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In re
Palm Beach County Florida
and
Communications Workers of America
120 LA (BNA) 405
August 30, 2004
Phyllis
Almenoff, Arbitrator
Statement of
the Issue
Both parties
stipulated to the following issue:
Was the employee terminated for just cause?
If not, what shall be the
remedy?
The
grievance dated February 18, 2003, states the following:
This grievance is being filed under Article 4 of the
Labor/Management Agreement and all other Articles that may apply.
On Jan. 29, 2003 1 was terminated from my employment with Palm
Beach County for allegedly “unsatisfactory job performance”.
I was not disciplined for just cause, offered any suggestions on
how to improve my performance, denied a transfer to another zone, unjustly
evaluated on a 90 day special performance review and not given the chance to be
evaluated by other supervision.
This grievance is being counseled and investigated by a private
attorney and additional information may be added at a later date.
In order to resolve this grievance I must be reinstated as if the
termination had not taken place. * *
*
The County
Representatives denied the grievance on April 29, 2003 with the following
explanation:
Please be advised that your grievance for termination has been
denied You were terminated on February 10, 2003 for unsatisfactory performance
during your 90-day probationary period.
Please see the attachment for further details. * * *
Relevant
sections of the Labor Management Agreement are as follows:
Article 4
Grievance Procedure
Section 1. Definition. For the purpose of this Agreement, a
grievance is any dispute or difference of opinion between the County and the
Union, or between the County and any of its employees covered by this
Agreement, involving the interpretation or application of the provisions of
this Agreement; or the written reprimand, suspension, or discharge of an
employee covered by this Agreement. Disputes concerning the meaning or
application of any rules, regulations, ordinances, laws or policies not
specifically contained within this Agreement are not subject to the grievance
procedure set forth below except for their application in a case of discipline
or discharge. * * *
Section 3. Procedures: Grievances shall be handled in the
following manner: * * *
Step 4: If the grievance is not settled in accordance with the
foregoing procedure, the Union may invoke arbitration within thirty (30)
working days after receipt of the Director of Employee Relations and Personnel’s
answer. Within thirty (30) working days of invoking arbitration, the Union will
meet the Director, Employee Relations and Personnel to discuss the grievance
prior to requesting a panel of arbitrators. If the issue remains unresolved
following this meeting, the parties shall within forty-five (45) working days
jointly request the Federal Mediation and Conciliation Service to submit a list
of five (5) arbitrators. . . .
The arbitrator shall have no right to amend modify, nullify,
ignore, add to or subtract from the provisions of this Agreement. In a
discipline case, s/he shall not have the right to modify the degree of
discipline if just cause for any discipline has been found, unless the
discipline is inappropriate according to the Merit Rule Disciplinary
Guidelines. S/He shall consider and decide only the particular issue presented
in writing the County and the Union and his/her decision and award shall be
based solely upon interpretation of the meaning or application of the terms of
this Agreement to the facts of the grievance presented. If the matter sought to
be arbitrated does not involve an interpretation of the express terms or
provisions of this Agreement, the arbitrator shall so rule in his/her award and
the matter shall not be further entertained by the arbitrator. The fee and
expenses of the arbitrator shall be divided equally between the parties. In no
event shall an award be retroactive to a date more than fifteen (15) working
days prior to the date of the filing of the grievance.
Where the Union is not a party and does not represent the
aggrieved non-member in the arbitration proceedings, the grievant must deposit,
twenty (20) days prior to the Arbitration Hearing, in a County escrow account,
a sum equal to the estimated cost of the compensation and expenses of the
arbitrator. Each party shall bear all costs of preparing and presenting its own
case. . . . * * *
Section 6 Union Representation. Employees who are grieving
discipline must be present at all step meetings, and may also be represented by
a Union representative at any step of the grievance procedure if they
choose.
Section 7. Nothing in this grievance procedure shall be construed
to prevent any employee from presenting, at any time, his/her own grievances,
in person or by legal counsel, and having such grievances adjusted without the
intervention of the Union, if the adjustment is not inconsistent with the terms
of the Agreement and if the Union has been given reasonable opportunity to be
present at any meeting called for the resolution of such grievances. * * *
Article 6 Management Rights
Section 2. The exclusive function of Management include but are
not limited to: the management of the County and the direction of the working
forces: the right to plan, direct and control all the operations or services to
be performed in or at the facility or by employees of the County; to schedule
the working hours; to hire, promote, demote, transfer, layoff, and recall; to
suspend, discipline, or discharge for just cause; to relieve employees because
of lack of work or for other reasons; to make and enforce production standards;
to make and enforce rules and regulations of employee conduct and performance;
to classify and reclassify employees, and to determine the content of job
classifications; to introduce new and improved methods, materials, equipment or
facilities; to change or eliminate existing methods, materials, equipment, or
facilities; to administer the County Merit System Rules and Regulations. * * *
Background
Palm Beach
County recognizes the Union (Communication Workers of America AFL-CIO-CLC Local
3181) as the sole and exclusive bargaining agent with respect to wages, hours and
terms and conditions of employment to be negotiated for the employees within
the bargaining unit as required by Florida law. The recognized unit includes
all full time and part time employees in permanent positions certified by the
Public Employees Relations Commission on May 12, 1981 as amended in Appendix A
of the Labor-Management Agreement. The October 1, 2000 to September 30, 2003
Labor-Management Agreement covered the Grievant for the relevant period of this
grievance. The grieving employee, G__ was empowered to process his grievance
through the grievance procedure, including arbitration, in accordance with the
Agreement. He was represented at the arbitration hearing by a private attorney,
Don Boswell of Akers & Boswell, P.A.
This grievance arose when the County terminated
the Grievant on February 10, 2003, for “unsatisfactory performance” following a
90 day probationary period. The
Grievant, G__ had been employed by the County since 1985. Initially, he was
classified as an Air Conditioning and Refrigeration Specialist I and worked in
that capacity, until 1995, when he was promoted to an Air Conditioning and
Refrigeration Specialist II.
The Grievant
had originally been assigned to the North County Facilities. During the period
from 4/5/95 through 7/31/99 he received five (5) memos regarding performance
and behavioral issues, two (2) written reprimands, and two (2) suspensions. On
4/5/95, he was suspended for two (2) days for falsifying the records of team
members and on 7/8/98 he was suspended for ten (10) days for verbal abuse of
the Trades Crew Chief. On 8/10/98, his supervisor recommended that he attend
EAP. His performance during these years was satisfactory with the exception of
a 8/3/98 midyear performance indicator which stated that areas that were
unsatisfactory included “aggressive behavior” and it stated that he should “refrain
from outbursts.” The Grievant requested a transfer on 7/14/99 because he
thought “something might happen.” Although he requested specific assignments
for which he was qualified, he was instead transferred on 7/31/99 to the
Sheriff’s Stockade, a County prison which is considered an undesirable
assignment.
He received a performance rating in eight areas in
2001 which indicated that he was excellent in one area (safety), satisfactory
in four areas (job knowledge, interpersonal skills, customer relations, and
problem solving) and needed improvement in three areas (dependability, work
quality and productivity/work quantity.) His midyear status report issued 7/17/02 was the same except that
he improved in dependability. His supervisor, C.S. stated that “I would like to
see G__ show more concern toward work quality and work quantity with corrective
maintenance. He has progressed with preventative maintenance.” For a period of
two and a half years G__ worked with another Air Conditioning and Refrigeration
Specialist II. When this gentleman was promoted, G__ was required to do the job
on his own as had been done previously.
On July 15,
2002, G__ a requested, was granted and took three days vacation July 31st to
August 2nd. On 8/22/02, he was notified that he lacked the appropriate number
of hours for the three vacation days he had taken and was considered to be on
unauthorized leave for 1.5 hours. He received a written reprimand for his
absence without authorized leave for 1.5 hours on August 23, 2002. G__ grieved
this action as being unfair on 9/26/02. The grievance was denied on
9/30/02.
On August
15, 2002 G__ was working on an air conditioning unit located on the roof of the
I building of the Stockade. Although he initially turned the power off and cut
the line that was burnt, he by-passed the conductor and wired it together. When
he picked up the motor with one hand and the motor shaft in his other hand, he
was shocked by the 480 volt 2 amp current. He needed medical attention for the
burns he received. G__ had been trained in the use of lockout/tag out safety
procedures but had not used the procedure. Since this was considered a 2nd
disciplinary offense (the first being the unauthorized 1.5 hours of leave taken
on Aug. 2nd followed by a written reprimand on Aug. 23) the Grievant was
charged with negligence, and suspended without pay for six days on August 23,
2002. On 9/26/02 G__ grieved this suspension on the grounds that the “negligence”
charge was too severe. The grievance was denied on September 27, 2002.
There were other documented incidents of
unacceptable workmanship and unacceptable language and behavior for which the
Grievant was written up.
On October 7, 2002 the Grievant received a
negative evaluation. His rating for safety was unsatisfactory and he received a
rating of needs improvement in work quality,
dependability/attendance/punctuality and problem solving. He was placed on
probation for three months (October 7, 2002 to January 14, 2003) and provided
with a Performance Review Plan. The Plan indicated that “Failure to improve
after this probationary period would result in an unsatisfactory rating and
proposed termination of employment.” Specific areas cited requiring improvement
included a review of previous problem incidents that had occurred. During the
probationary period, his work was reviewed daily and his work progress was
reviewed with him every two weeks. The document that he received indicated that “the plan should
explain the following:”
1) the specific areas requiring improvement;
2) what the employee must do to improve;
3) what specific course of action such as training will be
provided to assist the employee to improve.
During the
probationary period he was expected to account for his time by completing daily
issued work orders. A task procedure description was to be attached to
preventative maintenance work orders. The written performance report included a
space for comments by supervisors for each work order he was issued. By
11/1/02, his supervisors rated work quality and problem solving as
unsatisfactory and identified two additional areas of “concern”: job knowledge
and productivity/work quantity. In the Final Performance Report issued on
1/13/03, the Facility Manager and Maintenance Supervisor indicated that some
work orders were not completed, some work orders were not completed in a timely
manner and some safety issues were raised. At the beginning of the rating
period in October, G__ had received an overall rating of 1.44 and by
December/January his rating fell to 1.13. His final rating period indicated
that he was unsatisfactory in the areas of work quality, safety and
dependability/attendance. His evaluation indicated that he did not meet the
overall job functions and/or the essential functions of the position
description.
As a result
of his negative performance appraisal, he was informed that the County
contemplated terminating his employment because of his “unsatisfactory job
performance.” A pre-termination conference was scheduled for January 17, 2003.
Representing the County were five managers, a representative of the County
Attorney’s Office, two “neutrals” a representative of the Employee Relations
and Personnel Department and the Director, Office of Equal Opportunity who
would assist his supervisors in arriving at a final decision concerning his
contemplated termination. The Grievant and his attorney were present. G__’s
attorney alleged that the Grievant was held to a higher standard than other
employees and questioned the fairness of the review. He stated that no
additional training was provided to G__. He also indicated that his supervisor
lacked the requisite knowledge of the trade since he was not an air
conditioning specialist. His attorney alleged that the criticism of G__’s job
performance began shortly after he grieved his six day suspension. His
termination was upheld. On 2/18/02 G__grieved his termination for
unsatisfactory performance during his 90-day probationary period. The grievance
was denied.
Position of
the Parties
Position of
the County
The County
contends that it terminated G__ for just cause for unsatisfactory performance
during his 90-day probationary period and that his termination should be
upheld. In support of its position, the County offered the following
arguments:
1. A review
of G__’s file from 1995 through his transfer to the Stockade in 1999 indicates
that the Grievant received several reprimands for not following instructions,
some memos concerning work issues and unacceptable behavior and language as
well as a counseling memo about responding to pages. During this period, he was
suspended for ten days for verbal abuse of the Trades Crew Chief.
2. G__ was a
problem employee. He was argumentative, combative and verbally abusive. He
failed to follow safety instructions and disregarded rules.
3. Because
of the problems he was having at the North Center, the Grievant requested a
transfer that was granted.
4. At his
new location (Sheriff’s Stockade) two infractions led to disciplinary action.
G__ received a written reprimand when he requested and used unauthorized leave
of 1.5 hours as part of a three-day vacation. When the Grievant was repairing a
roof air conditioner, he did not check to see if the current was running and he
received a bad electric shock to both hands that required medical attention.
He was
suspended for six days for negligence. G__ filed two grievances: (1) for the
reprimand (9/26/02) and (2) for the six-day suspension for negligence
(9/26/02).
5. On
10/22/02 the Stockade Captain complained to B.S. about profane language
attributed to the Grievant. On the same date, the Crew Chief complained about
derogatory statements G__ wrote on a clipboard.
6. As a
result of a review of G__’s performance in which he was rated as “needing
improvement”, he was put on 90 days probation, provided with a Performance
Improvement Plan and warned that “failure to improve after the probationary
period will result in a rating of “unsatisfactory” and proposed termination of
employment.” His performance was evaluated on a daily basis using the work
orders he was assigned. Conferences were held with him every two weeks. His
performance ratings deteriorated and a recommendation for termination was made.
He attended a pre-termination conference and was represented by his attorney. A
representative from Human Resources and a representative from EEOC attended the
meeting and assisted in the determination to discharge G__.
Position of
the Employee
The Grievant’s
representative contends that the County did not have just cause to discharge
G__ and that the Grievant should be reinstated to his position and made whole
for the following reasons:
1. The
termination of G__ was not justified.
2. The Grievant has worked for the County for
eighteen years. For more than sixteen years his abilities and competencies were
not questioned.
3.
Admittedly, G__ did have some problems getting along with his supervisors. Some
of G__’s “jokes” and behavior were in poor taste and offended his supervisors
and others.
4. Although
G__ had requested a transfer from the North County Facility to another
location, the transfer that was made to the Sheriff’s Stockade was considered
an undesirable assignment.
5. G__ miscalculated
the amount of time he had accrued for vacation resulting in his being deficient
1.5 hours. He offered to make up the time but was not allowed to do so. He was
issued a written reprimand instead.
6. During
the time the Grievant was repairing the air conditioner on the roof of a
building at the Stockade, his supervisors called him several times to question
him about his whereabouts and to question what he was doing, These calls were
very distracting. After he received the electrical shock, he drove himself to
the Clinic. The Supervisor did not drive him to the Clinic as he testified.
Although it was considered desirable to remain overnight at the hospital, the
doctor did release him. He did not disobey the doctor as his supervisor
asserted.
7. The “complaint”
by the Captain in the sheriff’s office at the stockade concerning the Grievant
was mischaracterized.
8. Prior to
G__ filing two grievances, his performance was generally rated
satisfactory.
9. After
filing two grievances, G__’s performance was rated as “needing improvement.” He
was placed on probation for 90 days. The Performance Improvement Plan was
designed to make him appear incompetent. It was not an “improvement plan.” The
ratings were subjective and unfair. He was not offered additional training to
assist him to improve. The work load that he was assigned was excessive and
could not be accomplished in eight (8) hours.
10. The
Grievant’s termination was not reviewed by “neutrals” as asserted.
11. The
County did not have just cause to terminate G__’s employment.
Analysis of
the Evidence
The issue to
be determined in this arbitration is whether the County had just cause to
discharge the Grievant under the terms of the Labor-Management Agreement, based
on all of the facts and testimony in evidence.
Article 4 of
the Labor Management Contract provides the right of covered employees to grieve
his/her discharge.
Article 6 of
the Agreement states that “The exclusive functions of Management include but
are not limited to: the management of the County and the direction of the
working forces: the right to plan, direct and control all the operations or
services to be performed in or at the facility or by employees of the County;
to schedule the working hours; to hire, promote, demote, transfer, layoff, and
recall; to suspend, discipline or discharge for just cause... (Bold for
emphasis.)
G__ has
worked for Palm Beach County since 1985. His title was Air Conditioning and
Refrigeration Specialist I until 1995 when he was promoted to Air Conditioning
and Refrigeration Specialist II. The Grievant worked at the North County
Facilities and received satisfactory ratings although there were several memos,
written reprimands and two suspensions. In July of 1999, he requested a
transfer that was granted but not to locations that were requested. He was
transferred to the Sheriff’s Stockade which is considered an undesirable
assignment. In 2001, his performance rating in five of eight areas was
satisfactory or better but needed improvement in three areas. His midyear
evaluation indicated improvement in one of the areas. A short time after G__
grieved a written reprimand concerning his use of 11/2 hours of unauthorized
time for a three day vacation and an incident in which he received a bad
electrical shock resulting in a six (6) day suspension for negligence, his
performance ratings plummeted. G__ was put on 90-days probation, provided with
a “Performance Improvement Plan” and was informed that unless his performance
rating indicated that he no longer needed improvement, his employment would be
terminated. His work orders were evaluated daily and performance conferences
with his supervisors were held every two weeks. His performance ratings
continued to drop and he was terminated after being afforded a pre-termination
conference.
Witnesses for the County testified that G__ was a
difficult employee. He was argumentative, combative, abusive and volatile and
did not get along well with his supervisors and other members of the staff.
Some time after the transfer, he was reprimanded and suspended without pay on
two occasions. He did not always follow directions and procedures, was careless
about safety issues and could not diagnose problems on the job.
G.J, a
witness for the Grievant who worked at the Stockade from 1991-97 when he quit
his job, testified that G__’s supervisors (CS and BS) called him on the radio
constantly asking him where he was and what he was doing. He received four of
these calls prior to the “electric shock incident” distracting him from his
job. His supervisor, B.S. treated him badly and showed no respect for him.
Other workers were not treated in this manner. B.S., his supervisor would say, “Time
for your review” and pull down the zipper of his pants. This was done in front
of the entire crew. He testified further that the Grievant was being “targeted.”
G.J’s testimony was uncontroverted and credible.
The County asserts that G__ was discharged for
unsatisfactory performance during his 90-day probationary period.
It is suspicious that the Grievant’s performance
dropped significantly after he suffered burns to his hands and grieved both the
reprimand and the six day suspension for negligence. His supervisors developed
a “Performance Improvement Plan.” This plan was to indicate “what the employee
must do to improve” as well as “what specific course of action such as training
will be provided to assist the employee to improve.” The plan merely restated
the problems that he had in the past. There was no training provided to assist
the Grievant to improve.
Instead, daily work assignment sheets were provided and critical notes were recorded
on a daily basis. At two-week intervals, the conferences with his supervisors
recounted all of the errors he had made.
In my review
of the comments on his daily work orders, there were errors that the Grievant
made but there were no glaring problems that had occurred. In reviewing these
work orders and performance reports, it is difficult to understand why his
performance review became even more negative.
The Grievant’s
performance during the sixteen years prior to the “shock incident” was rated
satisfactory and earned him a promotion after ten years. However, after the “electric
shock incident” he was assessed as incapable of satisfactory performance and
unable to diagnose air conditioning and refrigeration problems
appropriately.
Testimony by
the Supervisor, Facilities Manager regarding who drove the Grievant to the
Clinic after he received the electric shock is in contradiction with the
testimony from the Grievant and his witness. The Grievant and his witness
indicate that it was the Grievant who drove himself to the Clinic whereas the
Facilities Supervisor testified that he drove the Grievant to the Clinic. The
testimony by the Grievant and his corroborating witness are more credible than
the testimony of the Supervisor on this issue.
The County
did establish that the Grievant had an ongoing record of negative behavioral
incidents, misconduct, work rule and safety violations. During his tenure at
the county, he was reprimanded, counseled and even suspended without pay. He
was a difficult employee and did not get along well with his supervisors or
work crews.
The
Agreement requires “just cause” for Management to suspend, discipline or
discharge an employee
Discharge is
recognized to be the extreme industrial penalty since the employee’s job,
seniority and other contractual benefits, and reputation are at stake. Because
of the seriousness of this penalty, the burden generally is held to be on the
employer to prove guilt of wrongdoing, and probably always so where the agreement
requires “just cause” for discharge.1
Therefore,
it is appropriate for an arbitrator to require clear and convincing evidence.
As explained by Arbitrator Richman:
The
imposition of a lesser burden than clear and convincing proof fails to give
consideration to the harsh effect of summary discharge upon the employee in
terms of future employment. 2
The just cause standard has been defined and
incorporates seven tests.
1.
Did the company give the employee forewarning or
foreknowledge of the possible or probable disciplinary consequences of the
employee’s conduct?
2.
Was the company’s rule or managerial order
reasonably related to (a) the orderly, efficient, and safe operation of the
company’s business and (b) the performance that the company might properly
expect of the employee?
3.
Did the company, before administering discipline
to an employee, make an effort to discover whether the employee did in fact
violate or disobey a rule or order of management?
4.
Was the employer’s investigation conducted fairly
and objectively?
5.
At the investigation, did the “Judge” obtain
substantial evidence or proof that the employee was guilty as charged?
6.
Has the company applied its rules, orders and
penalties evenhandedly and without discrimination to all employees?
7.
Was the degree of discipline administered by the
company in a particular case reasonably related to (a) the seriousness of the
proven offense and (b) the record of the employee in his service with the
company? 3
If one or more of these questions is answered in
the negative, then normally the just cause requirement has not been met.4
The “just
cause” standard is a broad and elastic concept, involving a balance of
interests and notions of fundamental fairness. The applicable standard is one
of reasonableness:
... whether a reasonable person taking into account all relevant
circumstances would find sufficient justification in the conduct of the
employee to warrant discharge (or discipline.)5
Although
some of the tests to establish the “just cause” standard have been met, others
have not. The Performance Improvement Plan does not appear to represent a good
faith attempt to improve the Grievant’s performance. Although the Plan included
specific areas requiring improvement, it does not indicate what the employee
must do to improve, nor does it provide a specific course of action such as
training. The evaluation consisted of critical comments of his performance of
the daily work orders he was assigned. In determining whether the termination
of G__ was for just cause one must consider whether the performance evaluation
on which it was based was fairly and objectively conducted and whether he was
provided training during his probationary period as stated in the document
presented to him.
Based on the evidence and testimony presented, I
believe that his evaluation was not objective or fairly conducted. There were
no performance criteria established. The rating system is subjective. The
Grievant was assigned a work load that was excessive and could not be completed
during his shift. The County asserts that the Grievant received due process and
the decision to terminate him was reviewed by two “neutrals” who were present
at his pre-termination hearing. In fact, both of these “neutrals” are County
employees who basically reviewed the record prior to determining to uphold the
termination decision.
In considering discipline or discharge, the past
record and length of service are given consideration. G__ is a long-term
employee, having worked for the Company for over eighteen years during which
time he was promoted. Disciplinary action must be premised upon reasonable,
just and sufficient cause. The record does not establish that the action was
premised upon reasonable, just and sufficient cause. The record does not
establish behavior, or work performance issues that rise to the level that
compels discharge of an employee of long service.
The
Agreement, in Article 6, establishes a just cause standard for the discharge of
an employee.
The facts and testimony in evidence compel a
finding that the County did not have just and sufficient cause to discharge the
Grievant. The Grievance is sustained.
The County shall immediately reinstate G__ to his
position with back pay, full benefits and seniority as to the date of his
termination, less any interim earnings (including unemployment insurance). It
is so ordered.
—— Award ——
Based on the
evidence and testimony entered at the hearing, the Employee’s grievance is
sustained. The County did not have just cause to terminate G__. The remedy is
as follows:
1. The County shall immediately
reinstate G__ to his position.
2. G__ is to be made whole and
receive backpay to include full salary from the time of his termination, less
any interim earnings (including unemployment insurance) and receive full
benefits and full seniority.
3. G__ is to
receive his backpay within thirty (30) days of the receipt of this award.
4. I will
retain jurisdiction over any disputes between the parties for the sole purpose
of deciding any unresolved dispute over the calculation of back pay as well as
any other dispute that may arise from this Award for a period of ninety days
from this date.
Notes
1. Elkouri
and Elkouri, How Arbitration Works 905 (5th Ed. 1987).
2. General
Telephone Company of California, 73 LA (BNA) 531, 533 (Richman, 1979
3.
Enterprise Wire Co., 46 LA (BNA) 359, 363-4 (1966).
4. Enterprise
Wire Co., 46 LA (BNA) 359, 362 (1966).
5. RCA
Communications, Inc., 29 LA (BNA) 567, 571 (Harris, 1961). See also Riley
Stoker Corp., 7 LA (BNA) 764, 767 (Platt, 1947).