Arbitrator concludes that the principle of double jeopardy prevails over a Last Chance Agreement.

Dana Incorporated has filed a Complaint seeking to set aside an award of Arbitrator Daniel Kininmonth. The Company alleges that the Arbitrator filed to apply a Last Chance Agreement that he found to be applicable and to have been violated, and in doing so acted in excess of his authority.

Grievant had been placed on a Last Chance Agreement following a prior termination for attendance issues. The LCA included a provision stating “You are expected to adhere to the general plant safety and general rules of conduct as well as the attendance policy.” The LCA also contained language that :

In the event that you violate the terms of this last chance agreement your employment is terminated, you will not have access to the grievance procedure unless there is a question regarding the legitimacy of the termination.

Full compliance with the requirements of this agreement constitutes your conditions of continued employment. Failure to comply with all of the terms and conditions will result in discharge.

On May 21, 2018, toward the end of grievant's shift, a stamping press jammed. The Production Supervisor instructed grievant to clean up his work area while the machine was down. At the end of grievant’s shift, the production supervisor was told by a Group Leader that grievant had not cleaned his work area. They both inspected the area and confirmed that it had not been cleaned. They also noted that grievant had not fully completed the "hour by hour " board, used to allow employees on the next shift to be aware of what had taken place during the preceding shift.

The Production Supervisor met with grievant the next day and told him he was issuing him two ‘write ups,’ consisting of two written warnings, the first addressing the failure to clean up his work area and the failure to fully complete the board, and the second concerning unexcused absences.

On May 23, 2018 emails were sent to the Company’s Human Resources’s Manager describing the issues related to the write-ups. The HR Manager concluded that grievant had violated the LCA and she notified the Union that grievant’s employment would be terminated.

That decision was grieved and submitted to Arbitrator Kininmonth.

The Company maintained that grievant’s conduct was contrary to the LCA, and that the LCA defined “just cause” in these circumstances.

The Union raised several claims, including a claim that language had been added to the LCA without its knowledge, that it should  have been limited to attendance issues, that the Company had failed to properly investigate grievant’s conduct, and that he had been subjected to double jeopardy when he had first received written warnings for his conduct but was subsequently dismissed. Arbitrator Kininmonth rejected all of the Union’s claims except for that related to double jeopardy.

The Arbitrator rejected the Company’s claim that he had no authority to consider the double jeopardy question:

The Company argues that "There is No Double Jeopardy in the Context of a Last Chance Agreement." "The claim of 'double jeopardy' is not an issue within the authority of the Arbitrator when called upon to interpret the terms of the 'Last Chance Agreement.' This contention is another of those 'mitigating factors' that have been removed from the consideration of the Arbitrator via last chance agreement." Glatfelter, 126 LA 1774, 1779, 09-2 ARB ¶4694 (Allen, 2009) (Company Brief, p. 12).This arbitrator disagrees with this quotation from the Glatfelter decision. Double jeopardy is not a "mitigating factor" which cannot be considered by the Arbitrator in reducing the penalty under the last chance agreement. Double jeopardy is an "affirmative defense," not a "mitigating factor." The arbitrator can consider "affirmative defenses." ... Thus, the arbitrator can overturn discipline which subjects the employee to double jeopardy under a last chance agreement.

Arbitrator Kininmonth concluded that grievant was subjected to to "Double Jeopardy" when he was terminated after being disciplined by a written warning. He noted that Double Jeopardy is a "component" of industrial due process. While recognizing there are several views among arbitrators concerning how to remedy due process violations, Arbitrator Kininmonth aligned himself with those who believe "unless there is strict compliance with procedural requirements and due process the whole action will be vacated and nullified."

In accord with that belief, he reversed the termination and ordered the grievant's reinstatement with back pay. 

 Update: The Court confirmed the Award of Arbitrator Kininmonth  
Issues related to Last Chance Agreements are also discussed in the following  posts:  Last chance agreement, double jeopardy and just cause - Court confirms award reinstating employee notwithstanding Last Chance Agreement

Recent Decisions - Last Chance Agreement, "substantive due process" and police use of force

Can an arbitrator disregard a last chance agreement?

Last chance agreement doesn't bar arbitration when union is not a party

Does employer provided alcohol mitigate an employee's intoxicated sexual harassment?

That was the issue presented to Arbitrator Robert E. Light in Aramark Uniform & Career Apparel and Teamsters Local Union No. 769.

Grievant was employed by Aramark as a Route Sales Representative. In acknowledgement  of his sales performance, he was invited to a Company recognition event consisting of a dinner and a limo to and from a Miami Heat basketball game. Alcohol was provided by the Company both at the dinner and in the limo.

While in the limo on the return from the game, grievant groped, touched and made sexual comments to another employee participating in the event. That employee, and another individual who was in the limo, testified and described the conduct of grievant. Grievant also testified, but said he could not remember much of what happened since he was already drunk when he went to the game.

The employee who was groped filed a complaint with the Company and, after an investigation, the Company terminated grievant's employment.  That action was grieved and submitted to Arbitrator Light for resolution.

While not condoning grievant's actions, the Union maintained that there were mitigating circumstances that called for discipline short of termination. It pointed to his approximately six years of employment with the Company, his clean work record, and his sales performance, including two years in which he was recognized as top sales person for the plant. It also noted  that the alcohol grievant was drinking had been supplied by the Company.

Arbitrator Light found at least some basis for the Union's argument, noting:

As was persuasively argued by Union counsel, the Company should have considered mitigation under these facts that would have led it to impose a lesser form of discipline. That is to say, as the facts reveal, the drinking that occurred in the limousine was due to the liquor being supplied by the Company. Does that fact in and of itself absolve the grievant from the conduct which he exhibited on the night in questions? The answer to that is no, however, it is a mitigating circumstance and must be taken into account by this arbitrator with respect to the penalty imposed upon the grievant. While it certainly does not absolve the grievant of the actions which he took, this arbitrator must take into account the aforementioned fact as well as the grievant's prior good record and the manner in which he testified at the arbitration hearing.

Arbitrator Light sustained the grievance in part, finding no just cause for termination but ordering grievant's reinstatement without back pay.

Aramark has sought to vacate the award (here), asserting that it is both contrary to the cba (which provides that "The Company shall not discharge or suspend any employee without just cause, excepting that no warning need be given employee before discharge if the cause for such discharge is ... sexual harassment") and to the "State's explicit, well-defined, and dominant public policy against sexual harassment in the workplace, and the affirmative duty of employers to implement that policy."

Another recently filed case also seeks to set aside an award reinstating an employee who had been dismissed for sexual harassment. In Welch Foods, Inc., A Cooperative d/b/a WELCH's v. General Teamsters, Local Union. 397, the Company seeks to vacate the award of Arbitrator Michelle Miller Kotula, asserting that it is contrary to public policy. Grievant had been dismissed as a result of his alleged conduct during a discussion with another employee. The discussion became heated, and grievant was alleged to have used "abusive, sexually explicit and derogatory language." The other employee involved was also initially dismissed but the Company later changed that to a two week suspension. Arbitrator Miller-Kotula found that grievant had " said inappropriate comments and used foul language during the incident" but concluded that the other participant had initially caused the argument and had also used inappropriate language. The Arbitrator reduced the termination to the same two week suspension that had been imposed on the other employee. The Company's complaint  alleges "The Award conflicts with and completely undermines the obligation of Welch's to prevent sexual harassment in the workplace and to apply sanctions against sexual harassment which creates a hostile or offensive work environment."

Update: The Aramark complaint has been dismissed with prejudice pursuant to the parties' settlement.

Arbitrator reverses termination for police officer's use of racial slur

Arbitrator Thomas Cipolla overturned the termination of a San Antonio police officer who had been captured on a body camera using a racial slur during an arrest. Arbitrator Cipolla's award can be found here. KSAT links to the video at San Antonio officer who repeatedly used N-word while arresting black man asks for job back.  

The facts of the incident were largely undisputed. The Chief described at the arbitration  hearing why he made the decision that termination was appropriate:

This particular incident puts -- would put not only [grievant], but the entire department at risk. How can you have an officer working in the community that is as diversified as here with African Americans as part of the population, after the public sees that he's out here calling people the N-word, the fucking N-word, to quote. It presents a liability to every officer out here who may hesitate to use force against an African American or person of color because of a charge of -- possible charge of bias or being racist or that this is a racist department. You have officers running around using the N-word, telling people they are being arrested because they're a fucking N-word. That is the most inappropriate language I have ever heard used during an arrest, especially to a minority.

Arbitrator Cipolla found that the evidence established a violation of the Department's Rules. He concluded that grievant's conduct brought "reproach and discredit" on both the grievant and the Department and that discipline was appropriate. However, while noting the severity of the offense, the Arbitrator found termination too severe in this instance. He cautioned that his decision should not be interpreted as coming from some "church of the second chance," but determined that:

At the end of the day, however, I find myself coming to the conclusion that the Appellant was off that day and said some awful things he should not have said and is now sorry for them. The Appellant was not himself that day and whatever set him off that day needs to be addressed. Perhaps the chaplain had some insight into the matter in that he believed the Appellant was pushed and goaded by citizen Robinson and said a lot of things he should not have said. As a longtime veteran in various police departments, this should not have happened to the Appellant. The Appellant should also know he will not be given another chance if he crosses this line again and should consider some anger management counseling and learn techniques to control himself. 

Arbitrator Cipolla converted the termination to a 10 month suspension and ordered grievant's reinstatement.

Similar issues are discussed in Several recent cases address use of racial epithets or biased statements by employees - on duty, off duty and on social media

Deferral to arbitration of charges raising issues under the "contract coverage" test announced in MV Transportation, Inc. 368 NLRB No. 66

In  MV Transportation, Inc., the NLRB decided that it would no longer apply the "clear and unmistakable waiver" test in resolving charges that an employer had made unilateral changes in matters addressed in a collective bargaining agreement.  Instead, it would follow the "contract coverage" standard applied by a number of circuit courts. In a press release announcing its decision, the Board summarized the distinction between the two tests.

Under the “contract coverage” or “covered by the contract” standard, the Board will examine the plain language of the parties’ collective-bargaining agreement to determine whether the change made by the employer was within the compass or scope of contractual language granting the employer the right to act unilaterally. If it was, the Board will honor the plain terms of the parties’ agreement and the employer will not have violated the Act by making the change without bargaining. If the agreement does not cover the employer’s disputed action, the employer will have violated the Act unless it demonstrates that the union waived its right to bargain over the change or that it was privileged to act unilaterally for some other reason.
Under the now-abandoned “clear and unmistakable waiver” standard, the Board would find that an employer’s unilateral change violated the Act unless a contractual provision unequivocally and specifically referred to the type of employer action at issue.

The General Counsel's Division of Operations Management has now issued guidance to the Regions concerning deferral of charges that raise issues potentially impacted by that decision. Memorandum OM 20-03.  Per the Memo, the Regional Office should first determine whether there has been an arguable violation of the Act, i.e. by a showing of a "material, substantial and significant change in a mandatory subject of bargaining without notice and a meaningful opportunity to bargain." If the Region concludes that there is no such violation the charge should be dismissed.

If there is an arguable violation, and the Union has filed a grievance over the same issue, the charge should be deferred under the Dubo procedures. Memorandum GC 19-03 Deferral under Dubo Manufacturing Company

If the Union has not filed a grievance, but the employer has committed to waiving procedural defenses to the filing and arbitrating of a grievance the Region may also consider deferral.

However, if both parties oppose deferral the Region should complete its investigation of the charge, including any defense that a proviso of the cba privileges the action, and the case should be submitted to the Division of Advice.