Arbitrator Voids Untimely Discharge of 17

June 13, 2007 by Beeson Tayer & Bodine

In a case handled by Sheila Sexton and Teague Paterson of the Beeson Oakland office, Arbitrator John La Rocco has issued a decision voiding the discharges of 17 Coca-Cola bottlers terminated for theft of company product because the Employer untimely issued the discharge notices.

The Union contract requires the Employer to give written notice of discharge or suspension “within five (5) days of the occurrence or knowledge of the cause of discharge or suspension,” and further provides that if the Employer fails to do so the discharge or suspension is “waived.”

By May 2005 the Employer had captured surveillance video showing conduct of 17 employees the Employer alleged constituted the unauthorized taking of company product. Not until June 7 and 8, 2005, did the Employer question the employees about the alleged misconduct, and not until June 13, 2005, did the Employer finally gave written notice of discharge to the 17 employees. The Union grieved, contending the discharge notices came more than five days after the occurrences and the employer’s knowledge of the occurrences that formed the basis for the terminations.

The Employer asserted that the five day limit did not apply 1) where it was conducting a widespread, undercover investigation into "shrinkage" problems at the facility; and 2) that the five days only began to run only after it conducted an investigatory interview with the employee.

But Arbitrator LaRocco agreed with the Union, rejected each of the Employer’s defenses for its failure to issue discharge notices within five days of its video surveillance of the alleged misconduct, and voided each of the 17 discharges.

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