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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
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In the Matter of the Arbitration Between OPERATING
ENGINEERS LOCAL UNION NO. 3, AFL-CIO,
and MAUI MAYCO PUMP
SERVICE, INC.
Employer. _______________________________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) |
Grievance of CHARLES CRISP
Arbitration Hearing:
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ARBITRATION
DECISION AND AWARD
Michael F. Nauyokas
ARBITRATION DECISION AND AWARD
This matter came to arbitration on
STIPULATIONS AND ISSUES
The parties stipulated to the following:
A)
The
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
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
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:
____________________________________
Arbitrator
STATE OF
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.
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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