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Title: State of Hawaii and United Public
Workers
BEFORE ARBITRATOR MICHAEL F. NAUYOKAS STATE OF HAWAII
ARBITRATION DECISION AND AWARD
Michael F. Nauyokas
IN THE MATTER OF THE ARBITRATION BETWEEN: UNITED
PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
AND STATE OF
(CLASS GRIEVANCE RE: USE OF SPECIAL INVESTIGATOR IN
AG’S OFFICE TO CONDUCT ADMINISTRATIVE INVESTIGATIONS);
SECS. 1, 11, 58; LS-02-33
This matter came on to arbitration at hearings held on September
4, 5, 20, 30, 2002 and October 1, 24, and 29, 2002.
The United Public Workers (“
ISSUE 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:
Whether on and after May 1, 2002 the Office of Youth Service,
DHS, violated the Unit 10 CBA by unilaterally changing express and
implied terms and conditions of the CBA by having an investigator of the
Office of Attorney General with powers to conduct criminal
investigations to become involved in disciplinary meetings and
investigations of bargaining unit employees?
Issue No. 2:
If so, what is the appropriate remedy?
SUMMARY OF FACTUAL BACKGROUND
The UPW negotiates contracts for Unit 1 and Unit 10 employees on
a multi-employer basis with the State of
UPW and the various public employers have negotiated twelve
successive
CBA’s from
With the exception of the 1979 CBA, Gary Rodrigues (“Rodrigues”)
was the chief spokesman for the union in bargaining.
The various CBA’s contain provisions relating to Union
Recognition (Section 1), Management Rights (Section 9),
Discipline (Section 11) Prior Rights (Section 14),
Personnel Information and Personnel Files (Section 17), and Bill
of Rights (Section 56).
HYCF employs approximately fifty-one youth correctional officers
in bargaining unit 10 as part of its security staff.
The facility also employs social workers who are represented by
HGEA. To be employed at
HYCF, an applicant for employment must submit a statement “under penalty
of perjury indicating whether the staff member was ever convicted of a
crime other than a minor traffic violation” and be subject to a
criminal history record check.
Decisions to discharge
employees are made by the Director of the DHS based on the
recommendations from the Director of the Office of Youth Services, the
Administrator of HYCF, and his subordinates.
Decisions to suspend employees for ten days or more are made by
the Director of the Office of Youth Services, and lesser suspensions are
made by the administrator of the facility with recommendations from the
cottage administrator(s).
Decisions to issue written or oral reprimands are made by the cottage
administrator(s). All
disciplinary actions are subject to the grievance procedure, and are
reviewed and adjusted by the Director of DHS.
Consultations with the labor relations division of DHS occurs
periodically to comply with the requirements of the CBA.
Where some form of disciplinary action is being contemplated, the
HYCF administrator often defers to the recommendation of the cottage
administrator or supervisor who was primarily involved in the
investigation of the complaint and prepares a written investigative
report.
Historically, all administrative (or disciplinary) investigations
have been handled exclusively at HYCF by the administrator, the cottage
or facility supervisors, and other subordinates.
Administrative (disciplinary) investigations at HYCF are
independently and separately conducted from criminal investigations
(which are handled by law enforcement officers).
On
On
Phyllis Rosete (“Rosete”) on or about
On
a copy a Memorandum of Understanding (“MOU”) between the Office of Youth
Services and the AG’s office pertaining to the retention of the AG
special investigator. Under
the terms of the MOU and the position description of the AG special
investigator, Fitchett
was expressly granted authority and power to perform both criminal and
administrative investigations simultaneously for HYCF under the
direction and control of the office of the AG.
Both the
On
APPLICABLE CONTRACT PROVISIONS
The applicable CBA, in part, provides:
Section 1.
Recognition.
1.01. Exclusive bargaining
representative. The
Employer recognizes the
* * *
1.02. Negotiate and
Administer. The Employer
and the
* * *
1.05. Consult or Mutual
Consent. The Employer shall
consult the
* * *
Section 9. Rights of the
Employer.
9.01. The Employer reserves
and retains, solely and exclusively, all management rights, powers and
authority, including the right of management to manage, control and
direct its work forces and operations except those as may be granted
under this Agreement.
* * *
Section 11. Discipline.
11.01 Process.
11.01 a.
A regular Employee shall be subject to discipline by the Employer
for just and proper cause.
11.01 b.
An Employee who is disciplined, and the
the effective date of the discipline except where the discipline is in
the form of an oral warning or reprimand.
However, if the oral warning or reprimand is documented or
recorded for future use by the Employer to determine future discipline
the Employee who is disciplined shall be furnished the specific
reason(s) for the oral warning or reprimand in writing.
11.01 c.
When an Employee is orally warned or reprimanded for disciplinary
purposes, it shall be done discreetly to avoid embarrassment to the
Employee.
11.01 d.
In the event the need to impose discipline other than an oral warning or
reprimand is immediate, the Employee and the
11.01 e.
Written notifications of disciplinary actions involving suspension and
discharge shall include the following:
11.01 e.1.
Effective dates of the penalties to be imposed and
11.02 a.
In the event that an Employee is scheduled in advance by the Employer to
meet to answer questions, the Employee shall be informed of the purpose
of the meeting.
11.02 b.
When the subject of the meeting is on a job related incident and the
Employee reasonably feels that disciplinary action may result
from the meeting, the Employee may request that a Union representative
or steward be present in the meeting.
11.02 c.
The Employee shall be credited with work time in the event the meeting
is held on non-work hours.
* * *
Section 14.
Prior Rights, Benefits and Perquisites.
14.01.
Nothing in this Agreement shall be construed as abridging, amending or
waiving any rights, benefits or perquisites presently covered by
constitutions, statutes or rules and regulations that Employees have
enjoyed heretofore, except as expressly superseded by this Agreement.
Section 17. Official
Personnel File.
17.01
Examine and Copy.
17.01 a.
The Employee and/or the
17.01 b.
The Employee and or the
17.02
Placements and Explanation.
17.02 a.
No material derogatory to an Employee shall be placed in the Employee’s
personnel file unless a copy is provided to the Employee.
17.02 b.
The Employee shall be given an opportunity to submit explanatory remarks
to be included in the file.
17.03 a.
Derogatory and History.
17.03 a.
An Employee and the
17.03 b.
Derogatory material is defined as material that is detracting from the
character or standing of an Employee, expressive of a low opinion of an
Employee, degrading, belittling, contemptuous, disparaging, negative,
uncomplimentary, and unflattering.
17.03 c.
The Employer will determine whether the material is relevant and will
decide whether the material will be retained or destroyed from the
personnel file. The
decision to retain the material shall include the reasons and shall be
in writing.
17.03 d.
The decision of the Employer shall be subject to Section 15, and
processed at Step 2 of Section 15.
17.03 e.
The Employee’s employment history record shall not be altered.
* * *
Section 58.
Bill of Rights.
58.01
Statement. No Employee
shall be required to sign a statement of complaint filed against the
Employee.
58.02
Investigation.
58.02 a.
If the Employer pursues an investigation based on a complaint, the
Employee shall be advised of the seriousness of the complaint.
58.02 b.
The Employee will be informed of the complaint, and will be afforded an
opportunity to respond and/or refute the complaint.
58.03.
Before making a final decision, the Employer shall review and consider
all available evidence, data, and factors supporting the Employee,
whether or not the Employee provides factors in defense of the
complaint.
58.04. In
the event the complaint is not substantiated or the Employee is not
disciplined, the complaint and all relevant information shall be
destroyed, provided that the Employer may retain a summary of such
information outside of the official personnel file whenever such
complaint may result in future liability to the Employer, including but
not limited to, discrimination complaints.
POSITIONS OF THE PARTIES
EMPLOYER'S POSITION
The Employer’s position is that it is entitled to dismissal of
the grievance, arguing that:
1.
This class grievance should be denied because the Employer’s
agreement to
use an AG investigator did not, on its face, change any
employees’ wages, hours or conditions of work as articulated in the CBA.
2.
UPW has failed to meet its burden of establishing that any Unit
10 employee was harmed as a result of the use of an AG investigator at
HYCF.
3.
Entering into the MOU, the Employer fully expected that the AG
investigator would act appropriately with respect to maintaining the
confidentiality of records, segregating the administrative
investigations from any criminal investigation that arose from the same
conduct, and abiding by any applicable provisions of the CBA.
4.
Nothing in the MOU authorized the AG investigator to intermingle
an administrative investigation with a criminal investigation, or to
otherwise conduct investigations in a manner that would violate the CBA.
5.
Fitchett admits that for the first few months of his employment,
he was unaware of the importance of segregating an administrative
investigation from a criminal investigation.
6.
No Unit 10 employees were subjected to any disciplinary action as
a result of
Fitchett’s investigations.
7.
All pending investigations have been reassigned to HYCF
investigators, and all HYCF administrative files in Fitchett’s
possession or at the Attorney General’s office were recalled for return
to the custody of HYCF.
8.
There is no violation of Section 1.05 because the MOU, on its
face, did not change wages, hours or any conditions of work contained in
the CBA.
9.
The second sentence of Section 1.05 requires mutual consent only
if the alleged changes are to conditions of work that are “contained
herein”, i.e., contained in the CBA.
Any other changes (i.e., personnel policies or practices that
affect working conditions) are matters for consultation, pursuant to the
first sentence of Section 1.05.
10.
UPW expressly abandoned any claim based on the
first sentence of
Section 1.05 that requires consultation when the Employer formulates
personnel policies, practices or other matters affecting working
conditions. (Emphasis
added.)
11.
The second sentence of Section 1.05 clearly requires the Employer
to negotiate with the
12.
There is no evidence whatsoever that the MOU changed any express
written terms of the Unit 10 CBA.
Rodrigues acknowledged that nothing in the CBA prohibited the use
of an outside AG investigator to conduct administrative investigations.
13.
Rodrigues acknowledged management’s duty to conduct full and fair
investigations, and management’s exclusive right to determine if and
when an administrative investigation will be conducted.
14.
15.
Virtually all aspects of administrative investigations fall
within the purview of management’s rights.
16.
Rather than claim the MOU violates express terms of the CBA,
Rodrigues claims instead that the second sentence of Section 1.05 should
be read so broadly as
to require mutual consent whenever there are changes to any “implied”
terms that he asserts are part of the CBA.
17.
Rodrigues is a convicted felon who was recently found guilty of
numerous crimes of fraud and dishonesty against his own UPW membership.
As such, Rodrigues’ credibility as a witness is suspect, to say
the least.
18.
If a personnel policy or practice affects working conditions
under the first sentence of Section 1.05, it defies logic to conclude
that mutual consent (rather than consultation) is required under the
second sentence for changes to those very same working conditions.
19.
UPW relies primarily on dicta from obscure HYCF arbitration
decisions for the proposition that the use of an outside investigator
violates Section 1.05.
20.
The focus of this class grievance is completely different from
the disciplinary cases relied upon by UPW.
This is not a discipline case, but a contract interpretation
grievance. None of the
decisions relied upon by UPW contain any
analysis whatsoever of Section 1.05 or the critical distinction between
the first and second sentences of that section.
21.
UPW bears the burden of establishing that the practice of using
an outside investigator with law enforcement authority violates some
condition of work contained in the CBA, under the second sentence of
Section 1.05.
22.
Assuming that the second sentence of Section 1.05 somehow refers
to working conditions that are not enumerated in the CBA, UPW has still
failed to establish that the MOU itself (rather than Fitchett’s
admittedly flawed execution of his duties) operated to change those
working conditions.
23.
UPW offers a mish-mash of alleged changes attributable to the
MOU. Rodrigues claimed that
since the inception of the MOU, employees were unfairly subject to
criminal investigations for on-duty misconduct, and reluctant to provide
statements in the course of an administrative investigation out of fear
that the statements will be used against the employee in a criminal
proceeding. In addition,
Rodrigues claimed that confidential personnel records were compromised,
derogatory materials mishandled, and due process rights (i.e., notice of
the charges and Union representation) ignored.
Rodrigues did not explain how the MOU had anything to do with
these alleged “changes”.
24.
As to criminal prosecution of Unit 10 employees for on the job
misconduct, the evidence is undisputed that Yoshimoto and other HYCF
administrators have always been free to report misconduct to law
enforcement, even before the existence of the MOU.
25.
As to the employees’ reluctance to provide statements, even
Rodrigues acknowledged that employees have historically taken advantage
of their right to remain silent, even prior to Fitchett’s involvement.
They are still free to do so today.
26.
As to Fitchett’s alleged sharing of administrative records with
HPD, HRS
Chapter 92F expressly authorizes administrative records to be shared
with law enforcement where the records include evidence of criminal
conduct. The CBA simply
cannot be construed to violate Hawaii’s open records law.
27.
The disconnect between the MOU and the alleged working condition
changes is highlighted by the testimony of in-house investigator
Yoshimoto, who acknowledged that even his own practice of reporting
misconduct to law enforcement has changed over time.
Any investigator will bring his or her own experiences to bear in
determining when to report crimes, how to implement the due process
protections in the CBA, and how to handle documents and evidence in a
manner consistent with Chapter 92F and the CBA.
28.
Rodrigues asserts that the MOU by its very terms calls for
management “to mix the criminal and the administrative investigation”.
However, that interpretation is contrary to the language in the
MOU. In fact, even
Rodrigues conceded that the MOU does not prevent an investigator from
abiding by the employees’ rights under the CBA, preserving
confidentiality of records, or providing notice of charges and the
opportunity for Union representation.
29.
Any employee aggrieved by Fitchett’s alleged mishandling of a
particular investigation has the right to file a grievance.
30.
Mauai’s grievance was amicably settled between the Employer and
UPW, and any other complaint by individual employees aggrieved by
Fitchett’s handling of a particular investigation should be handled in
like fashion.
31.
The MOU allows for both criminal and administrative
investigation, but says nothing about intermingling the two.
32.
UPW has failed to sustain its burden of establishing that any
Unit 10 employees suffered any harm.
Fitchett worked on only a limited number of cases.
No employees were disciplined as a result of Fitchett’s
investigation. Other than
Mauai, there is no evidence that any employee was placed on leave
pending Fitchett’s investigation.
33.
There is no pending MOU, and there is no AG investigator
conducting administrative investigations at HYCF.
There is no viable remedy left to grant, even if the Employer
somehow violated Section 1.05.
34.
UPW clearly seeks relief that has either been granted by the
Employer or is beyond the scope of the arbitrator’s authority.
35.
No employees have been disciplined, and the only employee placed
on leave pending investigation (Mauai) filed a separate grievance that
has already been resolved.
36.
No legal basis to support Rodrigues’ request for a cease and
desist order that would prohibit HYCF investigators from starting a new
administrative investigation “from scratch” for cases that were
previously handled by Fitchett.
Just as a tainted criminal investigation may be redone
independently, a new and properly conducted administrative investigation
that is in compliance with the CBA must remain an option for the
Employer. To give HYCF
employees a “freebie” just because Fitchett had once been assigned the
case is against public policy, and would give greater protection to
employees accused of administrative misconduct than those accused of
crimes.
37.
Where the controversy surrounding the grievance no longer exists,
the parties should be barred from even arbitrating their dispute.
38.
The MOU to obtain investigative services from the AG’s office is
no longer in effect. There
is no credible evidence of any adverse effects to Unit 10 employees.
Thus, the essential subject matter of this arbitration no longer
exists.
UNION'S POSITION
It is the
retained and used a special investigator from the office of the AG to
conduct administrative (discipline) and criminal investigations at the
HYCF under the direction of the AG, noting that:
1.
On
2.
Section 1.05 of the CBA was intended to prohibit unilateral
mid-term modifications to the express and implied terms of the
Agreement, and was “founded on the statutory duty to bargain”.
3.
Section 1.05 has been retained in all successive Unit 10
Agreements since 1973.
4.
The requirements of mutual consent have been applied to a wide
variety of
“conditions of work” impliedly or expressly contained in the CBA.
5.
The Employer’s use of an AG investigator does not involve a
“personnel policy” or practice which merely affects working condition,
it changes terms and conditions of employment. 6. After thirty years of litigation since Section 1.05 was initially negotiated, there is a general consensus among arbitrators and the labor board that unilateral management action violates Section 1.05 when:
“the challenged management action is found to conflict with, negate,
deny, derogate, infringe, repudiate or otherwise negatively impact
some “condition of work” expressly or impliedly bargained for into the
contract by the parties.”
(Emphasis added).
7.
DHS is familiar with the requirements of Section 1.05 since on
three separate occasions arbitrators have reversed unilateral changes
made by HYCF to terms and conditions of work of Unit 10 employees.
8.
Bert Matsuoka (“Matsuoka”), who made the decision to retain the
AG investigator, was unaware of either of the two prior Hicks awards on
Section 1.05, and the rulings were not a consideration in his
determination. HYCF’s
Administrator, Melvin Ando (“Ando”), who recommended the AG retention,
was not aware of Hicks I (decided by Arbitrator Peter Trask), and knew
of Hicks II (rendered by Arbitrator Kuriyama), but admits the award was
not a consideration in his recommendation.
9.
Although public employers have tried to defend unilateral actions
in changing “conditions of work” based on claims to “management rights”
under HRS
Section 89-9(d), Arbitrators in
10.
The Employer recognizes that management rights does not “trump”
Section 1.05 of the CBA.
11.
The Hawaii Labor Relations Board also reaffirmed its view that
“management rights” must be balanced with “employee rights,” and ruled
that HRS Section 89-9(d) cannot “supercede[s] the rights contained in
the bargaining agreement.”
The Board declined to adopt a literal reading of HRS Section 89-9(d)
because it would be “disastrous to bargained [sic] for rights and
relationships” under the agreement.
12.
Since the initial Agreement in 1973, the parties to the Unit 10
Agreement have adopted the “just and proper cause” standard for all
disciplinary actions. The
first CBA also required that employees be “furnished the reason or
reasons for discipline in writing” in Section 11.01 (to ensure timely
notice and to avoid subsequent changes in the grounds for discipline,)
and made employer discipline subject to the grievance procedure in
Section 11.02. In 1977,
Section 11.01 was amended to extend the deadline for providing a
statement of reason to 48 hours after disciplinary actions for
suspension and discharge actions and to indicate
the “effective dates of the penalties to be imposed.”
In 1979, Section 11.03 was added to afford CETA participants to
the right to grieve, and Section 11.04 was added to afford union
representation during employer interrogations for “job related
incidents” which could lead to disciplinary actions, to require that
employees be “informed of the purpose of the meeting,” and to have such
meetings during paid time.
In 1981, Section 11.01 was amended to require that disciplinary actions
in the form of oral warnings and reprimands “be done privately.”
13.
In 1987, Section 11.01 was amended to require more “details of
the specific reasons” for suspensions and discharges, and to afford
employees an “opportunity to respond to charges prior to the effective
date of discharge.” The
parties also negotiated a new Section 11A for “leaves pending
investigation of charges.”
The later provision limited indefinite suspensions pending
investigations.
14.
HYCF has no policies, rules, or guidelines for the use of third
parties (including child protective service or police officers) in
disciplinary proceedings.
15.
Since the decisions by Arbitrators Trask, Kuriyama, Okano and
Nicholson, public employers have made no effort to negotiate a provision
allowing third parties to conduct disciplinary investigations on Unit 1
and Unit 10 employees.
16.
In 1968, the U.S. Supreme Court in Garrity v. State of New
Jersey, held that the use of statements obtained in administrative
(disciplinary) proceedings for fixing traffic tickets in a criminal
prosecution violates the 14th Amendment of the U.S.
Constitution. According to
Donald Wong (“Wong”), Chief Investigator in the AG’s office, Garrity
prohibits the concurrent investigations of administrative (disciplinary)
and criminal misconduct of the same suspect, and the use of
investigative records obtained in administrative proceedings for
criminal cases.
17.
Fitchett, a former police detective and employee of the Honolulu
Police Department (“HPD”) for thirty years, was advised in April 2002 by
the internal affairs unit of HPD that administrative and criminal
proceedings had to be handled separately, and the records in one could
not be mixed with the other.
HPD recognizes a “conflict between doing criminal cases and
administrative cases.”
According to Fitchett, it is improper to commingle records of
administrative and criminal investigations, and it would violate a
public employee’s constitutional right to use information obtained in
administrative investigations in criminal prosecutions.
18.
The HYCF administrator is familiar with CBA Section 56.6
provision on “bill of rights”.
19.
In accordance with Section 17, personnel records are considered
confidential and are not available even to police access. Ando considers
all records and reports of administrative investigations to be sensitive
and confidential. Cottage
Administrator (now corrections supervisor) Glenn Yoshimoto (“Yoshimoto”)
who has been involved in hundreds of investigations of complaints
against Youth Correctional Officers (“YCO’s”) since 1996 considers
reports of administrative (disciplinary) investigations to be
confidential and to not be disclosed to anyone.
According to Ando, disciplinary reports and records are
confidential and are not made available to police or law enforcement
officials, and have not been subpoenaed from HYCF.
Records of administrative investigations are not considered
public records, and have not been turned over to the police department
for use in criminal investigations in the past.
20.
Section 56.02 of the CBA was intended to afford employees notice
of complaints and an opportunity to respond with the right of union
representation during “an investigation based on such a complaint.”
The purpose of Sections 56.03 and 56.04 was to require the
employer to consider “mitigating circumstances,” and “available evidence
and data” whether offered by the employee in his or her defense prior to
the implementation of any disciplinary action.
In 1995,
Section 56.05 was amended to require that records of unsubstantiated
complaints be “destroyed.”
In 1999, Section 56 was renumbered to Section 58.
21.
HYCF supervisors recognize corrective and progressive discipline
to be “consistent with the just cause requirements of the contract.”
Yoshimoto, who has handled hundreds of complaints since 1996,
applies corrective or progressive discipline principles to the cases he
is assigned. In discharge
cases, a pre-disciplinary “hearing” is afforded to the YCO.
Due process requires a notice of the charges, fair hearing and
opportunity to be heard for the YCO.
Written notice of the disciplinary action is provided in a letter
or an internal communication form.
22.
The retention and use of Fitchett in his dual capacity
fundamentally changed the existing “terms and conditions of work” of
Unit 10 employees at HYCF as provided in Sections 22 (Just and Proper
Cause), 14 (Prior Rights under Garrity) and 17 (on
confidentiality and destruction of derogatory materials), and 58
(Employee Bill of Rights).
23.
HYCF’s unilateral changes to terms and conditions of work of Unit
10 employees violates Section 1.05 of the CBA.
24.
HYCF officials who made the decision to retain and use an AG
investigator were apparently unaware of a 1984 arbitration award which
forewarned that the unprecedented utilization of “an administrative
hearing committee” to investigate and recommend discipline violates
Section 1.05 by its failure to afford Unit 10 employees a “fair and
objective investigation.”
25.
According to Fitchett sometime in late April 2002, he learned
from HPD’s internal affairs unit that a “conflict” existed in his dual
conduct of administrative and criminal investigations against Unit 10
employees. Fitchett brought
the matter to Wong’s attention, and Wong agreed that what Fitchett had
done was “obviously wrong” under Garrity.
Wong acknowledged that Fitchett could not conduct a criminal and
administrative investigation against the same target, and could not
release reports, documents, notes and other records obtained in an
administrative investigation to someone handling a criminal
investigation for use in the later.
26.
Although Fitchett claimed he limited himself to administrative
investigations after late April, the AG investigator remained involved
in criminal investigative efforts thereafter against Mauai, Rosete and
Marciel, Scott Rosete, and Hicks.
There was no change in his power or authority in the MOU dated
May 2. A careful review of
the documentary and testimonial proof also indicates that no clear line
of separation existed (between administrative and criminal case) in any
of the eight major cases Fitchett was assigned to handle.
27.
The retention and use of the AG special investigators clearly
changed the pre-existing practice and procedure at HYCF where criminal
investigations were separately and independently conducted (by HPD) from
administrative cases. Those
involved in administrative investigations lack authority, power, and
training to conduct criminal investigations, and at no time was a police
officer on the HYCF staff.
Law enforcement officers have never conducted administrative
investigations at HYCF, and were not involved in any aspect of the
disciplinary review process.
Records and files of administrative investigations were
considered confidential and were not provided or accessible to police
officers.
28.
The practice and custom at HYCF was clearly consistent with the
“prior rights” of public employees covered by the U.S. Constitution.
29.
As decided by the Hawaii Labor Relations Board in Decision No.
409, under Section 17 of the Unit 1 and Unit 10 collective bargaining
agreements, “derogatory materials”, notes, and records may not be
retained outside of the official personnel files of employees and their
use (when kept outside of the official personnel file) is strictly
prohibited.
30.
Prior to Fitchett’s retention and involvement, HYCF officials
complied fully with CBA Section 11 requirements.
They held meetings in a cooperative setting where employees were
given a full and fair opportunity to respond to or refute charges.
31.
HYCF does not have the “management right” to repudiate the
specific terms and conditions in the Unit 10 contract.
32.
Appropriate remedies should be ordered for repetitive violations
of Union recognition requirements by HYCF.
ARBITRATOR’S ANALYSIS
Issue No. 1:
Whether on and after May 1, 2002 the Office of Youth Service, DHS,
violated the Unit 10 CBA by unilaterally changing express and implied
terms and conditions of the CBA by having an investigator of the Office
of Attorney General with powers to conduct criminal investigations to
become involved in disciplinary meetings and investigations of
bargaining unit employees?
Issue No. 2:
If so, what is the appropriate remedy?
The relevant Collective Bargaining Agreement provisions are:
Section 1.
Recognition.
1.01. Exclusive bargaining
representative. The
Employer recognizes the
* * *
1.02. Negotiate and
Administer. The Employer
and the
* * *
1.05. Consult or Mutual
Consent. The Employer shall
consult the
* * *
Section 11. Discipline.
11.01 Process.
11.01 a.
A regular Employee shall be subject to discipline by the Employer
for just and proper cause.
11.01 b.
An Employee who is disciplined, and the
11.01 c.
When an Employee is orally warned or reprimanded for disciplinary
purposes, it shall be done discreetly to avoid embarrassment to the
Employee.
11.01 d.
In the event the need to impose discipline other than an oral warning or
reprimand is immediate, the Employee and the
11.01 e.
Written notifications of disciplinary actions involving suspension and
discharge shall include the following:
11.01 e.1.
Effective dates of the penalties to be imposed and
11.02 a.
In the event that an Employee is scheduled in advance by the Employer to
meet to answer questions, the Employee shall be informed of the purpose
of the meeting.
11.02 b.
When the subject of the meeting is on a job related incident and the
Employee reasonably feels that disciplinary action may result from the
meeting, the Employee may request that a Union representative or steward
be present in the meeting. 11.02 c. The Employee shall be credited
with work time in the event the meeting is held on non-work hours.
* * *
Section 58.
Bill of Rights.
58.01
Statement. No Employee
shall be required to sign a statement of complaint filed against the
Employee.
58.02
Investigation.
58.02 a.
If the Employer pursues an investigation based on a complaint, the
Employee shall be advised of the seriousness of the complaint.
58.02 b.
The Employee will be informed of the complaint, and will be afforded an
opportunity to respond and/or refute the complaint.
58.03.
Before making a final decision, the Employer shall review and consider
all available evidence, data, and factors supporting the Employee,
whether or not the Employee provides factors in defense of the
complaint.
58.04. In
the event the complaint is not substantiated or the Employee is not
disciplined, the complaint and all relevant information shall be
destroyed, provided that the Employer may retain a summary of such
information outside of the official personnel file whenever such
complaint may result in future liability to the Employer, including but
not limited to, discrimination complaints.
After review of the record, including the CBA, all of the testimony, all
of the exhibits, and the briefs, the circumstances presented by the
Section 1.05, the applicable section of the CBA, expressly and
specifically refers to the
* * *
No changes in wages, hours or other conditions of work contained herein
may be made except by mutual consent.
* * *
Thus, under the clear language of the contract, the CBA prohibits
unilateral modifications to the express and implied terms of the
Agreement. Specifically,
the CBA requires mutual consent by the
Three elements must be proven to establish a Section 1.05
violation. First, the
Employer must act unilaterally.
Second, the challenged management action must conflict with,
negate, deny, derogate, infringe, repudiate or negatively impact some
condition of work. Third,
the condition of work must be contained in the CBA.
Here, the
First, management admitted they did not even consult the UPW,
much less obtain consent before using the AG investigator to conduct
administrative investigations.
Second, the use of the AG investigator to conduct administrative
investigations infringed on or negatively impacted the employee’s right
under the “just cause” section and Section 58 of the CBA to give his or
her side of the story. By
using a criminal investigator with police powers, this infringes or
negatively impacts on the employee’s rights because the employees may
feel intimidated from telling their side of the story to someone with
police powers. Further, the
employee may not tell his side of the story because he believes it may
incriminate him criminally.
Thus, the action infringed or negatively impacted on a condition of
work.
Third, the condition of work is contained in at least two
sections of the CBA.
Section 11, the “just cause” section under the seven tests, allows the
employee to tell his side of the story.
Section 58.02b expressly affords the employee the opportunity to
respond and refute the complaint.
Thus, all elements of a Section 1.05 violation were proven by the
The Employer’s unilateral management action did not simply
involve a “personnel policy” or practice which merely affected work
conditions. Rather, it
changed the terms and conditions of employment which violates Section
1.05 of the CBA.
Furthermore, the retention and use of Fitchett, in his dual
capacity as a criminal investigator as well as an administrative
investigator, fundamentally changed the existing “terms and conditions
of work” of Unit 10 employees at HYCF as provided for in Sections 11 and
58 of the CBA.
It is clear that since the inception of the initial Agreement in
1973, the parties to the Unit 10 Agreement have adopted the “just and
proper cause” standard for all disciplinary actions.
This provision allows employees’ the right to a full and fair
investigation.
In the instant case, the Arbitrator concurs with Hicks (I)
(1984) (“Hicks I”), a prior arbitration decision by Arbitrator Peter
Trask (“Trask”) whereby Trask’s award provided that the unprecedented
utilization of “an administrative hearing committee” to investigate and
recommend discipline violates Section 1.05 by its failure to afford Unit
10 employees a “fair and objective investigation.”
Similarly, in Hicks (II) (1998) (“Hicks II”), Arbitrator
Christine Kuriyama (“Kuriyama”) held that HYCF violated Section 1.05 of
the CBA by changing the disciplinary investigation process unilaterally
by having Child Protective Service (“CPS”) conduct an investigation
which resulted in the improper discharge of Hicks.
This Arbitrator concurs with Kuriyama.
Matsuoka, who made the decision to retain Fitchett, was unaware
of either of the two prior Hicks awards pertaining to Section
1.05 of the CBA, and the rulings were not a consideration in his
determination. Despite
Ando’s knowledge of Hicks II, he admitted that Kuriyama’s arbitration
award was not a consideration when he recommended the retention of
Fitchett.
The Employer is familiar, or should have been familiar, with the
requirements of Section 1.05 since on three separate occasions,
arbitrators have reversed unilateral changes made by HYCF to terms and
conditions of work of Unit 10 employees.
The Employer argues that its retention and use of an AG
investigator did not change any employees’ wages, hours or conditions of
work as provided for in the CBA, nor was any Unit 10 employee harmed as
a result of the use of an AG investigator at HYCF.
On the contrary, the Employer violated Section 1.05 of the CBA by
unilaterally changing a condition of work by actually retaining and
using Fitchett to perform criminal and administrative investigations
without the mutual consent of the Union.
The Employer further argues that virtually all aspects of
administrative investigations fall within the purview of management’s
rights, and that the Union acknowledged management’s duty to conduct
full and fair investigations and also acknowledged management’s
exclusive right to determine if and when an administrative investigation
will be conducted.
Although the term “management’s rights” can be construed to be
very “broad” in meaning and application, the Arbitrator is of the
opinion that an employee, as outlined in this Agreement, is at least
afforded certain constitutional as well as contractual rights.
In this case, under Garrity, the Employer violated the
employees’ rights under the 14th Amendment of the U.S.
Constitution, as Garrity prohibits the concurrent investigations
of administrative (disciplinary) and criminal misconduct of the same
suspect, and the use of investigative records obtained in administrative
proceedings for criminal cases.
Thus, management’s rights have limitations.
The Employer argues that for the first few months after the
retention of Fitchett, Fitchett was unaware of the importance of
segregating an administrative investigation from a criminal
investigation. Fitchett’s
lack of knowledge, however, cannot be taken lightly, nor can it be
condoned.
The Employer is of the position that Mauai’s grievance was
amicably settled between the Employer and the Union.
Nevertheless, prior to the settlement of this grievance, Mauai
was not afforded the right to a “fair and objective investigation” as
provided for in the “just and proper cause” provision of the CBA.
The Employer argues that the Union has failed to sustain its
burden of establishing that any Unit 10 employees suffered any harm.
First, the Arbitrator does not believe that damages are
necessarily an element of a Section 1.05 violation.
Second, some of the employees may have been harmed by the
improper dissemination of information, among other things.
Thus, the Employer’s argument fails.
Under the circumstances in evidence, the Employer violated the
terms of Section 1.05 of the CBA which were known to the Employer (and
was never changed) since the inception of the parties’ Unit 10
Collective Bargaining Agreements on
DECISION AND AWARD
Based upon the foregoing, the Arbitrator finds that the Union proved
that the Employer violated the parties’ Collective Bargaining Agreement.
Following the Agreement’s language, the class action grievance must
be affirmed. Accordingly, the
grievance is upheld in its entirety.
REMEDY:
The Arbitrator hereby issues a declaratory order that HYCF has
committed multiple violations of Section 1.05 of the CBA by unilaterally
changing “conditions of work” as provided in Sections 11 and 58 of the Unit
10 CBA. HYCF improperly
retained and used an AG investigator which conflicted with, negated, denied,
derogated, infringed, repudiated and/or otherwise negatively impacted on the
Unit 10 members rights of (1) just cause; (2) destruction of records of
unsubstantiated ward complaints under Section 58.05 and (3), the bill of
rights of Unit 10 employees, including a right to be heard (w/o police
intervention).
The Arbitrator hereby also orders injunctive relief that HYCF
officials cease and desist from (1) continuing violations of Section 1.05 as
indicated above; (2) using law enforcement officers in disciplinary
investigations; (3) commingling administrative and criminal investigations;
(4) releasing records, documents and other information obtained in
administrative investigations to law enforcement, and (5) imposing any
discipline against YCO’s who were subject to investigations by Fitchett.
Finally, as part of its make whole relief for employees, HYCF is
ordered to retrieve from Fitchett, HPD, the Office of the Prosecutors, Wong,
and the Office of the Attorney General and destroy (1) the original and all
copies of investigative reports prepared by Fitchett on Unit 10 employees,
and (2) all notes, records, letters, memos, and other items which were
released to them by HYCF offices and Fitchett during the investigations he
conducted on Unit 10 employees.
The Arbitrator declines at this time to order the Union reimbursement
for it fees and costs.
DATED:
____________________________________
Pacific Guardian Center, Makai Tower
STATE OF HAWAII
)
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.
___________________________________
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