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Title: Elkhart, Indiana County Highway Department and AFSCME Local 1337
Date: October 25, 2003
Arbitrator: N. Eugene Brundige
Citation: 2003 NAC 124

OPINION AND AWARD

In the matter of Arbitration

Between 

Elkhart, Indiana County Highway Department, Employer
And
 AFSCME Local 1337

Regarding
FMCS Case No. 030610-11199-6
Dennis Stevens termination

 

APPEARANCES:
FOR THE DEPARTMENT:     
Roger W. Benko, Attorney, Advocate   
Rachel Friend Bradley, Attorney    
Jeff Taylor, Manager Highway Dept.
Michael Beasey, Area Supervisor
Floyd Hindbaugh, Personnel Director  
FOR THE UNION:
Dwight Arndt, Council 62, Advocate
Dennis Stevens, Grievant


            An arbitration hearing was conducted on August 26, 2003 at Elkhart, Indiana. The issue at hand concerned the termination of Dennis Stevens a Highway Maintainer II with the Elkhart County Highway Department.   The Employer was represented by Roger W. Benko, attorney.  The advocate for Mr. Stevens was Dwight Arndt, Staff Representative for The American Federation of State County & Municipal Employees (AFSCME) Council 62.

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 numerous documents and the union did likewise.  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.

Two issues were presented to the Arbitrator for resolution. [1]

The first issue was presented by management who contended the demand for arbitration was not timely filed and thus the grievance should not be arbitrabile.

            The parties agreed that, if the grievance was found to be timely, then the issue before the arbitrator would be: “Was Mr. Stevens terminated for just cause?  If not, what shall the remedy be?” 

            In that this grievance deals with a disciplinary matter, management assumed the burden of proof and presented its case first.

RELEVANT COLLECTIVE BARGAINING PROVISIONS:

ARTICLE 2 MANAGEMENT RIGHTS

Section 1. Except as otherwise expressly provided in this Agreement, the Union agrees that the County shall have the right to establish policies; methods of work; work and safety rules; the right to schedule work; the right to subcontract; the right to assign equipment to be used in the operation of the County's business; the right to hire, discharge, suspend, discipline, promote, demote, assign, and transfer employees; and the right to release employees because of lack of work, funds, or for other proper and legitimate reasons.

ARTICLE 10 DISCIPLINARY AND GRIEVANCE PROCEDURES

Section 1. General Conduct. Employees shall maintain standards of conduct necessary for public service. Courtesy must be extended to all persons seeking services from the department. Unacceptable conduct shall be considered just cause for discipline or discharge of an employee. Unacceptable conduct shall include, but not be limited to, the following actions:

  • Willful violations of department regulations;
  • Violation or abuse of sick leave provisions;
  • Negligent or willful destruction of County property;
  • Possession or consumption of alcoholic beverages or illegal drugs while on County property or operating County equipment;
  • Deliberate falsification of information on time cards or any other County records;
  • Inappropriate operation, use of language on the radio according to FCC guidelines;
  • Use of profanity in situations reflecting the County;
  • Unauthorized absences from the job;
  • Inability to adequately perform the normal duties assigned to the employee.  This included but is not limited to maintaining adequate licensing for vehicle operation.

Section 2. Disciplinary Procedures. Employees who violate the provisions of this Agreement or the regulations and policies of the department are subject to the following disciplinary procedures:

  • Oral warning by Manager of Transportation;
  • Official written warning;
  • Suspension without pay, up to three (3) days;
  • Discharge.

It is recognized that some employee actions could require immediate suspension or dismissal, thereby eliminating some of the above steps.

Section 3. Inactive Disciplinary Actions. Disciplinary actions not involving suspensions, or discharges will be considered inactive after a period of two (2) years.

Section 4. Discharged Employees. Discharged employees shall have three (3) working

days to file a grievance that shall be processed immediately at the second step of the grievance procedure.

Section 5. Grievance Procedure. A grievance under this Agreement shall be defined exclusively as a dispute or complaint arising under and during the term of this Agreement. Grievances shall be concerned only with specific matters of interpretation or application of the provisions of this Agreement.

First Step: The grievance of any employee shall be presented in writing to the Manager of Transportation within five (5) calendar days from the time of occurrence of the alleged grievance. The Manager shall attempt to resolve the grievance within three (3) calendar days.

Second Step: If a satisfactory settlement has not been reached in the First Step, then the grievance shall be presented to the Commissioners by a representative of each party. The Commissioners shall act upon the grievance at their next regular meeting after the presentation of the grievance to them at Executive Session. The union representative may request mediation after the employee has been notified of the Commissioners' decision. A request for mediation, and the procedures to be utilized in the mediation process requires agreement by both parties.

Third Step: If a satisfactory settlement is not reached in the Second Step, then arbitration may be initiated. In order to initiate arbitration, the Manager of Transportation for Elkhart County and/or the union representative may write the Federal Mediation and Conciliation Service (FMCS) for a panel of seven (7) arbitrators who shall be members of the American Arbitration Association. Such written notice to the FMCS must be made within ten (10) working days after the conclusion of the Second Step of this Grievance Procedure and may be extended by mutual consent of both parties. Within seven (7) working days of receipt of the arbitrator names, the parties shall meet and alternately strike an arbitrator until only one name remains which person shall be the arbitrator. The party initiating the grievance shall strike the first name. Meetings required to process the Third Step of a grievance shall be scheduled after regular working hours and shall be without pay. The arbitrator is limited to interpretation of the specific provisions of this Agreement and shall submit a decision within thirty (30) calendar days of the later of the conclusion of the hearing or the filing of briefs. The decision of the arbitrator shall be binding on the parties and employee involved. Expenses for the arbitrator's services and the proceedings shall be borne equally by the County and the Union.

ARTICLE 12 WORK SCHEDULE

Section 1. Normal Workweek. The normal workweek shall be forty (40) hours per week. The normal work day shall be Monday through Friday 7:00 a.m. to 3:30 p.m. There is an unpaid meal period of one-half (1/2) hour per day from 11 :30 a.m. to 12:00 noon. Employees are free to utilize their meal period as they wish but are expected to be at the work site and available for work at the close of the meal period. Exceptions to the above specified time shall be based upon a reasonable request from an employee to his supervisor. In the event the supervisor finds the work cannot be reasonably interrupted, a change in the meal period may be necessary.

ARTICLE 13 SICK TIME

Section 2. Authorized Usage: Sick time, may be used for the following purposes: injury or illness of the employee, and office calls for doctors, dentist, optometrists or other medical professionals as may be necessary. In addition, up to three days (24 hours) of eligible sick time may be used on a calendar year basis when an injury, illness or emergency involving an immediate family member requires the employee to care for such family members. To receive sick time with pay, an employee must notify his supervisor within one (1) hour before the employee is scheduled to report to work or as soon as circumstances permit.

BACKGROUND:

            The Elkhart County Highway Department is charged with maintaining the County roads in Elkhart County Indiana.  Dennis Stevens was employed as a Highway Maintainer II and assigned to one of the four quadrants of the County.

            Mr. Stevens also served as steward of AFSCME Local 1337. 

            Mr. Stevens was terminated by the County February 20, 2003 for a “pattern of tardiness and disregard for Elkhart County’s work rules and procedures….”[2]

PRELIMINARY ISSUE:

            Management contends that the demand for Arbitration is not timely filed.  The County Commissioners considered the step 2 grievance appeal and made a decision on the evening of March 17, 2003.

            The Union Representative sent a letter to the County dated April 1, 2003 (actually faxed on April 3) informing the employer that he was requesting a Panel of Arbitrators from the FMCS.

            The employer argues that the collective bargaining agreement states: “Such written notice to the FMCS must be made within ten (10) working days after the conclusion of the Second Step of this Grievance Procedure and may be extended by mutual consent of both parties.” [3]

            Allowing that the letter was sent April 1, management counts eleven (11) working days and thus argues the demand is untimely and the arbitrator lacks authority to consider the grievance.

            The Union agrees with the dates offered by the County but notes that the contract also anticipates the possibility of mediation by “mutual consent.”  The Union representative reached out to the County via letter and telephone.  On March 20, Dwight Arndt sent a letter to Jeff Taylor requesting mediation.  He offered a phone number, a fax number and a pager number.

            Instead the County Director of Personnel responded in writing six days later in a letter dated March 26, rejecting the request for mediation.

            Arbitrator William H. Holley, Jr. faced a similar issue in a case earlier this year.  In considering a timeliness challenge he noted “Arbitrators in resolving factual disputes surrounding the timeliness of grievances and demands for arbitration have consistently held that the burden of proof on such an issue is on the party raising the timeliness issues as a bar to the Grievance and any uncertainty on this issue should be resolved in favor of the grievance going forward.” [4]

            For this arbitrator, the decisive language is contained in the Collective Bargaining Agreement when it states: ….Such written notice to the FMCS must be made within ten (10) working days after the conclusion (emphasis added) of the Second Step of this Grievance Procedure.

            The Commissioners acted on March 17.  In a very timely manner the Union Representative attempted to secure the agreement of the County to go to mediation.  As was their right, the county refused that request, but they did not do it in a timely matter

            The failure of the County to respond to the request for mediation in a prompt manner, at least, tolls the time limits for requesting arbitration.

            Further, there is no evidence that the Union was ever officially notified of the outcome of the action of the Commissioners.  The record indicates that Mr. Stevens was present at the Commissioners meeting but no testimony was offered regarding whether there was official notification at that time.

            If the County is going to assert a strict application of contractual time lines then they have a duty to provide more formal service of the notice of the action taken by the Commissioners.  The attendance of the President of the Union might have been helpful to help determine the dates of service.

            I find the County failed to meet its burden to convince this arbitrator that the timelines were violated.  The grievance is found to be arbitriable.

MERITS OF THE CASE:

THE POSITION OF THE COUNTY:

            In the view of the County, Dennis Stevens was terminated because he developed a pattern of  tardiness.  He was warned numerous times and received a short suspension.  In spite of these steps, Mr. Stevens was tardy again on February 19, 2003.  The County terminated his employment February 20, 2003.

            The employer presented its well documented expectations regarding attendance by submission of the County Policy Manual and the work rules of the Elkhart County Highway Department.

            After noting that the collective bargaining agreement only permits consideration of the disciplinary record of an employee for the previous two years, the employer documented the attendance infractions of Mr. Stevens starting with an incident on March 2, 2001 when he arrived approximately twenty minutes late (7:20 a.m.)  He was counseled for this infraction.

            Management exhibit 3 was offered to document tardiness on September 10, 2001 wherein the grievant called at 7:10 a.m. and stated he was just leaving home.  No action was taken on this occasion.

            On August 8, 2002 the grievant was issued an Oral Reprimand for being two minutes tardy.  (Management exhibit 4).

            On November 8, 2002 the employee returned from lunch 11 minutes late and was issued another Oral Reprimand. (Management exhibit 5).

            January 16, 2003 the grievant failed to report to work on time.  At 7:30 he called in to report that he would not be coming in to work due to illness.  Grievant was suspended for one day and served notice of the suspension January 21, 2003.  The disciplinary notice included the warning: “Further violations will result in additional discipline being given, up to and including termination.”

            The County introduced testimony regarding the creation and utilization of an internal procedure where all the Supervisors serve on an ELKHART COUNTY HIGHWAY DISCIPLINE BOARD.  It  was explained that this Board reviews potential disciplinary infractions and offers recommendations to the Manager regarding the advisability of discipline.  That Board met on January 16 and unanimously concurred with the immediate supervisor’s recommendation to issue a suspension.  The County Manager agreed and issued the one day suspension.

            The suspension was served on January 22, 2003.  On February 19 Mr. Stevens again did not report to work on time.  He called in at 7:59 a.m. and stated he had overslept.  He was order to report for duty.

            Immediate Supervisor Mike Beasey convened the Discipline Board (referred to in this document as the “Incident Revue Board” and recommended termination, because of the ongoing problem of tardiness.  Again, the Board unanimously concurred.  The recommended was forwarded to Manager Jeff Taylor.

            The County presented several other documented incidents relating to non-attendance infractions. 

            April 5, 2001 grievant was observed not wearing a safety vest.  No action was taken.

            A document dated August 9, 2001 was entered (management exhibit 14) which discusses two incidents.  One was a question about turning off trucks at the work site and the other related to the grievant when he “struck a(n) A-Frame.”  Neither appeared to result in any kind of discipline.

            In incident occurred on April 20 wherein the grievant placed a very loud shirt over his approved safety t-shirt.  He was ordered to remove the outer shirt.  No discipline was issued.

            A January 4, 2002 document titled a “letter of admonishment”  was issued to the grievant by Mike Beasey, concerned the failure to fill out Daily Work Sheets.  It appears Supervisor Beasey viewed this document as discipline based upon the warning contained therein: further acts of Neglect or Insubordination will result in further disciplinary action.”

            On 9/17/02 Stevens was observed without a safety vest.  No discipline

            December 6, 2002 involved an incident regarding Stevens and another employee taking an early lunch.  Discussion apparently took place but no discipline was imposed.

            A memo from January 14, 2003 was submitted that documented a problem with the grievant not responding to a phone call directing all drivers to report for duty at 4:00 a.m.

            Management believes this pattern of behavior constitutes just cause to support the termination of Dennis Stevens and asks the Arbitrator to deny the grievance.

POSITION OF THE UNION:

            The Union believes the case against Mr. Stevens is flawed in that the County skipped a step in the progressive discipline provision of the collective bargaining agreement when they did not give Mr. Stevens a written reprimand prior to suspending him.

            They proposed an anti-union animus argument that notes Mr. Stevens is a steward and there appears to be an interpersonal problem between him and the supervisor.

            The Union notes that the County has asserted Mr. Stevens was insubordinate as one of the reasons for the termination.  They argue that there is no evidence Mr. Stevens was ever insubordinate.

            Even if there were violations the Union argues that termination is much too severe a penalty.

            It was noted that the County offers an Employee Assistance Program for employees with problems.  Mr. Stevens was never referred to EAP for assistance, but instead was terminated.

DISCUSSION:

            The Union’s argument regarding anti-union animus is not well taken or convincing.  There is no evidence that any other union official has received discipline as a result of their protected activities.  Likewise, no evidence was presented that would link Mr. Stevens to any specific anti-union activity.

            There does appear to be a strained relationship between the grievant and some supervisor(s) but this arbitrator is unable to conclude that such feelings have led to any action that would negate the discipline.

            The EAP argument is also rejected.  The EAP is a voluntary one wherein the employee may, at any time, seek the assistance of that organization.  No evidence was presented which would indicate that the employee has made any effort to do so.  There is also no requirement on management that they propose such assistance.

            Termination is always a serious step in the workplace and much care must be done to assure it is done properly, according to contract, and that it is the appropriate step.

            In reviewing whether terminations have been for “just cause” arbitrators must first examine exactly what the “charge” is against the employee, and then determine if management has proved the charge.

            In some jurisdictions, and under some contracts, there is a specific form or notice that has been negotiated or is required.  These usually require a specific citation of exactly what is being charged.  This does not appear to be the case in Elkhart County.

            Thus, the arbitrator must first examine the records presented to determine exactly what the grievant was charged with.

            The documentation of the Discipline Board appears to contain the answer.  Management exhibit 11 includes this sentence:  Mike recommended termination, because of the ongoing problem of tardiness.”

            This arbitrator commends the county on the establishment of an internal process such as the “Discipline Board” in order to provide an internal review mechanism which enables more supervisors to examine, and possibly point out, other approaches to discipline.  I also reject the Union’s argument that they should have been informed when this Board was created.  It is strictly an internal management structure to assist in making good decisions.

            In this case, it is clear that the only matter under consideration in determining “just cause” is the “ongoing problem of tardiness.”

            The information presented regarding safety vests, and turning off trucks and other alleged insubordinate acts, while possibly informative about the work ethic of the grievant are not relevant to a “just cause” review of the termination action. 

            An examination of the “problem of tardiness”  shows that the grievant does have significant difficulty getting to work on time.  This is a problem that must be addressed in the workplace.  The mission of the Elkhart County Highway Department is significantly impacted by persons who are not at work when they are supposed to be.

            The question is whether the pattern of tardiness (and other attendance issues) is sufficient to support termination.

            A literal reading of the collective bargaining agreement in Article 10 would suggest that if an employee is counseled, then receives an oral reprimand followed by a written reprimand, and a suspension that employee is then subject to termination even for something as minor as reporting to work late.  I am not sure if such an action would be supported by a majority or arbitrators or not.  A review of recent published cases show a number in which employees are terminated for violation of attendance and tardiness policies but none show support for as few as four incidents of tardiness in a two year period.  Arbitrator Harris, in Georgia Pacific & IBEW Local 1583 (118 LA 577) upheld the termination of an employee who was tardy forty one (41) times in an 18 month period and Arbitrator Hockenberry, (Gallaudet University & SEIU Local 82, 95 LA 963) upheld the termination of an employee who was tardy ten (10) times in ten (10) weeks.

            This would be a difficult case if management had carefully and completely followed every step in their progressive discipline process.

            The Attorney for the County points out to the language in the contract which follows the steps in the progressive discipline process and which states: “It is recognized that some employee actions could require immediate suspension or dismissal thereby eliminating some of the above steps.”

            This type of language is common in many contracts.  It is added to ensure the employer has the ability to deal with those serious situations when progression is not practical or appropriate.  The employee who comes to work intoxicated, or engages in the commerce of drugs, or steals, or a myriad of other infractions cannot expect to move through the steps of the progressive discipline procedure.  The employee who is tardy can.

            The County then advances the argument that the one day suspension was never grieved to arbitration and thus any errors that might have occurred prior to that event are “cured” by the inaction of the grievant and the union.

            Ordinarily this argument would be persuasive.  The examination of this situation reveals the following:

            The incident giving rise to the one day suspension occurred on January 21, 2003.

            The Suspension was served on January 22, 2003.  

            A grievance was filed on January 24, 2003.

            Jeff Taylor informed Union Representative Scott Swinehart that he was returning the grievance on January 27, 2003.

            Apparently the grievance was resubmitted sometime after January 27. (the record is unclear on this point, but Management Exhibit 22 is the original grievance with an attachment.)

            February 4, 2003 Jeff Taylor sent a denial of the grievance to Scott Swinehart.

            On February 13, 2003 Scott Swinehart sent a memo to Jeff Taylor (Management exhibit 24) informing him that “we [the union] feel we have no choice but to pursue the grievance to the next level.”

            Soon after this notice was sent Mr. Stevens was involved in the February 19 incident and was discharged from employment the next day.

            In reviewing these facts one cannot conclude that the union abandoned its claim that progressive discipline had not been followed.

While no arbitrator can rule on a matter unless it has been processed to the arbitration stage, it is relevant and necessary that I examine the underlying matter of the missing written reprimand.  This defect in management’s case has not been “cured” by the fact the grievance on the suspension was never processed to arbitration.

The collective bargaining agreement apparently assigns some weight to the steps beyond the oral warning when it refers to an “Official written warning.”  This step was thought to have some meaning in possibly warning the offending employee that dire consequences would follow further infractions.

Management cannot just skip this step because they are irritated by the failure of the employee to correct his behavior.

Let this arbitrator hasten to note that the grievant is also not blameless in this matter.  He did not take serious steps to resolve whatever was keeping him from getting to work on time.  If personal problems were at the root, then EAP was (and is) available to provide assistance.

The employer has an absolute right to expect employees to be at work regularly and on time.  Employees who do not comply can be discharged from employment after all contractual obligations have been met.  In this case management moved too soon.

AWARD: 

            The grievance is therefore granted in part and denied in part.

I find the Elkhart County Highway Department did violate the collective bargaining agreement when it failed to follow all the steps of progressive discipline in dealing with the tardiness of the grievant.

The county is to offer Mr. Stevens reinstatement to a position of Highway Maintainer II within three weeks of the receipt of this award.  Mr. Stevens will have two weeks to accept or reject the position.

Mr. Stevens is to receive back pay for the period of time between his discharge and the date of the offer to return to work, minus the following deductions:

1.              An amount equal to thirty (30) work days of pay, which shall be marked in his personnel records as a suspension for attendance related infractions.

2.              Any interim earnings that he may have, (or should have), earned during the period he was separated from employment.

The following conditions are also awarded:

1.              Mr. Stevens will otherwise be made whole.

2.              Mr. Stevens is to seek and receive assistance from the Employee Assistance Program or other appropriate provider to deal with any problems contributing to his attendance and tardiness.  He is to verify his participation in such program either to the Personnel Director for Elkhart County Highway Department or to his Union Representative, who, in turn will inform the County when he has initiated such assistance.

3.              Mr. Stevens is to view this as a “last chance reinstatement” and note that any further infractions of the tardiness, attendance policies of the County will most likely lead to termination from employment.

4.              The arbitrator will retain jurisdiction for a period of one year to assure the terms of this award are met and to resolve any disagreements that might arise regarding the computation of the back pay award. [5] 

   

Issued this 25th. Day of October, 2003 at London, Ohio

_____________________________ 
N. Eugene Brundige, Arbitrator



[1] There was some discussion of a determination on the previous suspension.  The parties agreed that this suspension was not appealed to arbitration and thus is not an issue to be determined by this arbitrator.

[2] Post Hearing Brief of the County.

[3] Collective bargaining agreement, Article 10, page 14.

[4] In re KEEBLER COMPANY, COLUMBUS GA. PLANT and BAKERY, CONFECTINERY, TOBACCO WORKERS AND GRAIN MILLERS, Local 42, 118 LA 326, FMCS Case No. 920325/07510-3, February 14, 2003.

[5] Further alleged violations of safety rules or matters of insubordination should be handled by the County as matters of training, supervision and/or discipline separate from the terms of this “last chance” reinstatement.

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