C

Sealy Mattress Co. of Florida and IBT, Local 385

AAA 33 300 00206 05

February 20, 2006

Final Award

Introduction

The hearing in the instant case was held at the premises of Sealy Mattress Company of Florida ("the Company") in Orlando, Florida on February 10, 2006. The Company was represented by Anthony J. Hall, Esq. of Fisher & Phillips LLP. Mr. Alden Alfonso ("the Grievant"), employed by the Company for five years as a line feeder, was represented by John Coskey, Business Representative/Trustee for Teamsters Local Union No. 385 ("the Union"). Also present were the Union's President, Mike Stapleton, and Lourdes Cruz, a lead employee who was sworn and acted as interpreter for the Grievant throughout the hearing.

Background and Issue

This matter arose from a grievance challenging the Company's decision to discharge the Grievant for allegedly engaging in a fight with and punching in the chest fellow employee George Edwards. The parties agreed that the following issues are submitted for resolution by the Arbitrator:

1. Did the Company have just cause for terminating Alden Alfonso?

2. If not, what is the remedy?

Pertinent Contract Provisions and Company Rules

Collective Bargaining Agreement

Article 7

...

Discharge: Any employee may be discharged for just cause, which includes, but [is] not limited to the following:

...

(d) Fighting or provoking a fight on Company premises, except in self defense.

...

(f) Violation or [sic] plant and operating rules and procedures furnished to the employee or posted.

The Company's Rules of Personal Conduct

A. The following offenses may be case for immediate dismissal upon the first occurrence of such offense without further warning at the

discretion of the management:

...

5. Striking, provoking a fight, or attempting bodily harm to another employee.¹

The Position of the Company

It was brought to the Company's attention that on April 5, 2005, the Grievant and employee George Edwards had engaged in a fight. Edwards was injured and filed a worker's compensation claim and a complaint against the Grievant with the police department. The Company later confirmed through interviews with the participants and other employee witnesses that a fight had indeed occurred, and terminated both the Grievant and Edwards for fighting as is its right under the Contract.

The Position of the Union

The Grievant is an employee with several years of seniority. He did not participate in a fight, and certainly neither initiated nor was the aggressor in a fight. Edwards' worker' compensation claim and police report did not produce a result establishing that the Grievant had injured him. Moreover, Edwards had wanted the Company to call the police and to take him to the hospital, but the Company declined to do so (thus suggesting that the Company had not taken Edwards' allegations seriously).

Discussion

The incident leading to the Grievant's discharge occurred on April 5, 2005. Employee George Edwards approached plant superintendent Hector Miranda and told him that the Grievant had punched him in the chest, that he wanted medical attention, and that he wished to file a charge against the Grievant with the police. Edwards showed Miranda a mark on his chest which he asserted was caused by the Grievant's blow.

Although Miranda declined to call the police or to arrange for medical treatment for Edwards because he "seemed fine," he did advise Edwards to have himself checked out for any possible injury and released him to go to the hospital emergency room. He also told Edwards to put his version of what occurred into writing. Mr. Edwards did so and identified several other employees who he said had possibly witnessed the event. His written account of the alleged incident was as follows:

Around 8:40 a.m., I (George Edwards) was getting a unit from well cell, when I received unit I put on cart. The[n] Alden (Line Feeder) said this is my cart and I replied that it was mine. Then he pointed to a cart that was about 15 ft. away and said it was mine. If that cart was mine it was pushed by Alden, because he was the only one within 5 ft. of me. Then I began walking away with cart that was behind me before I turned my back. Employee (Alden) pushed me and then punched me in my chest. I didn't ask him to put his hands on me.

Miranda then commenced an investigation into Edwards' allegations. He interviewed other potential employee witnesses as well as the Grievant, whom he also asked to provide a written statement². The Grievant told Miranda that there had been no fight, that there had simply been a misunderstanding, and that he had thought the two of them were just joking around. Although most of the employees Miranda questioned told him they had not really witnessed what had transpired, he asked for written statements from two of them, Sherman Williams and Raymond Rivera, who had some substantive information regarding the matter.

Williams stated that "George and Alden was having a disagreement over a cart. And then it got out of hand. I thought they was playing around and then I turn around and saw Alden punch George. Alden told me he was play [sic] but I don't know because George toke [sic] it serious. But they was pushing the cart." He also told Miranda that the Grievant was laughing but that from Edwards' face he could tell that Edwards was not joking. Rivera's version of the incident was somewhat different. He stated that "All I said was they were struggling for the cart back and forward so George elbow Alden to get the cart. I didn't think it was serious so when Alden let go of the cart he hit himself with the edge of the cart on the chest."

Edwards continued to pursue his complaints against the Grievant. He filed a complaint with the police claiming that the Grievant had committed a battery, and filed a worker's compensation claim alleging that the Grievant had injured him on the job. A police officer gave Miranda a copy of the police report and Edwards apparently provided the Company with copies of the worker's compensation claim and the emergency room release.³

Following his investigation, Miranda met with John Borman, the Company's Human Resource Manager, to determine the Company's course of action. They decided to discharge both the Grievant and Edwards on the grounds that they had been fighting in violation of the collective bargaining agreement and of Company Rules of Personal Conduct. That discharge led to the grievance under consideration in the instant case.

At the hearing, the Company offered Miranda's testimony regarding the Company's investigation and introduced into evidence the witnesses' statements and Edwards' legal filings heretofore described.⁴ However, it did not call any witness other than Miranda. The Grievant, called as a witness by the Union, was the only person with personal knowledge of the April 5, 2005 incident who testified, and he flatly denied punching or participating in a fight with Edwards.

The Company argues that it conducted a full investigation of Edwards' allegations, that it carefully considered the evidence in its possession, and made a legitimate business decision to terminate both Edwards and the Grievant because they fought on Company property. The Arbitrator is convinced that the Company's investigation, principally conducted by Miranda, was fair and thorough. Moreover, there is no evidence whatsoever that the Company was motivated by anything other than its sound business judgment. However, the issue before the Arbitrator is not whether the Company acted in good faith but, rather, whether the Company demonstrated such misconduct on the Grievant's part as to warrant the conclusion that he was terminated for just cause. "The burden of proof is generally held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires just cause for discipline." Elkouri & Elkouri, How Arbitration Works, Ch. 15.3.D.i. (2003). There is nothing in the record, other than hearsay evidence, that could establish that the Grievant punched or otherwise participated in a fight with Edwards.⁵ Thus, it is unnecessary for the Arbitrator to consider what defenses, if any, the Grievant would have had for fighting with Edwards, because there is no competent, substantial evidence in the record to prove he fought with Edwards in the first place.

Conclusion

The Union's grievance is sustained. The Grievance shall be reinstated by the Company to his former position as line feeder with full seniority, back pay, and such other benefits and emoluments of employment as may have accrued during his absence.

¹The Company also introduced into evidence its General Safety Rules for All Employees, which includes as Rule 10 the provision that "Horseplay in the plant is prohibited." However, it was clear from the record that the basis for the Grievant's discharge was allegedly fighting, not allegedly engaging in "horseplay" within the meaning of the Safety Rules.

²The Company introduced the Grievant's statement, written in Spanish, into evidence, but did not provide an English translation. Therefore, the Arbitrator is not entirely sure what the statement says, although he gathers from Miranda's testimony that it was consistent with the Grievant's contention that he was not in a fight with Edwards and that they were simply horsing around.

³The ultimate resolution of the police complaint and the worker's compensation claim is not entirely clear from the record, but it appears probable from Miranda's testimony that they went nowhere.

⁴The Union objected to the written statements of everyone but the Grievant and the various documents filed by Edwards on the grounds of hearsay. However, the Company contended that it was not introducing the documents in question for the purpose of establishing the truth of their contents, but rather to show the nature and scope of the investigation. The Arbitrator received them into evidence for the limited purpose asserted by the Company.

⁵It is by no means certain that the Company could have proved grounds for terminating the Grievant even if Williams and Rivera had testified. Their oral and written statements to Miranda were consistent with the Grievant's assertion that he, at least, thought that he and Edwards were joking around, and Rivera's version of events suggests that Edwards injured himself in the chest with the cart they were struggling over instead of being punched by the Grievant.