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The fundamental question in the grievance arbitration matter between Public Safety Officer Matthew Mark and his employer, St. Joseph Mercy Oakland Hospital of Pontiac, was this: Did the employee abruptly leave work during his shift Dec. 27 because he was physically ill or because he was angry? Mark's job depended on whether the Michigan Association of Police could successfully show that the employer did not have just cause for firing him for allegedly abandoning his post. The proverbial bottom line is that MAP made its case. Veteran Arbitrator David S. Tanzman directed the hospital to "make Mark whole by reinstating his straight-time wages retroactively to the date of discharge, along with all fringe benefits and seniority." While that result is of paramount importance, some specifics are of interest to every union member. As Tanzman stated, the basic issue was whether the employer had just cause to discipline, then discharge Mark and, if not, to determine what the appropriate remedy would be. The hospital's position was that Mark left work because he was angry and upset about not being able to take a break when scheduled because other officers were in court regarding a parking violation. Regarding this assertion, Tanzman noted that before departing Mark "...blurted out a brief expression of a disputed nature, which included the word 'sick' referring to his condition and/or the place." Despite the fact no one was certain what Mark had said, the employer used this as the foundation for its decision to terminate him. It claimed that Mark "engaged in a major infraction of the work rules by walking off the job and engaging in job abandonment." MAP's position was that Mark already was suffering from what he believed to be the Norwalk strain of influenza and that he had vomited several times and was experiencing intestinal distress. The employer could not prove otherwise and was merely able to point out that Mark failed to fill out a sick slip or report to the Employee Health department. MAP Executive Director Fred Timpner, who represented Mark, was straight to the point on this subject: "The facts and testimony of all witnesses, except Kazimer (Mark's supervisor), failed to support the charge that the grievant abandoned his post." Tanzman ultimately agreed. Another major factor in MAP's case was the question whether management made a thorough investigation of all the facts before concluding that a discharge was in order. Timpner argued that "In this case there were two witnesses present at the scene of the behavior of the grievant and neither one was interviewed prior to making the decision to discharge the grievant. Moreover, the grievant was not afforded the opportunity to state his case to (the department director) before the latter's decision." Timpner listed other investigative shortcomings, as well. To say Tanzman agreed with MAP's position is an understatement. His evaluation of the employer's procedure was stinging criticism. "The arbitrator finds the nature of this so-called investigation by Supervisor Kazimer lacking basic objectivity and thoroughness, the most serious factor vitiating (voiding) the basis for having just cause to discharge the grievant," he stated. It is further interesting from a labor relations standpoint that Tanzman commented on the possibility that Mark's active role in union affairs might have been a factor in management's actions. He wrote that: "...it is not unusual for some tensions (to exist) between representatives differing with each other and ending before an arbitrator because of impasse. In this case, however, there is a greater degree of intensity of antagonism between the principals and what the arbitrator detects to be a factor in this dispute...The grievant is the union president of this unit." |
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