Agency/Contract: DOT/GG 2007-2009

Contract Article(s): Art. 27 (Just Cause)

Arbitrator:  David Stiteler

Action: Termination

Outcome: Grievance Sustained with No Back Pay Award, 07/14/2010

The issue in this case was whether the employer had just cause to terminate a 15-year employee who at the time of his termination was a maintenance technician 3. He was dismissed for performance issues, violation of the workplace violence policy, and assertions by the grievant he would not satisfy his performance obligations in the future.

The employer argued the grievant had failed to perform to expectations.  The employer also argued the grievant made inappropriate comments to an impartial investigator, which violated the employer’s workplace violence policy. Lastly, the employer asserted the grievant was unwilling to meet the expectations of his position, and that he made it clear he had no intention of changing.  The employer argued there were no due process violations, and that the investigation was fair, thorough and impartial.

The union argued the employer did not have just cause because the employer failed to prove the alleged performance issues and violated the grievant’s due process rights by using information grievant provided to the investigator as a basis for discipline.  The union asserted the grievant did not violate the workplace violence policy because his comment was facetious and borne of frustration.  Furthermore, it was unfair to hold the comment against the grievant because he had been invited to speak freely to the investigator and was then disciplined for doing so.  The union argued there was no proof of performance deficiency and that the grievant was just guilty of making sarcastic comments.

The arbitrator determined the employer proved the charges of performance deficiencies.  The arbitrator found that the grievant had made the statements alleged to the investigator, but there was no reason to conclude that the statements were made seriously.  That notwithstanding, the arbitrator determined the grievant violated the workplace violence policy.  The arbitrator found the evidence supported the charge that the grievant was unwilling to meet the standards of conduct and performance of his job.  However, the arbitrator determined there were serious due process deficiencies, which prejudiced the grievant’s rights and which were fatal to a determination that just cause existed for discharge.  Specifically, the employer took no meaningful action for several years despite the grievant’s worsening attitude.  The arbitrator found that while the grievant may have had notice of the expectations of his job, it was not clear he had notice of the consequences for failing to meet the expectations because the employer tolerated the behavior for years before it acted.  The arbitrator found that the investigation was flawed because the grievant was not told part of the reason for the investigation was that a complaint had been filed against the grievant.  Therefore, it was not clear to the grievant he was entitled to representation, and perhaps should have had a representative with him.  The arbitrator also found that two of the charges were stale, and the employer was not timely in addressing them.

The arbitrator ordered the grievant reinstated but without back pay, subject to his passing a fitness-for-duty examination.