UNICCO Service Co. and IBT, Local 769

AAA 32 300 00484 06

October 17, 2006

Final Award

Introduction

The hearing in the instant case was held at the premises of the American Arbitration Association in Miami, Florida on August 22, 2006. The Company was represented by Katherine Joyce, Labor Counsel. Also in attendance for the Company was R. Trent Sevene, Esq., Director, Labor Relations. Ms. Irene Lopez ("the Grievant"), employed by the Company as a covered custodian, was represented by Stanton Orr, Esq., attorney for Teamsters Local Union No. 769 ("the Union"). Also present was Union Business Agent Eduardo Valero and an interpreter brought by the Union to translate for the Grievant.¹ The parties submitted post-hearing briefs on October 12, 2006.

Background and Issue

This matter arose from a grievance challenging the Company's decision to discharge the Grievant for allegedly engaging in insubordinate conduct in violation of a Last Chance Agreement entered into between the Grievant and the Company in resolution of a prior grievance/arbitration case.

Unfortunately, the parties differ as to the issue presented to the Arbitrator. The Company argues that the issue should be framed as follows: "Did the Grievant commit the alleged offense of insubordination in violation of the Last Chance Agreement dated December 28, 2005, thereby permitting, 'at the discretion of the employer' her immediate discharge? If not, what shall be the remedy?" The Union contends that the issue is the same as in a usual termination case: "Did the employer have just cause to terminate the grievant, Irene Lopez. If not, what is the appropriate remedy?"

It is clear from the language of the Last Chance Agreement (LCA) that the Arbitrator's authority is severely circumscribed in the instant case with respect to the severity of discipline imposed if he finds that the Grievant was guilty of insubordination. Accordingly, based on the terms of the LCA, the Arbitrator concludes that the sole issue before him is as follows: Whether or not the Grievant has committed the alleged offense of insubordination. If so, the Company's decision to terminate her cannot be altered by the Arbitrator. If not, she should receive no discipline at all. Hugo Bosca Co., 109 LA 533, 538 (Franckiewicz, 1997) ("Thus under the usual last chance agreement, the arbitrator's duty is limited to interpreting the last chance agreement and to determining the facts.").

Pertinent Contract and Last Chance Agreement Provisions

A. Collective Bargaining Agreement

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ARTICLE 4

MANAGEMENT RIGHTS

Section 1. It is recognized that the Employer retains all of its rights and prerogatives that it enjoyed prior to the signing of this Agreement, unless amended by the provisions of this Agreement, and not limited to the conduct and direction of the business, the operations of the Employer, and the direction of the working forces are vested exclusively in the Employer, except where expressly limited by provisions of applicable state or federal law.

Such rights include, but are not limited to the following:

1. To determine the nature and scope of its business operation;

2. To hire and fire employees under its supervision;

3. To organize and direct its work force;

4. To increase or reduce the work force in its discretion as sound business judgment dictates;

5. To assign, promote or demote employees under its supervision or control;

6. To lay off employees for lack of work;

7. To enact reasonable company work rules and regulations to promote safety and efficiency in operation;

8. To discipline employees, including issuing verbal and written warnings, suspensions or terminations.

It is the understanding of the parties hereto that, not withstanding the enumeration of the foregoing rights of Management, the Union recognized that Management has certain residual rights that are vested and though not expressly mentioned nevertheless they have not been ceded or limited to virtue of their omission. Management recognizes and agrees to exercise its rights consistent with its obligation under all applicable state and federal law.

Section 2. The parties agree that this Agreement contains all of the provisions subject to the negotiations and is complete in its form and content.

...

ARTICLE 8

GRIEVANCE AND ARBITRATION PROCEDURE

Section 2. Either party shall have the right then to promptly file for arbitration with the American Arbitration Association according to their rules and regulations. If the parties are unable to mutually agree upon an impartial arbitrator within five (5) working days after the notice of appeal to arbitration, the parties shall then request a panel of impartial arbitrators from AAA. An arbitrator shall be selected by the AAA according to their rules and procedures.

The decision of the arbitrator shall be final and binding upon the grievant, the Employer and the Union. The cost of the arbitration assessed by the AAA and the fees of the Arbitrator shall be borne equally by the Employer and the Union.

The arbitrator shall have no authority to add to, subtract from, modify or alter the agreement in any way. The arbitrator shall submit his/her decision within thirty (30) days of the hearing unless time extended by mutual agreement of the parties. The expense of the impartial arbitrator shall be borne equally by the Employer and the Union. In computing the time limits in this Article, Saturday, Sunday and designated holidays shall not be included.

Section 3. Failure of an employee or the union to meet any time deadline at any Step of this Grievance Procedure shall constitute a waiver of the grievance and no further action may be taken on it. Time is of the essence, but any time limits in this Article 8 -- Grievance Procedure can be mutually waived in writing.

Section 4. A grievance concerning the interpretation or the application of the Agreement initiated by the Employer shall be discussed with the Union and may thereafter be submitted to arbitration by the Employer within thirty (30) days after the Employer knew or should have known of the grievance. The demand for arbitration shall be in writing and a copy shall be sent to the Union.

Section 5. In the case of any time periods in this Article 8 Grievance Procedure which are seven (7) working days or less, Saturday, Sunday and/or Employer holiday, the final day of the time period shall be the next business day.

ARTICLE 9

DISCHARGE AND DISCIPLINE

Section 1. Management shall have the right to discipline, including discharge for just cause. The employer recognizes the concept of progressive discipline and will apply it in situations where appropriate. Only situations involving serious misconduct shall result in discharge without prior warning. Disciplinary action including discharge shall be subject to the grievance provisions of this Agreement.

Section 2. The Employer recognizes the concept of progressive discipline for disciplinary offenses. All disciplinary actions, including warnings or suspensions shall not be used as the basis for further disciplinary action after six (6) months if the employee has not received any disciplinary action during the previous six (6) month period.

Discipline will consist of up to five (5) steps for minor offenses:

1. Documented verbal warning

2. First written warning

3. Second written warning

4. Suspension or Final written warning

5. Termination

Major offenses not subject to the five (5) step procedure include but are not limited to fighting, theft, airport security violations, falsification of Company records such as time cards, timesheets using illegal drugs or alcoholic beverages during work hours on Airport property.

Proceedings through the foregoing discipline steps, subject to the grievance procedure, shall constitute just cause.

The type of discipline imposed in any instance depends on the nature and seriousness of the offense involved.

In case of discharge, an employee may request to have a Union Representative present before the actions become final except when circumstances require immediate action. Should the employee desire to contest discipline or termination, the matter shall be processed under the grievance procedure. The Employer shall give the employee and the Union a written notice as to the reasons for termination. The shop steward shall receive copies of all disciplinary notices.

B. Last Chance Agreement

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Section 5: The Grievant expressly agrees that as a condition of employment she will strictly observe and abide by all established company rules, policies and procedures and that she will refrain from disciplinary infractions including, but not limited to: acts of insubordination, theft or unauthorized possession of property and/or falsification of Employer documents. The Grievant further acknowledges and agrees that her failure to adhere to these strictures may subject her to termination at the Employer's discretion;

Section 6: If the Grievant is discharged during the duration of this Agreement and she elects to challenge her discharge at arbitration, the Employer and the Union explicitly acknowledge and agree that the sole issue to be decided by the arbitrator shall be whether or not the Grievant has committed the alleged offense and that the arbitrator shall have no power to modify, alter or reverse the discharge. If an arbitrator determines that the Grievant did not commit the alleged offense, he or she shall enjoy the full remedial authority conferred by Article 8 of the CBA.

Discussion

As is typical of last chance agreements, the LCA in the instant case contemplates that, during its term, the Grievant will "strictly" abide by all company rules, polices and procedures and severely restricts the Arbitrator's powers to reduce disciplinary action if he finds an offense occurred. As the Company points out, employers would be hesitant to utilize this method of grievance resolution if they felt the negotiated terms of last change agreements could be circumvented or ignored. It is entitled to expect the Arbitrator to enforce the LCA's terms, and, if he fails to do so, other bargaining unit employees could suffer the consequences in future disciplinary cases. Kaydon Corp., 89 LA 377, 379 (Daniel, 1987) ("Arbitrators encourage such progressive programs of salvage and rehabilitation by strict enforcement of such 'last chance agreements' in accordance with the terms which the parties, including the employee, have been willing to accept. However harsh or strict such terms and even though the arbitrator might well regard such conditions as unfair, that cannot be his concern.").

The LCA expressly provides that the Grievant will refrain, inter alia, from acts of insubordination. However, although the provisions of the LCA apply in this case, and the Arbitrator's role is primarily that of fact-finder, the Arbitrator agrees with the Union that burden of proof remains with the Company to establish by a preponderance of the evidence that the alleged offense occurred. See e.g. Holland Die Casting & Plating Co., Inc., 48 LA 567. Thus, the Arbitrator must decide whether the Company has proved that the Grievant committed insubordination by her actions on April 19, 2006.²

The Company has a contract to perform maintenance services at the Miami-Dade Count International Airport. On April 19, 2006, the Grievant was assigned to perform janitorial services at Concourse G of MIA. Her specific assignment was to clean one half of Concourse G. Another employee was assigned responsibility for cleaning the other half of Concourse G. The cleaning work of the custodians includes putting trash into bags to be eventually transported to the outside dumpster on the first floor and placed inside.

This dispute in this case arose from a disruption of the Grievant's usual cleaning routine. The co-worker who usually worked with the Grievant carried the trash bags generated by both himself and the Grievant to the outside dumpster. Unfortunately, he was absent on April 19, and his temporary replacement, although removing his own trash, declined to take out the trash bags the Grievant had accumulated. The Grievant insisted that it was his "a man's" job to carry all of the trash bags, including hers, to the dumpster, but her co-worker adamantly refused to do so. Evidently she then complained to the Company's First Shift Manager, Chremeze St. Aime, who the Grievant claims looked for the employee to tell him to take out all of the trash bags³, but there is no evidence that St. Aime ever actually instructed the co-worker to remove the Grievant's trash bags.

There are several factual disputes between the parties over how the Grievant's argument with her co-worker escalated into a confrontation with her superiors and whether she understood that her immediate supervisor, Gerardo Guevera, had given her an order to remove her own trash bags. Moreover, the Company's witnesses testified that the Grievant's initial argument with Gerardo Guevera was at 12:45 p.m. and that after she and Guevera went to St. Aime's office she left the job at 1:09 p.m.,⁴ while the Grievant testified that the events in question occurred somewhat later.⁵ Nonetheless, many of the material facts as to what transpired on April 19, 2006 are undisputed, and, to the extent they are in dispute, for reasons the Arbitrator will discuss, he need not resolve those factual conflicts to decide this case. Indeed, for the most part, the Arbitrator will simply refer to the Grievant's own testimony and prior written statements to determine whether the Grievant was insubordinate.

As hitherto noted, the Grievant testified that the events leading to her discharge began when the male replacement for her usual co-worker refused to carry down her trash bags to the first floor container. She said that she called St. Aime to complain, that he responded by asking her to tell the other employee to take down the trash, but that she told him that he should give the order to the co-worker as he would ignore her. According to the Grievant, St. Aime then went to her work location and asked where the other employee was so that he could instruct him to take out the trash; that he walked to the men's bathroom where she directed him; and that he did not return.

She stated that she was then approached by Guevera, who was obviously upset, but that she could not understand what he was telling her, so she asked him to go to the office with her to see St. Aime so she could find out what he was saying.⁶ Upon arriving there, she testified that St. Aime discussed the situation and finally told her that Guevera had told her to take the trash bags to the first floor container and that she must do so. She said that she responded by pointing out that the work was a man's job, that she does not normally transport trash bags to the container, that the bags were heavy, that it was raining and she did not want to injure herself by slipping and falling, and that it was late (past 1:15 p.m), that she would have to wait in line to punch out, and her husband was waiting for her. She said that she never "refused" to take the trash bags to the container, and that she left without thinking that there was any problem with her doing so.

Thus, to summarize her testimony, the Grievant gave the following various justifications for her failure to take the trash bags to the first floor container: (1) that it was a "man's job" to transport the trash bags to the large container on the first floor and that she had never had to perform that task in the past; (2) that she did not understand Guevera and therefore did not know he had ordered her to remove the trash; (3) that the trash bags were too heavy; (4) that it was raining and, particularly because of a prior injury she suffered on the job, she did not want to slip and fall; (5) that there were 10 to 15 trash bags⁷ she would have had to carry down to the container, and thus she would have had to make several trips; (6) that she was running late and her husband was waiting on her to give her a ride home; (7) that she did not think she had done anything wrong and she would not have left if she had realized that the company would take the position that she was insubordinate; and (8) that she never actually refused to take out the trash.

Regarding the allegation that she had left her job earlier than she should have, she testified that she left at or after 3:15 p.m., and that she was simply acting in accordance with the company practice of allowing employees to wash up and go to the time clock 15 minutes before the official 1:30 p.m. end of her shift. She denied ignoring an order from St. Aime not to leave until she transported the trash bags, and said she did not think there was a problem or she would not have left.

There is some support for the Union's contention that the Grievant did not understand Guevera's initial order to take out the trash. It was obvious at the hearing that he is very difficult to understand because of a speech impediment, and it is conceivable that at first the Grievant did not understand his directive. Furthermore, it is undisputed that there is a Company practice of normally permitting the bargaining unit employees to leave their work stations 15 minutes before the shift ends in order to clock out, and therefore, even if the Company's timetable was accurate, the Grievant would have left the job, at most, only 6 minutes early (1:09 p.m.), arguably de minimus if just a one-time occurrence.⁸ If this case simply involved a dispute over whether the Grievant understood Guevera's order to take out the trash, or whether she left work too early, the Union's position that the Company did not prove the Grievant violated the LCA might well have merit.

However, the two letters the Grievant wrote to the Union protesting her treatment by the Company make it clear that the Grievant was well aware, when she spoke to St. Aime just before leaving work, that St. Aime was ordering her to take out the trash and not to leave until she did so, but that she decided not to comply with his orders and left anyway. In her first letter, evidently written shortly after the event occurred, the Grievant asserted that

I wanted to speak to Chremeze [St. Aime] to tell ask him for the paper to sign out but he told me to hold on because he was on the phone. When he was done on the phone he told me that Gerardo [Guevera] said that I had to throw the garbage away. So I said since Aitiano did not want to do it, now they are going to male me do it. Chremeze said that Gerardo said it so that she had to do it. I told him that he never told me to do it at all, I worked whith my co-worker and he use to do it. so they told me I had to do it and to go with Gerardo, I said I can't I am already late and I still had to go to E and make the line, so I told him to please give me the paper to to sign and he told me no, so I told him that look is raining its getting lateand my husband is picking me up. So he said that he was going to accuse me of leaving work while on duty, so I said I was not leaving yet I still have to punch out in E-, well I went like at 1:15 p.m. and got to to E at 1:23 pm and Aitiano was sitting there waiting. [typos in original translation uncorrected].

In her second letter, written after her termination, she repeated, "Than when it was already late to leave I was going to clock out Chremize tells me that I have to throw the garbage away, so I explained to him that it was not my job to throw it away, that it was Aitiano's job to do it, and besides it was raining I could of fallen and it was already time to leave. Everyone was already leaving and my husbands was waiting for me because we had to go to the doctor." [typos in original translation uncorrected].

Thus, the thrust of the Grievant's letters was not that she was unaware she was given an order, but rather that management had treated her unfairly by ordering her to do a job normally done by her male co-worker, and that it was especially inappropriate to give her such an order just before the end of her shift. In short, she attempted to justify her refusal to abide by St. Aime's orders by contending that she should not have had to comply with them under the circumstances, but it is patently clear she knew that St. Aime had given her orders he expected her to follow. She herself acknowledged in her second letter that St. Aime told her "he was going to accuse me of leaving work while on duty." Her own statements belie the Grievant's claim that she did not know St. Aime would have a problem with her leaving without taking the trash to the dumpster.

The Arbitrator can find nothing in the record demonstrating that management exceeded its authority under the Management Rights clause by giving the Grievant the order to transport the trash to the first floor container, even if her customary male coworker had always performed that task in the past⁹, and by insisting that she remain on the job until she had completed that chore. Furthermore, even if the Grievant had felt that the orders she received from management were improper, her remedy would have been to comply with those orders and then to seek redress through the grievance procedure -- a well-known doctrine in arbitration cases known as the "obey now-grieve later" rule.

This doctrine is widely enforced by arbitrators in, for instance, insubordination cases involving a direct order concerning the manner in which work is to be done. E.g. Quaker Oats Co., 69 LA 727 (H, Jr., Arb., 1977) This is to assure that a grievant's contentions with respect to the impropriety of the order given him are heard in the grievance procedure rather than on the plant floor. But, there is no indication that the doctrine is limited to orders about the direction of work and the same doctrine has been applied in cases where a grievant maintained that he could not be compelled to work additional hours. E.g. Freeman Decorating Co., 110 LA 331 (A, Jr., Arb., 1998). The reasoning would be the same in either situation, i.e. to have the underlying issue settled in the grievance procedure, not in a "you will -- I won't" dispute on the plant floor. Johnson Controls Battery Group, Inc., 2005 WL 3675757 (Jerry A. Fullmer, 2005). See e.g. Virgin Island Tel. Corp., 101 LA 273, 278 (Nicholas, Jr. 1993).

The Union has demonstrated that it is willing to vigorously and competently pursue grievances on the Grievant's behalf, and the Union undoubtedly would have challenged the validity of the orders she was given if it believed they were unfair. The Grievant's decision, instead of grieving the issue with the aid of the Union, to refuse to comply with those orders was an unjustified form of self-help¹⁰ and was extremely unwise at a time that she was subject to the stringent terms of a LCA.

For the reasons discussed herein, the Arbitrator is compelled to find that the Grievant committed an act of insubordination in violation of the Last Chance Agreement.

Conclusion

The grievance is denied.

¹Two other Union representatives sat in for part of the hearing.

²In addition, the Company contends that her offense was compounded because she not only refused to obey management's orders but also left her work earlier than she was entitled to that day.

³St. Aime's testimony differed from the Grievant's on this point, and the Arbitrator found the various versions of what occurred prior to the final confrontation between the Grievant and St. Aime to be somewhat confusing and contradictory. However, as will be discussed in more detail herein, it is unnecessary to resolve these factual disputes.

⁴This timing is relevant to the question of whether the Grievant left the job early.

⁵The Arbitrator notes that the Grievant's testimony not only differed from four other witnesses on this point but also was, in some respects, self-contradictory.

⁶Guevera, on the other hand, testified that he told the Grievant to carry out the trash bags but that she refused, and that was why they approached St. Aime.

⁷The Company disputed this assertion, saying that the Grievant was exaggerating the number of trash bags that needed to be deposited in the dumpster. Apparently these trash bags are transported to the dumpster by using a cart. The Union contends that a preexisting injury made it impossible for the Grievant to remove the trash bags, but this was not among the justifications that the Grievant proffered in her letters for failing to carry out the trash.

⁸There is nothing in the record to indicate that the Grievant routinely left her job early.

⁹The Company cannot legally adopt the distinction, advanced by the Grievant, that removing the trash was a "man's job" rather than a "woman's job." Under that theory, the Company could not hire two women to clean the concourse, as neither could perform the necessary task of taking the trash bags to the outside dumpster. Such a Company policy, requiring that at least one custodian per concourse be male, would be a blatant form of sex discrimination.

¹⁰Although the Grievant testified that one reason that she did not want to carry the trash bags to the container was because it was raining and she was afraid she might slip and fall, the evidence does not establish that the weather was sufficiently harsh to invoke the safety and health exception to the "obey now-grieve later" rule. Indeed, the April 2006 Local Climatological Data report introduced into evidence indicates that it was not raining at the airport the day of the incident.