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In re
Chicago
Transit Authority
and
Amalgamated
Transit Union, Local 241
121
LA (BNA) 478
Grievance
No. 03-327
May
24, 2005
Aaron S. Wolff, Arbitrator
Background Facts
The Chicago Transit Authority
[the “CTA” or “Employer”] and the Amalgamated Transit Union, Local 241 [the
“Union”] submitted to arbitration the grievance of M__, a bus operator, who was
discharged on October 22, 2003 for alleged theft of money contained in a wallet
she found on her bus. Her grievance, dated November 4, 2003, states:
On 9/30, I found a wallet on my bus. The wallet contain several valuable items, including some cash.
At the time I was having some financial problems and I spent the money on my 3
children. The next day I turn the wallet in with all contents except cash. I
realize I made a mistake.
Although I offered to pay the money back at the discharge
hearing, it was not a option. I would like my job
back, and be made whole. And also, I feel the punishment was too severe for the
act.
The essential facts are not in
dispute. The agreed issue is whether there was just cause [1] for the discharge
and, if not, what is the appropriate remedy?
Grievant was hired as a
part-time bus operator in 2000 and worked as such for about two years when she
qualified and began working as a full-time operator in February 2002 at which
time her seniority began to accrue. On September 30, during a pre-check of her
bus before her run began, she found a wallet in the back of the bus. She
examined it and said that she put it in her pocket. [2] She got off the bus to
get a sign because the bus’s destination sign was not working, but she did not
turn the wallet in then because, she said, she was late getting out on her run.
She said that she intended
to turn it in at the end of the day, but forgot that it was in her purse and
did not return it to lost and found until the next day when she wasn’t
scheduled to work. When she got home on September 30 and discovered she still
had the wallet, she examined it again and counted $105 in the wallet, the
amount she insisted even in arbitration, was all the money that the wallet
contained. She also discovered that the wallet belonged to a CTA employee.
Because of financial problems, she spent the money on coats for her three young
children. She returned the wallet intact on October 1, with credit and bank
cards, but without any cash.
Meanwhile, on September 30 the
wallet’s owner, CTA bus repairman L__, discovered its loss at about 2:30 p.m.
and reported it to his manager. L__testified that he
had taken $600 out of the bank the previous night in order to buy some building
material for a home improvement, had left $200 at home and had about $340 in
the wallet when it was lost. [3] To help find it he told the manager what buses
he had been working on between the time buses on which the wallet might have
been lost and, based on information supplied by L__that
he last had the wallet at lunch time and when he discovered it was
missing.
Mr. James O’Brien, a Maintenance
Manager II at the 74th Street garage, testified as to the efforts made on
September 30 to track down the day, [4] finally narrowed it down to three. The
tapes from those buses were removed, downloaded, printed out and examined the
next day and the results turned over to Ms. Joyce Butler, Transportation
Manager II.
Ms. Butler testified that she
learned about L__’s missing wallet on September 30
and helped in efforts to locate the bus on which it might have been lost. The
next day she saw the photos on the CD which reveal grievant picking up the
wallet on her bus, opening and looking into the wallet, and putting it in her
pocket. Ms. Butler then checked grievant’s schedule and learned that she was
off on October 1 and 2. But later on October 1, a clerk reported that grievant
had turned in a wallet. [5] Ms. Butler retrieved it and found it had no money
in it. She then met with L__ who gave her a list of the wallet’s contents when
he lost it. He told her there was $340 in the wallet.
On Friday, October 3, when
grievant reported for work, Ms. Butler interviewed her at 1:54 p.m. and created
an “Interview Record.” Asked what happened in the interview, Ms. Butler
testified:
A I asked M__ about the wallet that she had turned in to the
clerk on Wednesday.
Q What did you ask
her?
A I asked her what did she know about the wallet that was
turned in on Wednesday.
Q And what did she
say?
A She told me, yes, I do know; I brought the wallet up on my day
off and turned it in. Then I asked her where did she receive the wallet from,
and she told me that on Tuesday she was working the Garfield route. When she
got to the west terminal, a Hispanic female passenger walked up to her and gave
her the wallet.
Q All
right. What did you say after she told
you that?
A I asked her if she was
sure.
Q What did she say?
A And she said yes.
Q What did you do after
that?
A And then I told her we pulled the hard drive from the bus and
burned the CD and we have her on tape.
Q What did you do after
that?
A And that’s when, uh, it surprised her, of course.
MS. WYETZNER: Objection. [the objection was sustained]
BY MS. CHESNIN:
Q What happened after
that?
A I asked her to fill out a miscellaneous report, uh,
stating her actions, and she completed one.
Q Okay. And what did you do
after that?
A After that I told her she
would need union representation and, uh, I referred her for another day, which
was the following Monday, to be interviewed again with me and union
representation.
MR. ARBITRATOR WOLFF: There was no union representative
when you talked to her the first time?
THE WITNESS: No, never,
because all I do is I just go with specifics and then I refer them, uh, with
union representation on the next union day.
BY MS. CHESNIN:
Q What is a union day? What
do you mean by that?
A Okay. It’s, um—the Local 241 union, they have, like, days;
Mondays, Wednesdays and Fridays. By me interviewing her on Friday, the next
available union day would have been the following Monday.
On the “Employee Interview
Record” Ms. Butler prepared on October 3 she stated the “Reason For Interview” was “Category: 11 Behavioral Violation.”Under “Employee’s Comments” she wrote:
“The Operator Stated At
First, A Female Passenger Gave Her the Wallet At The End Of The Line. Then She
Stated That She Found The Wallet On The Bus While It The Bus Was Parked In The
Bay.”
Concerning the October 3
interview, Ms. Butler also testified:
A* * * And
during that interview, if you just look at, uh, Exhibit 7, you will see that
there was no mention in this interview concerning cash. There was no mention at
all.
Q Um-hum.
A And this was done because
when you first initially have an interview with the operator when the
circumstances are this serious, you give them an opportunity to get union
representation and then they’re given another interview date.
Ms. Butler also testified that
prior to the October 3 interview, she did not tell grievant about the nature or
purpose of the interview.
Ms. Butler scheduled grievant
for another interview on Monday, October 6 at which time she told her to have a
Union representative present, and one, Ms. Venita
Jones, was present on October 6. At that time, Ms. Butler testified, grievant
stated that she found the wallet on the floor of her bus, picked it up and put
it in her purse. When she got home, she opened it and took out $105 to buy
coats for her three children. Ms. Jones asked if grievant could make
restitution. Ms. Butler replied that theft of a lost wallet was serious and
under CTA rules and procedures it was her responsibility to refer grievant to
the general manager for discharge.
On October 15, Ms. Butler
prepared the following memo addressed to Ms. Patti Hoyle-Heavens, the 74th St.
Garage General Manager, recommending discharge of grievant:
It is recommended that Full-Time
Bus Operator M__ be discharged from the Chicago Transit Authority for failure
to comply with the Authority’s rules, orders, and policies governing theft of
contents in lost personal property.
On Tuesday, September 30, 2003
at 1350 hours, Operator M__ reported for Run 524 on the # 55 Garfield route.
After reporting, Operator M__ went to the Supervisors sign out booth where she
was instructed to take bus #4551. Operator M__boarded
the bus and performed an interior pre-pull out inspection. At 1405 hours, she
pulled the bus out of the garage to get in place on her route.
Shortly afterwards, a
maintenance repairman informed the Maintenance Manager that he had left his
wallet on a bus that pulled out of the garage between 1400 and 1415 hours. He
stated that his wallet contained his employee identification, credit cards,
gift certificates and $340.00. Communication Power Control was notified by the
Manager to instruct the supervisor located on Ashland at 74th Street to check
with the operators along the route to see if they had a found a wallet on their
bus. The wallet was not turned in to the Clerks or Managers on the 30th of
September. The maintenance repairman did not remember the bus number, however he narrowed the list to three buses. The
hard drive on the buses were pulled and viewed by personnel in the maintenance
department.
On Wednesday morning, October 1,
2003 the Maintenance Manager informed the Transportation Manager that the
operator of run 524 with bus #4551 was seen on camera near the rear of the bus,
picking up the wallet from the floor and putting it in her rear pants pocket.
Management personnel also viewed the frames from the hard drive.
On Wednesday afternoon, October
1, 2003, at approximately 1600 hours, Operator M__ entered the garage on her
scheduled day off to turn the wallet in to the window clerk who immediately
informed the manager. On Thursday October 2, 2003, the repairman received his
wallet minus the $340.00.
On Friday, October 3, 2003, at
1435 hours, Operator M__ was instructed by the clerk to see the manager on
duty. Manager Butler interviewed Operator M__concerning
the lost wallet. The operator’s initial statement was that a female passenger
gave her the wallet when the bus arrived at the west terminal. Manager Butler
informed Operator M__ that the cameras on the bus were working and clearly
showed her picking up the wallet from the floor, opening it and then putting it
in her rear pocket.
Operator M__ admitted to picking
up the wallet and putting it in her purse. She was instructed to complete a
miscellaneous incident report. After Manager Butler read the report, it was
explained to Operator M__ that she was being removed from service and referred
to the Transportation Manager II on Monday October 6, 2003 at 1000 hours for a
case disposition.
On Monday October 6, 2003, at
1000 hours a hearing was held in the Transportation Manager’s office. Operator
M__ was present and represented by Local 241 Union Representative Venita Jones. Operator M__ was asked to explain why she did
not turn the wallet in immediately after finding it and why did she take the
money from inside the wallet.
Operator M__ stated that when
she found the wallet on the bus, it was time for her to leave the garage and
that she did not know it belonged to a CTA employee. She forgot to turn the
wallet in at the end of her workday. However, she didn’t look through the
wallet until she arrived home. Operator M__ stated that the wallet contained
$105.00 when she found it. She took the money and spent it on coats for her children, Manager Butler informed her that the CTA employee
stated that he had $340.00 in the wallet at the time he lost it. Operator M__
again stated that the wallet contained only $105.00.
Operator M__’s
written report and verbal statements were inconsistent with the images from the
bus camera system. The frames from the cameras clearly showed the operator
retrieving the wallet from the floor of the bus and putting it in her rear
pocket.
Local 241 Union Representative Venita Jones requested that Operator M__ be given another
chance because her use of bad judgment does not constitute termination. The
operator is willing to make restitution to the employee.
Operator M__ was informed that
she was in violation of the following rules:
Bus System Rule:
B4. 1—Attention to
duty—employees must devote full attention to the proper performance of their
duties.
B1.7 Lost and Found
B 1.7.1—employees must
deliver all articles found on Authority property as soon as possible to the
garage clerk.
General rule #7—Obedience to
Rules:
(a) All rules, orders,
bulletins and instructions must be obeyed
(b) Ignorance of the rules,
orders, bulletins and instructions will not be accepted as an excuse for
failure to comply.
(c) Violation is cause for
disciplinary action
General rule #12—Responsibility For Property
(d) Abusing, misusing,
destroying, damaging, stealing, or defacing revenue, property, tools or
equipment of the Authority or that of others is prohibited
General Rule #14—Personal
Conduct (14e, 14j, 14w, 14x)
(e) Conduct unbecoming an
employee
(j) falsifying
any written or verbal statement
(w) Abuse of company time:
Poor work performance
(x) Disrespect to
supervisory personnel, property, or the public.
General Rule #24—Use of Best
Judgment
Should a situation
requiring prompt action arise which is not covered by the rules in the General
Rule Book, specialized rule books, executive orders, bulletins or instruction,
the employees involved must use their best judgment in selecting the best
course of action to follow, then report the action taken to appropriate
supervision as soon as possible thereafter.
The Chicago Transit Authority
hired Operator M__ as a Part-Time Operator on July 10, 2000. She was
transitioned to Full-Time on February 3, 2002. Operator M__ has disregarded the
rules and policies set forth by the Authority.
In view of the above-mentioned
there are no extenuating circumstances that would change the decision in the
hearing or outweigh contractual language. Therefore, Operator M__ was
instructed to report to 74th St. Garage General Manager, Patti Hoyle-Heavans office with all of her CTA-issued equipment on
Wednesday, October 22, 2003 at 0930 hours for discharge consideration.
Note: Failure to report for this
meeting on the above-mentioned day would result in being discharged by
mail.
Concerning the interviews on
October 3 and 6, grievant testified as follows: On October 3, when Ms. Butler
asked her about the wallet, grievant replied that a lady had given it to her.
Ms. Butler then told her the bus camera showed her picking up the wallet and
grievant then admired it. She said she gave this false answer because she was
scared of what she had done, knew that it was wrong and apologized for having
done it. Either at this meeting or on October 6, she offered to return the money.
[6]
Grievant did not testify
specifically about the October 6 meeting, but a Union representative was
present. Ms. Butler prepared an “Employee Interview Record” on that day which,
like that of October 3, states the reason for the interview as: “Category: 11
Behavioral Violation.” Under “Employee’s Comments” Ms. Butler wrote:
The Operator Stated That
She Found the Wallet on the Floor of the Bus near the Rear. She Picked it up and Put it in Her Purse. When She Got Home, She
Opened the Wallet, Took out $105.00 Dollars. The next Day on
Her Day Off, She Turned the Wallet in to the Clerk at the Garage.
The document also reflects that
Ms. Butler referred grievant to the garage general manager for discharge
consideration on October 22.
The discharge hearing was held
on October 22 by Mr. O’Brien who was filling in for the garage manager who was
off that day. Grievant was present with a Union representative. The facts
developed at the discharge hearing, which lasted about one hour, are much the same
as those developed in the earlier October interviews and investigation which
are already described above. Mr. O’Brien also noted that he spoke with the
Union representative briefly outside of the grievant’s presence during which
the Union requested him to consider a last-chance agreement. After reviewing
that record, as well as grievant’s prior work record, Mr. O’Brien discharged
grievant primarily because the “CTA does not consider theft lightly.” He found
her in violation of all the rules set forth in the Recommendation for Discharge
except for Bus System Rule B4.1.
Discussion
The CTA contends that it has the
right to expect honesty from its employees and that theft is a dischargeable
offense. Thus, it states:
It is well established that
theft is an offense that can result in immediate discharge, even on the first
instance. See e.g. Pepsi Cola General Bottlers, Inc., 117 LA (BNA) 681, 691
(Goldstein, 2002) citing Riley Stoker Corp., 7 LA (BNA) 764, 767 (Platt, 1947);
Lear Seigler, Inc., 63 LA (BNA) 1157, 1160 (McBrearty, 1964); Platt, “Arbitral Standards in Discipline Cases,”in The Law and Labor Management Relations, 223, 234
Univ. of Mich., 1950) and Stone, “Why Arbitrators Reinstate Discharged
Employees,”92 Monthly Lab. Rev. 49 (1969). The relevant rules clearly provide
that one infraction for theft or dishonesty is cause for immediate discharge.
See CTA Contract Provisions, General Rules, Bus System Rules, and Corrective
Action Guidelines, supra. Furthermore, a sample of cases going back as far as
twenty years evidences CTA’s consistency in
immediately discharging employees—even those with long and excellent work
records—for theft See e.g., CTA and ATU Local 308 (A__), (Coleman, 1982)
(upholding discharge of motorman for theft of $11.00); CTA and ATU Local 308
(G__), (Wolff; 1983) (upholding discharge of Rail Conductor for selling CTA
transfers and keeping the money); CTA and ATU Local 241 (H__). (Martin, 1985),
(upholding discharge of Bus Serviceman for pilfering money from CTA treasury
operations). CTA has even discharged employees for attempted theft, where no
money was actually taken. CTA and ATU Local 134 (R__).
(Cox, 1995) (upholding discharge of electrical worker
for attempted theft of coworker’s paycheck).
In a case with facts similar to
the case at bar, [7] Arbitrator Bann upheld the
discharge of a Bus Operator who kept the lost wallet of passenger and removed
the money. CTA and ATU Local 241 (B__), (Benn,
1995). Here, Grievant kept the lost wallet of a coworker and removed the
money. Such conduct historically has constituted a dischargeable offense at
CTA. Therefore, this grievance must be denied.
Here, the CTA notes, there is no dispute that grievant stole money from
another employee’s wallet, the only question being as to whether it was $105 or
$340, and that grievant offered to make restitution of the $340 during her
discharge hearing.
Anticipating the Union’s assertion of Weingarten rights, the CTA argues
there was no such violation and, even if there were, it would not warrant
reinstatement. Thus, it says:
Grievant had sufficient
notice of the purpose of her initial meeting with Butler so that she could have
or should have known to ask for Union representation if she so desired.
Immediately upon meeting with Grievant, Butler informed her that she wanted to
know what Grievant knew “about the wallet that she had turned into the clerk on
Wednesday.” Grievant was well aware she had stolen the money from a coworker’s
wallet and returned it empty to CTA. Therefore, Butler’s question was enough to
advise Grievant of the nature and purpose of the meeting so that she was
sufficiently informed as to whether she could or should exercise her right to
Union representation. County of Cook, 105 LA (BNA) 974, 979-980 (Wolff, 1995)
(holding that Grievant suffered a Weingarten violation because he did not have
notice of the nature of the meeting with his manager, however the Weingarten
violation did not change the outcome of the grievance.)
Furthermore, at this first
meeting, Butler did not discuss any details (such as the contents of the
wallet) with Grievant. In fact, Butler only asked Grievant the one question
stated above. In response, Grievant told Butler that a Hispanic woman had given
her the wallet. Butler then told Grievant about the hard drive “video,” asked
her to fill out a report and instructed her to come back with a Union
representative for the actual disciplinary interview. Grievant did so, and the
details of the incidents, including Grievent’s
confession, were discussed at the later disciplinary interview in the presence
of the Union representative.
“The right to union
representation arises only in situations where the employee requests representation.”Norman Brand ed., Discipline and Discharge in Arbitration, 49 (1998).
After Butler announced that the purpose of the meeting was to discuss the
wallet, it was Grievant’s duty to ask for Union representation before
proceeding to answer Butler. Grievant, however, did not ask for Union
representation.
This meeting with Butler also
does not rise to the level of a Weingarten violation because the outcome of the
meeting did not subject Grievant to discipline; there was sufficient evidence
to discharge Grievant regardless of this first meeting. Grievant was already
caught on the hard drive taking the wallet and had personally returned it
without any money in it, Grievant then went on to admit her crime at the
disciplinary interview in the presence of her Union representative.
Even if this arbitrator decides
that there was a Weingarten violation, it did not prejudice the Grievant in any
way and therefore should not be of significance to the outcome of this case Brand
supra at 53. It is a certainty that Grievant would have been discharged even if
she never had the first meeting with Butler.
If this Arbitrator concludes that there was a Weingarten violation, the
proper response would be to exclude any evidence CTA gathered in the first
meeting between Butler and Grievant. See, e.g, County
of Cook, 105 LA (BNA) 974, 980 (Wolff, 1995). This exclusion would in no way
change the outcome of Grievant’s discharge.
The CTA also argues that the Union waived its Weingarten argument by
not mentioning it in the grievance or the stipulated issue in arbitration,
citing District of Columbia Public Schools, 108 LA (BNA) 1037 (1995).
The Union’s central argument is that grievant’s Weingarten rights were
violated and, therefore, her discharge must be rescinded. Thus, it contends:
The CTA’s discharge of M__must be rescinded because the
CTA obtained the evidence in violation of M__’s
Weingarten Rights. The CTA used this improperly obtained information to
discharge M__ at a meeting she was not told could lead to discipline and where
she had no Union representation.
In 1975, the U.S. Supreme Court
ruled that an employee has the right to union representation in an
investigatory interview. Weingarten v. NLRB, 420 U.S. 251, 88
LRRM 2689 (1975). The Court held that an employee has a section 7 right
under the NLRA to have a union representative present when the investigation
could result in disciplinary action. An investigatory interview is an interview
in which the interviewer is attempting to gather information from the employee
regarding a problem, rather than merely informing the employee of some
predetermined discipline. Just Cause, The Seven Tests, Koven,
A. and Smith, S. at 197-8 (1992), citing Baton Rouge Water Works, 246 NLRB 995,
997, 103 LRRM 1056 (1979) (If the employer engages in any conduct beyond merely
informing the employee of a previously made disciplinary decision, “the full
panoply of protections accorded the employee under Weingarten may be
applicable”) and Deaconess Medical Center, 88 LA (BNA) 44 (Robinson, 1986) (The
arbitrator defined the term “investigatory interview” as “the asking of
questions by one person of another person.... The adjective investigatory
implies the interview must be part of an effort to obtain information.”)
The logic behind giving
employees Weingarten representation is that “a single employee confronted by an
employer investigation to determine whether certain conduct deserves discipline
may be too fearful or inarticulate to relate accurately the incident being
investigated ...” Weingarten, 240 S.Ct. at 262-63.
Union representation is crucial
at such an investigatory meeting, not after or at a later meeting when a
decision whether to discipline is made. As the Court opined, the union
representative is crucial at the “first stage of the existence of a question
...to give assistance to employees who may lack the ability to express
themselves in their cases and who, when their livelihood is at stake, might in
fact need the more experienced kind of counsel which their union steward might
represent.” Id. at 264.
Even where a supervisor
originally intends that an interview will not to be for disciplinary proposes
but in midstream changes his mind, the employee becomes entitled to
representation. Just Cause: The Seven Tests, at 202.
Significantly, if something an
employee says when he or she does not know that the meeting is investigatory
and could lead to discipline is used to support discipline “a persuasive case
can be made that the penalty should be set aside on the ground that the
employee might not have made a disclosure if the union had been present” Id. at
202.
In this case, Ms. Butler fast
learned of the missing wallet on the date it was lost, September 30, in the
afternoon. The next morning she was told by Acting GM Jim O’Brien to watch a CD
of M__ finding the wallet and putting it in her pocket. She then went into M__’s file to see if M__was
working that day and saw she was off on Wednesdays and Thursdays. She did not
call M__.
On Wednesday she got a call from
a clerk reporting that M__ turned in the wallet. Ms. Butler got the wallet from
the clerk and looked through it. She saw there was no money. After that, she
took the CD and made copies of some of the frames/pictures. She met with L__,
who lost the wallet, who told her the contents of the wallet. He told her there
was $340 in the wallet.
On Friday, Ms. Butler told M__to meet with her but did not tell her what the meeting
would be about. Before the meeting, Ms. Butler knew that M__ had to have taken
the money. She knew:
1)
That M__ had found the
wallet on the bus and put it in her pocket because she had seen the tape;
2)
That the wallet
contained credit cards, bank cards, and other items including money because she
had spoken and gotten a list from L__ and
3)
That there was no
money when M__returned the wallet because she had
personally looked through the wallet that Wednesday after M__ returned it
Ms. Butler testified that she
learned about the facts that support the CTA’s
decision to discharge at the meeting, which went as follows:
A. I asked M__ about the wallet
that she had turned in to the clerk on Wednesday.
Q. And what did she
say?
A. She told me, yes, I do
know; I brought the wallet up on my day off and turned it in. Then I asked her
where did she receive the wallet from, and she told me that on Tuesday she was
working the Garfield route. When she got to the west terminal, a Hispanic
female passenger walked up to her and gave her the wallet.
Q. All right. What did you
say after she told you that?
A. I asked her if she was
sure.
Q. What did she say?
A. And she said yes.
Q. What did you do after
that?
A. And then I told her we
pulled the hard drive from the bus and burned the CD and we have her on
tape.
Q. What happened after
that?
A. I asked her to fill out
a miscellaneous report, uh, stating her actions and she completed one.
Q. Okay. And what did you
do after that?
A. After that I told her
that she would need union representation and, uh, I referred her for another
day, which was the following Monday, to be interviewed again with union
representation and me.
Thus, at the time Ms. Butler
called the meeting, and certainly two minutes into the meeting, at the time she
told M__ that they had a tape of her taking the wallet, the meeting was going
to lead to discipline. And it did.
What is insidious about having
the meeting with no union representation is that M__ had no protection from
being ambushed by Ms. Butler. And, in fact, part of the basis for Ms. Butler’s
recommendation to discharge was the fact that M__ lied when she said a
passenger gave her the wallet is the first “interview.”More
importantly, part of Mr. O’Brien’s decision to discharge M__ was based on M__’s statement about the female passenger giving her the
wallet. And, obviously, the whole confession itself, which led to the
discipline, was fruit of a poisonous tree as it was a reaction to Ms. Butler’s
trap.
Ms. Butler’s statement that the
meeting was not going to result in discipline is disingenuous at best. Here,
she knew full well that M__ took the wallet which contained money and that the
money was missing when the wallet was returned. What did she think M__ was
going to say that wouldn’t incriminate herself? Either M__ would have to
confess or lie. Either way, discipline was the only outcome of this discussion.
In addition, she didn’t start the meeting by saying; “we saw the tape and know
you found the wallet.”Instead, she gave M__ some rope
to hang herself. When Ms. Butler asked her first question, where did M__ get the wallet—she already knew the answer.
If a union representative had been there however, the meeting would
have gone differently. The representative could have spoken with M__ beforehand
and learned what had happened and counseled her on the best way to handle it. The Union could have told the CTA that it would be best
not to meet until the CTA provided the union with documentation and information
about the alleged incident. A
representative certainly could have prevented the initial lie and the ultimate
full-scale confession M__ made when confronted with the fact that Ms. Butler
had seen the tape. She lied out of fear; those fears may have been allayed had
she had protection.
The remedy for failing to advise
M__ that she was going into a meeting that was an investigatory meeting where
discipline could result is that she should be put back to work. Arkansas Power
and Light Co., 92 LA (BNA) 144, 149-150 (Weisbrod,
1989) (reinstatement with back pay because of denial of representation); H.J.
Heinz, 95 LA (BNA) 82, 87-88 (Ellmann, 1990)
(discharge set aside, but 4 month suspension upheld); Bakerite
Rolls, 90 LA (BNA) 1133, 1136 (DiLauro, 1988)
(discharge set aside and back pay granted due to denial of
representation).
Ms. Butler claims that she didn’t
have to say what the meeting was about because it was just an investigatory
meeting; that discipline was not going to result from the meeting. Id. That Ms,
Butler failed to tell M__ that the meeting could result in discipline is
outrageous. This basis alone supports the grievance and M__ should be brought
back to work.
The Union also contends that the penalty of discharge was too severe.
Grievant had no premeditated intent to steal; she just made a grave error in
judgment which she deeply regrets and for which she offered to make restitution
of $340 even though she claims the wallet had only $105. In this respect the Union also faults Mr. O’Brien for
failing to have the control center send a specific message to the three drivers
of the buses, where the wallet was probably lost, singled out and asked if they
found a wallet, or left such a message for them in the garage when they
returned. If he had done so, the Union claims, grievant would have turned it
in.
The Union further argues that
discharge based on “failure to be truthful is inappropriate.” In this respect
it notes that Ms. Butler relied on grievant’s statements at the October 6
meeting, but that she could not point to anything of substance that grievant
said which was not true. As to the lie grievant told on October 3 as to how she
got the wallet, the Union says grievant was “scared” and in any event grievant
was denied her Weingarten rights and that evidence must be excluded as “fruit
of the poisonous tree.” The Union also raised questions as to how the CTA
concluded there was $340 in the wallet.
Finally, the Union contends that the CTA should have extended leniency
to M__ by giving her a last-chance agreement as, the Union claims, has been
done in similar cases. [8]
After careful consideration of the record end the arguments of the
parties, I find that the discharge lacked just or sufficient cause.
The central issue here, and upon
which this case is decided, is whether grievant was denied her Weingarten
rights. Although I cannot find, and no one has brought to my attention, any
specific provision in the Collective Bargaining Agreement which is akin to the
Weingarten doctrine, the CTA does not dispute that such rights exist and could
be applied here. [ 9] It just argues that those rights
are not applicable on the facts here or were waived. But I find to the contrary.
First, the CTA’s contention that the Union
waived a Weingarten claim, because it did not specifically raise it in the
issue being arbitrated, is not well founded.
Weingarten, like other procedural due process rights, are inherent or implied
in the concept of “just” or “sufficient” cause which is the stipulated issue
here. See, F. & E. Elkouri, How Arbitration Works, (6th Ed. 2003; A. Ruben,
Editor-in-Chief), pp. 237-38 and [corrected] p. 1266 at fn. 103. See also, Cook
County Hospital, 105 LA (BNA) 974, 978-79, where a similar argument failed;
Maui Pineapple, supra, 86 LA (BNA) at 910; and Brand, supra, p. 10 at p. 49
(Weingarten rights are “a special aspect of due process.”)]
Although there may be differing arbitral views as to whether an employer
has an initial burden to warn an employee that a discussion or meeting may
result in disciplinary action [Elkouri, supra at p. 1268], I find that the
facts peculiar to this case required such a warning. First, there can be no
question that Ms. Butler knew that disciplinary action was in the offing. In
the Interview Record for October 3 she wrote that the reason for the interview
was “11 Behavioral Violation.” That was hardly surprising since before the
interview she knew:
[1] from
photo evidence that grievant had found the wallet in her bus on September 30
before going on her run,
[2] that
L__ reported on that day that he lost his wallet with money in it; and
[3] that
grievant had returned the wallet on October 1 without any money in it.
Ms. Butler thus had everything
within her knowledge from which discipline could be imposed no matter what
grievant said when asked, “what do you know about the
wallet that was turned in on Wednesday?” Indeed, the CTA’s
brief acknowledges that there was enough evidence to discipline grievant even
if there had been no first meeting with Ms. Butler on October 3.
Neither Ms. Butler nor grievant
testified as to how the interview came about. All the record indicates is that
a clerk instructed grievant to see the manager on duty. Before the interview
began, Ms. Butler did not indicate to grievant that discipline might be
involved. Asked what she told grievant prior to the interview as to its purpose
and nature, Ms. Butler testified: “When I talked to her, the first thing I
asked her was what does she know about the wallet that
she turned in.” Ms. Butler also testified that the question “surprised” grievant.
[10] If it surprised grievant then it would seem that, prior to the question
being asked, grievant had no reasonable basis to believe that the discussion
might involve disciplinary action. The result of this form of interviewing was
that grievant made another serious mistake in judgment by lying—a mistake that
was also taken into account in the decision to recommend her discharge
her and the actual decision to do so. Then, after getting this answer and
telling grievant to fill out a report as to her actions, she told grievant to
report on Monday for another interview in which “she would need union
representation.”
The failure to warn grievant
before the first interview on October 3 that discipline might be involved, was
compounded by Ms. Butler’s apparent recognition that grievant should have been
so advised. As Ms. Butler also testified: “* * * when you first initially have
an interview with the operator when the circumstances are this serious, you
give them an opportunity to get union representation and then they’re given
another interview date.” Here, however, Ms. Butler did not give grievant the
opportunity to have union representation until the second interview, after she
had told the lie that was used against her.
It is quite possible, and I
think quite likely, that if grievant had been told about the nature of the
interview and was given the opportunity to review the matter first with a Union
representative, she would not have lied about how she got the wallet. And,
unfortunately for grievant, that lie became a factor in Ms. Butler’s
recommendation to discharge her and in Mr. O’Brien’s decision to do so. Since
the lie permeated the entire discharge process, it cannot be brushed aside
simply by excluding it from the evidence gathered at the initial interview on
October 3 as the CTA suggests.
Nor can I concur in the CTA’s earnest contention that the first statement/question
in the initial interview gave grievant sufficient notice of the meeting’s
purpose and that grievant “should have known to ask for union representation if
she so desired.” In the Cook County Hospital case, upon which the CTA relies, [11]
this Arbitrator found it unnecessary to decide that question, stating at 105 LA
(BNA) at 979-80:
It is undisputed that the
Hospital never informed Grievant of the purpose of this meeting or that it
could lead to discipline of Grievant. Nor is there any clear or compelling
evidence that Grievant knew, or reasonably must have known, the purpose of the
meeting and its potential for discipline. Therefore, I find that the Hospital,
at the very least, had the obligation to advise Grievant of the nature or
purpose of the meeting so that Grievant could request Union representation.
Thus, assuming that the burden of making the request is on the employee, the
Employer has the initial burden of advising the employee of the nature and purpose
of the meeting so that the employee is sufficiently informed as to whether he
can or should exercise his right to Union representation.
Here, assuming the initial
question/statement was sufficient to put grievant on notice that discipline
might be involved in the meeting, the meeting had
already begun and put her “under the gun.” It would be, and was, unfair to
expect grievant to think about and ask for Union representation and, under the
pressure of that question, she made the snap, poor judgment to lie, a lie that
had an impact in the decisional process. [12]
Considering the record as a
whole, I find that just cause has not been established for this discharge which
must be set aside. However, while there may be insufficient evidence that grievant
intended to steal the wallet, there is no doubt that she intended to steal the
money it contained. Accordingly, the remedy here will be as follows: Grievant
shall be reinstated to her job as quickly as possible. She will not be entitled
to any back pay or any other benefits under the Contract except for seniority
rights which shall be deemed to have continued. Further, grievant’s
reinstatement will be conditioned as follows: [1] She must tender a written
apology to L__ and [2] she must agree to enter into a written agreement with
the CTA providing that out of each of her first and third pay checks, the sum
of $170 shall be deducted and paid over to L__.
Ruling on CTA’s
Request for Reconsideration In Executive Session
Following issuance of the Award,
in accordance with its reserved right under the parties’past
practice, the CTA timely requested Executive Session and reconsideration of the
Award. An Executive Session was held in the Arbitrator’s office on April 28
with representatives of the parties, Ms. Debra Chesnin,
Esq. and Ms. Linda Wyetzner-Behn, Esq., who agreed to
file post-session memoranda. The Union’s Memorandum was received on May 5 and
the CTA’s on May 19, 2005.
After due consideration of the
parties’ contentions, I find no basis for altering the Award in any
respect,
The CTA advances four arguments:
[1] grievant never
asked for Union representation and Weingarten does not require the employer “to
apprise an employee of her Weingarten rights at the beginning of every
interview.” [13];
[2] “Grievant had adequate notice to believe
that the interview with Butler might result in disciplinary action when Butler
called her into a meeting and informed her that she wanted to know what
Grievant knew `about the wallet that she had turned into the clerk on Wednesday’
”[Id.];
[3] Section 10.10 of the
Collective Bargaining Agreement is the “bargained-for version of the Union’s
Weingarten rights” [Id.]; and
[4] even
if the Arbitrator still concludes there was a Weingarten violation,
reinstatement is not the appropriate remedy. [14]
Prior to issuing the Award, I
requested both parties to advise me of any Contract provision pertinent to
Weingarten rights. Neither party did so. The CTA now relies in part on §10.10
which is found in Article 10—Other Working Conditions,
General, and reads as follows:
10.10 SUSPENSIONS prior to
the suspension of an employee, the supervisor shall discuss the case with a Union
representative at the work location if the Union representative is available
and if requested by the employee. In the event a Union representative is
requested by the employee and is not immediately available and immediate
suspension is not required by the nature of the charge, the suspension will be
delayed until the matter can be discussed with a Union representative. However,
in no event does the Authority have to delay the suspension more than 24
hours.
Whatever §10.10 means, [15] it
does not apply here. The meeting called by Ms. Butler was not “Prior to the
suspension of an employee.”
The main thrust of the CTA’s argument is that it is not required to inform an
employee of his/her Weingarten rights at the beginning of every interview and
that grievant had reasonable grounds to believe that the meeting involved
possible disciplinary action and that she failed to request Union
representation. But the Award does not require the CTA to advise an employee of
his/her Weingarten rights or that the employee might want Union representation.
All it requires is that the CTA advise the employee prior to the interview that
discipline might be involved. It is then up to the employee to request or waive
Union representation. The CTA did not follow that procedure here, thereby
violating grievant’s due process rights. As noted in its discussion of
Weingarten, The Common Law of the Workplace, The Views of Arbitrators, (BNA,
1998; National Academy of Arbitrators, T. St. Antoine, Ed.), §6.16, p. 195: “*
* * it is increasingly common for arbitrators to require employers to inform
employees that a meeting may lead to discipline, at least when the purpose of
the meeting is unclear to the employee.”
Nor can I agree that grievant
reasonably must have known that the meeting or interview had the potential for
disciplinary action. All grievant was told by a clerk was that the manager
wanted to see her. The interview began by Ms. Butler’s asking what grievant
knew about the wallet she returned a few days earlier. Ms. Butler should have
told grievant that discipline was in the air before starting the interview by
asking that question.
As to the appropriate remedy, I
find no basis for altering the Award. This was a particularly egregious due
process violation since prior to the interview, the CTA had all the evidence it
needed to discipline grievant and would have done so no matter what grievant
responded during the interview. Further, the false statement
by grievant at the outset of the interview played a role in the decision to
discharge her.
For the reasons stated above,
the CTA’s request for reconsideration is denied.
AWARD
For the reasons set forth in the
Opinion, which Opinion is incorporated by reference in this Award, the
grievance is sustained in part and denied in part. Grievant shall be reinstated
to her job as quickly as possible. She will not be entitled to any back pay or
any other benefits under the Contract except for seniority rights which shall
be deemed to have continued. Further, grievant’s reinstatement will be
conditioned as follows: [1] She must tender a written apology to L__ and [2]
she must agree to enter into a written agreement with the CTA providing that
out of each of her first and third pay checks, the sum of $170 shall be
deducted and paid over to L__.
The Arbitrator will retain
jurisdiction for sixty (60) days to resolve any dispute, now unforeseen, as to
the remedy.
Notes
1 CTA-ATU contracts speak in
terms of “sufficient cause,” but in arbitrator parlance, there is no
distinction between “just,” “sufficient,” “good”or
just plain “cause.”
2 The security digital cameras
on the bus were operating, as grievant knew, and show that she put the wallet
in her pocket, not in her purse as grievant testified. It is possible,
however, that grievant put it in her purse later, while out of camera
sight.
3 His bank statement indicates
that he withdrew $600 on September 30, but it was actually on the 29th because
the withdrawal was after 2:30 p.m. and not reflected until the next day.
4 Mr. O’Bden
also stated that L__ told him what was in his wallet, including cash in the
amount of $340.
5 The “lost and found” tag,
which grievant filled out, has a printed line for “Amount of Money (if any)
$___,” on which grievant wrote “N/A.”
6 Grievant had no prior criminal
legal problems and was not prosecuted for this action; but L__’s
money was never returned.
7 The Arbitrator has no doubt
that theft can provide sufficient cause for discharge, but cannot agree that
the facts in the B__ case are “similar to the case at bar.” First, it did not
involve Weingarten rights and several passengers testified that B__ was given
the lost wallet of one of the passengers while she denied it even though she
threw the wallet out the bus door when the police, who she was trying to evade,
were finally able to catch up with her.
8 Exhibit “A”to
the Union’s brief consists of work records of a bus operator in January 2002
who was charged with handling cash fares one day after his fare box jammed. He
received a suspension, 6 months probation and fare box retraining. No specific
charge of theft was alleged. The CTA exercised its “prerogative to extend
leniency.” In Exhibit “B” a bus operator with 18 years’seniority was charged by a CTA travelling inspector in May 1991 with receiving a $2.00
cash fare and not putting it in the fare box. After his bus was stopped by the
CTA he volunteered to be searched, saying that he only had a $10.00 bill on his
person, and that’s all the search revealed. His 1991
work record indicates that he was referred to the “director” for further
consideration, but the record does not indicate what transpired thereafter. I
do not believe that these exhibits provide support for the Union’s claim for
leniency or a last-chance agreement.
9 The absence of such provision
in a labor contract could support the view that [1] an employer has the initial
burden of advising an employee, prior to an interview where discipline might be
involved, of his/her Weingarten rights; or [2] that the burden of proving the
employee was aware that such rights existed and could be invoked. See, Maui
Pineapple, 86 LA (BNA) 907, 911 (1986).
10 Although the Union objected
to the “characterization” of grievant’s feelings I cannot ignore it.
11 The CTA also states that in
Cook County the Weingarten violation did not change the outcome of that
grievance. However, it did, reducing a suspension from five days to one.
12 I also give some weight to
the fact that there is no evidence in this record that grievant was aware that
Weingarten rights existed or that she could invoke them if she had reasonable
grounds to believe that a meeting with a supervisor might involve disciplinary
action.
13 The CTA’s
Memo is cited as “CM” and the Union’s as “UM.”
14 The Union’s Memo offers
countervailing arguments. Both parties cited additional cases in support of
their views.
15 And, since the parties chose
not to rely on §10.10 prior to the Award, I think it best to leave its full
interpretation to another case and time.