FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 05-02821

RWDSU LOCAL 705,

Union,

and

H. J. HEINZ COMPANY,
Employer.
________________________________/

OPINION OF THE ARBITRATOR

September 7, 2005

After a Hearing Held July 12, 2005

At the Holiday Inn Express in Holland, Michigan

For the Union: For the Employer

Katherine Smith Kennedy Robert H. Shoop, Jr.

Pinsky, Smith, Fayette & Kennedy, LLP Thorp, Reed & Armstrong, LLP
1515 McKay Tower One Oxford Centre
146 Monroe Center Street, NW 301 Grant Street, 14th Floor
Grand Rapids, MI 49503-2824 Pittsburgh, PA 15219-1425
 I. The Parties And Their Dispute

The H. J. Heinz Company (“Heinz”, “Company”, or “Employer”)

produces pickles, vinegar, and sauces at its plant in Holland, Michigan,

where workers are represented by Local 705 of the Retail, Wholesale and

Department Store Union, UFCW-AFL-CIO-CLC (“Union”). Relations

between the parties are governed by a contract running from November 10,

2001 through November 13, 2004 (JX 1 or “CBA”).

On the morning of May 3, 2004, at 7:35 AM, Grievant, a sanitation

worker at the plant, called in to say that she would be late for her shift,

which had begun earlier at 6:00 o’clock (CX 4). Afterward, her husband

drove her to work. When they arrived at the plant, the guard at the gate told

her that she had been locked out of the Company’s computer system and to

tell her husband to wait for her. Grievant called the Company’s human

resources department and was told to go home because there was no work

for her that day.

Grievant then called the Union’s secretary/treasurer, who in turn

called the manager of human resources (“HR manager”), who confirmed that

there was no work for Grievant that day and that her services were not

needed. After the secretary/treasurer got back to Grievant, she returned

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home with her husband. On May 5, 2004, Grievant was given a warning

notice for an unreported absence (JX 2).

Grievant signed a grievance form on May 7, 2004, which the

Company received on May 11, 2004 (JX 2). In response, the Company

agreed to reduce the penalty to an unexcused absence, an offer which the

Union declined. Extended settlement negotiations failed to produce a

resolution to the dispute, so, by letter dated March 1, 2005, the Union

demanded arbitration (JX 2).

II. The Arbitral Hearing And The Positions Of The Parties

A hearing was held on July 12, 2005, at a neutral location in Holland.

The Company conceded that this is a disciplinary matter, in which it has the

burden of proof. The Company contends that it acted pursuant to a work rule

promulgated in 1989, as a result of Grievance #89037-B (CXs 1-3):

EFFECTIVE TODAY, OCTOBER 09, 1989, THE COMPANY

WILL NO LONGER BE OBLIGATED TO PROVIDE WORK FOR
ANY EMPLOYEE WHO REPORTS TO WORK MORE THAN
TWO HOURS AFTER THE START OF HIS/HER SHIFT. CX 1.

The Company claims that Grievant was over two hours late on May 3, 2004,

and thus it was not obligated to provide her with work.

For authority to promulgate work rules, the Company relies on CBA,

Article X, § 3:

The Union recognizes the right of the Company to establish

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 reasonable rules and regulations for the safe, sanitary and efficient
conduct of the Company’s business and reasonable penalties for the
violation of such rules. The Company has established such rules,
regulations and penalties, will post them in each department, and
agrees to apply such penalties indiscriminately to all employees. The
Union has the right to object under the grievance procedure to any
rule or penalty established hereunder. Company Brief @ 3, 4.

In its brief, the Union states its claim as follows:

The Union claims the grievant was disciplined without just cause in
that she was issued an “unreported absence” rather than a tardy, in
violation of the Collective Bargaining Agreement when she was late
to work on May 3, 2004. Union Brief @ 1.

The Union argues that back wages for Grievant is not the only issue

presented—that the overriding issue is one of contract interpretation. The

Union contends that the matter is governed by the Excessive Tardiness

Control Program, which provides in pertinent part:

(A) Employees shall be considered tardy if they are not at their work
stations at their scheduled start times.

(B) Excessive tardiness shall warrant the following disciplinary

action:

11th Tardy Oral Warning

12th Tardy Written Warning
13th Tardy Paper Suspension
14th Tardy Discharge

… CBA @ 28.

The Union denies that Grievant was over two hours late on May 3,

2004, and further denies that the putative work rule was posted. Grievant

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had a subsequent unreported absence on September 2, 2004, for which the

penalty was increased by virtue of the earlier incident in dispute. The Union

requests a remedy that will make Grievant whole.

III. Discussion

III.A. What The Case Is Not About

In order to better focus on the central issues, it is efficient to dispense

with some of the parties’ arguments early on. In opening statement,

Company counsel cited Paragraph (B) of the Excessive Absenteeism Control

Program, for the proposition that Grievant had a responsibility to notify the

Company before her shift began:

An employee who knows he or she will be absent from work for any
reason must notify the Company before his or her scheduled shift
begins. (If absence is to be for more than one day, the Human
Resources Department must be notified).

If an employee fails to do so, his or her absence will be considered as

unreported, and he will be subject to disciplinary action as outlined
below in Paragraph (C)(6). CBA @ 27.

Grievant was not absent on May 3, 2004; rather, she was tardy. It is

undisputed that she actually showed up for work that day, albeit quite late.

She did not absent herself from the plant voluntarily; instead, the Company

refused to let her work. Thus, the Excessive Absenteeism Control Program is

inapplicable to the facts. The applicable program is the Excessive Tardiness

Control Program, CBA @ 28.

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 Similarly, the Call In Procedure, cited by Union counsel in opening

statement and in the Union Brief @ 4, pertains to absences, not tardies:

Employees who will miss a regularly scheduled shift for any reason
are expected to notify the Company before the start of the shift by
calling the following number (24 hours a day) (616) 392-5757. The
employee shall state his or her name, reason for absence and expected
date of return to work. In case of extended unplanned absence, the
employee must call once per day to advise the Company of his or her
status. The employee is expected to continue to call the Company
until his or her message can be taken by the person representing the
Company – in case of “busy” signal or no answer. Failure to notify the
Company may lead to disciplinary action. CBA @ 29; emphasis
supplied.

The Call In Procedure by its terms applies to absences. As previously noted,

this case concerns a tardy. Nothing more need be said about contractual

provisions which apply to absences.

III.B. Work Rule Principles

Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003),

has this to say about work rules:

Management has the right to establish unilaterally reasonable rules

governing attendance. Id. @ 774; footnote omitted.

As to the posting of rules, the treatise states:

The decision as to whether plant rules are to be posted is a part of the

managerial function, and the posting of rules ordinarily is not a
condition precedent to management’s right to discipline employees for
the violation of them. However, except where the nature of the
prohibited activity is such that employees should know it is improper,
rules must be communicated effectively to employees in some
manner.

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 Thus, in the absence of posted rules, management bears the burden of
proving that employees knew, or should have known, of the policy
before it can be enforced. Further, if the rules are not posted,
management’s decision to discipline an employee for a violation may
be vulnerable to attack on the ground of discrimination. Especially
when management chooses to fix discharge as the appropriate penalty
for a violation of a rule, no doubt should be left in the minds of the
employees as to the existence and nature of the rule and the
consequences for its violation. Id. @ 780-781; footnotes omitted.

The Elkouri treatise also contains these cautionary remarks, with

which the Union appears to agree implicitly (Union Brief @ 7, 8-9):

Unilaterally issued work rules may cover matters that the NLRA
indicates would be subject to the mandatory duty to bargain. On
demand, management must bargain with respect to such rules that
affect conditions of employment, and the filing of a grievance
challenging a rule might be considered by an arbitrator “as a demand
to negotiate on the subject.” Even where the agreement gave
management a general right to make and modify rules “for purposes
of discipline and efficiency,” arbitrators have held that “after they
have once become a subject of mutual agreements, very specific
bargaining and agreement are required to make their modification
again exclusively a matter of company decisions and
announcements.” Although a rule affects conditions of employment,
such as one establishing an absenteeism and tardiness program, a
union may lose its right to bargain over the substance of the program
if previously it has refused to bargain over work guidelines. Id. @
768-769; footnotes omitted.

In applying these general principles to this particular case, certain

specific provisions of the labor agreement between the parties must be

honored. First, in the instant case, posting of work rules is a contractual

requirement. CBA, Article X, § 3. Second, the Union has the right to grieve

any rule or penalty that the Company establishes. Id. With preliminaries out

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of the way, attention can be turned to the core case.

III.C. The Company’s Burden

The Company has not borne its burden of proving compliance with

the posting requirement of Article X, § 3. Elkouri & Elkouri, supra, @ 781.

Although the Company introduced records from its files which indicate that

the putative work rule may have been posted back in 1989 (CXs 2&3), it

produced no witness with personal knowledge that it actually had been.

More importantly, it produced no evidence that it was posted at any time

during the applicable contract period, November 10, 2001—November 13,

2004.

In contrast, the Union president, a plant employee for 18 years,

testified that he was unaware of any 2-hour-late work rule and had never

seen one posted. He even stated that he had been more than two hours late

on occasion but had never been locked out. Similarly, the Union’s

secretary/treasurer, a Heinz employee for 24 years, testified that she was

unaware of any such work rule. Grievant, too—not unexpectedly (Company

Brief @ 6-7)—denied knowledge of the rule.

In an effort to establish the rule’s existence, the HR manager testified

that it had been applied within the past year to 3rd-shift employee, Cedric

Cruz, who called in prior to the start of his shift and reported that he would

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be late. When he showed up over two hours late, his supervisor sent him

home and charged him with an unexcused absence.1 However, the Company

did not call the supervisor as a witness. On cross-examination, the HR

manager stated that she did not bring any records of the Cruz incident with

her, because she did not have time to retrieve them.

While it may be that a work rule can be established on the basis of

past practice, Elkouri & Elkouri, supra, @ 780, fn 793, evidence of a single

incidence (Company Brief @ 6) hardly proves a practice. Teamsters, Local

214 and Shiawassee County Sheriff, 05-1 ARB ¶ 3096 (Cornelius Arb

2005); UFCW Local 867 and Cargill Salt Co, 03-2 ARB ¶ 3560 (Cornelius

Arb 2003); Okonite Co, 01-2 ARB ¶ 3830, 28 LAIS 3805 (Cornelius Arb

2001).

In any event, testimony about the Cruz incident did nothing to

establish the posting of the disputed rule either in 1989 or during the

applicable contract period, a requirement reiterated under Miscellaneous:

Other rules and regulations which are in effect or placed in effect at a

later date shall be posted in the factory prior to enforcement. CBA @
26; emphasis supplied.

For these reasons, the grievance must be sustained.

1
As opposed to an unreported absence, with which Grievant was charged. Compare ¶¶ (C)(1) & (2), CBA
@ 27.

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 IV. The Remedy

Grievant has an abysmal attendance record. If she is absent one more

time this year, she may be terminated under the terms of the contract. She

was in the same tenuous position last year. She complains of various aches

and pains and has a Family and Medical Leave Act agreement with the

Company.

When Grievant does not show up for work, the other sanitation

employees have to shoulder her workload. It is no wonder that the HR

manager seemed angry when contacted by the Union’s secretary/treasurer,

inquiring about Grievant’s “rights”. Indeed, this entire incident appears to

stem from the HR Manager’s frustration over having to deal with Grievant’s

chronic attendance problems.

Probably no arbitrator enjoys awarding money to slackers. See, for

example, PACE Local 731 and Mead Corporation, FMCS No. 00-02983

(Cornelius Arb 2001) (upholding discharge of problem employee who was

more interested in pickup truck than work); SEIU Local 79 and Boulevard

Temple Methodist Home, 104 LRP 29256 (Cornelius Arb 2004) (reinstating

marginal employee without back pay and putting him on probation).

However, in this case, any demonstration of a valid work rule promulgated

and posted in accordance with the requirements of the CBA was virtually

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nonexistent. Consequently, the arbitrator feels that he has no alternative but

to make Grievant whole, as requested.

Although the precise time at which Grievant showed up for work on

May 3rd is a matter of some dispute, the parties’ positions are off by only a

few minutes. Thus, awarding her 6 hours’ back pay based upon an 8:00

o’clock arrival makes the arithmetic simple and can’t be very far wrong.

What would be wrong would be to award her a full day’s pay for May 3, as

the Union requests (Union Brief @ 11). “A fair day’s work for a fair day’s

pay.”

Because of Grievant’s discipline for May 3rd, she was suspended 3

days under Paragraph (C)(6) of the Excessive Absenteeism Control

Program, for her September 2nd unreported absence:

If an employee acquires two (2) unreported absences, whether

excused or not, he or she will be subject to a three day suspension
with out pay. … CBA @ 27.

Grievant is entitled to three (3) days’ back pay for her September

suspension.

V. Award

For all the foregoing reasons, the grievance is SUSTAINED. Grievant

is awarded three (3) days and six (6) hours of back pay. Any benefits

affected by this award should be adjusted accordingly, as should her

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attendance and other personnel records.

Dated September 7, 2005

_____________________________
E. Frank Cornelius, Arbitrator

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