Arbitration Roundup
January 13, 2009 by Beeson Tayer & Bodine
Here is a sampling of recent arbitration cases handled by Beeson, Tayer & Bodine.
AFSCME Local 146 and Nevada Immigration District (Termination) Grievant, a plant operator with 26 years seniority was terminated for insubordination, poor judgment, failure to carry out duties, failure to secure hazardous materials, rude and disrespectful treatment of a coworker and “undertaking an unorthodox method of identifying a valve problem without getting approval.” Arbitrator Bonnie Bogue sustained the charges excepting those related to insubordination, but found that the most egregious charge was not substantiated. She concluded that, while the District had “assiduously” followed some measure of progressive discipline by imposing prior written warnings, the employee’s 26 years of seniority was sufficient mitigation to warrant a lesser penalty of a 30-day suspension. On that basis the grievant was reinstated and awarded backpay.
OPEIU Local 29 and ILWU Local 34 (Termination) ILWU Local 34 terminated grievant, who had fifteen years seniority as the Local’s bookkeeper. OPEIU Local 29 represents the ILWU Local’s office staff. An outside audit revealed that grievant was paid higher than the rate set forth in the OPEIU collective bargaining agreement covering her position, and grievant, whose duties included processing payroll, was terminated for fraud. Arbitrator Jerilou Cossack ordered the grievant reinstated and made whole because hearing testimony substantiated the grievant’s claim that her higher pay rate had been approved by the ILWU Local’s prior leadership, and because the ILWU failed to prove its claim that out-of-scale pay would have to be approved by the membership.
Teamsters 150 and Campbell’s Soup (Drug Testing Termination) Grievant was selected for a random drug test but was unable to provide a sample. He proceeded to a hospital emergency room and was treated, and later provided a medical note to his employer indicating he suffered from a gastrointestinal illness that prevented him from freely urinating. The employer’s Medical Review Officer (“MRO”) determined that the note was insufficient to excuse the failure to provide a sample, and the grievant was terminated for refusing to submit to a test. Arbitrator Ronald Ho found the Company lacked just cause and ordered the grievant made whole. He reasoned that the Company did not have a clear policy governing how much information must be provided to the MRO and, when presented with the MRO’s decision, the employer did not inquire further or provide the grievant with an opportunity to correct any defects in the note.
Teamsters Local 853 and City and County of San Francisco (Insubordination Suspension) Two employees were suspended for refusing a direct order to transport an oversized load away from the San Francisco Airport and through city streets. The employees refused the work when the City failed to provide them with a valid wide load permit. The City claimed it could not provide the permit because the work was to be done during the night shift and the office where the permit is kept was locked. The City argued that even if the employees were justified in refusing a direct order, the “obey now, grieve later” rule applied. Arbitrator David Nevins sustained the grievance, finding that the City’s own policies require employees to follow all traffic laws, and that state law requires trucks carrying an oversize load to maintain the permit within the vehicle. He noted that failure to do so could result in criminal penalties for the driver and on that basis found the situation presented an exception to the “obey now, grieve later” doctrine. Further, the arbitrator determined, the City was “meaningfully at fault” because it could have, with only minor inconvenience, obtained a copy of the permit.
AFSCME Local 829 and County of San Mateo (Termination / Last Chance Agreement) A dispatcher was terminated for alleged violation of a last chance agreement (LCA). Arbitrator D’Orazio ruled the County had the burden to establish that the LCA was intended to cover the conduct the employee was accused of, and that the grievant was guilty of the alleged conduct. The LCA prohibited the grievant from disparaging coworkers. Arbitrator D’Orazio concluded that the statements for which the grievant was terminated were within the expectations of her position as a dispatcher and so were not within the scope of the LCA. He ordered the grievant reinstated with back pay.
Teamsters Local 853 and City and County of San Francisco (Termination) Grievant, a track maintenance supervisor for the City and County of San Francisco, was terminated for violation of the City’s sexual harassment policy and for time card fraud. The City alleged that in exchange for sexual favors the grievant altered the time cards of the alleged victim to cover for absences and lateness, and that the grievant had punched time cards for other employees without docking their pay. Arbitrator Fred D’Orazio ordered the grievant reinstated and made whole. He concluded the alleged victim had lied during the course of the City’s investigation of the sexual harassment charges, and that the City’s policy regarding pay for time not worked and prohibition on punching others’ timecards was not enforced to such an extent that management must have been aware of the practice.
Teamsters Local 890 and Dole Fresh Vegetable (Termination) Grievant was terminated for “attempted fighting” which the grievant denied. The Company argued the supervisor overheard the employees fighting, which was sufficient to warrant termination. Arbitrator C. Allan Pool sustained the grievance on the basis that the Company failed to conduct a full and fair investigation and that the supervisor’s version of events was not credible, and ordered the grievant reinstated with full back pay.
Teamsters Local 853 and Total Recall Secure Destruction Services (Drug Testing) Grievant was terminated for testing positive for marijuana metabolites after a random DOT drug test. The Union grieved on the basis that the employee was on light duty and did not perform safety sensitive functions, and therefore should not have been subjected to DOT testing. Arbitrator C. Allan Pool reinstated the grievant with back pay, holding that the collectively bargained drug and alcohol use policy applied only to the use of controlled substances while on company premises and that the DOT rules should not be applied when the employee, because of a work restriction, is not performing DOT-covered functions.
AFTRA and KFSN-TV (Contract Interpretation) In a dispute over whether an employee classification was covered by the parties’ collective bargaining agreement, Arbitrator Barry Winograd found that although the definition of employees covered under the CBA was nonexclusive, the definition was subject to differing interpretations, and based on the parties’ long-standing practice of covering the classification under the CBA, the arbitrator sustained the grievance ordering the employees included under the contract and made whole. Arbitrator Winograd noted that to deny the grievance would provide a right to the employer to unilaterally determine the scope of the bargaining unit, which is a right that must be bargained by the parties and not established by an arbitrator.
Teamsters Local 517 and Golden Empire Transit District Arbitrator Gerald McKay ruled that Golden Empire Transit District had to pay two employees $10,000 each, plus interest, as a death benefit following the death of their spouses. The District agreed in collective bargaining with Teamsters Local 517 in 2006 to provide a $10,000 death benefit, payable on the death of any employee or the spouse of an employee. The CBA was ratified in June, 2006, and in August, the spouses of two employees passed away.
Teamsters Local 856 and County of Alameda (Social Security Withholdings) Grievant was misclassified as a miscellaneous employee, but was in fact a safety employee. The effect of the misclassification was that Social Security taxes were erroneously deducted from his paycheck for ten years. The Union grieved to recover social security taxes improperly withheld. The County argued that the grievance was stale under contract language that limits damages to 60 days’ of pay, and that the grievant was not harmed by the deductions as he will receive benefits from the social security administration. Arbitrator Jerilou Cossack sustained the grievance, holding that the 60-day limitations language was subject to equitable tolling, that the deductions were improperly withheld and that the grievant should be made whole for the entire period; but based on evidence provided by an actuary as to the value of the social security benefits, the employee had no net damages as a result of the misclassification.
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.
