Union Could Have Filed a ULP When Employer 'Stonewalled'
A union cannot argue an employer's failure to provide information supports a grievance when the union failed to make every effort to obtain that information, said arbitrator William H. Holley Jr.
A civilian employee and official in Local 987 of the American Federation of Government Employees filed a series of grievances against his supervisor at Robins Air Force Base, then grieved his annual performance review. The union requested information from the employer it said was needed to properly represent that grievance. Complaining that the employer refused these requests, Local 987 proceeded to arbitration, arguing in part that the employer's refusal to supply the requested information supported overturning the performance review and constituted "bad faith" bargaining.
"The union is correct that it is entitled to relevant information necessary to prepare for arbitration and present its evidence," said arbitrator Holley. The "union had several choices" when the employer refused it access to this information, Holley continued, including filing an unfair labor practice charge, postponing the arbitration, or requesting a subpoena through the arbitrator. Instead, the "union proceeded to arbitration instead of pursuing one of the avenues ... that could have led to provision of information." It therefore cannot cite employer "stonewalling" as grounds for overturning the performance review, Holley said in denying the grievance (Robins Air Force Base, 125 LA 421 (Holley, 2008)). [CLEAR Source: BNA's Union Labor Report (9-5-08) p. 143]
Picketing for Shutdown Victim Violated Mobilization Agreement
A telephone company closed one of its offices. Among the options provided employees was taking severance pay or taking an unpaid leave of absence for up to two years so that the employee can reach retirement eligibility. Employees taking this option lose any severance pay.
One employee at the time of the shutdown was six days short of full pension eligibility, for 30 years of service. A union representative asked the employer to make an exception to the rules so that the employee could retire and receive severance benefits but was turned down.
The representative, along with several other others, conducted an informational picket to pressure the employer to make an exception. They stopped, after a company official directed the union representative to cease the demonstration, on the grounds that the picketing violated the parties' Permissible Mobilization Activities Over Grievable Issues Agreement, also known as the mobilization agreement.
Both parties filed grievances alleging that the other had violated the mobilization agreement.
The union argued that the action did not violate the agreement, which bars "any form of mobilization activity that is subject to the grievance and arbitration process," because the union could not arbitrate the employee's issue. The picketing, it said, was over a refusal to grant "a benefit that is above and beyond anything provided or required by the contract."
The employer argued that the union could have grieved the benefits issue. The employer noted that the requisite for the filing of a grievance is not that it has to be winnable. It observed that "the denial of a benefit is what an arbitrator routinely deals with when having
to decide whether an employee has been wronged."
AWARD: Arbitrator William F. Riker sustained the employer's grievance and denied the union's grievance (Qwest Corp., 125 LA 424).
DISCUSSION: Riker observed that "the terms and conditions of the grievance procedure through final and binding arbitration is the significant factor separating organized employees from the unorganized." "It is the equalizer," he continued, "and gives an even playing field to labor and management in that it assures the parties that a dispute can be processed and resolved in an orderly manner and without disruption in the workplace."
Riker said that the union had "an extremely high burden" to prove that the issue was not subject to the grievance procedure, which the union did not meet. Riker agreed with the employer that "the issue is not whether a grievance is winnable but whether it can be reasonably considered to be a matter that falls under the terms of the CBA."
PRIOR RULING: Other similar cases have usually involved sympathy strikes or picketing involving other units. Arbitrator Barry J. Baroni upheld the discharge of a Texas union steward who called in sick and then picketed for a striking sister union at one of the employer's Ohio plants. Baroni said that she had violated the no-strike clause of the collective-bargaining contract, which also barred picketing, and was dishonest.
Baroni rejected the contention that the employer had acted discriminatorily, even though it did not discipline the union president, who engaged in the same picketing. But she had requested union leave, and was not paid by the employer for the time 'spent picketing, Baroni noted. More importantly, the president did not misrepresent why she took leave, and indicated why she was doing so (MerckMedco RX Services, 110 LA 782).
[CLEAR Source: BNA's Labor Relations Reporter 184 LRR 454 (9-8-08)]
Confronted with hearsay evidence, employees or union representatives have no opportunity to challenge damaging testimony. Such evidence is almost always unreliable, and many collective bargaining agreements and most arbitrators refuse its use in the grievance process.
Can Discipline Stand Without Opportunity to Question Evidence?
"I have no idea what you're talking about," said flight attendant George Hart. "You fire me for something I supposedly did on a crowded airplane, but won't let me know who is complaining?"
"You were fired for inappropriate touching," said human resources director Barbara Laurent. "It was not the first complaint about your behavior, but it is the last."
Is complaint sufficient evidence? Facts: A passenger who had flown on an America West flight called the airline's telephone complaint line the next day. He asserted that a male flight attendant, without solicitation, had rubbed his feet six or seven times during the flight and later rubbed his neck and arm. The passenger considered the actions unwelcomed homosexual advances and eventually won a financial settlement from the airline.
Supervisors redacted the telephone complaint, which was not recorded, into a written format, suspended the flight attendant, and asked the nine-year employee for a rebuttal. Neither the complaining passenger's name, physical description, seat location, or class of service was identified.
During the 12 months preceding the incident, the attendant had received 44 positive reports from the employer. He also received 94 "above and beyond" cards from frequent flyers-who were encouraged to rate the service of attendants-and earlier was recognized for superior job performance with a presentation of an "in-flight all star" pin with three jewels, a certificate of appreciation, and a day off with pay.
The flight attendant denied that the incident occurred, and other crew members serving on the flight similarly rebutted the claim. The attendant said he spent much of his time on the flight devoted to caring for an ill mother and her two small children. He acknowledged bumping into a passenger's toes while pushing a service cart through the aisles, but said his apologies were met without hostility. None of the other attendants on the flight contradicted his account.
Supervisors in the airline's customer complaint department again contacted the complaining passenger, who stood by his account, and in addition spoke to another witness, who substantiated the complaint. This together with a 30-day suspension two years earlier for inappropriately touching a passenger was enough evidence to determine the grievant's guilt and justify his termination, the employer claimed.
The Association of Flight Attendants grieved, arguing lack of just cause. The union also complained that it could not defend the grievant because the employer refused to identity the accuser and other passengers on the flight, thus preventing cross examination. The union charged that the employer did not itself interview other potential witnesses to separate witnessed fact from unsubstantiated accusation.
The union further argued that it was unreasonable to believe the passenger would not have protested any unwelcome contact at the time and suggested he could be a hard-core homophobe who sought to exploit a chance to lash out at the gay flight attendant or just sought to scam the airline out of money or tickets.
Award: The employer failed to prove the attendant's actions warranted termination, said arbitrator Gil Vernon in ordering reinstatement with back pay (America West, 125 LA 73 (Vernon, 2008)).
Discussion: "In this case, the evidence against the grievant boils down to the hearsay statements attributed to two passengers," said arbitrator Vernon. "The statement from the customer complaint department is double -hearsay- be-cause the person who committed the principal passenger's statement to writing didn't even testify to what it was the passenger said. So, not only was the speaker of the statement not available for cross examination, neither was the writer who summarized the conversation."
"We don't even have the passengers' statements in their own words," Vernon said. "Generally, hearsay is often unreliable."
In ordering reinstatement, however, Vernon placed the grievant on a final warning with a no-touch order, noting that "the company should not be burdened in the future from having to prove intent or distinguish between levels of appropriate touching" by this employee.
Pointers: Stewards have to challenge evidence and hearsay testimony throughout the grievance process, as this case demonstrates. That means demanding signed statements from accusers, access to telephone or video tapes of allegations, and as many witnesses as possible who can speak about what may have happened.
This discussion is based on an actual arbitration decision, but the names and dialogue are fictitious.
[CLEAR Source: BNA's On The Line (9-19-08) p. 3]
Implementation of Quotas Changed Working Conditions
During the term of a contract, a newspaper announced that staff writers would be expected to meet a new set of "goals"-writing 10 longer pieces of 3,000 words or more and 12 shorter pieces over the course of a year. Notification of these "goals" came on the heels of a reduction-in-force of six staff writers.
The local union president met with the editor-in-chief of the newspaper to see if there would be any "punitive consequences" for writers who did not meet what the union termed their "quota." According to the union, the newspaper executive could not guarantee that there would be no consequences.
The union then filed a grievance, arguing that the newspaper was "changing working conditions by implementing `Goals' that amount to quotas for employees who write; [and] failed to meet and confer on the new working condition. . . ."
The employer denied the grievance, arguing that it had the authority to institute the goals based on the management rights provision, which gave the company the right to "require employees to meet reasonable standards of performance."
Award: An arbitrator granted the grievance (LA Weekly, 125 LA 220 (Gentile, 2008)).
Discussion: Noting that in discussing the new standards the employer used the term "goals" while the union used the term "quotas," the arbitrator said it first was necessary to give those terms "a definitional context" since "they are neither synonymous nor interchangeable." According to the arbitrator, "a `goal' is a target toward which effort is directed to achieve the result desired," while "a ‘quota' is a requirement as to the quantity of the work expected." He found that "quotas" was a more accurate description of the requirements at issue here.
While management had the right to "require employees to meet reasonable standards of performance," those standards "were those in place when the Agreement was executed by the parties," the arbitrator said.
Finding that unilateral implementation of the quotas "materially changed the `reasonable standards of performance' in place and this in turn changed and modified the `terms and conditions of employment,' " the arbitrator concluded that the employer violated the contract.
The arbitrator ordered the newspaper to meet and confer with the union over the implementation and possible effects of the "quotas."
Pointers: In another case involving the newspaper industry, an arbitrator upheld the establishment of new standards of performance for commission-only salespeople. An employer "must be given broad deference in establishing standards of performance," and the employer here has established standards at least since 1988, -the arbitrator said. The employer did not act arbitrarily in developing its standards, but it went through a six-month process during which it "considered the combined expertise of managers and supervisors and a report from the National Association of Advertisers which provided benchmarks for various performance standards." The standards were achievable, the arbitrator found, noting that the employer had lowered the minimum point range for "performer" status from 90 points to 80 points (Seattle Times Co., 119 LA 1109 (Reeves, 2004)).
In another case, an arbitrator stated that an employer's standards must be upheld unless they are unreasonable, arbitrary, and capricious because the employer reserved the right to determine standards in the collective bargaining contract. However, the standards here were unreasonable, the arbitrator decided. They required that a certain number of jobs be done every day, even though the jobs are neither uniform nor repetitive, and the employer did not discipline all employees who failed to make their quotas (ADT Sec. Servs. Inc., 120 LA 690 (Wolff, 2004)).
The case discussion above is designed to illustrate how arbitrators resolve disputes. "LA" references are to BNA's weekly Labor Arbitration Reports. For sample contract language on work assignments, see chapter Work Assignments and Transfer of Work.
[CLEAR Source: BNA's Collective Bargaining Bulletin (9-11-08) p. 111]
Falsified Social Security Identity Provides Just Cause to Discharge
A after filling out an employment application using fake identification and a false Social Security number, an employee was hired to work for an electronics manufacturing company. She eventually resigned from her job when the employer demanded she provide a valid Social Security number because she was unable to fulfill the employer's request.
A few years later she applied for a position at the same company using her real name and a valid Social Security number, and the company hired her to work there for a second time. On her second employment application, the employee refused to answer a question regarding whether or not she had been employed by the company in the past.
While searching for a missing document to comply with a union request for information, the company discovered the employee's original closed personnel file containing a false Social Security number. When the company discovered that the employee had been hired before, using a different name and Social Security number, the woman claimed that her Social Security number had been changed because she had recently married.
The company discharged the employee because she falsified an employment application and lied repeatedly to its representatives.
The union grieved, alleging that the company did not have just cause to discharge the employee, and arguing that her two years of service negated the impact of her previous misconduct.
AWARD: Arbitrator Richard W. Dissen denied the grievance (Howard Industries, 124 LA 1715).
DISCUSSION: Arbitrator Richard W. Dissen concluded that the company had just cause to discharge the grievant. Dissen determined that the grievant was "deliberately deceptive" by suggesting falsely that her social Security number had changed as a result of her recent marriage and evading the one question on her second job application regarding her former employment with the company.
The union contended the company should have conducted a more careful investigation that would have revealed the employee's deception sooner, but Dissen found that the employer "was entitled to rely on the accuracy of information" in an employment application.
The arbitrator also rejected the union's argument that by failing to discipline the employee during her two years of service, the employer waived its right to penalize the dishonest conduct. Dissen ruled that the grievant's falsification of her employment agreement constituted fraud on the employer, and he opined that the law does not protect those who engage in fraud that is "successfully hidden" for "substantial periods of time." He noted that the company had consistently discharged employees who lied on their employment applications.
PRIOR RULINGS: An employer had just cause to discharge a bus operator, Arbitrator Ruben R. Annendariz determined, given that the driver had been convicted of off-duty driving under the influence of alcohol, and he sent his employer falsified doctor's notes (ATCNanCam, 121 LA 1601).
Just cause existed to discharge an employee, after he saw a co-worker carrying company property in unusual circumstances, and yet he firmly denied having seen anything when he was later questioned after the coworker was caught leaving the premises with property. The employee's denial and farfetched explanations led to the conclusion that he knew his co-worker intended to steal, kept the planned theft secret instead of reporting it, and then lied about his knowledge to his employer, Arbitrator Dennis R. Nolan concluded (Chesapeake Paper Products, 103 LA 498).
[CLEAR source: BNA's Labor Relations Reporter, 184 LRR 166 (6-16-08)]
Employee Improperly Discharged After Taking 99 Cent Grocery Pie
A supermarket head produce clerk was discharged for eating a 99 cent pie without paying for it. The employee routinely ate lunch in the store after purchasing items in the store deli. One day, he purchased a chicken breast and rolls and allegedly took a pecan/ cheese pie without paying for it.
A co-manager observed the employee's actions. Management confronted him, he could not find a receipt, and he allegedly admitted he had stolen the pie. The employer eventually discharged him for the offense of "Dishonesty of any kind, including theft. . ."
The union grieved. It argued that the employer was "guilty of issuing disparate disciplinary measures relating to a di minimus matter-the alleged theft of a 99 cent pecan/ cheese pie." The union noted that the employer had "served the Company for twentyone years as a highly skilled employee delivering quality performance." The union was also concerned that management did not immediately confront the grievant when it first decided that he had stolen the pie, but waited for him to eat it before "declaring theft."
The employer denied the grievance. "The value of an item may be 99 cents or 99 dollars," the employer observed. "Theft of either item constitutes dishonesty," the employer continued, " regardless of value," and its employee handbook provides that "Dishonesty of any kind. . ." may lead to ". . . discipline up to and including discharge."
AWARD: Arbitrator David A. Singer Jr. declined to sustain the discharge, reinstating the employee with a suspension for his time off work (Kroger Ca., 124 LA 1633).
DISCUSSION:
Singer observed that the employer had been "all over the map" in its application of discipline for theft. In some cases it had discharged employees for
stealing produce, and it discharged a bagger who stole cookies. But in other cases, it came to different conclusions. For example, an employee who was observed sliding product was not discharged, Singer said. The employer's discipline "is neither corrective, nor is it progressive-the hallmark of any discipline policy worthy of the name," Singer stated.
Singer continued that if "management had adhered to past practice," the incident would not have occurred. "Management has always been in the habit of asking the employee if items have been paid for," Singer said. When employees gave explanations, "supervision has advised employees to pay for items before consumption," the arbitrator observed. That kind of exchange, he continued, was designed to give the employee the benefit of the doubt.
"I suspect that the Grievant, in fact, stole the pie," Singer stated. But, he continued, the employer failed to provide conclusive proof of the theft. "The manager appears to have engaged in an effort to trap the Grievant," Singer continued, " by lurking around the office and observing as he ate pie." Singer was persuaded "that under similar circumstances employees have been given latitude not extended to the Grievant."
Finally, Singer observed that the phrase that someone who steals from the employer may be disciplined with penalties of "up to and including discharge" does not mean that discharge is automatic. "The Grievant," Singer said, "was victim of a Draconian response to a relatively minor offense."
"The Company applied an atomic bomb to do the job of a fly swatter," the arbitrator stated.
"The Grievant's twenty-one year record justified reasonably applied disciplinary measures," Singer said, "and rendered the offense minor." The employee deserved to be disciplined, Singer concluded, but did not deserve to be discharged. Singer reinstated the employee with no back pay and with a suspension for the time off work.
[CLEAR source: BNA's Labor Relations Reporter, 184 LRR 138 (6-9-08)]
Non-Consecutive Suspensions May Be Imposed on Worker
A three-day suspension may be spread over three weeks even if it reduces overtime pay, arbitrator Geoffrey L. Pratte said.
A press operator of Bohn & Dawson's manufacturing plant violated attendance policies and received an uncontested three-day suspension. Because of customer needs and to avoid creating hardship for other workers, the employee was told to serve her suspension one day per week over three consecutive weeks. Because suspended hours do not count when calculating mandatory overtime, the employee was not paid for as much as four hours of overtime she would otherwise have earned. Local 688 of the International Brotherhood of Teamsters grieved, arguing in part that while the suspension was correct, the loss of overtime was punitive and should be overturned.
"The [collective bargaining] agreement specifically declares that for the purposes of overtime computation, approved vacation, listed paid holidays, and funeral leave will be treated as hours worked," noted arbitrator Pratte, but "it does not list hours lost because of disciplinary suspension as being hours worked." Pratte continued that he "cannot believe that the grievant is seriously complaining that hours of suspension should somehow be counted as hours worked for purposes of overtime" and denied the grievance (Bohn & Dawson, 125 LA 445 (Pratte, 2008)).
[CLEAR Source: BNA's Union Labor Report (9-19-08) p. 151]
Suspect Safety Evaluation Does Not Support Firing
A report by an inspector sitting out of sight of alleged safety violations cannot be trusted to support the termination of a worker accused of breaking, safety rules, arbitrator-Daniel F. Jennings said.
An in-flight supervisor for Southwest Airlines did an unannounced "check ride" to examine the performance of flight attendants and crew members during a flight from Oakland to Burbank, Calif. The supervisor took seat 23F at the rear of the aircraft and later claimed that as the plane gathered speed for takeoff she observed a 17-year flight attendant not strapped into the rear jump seat by the exit. As soon as the pilot switched off the "fasten seatbelt" light, the supervisor walked to the rear exit where she saw the attendant cleaning up a juice spill and overturned bags. She asked the attendant why she wasn't strapped into the jump seat and the attendant explained that she had been, but then saw unfastened storage lockers open and the contents of crew flight bags and cartons of juice spilled onto the floor, creating a safety hazard she thought she had to address. Upon landing, the supervisor filed a report of the event, and managers investigated, gathering supplemental testimony from the supervisor, the attendant, and other crew members on the flight. The employer fired the attendant for breaking work rules requiring attendants to be strapped in during takeoffs and citing the danger of her being out of her seat at that time. Local 556 of the Transport Workers Union of America grieved, arguing in part a lack of just cause, questioning the accuracy of the supervisor's claims and citing the grievant's long service record as mitigating for lesser discipline.
The question is whether the supervisor "could actually observe the location of the grievant" during taxi and takeoff, said arbitrator Jennings. The supervisor said she had moved from seat 23F, from which she could not see the grievant during takeoff, to seat 23D, which provided an open view of the area. But the grievant testified she saw the supervisor in 23F when she went to the jump seat, and other attendants on the flight said they observed the supervisor in seat 23F once the aircraft had become airborne. Finding this lack of credibility insufficient to sustain termination, Jennings ordered reinstatement, but without back pay for violating the safety rule (Southwest Airlines, 125 LA 471 (Jennings, 2008)).
[CLEAR Source: BNA's Union Labor Report (9-19-08) p. 151]
Resignation: Company's Detrimental Reliance Precludes Cancellation of a Quit
A highly-skilled union employee at a manufacturing company gave his employer two-weeks notice of his resignation after accepting an offer to work as a tool and die maker for another company. The employee sought to retract his resignation when he learned that the company that offered him the new job had lost a manufacturing order and could no longer hire him. When he attempted to get his former job back, the company had already filled his old position.
On the first day of the two-week notice period, the employee called in sick with a migraine. The company interviewed a replacement the same day, and it hired the new worker contingent on successful passing of a required physical examination. At the time it made the new hire, the employer telephoned the departing employee and told him that he did not need to work through the rest of his two-week notice period and that he should arrange to pick up his tools.
The union contended that because the company informed him that his work was no longer needed before the final day of the notice period, the grievant had not terminated himself. The union also argued that the employee's voluntary decision to give notice of an intended resignation did not cause the company any hardship.
The company countered that the employee lost seniority when he voluntarily resigned and that it had relied to its detriment on the tool and die maker's resignation and hired a new worker before it knew that the employee's job offer had been cancelled.
The union grieved, alleging that the company did not have just cause to refuse to allow the grievant to rescind his resignation and seeking his reinstatement.
AWARD: Arbitrator Matthew M. Franckiewicz sustained the grievance in part (American Standard, 124 LA 1537).
DISCUSSION:
Franckiewicz declared that the employee's resignation could not be analyzed in terms of offer and acceptance because cessation of employment is not a contract. Franckiewicz observed that a termination of the employment relationship by either party "simply ends the contract."
Franekiewicz determined that the company properly declined to accept the tool and die worker's revocation of his resignation. Based on arbitral precedent, Franckiewicz reached the conclusion that the company "had no obligation" to allow the employee to "change his mind" after it took action in reliance upon his announcement of an intent to resign.
Franckiewicz also found that the employer did not have just cause to end the tool and die maker's employment prematurely. Franckiewicz ruled that the employee was entitled to be made whole for salary he would have earned for the remainder of the two-week notice period, during which he was not allowed to work.
PRIOR RULINGS: Arbitrator Hyman Cohen found that an employer violated its collective-bargaining agreement when it refused to accept an employee's revocation of her resignation, despite the contention that it had a past practice of not allowing employees to rescind resignations. The employee resigned as a result of the employer's violation of the agreement when it unilaterally changed a shift schedule, Cohen concluded (ITT Industries, 118 LA 1504).
Arbitrator Robert W. Landau ruled that a city arbitrarily denied an employee's withdrawal of her resignation. The city was not inconvenienced by her rescission of her resignation, and a blanket policy of automatically denying all employee requests to postpone or withdraw resignations is unreasonable, Landau said (Municipality of Anchorage, 108 LA 1184).
[CLEAR source: BNA's Labor Relations Reporter, 184 LRR 67 (5-19-08)]
Just Cause Required to Suspend Arrested Security Officer Indefinitely
A security officer who was employed to protect an automobile manufacturing plant was arrested, while off-duty, for driving under the influence of alcohol. Her employer suspended her due to the arrest, pending the outcome of a hearing on the DUI charges. Results of a blood test the employee took when she was arrested were not yet available on the originally scheduled hearing date, and the hearing was delayed for several months. The employee remained in limbo, suspended from her job with the security company without pay, during the lengthy period between her arrest and court appearance. The company did not make an independent investigation of the circumstances of the officer's arrest during her indefinite suspension.
The union claimed that the employer discriminated against the officer, contending that the company had a past practice of not suspending employees who were arrested for offenses that were not classified as felonies. The union maintained that other employees who had faced similar DUI charges had not been suspended.
The company asserted that it possessed the right to suspend the officer for the six-month period between her arrest and a hearing on the charges, because it enforced a rule requiring its employees to be law-abiding due to the sensitive nature of their work. The company also alleged that it followed a past practice of reinstating employees without the benefit of back pay, even after all criminal charges against a suspended employee had been dismissed, because it could not recover the monetary loss from its client.
The union grieved alleging that the employee was indefinitely suspended without just cause, and it sought reinstatement with back pay.
AWARD: Arbitrator Stanley Kravit granted the grievance, awarding the grievant back pay with interest (Wackenhut Corp., 124 LA 1351. ,
DISCUSSION: Kravit found that the security company's argument that it was different than most employers was not valid. The arbitrator determined that the rules of just cause apply to an employer providing security services, as they do in many other sensitive occupations. The arbitrator pointedly observed that the rules of just cause also "apply to nursing homes and hospitals, fire and police."
Additionally, Kravit ruled that because the suspension of the security officer was a disciplinary action, the employee was denied due process when no investigation took place during her six-month hiatus and her employer did not make an independent judgment within a reasonable amount of time as to whether there was just cause to suspend her.
Kravit also found that the union did not agree with the employer that a past practice of suspending employees with DUI arrests without pay was well established. In the absence of such a mutual understanding, the company was without a defense for its actions and the employee did not receive due process, the arbitrator held.
PRIOR RULINGS: Arbitrator Joseph Chandler determined that the indefinite suspension of an employee, who, during a fight, killed a man who was supervising the hockey team practice of the employee's son, was without just cause, where there was no company rule, or contractual clause that mandated discipline for the violation of la" that his indictment alleged (U.S. Foodservice. 114 LA 1675).
Arbitrator Gregory P. Szuter ruled that an employee, demoted without just cause from a driver position I because he did not report a DUI conviction, be reinstated without back pay, finding that the loss of pay was an equitable penalty for his nondisclosure (Unisource Worldwide, 118 LA 1249).
[CLEAR source: BNA's Labor Relations Reporter, 183 LRR 478 (4-21-08)]
Changing Insubordination Penalty Is Not Allowed
Changing discipline for insubordination from a written warning to discharge is a violation of progressive discipline established in the collective bargaining agreement, arbitrator David Gaba said.
A seven-year, highly rated ski patrol employee at The Canyons ski resort in Park City, Utah, was cautioned that his disrespectful attitude toward supervisors was unacceptable and would not be tolerated. At the beginning of the new season, the employee told his supervisor that he understood what was expected of him and that there would be no more problems. On a single day, however, he nevertheless: got into repeated arguments with supervisors and co-workers, refused to comply with workplace policy, and did not comply with direct orders to load equipment in a prescribed manner for carrying on ski lifts; challenged a supervisor who asked him to help with a routine training session on the slope; told another supervisor that she looked like a "fool" for failing to address a procedural question; and told co-workers he had better things to do than waste his time attending training sessions organized by his supervisor. Confronted late in the day, the employee told a senior supervisor he would only abide by safety guidelines if forced. The supervisor produced a blank reprimand form for him to sign for insubordination and intent not to follow safety protocol. The employee refused, and they agreed to meet later. Upon further reflection and after discussing the issue with other managers, the supervisor instead fired the worker a few days later. Local 7781 of the Communications Workers of America grieved, arguing that standards of just cause and progressive discipline established in the contract were not met.
While the grievant did not sign the blank written warning, the supervisor "believed that he had been administered a written reprimand," said arbitrator Gaba, and their meeting ended with the understanding that the grievant would be written up. Although the employer's arguments for termination are persuasive, once the employer decided to give a written warning and communicated this intent to the grievant, the maximum discipline that may be sustained is a final written warning, Gaba said in ordering reinstatement and issuance of the final warning (The Canyons, 123 LA 1271 (Gaba, 2007)). [CLEAR source: BNA's Union Labor Report , 07-27-07, 119ULR15]
Employer's Mass Lay Off Ignores Seniority Rights
Laying off all workers instead of selected employees based on seniority violates the contract, arbitrator Robert W. Landau said.
The Matanuska-Susitna Borough (Alaska) School District anticipated a $5.8 million budget deficit and planned to reduce from 260 to 240 the number of work days for annual employees represented by the Classified Employees Association. The union objected, arguing that the contract called for elimination of selected positions and the laying off of the least senior employees. The employer ignored the request and instead laid off all annual employees, intending to recall as many as possible as funding became available. The local grieved, even as the district received sufficient funding to bring back 55 of the 82 members.
"The layoff and rehire provisions in the current agreement were first adopted in the 1989-92 agreement and have remained essentially unchanged, despite the district's unsuccessful attempt in 1993 to eliminate the seniority basis for layoffs and reinstate broad management authority to implement layoffs based on personnel and program needs," said arbitrator Landau. The bargaining history "leaves no doubt that seniority is a primary consideration in implementing any layoff or recall," he added in upholding the grievance and ordering the parties to negotiate a remedy or have one imposed by the arbitrator (Matanuska-Susitna Borough School District, 123 LA 1265 (Landau, 2007)). [CLEAR source: BNA's Union Labor Report, 07-27-07, 119ULR15]
Union's Failure to Bargain Dooms Vacation Request
Failing to bargain about an employer's unilateral change in vacation o practices during contract renegotiations scuttles a union's subsequent complaint at arbitration, said arbitrator Roger I. Abrams.
A 10-year carpenter at the Walter A. Furman Fall River, Mass., manufacturing facility was laid off on Dec. 17 after working 856.5 hours during his anniversary year. He was recalled July 8 and in the months following worked an additional 743.5 hours. The employee sought to combine the hours from the two years to reach a total of 1,600, the number needed under the collective bargaining agreement with Local 51 of the United Brotherhood of Carpenters and Joiners to quality for a week of paid vacation. The employee applied for 53.52 percent of the vacation he believed he had earned the previous year before being laid off. The request was denied, and Local 51 grieved, arguing that the employer had credited the employee after a previous layoff with a prorated share of the vacation earned in the prior anniversary year. The local also cited a 1996 discussion between the union and the employer and a follow-up statement affirming the proration practice signed by both parties. The employer argued that the plain meaning of current contract controls and that past practice is irrelevant.
"The parties have posed a perfect puzzle to their arbitrator," Furman said, noting that "they have a contract provision that seems to say one thing . . . and a prior practice that says something else." The evidence showed, however, that at least as early as 2003, the employer had discontinued the practice of allowing employees to prorate vacation hours and that in 2004 discussions with union leaders the company president had emphasized that the CBA required 1,600 hours each anniversary year before paid vacation would be credited. Local 51 did not raise the issue in subsequent negotiations, said Furman in denying the grievance (Walter A. Furman Co., 123 IA 1121 (Abrams, 2007)).
[CLEAR source: BNA's Union Labor Report , 06-29-07, 13ULR103]
Claiming Just Cause for Firing Nullifies Probation Argument
Once it argues it fired a probationary worker for just cause, an employer is required to prove the offense warranted termination and can no longer claim probationary discretion to fire, said arbitrator Richard E. Alien.
A 56-day electrician at the Cooper Industries Dayton, Ohio, facility was found sleeping in the maintenance area while awaiting orders for his next assignment. The employee admitted the breach and apologized, but was fired for sleeping during working hours. When Local 1040 of the United Auto Workers grieved, the employer at first contended that the firing was for just cause. Local 1040 argued that other employees caught sleeping on the job had received only 30-day suspensions and that termination was therefore unwarranted in this case, but at arbitration the employer argued that, because new workers are probationary for 60 days, the employee was not protected by the contract's just-cause requirements.
"Once the employer commenced upon the path of contending it had 'just cause' for the discharge of the grievant, it must offer clear and convincing proof the assessed penalty was for 'proper/just cause,' " said arbitrator Alien. Noting that another worker who had actually hidden a bed at the facility to sneak away to sleep had only faced suspension as a consequence, Alien found that the grievant in this case warranted no greater penalty and ordered reinstatement without back pay (Cooper Industries, 123 LA 973 (Alien, 2006)). [CLEAR source: BNA's Union Labor Report , 06-29-07, 13ULR103]
Grievance Meeting v Supervisor's Stay-Put Order
"I had a grievance meeting to attend at the union office," said sales clerk Robin Boone. "You have to honor the law by letting me attend it."
"Disobeying a direct order from your immediate supervisor is a gross violation of work rules, the contract, and universal workplace standards," countered the employer's human resources director Jeannette Dorn. "We cannot have that here."
Does Meeting Top Orders?
Facts: A large department store in New York City and the United Store-workers Union/United Food and Commercial Workers Local 3 had an established and innovative alternative dispute resolution mechanism. Individual workers had the opportunity to speak with the corporate vice president for labor relations or his designate regarding possible grievance issues before the union actually filed a formal grievance.
A two-year sales clerk and other co-workers did not get along well with their supervisor. On June 3, the clerk received counseling and a warning from that supervisor of the consequences of insubordination. On June 16, the clerk received a very poor performance review from the supervisor. The clerk informed her union about what she viewed as unreasonable actions by the supervisor.
On June 23, the clerk was called unexpectedly by her steward to a hastily arranged alternative dispute/ pre-grievance meeting at the union offices with the employer's labor vice president. A scheduled inspection of her work area by the senior executive vice president, however, prompted
the clerk's immediate supervisor to expressly tell her not to leave the sales floor.
Without contacting her steward, the clerk refused the direct order and proceeded to the meeting in violation of both the direct order and work rules requiring a signed pass from supervisors before a clerk can leave the floor while on duty. Informed of her actions at the pre-grievance meeting, however, the vice president did not order her to return to work, but continued to talk with her about resolving her issues.
Subsequently, the clerk's supervisor pressed charges against her for leaving the floor without authorization in direct defiance of her orders, and the clerk was fired for insubordination. Local 3 grieved.
Award: Arbitrator David L. Gregory ordered the grievant reinstated with back pay and the discharge reduced to a disciplinary suspension for insubordination (Bloomingdale's, 123 LA 560 (Gregory, 2006)). [CLEAR source: BNA's On The Line, 06-29-07]
NLRB Ordered to Bargain Over Telecommuting
The National Labor Relations Board must engage in midterm bargaining with the NLRB Professional Association regarding a permanent telecommuting program. Arbitrator Suzanne R. Butler found May 14 (Nat'1 Labor Relations Bd. Prof'1 Ass'n, Arb., FMCS No. 06-05-472, 5/14/07).
Butler agreed with the NLRB Professional Association, a union representing NLRB employees, that the NLRB violated its collective-bargaining agreement when it refused to bargain midterm. Butler made the determination by analyzing the standard for midterm bargaining in the contract that says either party can request midterm bargaining for issues not "explicitly addressed" in the contract.
Telecommuting was a part of the contract, and both parties agreed on terms of a pilot telecommuting program with specific provisions for (he three years of the contract. Subsequently, the contract was rolled over twice, adding an additional two years to the contract.
The union argued that during the course of bargaining, the NLRB created the new "explicitly addressed" standard as a compromise to move negotiations forward, and that this new terminology is distinct from old standards that may have included the telecommuting issue.
There are three traditional standards for determining what issues are subject to midterm bargaining, and the NLRB and the union could not agree on which standard to use. One extreme is a zipper clause that allows for no midterm bargaining. The opposite extreme is a "clear and unmistakable waiver" test, which requires an affirmative action on the part of a union to waive the right to midterm bargaining on an issue.
In between these two tests is a "covered by" standard that the Federal Labor Relations Authority analyzes under a two-prong test. The first prong of analysis is whether the issue is "expressly contained" in the contract. The second prong addresses whether or not the issue is inseparably connected to a subject expressly covered by the contract.
The NLRB agreed that "explicitly addressed" was a compromise, but argued that it incorporates the first prong of the "covered by" standard and covers anything that is "expressly contained" in the collective-bargaining agreement. Because telecommuting was included in the contract, it could not be the subject of midterm bargaining, according to the NLRB.
However, Butler found that the union was correct in making a distinction between "explicitly addressed" and the "expressly contained" standards. Explicitly addressed means "unambiguously dealt with" in the contract, not simply "to have within" the contract, as the word "contained" indicates, Butler said.
The permanent telecommuting program was not unambiguously dealt with, as "the negotiators focused only on the possibility of establishing a 'pilot program,' " and did not discuss telecommuting after three years or as a permanent program, Butler said. Therefore, the NLRB is required to bargain about the permanent telecommuting program, Butler found. [CLEAR source: BNA's Labor Relations Reporter, 06-04-07, 181LRR510]
Mandatory 12-Hour Weekend Shift Violates Company's Labor Agreement
In order to perform more maintenance work on its electricity producing equipment during off-peak hours and on weekends, a company imposed a new schedule on its maintenance workers at an Ohio power plant. It extended the regularly scheduled Saturday and Sunday workday from the normal eight- to 10-hour day to 12-hour schedules, which included two hours of required "planned overtime." The employer also increased the number of mechanics working "continuous service shifts" that contained evening and weekend hours.
The employees objected to the new schedule, which was unilaterally implemented without negotiation with the union.
The union grieved, alleging the company exceeded its authority under the collective-bargaining agreement by establishing continuous service shifts, including the 12-hour shifts on Saturdays and Sundays.
Arbitrator Langdon D. Bell sustained the grievance in part and denied it in part (First Energy Generation Corp., 123 LA 1013).
Bell reasoned that the company had clearly demonstrated its authority to establish continuous service shifts, since the union had accepted this practice "as far back as 1998 without an 'agreement' of any kind," and the company "simply added maintenance repairmen to the pre-existing continuous shift." Bell found that assigning an employee to a different, pre-established shift did not constitute the creation of a new shift under the contract.
But Bell agreed with the union that establishing rotating 12-hour Saturday and Sunday work days on a permanent basis exceeded the authority granted by the agreement to schedule planned overtime. Bell found that designating regularly scheduled work days in an agreement "serves the purpose of allowing employees some reasonable basis for planning . . . for personal or family matters." He concluded that the employer could not justify regularly scheduled 12-hour days simply by paying employees the overtime rate for their extended hours, noting that overtime "is the exception to meet the unexpected or time-limited needs of the employer." [CLEAR source: BNA's Labor Relations Reporter, 06-18-07, 181LRR570]
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