|
Grievance Arbitration Sample Articles:TERMINATION FOR INCOMPETENCE UPHELD UNAUTHORIZED 'LOAN' DOES NOT CONSTITUTE THEFT MISASSIGNMENT OF WORK EXAMINED IN TWO SCHOOL CASES Arbitrator Carlton J. Snow upheld King County's decision to terminate an employee because she failed to meet its expectations for work performance. The grievant simply was not able to perform typing, filing, data entry, or record checks with a reasonable degree of speed or accuracy, the arbitrator ruled. The grievant worked for the employer in various departments for six years and was the member of a bargaining unit represented by Public Safety Employees Local 819 (SEIU). She kept transferring because every department in which she worked had serious concerns about her performance. After an extensive period of additional training and reviews, she was terminated. The arbitrator rejected the union's contentions that (1) the employer should have used progressive discipline, (2) the grievant was singled out for termination, and (3) she was wrongly denied an opportunity to transfer to another department prior to her termination. Opportunities for Training and Correction Provided The arbitrator explained why progressive discipline is not appropriate in this case. Progressive discipline is not viewed by arbitrators as a necessary response ... in incompetence cases because it is reasonable for an employer to conclude that corrective action will not have any effect ... Instead of searching for a typical "oral warning, written warning, suspension" pattern of discipline, incompetence cases have turned on whether management provided trial periods, more than standard training, clear-cut cautions to an employee about the consequences of not performing up to expectations, and the reasonableness of job standards set by the employer. He concluded that the employer met all the requirements of training and notice before terminating the grievant, bending over backward to help her succeed and gave her clear notice of her deficiencies. Supervisor Venting Falls Short of Conspiracy While at the Records Department, the grievant discovered a series of e-mail bearing her name and addressed to one supervisor from another. She read the e-mail, then searched the supervisor's in-box for more relevant messages. The messages revealed that her supervisors were frustrated with the grievant's lack of improvement and expressed a resolve to "get it over with" by mid-year. The union claimed that the messages were proof that the grievant was singled out for termination and that the grievant's discovery of the messages caused her poor work performance. Arbitrator Snow explained that while the messages were unprofessional and legitimately disturbing to the grievant, they were not malicious or hurtful. They were ambiguous and could have referred to management's efforts to place the grievant in a position that more closely matched her skills. He noted that the comment to "get it over with" could have referred either to the grievant's improving her performance or to her termination. While the comments "clearly were inappropriate for expression in a group mailing, a supervisor's need to vent frustration to other personnel of the same rank who had work experience with the grievant was understandable." The arbitrator pointed out that when the grievant discovered the messages, her work performance was already so bad that the messages could be blamed for causing poor work performance. Transfer Optional With Employer While she was still employed in that department, the grievant applied for a transfer to a vacant receptionist position. Her immediate supervisor signed the request, commenting that despite her unsatisfactory ratings, the grievant seemed to possess the people skills for a receptionist position. The union argued that the grievant had a contractual right to be assigned to the open position because she was an active employee at the time of her request. The arbitrator disagreed, concluding that the employer had unrestricted decision making authority in the area of hiring and transfers. He found its course of action contractually acceptable, namely that the grievant was disqualified after her application was screened and her work history, including the pending termination, was considered. King County and Public Safety Employees Local 619 (Arb. C. Snow, 2000)
Arbitrator Kenneth McCaffree concluded that Benton County wrongly terminated a bail cashier who allegedly stole money. He found that although the grievant admitted taking the money, the employer (1) did not prove she stole it, and (2) did not objectively evaluate the evidence in choosing termination as the form of discipline. The grievant was a cashier at the Benton County Courthouse. At the beginning of a shift, the grievant, along with the other cashiers, received $100 to use as change. At the end of the shift, each cashier counted out the $100, then balanced the remaining money with the day's transactions. If the cashier failed to balance the till, she was to report the error to the chief accountant. No person other than the cashier counted out the $100. Cashier Accused of Stealing $13.00 When the grievant arrived for work one day, the assistant administrator informed her that her till for the previous day was short. She readily acknowledged that she had taken $3 out of the till to buy gasoline because her gas tank was empty. She replaced that sum but was unable to account for the remaining $10, and was surprised that the till was $13 rather than $3 off. She suggested that there could have been an overage error in the deposit, but that did not prove to be the case. Later that day, the employer suspended the grievant without pay, accusing her of embezzling public funds. At her Loudermill hearing, the grievant offered statements from other cashiers who acknowledged "borrowing" money from their tills for a variety of purposes, including a lottery ticket purchase. The employer raised the fact that at the time of her hire, the grievant had a deferred sentence for theft that was subsequently dismissed. The employer terminated the grievant because she admitted taking $3 from her till, did not inform the employer of her action, and could not account for the remaining $10. In short, the employer concluded that she stole $13. Intent of Accused Essential The employer argued that the grievant's intent was irrelevant, concluding that she took the money without the employer's knowledge and used it to buy gasoline. The arbitrator dismissed this argument, which was based on criminal statutes. He explained that arbitration precedent requires "an entirely different interpretation of the rules against the prohibition of theft in the employer/employee relationship." In the areas of industrial jurisprudence and employee/employer relations, the "intent" of the employee to keep and to deprive the employer of property or money is an essential element of theft. The arbitrator noted that the grievant deceived the employer by taking the three dollars out of the register and then reporting her till as balanced, knowing full well that it was short. However, he concluded that the grievant's subsequent behavior and circumstances supported her contention that she intended to borrow rather than steal the money. First, he found it unlikely that a cashier would knowingly steal from her till for which she is responsible because the error would eventually show up. Second, he found it unlikely that a cashier would go to the trouble to cover a $3 theft by reporting a false shortage, going through the motions of searching for an "error," and possibly having the incident put on record. Third, he found the grievant's demeanor consistent with someone who intended to borrow rather than steal: her "ready admission...and explanation of the use of the $3 and prompt willingness to replace the borrowed sum had a realistic tenor to it." Finally, she had prior knowledge of other cashiers borrowing from their tills and reasonably assumed it was an acceptable practice. The arbitrator considered such a practice, although occurring infrequently, was "a basis for the Grievant to 'borrow' the three dollars without concern for stealing." The employer's argument that the grievant stole the missing $10 also did not convince the arbitrator. He considered the mere fact that the money was missing insufficient to prove that she stole it. He emphasized that "no one really knows where the $10 went." Because the cashier drawers are unsecured at the beginning of the shifts and are accessible by administrators, he said, these persons could have taken the money. He added that no one knew how accurate the cashiers' $100 banks were in general because only the cashiers did the counting at the end of the day: Although the administrator asserted that she did not take the money, although she was the one who initially counted out the money alone, her affirmation carries no greater weight than the denial of the Grievant. Employer's Investigation Faulty Arbitrator McCaffree pointed out several errors and omissions in the employer's investigation of the alleged theft. The official who actually made the termination decision did not review the grievant's personnel file and relied on inaccurate information given by the office administrator. First, the administrator claimed the grievant had more overages and shortages than other cashiers. After reviewing the data himself, the arbitrator found that without knowing how long other cashiers had been working, comparisons between the cashiers' errors were not meaningful. He noted that the grievant outperformed her co-workers the last couple of years and that despite the employer's claim, she was never disciplined for cash register errors. Second, the administrator mischaracterized events in the grievant's job history. She claimed that she reprimanded the grievant during a performance evaluation regarding her level of organization, but the written record indicated a generally good performance evaluation with no mention of a reprimand. The administrator asserted that the grievant had been temporarily demoted to receptionist following her failure to collect two large bails, resulting in shortages totaling $850. However, the official document indicated that the grievant actually requested the reassignment because of stress; there was no mention of a demotion. Employer Meted Out Discriminatory Discipline The employer issued a written reprimand to the employee who had borrowed five dollars from her till to buy a lottery ticket. She claimed to have left an I.O.U. in the cash register as proof that she borrowed the money. The arbitrator saw no difference between this cashier's case and the grievant's, ruling that the employer cannot treat these two employees differently for their actions. The employer pointed to the grievant's prior deferred sentence in support of her termination. The arbitrator disagreed with the its reasoning: Here the Employer knew ... about a prior experience of the Grievant that it regarded serious at the time, but retained the Grievant in employment. Any attempt to rely upon that upon which it has already made a decision with regard to pre hire experience and "cleared" the Grievant cannot now be relied upon for subsequent disciplinary purposes. The arbitrator acknowledged that the grievant violated the employer's policy by taking the $3 and that discipline was therefore appropriate. He ordered that she be given a reprimand, made whole for lost wages and benefits, and offered reinstatement to her former position. Benton County and Local 874HC, WSCCCE, Council 2 (Arb. K. McCaffree, 1999) In two separate school district cases, Arbitrator Jane Wilkinson held that the transfer of bargaining unit work to other classifications violated the contract with classified employees. In one of those cases, however, the district's action was excused because the work assignment in question was made under emergency conditions. Special Event Cleanup Is Custodial Work In a dispute between Yelm School district and Public School Employees of Yelm, the district assigned weekend special event custodial work to a temporary employee, who was not in the bargaining unit, in order to avoid paying overtime to a bargaining unit custodian. The arbitrator, interpreting what appeared to be conflicting contract language, found that the evidence submitted of past practice and bargaining history was inconclusive. The language itself stated that employees have no right to overtime, but it also provided a procedure for assigning overtime. In addition, it contained a recognition clause that included all custodian classifications in the bargaining unit, and set out the rates of pay for each custodian classification. The arbitrator found that as a general rule the assignment of custodial work outside of the bargaining unit violates the contract because under the contract's recognition clause all custodial work is bargaining unit work. There is nothing in the language of the contract to suggest that custodial work that would result in overtime or that special event custodial work is not bargaining unit work. No language in the contract authorizes the employer to reach outside of the bargaining unit in order to avoid paying overtime. According to the arbitrator: A decision that authorizes the assignment of bargaining unit work outside of the unit to avoid overtime payment, absent contractual language giving an employer this right, has a significant potential for undermining the integrity and strength of the bargaining unit, and the contractual rights gained through bargaining, particularly those found rights in the clauses on recognition, wages and benefits, and seniority. No Basis for Exception Found The arbitrator noted, however, that arbitral precedent makes exception for occasional assignments of work outside of the bargaining unit under certain circumstances. She explained: Inferring a flat prohibition against assignment of work outside of the bargaining unit would unreasonably compromise an employer's ability to efficiently run its business, and that surely was not the parties' intent. Among the considerations the arbitrator examined were whether the employer's action was taken in good faith, whether there was reasonable business justification for the assignment, and whether the work was de minimis or the assignment was made under emergency circumstances. The arbitrator found that although the employer made the assignment in good faith, and was not driven by an anti-union motive, the work in question was not de minimis or made under emergency conditions. Avoidance of the payment of overtime did not constitute a reasonable business justification, especially because the employer not only avoided paying overtime to a bargaining unit member but also paid the temporary employee at the step one base wage for custodians while bargaining unit members occupied higher steps on the salary schedule. The arbitrator could not condone an attempt to reduce labor costs at the expense of the bargaining unit. Student Transport is Bus Drivers' Work In the second case, Arbitrator Wilkinson found that the assignment in question was made under what the superintendent reasonably believed to be emergency conditions. Therefore, there was no contract violation. The Concrete School District's agreement with the Public School Employees covers a bargaining unit of bus drivers, aides and other classifications. The contract language stated that: Only employees employed regularly as classified employees will be used to fill job assignments within their respective classifications for which compensation is granted, unless no qualified employee of a needed classification is available. The employer occasionally has to transport students home during the school day. The contract language was unclear as to whether driving students home during the day is work falling in the bus drivers' classification, and past practice varied. Frequently, an available bus driver has been used, but other properly licensed district personnel, including principals, teachers, and aides, have driven students. Based on the employer's own past admissions, the arbitrator found that providing transportation to a student who must go home during the day is ordinarily bus drivers' work, unless a parent or parental designee was available. Perceived Emergency Created Exception The incident that precipitated the grievance was the need for a child who was undergoing an allergic reaction to go home to get her medication. Initially, no emergency existed. By the time the superintendent learned of the problem, however, the child's breathing was becoming more difficult and an emergency was brewing. The delay stemmed from an earlier misunderstanding between the superintendent and the district nurse over procedures. The arbitrator determined that the superintendent acted in good faith when she believed that an emergency existed, and using an aide, who was already standing by, to drive the child would save precious time, although it turned out that a bus driver could have been used with no loss of time. Arbitrator Wilkinson decided that the superintendent's ""subjective belief that an emergency existed, acquired in good faith but in error," qualified as an exception under the contract. Her reasoning was that school districts must give priority consideration to the welfare of its students. Errors in judgment, therefore, should favor the welfare of the students and the contract should not be construed otherwise. Yelm School District and PSE of Yelm (Arb. J. Wilkinson, 2000) Concrete School District and PSE of Concrete
(Arb. J. Wilkinson, 2000) |
