IN THE MATTER OF THE ARBITRATION BETWEEN
HAWAII GOVERNMENT EMPLOYEES ASSOCIATION,
AFSCME, LOCAL 152, AFL-CIO, AND
HAWAII HEALTH SYSTEMS CORPORATION, HILO MEDICAL CENTER
(THE GRIEVANCE OF JAMES WRIGHT)

 

            This matter came on to arbitration at hearings held on March 4-5, 2003, and May 8, 2003.  The Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO (“Union” or “HGEA”) was represented by Debra A. Kagawa, Esq., and the Hawaii Health Systems Corporation, Hilo Medical Center (“Employer” or “Company” or “Hilo Medical Center” or “HMC” or “HHSC”) was represented by Roy A. Vitousek, III, Esq. and Kristin S. Shigemura, Esq.  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 Collective Bargaining Agreement (“CBA” or “parties’ CBA” or “Contract”) between the Employer and the Union effective July 1, 1999 through June 30, 2003   governs this subject.  The arbitration was conducted pursuant to Article 11 of the CBA (“Grievance Procedure”).  All parties were fully,  fairly, and well represented at the arbitration hearings and subsequently. 

ISSUES PRESENTED                                               

            Pursuant to the documents, testimony and arguments submitted prior to and during the arbitration hearing, the issues presented to the Arbitrator are:

Issue No. 1: 

            Did the Employer violate Articles 3, 4, 8, 16, 17 and/or 40 when it placed

James Wright (“Wright” or  “Grievant”) on leave without pay pending investigation effective May 2, 2001?

Issue No. 2: 

            If the leave without pay pending investigation issue was a violation of the parties’ CBA, what is the appropriate remedy?

Issue No. 3: 

            Did the Employer violate Articles 3, 4, 8, 17, and/or 19 when it terminated the Grievant effective August 13, 2001?

Issue No. 4: 

            If the termination of the Grievant was a violation of the parties’ CBA, what is the appropriate remedy?                               

SUMMARY OF FACTUAL BACKGROUND

            James Wright was employed as an X-ray Technician II, Bargaining Unit 03, at the HMC, HHSC for more than 20 years.  Beginning in 1996, Wright held a second job as an X-ray Technician for Dr. Peter Matsuura (“Matsuura”).

            Radiology Department employees are assigned to work different shifts.  Wright generally worked the evening shift (6:00 p.m. to 11:30 p.m.) on Mondays through Thursdays, and the night shift (10:30 p.m. to 7:00 a.m.) on Fridays and Saturdays.  The X-ray Technician on the night shift generally works alone, and is the only person in the Radiology Department.  The X-ray Technician on the night shift does all of the paperwork, all of the x-rays, and sets up the rooms for the next morning.  If there are any intensive care portable x-rays, the X-ray Technician on the night shift also does those if he is able to.

            In comparison, during the day shift, there are clerical personnel and usually four (4) to six (6) X-ray Technicians on Mondays through Fridays (and three X-ray Technicians on the weekends).  Accordingly, for X-ray Technicians on the day shift, there is no paperwork involved, and no transporting of patients.  The X-ray Technician on the night shift does all of that by himself.  During the evening shift, there are clerical personnel and usually three X-ray Technicians from Mondays through Fridays (and two X-ray Technicians on the weekends).

            The Grievant worked on the night shift for six to seven years.  On busy nights, the Grievant had just enough time to do the x-rays.  On such nights, the emergency room usually kept the Grievant the busiest.  When it was really busy, paperwork for the next day had to wait.  Morning portables, depending on the severity of the patients, also had to wait.  Working on night shift, Fridays, Saturdays, and Sundays were the busiest nights of the week.

            On April 28, 2001, X-ray Technician Jay Reynolds (“Reynolds”) reported to the Radiology Department supervisor, Josepha DeSilva (“DeSilva”) that Wright had not finished the ICU portable x-rays (“ICU portables”) that had been ordered for the previous night.  ICU portables are diagnostic imaging films ordered by physicians for patients whose medical and physical condition prevent them from having films taken in the Radiology Department, and these films are expected to be ready for morning physician rounds.  If morning portables are not completed for morning rounds, it can result in a delay in patient diagnosis and treatment.

            Reynolds had reviewed the previous night’s requisitions and found that the workload had been light.  She therefore questioned why none of the ICU portables had been completed by Wright, the night shift Technician on duty.  When DeSilva reviewed the work that was done on the night shift, she, too, felt that at least some of the ICU portables could have been completed by Wright.  DeSilva testified that the night shift staff had been aware of the requirement that portables be done by morning rounds for quite some time and that Wright had been doing it for years.

            DeSilva called Wright later on April 28 when he came on the night shift.  She informed Wright that he needed to complete the ICU portables during his shift so that they would be done for the morning rounds.  Although Wright complained, DeSilva told him that she wanted him to try to complete the portables before the end of his shift.

            On April 30, 2001 at approximately 6:00 p.m., Wright came into the Radiology Department for work.  He found that the logging of the completed requisitions had not been finished.  DeSilva testified that normally the day shift is much busier than the night shift and it would not be unusual for technologists to be unable to log all paperwork

from the completed procedures before the end of the shift.

            Wright took the papers to Wayne Lowry (“Lowry”), a day shift Angiography Technologist who, at 6:00 p.m., was working overtime to finish an angio procedure.  Wright told Lowry that he had to finish the logging of the requisitions before he went home.  This began a loud confrontation between Lowry and Wright.

            Lowry locked himself in an x-ray room and called DeSilva, his supervisor, who was at home.  He asked her to come in to help him deal with Wright because he was “out of control.”  Lowry testified that he felt apprehensive and nervous during the incident and that he couldn’t understand why Wright was yelling at him.  Further, he testified that the shouting put him on edge, making him shaky and nervous because it was a stressful situation.

            According to Wright, when he approached Lowry with the requisitions, he told him that he had to finish them before leaving because that was the “rule” that Desilva had laid down.  Lowry immediately “became unglued” and started yelling at Wright that he was not the person who reported him for the ICU portables.  When Wright took the papers to Lowry at the computer, Lowry yelled “shut up” at Wright and stuck his hand in Wright’s face.  Wright then asked Lowry in a raised voice, who was he to stick his hand in his face, and, therefore, the confrontation ended when Lowry said he didn’t need to take this and walked out.  Wright did not describe himself as yelling, using profanity or ethnic slurs, and testified that he never got close to Lowry.  Wright admitted telling Lowry that he was “a bad QC”.

            DeSilva came into the hospital immediately after Lowry called her at home that evening.  She was unable to calm Wright.  She, therefore, sent Wright home for the remainder of the evening on leave with pay.

            Lowry submitted a complaint about the incident on May 1, 2001.  In his complaint, he stated that he felt “harassed, intimidated, and demeaned.”

            After hearing about  Wright’s confrontation of Lowry and hearing from another employee that Wright was angry at her for reporting the unfinished ICU portables, Reynolds was upset and unable to do her job because she was afraid of him.

            On May 1, 2001, Reynolds submitted a written statement to DeSilva expressing her concern over Wright’s recent behavior directed toward Lowry as well as toward another technologist a few months earlier, Eric Glaus (“Glaus”).  In her statement, Reynolds indicated that she was concerned because she had heard that Wright was angry at her for reporting him for the unfinished ICU portables, and expressed that it was “very stressful to work in the same department with a violent and abusive co-worker.”  DeSilva also recalled that Reynolds indicated to her that she was worried about her physical safety and retaliation by Wright for reporting the ICU portables not having been done.

            On May 2, 2001, DeSilva was told by HMC Human Resources that based on Lowry’s complaint, Wright was being placed on leave without pay pending an investigation as to whether there has been any violation of the HHSC Workplace Violence/Abuse No-tolerance Policy.  DeSilva was asked to communicate this to

Wright.

            That afternoon, at approximately 3:30 p.m., DeSilva called Wright into her office.  DeSilva explained to Wright that he was being placed on leave without pay pending an investigation.  Wright became very angry, and according to DeSilva, began shouting while standing up and leaning over her and glaring at her.  He demanded to know why Lowry was not being placed on leave as well, calling Lowry a “damn haole”, using profanity, and at one point, slammed his coffee cup against her glass desktop.  DeSilva testified that Wright stood up, came close to her face, within a foot or less, and glared

at her, his eyes bulging and his face red.  DeSilva recalled that as Wright left the room, he said “I should have kicked his ass” referring to Lowry.  DeSilva testified that after Wright glared at her and slammed his coffee cup against her glass desk, she “got kind of scared and froze”, and “she had to block it off.”

            Wright’s version was that although he did raise his voice and get a little upset, he did not yell and he did not stand up over DeSilva or even come close to her.  He admitted putting his coffee cup down “hard” on the glass, but denied using profanity because he didn’t use that kind of language and denied saying he should have kicked Lowry’s ass that night.

            After Wright left DeSilva’s office, he went into the department’s radiology lounge and shattered his full cup of coffee by throwing it against the wall.  He then tore the internal department telephone list off the bulletin board which contained a list of home telephone numbers of all the radiology employees.  Subsequently, he cleared out his locker, since “he had lost his job” and went to his truck in the parking lot.

            At approximately 4:00 p.m. that same afternoon, Lowry was getting into his car to go home.  Lowry was parked where he normally parked in the mauka parking lot which is on the opposite side of the hospital from the makai parking lot.  According to Lowry, as he was leaving the parking lot, he recognized Wright’s car pulling into the parking lot.  He could see that Wright was saying something to him, but he could not hear what Wright was saying.  Consequently, he lowered his window, as did Wright.

            Lowry testified that Wright was yelling angrily and blaming him for losing his job.  Lowry said that he had nothing to do with it, and that Wright had brought it on himself.  Wright put the blame on Lowry and Reynolds.

            Lowry testified that  Wright then suggested to Lowry that “Let’s take it down to the beach and settle it.”  Lowry felt that Wright was referring to a physical altercation.

            Lowry refused to go to the beach, and Wright then said “Well, I’ll get you.”  Lowry interpreted these comments as threats and, afraid and intimidated, parked his car to go back inside the hospital.  Lowry testified that as he was parking, Wright said to him, “You wuss, go on in there and tell them.”  Lowry testified that after the incident, he was afraid that Wright might carry out is threat to “get him”, and he was therefore afraid to go home.

            According to Wright, he did not threaten Lowry in the parking lot.  Instead, he had merely driven from the makai parking lot where he usually parked, which is below the hospital, up to the mauka parking lot, so he could go to the Administration office

and ask for his job back.  However, upon reaching the parking lot, he felt that it was futile and changed his mind.  At that point, he was blocked in by Lowry’s car.  He stated that Lowry had driven around the parking lot and stopped in front of his car.  Lowry suggested that they go inside the building to talk, but because Wright had just been “kicked out of there”, he felt he couldn’t go inside.  Therefore, Wright alternatively suggested that they go down to the beach to talk.

            Lowry notified DeSilva and HMC Human Resources about Wright’s threatening behavior in the parking lot.  HMC Human Resources was already aware of the events in DeSilva’s office and the radiology lounge, which had occurred just before Lowry came back into the hospital building.  Because Lowry reported being afraid to go home that evening, the police were called and a report was made.  Because of the apparent connection of the April 30, 2001 events and the ICU portable issue from April 28, 2001, Reynolds was also informed of the events occurring at the hospital on May 2, 2001.

            Later that night Mark Kunzer (“Kunzer”), HMC Human Resources Specialist, called  Wright at home and asked him to come to a meeting the next day at the hospital.  The purpose of the meeting was for everyone to air their feelings and to try to smooth things out.  The next day, a meeting was held with Kunzer, Karen Moriuchi (“Moriuchi”), Reynolds, Lowry and  Wright.  Each person was asked to discuss their feelings and to listen to what the others had to say.  A police officer was present in the event that anything violent or threatening occurred.

            At the end of the meeting, Kunzer handed Wright the written confirmation that Wright had been placed on leave without pay, effective May 2, 2001, pending an investigation of his alleged violation of the HHSC’s Violence/Abuse Workplace No-Tolerance Policy.  The letter stated the allegations of violent and threatening behavior on April 30, 2001 and May 2, 2001, and also informed Wright that the maximum period of leave without pay was 30 days.  The letter also explained that if the investigation continued longer than 30 days, the leave could be assigned to a temporary work place.  It was explained in the letter that Wright’s presence might hamper the investigation or cause unnecessary fear or apprehension by witnesses.

            On May 18, 2001, the HGEA filed a grievance relating to the leave without pay and alleging violations of Articles 3, 4, 8, 16, 17, and 40 of the CBA.

            An investigation was conducted by Kunzer.  Eighteen witnesses were interviewed, including Wright.  The investigation lasted longer than 30 days, and Wright was subsequently placed on leave with pay on June 1, 2001.  The investigator concluded that Wright had violated the HHSC’s Workplace Violence/Abuse No-Tolerance Policy, and that appropriate discipline should be imposed.

            Ronald J. Schurra (“Schurra”), Regional Chief Executive Officer, East Hawaii Region, HHSC, reviewed the investigative findings and came to the decision that Wright should be dismissed.  A dismissal letter, dated July 31, 2001, informed Wright of the findings of the investigation and notified him that he had the opportunity, before the effective date of dismissal, to meet with Schurra and respond to the specific reasons for the dismissal action.         

            Wright did not request to meet with Schurra prior to the effective date of the dismissal to offer his version of the facts directly to him.  Wright’s explanation for not requesting a meet was that he did not read the entire dismissal letter.  Therefore, he did not read the part where he was advised that he had the right to speak to Schurra and present his version of the facts.

            Wright’s dismissal became effective on August 13, 2001.

            Subsequent to Wright’s termination from HMC on August 13, 2003, Schurra filed an ex parte request for a temporary restraining order against Wright for an altercation between Schurra and Wright at a public meeting at Hilo High School that occurred on September 5, 2001.  According to Schurra, Wright verbally assaulted him and made threatening gestures toward him and his family at this meeting.  Schurra stated that Wright criticized his decisions and accused him of firing all the good hospital employees, including him.

            According to Wright, he did not threaten Schurra at the meeting or force the conversation on him; it was Schurra who forced the conversation on Wright.

            Schurra’s ex parte request for a temporary restraining order against Wright was denied by the Court.

            The HGEA filed a second grievance on September 12, 2001 relating to the dismissal and alleging violations of Articles 3, 4,8, 17, and 19 of the Contract.  The two grievances were denied at each level of review.  The grievances were then consolidated, and the Union demanded arbitration on both grievances. 

APPLICABLE CONTRACT PROVISIONS

            The applicable CBA, in part, provides:

                                   ARTICLE 40 - OTHER LEAVES OF ABSENCE

            L.         Leave Pending Investigation of Charges.

1.         Whenever an investigation of charges against an Employee is pending and the Employee’s presence at the work site is deemed by the Employer to be detrimental to the proper conduct of the investigation or the operations of the work place, the Employee may be placed on a leave of absence without pay pending investigation subject to the following:

a.         The Union and the Employee who is placed on the leave without pay pending an investigation shall be given written notice within forty-eight (48) hours after such action is taken.  The written notice shall provide an explanation, including available facts on why the Employee’s presence at the work site is deemed by the Employer to be detrimental to the proper conduct of the investigation or the operations of the work place and the effective date of the leave of absence without pay pending an investigation.

b.         The period of leave of absence without pay pending an investigation shall be for such length of time as may be necessary to conclude the investigation, but not exceeding thirty (30) days.  In the event the investigation exceeds thirty (30) days, the appointing authority may exercise its options provided in subparagraph L.2.

c.         If the Employee who has been placed on leave of absence without pay pending investigation is cleared of all charges or if the charges are dropped or not substantiated, the Employee shall be reinstated without loss of pay and all rights and benefits will be restored as though the Employee had not been on leave of absence without pay pending an investigation.

                                                                           * * *

2.         Notwithstanding the foregoing, whenever an investigation of charges against an Employee is pending, the Employer shall have the discretion to:

a.         retain the Employee in active duty status;

b.         place the Employee on leave of absence with pay;

c.         return the Employee to active duty status from leave without pay pending an investigation; or,

d.         reassign the Employee to another work unit or area and in the same or different capacity.

POSITIONS OF THE PARTIES

EMPLOYER'S POSITION

            The Employer’s position is that it is entitled to dismissal of the grievance, arguing that:

1.         The grievance is not substantively arbitrable.

2.         A party cannot “waive” substantive arbitrability.

3.                     The Employer did not violate the Contract when it placed  Wright on leave without pay effective May 2, 2001.  Under Section 40(L) of the Contract, “whenever an investigation of charges against an Employee is pending and the Employee’s presence at the work site is deemed by the Employer to be detrimental to the proper conduct of the investigation or the operations of the workplace, the Employee may be placed on a leave without pay pending investigation.”

4.         The allegation that the Grievant violated the Hawaii Health System Corporation’s (“HHSC”) “Workplace Violence/Abuse No-Tolerance Policy” was proven not only by a preponderance of the evidence, but by clear and convincing evidence.

5.                     Witnesses observed the effect on the victims of the Grievant’s behavior and indicated that  Lowry and Ms. DeSilva appeared fearful, shocked and anxious.  Conversely, no witnesses corroborated the Grievant’s version of the events.  The Grievant’s claim that all the other witnesses lied to protect Ms. DeSilva’s husband is not credible and was not supported by any evidence other than the testimony of the Grievant.

6.         Making verbal threats of violence or engaging in verbal harassment is a violation of the Employer’s 8/10/00 HHSC Workplace Violence/Abuse No-Tolerance Policy, as well as the HHSC Employee Safety-Violence policy and the 1/10/95 Intra-Departmental Directive 95-1 re: Safety-Violence in the Workplace.

7.         Because of the serious ramifications of workplace violence, the Employer’s policies prohibit all acts and threats of violence and intimidation regardless of whether the actor intends to act violently or to carry out threats of violence.  The HHSC Workplace Violence/Abuse No-Tolerance Policy recognizes that verbal h harassment and abuse can precede a physical attack and that such behavior is inconsistent with a safe and secure workplace and a productive work environment.

8.         The Grievant was forewarned that violent and threatening behavior was not appropriate and would not be tolerated by the Employer through in-service-training, posting of the HHSC’s policies throughout the hospital, and an individual counseling session with  Chuck Bolden (“Bolden”) on HHSC’s violence and harassment policies just a few months before the events of April and May 2001.  Although the Grievant denied that Bolden ever discussed the policy with him, he admitted that his Union business agent had mailed him a copy of the HHSC Workplace Violence/Abuse No-Tolerance Policy several months before the events of April and May 2001.

9.         The Grievant’s threatening and angry behavior caused several of his co-workers to express fear and apprehension of working with him.  One was not a direct victim of his abuse or harassment, but she expressed concern and stress after hearing about his behavior.  This illustrates the collateral problems that violence and harassment can cause in the workplace, including loss of a sense of security, creation of apprehension and fear in co-workers, and loss of trust.

10.       There was just and proper cause for the suspension and termination of the Grievant because the allegations were substantiated, the threats and harassment by the Grievant over two days were disruptive to the work environment and to the operations of a critical department in the hospital, it caused staff to fear for their safety and to suffer anxiety, and it violated an important policy that is designed to ensure the safety of all employees in the workplace.

11.       Despite the fact that the Grievant had an overall satisfactory work performance and had worked at HMC for many years without any prior discipline for violence or harassment, his actions on April 30, 2001 and May 2, 2001 were so egregious that they warranted dismissal.

12.       The Grievant harassed, intimidated, and threatened Schurra on September 5, 2001 and also verbally assaulted Kunzer, the Investigator, in late 2002 or early 2003, after the effective date of the Grievant’s suspension and termination.  The Grievant chose to do this, despite the fact that he had alternative, non-violent means of addressing the dismissal through the grievance process.  This only serves to validate the Administrator’s conclusion at the time he made the decision to dismiss the Grievant, that the Grievant’s behavior was a continuing pattern and would not change.

13.       Even if the Arbitrator concludes that there was no just and proper cause for the August 13, 2001 dismissal, the Grievant’s subsequent behavior requires that the Arbitrator find that reinstatement is not the proper remedy.  The Grievant has forfeited any right of reinstatement by his post-discharge behavior, in which he harassed, threatened and intimidated the HMC Administrator on two occasions as well as Kunzer only a couple of months before the arbitration.  The post-discharge actions illustrate that the Grievant has not changed his behavior and he continues to use intimidation and threats as an outlet for his anger, despite having non-violent means of addressing his problems.  His behavior is completely inappropriate both inside and outside of the workplace, and cannot be allowed to exist in the hospital setting.

14.       The Grievant was forewarned of the Employer’s zero-tolerance policy.

15.       HHSC’s policies prohibiting workplace violence are reasonably related to the business operations of the hospital and the performance the employer might expect from its employees.

16.       The Employer’s policy of zero-tolerance for violence, abuse, and harassment is also stated in the HHSC Personnel Policies and Procedures Manual Section 11-2, “Employee Safety-Violence”.

17.       The purpose of the Employer’s policies is not only related to basic workplace safety issues, but also related to safe, efficient, and timely hospital operation so as to provide quality medical care services to HMC patients.  The importance of these policies to the hospital was explained by the HHSC Human Resources Director and HHSC Administrator and Regional CEO.  The policy does not define prohibited actions by the actual intent of the actor, but instead by the subjective response or effect on the victim.

18.       The Grievant attempted to justify his actions by claiming they were due to reasonable anger and frustration and that his acts such as throwing the coffee mug were merely venting, like “hitting a punching bag”.  His behavior is simply unacceptable.

19.       An effort was made before discipline to determine whether the Grievant was guilty of making a threat of violence.

20.       The Hospital’s investigation was conducted fairly and objectively.

21.       Substantial evidence was obtained of the Grievant’s threats and acts of violence on April 30^th and May 2^nd 2001.

22.       HHSC’s rule was applied fairly and without discrimination.

23.       The degree of discipline was reasonably related to the seriousness of the Grievant’s offense notwithstanding his past record.

24.       The Grievant’s actions, while primarily verbal, had an actual effect on the work environment and co-employees.  Wright’s substantiated behavior occurred over several days and was directed towards two people.  His actions escalated in severity and their threatening nature–culminating in direct threats to  Lowry.

25.       The Grievant, by shattering his full coffee mug by throwing it against a wall, demonstrated his ability to actually carry out acts of violence.  This would reasonably cause even greater fear among employees of Wright’s capacity or propensity for violence.

26.       The seriousness of his actions and the gravity of workplace violence and abuse considerations warrants his dismissal on the first offense notwithstanding his technical skills and lack of prior discipline.

27.       Ensuring a workplace free from violence, harassment, and intimidation is of such a critical and fundamental nature, that the Employer was justified in taking strong measures to correct, set a standard within the workplace, and prevent future incidents by the Grievant.

28.       The signs of potential violence by the Grievant that are evident in the record are:  1) direct or veiled verbal or written threats of harm; 2) intimidation of others (physical or verbal intimidation); 3) paranoid behavior–perceiving that the world is against them; 4) moral righteousness and believing that the organization is not following its rules and procedures; 5) unable to take criticism of job performance; holds a grudge, especially against supervisors; 6) expression of extreme desperation over recent family, financial or personal problems.

29.       The Employer’s decision to terminate the Grievant was appropriate, notwithstanding the fact that this was his first substantiated offense.

30.       The Grievant has forfeited any right of reinstatement by his post-discharge behavior.  Wright’s post-discharge behavior is not only consistent with the unacceptable behavior and actions that occurred on April 30^th and May 2, 2001, and in and of themselves are unacceptable; they are also indicative of Wright’s standard response to conflict or stress, and of his unwillingness or inability to change his behavior.  Wright’s actions mandate a conclusion that he is not entitled to reinstatement, regardless of any alleged procedural defects in the Employer’s decision to dismiss him effective August 13 2001.

            UNION'S POSITION

            It is the Union’s position that the Employer has violated the CBA noting that:

1.         Although the Employer provided the Grievant with written notice of the leave without pay (“LWOP”) pending investigation, it did not specify all “available facts” regarding why the Grievant’s presence at the work site was deemed detrimental.  At the time DeSilva was ordered to place the Grievant on LWOP pending investigation, the only incident that occurred up until that point was the verbal confrontation between Lowry and the Grievant in the Radiology Department.

2.         The Grievant did not threaten Lowry.  Even if the Grievant spoke to Lowry in a loud manner, the Grievant’s interaction with Lowry would never have happened if Lowry had not been working overtime.

3.         The Employer’s decision to place the Grievant on leave without pay pending investigation was a continuation of unfair treatment of the Grievant, and served no purpose other than punishment and discipline without proper cause.  But for the Employer placing the Grievant on leave without pay pending the investigation of his verbal confrontation with Lowry in the Radiology Department, the incidents that followed (beginning with the heated conversation with DeSilva in DeSilva’s office and ending with the Grievant’s conversation with Lowry in the upper parking lot) would never have occurred.

4.         The Employer had the discretion to place the Grievant on leave with pay pending the investigation of the April 30, 2001 verbal confrontation between Lowry and the Grievant in the Radiology Department.  The Employer also had the discretion to keep the Grievant on active duty status.

5.         Placing Wright on leave without pay was the event that triggered the heated conversation between Wright and DeSilva, the coffee cup incident, and the parking lot incident.  Prior to that, Wright was in a “good mood.”

6.         Bolden, Chief Investigating Officer of the Hilo Medical Center, who conducted the investigation, acknowledged that there have been instances where employees have been placed on leave with pay pending an investigation.

7.         The Grievant received a copy of the Employer’s policy on workplace violence (effective 8/1/00) from the Union following the Glaus incident.  However, the Grievant never received any counseling or training about the policy.  Bolden testified that Hilo Medical Center has not provided in-service training on workplace violence policy.

8.         The Workplace Violence/Abuse No-Tolerance Policy does not provide that an employee will be terminated for any and all violations of the policy.  Rather, the policy provides that “[t]hreats, whether direct, indirect, or implied, are unacceptable and will result in disciplinary action up to and including termination.”  The policy also provides under “No-Tolerance Policy” that “[e]mployees who violate this policy will be subject to appropriate disciplinary action in accordance with the collective bargaining agreement and HHSC Personnel Policies & Procedures.

9.         The investigation performed by Kunzer was biased and incomplete.  Kunzer interviewed the Grievant on more than one occasion, asked him the same questions, and used inconsistencies in the Grievant’s answers to discredit the Grievant’s version of events.  Kunzer did not re-question any other witness in this case.  Kunzer’s sole reason for interviewing the Grievant more than once was to get the Grievant to impeach himself.

10.       The written statements of witnesses Kunzer allegedly interviewed are also untrustworthy.  None of the witnesses were given an opportunity to review their statements that Kunzer incorporated into his investigation report to ensure that the statements were truthful and complete.

11.       The allegations that the Grievant violated the HHSC Workplace Violence/Abuse No-Tolerance Policy between April 30, 2001 and May 2, 2001 were found to be substantiated.  However, insufficient evidence was obtained to support his finding.

12.       The Grievant did not threaten Lowry in the Radiology Department.  The Grievant admittedly spoke to Lowry in a loud voice after Lowry yelled at him.  Lowry stuck his hand in the Grievant’s face, and told the Grievant to “shut up.”  However, even if the Grievant had yelled at Lowry, it was not a “threat of violence” that warranted suspension and termination, especially since Lowry precipitated the response.  Lowry was obviously not thrilled that the Grievant was telling him to do something that he believed did not apply to him, and reacted.  This is certainly insufficient to substantiate an allegation of threats of violence in the form of intimidation and confrontation.

13.       The Grievant did not challenge Lowry to engage in a “physical confrontation” in the parking lot or anywhere else.

14.       The Grievant denies the use of inappropriate language.  Even if the allegations regarding his use of inappropriate behavior were true, the use of inappropriate language a couple of times is hardly repetitive use of foul and offensive language directed at or about other staff members.

15.       The Greivant admitted throwing the coffee cup in the radiology lounge.  While the Grievant can certainly be accused of using bad judgment in throwing the cup to “vent,” the Grievant clearly had no intention of harming anyone.

16.       The Grievant had a “clean record.”  Prior to the suspension and termination action, the Grievant had never received any disciplinary action from the Employer.  All of his employee appraisal reports rated him as meets or exceeds expectations.  The Grievant was rated as “exceeds” expectations for his “relationships with others” on the last appraisal report that his supervisor, DeSilva, discussed with him.  The Grievant was described as “almost always works well with peers and subordinate.”

17.       Suspension and termination was not warranted.  HHSC’s Workplace Violence/Abuse No-Tolerance Policy (“Workplace Violence Policy”) provides that “employees who violate this policy will be subject to appropriate disciplinary action in accordance with the collective bargaining agreement and HHSC Personnel Policies & Procedures.”   The Workplace Violence Policy requires supervisors to consider the offender’s version of the incident, the offender’s past overall record, any mitigating circumstances, any aggravating circumstances, and the overall context in which the statement and/or activity occurred.

18.       Throughout his 20 years of employment at HHSC, the Grievant received good performance evaluations, and had never received any disciplinary action from the Employer.  The Grievant’s last performance evaluation was the first time that DeSilva rated the Grievant was “does not meet expectations” with respect to “relationships with others.”

19.       Lorna Shirota (“Shirota”), who is still employed at HMC, testified that she is not afraid of Wright, and did not feel personally threatened by him.  Shirota admitted that she hardly ever worked with Wright, and that Wright had never done anything to make her fear for her personal safety.  Shirota admitted that she did not expect Wright to be fired from HMC.

20        Reynolds alleged fear of the Grievant and belief that she was “unable to do [her] job” were not justified.  Reynolds worked on the day shift, and rarely interacted with the Grievant who was working on the night and evening shifts.  Likewise, Lowry and the Grievant generally worked on different shifts.  Reynolds admitted that she and the Grievant always talked “very cordially” and that she did not get to see the Grievant very much.  Reynolds’ fear of the Grievant was based on things that Lowry and Ricky told Reynolds that the Grievant had said about her, and things that Glaus told her about a confrontation that he previously had with the Grievant.

21        Reynolds admitted that she has never had any personal confrontation with the Grievant.  Reynolds’ fear of Wright was based solely on second-hand information, alleged incidents that she had no direct or personal knowledge about, and “just a gut feeling.”  The Grievant did not do anything to Reynolds to warrant her fears about the Grievant.

22.       Reynolds’ letter was conveniently submitted to the Employer on day before the Grievant was placed on administrative leave.  It is reasonable to assume that her letter was submitted to beef up the Employer’s case against the Grievant.

23.       Schurra’s claim that the Grievant allegedly threatened him on several occasions after the Grievant’s termination should be disregarded.  It is not relevant for purposes of determining whether the Employer’s actions of placing the Grievant on LWOP and subsequent termination violated the CBA.  Moreover, Schurra’s characterization of the Grievant’s alleged personal threats to him are also not credible and exaggerated.  Schurra’s testimony of what the Grievant allegedly said and did to him at the community meeting did not match up with his sworn statement in his petition for a temporary restraining order, which was denied.

            Finally, the Union contends that the Employer’s placement of the Grievant on LWOP pending investigation and subsequent termination of the Grievant violated the Unit 3 Agreement, and requests an award ordering that Wright be made whole, to include reinstatement with complete back pay and corresponding benefits, and any other make whole relief.           

ESTABLISHING JUST AND PROPER CAUSE

            In this matter, pursuant to the CBA and the body of decisions governing the interpretation of just cause, the Employer must show that just and proper cause existed for the Grievant’s suspension and termination by the Employer.  “Just Cause”, as defined by Arbitrators Hill, Sinicropi, and Evenson is as follows:

Just Cause.  The standard by which it is determined that

the employer has sufficient reason to remove an individual from employment.  Basically synonymous with “reasonable,”  “good,” or “proper cause.”  Perhaps the most often-quoted statement of just cause criteria used by arbitrators is in the form of a series of questions provided by Arbitrator

Carroll Daugherty in Enterprise Wire Co., 46 LA 359, 363-64 (1966) and Grief Brothers Cooperage Corp., 42 LA 555, 558 (1964).

Marvin F. Hill, Jr., Anthony V. Sinicropi, Amy L. Evenson, Winning Arbitration Advocacy (1997).

            In order to satisfy this standard, the Employer must meet the following tests required to show just cause for suspension and termination:

            1.         The employee was forewarned of the consequences of his 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 discipline 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 rule 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. (2/24/01) (Nauyokas, Arb.); HERE, Local 5 and Hyatt Regency Waikiki (11/13/01) (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 policy based on personal counseling and the actual policy which were provided to him by both the Employer and the Union.  Moreover, after an earlier incident in 2001 involving he and another employee, Glaus, Bolden showed him the HHSC Violence/Abuse Workplace No-Tolerance Policy and discussed what kind of behavior was prohibited under the policy and what the penalties could be for violating it.

            The Grievant admitted that he was familiar with the policy before the events of April 30, 2001 and May 2, 2001, and that after the incident between he and Glaus, an HGEA business agent mailed him a copy of the policy which he received.   Wright’s failure to read the policy does not excuse his unawareness of the policy and the sanctions for violating the policy.

The Employer’s policy, entitled “Workplace Violence/Abuse No-Tolerance Policy,” clearly states:

HHSC believes that a safe and secure workplace and an environment free from intimidating, hostile or offensive verbal or physical acts is fundamental to employee effectiveness.  HHSC expects all employees to share in establishing such a workplace, which can result when all employees treat one another with respect and common courtesy .

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Employee harassment/abuse of fellow employees, contractors, customers or the general public often foreshadows workplace violence and will not be tolerated by HHSC.  Such harassment/abuse includes the verbal threats, taunts, and harassment that can precede a physical attack.

HHSC takes threats and acts of violence seriously.  Threats, whether direct, indirect, or implied are unacceptable and will result in disciplinary action up to and including termination.

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