1995 NAC 109 Shaefer's Ambulance Service and Teamsters Local Union 986

Title: Shaefer's Ambulance Service and Teamsters Local Union 986
Date: April, 1995
Arbitrator: Jack Calhoun
Citation: 1995 NAC 109

BEFORE THE ARBITRATOR

IN THE MATTER OF THE )

GRIEVANCE ARBITRATION )

Between )

)

SHAEFER'S AMBULANCE SERVICE, INC. ) OPINION

Employer, ) AND

) AWARD

and )

TEAMSTERS LOCAL UNION 986, )

Union. )

FMCS NO. 95-03825

--------------------------------

Jack H. Calhoun

Arbitrator

Hearing Held

March 10, 1995

Los Angeles, California

--------------------------------

REPRESENTATION

FOR THE EMPLOYER: FOR THE UNION:

Steven M. Steese Debra S. Goldberg

Attorney at Law Pappy & Davis

879 West 190th St. Attorneys at Law

Suite 400 3424 Wilshire Blvd., Suite 1100

Gardena, CA 90248-4225 Los Angeles, CA 90010-2258

BACKGROUND

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.

ISSUE

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 remedy.

RELEVANT CONTRACT PROVISION

The following provision of the parties' collective bargaining agreement is relevant to the issue:

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 Relations Board.

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 her schedule.

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 respond.

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 years.

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 desk.

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 revealed.

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 rule.

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 way."

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.

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 exhibiting.

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 hearing.

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 violation.

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.