On September 27, 2018, UAW Staff, Jim Soldate, represented the Union in an arbitration case where he argued that the Company, Paris Las Vegas, discharged the grievant without just cause. Soldate faced some interesting procedural issues along the way. On January 17, 2019, arbitrator, Ann Breen-Greco, sustained the grievance and reinstated the Grievant with full back pay.
The Grievant had been employed by Paris Las Vegas since 1992 and was a slot attendant at the time of her termination. She had a good record prior to 2016. Then, her record reflects three disciplines for not returning her keys at the end of her shift and a discipline for leaving cash in the sorter. Finally, she was terminated for failing to turn in a pay slip.
At the arbitration hearing, the parties stipulated that the issue was whether the termination of the Grievant was for just cause pursuant to the contract between the parties. Later, for the first time in its post-hearing brief, the Company asked the arbitrator to set aside that stipulation and find that the case was not arbitrable. The Company argued that the final incident that lead to termination fell under a contract provision that was not subject to arbitration. The arbitrator found that the Company had waived its right to make the arbitrability argument by stipulating to the issue before the arbitrator and not raising the arbitrability issue prior to its post-hearing brief.
The Company failed to follow the progressive discipline procedure outlined in the collective bargaining agreement. Instead, it followed the procedure outlined in its handbook. The handbook procedure lead to more serious discipline sooner than the progressive discipline system in the collective bargaining agreement. Nevertheless, the arbitrator recognized that the Company gave the grievant two final warnings and genuinely did not want to fire the Grievant. In the end, however, the arbitrator found that the Company’s leniency at the end of the handbook procedure did not cure its failure to follow the procedure in the collective bargaining agreement.
The arbitrator found that had the Company followed the early informal steps of the contractual discipline system, the grievant may have corrected her behavior sooner. The arbitrator recognized that the bargained for progressive discipline system was intended, in part, to correct behavior.
The Company also argued that it had to discharge the grievant because her conduct violated state gaming regulations. The arbitrator found that, in fact, the progressive discipline system in the collective bargaining agreement complied with the state gaming regulations.
In this case, UAW Staff Soldate faced a number of challenges that we can learn from as we prepare for our next case.
- Although the Grievant had a spotless record prior to 2016, her record leading up to her discharge included several incidents that warranted discipline. Not only did Soldate show that the Company failed to follow the contractual progressive discipline system, he elicited testimony regarding what may have caused the change in the Grievant’s work performance. The Grievant lost several family members in 2016 including the aunt and uncle who raised her. As a result, the sole support for her family fell on her. Although, such testimony may not be directly relevant in this case, it appeared to generate some sympathy for the grievant.
- The Company attempted to use the state gaming regulations to support its procedural argument that the case was not arbitrable and its argument that it, nevertheless, had just cause to discharge the Grievant. Soldate took the time to carefully examine the state gaming regulations and successfully argued that the contractual progressive discipline system actually complied with and supported the intent of the regulations.
- The arbitrator’s decision is a good reminder to be careful when entering into stipulations. It is also a reminder that although the parties may raise some issues for the first time at the arbitration hearing, a party will almost never be able to raise an issue for the first time in its post-hearing brief. If faced with new evidence after the close of the hearing, a better practice would be to make a motion to reopen the hearing rather than simply present the new evidence or argument in the post-hearing brief.