Title: Shaefer's Ambulance Service and Teamsters
Local Union 986
BEFORE THE ARBITRATOR
IN THE MATTER
AMBULANCE SERVICE, INC.
FMCS NO. 95-03825
FOR THE UNION:
Debra S. Goldberg
Pappy & Davis
879 West 190th
Attorneys at Law
3424 Wilshire Blvd., Suite 1100
Los Angeles, CA 90010-2258
The employer, Shaefer's Ambulance Service, Inc., and the union,
Teamsters Local Union 986, are parties to a collective bargaining agreement
that sets forth the terms and conditions of employment for bargaining unit
employees during the time pertinent to the issue in dispute.
On September 9, 1994, the grievant, Gregory Fields, was discharged by
the employer for violating a rule that prohibited employees from threatening
or intimidating fellow workers. A
grievance was filed by the union on September 15, 1994.
An arbitration hearing was held on March 10, 1995.
The parties agreed that the issue in dispute is whether the grievant
was discharged for just or proper cause, and if not, what is the proper
The following provision of the parties' collective bargaining agreement
is relevant to the issue:
5: GRIEVANCE AND ARBITRATION
Except as provided for in Article 10, no employee covered by this
Agreement shall be demoted, suspended, dismissed or otherwise disciplined
without sufficient and proper cause...
The employer provides ambulance services in Los Angeles, Orange, and San
Diego Counties. Its employees in
Los Angeles and San Diego Counties are organized in a bargaining unit
represented by the union. Employees
in Orange County are not organized. Prior
to the incident that occurred on August 25, 1994, which give rise to this
dispute between the parties, employees in Orange County had voted to reject
representation by the union in an election conducted by the National Labor
At the time of the August 25 incident there existed an acrimonious
relationship between some of the employees in the Pomona division, which is
located in the unionized Los Angeles County area, and some of the employees in
the Orange County division. The
Pomona division employees wanted Orange County division employees to organize.
When the Orange County division employees voted against unionization,
some of the employees in the Pomona division harassed Orange County employees
who were dispatched to the Los Angeles County area to assist crews located
there. Prior to August 25, nothing
of a serious nature resulted from the incidents of harassment.
On August 25, 1994, the grievant and his partner, Sarah Doll, both
paramedics, were told to provide coverage at the West Covina station in Los
Angeles County. On the way, they
picked up lunch to eat at the station. In
the station lunch room they encountered, for the first time, two Orange County
division employees, Holritz and Brett. Holritz
asked the grievant what was going on with the union, and he told the grievant
and Doll how rudely he had been treated recently in the Pomona station because
he was not union. The grievant
became angry, stood up, and said to Holritz, "Get the fuck out of my
station." Holritz apologized,
saying he did not mean anything against the grievant.
They continued to talk about union issues, and Holritz asked the grievant
what would happen if the union went on strike and he, Holritz, crossed the
picket line. The grievant said Holritz needed to understand how the union
members felt about their union, and he continued to explain that someone might
follow Holritz home. Holritz asked
what that meant and the grievant said someone could follow him home and someone
could get hurt. Holritz said it
might be necessary for him to carry a bat in his car in that case.
The grievant then said, "Well, that won't stop a gun."
Sarah Doll witnessed the conversation between Holritz and the grievant,
and she was convinced the grievant was agitated, very serious, and was not
laughing or joking. She said he was
very upset and was attacking the two employees from Orange County.
She later tried to explain to the grievant that it was not the fault of
the two employees that employees in Orange County were not union.
After the two employees from Orange County left to go to the Pomona
station, Doll argued with the grievant about his treatment of them.
At that same time, another employee, Mansell, began looking for the
telephone number of the Pomona station so that he could call the crew there and
have them harass the two Orange County division employees.
The grievant was present during the search for the telephone number and
during Doll's argument with Mansell about the proposed harassment.
The grievant did not say anything about harassing the Orange County crew
members. Doll argued with the grievant and Mansell because she
believed the two of them were mistreating the employees from Orange County.
Doll, who is a former Orange County division employee, corroborated the
testimony of Holritz and stated unequivocally that the grievant said to Holritz,
"Get the fuck out of my station."
The grievant denied making the statement.
According to the grievant, when Holritz and his partner were in the West
Covina station, Holritz asked the grievant about the union and stated that he
had been treated terribly in the Pomona station a couple of weeks earlier.
The grievant said he had nothing to do with that event.
He testified that Holritz became angry and the grievant said, "If
you do not like it, do not talk about the union and get the heck out of
here." Holritz said he was
sorry, the grievant said he was sorry, and they shook hands, according to the
grievant, who thought the whole thing was over.
The grievant is a 14-year employee who worked as a paramedic for the
employer at the time of his termination. He
was also a shop steward. He was
hired as an emergency medical technician and later was promoted to general
manager of the San Diego division. He
served in that capacity for several months, but became dissatisfied with the
arrangement and requested a transfer back to a paramedic unit in the Los Angeles
division. His request was honored
by the employer. The grievant
believed he was subsequently harassed by employer officials because they
believed he had mishandled the San Diego job.
According to Holritz, he had been treated rudely by the Pomona crew one
to two weeks prior to the incident with the grievant; however, no bodily harm
was threatened. The grievant was not present during the prior incident.
Holritz reported the prior incident to his superior, Mark Waldo, but
nothing came of it. Holritz was not
required to write it up, even though he was upset and angry over the treatment
he had received.
During the August 25 incident, Holritz continued to ask the grievant
about the union even after the grievant became angry because Holritz was
"tired of being treated poorly by union members."
Holritz only felt threatened when the grievant stood up and angrily
demanded, using intemperate language, that Holritz get out of the station.
The grievant is considerably larger in physical stature than Holritz.
The grievant did not say he was going to hurt Holritz.
Holritz's remark about carrying a bat in his vehicle was meant to
indicate he would take defensive measures to counter potential harm.
Prior to August 25, 1994, the grievant had requested that Doll be
replaced as his partner; however, Doll was unaware of that fact at the time she
gave her statement to management officials.
Her statement was taken approximately one week after August 25 because of
The assistant manager of the Pomona division, Howard Shelton, handled the
employer's investigation of the case against the grievant.
When the two employees from the Orange County division complained to
their supervisor, Mark Waldo, Waldo called Shelton and said two of his employees
had been harassed and threatened when they were sent up to the Pomona division.
On September 3, 1994, Shelton called the grievant in and asked about the
August 25 incident. The grievant said they had had a discussion.
The grievant was not permitted to give a detailed statement.
Shelton said he could explain later.
Shelton told the grievant he had heard a different story, that he had
write-ups and was going to suspend the grievant for threatening the Orange
County crew pending investigation. Shelton
showed the grievant a copy of the employer rules, which state that threatening
or intimidating fellow workers will lead to immediate discharge without warning.
The grievant asked to see the write-ups to which Shelton referred, but
Shelton refused to show them to him. Shelton
suspended the grievant prior to obtaining a statement from Sarah Doll. He only had information from Waldo regarding the incident.
During the brief meeting with Shelton on September 3, another paramedic
sat in as the union representative. He
testified the grievant was given no specifics about the charge against him, and
he was not allowed then or on September 9, 1994, to give his version of the
events of August 25.
On the day the grievant was suspended, he called Sarah Doll and told her
he had been suspended because of his conversation with the Orange County crew on
August 25. He explained his side of
the story to her and said, "That's what happened, right, Sarah? You need to write it up that way, right, Sarah?"
Doll made no comment to him, but he continued to talk, saying he was a
born-again Christian and would not have cussed.
He called her twice after that and left messages, but Doll did not
On September 9, 1994, the grievant was called in to a meeting with
Shelton and two other management personnel.
The grievant was accompanied by his sister and a union representative.
Shelton opened the grievant's personnel file, removed a previously
written termination notice, and put it on the table. He told the grievant the employer had decided to terminate
him. The grievant picked up the
notice and stated that, before he signed it, they should be aware he had been
under medical treatment for stress, depression, and anxiety for the past five
At the termination meeting on September 9, the grievant complained he
never was permitted to tell his side of the story, to read a formal explanation,
or to read any of the reports and write-ups from the Orange County crew.
Shelton informed him that the decision to terminate him had already been
made. The grievant then asked for a
copy of his personnel file. His
request was refused; however, he was permitted to read through it at that time.
The grievant noticed several documents missing from his file, including
letters of commendation. One of the
management officials noted his comment and said they may be missing or on his
On September 15, 1994, the union's business representative, Sean Harren,
filed a grievance over Field's termination.
On October 12, 1994, he sent a letter to the employer's division manager
in Pomona requesting that the three witnesses to the August 25 incident, Doll,
Holritz, and Brett, be available at the previously scheduled October 25, 1994,
grievance meeting so that he could interview them.
When Harren arrived at the meeting he was informed by the employer's
attorney that Holritz and Brett were non-union employees and he could not
interview them. He told Harren that
Doll was on duty at West Covina, if he wanted to interview her. Harren asked for and later received a copy of the grievant's
personnel file, including several letters of commendation from customers.
He already had statements from the two Orange County crew employees.
At the arbitration hearing on March 10, 1995, the grievant was asked on
cross examination whether on or about December 27, 1994, he made a call to the
president of Shaefer Ambulance, James McNeal.
The grievant said he did not. He
was asked if he called on that date and was connected to McNeal's secretary,
Tina Gonzalez, and told her, "That fucking old man's gonna die."
He said he did not.
Tina Gonzalez had occasion to talk by telephone with the grievant daily
when he was manager of the San Diego division.
She knew his voice and recognized it immediately when he called on
December 27, 1994, and the call was transferred up to her office from central
control. The grievant said to her, "That fucking old man is
dead." The call by the
grievant to the central control office on December 27 was recorded as a part of
regular business. It was
re-recorded and played by Gonzalez at the hearing.
She specifically remembered hearing the grievant make the quoted
statement, which was not recorded.
A letter of commendation from McNeal to the grievant dated November 3,
1993, was found by an employee of Shaefer Ambulance in a trash can about two
weeks before the arbitration hearing. The
employee gave the letter to the grievant, but refused to have his identity
OF THE EMPLOYER
The employer contends that the collective bargaining agreement gives it
the right to suspend and discipline employees for proper cause.
The employer has promulgated reasonable rules, one of which provides for
the immediate termination for engaging in threatening or intimidating conduct.
The grievant threatened and intimidated two employees; therefore, his
discharge was proper.
The Orange County division employee who felt threatened and the
grievant's own partner said the grievant's conduct was intimidating and
threatening. The grievant said the
union was going to strike and if scabs crossed the picket line, someone would
come and hurt them. When Holritz
said he would have a bat in his car, the grievant said that would not stop a
gun. Earlier the grievant had stood
up and told Holritz in harsh terms to get out of his station.
He also told Holritz he was twice Holritz's size and Holritz would lose
if they fought. Such behavior
constituted threatening and intimidating conduct.
Sarah Doll's testimony was credible.
She is a union member in good standing, with no reason to lie.
She and Holritz believed the grievant's conduct was significant.
When Shelton heard about the grievant's conduct, he called the grievant
in and asked him about the events of August 25.
The grievant said they had had a little chat.
Shelton then suspended him based on what he had heard.
The grievant said he never swears, but two employees heard him make his
profane remarks. The president's secretary, who had heard his voice many
times, heard him make similar remarks.
Of the union witnesses, Lundgreen could not remember anything; Mansell
called the Pomona station to have that crew harass the Orange County crew; and
Harren simply proved that the employer is consistent in its application of the
The employer had credible witnesses who had no reason to lie and who
disputed what the grievant alleged to have happened.
Doll was truthful. She said
the grievant called her the day he was suspended and said, "Tell it my
The union did not prove its allegation that the employer is anti-union.
The employer gave the grievant the opportunity to come back as a
paramedic after he mishandled the San Diego job.
If, as the grievant alleges, the employer destroyed part of his personnel
file, why were several letters of commendation not thrown away?
The employer does not deny the grievant had a good record, but he took
his shop-steward duties too far. He
decided to let the two Orange County division employees know that if they
crossed him and his union, they would get hurt.
Based on that, plus previous applications of the employer's rule against
threatening and intimidating other employees, the discharge should be upheld.
POSITION OF THE UNION
The union maintains there is no dispute that an altercation occurred on
August 25, 1994, and that remarks were made that were not wise.
The grievant admitted he told Holritz someone could follow him home.
However, both apologized and shook hands later.
The grievant thought the matter was finished.
The grievant was a good, long-term employee who worked in the unionized
Pomona division. The employer has both union and non-union stations.
The grievant was suspended and later terminated for an altercation with a
crew that is non-union.
When he was suspended, the grievant asked to see the write-ups of the
Orange County crew, but his request was denied.
He was told they would let him know what they were going to do.
On September 9, 1994, the grievant was called in and terminated for
events that occurred on August 25, 1994. He
was not allowed to tell his version of those events at any time.
Holritz's comments regarding the bat could be construed as a threat.
The employer did not fully investigate the matter and treated the
grievant in a disparate manner. Both
the grievant and Holritz made unwise comments on August 25.
It was Holritz who started the whole thing.
He was angry at the Pomona crew for the way he had been treated a couple
of weeks earlier. The grievant was
not one of those responsible for that treatment.
Holritz initiated the conversation about the union.
Sarah Doll did not testify that the grievant sought the Pomona station
telephone number after the Orange County crew left West Covina--Mansell did
that. It must be remembered that
Doll came from Orange County as a non-union employee.
Contrary to Holritz's testimony, Doll testified that the grievant and
Holritz shook hands after their argument and apologized to each other.
The grievant was simply relating to Holritz what he had heard regarding
the treatment of scabs.
The union had the right to ask witnesses specific questions regarding the
case; however, it was not allowed to do so.
The grievant requested but was denied a copy of his personnel file.
Documents were removed from his file.
An employee found a letter of commendation from the president of the
company to the grievant in a trash can.
The employer's actions were deliberate.
The employer purposefully set up the grievant.
Holritz initiated the conversation about the union and the grievant
responded in anger because he is a strong union supporter.
When Holritz said he did not want to hear anymore about the union, he
should have remembered that he was the one who asked.
When the employer took the grievant back as a paramedic after he resigned
the position in San Diego, it did so because that was what the employer promised
him before he agreed to go to San Diego.
The union and the grievant were denied the right to confront the accusers
from Orange County. The employer
would not make them available as requested.
The employer's actions were motivated by anti-union animus.
The employer treated the Orange County crew disparately. Their comments could also have been construed as threats.
The employer's anti-union animus is also shown in its failure to
investigate the case, by not allowing the grievant to tell his version of the
events prior to terminating him, and by not allowing the union to interview the
grievant's accusers. The grievant was a shop steward.
The employer has a long history of terminating shop stewards.
It is not unreasonable to conclude that the grievant committed the
offense with which he was charged. Once
the credibility issue is resolved, it can be said with reasonable certainty that
he stood up, shouted a profanity at the Orange County crew member, and told him
to get out of his, the grievant's, station.
Intimidation is defined as putting in fear; it must arise from the
willful conduct of the accused, rather than from some mere temperamental
timidity of the victim; however, the fear of the victim need not be so great as
to result in terror, panic, or hysteria. Black's
Law Dictionary, 6th ed., 1980, West Pub. Co.
Ms. Doll gave credible testimony regarding the conduct of the grievant
toward Holritz on August 25, 1994. She
had no reason to lie. Moreover, her
testimony and the testimony of Ms. Gonzalez is altogether convincing as to
whether the grievant used profane language and was inclined to become angry.
Although the grievant denied emphatically that he used the words he was
accused of using, the proof is clear and convincing that he did on two
occasions. First, he used the
intimidating command when he told Holritz to get out of his station.
He again made a similar remark to Ms. Gonzalez about McNeal.
His post-discharge conduct served to belie his contention that he did not
use the language and engage in the conduct he was accused of using and
There is no dispute that the employer had a reasonable rule with which
the grievant was familiar and that immediate discharge was the penalty for those
who violated the rule. That the
grievant engaged in the prohibited conduct was proved at the arbitration
The issue here is whether the employer had just or proper cause to
discharge the grievant and, if it did not, what is the proper remedy.
The parties' collective bargaining agreement states that no employee
shall be dismissed without sufficient and proper cause.
Just cause, good cause, sufficient cause, and proper cause have been used
interchangeably by arbitrators and courts. The terms mean the same thing.
From just cause provisions of contracts, courts have inferred a due
process obligation. The requirement
of just cause for discharge includes the procedural requirement of what is
referred to as "industrial due process."
An employee must be given an adequate opportunity to present his side of
the case before the employer discharges him.
Teamsters Local 878 v. Coca-Cola Bottling Co., 613 F.2d 716 (8th
Cir.), cert. denied, 446 U.S. 988 (1980). There,
the arbitrator found that the employee had engaged in the behavior alleged by
the employer, and that his conduct was cause for immediate termination; however,
the arbitrator refused to uphold the termination because of the due process
Procedural fairness requires an employer to conduct a full and fair
investigation of the circumstances surrounding an employee's conduct and to
provide an opportunity for him to offer denials, explanations, or justifications
that are relevant before the employer makes its final decision, before its
position becomes polarized.
In the instant case, prior to the arbitration hearing, the grievant was
never allowed to tell his side of the story.
Shelton called him in, asked what happened on August 25, and when told
they had a discussion, informed the grievant he was suspended pending an
investigation. At no time prior to arbitration was the grievant or his union
afforded an opportunity to confront those who had accused him of wrongdoing.
Due process is an integral part of just cause.
Observing an employee's due process rights, which may be inferred from a
just cause provision, is an employer obligation that flows from the contractual
relationship. The grievant and
union in this case were denied even a semblance of due process, and were it not
for the grievant's egregious postdischarge conduct, the grievant could be
reinstated with back pay. However,
his flagrantly bad behavior subsequent to his discharge cannot be ignored.
Postdischarge conduct is not usually relevant to a just cause issue and
arbitrators will not accept evidence of it as affecting the merits of the case
resulting from the act that triggered the discipline.
However, the evidence may be accepted in considering the remedy and the
credibility of the grievant. As
long as the postdischarge evidence does not add an entirely new basis for the
dismissal, no infirmity exists in admitting and crediting it.
An arbitrator should not order reinstatement if an employee's
post-discharge conduct will cause an unacceptable employment relationship.
Evidence in Arbitration, 2nd ed., Hill and Sinicropi, BNA Books,
1987, p. 63.
The grievant made a telephone call to the secretary to the president of
the company and used profane language to threaten him.
The grievant denied making the call; however, the evidence on the record,
in particular Ms. Gonzalez's testimony and the recorded time of the call,
support the opposite conclusion.
The grievant's call to McNeal's secretary compels two conclusions:
(1) the grievant was not a credible witness; and (2) reinstatement would
not be a proper remedy. Accordingly,
I will enter an award reflecting the conclusion reached above and fashion a
remedy based on the facts.
The evidence does not support the union's allegations that: (1) the
employer intentionally set the grievant up by having Holritz ask him about the
union; (2) the employer's failure to make a full investigation was motivated by
anti-union animus; (3) the Orange County crew was treated disparately; or (4)
the employer has a long history of firing shop stewards.
The employer's failure to make a full and fair investigation prior to
terminating the grievant was a serious error; however, such failure does not
rise to the level of anti-union animus. Holritz's
comment about the bat was not a threat to the grievant, it was a statement about
what defensive measures he would take. There
simply was insufficient proof that the grievant was set up or that shop stewards
were fired frequently.
The grievance is sustained because the employer denied the grievant due
process. The remedy shall be as
follows: The employer shall pay the
grievant back pay from the date of his suspension up to the date of this award
minus interim earnings, and minus the equivalent of what his earnings with the
employer would have been for the three months he was unable to work because he
was on medication that rendered him unable to drive.
Reinstatement is not a part of the remedy.
Dated this _____ day of April 1995.
Jack H. Calhoun