On May 4, 2016, Blanco Wilczynski received a favorable Arbitration Opinion and Award in a grievance employment matter subject to a collective bargaining agreement. The case involved an EMT who had been discharged from his employment with a non-profit municipally owned EMS service following his arrest for Driving under the Influence of alcohol. The employee was arrested following a single car crash while off duty. The investigating Sheriff Deputy reported that the EMT told him that the driver of a garbage truck had run him off the road. When the Deputy questioned whether the EMT was under the influence of alcohol, the EMT claimed that he had consumed “a lot of beer” after the crash and before the officer had arrived to the scene. When the Deputy inquired about the whereabouts of the beer cans, the EMT told him that his girlfriend had driven to the accident scene to pick up the cans and had left the scene. When the Deputy contacted the girlfriend by phone, she denied the EMT’s story. In addition, the EMT attempted to mislead the Deputy by claiming that he could not participate in a sobriety test because he suffered from “every” medical condition, including diabetes and was “uneducated” none of which was true. The EMT eventually took a breathalyzer test which revealed a blood alcohol content of .253, more than three times the legal limit. He was placed under arrest and charged with operating a vehicle under the influence of alcohol.
After his arrest, the employee advised the ambulance company of his arrest and falsely reported that he had been run off the road by a garbage truck. He was placed on administrative leave, pending an investigation. The employer took no action to terminate or otherwise discipline the EMT during the pending investigation and the EMT’s court case. After the court case was completed, the employer obtained the Sheriff’s investigation and testimony provided by the EMT at a plea hearing. The testimony revealed that the EMT also attempted to mislead the Court about the activities that led to his arrest, even after having placed under oath by the presiding Judge. Eventually, the EMT admitted to having consumed seven beers and a pint of whiskey prior to the accident and the Court accepted the EMT’s plea to a reduced charge of impaired driving. After reviewing the entire investigation of events, including the Court transcript, the employer terminated the EMT for violating the Employer’s Code of Conduct, which provided, among other things, that an arrest or conviction of any crime due to conduct occurring outside of working hours may result in in disciplinary action, up to and including termination, depending on the nature of the conduct and whether the sanctions imposed for the arrest and/or conviction interfered with the EMT’s ability to perform his job duties. Because the EMT had lied to the police officer, and also attempted to mislead the judge presiding over his case, while under oath, the employer decided to terminate the employee.
Following his termination, the employee filed a grievance claiming that the termination was imposed without just cause under the progressive discipline provisions of the collective bargaining agreement. The grievance was denied and the employee, represented by his union, filed a request for arbitration under the agreement, seeking that the employee be reinstated to his EMT job with back pay and benefits. Under the terms of the collective bargaining agreement, the employer had the evidentiary burden to establish just cause for the discipline handed down to the employee. Having met this burden, the arbitrator ruled that burden then shifted to the employee to show that the discipline of termination was too severe and inappropriate and that the employer had chosen that penalty arbitrarily and capriciously. After taking proofs from both sides at the arbitration hearing, the arbitrator found that the penalty chosen by the employer was not arbitrary and capricious and denied the grievance.
The matter was handled by Orlando L. Blanco, who heads up the firm’s Employment Law Practice area. The full opinion can be found here.