Ask the Arbitrator

Outside of my arbitration practice, I am a writer. I write fiction, essays, memoir, screenplays, and occasionally, poetry. Inside of my arbitration practice, I'm also a writer. That includes arbitration awards, this column, and work for NAA Corner, the Wolters-Kluwer publication that you can find on the VitalLaw platform. That's a lot of words, and obviously, I run out sometimes, which is why this column has become more sporadic.

I'd love to reprint some of my pieces from NAA Corner, but I'm not sure what the rights are on that, so while I research that, I thought I'd tackle a few of the questions that I've invited my colleagues to answer in our Ask The Arbitrator column in the NAA Corner. These hypotheticals were written by Arbitrator Arnold Zack.

Private Counsel and a Recording Device

A terminated employee arrives at the grievance hearing with their personal attorney. During a side bar, the union and management representatives inform you that they believe the employee will secretly record the hearing to which they object. After the hearing you are informed the employee did record the hearing and intends to make the recording public if he loses. Union and management request a rehearing with a ban on cellphones.

How do you handle the attendance of the employee's personal attorney?

My first task would be to ask the party representatives their positions about the attendance and participation of the attorney. Assuming both parties object to the grievant's attorney's participation, I would advise the grievant and the attorney that the attorney can attend as an observer only and cannot participate. I would note their presence for the record. If both parties object to the attendance of the attorney's personal attorney, I would exclude the attorney from the proceeding. Ultimately, this is the Union and Employer's process. This rarely happens though; usually the parties allow the attorney as an observer just as they would allow a spouse to attend.

How do you handle the concerns about recording the hearing?

If the parties raise this concern to me, I will state on the record that no third party recording is permitted, and that it is in fact against the law in California. I would also state that if I later learn that a recording was made, I would assume that is an independent basis for termination that the employer could undertake. If we have a court reporter, I would advise the grievant or their attorney to reach out to the court reporter to obtain a certified copy of the transcript. Otherwise, I would advise them that they can take notes, and nothing more.

What, if anything, will you do about the parties' request for rehearing?

I would deny the rehearing request as I already have a complete record to rule on. I would be surprised if the parties wanted a rehearing. If they informed me after the hearing that the recording had been made, they would know that I was going to deny the grievance. If I had already ruled in the grievant's favor, the employer would have a new reason to terminate the employee, and on that record, would almost certainly prevail.

The Captain and The Cello

The aircraft captain refused to permit a passenger to bring his cello into the cabin although the requisite ticket and seat reservation had been bought for it. The airport station manager was called and said the cello was, per tradition, to be strapped into the front row window seat, but the Captain refused, saying he had heard of another such cello having come unstrapped during turbulence, throwing it around the cabin and causing passenger injuries. The Captain led the passenger, a noted cellist, and his instrument out onto the tarmac to the cargo portion of the plane to show the passenger where the cello could be safely stored for the flight. The Captain, long tenured and with a clean disciplinary record, refused to fly with the cello in the cabin. The cellist acquiesced to the cargo placement and the flight went out three hours late. The pilot was later terminated for insubordination and violating security rules when he allowed an unauthorized person onto the tarmac.

Would it make any difference if the cello was a Stradivarius and the passenger a world-renowned cellist?

No. The basis for the termination was insubordination and violating security rules. No cello needed to be present for those violations to occur. The question is whether the conduct violated the rules and whether there is just cause for termination.

Would your decision be based on the Captain's insubordination in not placing the cello in a passenger seat, or merely on the basis of the tarmac violation?

The employer has to prove both violations unless they can demonstrate that either violation would have resulted in discharge. They would also need to demonstrate that discharge was the appropriate discipline under the circumstances.

How would you rule if the employer argued that violation of ground safety rules and tarmac access had routinely been met with termination?

That might be a factor that contributed to the decision but it would not be controlling. I would need to know what "routinely" meant. Every time? Sometimes? Other pilots? Is it a written rule?

How would you rule?

In all likelihood, I would impose a lesser discipline that discharge. I would of course be weighing the captain's seniority, his authority over the airplane cabin, and the degree to which the passenger had contributed to the violation. This is where the cello's value might matter. If the captain felt as though s/he were being forced to break the rules because of the notoriety of the cellist ("the customer is always right" vs. "the captain goes down with their ship"), that would be a mitigating factor.

Finally, there is just one month left until the Northern California Region National Academy of Arbitrator's Meet the Arbitrator Conference. Attendees regularly rave about the opportunity to have casual discussions with arbitrators and learn how to do arbitration cases from the best in the business. I hope you will join us on August 28, in Oakland. Register now!