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r In the Matter of Arbitration Between . CALA FOODS, INC. . OPINION AND AWARD and . OF RETAIL CLERKS UNION . JOHN PHILLIP LINN LOCAL 648 , Concerning the Termination of JACK W. HAMM . This matter was heard in the conference room of Counsel for the Union on February 15, 1978. A transcript of the hearing was prepared by E.D. Conklin, Certified Shorthand Reporter. The parties submitted post-hearing briefs, the last of which was received on May 30, 1978. Cala Foods, Inc., herein referred to as the Employer or Company, was represented by W. Robert Vallon of Food Employers Council, Inc., of Northern California. Retail Clerks Union, Local 648, herein referred to as the Union, was represented by Barry S. Jellison, Esq., of the firm Davis, Cowell & Bowe, San Francisco, California. The parties mutually selected John Phillip Linn, Professor of Labor Law and Arbitration at the University of Denver College of Law, to hear and finally decide the matters in controversy. Testimony was taken from: George J. Busuttil, Store Manager, Store P7 Patrick A. Sharp, Head Clerk, Store 1,17 S. Edward Cala, Vice President of Cala Foods, Inc. William P. Ayoob, Supervisor, Cala Foods, Inc. Jack W. Hamm, Grievant . All witnesses testified under oati or affirmation as administered by the Arbitrator.

c THE ISSUES The parties stipulated that all conditions had been met or waived and that the following issues were properly before the Arbitrator for final and binding determination: 1. Did the Employer, Cala Foods, Inc.,-have just cause to discharge the Grievant, Jack W. Hamm, on October 24, 1977? 2. If not, what is the appropriate remedy? FIiJDINGS OF FACT Grievant Jack W. Hamm began his employ with Cala Foods on or about 9-1-73 as a journeyman clerk, which position he continued to hold to the date of his discharge on 10-24-77. At the time of his termination, Grievant worked at store #7 (California and Hyde) , where he had been employed for approximately two months. Before that he clerked at the 18th and Collingswood store during the first two weeks in August, 1977; at the Haight and Stanyan store (May, 1976 through July, 1977); at the 27th and Geary store (March, 1976 to May, 1976); at the 23rd and South Van Ness store (November, 1973 to March, 1976) at the Stanyan and Parnassus store (for three weeks in October, 1973); and at the Leland store for the first five weeks of his employment. Only two of these retail food stores (Haight-Stanyon and store #7) have floor areas exceeding ten thousand square feet and, thus, subject to the San Francisco Fire Code regarding smoking. Section 24,05 of the Fire Code provides, inter alia: "(a) Smoking defined: SMOKING shall mean and include the carrying of a lighted pipe, or cigar, or cigarette of any kind, Q or the lighting thereof. CA "(b) Smoking shall be prohibited in the following ~ buildings, premises or businesses: po "9. In retail stores where the floor area exceeds ten thousand (10,000) square feet, but not to include areas set aside for the se:-ving of food and drink, waiting and rest rooms, exccutive offices, beauty parlors, and other rooms or areas where merchandise is not exposed. f ~ ~ ~

, ti "(e) Standard "NO SMOKING" signs shall be conspicuously posted in every room, building or premises where smoking is prohibited. Standard "NO SMOKING" signs shall have a white field with the words "NO SMOKING" printed in red letters four (4) inches high with one-half (1/2) inch face." Grievant is and has been a non-smoker. During the time he worked in the 23rd and South Van Ness store he contends ,that he suffered from nausea and dizziness because off cigarette smoke in the store to such extent as to require that he be sent home on three or four occasions. While working at the Haight and Stanyan store, Grievant became a member of the Group Against Smoking Pollution (GASP). Thereafter, the San Francisco Fire Department was.requested by GASP to visit the Haight and Stanyan store because that store was in violation of the Fire Code inasmuch as the required "NO SMOKING" signs had not been posted. Grievant had two incidents with customers at the Haight and Stanyan store. One of these incidents involved alleged rudeness to a customer who was smoking when he entered the Grievant's checkstand and Grievant refused to check out the customer. For this, and a second alleged incident of rudeness to a customer, Grievant was mailed a written warning notice, dated 12-13-76, but misaddressed so that the notice was not received by Grievant until about two months later. No grievance was filed over this warning notice. Also, while at the Haight and Stanyan store, Grievant had difficulty working with various soaps, and in using hair spray to remove old prices on items at the time of price changes. By letter dated 2-26-77, Grievant notified the Employer, and Supervisors Edward Cala and Bill Ayoob, that Grievant had allergic reactions to various soaps. The letter stated, in part: ". .. In the past your managers have excused .me from working the soap section. If ordered to work a soap section in the future, I shall not refuse to do the work instructed, whether it be n W .~ facing or stocking the soap section. However, I ~ must inforil you such work can and probably will result in z.n allergic reaction." ~ ~ In March, 1977, Supervisor Ayoob talked to Grievant, in the presence of Store Manager Jerry Miller, about Grievant's -3-

P 4 C responsibilities as a Journeyman Clerk. Supervisor Ayoob stated the Company's position that Grievant, like all other clerks, was expected to perform all work functions of a journeyman clerk, e.g., to work the soap sections, to make price changes and to check out customers coming through his checkstand. In early Marc h, 1977, Grievant had allegedly refused to use hairspray in the removal of prices. It was known by manage- ment that finger nail polish remover and possibly alcohol could be used in removing prices, but Aqua Net hairspray was traditionally used in almost all instances for that purpose. , On 3-18-77, Supervisor Edward Cala issued a written warning notice to Grievant because, ' "On Saturday, March 5, 1977 you refused to perform work as directed by the Manager. Specifically on making price changes. "The Manager instructed you to proceed to make our price changes as directed or to go home. You chose to leave. "After discussing this issue with your Union representative, you came back to work. Be advised that another incident to refuse to perform work as directed by the clerks in charge will result in termination." Thereafter, Grievant removed price changes with finger nail olish remover which h ll h d p e persona y purc ase . Sometime in 1977, Grievant was evaluated by doctors in the medical corporation of Herbert S. Kaufman, M.D., Consultant in Allergic Diseases, after referral to that medical corporation by Dr. S.J. Stegman. A letter dated 4-21-77 to Dr. Stegman from Phyllis Saifer, M.D., M.P.H., affiliate of the Kaufman Medical Corporation,described the evaluation of Grievant for his allergic rhinitis and cerebral read, in pertinent part: allergy. That letter "Mr. Hamm's allergic problems became apparent about four years ago on moving here from Boulder, Colorado and have become increasingly p more severe since then. He now has a daily stuffy ~ nose and on exposure to cigarette smoke, hair sprays, w soaps, and other odors, develops a runny nose, mouth pD breathing, sneezing, and a dry throat. lie has never ~ wheized. He has also had rashes and hives on ~ exposure to soaps. Headaches occur every three weeks, are temporal in location, and seem to occur .

.• A copy more often in spring. He also experiences muscle aching, stomach aches, and urinary frequency. In addition, kidney stones have been a problem over the past two and a half years. "Exposure to cigarettes and chemical odors like soaps and hairspray cause nasal congestion and lacrimation as does dust. Because of these exposures which are more frequent and intense at his work in a supermarket, he has missed six or more days at his job. He does not smoke." "Symptoms of cerebral allergy include depression, undue fatigueability, and irritability, especially on exposure to soap, smoke, and hairspray. "Skin tests were positive for house dust and one group of early pollinating spring trees. in helping voluntarily expose himself to noxious substances. his symptomatology. "It is hoped that Mr. Hamm's superiors at his place of work will be cooperative in this gentleman to achieve and maintain good health. Certainly he cannot be expected to "On the basis of these findings and his history, the following were recommended: 1) environmental control of house dust at home and avoidance of dust at work, 2) avoidance of cigarette smoke, hairsprays, and soaps at home and at work, 3) immunization therapy for dust, 4) Actifed for symptomatic control, 5) a basic elimination diet to determine the role of foods "Thank you for letting me see Mr. Hamm. With assiduous attention to these recommendations, he should experience definite relief from his allergic symptoms." of the just quoted letter was forwarded to Supervisor 4-28-77. Mr. Cala responded by letter, dated Grievant, stating, in part: "Let me emphasize that Cala Foods is in no Edward Cala on 5-2-77, to the way interested in jeopardizing your health or *

safety. Be assured that you will not be called upon to perform any work that differs from that which is performed by any other Cala clerks. "While you have made the Company aware of certain personal health problems that you have, we must insist that you follow all company rules and regulations and be subject to the same treatment as other employees. The company is not in a position to pick and choose the merchandise that you work with. If working ; , in a retail food store proves to be injurious to your'health as the letter to Dr. Stegman seems to indicate, you may want to consider alternative career plans. "With the number of clerks employed by Cala Foods, you can easily see the problems we would encounter if we honored each individual's request as to which merchandise they would like to work with and which elements they choose to be exposed to. Accordingly, we must insist that you perform the work which has traditionally been performed by food clerks at Cala for over 30 years." On 10-17-77, Grievant filed a formal complaint of an unsafe condition at Employer's store J,`7 with the State of California Department of Industrial Relations, Division of Industrial Safety (CAL/OSHA). Specifically, Grievant described the unsafe condition as: "Smoking allowed in store, combined with heat from Chef Rainers chicken cooker; slope of roof holding all these materials stagnant creating high levels of indoor polution. All employees are exposed to this condition especially when confronted with smoke nearby thereby intensifying the level of pollution and gases. Smoking-is prohibited by law in the store." In his complaint, Grievant opined that the unsafe condition posed an imminent threat of death or serious physical harm. He cited the Surgeon General's report on smoking as a govern- c7 mental agency's consideration of the unsafe condition. And ~ he noted that discussion between Union Representative Recluse C,y and Employer Supervisor Ayoob had produced no ccrrective Grl results,-- "Management's position is that a clerk has no N freedom of speech.in requesting customers to extinguish rz cigarettes (I don't) or protection by removing oneself from area of danger."

, C At the arbitration hearing, Grievant testified that beginning while he was employed at the South Van Ness store, he had asked customers if they would mind not smoking and that they complied with his request in all instances except one. Further, he testified that at the Haight and Stanyan store, Store Manager Jerry Miller had allowed him to switch checkstands to avoid a smoking customer, and Head Clerk Sharp at store f7 had similarly allowed him to avoid a smoking customer by moving to another checkstand. On 10-18-77, (the day after Grievant filed his complaint with CAL/.OSHA), Grievant was checking customers at store P, when a smoking-customer got in his check-out line. Grievant admittedly said to the customer, who was third in line, "Excuse me, but there is no smoking in the store. If you will, please." The customer replied, "There isn't any law against it." Grievant referred to Section 24.05 of the Fire Code. The customer continued to smoke. According to the Grievant, the smoke made him start to get sick so he went to Store Manager Busuttil and stated, "Will you please enforce the 'no smoking' sign or will you please transfer me to another checkstand?" Busuttil replied, "First of all, you have no right to enforce the 'no smoking' sign and I will not transfer you to another checkstand." Grievant said, "The smoke is making me sick." Busuttil answered, "You either go back to the checkstand and check out the customer-- or you go home." Grievant then said, "George, it is not that I don't want to check out the customer, but it is physically impossible for me to check out the customer while he is smoking." Busuttil asked, "Are you going back to the checkstand?" Grievant stated, "No, not under these conditions." Busuttil instructed, "Well, you go home. Take off your apron and go home." The Grievant then left the store and another clerk immediately checked out the waiting customers. Grievant's scheduled days off work followed on 10-19-77 and 10-20-77. On 10-21-77, Store Manager Busuttil orally advised Grievant that the latter would not be paid for the hours he had not worked on 10-18-77, that repetition of his 10-18-77 conduct would result in discharge, and that a written warning notice to that effect had been mailed to Grievant. Although Grievant contends that he never received that notice, a copy of the notice, dated 10-19-77 and written by Edward Gala was p sent to and received by the Union and Food Employers Council, ~ Inc., the latter receiving it on 10-21-77. The notice read: L) 0* "I have been informed that on Tuesday, ~ October 18, 1977 you refused to check out a customer in your lane. 0 "The manager advised you to check the customer out or to leave the store. You chose

r q r to leave and not finish your shift. "Be advised that if you refuse to perform journeyman's clerk work again as i.nstructed, you will be terminated." Grievant testified that he told the Store Manager that Fire Marshalls would be coming to the store because Grievant had talked to them about a week earlier about the size of the "NO SMOKING" signs. Grievant believed that the signs in the Employer's store were in non-conformance with the Fire Code inasmuch as those signs were only about 8]./2 X 11 inches }.n size with black letters, about 1 1/2 inches high, on a w.hite field. , Grievant further testified that he had been told by Store Manager Alioto at the Haight and Stanyan store that Grievant was in no position to enforce the no-smoking ordinance and that the Company did not have to, and did not intend to, enforce the ordinance. This was in contrast to the Employer's enforcement, through its employees, of the law prohibiting the sale of liquor to minors, and the enforcement of other rules and regulations pertaining to store operation, e.g., refusal to serve customers with dogs (other than seeing eye dogs) in the store. The event that triggered Grievant's termination occurred on 10-23-77 (Sunday) when Head Clerk Sharp was in charge of store #7. The testimony of Sharp and Grievant differs in some details, but it is clear that Grievant reported to Sharp at approximately 5:00 p.m. that a customer was smoking in his check-out line and that Grievant could not and would not return to his checkstand and service that customer because cigarette smoke bothered him and was hazardous to his health. Sharp told Grievant that he had instructions from the Store Manager to send Grievant home if he refused to return to his checkstand and perform his duties. Because Grievant refused to return to his checkstand, Sharp called for another clerk to perform check-out duties at the Grievant's checkstand and Sharp went to telephone to the Store Manager concerning the incident. Sharp testified that at the time of the incident, all eight checkstands in store i=7 were operating and that there were ten non-meat employees on duty in the store. When Sharp returned to the floor after talking to the Store Manager, Grievant asked Sharp for citizen's-arrest forms. 'Sharp said the store had no such forms. Grievant then told Sharp that he h,ad called the police about the person who had been smokir~g. Sharp did not respond. Several minutes later Sharp again saw Grievant, who said that if he was terminated from his job he would be in the store every day to have smokers in the store arrested. -8-

• S C On 10-24-77, Edward Cala was advised of the 10-23-77 incident. Cala telephoned to Grievant with Supervisor Ayoob on an extension telephone to hear the conversation. Cala testified that he advised Grievant that Ayoob was on the extension, that he twice asked Grievant whether it was true that Grievant had refused to check out a customer on 10-23-77, and that Grievant had not responded to his question even though Cala requested an answer. Cala then orally told Grievant that he was terminated. Grievant then said he was going to the store to be terminated by the Store Manager before a witness. Cala said, "Do as you like." Cala next had Grievant's final 'check and termination notice prepared. A copy of the termination .notice, dated f0-25-77, was sent to the Union and to Food Employers Council, Inc., which read: "Jack Hamm was terminated on Monday, October 24, 1977. Reason - insubordination, refused to perform clerks work. "Specifically he refused to check out a customer on October 18, for which he was warned and again on October 24, for which he is terminated." During Grievant's term of employment he filed several grievances. He believes that management knew that while he worked at the Haight and Stanyan store he was responsible for a governmental inspection of the store, that resulted in discovery of 13 violations of law, and the imposition of a $2,000 fine against Employer. Grievant contends that his discharge was based on his lawful Union activities and not for any conduct properly characterized as insubordination. PERTINENT CONTRACT PROVISIOP:S Section 4 - Discharge of and Discrimination Against Employees Subsection A The employer shall have the right to discharge any employee for insubordination, improper conduct, incompetency, failure .to perform work as required, or slackness of work; provided, further, that the Employer shall not discharge or discriminate ~ against any employee for upholding the Union principles or ~ engaging in Union activities provided such activities shall W not interfere w::th the normal performance of his duties to ~ the Employer. 5'he Employer further agrees that no employee ~ shall be discharged for failure or refusal to purchase stocks N bonds, securities or interest in any partnership, corporation and/or company.

C , C Upon severance of employment of any employee, the Employer shall within seventy-two (72) hours thereafter notify the Union of such resignation, lay-off or discharge. If discharge is for cause, the Employer agrees to submit the reasons therefor to the Union upon request. Before a regular employee (as defined in Subsection (b) hereof) is discharged, suspended, or demoted for incompetency or failure to perform work as required, he shall receive a written warning (with a copy to the Union) and be given an ppportunity to improve his work. Notices and warnings shall become null and void after six -•znonths from date of issue. There shall be a probationary period of thirty (30) days during which a new employee may be discharged without right of appeal if the Employer determines the employee is not qualified to perform the work required. If an employee feels that he has been unjustly discharged, he shall have the right of appeal to the Adjustment Board through action of the Union within ten (10) days after said disch arge. POSITION OF THE EMPLOYER The Employer contends: 1. The Employer exercised its contractual right to discharge the Grievant for insubordination pursuant to Section 4, Subsection A, ' of the collective bargaining Agreement. 2. Grievant demonstrated a propensity for refusing to perform the normal and ordinary job duties of a journeyman clerk. Rather than terminate Grievant upon the first incident of refusal to perform his job duties, the Employer warned the Grievant in the matter by written notice, advising that refusal to perform journeyman clerk's work in the future would result in termination. After three written warning notices and a Q _ disciplinary suspension, Grievant still refused to operate the C4 cash register without justification for such refusal. ~ 3. Grievant was not terminated because he asked customers Cz not to smoke. The Employer had no objection to him or ~ other employees requesting customers not to smoke, and as ~ the record reflects other employees did make such requests of customers. But no other employee refused to checkout a customer upon being given a direct order by a Supervisor. f -10-