City of Cleveland v. Municipal Foremen and Laborers' Union

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-863292

         AFFIRMED.

          ATTORNEYS FOR APPELLANT Barbara A. Langhenry Director of Law City of Cleveland By: Drew A. Carson Austin T. Opalich Assistant Directors of Law City of Cleveland.

          ATTORNEYS FOR APPELLEE Joseph J. Guarino Basil William Mangano Mangano Law Offices Co., L.P.A.

          BEFORE: Keough, A.J., McCormack, J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE.

         {¶1} Appellant, the city of Cleveland (the "city"), appeals from the trial court's judgment denying its motion to vacate an arbitrator's award and granting the motion of the Municipal Foreman and Laborers' Union, Local 1099 (the "union"), to affirm the award. Finding no merit to the appeal, we affirm.

         I. Factual and Procedural History

         {¶2} Traci Pierson is a bargaining unit member of the union, and covered by the collective bargaining agreement between the city and the union effective April 1, 2011 through March 31, 2013. Prior to her termination, Pierson was employed by the city for 15 and a half years as a real estate maintenance worker in the city's department of public works, division of park maintenance.

         {¶3} In the two years prior to her discharge, the city took three disciplinary actions against Pierson. On March 27, 2013, she was suspended for one day for conduct unbecoming an employee and insubordination after she walked out of a predisciplinary conference. This suspension was held in abeyance and was to be rescinded if no further violations occurred.

         {¶4} However, on August 14, 2013, after Pierson swiped in to work with her electronic timecard and then left for 30 minutes, the city suspended her for 30 days for neglect of duty, conduct unbecoming an employee, and unethical conduct while on duty. On December 16, 2013, the city again suspended Pierson for 30 days for violence in the workplace; conduct unbecoming an employee; disorderly, immoral, or unethical conduct while on duty; offensive conduct or language toward another employee, superior, or the public in the course of employment; and failure of good behavior. This suspension followed a workplace altercation in which Pierson called her superior and coworkers extremely derogatory names and threatened another employee that she would "kick his ass."

         {¶5} In July 2014, the city issued an attendance policy that required employees who were sick to call in to a dedicated telephone line at least one hour before their scheduled starting time. Under the policy, employees who failed to call in and report to work would be considered absent without leave. Further, park maintenance employees would not be permitted to work if they reported to work more than one hour late after the start of their shift.

         {¶6} On August 5, 2014, Pierson called the dedicated phone line at 5:40 a.m. and left a message requesting four hours of sick leave for that day. At 9:40 a.m., more than two hours after her 7 a.m. scheduled start time, she arrived at the station and reported to her supervisor, Larry Robinson, for her work assignment. At the hearing before the arbitrator, Robinson testified that he told Pierson not to swipe in because she was more than an hour late. He then called his supervisor, Todd Alexander, manager of the division of park maintenance and properties, who told Robinson to tell Pierson to go home. Robinson said that Pierson refused to go home and told him she "didn't have to" under the collective bargaining agreement. Robinson then called Alexander again, who told him that he would talk to Pierson. Robinson testified that he did not tell Pierson that she would be disciplined if she did not leave the premises as instructed.

         {¶7} Alexander testified that before going to the station, he spoke with Robin Leftridge, acting commissioner of the division of park maintenance and properties. Leftridge testified that she advised Alexander to go to the site and tell Pierson that she must leave, and that if she did not do so, the city would consider her to be a trespasser and call the police.

         {¶8} Alexander testified that he arrived at the site at 10:41 a.m., and advised Pierson he had been told to ask her to leave for the day. Alexander stated that he read the divisional attendance procedure to Pierson, told her that she could not work that day, and asked her to go home. After Pierson refused, Alexander told her that if she did not leave, he would call the police and have her charged with trespassing. Pierson responded, "do it, " and refused to leave. Alexander then called the police. Pierson remained on the scene but finally left at 11:30 a.m., immediately before the police arrived. Alexander admitted that he did not advise Pierson that she would be discharged if she did not leave the premises. On August 22, 2014, after a predisciplinary conference, the city terminated Pierson's employment, the next step in the city's progressive discipline policy. The termination notice advised Pierson that her ...