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Title: City and County of Honolulu and United Public
Workers
Date:
Arbitrator: Michael
Nauyokas
Citation: 1998 NAC 117
BEFORE ARBITRATOR MICHAEL F. NAUYOKAS
STATE OF HAWAII
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In the Matter of the Arbitration Between UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
and
CITY AND
Employer.
_______________________________________________________________ |
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ARBITRATION DECISION AND AWARD
Michael F. Nauyokas
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
Hearings were subsequently held on April 28, April 29, April 30, May
5 &
General,
Kris Nakagawa, Esq. and the
STIPULATED ISSUES
A.
Did the
Employer violate the Bargaining Unit 1 Agreement, when it terminated Randall
Oshiro effective
B.
If so,
what is the remedy?
BACKGROUND
Grievant was hired by the State of
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
On or about
Since Grievant had only taken the test once during the two-month
period, the Stadium Authority held a meeting with Grievant on
Grievant failed to get his certification by
On
On
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
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
On
On
On
UNION’S POSITION
The
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
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
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
On
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
After the
On
On
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, however, would not agree to the applicable provision of
the collective bargaining agreement that applied.
The
Section 11 of the CBA is entitled “DISCIPLINE.”
It states that employees shall
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
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
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
ARBITRATOR’S ANALYSIS
1.
Did the
Employer give Grievant forewarning or foreknowledge of the possible or
probable disciplinary consequences of Grievant’s conduct?
The
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
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.)
As indicated by the evidence presented in the Employer’s
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
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
The
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
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
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.”
The
When Grievant failed to obtain a valid and current certificate, he
was given an opportunity to tell his side of the story.
On
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
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
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
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
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
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:
STATE OF
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.
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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