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Title: Port of Portland and Laborers' International Union
Date: July 10, 2006
Arbitrator: David Gaba
Citation: 2006 NAC 112

Federal Mediation & Conciliation Service

 
In the Matter of an Arbitration

            Between

PORT OF PORTLAND (Employer),

            And

LABORERS' INTERNATIONAL UNION of NORTH AMERICA, LOCAL 483 (Union), and JAMES RICHMOND (Grievant).

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ARBITRATOR’S

OPINION AND AWARD

 

INTRODUCTION

This arbitration arises pursuant to a Collective Bargaining Agreement between the LABORERS' INTERNATIONAL UNION of NORTH AMERICA, LOCAL 483 (hereinafter “Union”), and the PORT OF PORTLAND (hereinafter “Employer”), under which DAVID GABA was selected to serve as Arbitrator and under which his award shall be final and binding among the parties.

A hearing was held on April 14 and 25, 2006, in Portland, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute.  Briefs were received on June 16, 2006.

APPEARANCES:

On behalf of the Union:

Michael R. Dehner
Field Representative
LIUNA Local No. 483
1125 SE Madison Street 
Suite 206
Portland, OR 97214-3600

            On behalf of the Employer:

Howard Rubin & Patricia Ann Haim
Amburgey & Rubin, P.C.
1750 SW Harbor Way, Suite 450
Portland, OR  97201

            ISSUE

The parties did not agree on a statement of the issue.  The Employer proposed the following issue:  Did the Employer have just cause to discharge the Grievant on September 12, 2005; if not, what is the appropriate remedy. 

The Union suggested a two-part statement of the issue: One; did the Port of Portland have just cause to terminate Grievant effective September 12, 2005, for allegedly violating Port policy 4.5, outside employment?  Two; if the Port lacked just cause to terminate Grievant for allegedly violating Port policy 4.5, outside employment, what is the appropriate remedy? 

The arbitrator accepts the Union’s formulation of the issue.

RELEVANT PORTIONS OF THE CONTRACT

11.       MANAGEMENT RIGHTS

Section 11.01

The right to hire and to maintain order and efficiency is the sole responsibility of the Employer. The right to promote and the right to discipline and discharge for cause are rightfully the sole responsibility of the Employer, provided that claims of wrong and unjust discipline shall be subject to grievance procedure.

 

Section 11.02

The Union recognizes other rights and responsibilities belonging solely to the Employer, prominent among them, but by no means wholly inclusive, being the unrestricted rights to instruct its employees as to their normal duties; to regulate methods of production or the kind of machinery, apparatus or equipment used; and to set up the most efficient system of production.  In exercising its rights hereunder, the Employer agrees that it will not violate any provision of this Agreement.

`           15.       SHOP STEWARD

Section 15.01 – No Discrimination

The Employer will not in any way discriminate against any shop steward for presenting any complaint, dispute or grievance to the employee’s supervisor or department head or to the Human Resources Department in the manner provided for in this Agreement.

 

20.       HEALTH AND WELFARE

 

Section 20.01 – Sick Leave

Employees shall accumulate sick leave at the rate of one (1) day per month with no limitation to the accumulation.

 

Section 20.02 – Sick Leave: Notification, First Workday Missed

When an employee is unable to work because of illness, the employee shall notify the immediate supervisor, or designee, of the employee’s absence and the reason therefore as promptly as available means of communication permits. Sick leave benefits will commence on the 2nd consecutive workday missed because of illness or injury, or the first workday missed in the case of hospitalization or incapacitating personal injury substantiated by a physician's certificate. The one day waiting period must be satisfied as a precondition to sick leave benefits in each instance of absence due to illness or injury. Effective the first of the month following Commission approval of this contract, the one-day waiting period will be eliminated and any sick leave accrued will be available for use on the first workday missed.

If the employee has at least 144 hours of accumulated sick leave, sick leave benefits will commence on the first workday missed. Effective the first of the month following Commission approval of this contract, the 144 hours requirement will be eliminated and any sick leave accrued will be available for use on the first workday missed. A physician's certificate will not be automatically required as a precondition of sick leave benefits. However, the employer reserves the right to require a physician's certificate in the case of an extended illness; or, when the employer has reason to believe that an employee is abusing sick leave benefits, future absences may require a physician's certificate as a precondition to sick leave benefits.

 

Section 20.03

Effective the first of the month following Commission approval of this contract, an employee may use accumulated sick leave, up to a maximum of sixteen (16) hours, to provide care during an illness or disability of the employee’s spouse, children or step-children that is not covered under FMLA/OFLA. The maximum of sixteen (16) hours applies to any one illness or disability.

 

Section 20.09 – Family Medical Leave

Eligible employees shall be entitled to leave as provided under and in compliance with federal and state family and medical leave laws.

While on family medical leave, the employee may use accrued leave time to receive pay, in accordance with the Port’s policies on Family and Medical Leaves.

 

22.       GRIEVANCE, COMPLAINTS AND ARBITRATION

 

Section 22.01

To promote better Employer/employee relationship, both parties pledge their immediate cooperation to settle any grievances or complaints that might arise out of and in the course of employment with the Employer, and the following procedure shall be the sole procedure to be utilized for that purpose:

 

Section 22.02

Disciplinary actions or measures shall include reprimand, demotion, suspension and discharge.  Disciplinary action or measures may be imposed only for just cause.  Any disciplinary action or measure imposed upon an employee may be processed as a grievance through the regular grievance procedure.  If the Employer has reason to reprimand an employee, every effort will be made not to embarrass the employee before other employees or the public.  If the Employer has reason to discuss any disciplinary action, the employee shall be given the option of having a Union representative present at any such discussion.

 

22.02.01

The Employer shall not discharge any employee who has completed the introductory period without just cause.  If the Employer feels that there is just cause for discharge, the employee involved will be suspended without pay for seven (7) calendar days before the discharge is effective.  The employee and the Union representative will be notified in writing that the employee has been suspended and is subject to discharge.  Such notification shall state the nature of the offense for which the employee is being discharged, in detail, specifying dates, locations and the particular nature of the offense committed by the employee.  The Union shall have the right to appeal any disciplinary action within seven (7) calendar days of receipt of notice as a grievance at Section 22.04 of the grievance procedure.

 

Section 22.03

Any PDX Maintenance employee claiming a breach of any provision of this Agreement shall refer the matter to the appropriate Aviation Maintenance Superintendent within fourteen (14) calendar days of the date upon which the alleged violation occurred or following the date the employee becomes aware, or should have become aware, of the alleged violation.

Any General Aviation employee claiming a breach of any provision of this Agreement shall refer the matter to the General Aviation Operations Manager, in the same manner and within the same timeline as provided for above.

The employee may be accompanied by a Union representative in any discussion following such reference to the Aviation Maintenance Superintendent or the General Aviation Operations Manager, as appropriate. The Union may take up any alleged violation of this Agreement, with or without permission of the employee.

 

Section 22.04

For PDX Maintenance employees, if the matter is not settled within fourteen (14) calendar days of the reference to the appropriate Aviation Maintenance Superintendent, the matter may be referred to the Maintenance Manager, or designee, provided that such reference shall be in writing, shall state the nature of the grievance, the specific sections of the contract allegedly violated, and the remedy requested and shall be presented within fourteen (14) calendar days of the expiration of the fourteen (14) day period for settlement with the Aviation Maintenance Superintendent. The Maintenance Manager, or designee, and such assistants as the manager may select shall promptly hold a grievance meeting to settle such grievance with the appropriate Union business agent, or designee.

For General Aviation employees, the matter may be referred to the General Aviation Manager, or designee, in the same manner and within the same timelines as provided for above.

 

Section 22.05

For PDX Maintenance employees, should the Union business agent, or designee, and the Maintenance Manager, or designee, fail to effect a settlement of the dispute within fourteen (14) calendar days of its submission to the Maintenance Manager, or designee, or within fourteen (14) calendar days of the grievance meeting, as appropriate, the Union shall have the right to submit the grievance in writing to the Senior Manager of Maintenance and Facilities, or designee, provided that such submission shall be within fourteen (14) calendar days from the date of submission to the Maintenance Manager, or designee, or within fourteen (14) calendar days from the date of the grievance meeting, as appropriate.

For General Aviation employees, the next step is outlined in the following Section.

 

Section 22.06

The Senior Manager of Maintenance and Facilities, or designee, or the General Aviation Manager, or designee, as appropriate, shall have fourteen (14) calendar days in which to respond to the grievance in writing. If after fourteen (14) calendar days the grievance is not settled, the Union shall have the right to submit the matter to arbitration. In the event the Union elects to do so, it must notify the Labor Relations Manager of its decision in writing within fourteen (14) calendar days from the date of response (or lack of response) from the Senior Manager of Maintenance and Facilities, or the General Aviation Manager, as appropriate. After the grievance has been so submitted, the Union shall, within fourteen (14) calendar days from the date of submission to the Labor Relations Manager, request from the State Mediation And Conciliation Service a list of seven (7) arbitrators. The parties shall select an arbitrator from that list by such method as they may jointly select or, if they are unable to agree upon a method, then by the method of alternate striking of names under which the grieving party shall strike the first name objectionable to it, and the Employer shall then strike the first name objectionable to it. The final name left on the list shall be the arbitrator. The parties shall have ten (10) working days to set the hearing as provided by dates available to the arbitrator.

The arbitrator's decision shall be final and binding, but the arbitrator shall have no power to alter, modify, amend, add to or detract from the terms of this Agreement. The arbitrator’s decision shall be within the scope and terms of this Agreement and in writing.

The arbitrator may also provide retroactivity not exceeding sixty (60) days prior to the date the grievance is filed and shall state the effective date.

The Employer and the Unions shall divide equally and pay the arbitrator's fee, the cost of any hearing room and cost of a court reporter if requested by the arbitrator. All other expenses shall be paid by the party incurring them.

 

Section 22.07

The time limits of this grievance procedure shall be strictly adhered to, unless both parties mutually agree in writing to extend the time limits provided. The Employer shall have the right to refuse to process or arbitrate a grievance which has not been processed in a timely manner.

FACTS

Laborers' International Union of North America, Local 483 (Union) is a constituent union of the District Council of Trade Unions (DCTU), which bargains collectively with the Port of Portland (Port or Employer).  The DCTU and the Port are parties to a collective bargaining agreement (CBA) with an effective term of July 1, 2004 to June 30, 2008.

            The Port hired the Grievant, James Richmond, in 1997 as a general maintenance worker.  He remained in that position until August 17, 2005, when the Port suspended him without pay pending discharge and later terminated him effective September 12, 2005. On September 13, 2005 Grievant, through the Union, filed the grievance that gave rise to this proceeding.  After progressing through the contractual grievance adjustment process, this matter was elevated to arbitration on November 14, 2005. 

The Port

            The Grievant was employed by the Port’s Aviation Maintenance and Facility Services division which is responsible for all aspects of facilities maintenance at the Portland Airport, including the buildings, grounds, equipment, concourses, and runways.  The general maintenance group takes care of all aspects of the buildings exteriors other than the electrical systems.  They are responsible for maintaining the Airport’s pavements, roadways, parking lots, security fences, fields, pavement markings, and regulatory signs.  The Port’s maintenance workers are also responsible for various sorts of maintenance, repair, and minor construction work on pavements, drainage systems, fences, and undeveloped land in and around the Airport facility.  For the time period at issue in this grievance, Grievant was a Journeyman General Maintenance I worker, assigned to the General Maintenance area, which is responsible for “maintenance of all equipment, yard and plant facilities owned and/or operated by the Employer.”  Grievant worked from the inception of his employment with the Port in 1997 until September 12, 2005 without any proven disciplinary measures being imposed. 

The facilities and maintenance department is led by Larry Medearis the Senior Manager for Aviation Maintenance and Facilities.  Bud Cave, the Aviation Maintenance Operations Manager, reports to Mr. Medearis.  Tom Trowbridge, Airfield and Vehicles Superintendent, is one of Mr. Cave’s direct reports; he supervises the general work group and the vehicle work group.  Doug Rasmussen, the general maintenance lead, reports to Mr. Trowbridge and was Grievant’s direct lead.  As a lead worker, Mr. Rasmussen is a full member of the bargaining unit.  Craig Stewart was the assistant lead in general maintenance and is also a bargaining unit member. 

The Port’s Policies

The Port’s Employee Handbook includes a specific policy entitled “Outside Employment.” Newly hired employees are given a copy of the Employee Handbook, sign a receipt for it, and they are oriented in the Port’s policies, including the policy on outside activities. Grievant received a copy of the 2001 update of the Employee Handbook and signed a receipt for it on August 6, 2001.  He also received a copy of the 2003 Employee Handbook, which included the same outside employment policy.  This policy remained identical at all times relevant to this arbitration.

The Port’s outside employment policy informs employees:

The Port of Portland does not prohibit employees from working a second non-competing or non-conflicting job.  If an employee chooses to work a second job, it is expected that his or her first priority is to the Port.[1] 

The policy then tells employees that they must meet a list of standards if they perform outside work, including:

Ensure that days and hours of outside work do not conflict with his or her regular Port work schedule . . . .

Ensure that the amount and scheduling of the outside work does not affect his or her ability to maintain a high standard of work performance, including attendance with the Port. . . . .           

Perform all outside work off Port premises on his or her own time. 

Mr. Richmond’s Business

The Grievant decided to form “Redheads Pavement Sealing and Striping”as a way to help build his son’s employment prospects and teach him job skills:

My 15 year old son came to live with me, his mother and I were divorced, had been divorced for years, and he decided that he wanted to come live with us.  And so I figured I'd start a business on the side, working weekends and so on, to try to teach him something, to give him some kind of background, education, so he was more marketable as he got older.  Instead of working, you know, cooking french fries or flipping burgers at McDonald's, it would be better for him if he had some experience behind him.  Plus he wanted money, he wanted motorcycles and everything, so I figured what a better way to do it, I'll put you to work.[2]

The services provided by Redheads consisted of “parking lots and driveways, we would pressure wash the parking lots or the driveway, seal coat them, take care of the oil spots in them so the oil didn't eat through their asphalt, and restripe them if it was necessary.  Driveways didn't get striping but the parking lots did.” There was no evidence presented that Redheads did concrete work other than on the day in question.  Grievant never made any secret about Redheads, and the existence of this business was well known both to coworkers and Port management. 

The Letter

Prior to his discipline Mr. Richmond had made efforts to address various issues of concern within the workplace.  Because he believed that some of these concerns required investigation and action from the highest levels of Port governance Mr. Richmond created an unsigned letter and sent it to several high-ranking Port managers.  The letter’s allegations sparked an investigation conducted by Ms. Hettervig, and her findings rejecting all allegations were communicated to Port management on May 25, 2005.  Mr. Medearis communicated the outcome to all Aviation department staff, stating that “[n]one of the allegations could be substantiated.”  Mr. Medearis described the investigation as an “unfortunate event” and described it as a “trying time for all of us.” The investigation, as well as the author’s identity, was a frequent topic of conversation among management and rank and file employees alike.

Mr. Richmond’s Health Condition

Grievant’s supervisors were aware of the chronic health condition that periodically made Grievant late to work or kept him at home and which had made him a few minutes late to work on July 14, 2005.  Despite occasional challenges posed by his condition, Grievant did not have a problem with excessive absenteeism, nor had he been placed on sick leave restriction under Article 20.02 of the DCTU contract.

The Events of July 15, 2005

             In June 2005, Craig Stewart, a crew member, told Mr. Cave that rumors were circulating among the crew that Grievant had been taking time off and calling in sick so that he could do outside work.  The pattern consisted of “good weather days, short notice, and a call in sick.” Mr. Cave reported to Mr. Medearis that crew-members had told him that Grievant had an outside job to do, and that he would call in sick if the next day was warm and sunny.  Mr. Medearis was aware that Mr. Trowbridge had counseled Grievant in August 2004 about possible conflicts between his job with the Port and his outside work, and that he had documented the discussion. 

Mr. Medearis Lines Up an Outside Investigator

In early June 2005, Mr. Medearis got clearance to use an outside, independent investigator to conduct surveillance to determine whether Grievant was misusing sick time to do outside work.  Mr. Medearis discussed this possibility with Mary Maxwell, the Aviation Director and Mr. Medearis asked the Port’s Risk Manager, Suzanne Barthelmess, whether she could suggest a private investigator.  Ms. Barthelmess did and emailed Mr. Medearis contact information for Steven Starkel of Miles Investigations, Inc. 

On July 9th, Mr. Medearis telephoned Miles Investigation and spoke with Mr. Starkel.  He told Mr. Starkel that they wanted video surveillance of an employee whom they suspected was calling in sick and then working an outside job.  Mr. Medearis gave Mr. Starkel descriptions of Grievant and his truck as well as Grievant’s home address. 

The Cordua Concrete Job

Several weeks before July 15th, Brian Cordua met with Grievant and asked about having concrete work done to extend the patio on his new house.  Grievant asked him detailed questions about the concrete that was already in place and then telephoned Richard Koskela.  Grievant introduced Mr. Koskela to Mr. Cordua, and they all looked at the project at the Cordua house.  Grievant then ordered the concrete from Baker Rock Co., to be delivered on Friday, July 15th.  The Grievant also paid for the concrete. 

July 15, 2005

At about 6 a.m. on Friday, July 15th, Grievant telephoned the Port and said that he was sick.  As soon as he learned of Grievant’s call, Mr. Medearis telephoned Mr. Starkel, told him that Grievant had called in sick, and asked him to begin video surveillance of Grievant.  Mr. Starkel drove to his office in Beaverton to pick up some equipment and then out to Grievant’s home address in Newberg, arriving at 7:15 a.m. 

About 35 minutes later, Mr. Starkel observed a white SUV drive up to Grievant’s house and a man matching Grievant’s description get out of it and go into the house through the garage.  The man reappeared carrying a compressor and went back into the truck.  Mr. Starkel followed him about 10 blocks to a new home construction site in Newberg at the corner of Crater Lane and Oxford.  Mr. Starkel then observed and videotaped Grievant and another man (Richard Koskela) anxiously walking back and forth in front of the property.  During that time, Grievant had at least two conversations on his cell phone.  Grievant’s cell phone records confirm that he made two calls to Baker Rock, the cement company, a few minutes before 8 a.m. on July 15th.

At about 8 a.m., a cement truck arrived, and Grievant began unloading the cement from the truck chute into a wheelbarrow.  Grievant was the only one working.  He wheeled the wheelbarrow into the back yard, returned for another load, and repeated the process for the full three cubic yards of cement that he had ordered, about 12 wheelbarrow loads. 

At 8:40 a.m., Mr. Starkel telephoned Mr. Medearis and told him what he had observed.  At Mr. Medearis’s request, Mr. Starkel drove to the Port of Portland facility where Mr. Medearis positively identified Grievant on the video-tape.  Mr. Medearis asked Mr. Starkel to return and try to continue the surveillance of Grievant.  Mr. Starkel arrived back in Newberg at 12:15 p.m.  Grievant’s truck was not at his home, so Mr. Starkel drove back to the Crater Lane site.  When he got there, Grievant was leaving the site (more than 4 hours after Mr. Starkel first saw him there), and he followed Grievant back to his house.  While Grievant was in his house, Mr. Starkel observed man loading equipment onto the bed of Grievant’s tank truck.[3] 

Shortly after 1 p.m., Grievant entered the truck with the tank on the bed and drove away.  Mr. Starkel followed him to Lumbermens Building Supply in Newberg, where Grievant got out of the truck and went into the store.  He came out after about seven minutes, got back into the truck, and drove away.  Mr. Starkel tried to follow Grievant as he headed towards Champoeg State Park but lost sight of him after about 20 minutes.    Mr. Starkel then telephoned Mr. Medearis and told him what he had accomplished. 

The Investigation .

An investigation meeting was held at the Port on August 11, 2005.  Mr. Medearis, Ms. Hettervig, and Mr. Cave attended for management.  The Grievant and Shop Steward Myron Hall attended for the Union. 

Mr. Medearis began the meeting by telling Grievant that they needed to clear up some issues concerning the use of sick leave and then told Grievant that had an eyewitness, though not that they had a video.  Mr. Medearis then asked Grievant, “On July 15th, four weeks ago tomorrow, you called in sick, were you in fact sick, or were you doing outside work?” Grievant responded that he was sick.  Several other people asked Grievant the same question during the meeting.  Ms. Hettervig asked him twice what he was doing on July 15th and whether he was sure or wanted to change his story.  Both times, Grievant responded that he was sick.  At no time at the investigational meeting did Grievant acknowledge that he poured concrete that day or that he drove his flatbed truck to Lumbermens. Grievant denied that he had done work at a residence at Newberg that day and said he was sick.  He said he might have ordered concrete while he was at home that day.

About 20 minutes after the investigative meeting, as she was walking to her car in the parking lot, Ms. Hettervig received a call on her cell phone from Grievant.  He asked her what was going on, said he didn’t know who could be saying he had been doing some work, and suggested it might have been a disaffected neighbor.  Ms. Hettervig told him that they had information from Aa neutral third party who was credible, and not someone with a personal vendetta. Ms. Hettervig suggested that Grievant might want to check his invoices and records to see if they refreshed his memory about what he was doing on July 15th and then let her or Mr. Medearis know.  Grievant never got back to her, and he never acknowledged to her or anyone in the Port’s management that he had done concrete work at the Cordua residence that day, driven his truck, or gone to Lumbermens. 

On August 12th, Grievant had a conversation with Mr. Cave a bit before noon.  In response to Grievant’s question, Mr. Cave told him that the situation was serious and that there was an ongoing investigation.  Grievant said that “neighbors who don’t like him . . . would turn him in just to get him in trouble,” and he wondered who the witness was.    Mr. Cave repeated that Grievant needed to tell them what he was doing that day, and he suggested that “if it was me, I’d be putting all my info together on where I was that day and where my truck might [have] been.” Mr. Cave suggested that Grievant talk with Mr. Medearis. 

Later that day, at about 3 p.m., Grievant went to see Mr. Medearis and again asked what the situation was all about.  He told Mr. Medearis that he did not want to lose his job over something he didn’t do.    Mr. Medearis asked him if he had any information to offer.  Grievant responded that he had a couple of neighbors whom he did not get along with and who might be considered credible witnesses.  Once again, Grievant did not acknowledge that on July 15th he had poured concrete or driven his truck with the tank on it.  Grievant did tell Mr. Medearis that he would go home and check his receipts for work done around that time. 

On August 23, 2005, Mr. Starkel returned to the Corduas’ home on Crater Lane in Newberg at about 6:50 p.m.  Deana Cordua responded to his knock and said that she and her husband owned the house.  She told Mr. Starkel that Baker Rock had laid the concrete patio and that a man named Richard made the arrangements.  Mr. Starkel asked her whether Grievant had done the work, and she replied that Jim Richmond did not perform the work. When Mr. Starkel showed her a still print from the videotape, she identified the man with the white hair as Richard Koskela and said that the other man, Grievant, lived next door to her in-laws. 

Later that day, Mr. Medearis drove to Newberg.  He went to Baker Rock Company, the business that Mrs. Cordua identified as having done the concrete work at her house.  A Baker Rock Company employee told Mr. Medearis that they did not do concrete pouring or spreading, the kind of work that had been described.  They just deliver concrete.  According to Baker Rock’s dispatch records, they dispatched a load of three cubic yards of concrete to Jim Richmond at the Crater Lane address at about 8:30 a.m. on July 15th. 

Mr. Richmond is Suspended Pending Termination

On about August 17, 2005, Mr. Cave drafted a notice advising Grievant that he was being suspended pending termination.  Mr. Cave concluded that on July 15th, Grievant was “pouring concrete, moving it in a wheelbarrow, driving his truck, and if he could do that, he was healthy enough to be working for us that day.” 

Grievant was given the notice of suspension pending termination at a meeting on August 17th.  He again said something about his neighbor not liking him.  Mr. Medearis told him again that they had an eyewitness.  The suspension notice recounted the facts beginning with Grievant’s calling in sick on July 15th and then being observed working on a concrete job at a new home site in Newberg.    It then summarized the investigative meeting on August 11th and Grievant’s maintaining that he had been sick that day and did not do outside work.  The notice concluded that Mr. Richmond’s actions violated Port Policy 4.5, (Outside Employment) and constituted abuse of sick leave, and that Grievant had been dishonest when he signed his July 15th time card for sick leave and during the investigation interview.  It also noted that since August 11th, Grievant had had several “opportunities to be truthful about your actions on July 15, 2005, but you have chosen to continue to be dishonest.”  Finally, the notice invited Grievant to submit any additional information that he wanted the Port to consider during the seven day unpaid suspension. 

The Union’s Response

On August 19, 2005, the Union submitted a response to the notice of suspension pending termination.  The Union repeated that Grievant was ill on July 15th.  The Union argued that Grievant was not doing “outside work” because Mr. Koskela wasn’t paying him.  The Union then asserted that Grievant was not untruthful when he signed his time card for eight hours of sick leave for July 15th and when he answered questions about his being ill that day. 

            At this point Mr. Richmond remembered the events of July 15 as follows: After waking up and feeling ill, Mr. Richmond phoned the Port to report his absence. Grievant then remained at home in his pajamas watching cartoons with his son Lane when he received a phone call from Richard Koskela, a close friend, who had a concrete job to do that day near Grievant’s home.  Mr. Koskela was feeling very ill that day due to the effects of chemotherapy, so he phoned and begged Grievant for help; Grievant reluctantly agreed.  Grievant later traveled to the Cordua residence where, for a short time, he did assist Koskela with certain limited aspects of a concrete job Mr. Koskela was performing.  This work, in addition to Grievant’s denial throughout the investigative process that he was performing “outside work,” formed the basis for the Port’s decision to terminate Grievant. 

The Union’s letter included a statement signed by Richard Koskela.  Mr. Richmond went to Mr. Koskela’s job site at about 8 a.m. on July 15th and “helped me [Mr. Koskela] for a short while off and on throughout the day.”  Finally, the Union sent a note from Grievant’s doctor dated August 17, 2005 to the Port’s Human Resources Department. The note states, “Patient was examined and treated for medical condition 7/6/05.”[4]  Mr. Cave and Mr. Medearis reviewed the information from the Union and concluded that Mr. Koskela’s statement was inconsistent with the surveillance report and the videotape.  The decision was then made to discharge Grievant.  Mr. Cave issued a termination letter dated September 12, 2005.[5]  On September 13, 2005, the Union filed a grievance asserting that Grievant was Adischarged without just cause, and progressive discipline was disregarded.

DECISION

The Applicable Standard is Just Cause.

            Where there is no contractual definition, it is reasonably implied that the parties intended application of the generally accepted meaning that has evolved in labor-management jurisprudence:  that the “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness.[6]

Described in very general terms, 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)[7]

            As traditionally applied in labor arbitrations, the just cause standard of review requires consideration of whether an accused employee is in fact guilty of misconduct.  An employer’s good faith but mistaken belief that misconduct occurred will not suffice to sustain disciplinary action.[8]  If misconduct is proven, another consideration, unless contractually precluded, is whether the severity of disciplinary action is reasonably related to the seriousness of the proven offense and the employee’s prior record.  It is by now axiomatic that the burden of proof on both issues resides with the employer.[9]

            The just cause standard has been seminally defined by Arbitrator Carroll Daugherty, and incorporates the following seven tests:

1.      Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?
2.      Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?
3.      Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
4.      Was the company’s investigation conducted fairly and objectively?
5.      At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?
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?[10]

If one or more of these questions is answered in the negative, then normally the just cause requirement has not been satisfied.[11]

The Applicable Burden of Proof is Clear and Convincing Evidence.

            In a case involving the discharge of an employee, the burden is on the employer to sustain its allegations, and to establish that there was just cause for the termination.  As the leading treatise in the area noted:

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 the 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.[12]

In this context, it is appropriate for an arbitrator to demand clear and convincing evidence.  As Arbitrator Richman explained:

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.[13]

The Union argues that the higher standard of beyond-a-reasonable-doubt should be used. While the Union’s arguments are extremely well written and very persuasive, I have ruled in a number of prior cases that clear-and-convincing is the appropriate standard of proof.[14] While this case would have been decided differently under the beyond-a-reasonable-doubt standard, I feel compelled to maintain consistency with my prior rulings.

Has the Just Cause Standard Been Met?

There is no question that just cause exists to discipline the Grievant if he engaged in the acts he is accused of.  If Mr. Richmond intentionally called in sick when he in fact was not, and then repededly lied about his conduct, he has engaged in both theft and dishonesty.  The question in this case turns entirely on the events of July 15th and what really happened.  If I accept the Unions version of the facts, just cause is clearly lacking to discipline Mr. Richmond in any way, as he was simply helping out a friend and not engaging in deliberate conduct to the detriment of the Employer.  However, if I accept the Employer’s version of the facts Mr. Richmond engaged in action that clearly warranted his discharge including multiple acts of dishonesty and misleading the arbitrator at the hearing.  While this is clearly a close case, I believe that the totality of the facts supports a conclusion that Mr. Richmond intentionally called in sick on July 15th 2005, when he was not, and subsequently fabricated a story to justify his actions.

The Witnesses

                Mr. Starkel

The Union would have me discount the testimony of the Port’s outside investigator, Mr. Starkel, and describes him as a “hired gun.” The Union correctly argues that a decision to believe or disbelieve a witness’s testimony may be based on the bias, interest or prejudice of the witness, as well as the consistency and plausibility of the testimony,[15] and argues that certain aspects of Mr. Starkel’s testimony were “so clearly biased, over-reaching, and self-serving that their value to this proceeding is nominal, if not null.” 

While the Union’s augments are valid, I found the testimony of Mr. Starkel to be truthful, restrained, and compelling.  Specifically, Mr. Starkel seemed to avoid making judgments or coming to conclusions and simply reported what he saw.  The Union posits that Mr. Starkel’s experience working on behalf of the Port spans two years and an estimated five cases investigating workers’ compensation claimants and he has an obvious interest in continuing to receive assignments in the future and that this economic reality clearly colored both his conclusions and his testimony.  Where the Union sees economic interest I see disinterest due to the limited number of cases Mr. Starkel has with the Port as well as his need to maintain a sterling reputation due to his profession. I believed Mr. Starkel.

The decision to hire Mr. Starkel also appears to be rational.  Craig Stewart the Assistant Lead (and Bargaining Unit member) who allegedly reported that Grievant was planning to perform outside work on the next “sunny day” did not testify.  However when a public employer is confronted with a report of an employee working a second job on the employer’s time, it would seem rational to hire someone such as Mr. Starkel.  The Employer had previously used the services of Mr. Starkel so it would appear that this was not a tactic directed specifically at the Grievant.  Mr. Stewart was not an individual inconvenienced by the “anonymous letter” written by Mr. Richmond so it is difficult to find a nexus between the letter and the investigation. 

                Mr. Richmond

Mr. Richmond appears to be a charming and credible individual, yet I did not find his story at the hearing to be credible regarding his activities on July 15th.  Although Grievant called in sick early that morning, between about 8 a.m. and 1 p.m. he was observed and videotaped by Mr. Starkel, a neutral third party with no interest one way or the other in the outcome of the case, unloading and moving wheelbarrow loads of concrete, driving his truck, and going to Lumbermens Building Supply.  On its face Mr. Richmond’s story appears credible and I would have sustained the grievance and reinstated him if he had brought it up with his employer prior to finding out about the video-tape.

Specifically, Grievant could have mentioned his story when he returned to work after July 15th, at the investigative meeting on August 11th, in his conversation on August 11th with Ms. Hettervig, in his conversation on August 12th with Mr. Cave, in his conversation on August 12th with Mr. Medearis, or anytime prior to the suspension meeting on August 17th.  While I would understand the Grievant not recalling the events of July 15, when first confronted, he had several weeks in which to recall an extremely strange and convoluted set of circumstances.  If his story would have surfaced prior to his being confronted with the video-tape, I would have believed him.

Telling are the events of August 11th, when Grievant denied that he had done work at a residence at Newberg that day and said he was sick, although he might have ordered concrete while he was at home that day.  I find it extremely unlikely that Grievant would have forgotten working at the Cordua’s residence unloading concrete on July 15th, due to his friend’s illness. Ms. Hettervig specifically asked Grievant at the meeting if he was telling the truth, and he said he was. On August 11th if Grievant had related his current story, I would have believed him.

Even more troubling is Grievant’s conversation with Ms. Hettervig on August 11th . About 20 minutes after the investigative meeting, as she was walking to her car in the parking lot, Ms. Hettervig received a call on her cell phone from Grievant.  He asked her what was going on, said he didn’t know who could be saying he had been doing some work, and suggested it might have been a disaffected neighbor.  Ms. Hettervig told him that they had information from a neutral third party who was credible, and not someone with a personal vendetta. Ms. Hettervig even suggested that Grievant might want to check his invoices and records to see if they refreshed his memory about what he was doing on July 15th and then let her or Mr. Medearis know.  Grievant never got back to her, and he never acknowledged to her or anyone in the Port’s management that he had done concrete work at the Cordua residence that day, driven his truck, or gone to Lumbermens. 

Further, on August 12th, Grievant had a conversation with Mr. Cave sometime before noon.  In response to Grievant’s question, Mr. Cave told him that the situation was serious and that there was an ongoing investigation.  Grievant said that there were neighbors who don’t like him . . . would turn him in just to get him in trouble, and he wondered whom the witness was.  Mr. Cave repeated that Grievant needed to tell them what he was doing that day, and he suggested that if it was me, “I’d be putting all my info together on where I was that day and where my truck might [have] been.” Mr. Cave also suggested that Grievant talk with Mr. Medearis. 

Later on August 12th, at about 3 p.m., Grievant went to see Mr. Medearis and again asked what the situation was all about.  He told Mr. Medearis that he did not want to lose his job over something he didn’t do.  Mr. Medearis asked him if he had any information to offer.  Grievant responded that he had a couple of neighbors whom he did not get along with and who might be considered credible witnesses.  Once again, Grievant did not acknowledge that on July 15th he had poured concrete or driven his truck with the tank on it and repeated that he had never taken sick leave to do work for his business. Grievant did tell Mr. Medearis that he would go home and check his receipts for work done around that time.  However, no such receipts were ever produced by Grievant. On August 12th if Grievant had related his current story, I would have believed him.

Grievant was given the notice of suspension pending termination at a meeting on August 17th.  He again said something about his neighbor not liking him.  Mr. Medearis told him again that they had an eyewitness.  This meeting would have been another opportunity for Grievant to explain what he had been doing on July 15th. On August 17th if Grievant had related his current story, I would have believed him.

Most troubling to me is not the fact that Grievant moved wheelbarrows full of concrete at a job-site when he called in sick, but the fact that he had ordered the concrete weeks before and telephoned Baker Rock twice from the job site, and subsequently paid for the order. While I might believe Grievant’s story absent the phone and payment records, the fact that he had ordered the concrete rather than Mr. Koskela makes it far more likely that his story is untrue.

Credibility

An unavoidable issue in this case is Grievant’s credibility.  Long experience leads arbitrators to recognize that a grievant’s testimony may in some circumstances be presumed not to be credible, particularly when contradicted by a witness who has nothing at stake in the arbitration:

[A]n accused employee is presumed to have an incentive for not telling the truth and that when his testimony is contradicted by one who has nothing to gain or lose, the latter is to be believed.[16]

More recently, another arbitrator explained this unfortunate tendency of human behavior:

Certainly an employee charged with misconduct leading to severe discipline or discharge has an interest in avoiding the responsibility and the blame and there is a recognized tendency on the part of such individual to misstate facts and circumstances.[17]

Grievant’s repeated assertion that he was sick all day on July 15th and unable to work is simply not credible.  He was observed and videotaped by Mr. Starkel doing heavy physical work on the morning of July 15th, unloading concrete from a truck and moving wheelbarrows of concrete while showing no signs of physical discomfort. More problematic is his sudden recollection of his current story after being requested on numerous occasions to explain is whereabouts on the day in question. The events of July 15th, are unique enough that it is implausible that Grievant did not remember them when this matter surfaced, nor on August 11th, August 12th, or August 17th, when his story differed. If Mr. Richmond had told his current story in July or early August I would have believed him. However, the weight of evidence supports a conclusion that his current story was made-up only after he realized that he had been videotaped working on the project.

The Penalty

In the instant case the Employer has chosen to terminate Mr. Richmond. As stated by Elkouri:

Where the Agreement fails to deal with the matter, the right of the arbitrator to change or modify penalties found to be improper or too severe may be deemed to be inherent in the arbitrator’s power to decide the sufficiency of cause, as elaborated by Arbitrator Harry H. Platt: In many disciplinary cases, the reasonableness of the penalty imposed on an employee rather than the existence of proper cause for disciplining him is the question an arbitrator must decide…. In disciplinary cases generally, therefore, most arbitrators exercise the right to change or modify a penalty if it is found to be improper or too severe, under all the circumstances of the situation.  This right is deemed to be inherent in the arbitrator’s power to discipline and in his authority to finally settle and adjust the dispute before him.[18]

The Supreme Court has long agreed with the statement of Elkouri above. As stated in Paperworkers v. Misco:

Normally, an arbitrator is authorized to disagree with the sanction imposed for employee misconduct. In Enterprise Wheel, for example, the arbitrator reduced the discipline from discharge to a 10-day suspension. The Court of Appeals refused to enforce the award, but we reversed, explaining that though the arbitrator’s decision must draw its essence from the agreement, he "is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies." [19]

Where an employer seeks to impose a penalty against an employee, the penalty must be consistent with other penalties imposed for similar offenses, under similar circumstances.  Where an employer imposes different disciplinary treatment for similar offenses, the arbitrator must examine whether the employer had a valid reason for treating the employees differently.  Where disciplinary distinctions cannot be accounted for, just cause is lacking.[20]    In this case the Union provided evidence to show that the penalty imposed was greater than that imposed previously in the case of an employee who fell asleep at work.  The present case is distinguishable and involves an employee who appears to have consciously chosen to falsify his time records in order to work at his outside business.  More problematic is the web of deception that Mr. Richmond has apparently woven to justify his actions.  It is axiomatic that to support my finding, I have had to find that the Grievant was not truthful at his hearing; it would be irresponsible of me to place such an individual back at work.

This is truly a close case:  both parties provided well-written briefs with a number of cases on point cited to support their positions.   The Union was correct in its analysis of the contract provisions in question and the weight of arbitral authority.  Unfortunately for Mr. Richmond, this case turns on a number of factual findings that differentiate his situation from past cases. This case is clearly distinguishable from Alameda-Contra Costa Transit District[21] in which the employer was aware that the grievant was registered as a longshoreman and had an unsatisfactory attendance record.  Based upon these facts alone, the employer concluded that the grievant was working as a longshoreman when he was absent from work and discharged him for violation of a rule against working for outside businesses that interfered with the performance of job duties.  Here the weight of evidence shows that the Grievant was working and the finding is not based upon mere speculation. While the Union may be correct in its argument that Mr. Richmond would not have violated the Employer’s policy if he was only “helping” a friend, the totality of the evidence leads to a finding that he was in fact working. 

The Union also argues that the level of discipline in this matter should be controlled by the language of the Collective Bargaining Agreement which states:

A physician's certificate will not be automatically required as a precondition of sick leave benefits. However, the employer reserves the right to require a physician's certificate in the case of an extended illness; or, when the employer has reason to believe that an employee is abusing sick leave benefits, future absences may require a physician's certificate as a precondition to sick leave benefits.

However, the language above does not seem to deal with the present situation in which an employee has been found to be abusing sick time, but only deals with the situation in which “the employer has reason to believe that an employee is abusing sick leave benefits” which is based upon mere speculation and cannot lead to discipline.

It is true that Grievant never made any secret about Redheads, and the existence of this business was well known both to co-workers and Port management.  The problem in this case is not the business itself, but the manner in which the Grievant chose to conduct it by abusing sick leave.  This case does not involve an employee who made a mistake or simply fell asleep.  This is an employee who consciously decided to take advantage of his employer long before the events in question (as can be found from the Baker Rock order and the rumors that he would be taking sick leave on the next nice day).  Honesty is an absolute necessity for the relationship between employer and employee.  As one arbitrator explained:

Dishonesty destroys the trust which is essential to the relationship between an employer and an employee. . . .  [I]t is so obvious that dishonesty constitutes a dischargeable offense that no employee can claim ignorance of the rule or the consequences, even absent a published rule or policy.[22]

In the instant case, despite the excellent lawyering of the Union’s Counsel, I have found that clear and convincing evidence exists that the Grievant was dishonest on July 15, 2005, and on numerous occasions afterward (including the arbitration hearing).  Accordingly, I have no choice but to sustain the discharge.

AWARD

The grievance is denied. 

All fees and expenses charged by the Arbitrator shall be shared equally by both parties as provided for in Section 22.6, of the parties Collective Bargaining Agreement.    

                                                                        ___________________________

                                                                        David Gaba, Arbitrator                       

                                                                        July 10, 2006
                                                                        Seattle, Washington



[1] Employer Exhibit 13

[2]
Tr. at 327.

[3]At the arbitration hearing, Grievant identified the person whom Mr. Starkel had observed as David Newland, who works part time for Grievant’s business.

[4] Joint Exhibit 3.

[5]
Joint Exhibit 4.

[6]
Rabanco Recycling, 118 LA 1411 (2003).

[7] Rabanco Recycling, 118 LA 1411 (2003), citing, RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961). See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947).

[8] Fluor Hanford, 122 LA 65 (2006).

[9]
State of Alaska, 114 LA 1305 (2000).

[10]
Enterprise Wire Co., 46 LA 359, 363-4 (1966).

[11]
Enterprise Wire Co., 46 LA 359, 362 (1966).

[12]
Elkouri and Elkouri, How Arbitration Works 905 (5th Ed. 1987).

[13]
General Telephone Co. of California, 73 LA 531, 533 (Richman, 1979).  See also:   Atlantic Southeast Airlines, Inc., 101 LA 515 (Nolan, 1993) (using clear and convincing standard); J. R. Simplot Co., 103 LA 865 (Tilbury, 1994) (same); Collins Food International, Inc., 77 LA 483, 484-485 (Richman, 1981) (same), Fluor Hanford, 122 LA 65 (2006) (same).  The Employer bears this burden of proof both with respect to proving the alleged violation, and with respect to demonstrating the appropriateness of the penalty.  Pepsi-Cola Co., 104 LA 1141 (Hockenberry, 1995).

[14]
See, Rabanco Recycling, 118 LA 1411 (2003), Fluor Hanford, 122 LA 65 (2006).

[15]
Associated Grocers of Alabama, Inc., 76 LA 1245 (1981); Parsons Contractors, 91 LA 73 (1988). 

[16]
United Parcel Service, 66-2 ARB & 8703 (Dolson, 1966) quoting Stessin, Employee Discipline 44 (1960). 

[17]
Consumer Plastics Corp., 83 LA 870, 875 (Talent, 1984), quoting Brooks Foundry Inc., 75 LA 642, 643 (Daniel, 1980).

[18]
Elkouri & Elkouri, How Arbitration Works (6th Ed., 2003), See also, Arbitrator Kossoff in 76 LA 300, 308; Volz in 50 LA 600, 603; Gilbert in 45 LA 580, 584; Dworkin in 36 LA 124, 128.  Also see Amoco Oil. V. Oil, Chem. & Atomic Workers Local 7-1, 548 F.2d 1288, 94 LRRM 2518, 2521, 2524-25 (7th Cir., 1977).  For discussion of other court cases on this aspect, see Fogel, “Court Review of Discharge Arbitration Awards,” 37 Arb. J. No. 2, pp. 22, 32 (1982). 

[19] Paperworkers v. Misco 363 U.S., at 597 (emphasis added by the court).[19]


20] Alan Wood Steel Co., 21 LA 843, 849 (Short, 1954) (discharge for fighting not appropriate where other employees guilty of fighting received only suspensions).  See also B-Line Sys., 94 LA 1047 (Fowler, 1990).
[21] Alameda-Contra Costa Transit Dist., 76 LA 770 (Koven, 1981).

[22]
Huron Lime Co., 106 LA 997, (Bowers, 1996) (internal quotation marks omitted). 

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