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Title: City of Eugene and AFSCME Local No. 1724
Date: April 15, 1996
Arbitrator: Allen Pool
Citation: 1996 NAC 107

IN ARBITRATION PROCEEDINGS PURSUANT TO

AGREEMENT BETWEEN THE PARTIES

 

AFSCME Local No. 1724                             )

                                                                       )

- and -                                                            )                       ARBITRATOR'S

                                                                      )

City of Eugene                                                               OPINION AND AWARD

                                                                       )

(Involving Grievant: Mary Jo Roberts)                                 APRIL 15, 1996

___________________________________)

 

 

            This Arbitration arises pursuant to the Contract between the American Federation of State, County and Municipal Employers (AFSCME) Local 1724, hereinafter referred to as the "Union" and the City of Eugene, Oregon, hereinafter referred to as the "City", under which C. ALLEN POOL  was selected to serve as Arbitrator through procedures of the OREGON EMPLOYMENT RELATIONS BOARD.  The parties agreed that the matter was properly before the Arbitrator and that his decision would be final and binding upon the parties.

            The Hearing was held in Eugene, Lane County, Oregon on February 28, 29 and March 1, 1996 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and arguments.  The witnesses were duly sworn and a tape recording was made of the Hearing.  The parties filed posthearing briefs in a timely manner with the Arbitrator.

 

 

 

APPEARANCES

 

On behalf of the Union:                                             On behalf of the City:

Margaret S. Olney, OSB No. 88135                     Sharon A. Rudnick, OSB No. 83083
SMITH, GAMSON, DIAMOND & OLNEY      HARRANG, LONG, GARY & RUDNICK
Attorneys at Law                                                   Attorneys at Law
2110 SW Jefferson Street, Suite 200                     101 E. Broadway, Suite 400
Portland, Oregon 97201-7712                               Eugene, Oregon 97401
(503) 229-0400                                                     (541) 485-0220

 

 

ISSUE

 

            Issue No. 1:  Did the City have just cause to suspend the Grievant, Mary Jo Roberts,                                          on June 14 and 15, 1995?  If not, what shall be remedy?

 

            Issue No. 2:  Did the City have just cause to discharge the Grievant, Mary Jo Roberts,                                          on July 12, 1995?  If not, what shall be the remedy?

 

 

RELEVANT CONTRACT PROVISIONS

 

Article 34

Discipline and Discharge

 

34.1            Discipline shall normally be progressive, beginning with oral reprimands and proceeding to written reprimands, suspension, demotion, or discharge. Alternate forms of discipline may be used when deemed more appropriate.  No one who has completed the initial probation shall be disciplined except for just cause.

 

34.2     If the City determines there is just cause for discharge, demotion, or suspension, at least five (5) calendar days prior to the effective date the City shall provide the employee with a notice of disciplinary action, the grounds for such action, and the right to respond either orally or in writing to the person taking the action prior to the effective date.  The employee shall be entitled to have a Union representative present at any pre-disciplinary meeting scheduled for the purpose of an oral response.  Unless withdrawn or otherwise resolved, the disciplinary action shall become effective at the end of the response period.

 

34.3            Protests of disciplinary action shall be made through the regular grievance procedure as set forth in Article 35.  An employee who has been discharged or suspended may elect to initiate a grievance at Step 3 of the grievance procedure.

 

 

 

Article 17

Hours -- Overtime

 

17.2  Overtime

 

      e.            Overtime hours worked shall be authorized in advance by a supervisor.  The working of overtime hours without authorization may result in discipline.

 

Article 35

Suggestion/Complaint/Grievance Procedure

 

35.3     Step 4B - Resolution of Grievances

 

     d.    The arbitrator shall render a decision within thirty (30) days.  The powers of the arbitrator shall be limited to interpreting the collective bargaining Agreement and determining if it has been violated.  S/he shall have no authority to alter, modify, vacate, or amend any terms of he collective bargaining Agreement, or to decide on any condition which is not specifically treated in this Agreement.  The decision of the arbitrator shall be final and binding on both parties.

 

Employee Handbook

 

Page 18 - Disciplinary Process

           

            Discipline of regular, non-probationary employees is normally progressive, beginning with an oral or written reprimand and proceeding to suspension, demotion, or discharge.  Alternative forms of discipline may be used when deemed more appropriate.  If a violation of a City policy or of work practices is intentional or of a serious enough nature, you may be suspended or discharged without prior disciplinary warnings.          

 

BACKGROUND

            The Grievant began her employment with the City in 1989 as a member of the Inspection Support Unit within the City's Code Compliance Department.  Her title was Permit Assistant I.    Though her job duties varied somewhat, they generally included phone reception, radio dispatch, clerical support for inspectors, record search on properties, tracking of permit status, and transcribing and distributing request reports.

            The space where the unit worked had an office for the supervisor, a radio/telephone reception room, and a small room divided into cubicles where the unit members worked.  Each member had a desk telephone with their own extension number.  The PC computer and printer in the office was shared by the unit members.  The office supervisor had her own computer. Individual unit members were assigned on a rotating schedule to work in the radio/telephone reception room.  The telephone in the reception room was set up to take incoming calls only.  No outgoing calls were to originate from that telephone

            The office supervisor at the time of the Grievant's employment in 1989 was Terry Fritz.  Ms. Fritz remained the office supervisor until she left the City's employment in August, 1994.  Under Ms. Fritz's supervision, the Grievant's performance, as indicated in her Performance Evaluations, was, in general, positive for the initial two to three years.  However, during this period of time, the evidence record did reveal a concern on the part of the supervisor, Ms. Fritz, regarding the Grievant's use of unauthorized overtime and incorrect time sheet entries.

There was a note made by the supervisor on Nov. 5, 1990 that the Grievant had worked overtime without pre-approval (City Exhibit # 3).  Then on Sept. 5, 1991, Ms. Fritz talked with the Grievant about (a) overtime, (b) call back, and (c) performance feedback.  With respect to the overtime, the supervisor informed her that she had been pre-approved for two (2) hours overtime for each pay period but to keep it at that or below (City Exhibit # 4).

            The Grievant's Performance Evaluation dated Oct. 14, 1991 was again generally positive, but the needs section of the evaluation made reference to some concerns.  One was stress management and it was suggested that the Grievant participate in the City's Stress Management class and avail herself of the City's Employee Assistance Program (EAP) as a means of dealing with stress. Two other issues are identified in the needs section: overtime and personal use of City equipment.  The supervisor's directives to the Grievant were clearly stated:

"Be sure to get the required pre-approval for overtime before working it.  Because of FLSA requirements -- it's the law!  We talked about this (on 9/5/91) and that I am not requiring you to come in on the weekends.  In fact, I prefer that you do NOT come in on the weekends at all.  I will pre-approve a 2.00 hour limit for every pay period and in the event that you need to go over that you will have to get authorization first.  Otherwise, please keep your overtime under the 2-hours.  I do appreciate you extra efforts....."

 

"I also would like to remind you that city equipment, e.g. the personal computer, is not to be used for personal work at any time, and especially, during the work hours.  If you need to take care of personal business at work, please sign out for 'break' and do it in the lunch room or an empty office.  If something unusual comes up, please let me know so we can work something out for you" (City Exhibit # 6).           

There was no 1992 Performance Evaluation for the Grievant.  The testimony was that there was no need and there was not time.

            Difficulties came to the Grievant with 1993 and part of 1992.  She experienced some personal and medical problems that had an effect on her work.  After under going surgery in October 1992, she experienced some resulting illness and medical problems.  Her duties also changed slightly during the period of April 5, 1993 to July 15, 1993 when she was on medical leave and light duty/reduced hours of work .   In her Performance Evaluation dated August 3, 1993, the City recognized her difficulties and were supportive of the Grievant's efforts to cope with her problems (City Exhibit #21). 

            In late 1993, the issues of overtime, time sheet entries, and personal use of city equipment and telephones emerged, again.  The Grievant was counseled on Aug. 19 and 20, 1993 about overtime and instructed to keep the overtime under 2 hours per pay period and not to abuse the security passbook by coming in late in the evenings or on weekends (City Exhibit # 5).  In a memo dated Sept. 9, 1993, Supervisor Terry Fritz summarized the issues

discussed with the Grievant.  In addition to the Grievant and Terry Fritz, Ms. Fritz's supervisor, Kathleen Matthews was also present at the meeting.  The City's expectations were discussed relative to the scope of her duties, a reduced work schedule, use of flex time, and some behavior patterns in need of change.   The two-hour cap on overtime per pay period was discussed and she was specifically told, again, not to come in on weekends or the "wee" hours of the night.   They also discussed expectations concerning getting to work on time and returning on time from lunch breaks and the morning and afternoon breaks.  The City's expectation regarding the use of telephones was made very clear with the following:

 "I also told you that using work time to make or receive personal phone calls is unacceptable.  If you receive a personal call during work time, please do your best to ask to call the person back when you are on your break.  Leave your desk area when you do this so that it doesn't appear that you are taking personal calls on city time.  I said taking or making personal calls while in the phone/radio room is unacceptable, and especially using the 'UCD' function while talking.  I understand that a limited amount of time for a personal call is acceptable and I understand that a certain amount of this can be tolerated.  You agreed to keep this to just a few minutes when needed (like making arrangements for our daughters) and otherwise taking care of personal incidentals on your own time during breaks or lunch time.

 

I feel that we have made expectations and agreements very clear during this discussion.  I will continue to monitor your performance, your schedule, and your work assignments as discussed.  I expect and hope to see immediate improvements in your work.." (City Exhibit #8).

            On Sept. 24, 1993, the Grievant submitted a request for leave-without-pay for the week of Sept. 26 - Oct. 1, 1993.  The leave was granted and she returned to work on Monday, Oct. 4th. (City Exhibit #10).

            On October 12, following her return from the week's leave, a meeting was held with the Grievant.  Present was Terry Fritz, Kathleen Matthews, and the division manager, Doug Eveleth.  The Grievant's performance at work for the past several months was discussed, its effect on the others, and the need to "get some resolution".  She was put on notice that if the behavior continued the City would be forced to start disciplinary action (City Exhibit #11). 

            Following the meeting and on the same day, the Grievant submitted a request for a four month leave without pay effective Oct. 1, 1993 and continuing to Feb. 7, 1994.  In the Grievant's letter, she stated:

"It was NEVER my intent for my personal circumstances to interfere with my job duties and /or performance, and I know that this period of time has been extremely difficult for all concerned.  Please know that I value each and every one of my co-workers, that I am looking forward to returning to my job, but believe a leave is necessary for the working relationships of my colleagues..... (City Exhibit # 12).

            The four-month leave was suggested by the City.  Kathleen Matthews, in a memo to Terry Fritz, stated:

"I sent Shirley the note that you gave to (the Grievant), which summarized the meeting you, (the Grievant), and I had, and she said that this was an excellent blend of compassion and firmness in regard to giving her clear expectations.  The next step, if she were to continue in her disruptive behavior at work, would be to make it very clear to her that she can't continue to be disruptive to the work unit.  If she doesn't willing agree to take more leave without pay, then you need to explain that any further unacceptable actions on her part (such as her constant tardiness, long breaks, personal phone calls during  work time, etc. ) will result in disciplinary action.  The next step would be an oral reprimand. (Refer to the Supervisor Guide for a sample documentation of this.) (Union Exhibit #4)

            The leave was granted on Oct. 13,1993 by Doug Eveleth, Division Manager.  In his letter to the Grievant, he reiterated what had been agreed to with the granting of the leave: " (1) you are expected to return to work on a full-time basis on February 7, 1994; (2) you will be responsible to perform your full scope of duties at that time; (3) you will be able to focus on your job responsibilities; and (4) this leave request will not be extended.  You have been through a lot and we all hope that the upcoming months will bring resolution to these circumstances" (City Exhibit # 13).

            At her request, the Grievant returned to work a week early on January 25, 1996.  In her letter of January 24 to the Grievant, Supervisor Terry Fritz  made it clear that the conditions of her return were still based on the discussion held on October 12, 1993.  The City's expectations were again made clear with respect to her performance on the job and she was put on notice: "If you cannot perform your job as described, or adhere to the work schedule, disciplinary action will result (City Exhibit #14).

            Following her return to work, the Grievant continued to have some problems at the job.  On March 16, 1994 she was counseled about and told again not to conduct personal business at work and not to use the City's computer for personal use.  She was again put on notice and warned that, "Any future behavior of this nature will be grounds for disciplinary action (City Exhibit #15).  In her Performance Evaluation dated April 15, 1994, she was warned again about her personal use of the computer, use of an official vehicle for personal use, personal telephone calls while at work, absenteeism, and the effect of her behavior on the morale of the others in the unit.  She was also given the following notice and warning:

"We have discussed many times what the scope of your job is, what the needs are and the requirements to meet them, and the areas that you have not fulfilled those needs.  You have been reminded, verbally asked, and reprimanded in writing of the seriousness of this behavior and violation of City rules.  It is good to have you back on the job and working full-time, but having you back with the same dynamics of when you took leave will surely lead to further disciplinary action (City Exhibit #16).

            The Grievant was given a Follow-up Performance Evaluation four months later on August 10, 1994.  With this evaluation, some improvement was noted and she was granted the one-step merit increase that had been denied four months earlier (City Exhibit # 18).

            The Grievant's supervisor, Terry Fritz, left the City in August, 1994.  Kathleen Matthews assumed the added duties of supervisor of the unit.  However, Ms. Matthews' office was in another part of the building and she was not able to perform the close supervision that Terry Fritz had done.  The next Performance Evaluation, dated Oct. 26, 1994, was conducted by Kathleen Matthews.  The evaluation was generally positive with some progress and improvements noted.  Ms. Matthews even used the term "comeback" to describe the Grievant's performance.

            The void caused by Terry Fritz's departure was partially filled with the placement of Shelly Carlson in Ms. Fritz's office as "Lead Person/Worker" in October, 1994.  Ms. Carlson was a participant in the City's Career Development Program.  In her role as the Lead Person, she was still a member of the bargaining unit and worked under the guidance of Kathleen Matthews. As such, she  had no responsibility for discipline or evaluation.  Five months later in March, 1995 Ms. Carlson applied for and was appointed supervisor of the office and the unit.

            While functioning as the Lead Person, one of Ms. Carlson's duties was to verify timesheets submitted by the unit members every two weeks.  She testified that in October of 1994, she began observing problems with the Grievant's timesheets with respect to start and ending times.  She testified the problems were frequent occurrences, generally every pay period and that she started having serious questions about the Grievant's conduct.  Because of such, she testified that she started keeping notes on the Grievant's in and out times (City Exhibit #25).  After she was appointed supervisor in March,  she and the Grievant, to verify the Grievant's daily starting time, agreed to use the CEINS time on the office computer.  When first turned on for the day, the computer automatically registers the time of day (City Exhibit # 26).

            In a letter dated May 30, 1995 , the Grievant was issued a Notice of Proposed Suspension for incorrect and false entries on her time sheet on six different occasions.  Included in the charges, were 18 instances where her arrival time at work was disputed by the building's security system logs.  An investigatory meeting was scheduled for June 5 where the Grievant would, with representation, have an opportunity respond to the

charges.  The letter stated that if substantiated, the misconduct was sufficient to warrant a two-day disciplinary suspension.  She was also warned that further offenses of a similar nature would be grounds for more severe disciplinary action, up to and including termination.  The Notice further informed the Grievant that, effectively immediately, she was no longer authorized to take any overtime or comp time and that the building's security system log would continued to be monitored along with the computer's CEINS to verify her daily start times.  If upheld, the suspension was to be effective on June 14 and 15, 1995 (City Exhibit #24).   The City's supporting evidence of the charges were contained in City Exhibits #27, 28, & 29.

            The Grievant replied to the charges in the suspension notice in a letter dated June 5th and which given to Supervisor Carlson at the investigatory meeting that day.   She acknowledged there were errors on her time sheets but that they were due to sloppy record keeping and errors in math.  She said she made mistakes, but has never intentionally falsified any records.  She also stated that while she had been in the habit of noting her in/out times on daily basis on her time sheets, she had not been keeping notes since January, 1995.  However, she claimed to have kept a daily log for the period of May 1-15, 1995. (Four of the alleged incorrect entries occurred during this pay period.)   Her response letter also stated that prior to the Notice of May 30th there had been no indication to her that any serious problem of that nature or any other nature existed concerning her or her performance (City Exhibit #30).  Following the investigatory meeting on June 5th, Supervisor Carlson upheld the proposed two-day suspension for June 14 & 15, 1995. The reasons given were (1) the time sheet discrepancies May 1-15, (2) the April 27, 1995 time sheet discrepancy, (3) the discrepancies revealed in the building's security log, and (4) subsequent incorrect time sheet entries for June 6th (City Exhibit #31). The Union then filed a grievance which proceeded to this Arbitration.

            The events leading to the Grievant's discharge began almost immediately.  Following the June 5, 1995 investigatory meeting, Supervisor Carlson interviewed two of the Grievant's co-workers and learned that the personal use of the telephone and the City's computer was of a possible magnitude greater than thought to be at the time (City Exhibit # 35 and 36).  Supervisor Carlson commenced an investigation which revealed a pattern of unacceptable conduct consisting of (1) frequent use of the computer for personal business, (2) over 100 personal long distance and local telephone calls from the office telephones during work hours (some were credit card calls and some were charged to the City), (3) continued entries of overtime on her time sheets without authorization, and (4) time sheet entries for time worked when she was actually conducting personal business on the City's telephones.  The Grievant was given a Notice of Proposed Termination on June 30, 1995 and an investigatory meeting was scheduled for July 7, but later changed to July 11,1995 (City Exhibit #34 and 42).  Following, the investigatory meeting the decision was made to uphold the termination with the termination being effective at the close of business on July 12,

1995.  The Union filed a grievance which proceeded to this Arbitration. 

 

POSITION OF THE CITY

Issue No. 1:

            The City had just cause to suspend the Grievant in June, 1995.  The suspension was warranted because of the repeated inaccuracies on her time sheets, all of which were in her favor.  She had an established pattern of misrepresenting time on her time sheets which allowed her to take public dollars that she did not earn.  There was a pattern of insubordination in that she also repeatedly ignored directives not to work overtime without prior authorization.   She also repeatedly ignored directives not use City equipment, the computer, for personal business and not to abuse the use of the City's telephones for personal matters.  This was serious misconduct and warranted serious discipline, at least at the level of suspension.  Therefore, the grievance should be denied.

Issue No. 2:    

            The City had just cause to discharge the Grievant in July of 1995.  She had an ongoing pattern of misconduct that violated City policy, procedures and expressed expectations.   The decision to discharge the Grievant was a result of four instances of  misconduct: (1) her use of City equipment for personal use; (2) her abuse of City telephones for personal business; (3) her repeated instances of overtime worked in violation of an express directive otherwise; and (4) her continued misrepresentations about time actually worked.  This was a pattern of misappropriation of public resources, a pattern of untrustworthiness, a pattern of insubordination, and serious breaches  of judgment all committed by an employee who understood the rules and repeatedly chose to ignore them.  There was no excuse or justification for her repeated misconduct which was sufficiently serious to warrant the penalty of discharge.  Therefore, the Grievance should be denied.

 

 

 

POSITION OF THE UNION

Issue No. 1:

            The City did not have just cause to suspend the Grievant in June of 1995.  The City failed to meet its burden of proving just cause for the suspension.  Progressive discipline, as required by the Collective Bargaining Agreement, was not followed. She was given no warning of the possible or probable consequences of her conduct.  The City did not make a reasonable effort to discover whether her time sheets were incorrect before deciding on the level of discipline nor did the City conduct a fair and objective investigation.  The suspension was not justified because the City failed to prove that the Grievant intentionally or knowingly falsified her time records.  The City also did not apply it's rules and impose its penalties evenhandedly.  The degree of discipline, two days suspension, was too severe.    Therefore, the grievance should be sustained.

Issue No. 2:

            The City did not have just cause to discharge the Grievant in July of 1995.  The City failed to meet the burden of proof.  The Grievant acknowledged that she violated City policies but denied doing so willfully and denied that she intentionally stole from the City.  She did not endanger others and was not knowingly dishonest.  The evidence established that the Grievant used poor judgment and had bad record-keeping skills.  The City did not follow progressive discipline.  Other employees have only been discharged for intentional and immoral conduct such as theft or after following progressive discipline.  The punishment was too severe.  There was cause for discipline but not for discharge.  Accordingly, the Arbitrator should find that the City did not have just cause for discharge.   The Grievance should be sustained.

 

DISCUSSION

            The parties agreed that the two issues should be considered separately.   However, they also agreed, and it was obvious to the Arbitrator, that the two issues were  very much related to each other.  To start with, in both grievances the Union's expressed contention was that the City violated Article 34.1 of the Collective Bargaining Agreement (Union Exhibit 25).  So, before addressing the separate issues, a few remarks about the language of Article 34.1 is in order.

            The language in Article 34.1 clearly required that an employee" who has completed the initial probation "shall not be disciplined except for just cause."  Whether the City had just cause to discipline the Grievant was not an issue in this Arbitration with respect to either of the two grievances.  With Issue No. 1, the Union conceded  there was no dispute that some discipline was warranted.  The Union's contention was that the degree of discipline was too severe.  Rather than a two-day suspension, the Grievant should have been given a written reprimand.   (Union Brief,  page 28).   In addition, the Grievant testified at the hearing that she did violate City policy and rules. 

            The same was true with regards to Issue No. 2.   Whether the City had just cause to discipline was not an issue.  The Union conceded that some discipline may have been warranted, but not summary discharge.  The Union argued that the Grievant's violations were not sufficiently egregious to warrant so severe a penalty (Union Brief, page 36).  Furthermore, the Grievant  testified that she knew that she was not supposed to do the things she did.  Therefore, the key question in this Arbitration, as put forth by the Union, was whether the City could avoid the progressive discipline requirement specified in Article 34.1 of the Agreement (Union Brief, p. 2).

             The language of Article 34.1 was clearly stated;  "Discipline shall normally be progressive, beginning with oral reprimands and proceeding to written reprimands, suspension, demotion, or discharge."   The presence of the word "normally" made it clear that the parties to the Agreement recognized  the existence of some exceptions to the progressive discipline

requirement.  It is generally recognized that some types of misconduct are so unacceptable at the workplace as to be exempt from the requirements of progressive discipline.  They  include, but are not limited to, such things as: fighting, insubordination, theft, under the influence, etc. The belief is that some types of behavior are so unacceptable that warning and notice are presumed.

            Additional recognition of exceptions to the Agreement's progressive discipline requirement were found in the City's Employee Handbook (City Exhibit #45, p.3 and Union Brief, p. 25).  The Disciplinary Process provision on page 18 of the Handbook stated: "If a violation of a City Policy or work practices is intentional or of a serious nature, you may be suspended or discharged without prior disciplinary."   As a matter of practice, each city employee is given a copy of the Handbook.

            Since the Union and the Grievant admitted to violating City policy and rules with respect to both Issue No. 1 and Issue No. 2,  the focus of this Arbitration can therefore be narrowed to the following key question:  Were Grievant's violations intentional or of such a severe nature that the City was justified in suspending her for two days on June 14 & 15, 1995 and discharging her on July 12, 1995 without issuing prior disciplinary warnings?   

            Issue No. 1:   The City's decision to suspend the Grievant was based on: (a) four time sheet discrepancies in May of 1995,  May 1, 3, 11, & 12;  (b) a time sheet discrepancy on April 27; (c) 18 instances of inaccurate arrival  times revealed by the building security logs; and (d) an additional inaccurate entry the day following the investigatory meeting.  The Grievant admitted that the entry on May 12 was an error, but explained the other May entries as "sloppy record keeping" (City Exhibit 30).  When questioned by Supervisor Carlson about the April 27 arrival time, the Grievant, after claiming she checked her notes, told Ms. Carlson that the recorded arrival time was correct.  Ms. Carlson gave her the benefit of the doubt at the time but later discovered from the building security logs that the building was not open at the time she recorded on her time sheet.  As to the 18 discrepancies revealed the building security log, the Grievant offered no explanation (City Exhibit 30).  For June 6, the day following the investigatory meeting where the charges were discussed, the Grievant recorded another inaccuracy on her time sheet concerning her lunch break that day.

            This many inaccurate entries on her time sheets could not be explained away as "sloppy record keeping" or honest mistakes.  She knew what the policy was, she had been counseled on numerous occasions,  she knew the concerns of the City, and yet she continued to record  inaccurate entries on her time sheets.  The only conclusion that can be drawn from this is that they were intentional violations of City policy, rules and directives.   The conclusion can also be drawn that the violations were severe in nature because she was knowingly taking wages for time not worked.

            The Union argued that progressive discipline should have been followed as required by Article 34.1 of the agreement and that the appropriate penalty should have been a written reprimand.  The Union's argument was not persuasive.  The City was justified in giving the Grievant a two-day suspension.   Once the City satisfied all the elements of proof that her actions were intentional or severe in nature, the question of an appropriate penalty became a closed issue.  An appropriate penalty is a management decision and arbitrators will not upset a decision reached by management without evidence that the penalty was excessive, unreasonable, or that management had abused its discretion.  Therefore, the City had just cause to suspend the Grievant on June 14 & 15, 1995.

            Issue No. 2:    The charges which led to the City's decision to discharge the Grievant were:  (a) the use of the computer for personal business, (b) abuse of the City's telephone system by making over 100 personal long distance and local telephone calls from her office telephone during work hours (some were credit card calls and some were charged to the City), (c) continued entries of overtime on her time sheets without authorization, and d) time sheet entries for time worked when she was actually conducting personal business on the City's telephones.  

            As with the suspension, the Grievant and the Union admit there was just cause to discipline but argued that discharge was too severe and that progressive discipline should have been followed by the City (Union Brief, p. 36).   Again, the Union's argument was not supported by the evidence record.  The Grievant testified at the hearing that she worked the overtime without authorization and that she knew she was not supposed to do it.  She admitted that she knowingly made numerous telephone calls while at work and that she also made calls after work, claiming overtime for those times.  (The record revealed abuse of the telephones over a period of several months with over 90 calls made in March and April of 1995.  City Exhibit 34)   The Grievant testified that she had very strong feelings at the time about prisoner rights and felt justified in making the calls.     The evidence record leaves no doubt that the violations by the Grievant were intentional.  The violations were also severe in nature.  The magnitude and number of violations with regards to the telephone calls made on behalf of the prisoner were, in the Grievant's own words, "inappropriate" and "excessive".   She also admitted to knowingly recording false entries on her time sheets for the purpose of collecting overtime for time not work but for time spent doing personal business.

            The Union's argument was, again, that the City should have followed progressive discipline as required by Article 34.1 in the Agreement   Some discipline was in order, but  discharge was too severe.   The Union's argument was not persuasive.  The City was justified in terminating the Grievant's employment with the City.  Once the City satisfied all the elements of proof that her actions were intentional or severe in nature, the question of an appropriate penalty became a closed issue.  The appropriate penalty is a management decision and arbitrators will not upset a decision reached by management without evidence that the penalty was excessive, unreasonable, or that management had abused its discretion.  Therefore, the City had just cause to discharge the

Grievant on July 12, 1995.  The Grievance is denied.

           

AWARD

 

ISSUE NO. 1:   The Grievance is denied.  The City had just cause to suspend                                       Mary Jo Roberts on June 14 & 15, 1995.

 

ISSUE NO. 2:   The Grievance is denied. The City had just cause to discharge                                       Mary Jo Roberts on July 12, 1995.

 

 

 

 

 

Date: _______________________                        ____________________________

                                                                        C. ALLEN POOL

                                                                        Arbitrator

 

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