QUESTIONS TO BE ANSWERED. MUST BE 3-5 PAGES IN APA FORMAT
- As the HR professional at Barrera Recycling Company:
- Prepare for arbitration (see page 324). Do a written review of the arguments, prepare questions for witnesses, and describe anticipatory evidentiary issues.
- Present a well-articulated case supporting management’s assertion that ErinMcNamara was dismissed for just cause. (Before answering this question, please review the section on Employee Discipline and the Seven Tests of Just Cause.pp.325-327)
- As the chief steward for Local 37:
- Prepare for arbitration (see page 324). Do a written review arguments, prepare questions for witnesses, and describe anticipatory evidentiary issues.
- Present your case substantiating your allegation that the dismissal violated the collective bargaining agreement.
- In the role of arbitrator, describe the alternative ruling available to you. How would you rule? Write and explanation supporting your decision.
POSSIBLE SOLUTIONS TO ASSIST – DO NOT COPY PER VATUM, PLEASE RE-WORD
Box 10.13: Safety and Gloves Discharge, With Just Cause?
The union claims that the company violated the collective bargaining agreement by dismissing Erin McNamara without just cause. The company claims that Erin McNamara was dismissed for just cause. So the issue is clear: was Erin McNamara dismissed with just cause?
The company argues that there certainly was just cause to discharge Erin McNamara. First, McNamara was observed sorting material without safety gloves. The collective bargaining agreement (Article XX) provides for immediate discharge for “refusal to comply with plant rules” so management has the right to discharge McNamara on this basis alone. Moreover, McNamara had seven verbal warnings and a three-day suspension in the previous 12 months. The (unchallenged) suspension contained the warning that immediate discharge will result from any violations of Barrera rules. Failing to wear safety gloves violated company rules and is therefore a basis for dismissal.
The union argues that Article XX mandates that any discharge be based on just and sufficient cause. Section 1 of this article that specifies violation of plant rules as a cause for immediate discharge does not require immediate discharge. Rather, “it just says that there is a cause there for the Company to discharge if there is just cause.” Moreover, the contract also states that plant rules will be posted “in each department where they may be read by all employees.” The rules are posted only in Spanish, only in the cafeteria, and do not mention safety gloves. The grievant does not speak Spanish, has never been to the cafeteria, and, like other employees with implied supervisory consent, consistently does not wear safety gloves for cutting bundles because it is more efficient. Finally, the five conversations between Gomez and McNamara prior to the suspension for reading on the job were simply conversations between a supervisor and an employee – they are not reprimands or warnings (section 5 of Article XXI provides for written reprimands).
The Arbitrator’s Ruling
The arbitrator ruled in favor in the union, i.e., the discharge was without just cause. The ruling seemed to hinge on the word “refusal” in section 1 of Article XX: “refusal to comply with plant rules.” The arbitrator found “no evidence that Grievant refused to comply with plant rules” since she had never seen them and since she could not read Spanish. Since the arbitrator did not find a refusal to comply with plant rules, the operative section of the contract is the just cause clause. Under the circumstances (including 20 years of seniority), the arbitrator felt that “it is a quantum leap from a three-day suspension to discharge.” Some discipline was warranted, in the eyes of the arbitrator, but not discharge.
The rule “Zapatos de seguridad y lentes deben ser usados todo el tiempo. Otras cosos de seguridad deben ser usadas si 10 indica el supervisor.” translates into “Safety shoes and safety glasses must be worn at all times. Other safety equipment must be used as directed by supervision.” The arbitrator was not compelled by the union’s argument that this means that safety gloves are not required. However, since these rules were not posted in accordance with the contract and since the grievant could not read the rules in Spanish, there was no refusal to comply with the rules.
If there had been a refusal to comply with plant rules, the grievant likely would have lost her case. The company argued that section 1 providing for immediate discharge stands alone whereas the union argued that it should be taken in conjunction with section 2 providing for just cause. The arbitrator cites several Court of Appeals decisions in which similar sections were ruled to be “two independent justifications for dismissal” (just cause and a list of offenses). Since the Supreme Court denied review of these cases, the arbitrator felt it would be presumptuous for him to disregard these cases. Thus, the arbitrator would have sided with the company if there had been a refusal of plant rules.
In the actual case there is also an allegation of age discrimination. While this was found to be without merit by the arbitrator, it is worth noting that the NLRB’s Wright Line doctrine has “carried over into the arbitral arena.” If there was substance to the age discrimination allegations, the company would have to have shown that it would have discharged the grievant even in the absence of the allegations.
The arbitrator reinstated Erin McNamara to her previous position. However, since the arbitrator believed some sort of discipline (less severe than discharge) was warranted, the arbitrator also felt that the grievant should not “profit by the errors of [her] supervisors in failing to post the rules and post them in English, and be unjustly enriched.” Thus, no back pay was ordered although seniority would still accrue. The award was considered a reprimand under the contract.