James M. Paulson ~ Arbitrator - Selected Decisions

This Decision involves a discussion of arbitrability in the timeliness of the filing of two grievances as well as the merits of the grievance challenging a five day suspension. The resolution of the suspension issue discusses the burden of proof on the employer and an analysis of making credibility resolutions. The Decision also assesses the appropriateness of the suspension in light of the treatment of other employees.

Both issues of contract interpretation and discharge are presented. Proof of the alleged misconduct is reviewed in light of contradictory evidence. Whether the asserted misconduct requires progressive discipline or may be ignored is analyzed. An examination is made of the contractual significance of both employer generated disciplinary rules as well as agreements of the parties outside of the contract. Credibility issues are raised and discussed as well as the application of even handed treatment of an employee in a similar situation.

Issues of whether a binding agreement during mid-contract negotiations was reached; whether such agreement was superseded by the master agreement; whether the mid-contract agreement was breached; and what remedy, if any, is appropriate are presented in this case. While the material facts are not disputed in this case, the meaning and significance of those facts are viewed differently be each party. A distinction between a “make whole” remedy and a “windfall” remedy is discussed.

Issues of the burden of proof in arbitrability and application of the continuing violation theory are discussed. A determination of whether applicable contract language is sufficiently ambiguous to permit extrinsic evidence is made. Evidence of conduct and statements in contract negotiations is applied to determine the intent of relevant contract language. An analysis of whether or not management discretion was exercised in good faith and not in an arbitrary or capricious manner is also made.

The question of whether a late filed grievance is arbitrable in light of “continuing violation language and exclusionary language in the agreement is made. An analysis is set forth of whether the refusal to place a promoted employee on a higher salary step as recommended by an advisory board is “fair” as required by the agreement..

Scope of Agreed Upon Issue; Just Cause of Suspension under the Seven Tests; Remedy Modifying Post Suspension Events

The question of whether the matter before the arbitrator is determined by the wording of the grievance or the scope of the agreed upon issue is analyzed. The issue of whether an error was intentional or inadvertent is reviewed. The authority of the arbitrator to order a remedy considering the impact of improper discipline on post discipline events is discussed.

Validity of an Employer’s Change in Policy Affecting Overtime Pay Calculations; Interaction of Management Rights, Past Practice and Federal Regulations; Arbitrary and Capricious Exercise of Management Discretion

The employer’s unilateral policy change affecting the employee’s overtime calculation and ability to drive his personal vehicle on government property following an accident is reviewed under the management rights provision, federal regulations and the duty not to act in an arbitrary and capricious manner as set forth in the covenant of good faith and fair dealing.

Contract Interpretation of Ambiguous Language; Progressive Discipline on Suspension; Evenhanded Treatment; and Remedying Post Discipline Action

Ambiguous language protecting certain employees from discipline is reviewed. Situations evidencing lack of evenhanded treatment are analyzed. Adverse inference for failure to present witness is applied. Remedial order modifying post discipline action by employer is issued.

Burden of Proof and Application of Seven Tests for Just Cause; Resolution of Contradictory and Contested Evidence of Misconduct; Impact on Remedy of Late Presented Exculpatory Evidence

Under the seven tests for just cause a detailed analysis of the actual evidence of misconduct is reviewed including alleged early admissions of the grievant and subsequent denial at hearing. The completeness and objectivity of the investigation of the misconduct is reviewed. The impact of late presented exculpatory evidence on the remedy is discussed.

Removal of Federal Employee on Contradicted Eye-Witness Testimony; Analysis and Implementation of Federal Credibility Resolution Guidelines; Impact of Investigative and Earlier Hearing Conclusions on Credibility

A review and refinement of credibility resolution guidelines by the Merit Systems Protection Board is applied to contradicted eye-witness testimony of alleged patient abuse. A detailed analysis of witness credibility in light of bias and physical evidence is made. Earlier investigative and board hearing credibility resolutions are reviewed. The significance of the decision of the District Attorney to dismiss criminal charges is referenced. The effect of long service with no prior discipline is applied.

Application of the Seven Tests for Just Cause and Progressive Discipline; Impact of Personal Problems on Misconduct; Request for Leniency

Defenses for misconduct of lack of financial harm to the employer as well as the impact of outside personal problems are analyzed. The power of the arbitrator to grant leniency is reviewed.

● Burden of Proof on Arbitrability Claims; Contract Language Making Grievance Prima Facie Untimely; Defenses of Lack of Ripeness and Continuing Violation

Subject matter of grievance is not arbitrable by contract language. Defenses of lack of ripeness and continuing violation fail in light of contract language requiring prompt resolution of disputes.

¹Permission to publish these decisions was obtained from the parties pursuant to the Code of Professional Responsibility of Labor Management Disputes, §2, C (2) (2003). In some instances, the grievant’s name and that of other persons has been redacted for confidentiality reasons.