City of Coffeyville v. IBEW, LOCAL NO. 1523, 83,572.

• Decision Date: 08 December 2000
• Docket Number: No. 83,572.,83,572.
• Citation: 270 Kan. 322,14 P.3d 1
• Parties: CITY OF COFFEYVILLE, KANSAS, Appellee, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL No. 1523, et al., Appellants.
• Court: Kansas Supreme Court

270 Kan. 322

14 P.3d 1

CITY OF COFFEYVILLE, KANSAS, Appellee, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL No. 1523, et al., Appellants.

No. 83,572.

Supreme Court of Kansas.

Opinion filed December 8, 2000.

Elizabeth Lea Henry, of Fletcher & Mathewson, P.A., of Wichita, argued the cause and was on the brief for appellant International Brotherhood of Electrical Workers, Local No. 1523. David E. Strecker, of Strecker & Associates, P.C., of Tulsa, Oklahoma, argued the cause, and James E. Erwin, of the same firm, and Paul M. Kritz, city attorney, of Coffeyville, were with him on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

This appeal arises out of the private arbitration undertaken by the parties regarding the discharge of an employee of the City of Coffeyville (City). The employee, Harry Thomas, was protected by the provisions of the collective bargaining agreement previously negotiated between the International Brotherhood of Electrical Workers, Local 1523 (IBEW) and the City pursuant to K.S.A. 75-4321. Under this contract, the issue of whether the City had "just cause" to terminate the employment of Thomas was submitted to arbitration before a private arbitrator selected by the parties through the auspices of the Federal Mediation and Conciliation Services. The arbitrator elicited testimony over several days from both parties as well as legal arguments in the form of briefs and rendered a decision in favor of the grievant and his union. The arbitrator ordered the City to reinstate Thomas with back pay pursuant to the terms of the parties' contract.

The district court reviewed the contract between the parties, the decision of the arbitrator, and the legal arguments of the parties, and then issued an order vacating the arbitrator's decision and ordering that the case be remanded to a new arbitrator selected by the parties pursuant to their contract. The district court held that the arbitrator had exceeded his authority in rendering his decision by applying an improper standard to the discharge issue. The Union appeals.

We start with the controlling facts as found by the arbitrator. The City operates a municipal electric utility. It serves the City, an industrial park, and some surrounding areas. Local No. 1523 of the International Brotherhood of Electrical Workers (IBEW) represents most of the employees for the utility. The parties bargain under the Kansas Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq.

The grievant, Thomas, is a Trouble Truck Foreman. In that capacity he responds to power outages and either repairs them or requests additional assistance. He is a journeyman lineman with over 19 years of experience.

On the night of May 26, 1997, Thomas was called because the city experienced a thunderstorm and several areas were without power. During the evening, Thomas went to Substation A to do a visual inspection and work on restoring power. When he got there, foreman Larry Quigley was there and the two began to work. Thomas believed he smelled alcohol on Quigley's breath and reported it to the city manager, who had just arrived at Substation A. The city manager testified he was suffering from allergies and was unable to determine if Quigley smelled of alcohol. After most of the work was done, Quigley got into his city-owned vehicle and drove toward town. Thomas called 911 and reported what he believed was a drunk driver. The police found Quigley's vehicle in front of his home. No one was in the car, and the police made no contact with Quigley.

The next day Thomas found a business card of the Coffeyville Insurance Associates (CI) in his utility vehicle and called them. Vicki Stonecipher answered the phone because the regular receptionist was at lunch. Stonecipher is a "producer" and has nothing to do with the account between the City and Employees Mutual Insurance Companys (EMC) agent CI. Thomas posed a hypothetical question of what could happen to the Citys insurance if it allowed employees who are under the influence of alcohol to drive city-owned vehicles. Stonecipher said she did not answer hypothetical questions.

Thomas subsequently explained that Quigley was arrested for drunk driving 16 or 17 years ago and he had flunked "drunk school." He did not mention the previous night's incident or the history of problems Quigley allegedly had with alcohol. At no point did he identify himself as a union steward or state he was investigating a grievance. At the end of his conversation he did give his name.

There is some dispute as to whether Thomas requested the information to be passed along to the agent in charge of the city account. The City claims he did and the Union claims he did not. What is not in dispute is when an assistant to the agent returned to the office, Stonecipher passed the information along and the assistant requested the motor vehicle report on Quigley. The report showed no violations. The assistant called the underwriter for the insurance company and the city manager to express concern that individual employees would contact their office.

On June 2, 1997, Thomas filed a grievance with the City citing a safety violation of having Quigley work on an electrical substation while drunk. The IBEW dropped the grievance after the second step.

The City suspended Thomas with pay while it investigated Thomas' phone call to CI. A grievance was filed on June 13, 1997, and a Prohibited Practice Complaint (PPC) was filed with the Kansas Employment Relations Board on June 19, 1997. After learning the substance of the conversation with Stonecipher and believing that the call could bring potential damage to the City, including losing its policy with EMC, the City held an administrative hearing on June 25, 1997. The City and the IBEW agreed the hearing constituted a third step to the grievance procedure. At the hearing, the City determined that Thomas made the phone call, not as a part of the safety committee or to investigate a grievance, but in an attempt to discredit the City. They decided that amounted to insubordination and was just cause to terminate Thomas and did so at the conclusion of the meeting. Because Thomas was a longstanding employee, they offered him a demotion, a 2-week suspension without pay, 1 year of probation, required him to write a letter to CI explaining his motives, and required him to sign a release. Thomas refused the Citys offer and was terminated; the grievance proceeded to arbitration. The PPC was held in abeyance or "Collyerized" in an order issued on September 2, 1997. See Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).

In addition to these facts, the testimony before the arbitrator revealed that the telephone call made by Thomas to Stonecipher was the sole reason for the decision to terminate his employment. He had received satisfactory evaluations and had no significant history of previous discipline. There was also testimony from Thomas that he had been appointed as a union steward and a member of the safety committee in December 31, 1996, about 5 months before his termination. Thomas testified that he called Stonecipher in an effort to investigate in preparation for filing a safety grievance in his capacity as a steward protesting Quigleys performance of work while smelling of alcohol. Thomas testified that he was aware of prior incidents when employees believed Quigley was exhibiting the effects of alcohol use while working. Thomas and a coworker, Ray Robinson, testified that they had talked with the city manager about a month earlier about their concerns regarding Quigley and alcohol use. He had also sought the advice of the IBEW business agent regarding the measures which could be taken the next time Quigley showed up for work under the influence of alcohol.

There was also extensive testimony from current and former employees of the City regarding a history of employee concerns about the work safety and the drinking habits of Quigley. Although much of this testimony concerned incidents remote in time to Thomas discharge, each of these witnesses testified that during their tenure Quigley appeared for work evidencing the use of alcohol as often as one to three times per week. Among the incidents recounted in which the witness recalled that Quigley was intoxicated or smelled of alcohol was one which prompted the filing of a grievance in 1987. A journeyman lineman described the condition in which Quigley reported to a substation to attend to an after-hours power outage as follows: "Now, at that time Larry was so drunk he couldn't hardly stand up. Now, I didn't need a breathalyzer that night. He was slurring on the phone. He was stumbling around in there."

The journeyman further testified that Quigley became confused regarding the significance of various indicator lights and kept insisting the power was on when it was off. The employee was so concerned that Quigley might fall against or throw a breaker while he was working to resolve the cause of the problem that he insisted Quigley go outside and stand next to him while he worked.

Another journeyman testified that in 1992, on a day when Quigley smelled strongly of alcohol, he instructed a crew on which the journeyman was working to install a new pole. Quigley had not obtained the necessary "locate" on the underground utilities in the area and the crew hit a water line, spraying water everywhere and completely draining the local water tower. The same witness testified that on another occasion when Quigley smelled of alcohol, he ordered a crew to dig a trench without a locate on the utilities resulting in the rupture of a gas line.

Finally, a current employee of the City testified that in approximately 1996, he called Quigley about a power outage at a substation referred to as A Sub. The witness believed that Quigley was intoxicated because he seemed incoherent and kept asking "where's A Sub." Because there are only five substations...