Dana Incorporated has filed a Complaint seeking to set aside an award of Arbitrator Daniel Kininmonth. The Company alleges that the Arbitrator filed to apply a Last Chance Agreement that he found to be applicable and to have been violated, and in doing so acted in excess of his authority.
Grievant had been placed on a Last Chance Agreement following a prior termination for attendance issues. The LCA included a provision stating “You are expected to adhere to the general plant safety and general rules of conduct as well as the attendance policy.” The LCA also contained language that :
In the event that you violate the terms of this last chance agreement your employment is terminated, you will not have access to the grievance procedure unless there is a question regarding the legitimacy of the termination.
Full compliance with the requirements of this agreement constitutes your conditions of continued employment. Failure to comply with all of the terms and conditions will result in discharge.
On May 21, 2018, toward the end of grievant’s shift, a stamping press jammed. The Production Supervisor instructed grievant to clean up his work area while the machine was down. At the end of grievant’s shift, the production supervisor was told by a Group Leader that grievant had not cleaned his work area. They both inspected the area and confirmed that it had not been cleaned. They also noted that grievant had not fully completed the “hour by hour ” board, used to allow employees on the next shift to be aware of what had taken place during the preceding shift.
The Production Supervisor met with grievant the next day and told him he was issuing him two ‘write ups,’ consisting of two written warnings, the first addressing the failure to clean up his work area and the failure to fully complete the board, and the second concerning unexcused absences.
On May 23, 2018 emails were sent to the Company’s Human Resources’s Manager describing the issues related to the write-ups. The HR Manager concluded that grievant had violated the LCA and she notified the Union that grievant’s employment would be terminated.
That decision was grieved and submitted to Arbitrator Kininmonth.
The Company maintained that grievant’s conduct was contrary to the LCA, and that the LCA defined “just cause” in these circumstances.
The Union raised several claims, including a claim that language had been added to the LCA without its knowledge, that it should have been limited to attendance issues, that the Company had failed to properly investigate grievant’s conduct, and that he had been subjected to double jeopardy when he had first received written warnings for his conduct but was subsequently dismissed. Arbitrator Kininmonth rejected all of the Union’s claims except for that related to double jeopardy.
The Arbitrator rejected the Company’s claim that he had no authority to consider the double jeopardy question:
The Company argues that “There is No Double Jeopardy in the Context of a Last Chance Agreement.” “The claim of ‘double jeopardy’ is not an issue within the authority of the Arbitrator when called upon to interpret the terms of the ‘Last Chance Agreement.’ This contention is another of those ‘mitigating factors’ that have been removed from the consideration of the Arbitrator via last chance agreement.” Glatfelter, 126 LA 1774, 1779, 09-2 ARB ¶4694 (Allen, 2009) (Company Brief, p. 12).This arbitrator disagrees with this quotation from the Glatfelter decision. Double jeopardy is not a “mitigating factor” which cannot be considered by the Arbitrator in reducing the penalty under the last chance agreement. Double jeopardy is an “affirmative defense,” not a “mitigating factor.” The arbitrator can consider “affirmative defenses.” … Thus, the arbitrator can overturn discipline which subjects the employee to double jeopardy under a last chance agreement.
Arbitrator Kininmonth concluded that grievant was subjected to to “Double Jeopardy” when he was terminated after being disciplined by a written warning. He noted that Double Jeopardy is a “component” of industrial due process. While recognizing there are several views among arbitrators concerning how to remedy due process violations, Arbitrator Kininmonth aligned himself with those who believe “unless there is strict compliance with procedural requirements and due process the whole action will be vacated and nullified.”
In accord with that belief, he reversed the termination and ordered the grievant’s reinstatement with back pay.
Issues related to Last Chance Agreements are also discussed in the following posts: