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Title: Aloha Islandair and Hawaii Teamsters and Allied Workers, Local 996    
Date: 2006
Arbitrator: 
Michael Nauyokas
Citation: 2006 NAC 140

 

BEFORE ARBITRATOR MICHAEL F. NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between 

HAWAII TEAMSTERS AND ALLIED WORKERS, LOCAL 996,

                                    Union,

            and

ALOHA ISLANDAIR, INC. 

                                    Employer.

_______________________________________________________________  

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  Grievance Re:           Bruce Campbell
                                  (Termination)

                       

  Arbitration Hearing Dates:  
  December 6, 2005
  December 7, 2005
  January 27, 2006

                                                                              

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         
                                                                                    Email: michaelnauyokas@hawaii.rr.com
                                                                                    http://www.michaelnauyokas.com
                                                                                    http://www.acctm.org/mnauyokas/

IN THE MATTER OF THE ARBITRATION BETWEEN
HAWAII TEAMSTERS AND ALLIED WORKERS, LOCAL 996
AND
ALOHA ISLANDAIR, INC.
(GRIEVANCE OF RODNEY MAU)

INTRODUCTION

            This matter came to arbitration before the System Board of Adjustment which consisted of the Arbitrator, Michael Nauyokas, Richard Hee for the Employer, and Michael A. Chambrella for the Union.  The hearing was held on October 12, 2004, pursuant to the Collective Bargaining Agreement (CBA).  The parties stipulated to both substantive and procedural arbitrability.  The parties stipulated to the admission of certain evidence, and the Arbitrator made a full disclosure of his relationships with other attorneys and firms and there was no objection.

            Both parties were fully and fairly represented.  The Union, HAWAII TEAMSTERS AND ALLIED WORKERS, LOCAL 996 (“Union”), and the Grievant, MR. RODNEY MAU (“Grievant”) were represented by Sean Kim, Esq.  Also present at the hearing for the Union was the secretary/treasurer of the Union, Mr. Ronan Kozuma.  The Employer, ALOHA ISLANDAIR, INC. (“Island Air” or “Employer”) was represented by Richard Rand, Esq.  Also present on behalf of the Employer were Michael Wing, Vice President-Administration (“Mr. Wing”), and Patrick Napoletano, Vice President - Inspection & Quality Assurance (“Mr. Napoletano”). 

            The parties’ attorneys stipulated that the Employer would present its case first and had the burden of proof.  The parties’ attorneys stipulated Union's Exhibits 1 - 4 into evidence.  The parties’ attorneys also stipulated into evidence Joint Exhibits 1 - 6.

            The parties stipulated through their attorneys to substantive and procedural arbitrability of the grievance.  The parties stipulated through their attorneys that the CBA was in effect at all relevant times pertinent to this grievance.

            The parties stipulated to two issues:

            1.         Was Rodney Mau terminated for just cause; and,

            2.         if not, what should the remedy be.

BACKGROUND

            Employer, Island Air, operates a commercial interisland passenger air service based in Honolulu, Hawai'i.  Grievant, Rodney Mau, had been employed with Aloha Island Air for seven years.  He held the position of an inspector and maintenance planner.  As an inspector, he was charged with ensuring that the mechanics performed their work in accordance with the applicable technical manuals and FAA regulations.  Grievant’s position required that he sign off on the air worthiness release on the Employer’s aircraft and audit the Employer’s aircraft mechanics’ paperwork.   Prior to his termination and this grievance, Grievant had never been subjected to any form of discipline by the Employer.

            On April 2, 2004, Grievant was planning on traveling from Honolulu to the neighboring island of Lanai for a family hunting trip.  When he originally was making travel arrangements in February, Grievant had been told that the flight reservations did not look good for standby travel.   To ensure that he would be able to make the trip, he made a reservation in February for his trip to Lanai and purchased an employee coupon for this travel.  At the time Grievant made the reservation for Flight 1625, he intended to fly as a paying passenger.  He intended to do so using an employee coupon as a ticketed passenger.  The coupon, issued by the Employer, and to be used by Grievant is essentially a ticket but available only to employees at a reduced rate.  Having an employee coupon allows the employee to fly as a "revenue passenger" which allows employees to make a confirmed reservation and board as a revenue passenger.  Otherwise, employees who wish to fly in their capacity as employees do so on a standby basis and are subject to being “bumped” if the flight is full.

            The record indicates that on the morning of April 2, 2004, Grievant checked in for the planned flight to Lanai.  He had hunting equipment and his testimony established that he arrived early because checking in with this equipment takes more time.  At the counter, Grievant presented his paid-travel coupon and asked the counter agent (CSA) to check him in.  At the time, there were two CSAs involved in processing passengers at the counter:  Paul Villafuerte and Roxanne Quijano.  There is some confusion in the record as to exactly who said what, but one of the CSAs apparently asked Grievant why he wasn’t traveling on a standby basis.  He told the CSA that he had made reservations because he had been informed that the flights were filling up.  The CSA then asked the Grievant if he wanted to fly standby.  Grievant inquired of the CSA whether this was permitted.  The CSA spoke with another CSA and both CSAs advised that under the circumstances, standby travel was permitted. 

            At the time, neither CSA told Grievant that they were unsure of the proper policy regarding employees with reservations flying standby.  Grievant flew to Lanai in the cockpit with the flight crew as an Additional Crewmember (ACM) in a seat that could not be used by a revenue passenger.   Due to Grievant’s position with the Employer, he was qualified to occupy the seat due to his expertise and duties, and at the hearing there was no showing that his use of the seat was prohibited by a specific policy.  When Grievant boarded the aircraft, he recognized the flight crew and asked if he could fly in the jump seat, even though there were other open seats.   The pilot in command permitted Grievant to fly as an ACM.  The properly executed Additional Flight Deck Crewmember Authorization (Form WP-04) (Employer’s Exhibit “8") was presented at the hearing.  It is signed by both the Grievant and the pilot in command.  Significantly, the back of the form reads as follows:

“RESPONSIBILITY AND AUTHORITY OF THE PILOT IN COMMAND: The Captain has the authority and the responsiblity to ensure that all ACM’s have the appropriate identification and documentation.  The jump-seat privilege shall be solely at the discretion of the Captain.”

(Employer’s Exhibit “8"), [Emphasis added].

            On his return trip from Lanai, Grievant traveled under his reservation as a revenue passenger.  Employer learned of this incident at a staff meeting when Mr. Napoletano was questioned by a consultant, as to whether employees were allowed to make reservations as revenue passengers and then cancel the reservation at the time of boarding.  A determination was made by Mr. Napoletano at that time that this was a violation of company policies and the Employer then launched an investigation.   Employer reviewed a copy of the GANTT sheet for that day (Employer’s Exhibit “1”) and also documents from the reservation system showing the history of Grievant's reservation.  Mr. Napoletano requested that the Grievant contact him and Grievant responded with a memo (Employer’s Exhibit “7”).  The Employer also obtained statements from the two CSAs involved (Employer’s Exhibits “5” and “6”). 

            Employer held a hearing to determine whether Grievant should be disciplined.   At the hearing, Grievant was present and represented by the Union.  After the conclusion of the hearing, a decision was made to hold the Grievant out of service to allow Mr. Napoletano to review the information, policies and procedures and make a decision.  By letter dated May 5, 2004, Grievant was notified that he was being terminated for violation of Company Rules of Conduct 29, Misuse of Pass Privileges.  This grievance before the Board arises from that termination.  In the interim, Grievant has applied for and received unemployment benefits, and now works for the Union.

SUMMARY OF THE UNION’S POSITION

            The Union takes the position that Grievant did not violate any written policy.  This position is based upon an argument that Mr. Napoletano admitted that Grievant did not violate the Company Handbook because at the time that he made his reservation, he had a paid-fare ticket.

            Second, the Union contends that Grievant intended to fly using his paid-fare ticket.  He approached the ticket counter with the express intention of using his paid-fare ticket and did not cancel his reservation until he was asked by the CSA why he was not flying standby; that Grievant then asked the CSA if this was permitted, and that two CSAs told him that it was.  It wasn’t until he was told that it was permitted that he cancelled his reservation and flew standby.

            Third, the Union argues, Grievant did not cost the Employer any lost revenue since the flight was not full, and he did not occupy a passenger seat.

            The Union’s position is that the Employer failed to satisfy the seven tests of just cause required of the Employer under Enterprise Wire Co., 46 L.A. 359, 362-365 (Daugherty 1966), because the undisputed fact is that there were at least three employees, Mr. Villafuerte, Ms. Quijano, and Grievant, who were not aware of the Employer's intended but unwritten policy, and therefore the Board cannot make a determination that Grievant was forewarned of (a) the precise Company policy and (b) the consequences for a breach of the policy; that the Employer failed to produce and, much less substantiate, Grievant's guilt because he had a paid-fare coupon when he made his reservation and therefore was not in violation of the actual letter of the written policy; and, further the Union contends that the Employer admits that its written policy is vague and ambiguous as to what is acceptable and unacceptable conduct; that the written rule was not applied in a fair and non-discriminatory manner because the two CSAs who actually caused the Grievant to cancel his reservation were given 5-day suspensions for their conduct, and the Grievant who had no intention of breaking any rule, was terminated for following the recommendations of the CSAs.  

            The Union concludes that the termination of Grievant, as opposed to the suspension given the CSAs who actually induced him to cancel his reservation, is clear and undisputed disparate treatment and violates the requirements of “just cause” discipline.  The Union therefore contends that Grievant should be reinstated with full back pay and no loss in benefits or seniority.

SUMMARY OF THE EMPLOYER’S POSITION

            The Employer takes the following positions:

            First, that Grievant was aware of the prohibition in the travel benefits policy regarding making reservations and then flying standby because it is the employee's responsibility to know the Company's rules, including the travel benefits policy for free and reduced rate transportation, and that in the industry making a reservation and then cancelling the reservation to fly standby is a “Cardinal Sin.”

            Second, the Employer argues that Grievant's actions rendered him culpable for his violation of the rules and policies of the Employer and that he was terminated for just cause because Island Air gave the employees forewarning of the possible disciplinary consequences of their conduct by the travel benefits policy and the House Rules, particularly Rule 29, and the provisions of the Employee Handbook. 

            The Employer also takes the position that it is clear that House Rule 29 of the Rules of  Conduct is related to the orderly, efficient, and safe operation of the Company's business.   Therefore, prohibiting the misuse of pass or reduced fare travel benefits by an employee clearly is essential to Employer's operations.   Island Air must have rules regulating the use of travel benefits by its employees both when they fly on Island Air or on other carriers.  At the time of this incident, Island Air was owned by Aloha Airlines, and Grievant and other employees had reciprocal benefits on Aloha Airlines, and this sort of violation could endanger that relationship.

             Further, the Employer argues that it made an effort to discover whether Grievant violated or disobeyed a rule before administering discipline; that Mr. Napoletano's investigation was fair and objective and quite thorough; that Grievant submitted a comprehensive statement, and statements were also obtained from the two CSAs; that Mr. Napoletano took the effort to obtain the reservation system records which showed the history of Grievant's reservation and the fact that it was cancelled on the day of the flight; and that Grievant's statement indicated that his reservation was cancelled because the CSA told him that there was room on the flight to fly standby.  Therefore, Employer argues, there was no further information that Mr. Napoletano would have needed to conduct the investigative hearing.  The Employer argues that at the hearing the Union and the Grievant had the opportunity to provide whatever additional information they thought was relevant for the decision maker's consideration. Therefore, Employer argues that it has satisfied the procedural elements of just cause in the termination of the Grievant.

            The Employer also takes the position that there was no testimony that there had been similar incidents at Island Air or that Grievant had received disparate discipline; that the Union’s contention that the CSAs involved were not terminated and therefore Grievant cannot be terminated, fails, because the CSAs did not benefit or profit from this incident and the Grievant did.  Further, the Employer argues that the CSAs were not charged with violation of House Rule 29 but instead violations of House Rules 8 and 25 and were found guilty of "unwillingly assisted in blocking seats and potential revenue to the Company."  The Employer posits that the decision in the CSAs’ discipline showed that the CSAs had not totally familiarized themselves with the policies and were apologetic and that the Grievant refused to accept his responsibility for his part in the incident, that the testimony reveals that Grievant was looking for an opportunity to cancel his reservation and fly standby before he checked in, and therefore should be subjected to different and the more severe discipline of termination.

            Finally, the Employer argues the Grievant must be held responsible for his actions and since the Arbitrator reviews and not redetermines discipline, he should not substitute his own judgment for that of the Company; that there are no mitigating factors present; and, that the termination must be upheld.

ARBITRATOR’S ANALYSIS

Issue 1:            Was Rodney Mau terminated for just cause?

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 discipline 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 the Grievant’s 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).

This decision will deal with each of these tests in turn:

            1.         Was the Grievant forewarned of the consequences of his actions?

            Grievant did not dispute receiving copies of  Island Air’s Employee Handbook, or the Travel Benefits Policies promulgated by the Employer.  The question in the mind of the Arbitrator that the Board must consider is whether these rules clearly communicated the consequences of the conduct for which the Grievant was terminated, particularly in a situation where not only was the Grievant unsure of both the purported rule and the consequences, but the CSAs in charge of the boarding process and processing Grievant on board the flight, affirmatively made inquiry and took steps to move him from a revenue to a non-revenue status.  If indeed the conduct complained of was a “cardinal sin” as is forcefully argued by the Employer, it appears that the gravity of the conduct clearly had not been communicated to any of the Union employees disciplined for the alleged infraction.  Also, the Union raises a valid point in its interpretation of the Free and Reduced Rate Transportation Policies of the Employer, and whether there was, in fact, a prima facie violation of the rules.  5(A)(1) states in pertinent part:

“When calling an airline reservations office, be sure to identify yourself as an Island Air employee with a space available or space positive pass.  Do not make a reservation when you are holding a space available pass.”

                        (Joint Exhibit “5”) [Emphasis added].

            Part 6 Travel Definitions, paragraph Y, indicates as follows:

“SPACE AVAILABLE: Reservations are not permitted.  You will be boarded only if there are open seats available on the flight.”             

            Employer’s Exhibit “10” makes the following statement regarding Standby Pleasure Travel:

“NON-REVENUE STANDBY PLEASURE TRAVEL (REDUCED RATE-SERVICE CHARGE OR FREE OF CHARGE TICKETS) ARE ISSUED ON A -SPACE AVAILABLE BASIS- WHICH MEANS - NO CONFIRMED RESERVATIONS. TRAVEL CAN BE IN EITHER FIRST OR COACH CLASS SUBJECT TO THE COLLECTION OF THE APPLICABLE SERVICE CHARGE FOR ELIGIBLE PASS CODES.”

            There was no testimony at the hearing indicating that at the time the reservation was made by the Grievant that he was holding a space available pass.  The testimony and exhibits, in fact, indicate that Grievant had purchased, and intended to use, a revenue ticket for his travel under the reservation that he made.  A review of the travel policy as written does not contain a specific written policy indicating that if a reservation for a paid-for revenue ticket were made it was a violation of the Employer’s policy to change to a space-available, non-revenue passenger.  A plain reading of the rule indicates that an employee could not make a reservation if their intention was to fly space-available and had a space-available pass.   The Employer is correct in its argument that it is the employee’s responsibility to know the Employer’s rules; however, it is also incumbent on the Employer to clearly communicate both the rule and the penalty for transgression in order for it to establish just and proper cause for discipline.

            The fact that the two CSAs on duty were not clear on the policy and suggested that Grievant convert to a non-revenue status indicates that neither the Grievant nor the CSAs were aware of the consequences of this particular action; the fact that the Employer prohibited it; or, that if seats on the flight were open it was improper to convert an employee revenue reservation passenger to a space- available passenger. 

            Quite simply, the Employer’s rule says if you have a space-available pass, you can’t make a reservation.  That’s all that the rule says.  It does not lay down a bright line saying once an employee becomes a revenue passenger with a reservation an employee may not convert to a space-available, non-revenue passenger.  The policy on that point is ambiguous at best, and it is a fundamental rule of interpretation that ambiguity is construed against the drafter not against a non-drafting party.

            The Arbitrator therefore finds that the Grievant was not forewarned of the consequences of his actions.

2.         Were the Employer's rules reasonably related to business efficiency and the performance the Employer might expect from an employee?

            There is a legitimate need for the Employer’s rules regarding the proper use of both revenue and non-revenue travel by its employees.  Given the current economic situation faced by many airlines, stop loss rules are a necessity.  Therefore, the Arbitrator finds that the Employer’s rules were reasonably related to the Employer’s business efficiency and the performance that the Employer could reasonably expect from its employees.

            3.         Was an effort made before discipline to determine whether the Grievant was guilty as charged?

            A review of the record in this matter does show that the Employer, once alerted to the actions of its employees, first did an analysis of the entries into the system, and interviews of the employees involved to determine what had happened prior to the imposition of discipline.  Grievant was given the opportunity to respond.  

            For purposes of the Arbitrator’s analysis there does not seem to be much dispute as to the facts at issue, only as to the interpretation of those facts in the light of the ambiguity of the rules, and the charge itself.  The record is clear that Grievant did not make a reservation while holding a space-available travel pass.  Grievant was terminated for a violation of Rule 29 of the Rules of Conduct for employees, specifically “Misuse of pass or reduced fare travel benefits by an employee or the employee’s family members or eligible dependents.” 

            The Arbitrator finds that the Employer made a reasonable effort to determine whether the Grievant was guilty as charged prior to the imposition of discipline regardless of whether the panel agrees with the interpretation of the rules relied upon by the Employer; whether the Grievant clearly understood the rules and the consequences of his actions sufficient to create just cause; and whether Grievant’s conduct constituted a violation of the rule as posited by the Employer.

            4.         Was the investigation conducted fairly and objectively?

            In reviewing the record of the hearing, the exhibits and the submissions of the parties after the hearing, the Arbitrator determines that the investigation was conducted fairly and objectively.

            5.         Was substantial evidence of the Grievant’s guilt obtained?

             The lack of dispute as to the underlying facts leads the Arbitrator to the determination that substantial evidence of the conduct described in the Background herein took place; however, as set forth above, the question of whether the Grievant knowingly took part in an intentional violation of the Employer’s policies prior to discipline has not been proven.  

            The Arbitrator finds that at the time the Grievant made the reservation, he was a paying revenue passenger with an intention to remain a paying revenue passenger until he was advised by the CSAs that it was possible to fly space-available.   This is further substantiated by the record, which indicates on his return flight, he did in fact fly as a revenue passenger with a reservation.  These facts demonstrate a lack of intent by the Grievant to “game” the system.  Indeed, had he wished to cancel his reservation at the last minute and fly space available on his return from Lanai, that conduct would have supported the Employer’s contention that this was an intentional fraud.  The record does not indicate that there was any collusion between the Grievant and the CSAs in an attempt to defraud the Employer; nor does the record indicate that at the time of the reservation the Grievant was holding a space-available pass for the flight as prohibited by the Employer’s rule.  The use of the term “guilt” in this context implies the scienter requirement encountered in the analysis of criminal cases, particularly in matters involving fraud.  Grievant was told by the CSAs that it was permissible for him to convert to a non-revenue passenger.   He did not make the suggestion to the CSAs, and indeed the record indicates that it was at least the opinion of one of the CSAs that the incident was not the Grievant’s fault.  The Employer argues forcefully that the conduct of the Grievant in making the reservation, then checking on the fullness of the flight prior to checking in, indicates guilty knowledge on his part.  In light of the ambiguity of the policy; the fact that Grievant actually inquired as to whether it was permissible to undertake the act and was told that it was permissible by the CSAs; and, the Employer’s admission that its flights were sometimes overbooked by as much as 10 percent, indicates that substantial evidence of a knowing violation of the Employer’s rules is lacking in this instance, as Grievant could just as likely be making sure that his flight wasn’t overbooked.

            6.  Was the rule applied fairly and without discrimination?

            The Employer forcefully argues that there was no disparate treatment here as to the discipline imposed on Grievant as opposed to the CSAs who each received a 5-day suspension for their part in the change of the Grievant’s status.  This position is based upon the argument that they were charged with violating a different rule; that is to say that the CSAs were not charged with violation of House Rule 29 but instead violations of House Rules 8 and 25.  Both CSAs were found to have "unwillingly assisted in blocking seats and potential revenue to the Company."  Acknowledging that the discipline imposed on the CSAs is not currently at issue, it must be noted that:  first, the CSAs were in fact willing participants and initiators of the change in status of the Grievant; and second, that there were no seats blocked to paying passengers by the alleged scheme which would have caused the company to lose revenue.  Essentially the evidence shows that the CSAs were proactively trying to show the “Aloha spirit” to a fellow employee, not to intentionally assist the Grievant in a scheme to defraud the Employer.

            A commonsense analysis of this situation indicates that this is a disparate disciplinary outcome, regardless of how the Employer chose to characterize the rules violated by the CSAs.   This was all the same res geste, different outcomes in discipline lead the Arbitrator to the conclusion that there was, in fact, disparate treatment.

            7.         Was the degree of discipline reasonably related to the seriousness of the employee’s offense and the employee’s past record?

            If nothing else, the conduct of the CSAs was more responsible for the Grievant’s change in flight status than Grievant’s reliance on their advice.  In light of the Grievant’s 7-year employment history without any prior disciplinary infraction, the degree of discipline for the seriousness of the offense, and, the employee’s past record, termination was not a reasonable form of discipline. 

            The Arbitrator is mindful of the Employer’s argument that the Arbitrator reviews and not redetermines discipline, and should not substitute his own judgment for that of the Employer; however, in this particular instance, the record indicates that there are clearly mitigating factors present, and that the Arbitrator cannot therefore uphold the Grievant’s termination for this unwitting transgression.

            Therefore the Arbitrator finds that there was not “just cause” for the Grievant’s termination by the Employer. 

DECISION AND AWARD

            The Grievance is sustained.  The Arbitrator finds that the termination of Grievant by Employer was not for just cause.  Given the fact that there was, in fact, a technical violation of the Employer’s policy, the Grievant received unemployment benefits and then has remained employed during the intervening period of time, the appropriate remedy is:

            1.         The Grievant will be reinstated to his prior position with the Employer;

            2.         The Grievant will be awarded back pay plus all the benefits he would have been entitled to less mitigation (unemployment insurance benefits and wages) through the Employer’s response to the initial draft award (January 20, 2005);

            3.         The Grievant’s personnel files will have any reference to the termination removed and he shall be issued a letter of suspension in the same form as the letters issued to the CSAs disciplined for the incident;

            4.         The Grievant’s dates of employment will reflect a five-day suspension for the time away from work;

            5.         Employer’s obligation to make any contribution to Grievant’s retirement shall be adjusted during the interim from the date of termination to the date of this decision, and Employer’s obligation to make contributions will not become manifest until the date of this decision.

           

                        DATED: Honolulu, Hawaii,                                     , 2005.                                   

                                                                                                                                   
                                                                        MICHAEL F. NAUYOKAS
                                                                        Arbitrator

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

           

            On this _____th day of __________ 2005, 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: ______________                                                                    

                                                                                                                                   
                                                                        MICHAEL A. CHAMBRELLA
                                                                        Union Representative

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

           

            On this _____th day of __________ 2005, before me personally appeared Michael A. Chambrella, 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: ______________         

Dissenting:


                                                           
RICHARD HEE
Company Representative

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

            On this _____th day of __________ 2005, before me personally appeared Richard Hee, 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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