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Title: Employer and Union
Date: March 9, 2002
Arbitrator: Philip Kienast 
Citation: 2002 NAC 116

 

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 December 17, 2001 and the record closed upon receipt by the Arbitrator of post hearing briefs on February 6, 2002.  The parties stipulated the issues for decision as:

Is the grievance over the discharge of Mr. Gebre arbitrable?

Did the Employer have just cause to discharge Mr. Gebre?

If not, what is the appropriate remedy?

The parties also agreed to waive the arbitration board called for in Article 18.01 and have this arbitrator alone issue a decision regarding the stipulated issues above.  Also, the parties jointly request the Arbitrator to retain jurisdiction over matters of remedy if any is ordered.

Pertinent Agreement Provisions

ARTICLE 1 – UNION SECURITY

. . . .

1.03  It is understood and agreed that the employer shall not discharge any employee, except for just cause, and that no employees shall be discharged or discriminated against in any way because of his membership in or activities on behalf of the Union.

ARTICLE 18 – READJUSTMENTS

18.01  All misunderstandings or disputes of any character relative to matters covered in this Agreement shall be referred to the Employer representative and the Secretary of the Union.  Should these two fail to reach a satisfactory agree­ment, a third person shall be selected by them, within five (5) days, which three (3) shall form an arbitration board and the decision of the majority of such board shall be binding.

Background

            The Employer was operating a parking lot under a service contract with Lowes Enterprises Northwest.  The lot served employees working for a charitable foundation.  The attendant assigned to this lot was responsible for making sure vehicles using the lot had proper permits and to be watchful of the employees and their automobiles.

            In December of 2000, the Employer was notified that its services were being terminated because an attendant at the lot was found sleeping.  The grievant in this matter, Tekle Gebre, was assigned to cover this lot due to the discharge of the attendant found sleeping.

            On January 2 around 8:00 a.m., David Furniss, the manager of the charitable foundation’s security, made a tour of the parking lot and reported (E1):

At 0804 on Thursday 04JAN00 I, David Furniss conducted a rove of the upper parking area for the 1551 Eastlake facility.  while conducting this rove I witnessed the DPS attendant with his eyes closed and head rested back against the wall for an extended period of time.  I watched the attendant in this manner for approxi­mately 2 minutes and proceeded get his attention by knocking on the window as I left.  I saw his eyes open at this time and I continued on my way out of the parking lot.

The Employer investigated the incident and subsequently discharged Mr. Gebre for sleeping on the job (J4).

          The Union filed a grievance by fax on January 9, 2001 stating (J3):

A grievance has been filed through the Union office as follows:

The Union protests the termination of Mr. Tekle and deems it to be a violation of Article 1.03 of the current Collective Bargaining Agreement.

The Union hopes that this matter can be discussed and settled on an informal basis.  With this in mind, we would appreciate hearing from you, as soon as possible, to arrange a suitable meeting for a proper review of this issue.

The Employer, through its Seattle manager John Hjorten, responded January 23 (J5):

This letter is in response to your letter dated January 9, 2001, in regards to the grievance filed on behalf of Gebre Tekle.  As you know, I have contacted you several times in regards to the scheduling of a meeting to discuss this issue.  I continue to press you for a time and date when we can meet.  I will propose Wednesday, January 31st, at 1:30 pm.

Although we are happy to discuss this matter with you, I have not seen a material change in the basis of this issue.  That is that Mr. Tekle was noted by a security guard representing the owner of the property sleeping while on duty.  This is remains to be the basis of his termination.

Please let me know if the time and date I have listed above is suitable for your schedule.  If it is not, please respond with three other times and dates that I can choose from to fit my schedule.

There were some telephone discussions between the parties in February and some attempts in the following months by Union business representative, Michael Beranbaum, to the Employer’s human resource manager, Debbie Bronson.  On July 31, 2001, the Union’s attorney, Spencer Thal, wrote Mr. Bronson, stating (J8):

I am writing to follow-up on our telephone of this afternoon.  We request a meeting between an Employer representative and the Secretary-Treasurer of our Union to resolve the above-referenced matter.  In the alternative, we are prepared to submit the matter to binding arbitration before a neutral arbitrator without the formality of partial arbitrators on the Board.  I am willing to suggest names of arbitrators or obtain a list from the FMCS.

You have indicated that you believe the grievance is time-barred.  However, there is no language in the contract that specifies a time period within which the grievance must be filed or moved to the meeting between the Employer and the Secretary-Treasurer.  The grievance was filed within five days of the termination, and the parties have been unable to resolve it informally.  Accordingly, there is no basis for your claim that the matter is time-barred.  However, to the extent that you wish to raise such an argument, the appropriate place to raise it is before the Arbitrator.

You indicated that you would respond to me by tomorrow with the Company’s position as to whether it is willing to proceed to arbitration.  If the Company is not willing to move the matter to arbitration, we will have no alternative but to initiate litigation against the Company to compel arbitration.  If we are required to do that, we will seek the maximum relief available under law including attorney’s fees and costs since there is no basis for a refusal to arbitrate.  If I do not hear from you by tomorrow as you promised, I will assume that the Company is unwilling to meet with the Secretary-Treasurer and unwilling to arbitrate, and we will respond accordingly.

Contentions

            The Employer contends the grievance is moot in the face of the unreasonable amount of time the Union waited to demand a meeting or arbitration.  It argues Section 18.01 requires the Union to demand arbitration within 5 days should they be unable to reach a satisfactory agreement with the Employer regarding the grievance.

            On the merits, the Employer contends the grievant was told his predecessor had been fired for sleeping on the job, hence, Mr. Gebre had clear notice that sleeping while on duty would result in discharge.  It argues it had credible evidence the grievant was sleeping and, therefore, had just cause to discharge him.

            The Union contends any delay in the meeting between the parties was the failure of the Employer’s human resource manager, Debbie Bronson, to supply the information requested by the Union in February (J7).  After the meeting required by Section 18.01, the Union notes it worked with the Employer to move the matter to arbitration.

            Regarding the merits, the Union contends there is insufficient evidence to establish the grievant slept on the job.  It maintains the grievant walked the lot with his supervisor at around 7:45 a.m.  It argues this fact along suggests Mr. Gebre was not asleep as Mr. Furniss concluded from observing the grievant’s head tilted back with his eyes closed.

            In any event, the Union contends the grievant made no attempt to situate himself so that he could sleep without being noticed.  It argues this indicates no intent to sleep even if he did in fact nod off for a moment.  In light of these circumstances, the Union contends discharge is not warranted.

Analysis and Conclusions

            On the question of procedural arbitrability, the Arbitrator concludes the grievance is arbitrable.  First, there is no language requiring a meeting between the Union secretary and the Employer’s representative take place within a time certain.  Moreover, it is uncontested that the Union did not get all the information it requested from the Employer.  It is not unreasonable for the Union to wait for all the information requested, especially in light of the January 30 letter of Mr. Hjorten, which states in pertinent part (J7):

I have forwarded a copy of your letter to Debbie Bronson, the Director of Human Resources, for your requests for the personnel file and other prior disciplinary actions taken against Mr. Tekle.  She would also be the person to address any additional policies that the company has against sleeping on the job.

I hope this information helps you.  We want to continue to aid in the speedy resolution of this matter for you.

It was Mr. Hjorten’s responsibility, not the Union’s, to ensure that his directive to Ms. Bronson to supply the information was in fact carried out in a reasonable timeframe.

            Also, there is no explicit language in Section 18.01 imposing a penalty on either party for failing to expedite the meeting between the Employer’s representative and the Union’s secretary.  In construing contract language, arbitrators are required to avoid readings that result in forfeitures.  Therefore, the Employer’s argument that the Union’s right to a meeting or arbitration was forfeited is rejected.  The record discloses the parties did finally meet, but failed “to reach a satisfactory agreement” on the grievance and thereafter worked with deliberate and reasonable speed to arbitrate the matter.

            Turning to the issue of whether the discharge was for just cause, the burden is on the Employer to prove by clear evidence the grievant is guilty of sleeping on the job.  for this purpose it relied on the original report and testimony of the security manager, David Furniss.  In that report he states he observed the grievant with his eyes closed and head back for two minutes while sitting on a chair in the lot office.  He goes on to state that he got the grievant’s “attention by knocking on the window” as he left.

            It may be the grievant was asleep, but it also may be that he was simply resting.  This distinction is important.  In the case of sleep, he would be unable to perform his duties.  If only resting he can still hear cars drive in the lot and then check on their permit.  He can also hear voices indicating unwanted intruders or the call of someone for assistance.

            There is no question he can more quickly and fully provide the monitoring service required of his job if he eyes are open and he is visually scanning the area.  However, simply having his eyes closed does not deprive the Employer entirely of his service as a monitor of the parking lot.

            The fact that the guard got an immediate response from the grievant by knocking once on the window strongly suggests the grievant was in fact resting rather than sleeping.  Mr. Furniss testified that “when I put my hand on the window, I got his attention.  He suddenly became alert.”  (Tr. p. 37)  If the grievant was sound asleep it is improbable that he would quickly become alert by Furniss only putting his hand on the window.

            In light of the foregoing analysis, the Arbitrator finds there is insufficient evidence to prove the grievant was asleep at his work station.  Notwithstanding, there is evidence he was at rest and therefore not fully performing his duties.  Therefore, the Arbitrator will order a reduction in the disciplinary penalty from discharge to a two week suspension and a warning that future incidents of resting while on duty will result in further disciplinary action up to and including discharge.

AWARD

1.       The grievance is arbitrable.

2.       The Employer did not have just cause to discharge Mr. Gebre.

3.       The Employer shall reduce the discharge penalty to a two week suspension with a warning that future incidents of resting while on duty will result in further disciplinary action up to and including discharge.

4.       The Employer shall make the grievant whole for wages lost beyond the two week discharge minus interim earnings.  Interest at 6.0% annual percentage rate will be paid on any balance owed the grievant.

5.       The Arbitrator retains jurisdiction for the sole purpose of adjudicating any disputes over the above ordered remedy.

 

 

___________________________________

Philip Kienast

March 9, 2002

 

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