ibt local 391 and johnson controls 5-2-03
DESCRIPTION
Arbitration opinion of E. Frank Cornelius, PhD, JD, in IBT Local No. 391 and Johnson Controls, Inc., which was published in 03-1 ARB 3467, 31 LAIS 292, 103 LRP 41470 (Cornelius Arb 2003). For additional information, visit www.arbitrator.com.TRANSCRIPT
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FEDERAL MEDIATION AND CONCILIATION SERVICE In the Matter of the Arbitration between FMCS No. 02-15935 IBT LOCAL NO. 391, Union, and JOHNSON CONTROLS, INC., Company. _______________________________/
OPINION OF THE ARBITRATOR
May 2, 2003
After a Hearing Held March 20, 2003 In Greensboro, North Carolina
For the Union: George Phillips Business Agent and Organizer Teamsters Local 391 PO Box 35405 Greensboro, NC 27425
For the Company: Allan P. Clark Foley & Lardner Attorneys at Law PO Box 240 Jacksonville, FL 32201-0240
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Introduction
This is a case of alleged fraud in obtaining unemployment benefits
from the North Carolina Employment Security Commission (“NCESC” or
“Agency”). Following an incident on June 25, 2001, in which Grievant was
accused of clocking in late and leaving early, he was terminated by his
employer, Johnson Controls, Inc. (“Company”). Grievant was employed at
the Company’s battery manufacturing facility in Kernersville, North
Carolina, often referred to as the Winston-Salem Plant because of its
proximity to that city. He was a member of Teamsters Local 391 (“Union”).
On July 3, 2001, Grievant filed for unemployment benefits.
After a third-step grievance meeting about Grievant’s termination, he
was reinstated on July 11, 2001, with 6 days’ back pay, under the terms of a
letter agreement (CX 9). Despite his return to work, he continued to file for
and receive unemployment benefits. He filed for the benefit weeks ending
7/7/01, 7/14/01, 7/21/01, 7/28/01, 8/4/01, and 8/11/01, and received benefits
in the amount of $375 per week, totaling $1,875 (CX 10, CX 14, CX 16).
For the payroll periods ending 7/1/01, 7/8/01, 7/15/01, 7/22/01, 7/29/01,
8/5/01, and 8/12/01, the Company paid him $513; $155; $1,027; $1,117;
$1,078; $758; and $1,059, respectively (CX 12, CX 13). The payment of
$1,027 for the payroll period ending 7/15/01 represented back pay per the
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agreement of July 11 (TR @ 72).
On September 10, 2001, Philip Gilbert, the Company’s manager of
human resources, received a call from the Company’s third-party
unemployment claims administrator in Washington, DC, informing him of a
hearing on the Company’s appeal of Grievant’s unemployment benefit claim
(TR @ 44-45, “you all’s appeal to it”). This was the first time that
management at the Winston-Salem Plant became aware that Grievant had
filed for unemployment benefits. The circumstances surrounding this appeal
are inexplicably vague; indeed, according to the HR manager, even the third-
party administrator knew nothing about the appeal (TR @ 45, “I have no
idea”).
On September 19, 2001, a telephonic hearing was held by an NCESC
hearing officer. Because Grievant could not be reached, only the HR
manager and the hearing officer participated. The HR manager informed the
hearing officer that Grievant was employed by the Company and asked the
officer for guidance. The officer responded that the Company should report
the matter to NCESC’s fraud division. No evidence of the officer’s
resolution of the appeal was presented at the arbitration hearing.
The Company did not react immediately, because it needed time to
conduct an investigation. Grievant was told not to report to work on Sunday
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evening, September 30, 2001, but to come in for a meeting on October 2,
2001. The meeting was attended by Grievant, the shop steward, Grievant’s
department manager, and the HR manager. When confronted with
information obtained from the NCESC and from the Company’s payroll
department, Grievant responded in a manner unsatisfactory to the Company
(CX 15). He was suspended pending investigation. The Company put
information about Grievant’s unemployment benefits and earnings in a letter
to the Union, dated October 4, 2001 (CX 16).
Another meeting was held on October 5, 2001, again attended by
Grievant and the shop steward. This time Grievant was terminated with the
explanation:
Mr. [DT] was making false unemployment claims and received max unemployment compensation pay during the time he was gainfully employed w / Johnson Controls, Inc. Winston-Salem Plant. CX 17.
The parties stipulated that a grievance, # 773, was filed, but the
paperwork was lost. A third-step meeting was held on October 10, 2001, at
which Grievant was well represented by the Union. According to notes taken
by the HR manager (CX 18), the Union urged that Grievant be allowed to
repay NCESC for any overpayment and be reinstated to his job. “The Union
would be flexible as to guidelines of reinstatement.” The Company denied
the grievance by letter dated October 19, 2001 (JX 3).
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In a letter dated October 23, 2001 (JX 4), the Union demanded
arbitration. Contract negotiations intervened and lasted some 4 months (TR
@ 84). In a letter dated September 9, 2002 (CX 19), the Union requested a
panel of arbitrators from the Federal Mediation and Conciliation Service.
The HR manager drafted, but did not send, a letter to the Union, dated
September 26, 2002 (CX 20), in which he wrote, “Company considers
Grievance # 773 to be Untimely under Section 6.06 of CBA.” The parties
discussed timeliness in a telephone conversation on October 2, 2002.
An arbitration hearing on the merits was held on March 20, 2003, at a
neutral site in Greensboro, North Carolina. The Company again raised the
issue of timeliness (TR @ 6), to which the Union responded (TR @ 7). The
parties have briefed the issues, the first of which to be decided is the
threshold one of procedural arbitrability.
The Threshold Issue Of Arbitrability Section 6.06 of the collective bargaining agreement between these
parties (JX 1 or “CBA”) provides in pertinent part:
The Employer and the Union agree that arbitration cases shall be presented to the arbitrator in chronological order unless changed by mutual consent. The case must be opened within six months of date following the third step of the grievance procedure.
The CBA does not explain precisely what steps must be taken to open a
case.
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There is no debate that far more than 6 months elapsed between the
time of the third-step meeting and the Company’s written denial, and the
Union’s request for an FMCS panel. The Company claims that it expressed
to the Union a desire not to continue discussions about this matter. The
Union claims that the parties have a practice of continuing discussions
beyond the 6-month period specified in the CBA, so long as a timely
demand for arbitration is made under § 6.04 (“within ten (10) working days
after the receipt of the written answer … in Step 3”).
At the arbitration hearing, the testimony as to a fixed deadline was not
very emphatic. For example, the HR manager testified as follows:
It was sometime in October/November [2002] I did mention to him about the timeliness and I was, you know, surprised that this had been this long. I kind of understand due to the fact we had negotiations. But we hadn’t heard anything. Mr. Phillips [the Union’s representative in arbitration] is right, we do talk about cases going forward. But this one we had not talked about for – since we had gave him the third-step answer and he had said arbitration. And we told him we were – we were done with it. TR @ 86.
And I just talked to him about the timeliness of moving grievances forward and that we thought this – this grievant was a moot point because we had not talked about it. And, you know, Mr. Phillips, understand, response was we’ve both been busy with negotiations and all that. We wished we could move forward quicker, but this is where we’re at. And I said I understand. TR @ 88.
See also TR @ 116-119. A deadline for arbitration, like any other provision of a collective
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bargaining agreement, must be enforced when clearly applicable. Elkouri &
Elkouri, How Arbitration Works (ABA/BNA 5th ed 1997) @ 276-277.
However, circumstances may create flexibility, especially where, as here, the
parties have a history of continuing discussions beyond deadlines. While
contract negotiations may not toll time limits in a collective bargaining
agreement, their pendency may explain a lack of timeliness. When the issue
of timeliness arose, the Company did not take a strong stand.
“It has been held that doubts as to the interpretation of contractual
time limits or as to whether they have been met should be resolved against
forfeiture of the right to process the grievance.” Elkouri & Elkouri, supra @
277; footnote omitted. This arbitrator has been quoted as opining:
If at all possible, disputes should be resolved on the merits and procedural violations should be addressed separately, in order to maintain public confidence and protect the integrity of the dispute resolution process. Employee Benefits Law (ABA/BNA 1991) @ 759, quoting Oolite Industries, Inc and Central States, Southeast and Southwest Areas Pension Fund, 8 EBC 2009, 2026-2027 (Cornelius Arb 1987).
Based upon such considerations, the arbitrator concludes that the
instant dispute is arbitrable. If the Company wishes to halt the practice of
continuing discussions beyond deadlines generally or in particular cases, all
it has to do is to inform the Union in writing, as soon as it receives a demand
for arbitration, that it will insist upon strict compliance with the time limits
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in the CBA. Elkouri & Elkouri, supra @ 277-278.
The Company’s Position
In CX 17, the Company cited 3 violations of Plant Rules (JX 2) as
giving it just cause to terminate Grievant:
Mr. [DT] is being terminated for violation of a Plant “C” Rule #2 “Stealing” Plant “C” Rule #3 “Falsifying records or intentionally giving false information to anyone whose duty it is to make records.” Mr. Timmon’s also violated a Plant Rule #1 “Other actions or offenses detrimental to the welfare of the Company or anyone associated with the Company.”
The most serious offenses are listed in the “C” Rules. Violation of a “C”
Rule may result in immediate discharge.
The Company alleges that Grievant committed fraud in continuing to
draw unemployment benefits after he returned to work. The Company feels
that it was duped into paying Grievant twice, once in the form of wages and
a second time in the form of unemployment benefits charged to its account
with the NCESC. It offers the Agency’s Claimant Information and
Identification Booklet (CX 11 or “NCESC Booklet”) as evidence of
Grievant’s wrongdoing. The Company argues that it suffered a negative
financial impact when Grievant’s unemployment benefits were charged to its
account. The Company insists that he is guilty of stealing and that it
accordingly had just cause to fire him.
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The Union’s Position
The Union takes the position that the underlying dispute is between
Grievant and the NCESC, not Grievant and the Company. It argues that the
Company has no right to discipline him for events occurring outside the
workplace. The Plant Rules are just that—rules governing conduct on the
job. The Union emphasizes that the NCESC has not ruled that Grievant
committed any kind of fraud and has not even requested any money back
from him. It requests that Grievant be reinstated and made whole.
Initial Observations
At the outset of the discussion, it is worth noting that two of the
Company’s underlying assumptions about this case are simply incorrect.
First, while the Company makes a plausible case that Grievant is guilty of
“stealing” from it, as a technical legal matter, he could not possibly be guilty
of such an offense. The Company pays unemployment taxes to the State of
North Carolina. Once those taxes are paid to the State, the money no longer
belongs to the Company.
Thus, Grievant did not steal, and could not possibly have stolen, from
the Company. Plant Rule “C” #2 by its express terms is limited to “[s]tealing
… Company property”. All of Grievant’s unemployment benefits were
obtained from the State of North Carolina. It wasn’t the Company’s money.
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As a result, the Company’s first reason for terminating Grievant cannot be
upheld.
The second important point worth noting is that the Company need
not suffer any loss as a result of Grievant obtaining unemployment benefits
to which he was not entitled, whether he acted innocently or fraudulently. As
pointed out above, the Company itself introduced the NCESC Booklet,
which refers the reader to the Agency website, www.ncesc.com. On that
website appears the following statement, under “Fraud Prevention and
Detection”:
No overpayment of benefits, whether fraudulent or nonfraudulent, is charged to an employer’s account. http://www.ncesc.com/business/UI/UiOverview2.asp.
Company witnesses spent a great deal of time speculating as to how
the Company may have been harmed by Grievant’s actions, although none
of the testimony was persuasive, because no one had any personal
knowledge of the rate-setting process for unemployment insurance taxes.
There is no evidence of any financial injury to the Company. The important
point to be realized here is that the Company could not have had its account
charged with Grievant’s benefits or experienced any increase in its
unemployment taxes as a result of those benefits, had it obtained a ruling
from the NCESC that Grievant was not entitled to them.
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Limitations On The Arbitrator’s Authority
In ruling upon the Union’s objection, that the Company and
derivatively the arbitrator lack authority to determine Grievant’s
unemployment compensation rights, the arbitrator is persuaded by the
following considerations:
1. North Carolina’s Employment Security Law, General Statutes Chapter
96,1 is a comprehensive and reticulated statute, the administration of
which is entrusted to the NCESC. Cf. Nachman Corp v Pension Benefit
Guaranty Corp, 446 US 359, 361 (1980) (describing ERISA as “a
comprehensive and reticulated statute”).
2. The CBA contains no provision expressly authorizing the Company to
rule on an employee’s rights to unemployment compensation. The
Company concedes that a determination of eligibility for benefits is for
the State to make (TR @ 103).
3. The Company has no expertise to interpret and apply the State’s
Employment Security Law. Moreover, the Company failed to cite any
statutory provision or regulation which it claimed Grievant violated but
relied solely upon the NCESC Booklet to justify its action.
4. The Company concedes that Grievant was entitled to some
1 http://www.ncga.state.nc.us/statutes/generalstatutes/html/bychapter/chapter%5F96.html. Regulations may be found at https://www.ncesc.com/pmi/government/governmentmain.asp.
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unemployment compensation because it fired him (TR @ 47, 110).
Thus, the issues are not cut-and-dried. It may be that an employee’s
unemployment benefits are not offset dollar-for-dollar by wages earned
or that he is allowed to continue drawing benefits for a period of time
after returning to work. There are no facts or law in the record on these
issues, and the NCESC Booklet is too superficial to address them.
5. Section 6.05 of the CBA narrowly prescribes the arbitrator’s authority:
The arbitrator shall not have the power to add to, ignore or to modify any of the terms and conditions of this Agreement. His decision shall not go beyond what is necessary for the interpretation and application of this Agreement or the obligations of the parties hereunder. He shall justify each award by written decision and explanation of the rational[e] of said award within thirty (30) days after the close of the hearing (which may include the filing of briefs). (Emphasis supplied.)
6. While parties may submit to arbitration virtually any dispute they
please, including one over applicable law, Elkouri & Elkouri, supra @
516-524, in this case neither Grievant nor the Union has agreed to
submit the issue of his unemployment compensation rights to
arbitration.
Based upon these considerations, the arbitrator concludes that neither
the Company nor he is authorized to determine Grievant’s rights to
unemployment compensation. Those rights must be determined by the
NCESC and courts with jurisdiction to review decisions of that Agency. To
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date, the NCESC has made no determination. The arbitrator does not want to
be put in the unenviable position of ruling on Grievant’s eligibility for
benefits, only to have the State’s duly authorized Agency reach a different
conclusion.
The Company’s Rights
In this case, the Company arrogated to itself the right to act as
prosecutor, judge and jury with respect to Grievant’s unemployment
compensation rights. While the Company may have exceeded its authority, it
does not follow that it is helpless to protect itself against questionable
unemployment claims. Section 2.01 of the CBA expressly grants to the
Company the right “to suspend, discipline or discharge employees for just
cause” and “to make plant rules and regulations”. Its rule-making authority
is reaffirmed in § 14.03.
Grievant’s conduct occurred outside the workplace. The law regarding
an employer’s right to discharge an employee on the basis of such conduct is
explained in Elkouri & Elkouri, supra @ 896-898:
The right of management to discharge an employee for conduct away from the plant depends upon the effect of that conduct upon plant operations. In this regard, Arbitrator Louis C. Kesselman explained in one case:
The Arbitrator finds no basis in the contract or in American industrial practice to justify a discharge for misconduct away from the place of work unless:
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1) behavior harms Company’s reputation or product ***
2) behavior renders employee unable to perform his duties or appear at work, in which case the discharge would be based upon inefficiency or excessive absenteeism ***
3) behavior leads to refusal, reluctance or inability of other employees to work with him ***.
Arbitrator D. Emmett Ferguson also spoke of the extent to
which management may consider conduct away from the plant as the basis for discharge:
While it is true that the employer does not [by virtue of the employment relationship] become the guardian of the employee’s every personal action and does not exercise parental control, it is equally true that in those areas having to do with the employer’s business, the employer has the right to terminate the relationship if the employee’s wrongful actions injuriously affect the business.
The connection between the facts which occur and the extent to which the business is affected must be reasonable and discernable. They must be such as could logically be expected to cause some result in the employer’s affairs. Each case must be measured on its own merits.
Another arbitrator also stressed that the effect of the employee’s outside activity on the employer’s business must be reasonably discernable, mere speculation as to adverse effect upon the business not sufficing. In many cases discharge for conduct away from the plant was held improper because the requirement of adverse effect of the conduct upon the business was not met. However, in many other cases the employee’s conduct away from the plant was found to be related to his or her employment or was found to have an actual or reasonably foreseeable adverse effect upon the business, thus discharge (or in some instances a lesser penalty) was found to be justified. In one case, Arbitrator Roger I. Abrams noted that certain conduct was “so obviously wrong that employees must know that they cannot retain their jobs if they do those things.” (Footnotes omitted.)
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For application of these principles, see Bard Mfg Co, 91 LA 193, 15 LAIS
4277 (Cornelius Arb 1988).
In this case, there has been no official determination that Grievant
wrongfully received unemployment benefits. As a result, the Company’s
action in discharging him was premature. However, the Company has raised
serious questions about Grievant’s eligibility for benefits and has
demonstrated that his conduct has a sufficient impact upon it to justify
disciplinary action. Although the Company is incorrect in asserting that his
improper receipt of benefits will be charged against it and cause its
unemployment taxes to increase, the record is clear that the Company has
been and will continue to be put to considerable time, effort and expense in
opposing his benefit claims. If the Company consistently failed to oppose
questionable claims, its rates very likely would go up.2
In administering discipline to Grievant, the Company cited 3
violations of its “C” Rules. While the charge of stealing from the Company
cannot be upheld, Grievant’s conduct assuredly fell within the pale of the
catch-all “C” Rule #1. It thus is unnecessary to determine whether it also
may have violated “C” Rule #3 against providing false information (to the
NCESC as opposed to the Company). The difficulty with this case is that
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there has been no official determination of Grievant’s wrongdoing, only a
showing of possible misconduct.
The Company’s Failure To Pursue Its Administrative Remedies
The Company’s failure to pursue its administrative remedies through
the NCESC is truly puzzling. While the Company belatedly seems to
recognize that it should have (TR @ 21, 46, 113), it provides no good
explanation for its failure. At the very least, it could be encouraging the
NCESC to request a refund of overpayments. If it seriously believes that
Grievant is guilty of criminal fraud, it could urge that he be prosecuted. The
record reveals that the Company has not pursued the matter with the State.
As a result, the Company must bear the brunt of the delay in State action.
The Company’s failure to introduce evidence as to the hearing
officer’s decision on its appeal of Grievant’s claim might suggest that it lost
the appeal, although the arbitrator draws no inference. At first glance, NCGS
§ 96-4(t)(8) might seem to be an impediment to admissibility, at least for
purposes of res judicata or collateral estoppel:
Any finding of fact or law, judgment, determination, conclusion or final order made by an adjudicator, appeals referee, commissioner, the Commission or any other person acting under authority of the Commission pursuant to the Employment Security Law is not admissible or binding in any separate or subsequent action or
2 The factors which may affect unemployment insurance tax rates are numerous and complex; e.g., the balance of and return on the State’s Unemployment Insurance Trust Fund. See “Tax Information” at http://www.ncesc.com/business/UI/uiTax.asp.
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proceeding, between a person and his present or previous employer brought before an arbitrator, court or judge of this State or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts.
At most this statutory provision is a rule of evidence that may be
waived if prompt objection is not interposed. In the face of an objection over
use for a preclusive purpose, a final determination made in an
unemployment compensation proceeding might still be admissible to
establish the basis for an employer’s disciplinary action. In any event, the
Company did not even offer any evidence as to the outcome of its appeal of
Grievant’s benefit claim.
The Company furnished the arbitrator with copies of two cases
upholding discharge for unemployment compensation fraud, Leestown Co,
102 LA 979 (Sergent Arb 1994) and Sheraton Waikiki Hotel, 114 LA 1595
(Nauyokas Arb 2000), the outcomes of which the arbitrator wholeheartedly
endorses, while disagreeing with some of the reasoning. It’s just that they
are readily distinguishable on the ground that the state issued a
determination of wrongdoing. Here the State of North Carolina has done
absolutely nothing, quite possibly as a result of the Company’s failure to
pursue the matter with the NCESC. Not only has the State not charged
Grievant with fraud, it has not even requested a refund of any alleged
overpayment.
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Why The Company Fired Grievant
In its brief, the Company asserts that Grievant was fired for giving
false information to the NCESC and also to the Company. The distinction is
not without a difference. Had the Company fired him for furnishing false
information to it in violation of “C” Rule #3, the Company would not have
to contend with issues under the North Carolina Employment Security Law.
However, the record is clear that Grievant was fired for allegedly obtaining
unemployment benefits through fraud and misrepresentation.
The HR manager’s notes of his conversation with an NCESC claims
supervisor (CX 10) conspicuously document the Subject as “Unemployment
Fraud”. The Notice Of Disciplinary Action (CX 17) describes the
INCIDENT as “making false unemployment claims and received max
unemployment compensation pay”. At the arbitration hearing, Company
counsel stated that “the Company terminated Mr. [DT] after finding out that
he had falsely and fraudulently obtained unemployment benefits …” (TR @
14). The plant manager, who made the final decision to fire Grievant,
testified that he did so because of “falsified information which he [Grievant]
supplied to the Unemployment Commission” (TR @ 151). Having fired
Grievant for alleged fraud in obtaining benefits from the NCESC, the
Company may not now change the rationale for its action.
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The Burden And Standard Of Proof
In this disciplinary action, the burden of proof is on the Company.
Elkouri & Elkouri, supra @ 447-449, 905-906; Hill & Sinicropi, Evidence
in Arbitration (BNA 2nd ed 1987) @ 39-41 (“As a general practice, … in
disciplinary cases the burden is on management both to proceed first with its
evidence and to prove employee guilt or wrongdoing.”). In a case involving
allegations of fraud, the proof of fraud must be clear and convincing. Elkouri
& Elkouri, supra @ 906-908.
Here the Company has not proved by clear and convincing evidence
that Grievant is guilty of fraud. Most of its “evidence” is mere supposition as
to what information Grievant must have input into the NCESC’s telephonic
data system in order to collect benefits. None of the Company’s witnesses
had any personal knowledge of Grievant’s dealings with the NCESC. The
Company called no witness and produced no ruling from that Agency. This
case contrasts markedly with those such as Sheraton Waikiki, supra, in
which the employer produced altered data forms. What the Company has
done is to raise troubling questions about Grievant’s conduct sufficiently
serious to justify his suspension pending the outcome of an investigation by
the NCESC.
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Terms And Conditions For Grievant’s Reinstatement
Grievant’s termination is reduced to the level of discipline originally
imposed by the Company, a suspension pending investigation, to afford the
Company the opportunity to pursue the matter before the NCESC, an
opportunity of which the Company heretofore inexplicably has failed to
avail itself. Whether Grievant will be reinstated will depend upon the
Company’s decision to pursue the matter, and the NCESC’s determination if
the Company does.
The pertinent regulation prohibits the Agency from excusing
Grievant’s conduct if it was indeed fraudulent:
Regulation No. 20A - Waiver of Overpayments 20A.10 The Commission is without power to waive repayment of overpayments caused by fraud of the claimant and request for waiver of such overpayments will not be considered. http://www.ncesc.com/pmi/government/Regulations2.asp?init=true.
The NCESC may, of course, decide not to press criminal charges against
Grievant for purely practical reasons (TR @ 112-113), but surely the
Agency will issue some kind of report about culpable conduct if the facts
support such a finding. It is up to the Company to pursue the matter.
If the NCESC determines that Grievant is guilty of misconduct, then
the Company may terminate him. If the NCESC determines only that
Grievant made an honest mistake, then he must be reinstated. If the Agency
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determines that Grievant was entitled to the benefits he received, or if the
Company decides not to pursue the matter, then, of course, he must be
reinstated.
Equities do not seem to weigh in Grievant’s favor. The plant manager
described him as having “a long history of aggravated work record” (TR @
149). As a result, if and when he is reinstated, his reinstatement is made
subject to a number of terms and conditions. First, the violations listed in the
Letter Of Agreement dated July 11, 2001 (CX 9) will remain on his record
for one year following the date of his reinstatement, and he may be
disciplined accordingly, irrespective of the dates those violations actually
occurred. Second, back pay will be limited to $500 per week without offset
for outside income. Seniority and benefits are to be restored in a manner
consist with these two conditions.
The rationale for setting back pay at $500 per week without offset is
that Grievant was making about $1,000 per week at the time of his
termination. At the arbitration hearing, he testified that he has been doing
odd jobs for which he is paid in cash. The Company is entitled to offset such
earnings against back pay. Elkouri & Elkouri, supra @ 592-595.
Realistically, there may be little chance of documenting his income with any
degree of certainty. To make the arithmetic simple and to spare the parties
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the ordeal of another arbitration over back pay, the arbitrator sets the rate at
the fixed amount of $500 per week without offset.
There is ample authority to set such conditions. CBA § 14.01
provides, “The terms and conditions of such reinstatement may provide for
full, partial or no compensation for time lost.” At the third-step meeting on
October 10, 2001, the Union indicated that it “would be flexible as to
guidelines of reinstatement” (CX 18). In the Union’s brief, the ISSUE is
posed as, “Was the grievant discharged for just cause, and if not what is the
remedy?” The arbitrator has specified the remedy.
In Leestown, supra, the employer did not take action against the
employee until after the state agency had made its determination of fraud. In
Sheraton Waikiki, supra, the state’s and the employer’s investigations appear
to have proceeded in parallel and reached the same conclusion of dishonesty
at virtually the same time. The complications resulting here from the
Company’s failure to press its case expeditiously and diligently before the
NCESC are clear.
This Opinion Is Not To Be Used Before The NCESC
To help ensure that Grievant receives unbiased treatment before the
NCESC, based upon the results of its own independent investigation, this
opinion should not be submitted to that Agency by Grievant or either party.
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Award
For all the foregoing reasons, the grievance is SUSTAINED IN PART
AND DENIED IN PART.
Dated May 2, 2003 _____________________________ E. Frank Cornelius, Arbitrator