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Title: State of Montana Department of Revenue and Montana Public Employees Association Montana Federation of State Employees MEA/MFT Local #4993
Date: May 23, 2002
Arbitrator: David Gaba
Citation: 2002 NAC 117

Oregon Public Employment Relations Board

 

In the Matter of  Gilbert Torres

Between

City of Portland Employer,                                                      

And                                                                               

Laborers’ International Union of North America
Local 483,
Union.

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ARBITRATOR’S

DECISION AND AWARD 

INTRODUCTION

This arbitration arises pursuant to a collective bargaining agreement (hereinafter the Agreement) between The City of Portland (hereinafter the Employer or City), and The Laborer’s International Union of North America, Local 483 (hereinafter the Union), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties.
            A hearing was held before Arbitrator Gaba on March 14-16, 2007 at Portland, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute.  No official transcript of the proceedings was provided.  The parties filed post-hearing briefs on April 23, 2007.

APPEARANCES

On behalf of the Union:

Michael R. Dehner
Laborer’s Local No. 483
1125 SE Madison, Suite 206
Portland, OR  97214

On behalf of the Employer:
Matthew V. Farley
Deputy City Attorney
Portland City Attorney’s Office
1221 SW 4th Avenue, Rm 430

Portland, Oregon   97214-3600

ISSUE

The parties stipulated that the issue presented was:  1) Was the grievant discharged for cause? and, 2) If not, what is the remedy?

RELEVANT CONTRACT PROVISIONS

The following contractual provisions of the Agreement are relevant to this arbitration proceeding:

33. Evaluations/Counseling

Private discussions, evaluations or counseling may be used to review or evaluate employee performance or conduct and are not considered disciplinary action. Private discussions, evaluations or counseling are intended to acknowledge employee performance, identify standards of performance and behavior, and should result in reviewing employee progress in meeting identified standards of performance and behavior.

* * * * * 

34. Discipline and Discharge

34.1           Disciplinary actions or measures shall include only oral warning, written reprimand , demotion, suspension and discharge.  Disciplinary action or measures may be imposed only for just cause .  Any disciplinary action or measure imposed upon an employee may be processed as a grievance through the regular grievance procedure.

34.1.1         If the parties agree, a Performance Improvement Plan (PIP)  may be used in place of the disciplinary steps prior to discharge in cases of employee performance problems.  The content of the PIP will be mutually agreed upon and either parties’ offer or refusal to agree to a PIP shall not be used against them in the grievance procedure.

34.1.2         If the City has reason to reprimand an employee, it shall be done in a manner that will not embarrass the employee before other employees or the public.  If the City has reason to discuss any disciplinary action or the possibility of any disciplinary action, the employee shall be given the option of having a Union representative present at any such discussion.  Written disciplinary actions shall not be posted; however, this does not preclude management from notifying other management and employees when restrictions are applied to an employee as a result of discipline.

34.2           Discharge, Demotion  and Suspension :  The City shall not discharge, demote or suspend any employee without just cause  who has completed his/her probationary period as provided in section 1.1.1.  If, in any case, the City feels that there is just cause for discharge, demotion or suspension, the employee involved and the appropriate Union shall be provided with a written notice of proposed discipline seven (7) calendar days before the effective date.  Such notification shall state the nature of the offense for which the employee is being discharged, demoted or suspended, in detail, specifying dates, locations, and the particular nature of the offense committed by the employee and the right to respond to the authority proposing such action either orally or in writing prior to the effective date of proposed discipline.

34.3           Records of oral or written reprimand  not involving other disciplinary action, shall be removed from an employee's personnel file  after one year, on the employee's request, provided in the judgment of the City, the employee has taken corrective action and has received no other disciplinary actions.  Approval to remove such material from the file shall not be unreasonably withheld.

34.4           Any employee found to be unjustly suspended or discharged shall be reinstated with full compensation for all lost time and with full restoration of all rights and conditions of employment unless otherwise stipulated by mutual agreement or otherwise specified in the grievance procedure or by an arbitrator under the grievance procedures hereinafter set forth.

34.5           Just cause  provisions of this section do not apply to temporary employee s, as defined in Article 1.

34.6           Upon separation, discipline, or discharge, a temporary employee as defined in Article 1, may write a statement which will be maintained with the employee's official records on file in the Bureau of Human Resources.

Grievances, Complaints and Arbitration

35.1          To promote better City-employee relationships, all parties pledge their immediate cooperation to settle any grievances or complaints that might arise out of the application of this Agreement, and the following procedure shall be the sole procedure to be utilized for that purpose.  The parties further agree that all meetings under this procedure will be conducted in a professional manner and in a spirit of mutual respect consistent with mutual resolution of grievances arising under this Agreement.

35.2          If there is a breach of any provision of this Agreement affecting a group of employees, or if the breach of any provision of this Agreement is the result of an agreement reached between the City and an employee without the approval of the Union involved, the Union shall have the right to take up such breach with or without the consent of the employees or employee involved.

35.3          Procedure:

35.3.1       Time Limits:  It is important that grievances be processed as rapidly as possible.  The number of days indicated at each level should be considered as a maximum, and every effort should be made to expedite the process.  The time limits specified may, however, be extended by mutual agreement.  Failure by the City to respond in writing within the time limits at each level shall render the grievance automatically appealed to the next level in the grievance procedure.  The Union will advise the appropriate individual at the next level within a reasonable period of time.

35.3.2       Informal Level:  Before initiating a formal written grievance at Level One, the employee shall attempt to resolve the matter by informal conference with his or her immediate designated supervisor outside the bargaining unit.  If the immediate supervisor is not available, the employee shall attempt to contact another supervisor or manager.  The employee shall notify the Union, and a representative of the Union shall be given the opportunity to be present at any meeting under this section.  Either party may declare that the informal level has been completed.

35.3.3       Upon appeal of any discharge, demotion or suspension before the Civil Service Board any grievance filed under the terms of this Agreement shall be withdrawn.

35.3.4       Level One -- Bureau Head or Designee:

a.   If a dispute is not resolved at the informal level, the employee or Union shall file the grievance in writing on the appropriate form to the bureau head or designee within thirty (30) calendar days of the claimed violation.

b.   The grievance statement shall specify (each of) the provision(s) of this Agreement claimed to be violated and the manner in which such provision is claimed to have been violated, all pertinent information, the remedy sought, and shall be signed by (each of) the employee(s) and/or by the Union.  The Grievant and the Union have a good faith obligation to be as complete and forthcoming as possible in making this statement and providing information regarding the grievance.

c.   The parties shall meet to discuss the grievance with the appropriate bureau head or designee to whom the grievance is submitted shall communicate his or her decision, along with the reasons therefore, to the employee and the Union in writing within twenty-one (21) calendar days after having received a timely appeal to Level One.

35.3.5    Level Two -- Bureau Head/ Human Resources:

a.   If the employee or the Union is not satisfied with the disposition at Level One, the employee or the Union may appeal the grievance to the Bureau of Human Resources and the Bureau Head Level Two within fourteen (14) calendar days after receiving notice of the Level One decision.

b.   The Union or the Grievant with the concurrence of the Union shall have the right to perfect the grievance prior to Level Two with the understanding that the right to perfect is limited to the substantive issues previously raised in the grievance.

c.    The Unions shall have a right to take up any disciplinary action brought against a Shop Steward by the City as a grievance at Level Two of the grievance procedure (see Clause 22.2 of this Agreement).

d.   A grievance involving a suspension, demotion or discharge shall be filed directly to Level Two no later than fourteen (14) calendar days of receipt of written notice of imposed discharge, demotion or suspension.

e.   To submit a grievance to Level Two a copy of the grievance shall be filed simultaneously with the office of the Commissioner-in-Charge and the Bureau of Human Resources.  The Commissioner in Charge may either retain jurisdiction at this level of the procedure or delegate the Bureau of Human Resources /Bureau Head to handle the grievance with full authority to settle it.  If the Commissioner in Charge does not retain jurisdiction of the grievance within seven (7) calendar days after receiving a timely appeal, the grievance shall be considered as having been delegated to the Bureau of Human Resources.

f.    The appeal shall include a copy of the original grievance, the decision rendered at Level One, if any, a concise statement of the reasons for the appeal and the specific relief requested.

g.   Upon timely filing, the written grievance will be discussed between the employee, the Union involved and the Director of the Bureau of Human Resources /Bureau Head or his/her designee within twenty-one (21) calendar days after filing, unless extended by mutual written consent.  The Director of the Bureau of Human Resources or his/her designee shall respond to the grievance within thirty (30) calendar days after the grievance has been filed at Level Two.

h.   Upon the timely filing of written grievance as specified herein, the Union shall have sole discretion as to the processing of such grievance and shall have the right to carry the grievance through the grievance procedure with or without the consent of the employee(s) originally filing the grievance.

35.3.6    Level Three -- Mediation :

a.   If the Union is not satisfied with the Level Two, upon the mutual agreement of the parties it may be referred to mediation within fourteen (14) calendar days after the Level Two disposition has been rendered.

b.   The costs of the mediator will be equally split between the parties.

35.3.7    Level Four -- Arbitration:

a.   If the grievance remains unresolved at Level Two or Level Three (mediation), the local Union involved shall have the right to refer the matter to arbitration.  In the event the local Union elects to do so, it must notify the Bureau of Human Resources of its decision in writing within twenty-one (21) calendar days of denial of the grievance at Level Two or twenty-one (21) calendar days after the close of mediation if the parties agreed to refer the grievance to Level Three.

b.   After the grievance has been referred to arbitration, the parties or their representatives shall jointly request the State Conciliation Service for a list of names of seven (7) arbitrators.  The parties shall select an arbitrator from that list by such method as they may jointly select, or if they are unable to agree upon a method, then by the method of alternate striking of names under which the grieving party shall strike the first name objectionable to it, and the City shall then strike the first name objectionable to it.  The final name left on the list shall be the arbitrator.

c.    The arbitrator's decision shall be final and binding, but the arbitrator shall have no power to alter, modify, amend, add to or detract from the terms of this Agreement.  The decision of arbitration shall be within the scope and terms of this Agreement and shall be in writing.

d.   The City and local Union involved shall divide equally the arbitrator's fee, the cost of any hearing room and the cost of a shorthand reporter if requested by an arbitrator.  All other expenses shall be paid by the party incurring them.

e.   The time limits specified herein shall be jurisdictional unless waived by mutual agreement of the parties.  The local Union involved shall have sole authority to determine whether a grievance shall be submitted to arbitration, and any such decision or settlement of the grievance between the Union and the Bureau of Human Resources/Bureau Head in good faith shall be binding on all parties.

f.    The parties shall make a good faith effort to avoid unreasonable delay in scheduling arbitration hearings.

The following provisions of the City Administrative Rules are relevant to this proceeding:

HRAR 2.02 (“Workplace Harassment and Discrimination Prohibited”)

            HRAR 2.02 purports to prohibit both illegal harassment, and other unspecified forms of harassment:

Workplace harassment manifests itself in two primary ways:

1. In forms of harassment that violate state and federal laws; and

2. In forms of harassment that may not violate law, but which violate this City rule because they are not conducive to creating a work environment for employees that is consistent with the intent of this rule.

This rule covers both types of harassing behavior.

Harassment: verbal or physical conduct that is derogatory or shows hostility towards an individual because of his or her race, religion, sex, sexual orientation, gender identity, age, physical or mental disability (as defined by the Americans with Disabilities Act and state law), marital status, national origin, or other protected status under applicable law and:

1. Has the purpose or effect of creating an intimidating, hostile, abusive, or offensive work environment; or

2. Has the purpose or effect of unreasonably interfering with an individual’s work performance; or

3. Otherwise adversely affects an individual’s employment and employment-related opportunities. 

* * * * *

6. Consistent with applicable rules and collective bargaining agreements, in determining the appropriate corrective action the responsible manager will consider:

·        the severity of the conduct
·        position/authority of the perpetrator
·        number/frequency of encounters
·        relationship of the parties
·        conduct of complainant
·        effect of action on complainant, and
·        effect of action on the work environment

HRAR 4.01 (Drug & Alcohol Use Prohibited):

The City of Portland views illegal drug use and excessive use of legal drugs and alcohol as a threat to the public welfare and the health, safety and productivity of employees of the City.

The City of Portland has a strong commitment to its employees to provide a safe work environment and promotes high standards of employee fitness.  Consistent with the intent of this commitment, the City established this rule regarding drug and alcohol abuse.  The City’s goal is to establish and maintain a work environment that is free from the effects of drug and alcohol abuse. 

While the City of Portland has no intention of interfering with the private lives of employees, the City expects its employees to report to work in a condition to perform their duties in a safe, effective and efficient manner.

All persons covered by this rule should be aware that violations will result in discipline, up to and including termination, or in removal from the application process.

* * * * *

No employee shall:

1. Unlawfully manufacture, distribute, dispense, possess or use a controlled substance in the workplace;
2. Report for duty under the influence of alcohol or drugs;
3. Report for duty with the odor of alcohol or drugs on his/her breath;
4. Absent him/herself from duty or be unfit to fully perform duties for reasons attributable to, or produced by, indulgence in alcohol, drugs, or the excessive or other improper use of prescription or other medications.
5. Bring or cause to be brought onto City property any alcohol or drugs;
6. Use any prescription or nonprescription medications which may interfere with the safe and effective performance of duties or operation of City equipment or vehicles, without notifying his or her supervisor prior to beginning work or operating the equipment or vehicle.
7. Refuse to respond to questions.

While operating a City vehicle (on or off duty) or wearing a City uniform, no employee shall:
1. Have the odor of alcohol or drugs on their breath;
2. Use alcohol or drugs;
3. Have their ability to work impaired as a result of the use of alcohol or drugs;
4. Possess alcohol or drugs;
5. Provide, manufacture, deliver, transfer, offer, or sell alcohol or drugs to any other employee or to any person while on duty;

If there is a question regarding an employee's ability to work safely and effectively while using prescription or nonprescription medications, clearance from a qualified physician will be required.  The City will continue to retain the right to make the final determination concerning an employee’s fitness to perform work.

HRAR Rule 5.01 (Discipline)[provides in part]:

Cause for disciplinary action shall include but not be limited to the following:

* * * * *

3. The use of intoxicants, or illegal use or possession of controlled substances on the job; reporting for work under the influence of intoxicants; or the use of drugs which create a substantial risk of injury to self or others or which impair work performance.

* * * * *

7. Violation of safety rules or policies.

8. Violation of the provisions of federal or state law, or of the City Charter, ordinances or any City rules or regulations including bureau-specific policies.

9. Discourteous treatment of the public or other employees, offensive conduct or conduct unbecoming a City employee.

* * * * *

11. Inappropriate or unauthorized personal use of City resources, including, but not limited to tools and equipment, materials and supplies, vehicles, facilities and grounds, work time and information resources and technologies.

* * * * *

Any employee within the classified service is subject to disciplinary action for cause. Such discipline may include but is not limited to an oral reprimand, written reprimand, demotion, loss of pay, suspension or discharge.

Discipline of permanent (non-probationary) employees in the classified service is normally progressive, beginning with an oral or written warning and proceeding to suspension, demotion or discharge.  Disciplinary action may also take other forms such as withholding privileges.  Serious offenses such as stealing, workplace violence, conviction of a bias crime, unwelcome sexual touching, refusal to obey a legitimate order or other causes in which the employee’s performance or behavior will not be improved through corrective measures may justify discharge without the necessity of prior warnings or attempts at corrective discipline.  In all cases, the level and degree of penalty shall be in keeping with the seriousness of the offense, taking into account the circumstances relevant to the incident.

For less serious infractions, which warrant progressive discipline, the ultimate goal is to put the employee on notice of unacceptable conduct and to give the employee a reasonable opportunity to modify his or her behavior.

FACTS

The majority of facts in this matter were undisputed at the hearing.  Gilbert Torres, the grievant in this action, was employed by the City of Portland (hereinafter City or Employer) for 15 years from July 15, 1991 until July 3, 2006, most recently as a Journeyman Industrial Maintenance Millwright.  Mr. torres had been provided with a “Receipt of the Critical Work Rules Human Resource Administrative Rules” 5.01, 2.02 and 4.01, and a signed acknowledgment of was in Mr. Torres’ file.  Mr. Torres was aware that violation of each of those rules could result in termination for a first offense.  Mr. Torres received trainings on Rule 2.02 twice, and attended refresher training shortly before the date of this incident.  Mr. Torres also had recently been through an arbitration in which the critical work rules were at issue. 

On May 12, 2006 Mr. Torres parked his personal vehicle in a public parking lot owned by the City that was located at the Columbia Boulevard Wastewater Treatment Plant (hereinafter the Plant).  The Plant is an industrial, “blue-collar” workplace, summarily described by one witness as a “shit plant.”  The plant and parking lot are surrounded by a fence, however, vendors and members of the public have access to the parking lot. A small amount of marijuana was in Mr. Torres’ vehicle (3.6 grams). 

That same day the Plant Manager, Dan Clark, watched as Mr. Torres was arrested in the parking lot near his car.  Police informed Mr. Clark that they had located illegal drugs in Mr. Torres’ vehicle. Police also later informed Mr. Clark, and indicated in their reports, that Mr. Torres was dealing illegal drugs and that his buyers included co-workers at the plant.  A preponderance of the evidence did not indicate that Mr. Torres was selling drugs to coworkers. 

On Monday, May 15, 2006, Mr. Torres returned to work.  On Friday May 19, Mr. Torres was approached by a fellow employee, Jan Lazarcik, who began inquiring into the reasons for Mr. Torres’ arrest. Mr. Lazarcik had previously attempted to proselytize Mr. Torres and had left him copies of Jehovah’s Witnesses literature (The Watchtower).  Mr. Torres’ believed that Mr. Lazarcik, was goading, teasing or provoking him. Mr. Torres stated that he had been arrested because he “fucked three Jehovah’s Witnesses who came to my door.” A fellow employee, Mr. Sinclair, overheard this statement and responded by walking away as if he had heard nothing.  Mr. Sinclair later explained that he “did not want to be a part of an investigation.”  Another employee, Tim Sessler, also overheard Mr. Torres making the comment to Mr. Lazarcik.  Mr. Stessler also simply chose to walk away.  At the time of making these statements, Mr. Torres was aware that Jan Lazarcik was a devout Jehovah’s Witness. 

Later on Friday May 19, 2006, Mr. Torres repeated his statement that he had “fucked three Jehovah’s Witnesses who came to his door” to a group of co-workers.  In this second conversation he may have added that “the Jehovah’s Witnesses didn’t like it or that two of them liked it, but one of them did not.” 

On June 15, 2006, Mr. Torres was indicted for possession and delivery of controlled substances and child neglect.  The following day the District Attorney’s office faxed the City a copy of the state Crime Lab Report establishing that the substance found in Mr. Torres’ car was marijuana. The fax also included a copy of the felony indictment of Mr. Torres.  On June 23, 2006, the City issued a Proposed Notice of Discipline letter to Mr. Torres with an effective date of July 3, 2006.  On June 28, the Union submitted a written response to the proposed discharge action in lieu of appearing at a hearing.  On June 30, 2006, the City issued a Final Discharge to Mr. Torres to inform him that his employment was terminated. 

On October 09, 2006, Mr. Torres was convicted of the crime of possession of an illegal controlled substance which is a class B felony. He was not convicted of the sale of a controlled substance.

Mr. Torres’ work record established that he was an adequate employee.  The decision to terminate was grieved and the grievance proceeded to arbitration. 

DECISION

The Applicable Standard is Just Cause.

            Where there is no contractual definition, it is reasonably implied that the parties intended application of the generally accepted meaning that has evolved in labor-management jurisprudence:  that the “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness.[1]

Described in very general terms, the applicable standard is one of reasonableness:

[W]hether a reasonable (person) taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline).[2]

            As traditionally applied in labor arbitrations, the just cause standard of review requires consideration of whether an accused employee is, in fact, guilty of misconduct.  An employer’s good faith, but mistaken, belief that misconduct occurred will not suffice to sustain disciplinary action.  If misconduct is proven, another consideration, unless contractually precluded, is whether the severity of disciplinary action is reasonably related to the seriousness of the proven offense and the employee’s prior record.  It is by now axiomatic that the burden of proof on both issues resides with the employer.[3]

            The just cause standard has been seminally defined by Arbitrator Carroll Daugherty, and incorporates the following seven tests:

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

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

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

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

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

6.   Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

7.   Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness O the proven offense and (b) the record of the employee in his service with the company?[4]

If one or more of these questions is answered in the negative, then normally the just cause requirement has not been satisfied.[5]

The Applicable Burden of Proof is Clear and Convincing Evidence.

            In a case involving the discharge of an employee, the burden is on the employer to sustain its allegations, and to establish that there was just cause for the termination.  As the leading treatise in the area noted:

Discharge is recognized to be the extreme industrial penalty since the employee’s job, seniority and other contractual benefits, and reputation are at stake.  Because of the seriousness of the penalty, the burden generally is held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires “just cause” for discharge.[6]

In this context, it is appropriate for an arbitrator to demand clear and convincing evidence.  As Arbitrator Richman explained:

The imposition of a lesser burden than clear and convincing proof fails to give consideration to the harsh effect of summary discharge upon the employee in terms of future employment.[7]

Only if misconduct in the instance that led to the termination is proven by clear and convincing evidence can an arbitrator go on to address the question of the appropriateness of disciplinary action.

Has the Just Cause Standard Been Met?

The facts are not materially in dispute with two exceptions.  First, how did the marijuana get into Mr. Torres car?  At the hearing Mr. Torres equivocated as to whether or not the marijuana in his own car belonged to him.  His explanation of how the marijuana got into his car lacked credibility.  He said he “could not recall” if it was his marijuana left over from a camping trip, and later asserted that he did not know how it got there.  He gave a rambling account of how he only recalled that there “may be a possibility” that pot was in his car from the prior weekend.  However, how the marijuana got into Mr. Torres’ car is unimportant, it got there. The fact that it was inadvertent is immaterial. 

The second question of fact is whether Mr. Torres was selling drugs to his co-workers.  The sole piece of evidence presented by the City that indicated Mr. Torres was selling marijuana to his co-workers was a piece of yellow paper with the names of co-workers and dollar amounts. While we can speculate as to what this piece of paper may represent, it was the sworn testimony of two witnesses that Mr. Torres did not sell marijuana.  While it might be the opinion of the arresting officer that this piece of paper indicated that Mr. Torres was selling drugs, it is simply opinion and not evidence. The City did not show by a preponderance of the evidence that Mr. Torres had ever sold drugs.

The questions before me are narrow ones - namely, was the Employer’s workplace rule reasonable and what is an appropriate penalty for Mr. Torres’ violations of his employer’s reasonable workplace rules?  There is no question that just cause exists to discipline Mr. Torres.  The decision in this case hinges on the question of whether there was a reasonable relationship between the degree of discipline imposed on Mr. Torres and the seriousness of the offense.  This case involves no allegation of use or abuse of any controlled substance at the worksite nor does it involve an allegation that illegal drug use or abuse impacted Mr. Torres performance in the workplace.  

The Dope  

Are the rules Reasonable?

No.  As a general rule, management has the right to establish reasonable work rules except as restricted by the collective bargaining agreement.[8]  It is commonplace for employers to prohibit possession, use or sale of intoxicating beverages or controlled substances, or being under their influence at any time while on an employer’s premises.  Violations of such rules frequently result in discipline on the basis of insubordination.[9]  In general, work rules are reasonable if they are necessary to ensure workplace discipline, efficiency, or safety.  The rule must be reasonably related to a legitimate objective of management.[10] The rule must be clearly stated and made known to employees.[11]  The consequences of failing to comply with the rule must also be make known to employees,[12] and the rule must be reasonably applied.[13]  Each application of a work rule that results in discipline is subject to review under just cause standards.[14]

In this case the City has chosen to adopt an extremely broad set of rules. These rules include limits on an employee’s off-work conduct. These rules include:

While operating a City vehicle (on or off duty) or wearing a City uniform, no employee shall:

            *          *          *
2. Use alcohol or drugs;

            *          *          *

4. Possess alcohol or drugs;

The rule above clearly provides that an employee, even while perfectly alone in his own home, cannot have a beer while still wearing his City uniform.  An employer generally cannot regulate an employee’s behavior outside the workplace unless the conduct or situation impacts the employer’s operations.  In this case there was no showing that Mr. Torres’ personal, off-duty use of marijuana would impact or affect the City in any way. As aptly stated by Arbitrator Brand: 

A rule [governing employment] must be reasonably related to a legitimate [employer] objective.  An employer cannot regulate an employee’s behavior outside the workplace unless the conduct or situation impacts the employer’s operations (Footnotes omitted).  If the activity to be regulated does not have the appropriate nexus to the workplace, the rule will not withstand arbitral review.[15]

The City, in its brief, argues: 

Regardless of how the State of Oregon generally treats drug violations, the City of Portland has the right to implement rules for the workplace, particularly where the public’s expectation in a well run Wastewater Treatment Plant are justifiably high. [16]

I agree with the City’s brief; however, the City’s rules do not.  The City’s rules provide that an employee may not:

5. Bring or cause to be brought onto City property any alcohol or drugs;

This is just silly.  A literal reading of the rule above would prevent any employee, ever, from being able to bring alcohol home from a liquor store since this would require the use of City streets (City property).  How does one get prescription drugs home from a pharmacy?  Can one have a beer in a city park or stadium?  How does the City reconcile the above rules with its precatory language which states: 

While the City of Portland has no intention of interfering with the private lives of employees, the City expects its employees to report to work in a condition to perform their duties in a safe, effective and efficient manner.

There has been no showing that the over-broad work rules above are reasonable and necessary to ensure workplace discipline, efficiency, or safety.  Likewise, there has been no showing that the rules are reasonably related to any legitimate objective of management.[17]  In over 10 years of hearing cases as an arbitrator I have never found an employer rule to be unreasonable . . . until now. 

While the City’s rules are overbroad and unreasonable, employer actions based on such prohibitions have been upheld, even when not in writing, based on the inherent right of management to maintain an orderly and safe workplace.[18]  There is a general, unwritten, commonsense rule that employers and employees everywhere know:  you don’t bring illegal drugs to work.  Mr. Torres violated this rule when he drove to work with marijuana in his car and parked in his employer’s parking lot.

What is problematic in this case is any attempt to discipline Mr. Torres for his off duty conduct.  Even when possession of a substance is prohibited by law or by employer rule, such employee conduct off-premises and on off-duty time is subject to discipline only when the employer can establish a nexus between its interest as an employer and the employee’s conduct.[19]  Arbitrator Tim Bornstein has posited five principles that are applicable to drug and alcohol-related offenses:

(1)   The workplace is for work. Personal needs are subsidiary to the claims of the workplace during working hours.

(2)   Every employee has a duty to report for work psychologically and physiologically prepared to perform his or her assigned duties and to remain so throughout the workday.

(3)   Regular and punctual attendance is the very essence of the employment relationship, for the success and survival of every organization requires that its members carry out their assigned roles when scheduled.

(4)   Employees are entitled to the opportunity to correct their conduct and to be treated in ways that are fair, consistent, and free from invidious discrimination or personal animus and with full respect for their dignity.

(5)   An employee’s seniority, good attendance, and discipline-free record are credits to be applied against any discipline for misconduct.[20]

I find the principals above to be persuasive and find that Mr. Torres should not be terminated or suffer severe discipline for inadvertently leaving marijuana in his car.  While Mr. Torres did take drugs to his employer’s parking lot, this was a parking lot open to the general public.  Again, as the Employer argues:

Regardless of how the State of Oregon generally treats drug violations, the City of Portland has the right to implement rules for the workplace, particularly where the public’s expectation in a well run Wastewater Treatment Plant are justifiably high.  Moreover, in a public industrial plant setting the managers can reasonably set standards that favor the overall safety of the workplace.

I agree.  However, Mr. Torres did not bring marijuana into his workplace (I specifically find that the workplace is where one works; there was no showing that “work” occurred in the parking lot), nor is there any credible evidence that he was ever impaired at work, missed work due to drug use, or sold drugs to co-workers.  

As a general rule, those who get high at worksites such as sewage treatment plants represent a danger to themselves and others and should be discharged.  Mr. Torres did not do so.  Here, the nexus between the City’s interest in maintaining a safe and efficient workplace and the remotely located drug is tenuous at best.  The only conduct the City can legitimately complain of is what occurred on its premises.  The City’s rules recognize that the privacy of the individual worker outside the workplace is protected.

Additionally, Mr. Torres committed no crime on City property.  Oregon takes a very lenient approach to marijuana possession and, under Oregon law, possessing 3.7 grams of marijuana is a violation, not a crime, akin to littering, jaywalking, or exceeding the posted speed limit, and the maximum sanction is simply a fine. Again, this is also not a case of an employee taking drugs into the plant, using drugs at work, or selling drugs to co-workers.  There was no evidence to contradict the Grievant’s testimony that the marijuana in is car was a mere oversight.

            While there is no question in my mind that Mr. Torres should be reminded through the use of progressive discipline not to leave dope in his car, I also believe that the majority of arbitrators would not uphold more than a one day suspension as a penalty.  While many arbitrators would impose no penalty, I am not among them.[21]  A one day suspension is appropriate. 

The Religious Slur

            There is no question that Mr. Torres deserves to be disciplined for his conduct in stating to a co-worker that he “fucked three Jehovah’s Witnesses who came to my door.” However, the City mischaracterizes this conduct as religious discrimination and harassment.  Despite Mr. Lazarcik’s status as a Jehovah’s Witness, Mr. Torres’ statement was not an act of religious discrimination or religious harassment.  In fact, the statement was not religious at all; it was simply an angry reaction to Mr. Lazarcik’s inquires regarding Mr. Torres’ recent arrest.  Mr. Torres did not display hostility toward Mr. Lazarcik because of his religion; rather, he was hostile towards Mr. Lazarcik because of what he regarded as a smarmy attempt to bait him; the religious taunt was simply the vehicle he used to lash out at Mr. Lazarcik.

The record is clear that it was not Mr. Torres who initiated the conversation that led to his termination.  Mr. Torres and Mr. Lazarcik were not friends, despite Mr. Lazarcik’s efforts to proselytize Mr. Torres, and I can think of no other reason for Mr. Lazarcik to initiate the conversation other than to bait or taunt Mr. Torres. 

In its brief the City argues that:

Grievant mocked the accent of Jan Lazarcik during the hearing further confirming the appropriateness of discharge.  Jan Lazarcik is an immigrant to the United States with a noticeable accent and strong religious beliefs.  Grievant mocked the accent of Jan Lazarcik during the hearing in the course of his testimony.  The grievant seemed to be trying to convey how annoying it was to be asked about what happened as a way to excuse his discriminatory outburst.  Even during his own arbitration the grievant appears to have little or no awareness that he has done more than commit a technical violation, and he is clearly not a candidate for reinstatement.

I disagree.  Witnessing Mr. Torres testifying at the hearing I saw an individual who was trying to accurately describe what had occurred and explain his actions.  I find it more-likely-than-not that Mr. Lazarcik was trying to be annoying.  As Mr. Meyer testified:

MEYER: So, when I was out in the smoking area I said why don’t you just leave Gil alone, he doesn’t need anybody kicking him when he’s down so to speak, I don’t know if that’s verbatim and I just told him to leave the guy alone, he’s already been through enough and let him go do his job.  I felt that he was, that him and Jan were both kind of, they were needling him.  And they’re not the best of friends so, why would you be so concerned with what this guy’s problems or his well-being is if really it’s just phony and fake and you just want to get under his skin.  So, I asked Mike, just leave the guy alone, several times, a couple of times.  And you know, I don’t know whether he did or not, but that’s how I deemed it to be, it was kind of futile actually.

When interviewed for the investigation Mr. Lazarcik stated:

And I didn’t want to ask him in front of other people because it is embarrassing… what he wanted to say because there were a number of rumors going around, what really happened so he could just tell me this happened instead of having some… so I can have some knowledge.[22] 

Clearly Mr. Lazarcik knew that he was asking an “embarrassing” question of Mr. Torres, “so I can have some knowledge.” Others concluded that Mr. Lazarcik’s motives were anything but benign, as stated by Mr. Davis; Mr. Lazarcik was simply trying to “poke at the injured dog with a pointy stick.”

As a general rule, where an employee is the victim of a previous hitprovocation next hit which will foreseeably provoke an ordinarily reasonable person into a heat of rage and aggression, the conduct of that employee may be excused (as opposed to justified) either partially, so as to mitigate against the full degree of penalty, or completely, so as to mitigate against any penalty whatsoever.[23]

Further, for Mr. Torres’ conduct to constitute “harassment” his conduct must be both objectively and subjectively offensive, conduct that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.[24]  One could argue that a reasonable person in Mr. Lazarcik’s position would have expected Mr. Torres’ lashing out, as this was exactly the sort of reaction he was trying to elicit.  As one arbitrator found:

The relevant statement by the Grievant to M__ was “half breed.”  The Union correctly observes in its closing statement that case law, not cited, states that a “single slur” is not “harassment.”  The Arbitrator refers to his personal dictionary.  Harass:  1) to disturb persistently; torment, as with troubles or cases, bother continually, pester, persecute.  2) repeated attacks . . . .  Lacking any contrary definition in the Agreement, there is no support the charge of harassment.  The statement by the Grievant was a one time act, therefore, not harassment.  There is not grounds for discharge.[25]

In any event, the fact remains that Mr. Torres made the inappropriate statement and that he clearly should be disciplined for it.  In Federal Bureau of Prisons[26] a five-day suspension was reduced to written reprimand for a prison guard who called a coworker “nigger” and “dog shit.”   In Alvey, Inc., the arbitrator reinstated a worker who called a co-worker a “big, dumb, nigger.”[27]  While I don’t agree with the leniency of these awards, it does show the general predilection of arbitrators to impose progressive discipline in cases of name-calling.

What is more problematic is that Mr. Torres repeated his comment to co-workers later on that same day. The City argues that Mr. Torres “broke the camel’s back” by repeating his insult to other co-workers and that any excuses or mitigating arguments about a “one time event” or “immediate regret” went out the window at this point.  I agree; if repeating of the statement to others was motivated by nothing more that a desire to show his friends that he had told Mr. Lazarcik off and if a substantial period of time had elapsed after the initial comment.  If Mr. Torres had made further comments regarding Jehovah’s Wittiness’s at this juncture, I would sustain a far more severe penalty.  However, it appears that all Mr. Torres did was simply tell his co-workers of his prior statement. At this time Mr. Torres made no further pejorative remarks about Jehovah’s Witness’s in general, or Mr. Lazarcik in particular.  Is this second statement worthy of discipline?  In review of all BNA publications and published awards on-line I can not find a comparable case.  Further, the parties in their lengthy, exhaustive, and well written briefs were unable to provide me with any authority. 

I specifically find that Mr. Torres should not be disciplined for repeating the statement that he “fucked three Jehovah’s Witnesses who came to my door.” The statement itself may be completely innocuous depending on its context.  If Mr. Torres was trying to communicate “wow, I can’t believe that I just said that I fucked three Jehovah’s Witnesses who came to my door to Mr. Lazarcik, I’m so embarrassed,” his speech would be acceptable.  If however, Mr. Torres was trying to communicate “wow, I sure showed Mr. Lazarcik; I just said that I fucked three Jehovah’s Witnesses who came to my door,” the speech would be worthy of discipline. What was the context of the statement in the Lead Office and how much time had elapsed after the initial comment?  I’m not really sure.

Mr. Torres indicated in his testimony that he was simply letting people know what he had stated so that they didn’t hear it from others.  Mr. Taylor testified that he thought it was an attempt at humor.  However, almost all of the testimony surrounding the statements in the Lead Office were simply unclear as to context.  Further, the comment in the Lead Office may have occurred less than a minute after the initial comment while Mr. Torres was still up-set by Mr. Lazarcik’s questioning; again, the facts are simply unclear.  While there is evidence that Mr. Torres’ repeating of the statement was maliciously motivated, the evidence does not rise to the level of a preponderance.

The Appropriate Penalty

In the instant case, the City has chosen to terminate Mr. Torres for his conduct.  As stated by Elkouri:

Where the Agreement fails to deal with the matter, the right of the arbitrator to change or modify penalties found to be improper or too severe may be deemed to be inherent in the arbitrator’s power to decide the sufficiency of cause, as elaborated by Arbitrator Harry H. Platt: In many disciplinary cases, the reasonableness of the penalty imposed on an employee rather than the existence of proper cause for disciplining him is the question an arbitrator must decide….  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 to be inherent in the arbitrator’s power to discipline and in his authority to finally settle and adjust the dispute before him.[28]

The Supreme Court has long agreed with the above statement of Elkouri.  As stated in Paperworkers v. Misco:

Normally, an arbitrator is authorized to disagree with the sanction imposed for employee misconduct.  In Enterprise Wheel, for example, the arbitrator reduced the discipline from discharge to a 10-day suspension.  The Court of Appeals refused to enforce the award, but we reversed, explaining that though the arbitrator’s decision must draw its essence from the agreement, he "is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies." 363 U.S. at 597 (emphasis added by the court).[29]

The principle of progressive discipline is one of the most important aspects of just cause.  It requires the employer to provide discipline to employees in increasing degrees of severity, based "on the premise that both employers and employees benefit when an employee can be rehabilitated and retained as a productive member of the workforce."[30]

The record shows that Mr. Torres was no more than an adequate employee.  However, Mr. Torres did not initiate the altercation with Mr. Lazarcik and there were no physical threats.  Given the isolated nature of the outburst, and the provocation, I find that a five day suspension would be the most severe penalty that a majority of arbitrators would uphold; even if they allowed the city a great degree of deference in selecting the punishment.

CONCLUSION

While the City’s legal arguments have merit, they are not supported by the findings of fact in this case. The burden is on the City to show, by clear and convincing evidence, that just cause existed to terminate the grievant, Gilbert Torres.  While just cause existed for discipline, the City has not met its burden of proof as to discharge, and the discipline is reduced to a six day suspension.  While a remedy of back-pay in this situation is harsh given the closeness of this case, it is required by arbitral precedent.

AWARD

The grievance is sustained.  The Employer will reduce Mr. Torres’ discharge to a six day suspension and reimburse him for all lost pay and benefits less any interim earnings (including unemployment insurance).

All fees and expenses charged by the Arbitrator shall be borne equally by the parties, as provided for in the Agreement, Para. 35.3.7.d.

__________________________

David Gaba, Arbitrator

                                                                        May 13, 2007

                                                                        Seattle, Washington

 



[1] Rabanco Recycling, 118 LA 1411 (2003).

[2] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961). See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947).

[3] State of Alaska, 114 LA 1305 (2000).

[4] Enterprise Wire Co., 46 LA 359, 363-4 (1966).
[5] Enterprise Wire Co., 46 LA 359, 362 (1966).
[6] Elkouri and Elkouri, How Arbitration Works 905 (5th Ed. 1987).

[7] General Telephone Co. of California, 73 LA 531, 533 (Richman, 1979).  See also:   Atlantic Southeast Airlines, Inc., 101 LA 515 (Nolan, 1993) (using clear and convincing standard); J. R. Simplot Co., 103 LA 865 (Tilbury, 1994) (same); Collins Food International, Inc., 77 LA 483, 484-485 (Richman, 1981) (same).  The Employer bears this burden of proof both with respect to proving the alleged violation, and with respect to demonstrating the appropriateness of the penalty.  Pepsi-Cola Co., 104 LA 1141 (Hockenberry, 1995).

[8]  For purposes of this decision, the terms “rules of conduct,” “work rules,” “list of disciplinary offenses” and similar policies, rules, and lists are referred to as work rules.

[9] City of Granite Falls, Minn. 90-1 ARB 8049 (Ver Ploeg 1989).

   See also Parker Hannifin Corp., 90-2 ARB 8435 (Rotenberg 1990) (violation of safety work rule); Shell Oil Co., 91-2 ARB 8448 (Massey 1991).

[10] See, e.g., Industrial Finishing, 40 LA 670 (Daugherty 1963).

[11] Occidental Chem. Corp., 91-0 ARB 8016 (Zirkel 1990).

[12] Robertshaw Controls Co., 55 LA 283 (Block 1970).

[13]See, eg.,  Hoover Co., 77 LA 1287 (Strasshofer 1982).

[14] See, e.g., Allied Chemical Corp., 74 LA 412 (Eischen 1980).

[15] Brand, et al., Discipline and Discharge in Arbitration, BNA, 1998, at p. 73.
[16] City Brief at 19 (emphasis added).

[17] See, e.g., Industrial Finishing, 40 LA 670 (Daugherty 1963).

[18] ITT Continental Baking Co., 80 LA 377 (Kreimer 1983).

[19] See J.F. Cassidy, Inc., 97 LA 801 (Oberdank 1991), where the arbitrator held that there was insufficient nexus to support discipline for off-duty alcohol intoxication in the employee’s own vehicle. See also Scott Paper Co., 100 LA 1113 (Caraway 1993), where the grievant was reinstated after discharge subsequent to misdemeanor conviction for off-duty possession of marijuana. While company policy provided for discipline for such convictions, the policy also proclaimed that the company did not set standards for moral conduct of employees. The arbitrator found no nexus between the activity leading to conviction and employee’s work, noting that “[n]exus between employee’s misconduct and his job duties and responsibilities can occur if the fellow employees refuse to work with the grievant or believe that his retention in employment constitutes a hazard to them.”Id. at 1117. Cf.  Motor Cargo, Inc., 96 LA 181, 91-1 ARB 8175 (Jones 1990), where the arbitrator found sufficient nexus to support discharge for off-duty use of cocaine while employee was in possession and control of a company truck; Western Michigan University, 115 LA 628 (Daniel 2000) (discharge of custodian arrested for cocaine possession within the vicinity of college campus was adequate nexus between off-duty misconduct and enforcement of drug-free policy and obligation of the university to maintain safety and reputation).

[20] 39 Arb. J. at 21.

[21] See, Lockheed Corp, 75 LA 1081 (1980).  Perhaps three of the Grievants thought it was against Company rules to smoke previous hitmarijuana next hit outside the plant at lunchtime -- at least on the parking lots -- judging from portions of their testimony. But the readily observed smoking of previous hitmarijuana next hit at the same time and places outside the plant day after day -- attested to by the officers and deputies as Company witnesses -- supports the conclusion that the Grievants did not expect to be disciplined, let alone discharged, for using or possessing drugs outside the plant on their lunch break.

 

[22] Employer Exhibit 10.

[23] Alvey, Inc.,.74 LA 835 (1980).

[24] Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). 

[25] Mr. Q's Enterprises, 116 LA 1304 (2002).

[26] Federal Bureau of Prisons, 91 LA 276 (1988).

[27] Alvey  Inc.,74 LA 835 (1980).

[28] Elkouri & Elkouri, How Arbitration Works (6th Ed., 2003), See also, Arbitrator Kossoff in 76 LA 300, 308; Volz in 50 LA 600, 603; Gilbert in 45 LA 580, 584; Dworkin in 36 LA 124, 128.  Also see Amoco Oil. V. Oil, Chem. & Atomic Workers Local 7-1, 548 F.2d 1288, 94 LRRM 2518, 2521, 2524-25 (7th Cir., 1977).  For discussion of other court cases on this aspect, see Fogel, “Court Review of Discharge Arbitration Awards,” 37 Arb. J. No. 2, pp. 22, 32 (1982). 

[29] Paperworkers v. Misco Inc., 484 U.S. 29 (1987).

[30] Discipline and Discharge in Arbitration, N. Brand, Ed., p. 57 (BNA, 1998). 

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