You be the Arbitrator Just Cause for Termination

Article VII

Seniority

Section 7. Seniority shall be lost for the following reasons:

b. if the employee is discharged for cause.

Article XVII

Grievance and Arbitration Procedure

Section 7. Step 3.

4) The arbitrator shall not have the authority to amend or modify this agreement or establish new terms or conditions under this agreement. The arbitrator shall determine any question of arbitrability.

Article XXII

Discharge or Suspension

Section 7. The following disciplinary policy is hereby established:

Step 1. A written notice describing the nature of the employees problem(s) will be given to the employee, an opportunity will be provided to correct these problems.

Step 2.A second written notice will be sent and a two (2) day suspension without pay will be imposed, affording the employee some time to reflect on the problem and on ways to correct them.

Step 3.TerminationManagement reserves the right to waive this policy, if, in their opinion, it is in the best interest of the company to do so.

Facts

A truck driver was discharged for failing to make timely deliveries and not using the quickest, most direct route as previously instructed. The company warehouses and distributes wholesale floor covering products and operates from several locations. The driver was hired in November 2000 and during his relatively short, eight-month tenure with the company received a total of four other employee warning reports. According to the employer, the driver demonstrated a continuing pattern of failing to follow orders, company policies, and supervisory instructions involving the use of a global positioning system (GPS) mounted in his truck, completing daily driving logs, and utilizing toll roads for the best way to make deliveries in a timely fashion. On two occasions the employee simply failed to complete his deliveries, costing the company extra expense and a loss of customer satisfaction. The triggering event for his termination was his refusal to use the toll road to make a delivery even though he was offered an advance of the toll road fee. In response, the union claims that the employees failure to use toll road was justified because he was already owed $87.32 in post-toll reimbursements. One of the employees prior warning reports was grieved and settled in his favor, and he was disputing the remaining three at the time of his discharge. In this grievance he is challenging his discharge, seeking reinstatement with back pay, seniority, and benefits.

Position of Parties

The employer argues that this discharge is not subject to arbitration because the CBA does not contain a for cause requirement (see Article XVII, Grievance and Arbitration Procedure, and Article XXII, Discharge or Suspension, printed earlier). Therefore, there is no standard against which the arbitrator may test the employers actions.

In response, the union argues that the company position ignores the plain language of the agreement stating that seniority shall be lost. if the employee is discharged for cause. According to the union, in a unionized work environment, the termination of seniority equates to the termination of employment (see Article VII, Seniority).

Question

1. As arbitrator, what would be your award and opinion in this arbitration?