LABOR UPDATE: Gregory, Moore, Jeakle, & Brooks, P.C.

We are pleased to present summaries of significant legal victories since the last Convention. Many of you played an important role in these cases. We can share pride in representing our members with dedication and skill in the courts, and before administrative agencies and arbitrators.

In addition to representing the SPFPA in hearings and providing advice and legal opinions on numerous subjects, we serve the Union by planning and conducting various training sessions for its leadership and members, including as part of this International Convention. Of recent note was the several day Special Forces training last summer that provided the selected International directors and local leadership with intense, specialized training to provide the knowledge and refine the skills necessary to represent the membership to the fullest potential. Each participant was required to undergo end of session testing; we were impressed and proud at how well overall the new Special Forces performed.

Our firm is honored to be a vital part of the Union’s programs and progress, and we look forward to serving the membership in the future.

Gordon A. Gregory, General Counsel

SPFPA LEGAL VICTORIES JUNE 2005 – APRIL 2010

Union Defeats Frivolous Class Action Lawsuit

The nuclear plant decided to eliminate its contract with Wackenhut and use in-house guards instead. The Union negotiated a $4000 stay bonus to compensate any employee of Wackenhut who stayed until the end of the Wackenhut contract and then was not hired by the utility. Employees who were hired by the utility and never lost even a single day’s pay sued Wackenhut and the Union claiming they were entitled to the $4000 also. After seven years of litigation, the federal judge dismissed the lawsuit in its entirety as being wholly without merit. Koss v. Wackenhut and Local 515, U.S. District Court, SD New York (3/25/10)

SPFPA Wins Horse Race At Casino

The SPFPA petitioned for an election to represent the security officers at a casino and racetrack outside or Pittsburgh. A motion was made to dismiss the petition claiming the NLRB did not have jurisdiction to hold the election, as generally the NLRB does not assert jurisdiction over racetracks. The SPFPA established that over 96% of the facility’s income came from the casino gaming portion of the property. The NLRB Regional Director agreed this was a casino more so that a racetrack, asserted jurisdiction and ordered the election. Meadows Racetrack and Casino, 6-RC-12713 (1/12/10)

Well-Intentioned Member Reinstated

Out member was fired based on an accusation that he threatened the ex-husband of a co-worker. His credible explanation of his intent to protect his co-worker as well as the Employer’s slipshod investigation, including failing to ever interview the grievant before making its termination decision, lead an arbitrator to reduce the discharge to a suspension. Temple University and Local 511 (10/1/09)

Inadequate Investigation Means No Just Cause

The grievant was discharged for allegedly admitting onto the premises a fuel vehicle without checking identification or logging it in. The arbitrator agreed with the Union that the investigation was inadequate; finding the Company unreasonably delayed beginning the investigation, did not interview relevant witnesses and based the decision to discharge on unsubstantiated assumption. As a result, the arbitrator held that the Company did not have just cause to terminate the grievant, who was reinstated with full back pay. Boeing Company and Local 5 (9/22/09)

Company Strikes Out: Union Wins Three Times In One Case

The Company fired the grievant to allegedly violation work rules, The Company claimed the grievant was a probationary employee and refused to arbitrate the grievance. After a federal lawsuit to require arbitration, the parties arbitrated twice: first whether the grievant was a probationary employee and second if not, whether there was just cause for discharge, The first arbitrator ruled that although the CBA was effective January 1st, the grievant was entitle to seniority credit for time worked prior to that date and thus was not probationary. The second arbitrator then ruled that the company did not prove sufficient facts to establish the grievant violated the work rules. The grievant was ordered reinstated with full back pay. The Wackenhut Corporation and Local 502 (7/10/09)

Suspension For Conscientious Work Performance Overruled

Our member insisted that a (non-guard) employee display proper identification in the workplace and when the employee became upset and complained, our member was given a 30-day suspension. The arbitrator concluded out member was doing his job and coupled with the Employer’s faulty investigation there was no just cause for the suspension that had been imposed. Ameritex and Local 267 (4/25/09)

Right To Personal Time Upheld

After first having to go to federal court to obtain an order compelling the Company to arbitrate, an arbitrator held that the employer’s unilateral change in the calculation of accumulated personal time violated the agreement. The employer could not overcome the Union’s presentation of the evidence of bargaining history and past practice. Secure Solutions and Local 14 (4/3/09)

Gossiping Does Not Require Discharge

The grievant was fired for allegedly revealing the name of a suspect of a number of thefts to a non-involved employee. The arbitrator concluded that the grievant did not have sufficient information regarding the actual investigation to be able to reveal any relevant information from the investigation. His statement to the co-worker was considered gossip. The discharge was reduced to a 30-day suspension for violating policy against discussing official department business with non-involved personnel. Cheyney University and Local 506 (3/9/09)

Bathroom Break A Good Excuse

The company discharged the grievant for allegedly being away from his post and permitting a security breach. The grievant in fact had been relieved for a bathroom break during the time and thus discharge was not appropriate. The arbitrator concluded, however, that the grievant inappropriately delayed his return from the bathroom break by engaging in non-work conversation with a co-worker before returning to his post, and thus reduced the discharge penalty to a 10-day suspension. The Wackenhut Corporation and Local 323 (1/4/09)

Not Insubordinate When Given Choice To Not Accept Order

The Company claimed that the grievant voluntarily quit by refusing an assignment, and therefore the case was not arbitral. The arbitrator ruled that the Company took the grievant’s clearance and banned her form the facility, and that she had been discharged. The Company then argued that the grievant was insubordinate for refusing the assignment. Although the arbitrator concluded that the grievant had been insubordinate, he found that there were a number of mitigating factors, including conversation that gave the grievant reason to believe that she had a choice to accept or refuse the assignment. The arbitrator ordered that the grievant be reinstated without back pay, but with no loss of seniority, full retirement credits, and retroactive reinstatement of the grievant’s health insurance. Day & Zimmerman and Local 229 (12/19/08)

Sleeping Guard Gets Second Chance

The grievant was fired for alleging sleeping at his post in a federal building. The arbitrator found the grievant was sleeping but reduced the penalty to a time served suspension, as the post was a two person post (and thus no security breach), the grievant’s boss testified the he was otherwise an excellent employee and another employee previously was only reprimanded for sleeping on duty. MVM, Inc. and Local 547 (10/7/08)

Lying About Accident Means No Right To Arbitration

Plaintiff, after an on-duty accident, claimed that the vehicle took itself out of park, put itself into gear and hit the wall with no one driving. After full investigation, the Union concluded that arbitration was not appropriate. Plaintiff sued the company and the Union; the federal judge, in her decision dismissing the lawsuit held the Union properly concluded that the case did not merit arbitration. Barnette v. Covenant Homeland Security and Local 268, U.S. District Court, SD Teas (10/08)

This Case Was So Good That…

The College unilaterally changed methods for providing shift differential and overtime for holidays. At the arbitration hearing, after opening statement, the arbitrator informed the parties that he believed the Union would prevail in the grievance. The College then settled the case, reverting to the old system and paying the member their lost wages. New York Medical College and Local 528 (7/28/08)

NLRB Rejects Casino’s Effort To Exclude Voters

The SPFPA filed a petition seeking an election of all security officers at a casino in Las Vegas. The casino tried to split the unit, seeking to exclude part-time employees as allegedly not sharing a community of interest and training officers as allegedly being supervisors. The NLRB Regional Director agreed with the SPFPA that the part-time officers were to be included in the unit and further also the training officers, as they were not supervisors. The casino appealed this decision to the NLRB in Washington. The Board, however, also agreed with the SPFPA’s position and directed the election in the unity for which the SPFPA petitioned. Mandalay Bay Resort, 28-RC-6596 (6/12/08)

Company Fails To Prove Case

The grievant was discharged for allegedly giving inconsistent statements during an investigation of a robbery committed by a former cast member. The robbery generated a lot of attention and was very embarrassing for the employer. Most of the case against the grievant was based on hearsay evidence. The Union argued that the employer had failed to prove the allegation by a “clear and convincing” standard. Moreover, the grievant did not have any intent to deceive or mislead with his statements (given months apart), and other involved cast members had given inconsistent statements but were not disciplined. The arbitrator ordered that the grievant be reinstated with full back pay. Walt Disney World and Local 603 (4/3/08)

Grievant Properly Relieved, Company Can’t Fire Him

The grievant was discharged for post abandonment when he was observed leaving his post early and for falsifying government document by reporting his scheduled work hours rather than the actual time worked. The arbitrator found that the grievant did not violate the company’s policies because there had been a long-standing practice under the predecessor employer of guard at the site relieving each other early, and the company had not effectively communicated that it would no longer tolerate the practice. The arbitrator also found that the grievant did not steal time, and that he had been properly relieved prior to leaving his post. However, the arbitrator did find a serious violation with the grievant’s time logs but found that there were mitigating circumstances. The arbitrator ordered that the grievant be reinstated without back pay, but with no loss of seniority.

Following the arbitrator’s decision, the Department of Homeland Security revoked the grievant’s site clearance, and the employer refused to reinstate the grievant for that reason. The Union filed an appeal with the Department of Homeland Security explaining the circumstances and including the arbitrator’s decision. Based on the Union’s appeal, the grievant’s clearance was restored and he was reinstated by the employer. Akal Security and Local 200 (4/3/08)

Union’s Representation Praised, Lawsuit Dismissed

The SPFPA negotiated a contract that was ratified by the membership. Plaintiff (who wanted to start her own union) sued, claiming that the provisions providing the membership with a 401(k) retirement plan were illegal and that she somehow could have represented the membership better. The federal judge in dismissing the lawsuit held to the contrary, stating: “Plaintiff has not presented any evidence that defendant SPFPA’s action were in any way arbitrary. Indeed, the union took what appear to be all possible efforts on behalf of its members, many of which achieved precisely the result sought by plaintiff.” Upshaw v. Akal Security and SPFPA Local 200, U.S. District Court, ND Illinois (3/08)

Exoneration Requires Back Pay With Interest

Our member was suspended as a result of an of-duty DUI arrest. After dismissal of the traffic charge, the employer reinstated her but refused to pay back pay, The arbitrator concluded that where, as here, the employer did no investigation and relied entirely on the outcome of the court case, when the grievant was exonerated there, there was no reason to deny back pay. The arbitrator also ordered interest on the back pay. The Wackenhut Corp. and Local 403 (2/1/08)

Morning Doesn’t End Until Noon

The grievant was ordered to complete a form by the end of morning, but was fired at 7:00 am, two hours after his 5:00 am shift ended, when the form was not completed. The Arbitrator reinstated the grievant with full back pay after finding that the company’s investigation was inadequate, that the grievant was not insubordinate as he still could have completed the form (off duty) by noon, and regardless, that he had been given an extension until the beginning of his next shift by his sergeant (who the company did not even bother to interview before firing the grievant). Wackenhut Services Inc. and Local 5 (1/8/08)

Enforcing Hospital Rules Not Misconduct

The grievant was discharged for allegedly being rude and enforcing a no-photography policy against a family leaving the hospital with newborn triplets (while the mother remained in the hospital, in a coma, on her death bed). The arbitrator credited the grievant’s (and co-workers’) version of event over two nurse’s version, finding that the grievant was not rude. No supervisory employee had instructed the grievant to ignore the rule against photography. The grievant was unaware of the tragic circumstances involving the birth so the family’s heightened sensitivity could not be a factor in analyzing the grievant’s behavior. The grievant was reinstated with full back pay. Cedars Sinai Hospital and Local 1 (11/20/07)

Spying On Voters Objectionable Conduct

During the election campaign, the casino surveilled the SPFPA organizer by placing supervisory security officers at the location where he was attempting to speak to employees going to and coming from work. These supervisors stood in plain site, carefully watching the employees interact with the organizer. The SPFPA filed objections to the conduct. The NLRB Administrative Law Judge upheld the SPFPA’s objections, finding the casino’s surveillance of the SPFPA organizer illegal as it interfered with his opportunity to speak to voters without those voters being intimidated by being watched by employer supervisors. Tropicana Casino (Atlantic City), 4-RC-21334 (2008)

Can’t Refuse An Order Not Given

The grievant was working a special overtime assignment on his regular day off; a supervisor wanted to pull him off the project and instead have him conduct a routing patrol. When the grievant questioned this direction, believing that his reassignment would halt the special project, he was discharged for insubordination, following a separate hearing and a favorable ruling on timeliness, the arbitrator ordered reinstatement with full back pay of the grievant. The arbitrator concluded that Wackenhut’s investigation and evidence were insufficient to establish that the grievant had willfully refused an order, or eve that a direct order had been given. Wackenhut Nuclear Services and Local 40 (11/5/07)

Employer Chases Organizer Loses Race

The company illegally surveilled the SPFPA organizer, including on one occasion having a supervisor follow him around the airport for more than an hour, photographed the organizer speaking to employees and ordered a SPFPA supporter to remove his pro-union sticker. The SPFPA filed objections, which were upheld by the Hearing Officer, who recommended that the conduct was so severe that a new election must be run. McNeil Security, 3-RC-11751 (9/3/07)

Employer Doesn’t Prove Case Without Presenting Witnesses

The grievant was fired for fighting in the parking lot following his shift, in view of the inmates. The arbitrator concluded that the grievant was partially at fault for the fight, but then concluded that because the company failed to call nine eyewitnesses, it had not sustained just cause for discharge. The arbitrator converted the discharge to a time served suspension. Management & Training Corporation and Local 725 (8/10/07)

Wrong Place At The Wrong Time

The grievant was observed at a location not part of the normal route and was fired for travelling outside of her expected route. The grievant initially denied being at the location but ultimately explained that she got lost while trying to avoid a backup on the freeway. The arbitrator held that the casino failed to properly investigate the reason why the grievant may have been at the location off her route, notwithstanding the grievant’s initial denial of being there. The arbitrator accepted the grievant’s explanation for being in the wrong place and ordered reinstatement with full back pay. MotorCity Casino and Local 1212 (8/1/07)

Who’s Zooming Who?

Employees are not required to “cast zoom” i.e., wear “costumes” (uniforms” to work at the Magic Kingdom but may do so if approved by management or with agreement of the Union. Employees at other work locations get 20 minutes dress and travel time under the contract. The company unilaterally offered to pay employees at the Magic Kingdom for an extra 10 minutes if the agreed to wear their uniforms to work. Some employees accepted the offer. The Union filed a grievance over the unilateral offer of benefits, arguing that all employees should receive 20 minutes pay for travel and dress time. The arbitrator held the company violated the agreement as it failed to negotiate with the Union either during bargaining for the contract or before implementing the policy and directed that all employees retroactively were entitled to 20 minutes pay per shift. Walt Disney World and Local 603 (6/11/07)

“Untrustworthy” Guard Permitted To Continue To Work

The grievant was fired for theft and making false statements, with the company claiming it could not longer trust the grievant. In fact, the grievant had taken a bag of material an initially denied doing so. The arbitrator found these to be serious offenses that destroy trust and generally support discharge. However, as the company permitted the grievant to continue working for 10 days after discovering his misconduct, the arbitrator held this supported the argument that in fact the company did continue to trust the grievant o do his duties. Therefore, the arbitrator reduced the discharge to a time served suspension and reinstated the grievant. The Boeing Company and Local 507 (3/29/07)

A Member’s Good Deed Not Reason For Discipline

It was alleged that the grievant improperly provided prescription medication (an asthma inhaler) to a patron of the employer (a casino). The employer never interviewed the patron and when he appeared at the hearing and confirmed the grievant’s testimony – that she only gave him some discount coupons for the inhaler that she had received from her physician – the arbitrator overturned her discharge. Alton Belle Casino and Local 250 (2/16/07)

Member’s Use Of Force Not Cause For Discharge

After first rejecting the Employer’s argument that the Union’s arbitration appeal was untimely, the arbitrator reinstated a member who was accused of using excessive force in restraining an unruly patient in the hospital’s emergency room. While finding some just cause for a reduced penalty the arbitrator was persuaded that termination was not warranted. Health Alliance Hospitals and Local 543 (2/13/07)

Computer Use Excused Due To Known Practice

The grievant was a first line supervisor and local union president. During her shift she used a personal computer for approximately 20-30 minutes to conduct union business, send e-mails and browse the Internet. The arbitrator found that based on a history of observation and failure to take action, supervisors managers knew or should have known that employees including the grievant believed they were permitted to use computers during downtime in their shift. Accordingly, the company failed to prove just cause for termination and the grievant was reinstated with full back pay. Costal International Security and Local 287 (2/9/07)

Innocence In America Means Something

The grievant, with 22 years seniority, a high security clearance and a discipline free record, was fired after a company psychologist proclaimed he was prone to violent tendencies following a arrest for alleged assault during a bar fight. The grievant went to trial and was acquitted of the charges against him, before the company fired him. The psychologist testified at the hearing that the grievant’s guilt or innocence did not matter, but the arrest itself was sufficient to find him no stable. The arbitrator disagreed, finding the grievant’s long history of violence-free work and his acquittal did not provide the Company with just cause to terminate the grievant. The grievant was ordered reinstated with full back pay. Wackenhut Service, Inc. and Local 330 (3/7/07)

Good Friday Holiday Requires Holiday Pay

Good Friday is listed as a holiday in the contract for which employees receive 8 hours holiday pay. During negotiations the Union obtained language requiring the company to pay time and a half for time worked on Good Friday (the only holiday during which the work site – a federal building – is actually open). The company paid the employees who worked Good Friday time and a half but refused to give the extra 8 hours holiday pay. The arbitrator held the contract language clearly required the payment of holiday pay and that the time and half rate negotiated for those who actually work is an addition to the payment of the holiday pay. SecTek and Local 691 (1/2/07)

Dispatchers Belong In The SPFPA Bargaining Unit

In on of the first decisions following the NLRB’s 2006 decisions on “supervisory” status (the Oakwood trilogy), and employer sought to classify several dispatcher employees as “supervisors” in order to exclude them from the bargaining unity sought by the SPFPA. The evidence established that the dispatchers had historically been members of the security bargaining unit. That there was already a supervisor – a sergeant – on each shift and that the dispatchers did not exercise the kind of independent judgment that is the hallmark of a genuine supervisor. Accordingly, the NLRB region office rejected the employer’s position and an election proceeded with the dispatchers joining with the other security officers to vote for representation by the SPFPA. Long Island University and Local 516, NLRB Case 29-RC-11462 (2007)

Dozing Casino Guard Beats The Odds

The grievant was fired for sleeping at his post at the casino. The arbitrator concluded that over a period of time the grievant did “doze” on several occasions, but also found that during the same period the grievant also performed work functions, e.g., permitting access to the room to a co-worker. The grievant was reinstated without back pay. MGM Grand Detroit and Local 1111 (11/6/06)

Improper Drug Test Not A Basis For Discipline

The employer’s compulsory drug test, ordered without reasonable suspicion, was not a proper basis for discipline; especially where a subsequent test performed by an independent laboratory contradicted the employer’s improperly compelled test. USEC and Local 111 (9/18/06)

Workout Hard For The Money

The evidence established that there was a past practice of paying unity members for off-duty physical training, to assist in maintaining physical standards, that was worth some $2000 to each member annually. The arbitrator ruled that the employer’s unilateral decision to end the practice violated the contract. The employer’s attempt to rely on DOE regulation to justify the change was rejected. The Wackenhut Corp. and Local 330 (9/12/06)

Head Injury May Have Caused Guard To Fall Asleep

The grievant was fired for falling asleep at her post. Approximately two hours earlier the grievant, on duty, twisted her ankle and fell head first into a car. The company rejected the grievant’s claim that her sleeping may have resulted from the prior accident. The arbitrator, however, held that the discharge for sleeping was without just cause as the grievant’s sleeping being caused by the prior accident was a real possibility not properly investigated by the company. The grievant was reinstated with full back pay. Walt Disney World and Local 603 (8/28/06)

No Just Cause To Discharge A Security Officer Doing His Job

The company accused the grievant of striking a fellow (non-guard) employee contrary to the company’s zero-tolerance policy. The dubious credibility of the so-called victim was exposed and another witness’ testimony was equally unpersuasive. Ultimately the grievant’s straight-forward testimony convinced the arbitrator that he had struck no one and was simply enforcing company rules to the annoyance of his accuser. Bell Helicopter and Local 256 (8/5/06)

Zero Evidence For Disciplining Our Member

The grievant was disciplined for allegedly striking a fellow security officer in violation of the employer’s “zero tolerance” policy and, in addition, ordered to submit to a psychological examination. The employer did not meet its burden of proving there was any improper contact by the grievant and, although the employer had the management right to order the grievant to submit to an examination, there no just cause for any disciplinary action. Cedars Sinai Medical Center and Local 1 (7/5/06)

Sleeping Partially Excused By Personal Circumstances

The Hospital fired the grievant for sleeping at his post, claiming that discharge was the appropriate penalty for all sleeping cases. The grievant had taken a painkiller that may have made him drowsy. In addition, the Union argued that discharge was too severe in the circumstances, as the grievant had a gravely ill young child without health insurance and had to work a second job to pay the medical bills as well as sleep on the floor nest to the child to attend to his needs. The arbitrator held that the grievant should have told the Hospital both of his use of the controlled substance and his personal circumstances. Nonetheless, the arbitrator concluded that discharge in all of the circumstances was too severe a penalty and ordered the grievant reinstated with a six-month suspension. Magee-Women’s Hospital and Local 502 (6/26/06)

Contractual Provisions Mean Something

The company discharged employees who failed to meet the Navy imposed physical fitness standards, notwithstanding contract language permitting the employee with additional training time and two more opportunities to qualify. The arbitrator agreed with the Union and held that the company failed to negotiate new contract provisions during bargaining and that if the company’s obligations to the Navy and to the Union employees are in conflict, the company must bear the expense of having entered into conflicting agreements. The arbitrator set aside the discharges. Securiguard and Local 574 (12/12/05)

SPFPA Unit Work Protected

The collective bargaining agreement’s union security, recognition and seniority provisions barred the transfer of unit work to non-unit employees, the absence of a specific contract provision was not controlling where the amount of work transferred was significant. The employer’s claims of goo faith and improved economic efficiencies were rejected. Loomis Fargo and Local 13 (10/25/05)