Arbitrator Reinstates Grocery Clerk Who Unknowingly Sold Cigarettes To A Minor

January 11, 2018

On January 12, 2018, a neutral labor arbitrator reinstated a Stop & Shop employee represented by UFCW Local 1445 who had been terminated for selling cigarettes to a minor as part of an FDA sting operation. Pyle Rome attorney Tod Cochran represented the Union at arbitration.

Stop & Shop has long had a cigarette-sales policy requiring associates to check for ID for any person buying cigarettes who "appears to be under 30" years old. The policy plainly relies on the judgment call made by the associate who sells the cigarettes. After being caught in a few sting operations, the Company redistributed its cigarette policy in October 2016, but it did nothing to change or strengthen the policy or to remove the discretion of the sales associate. Then in May 2017, a unionized employee was fired after it was determined that she sold cigarettes to a minor who had been sent into the store as part of another sting operation. The Union grieved and arbitrated her termination.

During the hearing, the Company provided video evidence and testimony from managers who testified that the purchaser on the video appeared to be under 30. However, on his own review of the grainy video, the arbitrator determined that the employee had looked closely at the purchaser and that the Company failed to demonstrate that the purchaser looked underage. The arbitrator thus reversed the termination and ordered the employee reinstated with back pay.

The case demonstrates that, in this environment where agencies are stepping up enforcement activities, Companies cannot simply point the finger of blame at their employees but rather must take affirmative steps to strengthen policies to avoid underage sales.