Arbitration Round-Up
July 12, 2009 by Beeson Tayer & Bodine
Here is a sampling of recent arbitration cases handled by Beeson, Tayer & Bodine
Managerial Support/ Confidential Group and Central Contra Costa County Sanitary District – Suspension (Willful Insubordination): Grievant, a supervisor, was suspended for ten days for willful insubordination regarding his crew’s start time. Supervisor had moved his crew’s shift time a half-hour early. Several years passed and the issue was raised again as other crews wanted the earlier start time. In response, management informed the supervisors they were not to change shift times but were to follow the “current schedule.” When the District later discovered the earlier start time for grievant’s crew, he was suspended. Arbitrator Bonnie Bogue sustained the grievance, finding that willful insubordination requires two elements (1) an unambiguous order or directive that was communicated to the employee and (2) that the employee intentionally and willfully violated the order. Because the order to follow the “current schedule” was unclear with respect to which start time was meant, the employer did not satisfy its burden.
Teamsters Local 150 and Silgan Can Company (Last Chance Agreement): Grievant was terminated pursuant to a last chance agreement (“LCA”) for various infractions, and the company contended that the LCA rendered the termination nongrievable. The LCA stated “any further infractions of the Code of Conduct will be considered just cause for termination” and “said termination should not be subject to grievance and arbitration.” Arbitrator Charles Askin, resolving ambiguities against the company as the drafter of the agreement, noted that LCAs typically are subject to grievance and arbitration, and concluded the issue of whether the grievant actually engaged in the conduct for which he was terminated was grievable. Arbitrator Askin found the LCA terms required the company to prove that “further infractions” occurred, a precondition to a termination that, once proved, allowed application of the LCA.
Engineers and Scientists of California Local 20, IFTPE and PG&E (Termination): Grievant was terminated for falsification of time records and “time theft.” The company identified several days on which the grievant did not appear to have reported to work, but was nevertheless paid. Grievant was treated as a salaried employee, and, to meet payroll scheduling he frequently had to pre-enter his time, which he would often correct after-the-fact. He had no recollection of the particular occasions for which he was disciplined, but surmised if he was absent then he forgot to change his time to reflect a sick day. Arbitrator Phil Tamoush ruled the company failed to establish the grievant intentionally falsified records or intended to engage in “time theft,” but found rather that Grievant was not sufficiently diligent about his time keeping, and on that basis ordered the grievant reinstated but without backpay.
Teamsters Local 890 and ConAgra (Termination/ Drug Testing): Grievant was terminated for refusing to submit to a drug test at the employer’s contracted health clinic after he was referred there when he complained of repetitive stress pain. The union established that no supervisor had directed the grievant to take a test, but the company argued Grievant knew that the company’s post-accident drug testing policy required him to submit to a drug screen whenever he received medical attention due to a workplace injury. Arbitrator Robert Hirsch sustained the grievance, ordering reinstatement and backpay, finding that a repetitive stress injury is not the type of injury the parties contemplated would be subject to postaccident drug testing.
Teamsters Local 439 and Basic Resources/George Reed (Termination): The employer terminated two employees for insubordination for their refusal to comply with various orders given by a foreman. While finding the grievants had violated certain rules including failure to obey orders and making malicious statements, Arbitrator Ronald Hoh agreed with the union’s contention and found that because the company disciplinary policy did not list these infractions as those warranting immediate termination, the company lacked just cause to terminate and ordered that they be reinstated with backpay, but with warnings for the violations.
Teamsters Local 517 and Advanced Food Products (Contract Interpretation / Layoffs): The parties’ CBA requires a week’s notice or one week’s pay in lieu of notice to any employee “who is to be laid off.” The company posted notices of layoff that referred employees to the work schedule to determine if they would be affected. But work schedules were posted less then a week before the actual layoffs. For a second round of layoffs, the company posted notices a week in advance with a list of the employees it anticipated would be laid off, subject to change. At times changes were made. The union grieved all the notice procedures. Arbitrator Gary Axon ruled for the union, rejecting the company’s contention that changing circumstances and production needs made it impossible to comply. The arbitrator found the CBA anticipated instances where notice would not be possible, and held that the notice must be directed to the affected employee. Accordingly, he ordered the company to pay each laid off employee one week’s wages.
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