Citizen's Gas & Coke Utility v. Local Union No. 1400, International Brotherhood of Electrical Workers

874 N.E.2d 391, 2007 Ind. App. LEXIS 2233, 2007 WL 2874421
CourtIndiana Court of Appeals
DecidedOctober 4, 2007
Docket49A05-0612-CV-751
StatusPublished
Cited by6 cases

This text of 874 N.E.2d 391 (Citizen's Gas & Coke Utility v. Local Union No. 1400, International Brotherhood of Electrical Workers) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizen's Gas & Coke Utility v. Local Union No. 1400, International Brotherhood of Electrical Workers, 874 N.E.2d 391, 2007 Ind. App. LEXIS 2233, 2007 WL 2874421 (Ind. Ct. App. 2007).

Opinions

OPINION

VAIDIK, Judge.

Case Summary

Citizens Gas & Coke Utility (“Citizens”) appeals the trial court’s denial of its Verified Complaint and Application to Vacate Arbitration Award or, in the Alternative, for Modification or Correction of Award (“Application to Vacate or Modify Award”). Citizens maintains that Arbitrator Cynthia Stanley (“Arbitrator Stanley”) exceeded her powers by considering an unwritten attendance policy requiring progressive discipline in determining that Mr. Russell Hilt (“Mr.Hilt”) was unjustly terminated. Additionally, Citizens contends that Arbitrator Stanley exceeded her powers by awarding Mr. Hilt’s widow $75,000.00 based upon Prudential Insurance Company of America’s (“Prudential”) life insurance policy. Finally, Citizens argues that Arbitrator Stanley wrongfully refused to hear evidence material to the controversy. Concluding that Arbitrator Stanley did not exceed her powers by considering an unwritten attendance policy requiring progressive discipline, did not exceed her powers by awarding $75,000.00 based upon Prudential’s life insurance policy, and did not wrongfully refuse to hear evidence material to the controversy, we affirm the judgment of the trial court.

Facts and Procedural History

Citizens is a not-for-profit public charitable trust that has provided gas service to the citizens of Marion County, Indiana, for more than a century. In addition to providing natural gas to Marion County through its Gas Operations Division and steam and chilled water to downtown businesses through its Thermal Division, the company manufactures coke through its Manufacturing Division. Mr. Hilt began working for Citizens on March 13, 1981, and continued working for Citizens in their Manufacturing Division for twenty-three years. In 1984, Mr. Hilt, while working, was involved in a very serious industrial accident that resulted in severe injuries, including crushed hips, which kept him off work for many months. As a result of his injuries, Mr. Hilt missed a great deal of work for many years thereafter.

In October 1999, Mr. Hilt received a verbal warning for absenteeism. On July 13, 2001, Mr. Hilt was issued a Last Chance Agreement by Citizens, which included a provision that he maintain an attendance record of 98% or better for two years. On November 12, 2003, Citizens and Local Union No. 1400, International Brotherhood of Electrical Workers (“the [394]*394Union”) entered into a Collective Bargaining Agreement (“CBA”).1 Section 7.3.2 of the CBA, regarding discharge and disciplinary layoff, states, in pertinent part:

Absence reviews indicating discipline and disciplinary reports for absenteeism/tardiness will be returned to the Union, if, for a period of two (2) years since the most recent absence review indicating discipline or disciplinary report for absenteeism/tardiness in the employee’s file, the employee maintains a record with no further discipline for absenteeism/tardiness.

Appellant’s App. p. 104. Uncontroverted testimony from Scott Knight established that the Union had always understood the language of Section 7.3.2 to mean that an employee started over with a clean slate if the employee had no further discipline for absenteeism/tardiness for two years after a disciplinary report for absenteeism/tardiness was filed. Additionally, Russell Clemens, Director of Operations and Maintenance for Citizens, testified that Mr. Hilt started over with a clean slate upon successfully completing the terms of the Last Chance Agreement. Moreover, Paragraph 2 of the Last Chance Agreement provided that pursuant to all conditions of the agreement being met, “the Last Chance Agreement will be expunged from Mr. Hilt’s employment file, July 11, 2003.” Id. at 20. Mr. Hilt successfully completed the Last Chance Agreement.

Shortly after satisfying the terms of the Last Chance Agreement, Mr. Hilt went into diabetic shock, which caused him to fall and severely injure his face. Treatment and recovery from this injury, coupled with the on-going management of his blood sugar problems and bouts with flu-like symptoms, led to him missing a significant amount of work in 2003. On January 14, 2004, Citizens terminated Mr. Hilt for absenteeism without having given him any further warnings.

At the time of Mr. Hilt’s termination, Citizens’ Manufacturing Division maintained an unwritten attendance policy calling for an employee to miss 3.2% or less of his or her scheduled hours. In a rolling twelve-month period, if the employee missed more than 3.2% of his/her scheduled hours, then he or she was subject to progressive discipline. The steps of progressive discipline were: (1) verbal; (2) written; (3) decision-making leave (one-day paid leave); and (4) termination. This unwritten attendance policy requiring progressive discipline had been used since 1988 and was reduced to writing in April 2004.

Following Mr. Hilt’s termination, the Union filed a grievance on his behalf against Citizens. Mr. Hilt died in September 2004, approximately eight months after his termination. Upon his death, Mrs. Hilt, through the Union, continued with the grievance procedures. Unable to settle the grievance, both parties agreed to arbitration and the appointment of Arbitrator Stanley. During the arbitration hearing, Citizens argued that no progressive discipline was required because Mr. Hilt had already completed a two-year Last Chance Agreement due to his absenteeism problem and that his continued pattern of absenteeism, coupled with his past record, justified Citizens’ discharge without first implementing progressive disei-[395]*395pline. Additionally, Citizens argued that it began using Last Chance Agreements in the mid-1990s for long-term employees ■with absenteeism problems and that the next step following the agreement was termination. In support of this contention, Citizens referenced its discharge of two former long-term employees, Randy Whit-taker (“Whittaker”) and Brad Sharp (“Sharp”). Both Whittaker and Sharp had a long history of attendance problems and were issued Last Chance Agreements that they failed to comply with and thereafter were terminated. Because Whittaker and Sharp were terminated for violating their Last Chance Agreements and Mr. Hilt successfully completed his Last Chance Agreement, Mr. Hilt was the first Manufacturing Division employee to be terminated for absenteeism without having first gone through the steps of progressive discipline or having violated the terms of a Last Chance Agreement.

In her arbitration decision on December 15, 2005, Arbitrator Stanley concluded that Citizens did not have just cause for terminating Mr. Hilt. Specifically, Arbitrator Stanley stated:

The problems with just cause are these: [Mr. Hilt] had been given no notice that missing days after completion of his Last Chance Agreement would lead summarily, without further process, to discharge. He had successfully completed his Last Chance Agreement. He was legitimately injured and then ill after the expiration of that agreement, and the Company is not arguing otherwise. He had no notice that, this time, the Company had no intention of following its own past practice-that absenteeism problems were dealt with through progressive discipline.
Further, the penalty of discharge bears no relationship to [Mr. Hilt’s] successful completion of the Last Chance Agreement, which by its very terms was curative of [Mr.

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874 N.E.2d 391, 2007 Ind. App. LEXIS 2233, 2007 WL 2874421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-gas-coke-utility-v-local-union-no-1400-international-indctapp-2007.