28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: City and County of Honolulu and United Public Workers
Date: 
July 27, 1998.
Arbitrator: 
Michael Nauyokas
Citation: 
1998 NAC 117

 

BEFORE ARBITRATOR MICHAEL F. NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between 

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,

                                    Union,

            and

CITY AND COUNTY OF HONOLULU, DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES, Stadium Authority, 

                                    Employer.

Re:  Grievance of RANDALL OSHIRO

_______________________________________________________________  

)
)
)
)
)
)
)
)
)
)
)
)



 

 

                                                   

 

ARBITRATION DECISION AND AWARD

                                                                                    Michael F. Nauyokas
                                                                                    Attorney, Mediator & Arbitrator
                                                                                    733 Bishop Street, Suite 2300
                                                                                    Honolulu, Hawaii 96813
                                                                                    Telephone:  (808) 538-0553
                                                                                    Facsimile:    (808) 531-3860
                                                                                    Arbitrator


 

ARBITRATION DECISION AND AWARD

INTRODUCTION

            This grievance was presented by the parties to this Arbitrator for final and binding decision under a collective bargaining agreement (“CBA) dated July 1, 1993 June 30, 1995, between the United Public Workers, AFSCME, Local 646, AFL-CIO, and the State of Hawaii.  This CBA was subsequently extended and is still in effect per stipulation of the parties.  The parties agreed that the matter had duly proceeded through the steps of the grievance procedure, was arbitrable, and was properly before the arbitrator.  A motion was filed and hearing on the motion was held March 10, 1998.

            Hearings were subsequently held on April 28, April 29, April 30, May 5 & May 8, 1998, at the Leiopapa A. Kamehameha Building, Hearing Room 204, 235 S. Beretania Street, Honolulu, Hawaii.  The Employer was represented by the Deputy Attorney

General, Kris Nakagawa, Esq. and the Union was represented by Attorney Rebecca Covert, Esq.  Both parties submitted lengthy post-hearing briefs for the Arbitrator’s consideration prior to the rendering of this decision.  Both parties were fairly and adequately represented by their respective attorneys.

STIPULATED ISSUES

A.           Did the Employer violate the Bargaining Unit 1 Agreement, when it terminated Randall Oshiro effective August 29, 1997?

B.           If so, what is the remedy?

BACKGROUND

            Grievant was hired by the State of Hawaii, Department of Accounting and  General Services (“DAGS”), in October 1977, in an emergency appointment, Groundskeeper I position with the Central Services Division in its baseyard.  His employment was converted to a permanent appointment in April 1978.  Grievant  remained in that position until his promotion to Chemical Treatment Worker I at the baseyard in April, 1985.  In 1985, Grievant obtained a certification for Commercial Applicators of Restricted Pesticides.  In 1987, Grievant was placed in the position of Chemical Treatment Worker II (“CTWII”) by the Employer.  Grievant’s CTWII position  comes under the General Services Division of the Stadium as a separate unit.  Approximately four years after obtaining the certification, it expired.  Grievant remained  in the CTWII position until his termination, effective August 29, 1997.  His duties and responsibilities from 1987 to 1997 remained basically unchanged.  He received  satisfactory or above performance ratings and several letters of recommendation.

            At the end of November 1996, the Stadium Authority informed all of its  employees that were required to have licenses and/or certificates as part of their  minimum qualifications, to bring in a copy of their valid and current licenses/certificates  to be included in their personnel files  (Tr. at 48, 49, 58-64.)

            Starting in late 1996, the Stadium Authority began a process of verifying the status of licenses and certificates held by employees at the facility who held positions  where the license or certificate was a minimum qualification requirement.  (Tr. at 48.)   The Stadium Authority identified five positions that held this minimum qualification:  the chief engineer, the plumber, two electricians, and the chemical treatment worker II  positions.  (Tr. at 48, 49, 113, 135, 232.)  The Employer contends that it required all of these employees to have licenses/certificates as part of their minimum qualification and  to produce copies of such to the personnel office to be placed in the employees’  personnel file.  The other employees, who were also directed to submit their valid and current certificate/licenses in November and December 1996, immediately produced  them within a few months after the Employer’s directive.

            In early March 1997, Grievant’s immediate supervisor, Ralph Watabayashi (“Watabayashi”), told Deborah Ishihara (“Ishihara”), the Stadium Authority’s  administrative services officer, that Grievant did not have a current certificate.  (Tr. at  50, 96, 287.)  Ishihara then sent a memo to Watabayashi dated March 7, 1997,  instructing him that the Grievant was not to handle, mix or order chemical pesticides,  etc. until he regained proper certicication.  (Tr. at 52, 96; U23.)

            On or about March 7, 1997, Grievant was informed that he had to have a current certificate.  (Tr. at 170.)  The Stadium Authority provided Grievant with approximately two months to study and pass the Commercial Applicators of Restricted Pesticides Certification examination, which is administered and proctored by the Department of Agriculture every Friday, except holidays.  (Tr. at 422.)  Grievant then called and requested a packet from the Department of Agriculture.  (Tr. at 828.)  Grievant took the test on May 23, 1997.  (Tr. at 52, 54; U23.)  By the end of the month, the results were released and Grievant had not passed.  (Tr. at 54, 767.)  Grievant was then out for two weeks for an accident he was involved in.  (Tr. at 54, 55, 806, 807.)

            Since Grievant had only taken the test once during the two-month period, the Stadium Authority held a meeting with Grievant on June 17, 1997, to discuss the status of his certification.  (Tr. at 55, 56.)  Kenneth Tong, the Stadium Authority’s engineer, Milton Hirohata, the Deputy Stadium Manager, and Ishihara were present with Grievant at this June 17, 1997 meeting.  (Tr. at 55, 56.)  Grievant agreed to obtain his certification no later than August 17, 1997, and was told if he failed to obtain his certification by this date, he would be subject to termination for failing to meet his minimum qualifications.  (Tr. at 70, 793, 794.)  The Employer confirmed this agreement by letter dated June 17, 1997, to Grievant and restated, “Should you fail to regain your chemical treatment certification by August 17, 1997 or allow your chemical treatment certification to lapse again, you will be terminated from service for failure to meet the minimum qualification requirements of your position.  No future accommodation, i.e., temporary reallocation, etc., will be allowed.”  (ER 3, U24-1.)

            Grievant failed to get his certification by August 17, 1997; therefore, the Stadium Authority immediately recommended Grievant be terminated from his services as a Chemical Treatment Worker II at the Aloha Stadium for failing to meet his minimum qualifications. (Tr. at 78; ER 4; U25.)  In a letter addressed to Grievant dated August 18, 1998, the Employer stated:  “[Y]ou have the right to process a grievance in accordance with the provisions of the Bargaining Unit 01 Agreement.”  (U25-2.)

            On August 26, 1997, the Employer through Ms. Mary Pat Waterhouse, Deputy Comptroller, conducted a pre-termination hearing with Grievant.  (Tr. at 476; ER 4.)  Grievant was advised that he had the right to Union representation at this hearing, but the Union decided not to attend unless Grievant requested them to.  (Tr. at 80.)  Ms. Waterhouse read a summary of the allegations against the Grievant and gave him an opportunity to respond.  Twice during the pre-termination hearing Ms. Waterhouse advised Grievant that he had the right to grieve the termination under the CBA.

            On August 27, 1997, the Employer issued Grievant his termination letter effective August 29, 1997, for failing to meet the minimum qualifications for his job.  (ER 5; U29.)  Among other things the letter stated:  “If you disagree with this action, you may file a grievance in accordance with the bargaining unit 01 Agreement.”  (U29-2.)

POSITION OF THE PARTIES

            EMPLOYER’S POSITION

            The Employer contends that at the end of November 1996, the Stadium Authority informed all of its employees that were required to have licenses and/or certificates as part of their minimum qualifications to bring in a copy of their valid and  current license/certificates to be included in their personnel files.  (Tr. at 48-49, 58-64.) The Employer required all of these employees to produce their licenses/certificates, not   just Grievant.

            The Employer reminded Grievant several times that he needed to bring in his certification.  Grievant’s immediate supervisor, Watabayashi, orally reminded Grievant on several occasions in November and December 1996 that the personnel office needed a copy of his certificate for application of restricted pesticides and further inquired whether he had a copy of the certificate with him.  Each time Grievant responded that he did not have it with him.  (Tr. at 285-286.)  Grievant was reminded several times in January, February, and March 1997 by Watabayashi that he needed to bring in his certification and Grievant responded that he did not have it.  (Tr. at 286.)  Also, in January and February 1997, Ishihara reminded Grievant to bring his  certification in to update his personnel file.  (Tr. at 49, 50.)

            Finally in March 1997, Grievant told Watabayashi that his certification was not current.  (Tr. at 287.)  Ishihara issued a memorandum to Watabayashi on March 7, 1997, requesting that Grievant not be allowed to handle or mix chemical pesticides until his certification was current.  (Tr. at 51, 52; ER 8.)  Ishihara felt that because there had been a previous incident in which an employee, who was under Grievant’s supervision, had passed out while spraying chemicals at the Stadium, this request was reasonable and necessary to protect the employees and the Stadium Authority from any future harm and liability should another similar incident occur.  (Tr. at 51, 52.)

            Since Grievant’s certification had lapsed, the Employer informed Grievant that he needed a current and valid certificate in March 1997.  The Employer provided Grievant    with approximately two months to study and pass the Commercial Applicators of Restricted Pesticides Certification examination.  (Tr. at 54, 422.)  But Grievant only took the test once during this time and failed.  (Tr. at 790, 797.)

            The Employer then held a meeting with Grievant on June 17, 1997, and gave him an additional two months to obtain his certification. Grievant was given until August  17, 1997, and acknowledged he would be subject to termination for failing to meet his minimum qualifications if he did not obtain his certification by this date.  (Tr. at 70, 793,  794.)

            On August 18, 1997, the Employer held a meeting to determine whether the Grievant obtained his certification by the August 17, 1997 deadline.  (Tr. at 77, 78.)  Grievant informed the Stadium Authority that he did not get his certification because    there was a mix-up on the testing.  (Tr. at 77.)  Because Grievant failed to meet his minimum qualifications, Stadium Management recommended by letter to DAGS Comptroller, Sam Callejo (“Callejo”), that Grievant be terminated from his services as a Chemical Treatment Worker II (“CTWII”) at the Aloha Stadium.  (Tr. at 78; ER 4.)

            On August 26, 1997, the Employer conducted a pre-termination hearing to give Grievant an opportunity to offer facts or arguments as to why he should not be Terminated.  (Tr. at 476; ER 4.)

            On August 27, 1997, the Employer terminated Grievant by letter, informing Grievant his termination would be effective August 29, 1997, because Grievant failed to meet the minimum qualifications for the CTWII position.  (ER 5.)

            UNION’S POSITION

            The Union contends that for twenty years, Oshiro performed his duties and responsibilities at or above a satisfactory level as shown in his performance ratings.  (U12.)  He received letters of recommendation during his employment.  (U13.)  Grievant  oversaw all of the landscaping and tree trimming.  Grievant worked with the grounds keeping crew, another unit under General Services, to maintain unwanted vegetation.  (Tr. at 202.)  Grievant’s duties and responsibilities included applying chemicals, purchasing chemicals, and a program to properly store, handle, and dispose of chemicals.  (Tr. at 203.)  Grievant performed the duties listed in the class specifications and minimum qualifications for the class of CTWII.  (Tr. at 761.)  Grievant’s duties and responsibilities from 1987 to 1997 remained basically unchanged.  (Tr. at 760, 761.)

            In the early 1980s, Grievant was certified as a commercial applicator for two continuous terms.  (Tr. at 742.)  Grievant testified that he was first certified for Commercial Applicator of Restricted Pesticides, Category III-Ornamental and Turf Pest Control while he was working under the supervision of a horticulturist at the baseyard.  (Tr. at 760.)  Grievant was certified in 1981, while holding the Groundskeeper I position at the baseyard.  (Tr. at 760.)  He renewed his certification in 1985 and it expired in 1989.  (U17-1)   Grievant testified he did not renew his certification in 1989 because he was not working with restricted chemicals.  (Tr. at 763.)

            Grievant never used restricted chemicals at any time he was at the Stadium.  (Tr. at 764.)  Grievant testified that during his years at the baseyard, he learned he could use non-restricted chemicals that were safer than restricted chemicals and still do the job efficiently.  (Tr. at 764, 804, 805.)  When he came to the Stadium, he continued this practice and never used restricted chemicals.  (Tr. at 804.)  Grievant testified that the Department of Agriculture taught him to work with non-restricted chemicals first and if they did not do the job, only then should he go to something stronger.  (Tr. at 804, 805.)

            The Stadium Authority showed Grievant the class specification and position description for his position in the early 1990s.  Grievant never saw the 1978 rating supplement; further, it was never shown to him.  (Tr. at 763; E 9.)  When he took the CTWII position at the Stadium, he was not told that certification was a minimum requirement.  (Tr. at 764.)  Grievant did not recall the specifics of completing the civil service application form for the CTWII position.  (Tr. at 802.)  Grievant was certified, however, at the time he completed the job application.  (Tr. at 803.)

            Grievant only remembered his immediate supervisor, Watabayashi, speaking to him about his certification starting in January, 1997.  (Tr. at 764, 765.)  On or about March 7, 1997, Grievant was informed that he had to have a current certificate.  (Tr. at 170.)  When Grievant was told he was required to be certified, he called and requested a packet.  (Tr. at 828.)  Grievant waited for the Department of Agriculture to put the packet together and even then it was not ready when he went to pick it up on March 13, 1997.  (Tr. at 766, 830.)  Grievant took the test on May 23, 1997.  (Tr. at 52, 54; U23.)  Grievant did not take the exam sooner because he wanted to read the entire packet several times to feel comfortable about the exam.  (Tr. at 790.)  By the end of the month, the results were released and Grievant had not passed.  (Tr. at 54, 767.)

            On June 17, 1997, a meeting was held to discuss Grievant’s situation.  (Tr. at 54, 55; U24-1.)  Before the meeting, the Stadium representatives discussed putting Grievant on leave without pay, but decided it was too harsh given his years of service and decided to temporarily reallocate Grievant downward to a landscape or groundskeeper position.  (Tr. at 57; U24-1.)  The Stadium representatives discussed giving Grievant thirty days to become certified, but the Stadium Manager, Edwin Kenichi Hayashi (“Hayashi”), instructed them to give Grievant sixty days to comply.  (Tr. at 81, 82, 369.)

            The Stadium representatives then met with Grievant to discuss his failure to pass the test, and told him that if he was not certified within sixty days, he “might be considered for termination.”  (Tr. at 212.)  Grievant felt that this was fair because he felt he could pass in the time period given.  (Tr. at 794.)  Also, Grievant did not think termination was the only possible action the Employer would take if he did not pass. (Tr. at 794.)

            The Employer confirmed everything discussed in the meeting by letter.  (Tr. at 99, 100; U24.)  Although Grievant did not agree with everything stated in the letter, he felt that if he objected to the deadline given, the Employer would just “get on [him] more” at the Stadium office, so he did not say anything.  (Tr. at 794, 796, 806.)

            After the June 17, 1997, meeting, Grievant continued to study and take the exam, but because of the Department of Agriculture’s procedures, he was ineligible to retake the exam for fourteen days after he failed it.  (Tr. at 117, 766-785, 806; U32-49.) Subsequently, Grievant was out for two weeks because of a serious accident he had while on vacation.  (Tr. at 54, 55, 806, 807.)  Upon Grievant’s return to work, he took the exam on the next available Friday, June 20, 1997.  (Tr. at 806, 807.)  Grievant again failed the core, but passed his category.  (Tr. at 767; U19.)  On July 4, 1997, the testing center was closed for the 4th of July holiday.  (Tr. at 786.)  Grievant took the exam on the next Friday, July 11, 1997, and again failed the core but passed his category.  (Tr. at 786.)  On August 8, 1997, Grievant went to take the exam, but the instructor told him his name was not on the list so he could not take the exam.  (Tr. at 770.)  The instructor allowed Grievant to take the core exam only, which Grievant passed.  (Tr. at 770; U20.) Grievant called to sign up for the next available Friday, August 15, 1997, but it was a holiday and the department was not giving the exam.  (Tr. at 771.)  Grievant took the exam on the next Friday, August 22, 1997, and passed the category.  (Tr. at 771; U21.)

            On August 17, 1997, the Stadium Authority office did not receive confirmation from Grievant that he was certified.  (Tr. at 76.)  Another meeting was held with the Stadium representative and Grievant on August 18, 1997.  Ishihara asked Grievant if he was certified.  (Tr. at 77, 78.)  Grievant told Ishihara that he wasn’t because there had been a mix-up when he took the exam.  (Tr. at 77, 101.)  Ishihara went to Hayashi and said she might have told him that Grievant was not taking this seriously, but knows she told him that Grievant was given ample time to take the exam.  (Tr. at 140, 141.)  Hayashi decided to recommend termination.  (Tr. at 139.)  Grievant did not go to the Union before August 18, 1997, because he did not think it was necessary; he thought he could pass.  (Tr. at 833, 834.)

            On August 26, 1997, DAGS Deputy Comptroller Mary Pat Waterhouse (“Waterhouse”) conducted the pre-termination hearing with Grievant.  (E11.)  At the hearing, Grievant asked if he could have an extension long enough to learn the results of the category test he took on August 22, 1997.  (Tr. at 106; E11, U29-1.)  Ishihara did not recall Grievant asking for an extension at this meeting, and said that the Stadium Authority had already decided not to extend his deadline.  (Tr. at 107.)  Waterhouse said if she knew Grievant could perform and did perform all the tasks discussed in the August 27, 1997, termination letter, that would have changed her recommendation.  (Tr.at 553, 557.)  Waterhouse made a verbal recommendation to terminate Grievant to Matsuura, not Callejo.  (Tr. at 496.)  Waterhouse had no discussions with Callejo.  (Tr. at 496.)  She had one conversation with Matsuura after the pre-termination hearing.  Waterhouse learned that in fact Grievant had passed the category and would be certified.  (Tr. at 498, 501, 502.)  Waterhouse said she and Matsuura knew on August 26, 1997, that Grievant was certified prior to her recommending termination to Matsuura.  (Tr. at 512, 653.)

INITIAL ANALYSIS RE:  APPLICABLE CONTRACT PROVISION

            The Employer notified the Grievant either orally or in writing at least four times that he had a right to grieve his termination under the CBA.  Although the Employer initially took the position at the arbitration hearing that CBA did not apply, subsequently, the parties stipulated to the arbitrability of this grievance under the collective bargaining agreement.  Thus, the arbitrator must apply the CBA to the facts presented.

            The parties, however, would not agree to the applicable provision of the collective bargaining agreement that applied.  The Union contends that under Section 11.01 the just cause standard must be met by the employer.  The Employer contends Tthis section is not applicable, but does not cite any express provision that should be applied.  The Employer argues for a standard it admits does not expressly appear in the CBA.

            Section 11 of the CBA is entitled “DISCIPLINE.”  It states that employees shall be subject to discipline for just and proper cause.  In the text of the same section under the same heading, several references are made to “discharge.”  One can only conclude from the express language of this section that the parties must have intended that at least some discharges were a type of discipline and intended that section 11 apply.  Nowhere else are discharges dealt with under the CBA.  Nowhere else in the CBA are separations from employment expressly dealth with except for the section on Layoffs.  Clearly this section is not applicable.  This leaves only one possible section under the CBA that expressly supplies an applicable standard to be applied to discharges, and that section is Section 11.

            In light of the above and under the specific circumstances of this grievance, the arbitrator feels bound to apply the Section 11 standard to the facts presented.

APPLICABLE CONTRACT PROVISION

Section 11.  DISCIPLINE

11.01.   Regular employees shall be subject to discipline by the Employer for just and proper cause.  When such an employee is disciplined, he and the Union shall be furnished the specific reason(s) for the discipline in writing on or before the effective date of the discipline, except where the discipline is in the form of an oral warning or reprimand.  When an employee is orally warned or reprimanded for disciplinary purposes, it shall be done discreetly to avoid embarrassment to the employee.  In the event the need to impose discipline other than an oral warning or reprimand is immediate, the employee and the Union shall be furnished the reason(s) in writing within 48 hours after the disciplinary action is taken.  All written notifications of disciplinary actions involving suspension and discharge shall include the following:

a.            Effective dates of the penalties to be imposed and

b.            Details of the specific reasons.

It is provided however that in the case of a discharge, such employee shall be granted an opportunity to respond to the charges prior to the effective date of discharge.  (U1.)

ESTABLISHING JUST AND PROPER CAUSE

            To determine whether just and proper cause was established for the discharge of Grievant, the Employer must satisfy each of the following standards:

1.            The employee was forewarned of the consequences of his or her actions.

2.            The Employer’s rules are reasonably related to business efficiency and the performance the Employer might expect from an employee.

3.            An effort was made before discharge to determine whether the employee was guilty as charged.

4.            The investigation was conducted fairly and objectively.

5.            Substantial evidence of the employee’s guilt was obtained.

6.            The rule was applied fairly and without discrimination.

7.            The degree of discipline was reasonably related to the seriousness of the employee’s offense and the employee’s past record.

Enterprise Wire Co., 46 Lab. Arb. (BNA) 359, 362-65 (1966) (C. Daugherty, Arb.); State of Hawaii, 109 Lab. Arb. (BNA) 289, 291 (1997) (Nauyokas, Arb.) (Same collective bargaining agreement as the one at issue in the instant matter).

ARBITRATOR’S ANALYSIS

1.            Did the Employer give Grievant forewarning or foreknowledge of the possible or probable disciplinary consequences of Grievant’s conduct?

            The Union contends that Grievant was never told that he was required to have certification until 1997.  He was certified as a groundskeeper and CTWI, but both positions did not require certification.  (Tr. at 672, 673; U14-34-1 to U34-2.)  The Union is correct that the Employer had no evidence Grievant knew continued certification was a minimum requirement for his position prior to 1997.

            Subsequently, however, the Employer told Grievant numerous times that he needed to obtain a valid and current certification in order to perform his job duties as a CTWII.

            The Union contends that Grievant only remembered Watabayashi speaking to Hhim about his certification starting in January 1997.  (Tr. at 764, 765.)  Ishihara testified that Grievant was not told prior to March, 1997, to get certified but she assumed he should have expected it since he was being asked about certification before then.  (Tr.at 170.)  Before the meeting, the Stadium representatives discussed the option of leave without pay but decided it was too harsh given his years of service and instead decided to temporarily reallocate Grievant downward to a landscape or groundskeeper position.  (Tr. at 57; U24-1.)  The Stadium representatives discussed giving Grievant thirty days in which to become certified but at some point they discussed this with Stadium Manager Edwin Kenichi Hayashi (“Hayashi”) and at his instruction gave Grievant sixty days for compliance.  The Stadium representatives met with Grievant to discuss his failure to pass the test and become certified.  (Tr. at 57.)  They told him that if he was not certified within sixty days of the meeting date, he might be considered for termination.  (Tr. at 212.)  Grievant agreed to the conditions and said he thought it was fair.  (Tr. at 58.)

            The Employer contends that Grievant had more than adequate notice concerning the possible disciplinary consequences of his actions for failing to renew his certification for application of restricted pesticides.  Watabayashi orally reminded Grievant on several occasions in November and December 1996 that the personnel office needed a copy of his certificate for application of restricted pesticides and further inquired whether he had a copy of the certificate with him.  Each time Grievant responded that he did not have it with him.  (Tr. at 285, 286.)  In January 1997, Watabayashi reminded Grievant on several occasions to bring in his current certificate.  Subsequently, Grievant informed Watabayashi that he did not have it.  (Tr. at 286.) Grievant was also reminded in January 1997, by Ms. Deborah Ishihara, the Stadium Authority’s administrative services officer, to bring in his certificate to update his personnel file.  (Tr. at 49, 50.)  In February 1997, Watabayashi continued to remind Grievant at least two times to bring in his current certificate, and Grievant responded that he did not have it.  (Tr. at 286.)  Ishihara also reminded Grievant again at a February birthday party to bring in his certificate and Grievant told her that he would bring it in.  (Tr. at 50.)

            As indicated by the evidence presented in the Employer’s June 17, 1997 letter to Grievant, the Grievant was fully aware that he would be subject to termination should he not obtain his certification by August 17, 1997.  In this letter to Grievant, the Employer stated, “Should you fail to regain your chemical treatment certification by August 17, 1997 or allow your chemical treatment certification to lapse again, you will be terminated from service for failure to meet the minimum qualification requirements of your position.  No future accommodation, i.e., temporary allocation, etc., will be allowed.”  (ER 3, U24-1.)  Grievant acknowledged he received the letter and never objected to the agreement that he would be terminated if he did not obtain his certificate by August 17, 1997.  (Tr. at 794, 795.)

            In conclusion, Grievant understood that he needed certification and if he did not obtain a current certificate he would not meet the minimum requirements for his position of CTWII, and therefore would be terminated.  Grievant should have known, as many times as the Employer asked and reminded him about his certificate from the end of 1996 to August 1997, that the Employer felt this was a serious matter which needed to be resolved.  In its letter to Grievant dated June 17, 1997, the Employer even confirmed the disciplinary consequence that they would take if Grievant did not get his certification.

            This first consideration has therefore been satisfied by the Employer.

2.            Was the Employer’s managerial order reasonably related to (a) the orderly, efficient, and safe operation of the Employer’s business and (b) the performanhce that the Employer might properly expect of the employee?

            The Employer contends that without a person who is certified in the application of pesticides, it may be a violation of both state and federal laws if the Employer uses a restricted or non-restricted pesticide in a manner that is inconsistent with its labeling.  In addition to requiring the certification because it was a minim qualification for the Grievant’s position, the Stadium Authority held the position that the certification was necessary to protect not only the Grievant himself, but also his co-workers and the public as well.

            Mr. Robert Boesch of the Department of Agriculture testified that many employers often require their employees to maintain a certification for application of restricted pesticides as part of their minimum qualifications whether these employees utilize restricted pesticides or not.  Certification for application of restricted pesticides ensures that employees have up-to-date knowledge and competence in the application and handling of either restricted or non-restricted pesticides.  (Tr. at 419.)

            The Union contends that Grievant did not use and never had used restricted chemicals at the Stadium.  Actually, Grievant found it safer not to use the restricted chemicals.  Boesch agreed that a certificate was not required under the statute for a commercial applicator who did not use restricted chemicals.

            The Union further contends that the safety concern assumed by the Employer was never substantiated.  The Employer cited no rules or policies on safety except the class specification and job description of Grievant’s position, (U10, U11) and they did not require certification for all employees who handle chemicals.  The Employer admitted it had no evidence that the part-time employee’s accident would not have occurred if Grievant was certified.  (Tr. at 92.)  For ten years, Grievant worked without the certificate and satisfactorily cared for the Stadium grounds.  (U12.)

            Overall, the Employer felt certification was an important part of the CTWII position.  There had been a previous incident in which an employee, who was under Grievant’s supervision, had passed out while spraying chemicals at the Stadium.  The Employer’s request was reasonable to protect the employees and the Stadium Authority from any future harm and potential liability.  The Employer gave Grievant more than an ample amount of time to obtain a current certification.  The Employer had the right to properly expect Grievant to follow the direct order given by it.

            This second consideration has therefore been satisfied by the Employer.

3.            Did the Employer, before administering discipline to the employee, make an effort to discover whether the employee did in fact violate or disobey an order of management?

The Union contends that nobody from the August 18, 1997, or August 26, 1997, meetings called the Department of Agriculture, prior to Grievant’s discharge, to determine if there was a mixup in giving the test as Grievant had stated.  The Employer created a clear, bright line that Grievant either passed or did not pass by August 17, 1997, and no explanation would suffice.  The Union further contends that at the pre-termination hearing, the Employer made no effort to discover whether Grievant violated or disobeyed the order because the Stadium Authority representatives met before the meeting and agreed that no matter what, they would recommend termination.  (Tr. at 490, 491.)

            The Employer, however, made a full investigation into which employees had valid and current licenses/certifications.  The Employer made numerous inquiries, both through the Grievant’s supervisor, Watabayashi, and the Stadium Authority’s personnel office, relating to whether or not the Grievant had a current and valid certification.  After months of questioning, Grievant finally told the Employer that he had let his certification lapse.  On August 18, 1997, the Employer held a meeting to determine whether the Grievant obtained his certification by the August 17, 1997 deadline.  (Tr. at 77, 78.)Grievant informed the Stadium Authority that he did not get his certification because there was a mix-up on the testing.  (Tr. at 77.)

            This third consideration has therefore been satisfied by the Employer.

4.            Was the Employer’s investigation conducted fairly and objectively?

In order for the Employer to conduct a fair and objective investigation, “It is essential for some higher, detached management official to assume and conscientiously perform the judicial role, giving the commonly accepted meaning to that term in his attitude and conduct.  At said investigation, the management official may be both ‘prosecutor’ and ‘judge,’ but he may not also be a witness against the employee.”  Enterprise Wire Co., 46 Lab. Arb. (BNA) at 364.  Among others, the Employer assigned DAGS Deputy Comptroller Mary Pat Waterhouse to conduct the pre-termination heearing in this matter.  Waterhouse was not a witness in this matter.

            The Union contends that the Employer failed to conduct a thorough investigation because the investigation conducted by the Stadium Authority and the persons making the recommendation to the decision maker consisted entirely of asking Grievant if he had passed the test as of August 17, 1997, and his response, no.  (Tr. at 115, 116, 190.)

            When Grievant failed to obtain a valid and current certificate, he was given an opportunity to tell his side of the story.  On August 18, 1997, the Employer held a meeting to determine whether the Grievant obtained his certification by the August 17, 1997 deadline.  (Tr. at 77, 78.)  Grievant informed the Stadium Authority that he did not get his certification because there was a mix-up on the testing.  (Tr. at 77.)  During the pre-termination hearing, Waterhouse gave Grievant an opportunity to offer facts or arguments as to why he should not be terminated.  (Tr. at 476; ER 4.)  A fair investigation was conducted.

            This fourth consideration has therefore been satisfied by the Employer.

5.            At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

            On August 18, 1997, the Employer held a meeting to determine whether the Grievant obtained his certification by the August 17, 1997 deadline.  (Tr. at 77, 78.)  Grievant admitted that he did not get his certification because there was a mix-up on the testing for one of the dates on which he tested.  (Tr. at 77.)  Grievant never produced a valid certification as directed within the period allowed.  Therefore, the Employer reached the conclusion that Grievant failed to meet the minimum qualifications of his position by not having a current and valid certification by August 17, 1997.  Overall, Grievant violated and disobeyed an order of management by not obtaining his certificate by the deadline given by the Employer.  The Employer gave Grievant numerous opportunities to comply with their order.  Finally, when the Employer gave Grievant its final order to correct this violation by a certain date, Grievant did not obtain his certification and therefore missed the deadline given.

            This fifth consideration has therefore been satisfied by the Employer.

6.            Has the Employer applied its rules, orders, and penalties

evenhandedly and without discrimination to all employees?

            Starting in late 1996, the Stadium Authority began a process of verifying the status of licenses and certificates held by employees at the facility who held positions where the license or certificate was a minimum qualification requirement.  (Tr. at 48.) The Stadium Authority identified five positions that held this minimum qualification:  the chief engineer, the plumber, two electricians, and the chemical treatment worker II positions.  (Tr. at 48, 49, 113, 135, 232.)  The Employer required all of these employees to have licenses/certificates as part of their minimum qualification and to produce copies of such to the personnel office to be placed in the employee’s personnel files, not just Grievant.  The other employees, who were also directed to submit their valid and current certificate/licneses in November and December 1996, immediately produced them within a few months after Employer’s directive.  The Employer did apply its policies without discrimination.

            This sixth consideration has therefore been satisfied by the Employer.

7.            Was the degree of discipline administered by the Employer in thisparticular case reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee in his service with the Employer?

            The standard the parties bargained for is that the degree of discipline administered by the Employer in this particular case must be reasonably related to both the seriousness of the employee’s proven offense and the record of the employee in his service with the Employer.

            In Enterprise Wire Co., the question was addressed regarding when an employee commits a serious offense, but has an unblemished record over a long continuous period of employment, should the Employer be held “arbitrary and unreasonable” in its decision to discharge this employee?  Enterprise Wire Co. went on to state, “In general, the penalty of dismissal for a really serious first offense does not in itself warrant a finding of company unreasonableness.”  46 Lab. Arb. (BNA) at 365.

            With regard to the seriousness of the offense, the Employer contends that Grievant’s failure to maintain a valid and current certificate for application of restricted pesticides is a very serious matter which could potentially jeopardize the safety of not only the Grievant, but also his coworkers and the public as a whole.

            The Employer did feel that certification was an essential requirement for the CTWII position and because of this, felt that Grievant, by failing to obtain his re-certification by the Employer’s deadline, committed a serious offense.  The Employer gave Grievant many opportunities to obtain a current certificate, but Grievant still wasn’t able to become certified.  Although Grievant says he did not use restricted chemicals, his job description allows him to; therefore, he would absolutely need his certification.  Grievant’s record was unblemished but by not following a direct order, although given numerous opportunities by the Employer, Grievant potentially put the safety of not only himself, but everyone at jeopardy.

            The Union contends Grievant was not guilty of any heinous act.  Grievant performed his work satisfactorily for eight years at the Stadium and for another twelve years before that at DAGS’ baseyard.  Grievant consciously selected non-restricted chemicals because they were safer.  The Employer could have provided a much lesser penalty.  Also, the Employer would not even provide a nine-day, retroactive extension though it knew Grievant was certified after the final deadline set by the Employer.

            No evidence was admitted that Grievant intentionally or deliberately failed to follow the Employer’s order.  In fact, Grievant did pass his exams and become certified almost immediately after the deadline set by the Employer.  At worse, Grievant was negligent in not acting fast enough to get the required certification by the Employer’s deadline.  Progressive discipline is the generally accepted rule for most offenses when the parties have agreed to a just cause standard.  Grievant’s offense does not rise to the level of the type of offense, such as theft, intentional insubordination, or assaulting a supervisor, that would justify no progressive discipline being administered.

            With regard to the Grievant’s record in his service with the employer, Grievant was a long-term twenty-year civil servant with a satisfactory performance record, who received several letter of recommendation, and who had not been disciplined previously for not regaining his certification (except for warnings).

            Applying the doctrine of progressive discipline, considering the level of culpability of the offense he committed and the fact that Grievant was a long-term twenty-year civil servant with a satisfactory performance record, he was entitled to a more progressive yet less harsh penalty than termination first to correct his behavior prior to being terminated.  The termination of Grievant’s employment is thus reduced to a suspension without pay for the period he has been out of work with the Employer until one week forward from the date of this award.

AWARD

            For the reasons and grounds stated above, the Employer has not met all of its contractual obligations of just cause required to sustain the discharge of the Grievant.  Grievant’s termination is reduced to a suspension without pay for the period he has been out of work with the Employer until one week forward from the date of this award.

                                    DATED:  Honolulu, Hawaii, July 27, 1998.

                                                                                                                                                           
                                                                        MICHAEL F. NAUYOKAS
                                                                        Arbitrator
                                                                        733 Bishop Street, Suite 2300
                                                                        Honolulu, Hawaii  96813


STATE OF HAWAII                                      )
                                                                        )           SS
CITY AND COUNTY OF HONOLULU        )

            On this 27th day of July, 1998, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

                                                                                                                                                           
                                                                        Notary Public, State of Hawaii
                                                                        My Commission expires:                                       

 

 

       

  

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 



LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028