In re the
County of Allegany
AFSCME New York Council 66
121 LA (BNA) 582
Decided December 11, 2004
Reported September 21, 2005
Jeremy V. Cohen, Arbitrator
At the hearing, the parties did not agree on a statement of the issue and the formulation of the issue was left for the Arbitrator. While this is not an uncommon occurrence in labor arbitration, in the particular circumstances here, the disagreement critically affects the issues of liability/accountability and remedy. Therefore, it will be dealt with here as a threshold matter.
K__ engaged in certain conduct on December 16, 2003. On February 3, 2004, the County Personnel Officer issued a document titled “Notice of Discipline” which in due course was delivered to the Union’s grievance committee and K__. The “Notice” stated:
On 12/16/2003, you unleashed a stream of profanity at Equipment Supervisor N__ at the DPW Shop in Friendship. There is no justification to subject a coworker, or supervisor to that kind of language. This is the latest example of your contempt for Department Supervisors which continues despite numerous warning letters, reprimands and three (3) disciplinary suspensions, one for five (5) months. You’ve been disciplined on thirteen (13) prior occasions without a change in behavior. As a consequence of your continuing unrepentant abusive behavior, we propose to terminate your employment with Allegany County after complying with the disciplinary procedures in our AFSCME labor agreement.
Nevertheless, K__ was not prevented from working and he continued to work several days after the incident until he was injured in a non-occupational accident. Thereafter, he remained on a disability leave of absence until his doctor cleared him to return to work.
On March 25, 2004, during the disability leave of absence, the Employer sent K__ a letter that notified him that at the conclusion of the disability leave “you will be suspended without pay pending completion of the disciplinary procedures in our AFSCME labor agreement.” The letter of suspension also contains an express reference to the February 3, 2004 “Notice of Discipline.” K__ was apparently cleared to return to work on April 3, 2004 and he began serving a suspension without pay on that day, according to a stipulation of the parties.
On April 8, a grievance was filed by K__ and processed by the Union over the [March 25th] “letter of suspension”. On April 19, the Union filed a “Demand For Arbitration” in which it described the grievance as: “K__ was wrongfully suspended without pay.”
The County does not contend that it has already discharged K__. Testimony from the County’s witnesses confirms that they made a decision, before February 3rd to discharge K__ subject to the outcome of the grievance procedure. The County intended to so notify him and the Union by the “Notice of Discipline”, dated February 3rd.
The labor agreement recites:
The employee and the Grievance Committee of Local 2574 shall be notified in writing of the Employer’s disciplinary action prior to the effective date thereof. If the employee and the Union disagree with the disciplinary action, they shall have the right to challenge it through the grievance procedure which shall be initiated at the second step. (Art. XVIII, second paragraph) * * *
Pending the final determination of the charges, the employee may be suspended without pay. ... If the employee is found guilty of the charges, a copy of the charges, his written answer as required by the grievance procedure, and the arbitrator’s award shall be filed.... (Art. XVIII, fourth paragraph)
The Employer proposed the following issue:
Does Allegany County have just cause to discharge K__ in accordance with Article XVIII of the CBA? If not, what shall be the remedy?
The Union proposed the following issue:
Did Allegany County have just cause to indefinitely suspend K__? If not, what shall the remedy be?
My reading of the contractual language convinces me that the contractual dispute resolution procedure was designed to bring a measure of finality and completeness to conflict resolution. I proceed with this concept in mind.
The March 25th suspension notice is not independent of the notice of proposed termination. First, the suspension notice makes an explicit reference to the prior “Notice of Discipline.” The “Notice of Discipline” refers to no other form of discipline other than a termination of employment “after complying with the disciplinary procedures in our AFSCME labor agreement.” Second, the March 25th notice of suspension states that the suspension is “pending completion of the disciplinary procedures in our AFSCME labor agreement.” The fourth paragraph of Article XVIII clearly anticipates that a suspension may be an interim disciplinary step prior to a final “determination of the charges.” Therefore, the suspension notice’s reference to “completion of the disciplinary procedures” is to the pending one that was initiated by the February 3rd “Notice of Discipline.”
Based on the foregoing facts, I must view the Grievance as a complaint about the notice of discipline and the suspension. It is well-established by decisions of arbitrators, that when the parties are unable to agree on the arbitrable issue, the written grievance will be the basis upon which to define that issue. I concur with that precedent. Therefore, I hold that this is the issue which is framed by the Grievance itself and it will be the issue to be resolved in this proceeding:
Was the Notice of Discipline dated February 3, 2004, proposing the termination of K__, and his suspension notice of March 25, 2004, for just cause? If not, what shall the remedy be?
K__, a Welder-Fabricator/Quality Assurance Inspector, has been employed by the County since April 25, 1977; over twenty-seven years. He is the only such classified worker employed by the County and he worked in the Friendship Garage with several other bargaining unit employees and supervisors, including N__, Equipment Supervisor. Although there is evidence of K__’s past disciplinary record, there has been no evidence that his work performance was anything other than satisfactory.
On the morning of December 16, 2003, a little after 8:00 AM, K__ took a break from his welding duties for a drink of water at the fountain located in a bay in the garage. Two other mechanics, Larry Lamphier and Keith Shafer engaged K__ in conversation at the water fountain for several minutes.
N__ walked from the office into the bay, intent on obtaining some information from one of the pieces of equipment, and observed what appeared to him as three employees taking an unauthorized, unscheduled break. As N__ walked by, K__ asked, “What’s going on?” to which N__ sarcastically replied, “Obviously, nothing.” K__ angrily shouted at N__ a stream of abusive and profane remarks overheard by the other employees. “I am sick and tired of your bugged-eyed look every time you come out here! You don’t think I deserve a break from that welding smoke? Well, fuck you!” N__ continued walking and did not respond. K__ followed after him and continued shouting, “fuck you, you fuck-faced mother fucker”.
The above is N__’s recollection of K__’s remarks. K__ concedes he said, “If you don’t think I deserve to get a drink of water after I gulped smoke with no exhaust for an hour and one-half you can fuck yourself.” K__ also testified, “I said more as he (N__) started to go away; I don’t recall the other words. I had just had enough of his nonsense and I probably said things I shouldn’t have.”
There was evidence offered by the Union that the noise of machinery and a compressor were so loud that other employees could not have heard K__. K__ admits that he was angry and that he shouted. The testimony of all the witnesses established that the other employees did hear K__ and that the noise level in the garage would not have prevented that at that time. Accordingly, I find that his comments were heard by other employees.
K__ insisted that there is no denying that he is very good at what he does. He views himself as a valuable employee possessing unique skills. K__ testified, “N__ accused me of being lazy and not doing my job. All he had to say when I greeted him was an appropriate reply like good morning”. N__’s reply, according to K__, was the flash point that produced his outburst.
K__ also points to a recent disagreement he had with N__ about how a snow plow should be repaired as an underlying provocative cause of his outburst. K__ wanted to use one approach for the repair and N__ wanted him to use another. K__ appealed to N__’s supervisor, David Roeske, who directed N__ to allow K__ to fix the plow the way he chose. K__’s method, however, failed and he was required to use a method not dissimilar from that advocated by N__, but modified by the plow’s manufacturer. In his statement at the conclusion of the hearing, K__ insisted on viewing this disagreement and N__’s sarcastic, two-word criticism as provocation for his outburst.
In addition to the two mechanics, K__’s outburst was partially overheard by another supervisor in the office, Floyd Sisson, Jr. and the Automotive Parts Person, a bargaining unit employee, Andrew Peet. They each testified that while they did not hear how the outburst began, they heard K__ loudly call N__ a “fucking asshole”.
There is substantial, credible testimony that profanity is commonplace in the shop talk of employees and supervisors in the Friendship Garage. However, except for a few incidents, for which employees were disciplined in the past, the record does not establish that there have been other incidents similar to the verbal abuse uttered by K__ to N__ on December 16th. It is not disputed that the employer has not disciplined employees or supervisors for merely engaging in profane or obscene shop talk.
The Employer’s Contentions
The Employer contends that K__ subjected Supervisor N__ to a barrage of profanity and insults and there were no mitigating circumstances that justified or excused K__’s conduct. It contends that the conduct was serious misconduct that took place in the presence of two bargaining unit employees. Shop talk that uses profanities is not why K__ was disciplined but rather his intentional, demeaning ridicule of a supervisor over a perceived supervisory criticism.
The Employer argues that the mitigating circumstances found to be present in the arbitral decisions cited by the Union do not in any way warrant upholding the grievance. It argues that the analysis in those cases and the application of the principles there actually support a finding of just cause here, particularly in view of K__’s extensive adverse disciplinary record over many years and the absence of any extenuating, mitigating circumstances, in the instant matter.
The Union’s Contentions
The Union contends that K__ does not deserve to either be terminated or suspended indefinitely for his behavior of December 16th; that is, just cause does not exist for either penalty.
It concedes that the CBA does not contain an explicit just cause standard but that such a standard has been self-imposed by the County in its “Disciplinary Manual” that was adopted by the Personnel Committee of County government on September 4, 1998. It argues that the Manual is controlling whether or not the Personnel Officer believes that or not. Applying the standards of the Manual shows that “just cause” does not exist, the Union contends.
The Union also contends that due to the common use of profanity in the speech of employees and supervisors in the Friendship Garage, such speech by K__ to N__ cannot be deemed “misconduct”. It points to evidence that other employees have not been disciplined for such speech and claims that the County’s supervisors engage in the same conduct and condone such conduct. It also notes that the County has taken no action to eliminate such common behavior which the County now says is offensive; nor has it published any rules or directives which warn of consequences for engaging in the offensive behavior.
The Union points to several factors which it says are mitigating circumstances that I should consider; first, the constant criticism over the two weeks before December 16th from N__ over how he wanted K__ to repair the plow and, second, N__’s facial expression and sarcastic criticism of K__ that was “provocative, insulting, intimidating and totally gratuitous to K__.”
The Behavior Was Gross Insubordination.
The credible evidence in the record, beyond any doubt, verifies the accusations contained in the Notice of Discipline of February 3rd. Moreover, K__ virtually admits his behavior in that incident. The County has met its burden of proof on that point. The question is whether it is “misconduct”, i.e. gross insubordination toward a supervisor or merely common shop talk prevalent in that workplace.
The evidence is convincing, and K__ admits, that his conduct toward N__ was willful and deliberate. Arbitrators have ruled on such abusive, profane speech in a variety of settings and concur, generally, that it is a form of blatant insubordination. Arbitrator Schmidt observed that while the workplace “is not a military barracks, neither is it a place for ... outbursts of defiant, insubordination accompanied by abusive and profane language.” Ross Gear & Tool Co., 35 LA (BNA) 293, 295-96 (1960). K__ clearly understood that N__ was verbally reprimanding or criticizing him for malingering on the job. K__ admitted that he was not “joking” when he verbally accosted N__. His outburst was an intentional response.
K__ had said, “Good morning, what’s going on?” In his own words, K__ stated he expected N__ to utter an “appropriate reply such as “Good Morning”. Instead, he received what he interpreted as personal criticism.
What were his “appropriate” choices of response? He could have forcefully explained what was going on and defended himself. He could have grieved the reprimand. He could have complained to N__’s supervisor (he had done so in the past). He could have chosen to ignore N__ and go back to work. He chose none of these routes. Instead, he followed N__ around the shop screaming insults and profanities at him in a personal and embarrassing barrage in the presence of other employees. This is not an “appropriate” response which an employer should be expected to condone and the County did not. I find that K__’s behavior was gross insubordination.
The Incident Was Not “Shop Talk”.
As for the argument that K__’s behavior and speech was no different than the common shop talk prevalent in the Friendship Garage, the record contains convincing proof of the contrary. The shop talk that was testified to utilized profanity as adverbs or adjectives rather than as abusive, deprecating speech. There is a difference. The County has recognized this in its prior suspensions of K__ and at least one other employee for use of abusive profanity toward a supervisor. It has not suspended employees for engaging in vulgar “shop talk”. The record supplies persuasive confirmation that K__’s behavior on December 16th was a unique, singular and unprecedented incident.
There is Insufficient Proof of Exculpatory Provocation.
In his personal statement at the end of the hearing, K__ persisted in blaming his outburst on the “trouble” N__ had been giving him by repeated objections to the manner K__ insisted on using to repair a snow plow and on N__’s two-word reprimand.
I find that N__ and K__ had an honest disagreement about how the plow should be repaired. K__ was the skilled welder, but it was N__’s responsibility to ensure that the plow was repaired properly. There is no evidence that N__ said or did anything that would have provoked a reasonable person, under similar circumstances, to engage in the same conduct as K__’s.
As it turned out, K__’s proposed repair method, the basis of the dispute, admittedly failed to work. Eventually, K__ fixed the plow using a method not dissimilar from that advocated by N__, but modified by the plow’s manufacturer. I find that N__’s conduct regarding the plow repair does not constitute provocation or justification for K__’s behavior.
Whether or not N__ was dead-wrong in his assessment of what the three workers were, or were not, doing when he entered the bay and observed them at the drinking fountain, that does not serve as justification for K__’s outburst. I find that N__’s expression of opinion or reprimand was made in good faith and was moderate, although critical and sarcastic in tone. His criticism of work performance, a supervisory function, does not excuse K__’s behavior here or justify the egregious response established in this record.
The Misconduct Was Punishable Without Prior Notice.
Arbitral precedents support the view that, in some circumstances, the absence of explicit written or verbal forewarning of the probable disciplinary consequences of misconduct is unnecessary because certain offenses are so serious that an employee could be expected to know the conduct is improper and heavily punishable. In other words, there is a communication or warning inherent in the seriousness of the misconduct. There are some activities that every employee should know will not be tolerated on the job. For misconduct of this kind, forewarning or foreknowledge is given by common sense rather than by any specific written rule or verbal direction.
Conduct which violates fundamental principles of the employer-employee relationship may be the basis of discipline without specific advance notice, such as grossly insubordinate conduct directed to a supervisor in the presence of other employees. K__ was aware that the County would discipline abusive speech to supervisors since he had been previously disciplined for such conduct. As I have previously found, the December 16th incident was “a unique, singular and unprecedented incident” in terms of its severity. Contrary to the Union, I find that shop rules and sensitivity training, though they have a value, are not a prerequisite for severe discipline in such circumstances as are in the record before me.
The “Disciplinary Manual” Does Not Define “Just Cause”.
I have carefully considered the Union’s argument and evidence that the Manual warrants finding an absence of just cause for discipline. I find that the Manual’s contents are advisory guidelines only, it does not purport to apply to the CBA and the parties have not applied the Manual by agreement or past practice to administration of the CBA. I also note that the CBA has an expressive absence of any just cause standard, yet the parties have authorized me to apply just cause to the issues before me.
Under these circumstances, I find that I am not constrained to observe the Manual’s guidelines, particularly since summary dismissal for a single incident of egregious misbehavior would not be in conflict with the terms of the Manual.
What Shall The Remedy Be?
I have found that K__ engaged in gross insubordination which his supervisor did not provoke and which was not otherwise justifiable under all the circumstances in the record.
The Union urges me to reinstate K__ with a full make-whole remedy; at the worst, to assess a five-day suspension without pay. Presumably, that would “protect management from a recurrence of any similar offense.” I do not concur with that view and find that the circumstances in this record constitute just cause to terminate the employment of K__. Further, the County’s order of March 25 of an interim suspension pending the outcome of this proceeding is contractually based and was neither arbitrary nor capricious.
To say that K__’s disciplinary record is “not unblemished” is an understatement. The uncontested exhibits of prior discipline convince me that K__ often has lashed out and acted imprudently, willfully, arrogantly and impetuously. The same evidence is persuasive that, though he should have known better than to engage in self-help contrary to law (instigating a work stoppage in violation of the State’s Taylor Law) and, in another instance, contrary to the CBA (inducing an employee to refuse to obey a supervisor’s order to work overtime) he acted anyway. It is particularly instructive that he admitted in his testimony that he removed a document from a supervisor’s desk, without the supervisor’s knowledge or permission, after K__ noticed that it was a report about his own use of compensatory time.
At the hearing, K__ appeared mildly embarrassed that he had gone to excess in his expression to N__. Yet, at no time has he uttered any sort of apology to N__ or other County officials or authorized the Union to do so. In his personal statement at the close of the hearing, K__ did not offer any form of apology; he did not appear contrite; he did not offer any assurances that if he were returned to his employment he would never repeat the offense in the future. Instead, he persisted in blaming N__ for “provoking” him.
I have weighed K__’s 27 years of employment and his satisfactory work performance on one side of the just cause “scale”. In the absence of any mitigating circumstances, his record of prior willful, insubordinate conduct, his failure to assure that his misconduct would not be repeated, and the likelihood that a lesser penalty will not act as a deterrent to a recurrence of insubordination, I find no just cause to return him to employment with the County.
1. There was just cause to issue the intermediate suspension of March 25 and, subsequently, to terminate the employment of K__.
2. The Grievance is denied in its entirety.