proviso, standing alone, demands that certain minimal essentials of due process be observed. One at least of those minimum essentials is that the accused have an opportunity, before sentence is carried out, to be heard in his own defense.[48]

As just noted, in the one interview of the Grievant that took place before he was terminated, the investigator did not ask the Grievant about the interval between power restoration and breakfast, or about how long the breakfast lasted. Had the Company held a pre-termination hearing in which the charges against the Grievant were identified, such matters as these would surely have been addressed by the Grievant as he used the opportunity to tell his side of the story—before the decision to terminate was made.[49]

It is apparent to me that had such a procedure been observed, the Grievant and both parties would have been well served. Had the Employer held such a session and provided the Grievant with the conclusions it had drawn, it is likely that the Grievant would have provided information such as cleanup, travel time, and the Grievant’s report of the time taken for breakfast, assertions that the Company could then have checked and weighed.

The company contends it has consistently[50] terminated employees for time theft or falsification issues…. (P. 5.)

The Company argues that the Grievant falsified his time card when he did not record on his time slip for September 22, 2005, the time taken that day to eat breakfast in a restaurant.

Two other members of the Grievant’s work crew participated in that breakfast meal and each of the two signed time cards that did not indicate there was a meal break on September 22, 2005. (Co. 14a and 14b and Un. 1, pp. 3 and 4.)

One of the other two members of the crew was terminated for an unrelated reason.

On Thursday September 22, 2005, you ate an overtime meal at Jims [sic] Restaurant. *** A review of your timesheet for this date doe not show a break in time to account for this meal period. Your actions in failing to account for this timesheet constitutes [sic] falsification of Company records…. (Un. 1, p, 4.)

This third member of the crew was suspended without pay for one day for his falsification of Company records.[51]

The Company argues that the Grievant received the harsher penalty because of his past record, but the Employer cannot have it both ways. If termination is consistently imposed for falsification—see Company brief, pages 36-37—the penalty for this third member should have been termination without regard to the punishment meted out to the Grievant.[52] It was not.

At the beginning of the Analysis section of this Opinion, I listed what I took to be the main areas of factual disagreement between the parties. I have addressed each of them during the course of my discussion and present the following summary of conclusions regarding these disputed items.

The only available evidence shows that the power was restored at the Bryan Avenue job at “9:32 on Sept. 22, 2005”, and that the Grievant and his fellow crewmembers left that worksite approximately forty-five minutes later, after cleanup of the worksite.

2. The rate of pay, if any, that was appropriate for a meal that the Grievant consumed on the morning of September 22, 2005.

Each party holds an arguable position about the rate of pay, if any, that was appropriate for the meal break that took place on the morning of September 22, 2005. That dispute is a matter of first impression and it is being addressed in a different proceeding. The facts of the case before me indicate that at the time of the meal, there was no clear understanding of the proper handling of the matter, even among management.

If the meal did not exceed 30 minutes and was on paid time at a rate consistent with the pay for the Grievant’s work time, he had no obligation to report the meal on his time card. Since the Employer had not made its position clear before the breakfast, failure to note the breakfast on the time card could be considered to be based on a good faith interpretation of the MOA rather than an attempt by deceit to get paid for a break that should have been on the Grievant’s own time.

The MOA provides for a paid lunch break; it does not contain a prohibition against taking a meal break in a restaurant. The only limits that MOA places on the paid meal break are that it be taken “based on operating circumstances” and if “work permits”. Each party holds an arguable position about the propriety of taking a sit-down meal during this break. That dispute is a matter of first impression and it is being addressed in a different proceeding.

The Employer failed to prove that the meal period exceeded 30 minutes. The basis of the Employer’s contention that the meal period took longer than is contractually allowed for a paid meal period is seriously flawed, and the only available evidence is that the meal did not exceed 30 minutes.

The termination letter charged the Grievant with having “left work at three o’clock p.m. (15:00)” and the Grievant testified that he left at 1500 hours. No weight has been given to the Company argument raised at arbitration that the Grievant may have left earlier.

7. The circumstances surrounding the issuance of Company Exhibit 7b, the Grievant’s time card for that day.

The Acting Foreman called in the Grievant’s work times, someone other than the Grievant—most likely the Timekeeper— entered the data into the computer and printed out the Grievant’s time card. There is no evidence whatsoever that the Grievant had any input into the process that resulted in the time card that showed—incorrectly—that he left at 1700 hours. Therefore, the Employer has failed to prove that the Grievant deliberately altered or falsified this work related record.

The Grievant signed the erroneous time card. The indisputable facts that he signed it after being on the job continuously for 32 hours and, one can safely assume, that he had been awake for an even longer period, makes credible—particularly in the absence of any evidence to the contrary—his claim that he signed it without paying sufficient attention to the text of the document. The Employer has failed to establish that he knew of the error when he signed, and thus it has not proven that the signing was tantamount to a deliberate falsification of time records.

The Company has raised legitimate questions about the Grievant’s behavior upon his return to work early in October, but even if the questions were to be answered as the Employer suggests, the Company has failed to prove clearly and convincingly that the Grievant’s actions cited in the termination letter were deliberate and done with the intent to falsify Company records. Moreover, the failure of the Company to follow a fair process as it moved to its conclusion is, by itself, sufficient reason to sustain the grievance. Had the Company held a pre-termination hearing at which it gave the Grievant the opportunity to respond to specific charges, the Grievant may have come forward with legitimate responses to the Company’s legitimate questions. It is also possible that the Grievant’s responses at such a session would have provided—or would have led to—information that the Company could have used to meet its burden of proof.

There is legitimate dispute about whether the Grievant was required to report the meal on the time card. In any case, the Company did not establish that the Grievant’s failure to make such a report constituted conduct on his part that was intended to deceive.

The Company failed to prove that the Grievant’s signature on the time card was placed there for the purpose of misrepresentation or that his signature on the document was calculated rather than careless.

Three employees were involved in the breakfast meal on September 22, 2005. None of the three reported that event on their time cards. The Company states that it considered the failure to record that period on their time cards to be time theft. One of the three was terminated for an unrelated reason, the Grievant was terminated, the third was given a one-day suspension without pay. Since the Company contends that it consistently terminates for time theft, since both the Grievant and the suspended employee participated in the same act, and since the Company considered that act to be time theft, the difference in penalty constituted disparate treatment. In my view this is true, notwithstanding the difference in record between the two and notwithstanding the fact that, in the Company’s eyes, the Grievant had committed an additional act that the Company considered to be time theft.

The first stage investigation was flawed in at least the following regards. The investigation proceeded on an incorrect assumption that the power at Bryan Avenue had been restored at 0800 and the investigator did not check Company records that would have corrected this error. There is no indication that the investigation considered clean up time or the time consumed in travel from the job site to the WRC in drawing conclusions about the duration of the meal break. These shortcomings contributed to the Company’s conclusion that the meal lasted one hour to one and one-half hours.

The Company gave little credence to the Grievant’s contention that he left work at 1500 hours. It did not address his contention that he was not the source of the data printed on his time slip. It gave no credence to his contention that he signed it without a proper review, in error because of fatigue. The Company concluded that the Grievant’s acts were intentional without interviewing the Timekeeper. The Timekeeper was the only person with direct knowledge of the source of the data that was placed on the time card, the time when the Grievant asked to be clocked out, and the Grievant’s demeanor or remarks when he asked to be checked out.

Following the first stage investigation, the Company did not give the Grievant notice of the charges against him and it did not provide him with an opportunity to address those charges before drawing the conclusions that led to his termination. Given the facts of this case, this failure adversely impacted procedural due process.

As far as the arbitration record reveals, the persons at the calibration meeting—the persons who made the decision to terminate the Grievant—made no independent review of the investigation and its conclusions, but relied solely on the report of the investigator.[53]

After reviewing the evidence and argument presented by the parties, and pursuant to the reasoning, considerations, and conclusions presented in the foregoing discussion, it is my determination that the Grievant was not terminated for just cause on October 12, 2005.

In remedy, the Company shall promptly offer to reinstate the Grievant and shall make him whole. The intent of this “make whole” remedy is that with regard to wages and benefits, the Grievant shall become as he would have been had he not been terminated on October 12, 2005; provided, however, that the Company may offset the Grievant’s back pay by the amount of the wages he has received in alternate employment between the time of his discharge and the date of this order.

For the purpose of assisting the Parties in the interpretation and implementation of the Remedy ordered in this Award, I retain jurisdiction until the parties jointly inform me that a mutually satisfactory implementation of this Award has been achieved.

At hearing, Company Counsel objected to the Union’s offer of two documents that related to the Company’s treatment of one of the other members of the Grievant’s crew. The objection challenged the relevancy of the documents and also cited a paragraph found on page 21 of the Collective Bargaining Agreement. That provision, a part of the Third Step of the grievance procedure, states:

Both parties are committed to timely resolution of all grievances. To this end, all pertinent information specific to a grievance must be presented to both parties at a reasonable time prior to arbitration and no new information may be presented at a future arbitration pertaining to this grievance.

I inquired whether the language had been interpreted in arbitration. The parties disagreed and no confirming data of either position was immediately available. I then indicated that upon my initial reading of the passage, the paragraph appeared to be written to protect each party from surprise evidence. Noting that the initial sentence of the paragraph addressed timely resolution of grievances and recalling that the cure for surprise evidence is to allow time for the surprised party to deal with the new information, I theorized that the provision might have been written to insure that such surprise not occur at an arbitration. I also took into consideration the fact that the offerings were Company documents and could be presumed to be known to them. The Union then offered as a third document, an April 5, 2006 letter from Union Counsel to Company Counsel asking for all material obtained by the Company “in investigating charges on WRC jobs during the pay period ending 9/25/05….” (Un. 8.)

I indicated to the parties that I admitted the documents, but would report in this Opinion the weight I gave to these exhibits.

The above summary addresses the discussion that is recorded on the second day of the hearing at page 203, line 24 through page 217, line 2.

Out of respect for the concerns voiced by Company Counsel, these documents were given no weight in my deliberations.

[1] A verbatim transcript of the proceedings was made by Wendy Alcock, R.P.R, of Depomax Reporting Services, Inc., 333 South Rio Grande, Suite F, Salt Lake City, Utah 84101.

[2] I use ellipses marks (…) within a quotation to indicate omission of a portion of a sentence; I use three asterisks (***) to indicate omission of words within two consecutive sentences as well as to indicate an omission of a passage consisting of one complete sentence or more.

[3] The arbitration record does not explain the acronym SAP.

[4] From the transcript:

Whenever there's an outage or a situation, he's the first one called to go and assess the outage and assess what they're going to need as far as material or crew or he can repair it himself. (Tr. II, p. 77, ll. 17-20.)

[5] Most, if not all, of the Company’s records state times using the 24-hour clock. I adopt that style in this document because—given the details of this case—that is most likely to avoid confusion.

[6] There is much in the record created by the Company that theorizes that the Grievant may have left work much earlier than 1500 hours on the 22nd and that, if he remained on Company premises until 1500 hours on that day, he performed little or no work for the Company that afternoon. As Company Counsel stated, “… [T]here’s pretty good evidence that he went home right after he got back to the yard, and actually took more than the two hours … [in dispute].” (Tr. I, p. 124, ll. 4-7) I gave no weight whatsoever to these contentions. As Company Counsel stated, Company decision makers “gave him the benefit of the doubt.” (Tr. I, p. 124, 10-11.) The fact is that the Grievant was charged with having left the workplace at 1500 hours—see Jt. 3—and that is all that is relevant about this aspect of the matter before me.
I note here that, given the circumstances of the work marathon, the parties agree that under the CBA, the Grievant was entitled to straight time pay for non-work rest time that took place after his departure from the workplace and before he had an “appropriate break in hours”. Given the facts of this case, that would have been from 1500 to 1700 hours on Thursday, September 22, 2006.

[7] The CBA defines “Regular Employee” as follows:

Employment in a regular position requiring eight hours per day, five days per week of a regular work week. All Company benefit programs are available to this classification. (Jt. 1, §3.1.)

There is a similar definition for “Regular Part-time Employee.

The MOA provides for a workweek of 4 ten-hour shifts at the WRC. The MOA also provides, “The hours for the shift on which the employee is scheduled for that day; [sic] is considered their [sic] ‘normal work day.’” (Jt. 2, p. 1.)

[8] As I understand the Company’s accounting procedure, each employee is affected in the following way: all costs for a crew’s time is assigned to each member of that crew from the time an assignment is made until the employee gets another assignment or goes off duty. (Tr. I. p. 50, l. 19-p. 51, l. 6.)

[9] From the transcript:

In field operations under … leadership [of the Managing Director of Field Operations], when we have an issue that will lead to a disciplinary action, all of his direct reports -- at that point in time there was [sic] eight directors of operations, we get together, listen to the case at hand and make a determination based upon information from labor relations on what we've done in similar occurrences in the past or what have you, and make a determination. (Tr. II, p. 16, l. 22-p. 17, l. 4.)

[10]In an earlier passage, the Company had specified the similar conduct: “[H]e would take extended meal breaks, or seek overtime payment for work which had not been performed by him and his crew”. (Br. p. 4.)

[11] “The Company has made serious accusations against Grievant of time theft, dishonesty and falsification. The Union believes it should prove its case beyond a reasonable doubt and arbitrators have frequently so held for such charges. [Citations omitted.] At a minimum, the Company must prove its case by clear and convincing evidence.” (Br. p. 16.)

[12] Marvin F. Hill, Jr. and Anthony V. Sinicropi, Evidence in Arbitration, 2^nd ed. Washington: The Bureau of National Affairs, 1987, p. 37. Hereinafter cited as Evidence.

[13] Norman Brand, Editor-in-Chief. Discipline and Discharge in Arbitration. Committee on ADR in Labor and Employment Law Section of Labor and Employment Law, American Bar Association; Washington: The Bureau of National Affairs, 1998, p. 335. Hereinafter cited as Brand.

[14]Evidence, pp. 37-38. Chapter 5, “Quantum and Burden of Proof” (pages 32 to 47) contains a helpful discussion of the matter.

[15] Dennis R. Nolan, “Standards” in Theodore J. St. Antoine, ed. The Common Law of the Workplace, The Views of Arbitrators. Produced by the National Academy of Arbitrators, Washington: The Bureau of National Affairs. 1998, pp. 179-180.

[16] Marlin M. Volz and Edward P. Goggin, Co-Editors. Elkouri and Elkouri: How Arbitration Works, 5th ed., Washington: The Bureau of National Affairs, 1997, p. 908. Hereinafter cited as Elkouri.

[17] Steven M. Wolfe, “Evidence in Arbitration” in Labor and Employment Arbitration, 2d. ed., Tim Bornstein, Ann Gosline and Marc D. Greenbaum, General Editors. Newark: Matthew Bender, Inc.-LexisNexis, 2001, Vol. 1, §5.06[1] (pg. 5-16). The footnote that follows the quoted passage discusses the development of arbitral thinking on this matter. Hereinafter, the publication will be cited as Bornstein.

[18] Marvin F. Scheinman, Evidence and Proof in Arbitration, Cornell University, New York State School of Industrial Relations, 1977, p. 9.

[19] A standard work in labor arbitration cites the following statement:

[I]t is common to include the right to suspend and discharge for “just cause.” “justifiable cause,” “proper cause”, “obvious cause,” or quite commonly simply for “cause.” There is no significant difference between these various phrases. (Worthington Corp,, 24 LA 1, 6 (McGoldrick, Sutton, & Tribble, 1955.)

Alan Miles Ruben, Editor-in-Chief, Elkouri and Elkouri: How Arbitration Works, 6th ed., Washington: ABA Section of Labor and Employment Law, The Bureau of National Affairs, 2003, p. 932. Hereinafter cited as Elkouri.

[20] My list derives from observations by Arbitrator Howell Lankford, Painters District Council No. 55 and the City of Portland, Oregon (unpublished, 1997) and Arbitrator Jonathan Dworkin, Air Force Logistics Command and AFSCME, Local 221, 91 LA 946, 950 (1988). The quoted phrase is from Dworkin.

[21] Although my decision in this case does not rest solely on the following technicality, the Company terminated the Grievant for acts (the failure to disclose the restaurant meal and the signing of the time sheet) that—in the termination notice—were deemed to constitute “Deliberate alteration or falsification of Company and/or work related records” (Jt. 3). In my view, the statements in the termination letter establish the charges against the Grievant. In its argument, the Company added the contention that the acts also constituted “time theft”. (Br. p. 4.) During the course of testimony by the Labor Relations Consultant, the Company seemed to suggest that the following provision of the Company’s Discipline Guidelines (Co. 21) also applied to the case before me: “unethical or willful deceptive conduct or work practices”. (Tr. I, p. 134, l. 21-p. 135, l. 22.)

Since the Guidelines list each of these matters separately under the heading, “Examples of serious misconduct and serious performance problems include the following”, I must assume that the Employer considered each of the listed examples to be a separate and distinct category. I note that the discharge letter issued in the 2004 matter (Co. 1) listed two charges:

Your employment with PacifiCorp is being terminated for your violations of Company Policy and serious misconduct. Specifically:

· Deliberate alteration or falsification of Company and/or work related records

· Unethical or willfully deceptive conduct or work practices.

[22] As one authority has put it:

There are some kinds of activities that every employee should know will not be tolerated on the job. For misconduct of this kind, "forewarning or foreknowledge" is given by common sense rather than by any specific written rule or explicit oral direction. To put it another way, notice that actions in this category are wrong is "implied."

***

As a rule, discipline may be imposed without specific advance notice for two classes of misconduct:

Socially disapproved—actions that society as a whole prohibits or disapproves, including:

· misconduct involving property, such as theft, willful destruction of property, or arson;

· misconduct directed against persons, such as threats of bodily harm, unprovoked assaults, police brutality, carrying of firearms on company premises, rape, or sexual harassment;

· other illegal or socially unacceptable misconduct such as selling drugs, many forms of gambling, and the like.

In practice, most companies have rules or even contract provisions covering socially disapproved misconduct. But there are some situations, however serious, that an employer might not anticipate.

***

Industrially disapproved—activities that violate fundamental
principles of the employer-employee relationship, including:

· refusing to follow legitimate work orders (insubordination);

· neglecting one's duties (e.g., by sleeping, leaving one's
work station in order to avoid work, being absent too
frequently, getting drunk during working hours, leaving work early without permission);

· poor work performance;

· dishonesty in any form (e.g., falsifying a time card, fraudulently collecting incentive pay);

· sabotage

Adolph M. Koven and Susan L. Smith. Just Cause The Seven Tests, 2d ed. Revised by Donald F. Farwell, Washington: The Bureau of National Affairs, 1992; pp. 31-34. Internal citations omitted. Hereinafter cited as Koven.

[23] In contrast to an employee who had bid into and been appointed foreman, a “white slip” foreman is the senior person on the crew. In the instant case, the actual foreman was off on extended sick leave. (Tr. II, p. 64, ll. 23-25)

[24] I note that with respect to the first termination—and in contrast to the record in the case before me—the Company presented specifications about communication and training. The Company’s written response to the 2004 grievance stated:

The Union asked if the Company had informed employees about the policy and procedures for recording this time. The seriousness of truthfulness in time reporting and other Company policies is stressed to employees both verbally and in writing at each location. … [The Grievant] was in attendance at meetings where these issues have been addressed. Attached are notes from stand up meetings dated March 2, May 18, and May 25, 2004 where these issues were discussed. (Co. 2, p. 1; emphasis added.)

[25] The following definition is from Webster's Third New International Dictionary, Unabridged. Merriam-Webster, 2002. http://unabridged.merriam-webster.com (18 Aug. 2006):

Main Entry: 1de·lib·er·ate ***

1 : characterized by or resulting from slow careful thorough calculation and consideration of effects and consequences : not hasty, rash, or thoughtless ***

2 : characterized by presumed or real awareness of the implications or consequences of one's actions or sayings or by fully conscious often willful intent <deliberate mischief> <a deliberate lie> ***

3 : slow, unhurried, and steady as though allowing time for decision on each individual action ***

synonyms CONSIDERED, ADVISED, PREMEDITATED, DESIGNED, STUDIED: deliberate always indicates full awareness of what one is doing and, used precisely, implies careful and unhurried consideration of procedures or consequences

[26] From the same source (30 Aug 2006):

Main Entry: fal·si·fi·ca·tion ***

1 : the act or an instance of falsifying : as a : a counterfeiting (as of a work of art) b : a usually willful misstatement or misrepresentation : DISTORTION ***

2 : the act or an instance of showing something to be false or erroneous

3 : a fraudulent alteration of or tampering with (as an account or judgment)

[27]This third document consisted of notes taken at an interview taken after the decision to terminate the Grievant had been made. It was offered at the arbitration not to substantiate the Company’s case against the Grievant, but solely with respect to the Union’s contention about disparate treatment. The document and admitted into the record on that limited basis. (Tr. I, pp. 126-27.)

[28] There are suggestions throughout the Employer’s case that the Company suspected that the crew restored power at 0800 but delayed reporting until 0932. If such a suspicion did exist, the Company has presented no substantiating evidence.

[29] Earlier in his testimony, the LRC was asked a background question about the time line:

Q. Did you ask to receive any additional documents before you began talking to crew members?

A. … [The GSM] usually provides a time line, and he would have provided a document that showed the crews involved, the members involved. And he would have been -- and it would have shown from the time they came on until the time they had gone off. In that, he would have also provided me with time sheets or any other documents to support the information that we were going to be looking at.

Q. Did you have this information in hand before you actually began any formal interviews?

A. Yes. (Tr. I, p. 81, ll. 4-15.)

[30] Employer witnesses referred to the “CAD Ops” on several occasions. One explained:

It's the dispatch system record that they track outages, when they occur, when they're finished, when the crew shows up. (Tr. I, p. 48, ll. 7-9.)

However, the record does not provide an explanation of how the CAD Ops record relates to the dispute before me. For example, if the CAD Ops received data input directly from the system as to when power is restored to a particular address, that information would be more persuasive in establishing restoration time than would a phone call from a human.

[31] The following exchange took place during cross-examination of the Director:

Q. You didn't speak with … [the acting foreman] yourself in the investigation, did you?

A. No, I did not.

Q. Or any of the employees in this?

A. No, I did not.

Q. You just relied on what … [the LRC] was telling you at the calibration meeting; is that correct?

A. …, [Y]es. (Tr. II, p. 26, ll. 18-25.)

[32] In its post-hearing brief, the Company states, “There were no less than three separate witness statements which confirmed that between travel time to the restaurant, and actual sit-down time eating the meal, easily an hour or more of time was spent … [by the Grievant and his two fellow workers]”. (P. 17.)

[33] During his cross examination, the Director of Operations was asked about how the time the meal took figured in the “calibration meeting”; that is, when the Company decided to discharge the Grievant:

Q. Was it presented to you as to how long this break was in this calibration meeting?

A. We had an approximation of time. But there was [sic] no absolute specifics that the duration of time in the restaurant was completely outlined or discovered. Testimony indicated an hour or so, as I recall. (Tr. II, p. 26, ll. 7-12.)

By “testimony”, the Director meant the statements of workers as captured in the notes of their interviews. (Tr. II, p. 55, l. 18-p. 56, l. 1.

[34] The matter is confusing, to say the least. During cross-examination of the Grievant’s immediate Supervisor, the following exchange took place:

Q. Now, when we talk about this meal issue, sir, you were kind of mixed up about it yourself. You thought, Gee, I don't think these guys should be paid anything if they're in overtime. And … [the LRC] said, "No, they should get rest time," right?

A. Uh-huh. (Tr. I, p. 252 ll. 6-11.)

During testimony by the LRC, the following exchange took place:

Q. (Mr. Sandack) So, in fact, if a person were taking a 30-minute break during their regular shift when they were in a double-time situation, they should always be reporting that as rest, is that your position?

A. No, my position is if they are taking an overtime meal, an overtime meal break, then they need to record those hours for the overtime meal break as time not worked.

Q. Uh-huh. Okay. It doesn't matter whether they're in a restaurant, or eating on the fly, or going to the grocery store and picking up chicken, they should report that if it occurs during their regular shift; is that right?

A. If it's an overtime meal that they are consuming.

Q. Even though it's on their regular shift, right?

A. If they're consuming their overtime meal, because their overtime meal is time not paid.

Q. Well, it is paid. It's paid straight rest time.

A. Only if they're in that provision of premium pay. (Tr. I, p. 169, l. 21-p. 170, l. 16.)

During the cross-examination of the Operations Manager the following discussion took place:

*** And eating on their own time on an overtime situation was clearly spelled out in the agreement.

Q. Which means that they don't get paid anything at all, right?

A. Correct.

Q. So that was your understanding, right?

A. Correct.

Q. And so that's different than what … [the LRC] later explained to the management, that they should get Shift Before Shift Rest time?

A. That was the avenue to afford them on our current pay codes, to put them in there where [they?] get straight time for the 30 minutes for a midshift meal. (Tr. II, p. 30, l. 16-p.31, l. 4.)

[35] Apparently, the Director was referring to language in the document “Payment for Meals During Extended Work Hours” that is part of the CBA.

[36] The Director also contended that persons on overtime would be “afforded a reasonable amount of time to eat, and time to eat would be on their own time.” (Tr. II, p. 19, ll. 14-15.)

[37] For the convenience of the reader, I reproduce pertinent parts of the language:

Payment for meals will be made to bargaining unit classification employees and management personnel when extended work hours are required by the Company. The provisions of Section 4.2.9, 10 and 11 [sic] of the agreement between I.B.E.W. Local 57 and the Company cover the cases of extended days and early call out. Employees will be allowed a reasonable period of time to eat meals provided under this policy but will be on their own time during the meal period - time off for meals is not subject to overtime pay.

The Company will reimburse employees $7.00 for breakfast, $8.00 for lunch, and $17.00 for
dinner.

The type of meal to be reimbursed will be determined by the hour during which the meal would
normally be furnished.

The type of meal to be reimbursed will be determined by the hour during which the meal would normally be furnished. The following time periods will be used in making this determination.

***

Meal allowances will be disallowed for bargaining unit employees if no overtime is reported for the corresponding day that is marked for the meal allowance.

[38] It appears that Section 4.2.9 of the CBA refers to compensation for the costs of a meal rather than payment for the time involved in a meal break. The relevant portion of the provision states, “Employees who are required to work more than two (2) hours overtime after the regular quitting time shall be compensated for a meal by the Company and the first subsequent meal at five and one‑half (5 112) hours with additional meals at intervals of not more than six (6) hours thereafter while they continue to work. Meals will be compensated by the Company for employees who work more than two (2) hours before their regular starting time, including holidays and regular days off. Breakfast compensation will be provided for employees who report to work one and one-half hours (1 ½) or more before their regular starting time, including holidays and regular days off. (breakfast compensation only) [sic] My emphasis.

[39] The Director of Operations testified:

I mean, the principle that we set up with the joint committee was to eat on the fly. We want the employees to have access to nutrition, obviously. So "eat on the fly" means at some point in time through their shift they will have their midshift meal.

Q. (Mr. Sandack) And they're entitled to 30 minutes paid, are they not?

A. Correct. (Tr. II, p, 25, ll. 17-24.)

The Company did not address why its concern about access to nutrition did not apply when an employee was working during his regularly scheduled shift, but on overtime.

[40] From Discipline and Discharge in Arbitration:

Any reason the employer intends to rely on for a discharge must be either stated in writing or communicated to the employee, unless special grounds exist that excuse the failure to present the reasons for management’s actions at the time discipline is imposed. Surprise and lack of adequate notice about the basis for disciplinary action generally prejudices the union and the employee in investigating the charges and preparing a defense. “[T]he discharge*** must stand or fall upon the reason given at the time of discharge.” The employer may not give the reasons for the discharge and then alter or add to them at the arbitration hearing.

Brand, p. 42.

[41] From the transcript:

I didn't realize that she hadn't clocked me out at 3:00. I assumed it when I told her to clock me out. Basically timekeepers, every time that they'd clock me out, they would clock you out at that time. I missed that. I did sign it and turned it in, not realizing that she had put me on double time until 5:00. (Tr. II, p. 94, ll. 11-16.)

[42] Brand, “Due Process” in Bornstein, Vol. 1, §15.05[2] (pg. 15-17). Internal citations omitted.

[43] Brand, p. 39.

[44]The chart was introduced during the testimony of the LRC who used it (Tr. 1, p. 107, l. 19-p. 108, l. 3), not during the testimony of the GSM who had created it (Tr. I, p. 108, ll. 20-22) and who had preceded the LRC on the stand.

[45] The Company brief states:

During the hearing, the union went to great lengths to argue the time was less than one hour, and that this could arguably be construed as the paid lunch crew members would be entitled to during their regular shift.
Unfortunately for the union and … [the Grievant], this is a belated argument which was raised after the fact. (P. 17.)

The Company did not make clear what it mean by “after the fact.” It may be that it had in mind the following provision of the CBA:

Both parties are committed to timely resolution of all grievances. To this end, all pertinent information specific to a grievance must be presented to both parties at a reasonable time prior to arbitration and no new information may be presented at a future arbitration pertaining to this grievance. (Bold as in the source.)

I addressed this provision on the second day of the hearing in relation to different matters and I indicated to the parties that I would include in this document further remarks on the language and its impact on the arbitration. I do so as an appendix to this Opinion and Award.

[46] Little or no information was provided about the system that produced the time card. The documentary evidence (Co. 7a, 7b, 14a, 14b, and 18 a and b) suggests it was a computerized system. Some such systems create a “journal” on the hard disk that record times of operation such as when data is entered and when a “print” order is given.

[47] During cross-examination, the LRC was asked about the Timekeeper:

Q. And based on your investigation, he also told you, as we go through his statement to you, that he spoke with … [the Timekeeper] and checked the time at 3:00, and she gave him the time sheet. He told that you, right?

A. Yes.

Q. Did you ever talk to … [the Timekeeper]?

A. No.

Q. Never did?

A. No.

Q. It wasn't part of your investigation?

A. No.

Q. Never thought to go to … [the Timekeeper] and say, "He said he was right here at 3:00"?

A. No. (Tr. I, p. 181, l. 22-p.182, l. 10.)

[48] Brand, “Due Process” in Bornstein, Vol. 1, §15.05[2] (pg. 15-17). Internal citations omitted.

[49] A footnote in a 2003 case involving these same parties that was submitted by the Company for my review states, “Pursuant to the mutual practice of the parties, discussions regarding the allegations made and any defense of the accused are routinely addressed at the Third Step. In addition, any new evidence surrounding the dispute is discussed and considered at this time. ***.” (Fogelberg.) There was no indication in the record before me that the Third Step of the grievance procedure was a contractually devised substitute for a pre-termination hearing.

[50]Both of the following entries come from Webster's Third New International Dictionary, Unabridged. Merriam-Webster, 2002. http://unabridged.merriam-webster.com (6 Sep. 2006):

Main Entry: ***: adverb

: in a consistent manner:

Main Entry: con·sist·ent *** adjective

***

1 archaic : marked by unchanging position or by firmness, stiffness, solidarity, or coherence … : stationary, changeless, and enduring …

2 a : marked by harmony, regularity, or steady continuity throughout : showing no significant change, unevenness, or contradiction *** b : marked by agreement and concord *** : coexisting and showing no noteworthy opposing, conflicting, inharmonious, or contradictory qualities or trends

[51] He did not serve the suspension; possibly because—at his interview—he was told that the interview would not result in suspension. (Tr. II, p. 181, l. 20-p. 182, l. 11.)

[52] The determination of the appropriate level of discipline is separate from any consideration whether that penalty should be imposed because of a flaw in the Company’s observation of the employee’s rights.

The Arbitrator—in the second of two cases involving this Union and this Employer that was submitted by the Company for my review—presented the Company’s argument, “The Company has a longstanding practice of terminating employees for time fraud or falsification of company documents,” and found, “The Company has always discharged employees who have engaged in theft of time.” (Lundberg, 2005, at pages 7 and 14.)

[53] From Just Cause: The Seven Tests:

The fair investigation test suggests that the role of the upper management official is comparable to that of the arbitrator to the extent that both function as fair and objective reviewers of evidence. But the manager has an additional task that the arbitrator does not have. Assuming that his or her review discloses some defect in a subordinate’s handling of the case, the manager may be able to save the day by investigating further and coming up with additional evidence before the disciplinary action is taken. If the defect is allowed to stand, on the other hand, the employer’s case may simply slide from bad to worse, frustrating the whole purpose of the manager’s participation in the decision-making process.

Koven, pp. 232-3.

Date of Hearing:	April 27 and June 9, 2006

Place of Hearing:	Salt Lake City, Utah

For the Employer:	Scott E. Ortiz, Esq. Willimas Porter Day Neville PC P.O. Box 10700 Casper, Wyoming 82602-3902

For the Union:	Arthur F. Sandack, Esq. 8 East Broadway, Suite 510 Salt Lake City, Utah 84111

BREAKFAST	2:01 a.m.	to	9:59 a.m.
LUNCH	10:00 a.m.	to	1:59 p.m.
DINNER	2:00 p.m.	to	2:00 a.m.

Schedule	Shift Hours	FTE’s Required	Shift - Diff
M - Th	0700 - 1700	6	NO
M-Th	1300 -2300	6	YES
F – Su	0700 - 1700	6	YES

Company Witnesses
Position	Referred to in Opinion as:
Director of Labor Relations, PacifiCorp
Manager of the Graveyard Shift at the Wasatch Restoration Center (WRC)	Graveyard Shift Manager, GSM
Labor Relations Consultant. A Company official who is responsible for labor relations with Local 57 IBEW	Labor Relations Consultant, LRC
Shift Manager, Day Shift (SMDS) at WRC, Grievant’s direct supervisor	Day Shift Manager[A]
Shift Manager, Day Shift at WRC	Day Shift Manager[B]
Field Operations Manager, WRC	Field Operations Manager
Director of Operations for Utah North	Director of Operations, Director
Union Witnesses
Grievantf	Grievant
Working Foreman at WRC	Acting Foreman, White Slip Foreman
First Responder, aka Troubleshooter[4] at WRC	First Responder
Shop Steward at WRC	Shop Steward
Senior Assistant Business Manager, IBEW Local 57	Senior Assistant Business Manager,