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Title: Employer and Union
Date: September 16, 2000
Arbitrator: Philip Kienast
Citation: 2000 NAC 155

 
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 May 24 and 25, 2000 and the record closed upon receipt by the Arbitrator of post hearing briefs on July 20, 2000.  The parties stipulated the issue for decision as:

Did the Employer terminate Pamela Lalonde for just cause?  If not, what is the appropriate remedy?

Applicable Agreement Provisions

            ARTICLE 8:  DISCIPLINE – Sections 8.2 and 8.3

8.2   In the matter of suspension, demotion, discharge or of discipline administered, if after hearing witnesses the appeal of the decision is upheld, the employee’s record shall be cleared of all letters relating to such charges.  Such hearing shall follow the established Grievance and Arbitration (if requested) Procedure.

8.3   In the interest of safety for the public, employees, and the Company, any employee convicted of a sex crime victimizing children shall be terminated and such conviction shall constitute just cause.  Conviction, from the date of ratification of this agreement forward, for other serious felonies of a similar magnitude, as defined by like penalties under the Uniform Sentencing Guidelines of federal and/or state criminal codes, may also constitute just cause for termination depending on the circumstances of the case.

ARTICLE 10:  ARBITRATION – Section 10.7 and 10.8

10.7  The arbitrator, who shall function in a judicial and not a legislative capacity, shall have only such jurisdiction and authority as is specifically granted to him by this Agreement.  The arbitrator shall be limited to determining whether or not the Company (Union) has violated or failed to apply the specific provision or provisions of this Agreement as initially presented in the grievance.  The arbitrator shall have no power to destroy, change, add to, or delete from any of the specific terms of this Agreement.  The arbitrator shall be required to provide his/her decision in accordance with the express language of this Agreement.  Grievances not processed in accordance with the provisions of this Agreement shall not be subject to arbitration.  Any matter coming before the arbitrator which is not within his/her authority, function and jurisdiction, as herein defined, shall be rejected by him/her on that basis without any further decision or recommendation.  The arbitrator may not award any relief which imposes any obligation upon the Company (or Union) with respect to any period of time either before the effective date of this Agreement or after the expiration date of this Agreement.

10.7.1    Where an award involves back payment of wages by the Company, the amount awarded shall be less any amount received from other employment, public assistance, or Unemployment Compensation.

10.8  The decision of the arbitrator, when provided in accordance with the foregoing, shall be final and binding upon both parties.

Background

            Ms. Lalonde worked as a customer contact associate in the Employer’s Customer Contact Center in Everett, Washington.  when an associate leaves his or her work station while on shift, other than for scheduled breaks, they are required to call the Resource Management Group (RMG).  They are also expected to call RMG one-half hour before a scheduled shift if they will not be able to report to work.  Failure to adhere to this directive will cause a “schedule deviation” to be noted on the employee’s record.  The grievant had accumulated numerous schedule deviations which resulted in progressive discipline that culminated in a three day suspension on February 23, 1998.  The letter was issued by the grievant’s supervisor, Karen Brown, and stated in pertinent part (E32):

On October 27, 1997, you were issued a Letter in Lieu of One Day Suspension due to your failure to adhere to your schedule.  Specifically, the excessive amount of time that you should have been at your desk, signed into the system and available to take calls (“missing in action” or MIA) and for leaving your position with your system in a “work” state rather than signing off the system.  The Letter in Lieu of Suspension advised you that continuation of these unacceptable behaviors could result in continued disciplinary action, up to and including termination.  The proper procedures for notification of the Resource Management Group (RMG), when not performing job functions, was also again discussed with you.

. . . .

Inasmuch as you have continued to fail to adhere to your schedule by following the proper procedures set forth, as demonstrated by your continued MIA, you are being issued this Letter of Three Day Suspension, for Tuesday, February 24, Wednesday, February 25, and Thursday, February 26.  I urge you to take this time to consider the necessary steps to correct this situation, and to commit yourself to doing so.  Continuation of this behavior will result in further disciplinary action and, at this time, the next step of discipline is termination.  To avoid this, you must adhere to your schedule as demonstrated by no unaccounted time off-line which is achieved by the procedure of calling RMG on those rare occasions when off-line time may be needed.

            On April 23, 1998 at approximately 1:00 p.m. the grievant received a call from her pregnant teenage daughter who stated she was going into labor.  Ms. Lalonde told another associate at the next desk she was leaving.  When he reminded her she needed to check out with RMG she reportedly stated “I don’t have time for that shit,” dropped off her record of sales for the day in a box at her supervisor’s desk and departed the center.

            The following day, Friday, the grievant timely notified RMG she would not be in to work because of her daughter’s condition.  The following Monday she called  RMG at 8:30, one hour after she was scheduled to report to work.

            On April 29, the grievant was informed by Karen Brown that she was discharged.  The letter stated (E39):

This letter is to notify you that effective today, April 29, 1998, your employment with GTENW is terminated.  This action is a result of your continued unwillingness and failure to execute and follow the reasonable expectations and procedures when leaving your work station.

You have been told both verbally and in writing an innumerable amount of times that you must notify RMG when you leave your work station and that you must call out prior to the start of your scheduled shift.  On Thursday, April 23, you left at 1:16 p.m., 3 hours before your shift ended.  You asked a coworker to notify RMG for you that you were leaving, which clearly indicates that you knew and understood the procedure.  The coworker told you that you needed to call RMG yourself.  You then made the decision to leave without calling RMG or notifying me or any other management person that you were leaving.  On Monday, April 27, 1998, when you had not called in nor shown up for work prior to your scheduled start of 7:30 a.m., RMG began physically looking for you and upon not finding you coded you “Absent Unexcused.”  At approximately 8:20 a.m. you called into the RMG, but only to request to be transferred to another person, not to call out.  It was only when asked by RMG directly if you were also now showing up for work that you confirmed you would be absent.

We have tried repeatedly and exhaustively to get you to adhere to the reasonable expectation of notification when you are away from your desk or absent.  We have made the consequences of failure to follow this guideline extremely clear.  In fact, in your suspension letter of February 23, 1998, you were advised, “Continuation of this behavior will result in further disciplinary action and, at this time, the next step of discipline is termination.”

You have failed to fulfill your obligation to follow proper call out procedures.  Even though the company has repeatedly worked with you and provided you with ample opportunities to correct your behavior, you have failed to do so.  Consequently, your demonstrated behavior leaves GTE no choice but to terminate your employment.

Analysis and Conclusions

            As this Arbitrator has previously held, the Agreement does require the Employer to have just cause to discharge an employee.  Section 8.3 states certain criminal convictions “may also constitute just cause for termination.”  This logically infers other terminations must also meet the just cause standard.

          The Employer’s written procedures accurately tells supervisors what criteria must be met to show just cause (E44):

For employees covered by a collective bargaining agreement, disciplinary action must be fair and reasonable.  The right to make rules and to discipline for infractions is not absolute.  Just cause must be shown.

For employees not covered by a collective bargaining agreement, please see the Important Notice, Section 1.1.

Use the following criteria to determine whether just cause exists:

1.            Was the employee forewarned?
2.            Was the rule or order reasonable, and was it necessary to the operation of the business?
3.            Did the supervisor make an effort to learn the facts?
4.            Was the investigation fair and objective?
5.            Did the investigation produce sufficient evidence of guilt?
6.            Have the rules been applied consistently in the past?
7.            Was the degree of discipline reasonably related to the seriousness of the offense, giving consideration to the employee’s past record, length of service and to any mitigating circumstances?

A “no” answer to any of the above questions means that the discipline may be open to question and the Company’s action could be vulnerable in the grievance and arbitration procedures.

The foregoing criteria are also typically addressed by arbitrators in determining whether just cause existed to terminate an employee.

            In this case the evidence is abundant that the grievant was given clear and unequivocal warning about what would happen if she failed to inform RMG when she was not available to take calls due to person matters such as the need to leave work to provide care for a family member.  Only two months earlier, Ms. Lalonde had been given a three day suspension for failing to notify RMG when she left her work station and was unavailable to work, i.e., “missing in action.”  The notice of suspension states “. . . the next step of discipline is termination” and goes on to tell the grievant to avoid this eventuality she must have no unaccounted time off-line.

            The Union did not contest the rule requiring associates to check in and out with RMG was unreasonable nor did it argue that a reasonable and fair investigation was not undertaken by Ms. Brown prior to her decision to discharge.

            The record discloses that when Ms. Lalonde departed her work station on April 23, 1998 she was well aware she should contact RMG.  She asked a fellow employee, Darrell Underwood, to call RMG on her behalf.  He replied he would not and told her to do it herself.  The grievant replied she did not have time and departed.

            The grievant’s conduct demonstrates she was willful and deliberate in her decision to not call RMG before she went off-line and departed the center for the day.  Moreover, she testified she did not see her supervisor in a nearby cubicle and therefore could not assume she saw her leaving work.  Therefore, the Arbitrator concludes the grievant was well aware on the day in question that her failure to call RMG could result in her discharge.  She chose to risk that outcome when she told her coworker Underhill she did not have time to call.  Moreover, she did not even try to contact RMG on her cell phone while walking to her car or driving home that day.

            There is no evidence the Employer has not consistently disciplined employees for failing to keep RMG apprised of their duty status or violations of similarly important operational rules and procedures.  Therefore, the Arbitrator cannot find the grievant was singled out for disciplinary attention.

            The Union has argued the Arbitrator should ignore the clear and convincing evidence of the grievant’s guilt.  It maintains the grievant was emotionally upset when she received her daughter’s call and should therefore be excused.  However, Section 10.7 of the Agreement makes it crystal clear the Arbitrator has no authority to grant clemency wherein it states:

The Arbitrator shall be limited to determining whether or not the company has violated or failed to apply the specific provision or provisions of this Agreement.

            It is well established in the common law of arbitration that absent evidence the Employer in some way abused its disciplinary discretion, an arbitrator should not substitute his or her discretion for that of management.  This view has been well stated by arbitrator Whitley P. McCoy:

Where an employee has violated a rule or engaged in conduct meriting disciplinary action, it is primarily the function of management to decide upon the proper penalty.  If management acts in good faith upon a fair investigation and fixes a penalty not inconsistent with that imposed in other like cases, an arbitrator should not disturb it.  (Emphasis added)  The mere fact that management has imposed a somewhat different penalty or a somewhat more severe penalty than the arbitrator would have, if he had had the decision to make originally, is no justification for changing it.  The minds of equally reasonable men differ.  A consideration which would weigh heavily with one man will seem of less importance to another.  A circumstance which highly aggravates an offense in one man’s eyes may be only slight aggravation to another.  If an arbitrator could substitute his judgment and discretion for the judgment and discretion honestly exercised by management, then the functions of management would have been abdicated, and unions would take every case to arbitration.  The result would be as intolerable to employees as to management.  The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved—in other words, where there has been abuse of discretion.

Stockham Pipe Fittings Co., 1 LA 160, 162 (1945).  There is no evidence in this record that the Employer abused its disciplinary discretion.  The fact that Karen Brown did not apprise RMG of the grievant’s departure when she saw the grievant leave does not constitute an abuse of managerial discretion.  The burden to notify RMG was the grievant’s not Ms. Brown’s.

            In conclusion, the Employer had just cause to discharge the grievant.  Clemency on the part of the Arbitrator is foreclosed both by Section 10.7 and the common law of arbitration.  Grievance denied.

AWARD

1.         The Employer did terminate Pamela Lalonde for just cause.

 

 

_______________________________
Philip Kienast
September 16, 2000
Bothell, Washington

 

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