Edward J. Gutman, LLC

Mediation & Arbitration Services


Summary of Selected Arbitration Awards by Mr. Gutman

 

In an arbitration decided by Arbitrator Edward Gutman the grievant was a bus driver for a public transit company with 12 years’ experience and no prior history of discipline. The transit company’s substance abuse policy required drivers in an accident resulting in physical injuries or where one or more of the vehicles incurred disabling damage to submit to post-accident drug and alcohol testing According to the policy, the employer had the option to waive testing in a non-fatality accident if the employee could be completely discounted as a contributing factor to the accident. If testing were conducted, employees were to be placed on administrative suspension pending the results of the drug test. In the event discipline was finally imposed the employer’s CBA required the employer to provide a written statement of charges to the employee within five days after the employer learned of the cause for discipline.

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In a labor arbitration hearing recently conducted before Arbitrator Gutman, the parties’ collective bargaining agreement provided a three month probationary period for all new hires which gave the employer the discretion to terminate new employees during the first three months of their employment without showing just cause. In this case, a probationary employee was given timely notice that his job performance and attendance had been unsatisfactory during his first three months on the job but the employer give him a sixty day extension of his probationary period and cautioned that if he failed to make improvement in that period of time, his employment would be terminated.

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A bus driver was placed on a last chance agreement following complaints by riders of the driver’s rudeness.  Six months later complaints recurred and the driver was terminated for violating the last chance agreement.  The driver asked for the names and contact information of the customers and the bus company refused.  The driver’s grievance raised a denial of due process claim.  The evidence revealed the driver was shown the reports of the complaints but when called to testify did not deny them. Mr. Gutman denied the grievance.


An administrative secretary was laid-off in a reduction in force.  Under the CBA, she had the right to bump less senior employees in her classification.. The evidence revealed there were no less senior employees in her classification. However, the agreement recognized seniority based on departmental and total length of service in addition to classification and permitted bumping using either criteria if the laid-off employee could perform the work without training.  Mr. Gutman granted the grievance to allow the employee to claim a job based on either her department or total length of service.


An employee was charged by co-worker with several instances of improper workplace conduct that took place over a two week period.  The employer prepared a set of two affidavits for each of them confirming the conduct by the dates each occurred. The employer used on set to suspend the employee for 30 days and two weeks later, the other set to fire him. Mr. Gutman ruled the termination was improper because since the employer knew of all of the misconduct at the time he was suspended, the termination was workplace double jeopardy.


A correctional officer was arrested for a DUI. He was susupended by his warden for two weeks after an accusation by  the arresting officer that  while in custody the CO made angry and dispararging remarks about him for making the arrest.  The CO testified and denied making the offensive remarks.  The warden never met nor spoke to the arresting officer before imposing the suspension and despite the CO's denial of wrongdoing in the hearing, testified that he believed the arresting officer's testimony over the CO's denial for the sole reason he was a police officer. Mr. Gutman found insufficient evidence to supoprt the decision to suspend the CO and granted the CO's grievance.


A security officer was fired after allowing contraband to enter a facility through the post guarded by the officer. The employer had a progressive disicipline policy that required "fair and consistent" treatment of all employees. The officer had never been disciplined or performed unsatisfactorily.and the record revealed that other officers who had allowed breachs of security at their posts were retrained rather than terminated.  Mr. Gutman granted the officer's grievance and ordered her reinstatment.


A union contracted with health insurance carriers to provide employees' health benefits to members of the bargaining unit.  The carrier invoiced the employer monthly for payment of premiums. The employer paid the premiums from "contributions" the CBA required it to make and from funds withheld from employees' pay for their shares of the premiums.  In negotiations with a new carrier, the new carrier agreed to provide coverage for 13 months, one month of which would be "free." The employer refused to make "contributions" for the "free" month and the union filed a grievance to require the employer to make its "contribution" towards payment of the employees' portion of the prermiums.  Mr. Gutman found that the CBA required the empoyer to make its contribution for the free month to defray the employees' shares of the preium cost.


In the arbitration of the dismisal of a police officerwho had failed to follow two sets of department protocol in assisting with the ID of a suspect..  When confronted, the officer gave a series of conflicting explanations to explain his failure to comply with the department's rules. Mr. Gutman sustained the termination finding that the officer attepted to shroud his failure to follow clear department protocols with recurring inconsistent and contradictory explanations and that his intentional deception was a direct affront to his and the depatment's integrity.


A collective bargaining agreement provided for county employees to work four ten-hour days but that the schedule could not include work on both a Saturday and Sunday in the same workweek.  A union filed a grievance claiming that a work "day" was the day on which a shift begins.  Therefore, employees who start their shifts as late as 11:59 p.m. on a Saturday and Sunday worked both days of a weekend in violation of the CBA.  The county claimed that a work "day" was the day on which an employee worked the majority of hours.  The evidence revealed that the parties had used the majority of hours' standard to determine the meaning of a work "day" since the contract was negotiated 18 years before. Mr. Gutman found that the term "day" to be the day on which the majority of hours are worked as the parties had interpreted and applied it ever since the CBA had been in force.    


A federal government employee filed a grievance alleging that she has been working above her grade level for over a year and sought a promotion to the higher grade and back pay. Federal law provides, however, that grievance procedures in collective bargaining agreements shall not apply to the classification of a position. The agency processed the grievance through the steps of the grievance procedure but did not raise the federal statute as a bar to arbitration until the start of the arbitration hearing. The employee’s union argued that the agency had waived the right to claim that the grievance was not arbitrable. Mr. Gutman ruled that a party cannot waive an arbitrator's lack of jurisdiction and dismissed the grievance.


A college administrator was terminated after the college alleged that she had registered individuals who were not students including her husband, her son and  a 65 year old grandmother in courses for which they never attended classes but received Pell Grants and other financial assistance. She denied the allegations but based on circumstantial evidence including pleading no contest and receiving a suspended sentence in a criminal indictment against her, Mr. Gutman ruled that substantial evidence supported the allegations of misconduct and upheld the termination.


A teacher, who was lauded by parents, students and staff and had exemplary evaluations, was accused of cueing 5th grade students on questions on an annual assessment test. She was not given the "some kind of hearing" required by the Supreme Court's Loudermill decision before she was recommended for termination. In addition, she was given a "gag order" by school authorities directing her not to speak to any staff or students about the charges against her; her students' successful test scores in previous years were used as evidence to support the recommendation for her termination; the individuals who made the accusations did not testify and their accusations were discredited by the teacher's witnesses.  Mr. Gutman ruled that she had been denied due process and recommended that she be reinstated.


A school bus driver was terminated after testing positive for marijuana.  She claimed that the results were a "false positive."  She was unable to prove that the test results were defective.  Mr. Gutman ruled that the employee should be allowed to enter the school system's employee assistance program ("EAP") which its drug policy provides as an alternative to termination. 


A truck driver was terminated for signing his helper's name on company documents and claiming.  The driver derived no financial benefit from his actions and his local union argued in his defense that the employer had not shown "just cause."  However, the CBA's just cause provision had been negotiated out of the agreement and in its place the parties had agreed on provision giving the employer "sole" discretion for discharge and discipline.  Mr. Gutman applied an abuse of discretion test and found that the local union had not shown that the employer abused its discretion in terminating the driver.


A teacher was disciplined for violation of church and state. Parents complained that the teacher discussed religion in the classroom when he compared the historical importance of Pythagoras to Jesus, Mohammed and Moses during math instruction.  Mr. Gutman ruled that the teacher's reference to these historical icons neither endorsed the establishment of religion, nor cross the First Amendment line as interpreted by the Supreme Court of the United States and found in favor of the teacher.


A teacher with over 30 years of teaching experience was terminated for poor performance. The evidence disclosed that despite a record of satisfactory teaching performance over the earlier years of the teacher's long tenure, evaluations of her teaching performances over the past several years had been unsatisfactory.  The teacher claimed that the recent evaluations had been biased because of her age and that he long tenure protected her from termination.  Mr. Gutman's award acknowledged the teacher's long service to the school system but upheld her dismissal despite her many years of satisfactory service.


A local school board custodian was terminated for entering the locked office of his principal, removing the principal’s signature stamp from his desk and stamping his signature to a purchase requisition for janitorial supplies without authority. Mr. Gutman found that the school board sustained its burden of proof of "good cause" to support the termination.


A police officer with over 10 years on the police force was accused of fraudulently misstating his date of employment on an application for promotion and was suspended. The evidence revealed that the wording on the application was ambiguous. Mr. Gutman ruled in favor of the police officer finding that the department failed to prove that the police officer intentionally misstated his years of employment.


A teacher with over 30 years of teaching experience was terminated for poor performance. The evidence disclosed that her evaluations over the past several years had been unsatisfactory. The teacher claimed that her evaluations had been biased and that her long tenure in the system protected her from termination. Mr. Gutman’s arbitration award acknowledged the teacher’s long service to the school system but upheld her dismissal despite her many years of satisfactory service.  


An employee on a flex time schedule that allowed him to start his work day at 6:30 a.m. was accused of being in the employer’s on-site fitness center during his regular work day. As discipline, the employer revoked the employee’s flex time privileges. A month later he was suspended for two weeks. The employer contended that the suspension was for signing his time card which showed that he had worked the hours during which, according to the employer, he had been at the fitness center on company time. Mr. Gutman ruled that by revoking the employee’s flex time schedule and then suspending him for 10 day for the same misconduct, the employee was subjected to work place double jeopardy and found that the 10 day suspension violated the employee’s rights under his collective bargaining agreement.  


A union filed a grievance against a bus company alleging that the company improperly restored a bus driver’s seniority after he quit and was re-hired resulting in lost earning opportunities for all drivers below him on the seniority list. Mr. Gutman’s award was in favor of the bus company as the evidence failed to show that the driver was improperly placed on the seniority list or that other drivers lost earning opportunities.


A public school teacher with 18 years of teaching in a public school system was dismissed after two students complained that the teacher had hit them. The teacher was charged with second degree criminal assault but found not guilty in the absence of intent to harm the students.  Mr. Gutman found that the teacher's behavior was a deliberate violation or disregard of the standard of behavior which a school system has the right to demand of its teachers and that the teacher's conduct toward his students undermined his future classroom performance and overall impact on his students. Therefore, because of the teacher's failure to live up to professional standards in terms of what a teacher does in the classroom, the teacher's appeal was denied.   


A transit system employee diagnosed with sleep apnea was reinstated in a previous arbitration after being fired for causing a serious accident while operating a transit system rail car.  The arbitrator in that case set as a condition of reinstatement that this employee was not to operate dangerous equipment. Eight years later, this employee bid for and was awarded a position that required him to drive a motor vehicle.  Two years later, the head of HR discovered the prior arbitration award and immediately removed him from the job which he had bid and won without any attempt to determine whether he was able to perform the new job safely with or without accommodations.  Mr. Gutman upheld the employee's grievance with the proviso that within five calendar days of his Award, the transit agency could require the employee to provide medical certification from an independent physician of his fitness to perform the duties required in the position which he had held for the last two years with or without corrective measures.


A local utility imposed a 10-day suspension on an employee for AWOL.  The employee did not contest the factual basis for the suspension but claimed that the agency had failed to follow the time lines for discipline in the parties' CBA by one day.  The agency claimed that it was one day late because it had orally granted the union additional time to respond to the charges against the employee. The union disagreed because the CBA requires time extensions to be in writing.  Mr. Gutman disagreed citing the recognized exception to rigid applications of time limits where the parties have not been consistent in the enforcement of the time limits language and that, as in this case, mutual agreements to extend time limits has been the practice. While the extension of time was not in writing, the Union cannot accept the benefit of the extension and then claim that the extension was invalid because it was orally granted.  


A corporal with 23 years of service in an airport authority police department was wearing sunglasses on top of his head at roll call for his shift.  He was given an order by a sergeant to remove them and refused.  For refusing the lawful order of the sergeant, the corporal received a week's suspension and a demotion to police officer for a period of one year or until the next time the corporal exam was given whichever occurred later.  The evidence revealed that the corporal' was not under the sergeant’s command at the time the order was given.  In addition, it was shown that the sergeant had a "pet peeve" about officers wearing sunglass on top of the head. The department's general orders stated that officers were not to give orders to personnel not under their command except in emergencies and further that order were not to be given based on personal feelings.  While the sergeant's order violated ignored these sections of the general orders, the corporal had been insubordinate, and Mr. Gutman found that discipline was warranted.  However, the layoff and demotion were excessive and the Award overturned the layoff.  The demotion was sustained but since eighteen months had passed since the demotion, the Award ordered immediate reinstatement to the rank of corporal. 


A correctional officer was fired for bringing a cake into the prison after being warned twice that she could not bring the cake inside.  The evidence showed that a whole baked cake could conceal various forms of contraband. The officer claimed that she was unaware of any rule against bringing a cake into the prison facility and while there was no written rule prohibiting cake to be brought into the prison, the evidence was clear that the officer had disobeyed a lawful order. Mr. Gutman found that the officer had been insubordinate and denied the officer's grievance.


An employee with 39 years of government service was suspended for using government postage valued at less than $20 to mail three personal letters  The deciding official explained that he no longer was confident that he could depend on the employee to only use agency resources for authorized purposes in support of his decision to suspend the employee. The employee whose work performance had been consistently “successful,” frequently “outstanding” “exemplary” and had received numerous commendations for “quality performance,” and “professionalism;” proven “leadership in the performance of duties;” and “drive and ability to render public service;”  “motivation and ability” to advance productive public contact work;  “outstanding completion and organizational competence,” “diligence and tireless effort” “dedication and cooperation;” outstanding “leadership, ingenuity and team spirit,” “ongoing commitment to the highest public service goals of the agency;” and the “trust, respect and cooperation” explained the highly extenuating circumstances of her using the postage.   In the context of the employee's perfect record of loyal, faithful and faultless conduct, Mr. Gutman found that the decision to suspend the employee was unjustified and reduced the discipline to a written reprimand. 


A school system changed it's policy of developing individualized educational programs (IEP) for special education students based on a calendar year to an academic year, i.e. from September to June.  A special education teacher changed a student's existing calendar year IEP  to an academic year without conducting a new IEP meeting with parents and school special ed staff as required by federal law.  The student did not suffer any loss of benefits but the teacher was given a written reprimand with a right of appeal.  She did not appeal but two months later, the teacher was given a two week suspension for the same offense. Mr. Gutman found that disciplining the teacher two times for the same offense was a form of double jeopardy in violation of the teacher's due process rights and invalidated the suspension.




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