Airlines, Inc. and The
International Association of Machinists and Aerospace Workers
BEFORE ARBITRATOR MICHAEL F. NAUYOKAS
STATE OF HAWAII
ARBITRATION DECISION AND AWARD
IN THE MATTER OF THE ARBITRATION BETWEEN ALOHA AIRLINES, INC. AND THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS: THE GRIEVANCE OF TERENCE HUDDY
This matter came on to arbitration at two hearings held on June 24, 1999 and July 22, 1999. The International Association of Machinists and Aerospace Workers (“the Union”), was represented by Randy Kauhane and Aloha Airlines, Inc., (“the Employer”), was represented by Brian Tamamoto. The arbitrator made a full disclosure of all potential bases for conflict, and any such conflict were specifically waived by the parties to the arbitration. The parties stipulated to the procedural arbitrability of the controversy and to the fact that the arbitration was properly set following the grievance procedure outlined in the Collective Bargaining Agreement between the Employer and the Union effective November 1, 1993 through October 31, 1997. Pursuant to the Stipulation the terms of the Collective Bargining Agreement govern this subject. The arbitration was conducted pursuant to the article XV of the Collective Bargaining Agreement, Section B. The parties were fully and fairly represented at the hearing. Pursuant to the stipulation of parties the issues presented to the arbitrator are:
The Employer is a commercial aviation operation which provides airline services to the State of Hawaii and connections to the continental United States. Terence Huddy was employed by the Employer as a customer service agent at the Honolulu terminal. At the Honolulu terminal he worked with Mr. Orlando Corpuz, who was likewise a customer service agent. Prior to April 26, 1998 the two men were both co-workers and friends who socialized off the job. During January of 1998, Mr. Corpuz requested that Mr. Huddy loan him some money; Mr. Huddy advanced Mr. Corpuz the amount of $100.00 and apparently also bought him a few lunches. The testimony established that Mr. Corpuz gambled both at work and off work, and was frequently short of funds due to his gambling losses.
Mr. Huddy had requested repayment of the load on several occasions over the period of time between the making of the load in January of 1998 and the date of April 26, 1998. Apparently on that fateful day, Mr. Huddy again requested that Mr. Corpuz pay him the amount owed, and Mr. Corpuz agreed to do so on the following payday. In the interim, there had also been a side bet which Mr. Huddy had won pursuant to which Mr. Corpuz was obligated to buy Mr. Huddy lunch.
On April 26, 1998, at about 9:00 a.m., Mr. Huddy and Mr. Corpuz were in the men’s employee locker room at the Honolulu terminal operation of the Employer. At this time, Mr. Huddy, who had earlier in the day reminded Mr. Corpuz of his promise to repay the loan, again reminded Mr. Corpuz both of the loan and the fact that he owed him lunch under their bet. Mr. Corpuz became extremely agitated at this point, and the testimony of the parties at the arbitration hearings indicated that he threw a five-dollar bill in Mr. Huddy’s direction and approached Mr. Huddy, finally becoming involved in an extremely heated discussion. Both individuals raised their voices and apparently at one point Mr. Huddy advised Mr. Corpuz to: “get out of my face….” There is disputed testimony as to whether Mr. Huddy likewise advised Mr. Corpuz, “you like I kick your ass?” As the verbal argument heated up, Mr. Huddy apparently attempted to withdraw from the scene and was closely followed by Mr. Corpuz, who continued his extremely heated defense of his failure to pay the loan in a timely manner, as well as a discussion of other personal issues between the two individuals. Again, Mr. Huddy requested that Mr. Corpuz “get out of his face.” As Mr. Huddy entered the exit hallway from the locker room, Mr. Corpuz again crossed Mr. Huddy’s path while continuing his diatribe. At this point, there is no dispute that Mr. Huddy, with his open hand, pushed Mr. Corpuz’s face away from him, and that the back of Mr. Corpuz’s head impacted the wall of the hallway. Mr. Corpuz sustained a quarter inch laceration inside his mouth as the result of the open handed shove, which caused some minor bleeding. Mr. Corpuz did not retaliate at this point and both individuals left the scene. There is no evidence of any other physical contact between Mr. Huddy and Mr. Corpuz.
Immediately after this incident, Mr. Corpuz reported the incident to Rodney Kim, the customer service manager on duty, and filed a Honolulu station incident report which is Employer Exhibit No. 1 to the arbitration hearing. Following receipt of the report by management, Mr. Huddy was suspended from service pending an investigative hearing. Mr. Corpuz was not disciplined.
On May 8, 1998 an investigative hearing was held pursuant to article IV, paragraph F of the Collective Bargaining Agreement. The charge against Mr. Huddy was violation of the Employer’s rules of conduct; specifically, violation of the Honolulu Station Policy Handbook, Section C. Causes for Discipline or Discharge, Category One, which lists as a Category One offense:
Fighting, threatening bodily injury toward supervisors, employees, passengers, vendors, officers, or officials of the company, or any other individual.
Under the Category One heading, the Station Policy Handbook clearly states that “violations will result in discharge.” The investigative hearing was attended by the Grievant Terence Huddy, the complaining party Mr. Corpuz, Harry Shupe and Randy Wun of the Union, and Rodney Kim, the cognizant supervisor at the time of the incident. The investigative hearing was conducted by Lowell Keahi of Employer’s management staff. In arriving at its decision, the Employer’s investigating officer considered the situation, advised Mr. Huddy of the charges against him, the rule violated, and, specifically considered whether the Employer had given Mr. Huddy adequate forewarning of the possible and/or possible disciplinary consequences of his conduct. Mr. Huddy was given the opportunity to respond to the charges with representation. The decision made by the hearing officer was that Mr. Huddy violated the rule cited and that discharge from service was the appropriate disciplinary sanction. The discharge became effective of the date that the Grievant was first held out of service, April 26, 1998. The Union initiated grievance procedures pursuant to the Collective Bargaining Agreement. Following the third step grievance, this arbitration took place as the final step in the process of review.
The Employer’s position is that it has met its burden of showing just cause by the preponderance of the evidence in Mr. Huddy’s termination, arguing that:
It is the Union’s Position that the Employer has failed to meet the burden of proof required to sustain termination of Terence Huddy for just cause, noting that:
Finally, the Union argues that Mr. Huddy should be reinstated to his position and made whole.
ESTABLISHING JUST AND PROPER CAUSE
In this matter, pursuant to the Collective Bargaining Agreement and the body of decisions governing the interpretation of just cause, the Employer must show by a preponderance of the evidence that just and proper cause existed for Mr. Huddy’s termination by the Employer. In order to satisfy this standard, the Employer must meet the following tests required to show just cause for termination:
1. The employee was forewarned of the consequences of his or her actions.
2. The Employer’s rules are reasonably related to business efficiency and the performance the Employer might expect from an employee.
3. An effort was made before discharge to determine whether the employee was guilty as charged.
4. The investigation was conducted fairly and objectively.
5. Substantial evidence of the employee’s guilt was obtained.
6. The rule was applied fairly and without discrimination.
7. The degree of discipline was reasonably related to the seriousness of the employee’s offense and the employee’s past record.
Enterprise Wire Co., 46 Lab. Arb. (BNA) 359, 363-365 (1966) (C. Daugherty, Arb.); State of Hawaii, 109 Lab. Arb. (BNA) 289, 291 (7/11/97) (Nauyokas, Arb.); State of Hawaii, (7/27/97) (Nauyokas, Arb.); UFCW Union Local 480 AFL-CIO vs. Safeway, (10/30/98) (Nauyokas, Arb.); see also Ogden, 111 Lab. Arb. (BNA) 251, 253 (8/31/99) (Nauyokas, Arb.)
Issue No. 1: Was Terence Huddy forewarned of the consequences of his actions?
The testimony and the exhibits produced at the hearing clearly demonstrated that Mr. Huddy upon several occasions had acknowledged receipt of the Honolulu Station Police Handbook promulgated by the Employer. The Handbook clearly states on page 700:7 subparagraph C. Causes for Discipline of Discharge Category 1: (violations will result in discharge.); further on page 700:8 subparagraph 16. the conduct that will result in discharge includes:
Fighting, threatening bodily injury toward supervisors, employees, passengers, vendors, officers for officials of the Company or any other individual.
Also, Mr. Huddy confirmed receiving a letter from a cognizant supervisor regarding what other employees considered intimidating behavior on his part prior to the incident. At that time he was reminded that fighting or intimidation could result in the termination of his employment. Given these circumstances, the arbitrator finds that Mr. Huddy was or should have been aware of the fact that becoming involved in a physical altercation in the workplace could or would result in the termination of his employment.
Issue No. 2: Was the Employer’s rule reasonably related to business efficiency and the performance the Employer might expect from an employee?
In the arbitrator’s analysis, the nature of the rule against fighting on the premises, is per se a reasonable rule. Mr. Huddy, when examined, admitted that the rule was a reasonable rule that the prevention of workplace violence necessitated such a rule.
Issue No. 3: Was an effort made prior to the discharge of Mr. Huddy to determine whether or not he was guilty of the offense charged?
An investigatory hearing was held following the incident and prior to the discharge of Mr. Huddy from his employment. It is clear that at the hearing Mr. Huddy had the benefit of representation by his Union, and an opportunity to be advised as to specifically what charges were brought against him and to respond to such charges. Therefore, the Arbitrator specifically finds that the Employer made an effort to determine whether or not Mr. Huddy was guilty of the offense charged and that he received the process that was due under the Collective Bargaining Agreement.
Issue No. 4: Was the investigation of the incident conducted fairly and objectively?
As noted in the analysis of issue No. 3, an investigative hearing was conducted on may 8, 1998 wherein Mr. Huddy had the opportunity to tell his side of the story to a higher management official, and the management official gave Mr. Huddy the opportunity to state his case. The Union complains that the failure of the Employer to consider Mr. Corpuz’s conduct was a mitigating factor in the disciplinary action taken against the Grievant constituted a violation of Mr. Huddy’s right to industrial due process. In the Arbitrator’s view, there was no abuse of discretion in the investigation. Essentially the investigation was as to whether or not Mr. Huddy violated the rule cited as the cause for discipline. In reviewing the evidence in the light most favorable to Mr. Huddy, it appears that the investigation was conducted fairly and objectively.
Issue No. 5: Was substantial evidence of Mr. Huddy’s guilt obtained?
In reviewing the exhibits and the testimony of witnesses given at the hearing including the testimony of Mr. Huddy, it becomes apparent that Mr. Huddy did strike Mr. Corpuz with his open hand in the face with sufficient force to cause his head to rock back into the wall and to make his lip bleed. This is admitted by Mr. Huddy. At this point in the analysis, the Arbitrator must note that Mr. Corpuz is not entirely blameless in the causation of this particular incident; however, Mr. Corpuz did not intentionally at any point physically come in contact with Mr. Huddy. That being the case, Mr. Huddy cannot argue that he was defending himself, and sufficient evidence of a mutual affray was not demonstrated. No evidence that Mr. Huddy had a reasonable belief that he was about to suffer harm at Mr. Corpuz’s hands was introduced at the hearing to relieve Mr. Huddy of his obligation to conduct himself in a reasonable manner. Therefore, the Arbitrator finds that the company did obtain substantial evidence of Mr. Huddy’s guilt prior to his termination, and that there was insufficient evidence of a real or perceived threat against Mr. Huddy by Mr. Corpuz to justify Mr. Huddy’s conduct of escalating the situation into one of intentional physical contact.
Issue No. 6: Was the rule applied fairly and without discrimination?
In reviewing the circumstances, the testimony, the evidence, and the demeanor of the participants in the incident, the Arbitrator is left with some question as to Mr. Corpuz’s character and judgment; however, the Arbitrator finds that these flaws do not relieve Mr. Huddy of his obligation to behave in a civilized manner. Essentially, Mr. Huddy could have taken Mr. Corpuz to Small Claims Court, hired a collection agency, or resolved the dispute regarding the load off of the Employer’s premises. In the Arbitrator’s view this case is surely evidence that in the workplace it is wiser to “neither a borrower nor a lender be”. The Employer produced sufficient evidence that the no fighting policy had been consistently applied in other situations. Therefore the Arbitrator finds that the rule in this instance was applied fairly and without discrimination despite Mr. Corpuz’s poor judgment1.
Issue No. 7: Was the degree of discipline reasonably related to the seriousness of the offense and Mr. Huddy’s past record with the Employer?
Violence in the workplace is a severe problem in United States. While under examination, Mr. Huddy admitted that the workplace should be a place where workers can go without fear of intimidation or physical violence. The testimony at the hearing, as well as the evidence, showed that Mr. Huddy had been counseled regarding his ability to control his temper while on the Employer’s premises during working hours. The testimony demonstrated that this counseling involved what other employees perceived as an intimidating demeanor. In another incident the evidence and testimony established that he had, while in the view of other employees, punched a wall when verbally counseled regarding his workplace conduct.
Further, the testimony and exhibits established that the Grievant had received verbal warning on several occasions regarding his attendance. The Union took the position that the laxity of the Employer’s enforcement of its attendance policy generally somehow negated what was an extremely poor attendance record by Mr. Huddy. The Arbitrator finds the Union’s position, will well argues, is unpersuasive. Traditionally in the workplace attendance is one of the factors which an employer can consider in evaluating an employee’s record when considering discipline. Essentially, the argument at the hearing regarding the Grievant’s attendance and discipline went more to Mr. Huddy’s credibility than to record generally.
The Arbitrator specifically finds that the nature of the offense was so serious that termination regardless of Mr. Huddy’s record with the Employer was the suitable discipline for the offense. Quite simply, fighting, threatening, intimidation or violence should be no more tolerated in the workplace than they are in any other part of society. While Mr. Corpuz’s conduct may have been objectionable, poor manners will not justify physical violence. The testimony at the hearing made it clear that Mr. Huddy had a problem controlling his temper. The unfortunate personal characteristic is not a problem that the Employer must tolerate or condone.
DECISION AND AWARD
Based upon the foregoing, the Arbitrator finds that the termination of Terence Huddy was for just cause and did not violate the Collective Bargaining Agreement. The grievance therefore is denied and the termination is sustained as being for just cause.DATED: Honolulu, Hawaii, , 1999.
On this _____ day of __________, 1999, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.
Notary Public, State of
My Commission expires: _______________
Notary Public, State of
My Commission expires: _______________
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028