Title: Hawaii Health Systems and Hawaii Government
BEFORE ARBITRATOR MICHAEL F. NAUYOKAS
STATE OF HAWAII
ARBITRATION DECISION AND AWARD
Michael F. Nauyokas
Attorney, Mediator & Arbitrator
Telephone: (808) 538-0553
Attorney, Mediator & Arbitrator
Telephone: (808) 538-0553
IN THE MATTER OF THE ARBITRATION BETWEEN
AFSCME, LOCAL 152, AFL-CIO, AND
HAWAII HEALTH SYSTEMS CORPORATION,
(THE GRIEVANCE OF JAMES WRIGHT)
AFSCME, LOCAL 152, AFL-CIO, AND
HAWAII HEALTH SYSTEMS CORPORATION,
(THE GRIEVANCE OF JAMES WRIGHT)
This matter came on to arbitration at hearings held on
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
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
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 () on Mondays through Thursdays, and the night shift () 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.
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.
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 , 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
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.
That afternoon, at approximately , 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 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
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,
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
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
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
Subsequent to Wright’s termination from HMC on
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
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:
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.
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
* * *
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
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.
The Employer did not violate the Contract when it placed
Wright on leave without pay effective
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.
Making verbal threats of violence or engaging in verbal
harassment is a violation of the Employer’s
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.
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
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
The Grievant harassed, intimidated, and threatened Schurra on
Even if the Arbitrator concludes that there was no just and
proper cause for the
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.
Substantial evidence was obtained of the Grievant’s threats
and acts of violence on April 30th and
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.
The Grievant has forfeited any right of reinstatement by his
Wright’s post-discharge behavior is not only consistent with
the unacceptable behavior and actions that occurred on April 30th
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
It is the
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.
The Employer had the discretion to place the Grievant on
leave with pay pending the investigation of the
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.”
Bolden, Chief Investigating Officer of the
The Grievant received a copy of the Employer’s policy on
workplace violence (effective
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.
The allegations that the Grievant violated the HHSC Workplace
Violence/Abuse No-Tolerance Policy between
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
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);
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
The Grievant admitted that he was familiar with the policy
before the events of
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 .
* * *
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.
* * *
The HHSC policy defines “harassment” in relevant part as:
Verbal or physical conduct that denigrates or shows hostility or aversion toward an individual and that has the purpose or effect of:
Creating an intimidating, hostile or offensive work environment;
(Employer’s Exhibit 4) (Emphasis added).
In the instant case, the Employer gave the Grievant notice of the rules prohibiting
workplace violence and of the consequences for violating those rules. Given these circumstances, the Arbitrator finds that the Grievant was or should have been aware of the fact that any action taken against the Employer’s policies could or would result in
the suspension or termination of his employment.
This first consideration has therefore been satisfied by the Employer.
Issue No. 2: Was the Employer's rule reasonably related to business efficiency and the performance the Employer might expect from an employee?
In the arbitrator's analysis, the nature of the rule against workplace violence is, per se, a reasonable rule. It is reasonable that the Employer expect its employees to abide by its zero-tolerance workplace violence policy, as this policy ensures care to its employees in a manner and in an environment that promotes safety and the well-being of every employee.
The HHSC No-Tolerance Policy states:
* * *
Harassment/abuse of any kind is not conducive to 1) a safe work environment, 2) employee job satisfaction, or 3) workplace harmony and efficiency. Employee harassment or abuse of fellow employees, contractors, customers, or the general public will not be tolerated.
* * *
(Employer’s Exhibit 4) (Emphasis Added).
The HHSC and HMC zero-tolerance policy on workplace violence was intended to prevent any type of verbal harassment, abuse or physical threats or violence in the workplace. The obvious reason for such a strict policy is that the issue of workplace violence is a very serious issue. Workplace violence not only disrupts the Employer’s business operation, but may also pose serious threat or harm to other employees.
HHSC and HMC’s workplace violence policy is related to the basic, essential safety, security, and well-being of its employees.
The second consideration has therefore been satisfied by the Employer.
Issue No. 3: Was an effort made prior to the discipline of the Grievant to determine whether or not he was guilty of the offense charged?
1. Leave Without Pay Pending Investigation
Due to the serious nature of the events on
The Employer, in accordance with Section 40(L) of the Contract, gave the Grievant written notification of the leave without pay and the allegations made against him, within 48 hours of the effective date of leave without pay. When the investigation exceeded 30 days, the Grievant was subsequently placed on a paid leave status (Employer’s Exhibits 1 and 9).
2. Dismissal of James Wright
Prior to any discipline being imposed, the Employer made an effort to determine whether the allegations made against the Grievant were substantiated, including a thorough investigation of the allegations of violence and harassment in the workplace. The investigation include several witness interviews, written statements, and photographs of the radiology lounge.
Wright was notified of the allegations against him and given an opportunity to relate his side of the events and was allowed to have a Union business agent present during the interview. The Grievant was interviewed twice. A Union representative was present at both interviews.
The investigation procedure was designed to make a fair determination whether the abuse had been substantiated prior to imposing discipline. Therefore, the Arbitrator specifically finds that the Employer thus satisfied all of the due process steps of investigation and deliberation required under the Contract before the discipline was imposed on the Grievant.
The third consideration has therefore been satisfied by the Employer.
Issue No. 4: Was the investigation of the incident conducted fairly and objectively?
As noted in the analysis of issue No. 3, an investigative
meeting was conducted on or about
The detailed and extensive investigation performed by Kunzer, including the witness interviews and completion of written statements, was conducted fairly and objectively. In performing the investigation, the Employer took extensive efforts to make a fair determination before discipline was imposed, that the investigator attempted to be fair and objective, that the material evidence gathered by the investigator relative to the charges was in fact accurate.
The Employer’s conclusion was more than reasonable given the
severity of the allegations.
Additionally, other investigatory measures were taken by the
Employer in order for the Employer to make a sound determination as
to whether the Grievant was guilty of the offense charged, including
photographs of the
It is clear that the Grievant had the benefit of
representation by his
In summary, the evidence showed that the investigation conducted by HHSC was complete and fair in its effort to determine whether the Grievant had engaged in workplace violence. In reviewing the evidence in the light most favorable to the Grievant, it appears that the investigation was conducted fairly and objectively.
The fourth consideration has therefore been satisfied by the Employer.
Issue No. 5: Was substantial evidence of the Grievant’s guilt obtained?
The Grievant’s acts of workplace violence on
In reviewing the exhibits and the testimony of witnesses
given at the arbitration hearing, including the Grievant’s own
testimony, the Arbitrator finds that the investigation, in its
entirety, correctly concluded that there was substantial evidence
that the Grievant had engaged in workplace violence on
In the instant case, the Arbitrator finds that the Employer obtained substantial evidence of the Grievant’s guilt (i.e., workplace violence) prior to his LWOP pending investigation, and that there was insufficient evidence by the Grievant to justify his act against the Employer’s workplace violence policy.
This fifth consideration has therefore been satisfied by the Employer.
Issue No. 6: Was the rule applied fairly and without discrimination?
In reviewing the circumstances, the testimony, the evidence, and the demeanor of the participants in the incidents, the Arbitrator finds that the Employer applied its rules and penalties pertaining to workplace violence fairly and without discrimination to its employees.
The evidence introduced at the hearing showed that the HHSC policy was applied to the Grievant in a fair and even-handed manner. In particular, the evidence revealed that Schurra, in deciding whether to impose discipline, reviewed and considered all available evidence, including mitigating factors support the Grievant. Schurra testified that prior to making his decision, he considered the fact that Wright had a satisfactory work performance, he had not been disciplined for violence before, and that he had been working two jobs at the time.
Furthermore, the Employer produced sufficient evidence that its workplace violence policy had been consistently enforced. The evidence presented by the HHSC indicated that HHSC applied its policy consistently with its stated terms: that no threats of violence would be tolerated, under any circumstance, and that violations of the policy would be result in discipline. Therefore, the Arbitrator finds that the rule in this instance was applied fairly and without discrimination.
The sixth consideration has therefore been satisfied by the Employer.
Issue No. 7: Was the degree of discipline reasonably related to the seriousness of the offense and the Grievant's past record with the Employer?
HHSC’s Workplace Violence/Abuse No-Tolerance Policy provides
that “employees who violates this policy will be subject to
appropriate disciplinary action in accordance with the CBA and HHSC
Personnel Policies & Procedures.”
The 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.
HHSC’s Personnel Policies & Procedures provides that “[i]t is the policy of HHSC to discipline regular employees only for just and proper cause.
Section 7-6 (Discipline) General Description provides:
Every alleged violation of work rule or prohibited conduct shall be investigated thoroughly, fairly and objectively. Only factual and relevant evidence shall be considered prior to applying discipline. When determining the appropriate disciplinary action, consideration shall be given to the employee’s work performance record, length of service and the seriousness of the offense.
* * *
Employees who do not meet performance standards or who violate workplace rules may be disciplined or dismissed. Employees, when appropriate, will be given fair warning about their poor performance or unacceptable conduct and, when appropriate, be provided an opportunity to make necessary changes in behavior.
Appropriate work rules governing employee conduct shall be established, communicated to all employees, and enforced throughout HHSC.
(Union’s Exhibit 31)
The Grievant received good performance evaluations, and had
disciplinary action from the Employer throughout his 20 years of
employment at HHSC. (
of the Grievant’s termination. The Employer never completed a performance evaluation for the Grievant for the period that preceded his last evaluation (for the period
The Grievant admitted throwing the coffee cup in the radiology lounge. While
the Grievant used bad judgment in throwing the cup to “vent,” the Grievant clearly had no intention of harming anyone. At the time of the April 30, 2001 incident, the radiology lounge was empty, and the Grievant did not direct his act of throwing the cup at anyone; his reaction was solely out of frustration. He vented his frustration in an empty room. The Grievant’s reaction is not sufficient grounds for taking any punitive actions against the Grievant.
The Employer clearly admitted that the Grievant did not act out on his direct and implied threats of physical violence, and that there was a possibility that he may not even have intended to.
In the current instance, the Employer admitted that it is undisputed that the Grievant had no prior record for violating the Employer’s policy prohibiting harassment and abuse in the workplace. According to the Employer and testimony by Schurra, it is also undisputed that the Grievant worked at HMC for more than 20 years without any prior disciplinary action taken against him and that he was considered a satisfactory X-ray Technician, as evidenced in his performance evaluation.
The exhibits and testimony establish that Wright, a long term employee, had no prior disciplinary history. His supervisors and other witnesses confirmed that he was a good employee with good skills.
Given the Grievant’s good 20 year work history as a mitigating circumstance, and considering the Employer’s personnel policies and procedures, the Grievant’s behavior here, while unacceptable, was not an offense that justified immediate suspension or termination.
The Arbitrator generally will not substitute his judgment for the judgment of the Employer in determining the appropriate discipline given a particular set of facts. In this case, had the April 30, 2001 incident been Wright’s second offense, despite his length of employment and past work record, suspension and termination would have been a proper level of discipline considering the factors applicable under this tier of the analysis. However, the Arbitrator determines that termination under the circumstances cannot be sustained given Wright’s first-time offense and length of employment.
Consequently, the Arbitrator finds that the Employer has not satisfied this tier of Just Cause analysis. The degree of discipline was not reasonably related to the seriousness of Wright’s offense given his length of employment and past record.
This seventh consideration has therefore not been satisfied by the Employer.
Although there was not just cause for immediate suspension and termination, the Grievant’s behavior was clearly unacceptable. Thus, he should not benefit and receive back pay for not working. A lengthy suspension and probation are, however, justified. Further, the Grievant needs to take action to make sure he does not violate the Employer’s policies again. Thus, the Grievant must successfully complete an anger management course prior to his reinstatement.
In justifying this decision, the Arbitrator relies upon the following treatise which states:
Conditional Reinstatement. An award of reinstatement may be conditional. For instance, when it was demonstrated that the basis of a discharge was due not to an intentional fault of the grievant, but rather to a defect in mental or physical capacity to perform the job, arbitrators have ordered reinstatement conditioned upon a proper showing of mental or physical fitness.
Section 10.8 The
Common Law of the Workplace,
DECISION AND AWARD
Based upon the foregoing, the Arbitrator finds that the termination of
James Wright by
The Arbitrator shall retain jurisdiction over this award until such time as the parties have shown substantial compliance with its terms and shall be available to clarify the specific parameters of any issue related to the award.
MICHAEL F. NAUYOKAS
MICHAEL F. NAUYOKAS
On this _____th day of __________ 2003, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.
Notary Public, State of
My Commission expires: _______________
Notary Public, State of
My Commission expires: _______________