May 20th, 2014
In the Matter of the Arbitration
between
NATIONAL GRID, INC.
“Company”
and
LOCAL 101, TRANSPORT WORKERS UNION
“Union”
APPEARANCES
For the Company
Patrick Collins, Esq., Attorney Vincent Gallo, Partner, Labor and Employer Relations Wayne Schechter, Director, CMS Jeff McPolin, Manager, CMS
For the Union
Arthur Schwartz, Esq., Attorney Michael Conigliaro, President Josephine Arroyo, Vice-President Constance Bradley, Recording Secretary Steven Mauro, Executive Board Member Curtis Rolland, Delegate Robert Burton, Grievant
BEFORE: HOWARD C. EDELMAN, ESQ., ARBITRATOR
BACKGROUND
The Company discharged Robert Burton, effective March 7, 2014. The Union contends the Company’s action violated the Collective Bargaining Agreement. It seeks Burton’s reinstatement with appropriate back pay. At the time this dispute arose, Robert Burton was employed as a CMS with some 25 years of service with the Company. On March 5, 2014, he was at work, driving the Company vehicle. His partner was with him.
Some time that day, Burton applied his brakes with greater than normal foot pressure. As a result, his vehicle’s drive cam was triggered and a video of Burton was displayed. It reveals Burton holding a cell phone. Believing Burton was using the phone and in light of a full performance final warning issued Burton in 2010, the Company decided to dismiss him, effective March 7, 2014. The Union timely grieved the Company’s decision to discharge Burton. A hearing was held before me on April 23, 2014. At its conclusion, I closed the record. This Opinion and Award follows.
THE ISSUE
At the hearing the parties stipulated to the following issue:
Did the Company violate the Collective Bargaining Agreement when it discharged Robert Burton, effective March 7, 2014? If not, what shall be the remedy?
POSITIONS OF THE PARTIES
The Company submits its decision to discharge Burton was proper. Relying on the video, the Company maintains the Grievant looked down at his phone several times. He also pressed a button or buttons on the phone a number of times, as well, it urges. Consequently, the Company concludes, there was no doubt Burton was “using” the phone in violation of its policy.
In addition, the Company notes that Burton had been placed on a full performance, last chance agreement on March 29, 2010. Citing other decisions of mine, it insists that the Agreement was still in full force and effect as of March 5, 2014. That Agreement, it notes, bars me from reducing the penalty of discharge if I find that the Grievant violated its rules. The policy strictly forbids cell phone use and the video conclusively demonstrates that Burton acted in a manner which bars me from reinstating him, in the Company’s view.
Finally, the Company argues that Burton was warned about cell phone use only two months before he was dismissed. According to Labor and Employee Relations Partner Vincent Gallo, he reminded Burton to stay off the phone because he [Burton] was on a last chance agreement.
Given these factors, the Company asserts that Burton knew full well the consequences of using the cell phone while driving. Despite such knowledge he committed the acts alleged on March 5, 2014. Accordingly, it concludes, its decision to dismiss Burton must be upheld.
The Union insists Burton was not using the cell phone. Holding it in one’s hand does not constitute “use,” as the Union sees it. While the Grievant may have glanced at the phone once or twice on March 5, 2014, he did not violate Company policy on that day, as the Union sees it.
The Union acknowledges Gallo and Burton spoke about the latter’s cell phone use in early January 2014. However, it notes, Burton initiated the conversation. Gallo casually suggested the Grievant should be careful about cell phone use, the Union suggests. Hence, it argues, their interchange can hardly be classified as a warning which would trigger his discharge by merely glancing down at the phone.
Finally, the Union notes Burton was a 25-year employee when he was let go. But for a four-year-old incident, his record was relatively good, it maintains.
For these reasons the Union asks that I sustain its grievance. As remedy, it seeks Burton’s reinstatement with full back pay.
DISCUSSION AND FINDINGS
While I do not condone some of Burton’s actions, I find that Burton must be reinstated. This is so for a number of reasons.
First, the evidence is equivocal as to whether he pushed buttons on his cell phone. He certainly glanced at it two or three times during the eight seconds covered by the video. However, and I reviewed the video six or seven times, it does not demonstrate to my satisfaction that he “used” the phone, as that term is commonly understood. He certainly did not talk on it. Nor did he depress a number of buttons in a row, though I recognize it is possible to place a call in the phone’s memory by depressing one button.
What this means is that if Burton violated the policy, it was a de minimis one at most. It would be harsh to discharge the Grievant under these circumstances.
I note the Company’s reliance on the last chance Agreement in March, 2010. Four years, as I have previously noted, is not enough to declare it null and void. On the other hand, given the length of time that has passed and the very minor nature of Burton’s actions on March 5, 2014, the last chance agreement is not sufficient to justify upholding the Company’s decision to discharge Burton when it did.
Also, there is Burton’s seniority to consider. While not a model employee he had 26 years of experience with the Company. Substantial consideration must be given to his long tenure, I am convinced.
The Company pointed out that, in January 2014, Gallo told Burton not to use his cell phone because he was on a last chance agreement. However, as the Union correctly noted, their interchange was more in the nature of a gentle reminder than an admonition. Indeed, Burton, not Gallo, initiated the conversation. Had he not done so, there would have been no warning,
reminder, etc. As such, while Gallo certainly indicated Burton should not use his cell phone while driving, their exchange did not constitute a “warning,” as that term is commonly understood.
Finally, Burton should not be misled by this determination. He was and remains under a final warning whose viability is reinforced by this decision. He should not have had the phone in front of him when he was driving and he is not entitled to back pay as a result. Moreover, to avoid any ambiguity in the future, Burton is not to hold, display, look at or otherwise interact with a cell phone while operating a Company vehicle. Operating includes the time he sits down in the driver’s seat to the time he leaves it. Though these rules are more stringent than those other employees face, they are necessary so as to avoid future cases involving Burton, like the one at issue here. Nonetheless, and for these reasons, the Union’s grievance is sustained to the extent indicated in this Opinion. It is so ordered.
AWARD
The Company violated the Collective Bargaining Agreement when it discharged Robert Burton, effective March 7, 2014.
Robert Burton shall be reinstated forthwith, but without any back pay nor benefits, except that his seniority shall remain intact.
Robert Burton shall remain on an all-inclusive final warning, as indicated in this Opinion.