## Facts

- Kroger Limited Partnership operated retail grocery stores and employed the grievant at one of its stores.
- The grievant was a union-represented employee who worked the graveyard shift stocking groceries and had almost five years of service.
- The grievant’s disciplinary record included numerous warnings for workplace problems, including failing to follow instructions.
- During a night shift, the grievant selected a food item from the frozen-food aisle, heated it, and ate it during her break.
- The grievant did not pay for the item during her shift before consuming it.
- The grievant admitted she had not paid for the item but stated she intended to pay when her shift ended.
- Kroger investigated the incident and concluded the grievant committed an act of dishonesty.
- Kroger relied on a company policy, echoed in the collective-bargaining agreement (CBA), stating that employee dishonesty would “not be tolerated and shall be cause for discharge, regardless of amount or length of service.”
- Under the policy, dishonesty included removing company property without a sales receipt or written authorization from management.
- Kroger discharged the grievant, the union filed a grievance, and the dispute proceeded to arbitration.

## Issues

1. Did Kroger have just cause under the CBA to discharge the grievant for dishonesty based on her consumption of store merchandise without paying for it before eating it?
2. Did the grievant’s claim that she intended to pay at the end of the shift prevent the conduct from constituting “dishonesty” under the CBA and incorporated policy?
3. Where the CBA and policy state dishonesty “shall be cause for discharge,” may an arbitrator reduce the penalty based on mitigating circumstances such as the item’s low value or the grievant’s length of service?

## Decision

- The arbitrator denied the grievance and sustained the discharge.
- The arbitrator found Kroger established that the grievant took company property (store merchandise), heated it, and consumed it without paying for it before consumption and without a receipt or written authorization.
- The arbitrator concluded the conduct fit the parties’ negotiated definition of “dishonesty” because it involved removing company property without the required receipt or written authorization.
- The arbitrator rejected the grievant’s asserted intent to pay later as insufficient to remove the conduct from the dishonesty rule stated in the policy and echoed in the CBA.
- Given the express “shall be cause for discharge” language, the arbitrator treated discharge as a contractually authorized response to proven dishonesty, rather than substituting a lesser penalty.

## Legal Principles

- In labor arbitration, when a CBA incorporates a clear employer rule stating that employee dishonesty is cause for discharge regardless of the amount involved or length of service, an employer may establish just cause by proving conduct within that rule.
- A negotiated workplace definition of “dishonesty” can extend beyond criminal theft concepts and may include consuming employer merchandise without first paying and without a receipt or written management authorization.
- A stated plan to pay later does not necessarily defeat a dishonesty charge where the negotiated rule focuses on taking or using property without payment/receipt/authorization at the time of removal or consumption.
- Where the parties have agreed to strong, specific penalty language for dishonesty, an arbitrator generally gives effect to that language once the underlying misconduct is proved.

## Conclusion

*Kroger Limited Partnership*, 122 Lab. Arb. (BNA) 413 (2006) sustained Kroger’s discharge of a union grocery stocker who heated and ate a store food item without paying for it before consumption, holding that the conduct fell within the CBA-incorporated dishonesty policy and that the grievant’s claimed intent to pay after the shift did not defeat just cause.


Kroger Limited Partnership, 122 Lab. Arb. (BNA) 413 (2006)