Mr. Javier Botello This is Me

 Web References

1. 1. 1995 NAC 108 The Martin-Bower Company and Teamsters Local Union 986

   www.lawmemo.com/arb/award/1995 - [Cached]

   Published on: 9/2/2002   Last Visited: 9/2/2002

   The grievant immediately called the office of the employer's transportation supervisor, Javier Botello, at 6:45 a.m. and again at 7:00 a.m. She received no answer, so she drove to her second scheduled delivery stop and called Mr. Botello again at approximately 7:45 a.m. She told him there was something wrong with the freezer unit, the gauges were reading wrong. She said she had inspected the merchandise and found everything to be frozen that was supposed to be frozen. He asked her to use a probe to determine the temperature level of the products. She told him she did not have a probe with her. She had never been issued a probe by the employer.
   
   The grievant told Botello she was going to complete the delivery at the second stop. He told her he was going to have a Ryder Truck Leasing representative meet her at her third stop. Ryder services the employer's equipment in the Las Vegas area. The grievant received a call from Ryder before she completed her second delivery, saying they were going to send someone out immediately. She informed the caller she was through with the second stop delivery and was going on to her third scheduled stop. She said the food was frozen and that she would call Botello if problems arose. None of the products were refused at the second stop. After completing delivery to the second stop, the grievant called Botello again and told him everything was fine. He told her to check everything and to give him the readings from the gauges, which she did. They showed plus 15 degrees for the freezer and minus 138 degrees for the refrigerator. He then told her to go to her next scheduled stop and call him from there when she had finished her delivery.
   
   The grievant arrived at her third and last scheduled stop at 9:05 a.m. on June 4. The gauges now showed plus 50 degrees for the freezer and minus 138 degrees for the refrigerator. She set up rollers from the trailer to the premises of the intended recipient and loaded them with the products from the freezer unit. Due to the fact that only one person from the customer's staff was helping unload, the products sat a long time on the rollers.
   
   Ultimately, the customer at the last stop of June 4 rejected the frozen merchandise because a part of it was thawed. All of the refrigerated merchandise was accepted. The grievant called Botello and told him what had happened. He told her to go to Ryder. She reloaded all the rejected items, which had been sitting outside the trailer all the while, and drove to the motel, which was located two minutes from the Ryder facility, because it was nearing the deadline for her to retrieve her belongings.
   
   When she got to the motel, she discovered that the maids had already removed everything she had left in her room. She inquired of the manager as to where her things were. After a period of time the manager found them and she then left for Ryder.
   
   According to the computer records, the grievant spent 47 minutes at the motel, from 11:09 a.m. until 11:56 a.m. She arrived at Ryder at 11:58 a.m. Botello was on the telephone with one of the Ryder employees at the time she arrived because he had expected her to go directly from her last stop to Ryder; therefore, he had called to find out if she had arrived.
   
   The Ryder mechanic had spoken with Botello earlier that morning before the grievant arrived and told Botello that he, the mechanic, would not be able to fix the unit and that the vehicle should be taken to the Thermo-King facility.
   
   The grievant talked to Botello while the Ryder mechanic looked at the Thermo-King unit. Botello asked her what had taken her so long to get from the last stop to Ryder. She explained that she had stopped by the motel to get her things and they had trouble finding them.
   
   During the time the grievant was talking to Botello, the mechanic at the Ryder station examined the Thermo-King unit briefly and decided he did not know how to fix it. He noted that the temperature in the freezer was plus 58 degrees. He did not indicate to the grievant whether he had fixed the unit. The grievant believed he had fixed it because he told her he did not see anything wrong and the temperature had fallen to minus 10 degrees by the time she was ready to leave.
   
   The Ryder mechanic asked the grievant if she knew where the Thermo-King repair facility in Las Vegas was located. She replied that she did not. She did not understand from his remarks that anyone expected her to go to Thermo-King. Botello did not tell her to go to Thermo-King when she talked to him upon arriving at the Ryder facility. She believed the unit was functioning properly because of the mechanic's earlier remarks and the fact that the temperature had fallen from plus 55 degrees to minus 10 degrees during the time she was at the Ryder facility.
   
   The grievant talked to Botello again before she left the Ryder facility and told him the unit was working properly and the temperature was below zero. He instructed her to return to her home base. According to the grievant and a witness who heard Botello's conversation with her, Botello did not tell the grievant to go to Thermo-King to have the freezer checked.
   
   The grievant left Las Vegas for the Los Angeles area at 12:28 p.m. At 3:13 p.m. she arrived at Barstow and stopped to use the restroom and eat. She read the temperature gauge and saw that the freezer unit showed 92 degrees. She moved switches back and forth in an attempt to make a change, but it did no good. She then called Botello and told him what had occurred. She left Barstow at 3:55 p.m. and drove to the warehouse where it was determined that none of the product was salvageable. The loss was valued at $2,600. The grievant was suspended on June 6, 1994, pending the employer's investigation of the matter.
   
   ...
   At the time Botello had two of his telephone conversations with the grievant on June 4, Tim Flannigan, another driver employed by the employer, was present and heard Botello direct the grievant to go to Ryder and have the equipment fixed.
   ...
   At the time Botello had two of his telephone conversations with the grievant on June 4, Tim Flannigan, another driver employed by the employer, was present and heard Botello direct the grievant to go to Ryder and have the equipment fixed.
   ...
   Botello said they had had problems with Thermo-King.
   ...
   Botello said it was not feasible.
   
   POSITIONS OF THE PARTIES
   
   The Employer
   
   The employer maintains it proved by a preponderance of the evidence that the grievant was guilty of negligence, dishonesty, insubordination, and damaging its reputation with a customer. Those acts, plus the grievant's prior disciplinary record, make the penalty of discharge appropriate.
   ...
   At her second stop of June 4, the grievant told Botello that everything was frozen, yet at the next stop the customer refused all the frozen goods. The product was thawed and the grievant should have been aware of that fact before attempting to deliver the product.
   
   The Ryder mechanic inspected the Thermo-King unit, found that he could not fix it, and noted the gauge read 58 degrees. He told the grievant to go to the Thermo-King facility to have the unit repaired, but she did not go.
   
   The grievant drove to Barstow and reported a 92-degree reading to Botello. He told her to go directly to her home base. She instead spent 42 minutes in Barstow before leaving. Although she said she had a sugar problem, she did not mention that to Botello or to anyone during the investigation.
   
   The employer had a right to determine the reasonable behavior of its employees and had the right to discharge the grievant for her several acts of gross negligence that lead to a $2,600 loss. Her negligent handling of a food product was especially serious because she potentially jeopardized the life and health of consumers who ate at the restaurants she serviced.
   
   The grievant told Botello that the Thermo-King unit was fixed at Ryder and was reading minus 10 degrees. However, the Ryder mechanic had told her to go to the local Thermo-King facility to have it repaired. She did not tell Botello of this, instead she said the unit was fixed.
   
   Drivers are on their own when making deliveries; supervisors are not present. The employer has a right to rely on the drivers to be honest when reporting from the field. The grievant provided her supervisor with inaccurate information which affected the su