Title: Housing Authority of the City of Las Vegas and
Service Employees International Union Local 1107
ARBITRATION PROCEEDINGS PURSUANT TO
STATEMENT OF THE ISSUE
STATEMENT OF FACTS
POSITION OF THE PARTIES
arbitration arises pursuant to the agreement between the SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 1107 (hereinafter referred to as the Union) and the
HOUSING AUTHORITY OF THE CITY OF LAS VEGAS( hereinafter referred to as the
"HALV"), under which FRED D. BUTLER was selected as Arbitrator and
under which this award is final and binding on the parties.
matter involves the HALV’s decision to terminate
(hereinafter referred to as "Reeves") and Xxxxxxx
(hereinafter referred to as "")(collectively referred to as
the "Grievants") from their employment with the Housing Authority
for violation of the agency’s Personnel Policies and Procedures.
The Union filed a grievance maintaining that the action of the HALV is
in violation of the collective bargaining agreement.
The matter was processed through step two of the grievance procedure
and referred to arbitration.
evidentiary hearing, wherein the parties
were afforded full opportunity for examination, cross-examination of
witnesses and introduction of relevant exhibits and argument, was held at Las
Vegas, Nevada on April 12, 2005.
HALV was represented by Deverie J. Christensen, Esq.
and Richard J. Martinez, Deputy Executive Director.
Appearing as witnesses for the HALV was Xxxxxxx, Xxxxxxx, Richard J.
Martinez and Parviz Ghadiri.
Union was represented by Brooke D. Pierman, Esq. and Marcus Hatcher, Director
of Representation. Appearing as witnesses for the
Union were xxxxx and xxxxxx , Grievants.
parties introduced three (3) joint exhibits at the hearing, JE-1, the
Collective Bargaining Agreement Between SEIU Local 1107 and the Housing
Authority of the City of Las Vegas dated 2/1/2002-1/31/2005; JE-2, SEIU Local
1107 Grievance Form of xxxxx , dated 8/24/04 and JE-3 SEIU Local 1107
Grievance Form of .
introduced Exhibits A-T. Namely, A)Notice
of Termination August 20, 2004 to ; B)Notice of Termination August 20, 2004 to
Xxxxxxx ; C)Photographs of Xxxxxxx’s bathroom, August 5, 2004; D) Memo Re:
xxxxx Salary Adjustment effective
February 1, 2004; E)Grievance Hearing Decision 9/29/2004 to ; F) Grievance
Hearing Decision 9/29/2004 to Xxxxxxx ; G)Letter, 10/1/04 to ; H)Letter,
10/1/04 to Xxxxxxx ; I)Letter from Mark Stotik, 10/5/04 regarding ; J)Letter
from Mark Stotik, 10/5/04 regarding Xxxxxxx ; K)Letter to George 10/18/04 form
Parviz; L) Letter to Xxxxxxx , 10/18/04 from Parviz Ghadiri; M)Letter from
Mark Stotik, SEIU Local 1107, October 18, 2004; N) Letter to , October 27,
2004 from Human Resources Manager; O) Letter to Xxxxxxx , October 27, 2004
from Human Resources Manager; P) Letter from Mark Stotik SEIU Local 1107,
November 5, 2004 to Parviz Ghadiri; Q) Grievance Hearing Decision, November
10, 2004 to ; R) Grievance Hearing Decision, November 10, 2004 to Xxxxxxx ; S)
Letter to Mark Stotik from Parviz Ghadiri, November 16, 2004; T) HALV
tape recording of the hearing was prepared as an extension of the
Arbitrator’s notes. The record was left open to receive post hearing briefs.
The final brief was received on May 9, 2005, therefore the record was
closed on that date.
The parties stipulated at the hearing to the
following statement of the issue to be determined.
Whether the Housing Authority of the City of Las
Vega had just cause to terminate and
Xxxxxxx ? If not, what is the appropriate remedy?
The terms of the relevant contract provisions, in
pertinent parts, are outlined below.
11. DISCIPLINE AND DISCHARGE PROCEDURES
is expected that all HALV employees shall render the best possible service and
reflect credit on the HALV, and therefore high standards of conduct are
essential. No employee that has
completed their probationary period shall be disciplined, unless such
discipline is for just cause. Improper
conduct may be cause for disciplinary action. . . . The HALV has the right to
discharge or otherwise discipline an employee for just cause at any time.
Discipline and Discharge Procedure.
HALV has the right to discharge or otherwise discipline an employee for just
cause at any time. Discipline
involves actions taken by the employee’s supervisor in a timely manner in
situations where specific job-related employee behavior or performance is
unacceptable in that the employee has violated the employer’s established
work rules or performance standards, and it is the intent of the employer to
document the infraction(s).
shall be progressive from minor to major forms of disciplinary actions
dependent upon the seriousness of the offense, as a serious offense may result
in discipline being imposed at
some level other than an oral warning.
15. CONDUCT & DISCIPLINE
EMPLOYEE CONDUCT GENERALLY
is expected that all Authority employees shall render the best possible
service and reflect credit on the Authority, and
therefore, high standards of conduct are essential.
IMPROPER EMPLOYEE CONDUCT
conduct may be cause for disciplinary action.
The term “improper conduct” means not only an improper action by an
employee in the employee’s official capacity, but also conduct by an
employee not connected with the employee’s official duties which affects the
employee’s ability to perform official duties, and any improper use of the
position as to an employee for personal advantage.
There is no way to identify every possible violation of standards of
employee conduct; therefore, the following is a partial list which will result
in corrective action. . .
Unlawful absence or abuse of leave privileges, including claim of sick leave
under false pretense or misuse of sick leave.
Disgraceful and/or abusive personal conduct, which the Agency believes
reflects adversely on the employee or authority.
purpose of disciplinary action is to correct deficiencies in employees’
performance, to seek improvement to met appropriate standards, and/or to
correct for violations of these rules. .
The following are the findings of facts as
determined by the arbitrator based on the evidence and testimony.
The Grievant’s XXXXX and XXXXXX were hired by the
HALV in 1986 and 1992 respectively. Mr.
Xxxxx is a xxxxxx and is an eighteen-year employee.
Mr. Xxxxx has been employed for thirteen years in the XXXXXX as a xxxxx..
XXXXX has been the subject of prior discipline unrelated and different
from the type outlined in this matter. He
was promoted to the position of Maintenance Supervisor.
XXXXX is not supervised by XXXXX. (Testimony ofXXX
and XXXX )
In addition to their employment with the HALV, the
Grievants are partners in a business known as XXXXXX. The business specializes
in the installation and repair of tiles.
Their outside business is well known to the HALV and they have never
been told that they cannot have outside employment.
(Testimony of and
Sometime prior to July 31, 2004 the Grievants,
operating as XXXXXX, were contacted by XxxxxxxXxxxxxx to inquire about the
possibility xxxxxxx performing tile installation in the shower at his home.
The Grievants were referred to Xxxxxxx by a XXXXXXX who recommended
them based on his knowledge of their work at the HALV. (Testimony of XXXXXXXX)
After visiting the Xxxxxxx’s residence on July
31, 2004, the Grievant’s agreed to perform the work for three hundred
dollars, with the Xxxxxxx’s paying for materials and supplies. (Testimony
of Xxxxxxx& Phong Xxxxxxx) On
August 1st, the next day, the Grievants accompanied by Mr. Xxxxxxx
and his wife went to the tile store to pick out and order the tiles.
The Grievants began work that day, but did not complete the work at
that time because of problems encountered with the work in question and the
fact that there was not enough tile available.
They agreed to return on Wednesday, August 4, 2004 to the complete the
On Wednesday, August 4, 2004 the Grievants returned
to complete the job. The
Grievants were both scheduled to work at the HALV that day.
However, arranged to take
the day off in advance by using compensatory time. had requested sick
leave. (Testimony of the
Grievants) At the time of their arrival was
wearing a HALV uniform shirt. They
began work at approximately 8:A.M. (Testimony of Xxxxxxx)
During most of the day, the Grievants had a
positive relationship with the Xxxxxxxs.
Especially , who established a rapport with Ms. Xxxxxxx and discussed
the work and his family with her. (Testimony of Xxxxxxx)
However as the day progressed, both Mr. & Mrs. Xxxxxxx became
concerned about what they considered to be the apparent frustration of the
Grievants with the job because of changes in the shelves and Mr. Xxxxxxxs’
suspicions that they could not adequately do the job. They also became
concerned because the Grievants were consuming beer during the day without
eating and appeared to be inebriated.
Sometime around noon of that day, the Xxxxxxx’s
offered beer to the Grievants. This
beer was consumed by them, without taking a lunch break. (Testimony of Xxxxxxx)
During the day the Grievants consumed additional beers, which they later
purchased or brought with them. (Testimony of Xxxxxxx Xxxxxxx)
They continued to drink beer during the day and stopped drinking beer
between 4:PM and 6:PM. (Testimony of Xxxxxxx Xxxxxxx) The Xxxxxxxs never told the Grievants to stop drinking nor did they
did not mention their concerns directly to them. (Testimony of Xxxxxxx &
Ms. Xxxxxxx is a school teacher and was on summer
vacation at the time. However,
Mr. Xxxxxxx had work outside of the home but was able to drop in and out of
the home while the Grievants’ were working. (Testimony of XxxxxxxXxxxxxx)
The Grievants would take periodic breaks during the day.
During these breaks and when Mr. Xxxxxxx was present, they would
participate in roundtable discussions
with him about their company and their work at the HALV.
Mr. Xxxxxxx wanted to know how they were able to manage their outside
business and still be employed by the agency. (Testimony of XxxxxxxXxxxxxx)
Xxxxxx spoke to
Xxxxxxx about the HALV and his position as Maintenance Supervisor. He boasted about his salary and the fact that his job was not
burdensome. He even made a
comment about sitting on a lawnmower all day.
xxxxx also spoke about his ability to make things happen concerning the
people that were under his supervision. His
conversation about the HALV was generally positive. (Testimony of
Sometime after 7:PM, Xxxxxxx began to believe that
the job would not be finished. He
felt that the Grievants were inebriated and did not want to finish because he
was told by xxxx that the job was
not worth his while. When he
approached the Grievants about when the job would be finished, they appeared
annoyed and began to gather their tools and leave the job. (Testimony of
A disagreement began over the fact that the job was
not done to the satisfaction of Mr. Xxxxxxx.
At that time Mr. Xxxxxxx confronted the Grievants about when and
whether they would complete the job. In
response xxxxx demanded payment. When
Xxxxxxx refused payment, xxxx began to get annoyed and a confrontation and a
verbal altercation ensued between the two of them.
xxxxxx then agreed to pay one-half of the agreed upon amount and wrote
a check made out to cash. (Testimony of Xxxxxxx)
This offer was not acceptable to xxxx
and he demanded the entire amount.
After xxxxxx refused, a second altercation began between the two of
them. This altercation may have
involved mutual physical contact. However
xxxx who witnessed the altercation stepped in between the two of them in order
to prevent further physical contact. Xxxxxxx then demanded that they leave the premises and that
he was calling the Las Vegas Police. The
Grievants did not leave for another ten minutes. (Testimony of Xxxx)
After the police arrived on the scene, xxxxxx filed
an incident report alleging that xxxxx had struck him.
(Ex. A-10) xxxxxx was advised by the police officers that he should
file a formal complaint if desired. He
chose not to do so. (Testimony of Xxxxx)
On August 5, 2004, xxxxxx contacted the City of Las
Vegas, Office of the Mayor. He
wanted to complain about the behavior of the Grievants.
He was referred to the HALV where he filed a complaint against the
Grievants because of their behavior at his house the day before. (Testimony of
While they knew that the Grievants were not working
for the HALV while working at his house, xxxxxx wanted to make the city aware
of the incidents that had occurred. Both
felt that this type of behavior unchecked could place the HALV in a negative
light and they feel that the agency should not have individuals working for
the city who would behave in this way. (Testimony of xxxxxx & Xxxxxxx)
Xxxxxxx was especially concerned because
was wearing a HALV shirt which identified him as an HALV employee.
(Testimony of xxxxxx)
The Xxxxxxxs feelings about the HALV have not
changed because of the incident and they have no ill feelings about the City
or the HALV and do not believe that the negative actions of the Grievants have
anything to do with the HALV. (Testimony of Xxxxxxx & Xxxxxxx )
The Office of the Mayor passed on the complaint to
the HALV through the Deputy Executive Director Richard Martinez.
The complaint was that two HALV employees had been in a confrontation
with a citizen on August 4th while working at a private citizen’s
home. After checking the time
records for the two employees involved, it was determined that
was on approved leave time but that
was reported to be out on sick leave on that date.
The Grievants were called into Mr. Martinez’s
office and advised by him of the seriousness of the allegations and informed that they were being placed on paid administrative leave
until an investigation could be completed. (Ex-A-1)
Mr. Martinez conducted an investigation into this
matter and into the conduct of the Grievants.
This included an interview and obtaining statements from xxxxxx and a
neighbor, and visits to the site, reviews of the police incident report,
review of time records, personnel policies and the Collective Bargaining
The HALV does not prohibit employees from having
outside employment as long as the employment does not prevent them from
performing their duties for the authority or conflicts with those duties.
In addition, the HALV does not have policy that prohibits the wearing
of HALV uniforms off duty. Finally
the HALV does not have a policy prohibiting employees from drinking while off
duty or discussing their jobs or salaries in public. (Testimony of Richard
Martinez) However the HALV does
have a policy that prohibits using sick leave under false premises.
In addition, employees are prohibited from conducting themselves in a
manner which the agency believes reflects adversely on either the employee or
the HALV. (Testimony of Richard Martinez, Ex-T 65-66)
On August 20, 2004 after the completion of the
investigation and upon the recommendation Mr. Martinez, the HALV issued
Termination Notices to the Grievants. (Ex A & B)
was charged with violation of HALV Rule 15.2(q) "Disgraceful
and/or abusive personal conduct, which the agency believes reflects adversely
on the employee or authority" and HALV Rule 15.2(g) "Unlawful
absence or abuse of leave privileges, including claim of sick leave under
false pretense or misuse of sick leave."
was charged with violation of HALV rule 15.2(q) "Disgraceful
and/or abusive personal conduct, which the agency believes reflects adversely
on the employee or authority.
The Union filed a grievance on their behalf,
maintaining that the action is without just cause and violation of the
Collective bargaining Agreement. A
Step 2 Grievance hearing was held on September 16, 2005.
At that time the Union raised the additional complaint that the Housing
Authority did not conduct a proper investigation into the charges against the
Grievants because it failed to interview the Grievants prior to instituting
the discipline, in violation of their due process rights.
After considering all of the information presented,
the Executive Director concluded that the xxxxxx and xxxxx had not received
the proper due process. As a
result the grievance was sustained in part and the Grievants were subsequently
made whole by being paid retroactively to the date of the original
termination. (Ex-E, F, N, O)
The Grievants remained on paid administrative leave
pending the HALV’s reopening of the investigation into the allegations. The Housing Authority requested that the Grievants
participate in the new investigation by being interviewed. (Ex-G & H)
However the Union maintained that this was not a new matter.
More specifically that the original grievance had not been resolved to
the mutual satisfaction of the parties at the Step 2 Grievance hearing.
Therefore they requested that the entire matter be referred to
arbitration in accordance with the Collective Bargaining Agreement. (JE-1)
On November 10, 2004, the HALV issued a final
decision on the grievance and upheld the termination of the Grievants
effective on that date. The
matter was then referred to arbitration.
It is the HALV’s position that it has a position
of "Public Trust." Because
of this the agency maintains that the Personnel Policy allows the agency to
discipline employees for both on and off duty misconduct.
They contend that in addition to violating the HALV personnel policies,
the employees violated the public trust.
They contend that xxxxxx behavior was particularly
egregious and that he has a higher duty to the public trust because he is a
supervisor. However he knowingly
allowed a subordinate, although not directly under his supervision, to violate
In addition they contend that xxxxx, while wearing
a housing authority uniform openly discussed housing authority business and
"boasted" about his work and his having control over hiring and
firing and the easiness of his job. This,
they maintain left a negative impressive on a private citizen.
The uniforms are issued for identification purposes
while on duty and even though the
employees can take them home, they should not be worn when doing other
business such as working for another employer.
In addition acting in an abusive way to these citizens, who knew that
the Grievants were HALV employees established that they willingly
and knowingly placed the agency in a disgraceful and unfavorable light.
Therefore it is the HALV contention that the
totality of the circumstances left the citizen with the impression that the
employees was demeaning the employer. The
fact that there had been alcohol consumed and an attack on a citizen also made
it a conduct issue. The
fact that the citizen made a direct connection between the employees behavior
and the HALV serves to establish the violation.
In prior years, the HALV was the subject of
violation of the public trust. HALV
employees were filmed using authority equipment and terminated.
The HALV cannot afford to have these kinds of incidents occur now or in
the future. Employees have been
disciplined for using authority equipment for personal use.
In the case of , there was a clear violation of the
policy governing sick leave. Employees
either make arrangements to take sick leave in advance or call in.
In this case gave advanced notice as he had done before in order to care
for his wife. Therefore,
this leave was not questioned. Employees
are not allowed use sick leave for any other purpose.
Therefore knowingly and
admittingly gave false information.
The agency believes that progressive discipline was
not warranted in this action because of the seriousness of this matter.
the agency requests that the grievance be denied.
It is the Union’s position that the incident on
August 4, 2004 and the activities of the Grievants at that time was off duty
conduct and not governed by the HALV policies and procedures.
Therefore, the agency was without authority to impose discipline the
The Union also contends that the discipline
provision contained in Article 11 of the Collective Bargaining Agreement
defines discipline as on-duty conduct and the HALV has not presented any
evidence to show that the Grievant’s conduct was job-related or that this
conduct affected the operations of the HALV in any way.
The Xxxxxxxs admitted that the Grievents were
representing themselves and that they did not form a negative opinion about
the HALV from the incident. Finally
the HALV failed to put forth any evidence to show that the agency lost
business, productivity or even public approval.
There are no HALV rules that prohibit employees
from wearing uniforms outside of work nor any rules that employees cannot
discuss their positions or wage rates with members of the public.
There are also no HALV rules prohibiting employees from drinking
alcohol on their off hours.
The agency maintains that the actions of the
Grievants by getting drunk and assaulting a citizen reflected negatively on
the HALV. However, the agency did
not present credible evidence to prove either of these allegations.
The testimony of Xxxxxxx was inconsistent and unreliable as he changed
his testimony several times, could not remember details and could not
determine when beer was purchased or consumed.
The Xxxxxxxs testimony was equally as inconsistent
as it pertains to the uniform. The
Union contends that they were basing their recollection of the uniform by
their relationship with other agency personnel.
The Union also contends that the dispute between
the Grievants was mutual. Neither
of the Grievants was charged nor cited with any criminal violations. There are no charges pending and there is no proof that any
assault actually occurred.
The Union maintains that while the Grievants may
have exercised poor judgment in their off duty conduct, just cause does not
support their termination. According
to the agency other employees have been disciplined for actually using agency
equipment off duty for their personal use, however these employees were not
Finally the Union does not dispute the fact that
xxxxx violated the sick leave policy and made a poor choice in using sick
leave when he was not sick. However
they do not believe that this is terminable offense
Based on the above the Union requests that the
Grievance be granted and that the Grievants be made whole.
The parties agreed verbally that the issue of due
process in the investigation is not before this arbitrator and that the matter
was resolved and a make whole remedy was provided to the Grievants in October
2004. Therefore, this Arbitrator
will not be addressing the merits of that issue.
The discipline of employees of the HALV is governed
by Rule 15 of the agency’s Personnel Policies.
Rule 15 outlines employee conduct generally and attempts to outline the
type of improper conduct that would justify discipline as well as the type of
discipline that can be taken by the agency for violations.
The Rule further states that the purpose of disciplinary action is to
correct deficiencies in employee performance to seek improvement to meet
appropriate standards and to correct for violations of these rules.
It is not disputed that the activity of the
Grievant’s in this matter was off-duty conduct away from the HALV.
Therefore the first question directly related to just cause is whether
or not Article 15 of the Personnel Policy applies to off-duty conduct whether
the application of Article 15 to off duty conduct is violative of Article 11
of the Collective Bargaining Agreement.
Article 11 of the Collective Bargaining Agreement
states "Discipline involves actions taken by the employee’s supervisor
in a timely manner in situations where specific job-related employee behavior
or performance is unacceptable in that the employee has violated the
employer’s established work rules or performance standards, and it is the
intent of the employer to document the infraction(s)."
According to the Union,
Article 11 limits discipline to specific unacceptable
job-related employee behavior or performance. Therefore, on-duty conduct.
However a closer reading of Article 11 reveals that this article does
not specifically mention on or off-duty conduct. As described below there may be instances where the off-duty
conduct is so related to the employees position or duties that is can be
considered job related.
Arbitrators have traditionally held that an
employer has no right to discipline employees for conduct which occurs outside
of the workplace and during hours when the employee is not required to be at
work. Ford Motor Co. & UAW-CIO,
Opinion A-132, Onion of the Umpire (H. Shulman 1944) Therefore the general rule distinguishes work time from off
However Arbitrators have also developed exceptions
to this general rule. Namely, a.) when the off duty conduct harms the company’s
reputation or product. b.) when
the off duty conduct renders the employee unable to perform the duties or
appear at work, c.) when the behavior leads to refusal, reluctance or
inability of other employee to work with him and d) where the off-duty conduct
undermines the ability of the Employer to direct the work.
Murray Machine Inc. 75 Lab. Arb (BNA) 312, 314 (1951)(Ferguson, Arb)
The connection between the off-duty conduct and the
injury to the business or agency must be reasonable and discernable and not
In the public sector certain positions such as
police, fire and educational personnel or other high level personnel occupy a
position of a "public trust." For
these employees, arbitrators and courts generally show a greater sensitivity
to the reputation and mission of the employer as a government entity. Employment in these "public trust positions"
decreases the need for a strong nexus. Thus, it is generally easier for a
public employer to sustain a dismissal based on off-duty misconduct where the
arbitrator recognizes that public trust is a key part of the nexus requirement
in the public sector. Traditionally
this applies most frequently to police officers, firefighters and teachers. (
For examples see City of Stamford, 97 Lab. Arb. (BNA) 261 (1991)(Pattocco,
Arb); R, City of Taylor, 65 Lab. Arb (BNA) 147 (1975)(Keefe, Arb); North Haven
Board of Education, 59 Lab. Arb. (BNA) 99 (1972) (Purcell, McDonough,
Sirabella, Arbs). There
must still however be some nexus between the off-duty conduct and the
For employees in non-safety positions the nexus
requirement is similar to private sector employees. (See U.S. Internal
Revenue Service, 77 Lab. Arb. (BNA) 19 (1981)(Edes, Arb)
Arbitrators generally hold that what a person does
away from work is not any business of the employer, except under a limited
range of circumstances. However,
in all cases there must be some connection between an employee’s conduct and
his employer in order for the employer to age any action.
Nevertheless, employees off duty time should be
respected and Arbitrators should only sustain discipline when there is a true
nexus between the conduct and the effect on the employer, recognizing that
what may seem appropriate to one employer may be inappropriate to another.
In the case before this arbitrator the Grievant’s
were charged by the agency with off duty misconduct and a violation of Rule
15(q) "disgraceful and/or abusive personal conduct, which the agency
believes reflects on the employee or the authority."
More specifically the agency contends that the conduct of the Grievants
by allegedly making disparaging remarks, drinking beer excessively
and having a business and personal dispute with a citizen on their off-duty
time in some way injured the reputation of the HALV because of its position of
The agency states that xxxx as a supervisor
occupies this position of public trust because he is a supervisor.
The Executive Director of the HALV believes that the nexus was created
when wore his uniform to the
Xxxxxxx home, even after admitting that the agency does not have a policy
governing the wearing of uniforms off-duty.
It appears reasonable to expect that since the agency issues these uniforms to wear when performing work for the agency that these uniforms should not be used while being employed in other businesses or professions. As xxxxxx, observed these uniforms serve as an identifier for the organization and the wearing of the uniform could reflect on the agency. However Mr. Martinez, the agency’s Deputy Director and the person who recommended the discipline, testified that the nexus was not the fact that wore the uniform but the fact that the Xxxxxxx knew that he was an HALV employee.
After a review of all of the relevant evidence and
testimony this Arbitrator determines that there was no connection between the
employee off duty conduct of the Grievants and the HALV.
This entire venture was an
independent business relationship between the Grievants as owners of an
independent company and xxxxxx.
Even assuming that the agency could have
established a nexus, the agency did not show that this conduct was violative
of Rule 15.
The agency did not establish that the conversations
between and xxxxxx were more that
"boasting" by xxxxxxx. xxxxxx
testified that he initiated these conversations when he returned home and
while the Grievants were on break. xxxxxx
also states that he did not believe that
was in any way critical of the HALV.
In addition the Agency did not present credible
testimony about the amount of beer consumed, where it came from or the time
frame in which it was consumed. xxxxxx’s
testimony was inconsistent and contradictory.
He also contradicted xxxxxx’s
testimony about the amount consumed. She
testified that they drank all of the beers and his testimony was that they
drank most of them.
Finally the agency did not establish that the
Grievants physically attacked Mr. Xxxxxxx.
The credible evidence is that some minor physical contact may have
evolved between Mr. xxxxxx and xxxxx. However,
it is not determined who initiated this and it appears as though it was
mutual, if it existed at all. There
was credible testimony that the elevation of this contact was prevented by intervening. Further
xxxxxx did not pursue this matter with the Las Vegas Police Department, when
he had the opportunity to do so.
Other than the testimony of the Deputy Executive
Director that he believes that any off duty misconduct reflects negatively on
the agency and the Executive Director who testified that because the agency
had negative publicity in the past about employees, there was no demonstration
showing that the incident between the xxxxxx and the Grievants had a negative
affect on the agency at all.
To the contrary, the Xxxxxxxs, who were the
recipients of the off-duty behavior of the Grievants, testified that their
opinions of the work the HALV has not changed because of this altercation.
Therefore while the HALV does have a right to
discipline employees for off duty misconduct where there is some connection
between the off-duty conduct and its effect on the workplace,
in this case, there was no showing that the actions of the Grievants
could be considered off duty misconduct or that there was a nexus between
their off duty conduct and the HALV.
Therefore it is determined that the agency did not
have just cause to discipline the Grievant under Rule 15(q)
With regard to the discipline of xxxxx for claiming
sick leave under false pretenses, the agency did possess the requisite just
cause. Article 15.2 clearly
spells out that it is a violation to do so.
XXXXX at first testified that he was not aware of
the policy but later admitted that he received the handbook outlining the
rule. There can be no doubt that
employers have the right to establish sick leave policies that are reasonable.
In doing so, employers have a legitimate concern in preventing abuse of
sick leave claims.
XXXXX later openly and honestly admitted that he
had used sick leave under false pretense but just as honestly failed to admit
that he had done anything wrong. His
comments were "everybody does it."
He also testified that he did not have to use sick leave and that he
had other accrued leave which he could have used.
Rule 15.3 states, "the purpose of disciplinary
action is to correct deficiencies in employee performance, to seek improvement
to meet appropriate standards, and/or to correct for violation of these
rules." Disciplining in this case meets these standards.
XXXXX willingly and knowingly lied about his need
for sick leave and attempts to justify this behavior even as late as the
arbitration hearing. While his
honesty is appreciated, the fact is that he violated an existing policy and
does not appear to be remorseful about it.
Nor does he blame it on a mistake.
This Arbitrator does not believe that termination
is the appropriate discipline in this case because that level of discipline
may only serve to be punitive in nature and not give the employee an
opportunity to correct the behavior. Nevertheless
because the agency has just cause, discipline in this case is warranted to
correct this behavior and prevent this type of knowing and intentional
behavior in the future.
In summary, it is determined that the LVHA did not possess the requisite just cause to terminate or for their off duty conduct. However the LVHA did possess the requisite just cause to discipline for violation of Rule 15. (g) by claiming sick leave under false pretense.
The Grievance is granted in part.
The action against xxxxxx is reversed and he should
be returned to duty with salary, benefits and seniority and all other make whole
remedies from November 10, 2004 to the date of his reinstatement.
discipline of xxxxxx is reversed
and modified to include a Discussion and Warning as per Section
15.3.1 of the Rules. xxxxxx should
be returned to duty but without back pay or benefits.
Dated: FRED D. BUTLER, Arbitrator
amount was later increased to $350 because the complexity of the work
involved. (Testimony of Xxxxxxx, Grievants)
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028