Arbitration Round-Up
January 13, 2011 by Beeson Tayer & Bodine
Here is a sampling of recent arbitration cases handled by Beeson, Tayer & Bodine.
Discharge / Harassment of co-worker – UPS and Teamsters Local 890: Arbitrator William Engler reversed the termination of a UPS employee, instead imposing a 30-day suspension. The grievant was alleged to have engaged in verbal harassment and physical intimidation of a co-worker. Because the grievant faced “not only the loss of his job but also his reputation,” Engler applied “a more stringent standard of proof” requiring “clear and convincing” evidence of misconduct. Nevertheless, he concluded the evidence supported the accuser’s version of events. Engler held the behavior warranted serious discipline but, in light of the grievant’s 26 years of seniority and otherwise clean disciplinary record, not termination.
ermination / Dishonesty on Employment Application, Successorship – First Student & Teamsters Local 315: A seven-year employee was terminated when the purchaser of her employer subjected her to preemployment background checks and discovered she had previously been convicted of welfare fraud. Because she stated on her employment application that she had not been convicted of a crime, she was terminated for falsification/dishonesty. Arbitrator William Riker reversed the termination finding (1) the company did not establish intentional falsification because, at the time she completed her employment application, her criminal matter was still pending appeal; (2) the employer delayed termination for six months after discovering the criminal conviction; (3) the employer failed to look at all the evidence and circumstances before deciding to terminate, and (4) the employer had not complied with applicable law relating to background checks.
Contract Interpretation / Holiday Pay – T. Marzetti Company & Teamsters Local 853: Arbitrator Charles Askin addressed the issue of whether the CBA entitled an employee to overtime where the employee works on a Saturday but did not work more then forty hours during the normal workweek because a holiday – here, Memorial Day – fell during the week. Askin found the CBA language ambiguous, as it did not define “hours worked” in reference to overtime, nor did it address whether eight hours of holiday pay should count towards weekly overtime thresholds. Askin rejected the employer’s reference to state overtime law noting there was no evidence the parties intended state law to apply. Because the practice of paying overtime on this basis had been longestablished, Askin applied the past practice to sustain the grievance.
Termination / Family Leave – East Bay Regional Park District & AFSCME Local 2428: The employer terminated the grievant for “dishonesty” and “falsification” arising from her use of medical leave taken to care for her daughter. The employer determined that the grievant’s leave request forms were inconsistent with the actual care the employee was providing her daughter, and that much of the care could be performed “on her own time,” that is, outside of work hours. Arbitrator Robert Hirsch rejected the District’s contentions that the various care tasks performed by the employee were inconsistent with the need for medical care to such a degree as to qualify as “dishonesty” in requesting the leave, finding that “as a matter of law, it is highly doubtful the Employer could have prohibited much of the behavior it now challenges.” Hirsch reinstated the grievant with full back pay.
Termination / Drug testing (DOT) – Sunset Scavenger & Teamsters Local 350: Arbitrator Matthew Goldberg reinstated an employee terminated due to a positive DOT drug test resulting from a flawed urinecollection procedure. Although the CBA did not contain an explicit just cause provision, the Arbitrator inferred such a standard under the implied covenant of good faith and fair dealing, and further found that in the drug testing context, the employer has the burden of providing clear and convincing evidence to support termination. Goldberg found the employer failed to provide such evidence where the third-party urine-sample collector departed from the DOT regulations, including failing to seal the sample vial in the grievant’s presence, completing forms in the improper order and not contemporaneously with the collection of the sample, and because the collector’s certification had expired prior to administering the grievant’s test. The arbitrator rejected the employer’s assertion that these defects were not material or “fatal flaws” to the process.
Public Sector Due Process / Suspension – County of Sacramento & Teamsters Local 228: Without addressing the merits of the discipline, Arbitrator John Caraway found the employer lacked just cause when it failed to include in its “Skelly packet” a document on which it relied in suspending the grievant. The arbitrator concluded the tenday suspension was subject to the due process requirements set forth in Skelly v. State Personnel Board. Caraway stated the missing document was “an important one” and therefore “whatever the substantive merits of the County’s discipline,” the “failure to include [it] with the order of disciplinary action constitutes a procedural defect in mandatory due process that is so glaring as to fatally infect its actions in this matter.”
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