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You be the ArbitratorShould an Employee's File Be Expunged?

Introduction: This grievance concerns the warning memo placed in the file of a college professor.

CBA Article XV

Discipline/Discharge Procedures

The Employer shall not discipline or discharge any Employee without just cause.

The following procedure of progressive discipline shall be applied by the Employer, except the Employer need not follow progressive discipline before suspension or discharge if the suspension or discharge is for theft, deliberate damage to Company property, gross insubordination, physical violence, or other similar offenses.

The Employer may issue an oral warning(s) prior to written warnings or suspensions, which shall be imposed for related offenses as follows:

• First Offense: Written warning(s)
• Second Offense: One (1) day suspension without pay
• Third Offense: Suspension of up to three (3) days without pay
• Fourth Offense: Further suspension or discharge

Warnings and one-day suspensions as herein provided shall be null and void after six (6) months and shall not be used as a basis for further disciplinary action. Suspensions of more than one day as herein provided shall be null andvoid after nine (9) months and shall not be used as a basis for further disciplinary action.

These procedures herein provided are subject to the terms of the grievance procedure.

Facts

An Alternative Calendar Committee (ACC) of the employer's college met to discuss a proposal to shorten the calendar at the college from 171/2 to 16-week semesters. Professor L testified that the proposal to shorten the calendar had been discussed at an Academic Senate meeting and that he had been appointed chair of the ACC. The grievant, Professor W, was president of the Faculty Association at that time. Although he was not a member of the ACC, the meeting was open. The proposal to shorten the academic calendar was considered controversial by the faculty. During the meeting, there was a discussion of whether the ACC or the Faculty Association should survey the faculty on the issue. There was a considerable amount of discussion regarding this issue. At the end of the meeting the other faculty members had moved to the other end of the room.

There is general agreement that L and W stayed at the back of the room and engaged in a heated discussion. W said that L was trying to circumvent the contract by having ACC survey the faculty rather than the Faculty Association. L retorted that the contract the Faculty Association had negotiated was lousy. L admitted stating at the meeting that W "was acting like a jerk" and that he had criticized the contract W had negotiated. At the end of the discussion they grabbed their things and walked to the end of the room to join the other faculty members. According to witnesses, during the heated discussion L and W were loud but not shouting. No one witnessed W using inappropriate language, nor was he observed making any threatening gestures. No one witnessed W shove a chair into L. However, according to L, W had shoved a chair into him.

L reported the incident, and W was sent a warning memorandum regarding the incident that stated:

An incident was reported and investigated that occurred on Tuesday, August 28, 2001, at the end of an Alternative Calendar Committee meeting in the Staff Lounge. Apparently, your behavior towards L was physically menacing, as you were shouting inches away from his face while continually pushing a chair against L. Both Security personnel and my office took statements from those present at the meeting.

W, this memorandum is intended as a warning. The College is concerned about the safety of its employees. Another incident of this kind of behavior may warrant disciplinary action. You are to conduct yourself in a professional and respectful manner, even though you may not agree with others.

This memorandum will be placed in your personnel file. I trust you will see that any form of physical intimidation is not to be tolerated on campus.

W grieved the warning memorandum, and a meeting was held. At the end of the meeting the supervisor issued the following grievance memorandum:

At the grievance meeting held Monday, October 22, 2001, there was agreement that an altercation occurred in which you and L exchanged statements related to the proposed alternative calendar. There was not agreement that you pushed a chair into the legs of L.

You insist you did not push a chair. Upon further discussions with L, he insists that you did push a chair into his legs. The incident could have resulted in an injury. Since there is no corroboration that a chair was pushed into L's legs, it would be inappropriate for disciplinary action to be taken. However, a memorandum of warning to you is appropriate and appropriately included in your personnel file. Placing the memorandum of warning in your personnel file does not violate the contract agreement in any way.

If there are no subsequent altercations or incidents of a similar nature the memorandum of warning will be removed from your personnel file on June 30, 2003.

In light of the finding at the grievance meeting, W appealed the decision to leave the warning memorandum in his personnel file.

Issue

Should a warning memorandum in an employee's file that contains false and/or erroneous information as to facts or conclusions be expunged?

Position of the Parties

Thegrievant's positionis that the warning memorandum should be removed from his file immediately. If the warning memorandum is read together with the grievance memorandum, it is clear that the warning memorandum is defective, as the grievance memorandum states that there was no corroboration that a chair was pushedagainst L. Grievant contends that the warning memorandum cannot be minimized as "a mere warning." In progressive discipline, disciplinary action progresses from verbal or written warnings to more serious discipline such as suspension and, ultimately, discharge. The purpose is to put an employee on notice that if the behavior continues, more serious discipline may follow. The contemplation of further disciplinary action is set forth in the warning memorandum, in which it is stated that the warning will remain in the grievant's personnel file until June 30, 2003, and will then be removed if, and only if, "there are no subsequent altercations or incidents of a similar nature." As there was no "incident" as alleged by L in the first place, the grievant should not be left on an initial stage of a disciplinary action by having the memorandum left in his file.

Thecollege's positionis that the warning memorandum and the grievance memorandum read together create an accurate report of the incident. Even though the "shoving" was not proven, there was significant evidence that the grievant and L engaged in a verbal altercation. The college does not agree that leaving the information in the grievant's file is an inappropriate disciplinary action under the CBA.

Source:Adapted fromCitrus College Community Dist.,117 LA 26.

As arbitrator, what would be your award and opinion?

Identify the key, relevant section(s), phrases, or words of the collective bargaining agreement (CBA), and explain why they were critical in making your decision?

What actions might the employer or the union have taken to avoid this conflict?