In a case that will no doubt strike fear into the hearts of all public employers operating under a collective bargaining agreement (CBA), the Court held that specific grounds for termination under the CBA are not necessarily the same thing as “just cause” for termination.
This case began with the termination of a licensed nursing assistant for verbally abusing a county nursing home resident. In terminating the employee, the County (employer) pointed to Article 24 of the CBA which provided that “[r]esident abuse/neglect/exploitation” would not be tolerated and that “[a]ny instance of physical, verbal, mental or medical abuse/neglect/exploitation of any resident shall be grounds for immediate termination. [emphasis added.] The union representing the employee filed a grievance on behalf of the employee and the parties proceeded to arbitration according to the CBA’s grievance and arbitration procedures. The arbitration issue to which they stipulated was: “Whether there was just cause for the County to terminate Ms. Foote under the collective bargaining agreement? If not, what shall the remedy be?” [emphasis added.] In its brief, the County agreed that the law provides that county employees who have been employed more than one year are entitled to a “good cause” standard of discharge and also agreed that “good cause would be examined under the traditional just cause standards.”
The arbitrator found that the employee did verbally abuse the resident but that her conduct was no more serious than employees who continued to work at the nursing home and that had the employee admitted to verbally abusing the resident, she would not have been terminated. The arbitrator therefore found that the termination was an “overly harsh and unreasonable” penalty for which the employer lacked just cause. The arbitrator ordered the employer to reinstate the employee without back pay or other lost benefits, conditioned upon the employee taking anger management and abuse/neglect training programs. The employer refused to reinstate the employee, so the union filed an unfair labor practice charge with the Public Employee Labor Relations Board (PELRB). The PELRB ruled in the union’s favor.
The question for arbitration was whether there was “just cause” to terminate the employee. Because there was no reference to “just cause” in the CBA, the arbitrator applied the “traditional just cause standard,” which gives the arbitrator the authority to consider the underlying issues and surrounding circumstances necessary to interpret and apply the express provisions of the CBA and reach a final decision. Thus, instead of looking solely to Article 24 upon a finding that the employee verbally abused the resident and ruling that immediate termination was justified under the terms of the CBA, the arbitrator considered: (1) the reasonableness of the employer’s position; (2) the notice given to the employee; (3) the timing of the investigation; (4) the fairness of the investigation; (5) the evidence against the employee; (6) the possibility of discrimination; and (7) the relation of the degree of discipline to the nature of the employee’s past record. Applying this standard, the arbitrator ruled that the employee’s conduct did not warrant the maximum penalty of immediate termination under the CBA.
The Court observed that by requesting the arbitrator to determine whether the employer had “just cause” to terminate the employee, both parties conferred authority upon the arbitrator to decide that issue. Thus, the arbitrator was free to conclude that there was no just cause for termination but there was just cause for a lesser discipline. The Court pointed to the employer’s agreement that the arbitrator would apply the “traditional just cause standards” (the seven criteria stated previously) and refused to allow the employer to argue on appeal that the arbitrator acted improperly by analyzing just cause as it did. Further, the Court pointed out that the employer also used the seven criteria in analyzing its decision to terminate the employee using the same seven criteria.
appeal the employer argued that once the arbitrator found that the employee had verbally abused the resident, he was obliged to uphold the decision to terminate because “grounds for immediate termination” under Article 24 were satisfied, and the arbitrator was not “free to fashion a separate remedy apart from the one provided in the parties’ agreement.” The employer also argued that it did not ask the arbitrator to use the just cause principles but rather to use the implied definition of “just cause” contained within the CBA. It argued that demonstrating “cause,” “just cause” or “good cause” would satisfy the terms of the CBA. The Court disagreed, refusing to accept that “grounds for termination” was akin to “just cause” or that terminating an employee for verbally abusing a resident constituted se cause.
employer’s argument that reinstating an employee who verbally abused a resident violates public policy was similarly rejected by the Court. Finding that federal regulations do not preclude employing a person who has engaged in a single episode of verbal abuse, and who is not convicted for that episode by a court, the Court concluded that federal regulations do not establish a public policy that would prohibit reinstating the employee here.
a separate issue, the Court held that the decision of the PELRB should not have dismissed the union’s claim that the employer engaged in anti-union discrimination by refusing to reinstate the employee as ordered by the arbitrator. The Court held that the PELRB erred because the issue was not moot; the arbitrator addressed the issue of whether the employer engaged in anti-union discrimination when it terminated the employee, not whether the employer engaged in anti-union discrimination by failing to reinstate the employee as claimed by the union. Proving anti-union discrimination could strengthen the union’s request for additional remedies, including attorney’s fees and costs. The Court vacated the PELRB’s dismissal of this issue and remanded to the PELRB for further proceedings.
Justice Duggan, joined by Chief Justice Broderick in dissent, argued that affirming the PELRB’s decision “threatens to create unnecessary uncertainty in our state’s labor law jurisprudence.” The dissent argued that by distinguishing between the terms “just cause,” “proper cause,” “cause,” and “grounds,” the arbitrator departed from the CBA to arrive at his own brand of industrial justice, a result that is prohibited by the plain language of the CBA, which provides that “the arbitrator shall have no authority to add to, subtract from, or modify any terms of this agreement.” Thus, the dissenters would find that where a CBA lists particular types of conduct as grounds for termination, the arbitrator’s inquiry ends when he finds that such conduct occurred.
Public employers should study this case carefully when proceeding to arbitration to ensure that the question given to the arbitrator to decide clearly references terms contained within the CBA. As the majority opinion observed, instead of asking the arbitrator to decide whether the employer had “just cause” to terminate the employee, a term not referenced in the CBA, the parties could have simply asked whether the employee engaged in the conduct of which she was accused. When submitting questions to the arbitrator, employers would do well to frame the questions precisely to ensure that they are able to enforce the provisions of collective bargaining agreements.