A Pair of Arbitration Victories for Wiley Reber Law Clients

Here at Wiley Reber Law, we frequently discuss local arbitration awards to show how arbitrators handle certain fact scenarios, including both discipline and contract grievances.  But what we really like to discuss is when Wiley Reber Law clients prevail in arbitrations where they’re represented by us.  Such was the case in two recent arbitrations involving Metropolitan Council and Metro Transit.

In Metro Transit and ATU Local 1005, the union was contesting the employer’s decision to medically disqualify an employee following the employer’s contracted occupational health physician’s determination that the employee suffered from a condition that rendered her incapable of safely performing her duties as a bus operator.  The physician’s decision was based on the clear language of the Federal Motor Carrier Safety Administration’s (FMCSA) Medical Examiner Handbook, which stated that with the employee’s condition, she should not be considered fit to operator a commercial vehicle until two years after her condition was surgically corrected.

For its part, the union argued that the employee’s own doctor, as well as an FMCSA Medical Examiner from Mayo Clinic stated that she was fit to perform bus operator duties, and that the employer was discriminating against the employee based on her disability.

Through the presentation of expert witness testimony, and favorable contract language, we were able to prove that the opinion of the employer’s doctor the only opinion that could be considered when determining the employee’s fitness for duty.  Furthermore, Arbitrator Wallin found that the employer had not discriminated against the employee based on her disability, as her condition rendered her incapable of safely performing bus operator duties.  The union was unable to prove any case of disparate treatment of the employee.  With that, the employee was not provided reinstatement to her previous position.

In Metropolitan Council and International Association of Machinists Lodge No. 77, AFL-CIO, Greg Wiley represented the employer after it terminated an employee for directing a racial slur at another employee in the parking lot of the employer’s Environmental Services facility.  The employee had a history of disrespectful conduct towards other employees within the facility, and was terminated after an independent investigator found the employee to have perpetrated the conduct of which he was accused, and been less than forthcoming about his own conduct.

In defending the grievant, the union argued that the complainant in the case was not consistent, and that a fair investigation did not take place.

Arbitrator Orman acknowledged that the degree of discipline levied against an employee is normally the province of the employer (yea!).  He also stated that he was reluctant to view the employer’s independent investigator as “independent,” based on his contractual agreement to be paid by the employer for his work.  That determination is noteworthy because clients often seek independent investigators to avoid this sort of bias determination.

In the end, the question over what happened came down to the credibility of the witnesses, and we were able to show that the complainant was the more credible witness, based on the employees’ work records and the grievant’s inconsistent statements throughout the investigation process.  Based on the severity of the grievant’s statements to the victim, the arbitrator found no mitigating circumstances that would have warranted returning the grievant to duty.

One can never be certain of a result when going into arbitration.  However, with the right representative, your organization has a better chance of having your decision upheld by the arbitrator.  If you, or your organization, need assistance in grievance or interest arbitration, contact Wiley Reber Law, for experience that works.