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Title: Maui Mayco Pump Service and Operating Engineers Local Union No 3
Date: 2004
Arbitrator: 
Michael Nauyokas
Citation: 2004 NAC 154

 

BEFORE ARBITRATOR MICHAEL F. NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between 

OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO,

                                    Union,

            and

MAUI MAYCO PUMP SERVICE, INC.

 

                                    Employer.

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  Grievance of CHARLES CRISP

                       

  Arbitration Hearing:  
 
Date:     April 15, 2004
 
Time:     9:00 a.m.

                                                                              

ARBITRATION DECISION AND AWARD

                                                           

                                                                                    Michael F. Nauyokas
                                                                                    Attorney, Mediator & Arbitrator
                                                                                    733 Bishop Street, Suite 2300
                                                                                    Honolulu, Hawaii 96813
                                                                                    Telephone: (808) 538-0553
                                                                                    Facsimile:   (808) 531-3860         
                                                                                 

ARBITRATION DECISION AND AWARD

            This matter came to arbitration on April 15, 2004.  The OPERATING ENGINEERS LOCAL UNION NO. 3, AFL-CIO (“Union”) was represented by Ashley K. Ikeda, Esq., and MAUI MAYCO PUMP SERVICE, INC. (“Employer”) was represented by James W. Geiger, Esq.  The Arbitrator made a full disclosure of all potential bases for potential bias, and any such disclosures were specifically waived by the parties to the arbitration.    The parties were fully and fairly represented at the hearing.  Both advocates did an excellent job of bringing out the best evidence and arguments for their respective clients.

STIPULATIONS AND ISSUES

            The parties stipulated to the following:

A)        The Union would present its case first.
B)        The Employer discharged Grievant, Charles Crisp (“Grievant”).
C)        A one-page written decision would be issued by the Arbitrator within a couple of days following the conclusion of the arbitration, without the submission of briefs by the parties.
D)        The Employer carries the burden of proof.
E)        Joint agreement of all exhibits offered at the arbitration hearing.

            Additionally, the parties stipulated to procedural and substantive arbitrability of the controversy and to the fact that the arbitration was properly set following the grievance procedure outlined in the Collective Bargaining Agreements (“CBA”) between the Employer and the Union, effective March 1, 2001 through and including August 31, 2002 (1997-2002 Agreement).   Pursuant to the Stipulation, the terms of the CBA govern this subject.  The arbitration was conducted pursuant to Section 14 of the CBA (“Settlement of Disputes”). 

            Pursuant to the stipulation of the parties, the issues presented to the Arbitrator are:

1.         Did the Employer have just and proper cause to discharge Grievant?
2.         Whether the Employer went through progressive discipline before discharging Grievant?
3.         If not, what is the appropriate remedy?

FACTUAL BACKGROUND

            The Grievant was discharged for insubordination and poor job performance.

UNION’S POSITION

            It is the Union’s position that the Employer has failed to meet the burden of proof required to sustain a termination of the Grievant for just cause, noting that: The Employer did not use progressive discipline, issued no written warnings and Grievant was given no opportunity to correct his behavior. Employer failed to comply with the CBA by not having just cause to discharge Grievant..

EMPLOYER’S POSITION

            The Employer’s position is that it had just and proper cause to terminate the Grievant in accordance with Section 7 of the CBA, arguing that Grievant was given verbal notice on numerous occasions about problems with his performance.

ESTABLISHING JUST AND PROPER CAUSE

            In this matter, pursuant to the CBA and the body of decisions governing the interpretation of just cause, the Employer must show that just and proper cause existed for the Grievant’s termination by the Employer.  “Just Cause”, as defined by Arbitrators Hill, Sinicropi, and Evenson is as follows:

                        Just Cause.  The standard by which it is determined that the employer has sufficient reason to remove an individual from employment.  Basically synonymous with “reasonable,”  “good,” or “proper cause.”  Perhaps the most often-quoted statement of just cause criteria used by arbitrators is in the form of a series of questions provided by Arbitrator Carroll Daugherty in Enterprise Wire Co., 46 LA 359, 363-64 (1966) and Grief Brothers Cooperage Corp., 42 LA 555, 558 (1964).

Marvin F. Hill, Jr., Anthony V. Sinicropi, Amy L. Evenson, Winning Arbitration Advocacy (1997).

            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 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 discipline 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, 362-65 (1966) (C. Daugherty, Arb.); Koven and Smith, Just Cause The Seven Tests (2d ed. 1992); 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 and Safeway (10/30/98) (Nauyokas, Arb.); IAM and Aloha Airlines (8/23/99) (Nauyokas, Arb.); Sheraton Waikiki Hotel, 114 Lab. Arb. (BNA) 1595, 1598-99 (2000) (Nauyokas, Arb.); SHOPO and City & County of Honolulu (9/20/00) (Nauyokas, Arb.); UPW and Hawaii Health Systems Corp. (2/24/01) (Nauyokas, Arb.); HERE, Local 5 and Hyatt Regency Waikiki (11/13/01) (Nauyokas, Arb.); see also Ogden, 111 Lab. Arb. (BNA) 251, 253 (8/31/99) (Nauyokas, Arb).

ARBITRATOR’S ANALYSIS

            1.         Did the Employer have just and proper cause to discharge Grievant? 

                        Answer:   No, but the Employer did have just cause to suspend Grievant.

            2.         Whether the Employer went through progressive discipline before discharging Grievant? 

                        Answer:   No.

            3.         If not, what is the appropriate remedy?  Reinstatement without backpay.

DECISION & AWARD

            There was not just cause for the Grievant’s discharge.  Progressive discipline was not used.  There was, however, just cause to suspend Grievant.  Thus, the remedy is that the Grievant shall be reinstated with seniority, but without backpay.  Time off is to be considered a disciplinary suspension.

            DATED:  Honolulu, Hawaii, April 16, 2004.

                                                                        ____________________________________
                                                                        MICHAEL F. NAUYOKAS
                                                                        733 Bishop Street, Suite 2300
                                                                        Honolulu, Hawaii 96813
                                                                        Telephone: (808) 538-0553
                                                                        Facsimile:   (808) 531-3860                                                                                 

                                                                        Arbitrator

STATE OF HAWAII                                   )
                                                                     )           SS
CITY AND COUNTY OF HONOLULU    )

           

            On this ______day of _______, 2004, 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 Hawaii
My commission expires: _______________

  

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