BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS UNION LOCAL NO. 695
ARAMARK UNIFORM SERVICES
Ms. Naomi Soldon and
Ms. Jill M. Hartley, Previant, Goldberg, Uelmen, Gratz, Miller
Brueggeman, S.C., Attorneys at Law, 1555 North Rivercenter Drive, Suite 202, P. O.
Milwaukee, Wisconsin 53212, for the labor organization.
Ms. Heather Runnow, Director of Labor and Employee
Relations, Aramark Uniform Services, 2300
Warrenville Road, Downers Grove, Illinois, for the employer.
Teamsters Union Local No. 695 and Aramark Uniform Services are parties to a
bargaining agreement which provides for final and binding arbitration of disputes arising
The union made a request, in which the company concurred, for the Wisconsin Employment
Commission to designate a member of its staff to hear and decide a grievance over the
interpretation of the terms of the agreement relating to discipline. The Commission
D. Levitan to serve as the impartial arbitrator. Hearing in the matter was held on February
in Madison, Wisconsin. A stenographic transcript was made available to the parties by
The company and union submitted briefs on March 24 and March 26, respectively, and
filing of reply briefs.
The parties concur that the issue before the
Did the employer have just cause to discharge the grievant, Tim
Stelse? If not, what is the
Articles of Agreement
This agreement, made and entered into by
and between Aramark Uniform Services, Inc.
Madison, and its successors, 1212 North Stoughton Road, Madison,
Wisconsin, a Delaware
Corporation, a wholly-owned subsidiary of ARAMARK Corporation, a Delaware
hereinafter called the Employer and/or the Company, and the Drivers, Salesmen,
warehousemen, milk processors, cannery, dairy employees and helpers union local
no. 695, 1314 North Stoughton Road, Madison, Wisconsin, an affiliate of the
Brotherhood of Teamsters, hereinafter called the Union.
Article 7 Union Representatives
7.1 The accredited Business Representative of the
Union shall be accorded the privilege of being
on the property of the Employer, however, the Union Business Representative shall make
such presence known to the District Manager or his authorized representative before the start
of such visit.
. . .
Article 10 Unauthorized Activities
10.1 The Company
and the Union mutually agree that in consideration of Article 17, Grievance
Procedure and Arbitration, there shall be no authorized strike or slowdown, nor any
lockout for the term of this Agreement.
10.2 It is agreed that in all cases of an unauthorized strike, walkout,
or any unauthorized cessation
of work in violation of this Agreement, the Union shall not be liable for damages
resulting from such unauthorized acts of its members . It is understood that the
Secretary-Treasurer or principal Business Agent of Teamsters Union Local No. 695 is the
designated officer empowered to authorize strikes, work stoppages, or action which will
interfere with the activities required of employees under this Agreement.
. . .
Article 12 Quits and Discharges
12.1 No employee shall be discharged or suspended
except for just cause. Just cause shall include
but not be limited to inefficiency, unsatisfactory route and sales work, or a gross
insubordination to customers. At least one warning notice shall be given in writing to the
union and to the employee before discharge or suspension can be made, except in cases of
dishonesty, drinking or alcoholic beverages or drunkenness on the job, use or possession or
narcotics, fighting, willful destruction of the Employer's property. Warning notices shall be
effective for a period of not to exceed six (6)months. Written notices of discharge or
suspension setting forth cause shall be given to the employee with a copy to the Union.
. . .
Article 17 Grievance
Procedure And Arbitration
17.1 Time Limit: No grievance
shall be filed or processed unless it is submitted to the Employer
within ten (10) working days after knowledge of the occurrence of the event giving
. . .
Article 19 Route
19.1 It shall be the responsibility
of the Route Representative to solicit new accounts and retain
existing accounts. Route Representatives shall make a consistent and reasonable effort
towards this responsibility. In the absence of a consistent and reasonable effort, corrective
action may be taken. Any such actions shall be in accordance with Article 12 of this
Agreement. The Route Representative shall render all reasonable assistance to their
managers in collecting outstanding accounts on their respective routes.
Memorandum of Understanding
(from the 1995-1999 collective bargaining agreement)
The following agreements were reached during the course of negotiations:
The Company may establish a sales quota
for Route Sales Representatives whose prior quarterly
sales average is in the bottom one-third of the market center's sales average for all Route
Such quote shall be set individually, taking
into account the previous month's individual
results. In no case shall the quota be greater than the market center average or $4.00,
whichever is higher. The Company may implement the following progressive step of
for Route Sales Representatives who do not meet their sales quotas.
Any Route Representative who does not
meet the sales quota for the next month, but
increases his performance, shall not receive the next step of discipline for that month. Any
three (3) months where an individual does not receive discipline shall place him at the
beginning of the disciplinary process.
Missing quota first month - Verbal warning.
Missing quota second month - Written warning.
Missing quota third month - Final written warning.
Missing quota fourth month - Three day suspension.
Missing quota fifth month - Subject to discharge.
. . .
Article 19 Route Representatives'
(1995-1999 collective bargaining agreement)
19.1 It shall be the responsibility
of the Route Representative to solicit new accounts or increases
each day. Employees shall make consistent and reasonable efforts to make sales each day.
Route Representative shall render all reasonable assistance to their respective managers in
collecting outstanding accounts on their respective routes.
Aramark Uniform Services, the employer, provides rental and sale of uniforms and
goods and services. The company's primary customer service personnel are the Route Sales
Representatives (RSR's), represented for collective bargaining and contract administration by
Teamsters Union Local No. 695. This grievance concerns the company's termination of
Stelse, which the union claims was without just cause.
In support of its position that the grievance should be sustained, the union asserts
and avers as follows:
Because the company did not provide Local 695 with notice of the
alleged warning which led to
the grievant's termination, the discharge is procedurally defective and must be overturned.
negotiated language in the collective bargaining agreement mandates that at least one written
notice shall be given to both the union and to the employee prior to any discharge or
Despite this clear language, the company failed to provide the union with a copy of the
Improvement Plan it claims constitutes a written warning and which it subsequently relied
discharge the grievant. It is not sufficient for the company to claim the spirit of the
satisfied by its having given a copy to union steward O'Malley; arbitrators have consistently
stewards have no authority to bind the union or modify an agreement. Nor do stewards have
ability to interpret the collective bargaining agreement on behalf of the unit or in the name of
local. The company was obligated to provide a copy of the discipline to the union business
who alone has the authority to bind the union. The company's failure to follow the
requirement invalidates the discharge and requires the grievant be reinstated and made whole.
Further, the company failed to provide
Stelse with a written warning notice prior to his discharge,
in violation of section 12.2 of the collective bargaining agreement, which requires that at
written warning notice be given to the union and employee before discharge or suspension.
the company's arguments, the Performance Improvement Plan was not disciplinary action
and did not
satisfy the prior notice provision of section 12.2; without such prior written warning, the
lacked just cause and must be reversed.
There is no indication on its face that the Performance
Improvement Plan is formal discipline for
the purposes of section 12.2, nor did the company inform Stelse and steward O'Malley as
their September 6, 2002 meeting. The document does not resemble the traditional
the company had used in the past, contains no identification as a disciplinary notice, and does
include references to progressive discipline as found on true disciplinary notices. Even if the
intended the PIP to serve as written warning, Stelse was clearly not put on notice of such by
reviewing the written document.
Nor did the company provide such notice
during the meeting at which he received the
Performance Improvement Plan. Stelse and O'Malley testified credibly that District Manager
Hamilton had not referred to the PIP as discipline; while Hamilton testified that he had
so, inconsistencies in his testimony call his credibility into question.
The company portrayed the PIP as
guidelines meant to assist Stelse achieve the company's
average sales goals; without any of the hallmarks of formal discipline, the company cannot
the PIP as the prior written notice necessary before suspension or termination. Because the
thus failed to issue Stelse the written warning notice required under 12.2 of the collective
agreement, his discharge lacked just cause and must be reversed.
Further, the Performance Improvement Plan imposed
unreasonable expectations, and cannot be
the basis for discharge. It is well-established that an employer cannot unilaterally impose an
workload on employees; an employer therefore does not have just cause to discipline an
for failing to meet an unreasonable workload requirement. The PIP the company relies on
have required Stelse to work far more than 40 hours per week. Not only were the PIP
objectively unreasonable on their face, they were clearly out of proportion to the activity that
acceptable from the other Route Sales Representatives. District Manager Hamilton himself
that the PIP required Stelse to meet standards above those set for all other employees; in
requirements under the PIP were double the standards set for the other RSR's. The company
lacked just cause for terminating Stelse after he failed to achieve an unreasonable activity
Notwithstanding how unreasonable the
company's expectations were, Stelse made significant
strides toward improving his performance and should not have been terminated. Stelse's
responsibility was to maintain his existing accounts and sell new accounts, not make sales
proposals. And after receiving the PIP,
Stelse vastly improved his sales performance, and in fact
far outperformed most of his peers in the sales average category. Because the Performance
Improvement Plan set expectations that were both excessive and irrelevant, and because
significant measurable improvement toward the goals set, Stelse's inability to attain the
unreasonable expectations do not constitute just cause for discharge.
Further, the company violated past practice when it failed to
follow progressive discipline and
discharged Stelse for failing to meet certain activity levels. The current collective bargaining
agreement eliminated a prior memorandum of understanding under which the company could
discipline for failure to meet sales quotas, setting a new standard of "consistent and
- yet all of the company's complaints about Stelse relate to alleged performance failures,
the effort he gave. Since the company cited sales numbers as the basis for the PIP and
discharge, and failure to meet sales quotas are no longer a basis for discipline, the
Moreover, the company failed to follow its
past practice of applying progressive discipline for
alleged deficiencies in sales numbers. In 2001, the prior General Manager informed district
that a system of progressive discipline would be used for employees' failure to meet sales
Although the company failed to offer any evidence this practice had been discontinued, the
failed to follow its own disciplinary procedures in disciplining Stelse. The company did not
cause to discharge Stelse for a second offense when pursuant to its policy of progressive
a written warning was the next step.
Because the discharge was without just
cause on several grounds, the grievance must be
sustained and Stelse reinstated and made whole for all wages and benefits lost.
In support of its position that the grievance should be denied, the company asserts
A routes sales representative's failure to meet sales expectations
constitutes just cause. The sales
expectations are clear and unambiguous route sales representatives are expected to
reasonable sales effort, and if they do not, they may be subject to discipline. The expectation
RSR's sell to existing and new customers has been in existence for many years; these clear
standards have been communicated not only
on sales average, but also on retention and other
measures of performance. The parties have specifically recognized that just cause exists to
an RSR whose sales work is unsatisfactory against the set standard.
Given the clear and unambiguous language,
there is no need to consider practice. Further, given
the few occasions of discipline since the new agreement, a contrary practice has not been
The elimination of the prior letter of understanding regarding discipline for sales-related
not establish a practice. The suggestion that the prior general manager was considering
steps in a progressive discipline model, with no indication he ever followed through, does
establish a practice. Even if a progression of several steps were established, this would not
the plain reading of the agreement nor the arrival of the new general manager. Finally, the
is limited in defining appropriate discipline, since to impose a progression of discipline
effectively amend the collective bargaining agreement, which the agreement explicitly says
arbitrator cannot do.
The grievant failed to meet long-standing expectations and the
terms of his disciplinary notice,
and the employer was within its rights to discharge him. When the company required the
meet a higher standard, it did so as an effort to boost him to a point near an acceptable
level. The grievant knew and understood the expectations. If the union objected to the form
discipline in the PIP or its content, it had an obligation to grieve at that time. Because the
and the union failed to grieve the PIP at the time it was imposed, and because neither chose
identify the PIP in the grievance, the arbitrator should not consider whether the PIP could be
presented and enforced. That the grievant failed to meet expectations does not appear to be in
dispute, and his performance levels speak for themselves. The grievant did not appear to
even try to
The discipline does not failed for lack of
notice. Steward O'Malley has the authority to file
grievances, so that notice to him was sufficient.
The company complied with the clear
language of the collective bargaining agreement in defining
performance failures and disciplining the grievant. The grievant was properly discharged
a full opportunity to improve.
On the basis of the collective bargaining agreement, the record evidence and the
of the parties, I find that the company's failure to provide the Performance
Improvement Plan (PIP)
and a written explanation of discharge to the union local business representative, the
reliance on the PIP as a written warning notice, and the company's imposition upon Stelse of
performance requirements twice those expected of all other Route Sales Representatives, all
constituted violations of article 12.2 of the agreement.
Accordingly, it is my
That the discharge of Tim Stelse was without just cause, and the grievance is
company shall rescind the discharge and make Stelse whole for all lost wages and benefits.
Dated at Madison, Wisconsin, this 24th day of June, 2003.