Hearing
held on November 3, 2009, in Fairfax, VA.
Before:
Stephen E. Alpern, Arbitrator
For
the
Union
For the Employer
Statement of the Case
As parties to a collective bargaining agreement, effective
from June 1, 2007, to May 28, 2010 (the Agreement), the Union and
the Employer submitted this matter to arbitration. The dispute
involves the discharge of the Grievant. The undersigned was selected
by the parties under the auspices of the American Arbitration
Association to decide the matter.
Issue Presented
Based upon the arguments presented by
the parties, I have determined that the issue before me in this matter
is:
Whether
the discharge of the Grievant was proper under either the terms of the
Agreement or under the terms of the last chance agreement entered into
by the Grievant, and, if not, what shall the remedy be?
Facts
The Employer is a government contractor at a large, high
security facility in the Washington, DC metropolitan area. Under the
contract with the government agency (the agency), the Employer
maintains the buildings and grounds at this facility. The Union
represents all employees who are engaged in the operation, maintenance
and repair of specified facility systems, including plumbing, heating
and air conditioning and electrical systems. All of the Employers
employees must have a government security clearance to work at the
facility, although new employees may work at the facility if escorted
by a cleared employee.
Until his discharge the Grievant had been employed as a pipe
fitter since August, 2003. Until February 2009 he was discipline-free.
In January 2009 the Employer began an investigation into allegations
unrelated to this case. In the course of that investigation, the
Employer also received allegations that
a number of employees, including the Grievant, had been
smoking in areas of the governments premises where smoking was
prohibited, and that they had engaged in gambling activities during
lunch breaks, an activity that was also prohibited. The Employer
concluded that the Grievant and nine other employees had engaged in
gambling activities. As a result of that conclusion, the Employer
initially determined to discharge the employees, but ultimately
allowed the employees to enter into an agreed-upon Letter of Reprimand
under which the employees would be suspended without pay for a two
week period from February 13, 2009, through February 27, 2009. The
Letter of Reprimand stated, in part,
A.
This
letter
of reprimand will remain in your personnel file and active for one
year.
B.
Any
substantiated
infraction of Client or Company policy on your part over the next
year, including issues currently under investigation, will be
sufficient cause for immediate termination.
C.
You
have
received a personal copy of current SSI Services policies and
directives, and are being held responsible for full compliance.
Although
the
Employer had concluded its investigation into the gambling activities,
it had not concluded the investigation into smoking.
On February 13, 2009, the first day that the Grievant was on
suspension, a fire occurred in the plumbers cage in one of the
agencys buildings. The fire, which produced considerable smoke, was
extinguished by two of the Employers employees using fire
extinguishers and by automatic sprinklers which had been triggered by
the fire. The agencys Fire Marshall subsequently determined that the
fire had been caused by cigarettes. The plumbers cage was not a
designated smoking area. The Employer was unable to determine who
caused the fire.
On March 3, 2009, after the Grievant returned from his
suspension, the Employers Utilities Branch Manager, Sylvester Thomas,
held a meeting of all employees in the Utilities Branch, including the
Grievant, concerning the Employers non-smoking policy. Thomas
reiterated that smoking was prohibited in any building or vehicle or
within fifty feet of the entrance of any building. The Grievant,
testified that Thomas stated that the slate would be wiped clean for
all employees, but that any future violations of the smoking policy
would be dealt with severely. Thomas did acknowledge use of the clean
slate term. He testified that this meant that he would no longer
consider information that had been given to him by employees who
claimed that other employees were smoking, but who refused to give him
specifics as to the individuals involved and as to the time and place
of the infractions.
The
Employer
continued its investigation into smoking after the fire. In the course
of the investigation, the Employer interviewed approximately
twenty-seven individuals, and also discovered discarded cigarette
butts and an empty cigarette pack in non-smoking areas. A number of
employees informed the Employer that they had seen the Grievant smoke
in non-smoking areas. On June 4, 2009, Patrick Cummins, the Employers
Deputy Program Manager for Administration, met with the Grievant and
Harry Geety, the Assistant Business Agent for the Union. Cummins
advised the Grievant that individuals had stated that they had seen
the Grievant smoking in non-smoking areas and that those two employees
had submitted written statements that the Grievant had smoked in
prohibited areas. Cummins testified that the Grievant denied ever
smoking in a prohibited area. Geety testified that the Grievant denied
smoking in prohibited areas after his return from the suspension. At
the conclusion of the meeting, Cummins gave the Grievant a Letter of
Termination dated June 4, which stated, Reason for Termination:
Termination for Cause Prohibited activity following letter of
reprimand. The Employer did agree to allow the Grievant until June 9
to decide to resign, rather than being terminated. The Grievant
subsequently informed Cummins that he wished to be terminated, and
submitted a letter in which he stated that, As of March 3, 2009, my
slate was wiped clean along with everyone elses. Since March 3, 2009
I have done what I am supposed to do. The Union filed a grievance,
which the parties were unable to resolve. The matter then proceeded to
arbitration.
Contentions of the
Parties
1) The
Employers Arguments
The Employer asserts that the Grievant engaged in misconduct
covered by the last chance agreement, and, accordingly, his discharge
must stand. When a last chance agreement is in place, according to the
Employer, normal just cause and due process considerations do not
apply and the arbitrators role is limited to determining whether the
last chance agreement was violated. In this case, five witnesses,
including the Grievant, testified that he smoked in prohibited areas.
The last chance agreement that Grievant signed allowed the Employer to
discharge the Grievant for infractions that were being investigated at
the time the agreement was signed. Further, one witness testified that
the Grievant smoked several times in prohibited areas after March 3,
2009. There was ample evidence supporting cause for the Grievants
discharge.
2)
The Unions Arguments
The Union asserts that this matter must be decided under
normal just cause standards. Although the Agreement does not contain a
just cause provision, arbitrators apply just cause standards in the
absence of specific standards in the collective bargaining agreement.
The Union urges that this discharge was not for just cause. The Union
asserts that Thomas wiped the slate clean on March 3 and that no
employee testified that the Grievant smoked after that date. Further
the last chance agreement could not apply because the issue of smoking
was not under investigation at the time the agreement was signed.
Finally, the Employer did not treat the Grievant equally with other
employees, because at the time the Employer discharged the Grievant it
only suspended two other employees for smoking violations. The fact
that Grievant was under a final warning was irrelevant because his
warning was for gambling violations, not for smoking violations. Under
all the circumstances, the Union urges that the Grievant must be
reinstated and made whole.
Discussion
and
Conclusions
For reasons to be explained there are a number of issues
which need not be decided in this matter. Under other circumstances, I
would be required to determine whether the just cause standard apples,
even though the Agreement does not contain a just cause provision. I
also need not determine whether the last chance agreement permitted
immediate discharge for prior infractions which were under
investigation at the time the last chance agreement was signed.
Similarly, I need not determine the effect of Thomas statement on
March 3 that he would wipe the slate clean. These issues need not be
decided, because I have determined that the Grievant violated the last
chance agreement by smoking in prohibited areas after March 3, 2009.
Employee Bernard Steed testified that in March and April,
2009, he observed the Grievant smoking in a building known as the
Hammer Mill where smoking was prohibited. The Grievant denied this at
the hearing, and stated that Steed must have been mistaken as to the
dates. The Grievant did acknowledge that Steed is an honest
individual. Based on the facts in the record and my credibility
determinations, I credit Steeds testimony and do not credit the
Grievants testimony on this point.
Steed was first employed by the Employer on February 23,
2009, when the Grievant was still on suspension. When the Grievant
returned to work on March 2, he served as Steeds escort, because
Steed had not yet been cleared. This was the only day prior to the
Thomas meeting that the two worked together. Because Steed testified
that he saw the Grievant smoking on more than one date in March and
April 2009, if his testimony is credited, the Grievant smoked in
prohibited areas after the Thomas meeting. The Grievant did not
challenge Steeds testimony that he saw the Grievant smoking on a
number of occasions. He only disputed the time frame, and stated that
Steed must have been confused as to the dates. I also have considered
my observation that Steed was clearly uncomfortable testifying against
the Grievant. Further, Steed appeared to have no motivation to testify
falsely against the Grievant. Steeds testimony was internally
consistent and not at odds with the testimony of any witness, other
than the Grievant.
There are a number of reasons why I cannot credit the
Grievants testimony. Both before and during the hearing, the Grievant
gave conflicting accounts of his smoking activities. According to
Cummins testimony, the Grievant told him at their June 2009 meeting
that he had never smoked in prohibited areas, but then asked if
smoking was permitted in the louvered area, which was a non-smoking
area. At the hearing, the Grievant acknowledged that he had smoked in
the Hammer Mill, but that he quit after he learned it was a
non-smoking area. I note that the Grievant should have known that the
Hammer Mill was always a non-smoking area, since smoking was not
permitted inside any building. Later in the hearing, the Grievant
testified that he had only smoked in the Headquarters Building, but
had not done so since December 2008 or January 2009. The Grievant
denied smoking in the plumbers cage. After claiming that the exhaust
area was the only place he smoked, the Grievant later admitted that he
had smoked in the Jenkins Tunnel, a prohibited area, but had not done
so since 2003.
The Grievants testimony was contradicted by that of a number
of employees, none of whom appeared to have any motive to give false
testimony, and all of whom appeared to be, or stated that they were,
reluctant to testify against the Grievant. Larry Zones, a night shift
lead, testified that he had seen the Grievant smoking in the air
intake area, the exhaust area and the Jenkins Tunnel. Ken Brill, a
pipefitter testified that he had over the years seen the Grievant
smoke in every mechanical room, and shortly before the fire he had
seen the Grievant smoking in the plumbers cage and in the fan
generator room. He had also seen the Grievant smoking many times in
motor vehicles, which was also prohibited. Harry Rupp, who was the
Union shop steward, also testified that he had seen the Grievant
smoking in several mechanical rooms. The testimony of these employees,
other than Steed, does not support a finding that the Grievant smoked
in prohibited areas after the Thomas meeting, but it does undermine
the Grievants testimony generally, because all of these employees
testified that they saw the Grievant smoking in areas where he denied
that he smoked.
The final evidence undermining the Grievants testimony was
the evidence that, after his removal, the Grievant, by his own
admission, asked Steed not to say anything about whether Steed had
seen anything that the Grievant had done. Steeds testimony was
similar. He stated that the Grievant said that if Steed was asked by
the Employer if he had seen anything he should say that he didnt see
anything. While I am not convinced that the Grievant explicitly
requested Steed to lie, the clear implication of the Grievants
request was that Steed should not cooperate in, or fully and
truthfully answer questions, during the course of an Employer
investigation into the Grievants conduct. Needless to say, if the
Grievant had done nothing wrong, he would have had no need to make
such a request. The Grievants request of Steed seriously undermines
the Grievants credibility. Based on all the evidence before me, I
conclude that the Grievant violated the Employers non-smoking policy
after March 3, 2009.
The question then arises whether the Grievants discharge was
permitted under the last chance agreement signed by the Grievant.
While there may be circumstances under which a last chance agreement
will not be a sufficient basis to sustain a discharge, either because
of the manner in which the agreement was entered into or the manner in
which it was enforced, this is not such a circumstance. Here the
Grievant was faced with discipline for admitted conduct. He entered
into the agreement with Union representation. The terms of the
agreement were clear and of reasonable duration. The Union implies
that the last chance agreement should not be invoked because the
misconduct on which the discharge was based was different than that
upon which the last chance agreement was based. The clear terms of the
last chance agreement, however, permitted immediate discharge for any
substantiated infraction of the agencys or the Employers policies on
the Grievants part over the next year. As I have found that the
Grievant violated the Employers smoking policies after March 3, 2009,
I have no choice but to sustain his discharge.
Award
The grievance is
denied.
Dated
this 24th day of February,
2010
Stephen
E.
Alpern
Arbitrator