Despite repeated notice that company policy had changed, five employees refused to abandon their longstanding freedom in taking returned product. Assertions that they had all been given blanket permission earlier were contrived.
Drivers for a soft drink manufacturer were fired after failing to heed warnings to refrain from taking returned product for personal use.
After he was made aware that “shrinkage” or theft of company product was an issue of concern, the new manager at a soft drink distribution warehouse took steps to address the problem.
Three avenues were available for workers to legitimately acquire product at the warehouse: drinks at discount prices were available from three vending machines located on the property; monthly employee sales also offered product at deep discounts; and, supervisors would occasionally supply drinks for events or at their discretion.
However, it came to the attention of the manager that drivers were helping themselves to product that customers had returned — either because it was mis-ordered or stale dated.
According to standard practice, returns brought back by drivers were sorted at the “PIT.” Intact product was returned to inventory, the remainder was then recycled/repackaged and returned to inventory or streamed as garbage.
Informed that drivers were helping themselves to product from the PIT, the manager had the issue raised at the next drivers’ meeting. Drivers were told not to take product without permission.
Shrinkage a problem
At another meeting about 10 days later, the drivers were warned that “shrinkage” remained a problem and that anyone caught stealing would be fired.
One month later, in July 2009, the manager decided to set up a new repack area away from the PIT. Security cameras were also installed.
Acting on a tip that drivers were taking product from the new repack area, the manager installed a concealed camera in the area in April 2010.
Three workers were seen to remove product from the repack area. However, rather than act precipitously on the video evidence, the manager made another effort to communicate the importance of adherence to the company’s Code of Conduct. At another drivers’ meeting on April 14, the three legitimate methods of acquiring company product were reviewed and the requirement to comply with the Code of Conduct was stressed.
A sign was posted in the repack area cautioning “Product for repack only, personal consumption prohibited.”
Motion-sensitive camera installed
Four days later a motion-sensitive camera was installed in the repack area.
Five drivers were caught on camera removing product from the repack area.
The workers were interviewed on May 6. On May 10 they were fired for theft of company product.
The union grieved. The workers had not stolen anything — they had “blanket” permission from a succession of supervisors to help themselves to discarded product as long as they did not abuse the privilege. They never saw the sign cautioning against taking product from the new repack area. Moreover, the employer could not establish theft because there was no mens rea — that is, the workers had no idea they were committing a theft as the employer alleged. This was obvious because the workers were neither furtive nor attempting to conceal what they were doing, the union said.
No such blanket permission was granted, the employer said. If the company simply allowed employees to take product from the repack area at their discretion, there would be no purpose for the vending machines or for the monthly sales.
The workers had been clearly warned three times that they were not to remove product without a supervisor’s permission.
The workers made no admission of wrongdoing or gave any indication of remorse. To varying degrees, the workers lied or dissembled during their interviews and, likely, colluded on their testimony after the fact, the employer said. There was no reasonable basis for expecting the employer to return these workers to jobs that required them to work independently with little supervision.
The Arbitrator agreed.
There may have been a time when supervisors turned a blind eye to employees taking product from the PIT, the Arbitrator said. But, times had changed. “That message or culture was changed under [the new manager’s] tenure. The message was delivered at three separate meetings the grievors attended, and the fact that the grievors may not have been listening or paying attention does not excuse them from getting the unequivocal message.”
The notion that the workers had some degree of blanket permission was improbable, the Arbitrator said.
Likelihood of collaboration
It was noteworthy that none of the workers saw fit to reference this permission during their interviews on May 6, the Arbitrator said. This omission became even more noteworthy when the workers later all laid claim to this permission when they were before the Arbitrator.
“It is unfortunate that the grievors prepared their testimony as a group, because the claims of permission have a striking similarity which cannot be ignored when assessing the likelihood of collaboration.”
“[N]one of the grievors was able to persuade me on a preponderance of probabilities that he did not know what he was doing was wrong, or that he had permission to do what he was doing, in taking product. The fact that the grievors came to the hearing with fabricated stories militates against any mitigation of penalty in a workplace where they held positions of trust, and worked largely unsupervised. This is particularly so in a warehouse setting where they have many opportunities to steal and must be trusted and trustworthy,” the Arbitrator said.
The grievances were dismissed.
