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Title: City of Newberg and International Association of Firefighters, Local 1660
Date: August 8, 2001
Arbitrator: Eric Lindauer
Citation: 2001 NAC 117

IN THE MATTER OF THE ARBITRATION

                            BETWEEN

 

INTERNATIONAL ASSOCIATION OF      ) OPINION AND ORDER

FIREFIGHTERS, LOCAL 1660,             )

Union,        )    RE:  Grievance of Bryan Lee - -

and                                                 )      Disciplinary 

CITY OF NEWBERG,                              )         Suspension

Employer.  ) 

                               

        BEFORE

     ERIC B. LINDAUER

           ARBITRATOR

                              

                        

August 8, 2001

                                                 REPRESENTATION

FOR THE UNION:                                                                          FOR THE EMPLOYER:

Mike Tedesco                                                                                         Kenneth E. Bemis
Attorney At Law                                            BULLARD SMITH JERNSTEDT HARNISH
15050 SW 150th Court                                                 1000 SW Broadway, Suite 1900
Beaverton, Oregon 97007                                                          Portland, Oregon 97205


       NATURE OF PROCEEDING

The City of Newberg (hereinafter referred to as the "City" and/or the "Employer") and the International Association of Firefighters, Local 1660 (hereinafter referred to as the "Union") are parties to a Collective Bargaining Agreement (hereinafter referred to as the "Agreement"), which provides the employer has the right to discipline an employee for just cause. The City disciplined Firefighter Bryan Lee for insubordinate conduct. The Union filed this grievance contending the City disciplined Lee without just cause.

The arbitration hearing was held on March 2, and May 25, 2001, at City Hall in Newberg, Oregon. The Union was represented by it’s counsel, Michael Tedesco and the City was represented by it’s counsel, Kenneth Bemis.

At the commencement of the hearing, the parties stipulated the matter was properly before the Arbitrator. During the course of the hearing, each party had an opportunity to make opening statements, introduce exhibits, and examine and cross-examine witnesses on all matters relevant to the issue in dispute. At the close of the hearing, the parties agreed to submit their closing arguments to the Arbitrator in the form of written post-hearing briefs. Upon receipt of the post-hearing briefs, the hearing record was closed and the Arbitrator took the matter under advisement.


ISSUE

At the commencement of the hearing, the parties stipulated that the issue to be decided in this arbitration is as follows:

Did the City violate Article 11 when it suspended, without pay, Bryan Lee without just cause?  If so, what is the appropriate remedy?

                                RELEVANT CONTRACTUAL PROVISIONS

In the opinion of the Arbitrator, the following provisions of the Collective Bargaining Agreement and the City’s Rules of Conduct and Disciplinary Procedure are relevant in determining the issue in dispute:

   COLLECTIVE BARGAINING AGREEMENT

ARTICLE 11 - DISCIPLINE

11.1 - Standard

No employee shall be disciplined or discharged except for just cause. Oral or written warnings are not considered to be discipline and may not be protested through the grievance procedure.

11.4 - DUE PROCESS

In the event the City believes an employee may be subject to discipline greater than a written reprimand, the following procedural due process shall be followed:

a)   The employee shall be notified, in writing, of the charges or allegations that may subject them to discipline.

b)   the employee shall be notified, in writing, of the disciplinary sanctions being considered.

 


c)   The employee will be given an opportunity to refute the charges or allegations either in writing or orally in an informal hearing.

 

d)   At their request, the employee will be entitled to Association representation at the informal hearing.

11.5 - JUST CAUSE STANDARDS

For the purpose of this agreement, just cause shall be determined in accordance with the following guideline:

 

a)   The employee shall have some warning of the consequences of their conduct, unless the conduct is of such a nature that no prior warning is necessary in the eyes of a reasonable person.

 

b)   If a rule or order is the subject of the alleged misconduct, it must be reasonable and applied even handedly.

 

c)   The City must conduct a reasonable investigation.

 

d)   It must be determined, by a preponderance of the evidence, that the employee is guilty of the alleged misconduct or act.

 

e)   The discipline must be appropriate based on the severity of the misconduct or the actual or likely impact the misconduct has or would have on the employer’s operation.

 

f)   The employee’s past employment record shall be considered, if appropriate, based on the severity of the act.

ARTICLE 12 - GRIEVANCE PROCEDURE

* * *

12.2 - ARBITRATION


The arbitrator shall have the authority to issue subpoenas, examine witnesses and documentary evidence, administer oaths and affirmations, and regulate the course of the arbitration hearing.  The arbitrator shall have no power to modify, add to or subtract from the terms of this agreement and shall be confined to the interpretation and enforcement of this agreement.  The arbitrator’s decision shall be in writing and shall be submitted to the parties within 30 days following the close of the hearing.  The arbitrator’s decision shall be final and binding on the affected employee(s), the Association and the City.

 

Either party may request the arbitrator to issue subpoenas but, if issued, the cost of serving the subpoena shall be borne by the party requesting the subpoena.  Each party shall be responsible for compensation its own witnesses and representatives during the arbitration hearing.  The parties shall share the arbitrator’s fees and expenses.

CITY OF NEWBERG PERSONNEL RULES AND REGULATIONS

SECTION 3 RULES OF CONDUCT AND DISCIPLINARY PROCEDURE

(1)    RULES OF CONDUCT

(a)  The following rules are designed to ensure an efficient, orderly, safe and healthy workplace for all employees.  Should an employee, on the job, engage in any of the actions listed, it will be considered cause of disciplinary action, including suspension and discharge.

 

(A) Insubordination;

 

(B) Incompetence;

 

(C) Dishonesty during work.

* * *

(O) Inferior work, carelessness, or negligence resulting in waste or interfering with productivity;

* * *

(U) Harassment of any employee or member of the public, including, but not limited to sexual harassment.


                       SUMMARY OF FACTS

A. Background

The Newberg Fire Department provides fire prevention and protection services, ambulance services and water rescue services. The Department is organized with the Chief of the Fire Department, an Assistant Chief and Division Chiefs. The Newberg Fire Department has two stations, Station 2 in the City of Newberg and Station 21 located southwest of Newberg. The Fire Department is composed of 50 firefighters; 15 paid firefighters who are members of the Union, and 35 unpaid volunteers.

B. The Grievant


The Grievant, Bryan Lee, began his firefighter training as a volunteer at the Keizer Fire Department. In 1995 the Newberg Fire Department hired Lee as a firefighter/paramedic. Lee also serves as a shop steward for the Union. Since 1992 he has had EMT Basic, Intermediate and Paramedic certification. His 1999 and 2000 evaluations were satisfactory and the only corrective action taken against him was on August 13, 1996, when he received a Written Warning for dishonesty. In that incident Lee reported to work out of uniform knowing Department rules required him to report to work in uniform. At first he indicated that he did not know the rules but later Lee admitted that he did in fact, know the rules. The City issued Lee the Written Warning advising him that dishonesty is unacceptable. However, under the Agreement, Written Warnings are not considered discipline and the City expressly indicated in the Written Warning that it was “not the intention to discipline you on this matter at this time, taking into consideration your good work record. ...Future violations of work rules may lead to discipline, up to and including discharge.” (Emp. Exh 1).

B. July 10, 2000 Incident

On Monday, July 10, 2000, Lee and Dive Rescue Specialist Lawrence Dickenson, were staffing the first out ambulance. After delivering a patient to Providence Newberg Hospital (PNS), they were completing reports as required by state law. The law requires the paramedics to complete the reports before leaving the hospital unless they are released by a treating physician. While completing the reports, Lee and Dickenson heard a call from dispatch requesting dive team assistance for a possible drowning incident at Hagg Lake in Washington County.

In response to the dive team call, Dickenson, as a member of the dive team, asked Lee to return to the Fire Station with him so he could go out on the dive call. Lee informed Dickenson, a new career firefighter who was still in his probationary period, that first out ambulance does not respond to dive team calls. According to Departmental policy, first out ambulance only responds when a superior officer commands them to do so. Shortly thereafter, Cheryl Corum, a firefighter/paramedic who also works at PNH, walked by and assured Dickenson that Lee was right.

 


In a matter of minutes, Division Chief (“DC”) Frank Douglas called PNH and ordered Dickenson and Lee to return to Fire Station 2 so Dickenson could respond to the dive team call. Dickenson and Lee immediately departed to Fire Station 2. While en route, Lee received a call from Douglas informing him that Volunteer Captain Roger Gano would replace Dickenson as Lee’s partner on first out ambulance.

Upon Lee and Dickenson’s arrival at Fire Station 2, Dickenson prepared to leave with the dive team, while Lee went to the day room to finish his reports. Shortly thereafter, Captain Gano entered the day room to talk to Lee. Lee disapproved of the fact that Gano, a volunteer EMT Basic, was taking the position of an EMT Paramedic on first out ambulance. He told Gano it was nothing personal, it was a Departmental policy and union issue.

Departmental policy indicates the scheduling of first out ambulance shifts to be as follows, in order of priority:

1.                  Staff with career EMT-Paramedics

2.                  Staff with career EMT-Basics

3.                  Staff with volunteer EMT-Paramedics

4.                  Staff with volunteer EMT-Intermediates

5.                  Staff with volunteer EMT-Basics

 

(Emp. Exh. 8)


Gano felt Lee was acting in a hostile manner and felt intimidated so he called Douglas at Station 21 and reported Lee’s hostility. Douglas instructed Gano to return to the day room where there was a speaker phone so the three of them could talk it over. Douglas warned Lee to stop negatively impacting operations. Douglas then asked Lee if he understood. Lee responded that he did not think he was negatively impacting operations. Douglas again told Lee that he was being disruptive and that he was to stop. Again, Douglas asked if Lee understood. Neither Lee or Gano said anything further.

3. The City’s Disciplinary Action

On July 20, 2000, the City sent a letter notifying Lee of the disciplinary charges against him and of the scheduled Pre-disciplinary Hearing regarding the July 10, 2000 incidents. (Emp. Exh. 5). The City conducted the Pre-disciplinary Hearing on August 4, 2000, where Lee was given the opportunity to refute the allegations against him. On August 7, 2000, the City issued Lee a Written Reprimand and Suspension, suspending him for two 24-hour shifts without pay. (Emp. Exh. 9). On August 18, 2000, the city delivered the letter to Lee and after expressing his disagreement with the contents of the letter, Lee signed it. (Emp. Exh. 10).

The Union filed this grievance on August 22, 2000, claiming the discipline was not for just cause or applied evenhandedly and, therefore, was in violation of Article 11.1 and 11.5 of the Labor Agreement. As a remedy, the Union requests that the discipline be set aside and Lee reimbursed for his lost wages. The parties were unable to resolve the grievance through the grievance procedure and the matter was submitted to Arbitration.

 


CONTENTIONS OF THE PARTIES

The City

It is the position of the City that it had just cause to discipline Lee for violating the City’s Personnel Rules and Regulations and that a two-day suspension without pay is the appropriate penalty. In support of this contention, the City advances the following arguments:

First, Lee violated several provisions of Personnel Rules and Regulations and ORS 682.175. Lee’s conduct on July 10, 2000 was insubordinate, incompetent, interfered with productivity, contributed to reduced efficiency of others, created a hostile work environment, and constituted unprofessional conduct for emergency medical personnel.

Second, the City met the requirements for just cause as provided in Article 11.5 of the Agreement. Lee had clear warning concerning the Department’s expectations and of the consequences for not meeting those expectations, the City conducted a reasonable investigation, and the City proved by a preponderance of the evidence that Lee was guilty of the alleged misconduct.


Third, Lee’s version of the events is not credible because he has a pattern of dishonesty in his past. Lee has consistently misstated facts in several past incidents, including the incident in August, 1996, when Lee received a Written Warning for lying about whether or not he knew the Fire Department’s dress code requirements. 

Finally, in light of Lee’s prior disciplinary record, the discipline imposed by the City is neither unreasonable nor excessive. The City has consistently warned and counseled Lee about his attitude, seemingly to no avail, as Lee has continued to display disregard for authority.  

For all these reasons the City contends it had just cause to discipline Lee and his grievance should be denied.

The Union

The Union takes the position that the City did not have just cause to discipline Lee and even if it did, the penalty was unreasonable and excessive. In support of this contention, the Union advances the following arguments:

First, Lee’s conduct did not constitute insubordination when he acknowledged his disagreement with DC Douglas’s staffing decision to both Douglas and Gano. Lee was merely asserting his rights as shop steward for the Union, to question an assignment that clearly conflicted with Departmental policy.

Second, Captain Gano has a prejudice against the Union which caused him to be inflate and exaggerate Lee’s comments. Gano, admittedly, opposed the Union when it was formed and several witnesses testified at the hearing that Gano had made anti-union statements.


Third, Lee’s minor, irritative conduct was insufficient to support the City’s other charges of; incompetence, interference with productivity, causing or contributing to reduced efficiency of others, creating a hostile work environment, and unprofessional conduct for emergency medical personnel. The City failed to provide sufficient evidence in support of any of these allegations.

Finally, the discipline imposed by the City is excessive and unreasonable in light of Lee’s employment record. Contrary to the City’s assertions, Lee has no prior disciplinary action on his record, nor has Lee ever been disciplined.

For all these reasons the Union requests that the grievance be sustained, the discipline be removed from Lee’s file and that he be made whole for his loss of wages during the period of the disciplinary suspension.

OPINION

The issue in this case focuses squarely on whether firefighter Lee’s conduct on July 10, 2000 constituted insubordinate conduct and therefore justified the City’s imposition of a two day disciplinary suspension. The Arbitrator’s responsibility in this matter centers on two basic issues. First, has the City established, by a preponderance of evidence, that it had just cause to discipline Lee? Second, is the two day disciplinary suspension, under all the circumstances of this case, either unreasonable, excessive of discriminatory in nature so as to justify a modification of the penalty?


The Arbitrator has reviewed all of the evidence submitted in this case, as well as the arguments of counsel in their post-hearing briefs. On the basis of all the evidence and for the reasons set forth in this opinion, the Arbitrator has reached the following findings and conclusions.

I. JUST CAUSE

The first issue is whether Lee’s conduct on July 10, 2000, provided the City with just cause to initiate disciplinary action. The Labor Agreement in this case is unique with respect to just cause. Most collective bargaining agreements simply refer to just cause as the basis for disciplinary action without further definition. The parties in this case, to their credit, have defined the standards that are to be followed when determining whether the City has just cause to discipline an employee. Article 11, Section 5 of the parties’ Agreement specifically sets forth the Just Cause Standards for disciplinary action to be as follows:

a)   The employee shall have some warning of the consequences of their conduct, unless the conduct is of such a nature that no prior warning is necessary in the eyes of a reasonable person.

 

b)   If a rule or order is the subject of the alleged misconduct, it must be reasonable and applied even handedly.

 

c)   The City must conduct a reasonable investigation.

 

d)   It must be determined, by a preponderance of the evidence, that the employee is guilty of the alleged misconduct or act.

 


e)   The discipline must be appropriate based on the severity of the misconduct or the actual or likely impact the misconduct has or would have on the employer’s operation.

 

f)   The employee’s past employment record shall be considered, if appropriate, based on the severity of the act.

In reaching a decision as to the existence of just cause, the Arbitrator has applied each of these standards to the facts in this case.

A. Lee Had No Warning Of His Conduct

The first provision of the just cause criteria is one of prior warning. Section 11.5(a) of the Agreement requires the City to warn employees of the consequences of their conduct unless the conduct is of such a nature that no prior warning is necessary “in the eyes of a reasonable person.” The City contends Lee’s conduct was so “egregious” that in the eyes of a reasonable person, no prior warning was necessary, and that Lee had already been sufficiently warned in his 1999-2000 Performance Evaluation. The Arbitrator disagrees with both contentions.


First, in the opinion of the Arbitrator, Lee’s conduct on July 10th, was not so egregious that it relieved the City of its duty to specifically warn Lee of the consequences of his conduct. In the Arbitrator’s view, Lee was simply questioning the appropriateness of the decision to staff the first out ambulance with a volunteer EMT Basic instead of an EMT Paramedic. The established policy of the Fire Department required, when possible, that the first out ambulance should be staffed with two paramedics. (Emp. Exh. 7). The last of the five options in the policy is to pair a EMT Paramedic with a volunteer EMT Basic. Division Chief Douglas paired Captain Gano, a volunteer EMT Basic with Lee on first out ambulance. Lee had real and legitimate concerns over staffing of the first out ambulance, so he questioned the appropriateness of the pairing and indicated to Douglas that he wanted to “talk about this” with Douglas. On the basis of this record, the Arbitrator concludes this did not constitute “egregious” conduct.

Second, the statement on Lee’s 1999-2000 Performance Evaluation cannot be advanced as the basis of a sufficient warning to Lee that simply questioning an assignment would result in a Disciplinary Suspension. On Lee’s Performance Evaluation, the City listed as an “improvement area”, the following statement: “Be very careful that the things you say and do, ‘benefit the team’”. (Emp. Exh. 18). This statement clearly was not intended to serve as a warning for disciplinary purposes. It was a suggestion for personal improvement. A warning in the context of disciplinary action requires much more.

  The written warning generally includes a statement of   the conduct, including dates and times; a recitation of the specific rule or policy that was violated; an acknowledgment of receipt by the employee; and an indication of the next level of discipline.

 

Norman Brand
                                                                                        
Discipline and Discharge  
                                                                                        
In Arbitration,
   
                                                                                      (1998), p. 63.

 


The Arbitrator concludes Lee’s response to Douglas failed to constitute the egregious conduct required, under the Agreement, to relieve the City of its duty to warn Lee of the consequences of his actions. Thus, Lee was entitled to a Written Warning before the disciplinary suspension was imposed. The City failed to sufficiently warn Lee that questioning a staffing assignment would lead to a Disciplinary Suspension. Therefore, the City failed to satisfy the warning requirement set forth in Section 11.5(a) of the Agreement.

B. If A Rule Or Order Is The Subject Of The Alleged Misconduct, It Must
                 Be Reasonable And Applied Even
Handedly

This just cause standard is found not to be applicable to the circumstances of this case.

C. The City Conducted A Reasonable Investigation

It is undisputed the City conducted a reasonable investigation prior to disciplining Lee. The Department interviewed all who were involved in, or observed the incidents in question, then adequately notified Lee of the allegations against him. The City also conducted its own pre-disciplinary hearing. From all indications the hearing was fair and provided Lee with an opportunity to explain his conduct on July 10, 2000. The Arbitrator finds that the City, in compliance with Section 11.5(c) of the Agreement, conducted a reasonable investigation before taking disciplinary action against Lee.


D. The City Failed To Determine By A Preponderance Of The             Evidence That Lee Is Guilty Of The Alleged Misconduct

Section 11.5(d) of the Agreement requires the City to determine by a preponderance of the evidence that Lee was “guilty” of the alleged misconduct. The City centered most its attention on the allegation that Lee’s conduct on July 10th constituted insubordination. There are six basic requirements for an insubordination claim:

  First, an employee’s refusal to work or obey must be knowing, willful, and deliberate. Second, the order must be both explicit and clearly given, so that the employee understands both its meaning and its intent as a command.

Third, the order given must be both reasonable and work related. Fourth, the order must have been given by someone with appropriate authority, and the employee must have understood that person to possess that authority. Fifth, the employee must be made aware of the consequences of failing to perform the work or follow the directive. Finally, if practical, the employee must be given or have time to correct his purportedly insubordinate behavior.

Norman Brand
                                                                                        
Discipline And Discharge
                                                                                         In Arbitration
                                                                                         (1998), p. 156

The City contends that although the facts in this case do not technically satisfy each requirement for insubordination, Lee’s overall conduct manifested a fundamental disregard for the Fire Department’s  command structure and, therefore, warrants a finding of insubordinate conduct.


The City bases it’s allegation of insubordination on two specific incidents, both occurring on July 10, 2000. First, while Lee and Dickenson were en route to Fire Station 2 from the hospital DC Douglas called and informed Lee that Gano would cover for Dickenson on first out ambulance while Dickenson responded to the dive call. Lee’s response to DC Douglas was insubordinate. Second, the City contends Lee was insubordinate during his conversation with Captain Gano in the day room at Fire Station 2.

The Agreement requires the City to establish, by a preponderance of the evidence, that Lee’s conduct constituted insubordination. In the opinion of the Arbitrator, the City failed to meet this burden.

1. The First Alleged Incident of Insubordination


In the first incident, DC Douglas called Lee, on his return to Fire Station 2, to inform him that Gano would be his partner on first out ambulance when Dickenson left on the dive call. Lee responded “Gano?”, DC Douglas said “Yes, Gano”. Lee then said “We’re going to talk about this”, DC Douglas responded “Now is not the time”, again Lee replied “We’re going to talk about this”. (Emp. Exh. 5). This was the extent of their conversation. The City contends Lee’s repeated insistence to DC Douglas that, “We’re going to talk about this”, constituted insubordination. DC Douglas described Lee’s tone during their conversation as “intimidating, threatening, defiant and uncooperative.” (Un. Exh. 6). At the hearing, Lee testified that he had serious concerns regarding staffing the first out ambulance with a volunteer EMT Basic (Gano), instead of another career EMT Paramedic. Both from a safety standpoint, and as a shop steward for the Union, Lee questioned Douglas’s decision on staffing the first out ambulance.  

The critical issue in this exchange between DC Douglas and Lee is whether Lee’s questioning of Douglas’s assignment of Gano to first out ambulance constituted insubordinate conduct. Although Lee has a propensity to challenge Departmental authority, his questioning of DC Douglas on July 10th, did not, in this Arbitrator’s view, constitute insubordination. There was a direct order given by DC Douglas. It was clearly given and understood by Lee. However, the real issue is whether Lee, in fact, disobeyed the order. The evidence, in the Arbitrator’s view, established that he did not. Lee’s response, “We’ll talk about this later” was not a refusal to comply, rather, it was a statement questioning the appropriateness of pairing Gano, a volunteer EMT Basic, with Lee on the first out ambulance. Lee knew that Departmental policy required first out ambulance to have two EMT Paramedics whenever possible. Assigning a volunteer EMT Basic is the last of five options listed under the policy. (Emp. Exh. 7).

The burden of proof requires more than what took place here to establish a basis for insubordinate conduct. From this record, the Arbitrator concludes Lee had legitimate concerns over the staffing of first out ambulance. Lee  voiced those concerns to DC Douglas. He did not refuse the Division Chief’s order. In the absence of such a refusal, the Arbitrator concludes Lee’s conduct fails to satisfy the critical element for insubordination – – actual refusal to perform the order by Lee.


2. Second Alleged Incident Of Insubordination

The second allegation of insubordinate conduct took place after Lee returned to the Fire Station. Lee was in the day room completing his reports when Gano entered and asked Lee if he knew that Gano was being assigned to first out ambulance to cover for Dickenson. Lee said “I’ve heard”, Gano asked “Do you have a problem with that?”, to which Lee replied “Yes, I do. This is bullshit!”. Lee proceeded to explain to Gano that it was nothing personal, it was just his concern regarding the staffing requirements of the first out ambulance and the use of a volunteer in place of a union EMT Paramedic. Lee further stated that he knew of at least one EMT Paramedic at Station 21 who could cover the first out ambulance, which would have then complied with Departmental policy.

Gano recalls the conversation differently. Gano testified Lee “immediately blew up and said that this is ‘bullshit, this is a union position’”. Gano further claims that Lee credited his frustration to the fact that a volunteer took a union position. (Un. Exh. 2).

The Arbitrator acknowledges this conflict in testimony and concludes Lee’s recollection of the conversation is the more credible. This conclusion has been reached principally on the testimony of James Riggleman. Mr. Riggleman, a volunteer firefighter who has worked at the Newberg Fire Department for 12 years, testified that he overheard the conversation between Lee and Gano. Riggleman remembered the conversation going as follows:


I over heard a bit of the conversation, with Bryan [Lee] stating that this is bull, and that first out is a Paramedic Ambulance, and needs to be staffed with paramedics. That it was nothing personal against Roger, but it was a union thing. That there was at least a paramedic at the other sation, and that it would take only a few minutes for them to come to station 2 to cover the ambulance, and leave the rescue covered by Basic’s.

(Emp. Exh. 6).

At the hearing, Riggleman testified Lee’s reaction to Gano was “not offensive, threatening or intimidating”. In the Arbitrator’s opinion, Riggleman’s testimony was straightforward and believable. Although Riggleman was put in an uncomfortable position, his testimony was found to be credible and without bias. Therefore, the Arbitrator accepts his version as the most accurate account of the conversation between Gano and Lee.

The City asserts Lee’s attitude toward Gano was hostile and uncooperative. The City claims Lee attempted to “show-up” DC Douglas and intimidate Gano, both of whom held higher Departmental rank than Lee. The City also cites Lee’s 1999-2000 Performance Evaluation which warns him to “be very careful that the things you say and do benefit the team.” (Emp. Exh. 18). The City argues this incident illustrates Lee’s blatant disregard for the “warning” on his evaluation. The City further argues that direct disobedience is not always necessary in order for defiant conduct to constitute insubordination. In both incidents the City asserts Lee’s conduct clearly demonstrated disregard for the Fire Department’s command structure. The Arbitrator, however, disagrees.


In reaching a conclusion on this issue, the Arbitrator has taken into consideration the anti-union bias of Captain Gano. Captain Gano clearly had a prejudice toward Union members. This was evidenced by the testimony of several witnesses who testified Gano made derogatory comments regarding the Union and treated union firefighters with less respect than non-union firefighters. (Dickenson, Mount, Riggs, Campbell). Gano admitted at the hearing, that he was “against the Union at the time it was formed”. From this record, the Arbitrator has concerns regarding the validity of Captain Gano’s testimony as it related to Lee’s conduct.

Finally, the City has not taken into consideration the fact that Lee is a shop steward, and as such, his duties include consulting with management concerning staffing issues raised during the course of his work. In questioning DC Douglas, Lee was merely asserting his rights as Shop Steward to question an assignment. DC Douglas issued an order that was in conflict with known Departmental policy. Lee questioned the decision. He did not defy his superior officer’s order. It is undisputed that during his conversation with DC Douglas, Lee agreed to talk about the issue later. In fact the only reason the issue was raised again in the day room was because Gano asked Lee if he “had a problem” with it. Lee answered honestly and explained his reasons for questioning the assignment. Although Lee could have chosen a more tactful approach, his actions fall well short of the defiant conduct necessary to constitute insubordination. 


3. The City’s Allegation of Incompetence

The City contends Lee acted in an incompetent manner when he failed to respond to the initial dive call to Hagg Lake. On July 10, 2000, Lee and Dickenson were assigned to the first out ambulance and were filling out reports at the hospital when they heard the dive call dispatched. Lee, the more experienced paramedic of the two, made the decision to stay, unless he was ordered to do otherwise by a superior officer. Approximately two minutes later, DC Douglas called and they responded by returning to Fire Station 2.    

The City argues Lee should have recognized the fire department’s staffing shortage, due to the number of emergency calls the department was handling on that particular day. In the City’s view Lee should have responded immediately to the dive call, knowing that Dickenson was a certified boat operator for the Dive Rescue Team. In support of this contention, the City refers to an earlier incident the same day in which Lee immediately responded to a barn fire. On receiving the call out for the barn fire, Lee obtained verbal approval from the attending physician at the hospital and, although he was on the first out ambulance, he immediately responded to the scene without any orders from a Commanding Officer. The City contends Lee should have responded similarly to the Hagg Lake dive call and his failure to do so demonstrated incompetence.


Although the City’s contention has some merit, the factual circumstances are different. As Lee stated in the pre-disciplinary hearing, the City’s policy dictates that first out ambulance does not respond  until ordered to do so. Lee pointed out that the Fire Department has no written policy concerning first out ambulance’s role during dive calls, particularly those outside the City’s primary response area. Past practice establishes that upon dispatch of dive calls, first out ambulance does not respond until ordered to respond. Lee stated that he has never responded to a dive call, nor has he seen others respond to a dive call while staffing first out ambulance. (Emp. Exh. 8). At the hearing, the testimonies of Dale Mount and Cheryl Corum supported Lee’s statement. Mount testified as follows:

“On a dive rescue call, first out ambulance cannot go, they must wait for an order. I would have called for authority to leave to Hagg Lake.”

Similarly, Corum testified:

“Lee did nothing inappropriate in telling Dickenson they could not respond to the dive call. First out only goes when directed to go; if they are not dispatched to the emergency, they cannot go.”

Admittedly, Lee is unclear on the policy for dive calls; the reason being, the Department has no policy for first out ambulance’s role during dive calls. Consequently, Lee acted based on his knowledge of the Department’s past practice for first out ambulance in response to dive calls.


On the basis of this record, the Arbitrator concludes that in the absence of a clearly defined policy governing the responsibility of the first out ambulance to a dive call, the City cannot contend that Lee acted in a manner that could be characterized as incompetent. Particularly where, as in this case, the dive call was outside the primary response area of the Newberg Fire Department.

Lee’s earlier response to the barn fire was in accordance with written policy. Unlike dive calls, the City clearly maintains a policy for fire and emergency medical calls. Lee clearly understood those policies and in accordance with them, he immediately responded to the barn fire without orders from a Commanding Officer. Therefore, the Arbitrator concludes that when Lee waited for orders before responding to the July 10, 2000 dive call, he was not found to be acting in an incompetent manner.

4. Lee’s Conduct Did Not Interfere With Productivity


The City alleges Lee’s conduct interfered with Departmental productivity in violation of the City’s Personnel Rules and Regulations, Section 3(1)(a)(O). However the City misconstrues the language in this Section of the Personnel Rules and Regulations. The Section reads “(O) Inferior work, carelessness, or negligence resulting in waste or interfering with productivity.” (Emp. Exh. 9). The intent of this section is to include inferior work, carelessness or negligent behavior that results in either waste or interference with productivity, as punishable conduct. The City takes the “interference with productivity” provision out of context in this allegation. There was no evidence that supports a finding that Lee’s conduct on July 10th could be characterized as inferior, careless or negligent.

5. Lee’s Conduct Contributed To The Reduced Efficiency Of Others 

The City claims Lee’s conduct throughout the day of July 10, 2000, contributed to the reduced efficiency of others, in violation of the City’s Personnel Rules and Regulations, Section 3(1)(a)(P). The City refers to three specific incidents where Lee contributed to reduced efficiency of others. First, when Lee did not immediately respond to the Hagg Lake dive call; second, when Lee questioned DC Douglas’s assignment of Captain Gano to first out ambulance; and third, when Lee inappropriately reacted to Gano.

First, as discussed in section 3 of this opinion, Lee responded to the dive call consistent with his knowledge of Department policy and past practice concerning the responsibility of first out ambulance. Thus, he did not contribute to reduced efficiency of others in that incident.


Second, Lee’s questioning of DC Douglas en route from the hospital to Fire Station 2 also failed to constitute a basis for finding that Lee reduced the effectiveness of others. As discussed above, Lee, simply and legitimately, questioned Douglas’s decision to assign an EMT Basic to first out ambulance. Lee had real a legitimate concern over the staffing of the first out ambulance. The City claims this conversation “created additional obstacles” for Douglas but they failed to produce any evidence in support of this claim. Lee did not force Douglas to deal with the issue immediately nor did he refuse to comply, he merely said “We’ll talk about this.” (Emp. Exh 15).

Finally, the City argues Lee’s reaction to Gano contributed to the reduced efficiency of others. After Gano and Lee’s conversation, Douglas had to spend time resolving the issue with Lee and Gano over the phone.

When considered in its entirety, the evidence suggests Lee was not as cooperative as he could and should have been. While he did not disobey orders, Lee failed to conduct himself in a constructive and  considerate manner, particularly in view of the extraordinary demands being placed on the Newberg Fire Department on the afternoon of July 10, 2000. On the basis of these facts, the Arbitrator concludes Lee’s attitude and response to DC Douglas and Captain Gano “contributed to the reduced efficiency of other employees and volunteers.”

6. Lee’s Conduct Did Not Constitute Harassment


Next, the City contends Lee’s attitude toward Gano created a hostile environment. Gano stated that Lee’s “attitude and manner throughout seemed hostile and intimidating toward me”. (Emp. Exh. 2). At the hearing Captain Gano testified that “Lee’s tone was offensive, threatening and disrespectful”. As stated above, the Arbitrator found Gano to be a less-than-credible witness based on other testimony confirming the assertion that he is a known to be biased against the Union. Notwithstanding the credibility issue, the City simply failed to establish sufficient facts to support a finding that Lee created a hostile environment and thereby violated the rule against harassment. Lee did not physically threaten Gano or any other firefighter; Lee made no physical contact, threats or gestures, nor did he have a history of threatening or harassing other employees. Therefore, the Arbitrator concludes Lee’s conduct failed to constitute harassment.

7. Lee’s Conduct Was Not Unprofessional

The City’s final allegation charges Lee with violating ORS 682.175(2)(i); unprofessional behavior. The City contends that Lee’s conduct, in its entirety, supports the charge of unprofessional conduct. In their post hearing brief, the Union points out that ORS 682.175(2) provides a basis for suspending or revoking EMT certification. Besides unprofessional conduct, the statute lists behavior such as habitual drug use, conviction of a criminal offense and mental disorder. These are especially grave problems. This statute is obviously intended to govern conduct of a substantially more severe nature than the conduct displayed by Lee in this case. Accordingly, the Arbitrator concludes Lee’s Conduct on July 10, 2000, was not unprofessional, in violation of ORS 682.175(2)(i).

E. The Discipline Is Inappropriate Based On The Severity Of      The Misconduct

The Arbitrator will address this issue under Section II, Penalty, below.


F. The City Inappropriately Considered Lee’s Past Employment Record

The City, at least in part, has based its justification for Lee’s suspension on his prior disciplinary record. In Chief Sherman’s response to the Union’s grievance, he concludes

“that if anything can be said for the severity of Lee’s misconduct, he is getting off light, especially given his prior disciplinary record.”

(Emp. Exh. 15).

In support of this contention, the City cites two alleged “disciplinary actions” taken against Lee. First is a Written Warning issued to Lee on August 10, 1996, for dishonesty. Second, are some comments made on Lee’s 1998-1999 Performance Evaluation which allude to inappropriate comments. In the Arbitrator’s view neither of these constitute disciplinary action according to the Agreement. Included in the Written Warning was the following statement:

“In accordance with the Union’s collective bargaining agreement, written warnings are not considered discipline, and it is not the intention to discipline  you on this matter at this time.” 

(Emp. Exh. 1).


Thus, neither on its face, nor by the Agreement, is the Written Warning part of Lee’s disciplinary record. The comments on Lee’s Performance Evaluation also fall short of disciplinary action, as that term might be applied in the context of progressive discipline. In fact, Lee’s Performance Evaluations from 1998 to 2000 show that he had met or exceeded all of the City’s expectations for his work performance. Therefore, the Arbitrator concludes that at the time of his disciplinary suspension, Lee had no prior “disciplinary record”, much less, one which provided a basis for a two day suspension without pay.

G. Summary of Just Cause Findings

On the basis of a review of each of the just cause requirements set forth in Article 11, Section 5, of the Agreement, the Arbitrator finds that the City failed to establish by a preponderance of the evidence that it had just cause to impose a two day disciplinary suspension for insubordination. However, the Arbitrator also finds that the Grievant’s conduct on July 10th did contribute to the reduced efficiency of the Newberg Fire Department in violation of the City’s Personnel Rules and Regulations, specifically Section 3(1)(a)P. Given the stress the Department’s personnel and resources were under on July 10, 2000, Lee’s response to both DC Douglas and Captain Gano was less than professional and was counter-productive to the efficiency of the Department. Although Lee’s conduct was not insubordinate in nature, there were better ways and at other times in which he could have addressed his concerns regarding the manning requirements of the first out ambulance.


Accordingly, the Arbitrator concludes the City did have just cause to impose disciplinary action against Lee on the basis that his conduct violated the City’s personnel policies. The remaining issue is whether, in accordance with Article 11, Section 5(e), the two day disciplinary suspension is appropriate based on the nature of the misconduct and the impact on the Department’s operation. Stated another way, was the discipline imposed by the City unreasonable or excessive under all the circumstances of this case.

II. PENALTY

The Arbitrator has determined the City had just cause to take disciplinary action against Lee on the basis that his conduct on July 10, 2000, contributed to the reduced efficiency of the Fire Department. The remaining issue is whether the penalty of two–day disciplinary suspension for Lee’s misconduct was appropriate and reasonable under all the circumstances of this case. As stated by the Elkouris, the issue of penalty is one of reasonableness:

 In disciplinary cases generally, therefore, most Arbitrators exercise the right to change or modify a penalty if it is found to be improper or too severe under all the circumstances of the situation. This right is deemed inherent in the Arbitrator’s authority to finally settle and adjust the dispute before him.

 

Elkouri and Elkouri,
                                                                                         How Arbitration Works
                                                                                         5th edition, 1997), p. 913. 


Generally, this Arbitrator subscribes to the doctrine that Arbitrators should not substitute their judgment for that of management when determining the appropriateness of the penalty in discipline and discharge cases. However, for protection against excessive and unequal penalties, exceptions must be provided. Accordingly, this Arbitrator, as do most when faced with this issue, will set aside or modify a penalty only in those circumstances where the Arbitrator concludes that the penalty is unreasonable, excessive, or discriminatory in nature. This is such a case.

If the Arbitrator had concluded that Lee’s conduct did in fact constitute insubordination, then the penalty imposed by the City would have been found to be reasonable and would not have been modified by the Arbitrator. However, as indicated in the previous section, the evidence in this case simply did not support a finding of insubordinate conduct. In the absence of such a finding, and of any prior disciplinary record, the penalty imposed by the City was unreasonable and excessive.

Although Lee was not insubordinate, his conduct was found to have contributed to the reduced efficiency of the Department in violation of the City’s Personnel Rules and Regulations, and such conduct is deserving of disciplinary action. The Arbitrator concludes the appropriate penalty, in view of all the circumstances of this case, should be a Written Warning. This penalty is consistent with the Department’s commitment to progressive discipline. It places Lee on notice that any further conduct of this nature could result in further disciplinary action.


The Arbitrator found Lee to be a conscientious firefighter. Lee’s Performance Evaluations during the past few years indicate that he has met or exceeded the City’s expectations of him as a firefighter. However, Lee’s Performance Evaluation for 1999-2000 also indicates that Lee needs to “be very careful that the things you say and do ‘benefit the team’”. (Emp. Exh. 18). The discipline in this case constitutes a formal warning that Lee needs to improve in the manner in which he relates to his superiors. The very nature of the emergency work of a Fire Department requires a command structure that depends on a quick response by firefighters to the orders that are given by superiors. Generally, the organization is based on an “act now, question later” approach to the emergency. Although Lee’s conduct did not constitute insubordination, there were better times and better ways in which he could have questioned the appropriateness of his assignment with Captain Gano. This Written Warning is intended to provide Lee with the opportunity to improve his ability to communicate with his superior officers.

III. REMEDY

Although the Arbitrator has found that Lee’s conduct on July 10, 2000, did not constitute insubordinate conduct, his conduct did, however, contribute to the reduced efficiency of the Fire Department. In view of this finding, the Arbitrator concludes the discipline of a two day suspension is an excessive penalty, and that a Written Warning is the appropriate discipline. Accordingly, as a remedy the Arbitrator shall order that Lee’s suspension be set aside and that he be issued a Written Warning for his conduct on July 10th.  The City shall reimburse Lee for his lost wages for the period of the suspension.


IN THE MATTER OF THE ARBITRATION

                            BETWEEN

 

INTERNATIONAL ASSOCIATION OF      ) OPINION AND ORDER

FIREFIGHTERS, LOCAL 1660,             )

Union,        )    RE:  Grievance of Bryan Lee - -

and                                                 )      Disciplinary 

CITY OF NEWBERG,                              )         Suspension

Employer.  ) 


The Arbitrator, in arriving at this decision, has reviewed all of the evidence, exhibits, and the post-hearing briefs submitted by counsel. In view of all the evidence and for the reasons set forth in this Opinion, it is the decision of the Arbitrator that the City had just cause to discipline the Grievant, Bryan Lee, for his misconduct on July 10, 2000.  However, for the reasons set forth in the Opinion, the penalty of a two–day suspension shall be set aside and modified in accordance with the following Orders:

1.                            The two day suspension without pay shall be set aside and replaced with a Written Warning putting the Grievant on notice that further conduct of this nature could result in further disciplinary action.

2.                            The Grievant shall be compensated for his lost wages due to the suspension from August 21-22, 2000, and from August 24-25, 2000.

3.                            Pursuant to Article 12.2, the fees and costs for the Arbitrator shall be divided equally by the City and the Union.

4.                            In accordance with the stipulation of the parties, the Arbitrator shall retain jurisdiction over this matter for a period of sixty (60) days following the issuance of this Order to resolve any disputes arising out of the implementation of this Order.

____________________________

 


Eric B. Lindauer
                                                                                         Arbitrator

August 7, 2001

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