Arbitration Summary H Ed 10-02
Agency/Contract: TESC, Higher Education
Contract Article(s): Art. 27, Discipline-Just Cause
Arbitrator: Gary Axon
Action: 45- Day Suspension
Outcome: Grievance Sustained in Part, Suspension Reduced
Decision Date: 09/09/10
The issue in this case was whether the college violated the discipline article of the CBA when it suspended the grievant for 45 days based on allegations of insubordination, misconduct, egregious and threatening behavior. The grievant was a 25-year employee of the college with only one previous disciplinary action on wholly unrelated conduct.
The basic facts were undisputed. The grievant had been parking in the same location at the worksite for many years. The employer changed the space to “bicycle only” parking. The employer made this change without notifying the employee ahead of time. The grievant reported to work, and left his motorcycle in the space in question. Later that morning, the grievant’s supervisor told the grievant he had to move his motorcycle. The grievant declined, stating he had parked in that spot for years. The supervisor reiterated that the grievant needed to move the motorcycle immediately. The grievant declined and stated he would wait until he received a ticket and then go through the appeals process. Later the same day, the supervisor sent an email to the grievant reiterating he needed to move the motorcycle. Grievant went to move it, noted it had been ticketed, and so left it there for the remainder of the day. The next day, the grievant went to pay the fine and file an appeal and learned he was ticketed, because his supervisor had phoned the parking office and instructed them to ticket the motorcycle. Later that morning, the grievant attended a pre-scheduled, all-staff meeting during which he stood and talked about the ticket he had received the day before. The grievant made his displeasure with the incident aware to all the staff in attendance. The grievant became increasingly agitated and spoke directly to the supervisor who was also present. The grievant left the room, and all present were silent for a short period before the meeting resumed. The next day the grievant went to HR, where he was obviously angry with his department. Upon leaving the office, the grievant told a disturbing story regarding a childhood incident. The employer asserts the grievant then made a threatening statement regarding his supervisor. The union denies this.
The employer argued it proved by clear and convincing evidence the grievant engaged in insubordination and two incidents of work place violence. The employer argued the grievant was insubordinate when he failed to move his motorcycle after the supervisor ordered him to do so. The grievant was violent when he made threatening statements to his supervisor and then later to the HR employee. The employer asserted the argument of PTSD was insufficient to justify the employee’s misconduct. The employer was unaware of the diagnosis until after the misconduct occurred, and it was therefore not relevant to the inquiry anyway. The employer asserted that the arbitrator had to uphold its decision unless there was an abuse of discretion, which did not occur in this case.
The union argued the employer grossly overreacted by issuing a 45-day suspension. The union argued grievant’s failure to move the motorcycle was not insubordination because his supervisor had no authority or responsibility over campus parking. The union conceded that manner in which the grievant spoke was inappropriate during the all staff meeting, but the grievant felt picked on and responded emotionally. The union argued the behavior was later explained by a diagnosis of PTSD resulting from brutal harassment the grievant suffered as a child. The grievant took affirmative steps, outside of work, to address this issue. The union asserted the grievant never had any intent to harm anyone, and that his behavior was not a violation of the workplace violence policy. His statements were misconstrued.
The arbitrator determined the employer proved by clear and convincing evidence that the order to move the motorcycle was lawful and reasonable, and that the grievant was insubordinate when he refused to move it. With regard to grievant’s demeanor in the all-staff meeting and in the HR office, the arbitrator determined the grievant had acted in an excessive, highly inappropriate and disrespectful manner. The arbitrator found that the employer did not prove that the grievant’s two vague statements violated the Workplace Violence Policy.
The arbitrator found the grievant’s conduct to be highly inappropriate and deserving of a substantial penalty. The arbitrator determined that given the grievant’s 25-year discipline-free work record, a 14-day suspension was sufficient to ensure such conduct would not be tolerated.