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Title: City and County of Honolulu and United Public Workers
Date: 2002
Arbitrator: 
Michael Nauyokas
Citation: 2002 NAC 153

 

BEFORE ARBITRATOR MICHAEL F. NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between 

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,

                                    Union,

            and

CITY AND COUNTY OF HONOLULU, DEPARTMENT OF FACILITY MAINTENANCE, ROAD MAINTENANCE DIVISION, KAILUA CORPORATION YARD,

                                    Employer.

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Grievance of LEVI JOSEPH

 

 

Arbitration Hearing:

Date:    May 2 & 21, 2002
Time:    9:00 a.m.

 

                                                   

 

ARBITRATION DECISION AND AWARD

                                                                                    Michael F. Nauyokas
                                                                                    Attorney, Mediator & Arbitrator
                                                                                    733 Bishop Street, Suite 2300
                                                                                    Honolulu, Hawaii 96813
                                                                                    Telephone:  (808) 538-0553
                                                                                    Facsimile:    (808) 531-3860
                                                                                    Arbitrator


IN THE MATTER OF THE ARBITRATION BETWEEN
UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO AND
CITY AND COUNTY OF HONOLULU, DEPARTMENT OF FACILITY
MAINTENANCE, ROAD MAINTENANCE DIVISION,
KAILUA CORPORATION YARD
(THE GRIEVANCE OF LEVI JOSEPH)

            This matter came on to arbitration at hearings held on May 2, 2002 and May 21, 2002.  The United Public Workers, AFSCME, Local 646, AFL-CIO (“Union”) was represented by David Hagino, Esquire and the City and County of Honolulu, Department of Facility Maintenance, Road Maintenance Division, Kailua Corporation Yard (“Employer” or “City and County of Honolulu”) was represented by Duane W. H. Pang, Esquire.  The Arbitrator made a full disclosure of his prior relationships with both the parties and their counsel, and any objections were specifically waived by the parties to the arbitration through their counsel.  The parties stipulated to procedural and substantive arbitrability of the controversy and to the fact that the arbitration was properly set following the grievance procedure outlined in the Bargaining Unit 1 Agreement (“Agreement”) between the Employer and the Union.  Pursuant to the Stipulation, the terms of the Agreement govern this subject.  The arbitration was conducted pursuant to Section 15.17 of the Unit 1 Agreement.  All parties were fully, fairly, and well represented at the arbitration hearing, and subsequently.

ISSUE PRESENTED

            Pursuant to the arbitration hearing, the issues presented to the Arbitrator are:

Issue No. 1:

            Did the Employer violate Sections 11, 46, and 58 of the Agreement when it terminated the Grievant on January 16, 2002?

Issue No. 2:

            If so, what shall be the remedy?

SUMMARY OF FACTUAL BACKGROUND

           

            The Employer is the City and County of Honolulu.  Levi Joseph (“Joseph” or “Grievant”) was employed by the Employer in a branch entitled the Department of Facility Maintenance as a Laborer I for two years (i.e., since 1999), and was terminated on January 16, 2002.

            Several memorandums against workplace violence were issued to all employees and supervisors of the Department of Facility Maintenance (“Department”) during the Grievant’s employment, including a particular memorandum which set the guidelines for workplace violence for all United Public Workers (“UPW”) employees.

            A memorandum, dated December 20, 2001, which was issued to supervisors and employees of the Department, indicated a zero tolerance for workplace violence.  The memorandum included specific steps one should follow in reporting workplace violence.

            The Grievant received information regarding workplace violence at a Honolulu Police Department (“HPD”) Workplace Violence Presentation on August 24, 2001.  The Grievant was informed that if he should experience any form of workplace violence, that he should report it to his supervisor, then to HPD.

            The Grievant witnessed a coworker, Charles Gutierrez (“Gutierrez”) bring several weapons to work.  The Grievant knew that Gutierrez (and Gutierrez’ brother Wilbur) brought pistols and hand-made clubs to work, he thought they were “cool” and never reported the incidents to his supervisor.  The Grievant also saw Wilbur Gutierrez (“Wilbur”) place a gun in his locker three or four weeks prior to the incident.

            The Grievant was aware of an incident between a co-worker, his Uncle Everett Goo (“Goo”), and Gutierrez whereby Gutierrez allegedly pointed a gun at Goo’s head.  He never reported the incident to his supervisor and instead, on November 14, 2001, chose to confront Gutierrez about it at the workplace.  After confronting Gutierrez, he proceeded to get Gutierrez to confront his Uncle regarding the same alleged incident.

            After Grievant’s Uncle revealed that the incident had taken place two years prior, the Grievant struck Gutierrez.  As a result, Gutierrez fell backward, hit his head on a vehicle, became unconscious and received medical attention.  The Grievant has never denied striking Gutierrez.

            The Grievant was informed that Gutierrez had a weapon in his pocket after he hit Gutierrez.  He never saw the weapon during the argument.

            Larry Leopardi, Division Chief, Road Division, Department of Facility Maintenance, City and County of Honolulu (“Leopardi”) was notified by Michael Pundke, Superintendent for the Kailua Yard (“Pundyke”) about the incident between the Grievant and Gutierrez.  Leopardi conducted an investigation, including all witnesses and parties involved at the Kailua Yard, on the day of the incident.

            By letter dated December 26, 2001, the Grievant was notified that he was discharged, effective the close of business on January 16, 2002, as a result of the November 14, 2001 incident (“the incident”).

            He and the Employer mutually agreed to forego Step 1 of the grievance process and proceed directly to Step 2 of the grievance process.  On February 26, 2002, the Grievant’s Step 2 grievance was denied.

            There was no evidence presented that the Employer had discharged any employee for the first act of violating the Mayor’s workplace violence policy.  There was evidence presented that several employees had been suspended, however.

APPLICABLE CONTRACT PROVISIONS

            The applicable Agreement, in part, provides:

            SECTION 11.  DISCIPLINE.

            11.01              PROCESS.

            11.01 a.          A regular Employee shall be subject to
                                    discipline by the Employer for just and proper
                                    cause.

            11.01 b.          An Employee who is disciplined, and the Union
                                    shall be furnished the specific reason(s) for the
                                    discipline in writing on or before the effective
                                    date of the discipline except where the
                                    discipline is in the form of an oral warning or
                                    reprimand.  However, if the oral warning or
                                    reprimand is documented or recorded for
                                    future use by the Employer to determine future
                                    discipline the Employee who is disciplined shall
                                    be furnished the specific reason(s) for the oral
                                    warning or reprimand in writing.

            11.01 c.          When an Employee is orally warned or
                                    reprimanded for disciplinary purposes, it shall
                                    be done discreetly to avoid embarrassment to
                                    the Employee.

            11.01 d.          In the event the need to impose discipline
                                    other than an oral warning or reprimand is
                                    immediate, the Employee and the Union shall
                                    be furnished the reason(s) in writing within 48
                                    hours after the disciplinary action is taken.

            11.01 e.          Written notifications of disciplinary actions
                                    involving suspension and discharge shall
                                    include the following:

            11.01 e.1.       Effective dates of the penalties to be imposed
                                    and

            11.01 e.2.       Details of the specific reasons.

            11.01 f.           An Employee who is discharged shall be
                                    granted an opportunity to respond to the
                                    charges prior to the effective date of discharge.

            11.02.             MEETING

            11.02 a.          In the event that an Employee is scheduled in
                                    advance by the Employer to meet to answer
                                    questions, the Employee shall be informed of
                                    the purpose of the meeting.

            11.02 b.          When the subject of the meeting is on a job
                                    related incident and the Employee reasonably
                                    feels that disciplinary action may result from
                                    the meeting, the Employee may request that a
                                    Union representative or steward be present in
                                    the meeting.

            11.02 c.          The Employee shall be credited with work time
                                    in the event the meeting is held on non-work
                                    hours.

            SECTION 46.  WORKING CONDITIONS AND SAFETY

            46.01              WORKPLACE SAFETY – EMPLOYEES.

            46.01 a.          Workplace safety is of mutual concern to the
                                    Employer and the Union.  The Employer and
                                    the Union shall encourage Employees to
                                    observe applicable safety rules and regulations
                                    and will support appropriate efforts to provide a
                                   
violence free workplace.

            46.02              WORKPLACE SAFETY – EMPLOYERS.

            46.02 a.          The Employer shall comply with applicable
                                    Federal, State, or Local safety laws, rules and
                                    regulations (E.G., Chapter 12-205, Hawaii
                                    Administrative Rules, pertaining to protective
                                    clothing shoes and accessories), including the
                                    Hawaii Workers Compensation Law.  The
                                    Employer shall provide a workplace free from
                                    violence by providing safety and health training
                                    that includes recognition of conditions and
                                    behavior that may lead to increase the risk of
                                    violence and the means and methods to
                                    prevent or reduce that risk to Employees and
                                    supervisors during work hours.

            46.06              UNSAFE WORKING CONDITIONS.

            46.06 a.          Employees shall make every effort to promptly
                                    report unsafe conditions and unsafe behavior
                                    including acts or threats of violence to their
                                    supervisors so that appropriate corrective
                                    action can be taken.

            46.06 b.          If the supervisor does not take appropriate
                                    corrective action within a reasonable period,
                                    the Employees may report unsafe conditions to
                                    officials other than their supervisors and shall
                                    not be disciplined.

            46.06 c.          An Employee shall not be subject to
                                    disciplinary action for:

            46.06 c.1.       Failure or refusal to operate or handle any
                                    machine, device, apparatus, or equipment
                                    which is in an unsafe condition or,

            46.06 c.2.       Failure or refusal to engage in unsafe practices
                                    in violation of applicable Federal, State or
                                    Local safety laws or regulations or,

            46.06 c.3.       Failure or refusal to operate or handle any
                                    machine, device, apparatus, or equipment in
                                    violation of applicable Federal, State or Local
                                    safety laws or regulations.

            46.07              INVESTIGATION.

            46.07 a.          The supervisor shall promptly investigate and
                                    correct the working conditions if warranted.

            46.07 b.          If the supervisor is unable to evaluate the
                                    condition or take corrective action, the
                                    supervisor shall refer the matter to the
                                    department head or designee who has the
                                    authority to make a determination.

            SECTION 58.  BILL OF RIGHTS.

            58.01              STATEMENT.

                                    No Employee shall be required to sign a
                                    statement of complaint filed against the
                                    Employee.

            58.02               INVESTIGATION.                            

            58.02 a.          If the Employer pursues an investigation based
                                    on a complaint, the Employee shall be advised
                                    of the seriousness of the complaint.

            58.02 b.          The Employee will be informed of the
                                    complaint, and will be afforded an opportunity
                                    to respond and/or refute the complaint.

            58.03              Before making a final decision, the Employer
                                    shall review and consider all available
                                    evidence, data, and factors supporting the
                                    Employee, whether or not the Employee
                                    provides factors in defense of the complaint.

            58.04              In the event the complaint is not substantiated
                                    or the Employee is not disciplined, the
                                    complaint and all relevant information shall be
                                    destroyed, provided that the Employer may
                                    retain a summary of such information outside
                                    of the official personnel file whenever such
                                    complaint may result in future liability to the
                                    Employer, including but not limited to,
                                    discrimination complaints.

APPLICABLE POLICY

            The memorandum states:

                        All employees need to be briefed again of the Mayor’s
                        November 3, 1999 Memorandum that states:

                                    ‘The City is committed to maintaining a work
                                    environment free from acts or threats of
                                    violence.  Consistent with this commitment,
                                    acts or threats of physical violence, including
                                    harassment, intimidation and other disruptive
                                    behavior in the workplace will not be condoned
                                    or tolerated.

                                    Employees are to be encouraged to report any
                                    act or threat of violence to the appropriate
                                    supervisor or manager who can take
                                    preventive or corrective action.  If the
                                    immediate supervisor commits the act or threat
                                    of violence, employees are to be encouraged
                                    to report such act or threat of violence to the
                                    next higher-level supervisor.  In the event of
                                    imminent danger, because of the act or threat
                                    of violence, employees are to be advised to
                                    immediately call 911 for police assistance.’

                                    Please ensure that all employees know that there is a City Workplace
                                    Violence Policy, a DFM policy and specific language concerning
                                    workplace violence in the new BU 1 collective bargaining agreement.
                                    Employees need to be reminded that all verbal threats and physical acts
                                    of violence will be treated with the most severe administrative
                                    consequences.  The first violation could result in termination.

                                    According to section VII of the City policy, it shall be posted on employee
                                    bulletin boards.

SUMMARY OF THE EMPLOYER’S POSITION

            The Employer’s position is that it has met its burden of showing just cause by a preponderance of the evidence in the Grievant’s termination, arguing that:

1.         The Grievant never denied hitting Gutierrez.

2.         The Grievant was aware of the Employer’s policy against workplace violence and Gutierrez’s violent propensities when he struck him.

3.         Several memorandums against workplace violence were issued to all employees and supervisors of the Department of Facility Maintenance (“Department”) during
            the Grievant’s employment, including a particular memorandum which set the guidelines for workplace violence for all United Public Workers (“UPW”) employees.

4.         A memorandum, dated December 20, 2001, which was issued to supervisors and employees of the Department, indicated a zero tolerance for workplace violence.  The memorandum included specific steps one should follow in reporting workplace violence.

5.         The Grievant received information regarding workplace violence at a Honolulu Police Department (“HPD”) Workplace Violence Presentation on August 24, 2001, where he was informed of the proper procedures for reporting workplace violence.  It was reiterated to the Grievant that if he should experience any form of workplace violence, that he should report it to his supervisor, then to HPD.  Despite his knowledge of the Employer’s workplace violence procedure, the Grievant witnessed Gutierrez bring several weapons to work without reporting it.

6.         Not only did the Grievant know Gutierrez (and Gutierrez’ brother) brought pistols and hand-made clubs to work, he thought they were “cool” and never reported the incidents to his supervisor.

7.         The Grievant knew that Gutierrez tried to intimidate fellow co-workers by physically attacking them.

8.         The Grievant suspected that Gutierrez was a drug user.

9.         The Grievant was aware of an incident between a co-worker, his Uncle Everett Goo (“Goo”) and Gutierrez whereby Gutierrez allegedly pointed a gun at Goo’s head.  He never reported the incident to his supervisor and instead chose to confront Gutierrez about it.  In fact, during the confrontation, the Grievant learned more about the incident between Goo and Gutierrez.

10.       The Grievant saw Wilbur Gutierrez (“Wilbur”) place a gun in his locker three or four weeks prior to the incident.

11.       The Grievant was aware of the nature of the circumstances between Goo and Gutierrez before he hit him.

12.       The Grievant hit Gutierrez so hard that he fell backward and hit his head on the steel bumper of a work truck.

13.       The Grievant was informed that Gutierrez had a weapon in his pocket after he hit Gutierrez.  He never saw the weapon during the argument.

14.       A full investigation was conducted with all witnesses and parties interviewed that determined that the Grievant posed a risk to other employees.

15.       Larry Leopardi, Division Chief, Road Division, Department of Facility Maintenance, City and County of Honolulu (“Leopardi”) was notified by Michael Pundke, Superintendent for the Kailua Yard (“Pundyke”) about the incident between the Grievant and Gutierrez.  Leopardi conducted an investigation, including all witnesses and parties involved at the Kailua Yard, on the day of the incident.

16.       Leopardi questioned Pundyke at the Kailua Yard regarding the incident.  In addition to events that transpired before and after Gutierrez was struck, Pundyke explained what the Grievant relayed to him about the incident.  Pundyke also inquired whether the Grievant was involved in any other incidents involving workplace violence.

17.       Leopardi also investigated prior incidents that occurred between Gutierrez and other workers from the Kailua Yard.  He determined that Gutierrez was responsible for incidents involving workplace violence.

18.       Leopardi questioned Gutierrez regarding the incident when he returned to work.  Leopardi noticed that Gutierrez’ face was cut, and his face was swollen, making it difficult for him to speak.  He also found Gutierrez did not intend to strike the Grievant.

19.       Leopardi conducted a thorough investigation of all the extenuating circumstances that could have acted as a defense or compliant against the  Grievant.  Not only was Leopardi investigating this incident while investigating other allegations against Gutierrez, he was aware of all the negative aspects with respect to Gutierrez while he was conducting the investigation of the Grievant.

20.       Leopardi had a full grasp of all the circumstances surrounding the incident involving the Grievant, and determined that taking matters into one’s own hands is a serious problem in issues that involve workplace violence.

21.       The potentially dangerous situation that the Grievant created was a serious consideration in deciding his termination.

22.       The Employer complied with all provisions of Sections 11, 46, and 58 of the Agreement.

23.       The Grievant portrays himself as acting in self-defense, but this is hardly the case.

24.       The Grievant was surely aware of the Employer’s zero tolerance policy for workplace violence.  Not only did he receive materials dictating the policy all throughout his employment with the Employer, but he also attended a HPD presentation on workplace safety.  At the least, the Grievant was aware of the necessary steps to take in the event he was involved in a violent confrontation at work.

25.       Having encountered workplace violence on numerous occasions, the Grievant knew he needed to report to his supervisor, and should have reported those incidents immediately.  The Grievant was unexplainably comfortable working in such circumstances and even thought the guns he saw were “cool.”

26.       By failing to report workplace violence incidents, the Grievant made his work environment dangerous for other employees.

27.       The Grievant was fully aware of Gutierrez’ reputation at the Kailua Yard, and felt no fear from him.  In fact, he took it upon himself to confront Gutierrez.  It was the Grievant who approached Gutierrez.

28.       The Grievant created a confrontation between Goo and Gutierrez that could have potentially led to a violent end.

29.       The Grievant was made aware of minimizing circumstances that made the Grievant’s actions completely unreasonable.  The encounter between Goo and Gutierrez occurred two years prior.  The Grievant was aware that the incident happened long ago.  He was also told that Gutierrez pointed his finger like a gun at Goo.

30.       The Grievant struck Gutierrez without provocation.

31.       Any admission of knowledge of a weapon is completely irrelevant, as the Grievant was not made aware of its existence until after he struck Gutierrez to the ground.

32.       A complete and comprehensive investigation into the facts surrounding the circumstances was done.  Leopardi investigated every employee who witnessed the events or who was on the premises that day.

33.       The Department already had a pending investigation about Gutierrez, and was aware of all possible defenses the Grievant could have made.

34.       More than the fact that Gutierrez had violent tendencies, but the fact that the Grievant took matters into his own hands in spite of knowing the appropriate steps to handle such situations which makes the Grievant a risk.

35.       The Grievant confronted a well-known violent person and encouraged that person to confront others.  The situation could have escalated into a situation that involved other employees other than himself and Goo.

36.       Leopardi was in the process of investigating incidents involving Gutierrez and his brother  prior to this incident.  Attempting to perform a thorough investigation on Gutierrez at the same time warranted caution in order to preserve facts and the truth from all the incidents in which he was involved.  Furthermore, since the Xerox murders, workplace violence policies have been heavily and cautiously enforced.  Thus, not only was reporting violence encouraged, it was important that such incidents were reported in a timely matter.

37.       It is impossible for the Employer to act on complaints of violence when failing to receive legitimate and timely complaints.  Only within the past three years has termination for acts of violence been deemed as appropriate not only for the protection of the employees that may be involved in altercations, but for the protection of by-standers.

38.       Termination in situations where employees take matters into their own hands and potentially risk the lives of others is completely inappropriate (sic).

SUMMARY OF THE UNION’S POSITION

            It is the Union’s position that the Employer has failed to meet the burden of proof

required to sustain termination of the Grievant for just cause, noting that:

1)         The Employer violated Unit 1, Section 11 of the Agreement (Discipline) when the Grievant was terminated from employment without just cause because he was acting in self-defense, and was never forewarned that his actions could result in such severe disciplinary consequences.

2)         Termination was too severe, and the Grievant warranted a lesser punishment.

3)         The Grievant, at times, saw both Wilbur Guterrez and Charles Gutierrez’ handgun at work which was kept in a room next to the bathrooms.  Joseph saw the handguns approximately 2-3 months prior to the incident.  Co-workers informed Joseph that Gutierrez kept the handgun and stolen company property in his locker.

4)         Gutierrez was employed by the Department at the Kailua Yard for 12-15 years.  Many of the men were familiar with his character and problems of workplace safety.  Numerous comments were made by co-workers of Gutierrez’ potentially violent character.

5)         During an incident wherein Guteirrez threatened Pundyke, Joseph actually got Gutierrez to calm down.

6)         After the November 14, 2001 incident, the Grievant was called in for an investigation.  He was not informed that he could have legal representation, nor was he informed o any rights when he was asked to sign his statement.

7)         Joseph punched Gutierrez as an act of self defense and had no intention to assault, hurt, or harm him.

8)         Joseph punched Gutierrez because he believed that he was in danger of an attack by Gutierrez.  Joseph’s purpose was to stop Gutierrez from harassing Goo.  When Gutierrez made a sudden turn to Joseph, he became afraid, then punched Gutierrez.

9)         Gutierrez had a shank in his pocket.  The co-workers believed that Gutierrez would bring a gun to work daily.

10)      Joseph’s punch, while unfortunate and unacceptable, can be understood, as it was a mistaken action taken in self defense.  The punch was not premeditated.  Joseph felt that he was protecting himself.  This conduct is not condoned by the Union, however, this one punch thrown by Joseph should not be grounds for dismissal.

11)      Gutierrez’ reputation is grounds for a co-workers to believe that Gutierrez was capable of an assault.

12)      Discharge is too harsh a penalty because the Employer has been lax in the enforcement of rules.

13)      The Grievant admitted to punching Gutierrez.  The Union does not contest that Gutierrez needed medical care.  Nothwithstanding a prior argument that Joseph acted in self defense, the Employer has not discharged any employee for a first offense of an act of violence.  Furthermore, it is clear that it has not always enforced its rules against acts of violence.  The act of enforcement now is arbitrary and capriious.

14)      Proof of the Employer’s arbitrary and capricious behavior can be found by simply looking at the practice at the Kailua Yard.  The employer has been tolerant of the behavior of the Gutierrez brothers.  Both have made threats against their supervisor.  The discipline against them had been light, if not overlooked.

15)      The Employer did not provide any forewarning that it was cracking down on workplace violence.  This was irrespective of whether there was a policy in place.

16)      The Employer should have made it clear, especially after its extreme laxness in enforcement, that acts of violence at the Kailua Yard would be dealt with seriously.  Such forewarning is necessary.

17)      After the Pundyke incident, Leopardi could have placed Gutierrez on leave pending investigation.  If so, the incident with Goo and the subsequent November 14, 2001 incident, would not have arisen.

18)      The Employer’s discipline for violence has been arbitrary and capricious.

19)      It is a cardinal rule that the Employer’s punishment should be consistent, and the failure to be even-handed violates just cause.

20)      It is important to be consistent in discipline.

21)      The Employer has not taken the position that an assault-verbal or physical-warrants summary dismissal.  In fact, prior cases would lead to another conclusion:  One act-physical or verbal-will lead to a suspension only.  There are three recent arbitration decisions involving the Employer which demonstrate this.  In one, a discharge was reduced to a thirty-day suspension because of disparate treatment.

22)      The Union presented other disciplinary actions that did not go to arbitration.  The actions were five to ten-day suspensions only.  As such, Joseph’s punishment should be reduced to a thirty-day suspension.

23)      Consideration should be given to Joseph’s record.  Joseph is a calming influence.  He calmed Gutierrez down when he had threatened Pundyke.  His first set of evaluations show how much potential.  Joseph exceeded the requirements of his position in each of the four categories.  His supervisor’s comments were laudatory.

24)      The Grievant’s termination was too severe,and  warranted a lesser punishment.

25)      The Employer violated Section 46 (Working Conditions and Safety) of the Agreement by failing to create and maintain a safe work environment free from violence.  The Grievant further argues that the Employer violated Section 58 (Bill of Rights) of the Agreement by failing to conduct a fair and thorough investigation process.

26)      Other issues presented by the Grievant was whether the Employer was required to provide the Grievant with notice of the disciplinary action that was taken against him, as provided for in Section 11 of the Agreement.

ESTABLISHING JUST AND PROPER CAUSE

            In this matter, pursuant to the Agreement and the body of decisions governing the interpretation of just cause, the Employer must show, by a preponderance of the evidence, that just and proper cause existed for the Grievant’s termination by the Employer.  In order to satisfy this standard, the Employer must meet the following tests required to show just cause for termination:

            1.         The employee was forewarned of the consequences of his or her actions.

            2.         The Employer’s rules are reasonably related to business efficiency and the performance the Employer might expect from an employee.

            3.         An effort was made before discharge to determine whether the employee was guilty as charged.

            4.         The investigation was conducted fairly and objectively.

            5.         Substantial evidence of the employee’s guilt was obtained.

            6.         The rules was applied fairly and without discrimination.

            7.         The degree of discipline was reasonably related to the seriousness of the employee’s offense and the employee’s past record.

Enterprise Wire Co., 46 Lab. Arb. (BNA) 359, 362-65 (1966) (C. Daugherty, Arb.); Koven and Smith, Just Cause The Seven Tests (2d ed. 1992); State of Hawaii, 109 Lab. Arb. (BNA) 289, 291 (7/11/97) (Nauyokas, Arb.); State of Hawaii, (7/27/97 (Nauyokas, Arb.); UFCW Union Local 480 AFL-CIO and Safeway, (10/30/98) (Nauyokas, Arb.); IAM and Aloha Airlines, (8/23/99) (Nauyokas, Arb.); Sheraton Waikiki Hotel, 114 Lab. Arb. (BNA) 1595, 1598-99 (2000)(Nauyokas, Arb.); SHOPO and City & County of Honolulu, (9/20/00)(Nauyokas, Arb.); UPW and Hawaii Health Systems Corp., (2/24/2001)(Nauyokas, Arb.);HERE, Local 5 and Turtle Bay Resort, (2001)(Nauyokas, Arb.); HERE, Local 5 and Hyatt Regency Waikiki, (11/13/2001)(Nauyokas, Arb.); see also Ogden, 111 Lab. Arb. (BNA) 251, 253 (8/31/99) (Nauyokas, Arb.).

ANALYSIS

Issue No. 1:  Was the Grievant forewarned of the consequences of his actions?

            The testimony and the exhibits produced at the arbitration hearing clearly demonstrated that the Grievant was aware of the Employer’s policy against workplace violence.  Throughout the Grievant’s employment, several memorandums were issued to employees and supervisors of the Department of Facility Maintenance explaining the Employer’s policy against workplace violence, including procedures in which to follow to report any workplace violence.

            Moreover, the Grievant testified that he attended the HPD Workplace Violence Presentation on August 24, 2001 during which he received information relating to workplace violence, and was informed of the proper procedures in reporting workplace violence.

            Section 46.01 and 46.06a of the Agreement clearly states:

                        WORKPLACE SAFETY – EMPLOYEES.

                        Workplace safety is of mutual concern to the Employer and
                        the Union.  The Employer and the Union shall encourage
                        Employees to observe applicable safety rules and
                        regulations and will support appropriate efforts to provide a
                        violence free workplace.

                        UNSAFE WORKING CONDITIONS.

                        Employees shall make every effort to promptly report unsafe
                        conditions and unsafe behavior including acts or threats of
                        violence to their supervisors so that appropriate corrective
                        action can be taken.

            As such, the Grievant was surely aware of the Employer’s policy on workplace violence.  Even if the Grievant was not specifically informed (by, for instance, reading the policy), that he could be disciplined for the workplace violence, adults should know better than to commit acts of violence at work.

           Given these circumstances, the Arbitrator finds that Joseph was or should have been aware of the fact that workplace violence would result in the termination of his employment.

Issue No. 2:  Was the Employer’s rule reasonably related to business
                        efficiency and the performance that the Employer might
                        expect from an employee?

            In the arbitrator’s analysis, the nature of the rule against workplace violence is, per se, a reasonable rule.  Clearly, it is reasonable that an Employer insist on non-violent behavior in the workplace.  The Union does not dispute this issue.

Issue No. 3:  Was an effort made prior to the discharge of the
                        Grievant to determine whether or not he was guilty of
                        the offense charged?

            Leopardi was notified by Pundyke about the incident between the Grievant and Gutierrez.  Leopardi conducted an investigation, including all witnesses and parties involved at the Kailua Yard, on the day of the incident.  The Union does not dispute that an investigation was conducted prior to to the discharge of the Grievant.

Issue No. 4:  Was the investigation of the incident conducted fairly
                        and  objectively?

            As noted in the analysis of Issue No. 3, Leopardi conducted an investigation including all witnesses and parties involved at the Kailua Yard, on the day of the incident.

            Leopardi questioned Pundyke at the Kailua Yard regarding the incident.  In addition to events that transpired before and after Gutierrez was struck, Pundyke explained what the Grievant relayed to him about the incident.  Pundyke also inquired whether the Grievant was involved in any other incidents involving workplace violence.  Leopardi also investigated prior incidents that occurred between Gutierrez and other workers from the Kailua Yard.  He determined that Gutierrez was responsible for incidents involving workplace violence.

            Leopardi questioned Gutierrez regarding the incident when he returned to work.  Leopardi noticed that Gutierrez’ face was cut, and his face was swollen, making it difficult for him to speak.  He also found Gutierrez did not intend to strike the Grievant.  Leopardi conducted a thorough investigation of all the extentuating circumstances that could have acted as a defense of complaint against the Grievant.  Not only was Leopardi investigating this incident while investigating other allegations against Gutierrez, he was aware of all the negative aspects with respect to Gutierrez while he was conducting the investigation of the Grievant.  Leopardi had a full grasp of all the circumstances surrounding the incident involving the Grievant.

            Leopardi was an objective investigator who was neither a witness nor was he in any way biased against the Grievant.  The Grievant had an opportunity to tell his side of the story during the investigation.  The investigation was both fair and objective.

            The forth test to determine whether or not just cause existed was satisfied.

Issue No. 5:  Was substantial evidence of the Grievant’s guilt

                        obtained?

            The Grievant always admitted hitting Gutierrez.  The Union does not dispute this point.  The Union argues, however, that the Grievant acted in self defense.  Self defense, however, is the type of defense that requires imminent harm.  The Grievant has not convinced the arbitrator that under the circumstances here that Grievant was in danger of imminent harm from Gutierrez.  In fact, the arbitrator believes that instead, up until the Grievant hit Gutierrez, the Grievant could have walked away at anytime and avoided any imminent harm to himself from Gutierrez.  Thus, self defense is not convincing as an excuse that relieves the Grievant from the responsibility for striking Gutierrez.

            Therefor, substantial evidence of the Grievant’s guilt in violating the workplace violence policy was obtained by the employer and the fifth test for determining whether just cause exists has been proven.

Issue No. 6:  Was the rule applied fairly and without discrimination?

            A “no” answer to this question requires a finding of discrimination and warrants negation or modification of the discipline imposed.  In reviewing the circumstances, the testimony, the evidence, and the demeanor of the witnesses, the Arbitrator finds that the Employer applied its rules and penalties pertaining to the policy regarding workplace violence in a discriminatory manner by terminating the Grievant.

            The Union produced sufficient evidence that the employer subjected Joseph to disparate treatment, and that its discipline policy pertaining to workplace violence had not been consistently applied when compared to other situations.

            In the instant case, Joseph apparently was the first employee of the City & County of Honolulu’s Department of Facility Maintenance to be terminated for workplace violence.  All others had apparently been suspended.  Thus, the Union presented evidence of disparate treatment by the Employer.

            In the instant case, the Union referenced three recent arbitration decisions involving workplace violence:  two physical assaults which resulted in 30-day suspensions, and one threat, which resulted in a 10-day suspension.  Consequently,

the Employer has not proven that a single physical assault involving other employees in the past warrants summary dismissal.  In fact, the disciplinary action taken by the Employer was limited to suspensions only.

            Further evidence revealed that the union presented other disciplinary actions involving workplace violence which resulted in five to ten-day suspensions, and did not go to arbitration.

            Consequently, the Arbitrator finds that the rule in this instance was not applied fairly, as the rule was not consistently applied to the Grievant as it had been to others in the past.  Therefor, the answer to the sixth test must be “no.”  Thus, this answer requires a finding of discrimination against Joseph on the part of the Employer.  Such finding warrants modification of the discipline imposed.

Issue No. 7:  Was the degree of discipline reasonably related to the
                        seriousness of the offense and the Grievant’s past
                        record with the Employer?

            The Employer’s policy on workplace violence states that “[t]he first violation could result in termination.”  Termination has been described as industrial capital punishment.  As such, it is the highest degree of discipline possible.  Workplace violence is one of the most serious offenses an employee can commit.  The testimonies at the arbitration hearing, as well as the exhibits/evidence, convinced the arbitrator that the penalty of termination is reasonably related to the seriousness of the offense.

            The Grievant was a relatively short term employee with a good record.  This is not the case of an outstanding long term employee.  Thus, the Grievant’s record alone does not warrant mitigation of the penalty of termination in this arbitrator’s opinion.

            The Union argues that the Grievant’s potential future record should be taken into account.  Although this argument has not been supported by any authority, based on the finding that test number six was not satisfied, the Grievant will get the chance to substantiate the Union’s proposition on this point.

CONCLUSION

            The arbitrator does not take workplace violence lightly.  The workplace is not a venue to resolve personal or family disputes through the resort to violence.  If this arbitrator was asked to exercise his own independent judgment unconstrained as to the proper penalty for this act of workplace violence, he might also have concluded termination was the appropriate penalty.  However, the arbitrator is a creature of the contract.  The arbitrator’s job is to give effect to the bargain of the parties.  Here, the parties bargained for just and proper cause for discipline.  Through years and years of arbitration awards, just and proper cause includes non discrimination.  The evidence in this case is conclusive that in practice the employer suspends employees for violating the workplace violence policy.  Until the employer gives clear notice of an intent to change the penalty for workplace violence, it is bound by its practice.

            Nevertheless, the employer should not have to pay the Grievant for time not worked as a penalty for behavior which the Grievant engaged in and which was highly improper.  Thus, the Grievant is reinstated and his termination is reduced to a disciplinary suspension for the entire period since his termination took effect.  He is to be returned to work as soon as possible.


DECISION AND AWARD

            The Arbitrator finds that the termination of Joseph by the City and County of Honolulu does not meet the standard for just cause under the applicable Agreement to support his termination from employment.  The Arbitrator instructs that he be reinstated at the earliest possible time, but without any award of back pay for the time between his termination by the City and County of Honolulu and his re-employment.  The period Joseph was off work is to be considered a disciplinary suspension.  The Arbitrator shall retain jurisdiction over this award until such time as the parties have shown substantial compliance with its terms and shall be available to clarify the specific parameters of any issue related to the award.  The Grievance is sustained.

                        DATED:  Honolulu, Hawaii,                                   , 2002.

                                                                                                                       
                                                            MICHAEL F. NAUYOKAS
                                                            Arbitrator
                                                            Pacific Guardian Center, Makai Tower
                                                            733 Bishop Street, Suite 2300
                                                            Honolulu, Hawaii  96813

STATE OF HAWAII                                         )
                                                                           )     SS
CITY AND COUNTY OF HONOLULU           )    

            On this           th day of                            2002, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

                                                                             
Notary Public, State of Hawaii
My Commission expires:                                       

       

  

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