Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—Employer demonstrated just cause to discharge employee for failure to timely complete improvement plan, (Jan 22, 2025)

By WK Editorial Staff

A last chance agreement is a concession by the employee (and the union) that the employer already has “just cause” to discipline the employee.

A packaging operator was denied a grievance contesting her termination following repeated warnings and an improvement plan that she failed to complete by the specified deadline. The employee asserted that her dismissal lacked just cause and violated a collective bargaining agreement (CBA). While the employee argued that she later fulfilled the plan, company records and testimony showed that the requirements were not met. Accordingly, an arbitrator determined that the employee’s failure to comply with the improvement plan and prior corrective measures constituted just cause for termination. The arbitrator denied the grievance. Lesser disciplinary measures were considered but rejected (Central Region of Teamsters Union Local 916 and Nestlé USA, Inc. Jacksonville, Illinois Factory (Cornelius, Arb. Oct. 30, 2024)).

In February 2023, the employee was terminated from her employment as a packaging operator at a Nestle facility. The facility manufactures a powdered coffee creamer product named “Coffee-Mate.” The termination involved a Last Chance Agreement for the employee, proposed and agreed to by her union. Further, she was terminated after an approved medical leave of absence.

Last Chance Agreement. Effective December 2, 2022, the employee was placed on a Last Chance Agreement because of unacceptable workplace behavior. Specifically, she was observed by her supervisor away from her assigned work area. Such conduct violated company standards under the plant rules and guidelines—leaving the job before being properly relieved. Following an investigation, it was determined that the employee was derelict in her assigned duties in that she was away from her designated work area during a line start up.

Over the prior 12 months, the employee had been issued a coaching in February of 2022 for her behavior and interactions with team members. At that time, the employee was given the expectations to complete a course on “being an effective team member” and creating an action plan that had three actions to improve her behavior and working relationship with team members.

On June 28, 2022, the employee was issued a written warning for not creating a three-step action plan. On June 29, 2022, she was issued a decision-making leave for a forklift incident that occurred on June 25. The LCA was issued in lieu of termination.

On December 16, 2022, it was clear that the employee had not met the mandatory December 15 deadline for the fulfillment of the improvement plan.

“Just cause” determination. An LCA is an agreed-upon predetermination of “just cause.” It is a concession by the employee (and the union) that the employer already had “just cause” to discipline the employee, who is thereafter on the grace of one “last chance” in exchange for a promise of compliance, the violation of which all three parties agree will be “just cause” for immediate discipline.

Improvement plan. Here, the employee simply did not complete her improvement plan by December 15, 2022, as required by the LCA. She testified that she completed the assignment on December 19, supposedly only a few days late. According to the employee, her supervisor prevented her from doing so. However, a review of the employer’s timekeeping records indicated that the employee’s last day of work was December 17, 2022, and she was a night-shift employee.

Because union counsel did not challenge the employer’s testimony, the arbitrator credited the testimony of the factory manager regarding the employee’s last day of work. Thus, the employee not only failed to meet her December 15, 2022, deadline, she did not even complete her Performance Improvement Plan on December 19, as she testified. Accordingly, the employee’s breach of the LCA was just cause for discipline.

Although the LCA gave the arbitrator discretion to reduce the employee’s discipline to something less than termination, her testimony indicated that leniency was not merited.

Therefore, the grievance was denied.

Attorneys: Carl R. Draper, for Central Region of Teamsters Union Local 916. Bernard J. Bobber for Nestlé USA, Inc. Jacksonville, Illinois Factory.

Companies: Nestlé USA, Inc. Jacksonville, Illinois Factory; Central Region of Teamsters Union Local 916

Cases: Labor Arbitration ContractClaims UnionsMembers Discharge