Sunday, May 19, 2013

Termination of Union business agent for misuse of confidential information upheld

Grievant was employed by the Minnesota Association of Professional Employees, the Union representing state employees, as a business agent. She was also a member of OPEIU Local 12, the Union representing the MAPE staff. OPEIU and MAPE were engaged in negotiations for a new collective bargaining agreement. After MAPE declared an impasse in negotiations, OPEIU filed both a grievance and an unfair labor practice charge. MAPE sought advice from outside counsel who sent a letter outlining a legal analysis and recommended responses to the grievance and charge. A receptionist opened the letter, realized it related to the OPEIU negotiations and showed it to another OPEIU member. That member in turn made a copy and provided it to the grievant. Grievant proved the copy to the OPEIU shop steward. The steward gave the letter to the OPEIU business agent and it was discussed at a union meeting.

MAPE learned of the incident and conducted an investigation. As a result of the findings, three of the four individuals who had transmitted copies of the letter resigned. Grievant declined to resign and her employment was terminated.

OPEIU grieved the termination and Arbitrator Richard Beens rejected the grievance. Arbitrator Beens concluded that even in the absence of a written rule, grievant knew it was wrong to possess and pass on the legal opinion. He observed "It is entirely reasonable for any employer to expect employees to be honest and trustworthy. It is equally reasonable to believe all employees have a universal understanding of this simple expectation." Rejecting the claim that the discipline was unduly harsh, Arbitrator Beens found that the misconduct went to the heart of the employer-employee relationship and was a serious violation of the level of trust expected of the grievant.

The Arbitrator also rejected reliance on grievant's 17 year work record as a basis for mitigation, noting:

A seventeen-year spotless work record would ordinarily carry great weight when considering levels of discipline. There is no doubt Grievant was a highly valued employee who previously did excellent work for the Employer. On the other hand, vast experience can also cut the other way. Based on her seventeen years as a business agent, contract negotiator, and grievance advocate, Grievant was in the best position to recognize the magnitude of the misconduct. Grievant’s assertions that she, “just  wasn’t thinking because she was so busy,” ring hollow. The ultimate test of character is doing the right thing even when you believe no one is looking. In this instance, Grievant failed that test.

Pursuant to the parties' cba, the Arbitrator found the conduct of the grievant amounted to "gross misconduct", justifying the termination notwithstanding the absence of progressive discipline.

Arbitrator Beens award can be found here.

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