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Title: City of Springfield, Oregon and Oregon AFSCME Council 75 Local 1148
Date: December 18, 2002 
Arbitrator: David E. Pesonen 
Citation: 2002 NAC 126 

ARBITRATOR DAVID E. PESONEN

OREGON AFSCME COUNCIL 75
LOCAL 1148 
(Scott May, Grievant)

 

And

 

CITY OF SPRINGFIELD, OREGON

(Employer)        

 

Arbitrator's Decision and Award

 

 

                                                                                            

I.              Introduction

The hearing in this matter was held on November 6, 2002, in Springfield.  The Grievant, Scott May, and AFSCME Council 75, Local 1148, the employee organization for certain of the City’s employees, were represented by Allison Hassler, Esq., Legal Counsel for Oregon AFSCME, Council 75.  The employer, City of Springfield, was represented by Timothy J. Harold, Esq., of the firm of Harold, Leahy & Kieran. The parties introduced eight joint exhibits; the City introduced 15 exhibits and testimony from five witnesses.  Grievant testified, introduced four exhibits, and introduced testimony from the AFSCME Council 75 Representative who had held that position at times relevant to the recent events underlying this grievance. Simultaneous closing briefs were submitted to the arbitrator on November 26, 2002, and the matter stands submitted for decision on that date.

II.         The Issue

This is a discharge case.  The issue is whether the City’s discharge of Grievant Scott May on June 19, 2002, was for “just cause” under Article 20.1 of the collective bargaining agreement between the City and AFSCME Local 1148. 

The culminating events for this discharge were triggered on May 16, 2002, during the execution of a search warrant of Scott May’s residence, which he shared with two other persons, by an Inter-Agency Narcotics Team consisting of law enforcement personnel from Lane County and the City of Springfield.  The warrant alleged that the residents of the house, including Grievant’s companion of 22 years, Karol Mason, and another roommate, were engaged in the illegal sale of controlled substances, including marijuana and cocaine.  Grievant was arrested, cited, booked and then released; but ultimately he was not prosecuted for drug offences.  The other two members of the household were charge and were awaiting trial as of the date of this arbitration hearing.

The City’s position is that Scott May’s performance on the job had seriously deteriorated during the year preceding his arrest, that he was untruthful with is superiors both in earlier conferences regarding his job performance and during their questioning about the events surrounding the arrest, and that his continued lack of candor was sufficient basis for just cause termination, particularly in light of his unrestricted access to sensitive areas of City Hall.

The Grievant’s theory is that Scott May was wrongfully discharged for conduct away from the job that was unrelated to his performance as a City Hall custodian and that the City’s claim that he had been untruthful was either a pretextual reason for his discharge or was an arbitrary denial of equal treatment in light of other cases involving dishonesty of Springfield City employees that did not result in termination.   

III.    The Evidence

Scott May had been employed as a Custodian I with the City of Springfield for about ten years, seven of which were as a full-time employee and the last five as a non-probationary employee.  He was one of three custodians whose shift, from 2:00 p.m. to 10:30 p.m., was to clean the Springfield City Hall.  In that job he had access to all areas of the city administration, including offices with sensitive financial and personnel records.  His performance evaluations were satisfactory until the summer of 2001, when his performance on the job began to deteriorate.  Around August 2001, a pattern emerged of late arrivals, frequent absences for claimed medical reasons without documentation, and staying late in the building.  His co-workers complained that they had to make up for his inadequate performance.

On September 7, 2001, Grievant’s immediate supervisor, Mike Risley, met with him for a “coaching session,” an early step in progressive discipline.  Risely summarized his concerns in a memorandum which listed four “expectations”: prompt arrival at the beginning of May’s shift, certain conditions respecting lunch breaks, leaving the building promptly at 10:30 p.m., and production of a doctor’s verification of any illness for which he had called in sick.  This memo expressed Risely’s “hope that it will help you avoid disciplinary action. This memo is not a form of discipline, however if the following expectations are not met then discipline may result.”  May acknowledged receipt of the memorandum and told Risely that he “could abide by” his stated expectations.

 Risely testified that Scott May’s performance, nevertheless, did not greatly improve following the September 7th counseling session, except with respect to presenting medical confirmation of his absences for health reasons.  During this time, Scott May suffered from several medical conditions, including a mild form of diabetes, a shoulder injury, and various respiratory problems. However, the evidence presented at the hearing did not link any particular attendance incident to any specific medical condition.  Grievant testified that his diabetes, diagnosed in 2001, caused fatigue, which he claimed was the general cause of his tardiness in beginning his shift and completing his work on time and that he had discussed this condition with his supervisor. 

On April 9, 2002, seven months after the previous counseling session, Risley issued to Scott May a “Notice of Written Reprimand” concerning an attendance problem on April 8th.  It is pretty clear on this record that Risely was becoming impatient with Scott May’s explanations of his attendance problems and doubted his credibility.  At one point Risely expressed a sporting metaphor to May:  “You can bullshit the fans but not the players,” clearly meaning that he did not believe May’s excuses for his performance problems.

On May 7, 2002, Risely held an annual performance evaluation with Grievant.  The element of "quantity of work” was scored as “needs improvement” based on “high use of sick leave and being late at the beginning of your shift. . .”  “Dependability/Accountability” likewise needed improvement because “tardiness and poor attendance” were a continuing problem.  The evaluation form stressed that “the next occurrence of arriving late for work will result in discipline.” All other elements of the performance evaluation were “satisfactory” except for “Job Knowledge” which was “highly satisfactory.”

During the May 16th arrest, Detective Pena of the Lane County Sheriff’s Office, interviewed Scott May at the scene.  Pena’s report of the incident recited that he had advised Scott May of his Miranda rights and that he stated that he “does smoke marijuana but does not sell it. . . Scott May commented that his girlfriend is the one that uses cocaine.  Scott May told me Karol Mason sometimes uses cocaine on a daily basis.” The other roommate, James Martin, was also interviewed at the scene by Detective Pena and admitted to sale of marijuana and use of methamphetamine; methamphetamine in a form for sale was found among his effects.  Detective Pena’s testimony in this arbitration hearing was credible and was consistent with his written report of the incident.

On the day of the search and the arrest of the three occupants of May’s residence, one of the arresting officer’s notified Bill Spirey, the City’s Human Resources Director, of Scott May’s arrest.  May was promptly put on administrative leave with pay.  Spirey attempted to set up a conference with May and his union representative but had problems contacting him.  Finally on May 30th     he contacted Lou Sinniger, then the AFSME Counsel 75 representative, and scheduled a disciplinary meeting on June 3rd.  Spirey stressed that one of the issues to be addressed in that meeting was the City’s concern over “tardiness/dependability [and] trust” in light of Grievant’s recent conduct and his unsupervised access to sensitive locations in City Hall.

Sinniger and May appeared at the June 3rd meeting along with May’s attorney in the criminal proceedings and the City’s representatives, including Mike Risely and Dan Brown, the City’s Public Works Director.  In a June 7th letter to Grievant, Dan Brown summed up the June 3rd meeting and the City’s response as follows:

. . . During this meeting you were asked to respond to a number of questions regarding [the May 16th] incident, your use or involvement with drugs, and your trustworthiness as it relates to your employment.  Twice during that meeting you were clearly advised that we expected you to be truthful with us to emphasize the importance of honesty in your responses to our questions.  Your responses to questions during that meeting, absolutely denying any use of drugs by you, denying prior knowledge of drug use or possession by anyone living with you, or knowledge of drug related activities in your residence prior to your arrest, directly contradicted statements you made to the arresting officers. . .

. . .

Your clear untruthfulness in your responses to our questions during this investigatory meeting June 3rd, demonstrated an absence of integrity and trustworthiness. You were given ample opportunity to be forthright in this matter.  You failed to do so.  As a result we cannot maintain sufficient trust in you to entrust you with the unrestricted access to City Hall required in your job.

 

     This memo concluded that May was in violation of several provisions in the City’s Personnel Policies and Procedures Manual, including conduct which “threaten [sic] the safe and productive conduct of City operations, or endangers City personnel or property.”  However, at the arbitration hearing, the City’s witnesses confirmed that they knew of no suggestion that Scott May had abused his access to sensitive areas in City Hall.

      So far as I can determine from this record, neither the Union representative nor Scott May’s counsel in the pending criminal proceedings objected during the June 3rd meeting to the line of questions regarding Scott May’s own drug use or his knowledge of drug-related activity in his residence. An instruction by the union representative or his counsel in the criminal proceedings to such questioning might arguably have been appropriate on Constitutional grounds.

Under the progressive discipline provisions of the collective bargaining agreement, the next step was a “predetermination hearing,” scheduled for June 13th.  At that hearing, which Ms. Hassler also attended, the City’s representatives reiterated their lack of confidence in Grievant’s truthfulness.  Six days later, on June 19th, Public Works Director Dan Brown sent him a formal termination letter. 

Thereafter, the Union’s counsel pursued his grievance through the steps prescribed in the collective bargaining agreement up to the City Manager, who responded on August 6th, that “I find that the termination was entirely appropriate and hereby deny your Step 3 grievance.”  This arbitration followed.

IV.         Analysis

The Union’s brief in this case invokes a seven-part test articulated by Arbitrator Daugherty in a 1964 case and summarized in a discussion of “just cause” in Discipline and Discharge in Arbitration, Norman Brand, editor-in-chief, BNA, 1998[1]. [Hereafter, Brand, et al.] The Union contends that the employer’s failure to satisfy any one of these seven elements “means that just cause either was not satisfied or at least was seriously weakened in that some arbitrary, capricious, or discriminatory element was present.”  (Union’s Post-Hearing Brief at pp. 4-5.)  Arguably, in this arbitrator’s opinion, each of these tests has been satisfied by the City’s approach to Scott May’s termination.   

However, Brand, et al. note that enthusiasm for use of this seven-part test “is far from universal” and that even its author acknowledged that it is not susceptible to “slide-rule precision.”  They suggest that arbitrators should apply a more flexible approach which focuses on due process or fairness in the disciplinary procedures, progressive discipline, and equal treatment. 

For just cause to exist, discipline must further one or more of management’s three legitimate interests:  rehabilitation of a potentially satisfactory employee, deterrence of similar conduct, and protection of the employer’s ability to operate the business successfully.  Brand, et al., p. 34. (Italics added.) 

 

      The history of Scott May’s performance evaluations is that he was generally a satisfactory employee.  The record is also clear, however, that for nearly a year the employer had sought to give him an opportunity to correct his attendance and related problems but that he consistently failed to correct or acknowledge them.

Nevertheless, the Grievant in this case contends that his termination was an over-reaction to an off-the-job event that had no bearing on--that is, no nexus with--his job performance. In support of this position his counsel argues that the City’s action is inconsistent with discipline imposed in other cases and thus reflects that the reasons given by the City are either pretextual or an arbitrary denial of equal treatment. These other disciplinary cases are summarized in the margin.[2]

     The Grievant also relies on reported arbitration decisions, particularly two cases in which the issue involved off-the-job conduct.  King Company and Dist. 77, Int’l Assoc. of Machinists & Aerospace Workers, AFL-CIO, 89 LA 681 (1987), involved four discharged employees who had vandalized the property of another employee in the context of a labor dispute.  They were untruthful with the employer during its investigation of the incident.  The arbitrator ruled that since the employees were actually prosecuted for criminal charges related to the vandalism, it was unfair for the employer to pile on discipline, particularly since the alleged conduct was a one-time offense in the atmosphere of a heated labor dispute.  There was no evidence in that reported decision of deteriorating or otherwise inadequate job performance or progressive discipline for prior misconduct by the offending employees.

     Champion Int’l and United Paperworkers Int’l, 96 LA 325 (1991), the other case relied upon by the Grievant, also involved discharge of an employee at a large industrial plant.  It implicated a company policy against sale or use of alcohol or narcotics on the mill site.  The employee, a 16-year veteran of the company with no prior discipline, was convicted in state court for sale of cocaine to an undercover agent who posed as a close acquaintance.  There was no allegation that the employee used narcotics or engaged in any narcotics related activity on the job site.  Nor was there any suggestion of inadequate job performance.  The facts smacked strongly of entrapment.  The arbitrator upheld the grievance, holding that the particular company policy invoked in the discipline did not apply under the particular facts of that case.

     In neither the other discipline cases in the City of Springfield nor the reported arbitration cases relied upon by Grievant in this case was there a history of progressive discipline.  The purpose of progressive discipline as a general matter is to give the employee an opportunity to correct problems with his performance that would lead to greater discipline including discharge if not corrected.  An essential element of that process is an acknowledgement by the employee of the nature of the performance problem and the need to correct it.

     The Grievant’s testimony in this arbitration hearing did not help his case.  This arbitrator found him to be evasive and contradictory in his responses to direct examination by the Union’s counsel, Ms. Hassler, and cross-examination by the City’s attorney.  He at first denied knowledge of an arrest of Karol Mason in 1996 on drug charges, then admitted knowing she had been convicted for that offense.  He denied knowledge of various drug paraphernalia on the table beside the bed where he and Karol Mason were awakened by the arresting officers in the May 16th search. His explanations regarding the safe in the bedroom which contained drugs and substantial sums of money were less than credible. And he denied having admitted to Detective Peۤna his prior use of marijuana and the regular use of cocaine by Karol Mason.

     Brand et al. observe that the grievant’s candor in the arbitration proceeding is often a material fact in the arbitrator’s ultimate ruling:

. . . Where the grievant has been completely forthright about the conduct and has cooperated with the company’s investigation, arbitrators have found this a mitigating factor.

 

     Arbitrators also have been sensitive to a grievant’s candor or lack thereof at the arbitration hearing itself.  Because the underlying charge is one of dishonesty, arbitrators have considered testimony that involves implausible explanations or obvious attempts to cover up as further evidence of the employee’s untrustworthiness.  (Brand et al. at p. 237)

 

     But for Scott May’s lack of credibility in this arbitration hearing this would be a close case, possibly calling for some form of rehabilitative discipline short of discharge.  Mitigating factors include the fact that there was no evidence that he had abused his access to sensitive areas of the Springfield City Hall, that he had suffered various medical problems that affected his performance, and that his off-the-job drug use was, if anything, in the past and minor in any event.  Termination of employment is the most severe discipline the employer can impose.  Scott May’s circumstances would justify resort to lesser discipline, including reduction of pay, mandatory attendance of counseling through the City’s Employee Assistance Program, or some other action short of discharge.  But a predicate for any such solution is an acknowledgment of a need to correct deficient performance and a forthright agreement to follow through. 

     The City’s progressive discipline in this case, extending over nearly a year’s time, offered Scott May the level of administrative due process contemplated in the collective bargaining agreement.  He had ample opportunity to seek reduction of the severity of the ultimate discipline imposed, including persuading this arbitrator of the efficacy of lesser discipline.  However, in light of his continued dishonesty, carried over into this arbitration hearing, he has forfeited that opportunity.

      The nexus between the May 16th arrest and Grievant’s performance as a custodian of the Springfield City Hall is his consistent failure, over nearly a year’s time, to truthfully acknowledge the shortcomings in his performance and to participate in the employer’s efforts to correct those deficiencies.  That failure was reinforced by his continued lack of candor when questioned by his employer about his past performance and the May 16th events and such examination by both parties’ counsel in this arbitration hearing.

V.  Award

Scott May’s grievance of the formal termination on June 19, 2002, of his employment with the City of Springfield, Oregon, is denied.

The Grievant and AFSME Council 75, Local 1148, are the “losing parties” within the meaning of Article 19.2 of the Collective Bargaining Agreement and shall pay the arbitrator’s fees and expenses upon receipt of an itemized statement.

 

Dated: December 18, 2002                                   ________________________     _
 
                                                                                      David E. Pesonen, Arbitrator

 

 

[1] 1. Notice: “Did the employer give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct? . . .

 2.  Reasonable Rule or Order: “Was the employer’s rule or managerial order reasonably related to the orderly efficient, and safe operation of the company’s business? . . .

 3. Investigation:  “Did the employer, before administering discipline to an employee, make an effort to discover whether the employee violated or disobeyed a rule or order of management? . . .

 4.  Fair Investigation:  “Was the employer’s investigation conducted fairly and objectively? . . .

 5.  Proof: “At the investigation did the ‘judge’ obtain substantial evidence or proof that the employee was guilty as charged? . . .

 6.  Equal Treatment:  “Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees. . .

 7.  Penalty:  “Was the degree of discipline administered by the employer reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee’s service? . . .”  (Brand, et al. at pp. 31-32.)

[2] In 1991, a Custodian II, the next level above Custodian I, was charged with falsifying time records and abuse of sick leave over a five-day period.  The City’s “Memorandum of Impending Discipline” asserted that these offenses were serious enough to warrant demotion but not discharge.  The record does not reflect the employee’s response to the charges or the ultimate discipline imposed.

  In 1992, a Custodian I was subject to discipline for leaving work early, failure to finish his assignment, falsifying a time record, and unauthorized removal of a book from the library.  When first confronted with these allegations, the employee was untruthful regarding his time of leaving the job.  At the disciplinary hearing, however, the employee, through his counsel, admitted all of the allegations.  Testimony in the present case is that this employee then resigned.

  More recently, in October 2001, an Animal Control Officer in the City Police Department was charged with falsifying certain records involved in the destruction of fourteen of a citizen’s cats.  The alleging document asserted that these offenses would justify discipline ranging from oral reprimand to termination.  The record does not reflect the ultimate disposition of this matter.

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