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Sixth Circuit Rules That Consistent Enforcement of Zero-Tolerance Policy Wins the Day

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Sixth Circuit Rules That Consistent Enforcement of Zero-Tolerance Policy Wins the Day

Earlier this week, a unanimous Sixth Circuit Court panel affirmed a district court’s summary judgment ruling in favor of an employer and a union where two terminated employees asserted they had been selectively discharged under a strict company policy and their union failed to fairly represent them when declining to pursue arbitration.

Plaintiffs were two longtime employees of the Kroger Company who were discharged after making a store purchase while on the clock in violation of Kroger’s Purchase Policy. Kroger has zero-tolerance practice to the Purchase Policy and terminates employees who knowingly violate the rule. Plaintiffs, who were subject to a collective bargaining agreement, asked their union to file grievances on their behalf. Plaintiffs admitted that they knowingly violated the rule, but argued that the punishment was unduly harsh. The Union processed both grievances, but they were denied at all three steps. The Union then declined to pursue arbitration.

Plaintiffs asserted a hybrid claim in the Eastern District of Michigan under the Labor Management Relations Act against Kroger for wrongful discharge and the Union for breach of the duty of fair representation. Crampton v. Kroger Co., 213 F. Supp. 3d 910 (E.D. Mich. 2016). The district court awarded summary judgment to both defendants.

On appeal, in Crampton v. Kroger Co., 2017 U.S. App. LEXIS 19634 (6th Cir. Oct. 5, 2017), Plaintiffs argued that the Union did not fairly represent them when it did not pursue their claims beyond the grievance procedure. They asserted that the Union was obligated to pursue these claims where the discipline was disproportionately severe. The Union countered that its actions were consistent with its longstanding practice of not pursuing arbitration where employees violated and were terminated under Kroger’s Purchase Policy. The Court held that the Union’s refusal to pursue arbitration in these scenarios was not unreasonable or wholly irrational “[w]here the record shows that Kroger has enforced the Purchase Policy strictly and consistently by discharging all proven violators, and each employee has admitted that she knowingly violated the policy.”

The Sixth Circuit rejected the argument that Kroger selectively enforced the Purchase Policy because “the record was devoid of evidence that Kroger was aware of any proven violations that went unpunished.” The Plaintiffs argued that their transgressions were minor and termination was unwarranted. The Court did not offer an opinion on the policy itself, but did say they were “not unsympathetic with plaintiffs’ claims.” Nevertheless, the Court held that the policy had been enforced strictly and consistently and that the district court had properly applied governing law.

The Court’s ruling provides some important reminders for employers. Having a zero-tolerance policy is not enough—employers must be consistent in applying discipline in these cases, as unpunished violations will only support the argument that the employer’s zero-tolerance policy is actually an arbitrary policy. Additionally, employers with workforces represented by unions can, in some cases, avoid arbitration and create more harmonious relations when they consistently enforce workplace policies.