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Title: District 142 and Aircraft Service Intl
Date: December 3, 2002
Arbitrator: Lynn Wagner
Citation: 2004 NAC 132

IN THE MATTER OF:

District 142, INT’L Assoc. of 
Machinests & Aerospace Workers
on behalf of Lorenzo Lee,

                        Claimant,

vs.

Aircraft Service International,

                        Respondent.

                                                                        /

AWARD OF ARBITRATOR

This arbitration arises out of a grievance filed by District #142, International Association of Machinests & Aerospace Workers (hereinafter “Union”), on behalf of Lorenzo Lee (hereinafter “Grievant”), who until his discharge on or about February 20, 2002, was employed by Aircraft Service International (hereinafter “Employer”) as a skycap at Ft. Lauderdale International Airport.  The terms and conditions of the Grievant’s employment were governed by the collective bargaining agreement between the Union and the Employer dated December 15, 1998, as extended by the letter agreement dated September 4, 2001 (hereinafter “Contract”).  The parties exhausted the steps of the grievance procedure contained in the Contract and the grievance proceeded to arbitration.  The Arbitration Hearing was held in Ft. Lauderdale, Florida on October 29, 2002.  At the hearing, the Grievant was represented by Paul Jones, General Chairman of the Union, and the Company was represented by Theresa Hoien, Regional Human Resources Manager.

ISSUES

The parties agreed the Arbitrator should determine the issues to be decided.  Based on the evidence introduced at the hearing and the positions taken by the parties, the Arbitrator concludes the issues are as follows:

1.                  Whether Grievant committed insubordination; and

2.                  If so, whether under all of the facts and circumstances, it constituted just cause for his discharge.

RELEVANT CONTRACT PROVISIONS

The relevant Contract provisions are as follows:

ARTICLE I – PURPOSE OF AGREEMENT.  he purpose of this Agreement is to provide…employment under conditions of reasonable hours, proper compensation and reasonable working conditions….

ARTICLE XIV – ADJUSTMENT OF GRIEVANCES.

a.   An Employee who believes he has been unjustly dealt with…may present his grievance…

*  *  *

c.   If the grievance is still not satisfactorily settled, the dispute may be referred to an impartial arbitrator….  The decision of the Arbitrator shall be binding on both parties….”

ARBITRABILITY

The parties agree that the Grievance was timely filed, all steps in the grievance procedure have been exhausted or waived and the Arbitrator has jurisdiction to decide the Grievance on the merits.

The parties acknowledge the Grievant has filed a charge with the National Labor Relations Board (“NLRB”) arising out of the same facts and occurrences, but agree that the Arbitrator shall decide only whether the Grievant was properly discharged under the Contract, apart from any potential violations of the National Labor Relations Act.  The parties also agreed that the grievance does not involve any claim the Grievant was discharged because of his race, color, creed or national origin in breach of Article XVII of the Contract or violation of federal or state employment statutes.

RELEVANT FACTS

Grievant was employed by the Company for approximately nine (9) years prior to his discharge.  During that time, he committed no offenses involving insubordination or other serious matters.  At the time of his discharge, he was employed as a skycap at the Ft. Lauderdale International Airport under an agreement whereunder the Company provides skycaps to Northwest Airlines.  As a tipped employee, the Company paid him at the rate of $2.13 per hour and he was entitled to a prorata share of the total tips received by skycaps.  His share of the tips per week ranged from $700 to $1,000.

According to Grievant, on February 14, 2002, he was assisting passengers in taking their luggage off a conveyor belt.  A Northwest Airlines baggage agent told him to leave certain pieces of luggage on the floor near the conveyor because the passengers were coming right back to claim them.  She told Grievant that, if the passengers did not return immediately, she would place the luggage in the Northwest Airlines baggage claim office.  She asked Grievant to leave the baggage cart he was using in the event she had to move the luggage to the office.  The Grievant complied with her requests and left the area to take his lunch break.

The Grievant was then approached by two lead skycaps who, although bargaining unit members, have the additional duties under the Contract of leading and directing the work of regular skycaps, such as the Grievant.  They presented him with a written “Employee Warning Record”, and requested he sign it.  It stated under “Company Remarks of Violation”:

Skycap Lorenzo Lee was told to go to the baggage claim to work in the claim area to work the flight.  He refused to do so.  He was told again to go to the claim area to work another flight.  He also refused to do so.  The Northwest agent had to clear the leftover bags off the belt.  Lee went to curbside and started checking after he was told to work the claim area.

The Grievant signed the form, after writing in the section entitled “Employee Remark of Violations”:

John Faison [one of the Lead Skycaps] asked me to check the baggage room because he saw the N.W. baggages (sic) agent taking two bags to baggage room – Agent requested that I leave cart for her because of a problem with those bags.”

According to Grievant, after hearing his explanation, Faison told him not to worry about the written warning, that he “would tear it up.”  However, several days later, the Chief Skycap, Freeman, told Grievant not to punch in for work, but to report to the office of the Company’s Area General Manager, John Harris, about the written warning.  The Grievant went to Shop Steward, Ray Moses, and asked that he accompany him to the meeting with Harris.  Moses refused, stating he could not do so until he received a copy of the written warning.  As a result, the Grievant went to Harris’s office alone.

Harris declined to conduct a meeting on the written warning because the Grievant was not represented by a shop steward.  Harris instructed Freeman, to provide Moses with a copy of the warning.  He told the Grievant he was suspended from work pending a meeting at which Moses would be present.  Although the Grievant testified he was unsure what Harris meant by “suspended”, he stated explicitly in his Affidavit to the NLRB dated May 7, 2002, that “Harris told me that I could not work until I returned with my Shop Steward.”

The Grievant returned to the jobsite at Northwest Airlines and told Moses what had transpired during his meeting with Harris.  Although the Grievant testified at the hearing he told Moses only that he had been “suspended”, in the NLRB affidavit he explicitly states, “…I told [Moses] that Harris said I could not work until he went to the meeting with me.”

According to the Grievant, Moses replied that Harris did not have the right to impose a suspension before a shop steward was provided with a copy of the written warning and there was a meeting attended by the shop steward.  The Grievant testified that Moses then told him to punch in and work, notwithstanding the suspension imposed by Harris.  Moses reportedly stated he would straighten out the matter the following day.  Moses denied he told the Grievant to punch in and go to work.

The Grievant completed his shift that day and punched in at the beginning of his next shift, the following morning.  According to the Grievant, Freeman approached him and questioned why he had punched in when Harris had suspended him.  He told Freeman that Moses had told him to do so.  Freeman directed him not to work until Moses arrived.  Grievant left the jobsite and returned around noon to meet with Moses.

As it developed, the meeting was at Harris’ office and included Harris, Freeman, a person identified as Wilson, Moses and the Grievant.  By that time, Moses had received a copy of the written warning.  During the meeting, Harris decided he needed statements from Faison and the Northwest Airlines baggage agent and wrote under the Section entitled “Action Taken”:

“Susp pending further statements from Woody/[unintelligible] & NW agent.”

According to Grievant, Harris then asked, “you did not go back to work, right?”  The Grievant admitted he had based on Moses’ advice.  Moses denied he told the Grievant to punch in.  Harris then crossed out the above notation and substituted:

“Term for going to work while susp.”

At the Step Two meeting, the Company affirmed the discharge, stating:

   Employee returned to work after being told by General Mgr. that he was suspended.”

On February 27, 2002, the Union filed the instant Grievance for “unfair termination of the Grievant”.

ARGUMENTS

By the Union.  The Union argued that the Grievant did not commit the offense of insubordination because he was never given a “direct order” by Harris, and that the real reason for his termination was he had filed a workers compensation claim in the fall of 2001.  The Union also contends that Harris acted improperly in suspending the Grievant since the initial meeting was not attended by a shop steward.  Finally, the Union requested the Arbitrator take into account that Faison had told the Grievant he was going to tear up the Employee Warning Record and Grievant’s nine (9) years of seniority without a serious disciplinary offense.

By the Company.  The Company argued that the Grievant violated a clear directive by Harris not to return to work pending a meeting with his shop steward, the Grievant understood the order, but, nonetheless, violated it, and that such insubordination constitutes good cause to discharge him.

DISCUSSION

At the arbitration hearing, the Union raised two additional claims:  (1) the Company breached the Agreement by not following the procedures under the Contract that were prerequisites to termination of the Grievant; and (2) the Company terminated Grievant, not for working while under suspension, but because he had filed a worker’s compensation claim.  Because the Union failed to raise such claims at earlier stages of the grievance procedure and in the Grievance, it is precluded from raising them before the Arbitrator.  For this reason, the issues in this case are limited to those listed above under “ISSUES”.

Insubordination is universally recognized as a disciplinary offense, whether or not stated explicitly in the collective bargaining agreement or work rules.  Moreover, it is viewed as a serious offense, for which the employer may, under proper circumstances, discharge the offending employee without utilizing progressive discipline.

As a general rule, if an employee questions the validity of an order by his manager or supervisor, he must obey the order and then file a grievance.  Otherwise, he commits insubordination.  Such an order, however, must be clear and direct.  Discipline, especially serious discipline such as discharge, should not be imposed on an employee unless the order was clear enough that he knew or should have known its meaning.

The Arbitrator finds that Grievant clearly understood that Harris had given him a direct order not to perform any work for the Company pending a meeting attended by Moses.  The Arbitrator cannot credit the Grievant’s testimony that Harris only told him he was “suspended” and that he did not understand that “suspended” meant he was prohibited from working.  That testimony is contradicted directly by the sworn statement in his affidavit to the NLRB that Harris told him he was not to work pending a meeting with Moses present.

Although the Grievant acted contrary to the clear and direct order of the Area General Manager, he contends he did not commit insubordination, because his Shop Steward, Moses, told him that Harris’ order was improper and he should ignore it and report to work.  However, the Arbitrator credits the testimony of Moses that he did not tell the Grievant to punch in contrary to Harris’ directive.  While Moses may have stated he believed the suspension was improper, the Arbitrator finds he did not tell Grievant to punch in and work in contravention of Harris’ order.

Moreover, reliance upon the advice of a union representative is not a legitimate excuse for disobeying a clear and direct order of a manager or supervisor.  Again, the employee must comply with the order and, if the union representative disagrees with its validity, the union may file a grievance.

By deciding to disobey the clear and direct order of Harris, rather than complying with it and then filing a grievance, the Grievant committed insubordination.  Grievant’s insubordination was a serious offense.

The remaining issue is whether, under all the facts and circumstances, the Grievant’s insubordination constituted just cause for his discharge.  Although the Contract does not contain a provision that expressly restricts the Company’s discretion to discharge, the parties stipulated at the hearing that the Company may only discharge an employee for just cause.

Discharge is the capital punishment of the workplace.  It is generally warranted only for the most severe offenses, when the employee has been disciplined for the same or similar offenses in the past or when no lesser punishment adequately would deter such conduct in the future.

The Grievant was a long-term employee of the Company with some nine (9) years of seniority.  His record contains no evidence of similar offenses, and the Company did not contest his testimony that he has always been a dependable, hard-working skycap.  Since his discharge, the Grievant has lost, including tips, between $28,000 and $38,000 in earnings, plus other benefits under the Contract.  As a result, he has lost his automobile and his apartment or home.

The Arbitrator concludes that the substantial losses the Grievant has suffered to date are sufficient to deter him from engaging in the same or similar conduct in the future.  The Arbitrator also concludes that mitigating circumstances exist in that his insubordination was the first serious offense during his nine (9) years of employment with the Company and, although not an excuse, he probably was influenced by the statement of Moses that Harris’ order was improper and that he would “straighten the matter out” (i.e., have the suspension revoked) the next day and of Faison that he would “tear up” the Employee Warning Record.

For these reasons, the Arbitrator finds the Company has not proven by clear and convincing evidence that this isolated instance of insubordination by a long-term employee with an otherwise good record constitutes just cause for discharge as opposed to other severe discipline, such as a lengthy suspension without pay and a final warning.  Therefore, the Arbitrator concludes the Grievant should be reinstated to the position of skycap without loss of seniority, but without any reimbursement of lost earnings and benefits.

The Grievant should understand that, because the Arbitrator has found he committed serious insubordination, any future offense of the same or similar nature will constitute just cause to his immediate discharge.

AWARD

            The grievance is GRANTED.  The Company shall immediately reinstate the Grievant to his former position as skycap without loss of seniority, but it shall not be required to reimburse him for his loss of earnings and benefits between the date of his discharge and the date of such reinstatement

            ENTERED THIS 3rd day of December, 2002.

                                                           
LYNN E. WAGNER, ESQ.
Arbitrator


 

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