Grievance timelines, threats in the workplace and public policy

All of these topics are discussed in the recent decision of the Eleventh Circuit in Peco Foods Inc. v. Retail Wholesale and Department Store Union Mid-South Council.

The case originated with the termination of an individual alleged to have made a threat of violence during a Company safety meeting. During the meeting, the supervisor advised the employees that individuals on the prior shift had been throwing ice, and reminded the employees that such conduct was contrary to Company policy. Grievant responded "I don't throw ice, I throw lead." Several employees laughed at this response. The supervisor reported this comment to his supervisor, and sometime later that morning grievant was called to a conference room where he as questioned about the comment. Grievant admitted he had made the comment but stated he hadn't meant anything by it. In response to a stewards question, grievant's supervisor acknowledged that he had not felt threatened by the comment but reported it because of a recent workplace shooting at another company. At the conclusion of the meeting grievant was sent home for the day. The next morning, grievant's employment was terminated. The termination was grieved and ultimately submitted to Arbitrator William H. Holly for resolution.

At the arbitration, the Company argued that the Arbitrator did not have jurisdiction to hear the dispute because the Union had waited too long to appeal the case to arbitration. The cba required an appeal to be made "within fifteen (15) calendar days of . . . [Peco's] answer at Step 3 of the grievance procedure." The Union had filed its appeal thirteen days beyond that deadline. On the merits, the Company maintained that grievant's undisputed comment was "tantamount to a workplace violence threat"and that based on recent workplace violence incidents any discipline short of termination would not be justified.

The Union argued that the parties did not have a history of strict adherence to timelines and that the Company had not raised this issue until the arbitration. It also argued that the termination of a long service employees for this comment was unjustified since the comment was not threatening, was not directed at any individual, was made in a lighthearted tone, and was not perceived as threatening by anyone present.

Arbitrator Holley, after reviewing the facts and a number of prior awards and treatises, sustained the grievance. He first concluded that the Company had waived any reliance on the Union's delayed appeal to arbitration. He observed:

In thus matter, the Company fully participated in meetings after the Step 3, in selecting the arbitrator, and in establishing a place, time, and date for the hearing without mention of a procedural defect in the processing of the Grievance. Therefore, the conclusion is that the Company accepted the grievance and waive[d] its challenge to the Grievance procedural arbitrability.

On the merits, the Arbitrator found

In this matter, [Grievant] was not specific; he did not direct his words at anyone; no one considered his words to "be threatening", even his supervisor; no one called the police; he was not sent home immediately; he apologized for making the statements a short time after he made the statement. [Grievant] could not explain what he meant because it was a "stupid" comment, but short of a threatening comment.

Peco sought to vacate the award, both as beyond the jurisdiction of the arbitrator because of the Union's untimely appeal and as contrary to "public policy against violence and threatening behavior in the workplace." The District Court (here) and now the Eleventh Circuit (here) rejected these efforts. Both found that the decision concerning the Employer's waiver of the time limits to be within the authority of the arbitrator. The Eleventh Circuit concluded:

We therefore agree with the district court that the arbitrator was acting within his broad discretion to interpret and apply the terms of the Agreement in concluding that Peco waived its challenge through its conduct. See, e.g., Mosher Steel, 796 F.2d at 1366 (courts must "uphold an arbitrable award that is premised on the arbitrator's construction of the contract and his understanding of the intent of the parties") (quoting Drummond, 748 F.2d at 1497).

  Both the District Court and the Eleventh Circuit also rejected the Employer's public policy claim, noting that the Arbitrator had found that no "threat" had taken place.  On  this point, the Circuit noted:

Peco's public policy argument rests entirely upon its assertion that [Grievant's] comment about "throwing lead" was a threat of workplace violence. But the arbitrator found that [Grievant's] statement was not a threat of violence, and this Court is not permitted to second-guess the arbitrator's findings of fact. ...  That is because "[t]he parties did not bargain for the facts to be found by a court, but by an arbitrator chosen by them." ... Nor are we permitted to second guess the arbitrator's findings of fact merely because we are "inquiring into a possible violation of public policy."

While upholding the arbitrator's award, the Court refused the Union's request for attorney fees, finding the Company's appeal meritless but not frivolous.

Arbitrator Holley's award can be found here.