Arbitration Award
|
In re the
State of Montana
Dept. of Labor and Industry
and
Montana Public Employees
Association
118 LA (BNA) 483
March 26, 2003
Donald S. Prayzich, Arbitrator.
Issue
At the outset of proceedings on Wednesday, January 29,
2003, the Parties mutually agreed to the following statement of the Issue,
which was submitted to the Arbitrator, who is authorized to render a final and
binding decision:
“Was the Grievant,
D__ discharged for just cause?
If not, what is the appropriate remedy?”
Master Agreement
Language
Relevant
provisions of the Master Agreement, include the following:
ARTICLE
4—MANAGEMENT RIGHTS (In compliance with State
Statute 39-31-303, MCA)
The Union shall
recognize the prerogatives of the agency to manage, direct, and control its
business in all particulars, in such areas as, but not limited to:
1. direct
employees;
2. hire,
promote, transfer, assign, and retain employees;
3. relieve
employees from duties because of lack of work or funds or under conditions
where continuation of such work would be inefficient and non-productive;
4. maintain the
efficiency of government operations;
5. determine
the methods, means, job classifications, and personnel by which the agency
operations are to be conducted;
6. take
whatever actions may be necessary to carry out the missions of the agency in
situations of emergency; and ...
7. establish
the methods and procedures by which work is performed.
Such rights are retained by the Employer
unless such rights are specifically relinquished in this Agreement.
* * *
ARTICLE
6—NON-DISCRIMINATION
Section 1. No
member of the Association shall be discharged or discriminated against for
upholding Association principles. The Employer and the Association affirm their
joint opposition to any discriminatory practices in connection with employment,
promotion or training, remembering that the public interest requires the full
utilization of the employees’ skills and ability without regard to race, color,
creed, national origin, age or sex.
Section 2. In
accordance with the provisions of the Governmental Code of Fair Practices, the
Employer shall recruit, appoint, assign, train, evaluate and promote its
employees on the basis of merit and qualifications, without regard to race,
color, religious creed, political ideas, sex, age, marital status, physical or
mental handicap, national origin and ancestry.
* * *
ARTICLE
11—GRIEVANCES AND ARBITRATION
Section 1.
Having a desire to create and maintain labor relations harmony between them,
the parties hereto agree that they will promptly attempt to adjust all disputes
involving the interpretation, application or alleged violation of a specific
provision of this Agreement. Addendum B, attached hereto, shall be utilized to
resolve grievances.
Section 2.
During the processing of any matter under this Article, the Association agrees
not to strike, render unfair reports or cause slowdowns, and the Employer
agrees not to lock out employees represented by the Association.
ARTICLE 12—JOB
SECURITY
Section 1. A
probationary period shall be utilized for the most effective adjustment of a new
employee and for the elimination of any employee whose performance does not, in
the judgment of the employee’s supervisor, meet the required standard of
performance.
The
probationary period shall last for six months. If the Employer determines at any
time during the probationary period that the services of the probationary
employee are unsatisfactory, the employee may be separated upon written notice
from the Employer. The matter of the creation of additional probationary
periods may be discussed in the appropriate supplemental(s).
Section 2. The
Employer may discharge any employee with permanent status only for just cause.
The Employer shall furnish an employee subject to discharge or suspension with
a written statement of the grounds and specific reason(s) for such actions and
shall in addition notify the Association of the removal of an employee for
cause. An employee with permanent status may appeal his/her dismissal,
suspension, or other punitive disciplinary action through the grievance procedure.
This in no way limits management’s prerogative to lay off employees in
accordance with Article 13.
ARTICLE
13—SENIORITY
Section 1.
Seniority means the length of continuous service with the agency since the last
date of hire.
Section 2. Seniority
shall cease to accrue during a period of layoff or leave without pay that
exceeds 60 working days or after a permanent transfer out of the bargaining
unit. Previously credited service, however, will not be lost and an employee
who is recalled or transfers back into the bargaining unit will retain all
prior seniority.
Seniority shall
be revoked upon termination, retirement, or discharge for cause.
Section 3.
Seniority, qualifications and capabilities shall be the controlling factors in
filling new or vacant permanent positions.
Section 4.
Qualifications, seniority and capabilities shall be the controlling factors in
selection of employees for layoff among positions of the same grade and class
by geographic location, as identified in the supplemental agreements.
Section 5.
Recall from layoff shall be in reverse order of layoff. The Employer shall
notify a laid off employee to return to work by sending a certified, return
receipt letter to the last known address for the employee with a copy to the
Association and shall therein notify the employee that failure of the employee
to notify the Employer of his/her intent to return to work within 10 calendar
days of the mailing of said letter shall constitute a forfeiture of his/her
right to return to work. Recall rights shall be limited to a period of two
years following the date of layoff.
Section 6. No
permanent employee shall be laid off while temporary or probationary employees
in the same skill are retained.
* * *
Rules of
Arbitration
* * *
4. The
arbitrator may not add to, subtract from or modify the terms of this
Agreement.”
In
addition to the foregoing, “Article 7, Pay and Hours,” (Sections 1-7), is
referenced, but will not be quoted here, for purposes of brevity.
Statement of the
Matter
This arbitration involves the discharge on or about
February 11, 2002, of D__ (“Grievant” or “D__”), from her Administrative
Support position. D__ worked in the Benefits Bureau of the Unemployment
Insurance Division of the Montana State Department of Labor and Industry,
(“Employer”), Helena, Montana. In her position, the Grievant was classified as
a Grade 7 employee, and was covered for wages, benefits, and working conditions
by a Collective Bargaining Agreement, (Master Agreement and Supplemental
Agreement) negotiated between the Employer and Montana Public Employees
Association, (“Union” or “Association”). The Grievant was hired on November 1,
1999 and satisfactorily completed her six (6) month probationary period. During
that probationary period and for some time thereafter, the position D__ held
required the receipt, filing, and retrieving of paper documents, as well as
other routine clerical duties, and some telephone work.
Subsequently, with a “target date” of April 7, 2001, the Employer commenced
conversion from its system of paper documents to a computer system known as
MISTICS, which is an acronym for Montana Integrated System to Improve Customer
Service. All Administrative Support personnel were required to take Employer-provided
training in connection with the conversion to MISTICS. The Grievant did not
grasp the changeover skill requirements, while all other Administrative Support
employees did. Some of the other trainees became qualified in as little as
several weeks.
The MISTICS system became operative in April 2001 as
planned. Because D__ did not satisfactorily complete her training, she and the
Employer continued training efforts, and finally, in July 2001 entered into a
TRAINING ASSIGNMENT AGREEMENT effective August 6, 2001, in accordance with
provisions of the Collective Bargaining Agreement and Montana State Law. The
TRAINING ASSIGNMENT AGREEMENT continued until Grievant’s discharge on February
11, 2002. During the aforementioned training period, the Grievant was also
assigned other work, which did not require computer skills. The decision to discharge was
based on failure to perform work to standard. There is no issue of misconduct.
According to the
Employer, they went the “last mile” with D__, but all special efforts to bring
her performance up to an acceptable standard were to no avail. The Employer
emphasizes, that the Grievant’s employment application for the Administrative
Support position for which she was hired in November 1999, stated that she had
computer experience, including software, indexing, Oracle, Acrobat, Adobe, and
scanning. The Employer did not base its decision to discharge on any
misrepresentations by D__ and, stresses that the Grievant was discharged
because she could not satisfactorily perform basic work duties, despite
repeated and extensive training for more than a year.
Further, the
Employer emphasizes that the Grievant’s discharge for incompetence must be
distinguished from misconduct. Accordingly, the Employer rejects the Union’s contentions
that D__ should have been afforded various steps of progressive discipline
prior to discharge. Progressive discipline was not required, argues the
Employer, and that all reasonable efforts to train the Grievant were to no
avail. The Employer requests that the grievance be denied and the discharge
sustained.
According to the
Union, progressive discipline was required, emphasizing State of Montana law,
which the Union argues requires progressive discipline prior to discharge.
Further, the training offered by the Employer was unsatisfactory. The Grievant
was not given any training materials or other written paperwork, nor any
“hands-on” training. The instruction was verbal and was given while D__ was
involved with her other work assignments, which did not require a computer; not
a good training environment to learn computer skills, argues the Union.
Moreover, D__ is 61 years old and had worked for some 25 years for the State of
Montana, in various positions in several agencies during the 1960s, 1970s, and
early 1980s.
That prior long-term employment, during pre-computer days
must be considered, argues the Union. Additionally, the Union stresses that
notice is a basic requirement of establishing just cause, which is the standard
for discharge. No such notice was given until January 2002, some three weeks
prior to the Grievant’s discharge on February 11. In summary, the Union submits
that in light of all circumstances, including inadequate training and lack of
notice, as well as the lack of prior progressive discipline, the appropriate
remedy is to reinstate the Grievant and make her whole for all lost wages and
benefits for the time she has been off the job.
When the instant dispute could not be resolved by the
Parties, this Arbitrator was selected to conduct an evidentiary hearing and
render a final and binding decision with regard to the submitted Issue.
Position of the
Parties
Employer Position
The Employer submits that it was more than reasonable in
extending training to Grievant D__. The extended training lasted for more than
a year, including a TRAINING ASSIGNMENT AGREEMENT, from August 6, 2001 to
February 11, 2002. The Employer stresses that the Grievant had the benefit of
extensive instruction and training for computer tasks, which some co-workers
mastered in less than a month. Additionally, D__ represented on her application
for the Administrative Support position, that she was experienced in performing
computer functions, including software, indexing, Oracle, Acrobat, Adobe, and
scanning.
The Employer also stresses that there is a clear
distinction between discharge for misconduct and discharge for failure to
perform work because of incompetence. The Grievant was not discharged for any
rule violation or misconduct, but solely because of failure to perform as
required. In this regard, the Employer references and quotes from Grievance
Guide, Tenth Edition, BNA, Editorial Staff.
So far as contentions by the Union that the Grievant is a long-term
State employee, the Employer rejects such contentions and emphasizes that D__
had approximately two years and three months of seniority at the time of her
discharge, (November 1, 1999-February 11, 2002). The Employer points out that
per the Grievant’s job application, she worked for the State Highway Patrol in
the 1960s and for the State Labor Department in the 1970s and early 1980s, when
she left for private employment. Records of employment are not kept in the
State beyond 10 years. The fact remains, that at the time of discharge, D__ was
a two year, three month employee. In its brief, the Employer reviews and
stresses in detail, the Grievant’s lack of progress during training, for the
required conversion from a database of paper documents and filing, to MISTICS.
The Employer emphasizes, that D__ was hired on November 1,
1999, and while she completed the standard six month probationary period, her
training for the MISTICS system commenced after completion of that probationary
period. MISTICS was implemented on April 7, 2001, as originally planned. Other
employees, who satisfactorily completed the necessary training, had their
positions upgraded to grade 8 from grade 7. The Grievant did not have her grade
7 pay level elevated, because she never satisfactorily completed the training.
The Employer emphasizes that training was given to the Grievant primarily by
Nan Nail, who helped design the MISTICS system.
Training consisted of written materials, verbal
discussions, and demonstrations, but the Grievant could not master the required
basic procedures. The Employer also emphasizes that the training log of Nan
Nail did not only focus on the Grievant, but was in fact maintained for
numerous employees. And, that training log confirms, over a lengthy period of
time, the progress and/or lack of progress, made by the Grievant. In addition
to pointing to the efforts of Nan Nail, the Employer emphasizes that Lynn Long,
Bureau Chief, also worked with the Grievant repeatedly, in efforts to bring her
work up to standard.
The Employer also points out that the Grievant testified at
the arbitration hearing, that her computer work was slow and inaccurate, and
that she had been asked by the Employer to consider another position, but she
refused to make a change. In August 2001, the Employer and the Grievant entered
into a TRAINING ASSIGNMENT AGREEMENT. In this regard, the Employer emphasizes
that D__ testified that both Lynn Long and Nan Nail were “patient”, and went
the “extra mile”.
In conclusion, the Employer stresses that despite more than
a year’s training, the Grievant never improved, and finally, on February 11,
2002, she was discharged. The Employer emphasizes that it had placed the
Grievant on notice approximately a month before her discharge on February 11,
that her job was in jeopardy. The Employer argues that the grievance should be
denied and the discharge of D__ sustained.
Union Position
The Union argues, inter alia, that Grievant, D__, was not
afforded the benefit of progressive discipline, as required by Policy of the
State of Montana. Specifically, “Discipline Handling Policy, effective
6/29/84-2.21.6506”. The Union submits that there is no evidence that the
Grievant engaged in “...severe performance deficiency or behavior that disrupts
agency operations”, which is the only basis for abandoning progressive
discipline. The Union stresses that the Employer bound itself by the foregoing
Law, and any attempt to distinguish between misconduct and incompetence is a
“smokescreen”. Progressive discipline was clearly required.
So far as the Grievant’s length of service, the Association
emphasizes that although D__ was most recently hired in November 1999, she had
worked extensively, for various agencies of the State, for more than 20 years
commencing in 1961. And, she satisfactorily completed her probationary period
for the Administrative Support position for which she hired in 1999. The
position for which she was hired required work with claims, the filing and
retrieving of paper documents and some telephone work.
The Grievant was proficient, and there is no record of
unsatisfactory performance during her probationary period. The Employer
subsequently commenced conversion from paper documents, to a computer system
for purposes of automation of the storage and distribution of documents, known
specifically as MISTICS, with a target date of April 7, 2001. Administrative
Support personnel, including the Grievant, were given training. The Grievant
had difficulty grasping requirements of the computer system, and in July 2001,
entered into a TRAINING ASSIGNMENT AGREEMENT.
Training consisted primarily of verbal instruction on a one
or two times per week basis, given by Ms. Nan Nail. Further, the Union stresses
that D__ did not receive notice that she was subject to discharge until
approximately three weeks prior to her termination on February 11, 2002. And,
the Union emphasizes that while the Employer used a 1-5 assessment system, to
judge the Grievant’s progress during training, the contractually required notes
of her performance during training were never shared with her until January
2002, (three weeks prior to discharge). Further, there were no training
manuals, other written materials, or “hands-on” training given.
Addressing just cause, the Union emphasizes that just cause
never exists in the absence of notice. D__ did not receive notice that she was
subject to be discharged until three weeks prior to her termination on February
11, 2002. The Union argues, that the Grievant was never given the opportunity
to come up to standard, once she was placed on notice that her job was in
jeopardy, (letter of January 14, 2002). And, it is stressed by the Union, that
while the Employer produced a “heft” of paper at the trial, it was never shown
to D__ until a few days before the arbitration. The Union submits, that all
documentation was held and communicated only among supervisors.
In conclusion, the Union contends that the Employer failed
to establish just cause for the Grievant’s discharge. Accordingly, the Union
seeks reinstatement of D__ and that an order be issued that she be made whole,
for all lost wages and benefits, for the period of time she has been off the
job.
Opinion of the
Arbitrator
In determining
whether Grievant D__ was discharged for just cause, it is necessary to first
address certain key areas which have been raised for the most part by the
Parties, and addressed in briefs. They include the following:
1) Whether the Employer
provided adequate training to the Grievant, which can reasonably be considered
sufficient to have brought her skills up to an acceptable standard, so that she
could perform the work required of a grade 8 position, in connection with the
Employer’s MISTICS system;
2) Whether Grievant
D__ should have been afforded the benefit of various steps of progressive
discipline, prior to her discharge; and
3) Whether the
Employer gave the Grievant sufficient notice that her work was unsatisfactory
and that her job was in jeopardy for failure to perform up to standard. Each of
the foregoing will be discussed. With regard to training, the evidentiary
record establishes the following:
Training afforded the Grievant consisted of more than a
year’s instruction, five months of which commenced on or about August 6, 2001,
under a written TRAINING ASSIGNMENT AGREEMENT, that the Employer and D__
executed in July 2001. The record establishes, that all grade 7 Administrative
Support personnel had their positions eliminated and were trained for a higher
grade, (grade 8), position, requiring computer skills in connection with
conversion from paper documents to MISTICS, (Montana Integrated System to
Improve Customer Service).
Training was initially provided by Lynn Long, Bureau Chief,
Benefits Division, Unemployment Insurance, Department of Labor and Industry.
Training was later turned over to Nancy Nail, Lead Worker, who played a
significant role in development of the MISTICS system. Training consisted of a
manual, developed by Ms. Nail, verbal instruction, other written materials and
documents, and in at least one instance, the use of pictures, in connection
with the training being offered, (testimony of Lynn Long and Nan Nail). Ms.
Long testified that she met regularly with Nail and the Grievant to discuss
what progress was being made by D__.
Nan Nail testified that when the Grievant could not grasp
the training, she, (Nail), would re-emphasize and re-train. The Grievant
testified that during training, she had many meetings with Lynn Long, who would
tell her “what Nan Nail said about her performance”. D__ also testified that
Nail worked with her two times per week, from July 2001 to February 2002. And,
that she did receive a training manual. Further, that Nan Nail did work with
her on procedures and did try to get her to master the skills required. D__
stated that Lynn Long asked her “repeatedly”, what more the Employer could do
to help her with training, but the Grievant said she did not know. Further,
that she, (D__), felt that Nan Nail was being “patient and being good about
training”.
The Grievant also testified that about halfway through the
training, Nail became even more patient and told her what she had to do to
improve. The Union contends that the training offered the Grievant was
inadequate. However, it must be noted that of the Administrative Support
persons, (four, including the Grievant), given the training, the Grievant was
the only employee who did not satisfactorily master the required computer functions
for performance with MISTICS. Further, Lynn Long testified that the other three
trainees who successfully completed the training, did so in a short period of
time, (some in two to three weeks), and, all except the Grievant, were elevated
to grade 8.
The Arbitrator has carefully reviewed the evidence and
arguments regarding the training provided D__. And, notes the Union’s argument,
that the Employer withheld information regarding the rating system used during
training, until shortly before the February 11, 2002 discharge of the Grievant.
While the argument of the Union raises a valid point, the non-sharing of the
1-5 rating system with the Grievant until 30 days prior to termination did not
in all probability, impact the Grievant’s progress. The evidence is
overwhelming that D__ could not master the basic skills and functions necessary
for performance to an acceptable level of proficiency.
Further, there was
testimony that the Grievant often could not recall something she had learned in
a prior training session. Accordingly, the
failure of the Employer to share the 1-5 rating system earlier than January
2002 cannot be deemed controlling. The evidence, as a whole, weighs heavily in favor of the Employer’s
efforts to train and heavily against the Grievant’s performance as a result of
the training offered. Therefore, a decision is mandated that the Employer’s
training must be considered to have been reasonable and adequate under all
circumstances established by the evidence submitted.
So far as the absence of progressive discipline: The
Employer emphasizes that none was required, and the Association maintains that
progressive discipline should have been afforded the Grievant. The Union
stresses that D__ was summarily discharged, sans prior progressive discipline,
to which she was entitled. It is generally held, that arbitrators are more
likely to sustain a discharge where prior progressive discipline, (also
referred to as “corrective discipline”), has been imposed before discharge. However, incompetence is
generally an area of exception, in that progressive discipline is for the most
part, not effective in “changing behavior”, where an employee is unable to do
the work.1
More significantly, the TRAINING ASSIGNMENT AGREEMENT,
signed by D__ and Mr. Rabe and Ms. Long for the Employer, states in part: “If
an employee fails to satisfactorily complete the Training Assignment, the
following action may be taken, at the discretion of Division Management “...
(2)” For a non-probationary employee, discharge from the position in compliance
with the DISCIPLINE HANDLING POLICY, ARM 2.21.6505, et seq.” Likewise, PAY
PLANS 060 RULES, dated 7/1/01, provides on pp. 7-8: “(11) If the employee does
not satisfactorily complete the training assignment, the agency may take actions
which include, but are not limited to: ... (c) Discharging the employee, in
compliance with the DISCIPLINE HANDLING POLICY, ARM 2.21.6505, et seq. ... “
The referenced DISCIPLINE HANDLING POLICY, states in part:
“2.21.6506 POLICY AND OBJECTIVES (1) It is the policy of the state
of Montana that: (a) State employees who fail to perform their jobs in a
satisfactory manner or whose behavior otherwise interferes with or disrupts
agency operations be subject to disciplinary action, up to and including discharge.
* * *
2.21.6509 FORMAL DISCIPLINARY
ACTIONS
* * *
(2) Management shall, when appropriate, use progressive discipline.
However, the appropriateness of using progressive discipline in each case lies
within the discretion of Management.”
It is not disputed
that the Grievant was discharged for failure to perform and not for any act of
misconduct. Therefore, key wording which has
application to this dispute, regarding the argument that progressive discipline
should have been applied, is found in the following of that same paragraph (2),
of 2.21.6509: “Discharge should not be an initial disciplinary action except in
severe cases or unsatisfactory performance or behavior that disrupts agency
operations.” Clearly, that
wording provides for an exception to progressive discipline prior to discharge,
in certain cases, including “unsatisfactory performance”. Accordingly, the
Arbitrator must conclude that D__’s discharge within the foregoing; and prior
progressive discipline was not required.
Regarding notice: The Union correctly argues, that notice
is a necessary element of due process and therefore, just cause. In this
regard, it is well settled that an employer’s standards and requirements must
be reasonable, and employees should be afforded warnings and given appropriate
time to improve, where lack of ability is concerned.2 Generally, notice need
not always be in writing, as long as an employee is forewarned that improvement
and/or changes are required and that discipline or discharge is being considered
absent improvement. In this regard, the evidence submitted establishes the
following with regard to notice given the Grievant:
1. The written TRAINING ASSIGNMENT AGREEMENT, bearing the
Grievant’s signature, states on the first page that the training is “being
provided because the employee does not currently meet the qualifications of the
recently upgraded position in the following areas”. The document then goes on
to list the areas of deficiency and requirements and objectives to be accomplished.
And, on the last page, just above the Grievant’s signature, it states that
discharge is one of three remedies available, should the Grievant fail to
“satisfactorily complete the training assignment”. It is noted that at that
time, (July 2001), the Grievant had already received some six or seven months
of training, and that entering into a TRAINING ASSIGNMENT AGREEMENT, with the
foregoing wording, can reasonably be construed as notice that improvement had
to be made in the Grievant’s job performance, or she could be subject to
discharge.
2. The Grievant testified that she was told in
mid-September 2001, by Lynn Long, that she “was not doing well”, and Long asked
her if she was interested in a receptionist position which was available. The
Grievant expressed no interest. (The foregoing is consistent with notes of
October 1, 2001)
3. Ms. Long testified that at one point during training,
she told D__ that she was regressing, and not progressing.
4. Regarding notes set forth in Employer Ex. No. 3, Lynn
Long testified that while the notes were not shown to the Grievant, the content
of those notes were given to D__ verbally.
5. The Grievant testified that during training she had
“many meetings” with Lynn Long, who would convey to her what Nan Nail said
about her performance. And, that she was told that she was not doing better.
The Grievant also testified that she was told frequently by Lynn Long that she
was “failing”, based upon information given her from Nan Nail. D__ stated that
she was told, on many occasions, that she was “failing”.
6. D__ further testified that in mid-November 2001, she was
told by Lynn Long that she, (Long), did not think that D__ would be able to do
the job.
7. The January 14, 2002, letter from Long to D__ clearly states
that the Grievant had 30 days to bring her performance up to standard, or she
would be subject to disciplinary action, up to and including discharge. There
is no evidence that the Grievant took any positive steps to prevent that from
happening, although the letter invited her input in that regard.
It can reasonably be argued that the threat of job loss, as
set forth in Joint Ex. No. 4, (July 14, 2002 letter), could have been issued
earlier than 30 days prior to discharge. However, the extensive testimony of
Lynn Long, as well as that of the Grievant and the contents of the TRAINING
ASSIGNMENT AGREEMENT, all establish that the Grievant knew, or should have
reasonably known, prior to January 14, 2002, that she was not going to
satisfactorily complete the program and perform as required. And, if she did
not, her job was in jeopardy as the grade 7 position for which she had been
hired had been eliminated.
Accordingly, the weight of the evidence is persuasive, that
even if additional or earlier written notice had been given to the Grievant, in
all likelihood it would not have mattered, as the evidence clearly supports a
conclusion that D__ was not grasping the training being offered, and she had
been told so repeatedly. Further, she was told that she was failing and was not
going to succeed.
Moreover, it is noted that she repeatedly, (prior to the
January 14, 2003 letter), was given the opportunity to come up with suggestions
or ideas on how the Employer could make changes in the training to better help
her, and she had no suggestions. A conclusion is therefore warranted, that the
Grievant was given sufficient notice by the Employer, to reasonably keep her
apprised of her lack of progress on a regular basis throughout the training
period. Also, logic dictates, based upon the evidence submitted that she had to
know prior to receipt of the January 14, 2003 letter from Lynn Long, that her
job was in jeopardy.
Turning to the penalty of discharge: A review of Employer
Ex. Nos. 3 and 4 and the testimony submitted, clearly establishes that the
Employer made reasonable efforts to train D__ for the required grade 8 position
in connection with MISTICS. In addition to Lynn Long and Nan Nail, there was
testimony by Suzanne Payton, that she spent approximately two weeks with the
Grievant in attempting to help train. The notes made by Long and Nail, as
training progressed, detail repeatedly, areas of training concentration and
where deficiencies existed and what steps were being taken to improve the
Grievant’s performance.
The Collective
Bargaining Agreement requires a standard of just cause to sustain discharge,
which is commonly referred to as the supreme industrial penalty, as it places
an employee’s job, reputation, seniority, and benefits at stake. Accordingly, it is well settled that the burden of proving
just cause is placed squarely on the employer.3 DISCIPLINE HANDLING, under
2.21.6507 DEFINITIONS, paragraph (6), states: “Just cause means reasonable, job-related grounds for
taking a disciplinary action based on failure to satisfactorily perform job
duties or disruption of agency operations.
“Just cause
includes, but is not limited to, an actual violation of an established agency
standard, legitimate order, policy, or labor agreement, failure to meet
available professional standard, or a series of lesser violations, if the
employee would reasonably be expected to have knowledge, the action or omission
may result in a disciplinary action.”
Additionally just cause, or good cause, has also generally been stated to mean
that the employer did not act in an arbitrary, capricious, or discriminatory
manner, and the decision was supported by the evidence submitted.4
The Arbitrator has carefully weighed the evidence and
arguments submitted in the instant matter, and while it is unfortunate that the
Grievant was unable to satisfactorily complete the required training and
perform to standard, in connection with conversion to MISTICS, the weight of
the evidence is persuasive that the Employer has carried its burden of proving
just cause. One further point must be addressed however. It was emphasized by
the Union at the hearing and in brief, that the Grievant had some 25 years of
service with various agencies of the State of Montana, prior to her most recent
hire date of November 1, 1999. While long service with an employer is generally considered a
mitigating factor in assessing the appropriateness of a penalty, the instant
dispute does not involve misconduct or rule violations by D__, but only the
inability to perform the required work.
Therefore, service
that she had acquired previous to November 1, 1999, cannot be deemed a
mitigating factor to reduce or change the penalty of discharge. The grievance
must be denied and the discharge sustained.
After careful consideration of all evidence and argument,
and for the reasons offered above, it is the decision of the Arbitrator
that:
The Grievant, D__,
was discharged for just cause.
Accordingly, the grievance is denied.
Footnotes
1. Fairweather’s Practice and Procedure in Labor
Arbitration, Third Edition, Roy J. Schoonhoven, Editor in Chief, pp.
229-230, (BNA 1991).
2. The Common Law of the Workplace-The Views of
Arbitrators, National Academy of Arbitrators, Theodore St. Antoine, p. 165,
(BNA 1999).
3. Evidence in Arbitration, Hill and Sinicropi,
Second Edition, p. 40, (BNA 1990).
4. Atlantic Richfield Company, 69 LA (BNA) 484 at
487 (Sisk, 1977).