Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 1 of 14
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`
`
`
`
`
`
`
`Case No.
`
`
`COCA-COLA BEVERAGES
`NORTHEAST, INC.
`
`
`
`v.
`
`LOCAL UNION NO. 170 OF THE
`INTERNATIONAL BROTHERHOOD
`OF TEAMSTERS,
`
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff
`
`Defendant
`
`
`
`
`
`
`COMPLAINT
`
`This is an action brought by Coca-Cola Beverages Northeast, Inc. (“CCBNE”) pursuant to
`
`the Federal Arbitration Act, 9 U.S.C. § 1, et seq. and Section 301 of the Labor Management
`
`Relations Act, 29 U.S.C. § 185 et. seq., to vacate an arbitrator’s award, which the Arbitrator issued
`
`in excess of the powers CCBNE and the Local Union No. 170 of the International Brotherhood of
`
`Teamsters (“Union”, collectively, the “Parties”), granted to her in their Collective Bargaining
`
`Agreement. The Arbitrator’s award created new and additional requirements that the Parties did
`
`not expressly provide in their Collective Bargaining Agreement, and which are devoid of rational
`
`support or derivation from the terms of the Collective Bargaining Agreement. The Arbitrator
`
`ignored the express terms of the Parties’ Collective Bargaining Agreement which assigned
`
`disciplinary discretion to CCBNE and prohibited the Arbitrator from substituting her judgment for
`
`that of CCBNE when she ordered the reinstatement of a terminated employee who CCBNE
`
`terminated for theft, records falsification, and dishonesty.
`
`
`
`B0122033.4
`
`
`
`
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 2 of 14
`
`I.
`
`JURISDICTION & VENUE
`
`1.
`
`This Court has jurisdiction over this matter pursuant to Section 301 of the Labor
`
`Management Relations Act of 1947, 29 U.S.C. § 185, and 28 U.S.C. § 1331.
`
`2.
`
`Venue is proper in this District pursuant to 29 U.S.C. § 185 and 28 U.S.C. § 1391
`
`because the subject matter of the grievance to which the arbitration award at issue relates arose
`
`within Massachusetts; the subject matter of the grievance concerns an employee who resides in
`
`Massachusetts and was employed at CCBNE’s Westborough, Massachusetts Sales Center; the
`
`Union maintains its principal office in Worcester, Massachusetts; and the Union’s duly authorized
`
`officers or agents are engaged in representing or acting for employee members in Massachusetts.
`
`II.
`
`PARTIES
`
`3.
`
`Coca-Cola Beverages Northeast, Inc. is a Delaware corporation with a principal
`
`place of business at 1 Executive Park Drive, Suite 330, Bedford, New Hampshire, 03110.
`
`4.
`
`Local Union No. 170 of the International Brotherhood of Teamsters is an
`
`unincorporated labor organization within the meaning of 29 U.S.C. § 185 and represents
`
`employees in an industry affecting interstate commerce. The Union maintains a principal office
`
`at 330 Southwest Cutoff, Suite 201, Worcester, Massachusetts 01604.
`
`III.
`
`FACTS
`
`5.
`
`CCBNE has owned and operated a sales center located at 2 Sassacus Drive,
`
`Westborough, Massachusetts since September 29, 2017 (“Westborough Sales Center”).
`
`6.
`
`The Union represents a bargaining unit at the Westborough Sales Center that
`
`includes Jose Calderon as a member.
`
`
`
`
`
`B0122033.4
`
`
`2
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 3 of 14
`
`A.
`
`The Collective Bargaining Agreement
`
`7.
`
`CCBNE and the Union are parties to a collective bargaining agreement that
`
`provides for the terms and conditions of employment for bargaining unit employees, including Mr.
`
`Calderon (hereinafter the “Collective Bargaining Agreement”). A true and accurate copy of the
`
`Collective Bargaining Agreement (effective February 1, 2021, to January 31, 2024) is attached
`
`hereto as Exhibit A.
`
`8.
`
`Article 18 of the Collective Bargaining Agreement addresses procedures for
`
`discipline and discharge of employees in all cases except attendance, which is separately addressed
`
`by Article 13.
`
`9.
`
`Article 18 provides:
`
`Employees may be discharged for proper cause. Employees engaging in the
`following offenses will be deemed to have been discharged for proper cause:
`Use, possession or sale of drugs and/or alcohol, fighting, theft, willful
`insubordination, willful damage of company property, willful falsification of
`company documents, possessing or carrying of dangerous weapons or firearms on
`company property, failure to report a vehicle or industrial accident, punching of
`another employee’s timecard. The above list represents the most common
`situations or offenses that warrant discharge without a warning notice, but is
`not intended to be exhaustive. The Union shall be notified promptly of any
`discharge and representatives of the Union shall have the right to investigate.
`
`
`Ex. A, Art. 18.3 (emphasis supplied).
`
`10.
`
`The Collective Bargaining Agreement does not require CCBNE to utilize
`
`progressive discipline prior to termination, except as required by Article 13 to address attendance
`
`issues, which are not relevant to this matter.
`
`11.
`
`The Collective Bargaining Agreement further permits CCBNE to “to promulgate
`
`and enforce reasonable shop safety and Company rules of all kinds, and to enforce penalties for
`
`their violations and to take such measures as management may determine to be necessary for the
`
`orderly, efficient and profitable operation of the business.” Ex. A, Art. 4.1.
`
`B0122033.4
`
`
`3
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 4 of 14
`
`12.
`
`The Collective Bargaining Agreement includes a grievance and arbitration process
`
`should, for example, CCBNE and the Union disagree on whether a discharge is supported by
`
`proper cause under Article 18. Ex. A, Art. 19.
`
`13.
`
`If the grievance procedure set forth in the Collective Bargaining Agreement does
`
`not successfully resolve a dispute between the Parties, the Parties may submit that dispute to
`
`arbitration. Ex. A, Art. 19.3.
`
`14.
`
`An arbitrator adjudicating a grievance under the Collective Bargaining Agreement
`
`may “interpret the Agreement and apply it to the particular case presented to him, but he shall not
`
`have the authority to add to, subtract from, or modify the terms of this Agreement or of any
`
`supplemental agreement reached between the parties.” Ex. A, Art. 19.4.
`
`B.
`
`CCBNE’s Rules
`
`15.
`
`Pursuant to its authority under Article 4.1 of the Collective Bargaining Agreement,
`
`CCBNE promulgated a set of employee rules and regulations for on-the-job conduct (“Work
`
`Rules”). A true and accurate of the Work Rules is attached hereto as Exhibit B.
`
`16.
`
`The Work Rules repeatedly stress the importance of honesty, stating, “We expect
`
`Coca-Cola employees to be conscientious, reliable and honest . . .” (Ex. B, at *1); “We expect you
`
`to be completely honest and truthful in all of your dealings with you co-workers, your supervisors,
`
`the Company's customers, and the Company.” (Ex. B, at *2); and generally reinforcing the
`
`negotiated language in Article 18 of the Collective Bargaining Agreement that honesty-related
`
`offenses, such as “falsifying work records,” are subject to discharge for a first offense (Ex. B at
`
`*5). The Work Rules further specify, again consistent with the Collective Bargaining Agreement,
`
`that discharge is appropriate for a first offense of “Theft or embezzlement from company, customer
`
`or employees.” Id.
`
`B0122033.4
`
`
`4
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 5 of 14
`
`17.
`
`Even in the absence of explicit Work Rules, it is fundamental to the employer-
`
`employee relationship that an employer expects an employee, especially an hourly employee, to
`
`be physically present where he performs work and be actually working while clocked in and
`
`representing himself through his time entries and other records as working and then accepting pay
`
`for doing so.
`
`C.
`
`CCBNE Discharges Jose Calderon
`
`18.
`
`CCBNE hired Jose Calderon as a Merchandiser when it purchased the Westborough
`
`Sales Center on September 29, 2017.
`
`19. Merchandisers, including Mr. Calderon, primarily work without direct supervision,
`
`spending most days away from the Westborough Sales Center and working at the various retail
`
`stores that sell CCBNE’s products.
`
`20.
`
`The Company requires Merchandisers to document their activities by making an
`
`electronic record on a company-issued phone, detailing time entries, breaks, and work activities
`
`throughout each workday.
`
`21.
`
`In the course of negotiations that resulted in the Collective Bargaining Agreement,
`
`the bargaining unit, including Mr. Calderon, engaged in a strike from March 15, 2021, through
`
`March 30, 2021.
`
`22.
`
`Other than being generally aware of his role as a steward and a member of the
`
`bargaining committee, CCBNE is unaware of what role, if any, Mr. Calderon played in internal
`
`Union deliberations in the lead-up to and execution of the strike.
`
`23.
`
`On April 2, 2021, Coke Northeast and the Union signed a strike settlement
`
`agreement as part of entering into the Collective Bargaining Agreement, retroactive to February 1,
`
`2021.
`
`B0122033.4
`
`
`5
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 6 of 14
`
`24.
`
`Following the strike, Coke Northeast prioritized conciliation and the returning
`
`strikers largely reintegrated into their jobs without issue or incident.
`
`25.
`
`On April 6, 2021, however, Seedi Sheriff, a supervisor and former Merchandiser
`
`himself, observed Mr. Calderon sit in his vehicle for approximately 20 minutes even though Mr.
`
`Calderon created a Company work record that he was clocked in and physically working inside
`
`the retail store to which he was assigned.
`
`26.
`
`On April 8, 2021, Tarini Eshwariah, another supervisor who on that day was filling
`
`in as an Account Manager, could not locate the Merchandiser who was supposed to be in a retail
`
`account that CCBNE assigned to her. Upon investigation, she determined that the Merchandiser
`
`was Mr. Calderon and she caught Mr. Calderon returning to work 12 minutes late from his break.
`
`Similar to April 6, Mr. Calderon’s work record entries indicated he was clocked in and physically
`
`working inside the retail store. Ms. Eshwariah verbally confronted Mr. Calderon regarding this
`
`theft of time.
`
`27.
`
`Both Mr. Sheriff and Ms. Eshwariah reported these incidents to their manager,
`
`Meaghan Jennison, and CCBNE began an investigation.
`
`28.
`
`In the course of its investigation, CCBNE hired a private investigation company to
`
`observe Mr. Calderon’s activities during his working hours.
`
`29. Alliance Risk Group, Inc. conducted surveillance during Mr. Calderon’s working
`
`hours activities on May 5, 7, 8, 14, 15, and 22, 2021.
`
`30.
`
`Three patterns emerged: first, Mr. Calderon represented himself as working by
`
`consistently punched in and out of work earlier and later than CCBNE authorized; second, on
`
`multiple days Mr. Calderon had significant blocks of time during which he falsely created
`
`Company records to claim he was physically working but was neither physically present where he
`
`B0122033.4
`
`
`6
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 7 of 14
`
`was to perform work nor actually working; and, third, Mr. Calderon submitted his falsified time
`
`entries as the basis for which CCBNE would pay him, thus committing theft.
`
`31.
`
`This investigation uncovered a minimum of 27 additional discrete instances of time
`
`theft in addition to the two discovered by Seedi Sheriff and Tarini Eshwariah, amounting to 29
`
`discrete instances where Mr. Calderon’s timecards/record entries did not match his activities.
`
`32.
`
`The length of these instances varied, but in perhaps the most egregious example,
`
`on May 7, 2021, Mr. Calderon finished his work for the day but nonetheless he did not clock out
`
`and instead, continued to represent himself through his time entries and other records as physically
`
`present and actively performing work inside a retail store for 52 minutes during which he sat in
`
`his car and performed no work. He then clocked out and ended his purported workday.
`
`33.
`
`Because Mr. Calderon falsified time entries in this and other instances and
`
`submitted those records to CCBNE, CCBNE compensated him for his time, including paying him
`
`at the rate of time and one half, even though he had already ended his actual work day and was
`
`physically outside the place where his work was performed.
`
`34.
`
`All told, over the six days of observation, plus two other instances observed by
`
`supervisors, the false entries made by Mr. Calderon and for which CCBNE paid him amounted to
`
`at least 331 minutes, or over 5 1/2 hours of time.
`
`35.
`
`On May 27, 2021, CCBNE managers interviewed Mr. Calderon regarding these
`
`false entries and presented him with a summary of the evidence it had collected up to that point.
`
`For some of the instances, Mr. Calderon was not able to provide an explanation.
`
`36.
`
`Rather than take any responsibility for any wrongdoing whatsoever, Mr. Calderon
`
`repeatedly lied during the interview in ways that CCBNE was able to easily disprove.
`
`B0122033.4
`
`
`7
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 8 of 14
`
`37.
`
`For example, Mr. Calderon identified certain specific incidents being due to “mask
`
`breaks” allegedly authorized by a supervisor Mr. Calderon could not name. In fact, other than
`
`contractual breaks set forth in the Collective Bargaining Agreement, no other authorized breaks
`
`exist.
`
`38. Mr. Calderon decided to take several of these alleged “mask breaks” before
`
`beginning starting work for the day. The Parties in their Collective Bargaining Agreement
`
`expressly prohibit such a break.
`
`39.
`
`Following that interview, CCBNE suspended Mr. Calderon pending further
`
`investigation.
`
`40.
`
`On May 28, 2021, CCBNE informed Mr. Calderon that it was terminating his
`
`employment, “[a]s the result of an investigation which included a review with you of the
`
`information gathered regarding theft of time.” A true and accurate copy of CCBNE’s
`
`correspondence to this effect is attached hereto as Exhibit C.
`
`41.
`
`The Union grieved Mr. Calderon’s discharge and the Parties submitted the
`
`grievance to arbitration for determination by Arbitrator Beth Ann Wolfson.
`
`D.
`
`The Arbitration Proceeding and Award
`
`42.
`
`The arbitration hearing took place over two days on October 26 and November 22,
`
`2021, before Arbitrator Wolfson.
`
`43.
`
`The Parties stipulated to the following issue: “Did the Company have proper cause
`
`to terminate the Grievant? If not, what shall the remedy be?”
`
`44.
`
`“Proper cause” is a term expressly defined by Article 18.3 of the Collective
`
`Bargaining Agreement, which definition the Arbitrator was required to apply.
`
`B0122033.4
`
`
`8
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 9 of 14
`
`45.
`
`On February 10, 2022, Arbitrator Wolfson issued a decision finding that Mr.
`
`Calderon committed misconduct warranting discipline, but nonetheless ordered CCBNE to
`
`reinstate Mr. Calderon and reduce his discipline to a written warning. A true and accurate copy of
`
`the Arbitration Award is attached as Exhibit D.
`
`46.
`
`Arbitrator Wolfson, despite drawing almost all factual inferences in Mr. Calderon’s
`
`favor, nonetheless found that he had violated CCBNE’s Work Rules multiple times.
`
`47.
`
`Per Arbitrator Wolfson’s findings, Mr. Calderon conducted personal business,
`
`predominantly in parking lots, for 132 minutes, or 2.2 hours, while he continued to represent
`
`himself through his time entries and other records as physically present and actively performing
`
`work inside a retail account on the days that he was observed. Ex. D at **25-27. Arbitrator
`
`Wolfson excluded the days that Mr. Calderon was observed by Mr. Sheriff and Ms. Eshwariah in
`
`these calculations, despite the Union not disputing these instances in the arbitration, as well as
`
`other days and instances placed in evidence by refusing to consider time stamped video recordings
`
`of Mr. Calderon’s activities.
`
`48.
`
`Even having excluded many of Mr. Calderon’s individual instances of falsification
`
`and theft, Arbitrator Wolfson nonetheless concluded that on at least one instance Complainant sat
`
`in his car, doing nothing for 41 minutes while clocked in and representing himself through his time
`
`entries and other records as physically present and actively performing work inside a retail account.
`
`Ex. D at *25.
`
`49.
`
`In total, Arbitrator Wolfson found that 9 separate and discrete instances of Mr.
`
`Calderon not working while representing himself through his time entries and other records as
`
`physically present and actively performing work on Company time were supported by the
`
`evidence. Ex. D at **25-27.
`
`B0122033.4
`
`
`9
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 10 of 14
`
`50.
`
`Several of these instances that the Arbitrator wrongly characterized as interrupting
`
`the workday occurred before Mr. Calderon began work for the day or after Mr. Calderon concluded
`
`work for the day.
`
`51.
`
`The Arbitrator further found that five of these instances, those occurring on May 7
`
`and May 8, merited discipline, holding “The Employer did have proper cause to issue a written
`
`warning to Grievant for excessive interruption of work for personal business and/or personal phone
`
`calls on May 7 and 8, 2021.” Ex. D at *29.
`
`52.
`
`Arbitrator Wolfson further found that the evidence discredited Mr. Calderon’s
`
`claims to CCBNE that he was taking “mask breaks” during the discrepancies Ex. D at *27, fn. 10.
`
`53.
`
`Arbitrator Wolfson also found that Mr. Calderon was aware of the Work Rules.
`
`Ex. D at *28.
`
`54.
`
`Arbitrator Wolfson then exceeded her authority, acted in manifest disregard of the
`
`contract, and overruled CCBNE’s business judgment in coming to the irrational conclusion,
`
`without any substantive explanation, that Mr. Calderon’s misconduct, even though she found it to
`
`have occurred, did not constitute theft or falsification of CCBNE’s time records. Ex. D at *27.
`
`55.
`
`Having come to this conclusion, Arbitrator Wolfson then further exceeded her
`
`authority in denouncing the applicability of the Collective Bargaining Agreement, which applies
`
`to all terminations, to Mr. Calderon’s termination, holding, “Contrary to the Employer’s assertion,
`
`therefore, the resolution of this matter is not governed by either Article 18.3 or its Work Rules
`
`concerning theft.” Ex. D at *27.
`
`
`
`
`
`B0122033.4
`
`
`10
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 11 of 14
`
`56.
`
`Arbitrator Wolfson continued to exceed her authority by refusing to apply
`
`CCBNE’s Work Rules as written. Ex. D at **27-28.
`
`57.
`
`Arbitrator Wolfson ignored that the Collective Bargaining Agreement explicitly
`
`provides management exclusive power to “enforce reasonable . . . Company rules of all kinds, and
`
`to enforce penalties for their violations, and to take such measures as management may determine
`
`to be necessary for the orderly, efficient and profitable operations of the business.” Ex. A, Art.
`
`4.1.
`
`58.
`
`Specifically, Arbitrator Wolfson held, “Because Grievant did not engage in theft,
`
`but did engage in conduct violating an Employer Work Rule that calls for progressive discipline,
`
`and because according to the record evidence Grievant, a 24-year employee, had not previously
`
`been disciplined, I conclude a written warning is appropriate.” Ex. D at *28. In so deciding,
`
`Arbitrator Wolfson failed to correctly apply the Work Rule.
`
`59.
`
`In interpreting the “disciplinary action schedule” contained in the Work Rules to
`
`impose progressive discipline obligations on CCBNE, Arbitrator Wolfson “added to” and
`
`“modified” the terms of the Collective Bargaining Agreement, as prohibited under Article 19.4.
`
`Ex. A, Art. 19.4.
`
`60.
`
`Assuming that the “disciplinary action schedule” was binding on CCBNE under the
`
`contract, Arbitrator Wolfson further modified it in violation of the Collective Bargaining
`
`Agreement when she mandated a written warning for the nine offenses that she found Mr. Calderon
`
`to have committed.
`
`
`
`
`
`B0122033.4
`
`
`11
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 12 of 14
`
`61.
`
`Even were Arbitrator Wolfson acting within her authority in imposing an alleged
`
`progressive discipline requirement on CCBNE, she exceeded her authority in finding that Mr.
`
`Calderon’s misconduct merited a written warning where the Work Rules call on CCBNE to warn
`
`an employee in writing for a second offense and discharge an employee for a fourth offense of
`
`“Excessive interruption of work for personal business, personal phone calls, and/or personal visits
`
`by or to other employees” given that she found that Mr. Calderon had committed at least five
`
`separate offenses meriting discipline.
`
`62.
`
`In her findings, the Arbitrator imposed the discipline that she believed appropriate
`
`and substituted her judgment for the judgment of CCBNE to dispense her own brand of industrial
`
`justice, in explicit disregard of the Parties’ contract.
`
`COUNT I
`
`63.
`
`CCBNE re-alleges and incorporates paragraph 1-62 of this Complaint as if fully
`
`set forth herein.
`
`64.
`
`Arbitrator Wolfson’s Award exceeded her powers under the Collective
`
`Bargaining Agreement.
`
`65.
`
`Arbitrator Wolfson’s Award does not draw its essence from the Collective
`
`Bargaining Agreement.
`
`66.
`
`Arbitrator Wolfson’s Award is without rational support and cannot be rationally
`
`derived from the terms of the Collective Bargaining Agreement.
`
`67.
`
`Accordingly, this Court should vacate the Award pursuant to the Federal
`
`Arbitration Act, 9 U.S.C. § 10(a)(4).
`
`
`
`
`
`B0122033.4
`
`
`12
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 13 of 14
`
`68.
`
`CCBNE re-alleges and incorporates paragraph 1-67 of this Complaint as if fully
`
`COUNT II
`
`set forth herein.
`
`69.
`
`Arbitrator Wolfson’s Award substituted her own judgment for that of CCBNE
`
`and dispensed her own brand of industrial justice in place of the terms of the Collective
`
`Bargaining Agreement.
`
`70.
`
`Accordingly, this Court should vacate the Award pursuant to the Labor
`
`Management Relations Act, 29 U.S.C. § 185 et. seq..
`
`COUNT III
`
`71.
`
`CCBNE re-alleges and incorporates paragraph 1-70 of this Complaint as if fully
`
`set forth herein.
`
`72.
`
`73.
`
`Arbitrator Wolfson’s Award is unfounded in reason and fact.
`
`Arbitrator Wolfson’s Award is based on reasoning so palpably faulty that no judge,
`
`or group of judges, could ever conceivably have made such a ruling.
`
`74.
`
`Arbitrator Wolfson, in articulating her Award, expressly stated that she considered
`
`and expressly disregarded the authorities by which she was bound.
`
`75.
`
`Because Arbitrator Wolfson acted in manifest disregard of the law, this Court
`
`should vacate the Award.
`
`
`WHEREFORE, Coca-Cola Beverages Northeast, Inc. respectfully requests that:
`
`a.
`
`This Court enter a judgment vacating the Award or modifying the Award to
`
`conform to the requirements of the Agreement and applicable law.
`
`b.
`
`This Court grant Plaintiff such other and further relief as may be just and proper.
`
`
`
`B0122033.4
`
`
`13
`
`

`

`Case 4:22-cv-40021 Document 1 Filed 03/08/22 Page 14 of 14
`
`Dated: March 8, 2022
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`Coca-Cola Beverages Northeast, Inc.,
`
`By their attorneys,
`
`
`
`
`/s/ Peter Bennett
`Peter Bennett, Esq., BBO 669083
`pbennett@thebennettlawfirm.com
`Pawel Binczyk, Esq., BBO 682613
`pbinczyk@thebennettlawfirm.com
`THE BENNETT LAW FIRM, P.A.
`75 Market Street, Suite 201
`Portland, ME 04101
`207.773.4775 (Telephone)
`207.774.2366 (Facsimile)
`
`B0122033.4
`
`
`14
`
`