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Ross Runkel
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Ross Runkel |
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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
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In the Matter of the Arbitration Between UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
and
CITY AND
Employer. _______________________________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
Grievance of LEVI JOSEPH
Arbitration Hearing:
Date: May 2 & 21, 2002
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ARBITRATION DECISION AND AWARD
Michael F. Nauyokas
IN THE
MATTER OF THE ARBITRATION BETWEEN
This
matter came on to arbitration at hearings held on
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
Issue
No. 2:
If so,
what shall be the remedy?
SUMMARY
OF FACTUAL BACKGROUND
The Employer is the City and
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
The Grievant received information regarding workplace violence at a Honolulu
Police Department (“HPD”) Workplace Violence Presentation on
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
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
By letter dated
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
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
11.01 b.
An Employee who is disciplined, and the
11.01 c.
When an Employee is orally warned or
11.01 d.
In the event the need to impose discipline
11.01 e.
Written notifications of disciplinary actions
11.01 e.1.
Effective dates of the penalties to be imposed
11.01 e.2.
Details of the specific reasons.
11.01 f.
An Employee who is discharged shall be
11.02.
MEETING
11.02 a.
In the event that an Employee is scheduled in
11.02 b.
When the subject of the meeting is on a job
11.02 c.
The Employee shall be credited with work time
in the event the meeting is held on non-work
SECTION 46. WORKING
CONDITIONS AND SAFETY
46.01
WORKPLACE SAFETY – EMPLOYEES.
46.01 a.
Workplace safety is of mutual concern to the
violence free workplace.
46.02
WORKPLACE SAFETY – EMPLOYERS.
46.02 a.
The Employer shall comply with applicable
46.06
UNSAFE WORKING CONDITIONS.
46.06 a.
Employees shall make every effort to promptly
46.06 b.
If the supervisor does not take appropriate
46.06 c.
An Employee shall not be subject to
46.06 c.1.
Failure or refusal to operate or handle any
46.06 c.2.
Failure or refusal to engage in unsafe practices
46.06 c.3.
Failure or refusal to operate or handle any
46.07
INVESTIGATION.
46.07 a.
The supervisor shall promptly investigate and
46.07 b.
If the supervisor is unable to evaluate the
SECTION 58. BILL OF
RIGHTS.
58.01
STATEMENT.
No Employee shall be required to sign a
58.02
INVESTIGATION.
58.02 a.
If the Employer pursues an investigation based
58.02 b.
The Employee will be informed of the
58.03
Before making a final decision, the Employer
58.04
In the event the complaint is not substantiated
APPLICABLE POLICY
The memorandum states:
All employees need to be briefed again of the Mayor’s
‘The City is committed to maintaining a work
Employees are to be encouraged to report any
of violence, employees are to be advised to
Please ensure that all employees know that there is a City Workplace
According to section VII of the City policy, it shall be posted on employee
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
4.
A memorandum, dated
5.
The Grievant received information regarding workplace violence at a
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
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
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
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
It is the
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
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
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
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
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
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
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
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
Section 46.01 and 46.06a of the Agreement clearly states:
WORKPLACE SAFETY – EMPLOYEES.
Workplace safety is of mutual concern to the Employer and
UNSAFE WORKING CONDITIONS.
Employees shall make every effort to promptly report unsafe
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
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
Issue
No. 3: Was an effort made prior
to the discharge of the