ILNews

Appeals court upholds arbitration award

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals affirmed an arbitration award against Citizens Gas & Coke Utility today, ruling the arbitrator did not exceed her power in determining an employee was unjustly terminated and his widow was entitled to his life insurance policy through the collective bargain agreement.

In Citizens Gas & Coke Utility v. Local Union No. 1400, International Brotherhood of Electrical Workers, 49A05-0612-CV-751, Citizens appealed the trial court's denial of its verified complaint and application to vacate arbitration award, or in the alternative, for the modification or correction of award. Citizens argued the arbitrator, Cynthia Stanley, exceeded her powers by considering an unwritten attendance policy to determine an employee was unjustly terminated and by awarding his widow $75,000 based on a life insurance policy; Citizens also argued Stanley wrongfully refused to hear evidence relating to the controversy.

Russell Hilt began working for Citizens Gas & Coke in 1981. He was severely injured in 1984 while working and missed a great deal of work in the years following the accident. In 1999, Hilt received a verbal warning for absenteeism, and in 2001, Citizens issued a "last chance agreement" that said he must keep an attendance record of 98 percent or better for two years.

In 2003, Citizens and IBEW Local 1400 entered a collective bargaining agreement, which included, "Absence reviews indicating discipline and disciplinary reports for absenteeism/tardiness will be returned to the Union, if, for a period of two 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."

The union understood that to mean a person would start over with a clean slate if there were no more incidents for two years after the report was filed.

In 2003, Hilt's "last chance agreement" was expunged because of successful completion. Shortly thereafter, Hilt went into diabetic shock, fell, and injured his face. Treatment and maintenance of his diabetes caused him to miss a lot of work that same year. On Jan. 14, 2004, Hilt was terminated for absenteeism without any warning. At the time, there was an unwritten attendance policy that said employees were subject to progressive discipline for missing work: verbal; written; decision-making leave; and termination. The union filed a grievance on Hilt's behalf, which his Mrs. Hilt continued after his death in September 2004.

In arbitration, Stanley concluded Citizens did not have just cause for firing Hilt because he had successfully completed the "last chance agreement" and was not given any warnings as required by the unwritten attendance policy. Stanley awarded Mrs. Hilt the life insurance proceeds of $75,000 and other fringe benefits to be paid by Citizens. Citizens requested an additional evidentiary hearing to recalculate money to be paid and to try to prove if Hilt would have been able to actively work during those months after he was terminated, but Stanley denied the hearing. Citizens filed its application to vacate or modify award in Marion Superior Court, which denied the application.

The Court of Appeals affirmed Stanley's award in favor of the union and Mrs. Hilt. Stanley did not exceed her power in determining Hilt was unjustly terminated because the CBA had no provisions on what constituted the type of discipline required for excessive absenteeism. The unwritten policy was made written in 2004 after Hilt's termination and was commonly used by Citizens.

Because Hilt was unjustly terminated, it was well within Stanley's scope to award his widow the fringe benefits that would have been paid to her but for his wrongful discharge. The collective bargaining agreement specifically provided for life insurance, and Stanley ordered Citizens to pay it.

Citizens contends that Stanley violated Indiana Code 34-57-2-13(a)(4) in refusing to hear evidence relating to the controversy. This statute does not allow for the review of a trial court's denial of a party's request for an additional evidentiary hearing, only evidence from the actual arbitration hearing. Citizens had opportunities to present evidence during arbitration or call Mrs. Hilt as a witness, but did not do so.

Finally, the Court of Appeals ruled the necessary evidence to calculate the contractual damages owed to Mrs. Hilt were present at the arbitration via the CBA.
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