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Title: Employer and Union
Date: July 17, 2000
Arbitrator: Philip Kienast
Citation: 2000 NAC 154

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            This proceeding is in accordance with the parties’ Agreement.  A hearing in this matter was held on April 16 and 17, 2000 and the record closed on June 4, 2000 upon receipt by the Arbitrator of post hearing briefs.  Absent a stipulation by the parties, the Arbitrator has framed the issues for decision as:

Is the grievance of X__________ arbitrable? 

If yes, did the Employer violate the Agreement when it discharged Mr. X__________?

If yes, what is the appropriate remedy?

Pertinent Agreement Provisions

ARTICLE II – UNION SECURITY

            (c)            NO DISCRIMINATION:  The Company agrees not to discriminate against any employee for membership in or any legal activity on behalf of AFTRA, or by reason of the prosecution of any claim arising under this Agreement against the Company.

ARTICLE IV – GRIEVANCE PROCEDURE

. . . .

            (c)            STEP 3:  Any such question as to interpretation or application of this Agreement which is not settled in accordance with the foregoing paragraphs of this Article may be appealed to arbitration under the Voluntary Labor Arbitration Rules of the American Arbitration Association, provided written request is made to the other party within forty-five (45) calendar days after the question was first taken up with the Department Head, or his designated representative, as provided for under paragraph (a) above.  Such written request for arbitration shall include a description of the incident giving rise to the grievance, the specific Article or Articles of the Agreement alleged to be violated, and the remedy requested.  In the event of any such request for arbitration, the Company and AFTRA shall attempt to agree upon a mutually satisfactory arbitrator.  If the parties are unable to agree on a mutually satisfactory arbitrator within ten (10) calendar days after written request to arbitrate, either party may request the American Arbitration Association to submit a panel of seven (7) names from which the arbitrator shall be chosen by each party alternately striking names.

            (d)            POWERS OF THE ARBITRATOR:  The arbitrator shall have no power to change, amend, add to or subtract from any of the terms of this Agreement, but shall determine only whether or not there has been a violation of this Agreement in the respect alleged in the grievance.  The decision of the arbitrator shall be based solely on the evidence and arguments presented to him by the respective parties, and such decision within the limits herein prescribed shall be final and binding on the parties to the dispute.  Each party will bear its own expenses in carrying out the provisions of this Article and the parties will share equally in the expenses of the arbitrator.

            (e)            LIMITS ON ARBITRATION:  Any arbitration under this Agreement shall be limited to matters of interpretation or application of the specific terms of this Agreement.

ARTICLE X – MANAGEMENT FUNCTIONS

            (a)            MANAGEMENT RIGHTS:  The management of the business and the direction of the work force, including the right to plan, direct, and control station operations; the right to hire, schedule, assign work, retire, demote, suspend, transfer, or discharge; and the right to discipline for just cause; the right to judge the competency and ability of employees; the right to determine the means, methods, processes and schedules of production, the right to determine the products to be manufactured or services to be performed; the right to determine whether to make or buy; the right to determine the location of stations and the continuance of any departments; the right to establish production standards in order to maintain efficiency of the employees and to determine the appropriate-ness of programming, are rights belonging to the Company and are not subject to the grievance procedure set forth in this Agreement.  It is understood, however, that in the exercise of the foregoing functions, the Company shall observe the provisions of this Agreement.

ARTICLE XI – NONDISCRIMINATION

            All provisions of this Agreement, including provisions with respect to wages, rates of pay, promotions, hours, and conditions of work, shall apply equitably, fairly, and without discrimination to all employees covered by this Agreement.  There shall be no discrimination by either AFTRA or the Company against any employee or job applicant because of race, religion, color, sex, national origin, marital status, disability, or sexual preference (promotions are a sole management right).  Claims of violation of this article shall not be subject to the arbitration processes of this Agreement provided that the claimant has some other legal avenue through which to pursue such a claim of discrimination.  The term “legal avenue” shall include the right of filing charges with any governmental agency as well as the right of redress through the courts.

Background

            X__________ was hired in 1993 as a reporter/producer for Evening Magazine, a show created by King TV that focused on segments designed to inform and entertain like articles in popular print magazines.  The executive producer of the show, A_____, hired the grievant and supervised him until 1997 when he was promoted to director of programming for King TV and B_____ replaced him as director of Evening Magazine.

            X__________’s performance as a reporter on the show was never a problem.  However, his ability to write and produce segments was seen as an area in need of improvement from the beginning of his career at King TV as reflected in his performance appraisals (U1, 2 and E 9, 10).  On March 2, 1999 at a meeting in which Union representative, C_____ , was also present, A_____ and B_____ informed the grievant that his performance as a writer and producer had to improve or he would be terminated.  Mr. A_____ sent X__________ a memo summarizing the meeting which states in part (E6):

. . . .

Issue 2:  Ongoing Poor Performance

The greater and more serious issue discussed was your ongoing poor performance as an Evening Magazine Reporter.  It appeared that C_____ had limited information regarding this issue; therefore, I recounted the following history:  1) That I hired you with the expectation that you would develop the necessary skills required to spot and craft compelling stories for a long format program (Evening Magazine); 2) That I worked closely with you for the first two years in an effort to teach you the fundamentals; 3) That by year 3 I had concerns about your long term success; 4) That I saw some improvement in year 4 and continued to encourage and guide your growth; 5) That year 5 was an unsatisfactory year, and, 6) The current year continues to show unsatisfactory growth.  C_____ asked if you were aware of what is expected from you as a Reporter.  I felt you were aware of our expectations from the numerous meetings you’ve had with B_____ and myself over the years; however, I recounted our expectations as the following:  1) That you would spot and pitch compelling local stories that have mass appeal and have promotable story angles, 2) That you would independently make the right decisions regarding story structure (hook, beginning, middle, end, payoff) and craft a story in a compelling manner, 3) That your writing be solid with little need for review and editing, and 4) That you follow the operational systems of Evening Magazine and work in a manner that promotes teamwork.

We discussed a couple of recent stories where other people on the staff were forced to conduct last minute editing and restructuring on your stories to make them acceptable for air (Gas Station Survivor/Vacation Scam).  You agreed that in some cases, the rewrites and restructuring of your work made them better.  In other cases you felt the stories were better before the rewrites and reedits.  As we discussed this is a subjective area where decisions are made by management.

C_____ asked what you needed to do from this point forward.  I told him about our meeting last week (February 22) where we discussed that very question.  I told him, as I told you, that you needed to 1) Regain the trust of E_____, and 2) Regain the confidence from B_____ and myself in your ability to work at the same level as the other Reporters/Producers on staff.  My expectation was, and is, that you would do this immediately.  I continued by stating that, after 6 years, you were a veteran and should be able to coach new members on staff.  Instead, you are requiring the same amount of attention given to you several years ago.  I pointed out that this would have to end as B_____ needs to invest time in our new employees to further their chances of success.  The guidance given to you will be equal to the other seasoned Reporters and Producers on staff.

[C_____] summarized our meeting, verifying the fact that KING 5 planned no disciplinary measures connected to your lie to E_____.  I agreed.  C_____ continued by saying that KING 5 expects you to improve the quality of your work to an acceptable level immediately.  I agreed and added that failure to improve your work to an acceptable level may lead to your termination.

C_____ said that he was going to recommend that you accept the deal.  You and C_____ left to discuss.  I assume, since I haven’t heard otherwise, that you accept and understand the seriousness of the situation and am looking forward to the required improvements.

No grievance of the warning given at the meeting was filed.  There was not even an oral protest made by the grievant or the Union asserting the grievant was issued a warning because he had previously signed a grievance.

            On July 22, 1999, X__________ was discharged for failing to bring his writing and producing performance up to the level set out in the March final warning meeting.

            The Union contends X__________ was fired in retaliation for a grievance he and two other reporter/producers filed in April of 1998 regarding overtime work.  The Union also argues the Employer failed to prove the grievant’s performance as a producer was so poor as to warrant discharge.  The Union agrees the alleged discrimination based on race and sexual orientation cannot properly be considered in the grievance procedure per Article XI of the Agreement.

            The Employer contends, pursuant to Article X, it is the judge of employee performance and that in its eyes the grievant was not performing his duties as a writer and producer of show segments successfully.  Moreover, the Employer argues the grievance is not arbitrable because the Agreement states that its judgment on performance “are not subject to the grievance procedure set forth in this Agreement.”

Analysis and Conclusion

            The grievance is arbitrable.  The Employer’s position fails to take into account the final sentence of Article X(a) which states that in the exercise of its management rights it will “observe the provisions of this Agreement.”  One of these provisions states clearly the Employer may discharge only “for just cause.”  It is a well established principle of industrial relations that when an Employer agrees in a labor contract to discipline for just cause it is agreeing to potential review of its disciplinary decisions by a neutral third party.  Without such review there would be no substance to the just cause commitment.

            A primary rule of contract construction holds the contract should be read as a whole such that each provision can be given force and effect.  For the just cause provision to be given force and effect it must be construed as an intended exception to the general limitations placed on grievances over the exercise of other management rights.  By so doing force and effect can be given to both the restriction on grievances and the just cause provisions contained in Article X.

            Another rule of construction is that an interpretation that avoids forfeiture of a right is to be preferred over an interpretation that results in forfeiture.  The right to be disciplined and discharged only for just cause would be forfeited under the interpretation given Article X by the Employer.  Accordingly, the Arbitrator rejects this interpretation and construes the just cause provision of Article X to be a provision of the Agreement that must be observed by the Employer in exercising its right to discipline and discharge.

            The Arbitrator finds nothing in Article X or evidence of past practice that would permit an interpretation that conduct discharges are arbitrable whereas discharges for poor performance are not.  Finally, the Arbitrator notes for the record that it is undisputed that the grievance, as it relates to discrimination because of race and/or sexual orientation is not arbitrable pursuant to Article X.  The parties are in agreement that the grievant has “other legal avenues” through which to pursue such a claim of discrimination.

            Notwithstanding the foregoing, it is undisputed the grievance is arbitrable as to its claim that the discharge was in retaliation for the grievant’s pursuit of a grievance.  Article II(c) is clear and unequivocal in prohibiting the Employer from retaliating against an employee for “prosecution of any claim arising under this Agreement against the Company.”  Article II specifically authorizes such a claim can be arbitrated.

            In summary, the grievance is arbitrable as to whether the Employer had just cause to discharge the grievant for failing to meet performance standards.  Imbedded in this general question is whether or not the discharge was really motivated by the grievant’s Union activity.  The Employer carries the burden to prove just cause.  The Union carries the burden to prove the Employer’s stated reason was pretextual and that the real reason was retribution for Union activity.

            Turning to the merits of the grievance the record discloses the Employer communicated to the grievant that his performance in producing/writing segments was not up to standards and needed to be improved.  In 1996 the grievant was told in his performance appraisal by A_____:

X__________ continues to concentrate his efforts on crafting his stories in the most compelling structure.  While his outlines have helped, X__________ still needs to work on this area:  determining hook, beginning, middle, and end with payoff.  At times, story structure is right on; other times, obvious mistakes are made that impact the storie’s [sic] effectiveness.  I’d like to see X__________ become consistent and confident in delivering stories with proper structure.

            In his 1998 performance appraisal X__________ was told by his new supervisor, B_____, that improvement in his consistency as a writer/producer was needed (E1):

Evening Magazine relies on the ability to tell compelling stories.  My assessment of X__________’s ability over the past year in this area is that he cannot consistently define a story’s focus on his own.  It is difficult for him to craft a cohesive story with all the required elements without follow up editing, input and guidance from the Executive Producer.

            As noted above, X__________ was specifically warned that failure to reach the expected level of performance as a writer/producer would result in his termination.  In a letter of March 3, 1999, A_____ summarized the previous day’s meeting with X__________ and Union represen-tative, C_____, and concluded by noting that failure to improve “may lead to your termination.”

            The Union argued the letter of recommendation written by A_____ in 1996 regarding the grievant’s application to attend the Poynter Institute belies the incompetence later asserted as the basis for his discharge.  However, a close reading of the letter (U3) reveals there is praise only for the grievant’s skills as a reporter and not as a writer/producer—his other role with Evening Magazine.  Therefore, the Arbitrator does not find this letter constitutes evidence of overall competence as argued by the Union.

            The Arbitrator has reviewed the evidence presented by the Union regarding the helpfulness of the editorial work done on some of X__________’s stories (U17-21).  Generally, it reflects that experienced professionals have different perceptions in regard to the helpfulness of editorial changes made.  More importantly, none of the experts provided any evidence that X__________’s stories were in fact well crafted and written.  Therefore, the Arbitrator concludes the evidence does not prove that X__________’s supervisors were simply nitpicking details in otherwise good stories.

            Absent persuasive evidence that performance/production standards for writing and producing segments for Evening Magazine were inherently unreasonable or arbitrarily set at a higher level for X__________ than other similarly situated reporter/producers, the Arbitrator has no basis for finding the Employer did not have just cause to discharge the grievant.  The grievant was informed what level of performance was expected.  He was told repeatedly he was not meeting the expected level of performance as a writer/producer.  He was warned months before his discharge that failure to perform at an acceptable level as a writer and producer would lead to his termination.

            Article X is clear and specific in reserving the right of management to control station operations, establish production standards and discipline for just cause.  The evidence presented by the Employer establishes a prima facie case for a finding that it had just cause to discharge the grievant.  The discussion now turns on whether the Union proved the real reason for discharge was the grievant’s assertion of his contractual rights in the overtime grievance.

            The simple fact that the grievant’s discharge took place after the overtime grievance was filed by X__________ and two other employees in April of 1998 is not proof of retaliation.  The record discloses that management had expressed concerns about his story writing and producing skills on several occasions prior to May of 1998.  Therefore, the weakness in producing and writing stories was in fact raised by management well before the overtime grievance was filed.

            X__________ testified that his relationship with B_____ “became frosty” in the summer of 1998 after he went to the station’s general manager to request travel funds to attend the Poynter Institute.  Mr. X__________ stated B_____ was upset by the fact he went over his head after he had denied his initial request for travel support.  The grievant did not similarly testify that his relationship with B_____ became frosty after he and two other fellow employees filed a grievance in April 1998.  Indeed he testified that before the general manager incident that “things were going okay” in the summer of 1998 with B_____.  In light of the foregoing, the Arbitrator sees no evidence of a direct connection between Mr. X__________’s grievance filing and a negative turn in his relationship with his supervisor.  By his own account the relationship was okay prior to the request made by the grievant for travel funds from the general manager’s office.

            The Union argued a strong piece of evidence supporting the allegation of retaliation for filing the grievance was the working file of B_____ on the impact of the grievance and subsequent schedule changes had on the staff of Evening Magazine (U16).  This file was uncovered during the investigation of Mr. X__________’s grievance.  The general format of the memo is a recounting of employee reactions and perceptions.  Fully one-third of the document reflects discussions with another reporter/producer, D_____, over the impact of new schedule requirements on his own working schedule.  It is most interesting that the grievant is not even mentioned, even though he signed the grievance along with D_____.

            More importantly, there is nothing in the file notes to indicate any intention on the part of B_____ to retaliate against D_____, let alone the grievant.  In the last lines of his file notes B_____ states that D_____ said to many people it looks like B_____ was retaliating for the grievance.  His notes go on to say:  “I looked him [D_____] right in the eye and told him that couldn’t be further from the truth.”  Mr. D_____ testified at the hearing and did not claim he had been retaliated against as a grievance signer.  He further testified A_____ was a “fair and approachable executive.”

            On balance, the notes of B_____ coupled with the testimony of Mr. D_____ do not support a finding that A_____ and/or B_____ retaliated against those who signed the grievance, one of whom is X__________.  This conclusion taken with the grievant’s own testimony do not provide evidence for a finding that X__________’s discharge was in retaliation for filing a grievance, but rather was for his inability or unwillingness to meet the performance levels set by the Employer for writing and producing stories.  His performance as a writer was never in question.

            In conclusion there is insufficient evidence in the record to sustain the charge of retaliation made in Mr. X__________’s grievance.  Accordingly, the arbitration finds no basis for overturning the just cause discharge decision of the Employer.

AWARD

1.         The grievance of X__________ is arbitrable.

2.         The Employer did not violate the Agreement when it discharged Mr. X__________.

 

 

___________________________
Philip Kienast
July 17, 2000
Bothell, Washington

 

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