Arbitration Award


In re

Chicago Transit Authority


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] 




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. 




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.  




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 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. 




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.




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.