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Title: The Canyons Inc. and The Canyons Professional Ski Patrol Association
Date: April 30, 2007
Arbitrator: David Gaba
Citation: 2007 NAC 103

Oregon Public Employment Relations Board

 

In the Matter of Derrick Spice

Between

The Canyons Inc.,     
Employer,
                                                

And                                                                               

The Canyons Professional Ski Patrol Association,    
Union,

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ARBITRATOR’S

DECISION AND AWARD 

INTRODUCTION

This arbitration arises pursuant to a collective bargaining agreement (hereinafter the Agreement) between The Canyons Inc. (hereinafter the Employer), and The Canyons Professional Ski Patrol Association (hereinafter the Union), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties.

            A hearing was held before Arbitrator Gaba on March 20, 2007 at Park City, Utah.  The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute.  No transcript of the proceedings was provided.  The parties filed their post-hearing briefs on April 20, 2007.

APPEARANCES

On behalf of the Union:

Communications Workers of America
Larry Ellingson
8085 East Prentice Avenue
Greenwood Village, CO  80111-2745

On behalf of the Employer:

Barbara A. Thompson
MOUNTAIN STATES EMPLOYERS COUNCIL, INC.
P.O. Box 539
Denver, CO  80201-0539

ISSUE

The parties stipulated to the following issue for grievance: 

         Whether the Company had just cause under the contract to terminate Mr. Spice.  If not, what is the appropriate remedy?

RELEVANT CONTRACT PROVISIONS

The following contractual provisions are relevant to this arbitration proceeding:

ARTICLE 10
DISCIPLINE

10.1     The Company maintains the right to discipline or discharge Patrollers for just cause. Disciplinary action may result in termination, disciplinary suspension, demotion, probation, written or verbal warning, at the sole discretion of the Company, depending upon the circumstances involved.  The Company encourages the application of progressive discipline, where appropriate, and for the purpose of correcting performance issues.  The following steps may be taken in order to correct a Patroller’s performance.  The Company reserves the right to select the level of discipline or to bypass any one or more of the methods of discipline listed below.

1)      Verbal warning;
2)      Written warning;
3)      Probation and/or suspension without pay; and
4)      Discharge.

The following are work rule infractions for which disciplinary action will be taken, up to and including discharge.  This list is not all-inclusive and is intended to give Patrollers notice and supervisors a basis for providing disciplinary action where warranted.  It is understood that there will be infractions which do not fall under those listed below and that these will be dealt with by the Company on a case by case basis, depending upon the circumstances involved.

1)      Unauthorized use or possession of Company property or the property of others.
2)      Falsification of employment application, Company records or time cards.
3)      Disclosure of confidential Company information to unauthorized persons or obtaining confidential information through improper methods.
4)      Violations of the drug-free workplace policy.
5)      Use of vulgar or abusive language.
6)      Insulting and/or disrespectful behavior toward guests or staff.
7)      Insubordination.
8)      Skiing/snowboarding in avalanche closures or on closed trails not in the course of normal Patroller duties.
9)      Reckless skiing/snowboarding.
10)  Fraudulent use or sale of complimentary passes or tickets. 
11)  Unloading from a lift at any point other than terminals.
12)  Possession of any weapon or unauthorized explosives on Company property.
13)  Improper or unsafe use of Company vehicles or equipment.
14)  Unauthorized lift line cutting.
15)  Sleeping on duty.
16)  Dangerous horseplay.
17)  Use of any apparatus, other than conventional ski equipment, without prior approval from the Ski Patrol Director.
18)  Misuse of staff discount program, including restaurant, retail shops or Perfect Turn benefits.
19)  Unsafe conduct, including the removal and/or tampering with safety devices.
20)  Skiing/snowboarding on days in which the staff member has reported as being ill.
21)  Violation of The Canyons’ equal employment opportunity or harassment policies.
22)  Violation of The Canyons’ safety or accident policies and procedures.
23)  Failure to observe the standards for professional appearance.
24)  Engaging in a strike, picketing, or slowdown in violation of the no strike clause.
25)  Excessive absenteeism and tardiness.

Failure on the part of the Company to enforce the provisions of this clause in certain instances shall not constitute a waiver of the Company’s rights to enforce the clause in other instances.

ARTICLE 11
GREIVANCE AND ARBITRATION

11.5     The arbitrator shall have no authority to alter in any way the terms and conditions of this Agreement, and shall confine his or her decision to a determination of the facts and interpretation and application of this Agreement.

11.6     The arbitrator’s decision will be final and binding on both parties. The expenses of the impartial arbitrator shall be shared equally by the parties.  

11.7     An arbitrator may hear only one grievance at a time unless the parties agree to an exception.

11.8     The arbitrator will issue his or her decision within thirty (30) calendar days after the close of the hearing, and if briefs are filed, within thirty (30) days of receipt of the briefs.

FACTS

Derrik Spice was employed by the Employer on a seasonal basis from November 1999 to December 24, 2006, as a ski patroller.  The job of ski patroller is, quite simply, to get injured persons off the mountain.  Job descriptions are published for the benefit of employees and the Union. There are escalating levels of skill and ability from a basic patroller to Levels I, II, III and IV.  Mr. Spice was a Level III patroller, considered to be an experienced level.  A new patroller  receives training in all the general skills of that function, including first aid; chair lift evacuation; managing and marking the hazards on the mountain; and handling and running a sled, which is the most common means by which a patroller gets an injured person off the mountain.  Every year a patroller comes back, they go through refresher training.  New patrollers are monitored on a weekly basis by their colleagues and supervisors who indicate that the new patroller is performing a variety of functions correctly by initialing a special training sheet.  Patrol management provides weekly and ongoing training to all patrollers through on-the-hill training.

GJ Stone, the snow safety supervisor (hereinafter GJ), designates topics for safety training, weekly subject matter training and ongoing training. Up until this past ski season, safety and training issues were reviewed at the morning meeting, which was attended by all patrollers.  This season (2006-2007), GJ started having on-the-hill meetings.

Prior to returning to work in the 2006-2007 season, Jake Hutchison (hereinafter Jake), the ski patrol director, had a discussion with Mr. Spice regarding his desire to work as a ski patroller.  Mr. Spice had missed the date by which he needed to respond to the return-to-work letter that Jake sent out every year.  When Mr. Spice asked to be waived in, Jake informed him that he would not tolerate Mr. Spice’s bad behavior, which he had observed the previous year, including disrespect for supervisors.  Mr. Spice stated that he understood and assured Jake that there would be no problems in the new season. 

The issue at hand involves Mr. Spice’s willingness to follow the direction of his supervisors in the performance of his job.  A basic component of a patroller’s work involves loading sleds onto a lift.  The sleds are located at the top of the mountain.  When a sled is brought down the hill, either with a person in it or as part of a training exercise, it needs to be loaded on the lift and taken back up to the top.  The Employer has a history of incidents involving the loading of sleds in a manner referred to as “horns out.”  “Horns out” means that the “horns,” or handles, of the sled are extended as it is placed on a sled loader and hung from the chair lift.  Mr. Tim Hagan, currently vice president of Mt Operations, who was the ski patrol director for the Employer from 1989 to 2004, as well as from 1989 until 1997 testified about that history.  Mr. Hagan indicated that in 1997, which was the first year the Employer owned the mountain, there was an accident on a high speed chair lift that involved the loading of a sled “horns out.”  Mr. Hagan was responsible for designing the training program in the years following that accident.  He determined that the “horns out” manner of sled loading should never be used. 

After the 1997 accident, patrollers were trained to load sleds using two protocols:  lap loading and loading the sled with its handles down and locked.  The next time this issue came to Hagan’s attention was in 2005.  A patroller loaded a sled “horns out” on a chair lift and, because it was not properly balanced, it dropped forward and the horns went into the snow, upsetting the chair and doing several thousand dollars worth of damage to the chair lift.  As a result of this accident, sled loading was specifically discussed in patrol safety and training meetings that year and patrollers were advised that they would not be loading sleds in that manner anymore.  Mr. Spice was present at those meetings, although he did not sign any of the attendance sheets.

The position of lead patroller was the subject of controversy in the few weeks prior to Mr. Spice’s termination.  There were approximately 63 patrollers working for the Employer.  Over the last few years, the Employer managed all those patrollers with three supervisors, including the ski patrol director.  Lead patrollers were used to help manage the other patrollers.  This changed in the 2006-2007 season when the Employer developed two zones and added two supervisors to each zone in order to allow the patrol director and his assistant to focus on higher-level functions.  The remaining supervisor, GJ, was assigned to training 100% of the time in order to strengthen the training program.  Patrollers who had acted as leads were red-circled at the $1.00 rate that they had received for being leads and were asked to devote themselves to the senior patrol work that was needed.

            There was a backlash to this proposed change of structure and to the decision on management’s part not to fill the lead positions.  Lead patrollers who had held those positions were upset and gave that feedback to management.  One of the most upset of these was Mr. Spice.  On or about December 15, 2006, Tim Hagan and Jake addressed the group and advised them that they had reevaluated the situation and were keeping the supervisors but would reinstate some of the leads in order to assist the supervisors.  There would continue to be changes in the number of zones and how patrollers would move around the two zones, but they intended to individually discuss this with each returning lead patroller.  In the meantime, union negotiations were just concluding and the contract was scheduled for a ratification vote on December 19th.  Due to a serious personal illness and the pending ratification of the contract, Jake put off discussing the changes with the lead patrollers until after the contract was ratified. 

On December 20th, Mr. Spice was assigned to the South Zone, which includes an area called Tombstone.  Matt Chaffin (hereinafter Matt) was the supervisor assigned to this area.  That morning, Matt was aware that GJ, the safety supervisor, was setting up evac training at one of the chair lifts at the end of the day.  Since Mr. Spice had experience with evacuation, Matt asked him if he would like to go over to the chair lift at Tombstone at the end of the day to help out with the training.  Mr. Spice looked at Matt and asked him, “Do you know how insulting that is?”  Matt told Mr. Spice that he didn’t mean to insult him and left it at that.

Mr. Spice went on to the morning meeting in the locker area that was being conducted by Lynn Offrett (hereinafter Lynn).  As Lynn was going over the schedule for the day, Mr. Spice interrupted her and demanded to know why he hadn’t been spoken to about the lead position.  He accused the Employer of failing to communicate - and that he thought the Employer was supposed to start having more communication.

Lynn did not want to interrupt the morning meeting to deal with Mr. Spice’s concerns so she asked Mr. Spice to see her after the meeting.  When Mr. Spice came to Lynn’s office afterward, he was angry.  Lynn told Mr. Spice that Jake was trying to see everyone, however, since she had him in her office, she would take the opportunity to explain the situation to him.  Mr. Spice stated that she and Jake looked like “fools” and asked that they apologize to the whole patrol.  Having gotten nowhere with the discussion, Lynn told Mr. Spice to go up the hill and she would talk to him later.

Mr. Spice reported to his zone on the south side of the mountain.  About an hour later, Matt, Mr. Spice’s supervisor, was in the patrol shack.  Matt observed Mr. Spice getting off the chair lift with a rookie patroller and a sled that was loaded improperly.  When the rookie entered the patrol shack, the first thing Matt did was inform the rookie that that’s not how they loaded sleds. Mr. Spice, who came in after the rookie, commented to Matt that he liked to load sleds that way; that it was his back and his safety, and he would continue to load the sleds that way.  He went on to state that the training at The Canyons Resort was a joke and that he had better things to do than waste his time attending GJ’s training.

Matt told Mr. Spice that his way of loading was not the way sleds were supposed to be loaded.  He went on to state that if Mr. Spice intended to load sleds a different way, he should take it up with GJ.  Mr. Spice then left the patrol shack.  Matt testified at the hearing that the protocol for loading a sled at The Canyons was very clear, and that he has never loaded sleds in the manner described by Mr. Spice. 

Shortly after that conversation, Lynn arrived at the Tombstone patrol shack expecting to meet up with Mr. Spice so that they could attempt to conclude their discussion regarding the lead positions.  She ran into GJ and Matt, who reported his discussion with Mr. Spice.  Matt told Lynn he was concerned about the way Mr. Spice had expressed his intent not to comply with the Employer’s policy on sled loading and training.

Lynn and GJ agreed that GJ should find Mr. Spice in order to talk to him about his issues.  GJ skied to the bottom of the Tombstone chair lift where he observed Mr. Spice and Patroller Myles Sibley (hereinafter Myles) about to load a sled “horns out,” in violation of company policy.  GJ approached Mr. Spice and told him, “You can’t do that.”  Mr. Spice replied, “Can’t do what?” and became agitated while starting to tell GJ how he disagreed with the Employer’s sled loading protocol.  GJ told Mr. Spice that they should move to a private area to discuss his concerns.  Mr. Spice continued to speak in a raised voice about methods of loading sleds.  At that point, Myles asked GJ if he should take the sled up and when GJ indicated he should, Myles properly loaded the sled on the chair lift and proceeded up the mountain.  Mr. Spice continued to criticize GJ’s lack of knowledge until a chair lift attendant made a comment on the discussion.  Mr. Spice left, riding away on the Tombstone chair lift.  In this exchange, Mr. Spice never agreed to follow the sled loading protocol.  GJ subsequently reported the discussion to Lynn and later documented the incident in a statement that he wrote at the request of Jake Hutchison.

            After this incident, Lynn caught up with Mr. Spice and arranged to meet with him at the Red Pine Room, but was called away for an accident.  Lynn then arranged another meeting with Mr. Spice and Meg McKenna, the Union representative, for the end of the day.  At that meeting, Mr. Spice was still upset.  Lynn discussed four items:  the lead patroller situation; Mr. Spice’s discussions with Matt regarding sled loading and training; Mr. Spice’s refusal to follow sled loading protocol; and Mr. Spice’s unprofessional behavior with GJ at the bottom of the Tombstone chair lift when GJ was trying to address the protocol.  Lynn explained the new lead/zone supervisor system and asked if Mr. Spice if he really even wanted to be a lead.  He told her that he wanted to see a job description in writing before he would commit to being a lead. 

Lynn questioned Mr. Spice about his unwillingness to participate in safety/training meetings.  Mr. Spice stated that the on-the-hill meetings were a joke and that the Employer’s training system would not work.  Lynn asked him if he was refusing to participate in the Employer’s safety/training meetings and to sign the sign-in sheets.  He told Lynn that he would attend meetings, if possible, but that if he did not feel adequately trained he would not sign the sign-in sheet. 

Lynn questioned him about the sled loading protocol.  Mr. Spice insisted that he did not know the sled loading protocol.  Lynn informed him that the protocol had not changed since he started working there seven seasons ago.  Mr. Spice insisted many times that he did not know how to properly load sleds and that the “handles-locked-out-front“ style of loading was safer and easier than the two approved methods of sled loading.  Lynn asked him if he was refusing to follow the sled protocol.  Mr. Spice told her that he would follow the sled loading protocol if forced to, but that the Employer would hear about any back problems.  

Lynn told Mr. Spice she was giving him a written reprimand for insubordination and his intent to not follow sled loading protocol.  Lynn had come to the meeting with a blank write-up form.  She showed Mr. Spice where she intended to write about the incidents and indicated where there was a place for him to sign.  Mr. Spice stated that he refused to sign a blank written warning and asked who he should talk to next about this issue.  Lynn informed him that she would set up a meeting between him and Jake on Sunday morning (December 24, 2006) so that they could follow up with these matters.  Mr. Spice was told that he was receiving a written warning. 

By the time Lynn reported this matter to Jake and described Mr. Spice’s response to the situation she had changed her mind and told Jake that, in her opinion, Mr. Spice should be let go.  In her testimony, Lynn stated that, while it was her original intention to write Mr. Spice up, upon further reflection she concluded that the situation was not going to change. 

After Lynn discussed the matter with him, Jake spoke with GJ and Matt about their experiences with Mr. Spice.  Jake then consulted with his manager, Tim Hagan, Scott Pierpont, and the Vice President of Human Resources Donna Gold.  Given Mr. Spice’s history, Jake determined that Mr. Spice’s employment should be terminated. 

Jake met with Mr. Spice on December 24th, which was Mr. Spice’s next scheduled workday after his discussion with Lynn.  Jake advised Mr. Spice that the occurrences of December 20th had been reviewed and that the decision had been made to terminate his employment for insubordination, verbal abuse of a supervisor in front of guests and other employees, and unwillingness to participate in training program.  The decision to terminate was grieved and the grievance proceeded to arbitration. 

DECISION

The Applicable Standard is Just Cause.

            Where there is no contractual definition, it is reasonably implied that the parties intended application of the generally accepted meaning that has evolved in labor-management jurisprudence:  that the “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness.[1]

Described in very general terms, the applicable standard is one of reasonableness:

Whether a reasonable (person) taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline).[2]

            As traditionally applied in labor arbitrations, the just cause standard of review requires consideration of whether an accused employee is, in fact, guilty of misconduct.  An employer’s good faith, but mistaken, belief that misconduct occurred will not suffice to sustain disciplinary action.  If misconduct is proven, another consideration, unless contractually precluded, is whether the severity of disciplinary action is reasonably related to the seriousness of the proven offense and the employee’s prior record.  It is by now axiomatic that the burden of proof on both issues resides with the employer.[3]

            The just cause standard has been seminally defined by Arbitrator Carroll Daugherty, and incorporates the following seven tests:

1.   Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

2.   Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?

3.   Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

4.   Was the company’s investigation conducted fairly and objectively?

5.   At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

6.   Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

7.  Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?[4]

If one or more of these questions is answered in the negative, then normally the just cause requirement has not been satisfied.[5]

The Applicable Burden of Proof is Clear and Convincing Evidence.

            In a case involving the discharge of an employee, the burden is on the employer to sustain its allegations, and to establish that there was just cause for the termination.  As the leading treatise in the area noted:

Discharge is recognized to be the extreme industrial penalty since the employee’s job, seniority and other contractual benefits, and reputation are at stake.  Because of the seriousness of the penalty, the burden generally is held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires “just cause” for discharge.[6]

In this context, it is appropriate for an arbitrator to demand clear and convincing evidence.  As Arbitrator Richman explained:

The imposition of a lesser burden than clear and convincing proof fails to give consideration to the harsh effect of summary discharge upon the employee in terms of future employment.[7]

Only if misconduct in the instance that led to the termination is proven can an arbitrator go on to address the question of the appropriateness of disciplinary action.

Has the Just Cause Standard Been Met?

In many respects this case is very simple.  On December 20, 2006, Matt was clear with Mr. Spice that the sleds were only to be placed on a chair-lift in a “horns in” manner.  Shortly after being clearly instructed in how to perform his job, Mr. Spice chose to disregard his employer’s direction and do the job in the manner that he saw fit.  When confronted by another supervisor (GJ), Mr. Spice chose to argue with him rather than simply do as he was told.  In this situation, Mr. Spice had two options:  he could choose to follow his employer’s direction, or, he could leave his employment and seek work elsewhere. 

If Mr. Spice wants to argue with his employer, he can seek to represent the Union on its negotiation team or become a shop steward.  However, Mr. Spice was being paid to work and to follow his employer’s reasonable directions, not to argue with management. Hurt feelings caused by the Employer’s abolition of the lead patroller classification are irrelevant, as are arguments based on how other resorts choose to load sleds.  If Mr. Spice had strong feelings about alternative methods of sled loading, he had two choices:  raise the matter with his union and let the Union bring the issue to management, or, to find another employer that agreed with his sled loading methodology and seek work there.

There is no question that just cause exists to discipline Mr. Spice for his actions; the only issue is whether discharge is warranted under this unique set of facts.  This question before me is a narrow one - namely, what is an appropriate penalty for Mr. Spice’s violations of his Employer’s policy?  Usually this decision hinges on the question of whether there was a reasonable relationship between the degree of discipline imposed on the grievant and the seriousness of the offense; here the issue turns on whether the employer must abide by its original decision of giving Mr. Spice a written reprimand.

In the instant case the Employer has chosen abandon its decision to give the Mr. Spice a written reprimand and to terminate Mr. Spice.  As stated by Elkouri:

Where the Agreement fails to deal with the matter, the right of the arbitrator to change or modify penalties found to be improper or too severe may be deemed to be inherent in the arbitrator’s power to decide the sufficiency of cause, as elaborated by Arbitrator Harry H. Platt:  In many disciplinary cases, the reasonableness of the penalty imposed on an employee rather than the existence of proper cause for disciplining him is the question an arbitrator must decide….  In disciplinary cases generally, therefore, most arbitrators exercise the right to change or modify a penalty if it is found to be improper or too severe, under all the circumstances of the situation.  This right is deemed to be inherent in the arbitrator’s power to discipline and in his authority to finally settle and adjust the dispute before him.[8]

The Supreme Court has long agreed with the above statement of Elkouri.  As stated in Paperworkers v. Misco:

Normally, an arbitrator is authorized to disagree with the sanction imposed for employee misconduct.  In Enterprise Wheel, for example, the arbitrator reduced the discipline from discharge to a 10-day suspension.  The Court of Appeals refused to enforce the award, but we reversed, explaining that though the arbitrator’s decision must draw its essence from the agreement, he "is to bring his informed judgment to bear in order to reach a fair solution of a problem.  This is especially true when it comes to formulating remedies."  363 U.S. at 597 (emphasis added by the court).[9]

The principle of progressive discipline is one of the most important aspects of just cause.  It requires the employer to provide discipline to employees in increasing degrees of severity, based "on the premise that both employers and employees benefit when an employee can be rehabilitated and retained as a productive member of the workforce."[10] Moreover, arbitrators “are likely to set aside or reduce penalties when the employee had not previously been reprimanded and warned that his or her conduct would trigger the discipline.”[11]  Furthermore, in Article 10 of the parties’ Agreement, it states that employees will not be disciplined or discharged without just cause and “the Company encourages the application of progressive discipline, where appropriate, and for the purpose of correcting performance issues.” 

            This case provides a unique set of circumstances regarding the penalty the Employer chose to administer to Mr. Spice as well as the language contained in the parties’ Agreement, which states: “[T]he arbitrator should not substitute his judgment and discretion for the judgment and discretion honestly exercised by management.”  There is no question that the particular language chosen by the parties gives the Employer wide latitude in imposing discipline.  There is also no question that Mr. Spice’s conduct warranted discipline.  The only question remaining is:  was Mr. Spice disciplined twice when he was at first presented with a written warning that was subsequently withdrawn in favor of his termination, and, does this constitute double jeopardy?

Although this arbitrator has never before encountered this issue, a leading treatise states:  “[T]he most common circumstance in which arbitrators find double jeopardy is when a supervisor imposes discipline for a wrongful act and later decides to increase it.”[12]  The majority of cases indicate that when an arbitrator finds that the initial discipline was unconditional and final, it is double jeopardy to increase it even if the decision to do so is made the next day.[13]  Further, where there are additional circumstances that the employer could easily have ascertained before imposing the initial discipline, such circumstances do not constitute legitimate grounds for increasing the penalty.[14]  Nor can discipline be increased because prior to its imposition, “new management’ has been installed.[15]  Where the initial discipline was imposed in the presence of supervisory personnel and a union steward, and confirmed the next day, the failure to reduce it to writing at the time does not permit the employer to subsequently increase the penalty.[16]  However, it does not constitute double jeopardy to withdraw proposed discipline before it is imposed in order to correct the charge, and to later impose a different penalty.[17]

The legal arguments made by the Employer are correct and persuasive; however, they rely on a supposition that the original discipline given Mr. Spice was never “administered.”  The Employer relies heavily on General Services Administration[18] (hereinafter GSA), to support its decision.  This reliance merely focuses the issue on the unique facts of this case.  GSA emphasizes the requirement that discipline must have actually been administered by the company.  In GSA, the grievant was initially presented with a document recommending that an official reprimand be issued.  The grievant contested the action of the GSA on the ground that his immediate superior had recommended an official reprimand, and that this caused the subsequent issuance of a suspension to be double jeopardy.  Applying GSA to the instant case, the sole remaining issue is whether the written warning was ever “imposed” or “administered” to Mr. Spice.

What actually happened at the meeting on December 20th between Ms. Offrett and Mr. Spice?  Based on the sworn testimony of Ms. McKenna, Ms. Offrett, and Mr. Spice, I believe it is more-likely-than-not that the following scenario occurred.

The meeting that evening began with Lynn discussing Mr. Spice’s bad behavior earlier in the day with him and with Megan McKenna, acting in the capacity of shop steward, taking notes.  At the end of the discussion, Lynn informed Mr. Spice that she was issuing him a formal written warning and asked him to sign a blank form because she hadn’t yet filled it in.  Mr. Spice refused to sign the form because it was blank.  This is reflected in Ms. McKenna’s notes, which state:  “I’m going to write you up for being insubordinate…”  Further, Ms. McKenna’s notes state: “-what’s my appeal process for this write up – Derik.”  Clearly, at the time of the meeting Mr. Spice believed that he had been administered a written reprimand.  While Mr. Spice’s subjective thoughts are irrelevant, the totality of the evidence leads me to believe that a reasonable person in Mr. Spice’s position would have thought they were receiving a written warning.  Ms. McKenna’s notes further indicate that Mr. Spice stated:  “What’s my appeal process for this write up?” and “Lynne explained to Derik that he was going to be written up but that she hadn’t had the chance to fill out the sheet yet.”  Mr. Spice then refused to sign a blank form and informed Lynn that he wanted to discuss the warning with someone else.  Lynn informed Mr. Spice she would set up a meeting with Mr. Hutchinson on Sunday, December 24, and, at that time, Mr. Spice could discuss the written warning, as well as other items such as the lead patroller position.  At the end of this meeting, Mr. Spice requested that he be allowed to write up his version of events and asked Lynn who would read his version.  Lynn said, “Well, no one, I guess.” 

Taken as a whole, Lynn’s testimony indicated that it was her intent to give Mr. Spice a written warning.  Lynn had a blank write-up form with her at the meeting; she showed Mr. Spice where she intended to write about the incidents and where there was a place for him to sign.  More-likely-than-not, Mr. Spice stated that he refused to accept the written warning (the blank form) and asked whom he should talk to next about the matter. 

The key to my findings of fact was the testimony of Ms. McKenna, which was refreshed by her contemporaneous notes.  While I am usually suspicious of notes of disciplinary meetings as being self-serving hearsay, this case is somewhat different as the issue of a written warning, versus termination, had not yet surfaced at the December 20th meeting.  When Ms. McKenna wrote at the conclusion of her notes:  “The meeting ended with an understanding that Derik would be written up and that on Sunday he could talk to Jake before he went up the hill and let him know if he wanted to keep the hill captain (lead patroller) position,” I believe that it accurately reflected the parties’ understanding.  Although the Employer’s legal arguments have merit, a bare preponderance of the evidence supports the proposition that both parties believed that Mr. Spice had received a written warning and that he would be appealing it.[19]

Once the Employer had decided to give Mr. Spice a written reprimand and communicated the level of discipline, the vast majority of arbitrators would hold that to increase the penalty to a discharge would constitute double jeopardy.[20]  While my personal opinion on this matter may differ from the majority of arbitrators, I feel compelled to follow the general rule.

CONCLUSION

The burden is on the Employer to show, by clear and convincing evidence, that just cause existed to terminate the grievant, Derrick Spice.  While just cause existed for discipline, the Employer has not met its burden of proof as to discharge.  Given that the Employer issued a written warning to Mr. Spice, the maximum discipline that may be sustained is a final written warning.  While a remedy of back-pay in this situation is harsh given the closeness of this case, it is required by arbitral precedent.

AWARD

The grievance is sustained.  The Employer will reduce Mr. Spice’s discharge to a final written warning and reimburse him for all lost pay and benefits less any interim earnings (including unemployment insurance).

All fees and expenses charged by the Arbitrator shall be borne equally by the parties, as provided for in Article 11.6 of the parties Agreement.

__________________________

David Gaba, Arbitrator

                                                                        April 30, 2007
                                                                        Seattle, Washington



[1] Rabanco Recycling, 118 LA 1411 (2003).

[2] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961). See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947).

[3] State of Alaska, 114 LA 1305 (2000).

[4]
Enterprise Wire Co., 46 LA 359, 363-4 (1966).

[5]
Enterprise Wire Co., 46 LA 359, 362 (1966).

[6]
Elkouri and Elkouri, How Arbitration Works 905 (5th Ed. 1987).

[7]
General Telephone Co. of California, 73 LA 531, 533 (Richman, 1979).  See also:   Atlantic Southeast Airlines, Inc., 101 LA 515 (Nolan, 1993) (using clear and convincing standard); J. R. Simplot Co., 103 LA 865 (Tilbury, 1994) (same); Collins Food International, Inc., 77 LA 483, 484-485 (Richman, 1981) (same).  The Employer bears this burden of proof both with respect to proving the alleged violation, and with respect to demonstrating the appropriateness of the penalty.  Pepsi-Cola Co., 104 LA 1141 (Hockenberry, 1995).

[8]
  Elkouri & Elkouri, How Arbitration Works (6th Ed., 2003), See also, Arbitrator Kossoff in 76 LA 300, 308; Volz in 50 LA 600, 603; Gilbert in 45 LA 580, 584; Dworkin in 36 LA 124, 128.  Also see Amoco Oil. V. Oil, Chem. & Atomic Workers Local 7-1, 548 F.2d 1288, 94 LRRM 2518, 2521, 2524-25 (7th Cir., 1977).  For discussion of other court cases on this aspect, see Fogel, “Court Review of Discharge Arbitration Awards,” 37 Arb. J. No. 2, pp. 22, 32 (1982). 

[9]
Paperworkers v. Misco Inc., 484 U.S. 29 (1987). 

[10]
Discipline and Discharge in Arbitration, N. Brand, Ed., p. 57 (BNA, 1998). 

[11]
Elkouri & Elkouri, How Arbitration Works (6th Ed., 2003).  

[12]
Labor & Employment Arbitration Practice and Procedure, Bornstein and Gosline (Mathew Bender & Co., 1999).  .

[13]
Marin Honda, 88-2 ARB 8463 (Kanowitz).

[14]
Gulf States  Paper Corp., 97 LA 60 (Welch 1991).

[15]
City of Pontiac, 77 LA 758 (Ott 1981).

[16] City of Kenosha, 76 LA 758 (McCrary 1981)

[17]
Coshocton Cty., 98 LA 1145 (Murphy 1981).

[18]
General Services Administration 75 LA 1158 (Lubic, 1980),

[19]
Since Mr. Spice has yet to receive the text of the discipline I should add that just cause exists to make it a final warning informing him that he will be terminated for future acts of insubordination, arguing with supervisors, improper sled loading, or failing to sign in at training sessions.

[20]See, Chicago Transit Auth. 112 LA 713; Gulf States Paper Corp., 97 LA 60 (Welch 1991); Transit Management of Southeast La., 95 LA 74 (Allen, 1990).

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