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IN THE MATTER OF AN ARBITRATION
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Before, Daniel M. Winograd
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Arbitrator
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BETWEEN
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THYSSENKRUPP ELEVATOR CORP.
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Grievant: J. Newcomb
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Discharge
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AND
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AAA No. 77 300 0329 05
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INTERNATIONAL UNION OF ELEVATOR
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CONSTRUCTORS, LOCAL 25
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1.
The
arbitrator was selected by the American Arbitration Association in accordance
with the parties' Collective Bargaining Agreement.
2.
A
hearing was held at the offices of the American Arbitration Association, 1675
Broadway, Benver, Colorado, on February 22 and 23, 2006.
Appearances for the Company
were :
Frank Kollman, Attorney
Kollman & Saucier, P.A.,
of Counsel
Alan Greenwell, Field
Operations Manager
Jack Upchurch, Labor
Relations
J. Patrick Heaney, Vice
President, Labor Relations
David Andrews, Branch
Manager
Appearances for the Union
were :
Robert Matisoff, Attorney
O'Donoghue & O'Donoghue,
LLP, of Counsel
James H. Chapman, AGP
Joseph A. DuPont, Business
Manager
John. J. McNerney
Dale Goalmer, National
Organizer
Kevin Kanne, Witness
Jeff Newcomb, Grievant
3.
A
stenographic transcript of the proceedings was received by the arbitrator on or
about March 7, 2006.
4.
The
post hearing briefs of the parties were received by the arbitrator on or about
April 17, 2006.
OPINION AND AWARD OF THE
ARBITRATOR
ISSUE
The parties have stipulated that the issue presented in this
case is: "Was grievant discharged from his employment by the Company for
just cause? If not, what is the appropriate remedy?" They have stipulated
that this matter is properly before the arbitrator for final and binding determination
in accordance with the provisions of their Collective Bargaining Agreement.
RELEVANT CONTRACT PROVISIONS
(Jt. Ex. 1)
ARTICLE XXII
Hiring, Layoffs and Transfers
*****
Par. 5
*****
(e)
It
is understood and agreed that prior to terminating an employee for
unsatisfactory performance who is to be replaced under this paragraph or any
other employee, the Company will give a written warning to the employee with a
copy to the Business Representative in order that the employee be given an
opportunity to improve his work performance. Such a termination may be
submitted as a grievance to the National Arbitration Committee as provided
under Article XV as a final source of appeal.
FACTS
The Company sells, services and maintains elevators
throughout the United States. It employs eight service mechanics in its Eagle,
Colorado office, all of whom are represented by the Union in collective
bargaining. They are responsible for service, maintenance and repair work for
the more than 900 elevators installed at customer locations throughout the
central Rocky Mountain area in Colorado. Many of the elevators are located in
ski resorts which operate throughout the Eagle service area. Some of the
elevators are hydraulic lifts while the remaining equipment is operated by a
cable and counterweight system.
Most
of the Company's customers have service contracts with the Company. Those
contracts require the customer to pay a fixed fee in exchange for which they
receive regularly scheduled (usually monthly) maintenance service on their elevators.
If an elevator malfunctions, the customers may call upon the company to perform
repair work on a "call back" basis. Each service mechanic is assigned
a regular route on which he is required to perform the periodic maintenance
work as well as respond to any call backs that may occur. The usual service and
maintenance work on all elevators includes maintaining the cleanliness of the
elevator cars, elevator rooms, motors, pumps and other equipment, as well as
cleaning the car tops and the floors of the elevator shafts. Routine service
also includes aligning door opening equipment, replacing light bulbs and
lubricating various moving parts on the equipment. Additionally, the fluid
levels and hydraulic pressures of hydraulic elevators are to be checked at each
routine service call. (See, Co. Ex. 1)
At the time of his discharge in July, 2005, grievant was
employed as a journeyman elevator mechanic in the Eagle office. He had been
employed by the Company for approximately 5 years, but had worked in the elevator
industry since 1981.
Alan Greenwell is the Operations Manager in Eagle. His
supervisor is Branch Manager David Andrews. Greenwell transferred to Eagle from
Ft. Collins, Colorado in October 2004. Andrews arrived at approximately the
same time. Both managers had prior managerial experience with the Company, its
predecessors or competitors, but neither had been trained as a journeyman
mechanic.
Greenwell
testified that each service mechanic is assigned a monthly route list which
includes all of the routine maintenance stops required during the month. If an
elevator has received its regular service, Greenwell testified, the usual
service call should take one to one and a half hours. If the elevator has gone
3 or 4 months without service, it may take as long as two hours to bring it
into fully serviced condition, and if the elevator has been neglected for a
substantial amount of time, a service call may take as long as one and one half
days to bring it up to standards. Grievant's route included 105 elevators
located in a variety of ski resorts, condominium buildings and offices. (See,
Co. Ex. 2) His largest customer, and, in fact, the Eagle office's most
lucrative customer was the Vail Cascade Resort.
Within
a few months after Greenwell assumed his responsibilities in Eagle, he noted
that an unusually high number of call backs were occurring in the Eagle office.
In particular, he noted that there was an unusual number of call backs to
customers on the routes serviced by grievant and Kevin Kanne, another elevator
mechanic assigned to Eagle. He became concerned that the increase in call backs
was reflecting a lack of routine service and maintenance as properly serviced
equipment suffers fewer breakdowns than does equipment which has been
neglected. Greenwell, therefore, began a series of site surveys during which he
visited various customer sites to determine the quality of service being
provided to the customers. Although Greenwell conducted numerous site surveys
on properties serviced by grievant and Kanne, he also performed similar
examinations of properties serviced by the other six mechanics working out of
the Eagle office.
On
March 8, 2005, Greenwell and Andrews met with grievant to discuss the
performance deficiencies Greenwell had observed during his surveys of the
customers on grievant's route. They informed grievant that the Company was
dissatisfied with the quality of grievant's work at the Vail Cascade, CMC Vail,
Vail Mountain Lodge and Marriott resort. During the course of the discussion,
Greenwell and Andrews provided grievant with copies of photographs they had
taken at the various locations, pointing out to grievant the deficiencies in
service and maintenance they had observed. They reminded grievant that his
routine service duties required him' to clean all elevator equipment, including
all moving equipment, the elevator pit and car top and the elevator equipment
rooms. After discussing the various deficiencies, Greenwell and Andrews
instructed grievant to "clean entirely" the Vail Cascade, Marriott,
CMC Vail and Vail Mountain Lodge elevators within 10 days and bring all monthly
service obligations on his route current within 30 days. (Co. Ex. 5, 6)
Grievant acknowledged that he had received an understood his instructions. He
did not protest that he was not being allowed sufficient time to complete the
required work and he did not file a grievance as a result of receiving the oral
warning that his work was insufficient.
Shortly
after his meeting with grievant, Greenwell learned that the Vail Cascade had
employed a consultant to examine the status of and make recommendations
concerning its elevator services. The consultant, Lerch Bates, is nationally
known as an expert in the field. Greenwell learned that the Vail Cascade resort
had asked Lerch Bates to make recommendations including recommendations whether
Vail Cascade should continue to use the Company to service its elevators or
should enter into a service contract with one of the Company's competitors.
Greenwell
received a draft copy of the Lerch Bates report during the first two weeks of
March. Having reviewed the draft, he called a meeting with grievant for March
18. He noted that grievant had not made satisfactory progress in remedying the
deficiencies discussed at the March 8 meeting and informed grievant that the
Company expected "radical, dramatic and immediate" improvement in
grievant's performance. (Co. Ex. 7) Shortly thereafter, Greenwell received a
copy of the 59 page Lerch Bates report along with a request that the Company
provide a proposed schedule for completion of the work required. (Co. Ex. 3)
Armed
with the Lerch Bates report, Greenwell again notified grievant and Kanne that
the Company was dissatisfied with their job performance. On April 6, Greenwell
sent written notices to both mechanics informing them that "as provided
for in Article XXII, Par (e) of the National Agreement. . . this letter will
serve to notify you that you are not fulfilling your responsibilities at a
satisfactory level." (Co. Ex. 3, 4) He provided each of them with a 6
point list of the work required to be performed and warned them that their work
must show "immediate and sustained" improvement or "we will have
no alternative other than to terminate your employment." (Co. Ex. 3, 4)
Grievant was provided copies of pictures taken at customer sites on March 1 and
again on March 22 as well as with a copy of the Lerch Bates report1.
(Co. Ex. 3)
Hoping
to reinforce the Company's expectations for grievant and Kanne's performance,
Greenwell called a meeting with Andrews, the two mechanics and their Union
representative for April 12. After reviewing the deficiencies in grievant's
previous performance, Greenwell and Andrews instructed grievant to perform all
required maintenance and service work at three major resorts2 within
30 days and to bring all of his accounts up to date within 90 days. He was
instructed to continue performing routine service on his route as required and
to respond to call backs when needed. Grievant acknowledged that he understood
his instructions and indicated "I'll do my best" to get all of the
work done within the time frame set out by Greenwell and Andrews. He also asked
Greenwell whether he should cancel a planned vacation to Japan to finish his
work. Greenwell responded that it would not be necessary for grievant to cancel
the vacation. Grievant did not protest that he was not being granted sufficient
time to perform the necessary work. He did not file a grievance as a result of
the written notice given him on April 12.
___________________
1As
required by the Collective Bargaining Agreement, Greenwell also sent copies of
all the relevant documents to the Union.
2Vail
Cascade, Marriott, Vail Mountain Lodge
Grievant
left on his scheduled vacation from April 30 to May 19. On May 4, while
grievant was on vacation, Greenwell received a letter from the property manager
at the Willows Condominiums (Co. Ex. 8) indicating that grievant had not
performed a required pressure test. Greenwell made a site visit to the Willows
on May 9 and found a number of unsatisfactory conditions on the elevator,
including the cleanliness of the car top and pit3. He also found
that grievant's service record had not been properly completed and that the
pressure tests had not been performed. Grievant was informed of the problems on
his return to work, in May, but he did not perform the pressure test. On June
29, mechanic Greg Smith performed the pressure test which was "3 years
past due." (Co. Ex. 10)
On
May 4, Greenwell also received a call from the manager of the Lodge at
Lionshead II indicating his dissatisfaction with the service he was receiving
from the Company. He indicated that grievant had not serviced the property
since November, 2004, despite the Company's contract to provide monthly
service.
_______________________
3Photographs
of the pit and car top show various items of trash on the floor of the pit and
on top of the elevator car. A dirty towel was found on the car top, apparently
having been left there when grievant last serviced the elevator. (Co. Ex. 9)
Greenwell visited the site on that day and found similar
deficiencies in grievant's work at that location. In particular, Greenwell
found that the cart top, pit and machinery were unacceptably dirty, that
grievant's records were not up to date, and that a required pressure test had
not been performed in more than two years. Greenwell also confirmed that
grievant had not serviced the elevator since November, 2004. Therefore, he
offered Lionshead II a free year of service to compensate it for the previous
lack of service.
Greenwell
gave grievant copies of his surveys of the two Lionshead II elevators on May 31
and instructed grievant to take immediate action to resolve the deficiencies.
On June 6, Andrews received a letter from the manager at Lionshead expressing
his dissatisfaction (Co. Ex. 13):
"We
became aware of a drop off in service levels last summer. Our machine rooms and
elevator pits, upon inspection by us, showed high levels of dirt and debris
build-up. We also realized by the fall, that we had not seen a service man in
quite a while.
On
November 15th of 2004, I went down into the elevator pit of our
Phase II building to retrieve a set of car keys that were accidentally dropped
into the pit. I was amazed at the amount of trash and debris that I found
there. Some of the trash materials dated back to August 2003. . .
No keys
were checked out for access to the elevator equipment from November 15, 2004,
till April 30, 2005, when Mike Stewart, Northwest Colorado Council of
Governments, came by to do the elevator inspections. His inspections turned up
numerous violations: lights out, debris in pits and hydraulic relief tests 18
months past due. (Last performed January 2003) ."
On June 27, Greenwell met
with grievant to discuss the problems at Lionshead. He instructed grievant to
have the elevators completely serviced and cleaned within two days. Grievant
responded that he was spending most of his work time at Vail Cascade and that
he had not been able to service the Lionshead elevators. Greenwell's review of
grievant's time records (Co. Ex. 15) indicated that he had devoted
approximately 78 hours of work and travel time to servicing Vail Cascade
between May 31 and June 27. Although the rest of grievant's work time was
accounted for, it was Greenwell's opinion that grievant could have performed
the necessary work at Lionshead during that time period.
Greenwell
took personal leave from work in late June, 2005. When he returned on July 6,
he received an e-mail from Andrews informing him that the managers of two other
customers, St. James Place and VR Golden Peak had called to complain about the
service they were receiving. Andrews reported that VR Golden Peak had not
received any service for three months. When he went to the customer's location
to discuss the situation, he found that grievant was on site. After grievant
left the location, Andrews surveyed the elevator equipment and found the
elevator pits to be littered and the pressure tests on both elevators to be 5
months overdue. (Co. Ex. 16) The Company's time records indicate that grievant
last serviced the elevator in early March, 2005. (Co. Ex. 16)
During
the weeks following his return to work, Greenwell made site visits to a number
of customers on grievant's route. At each location, Greenwell made a written
record of his findings and took photographs of the conditions. (Co. Ex. 17-22).
He found that grievant's performance at the Wren, Lodge Tower, Vail Mountain
Lodge, Mountain Haus, and Riva Ridge was unsatisfactory due to lack of
cleanliness, failure to maintain accurate records, failure to perform safety
tests when required and other deficiencies. Grievant had performed his service
work at Galatyn Lodge in a satisfactory manner.
After
surveying the quality of grievant's work, Greenwell reviewed grievant's route
book (Co. Ex. 23) and time records. He concluded that grievant made
substantially fewer service calls than other mechanics working in the Eagle
office and that he had not been performing the work in accordance with the
Company's quality standards, despite having received numerous warnings that the
work must improve. Therefore, Greenwell recommended to Andrews that grievant be
discharged from his employment.
Under
cross examination, Greenwell acknowledged that neither he nor Andrews has
worked as an elevator mechanic and that his estimates of the time required for
grievant to perform his duties was based on Company time records rather than on
his own experience. He further acknowledged that grievant and Kanne were the
most highly paid mechanics in the Eagle office. Grievant's previous supervisor
graded grievant's work as average or above in all respects. (Un. Ex. 1) Other
mechanics, including Kanne had failed to perform required hydraulic pressure
tests within the time required by the Company but were not disciplined for those
failures.
When
Greenwell arrived in Eagle, he noticed that many customer sites were not being
maintained at a level he felt to be acceptable under Company standards.
Therefore, at his initial meeting with the mechanics, he informed them that his
expectations and standards would be more strict than those of prior management.
At his meeting with grievant, Kanne and Union Representative Smith on April 12,
2005, all present agreed that the standards expected by Greenwell were
reasonable and achievable. Grievant agreed that he could bring Vail Cascade
into compliance within 30 days and that he could meet the standards on all his
customer locations within 90 days, but he requested that some help be made
available to him. Greenwell agreed to provide assistants to grievant when
needed. (See, Un. Ex. 3)
Andrews
generally concurred with Greenwell's testimony concerning his observations of
the quality of grievant's work. He also noted that the Company was experiencing
an unusually high number of call backs during late 2004 and early 2005. In
general, he testified, the number of call backs and the number of customer
complaints that were occurring reflected grievant's failure to properly service
and maintain the customers' equipment. Grievant's record of complaints and call
backs were disproportionate to the complaint and call back rates of the other
mechanics. During 2005, Andrews made adjustments of more than $37,000 in the
bills payable by grievant's customers because those customers were dissatisfied
with the service they received from grievant. (Co. Ex. 25)
The
Union's Business Manager, Joseph DuPont testified that he surveyed a number of
customer locations serviced by mechanics from the Eagle office. Conditions at a
number of sites were as bad or worse than at grievant's service locations. He
found dirty elevator pits and cab tops in a number of locations See, Un. Ex.
4-6) , but he testified that those conditions do not affect the operation of
the elevator cars. Frequently mechanics find it necessary to skip cleaning the
pits and cab tops because there is insufficient time for cleaning the sites
before the mechanic is required to be at a different customer's location.
Grievant
testified that he has worked in the elevator industry since 1981 as an
apprentice and journeyman mechanic. He accepted employment at Eagle because he
wanted to live in the mountains and he was offered employment at 18% over union
scale, plus a living allowance of $700 per month. Since his termination, he has
relocated to Denver to work for another elevator company. Until Greenwell and
Andrews arrived in Eagle in the fall of 2004, grievant had received no
disciplinary action or warnings concerning the quality of his work. Greenwell
announced his intention to impose more stringent performance standards at a
general meeting of the mechanics held shortly after Greenwell's arrival in
Eagle.
Grievant
acknowledges that he did not perform thorough cleanups each time he performed a
routine service on customer elevators. Frequently it was necessary for grievant
to leave a job either for a call back or because he was scheduled for routine
maintenance at other locations and did not have time to clean all of the
locations. Although grievant acknowledges that it is desirable for a mechanic
to clean the areas surrounding customer equipment, cleanliness does not affect
the operation or safety of the elevators. Grievant believes that if there is
insufficient time to perform all assigned work, those aspects of the work that
relate to the operation and safety of the equipment should be given priority
over removing trash from the elevator pits or car tops.
Grievant
acknowledges that on March 8, 2 005, Greenwell issued a verbal warning
concerning grievant's job performance. He was particularly concerned about the
elevators at Vail Cascade. Grievant agreed that he would do his best to improve
the conditions at Vail Cascade within 10 working days. However, he believes
that 10 days was not a sufficient amount of time for him to perform all the
work that was necessary.
Grievant
began work on the 22 Vail Cascade elevators on March 9, but he was unable to
complete the service and cleanup within 10 working days. He met with Greenwell
on or about March 18 to inform Greenwell of his progress and to advise
Greenwell. that he could not complete the work within the allotted time. When
grievant asked why Vail Cascade was being given such a high priority, Greenwell
responded that Lerch Bates was performing an evaluation and was considering a
recommendation to Vail Cascade to hire a different vendor for elevator
cleaning, maintenance and repair work.
Shortly
after Greenwell received the Lerch Bates report, he gave the report to grievant
and told him to concentrate on fixing the deficiencies at Vail Cascade that
were noted in the report. He told grievant he wanted the deficiencies corrected
within 30 days, and he wanted all of grievant's customer locations brought up
to standards within 90 days. Grievant responded he would do the best he could.
At the time of the meeting, grievant forgot that he had a three week vacation
to Japan scheduled. When he realized that he would not be able to comply with
Greenwell's time schedule, he asked Greenwell whether he should cancel his
vacation in order to work on the assignment Greenwell had given him. Greenwell
told grievant that he should not cancel the vacation. Consequently, grievant
was absent from work form May 1 to May 19. When he returned, he resumed his
work at Vail Cascade.
Grievant
had not completed his work at Vail Cascade by the time of his next meeting with
Greenwell and Andrews on July 18, 2005. Andrews and Greenwell informed grievant
that his work had not improved sufficiently and that, therefore, the Company
was terminating grievant's employment.
POSITIONS
OF THE PARTIES
Company Position
Even
though the Collective Bargaining Agreement does not expressly require that the
Company have just cause to terminate an employee's employment, the Company
concedes that just cause is required. It recognizes that poor work performance
is a basis for termination by imposing restrictions on management's right to
terminate for poor work performance. Article XXII, ¶5 of the contract requires
the Company to give an employee warning if it considers his job performance to
be unacceptable and it requires that the employee be given an opportunity to
improve his performance.
It
is generally accepted that the just cause standard requires management to
establish certain essential elements before terminating an employee. Just cause
exists if (1) the employee had knowledge of the consequences of his conduct;
(2) the employer acted reasonably in determining to discharge the employee; (3)
the employer conducted a fair investigation before discharging the employee;
(4) the employer did not engage in discrimination when deciding to terminate
the employee's employment; and (5) substantial evidence exists to support the
charges against the employee. See, City of Compton Fire Dept. , 65 LA
1115 (Rule, 1975) ; Olin Mathieson Chemical Corp., 51 LA 97 (Daugherty,
1968) . The evidence establishes that the Company had just cause to discharge
grievant.
Initially,
there is no dispute that the Company complied with Article XXII, ¶5. After
determining that grievant's job performance was deficient, the Company issued a
warning letter to grievant and sent a copy to the Union. That letter informed
grievant of his job deficiencies offered him an opportunity to improve his
performance. It specifically informed grievant how his performance was to
improve and what the Company's expectations were for the proper servicing and
maintenance of customer elevators.
Grievant was given ample warning that his failure to comply
with the Company's standards could result in termination of his employment. He
not only received the letter required by Article XXII, but he also received
both oral and written warnings from Greenwell. He was told specifically what
the deficiencies in his performance were and he was shown photographs of the
problems. In each instance, he was given time to improve his performance and he
agreed that the time requirements were reasonable. There can be no question
that grievant knew what was required of him and the time within which he was
required to comply with those requirements. He was also warned repeatedly that
his failure to meet management's demands could result in termination of his
employment.
There
also cannot be any question that management's demands and time requirements
were reasonable. The Company has written standards of performance which
required grievant to clean car tops, elevator pits, mechanical equipment and
the equipment rooms. The standards required grievant to perform periodic safety
checks and to maintain accurate records of the time spent on each activity, the
date of the activity and the work performed. Grievant failed to meet the
requirements of his job.
The
Union has not disputed that the Company conducted a full and fair investigation
before discharging grievant. After giving grievant oral and written warnings,
the Company received additional complaints about the service grievant provided
his customers. Greenwell and Andrews conducted site surveys and made
independent assessments of the work grievant had performed or failed to
perform. They discussed their findings with grievant, reviewed grievant's time
records and route sheets and concluded that grievant had not complied with his
agreement to bring his accounts current. Upon completion of the investigation,
the Company determined to discharge grievant.
Likewise,
the evidence is clear that the Company did not discriminate against grievant
because he was one of the two highest paid employees in Eagle. Kanne, the
highest paid employee, received warnings concerning his performance, took those
warnings to heart and complied with the Company's requirements. He continues to
be employed in Eagle. Although the Union has found a few instances of other
employees who's performance at one or two locations was below standards, it has
presented no evidence that any other mechanic in Eagle demonstrated as
consistent or severe a pattern of deficiency as did grievant. It has also not
presented evidence that the other mechanics' deficiencies were known to the
Company or that the Company failed to take remedial action concerning known
deficiencies of other mechanics.
In
sum, the Company argues, the evidence supports management's conclusions that
grievant, despite repeated warnings and despite his own agreement to improve
his performance, failed to meet the Company's reasonable expectations. The
arbitrator should accord "considerable weight" to the factual
findings of management. Greenwell and Andrews made their findings based upon
their experience and expertise, their knowledge of the Company's standards and
the customer's demands, and their observations of grievant's work. The
arbitrator should not substitute his judgment for that of management unless it
can be concluded that the Company was arbitrary or capricious in reaching its
conclusions.
Union
Position
In
its extensive review of the testimony presented at the arbitration
hearing, the Union notes that the routine maintenance provided by service
mechanics is complex and detailed. The Company's instructions to mechanics
include 21 different items to be checked and adjusted, including door closing
force, stopping accuracy, switch operations, lubrication, lighting, electrical
connections and cleanliness. Because the cleanliness of the car top, pit and
machine room do not affect the operation of elevators, those items are treated
by mechanics as having the lowest priority among their tasks. If a mechanic is
short on time, he may pass over the cleaning items in order to assure that all
of the items relating to the operation and safety of the elevators are checked
and adjusted. Contrary to Greenwell's testimony that each elevator should
require no more than an hour for all routine maintenance, the Union's witnesses
testified that a thorough job could take as long as a full work day. If a
mechanic has a number of call backs while on his route, the time available for
routine maintenance and service is limited. Until Greenwell and Andrews arrived
in Eagle, grievant's job performance was considered acceptable and he was not
disciplined for any performance deficiencies.
The
Union contends that when grievant was warned about his job performance, the
Company gave him "muddled or non-existent" information concerning its
expectations. All of the witnesses agree that in March and April, grievant was
instructed to concentrate on his "trouble spots" at Vail Cascade,
Vail CNC, Vail Marriott and Vail Mountain Lodge. Those locations had a
combination of 22 elevator units, all of which needed servicing and cleaning.
Additionally, the Lerch Bates report concerning Vail Cascade included an
extensive list of items to be serviced which were not a normal part of the routine
service and maintenance provided by the Company. Grievant was instructed to
assign his first priority to the trouble spots and call backs while still
dealing with the routine maintenance on his route. He was not given any
assistance in dealing with the four locations even though they, alone could
consume the entire thirty days he was originally given to clear all of the
problems.
Grievant
immediately began working on the Vail Cascade elevators. He reported his daily
activities to the Company through its computer system and kept the Company
fully apprised of the work he was performing. No one from management contacted
grievant to tell him he was spending too much time on any single project, to
instruct him to distribute his time differently, or to check his progress.
When
grievant reminded Greenwell that he was scheduled to be on vacation from April
30 to May 19, Greenwell told grievant not to cancel his vacation, even though
grievant's 20 day absence consumed a substantial portion of the 30 days
grievant had been given to bring Vail Cascade and the other trouble spots into
compliance with standards. As Greenwell did not tell grievant whether he was
required to complete the required work at Vail Cascade, Vail CNC, Vail Marriott
and Vail Mountain Lodge within 30 calendar days or 30 working
days, and as he told grievant not to cancel his vacation, grievant believed he
had 30 working days to complete the required tasks. Likewise, Greenwell did not
say whether grievant was expected to bring his other accounts current within 90
calendar days and grievant assumed, therefore, that he had 90 working
days to meet Company expectations.
When
grievant reported his progress before leaving for vacation, neither Greenwell
nor Andrews indicated that the progress was inadequate or that grievant was
jeopardizing his employment by leaving on vacation. They continued to not
assign a helper to grievant and failed to assign any other crews to assist in
performing the extensive amount of work required. Likewise, when they again discussed
the situation with grievant after his return from vacation in May, Greenwell
and Andrews ignored grievant's pleas that he could not get all of the routine
work performed because he was devoting his time to the four trouble spots and
to call backs.
In
fact, grievant completed his work at Vail Cascade in less than 30 days, despite
having been on vacation for 14 work days during the month. Grievant was
terminated less than 90 days after he was instructed to bring his accounts
current, despite his lengthy absence from work for his vacation and despite the
extensive and "ever growing" list of items requiring attention at
Vail Cascade due to the Lerch Bates report.
"In
order to meet the just cause standard," the Union argues, the Company must
"clearly communicate the performance standard expected of the employee,
and . . . provide him reasonable notice in doing so." (Un. Br. at 26) Featherlite
Trailers of Iowa, 90 LA 761 (Schwartz, 1987). Here, the Company did not
communicate a clear timetable to grievant and it misled him into believing that
he should devote as much attention to Vail Cascade as was necessary, even at
the expense of performing his routine maintenance and service duties. It
thereafter discharged grievant for failing to meet Company standards concerning
the routine maintenance and service.
Even
if the Company's expectations had been clearly communicated, those expectations
were unreasonable. On March 8, the Company gave grievant an oral warning that
his work was deficient. It assigned him "more work than he could possibly
perform." Specifically, it told him that he was to clean 22
"atrociously" dirty elevator units in ten days. Each elevator could
have required as much as 8 to 12 hours' work, or approximately 22 0 working
hours (27.5 work days). Ten days later, on March 18, Andrews told grievant that
the 9 elevators at Vail Cascade should be finished by Monday, March 21.
"This assignment was not only unreasonable, it was flatly
impossible." (Un. Br. at 27).
The
Company recognized that it had assigned grievant an impossible task in the
March meetings. Therefore, it revised its timetable at the April 12 meeting. At
that time, Greenwell told grievant he had 30 days to complete the work at Vail
Cascade and 90 days to clean all the remaining elevators on his route. Eighty
six days later, on July 7, Greenwell and Andrews decided to discharge grievant,
even though they did not inform grievant of their decision until July 18. The
Union notes that mechanics work 140 hours per month, including travel time. If
grievant had spent only one hour on each of the 105 units on his route, he
would have had only 35 hours for travel time, for call backs and for the
extraordinarily difficult job of satisfying the demands of the Lerch Bates
report and bringing the four trouble spots into compliance with company
standards. Greenwell acknowledged that the elevators on grievant's route were
extremely dirty and that it could take as long as eight hours for grievant to
clean up each unit. If grievant spent 8 hours on each of the 105 units on his
route, he would have needed 6 months merely to bring all of the units up to
standards, without performing, routine service in the meantime. The Company
unreasonably demanded that the work be performed in 90 calendar days, including
the 20 days grievant was in Japan on vacation.
Finally,
the Union contends, grievant was the victim of disparate treatment. Both
grievant and Kanne received written warnings on the same day. Grievant had 4
identified trouble spots. Kanne had two. Nonetheless, the Company assigned a
construction crew to assist Kanne and did not assign anyone to assist grievant.
Kanne had a full 90 days to complete his assignment, but grievant, with the
concurrence of the Company took a 20 day vacation. Thus, Kanne had more time, more
help and less work than grievant, even though both received the same
performance warning on April 12.
Additionally,
the evidence clearly establishes that other mechanics failed to perform their
cleaning duties without receiving disciplinary action of any sort. It is no
excuse that the Company did not know of the deficient work of other mechanics.
Had it properly investigated before terminating grievant it would have done
site surveys at locations serviced by the other mechanics and it would have
found the same deficiencies in their work as it found in grievant's. In fact,
the Company may have been aware of the deficiencies of the other mechanics
because Greenwell was performing site surveys throughout the period in
question. Despite the Union's request for copies of those surveys, the Company
has failed to provide any information concerning Greenwell's findings. It may
be inferred, therefore, that the surveys showed other mechanics whose work was
as deficient as grievant's.
In
sum, grievant was discharged for two deficiencies. His failure to meet
housekeeping standards was similar to the failures of other employees who
received no discipline. Grievant should not have been singled out for discharge
when all others with similar offenses were not even disciplined. The second
deficiency for which grievant was terminated was that he neglected routine
maintenance activities on his route while he was bringing Vail Cascade into
compliance with Company standards and the with the demands of the Lerch Bates
report. The Company instructed grievant to give the Vail Cascade work priority
over all other work except call backs. The amount of work assigned could not
possibly have been performed during the time allowed by the Company. If
grievant were to meet the Company's demands concerning Vail Cascade, he had to
neglect his other work. Grievant followed management's instructions and was
discharged anyway.
The
Union asks that grievant be reinstated to his former position as a route
mechanic in the Eagle office. He should be made whole for his lost wages and
benefits and for the closing costs he was required to pay in order to sell the
property on which he was building his home in the Vail Valley. Because grievant
was not employed for approximately two months, he could not afford to keep the
home and was forced to sell it and pay the closing costs.
DISCUSSION
The issue in this case is whether the Company had just cause
to terminate grievant's employment as an elevator mechanic on July 18, 2005.
The Company contends that grievant was given ample opportunity to improve his
job performance and failed to do so. Consequently, it claims, just cause
existed to terminate grievant's employment. Grievant contends that his
termination was motivated by the Company's desire to reduce its payroll by
discharging a highly paid employee, that he is the victim of disparate
treatment because other mechanics did not receive discipline for similarly
deficient job performance and that the Company did not accord him a fair
opportunity to improve his performance.
Grievant
was first employed by the Company in the Eagle, Colorado, office in 2000. At
the time he was hired, he entered into a contract with the Company under which
he received journeyman scale, plus 18%, plus a housing allowance of $700 per
month4. Until the arrival of Greenwell and Andrews in the fall of
2004, grievant received acceptable performance evaluations and had not been
subjected to disciplinary action.
__________________________
4The
elevator installation and service industry is highly unionized with a well
developed program for training mechanics and preparing them to be journeymen.
As a result there is substantial mobility for mechanics within the industry.
Traditionally, the parties have allowed individual contracts between employers and
mechanics to allow adjustments for differences in cost of living between
geographic areas, supply/demand adjustments and other factors affecting wages.
Grievant and Kanne both received scale plus 18% and a housing allowance, making
them the two highest paid mechanics in Eagle.
Shortly after he arrived to assume the role of Field
Operations Manager, Greenwell held a meeting with all of the mechanics working
out of the Eagle office. He informed them that he intended to improve the
office's overall performance. Specifically, he informed the mechanics that he
and Andrews would strictly enforce Company performance standards as contained
in the Maintenance Tasks and Records book (Co. Ex. 1) that was kept on site at
every unit serviced by the Company. Although the warning was not addressed
specifically to grievant, grievant was present: when Greenwell announced the
arrival of a new, and stricter, regime in Management.
Four
months later, on March 8, 2005, Greenwell and Andrews orally warned grievant
that his performance did not meet Company standards. They explained that they
had performed site surveys and had taken photographs at Vail Cascade, CMC Vail,
Vail Marriott and Vail Mountain Lodge. As a result, they had found grievant's
performance to be deficient. Grievant was told that "radical change [is]
expected immediately" (Co. Ex. 5) or further disciplinary action would
occur. They further instructed grievant that all of the elevator units at the
four locations "will be cleaned entirely within 10 working days. . . All
monthly serviced elevators will be cleaned entirely within 30 calendar days of
this meeting." (Co. Ex. 5) Grievant did not dispute that his performance
was deficient and he acknowledged his understanding of Greenwell's expectations
for improvement. No grievance was filed as a result of the oral warning.
Greenwell
held a second meeting with grievant on March 18 to assess grievant's progress
and to inform him that Vail Cascade had become significantly more important
because its management had hired a consultant to evaluate its elevators and
elevator service agreement. He gave grievant a specific list of tasks to be
accomplished at Vail Cascade, based upon the preliminary findings of the
consultant. Grievant did not dispute the list of deficiencies or argue that the
Company's demands were unreasonable.
Greenwell
and Andrews continued to monitor grievant's performance during the ensuing
weeks. They determined that grievant was still not making sufficient progress
in remedying the deficiencies at the four resort properties and that he had
failed to perform routine maintenance and safety checks at other customer
locations. Therefore, on April 12, 20055 Greenwell issued a written
warning (Co. Ex. 3) detailing the deficiencies in grievant's performance and
instructing him that "the improvement in your performance must be
immediate and sustained. If such improvement is not immediately forthcoming, we
will have no alternative other than to terminate your employment." The
warning was accompanied by a specific list of work grievant was to perform and
with photographs of the deficiencies Greenwell and Andrews had observed. During
the discussions which occurred in conjunction with the issuance of the warning,
Greenwell told grievant that he was to complete all work at Vail Cascade within
30 days and at all other customer locations within 90 days. Once again,
grievant did not dispute that his work had been deficient. He accepted
Greenwell's time table for completing the work and gave no indication that the
work could not be completed within the allotted time. Likewise, grievant did
not file a grievance disputing the validity of the warning.
___________________
5The
written notice is dated April 6, the date Greenwell decided to issue it, but it
was not delivered to grievant until April 12.
Grievant acknowledges that at the April 12 meeting, he did
not mention that he had a scheduled vacation from April 30 to May 19. However,
he testified that approximately a week after the meeting he reminded Greenwell
of the scheduled vacation and asked if he should cancel it. Greenwell responded
that it would not be necessary to cancel the vacation. Grievant did not ask for
Greenwell to extend the deadline for completing the work discussed at the April
12 meeting and Greenwell did not mention any change in the deadline. Grievant
left on his vacation on April 30 and returned on May 19. He returned to Vail
Cascade to resume servicing and cleaning those elevators.
Having
received customer complaints about grievant in May and June6 and
having conducted additional site surveys in June and early July, Greenwell and
Andrews concluded that grievant's performance had not improved. Therefore, on
July 18, the Company terminated grievant's employment.
The
parties agree that even though the contract is silent with respect to the
Company's right to terminate the employment of a member of the bargaining unit,
the implied standard of "just cause" is applicable. If the Company
terminates an employee's employment for deficient work performance, the contract
imposes on the Company a further obligation. Article XXII (5)(e) provides:
"(e) It is understood and agreed that prior
to terminating an employee for unsatisfactory performance who is to be replaced
under this paragraph or any other employee, the Company will give a written
warning to the employee with a copy to the Business Representative in order
that the employee be given an opportunity to improve his work performance. Such
a termination may be submitted as a grievance to the National Arbitration
Committee as provided under Article XV as a final source of appeal."
In short, the Company must
give the employee a written warning, informing the employee of his work
deficiencies and giving him the opportunity to improve his performance. There
is no dispute that the warning was given. There is some dispute whether the
warning was justified and there is substantial dispute whether the Company gave
grievant a reasonable opportunity to improve his work performance.
____________________________
6As
a result of the customer complaints received from grievant's customers, the
Company made financial concessions to the customers totaling more than $30,000.
The Union does not significantly dispute that the work
performed at many of the customer locations for which grievant was responsible
was deficient. It agrees that elevator tops and elevator pits at the locations
identified by Greenwell and Andrews were dirty and cluttered with debris, rags
and other materials. It agrees that by July, 2005, a number of units had not
received their annual safety and hydraulic pressure certifications, some of
which were three to five months overdue. It argues, however, that had the
Company subjected the other 7 mechanics to as much scrutiny as grievant, the
Company would have discovered similar deficiencies at locations serviced by
those mechanics. Photographs submitted by the Union bear out that similar
problems existed on the routes serviced by some of the other mechanics. It
further argues that grievant's primary job is to service and repair elevators.
It is frequently necessary to neglect the janitorial aspects of the job so that
the primary job functions can be performed.
The
arbitrator is not persuaded that grievant was the victim of discriminatory or
disparate treatment. It is probable that other mechanics failed to meet the
Company's cleanliness standards at one or more of their customer locations. It
is undisputed that Kanne's work failed to measure up to the Company's standards
as late as April 12, 2005 when he received a written warning similar to the one
given grievant. However, it is well accepted that in the absence of
discrimination or disparate treatment, it is not a defense to a disciplinary
action that others are also guilty of the offense.
Grievant's
work came to Greenwell's attention as a result of a customer complaint. Once
Greenwell investigated, he determined that the work was deficient. He also
learned that the customer, Vail Cascade, had employed a consultant to determine
whether changes should be made in the elevator equipment and service contract
between the customer and the Company. The customer, Vail Cascade, was the
largest customer in the Eagle office, and loss of its business could have had
significant financial impact on the Company. Greenwell made the reasonable decision
as a manager to deal with the worst and most pressing problems first rather
than attempt to discover and deal with all problems at the same time. The
evidence does not support the Union's claim that management was aware of and
chose to disregard deficiencies at locations other than those serviced by
grievant and Kanne. Rather, the evidence indicates that management concentrated
on grievant's customers because they had generated the most complaints
concerning service and because they were among the most lucrative and
significant customers serviced from the Eagle office.
The
Union also contends that grievant was singled out for special scrutiny and
discipline because the Company wanted to reduce its payroll by eliminating its
two highest paid mechanics. The sole evidence supporting that claim is that
grievant and Kanne were the highest paid employees in the office and the
Company has not replaced grievant since his discharge. The Union infers from
those facts that the Company was attempting to rid itself of two highly paid
mechanics. The facts belie the assertion insofar as Kanne is concerned. Kanne
received the same warning on April 12 as defendant received. Kanne complied
with the demands of management and remains an employee of the Company.
Grievant, on the other hand, continued to generate customer complaints. The
Company ultimately lost more than $30,000 in revenues because it reached
agreements to reduce the billings of the affected customers in order to retain
their business. Although grievant's financial impact on the Company was most
certainly considered when the Company decided to discharge grievant, the impact
arose because grievant's work did not satisfy customers. The arbitrator finds
no evidence that the size of grievant's paycheck influenced the Company's
decisions in this case.
The
Union next contends that the Company failed to give grievant adequate notice of
its demands. Specifically, the Union argues that when Greenwell imposed his 30
and 90 day deadlines, he did not specify whether he meant 30 or 90
"working days" or "calendar days." Grievant lost a
significant number of working days due to his scheduled vacation. Had he been
allotted 30 working days to finish at Vail Cascade and 90 working days to
complete the other work in question, he would have been able to comply with
Greenwell's demands. However when Greenwell used "calendar" days as
the measuring unit, grievant lost the opportunity to work on the Vail Cascade
service for more than half of the 30 days allotted.
The
Union acknowledges that grievant did not ask for a clarification of Greenwell's
intent. Likewise, even at the time of grievant's discharge, the Union and the
grievant did not argue that grievant had insufficient time to complete his
assigned tasks because Greenwell had not appropriately counted days from the
date of the warning to the date of discharge. Rather, grievant argued that he
had failed to service elevators on his regular route because his time was
devoted to improving the situation at Vail Cascade.
Moreover,
the warning letter received by grievant does not impose specific deadlines.
(Co. Ex. 3) It informs grievant that he is being "given an opportunity to
improve your performance. . . The improvement in your performance must be
immediate and sustained. If such improvement is not immediately forthcoming, we
will have no alternative other than to terminate your employment. . . "
(Co. Ex. 3) The warning letter does not establish deadlines. It merely requires
grievant to make "immediate" and "sustained" improvement in
his performance. To the extent that Greenwell imposed deadlines, those
deadlines must be interpreted as the time frame within which grievant was
required to make "immediate1 changes in his performance.
Grievant accepted the time limits established by Greenwell without asking for
clarification and without protest. All indications are that grievant understood
Greenwell to be speaking of calendar days rather than work days when he was
establishing the deadlines. Grievant maintained that understanding until shortly
after his employment was terminated.
The
Union next contends that grievant was not given sufficient time to bring his
accounts into compliance with Company standards. As discussed above, grievant
did not tell the Company that its demands were unreasonable or that he needed
additional time because he was taking a vacation. He accepted Greenwell's order
without question or dispute.
The
arbitrator does not agree that grievant had insufficient time to improve his
performance. The Company's assessment of the situation indicated that grievant
should have been able to complete all of the required work well within the time
allowed. Grievant disputes that estimate, but the Union offered no evidence of
the extent of the work that was actually performed. It offered no explanation
of the amount of time required to perform that work other than its evidence
that during the 30 days from May 19 to June 19 (after grievant had worked from
April 12 to April 30 on the elevators) grievant devoted approximately 80 of his
140 hours of work time to the Vail Cascade project. The arbitrator has no
independent basis to determine the difficulty of the work in question or the
amount of time required to perform it. In the absence of any other reliable
evidence, the arbitrator defers to the expertise of management in determining
the amount of time involved.
More importantly, the arbitrator finds it to be an
overstatement of the facts for the Union to assert that grievant only had 30 to
90 days to complete all of the work in question. It appears from the extent of
the debris and dirt depicted in the parties' photographs of the elevator shafts
that grievant had neglected his janitorial duties for a number of months before
the photographs were taken.
Grievant
participated in a general meeting at the Eagle office in November, 2004, at
which Greenwell and Andrews announced their intention to enforce the Company's
performance standards. Although grievant was not specifically singled out to
receive a warning, he and all of the other mechanics were placed on notice that
their work would be more closely observed by Greenwell and Andrews than it had
been under the previous management. It does not appear that grievant responded
to that warning by increasing his efforts to maintain the equipment and surrounding
areas in good operating condition and clean.
On
March 8, grievant was specifically warned that his work was not meeting the
Company's expectations and that immediate improvement was required. That
warning was reinforced 10 days later when Greenwell presented grievant with the
preliminary findings of the Lerch Bates report. Even if grievant did not accept
the November announcement as applying to him, he could have had no doubt after
March 8 that he was expected to improve his performance. On March 18, 2 005,
when he was given an exhaustive list of the problems that needed to be resolved
at Vail Cascade, grievant had a definitive statement of what he needed to do in
order to meet the Company's requirements. Having failed to perform to standards
after the November meeting, grievant knew no later than March 18 that his
performance was being observed and that he was expected, at the least, to bring
the Vail Cascade elevators into compliance with Company standards immediately.
When he received his final warning on April 12, grievant still had been
unsuccessful in bringing his performance up to the levels expected by the
Company.
Faced
with an absolute deadline and with unequivocal notice that he was required to
improve his performance to comply with Company standards, grievant made some
effort to comply with the Company's requirements after his return from vacation
on May 19. By that time he had known for almost 6 months that the Company was
serious about enforcing its quality standards and he had known for more than
two months that his work was considered substandard. Faced with a threat of
termination grievant still did not bring his routine service and maintenance
work up to standards. In fact, during May and June the Company received
additional complaints from the various Lionshead resorts about the service they
were receiving. In light of those complaints, and their own observations of
grievant's work, Greenwell and Andrews reasonably concluded that grievant's job
performance was not acceptable. They, therefore, properly terminated his
employment.
The
arbitrator finds that grievant's discharge was not arbitrary or capricious, but
was based upon actual observations by management of grievant's work performance
and on complaints received by the Company from grievant's customers. The Union
has failed to establish that grievant was the victim of discrimination or
disparate treatment or that the Company singled grievant out for disciplinary
action as part of a plan to reduce its payroll expenses. Therefore, the arbitrator
concludes that the grievance Should be DENIED.
AWARD
The
grievance is DENIED.
ENTERED at Colorado Springs, Colorado, this 22nd day of May, 2006
_____________________________-
Daniel
M. Winograd, arbitrator
