Palm Beach County Florida
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. * * *
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.
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).