Title: Board of Education and Ohio
Association of Public School Employees Disabilities
OPINION AND AWARD
In the matter of Arbitration
Board of Education
Ohio Association of Public School Employees
(OAPSE)/ AFSCME, Local # 4/AFL-CIO, Local #123
An arbitration hearing was conducted on November 27, 2001 at Bexley High School, Bexley, Ohio. The issue at hand concerned the termination of Sandy Martin a Maintenance II employee. The Board of Education was represented by Greg Scott, attorney. Mr. Martin’s advocate was Sandy McGraw, Field Representative for the Ohio Association of Public School Employees (OAPSE).
At the hearing the parties jointly submitted various documents regarding the situation giving rise to this grievance including the Collective Bargaining Agreement in effect and the grievance trail. In addition to verbal testimony, management submitted twenty (20) documents and the union submitted thirteen (13). Both parties timely submitted post hearing briefs. All materials were reviewed and considered by the arbitrator in reaching this decision.
Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases. Both sides did so professionally and competently.
In their briefs the parties presented the issues somewhat differently.
Management stated: “This arbitration presents three questions:
The Union phrases the issue a bit differently:
The Arbitrator would phrase the question in the more
In addition, a threshold issue exists regarding the timeliness of the grieving of the verbal and written reprimands dated August 17.
The Collective Bargaining Agreement uses the term “cause” rather than “just cause.” Most Arbitrators, including this one, draws no distinction between the terms. Arbitrator Joseph D. McGoldrick states “It is common to include the right to suspend and discharge for “just cause,” “justifiable cause,” “proper cause,” “obvious cause,” or quite commonly simply for “cause.” There is no significant difference between these various phrases.”
In that this grievance deals with a disciplinary matter, management assumed the burden of proof and presented its case first.
RELEVANT COLLECTIVE BARGAINING SECTIONS:
ARTICLE 3 MANAGEMENT RIGHTS
3.01 Except as specifically abridged, delegated, granted or modified by the specific and express terms of this agreement, the Board hereby retains and reserves to itself, the Superintendent and other personnel in management all powers, rights, authority, duties and responsibilities conferred upon and vested in it or them by the laws and the Constitution of the State of Ohio and the United States.
3.02 The exercise of any management rights requires neither prior negotiations with nor agreement of the Union. Board rights shall not be subject to arbitration or impairment by arbitration award or otherwise except to the extent that they are limited by specific provisions of this Agreement. Failure to exercise a right or exercising it in a particular way shall not be deemed a waiver of any Board right.
ARTICLE 16 DISCIPLINE AND DISCHARGE
The employment of every employee, after he/she
successfully satisfies the probationary period for his/her job, shall be continuous
A non-probationary employee may be suspended by the
Superintendent or Director of Operations for up to fifteen (15) work days
without pay or may be given a working suspension, or discharged from his/her job
by the Board for any of the following causes:
16.03 Discipline Procedure
A. Before implementing a suspension or discharge of a non-probationary employee, the Superintendent or designee shall hold a conference with the employee to give the employee an opportunity to learn the reasons for the intended disciplinary action and to challenge the reason for the intended action or otherwise to explain the alleged misconduct or other cause. The employee has the right to be accompanied at the conference by one (1) Union representative. The conference will be scheduled as promptly as possible by the Superintendent/ designee. If the Superintendent/ designee determines the employee's continued presence in employment prior to the conference poses a danger to persons or property or a threat of disrupting operations, he/she may suspend the employee without pay for up to three (3) days pending the conference to determine final disciplinary action.
B. Discipline shall normally follow these progressive
C. When imposing a suspension by the Superintendent or Director of Operations or a discharge by the Board, the Superintendent or Director of Operations shall sign a written notice of suspension or discharge. The notice shall state the grounds for the action. The Superintendent or Director of Operations shall furnish a copy of the statement to the employee and to the Local President. Disciplinary action is effective according to the terms of the notice. The employee may file a grievance concerning his discipline or discharge in accordance with the time limits and procedures set forth in Article 12.
D. Records of disciplinary actions, including verbal and written reprimands and suspensions, shall be effective and remain in an employee's personnel file for twenty‑four (24) months after their issuance, provided no intervening discipline occurs. If intervening discipline occurs, the record of a warning reprimand, or suspension shall remain in effect and in the employee's file for twenty‑four (24) months after the issuance of the intervening discipline. Employees may request removal of reprimands prior to the twenty four (24) months and may be removed if mutually agreed to by the employee and the Superintendent/ designee.
ARTICLE 19 GRIEVANCE PROCEDURE
A. Grievance - A grievance should be defined as an alleged misapplication, misinterpretation or violation of only the specific and express written provisions of this Agreement.
B. Grievant - is a member of the bargaining unit who files a grievance, or in the event of a group grievance, the Local.
C. Day - means a work day during the regular school year, during the summer months, a day means a calendar day excluding Saturdays, Sundays, and legal holidays.
19.02 General Provisions
A. Time limits - A grievance must be filed within fifteen (15) days after the occurrence of the alleged violation. Since it is important that a grievance be processed as rapidly as possible the number of days indicated at each level shall be considered maximum, and every effort, should be made to expedite the process. The time limit specified may, however, be extended by mutual written agreement. Failure of the employer to process a grievance within the time limits specified, shall permit the grievant to appeal to the next level; failure of the Employee or Union to initiate the grievance or appeal a decision within the specified time limits shall result in the grievance being deemed waived and void.
C. Written Decisions
A. Step I
B. Step II
C. Step III
D. Step IV
Within ten (10) days of receipt of the written Step III disposition, the aggrieved party may appeal the grievance to the Board of Education. The appeal to the Board shall be in writing and filed with the Treasurer of the Board. The Treasurer shall place the. item on the. agenda for the next regular meeting of the Board of Education. If it chooses to do so, the Board may conduct a special meeting to deal with the grievance. The grievant shall be assured the right to present his/her case and argument, with representation, before the Board. Within ten (10) days of the Board meeting, the Board shall render its decision in writing to the grievant and the President of Local #123.
E. Step V
Within five (5) days following the notice to arbitrate, the parties shall either agree upon an arbitrator or shall request in writing the American Arbitration Association to furnish the parties with a list of seven (7) arbitrators. The parties shall adhere to the voluntary rules of AAA with each party first having an opportunity to request a second list. The arbitrator shall schedule the hearing with the mutual agreement of the parties as to date, time and place. The arbitrator shall hear and determine only one (1) grievance, multiple grievance arbitration by one (1) arbitrator at a single hearing shall be prohibited except upon specific and written agreement of the Union and the Board to do so, The sole exception to this is two (2) or more grievances which arose out of the same nucleus of operative facts
Within thirty (30) days after the close of the hearing, the arbitrator shall issue his award.
F The jurisdiction and the authority of the arbitrator's award shall be exclusively limited to the interpretation of the explicit provision of this Agreement. He shall have authority only to interpret and apply the specific provision of this Agreement, which shall constitute the sole basis upon which the arbitrator's decision shall be rendered, and shall consider only employee grievances arising under the application of the currently existing Agreement between the parties hereto. The arbitrator's decision shall be final and binding on all parties. G. The arbitrator shall not have the authority to add to, subtract from, modify, change or alter any of the provisions of this Agreement, not to add to, detract from or modify the language herein in arriving at a determination Of any issue presented that is proper within the limitations expressed herein. The arbitrator may consider the past practices of the parties only as an aid in interpreting the terms of this written agreement. The arbitrator shall expressly confine himself to the precise issue(s) submitted for arbitration and shall have no authority to determine any other issue(s) not so submitted to him or to submit observations or declarations of opinion which are not directly essential in reaching the determination. The arbitrator shall in no way interfere with management rights, nor limit or interfere in any way with the powers, duties and responsibilities of the Board under its policies, applicable law, and rules and regulations having the force and effect of law. H. The procedures contained in this Article constitute the sole and
exclusive method of considering the redressing of grievances arising during the life of this Agreement and any extensions thereof. It is expressly understood and agreed that neither the Union nor any employee shall engage in actions which are not expressly provided for in the grievance procedure such as the initiation of litigation or charges with a state or federal agency in connection with any dispute which is or could have been a matter presented as a grievance within this grievance procedure that is mutually acceptable to the Union's and the Board's representatives shall be final and binding upon the grievant, the Union, the Administration and the Board.
I The costs for the services of the arbitrator, including per. diem expenses, if any, and actual and necessary travel and subsistence expenses, as well as the related cost of the American Arbitration services, shall be borne equally by parties. The arbitrator shall designate in his/her award the prevailing party, or the predominately prevailing party. The expense of witnesses and other representatives shall be borne by the party they represent. A stenographic record of the arbitration proceedings may be made. Each party shall pay for its own copy of such record, if requested. The party requesting the stenographer shall pay for the stenographer, provided however, that if the other party requests a copy of the record, the parties shall split the cost of the stenographer.
Sandy Martin was a five year maintenance employee with the Bexley school district. Mr. Martin is a licensed electrician. Throughout his tenure with the school district Mr. Martin has been recognized as a strong-willed opinionated employee. He was hired as a Maintenance II worker. It appears to management that for the last two years Mr. Martin has been troubled by the fact there was not a specific “Electrician” classification.
He was disciplined twice in 1999 for insubordination and disruption. The supervisor issuing that discipline is no longer with the school district.
Later Mr. Martin filed a grievance seeking a higher rate of pay. He was informed such a change would need to be bargained with the union.
During negotiations for the current Collective Bargaining Agreement the Union sought a Maintenance Worker III classification at $1.00 per hour additional.
Following the ratification of the new contract management posted the Maintenance Worker III position. Mr. Martin did not bid on the new position.
The District created a new supervisor’s position, for maintenance and custodial workers that would begin July 1, 2001. Mr. Martin did not apply for this position.
Art Banks, a Maintenance I worker, was selected for the new position. From this point a series of events took place that led to the termination of Mr. Martin.
On July 3 Mr. Banks initiated a conversation with Mr. Martin about pending work orders. Mr. Martin became loud and argumentative and stated that Mr. Banks could not supervise an electrician.
The next incident occurred on July 19. After an effort by Supervisor Banks to discuss work orders, Mr. Martin asked for a meeting with Director Barrett and Director Zwick. Such a meeting took place. Mr. Martin sent a letter to Director Zwick stating his understanding of what had been agreed to during that meeting.
Neither Dr. Zwick or Director Barrett had the same memory of the meeting. Dr. Zwick sent a letter clarifying his understanding of that meeting.
The next day (July 20) Supervisor Banks approached Mr. Martin about a work assignment. This led to another reaction by Mr. Martin that was agitated, hostile and loud.
Supervisor Banks wrote a memorandum to Dr. Zwick recommending anger management or disciplinary action.
On Wednesday, August 15, Director Barrett held an evaluation conference with the grievant. Mr. Martin pretended to be sleeping while Mr. Barrett discussed the evaluation. This meeting ended with another confrontation wherein Mr. Martin made comments to Mr. Barrett such as: “you’re not a man,” “you’re just a yes-man,” and “you’re just a kiss-ass man.” This behavior continued while Mr. Barrett and Mr. Martin walked to the copy room to make copies of the evaluation.
Mr. Barrett recommended Mr. Martin be suspended for the abusive language he directed to Mr. Barrett during the evaluation conference
Also during August Mr. Barrett directed Mr. Martin to call him personally and not leave messages regarding sick leave usage. Mr. Martin not only did not comply, he finally stopped leaving messages as well.
During the month of August Mr. Martin began to wear a sling for his arm. Mr. Barrett asked Mr. Martin what was wrong. Mr. Martin responded: “nothing.”
Director Barrett mailed a memorandum to the grievant to his home asking him to “formally” respond as to the nature of his injury or ailment.” Mr. Martin received this memo on August 24 and did not provide a statement until August 29.
Another meeting took place August 29 wherein Martin was given the reprimand regarding August 17. In that meeting Mr. Martin stated: “You might as well get ready to fire me, because you are not gonna supervise me. You are not gonna supervise me, and Barry is not going to supervise e. I got the same license as Control Solutions and I want the same like they have.”
Mr. Martin was terminated for insubordination, neglect of duty, and malfeasance.
First, the union argues that the grievance is properly before the arbitrator and timely. They further contend that the termination was not for just cause in that management did not meet all seven of the commonly applied tests of just cause.
The Union also asserts that the discipline applied was not progressive as is listed in the Collective Bargaining Agreement and, if proven, the punishment did not fit the crime.
The union notes that Mr. Martin provided training and mentoring to Art Banks.
They contend Mr. Martin did not have problems prior to the current supervisors.
The union notes Mr. Banks recommended anger management classes but management did not offer this option.
Several teachers offered letter of support for Mr. Martin.
The Union argues that Mr. Martin’s resistance to supervision related to the fact he is required to comply with the National Electric Code. Mr. Martin, and the union believe it would be unsafe for him to submit to supervision of non-licensed persons.
The Union asserts that “At no time did Mr. Martin ever refuse to complete any tasks asked of him that were not in conflict with the code. He made that VERY clear during his testimony and repeated more than once that he has cleaned toilets and done any other custodial or maintenance duty required of him, even though cleaning toilets was not a duty normally performed by maintenance employees.” (Union brief, page 16).
In conclusion, the Union does not believe management proved its case. Further, even if management had proven its case, the punishment does not fit the crime.
The grievant testified on his own behalf.
Prior to the conclusion of the hearing the Arbitrator asked the grievant:
“Before we conclude, is there anything you want to add or anything else you
would want me to consider in making this decision? Do you feel like you
have had a fair hearing and that your union has represented you adequately?”
Mr. Martin indicated that he felt better and that had had received a fair hearing. He stated that he had nothing further to add.
Let us begin with consideration of the preliminary question. Management objects to any attempt to grieve discipline other than the termination. The Union does not seem to disagree. From the wording of the grievance I am unsure if anyone is attempting to grieve the issuance of the verbal and written reprimands delivered on August 29.
I agree that such consideration would be untimely. The question before this Arbitrator is the termination of Sandy Martin.
Management views the authority of the Arbitrator as being very narrow. The
contract includes a strong management rights section: “Board rights
shall not be subject to arbitration or impairment by arbitration award or
otherwise except to the extent that they are limited by specific provisions of
This language, combined with the language in Article 19, where it states: “The jurisdiction and the authority of the arbitrator's award shall be exclusively limited to the interpretation of the explicit provision of this Agreement. He shall have authority only to interpret and apply the specific provision of this Agreement, which shall constitute the sole basis upon which the arbitrator's decision shall be rendered…” leads management to argue that the Arbitrator can only consider if the Board’s action is the Board’s action was arbitrary, capricious or in bad faith.
While the language in the Management Rights section is somewhat unique, it appears to this Arbitrator that the meaning stated by management is, in part, wishful thinking. Once a just cause standard is incorporated into a Collective Bargaining Agreement, management has “limited by a specific provision(s) of this Agreement.” The Arbitrator, while giving due deference, to the action taken by the Board of Education, must still determine if just cause exists to support the disciplinary action imposed.
The Union properly notes that the best way to determine if just cause existed is to turn to the Seven Tests of Just Cause at first formalized by Arbitrator Carroll Daugherty, in the Enterprise Wire Case.
Test No. 1: Was the employee forewarned?
The purpose of this test is to assure the employee being disciplined was aware of the possible consequences of continuing the behavior in question. In this case there can be no doubt that Mr. Martin was aware. His statement gives evidence that he understood his behavior was putting him at risk when he said: “You might as well get ready to fire me, (emphasis added) because you are not gonna supervise me. You are not gonna supervise me, and Barry is not going to supervise e. I got the same license as Control Solutions and I want the same like they have.”
Test No. 2: Was the rule(s) reasonable and fair?
Every organization operates through some chain of command
arrangement. All of us have “bosses.” The argument that a person
must be supervised by a person who has the some qualifications and licensure is
not only false, it is irrational. To suggest that a pilot in the Armed
Forces can only be supervised by another pilot would lead to a complete
breakdown in command.
There is absolutely no evidence that the current chain of command at Bexley ever attempted to get Mr. Martin to violate the National Electrical Code or any other authority.
The rules involved here are not only reasonable, but necessary for the efficient operation of the School District.
Test No. 3: Was there an investigation?
The publication submitted by the Union as a part of its Post-Hearing Brief, poses the question: “Did the Employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?” The answer to this question is clearly YES. The grievant made any investigation easy for management. His refusals to submit work orders, his rejection of supervisory direction is well documented.
Test No. 4: Was the investigation fair?
A review of all the documents and the testimony fails to reveal any unfairness or bias in the process undertaken by the district.
Test No. 5: Was there proof that the employee was guilty as charged?
Regarding the charge of insubordination there was proof. The charges of neglect of duty and malfeasance are more problematic in the mind of this Arbitrator. They will be discussed in more detail later in this opinion.
Test No. 6: Have the rules be applied even handedly and without discrimination?
The Union made an attempt to assert disparate treatment by noting that others had done work without utilizing work orders but their own witness acknowledged there was a procedure to be followed and that he followed it.
Even if this Arbitrator was convinced that other employees had failed to comply with the use of work orders in the past, there is no evidence that other employees have failed to comply with the expectations of the new supervisor.
The grievant has apparently attempted to introduce a racial element into the conversations between himself and the persons in his chain of command. Again, there is no evidence of any racial overtones in this entire situation. The district went to the additional step of asking their EEO designee to look into the situation. At the time of the hearing her findings were not known.
Test No. 7: Was the penalty appropriate?
Turning again to the publication provided by the union the question is phrased: “Was the degree of discipline administered by the Employer in a particular case reasonably related to (a) the seriousness of the employer’s proven offense, and (b) the record of the employee in his service with the Employer?”
This is the central issue in the case at hand. There is no question in the mind of this Arbitrator that Mr. Martin was insubordinate in his refusal to accept direction from his new supervisor Mr. Banks. For whatever reason, Mr. Martin felt Mr. Banks was not adequate to supervise him. His record shows that he did not appreciate or easily accept supervision from anyone, but Mr. Banks must have been particularly objectionable.
One would expect that these feelings arose due to the fact Mr. Martin provided training to Mr. Banks previously.
While these feelings can be recognized, an employer cannot tolerate such disregard for supervisory authority. The task of selection of supervisors is reserved for management.
There is also no question in my mind that Mr. Martin was rude and discourteous to his Director, Emmett Barrett during the evaluation conference.
He was also insubordinate when directed by Mr. Barrett to contact him when he called off sick. He chose not to comply. His presentation of information from his Doctor was not timely.
The matter of neglect of duty is less clear. Testimony indicated that the work performed by Mr. Martin was quality work. The matter of completion of work orders could be viewed as neglect but this arbitrator tends to see it more as an insubordinate act.
The matter of malfeasance is viewed as a “belt and suspenders” charge added by management to assure that statutory definitions were met, rather than adding an additional dimension to the items to be decided by the arbitrator.
So, if Mr. Martin is guilty of the infractions noted above, the question remaining is whether the punishment fits the crime, and whether there is anything in Mr. Martin’s work record with the District that would suggest mitigation of that appropriate punishment.
Other Arbitrators have considered similar cases. Arbitrator Harry Platt , in the Riley Stoker Corporation case, set a standard that is still considered:
“It is ordinarily the function of an Arbitrator in interpreting a contract provision which requires "sufficient cause" as a condition precedent to discharge not only to determine whether the employee involved is guilty of wrong-doing and, if so, to confirm the employer's right to discipline where its exercise is essential to the objective of efficiency, but also to safeguard the interests of the discharged employee by making reasonably sure that the causes for discharge were just and equitable and such as would appeal to reasonable and fair-minded persons as warranting discharge. To be sure, no standards exist to aid an arbitrator in finding a conclusive answer to such a question and, therefore, perhaps the best he can do is to decide what reasonable man, mindful of the habits and customs of industrial life and of the standards of justice and fair dealing prevalent in the community, ought to have done under similar circumstances and in that light to decide whether the conduct of the discharged employee was defensible and the disciplinary penalty just.”
Above all else the “reasonable person” test needs to be applied. Can an employer accept and work with an employee who determines who will supervise him and who will not. Almost any reasonable person will conclude that they cannot.
We must then consider the fact that this discipline is not progressive in nature. At best there was a verbal and a written reprimand issued by a former supervisor, and a verbal and a written issued just prior to the termination of Mr. Martin.
The Union properly argues that management had opportunity to utilize suspension as a remedy before invoking termination.
This Arbitrator is a strong advocate of utilizing progressive discipline and giving employees an opportunity to correct bad behavior. However, the Board has specifically reserved for itself the right to go beyond progressive discipline in the language of 16.03:
“The Board or administration may apply a higher level of discipline, (including discharge) if appropriate, considering the alleged violation, misconduct or performance problem(s)”. (emphasis added.)
The grievant’s escalating hostility and his absence from work made it very difficult for management to use normal progressive discipline.
From the evidence in this case it is also difficult to believe that Mr. Martin would have modified his behavior even if additional discipline had been utilized prior to termination. The Arbitrator, in the Bellingham Cold Storage case, considered a grievant who appears to had motivation similar to that of Mr. Martin.
“The Grievant responded to each attempt to correct the
problem by defiantly stating that he would not change his behavior. When
questioned following the incident which led to his termination, the Grievant
reiterated this, and gave no indication that he was prepared to obey the
instructions of his superiors in the future. This is not a situation where one
more chance for the employee is called for, since the Grievant has been given a
number of additional chances, despite his repeated statements that he was not
about to correct his behavior. Given the Grievant's oft expressed and unchanging
attitude that supervision cannot tell him what to do, management cannot be
faulted for responding that it need not maintain in its employ someone who is
not receptive to its directives.” 
The Union has attempted to equate insubordination to the failure to follow a
direct order given by management in which the notification of a pending penalty
is included. While this is one correct definition of insubordination,
there is a more subtle form that comes into play in this case. Arbitrator
Volz, in the Roman Ceramics Corp. case notes: "insubordination" is
such a serious offense that it may result in discharge or suspension without
prior written warning. Insubordination essentially is the showing of improper
respect to authorized supervision."
The insubordination in this case is of the same type. Mr. Martin, for
reasons known only to himself, made a decision not to accept the supervision or
the work arrangement in which he found himself. His demand to be paid as
an independent contractor, while an employee of the Board of Education, shows an
inherent disrespect for his job and his superiors that cannot be tolerated in
Part B of Test No. 7 requires that we examine the work record of the employee to
determine if there is reason for the penalty imposed to be modified.
Mr. Martin has been with the District for approximately five years. It
appears that he is a competent electrician who takes pride in his electrical
work. If the story ended there, consideration might be given to
modification of the penalty. But witnesses, including those who appeared
on behalf of Mr. Martin, paint a picture of an employee who has been
argumentative throughout his tenure and increasingly difficult to work with.
Arbitrator John Day Larkin, in the Borg Warner case deals with the question of
weighing the past record of an employee. He states: “by the same token,
if an employee’s past performance has been one of increasing disregard of his
responsibilities to his job and to the employer who is paying him, no arbitrator
can rightly sweep this sort of evidence under the rug and confine himself to
technical evidence pertaining to a particular incident on a particular day.
To do so would not add to the cause of good industrial relations. It might
do irreparable harm to the arbitration process.”
This is an unfortunate case in that Mr. Martin appears to this Arbitrator, to be
a person who is very proud of his craft as an electrician. His technical
knowledge, and his desire to do the work correctly are attributes to be valued.
This is the type of electrician this arbitrator would like to have working on
his own home.
The issues in this case are not about being a good electrician. They are
about the ability to work effectively as an employee showing proper respect to
the employer and to the supervisors assigned by that employer.
FINDING AND AWARD:
For the reasons herein stated I find that cause does exist to support the
termination of Sandy Martin from his position with Bexley City Schools. I
further find no violation of the Collective Bargaining Agreement.
The grievance is denied.
Issued this 7th. Day of February, 2002 at London, Ohio
N. Eugene Brundige, Arbitrator
 COLLECTIVE BARGAINING AGREEMENT, Article 16 (16.01) (4).
 Worthington Corp., 24 LA 1, 6-7 (1955)
 COLLECTIVE BARGAINING AGREEMENT, Article 3
 Just Cause the Seven Tests, Koven, Adolph M., Smith, Susan L., Second Edition Revised by Farwell, Donald, F., The Bureau of National Affairs, Inc. Washington, D.C. 1992
 Riley Stoker Corp., 7 LA 764 (1947)
 Bellingham Cold Storage and General Teamsters, Local 231, 81 LA 1243, December 7, 1983
 Roman Ceramics Corp., 74-1 ARB Para. 8025 (Volz, 1974).
 Borg-Warner Corp. 22 LA 589, 596 (1954)