2005 NAC 116 Martin County Board of City Commissioners and Martin County Public Employees: United

Title: Martin County Board of City Commissioners and Martin County Public Employees: United
Date: June 21, 2005
Arbitrator: Phyllis Almenoff
Citation: 2005 NAC 116

FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration

Case No. 05-01085
Re: Michael Reese

Issue: Termination of Employment

David A, Young, Esq.
Counsel for Martin County
255 South Orange Avenue, Suite 1700
Orlando, Florida 32801

Matthew J. Mierzwa, Jr.
Attorney for UPE
3900 Woodlake Boulevard, Suite 212
Lake Worth, Florida 33463

The grievance was submitted to Arbitrator Phyllis Almenoff pursuant to the terms set forth in Article 36 of the Collective Bargaining Agreement between the parties (Joint Exhibit 1) for a final and binding resolution of the issue. The Arbitrator was jointly selected by the parties from a list submitted to them by the Federal Mediation and Conciliation Service of the United States Government.

The grievance was appropriately processed through the steps of the grievance procedure without a satisfactory resolution and was properly before the Arbitrator. The parties agree that the Grievance was timely filed, and that all steps in the grievance procedure have been exhausted without a satisfactory resolution. The Arbitrator has jurisdiction to decide the Grievance on the merits.

The hearing took place on April 12, 2005 at the Martin County Administration Center in Stuart, Florida. At that time both parties were afforded full opportunity to present testimony, offer evidence and arguments in support of their respective positions and to cross-examine witnesses. The presentation of evidence included four joint exhibits, sixteen Union exhibits, eight County exhibits, and the testimony of nine witnesses. The County and the Union elected to present closing arguments through post hearing briefs that were originally to be postmarked May 12, 2005 but was extended by mutual consent of the parties to May 19, 2005. The record was closed upon receipt of the post hearing briefs on May 21, 2005.

Did the County have just cause to terminate the Grievant under the Collective Bargaining Agreement?

Relevant sections of the Collective Bargaining Agreement that relate to the issue are as follows:

Section 2. “Grievance” shall mean a dispute by a grievant… that there has been an alleged violation of specific provision(s) of this agreement…

Section 5. The following shall be followed in presenting a grievance to the County:

Step Three: The due process hearing conducted by the County Administrator or his designee regarding a recommendation of an employee’s suspension, demotion or termination will also be considered a step three grievance hearing. Steps One and Two of the grievance procedure are therefore satisfied. The County Administrator’s response will be considered the step three grievance response. …

Section5. The arbitrator shall have no power to add to, subtract from, disregard, or modify any of the terms or conditions of this Agreement….His powers shall be limited to deciding whether the County has violated the expressed articles or sections of this Agreement and fashion an appropriate remedy. On disciplinary issues, the arbitrator will decide whether the County has acted with just cause, and he may modify any disciplinary action taken by the County. The arbitrator’s decision shall be based upon the specific language of the Agreement and shall not infringe upon any right reserved to the County nor upon the collective bargaining process.

Section 8. The fees and expenses of the arbitrator shall be paid by the losing party. …

The following rules are not being construed as limitations upon the retained rights of the

Section 1. The County Disciplinary Code as revised and adopted by the Bargaining Union 2/28/01, and included as Exhibit “A”, shall apply to bargaining unit employees and is subject to the full grievance procedure including arbitration.

9. Absenteeism. Unscheduled leave of three (3) or more times within a thirty day period without a doctor’s statement

4. Knowingly falsifying personal or County records, including employment applications, accident reports, work records, purchase orders, time sheets, or any other report, record, application or claims.

Section 2 . The County and the Union agree that the Board of County Commissioners and management of the County alone shall have the authority to determine and direct policies, mode and methods of providing its services and unilaterally set the standards for same, without any interference in the management and conduct of the County’s business on the part of the Union or any of its representatives….Such rights exclusively reserved to the County shall include but not be limited to…reprimand, discharge or otherwise discipline employees; …to determine what records are to be made and kept, including those records relating to hours of employees, who will make and keep these records, how the records are to be made and kept; …

B. Request to use PTO shall be made in advance, in accordance with department rules, and in writing, whenever possible.

Martin County (hereinafter referred to as the “County”) recognizes Martin County Public Employees Union (hereinafter referred to as the “Union”) as the collective bargaining representative for wages, hours and working conditions for those employees in the unit certified by the Public Employees Relations Commission. The Grievant is represented by the Union through the grievance procedure, including arbitration, in accordance with the Agreement.

Michael Reese, the Grievant, has been employed by Martin County since September 16, 2002. He was hired as a journeyman electrician and assigned temporarily to the prison facility. He subsequently became an electrician and was reassigned to another County facility. There are fifty buildings and a jail in the County.

The Grievant became active in the Union and in September of 2003, as an executive board member, he represented another employee in a grievance that was resolved by the County rescinding a written reprimand from the employee’s file.

As Vice President of the Union, Mr. Reese was a member of the negotiating team. Members of the negotiating team had previously negotiated “on their own time” meeting after work and on Saturdays to negotiate a successor Agreement. Starting with the previous contract and continuing the new practice, employees negotiated on County time and were paid their regular salary for their participation. The County representatives and the Union representatives negotiated every Thursday starting on or about 8:00 a.m.

This grievance arose when M.R. was terminated for leaving the negotiation session early on October 7^th without filling out a Paid Time Off (PTO) request form.

The following is a memo dated October 18, 2004 from Harold Markey, Manager of the General Services Department to Mike Reese, Electrician concerning his discharge from employment in Martin County:

On October 7, 2004 you left work at 3:00 PM or thereabouts and did not return. You did not request or receive permission to leave not did you turn in a leave form requesting this leave be deducted from your PTO account as required. In fact you told your supervisor, Cliff Jones, who was compiling payroll records to put you down for eight (8) hours paid. This represents knowingly falsifying payroll time, resulting in an overpayment of 1½ hours.

You are being charged with an infraction of the Martin County Disciplinary Code: Group III, #4: “Knowingly falsifying personal or County records…” This is the second violation of a Group III offense. Therefore, I am recommending to the County Administrator that your employment be terminated effective October 19, 2004.

You have a right to refute the evidence in support of this recommendation in person or in writing to the County Administrator. * * * (Joint Exhibit 4)

A due process hearing was held on October 27, 2004 as a result of the recommendation for termination. The Deputy County Administrator wrote the following letter to Mr. Reese:

** * I have reviewed the information you presented to refute the department’s evidence in support of the termination. I have also reviewed additional documentation provided by the union subsequent to the hearing.

In conclusion, I do not find that anything presented on your behalf invalidates that which was presented by the department. Therefore, I must support the department’s recommendation to terminate your employment effective October 19, 2004.

On November 12, 2004 the Union notified the County that they would be filing for arbitration regarding the termination of Mr. Michael Reese.

The County argues that there was “just cause” to terminate the Grievant under the terms of the Collective Bargaining Agreement. To support its position, the County asserts the following arguments:

On Thursday, October 7, 2004, Michael Reese arrived at the negotiating session on or about 8:00 a.m. (prior to the start of the session) and announced that he would be leaving early to meet with his personal attorney about a divorce. He was told by the President of the Union that he needed to fill out a Paid Time Off (PTO) request form and he indicated that he would. M.R. left the negotiating session at approximately 3:00 p.m. and did not fill out a P.T.O form that day or the next day although he was familiar with the process having requested paid time off to meet his attorney or for other personal needs on other occasions. H.M., the General Services Manager directed C.J. to ask Mr. Reese how many hours he had worked on Thursday, October 7, 2004. On Monday, October 11, 2004, his immediate supervisor, C.J. asked the Grievant how many hours he had worked on Thursday. The Grievant indicated that he had worked all day (eight hours.) On October 18, 2004, M.R. received a memo from H.M., the Manager of the General Services Department, informing him that he was recommending his termination effective October 19, 2004 for violating the Martin County Disciplinary Code: Group III, #4: Knowingly falsifying personal or County records, including employment applications, accident reports, work records, purchase orders, time sheets, or any other report, record, application or claims. The Grievant was offered an opportunity to refute the evidence and a due process hearing was held on October 27, 2004. The Deputy County Administrator upheld the termination of Michael Reese.

The Grievant’s normal work day is 8:00 a.m. to 4:30 p.m. He punches a time clock that records his work time. Employees do not punch in on negotiation days which are normally from 8:00 a.m. to 5:00 p.m.

Mr. Reese has been disciplined previously for a Group III violation: Wanton or willful neglect in performing assigned duties and suspended for five days for an incident that occurred on January 7, 2004. At that time, the Grievant left a painter’s sharpened putty; knife/scraper in a prison cell which was hidden by a maximum security inmate in an area inhabited by three (3) convicted inmates and fifteen (15) inmates pending murder charges. The penalty for a Group III first offense is five days suspension or discharge, the penalty for a second offense is discharge. Mr. Reese did not grieve the five (5) day suspension.

He had also been disciplined previously for another infraction of the Discipline Code. On April 1, 2004, H.M. informed Mr. Reese that he violated the Disciplinary Code, Group II 9: Absenteeism. Unscheduled leave of three (3) or more times within a thirty day period without a doctor’s statement…Mr. Reese had four (4) unscheduled absences in a thirty day period. M.R. was suspended without pay for three (3) days. This disciplinary action was not grieved.

The Union contends that the Grievant’s termination was not justified and that he did not falsify county records. In support of its position, the Union offers the following arguments:

When interviewed for his position, the Grievant was told that he would initially be assigned to work in the jail for six to eight weeks and then reassigned to another facility. His first year of employment with the County was uneventful. His performance evaluation indicated that his overall performance assessment “exceeded expectations” which made him eligible for a 5% increase in salary which he received. Michael Reese is an excellent electrician. His problems started when as a union officer, he represented another employee in a grievance which resulted in the rescinding of a written reprimand. His relationship with H.M., the General Service Manager deteriorated. Shortly thereafter M.R. was reassigned to work in the jail which he felt was an undesirable assignment because it was dangerous and disagreeable.

As Vice President of the Union, Michael Reese was a member of the negotiating team which met every Thursday to negotiate a successor collective bargaining agreement rather than report to their usual work assignments. Although, the Grievant’s normal workday is 8:00 a.m. to 4:30 p.m. which is recorded by a time-clock, negotiating days, which are paid workdays, are not as formalized. There is no formal process in place to record time worked on negotiation days. Negotiation days have concluded anywhere between 3:00 p.m. to 5:00 p.m. On Thursdays, Union negotiating team members, including the Grievant, dressed in street clothes and street shoes rather than work uniforms and special work shoes. According to the testimony of L.O., Secretary to the Union, when negotiations concluded early, the Union team members could continue to work on negotiations, return to their regular jobs or go home. The Grievant testified that he went home when negotiations concluded early since he was not wearing his uniform or safety work shoes.

On Thursday, October 7^th, 2004, the Grievant arrived for negotiations around 8:05 a.m. and spent the day negotiating. The Union engaged in a heated caucus from 2:30 p.m. to 3:00 p.m. during which the Union Secretary, L.O. became upset and left the caucus. It was the testimony of M. R. and L.O. that the Grievant went to her office and they worked until approximately 3:45 when he left to keep his 4:00 p.m. appointment with his personal attorney. The Grievant testified that there were no references made to P.T.O. and that he was not required to use PTO. He also testified that when asked by G.H. how many hours he worked on October 7, the Grievant indicated that he worked all day.

The Union maintains that there was no investigation prior to the Grievant’s termination

On February 16, 2004 Michael Reese filed a complaint alleging hostile work environment and retaliation that was investigated and “did not substantiate any wrong doing on the part of General Service Management.”

Michael Reese was the recipient of a Spirit Award nomination on behalf of all the deputies and civilians for his “exemplary service, dedication and tireless efforts during the recent hurricanes.”

The issue to be determined in this arbitration is whether the Employer had just cause to discharge the Grievant under the terms of the Collective Bargaining Agreement (CBA) based on all of the facts and testimony in evidence. The CBA provides clear direction to the arbitrator and states the following in Article 36:

The County contends that it had “just cause” to terminate the Grievant for violating the County’s Disciplinary Code. They allege that the Grievant committed a Group III offense when he “knowingly falsified personal or County records, including…, work records, time sheets, or any other report, record, application or claims.” Since the Grievant had previously been disciplined for a Group III offense “wanton or willful neglect in performing assigned duties” and had received a five day suspension for that violation, the Disciplinary Code states the penalty for a second Group III offense is discharge. M.R. had previously been disciplined for a Group II offense for four occurrences of unscheduled absences resulting in eight days of absences in a thirty day period without a doctor’s note and received a three day suspension for this violation.

There was a considerable amount of testimony about the hours of negotiations, the need for M.R. to request PTO, as well as the time the Grievant left the building to meet with his private attorney. The testimony of various witnesses indicated that the hours of negotiations varied. Negotiations concluded anytime between 3:00 p.m. and 5:30 p.m. When formal negotiations concluded early, the participants were directed to continue working on negotiations. There was testimony that one worker requested PTO for one half day and there was testimony that the Grievant should have turned in a PTO since he planned to leave early as well as testimony from a supervisor who indicated that he would not have required M.R. to provide a request for PTO. There was conflicting testimony about the time the Grievant actually left the negotiating session. Testimony that the Grievant left at 3:00 or 3:10 was corroborated by County witnesses including the testimony of the Union President. The Grievant and the Secretary to the Union testified that M.R. was in L.O.’s office and left at 3:45 or 3:50. The motivation and credibility of this testimony does not need to be determined since it is clear that the Grievant did not put in a full work day as the other members of the negotiating team did. Negotiations actually concluded at 4:30 p.m. The Grievant was not present.

The Grievant denied references concerning the need to request PTO but did indicate at the “due process hearing” that he “forgot” to fill it out. Did the grievant knowingly falsify County or Public records? His supervisor was told to put him down for eight (8) hours paid. (Joint Exhibit 4) The Grievant was aware that he did not work eight hours and

I believe he intentionally falsified his hours. Whether he left at 3:00, 3:10 (County witnesses’ testimony) or 3:45, 3:50 (Union witnesses’ testimony) is not critical. What is critical is that he did not work a full day for which he was paid and did not fill out a PTO form as instructed to by his Union President and required by the Agreement and that he gave false information about his work hours on October 7. The Grievant had on many previous occasions requested and been granted PTO in order to meet with his attorney. Critical to the case is the fact that M.R. did not have any PTO credit in his bank.

The Collective Bargaining Agreement requires “just cause” for the Company to discipline or discharge an employee

Discharge is recognized to be the extreme industrial penalty since the employee’s job, seniority and other contractual benefits, and reputation are at stake. Because of the seriousness of this penalty, the burden generally is held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires “just cause” for discharge.[1]

Therefore, it is appropriate for an arbitrator to require clear and convincing evidence that an employee was discharged for “just cause.” As explained by Arbitrator Richman:

The imposition of a lesser burden than clear and convincing proof fails to give consideration to the harsh effect of summary discharge upon the employee in terms of future employment[2]

1. Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

Yes, The Code of Conduct incorporated into the Collective Bargaining Agreement cites falsification of public records as a serious offense which can result in termination.

Yes. Article 4 of the CBA – (Management Rights) exclusively reserves to the County the right …to determine what records are to be made and kept, including those records relating to hours of employees, who will make and keep these records, how the records are to be made and kept, …A memo from the Human Resource Manager sent to members of the negotiating team including the Grievant indicated that “…employees will be required to spend their daily working hours in collective bargaining.” Mr. Reese’s normal workday was from 8:00 a.m. to 4:30. It did not end at 3:00, 3:10, 3:30 or 3:45.

Yes. H.M. inquired as to whether M.R. had filled out a PTO form to cover his early departure and learned that he had not. A review of his records indicated that he did not have any PTO time in his bank. Furthermore, C.J., the Grievant’s immediate supervisor asked him how many hours he had worked and he responded that he worked all day (8 hours.)

Yes. On October 18, 2004 H.M. recommended termination of Mr. Reese as of October 19, 2004 and informed him that he had a right to refute the evidence in support of the recommendation. In addition, a “due process” hearing (a third step grievance) was held on October 27, 2004. There was also a review by the Deputy County Administrator who upheld the termination of the Grievant’s employment on Nov. 4, 2004,

5. At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

At the hearing, the Grievant admitted that he had told G.H., the Union President that he would be filing a PTO request but that “he forgot.” He also admitted that when asked for payroll information for October 7, he told C.J. that he had worked 8 hours. In addition, the Grievant indicated that he was not going to make excuses for not filling out a PTO request. He said, ”Write me up, fire me, do whatever you are going to do.”

6. Has the company applied its rules, orders and penalties evenhandedly and without discrimination to all employees?

7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?[3]

Yes. Mr. Reese has been an employee for two years, a relatively short period of time, and within this time period he has been disciplined three times. He was disciplined for leaving a knife/scraper in a prison cell and less than two months later he was disciplined for unexcused absences from work and in this instance he was disciplined for falsification of records.

The “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness. The applicable standard is one of reasonableness:

…whether a reasonable person taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline.) [4]

I have considered all of the arguments presented by both sides and conclude that the Grievant did, in fact, knowingly cause the falsification of County records by reporting false information to be recorded on his time sheet..

The facts and testimony in evidence compel a finding that the County has just cause to discharge the Grievant under Article 37 of the Collective Bargaining Agreement. (Joint Exhibit 1: Article 37: Section 3 and Exhibit A – Disciplinary Code)

Based on the evidence and testimony entered at the hearing, the Employee’s grievance is denied in all respects. The County did have just cause to terminate Michael Reese and his discharge is sustained.

DATED: __June 21, 2005__________ _____________________________
Phyllis Almenoff, Arbitrator

State of New York   )
                                  )
County of Nassau   )

I, Phyllis Almenoff, do hereby affirm that I am the individual described herein and who executed this instrument which is my award.

[1] Elkouri and Elkouri, How Arbitration Works 905 (5^th Ed. 1987).

[2] General Telephone Company of California, 73 LA 531, 533 (Richman, 1979

[3] Enterprise Wire Co., 46 LA 359, 363-4 (1966)

[4] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961) See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947)

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.

FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration

Case No. 05-01085 Re: Michael Reese

Issue: Termination of Employment

Case No. 05-01085
Re: Michael Reese