FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 04-03067

SERVICE EMPLOYEES INTERNATIONAL

UNION, AFL-CIO, LOCAL NO. 79,
Union,

and

UNITED [PROTESTANT]
RETIREMENT COMMUNITIES, INC,
Employer.
_______________________________________/

OPINION OF THE ARBITRATOR

May 24, 2004

After a Hearing Held April 23, 2004

At the [Retirement Community] in Detroit, Michigan

For the Union: For the Employer

Clifford L. Hammond Melissa J. Jackson

SEIU Staff Attorney Foster, Swift, et al.
2604 Fourth Street 313 S Washington Square
Detroit, MI 48201 Lansing, MI 48933-2193
 I. The Telephone Message

I think you better go get checked out. [Grievant] was f∗∗∗g

these ’ho’s up there. I think that he probably got diseases. He’s
been f∗∗∗g the hookers. That’s what he got fired for. UX 1.1

So went the telephone message from the security guard at [Retirement

Community], to Grievant’s girlfriend, a message which convinces the

arbitrator of the validity of Grievant’s claim, that the security guard, who

reported Grievant for alleged sexual impropriety on the job, bore ill will

toward him.

II. The Parties

Prior to the events of October 11, 2003, Grievant had been employed

for almost 15 years as a maintenance worker by [Retirement Communities,

Inc.] (“Employer”), at its [Retirement Community] facility in Detroit, where

employees are represented by the Nursing & Convalescent Home Employees

Division of Local 79, Service Employees International Union, AFL-CIO

(“Union”). The collective bargaining agreement between these parties was

entered into evidence as JX 1 (“CBA”). The security guard is employed by

Mahoning Security Company, Inc. (“Mahoning Security”), which provides

security services at [Retirement Community].

1
As transcribed by the arbitrator. Although the tape was played at the arbitration hearing, it was not played
in the presence of the security guard, because a tape player had not been located before he completed his
testimony. However, there was no objection to the tape’s authenticity. The guard admitted leaving the
message, an admission that the Employer acknowledges in its brief.

2
 III. The Events Of Saturday, October 11, 2003

As discussed infra, the events of Saturday, October 11, 2003, are

unclear, as the stories of Grievant’s accusers contain serious discrepancies.

Grievant himself denies everything. The arbitrator begins with the stories

told to him at the arbitration hearing held on April 23, 2004, at [Retirement

Community], the scene of events.

III.A. The Security Guard’s Story

The first of Grievant’s accusers to testify was the security guard, who

has been assigned to [Retirement Community] for 2 years.

III.A.1. The Guard On Direct Examination

Early in his testimony, the guard identified his written statement about

the events at issue, EX 6:

My name is [GD], the security guard in the South Building. I have

seeing [Grievant] have girls in the maintenance offer have sex and he
came in my door and open the daycare door so the girl can come in to
the [Retirement Community]. Samuel Sasser told me to come and see
the girl in the maintenance offer.

The statement, on a Mahoning Security Daily Activity Report form, is dated

10-11-03, and the time recorded is 12:00. What did not come out during the

guard’s testimony is that his statement was not prepared until almost two

weeks later, probably on October 24, 2003. JXs 4 & 6.

During direct examination, the guard testified that, on October 11,

3
Grievant came into the building about 11 or 12 o’clock that morning,

through the main entrance on the south side, not Grievant’s usual entrance.

The guard spoke briefly to Grievant, who seemed in a hurry. People were

signing in at the guard’s station. A photographer was present, but there was

no female with Grievant.

There is another entrance to the building through the daycare center,

which usually is locked. However, the guard noticed that curtains covering

the door to the daycare center had been moved since morning, when he had

retrieved papers from in front of the door.

One of Grievant’s coworkers, a boiler operator, told the guard that

Grievant had a girl in the maintenance storage room. The door between the

storage room and the restroom was locked from the storage-room side. The

guard went downstairs to see for himself, and by looking through a hole in

the restroom wall, was able to see Grievant bent over naked, having sex with

a girl from behind. Grievant asked her to get on top but she demurred,

suggesting that Grievant do so. The guard had never seen her before.

The guard then went to get a key so that he and the boiler operator

could enter the storage room through a back stairwell, from which they

could get a better view of the activities. The guard descended the stairwell

far enough to see the pair “f∗∗∗g naked”; the boiler operator did not go all

4
the way down.

The security guard called the [Retirement Community] administrator

at her home and left a message on her answering machine, but was unsure if

he identified himself as the caller. He saw Grievant and the girl leave in

Grievant’s car, which was parked on West Grand Boulevard.

While the guard once had seen Grievant pursue a girl outside the

building, he never before had seen Grievant have sex in the building. He

denied having had previous run-ins with Grievant.

III.A.2. The Guard On Cross-Examination

On cross-examination, the guard stated that he left his station because

the girl could have harmed patients in the building. However, he admitted

that he did not yell at her. He described her as bronze-skinned but could not

otherwise identify her, having seen only her derrière. He insisted that he saw

her and Grievant naked and saw them at the same time as the boiler operator.

He conceded that he did not see the girl enter or leave the building and that

he said nothing to Grievant about the incident.

The security guard insisted that he doesn’t have anything against

Grievant. He denied ever having altered Grievant’s timecard, accused

Grievant of signing in late, or criticized Grievant’s job performance.

Although he reported no previous problems with Grievant and stated that

5
Grievant was not a bad person, he admitted leaving the telephone message

quoted verbatim at the beginning of this opinion. UX 1.

As the questioning wore on, the security guard became increasingly

defensive. Although he admitted that his brother also worked at [Retirement

Community], he denied knowing anything about his brother’s activities or

about any bad blood between Grievant and the brother.

III.B. The Boiler Operator’s Story

The boiler operator followed the security guard to the witness stand.

III.B.1. The Operator On Direct Examination

The operator has worked at [Retirement Community] only since May

12, 2003. He saw Grievant come into the building on October 11. Grievant

parked in front. There was a girl in Grievant’s car. He spoke briefly with

Grievant about the photographer. He thought he caught a glimpse of the girl

going in through daycare; at least he saw the door closing.

The security guard mentioned to him that Grievant had brought a

woman into the building. The operator went downstairs through the main

stairwell and entered the restroom from the maintenance shop, where he

found Grievant in the lounge area of the restroom. Grievant told him that he

(Grievant) had a girl down there.

Grievant went into the storage room, after which the operator found

6
the door between the restroom and the storage room locked from the

storage-room side. He overheard Grievant and a girl talking. He peeked

through a vent in the bottom of the door and saw the girl sitting topless on

Grievant’s lap; Grievant was just talking to her. The operator had never seen

the girl before and has not seen her since.

The boiler operator went back upstairs to the security guard’s station

and told the guard that the guard had been right about Grievant and the girl.

He thinks that he and the guard went down to the basement together. They

did search for and find keys to gain access to the back stairwell, but he

didn’t go down. The guard did and told him that Grievant and the girl were

having sex. He gave the administrator’s home telephone number to the

guard, who called and left a message on the administrator’s answering

machine. He did not see the girl leave.

The administrator approached the boiler operator the same day or the

next and asked him if he had called her at home. He informed her that the

security guard had placed the call.

The operator likes Grievant and has not had any run-ins with Grievant

before. The operator was concerned with “goings-on” at [Retirement

Community] and didn’t want to lose his job. “It’s about the job,” he stated.

7
 III.B.2. The Operator On Cross-Examination

On cross-examination, the boiler operator testified that he never had

had an altercation with Grievant and never had threatened to injure Grievant.

He described their relationship as one of coworkers. He was aware that the

administrator had told Grievant to stay out of the building when not

working. At a voluntary meeting called by workers themselves, Grievant

refused to listen to suggestions that they clean up their act.

About 11:00, the boiler operator and others were outside admiring

Grievant’s car. There was a girl in the car, whom the operator described as

having a small frame and being a light-brown, caramel color. Someone

asked who she was. Grievant walked around the building. The operator saw

the daycare door closing but didn’t see the girl going in or leaving.

Downstairs the operator had a conversation with Grievant in the

lounge area of the restroom, in which Grievant told him to keep his voice

down because Grievant had “a lady downstairs.” The operator saw the girl

through the vent in the lower part of the restroom door, sitting on Grievant’s

lap. The operator watched for a few minutes but said nothing.

The Operator went back upstairs and talked with the security guard,

who returned downstairs with him. The operator never saw Grievant and the

girl having sex and went back upstairs. The guard remained behind for a

8
time before returning.

Later, the operator and the guard entered the back stairwell, from

which vantage point the guard reported that Grievant and the girl were

having sex, but the operator didn’t see anything. They returned to the guard

station upstairs, where the guard made the call to the administrator. They

asked the photographer if he had an extra camera they could use to record

the events, but by the time they got one, Grievant and the girl were gone.

The boiler operator did not see the two of them leave.

IV. Discrepancies In The Stories

Testifying on Grievant’s behalf at the arbitration hearing was Wendell

Stone, Union Business Representative, who represented Grievant at the

grievance meeting held November 24, 2003. JX 4. The arbitrator found Mr.

Stone to be a conscientious and credible witness. Mr. Stone stated that he

was concerned over inconsistencies between the testimonies of Grievant’s

accusers, concerns which the arbitrator shares.

JX 6 is a summary of conversations that the human resources manager

had with Grievant’s accusers. The summary reflects that the security guard

stated the following on October 24, 2003:

Sam Sasser came to [GD] and stated that [Grievant] had a naked girl
in the basement. S. Sasser and [GD] got the key ring from the
maintenance shop and entered through the main Childcare entrance.
They went through the office and down the steps and peeked around.

9
 [GD] indicated he saw [Grievant] and a girl, both naked and having
sex. ([Grievant] did not see or hear them as far as they know.) He
indicated S. Sasser and he turned around and ran up the steps. They
proceeded to contact Ms. Dossie, Administrator and left a message for
her. JX 6.

The HR manager’s summary documents the fact that he had a follow-

up conversation with the security guard on October 30, 2003, which

produced the following:

Asked [GD] to clarify where he went to see [Grievant] with the girl.

He stated they went through childcare and looked down the

steps. He stated that Sam and he both went through childcare
and saw [Grievant] and the girl having sex.

Asked [GD] if he ever went through the bathroom in maintenance to

look at [Grievant].

No, the only place he went was through childcare.

JX 6, emphasis supplied.

These statements flatly contradict the stories told to the arbitrator. At

the arbitration hearing, the security guard testified emphatically that he

witnessed Grievant and the girl having sex, from a hole in the restroom wall.

His testimony was replete with a graphic demonstration of the thrusting

motions he claimed he saw Grievant making.

10
 The arbitrator himself toured the premises and saw the hole,2 which

appeared to be related to utility lines in the wall. At the time of the alleged

incident, kitchen equipment was placed against that wall in the storage room.

As a result, it is unclear what, if anything, the guard could have seen through

the hole. The important point is that the guard told the arbitrator that he

witnessed events from the restroom, while denying having done so, to the

HR manager.

Mr. Stone noted that the security guard first mentioned viewing sex

acts through a hole in the restroom wall, at the arbitration hearing itself. At

the grievance meeting, the guard stated that he initially viewed the sexual

activity through the vent at the bottom of the bathroom door. The arbitrator

attempted to view the storage room through that very vent, the slats of which

are close to the floor and slanted downward toward it, but could see

practically nothing. He therefore questions what, if anything, Grievant’s

accusers could have seen.

Mr. Stone further testified that he interviewed the security guard and

that the guard “didn’t want to be challenged.” The guard told Mr. Stone that

he had seen Grievant bring girls in on several previous occasions and have

sex with them, but that he just didn’t report the incidents. However, both

2
Accompanied by the Grievant and the parties’ representatives and their counsel.

11
before the arbitrator and at the grievance meeting (JX 4), the guard denied

having seen Grievant engaged in such activity before.

The HR manager’s record of conversations with the boiler operator

raises more questions and contradictions. From a conversation with the

operator on October 27, 2003, the manager noted:

S. Sasser stated that one of the tenants for the South Building stated to
him that he saw [Grievant] pull up in a car with a girl and made a
comment like “Big Pimp”. JX 6.

This statement suggests that the tenant may have been familiar with

Grievant’s sexual proclivities, yet the Employer did not call the tenant to

testify.

The Employer’s failure to call the tenant as a witness weighs heavily

against its case, as does its failure to call the photographer from whom the

accusers supposedly borrowed a camera. Elkouri & Elkouri, How

Arbitration Works (ABA/BNA 5th ed 1997) @ 427-429, 1999 Supp @ 56-

57; Hill & Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987) @ 102.

Either of these witnesses, both presumably neutral, might have corroborated

what otherwise is an unconvincing story.

The HR manager’s report of the October 27 conversation with the

boiler operator continues:

S. Sasser went down to the Maintenance Shop and was in the

restroom. He heard voices coming from the room connected to the

12
 restroom. The door to that room was locked and S. Sasser looked
through the vent in the door. He saw a girl sitting on [Grievant]’s lap,
S. Sasser saw her take off her top and perform a “lap dance”. JX 6.

Apparently the operator said nothing to the HR manager about meeting

Grievant in the restroom lounge and being told that Grievant had a girl in the

basement. The operator mentioned nothing about a “lap dance”—a rather

glaring sexual display—in his testimony before the arbitrator.

The HR manager’s record of the October 27 conversation with the

boiler operator further states:

S. Sasser then went upstairs and told security guard [GD] that
[Grievant] had a girl downstairs. They both went downstairs and saw
[Grievant] and the girl naked in that room through the vent in the
door. They contacted Ms. Dossie and left her a message about this
incident. Sam indicated that some time later, they went through
childcare and looked down the steps. He believes they were gone at
that point, but they were in there for a long time. JX 6.

Again, by contrast, the boiler operator never described the girl as

naked to the arbitrator—just topless—and testified that the guard reported

from the stairwell that Grievant and the girl were still there having

sex. In a follow-up conversation with the HR manager on October 30, 2003,

the operator conceded that he did not actually see them having sex and that

he saw her only topless. JX 6.

V. The Employer’s Grievance Response

From the Employer’s Grievance Response, JX 4, prepared by the HR

13
director and dated December 19, 2003, it appears that the Employer accepted

uncritically the statements of the security guard and the boiler operator, and

was bothered by Grievant’s failure to explain their alleged hostility toward

him. However, before the arbitrator, the Grievant testified that they had

harassed him, suggesting that he was gay.

Grievant had had a run-in with the security guard’s brother, in which

he accused the brother of stealing $50 from him. Sometime afterward, the

brother put $50 in Grievant’s hand and walked away. Grievant feels that the

guard disliked him as a result of that incident with the brother. While the

arbitrator wonders why such an incident would generate intense animosity, it

is clear from the guard’s vicious, malicious message to Grievant’s girlfriend,

that the guard really hated Grievant.

In its post-hearing brief at note 7, the Employer attempts to downplay

the guard’s obvious hostility:

SEIU made much of the fact that, following the grievance hearing,
[GD] had made a telephone call to [Grievant]’s home, leaving a
message for [Grievant]’s significant other regarding the reason for
[Grievant]’s termination. This was the first that anyone other than
SEIU had heard of the call, and [GD] readily acknowledged during
the arbitration hearing that he had made the call. This is irrelevant to
these proceedings, however, since the call was made after [Grievant]
had been discharged, and indeed after the grievance hearing. [GD]
explained that he had made the call because he was furious that
SEIU’s Business Representative was making light of the charges
against [Grievant] during the grievance hearing while at the same time
implying that [GD] had some sort of voyeuristic or opportunistic

14
 motives for attempting to obtain a camera to film [Grievant]’s
activities.

The arbitrator is unable to dismiss the guard’s behavior for several

reasons. First, the sheer malice of it: You just don’t call up a man’s

girlfriend and tell her that he’s been “f∗∗∗g these ’ho’s” and probably has

contracted sexually transmitted diseases, especially if the matter is purely

job-related, as the Employer contends. The intensely personal animosity

displayed by such a dastardly deed simply cannot be overlooked. The guard

obviously bore a deep-seated, highly personal grudge against Grievant.

Secondly, neither the arbitrator’s notes nor his memory records any

explanation by the security guard for the guard’s behavior. While the guard

well may have given such an explanation to the Employer or its attorney, the

guard did not provide it to the arbitrator, who is restricted to the evidence

before him. Even if the guard had offered that explanation to the arbitrator,

he would not have found it convincing.

Lastly, inconsistencies in the guard’s testimony on basic, objective

matters—such as the vantage point from which he viewed the alleged sexual

activity—undermines his explanation of his subjective intent in attempting

to destroy Grievant’s domestic relationship. In order for the guard to have

witnessed sexual activity in the storage room, from the hole in the restroom

wall, he practically would have had to have been sitting on the toilet in the

15
restroom, a fact which a witness reasonably would be expected to remember.

Yet the guard told his story from this new perspective for the first time

before the arbitrator, after having denied ever seeing sex from the restroom,

to the HR manager. JX 6.

The Union in its brief characterized these inconsistencies as follows, a

characterization which the arbitrator adopts:

These are not just understandable irregularities but inexplicable

inconsistencies. [GD] unequivocally denied going through the
bathroom at any time, however Mr. Sasser stated they both went
through there and that is when they saw [Grievant]. Then [GD]
testified at the arbitration hearing that he saw them through a hole in
the bathroom. On top of this inconsistency is the fact that upon
inspection and review of the room in question, the only hole in the
room was where a stove was located at the time of the alleged incident
occurred, which would have made this story impossible even if it were
consistent.

For these reasons, the arbitrator is unable to accept the security guard’s

testimony, as the Employer would have him do.

According to Grievant, the boiler operator would feign punching and

choking him. The operator accused Grievant of telling people that the

operator slept on the job. Grievant stated that he did not report any hostility

to management because he thought it would just stop after a while. Thus,

Grievant presented plausible, albeit belated, explanations as to why his

accusers might have wanted to get him fired.

VI. The Burden And Standard Of Proof

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 In this discharge case, the burden of proof is on the Employer. Hill &

Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987) @ 39-41 (“As a

general practice, … in disciplinary cases the burden is on management both

to proceed first with its evidence and to prove employee guilt or

wrongdoing.”); Elkouri & Elkouri, How Arbitration Works (ABA/BNA 5th

ed 1997) @ 447-449, 905-906. Although there is no general agreement as to

the proper standard of proof, a preponderance standard is common. Id. @

905-906.

In its brief, the Union urges a “clear and convincing standard”, citing

Rebanco Recycling, 118 LA 1411, 1415 (Gaba Arb 2003). In PACE Local

731 and Mead Corporation, FMCS No. 00-02983 (Cornelius Arb 2001), the

arbitrator himself wrote:

Since termination of employment is the ultimate punishment in the

industrial world, clear and convincing evidence may be required to
uphold it.♦ …
______________________________

♦
In Elkouri & Elkouri, How Arbitration Works (ABA/BNA 5th ed
1997) @ 905-906, the authors comment that, although there is general
agreement that the burden of proof in a discharge case is on the
employer, the standard of proof is unsettled. In the absence of a firm
standard, the arbitrator observes that the Company’s evidence satisfies
a clear and convincing standard, and the Company so urges in its
brief.

In this case, it is unnecessary for the arbitrator to grapple with the

issue of the correct standard in an ordinary discharge case, because this case

17
is far from ordinary. The [Retirement Community] administrator, who made

the decision to fire Grievant, testified that he committed “an offense of

moral turpitude”,3 and the Employer renews that charge in its brief. In such a

case, the Employer is held to a higher standard of proof, one of clear and

convincing evidence. IBT Local No. 391 and Johnson Controls, Inc, 03-1

ARB ¶ 3467 (Cornelius Arb 2003) (fraud), citing Elkouri & Elkouri, supra,

@ 906-908. To the arbitrator, the evidence in this case just does not meet

this higher standard.

To the arbitrator, the Employer placed too much emphasis on the

scandalous nature of the accusation rather than on proof that the incident

actually took place as charged. As noted above, the Employer failed to call

the tenant who supposedly saw Grievant with the girl and referred to him as

“Big Pimp”, as well as the photographer who is alleged to have loaned the

accusers his camera. Indeed, the Employer admitted making no effort to

interview tenants or other employees or to identify the girl. No effort was

made to ascertain whether building security cameras were in operation at the

time.

The Employer drew no inference from the accusers’ own conduct.

Although the security guard testified that he was concerned that the girl
3
Specifically, Grievant was fired on November 11, 2003, for “gross misconduct” in violation of Rules of
Conduct, ¶ 9.0, # 3, which results in immediate discharge: “Committing illegal or immoral acts on the
premises at any time … .” JX 2.

18
might harm patients, he did not attempt to chase her out of the building or to

call the police. When he left a message for the administrator, he did not even

identify himself. As a result, she at first thought it was all a prank.

Neither the security guard nor the boiler operator followed up in any

way. They did not confront Grievant, approach management, or write a

report. Indeed, the whole matter might have died had the administrator not

run into the operator perhaps 2 weeks later and casually inquired if he had

placed the call. No one seems to have taken the matter very seriously for

some time.

The Union hammers on these points throughout its brief:

… To begin, the allegations were made on or about October 11, 2003.

They were inexplicably made anonymously by [GD] to Ms. Dossie.
The way in which the call was made should and did leave a question
as to the credibility of the allegation. Ms. Dossie dismissed the call as
a prank, and did not actively investigate the matter. In fact, she did
not even attempt to contact [Grievant] to question him about this
matter. However, some time later, and she is not even sure when she
asked Mr. Sasser if he had made the call.

Mr. Sasser did not even state any allegation of wrongdoing to Ms.
Dossie, and merely told her who had made the call.4 Again, this
behavior is consistent with a prank call made by [GD] and one in
which Mr. Sasser’s initial actions indicate he did not want to be too

4
Twice in its brief, the Employer notes the boiler operator’s reluctance to become involved:

Mr. Sasser said nothing to Ms. Dossie about being involved in the incident.

Similarly, when Ms. Dossie approached Mr. Sasser about the telephone call, Mr. Sasser said only
that [GD] had made the call and offered nothing further until he was specifically asked about it.

Suffice it to say that the parties draw quite different inferences from the operator’s reluctance.

19
 involved with. …

… [GD] testified it is his duty to ensure that no unauthorized

personnel come into the building however, he allegedly left his station
to go downstairs away from the door for as long as an hour to watch
according to Mr. Sasser’s testimony, for over an hour. Besides being a
dereliction of his duty, it is improbable to the Union that [GD], would
leave his work area because there was an unauthorized person in the
facility and not remove her or at least admonish [Grievant] that day if
he had brought an unauthorized person in the facility. There is no
reason why [GD] would leave an anonymous message for Ms. Dossie
and never approach her for weeks unless this was nothing more than a
hoax. …

To the arbitrator, the most disturbing aspect of the case is the hostility

that the security guard displayed toward Grievant, which remains largely

unexplained. Not only did the guard seem determined to get Grievant fired,

but he also attempted to undermine Grievant’s relationship with the live-in

girlfriend, whom Grievant called his fiancée. While the Employer faults

Grievant for not supplying a motive behind false accusations, it seems to the

arbitrator that it should be the Employer’s responsibility to explain the

guard’s manifest hostility.

VII. The Employer’s Principal Case

The Employer urges the arbitrator to follow City of Sterling Heights,

84 LA 363 (Keefe Arb 1985), which the Employer summarizes as follows:

In this case, the supervisor came upon two employees who were in
varying states of undress in a sexually compromising position. They
flatly denied that they had been either undressed or in a sexually
compromising position. They were discharged, and the union grieved

20
 it. Arbitrator M. David Keefe denied the grievance and wrote: “The
bacchanal has not been added to the coffee break either through
contract or practice as a new fringe benefit. Not only is the actuality of
sex activity (even among consenting adults) prohibited activity within
the work precincts similar to the enjoinment against possession or use
of prohibited substances ... But also deliberately assuming
compromising positions, suggestive of the prohibited bacchanal by
concealment of the bi-sexual pair behind the locked door of the
women’s restroom constitutes extremism in esoteric behavior which,
itself, warrants summary action. ... The analysis of credibility factors
involved weighs down heavily and convincingly on the side of the
Superintendent and the tailored version belatedly strung together by
the Grievants is dismissed as self-serving.” Id. at 366. Arbitrator
Keefe then offered this advice: “The last word of advice relevant to
these considerations is that, in similar circumstances the Supervisor
forget amenities and natural instinct to restore order by simply
confiscating the male’s trousers as evidence that an orgy was in
progress. With such evidence attesting to the existing condition, the
parties could have saved the cost and embarrassment of arbitrating
this clearly lewd occurrence.” Id.

Obviously, Arbitrator Keefe was convinced that the evidence before him

was sufficient to sustain the City’s charges, whereas that is not the case here.

VIII. The Remedy

Merely because the alleged events of October 11, 2003 have not been

proven by clear and convincing evidence does not mean that Grievant is

exonerated. To the contrary, there are holes in all the stories. {Retirement

Community] employees are so concerned about “goings-on” at work that

they have held a meeting amongst themselves to try and put a halt to the

shenanigans. Grievant may in fact be part of the problem.

21
 It clearly appears that Grievant has been on a downhill slide at work

for some time. He twice has been given an Employee Warning Notice for

violating the Rules of Conduct (EX 3). On October 28, 2002, he was cited

for failing to punch in and out on October 11 and 17, 2002. EX 4. He was

cited for the same violation (¶ 2.0, # 20) on February 21, 2003, for his

failures of February 1 and 2, 2003. At the arbitration hearing, he admitted

going out for lunch on October 11, 2003, and an examination of his time

records reveals that he did not punch out or in at lunch. JX 8. These

infractions mean that Grievant could be fired for a fourth offense. EX 3, ¶

3.0.

The Employer notes in its brief that it might have proceeded

differently against Grievant on just such grounds:

It should be noted that [Grievant] could have simply been written up

for failing to punch in or out. He already had both a verbal counseling
and a written warning for failing to punch out. BT has the discretion to
accelerate discipline, so they could have simply by-passed the Final
Written Warning stage of discipline and terminated [Grievant]’s
employment for failing to punch out on October 11, 2003. Mr. Cole
testified, however, that he felt that the evidence that [Grievant] had
committed an immoral act on the premises was compelling and, as a
[Protestant]-based facility, that was not conduct that could be
tolerated. They had to react.

While there may be constraints on upholding disciplinary action on grounds

other than those expressly stated to a grievant, [Paperworkers v Misco, Inc,

484 US 29, 40 n 8 (1987);] Bard Mfg Co, 91 LA 193, 200 (Cornelius Arb

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1988), there is no reason why those alternative grounds may not be factored

into a remedy.

In addition to these documented infractions, Grievant has been warned

informally about coming into the building outside of working hours, another

violation of the Rules of Conduct. See EX 3, ¶ 2.0, # 10. As a result of

Grievant’s recent poor work history, the arbitrator seeks to fashion a remedy

consistent with the terms of the collective bargaining agreement and the

Rules of Conduct, which will help Grievant get back on track and stay there.

Hill & Sinicropi, Remedies in Arbitration (BNA 2nd ed 1991) @ 146-147,

154-156.

At the grievance meeting held November 24, 2003, the Union

proposed that Grievant be reinstated without back pay (JX 4, last paragraph),

a proposal which the arbitrator adopts. To assist Grievant in staying out of

trouble, for the next 24 months, beginning with the month of May 2004,

Grievant is to be treated as though he has accumulated 3 violations of the

Rules of Conduct; i.e., one more and he may be discharged. Cf. EX 3, ¶¶ 3.0

& 5.0. New security cameras have been installed at [Retirement

Community], so that management should have a video-taped record of any

unauthorized person entering the premises. Grievant is cautioned to avoid

even the appearance of impropriety.

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 IX. The Award

For all the foregoing reasons, the grievance is SUSTAINED. Grievant

is to be reinstated with the seniority he had on November 11, 2003, the date

he was discharged, and is to be afforded future benefits in accordance with

the CBA. He is not awarded back pay or compensation for benefits missed.

For the next 24 months, beginning with the month of May 2004 and

continuing through the month of April 2006, Grievant is to be treated as

though he has accumulated 3 violations of the Rules of Conduct. If he

commits another violation of the Rules of Conduct within that period, then

he may be discharged.

Dated May 24, 2004 _____________________________

E. Frank Cornelius, Arbitrator

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