State of Alaska Dept. of Corrections
117 LA (BNA) 674
Alaska Case No. 01-C327
June 11, 2002
Martin Henner , Arbitrator.
The parties were unable to reach a stipulation regarding the exact wording of the issue presented to the arbitrator for determination. Instead, the arbitrator was directed by the parties to frame the issue as appropriate. The issue presented for decision is determined to be as follows:
1. Was the Grievant's suspension without pay for a period of 84 work hours an excessive discipline, violating concepts of just cause, for his offense of insubordination, when considered in light of all of the pertinent circumstances of the matter?
2. If the discipline imposed was excessive, what discipline is appropriate?
The parties agreed to the following stipulations:
1. The parties agree that this dispute is covered by the terms and conditions of the 2000-2003 Collective Bargaining Agreement between the State of Alaska and the Public Safety Employees Association.
2. Grievant is properly represented in this grievance by the Public Safety Employees Association.
3. Grievance No. 01-C-327/01-010C is properly before the arbitrator.
4. Telephonic witness testimony will be allowed.
5. The State had just cause to discipline the Grievant, J__ for insubordination.
6. The suspension of the Grievant, J__, for insubordination was appropriate.
7. The parties further stipulated that the following provisions of the Department of Corrections Policies and Procedures are to be considered as applicable to this grievance:
a. Index 202.08, Disciplinary Action Guidelines, Effective Date 08-06-90, Section E
Just Cause: “Over the years the opinions of arbitrators in discipline cases have established a common use definition of “just cause” consisting of a set of guidelines to be applied to the facts of any one case and which are set forth in the form of questions. A “no” answer to one or more of the following questions normally signifies that just and proper cause did not exist. Often the guidelines cannot be applied with absolute precision * * *
Subsection 7. Was the degree of discipline administered reasonably related to:
a. the seriousness of the employee's offense; and
b. the service record of the employee within the department?
Article 16. Grievance—Arbitration
b. The parties agree that the decision or award of the arbitrator shall be final and binding. The arbitrator shall have no authority to rule contrary to, amend, add to, subtract from, or eliminate any terms of this Agreement.
e. Expenses incident to the services of the arbitrator shall be borne as designated by the arbitrator. Normally, the losing party shall be expected to pay the arbitrator's expenses, if neither party can be considered the losing party, the arbitrator shall apportion expenses using the arbitration decision as a guide.
Article 12. Notice of Discipline and Discharge
Section 12.1 Definition
a. Discipline and discharge of employees shall be for just cause. Failure to complete a probationary period does not require just cause and shall not be considered a disciplinary action.
b. Egregious misconduct which may result in immediate discharge includes, but is not limited to, gross disobedience or insubordination, dishonesty, chemical or alcohol intoxication, physical misconduct, criminal conduct, undue familiarity with offender or their families, abusive or lewd behavior, or abandonment of duties.
Article 4. Management Rights
It is recognized that the Employer retains the right to manage its affairs, to determine the kind and nature of work to be performed, and to direct the work force, except as otherwise provided in this Agreement. All of the functions, rights, powers and authority not specifically modified or abridged by the express terms of this Agreement are the sole and exclusive prerogative of the Employer. Such functions, rights, powers and authority include, but are not related to:
1. recruit, examine, select, promote, transfer and train personnel of its choosing, and determine the times and methods of such actions; * * *
3. assign and direct undecipherable word; determine the methods, materials and tools to accomplish the work; designate duty stations and assign personnel to those duty stations; ...
6. discipline, suspend, demote or dismiss employees for just cause; and
7. establish reasonable work rules; assign the hours of work and assign personnel to shifts of its designation.
Standards of Conduct
Policy and Procedure 202.15
Standards of Conduct, Procedure A, General Provisions
Line 1: Employees shall comply with and obey all DOC regulations, policies and procedures, operational memoranda, rules, orders, procedures and instructions. Employees shall not aid, abet or incite another employee in the violation of regulations, policies and procedures, operational memoranda, rules, duties, orders, or instructions.
Policy and Procedure 202.15
Standards of Conduct, Procedure A, General Provisions
Line 2: Employees shall promptly obey directives given by supervisors. If a directive is in conflict with a previous directive, the employee shall inform the supervisor of the conflict. If the supervisor does not retract or alter the directive, it shall stand; however, employees shall not be compelled to obey any directive that would require them to commit or abet an unlawful act.
The Department notes that insubordination is defined as a willful disregard of expressed or implied orders. That occurred in this case, and, while there was only one ultimate act of insubordination, it was repeatedly threatened and done with premeditation and willfulness. The Grievant was instructed numerous times that he had to attend the Training for Trainers class, and he was warned that failure to do so could subject him to disciplinary action.
The Department rejects the Grievant's expressed motivations for not wanting to attend the class: that he would lose pay when he went over to the 40 hour week schedule, and that he would have housing difficulties by being required to be in Seward during a week when he did not have housing available in that city. The Department contends that these objections do not constitute an excuse for the Grievant to disobey the orders.
The Department notes that any loss in pay which might be suffered by the Grievant was minor, and there were substantial opportunities for overtime at the institution during this period, where he might have been able to recover any lost pay. The Department also notes that housing was offered to the Grievant by a management employee who was a personal friend, and that, in any event, the Grievant ultimately did obtain an offer of housing from another friend when he did work in Seward on the week in question.
The Department states that the Grievant was only selected for the Pressure Point Control Tactics (PPCT) class when he agreed to also sign up for the Training for Trainers (TFT) program, it was explained to the Grievant that only four officers, one from each shift, were being sent for the PPCT training, and that all of these officers were also required to qualify for TFT certification, so that on each shift there would be a trained and certified employee who could provide instruction to the other officers on that shift on how to utilize this important technique of inmate control.
The Department argues that under its management rights it has the ability to direct its work force. Insubordination is an especially serious charge in a paramilitary organization such as the Department of Corrections, since it must rely on officers who will follow instructions without fail in the event of emergency situations. In this case, the incident was sufficiently serious to justify the discipline imposed, in spite of the fact that the Grievant had no prior disciplinary record, had previously received high performance evaluations, and had been the subject of at least one commendation.
The position of the Association is that the discipline imposed was excessive. This was an employee with an excellent record, with commendations in his file and no prior disciplinary action. The Grievant suffered a loss of 84 hours of work, which is estimated as exceeding $1600 in value, and related benefits.
While it is conceded that the Grievant committed misconduct when he failed to participate in the TFT class that he was ordered to take, the Association notes that being a training officer is a voluntary duty, from which the Grievant always had the opportunity of resigning. Accordingly, his resistance in completing the TFT class and being certified as a trainer should not have been considered so serious as to merit the kind of suspension which was imposed.
The Association also argues that the Department has tried to escalate the Grievant's refusal by listing a number of different times that he expressed reluctance to participate in the training and was notified that he was required to participate in the TFT class. Thus he was charged with four violations. However, in fact, the Grievant showed up as ordered to attend the class, and his failure to participate on the morning of class was only a single violation.
Additionally, the Association notes that the Grievant was initially warned that, if he persisted in his conduct of refusing to participate in the TFT class, he would be subject to discipline or it would affect his performance evaluation. Since this violation did affect his performance evaluation negatively, to also impose a suspension constitutes double punishment for the same conduct.
Finally, the Association claims that concepts of progressive discipline were not utilized in the determination of the suspension imposed on the Grievant. It notes not only his exemplary record, but also discipline imposed on another officer for a similar refusal to attend a training. That other officer received only a 36 hour suspension.
1. The stipulations heretofore referenced are adopted as findings.
2. In October or November, 2000, the training officer, Sergeant Fulwider, posted a training opportunity for the PPCT class on an institutional board. The notice indicated that those selected for this class would also have to sign up to take the TFT class.
3. On November 25, 2000, the Grievant applied for the PPCT class alone.
4. In December, the list of those selected for the PPCT class was issued, and the Grievant noted he was not among those chosen. He asked Sergeant Fulwider the reason and was told that the PPCT class was for people who would then instruct others on their shift in the techniques, in order to give such instruction, those employees also needed to take the TFT class as a qualification.
5. Grievant then spoke with Sergeant Lapinskas, his shift supervisor, and agreed to take both classes. He was again informed that the TFT class was mandatory for people taking the PPCT class.
6. Sergeant Lapinskas agreed that Grievant could be substituted for the employee on his shift who had initially been selected for the PPCT class.
7. On January 15-19, 2001, the Grievant took the PPCT class, successfully completing it. In order to take this class, which was offered in Anchorage, the Grievant's work schedule had to be changed to Monday through Friday 40 hours a week for that period.
8. On January 23, 2001, the Grievant sent a memo to Sergeant Fulwider, asking to have his name removed from the TFT class list. A note on his memo indicated that he couldn't afford the pay loss.
9. Upon receipt of this memo, Sergeant Fulwider spoke to the Grievant. The Grievant reiterated that he did not want to take the TFT class and, as reported by Sgt. Fulwider, stated that, if forced to do so, he would not pass it. Sergeant Fulwider informed the Grievant that he would be required to take the class.
10. On January 25, 2001, the Grievant sent a second memo to Sergeant Fulwider, reiterating his request to be excused from the TFT class. The memo further stated that he needed to be excused from the class because of his personal budgetary constraints and the loss of pay that the TFT class would entail. He expressed concern about housing availability, since he shared housing in Seward with other staff members and did not have housing available except for the weeks that he was normally on shift at the institution. As the training would be during an “off week,” his regular housing would not be available to him and he had no place to stay.
11. In response, the Grievant was again told by Sgt. Fulwider that he would be required to attend the TFT class. Sgt. Fulwider testified that the Grievant told him that, if forced to take the class, he would fail it. This testimony was uncontradicted at the hearing.
12. On February 1, 2001, the Grievant telephoned Assistant Superintendent Turnbull, asking to be excused from the class. He again mentioned financial and housing concerns as justification. In response, Superintendent Turnbull said that overtime assignments were available which would permit the Grievant to make up for any loss in pay suffered. Assistant Superintendent Turnbull, who also had a personal friendship with the Grievant, offered his own home as an accommodation if the Grievant could not find other housing during the week of training. Assistant Superintendent Turnbull instructed the Grievant that he was required to attend the training.
13. While the Grievant may have perceived that participating in the trainings would have a severe negative impact on the pay he received, evidence introduced at the hearing supports a finding that his first training—the PPCT—had no impact on his pay, and that the TFT class would have had a very minor impact—possibly the loss of only a few hours of income, and none if he secured any overtime work.
14. Evidence introduced at the hearing supports a finding that substantial overtime opportunities were available at the institution during this period. However, because of the contractual requirements pertaining to the assignment of overtime opportunities, there is no assurance that the Grievant would have received overtime assignments, had he applied for them.
15. On February 5, the Grievant appeared as ordered for the TFT class.
16. Prior to the start of the class, the Grievant was overheard by Sergeant Brunning telling fellow officers that he was there to observe, but would not participate. Sergeant Brunning testified that he warned the Grievant that failure to participate would subject the Grievant to disciplinary action or a substandard performance evaluation.
17. Other evidence, including a written statement submitted at the time by Sergeant Brunning and a transcript of an interview he gave to the management team, indicated that he warned the Grievant that he could be subject to disciplinary action and a substandard performance evaluation.
18. The evidence is not fully clear whether the Grievant's warning was in the conjunctive—and—or the disjunctive—or regarding possible discipline and/or negative performance appraisals.
19. The Grievant responded to Sergeant Brunning, stating that he would not participate in the class.
20. Assistant Superintendent Turnbull was also told that the Grievant indicated that he would not participate in this class and spoke to the Grievant that morning, instructing him that he was required to do so.
21. During a class session that morning, all of the participants were required to make a short presentation. When the Grievant's turn for presentation came, he informed the instructor that he was just there as an observer and was not going to participate.
22. When this refusal was brought to the attention of Assistant Superintendent Reimer, he directed the Grievant's shift supervisor, Sergeant Lapinskas, to send the Grievant home for the remainder of the day.
23. The Grievant returned the following day and was reassigned for the remainder of that week to correctional duties.
24. On February 9, 2001, the institution's management conducted a correctional interview for the Grievant regarding this incident. Also present was the business agent for the Association.
25. At that interview, the Grievant acknowledged that he had been instructed that the TFT class was a requirement as a condition of his being permitted to take the PPCT training. The Grievant also acknowledged that he told the instructor of the TFT class that he was just there to observe and would not participate.
26. The Grievant testified that he was upset about losing money because of the shift change and admitted that he had a bad day. He apologized for screwing up, saying it was his fault.
27. On March 2, 2001, the Department provided notice to the Grievant that, based on its investigation to date, it had determined that the Grievant had four violations of departmental policies and procedures because of his failure to participate in the TFT training. One of the violations charged was a failure to perform duties which had been assigned, when he refused to participate in the class on February 5, 2001, at approximately 1115 hours. The other three violations referenced the Grievant having been instructed to participate in the assigned training on January 23, January 25, and earlier on the morning of February 5, 2001, and his subsequent failure to participate in that class at approximately 1115 hours.
28. The notice also stated that the Department was considering a suspension for a period of 84 hours as the appropriate discipline to be imposed. Testimony at the arbitration hearing indicated that the 84 hour proposed suspension had been made without any reference to the Grievant's prior disciplinary record, commendations, his performance evaluations, or similar factors.
29. The Department held an investigatory hearing, also referred to as a “cause” hearing, on March 6, 2001. The Grievant appeared with the assistance of a union representative. At this hearing, the Grievant was provided with an opportunity to respond to the charges.
30. In his defense, he explained that the PPCT class was a very difficult class which he had barely passed, and that he feared he would not be able to train others in PPCT. He indicated that he was also concerned about personal liability if he was not able to teach PPCT properly. He apologized for his misconduct.
31. The Grievant also stated that he had been under the impression that he would likely receive a substandard evaluation and a letter of reprimand in his file for his misconduct. He had not realized that he might be subject to such an extended period of suspension.
32. The Grievant also submitted for consideration at the hearing, copies of his recent performance evaluations, as well as two letters of commendation: one from the U.S. Secret Service and one from the superintendent of the institution for helping to save a life. He noted that he had no prior disciplinary history.
33. Thereafter, on April 2, 2001, the Department suspended the Grievant without pay for a period of 84 hours, upon a finding of four violations, as previously charged. The notice indicated that the explanation he offered at the “cause” hearing had been considered.
34. At the hearing, the Superintendent testified that he had given consideration to the Grievant's prior record in reaching his decision to impose the disciplinary suspension originally proposed.
35. Thereafter, the Association filed its grievance regarding this matter.
36. Subsequently, the Grievant received a substandard evaluation for the period of January 18, 2001 through June 15, 2001, and was not recommended for a merit increase. Such evaluations and denials of merit increases are not considered as disciplinary events under the collective bargaining agreement and are not subject to the grievance procedure.
37. At the hearing, testimony was offered pertaining to another correctional officer who had also been found guilty of insubordination for failure to attend a training as ordered. That officer only received a 36 hour suspension.
38. There was insufficient evidence to determine the basis for the length of that officer's suspension, although some mitigating factors were noted. Namely: that the training date had been moved up on short notice after the officer had already purchased an airline ticket with cancellation penalties, and after that officer had given assurances to his wife that he would be with her this year on those dates, on their wedding anniversary.
Insubordination is considered to be a very serious offense in the labor management arena. Many arbitrators have ruled that incidents of insubordination, especially those which involve a refusal to obey orders, may support a penalty of termination.
Employees in a paramilitary organization, such as the correctional institution where the Grievant worked, are often held to a higher standard of conduct in terms of obeying orders, following chain of command, and other aspects of working conditions than might be the case for employees in other organizations and work settings. The need to maintain order in a correctional institution and for the employer to have confidence that its staff will follow instructions which they are given is also greater in correctional settings
The Grievant in this case had not wanted to take the TFT class. He only agreed to sign up for it when he was told that it was a condition which the employer required for those signing up for the PPCT class.
At the time that his name was substituted for an employee on his shift with less seniority to attend the PPCT training, he knew that only one officer from each shift was being sent to receive that training and that he would then be expected, after, he also had received his TFT certification, to teach the PPCT methods to the other officers on his shift.
After the Grievant received the benefit he desired, completion of his PPCT training, he then attempted to renege on his commitment and avoid his TFT class requirement. His first memo asking to have his name removed from the TFT class list came just four days after he completed the PPCT class. He gave as a reason that he couldn't afford a pay loss. But this memo was written when the pay period which included the PPCT class was only half over, and he had no real way of estimating whether he would suffer any negative pay consequences at all. In fact, testimony at the hearing indicated that he incurred no pay loss from his attending the PPCT class.
The Grievant next added, in his memo of two days later, an additional excuse of not having any housing on the week of the class, which would be his normal week off. And he told the training officer that he would fail the TFT class if he were required to attend it.
The Grievant was counseled numerous times that he had no choice but to attend the TFT class in fulfillment of his agreement. He was warned of consequences should he refuse to attend or refuse to participate.
While the Grievant claims that he thought he would be subject to discipline or receiving an unsatisfactory performance evaluation, other evidence indicates that he was told he would be subject to both discipline and an unsatisfactory performance evaluation. While it may have been the case that one of the supervisors cautioning the Grievant may have spoken in terms of discipline or a negative evaluation, I believe that others clearly indicated both would be possible, and that the Grievant knew or should have known that this was the case.
The Grievant claims that six months after his disciplinary suspension, when he was denied a merit increase because of his unsatisfactory performance evaluation, he was thereby subjected to double punishment for the same offense. This claim is rejected. He was disciplined for an infraction of the rules. His total performance during the appraisal period was reviewed, and he was found not to be eligible for a merit increase. However, the merit increase denial was not discipline. Under the terms of the collective bargaining agreement, the parties have agreed that it is not.
It is the opinion of this arbitrator that the Grievant attempted to pull a fast one. He got the training he wanted and then attempted to dump the training he didn't. Unfortunately for him, he underestimated the tenacity of the supervisory staff in holding him to his promise and the seriousness with which they came to view his obstinate refusal to keep his part of the agreement.
It is true that the Grievant previously had an exemplary record and commendations to boot, but that does not excuse his actions in this case. The institution had full justification when it elected to impose this level of discipline on him. I cannot find that standards of progressive discipline were violated in this case.
However, I am concerned that the Department's letter to him of April 2, 2001, imposing this discipline, states that he has committed four violations, I find that there was only a single violation, although he was given multiple warnings not to commit it.
I do not believe that having been instructed multiple times that he was required to attend the TFT class can be used to increase the number of violations the Grievant is found to have committed. No matter how many times he was warned that he had to participate, and no matter how many times he expressed a reluctance to do so, or asked to be excused from the requirement, the fact is that there was only a single instance when he actually refused participation.
Thus I will direct that the April 2, 2001 letter be redrafted, deleting violation paragraphs 1, 2 and 3, and charging the Grievance only with the violation in paragraph 4. The letter shall also be modified in the first line of the second paragraph to state that “the suspension is a result of the following violation”, and the first paragraph on page 2 shall be modified to show violation, in the singular rather than the plural.
I believe that this redrafting is necessary as the suspension letter indicates that it will become part of the Grievant's permanent Personnel file.
1. The grievance is DENIED, except for the following ordered adjustment.
2. The letter of suspension shall be redrafted in accordance with the discussion as set forth above.