|
|
|
|
|
|
|
|
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
and ALOHA ISLANDAIR, INC.
Employer. _______________________________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) |
Grievance Re:
Bruce Campbell
Arbitration Hearing Dates:
|
ARBITRATION
DECISION AND AWARD
Michael F. Nauyokas
IN THE MATTER OF THE ARBITRATION
BETWEEN
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
Both parties were fully and fairly represented.
The
The parties’ attorneys stipulated that the Employer would
present its case first and had the burden of proof.
The parties’ attorneys stipulated
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
On
The record indicates that on the morning of
At the time, neither CSA told Grievant that they were unsure
of the proper policy regarding employees with reservations flying
standby. Grievant flew
to
“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
Employer held a hearing to determine whether Grievant should
be disciplined.
At the hearing, Grievant was present and represented by the
SUMMARY OF THE
The
Second, the
Third, the
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
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
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
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
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
“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
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:
STATE OF
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.
___________________________________
STATE OF
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.
Dissenting:
STATE OF
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.
___________________________________
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
