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Title: State of Hawaii and United Public Workers
Date: 
July 13, 2006
Arbitrator: Michael Anthony Marr
Citation: 2006 NAC 142

 

LAW OFFICES OF MICHAEL ANTHONY MARR
MICHAEL ANTHONY MARR #2580
ATTORNEY AT LAW
111 NORTH KING STREET
SUITE #314
HONOLULU, HAWAII 96817
TELEPHONE: (808) 599-5258
E-MAIL: MmarrADR@aol.com

ARBITRATOR

BEFORE IMPARTIAL ARBITRATOR MICHAEL ANTHONY MARR

STATE OF HAWAII

In the Matter of the Arbitration Between

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,

                                    Union,

            and

STATE OF HAWAII, DEPARTMENT DEPARTMENT OF PUBLIC SAFETY, HAWAII COMMUNITIY CORRECTIONAL CENTER,     

                                    Employer.

_______________________________________________________________  

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GRIEVANCE OF KIRBY IMAI

DECISION AND AWARD;

HEARING DATES: SEPTEMBER 28,
2005 (Honolulu), SEPTEMBER 29,
2005 (Hilo) and APRIL 28, 2006 (Hilo).

 

                                                   

DECISION AND AWARD

This Arbitrator was informed that he was mutually selected by the parties concerning the above-referenced labor grievance on March 15, 2005. A pre-hearing arbitration conference was held via telephone on July 14, 2005.

The arbitration hearing concerning above-referenced matter was heard before this Arbitrator on September 28 and 29, 2005 and on April 28, 2006. (See transcript of proceedings, hereinafter sometimes referred to as “Tr.” or by the witness’s last name followed by the transcript page number).  Both parties were represented by intelligent, resourceful, efficient, competent, and dedicated counsel at the arbitration hearing. The United Public Workers, AFSCME, Local 646, AFL-CIO, (hereinafter sometimes referred to as “Union”) and Kirby Imai (hereinafter sometimes referred to as “Grievant”) were both represented by REBECCA L. COVERT, Esq. The Employer, State of Hawaii, Department of Public Safety, Hawaii Community Correctional Center (hereinafter sometimes referred to as “Employer”), was represented by Deputy Attorney General NELSON Y. NABETA. Testimony from four (4) witnesses was received at the arbitration hearing. The Grievant elected not to testify at the arbitration hearing. The Union introduced thirteen (13) exhibits into evidence and the Employer introduced eight (8) exhibits into evidence. In addition,  one (1) joint exhibit was introduced into evidence by the parties. The joint exhibit constituted the entire collective bargaining agreement between the parties. Full opportunity was given to the parties to present evidence, examine and cross-examine witnesses and to present oral argument. The parties agreed that they would submit their post hearing briefs on or before June 21, 2006. They also agreed that this Arbitrator’s decision would be due on or before July 20, 2006.

This Arbitrator has reviewed the testimony and evidence presented during  the arbitration hearing on this matter as well as reviewed the extremely well-written and convincing briefs submitted by counsel on behalf of their clients. Several arguments have been made by Counsel. This Arbitrator, as a general rule, will not comment on matters that he believes are superfluous, redundant, or rendered moot by his decision. This Arbitrator shall only address those issues that are relevant to his decision.   

I.  CONCISE STATEMENT OF EMPLOYER’S POSITION.

The Employer maintains that it has not violated the Collective Bargaining Agreement (hereinafter sometimes referred to as “CBA”) by placing Grievant on leave without pay for a period of 30 days, by letter from the Employer to the Grievant, dated February 7, 2005. The Employer also maintains that its actions do not constitute discipline under Sections 11 and 11A of the CBA. Lastly, the Employer asserts that it has not violated any of the CBA sections referred to the Grievant’s “Step One Grievance Form.”

II. CONCISE STATEMENT OF UNION’S POSITION.

The Union asserts that the Employer’s actions constitute discipline under both Sections 11 and 11A of the CBA and therefore the Employer must show “just and proper cause” for the action that it has taken against the Grievant. The Union further asserts on behalf of the Grievant that the Employer has violated the CBA by placing the Grievant on leave without pay for 30 days as per the letter from the Employer to the Grievant, dated February 7, 2005, since the Grievant’s presence at the workplace would not have been detrimental to the conduct of the investigation of Grievant or the operations of the Hawaii Community Correctional Center. Lastly, the Union argues that the Employer has also violated sections 1, 14, 27, and 58 of the CBA as well as the Hawaii Revised Statutes by taking action against the Grievant.  

 III. STIPULATED ISSUES AND ARBITRAL ORDERS.

1. The parties stipulated that this Arbitrator had jurisdiction to hear this grievance. (Tr. at 4).

2. The parties agreed that the issues concerning this grievance were arbitrable. (Tr. at 4-5).

3. The parties requested a pre-hearing order from this Arbitrator as to which party would begin with the presentation of evidence since they were unable to come to an agreement on this issue. This Arbitrator ordered the Employer to begin with the presentation of evidence since it was this Arbitrator’s opinion that (1) the evidence concerning the Employer’s implementation of Section11A of the CBA would be in the possession of the Employer, (2) the Employer took the initial action that led to the grievance, (3) Section 11A, which is an investigation provision can result in disciplinary action and (4) the Union alleged that the Employer’s actions against the Grievant constituted disciplinary action. (Tr. at 14-15).

4.  The parties agreed that the standard of proof would be by a preponderance of the evidence. (Tr. at 10).

5.  The parties were unable to agree on how to phrase the issue(s) for this Arbitration. This Arbitrator ordered that the issues would be as follows:

a. Whether the Department of Public Safety, State of Hawaii (Employer) violated, misapplied, or misinterpreted Section 11 of the Unit 1 Collective Bargaining Agreement by taking action against Grievant, as set forth in the Employer’s letter to the Grievant, dated February 7, 2005. (Tr. at 48-9).

b. Whether the Employer violated the CBA, as alleged in the Union’s Step 1 Grievance form, dated February 23, 2005. (Tr. at 49; Employer’s Exhibit 6).

c. If either (a) or (b) is proven by a preponderance of the evidence, what is the appropriate remedy? (Tr. at 50).

IV.  BACKGROUND.

On February 7, 2005 the Grievant was arrested for allegedly violating the Hawaii Revised Statutes, Section 709-906-86, Abuse of Household Member. (Employer’s Exhibit 3). The OBTS/CCH Arrest Report provides the following synopsis:

The above named Def. Was A/C for the above offense after he was responsible for approaching a car which the victim was a passenger within then opening the door and striking the victim once on her face and twice on the right thigh with a closed fist, he then dragged the victim out of the vehicle. Victim sustained injury to her right foot, right hip area, and right mouth area, victim also sustained abrasions to her knee and right wrist. Suspect stated that he wanted to talk to a lawyer therefore no statement was obtained. ARRESTED AND CHARGED.

As a result of the Grievant’s arrest, the Grievant received a letter, dated February 7, 2005 from Nathalie Kodama (hereinafter sometimes referred to herein as (“Ms. Kodama”), the Food Service Operator for the Department of Public Safety. (Employer’s Exhibit 4). The letter provides in relevant part as follows:

Dear Mr. Imai:

This is to inform you that you will be on “Leave Without Pay” in accordance with Section 11A.01 “Investigation” of the United Public Workers Union Agreement, pending the outcome of an investigation being conducted. Your leave is effective as of February 7, 2005 through March 8, 2005 for a period of 30 calendar days.

You are to turn in all facility issued keys and identification card. Your entry to the Hawaii Community Correctional Center is denied until further notice. Should you have any questions or concerns, you are to contact Mrs. Nathalie Kodama, FSO at 587-2553 from Monday through Friday during normal working hours.

This action is being taken due to an alleged possible violation of the Department’s Standard of Conduct for the incident, (Abuse Family 85 charge 709-906-85); arrest report dated February 7, 2005.

If you feel that his action is taken without proper cause, you have the right to file a grievance in accordance with established procedures.

Sincerely,

Nathalie Kodama, FSO

On February 7, 2005, as a result of the Grievant’s arrest, Ms. Kodama via an inter-office memorandum, to Richard T. Bissen, Jr. Interim Director requested a formal investigation. (Employer’s Exhibit 5/Union’s Exhibit 4). The memorandum states in relevant part as follows:

I am requesting Internal Affairs to conduct an investigation on Mr. Kirby S. Imai, who is employed as a Cook II at the Hawaii Community Correctional Center Food Service Unit. On 2/7/05 Mr. Imai was arrested for “709-906-85 Abuse Family – 85”. Mr. Imai may be in violation of the department’s Standards of Conduct, Professional Conduct and Responsibilities.

I have attached the HPD report that was forwarded to my office by the Hawaii Intake Service Center.

The Grievant subsequently stayed on leave pending investigation without pay for 30 days in compliance with Ms. Kodama’s letter of February 7, 2005. During this time, the Grievant evidently sought the assistance of United Public Worker Business Agent Alton Nosaka.

V.  THE STEP 1 GRIEVANCE FORM.

On February 23, 2005, UPW Business Agent Alton Nosaka filed a Grievance Form Step 1 with Public Safety Department Director alleging that the  Employer had violated sections 1, 11, 14, 27, 58 and of the CBA and the Hawaii Revised Statutes. (Employer’s Exhibit 6). The Step 1 Grievance form provides in relevant part as follows:

This grievance is filed on behalf of Kirby S. Imai, hereafter called Kirby, a Cook II, BC-08 Step A, with a basic rate of pay of $2,600/mon., Social Security No. 575-78-9818, employed at the Hawaii Community Correction Center (HCCC), Department of Public Safety, State of Hawaii.

On February 8, 2005, Kirby reported for work and before his shift was over the Supervisor handed him a letter stating he will be put on leave without pay for thirty (30) days. The Employer alleged that Kirby’s present at the workplace is alleged to be detrimental to the conduct of the investigation or operations of the workplace, but the incident that occurred was not job related and no investigation is being done at the facility Kirby is employed at.

The Employer, through Director of Public Safety Richard Bissen Jr., has violated, the above-cited sections of the contract when the Department and failed to have consultation and/or mutual agreement with the Union prior to adopting and/or revising a policy or sections of the CBA.                          

Remedy Sought: The Employer shall rescind the policy, make Kirby whole, and reinstate Kirby immediately, prevent future recurring violations. Other appropriate relief (from the Arbitrator).

                         Richard T. Bissen, Jr., Interim Director of the Department of Public Safety, by letter dated April 1, 2005 to United Public Worker Business Agent Alton Nosaka, denied the Step 1 Grievance, specifically citing Section 11.A.01 of the Unit 1 CBA as authority for the DPS action. (Employer’s Exhibit 7/Union’s Exhibit 2). The Union responded by requesting this Arbitration hearing.

VI.  RELEVANT CONTRACTUAL PROVISIONS.

As noted above, the Grievant alleged that the Employer violated sections 1, 11, 14, 27 and 58 of the CBA. These CBA provisions provide as follows:

SECTION 1. RECOGNITION.

1.01   EXCLUSIVE BARGAINING REPRESENTATIVE.

 The Employer recognizes the Union as the exclusive bargaining representative for those public Employees in the Blue Collar Non-Supervisory Unit.

1.02   NEGOTIATE AND ADMINISTER.

The Employer and the Union recognize the rights and obligations of the parties to negotiate wages, hours and other terms and conditions of employment and to administer this Agreement on behalf of covered Employees, and that such administration shall apply equally to Employees in the bargaining unit without regard to membership or non-membership in the Union.

1.03   MEMBERSHIP OR NON-MEMBERSHIP.

The Employer and the Union will not interfere with the right of an Employee to join or refrain from joining the Union. The Employer will make known to new Employees that they will secure no advantage or more favorable consideration or any form of privilege because of membership or non-membership in the Union.

1.04   FURNISH AGREEMENT.

The Employer shall furnish a copy of this Agreement to personnel not within the bargaining unit but charged with the administration of this Agreement.

1.05   CONSULT OR MUTUAL CONSENT.

The Employer shall consult the Union when formulating and implementing personnel policies, practices and any matter affecting working conditions. No changes in wages, hours and other conditions of work contained herein may be made except by mutual consent.

1.06   RELEVANT PERSONNEL INFORMATION.

The Employer will make available to the Union, upon request, relevant   personnel information needed to chart accurately an individual Employee’s personnel transactions.

1.07   SCATTER GRAM.

The Employer shall provide to the Union a scatter gram reflecting distribution of  the salary schedule as of July 15 of each year. The scatter gram will show the number of Employees in each pay grade and basic rate of pay of the salary schedule.

SECTION 11. DISCIPLINE.

11.01   PROCESS.

11.01a   A regular Employee shall be subject to discipline by the Employer for  just and proper cause.

11.01b  An Employee who is disciplined, and the Union, shall be furnished the specific reason(s) for the discipline in writing on or before the effective date of the discipline except where the discipline is in the form of an oral warning or reprimand. However, if the oral warning or reprimand is documented or recorded for future use by the Employer to determine future discipline the Employee who is disciplined shall be furnished the specific reason(s) for the oral warning or reprimand in writing.

11.01c  When an Employee is orally warned or reprimanded for disciplinary purposes, it shall be done discreetly to avoid embarrassment to the employee.

11.01d.  In the event the need to impose discipline other than oral warning or  reprimand is immediate, the Employee and the Union shall be furnished the reason(s) in writing within 48 hours after the disciplinary action is taken.

11.01e.  Written notifications of disciplinary actions involving suspension and discharge shall include the following: 

11.01e.1.  Effective dates of the penalties to be imposed and

11.01e.2.  Details of the specific reasons.

11.01.f  An Employee who is discharged shall be granted an opportunity to respond to the charges prior to the effective date of the discharge.

11.02   MEETING.

11.02a.  In the event that an Employee is scheduled in advance by the Employer to meet to answer questions, the Employee shall be informed of the purpose of the meeting.

11.02b.  When the subject of the meeting is on a job related incident and the Employee reasonably feels that disciplinary action may result from the meeting, the Employee may request that a Union representative or steward be present in the meeting.

11.02c.  The Employee shall be credited with work time in the event the meeting is held on non-work hours.

SECTION 11A. LEAVE PENDING INVESTIGATION OF CHARGES.

11A.01  INVESTIGATION.

When an investigation of charges against an Employee is pending and the Employee’s presence at the workplace is deemed to be detrimental to the conduct of the investigation or the operations of the workplace, the Employer may place the Employee on a leave of absence without pay pending the investigation as follows:

11A.01a.  The Employee, who is placed on a leave of absence without pay pending investigation, and the Union shall be given written notice within forty-eight (48) hours after the action is taken.

11A.01b.  The written notice shall include the specific reason(s) for placing the Employee on leave of absence without pay pending investigation, available facts supporting the reason(s), and the effective date of the leave of absence without pay pending investigation.

11.A01c.  The leave of absence without pay pending investigation shall be for the length of time necessary to conclude the investigation, but not to exceed thirty (30) days. In the event the investigation exceeds thirty (30) days, the Employer may exercise its options as provided in Section 11A.02.

11.A01d.  After the investigation ends, the Employee who has been placed on leave without pay pending investigation shall be reinstated without loss of pay and all rights and benefits will be restored as though the Employee had not been on leave of absence without pay pending investigation if the Employee is cleared by the investigation or the charge is dropped or not substantiated.

11.A01e.  In the event the Employee is suspended the Employer may consider applying any portion of the leave of absence without pay pending investigation towards fulfilling, in whole or in part, the suspension.

11.A01f.  In the event the Employee is discharged, the Employee shall not be granted any back pay or restored with any rights and benefits for the leave of absence without pay pending investigation. (Underscoring Provided).

11.A.02  OPTIONS. 

11.A.02a.  Whenever an investigation of charges against an Employee is pending, the Employer shall have the option to:

11.A.02a.1  Retain the Employee at work,

11.A.02.a.2  Place the Employee on leave of absence with pay,

11.A.02.a.3  Return the Employee to work from the leave without pay pending investigation, or

11.A.02a.4  Reassign the Employee to a temporary workplace in the same or different position.

11A.02b.  The decision of the Employer shall be for the length of time necessary to conclude the investigation.

SECTION 14.  PRIOR RIGHTS, BENEFITS AND PERQUISITES.

14.01   Nothing in this Agreement shall be construed as abridging, amending or   waiving any rights, benefits or perquisites presently covered by the constitutions, statutes, or rules and regulations that Employees have enjoyed heretofore, except as expressly superseded this Agreement.

14.01a.  The Employer retains the right to modify or terminate the furnishing of perquisites after consulting with the Union prior to modifying or terminating the perquisites.

14.01b.  When the Employer takes action and the Employee or the Union believes that the reason(s) for the change is unjust the disagreement may be processed through Section 15.

SECTION 27. SHOW-UP TIME AND REPORTING PAY.

27.01  An Employee who reports to work but who is unable to perform normal work assignments because of inclement weather, breakdown or unavailability of equipment or other conditions beyond the Employee’s control, shall be credited with a full work day, provided the Employee may be assigned new work as determined by the Employer.

SECTION 58.  BILL OF RIGHTS.

58.01  STATEMENT.          

No Employee shall be required to sign a statement of complaint filed against the Employee.

58.02  INVESTIGATION. 

58.02 a.  If the Employer pursues an investigation based on a complaint, the Employee shall be advised of the seriousness of the complaint.

58.02 b.  The Employee will be informed of the complaint, and will be afforded an opportunity to respond and/or refute the complaint.

58.03    Before making a final decision, the Employer shall review and consider all available evidence, data, and factors supporting the employee, whether or not the Employee provides facts in defense of the complaint.

58.05   In the event the complaint is not substantiated or the Employee is not disciplined, the complaint and all relevant information shall be destroyed, provided that the Employer may retain a summary of such information outside of the official personnel file whenever such complaint may result in future liability to the Employer, including but not limited to, discrimination complaints. 

VII.  RELEVANT PORTIONS OF THE STANDARDS OF CONDUCT.

The cover page of the Standards of Conduct provides as follows:

Pursuant to the authority vested in the Director, Department of Corrections, and his designated subordinates, by Hawaii Revised Statutes, Section 26-38, the following Standards of Conduct are published for the control, disposition, and government of the employees of the Department of Corrections.

These Standards of Conduct are effective August 1, 1988.

All previously enacted rules or policies which apply to the control, disposition, and government of the employees of the Department of Corrections, and which are in conflict with the provisions of these standards, are hereby rescinded. This action does not apply to the “Inmate Handbook” published under Title 17, Administrative Rules of the Corrections Division.

The Preamble to the Standards of Conduct contains the Code of Ethics.

It provides as follows:

Correctional duties are an honorable calling. Service in this field demands a professional rather than an occupational philosophy. Personal honor, a desire for professional status, and devotion to duty above self are the motives which impel a Corrections Officer to discharge his responsibility in full measure.

An ethical Corrections Officer’s life is one of self-sacrificing service to a high ideal, based upon his recognition of the responsibilities entrusted to him and the belief that Corrections is an honorable vocation. He fully accepts his responsibilities to defend the right, to protect the safety and security of the public through diligent discharge of his duties, and to uphold the law in his public and private living. He accepts the obligation to report facts honestly and to consider all information coming to his knowledge by virtue of his sacred trust to be used for official purposes only. He gives his loyal and faithful attention to execution of his duties, and he performs the functions of his office without fear, favor, or prejudice. He does not engage in unlawful or improper practices.

He does not disclose to unauthorized persons any information concerning matters which might be prejudicial to the interests of the State or the Department.

He does not seek to benefit personally by any confidential information which has come to him by virtue of his assignment. He is respectful and courteous to all persons. He is faithful and loyal to his organization, constantly striving to cooperate with and to promote better relations with all other agencies and their representatives in matters of mutual interest and obligation.

Rigid adherence to the principles set out above is mandatory for anyone employed by the Department of Corrections. Acceptance of these principles should not be perfunctory; it should be weighed carefully.

Citizens are quick to criticize any misconduct of employees of the Department; the community places a trust in our employees and expects them to conduct themselves in such a manner as to merit this trust. Employees should be proud to be a part of a profession that demands so much.

There must be a moral philosophy and strong appreciation of the need to serve in any profession. Unwavering adherence to such a philosophy will earn the respect and support of the public.

All employees of the Department of Public Safety, including the Grievant are subject to the Standards of Conduct. (Nakashima at 71; Kodama at 194). There apparently is no difference between an Adult Corrections Officer (“ACO”) and a cook. (Kodama at 195; Granger at 331; Employer’s Exhibit 2).   

Grievant was placed on leave without pay during an investigation into his arrest for an abuse of a household member. The Standards of Conduct which are applicable to Grievant are as follows:

A.  Article II, Command, item IV: These rules shall regulate employees’ conduct while on duty and/or on the employer’s work sites as well as when it affects the interest of the employer.

B.     Article II, Conduct, item IIA: All employees shall conduct their private and professional lives in such a manner as to avoid bring the Department into disrepute.

C.    Article III, Section II, Professional Conduct and Responsibilities, I: Obedience to Laws and Regulations: Corrections Officers and employees shall observe and obey all laws, Administrative Rules, Policies and Procedures, and the Standards of Conduct of the Department.

D.    Article III, Section III, Rules, IIIB9:  Criminal Acts. Employees shall not commit a criminal act, on or off duty, when such act would constitute a felony, misdemeanor, or when such act would by it nature, be inconsistent with the employees fitness or capability of performing his duties.

VIII.  THE GRIEVANT AND HIS PLACE OF EMPLOYMENT.

Grievant is employed by the Department of Public Safety, Hawaii Community Correctional Facility (HCCC). (Nakashima at 71). Grievant has a very dysfunctional relationship with “Jane Doe.”[1]  Grievant has been accused of physically assaulting Jane Doe three times. (Nakashima at 86).  Jane Doe has disrupted operations at Hawaii Community Correctional Facility several times. (Kodama at 231; Granger at 373, 393).  There were times when Jane Doe would come over to the facility and engage in arguments with the Grievant. (Kodama at 119-21). These arguments evidently occurred at the Hawaii Community Correctional Facility repeatedly. (Kodama at 122; Granger at 295-96).

The Hawaii Community Correctional Facility consists of the housing units  Punahele, Komohana, and Waianuenue in Hilo and the Hale Nani women’s housing unit located in the Panaea district. (Kodama at 262; Granger at 328-29, 340, and 342). Since 1988 the food to feed the inmates at the various HCCC facilities is prepared at the main kitchen located at Hale Nani. (Kodama at 195 and 262; Granger at 328-29).

The kitchen at Hale Nani prepares breakfast for an average of 350-375 inmates at Punahele, Komohana, Waianuenue, the Women’s facility at Hale Nani, and the Kona courts. (Kodama at 262; Granger at 344). Breakfast is the main meal prepared for inmates housed at Hale Nani who are mostly on work furlough and therefore out during the day. (Kodama at 195; Granger at 328-29 and 342).

Inmates housed at Hale Nani eat their meals in the cafeteria which is next to the Hale Nani kitchen. (Kodama at 199). Inmates have 20 inmates to eat their meal. (Granger at 349). The inmates walk adjacent to a counter on the cafeteria side to get their food. ( Kodama at 199 and 344). The cooks stay on the kitchen side of the counter (Kodama at 199). One adult correctional officer (“ACO”) is posted in the dining room when meals are served. (Granger at 344). Ms. Granger testified that ACOs are present off and on during non-meal times or when the ACOs are taking their breaks. (Granger at 348). By contrast, Ms. Kodama testified that ACO’s rarely come to the cafeteria/kitchen area (Kodama at 282, 213-14), but she did agree that she relies on her food service managers to keep her informed at any given facility. (Kodama at 203).

The meals for the rest of the inmates housed at the various HCCC housing units are transported to the units. (Kodama at 198, 262; Granger at 341-42, 381-82). Typically, the kitchen helpers transport the meals to the housing units at HCCC or Kona courts and walk the meals over to the women’s facility within the Hale Nani complex. (Kodama at 198 and 262; Granger at 341-42 and 381-82).

The inmates at the HCCC facility serve meals from a work line, supervised by whoever delivered the meals and supervised by an ACO near by and in the control room. (Granger at 342-44).

The Hale Nani kitchen employs a Food Services Manager, one Cook III, two cook II, and 1-2 kitchen helpers. (Kodama at 189; Granger at 339-40). Hale Nani uses approximately 5-7 of the Hale Nani inmates per shift to wash the dishes and pots and pans and to clean, supervised by the cooks. (Kodama at 196, 200; Granger at 336-37 and 350). Although inmates can load the trucks with meals for transportation to HCCC they cannot make deliveries. (Kodama at 201). The cooks and kitchen help take the food to HCCC. (Kodama at 201).

Hale Nani runs two shifts, early and late. (Kodama at 261). In 2005 the early shift started at 3:00 a.m. with pre-shift from 3-4 a.m. to prepare the meals for the Kona Court and the ACO’s breakfast. (Granger at 338). The early shift ends at 12:00 noon. (Granger at 337). The cook III starts at around 4:00 a.m. and the two kitchen helpers start at 4:30 a.m. (Granger at 338). The Food Service Manager (Ms. Granger) works part of both shifts and starts sometime between the start times of the early and beginning of the late shift. (Kodama at 262).    

Grievant is employed as a Cook II at the Food Service Unit of the Hale Nani facility in Hilo. (Nakashima at 71; Granger at 328-29). He has worked at the Hale Nani kitchen unit since at least 1998. (Granger at 330).  His duties include supervising the kitchen helper and the inmates working in the kitchen. (Kodama at 202; Granger at 330). Grievant’s supervisors include a Cook III and Ms. Granger. (Kodama at 202-03). Grievant would help supervise 5-7 inmates during his 4 a.m. to 12 noon shift. (Granger at 350).

Grievant’s immediate supervisor at the HCCC is Ms. Mary Granger. (Kodama at 203). Ms. Granger is employed as an Institution Food Service Manager II. (Kodama at 203; Granger at 328). She has been the food service manager at the Hale Nani Facility since it first opened in 1998. (Granger at 329). Her duties include “ordering the food, just basically everything that has to do with operations of food service.” (Granger at 329).

Ms. Granger’s immediate supervisor is Ms. Nathalie Kodoma. (Granger at 375). Ms. Kodama is the “Food Service Program Manager” for the Department of Public Safety. (Kodama at 188). She oversees the food service for all the correctional facilities in the State of Hawaii. (Kodama at 188-89). She received her master’s degree in public administration in 1994 and associates degrees in food service management and dietary management in 1987. (Kodama at 189-90). Prior to working for the Department of Public Safety, she was employed as a food service manager for the Department of Health. (Kodama at 190-91). She began her employment with the Department of Public Safety in 1994 as the Food Service Program Manager and as of the date of her testimony, September 29, 2005, continued in this same position. 

Ms. Kodama’s division supervisor is Miles Murakami. (Kodama at 246). They both work at 919 Ala Moana Boulevard, Honolulu, Hawaii. (Kodama at 247).                  

IX.  WHAT EFFECT DOES GRIEVANT’S ARREST ON ON FEBRUARY 7, 2005 HAVE ON THIS GRIEVANCE?

A fundamental principle of labor and employment law is that an employer is not permitted to use its disciplinary authority to control the lives and behavior of its employees outside of their employment relationship. The employee’s behavior outside of the workplace after working hours is generally of no interest to the employer. In addition, provided the employee performs no misconduct at the workplace or during his working hours he should not be subject to disciplinary penalty.

However, a pattern that appears to have developed in the area of labor law and industrial relations permits an employer to discipline an employee for off-duty misconduct if there is a “workplace nexus” between an employee’s misbehavior and the employer.  In other words, there must be some logical relationship between the misbehavior of the employee and the employer’s interests that justifies the employer’s resolution to take disciplinary action against the employee. As Arbitrator Louis C. Kesselman stated:

                        The Arbitrator finds no basis in the contract or in American industrial
                        practice to justify a discharge for misconduct away from the place of work unless:
                        (1)  behavior harms Company’s reputation or product;
                        (2)  behavior renders the employee unable to perform his duties or appearat work, in which case the discharge would be for inefficiency or
                        excessive absenteeism;
                        (3) behavior leads to refusal, reluctance or inability of other employees to with him.

W.E. Caldwell Co., 28 LA 434, 436-37 (Kessleman, 1957).

Although arbitrators apply the “workplace nexus” test in both private and public sector cases, public sector employees are usually held to a higher standard of behavior. Both arbitrators and courts have protected the government employer’s reputation and mission, citing the public trust.

Lawful arrests of employees fall into a unique category of off-duty misconduct. As stated in Elkouri and Elkouri, How Arbitration Works, 5th Edition, at  pages 900-901:

Where an employee, while on the job, engages in conduct that leads to an arrest, management has been permitted to take action against the                                 employee without waiting for court determination of guilt. The general rule  followed by arbitrators is that an employer has just cause to suspend an employee for off-duty conduct that leads to an arrest, and to convert the suspension to discharge following the employee’s conviction, where the employer makes its own good-faith investigation into the alleged misconduct, the charges give rise to a legitimate concern for the safety of employees or property, and the employer determines that the misconduct disqualifies the employee from directly rendering his or her services, impairs his or her usefulness to the employer, or is likely to have an adverse effect upon the employer’s business.

Employer actions against public employees who have violated the Standards of Conduct after being arrested have been upheld by Hawaii Arbitrators. See In the Matter of the Arbitration Between State of Hawaii, Department of Public Safety, Maui Community Correctional Center and United Public Workers, Afscme, Local 646, Afl-Cio, (Grievance of Aliksa) (Tsukiymama, 1997) and  In the Matter of the Arbitration Between the United Public Workers, Department of Public Safety, (Grievance of Chai) (Nicholson, 2005).

Given the Aliksa and Chai arbitration decisions, the Employer has a legitimate interest in investigating potential criminal action of its employees as same may constitute a violation of the Standards of Conduct. The primary purpose of Section 11A is to allow the Employer to investigate the Employee. It is not to discipline the employee. This being the case, the above-referenced nexus test would only immediately be applied to Grievant if the Employer had elected to discipline the Grievant under Section 11 of the CBA.

However, in the case before this Arbitrator, the Employer has elected to proceed against Grievant under Section 11A of the CBA, specifically to place Grievant on leave without pay pending the investigation of Grievant’s arrest for the misdemeanor offense of Hawaii Revised Statutes, Section 709-906-86, Abuse of Household Member on February 7, 2005. The Employer’s right to implement Section 11A of the CBA is buttressed by the Standards of Conduct, particularly Article III, Section III, Rules, IIIB9, which concerns criminal acts. However, the Employer’s CBA right, as set forth in Section 11A is subject to several “safeguards” which are discussed in more detail below.           

X.  WHAT EFFECT, IF ANY, DOES THE GRIEVANT’S FAILURE TO TESTIFY, AS A PUBLIC SECTOR EMPLOYEE, HAVE ON THIS ARBITRATION?        

There are several fundamental differences between employers managing a public sector work environment (Federal and State) and employer’s managing analogous private sector settings. One of the most important concerns constitutional rights. Private employers, as a general proposition, do not act under “color of law” or engage in “state action.” Therefore, as a general proposition, the conduct of private employers are not subject to constitutional limitations under the Constitution of the United States and the Constitution of the State of Hawaii. [2]

On the other hand the decisions of public sector entities acting as public employers with respect to their employees (as well as citizens) do constitute “state action” or are made under “color of law.” Courts therefore view employment decisions by a public employer toward its employees as an act by the government which must be consistent with the constitutional rights that any citizen would enjoy. In addition, employment decisions by public employers may implicate constitutional rights. These constitutional rights, set forth in the Constitution of the United States, as a general proposition, are not only applicable to the federal employer and its employees, but also applicable to state employers and state employees through the 14th Amendment to the United States Constitution. [3]

For examples of the United States Supreme Court cases discussing the United States Constitution freedom of speech clause, see Garcetti v. Ceballos, 547 U.S. ___ (decided May 30, 2006); San Diego v. Roe, 543 U.S. 77 (2004), Rankin v. McPershon,483 U.S. 378 (1987), Connick v. Meyers, 461 W.S. 138 (1983), Branti v. Finkel, 445 U.S. 507 (1980); Healthy School District v. Doyle, 429 U.S. 274 (1977) and Pickering v. Board of Education, 391 U.S. 563 (1968). In regard to the United States Supreme Court discussing the First Amendment’s Freedom of Association provision, see Keyishian v. Board of Regents, 709 U.S. 385 (1967). Concerning the United States Supreme Court’s discussion concerning the United States Constitution’s Fourth Amendment protection of public employees to be free from unreasonable searches and seizures, see O’Connor v. Ortega, 380 U.S. 347 (1987). In relation to the United States Supreme Court’s discussion of the Constitutions 14th Amendment due process of law clause and employee rights, i.e., notice of charges, opportunity to respond to charges and be heard, etc. see Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), Gilbert v. Homar, 520 U.S. 924 (1997) Wisconsin v. Constantiueau, 400 U.S. 433 (1971). [4]

The Grievant, in the arbitration before this arbitrator, was present on April 28, 2006 when the Union rested its case. The Union did not call Grievant to testify. Grievant apparently elected not to testify. In Garrity v. New Jersey, 385 U.S. 493 (1967), the Supreme Court of the United States held that the Fifth Amendment to the United States Constitution, which protects against self-incrimination, as extended to the States by the Fourteenth Amendment, prevents public employers from requiring employees from incriminating themselves in matters concerning criminal investigations. The United States Supreme Court, in Gardner v. Broderick, 392 U.S. 273 (1968) further developed the “Garrity doctrine” by holding that a police officer could not be compelled to waive his constitutional right to remain silent under the threat of discharge, but noted in dicta that if the officer had immunity with respect to his answers or to the fruits thereof in a criminal prosecution and refused to answer questions narrowly relating to his performance or official duties, he could be properly discharged for refusal to answer questions. Id. at 278.  Later cases solidified this proposition by holding that public employees who fail to cooperate with an investigation after being granted immunity from prosecution could be terminated from employment. See Kastigar v. United States, 406 U.S. 441 (1972). [5]

In City of Omaha, Nebraska., 90-1 ARB ¶ 8274 at 4346 (Rotenberg, 1990), where  a police department employee refused to answer questions regarding her role in a murder, Arbitrator Rotenberg reasoned:

I conclude that at no time during the investigation conducted by the Employer did the Employer grant Grievant immunity from criminal prosecution based on Grievant’s statements to be elicited in the proposed interviews. In the circumstances of this case and applying the law set forth in the Supreme Court case of Lefkowitz  v. Turley, 414 U.S. 70 (1973)], I conclude that the Grievant was not obliged to disclose any facts relating to her involvement in the shooting incident of July 1. Likewise, I conclude that her refusal to comply with the several orders (sic) from Sgt. [B] to submit to interviews regarding her involvement in the July 1 shooting incident is privileged under the Fifth Amendment of the U.S. Constitution. It follows, and I conclude, that each of the threats or [sic] discipline and each act to implement these threats in reprisal for Grievant’s involvement in the July 1 shooting incident is inconsistent with the Fifth Amendment of the U.S. Constitution and cannot stand.                       

                        In the case before this Arbitrator, there is no evidence to indicate that the Grievant was given immunity from prosecution for statements that would be make during the arbitration if he elected to testify concerning his being placed on leave without pay pending the investigation on February 7, 2005 (abuse of household member) or from many of the State’s exhibits, some of which were introduced into evidence and others that were not concerning alleged criminal conduct relating to contraband, possession of drug paraphernalia, and possession of illegal narcotics. This being the case, this Arbitrator shall hold no negative inference against Grievant for his failure to testify.

XI.  TWENTY-ONE RULES OF LAW FOR USE IN THE INTERPRETATION AND CONSTRUCTION OF COLLECTIVE BARGAINING AGREEMENTS.

A basic assumption concerning contracts such as collective bargaining agreements is that when an Employer and a Union sign a collective bargaining agreement, they intend that their relationship shall be governed by the CBA. If, from the language of a CBA, the meaning is clear and unambiguous, there is no necessity for an arbitrator to interpret and construe the CBA. However, in the labor arbitration context, if a CBA is ambiguous and unclear, the most basic rule for the arbitrator to follow is to interpret and construe the CBA to carry out the intent of the parties.  Brown v. KFC National Management Co., 82 Haw. 226, 921 P.2d 146, reconsideration denied, 82 Haw. 360, 922 P.2d 973 (1996); Matter of Fasi, 63 Haw. 624, 634 P.2d 98 (1981); In re Taxes, Aiea Dairy, Ltd., 46 Haw. 292, 380 P.2d 156 (1963); L & S Products, 97 LA 282 (McDonald, 1991);USF Red Star, 108 LA 603 (Eischen, 1997); Spokane School District No. 81, 92 LA 333 (Smith, 1989); City of Davenport, 91 LA 855 (Hoh, 1988); Department of Health & Human Services, 83 LA 883 (Edes,1984); and Jacksonville Shipyard, 82 LA 90 (Galambos,1983). Rules of interpretation and construction are only used to assist in ascertaining the intention of the parties and not to defeat such intentions. Orient Ins. Co. v. Pioneer Mill Co., 27 Haw. 698 (1924); Bensalem Township School District, 105 LA 97 (DiLauro, 1995); Arkansas Chemicals, 73-1 ARB ¶ 8175 (Holly, 1973); and Peoria Malleable Castings Co., 43 LA 722 (Sembower,1964). It is therefore an Arbitrator’s duty to enforce the CBA, not to alter, supplement, or amend it. Kaiser v. First Hawaiian Bank, 30 F. Supp. 1255 (D. Hawaii 1997); Scotella v. Osgood, 4 Haw. App. 20, 659 P.2d 73 (1983); Strouss v. Simmons, 66 Haw. 32, 657 P.2d 1004 (1982); Chicago Education Television Association, 70-1 ARB ¶ 8516 (Daugherty, 1970); Moses Lake School District, 100 LA 860 (Smith, 1993); Mallinckrodt Chemical Works, 38 LA 267 (Hilpert, 1961); and American Sugar Refinery Co., 37 LA 334 (Beatty, 1961). A CBA or provision is ambiguous only if it is susceptible to more than one reasonable interpretation. Local Motion, Inc. v. Niescher, 105 P.3d 1278 (9th Cir. Hawaii 1997); Hanagami v. China Airlines, Ltd., 67 Haw. 357, 668 P.2d 1139 (1984); Maui Land and Pinapple Co. Inc. v. Dillingham Corp., 67 Haw. 4, 674 P.2d 390 (1984); Government Employees Ins. Co. v. Franklin for Franklin, 66 Haw. 384, 662 P.2d 1117 (1996) and Airgo, Inc. v. Horizon Cargo Transport, Inc., 66 Haw. 590, 670 P.2d 1277 (1983); Summitt County Children’s Services, 108 LA 517 (Sharpe, 1997); City of Highland Park, 76 LA 811 (McDonald, 1981); Construction Indus. Comm., 69 LA 14 (Mansfield, 1977); and American Oil Co., 62-1 ARB ¶ 8073, 3279 (Boles, 1961). This Arbitrator uses a combination of Hawaii law, common law, and labor law to interpretation and construction CBAs. They are, inter alia, as follows:

1. A CBA should be considered as a whole, rather than from different provisions, words, or phrases, independently of the whole, so as to give each provision and word meaning. United Truck Rental Equipment Leasing Inc., v. Kleenco Corp., 84 Haw. 86, 929 P.2d 99 (1996); Hillis Motors, Inc. v. Hawaii Auto Dealers’ Ass’n., 997 P.2d 581 (9th Cir 1993); Maui Pineapple Co., Inc. v. Dillingham Corp., 67 Haw 4, 674 P.2d 390 (1984); K.M Young & Associates, Inc. v. Cieslik, 4 Haw. App. 657, 675 P.2d 793, , reconsideration denied, 5 Haw. App. 683, 753 P.2d 253 (1983); Anthony v. Hilo Elec. Light Co., 50 Haw. 453, 442 P.2d 64 (1968); Kaiser Hawaii Kai Development Co. v. Murray, 49 Haw. 214, 412 P.2d 925 (1966); In re Taxes, Aiea Dairy, Ltd., 380 P.2d 156, 49 Haw. 292 (1963); Territory of Hawaii by Sharpless v. Arneson, 44 Haw. 343, 354 P. 2d 981 (1960); BWXT Pantex, 120 LA 70 (Weeks, 2004); PW Eagle, 120 LA 74 (Cox, 2004); and Metropolitan Atlanta 120 LA 142 (Harris, 2004).   

2. The words of a CBA are given their ordinary, plain and literal meanings, unless it is shown that an unusual or different meaning was intended.  Joy A. McElroy, M.D. Inc. v. Maryl, 107 Haw. 423, 114 P.3d 929 (2005); Foundation Intern., Inc. v. E. T.     Ige Const., Inc., 102 Haw. 78 P.3d 23, reconsideration denied, 103 Haw. 301, 81      P.3d 1216 (2003); Milwaukee Board of School Directors, 120 LA 279 (Winton,           2004); Sierra Club v. Hawaii Tourism Authority ex rel. Board of Directors, 100 Haw. 242, 59 P.3d 877 (2002);  Fawkner v. Atlantis Submarines, Inc., 135 F.Supp. 2d 1127 (D. Hawaii, 2001); Island Inc. Co. Ltd. v. Hawaiian Foliage & Landscape, Inc. 67 F. Supp.2d 1183 (D. Hawaii 1999); and State Farm and Casualty Co. v. Pacific Rent-All, Inc., 90 Haw. 315, 978 P.2d 753 (1999); Mason City  School District, 109 LA 1125 (Hoh, 1997); City of Mattoon, 105 LA 44 (Bailey, 1995); National Uniform Services, 104 LA 981 (Fullmer, 1995); General Services Administration, Region 4, 97 LA 1218 (Hooper, 1991); Kaiser Permanente, 100 LA 119 (Knowlton, 1992); General  Service Administration, 97 LA 1218 Hooper, 1991); Naval Medical Clinic, 90 LA 137 (Rothchild, 1987);Gulf Printing Co. 92 LA 893 (King, 1989) and Coca-Cola Foods, 88 LA 129 (Naehring, 1986).          

3.  Words are construed to produce reasonable rather than illogical, absurd, unreasonable or meaningless results. Pancakes of Hawaii v. Pomare Properties Corp., 85 Haw. 286, 944 P.2d 83 (1997); Amfac, Inc. v. Waikiki Beachcomber Inv Co. 74 Haw. 85, 839 P.2d 10, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992); Reed and Martin v. City and County of Honolulu, 50 Haw. 347, 440 P.2d 526 (1968); Hawaiian Pineapple Co. v. Masamari Saito, 24 Haw. 787, appeal allowed 25 Haw. 53, petition denied 260 F. 153 C.C.A. 189 (Hawaii Terr. 1919); New Mexico Labor Coalition, 97-1 ARB ¶ 3006 (Rivera, 1996); Armstrong Rubber Co., 87 LA 145 (Bankston, 1986); M.A. Mortenson Co., 103 LA 738 (Henner, 194); Carnation Co., 84 LA 863 (Madden, 1985); and Material Services. Corp., 84 LA 244 (Peterson, 1984).

4.  A contract (or provision) should be construed to render it enforceable rather than void. Application of Sing Chong Co. Ltd., 1 Haw. App. 236, 617 P.2d 578 (1980) and Christian, by Holt v. Waialua Agr. Co, 33 Haw. 34 (Hawaii Terr. 1934).

5.  Specific language governs over general language. Kaiser Hawaii Kai Development Co. v. Murray, 49 Haw. 214, 412 P.2d 925 (1966); and Keelikolani v. Commissioners of Crown Lands, 6 Haw. 446 (Hawaiian Kingdom, 1883); Krisport, Inc., 109 LA 59 (Fuller, 1997); Swiss Miss Operations, 103 LA 1093 (Fogelberg, 1995); City of Aurora, 96 LA 1196 (Snider, 1990); Airco Carbon, 86 LA 6 (Dworkin, 1986); City of Houston, 86 LA 1068 (Stephens, 1986); and Chillicothe Telephone Company, 84 LA 1 (Gibson 1984).

6. Expression of one thing excludes provisions of another. Ludlow-Saylor, Inc., 96-1 ARB ¶ 6021 (Sauardi, 1995); Building Plumbing Supply, 95 LA 344, 351 (Briggs, 1990); Columbia Local School District, 100 LA 227 (Fullmer, 1992); Gateway Foods, 98 LA 788 (Duff, 1991); and City of Dayton, 88 LA 236 (Heekin, 1986).

7.  Technical terms and words should be given their technical meaning unless it is shown that a different meaning was intended. In re Taxes, Aiea Dairy, Ltd. 46 Haw. 292, 380 P.2d 156 (1963); Schnadig Corp., 83 LA 1194 (Goldman, 1984) and  R.M.F., Inc., 50 LA 789 (Sherman, 1968).

8. The substance of an agreement, not its label is crucial to interpreting CBAs. MPM Hawaiian, Inc. v. World Square, 4 Haw. App. 341, 666 P.2d 622, reversed, 66 Haw. 675 (Haw. App. 1983).

9.  Pre-contract negotiations. Ohio Departments, 100 LA 125 (Graham, 1992); City of Roseburg, 97 LA 263 (Wilkinson, 1991); and Ferry-Morse Seed Co., 84 LA 75 (Duda, 1984). 

10.  Past practice. BWXT Pantex, 120 LA 70 (Weeks, 2004); PW Eagle, 120 LA 74 (Cox, 2004); Youngstown City School District, 99 LA 169 (Richard, 1992); Saginaw Mining Co., 84 LA 735 (Feldman, 1984); Sonoco Products, 95 LA 58 (1990); and Louisiana-Pacific Corp., 86 LA 301 (Michelstetter, 1986).

11.  Industry usage.  In re Taxes, Aiea Dairy, Ltd. 46 Haw. 292, 380 P.2d 156 (1963); Flynn Firebrick Construction Company, 98 LA 898 (Wolff, 1992); Pay Less Drug Stores, 95 LA 116 (Rothstein, 1990); Alpa Beta Stores, 91 LA 888 (Richman, 1988); Walton Lab., 47 LA 375 (Yagoda, 1966); and Southern New England Telephone Company, 61 LA 184 (1973).

12.  Doctrine of “Ejusdem Generis.” General-Electro Mechanical Corp., 93 LA 218 (Stocker, 1989) and Canadian Industries, 19 LA 170 (Hanrahan, 1951).

13.  A party is bound by to prior interpretations of a contract if the party had knowledge of the prior interpretation. U.S. for the Use and Benefit of Union Bldg. Materials Corp v. Haas and Haynie Corp., 577 F.2d 568 (9th Cir Hawaii 1978).

14.  Exculpatory contract provisions are not favored by the law and are strictly construed against the party relying on them. Fujimoto v. Au, 95 Hawaii 116, 19 P.3d 699 (2001).

15. It is generally accepted that when there is a misunderstanding as to a contract term, and one party knew or reasonably should have known that the other party construed the term in a particular fashion, then the latter party’s interpretation shall control. Foundation Intern., Inc. v. E. T. Ige Const., 78 P. 3d 23, 102 Haw. 487, reconsideration denied, 81 P.3d 1216, 103 Haw. 301 (2003) and U.S. for Use and Benefit of Union Bldg. Materials Corp. v. Haas & Hanie Corp., 557 F.2d 568 (9th Cir. Hawaii 1978).

16. Ordinary written words have preference over numerical figures. Wong Wong v. Honolulu Skating Rink, 25 Haw. 347 (1920).

17. Generally, existing law is considered part of a contract unless there is an agreement to the contrary. Quedding v. Arisumi Bros., Inc., 66 Haw. 335, 661 P.2d 706 (1983) and City and County of Honolulu v. Kam, 48 Haw. 349, 402 P.2d 683 (1965).

18. Every CBA has the implied covenant of good faith.  Baird v. State Farm Mut. Auto. Ins. Co., 11 F.Supp.2d 1204 (D. Hawaii 1998); Hi Pac, Ltd v. Avoset Corp., 26 F. Supp.2d 1230 (D. Hawaii 1997); Best Place, Inc. v. Penn. America Ins. Co, 82 Hawaii 120, 920 P.2d 344 (1996).

19. A recital in a contract is at best of limited probative value and it is not part of a CBA unless specifically adopted by reference. In re Taxes, Aiea Dairy, Ltd. 46 Haw. 292, 380 P.2d 156.

20.  Since one who speaks or writes can, by exactness of expression, more easily prevent mistakes in the meaning than one with whom he is dealing, doubts arising from ambiguity of language are resolved in favor of the latter. Gushiken v. Shell Oil Co., 35 Haw. 402 (1940).

     21.  If, using items 1 through 20, an arbitrator cannot interpret or construe a collective bargaining agreement, the interpretation of the party who did not select the language in the collective bargaining agreement or provision should prevail.  Joy A. McElroy, M.D.  Inc. v. Maryl, 107 Haw. 423, 114 P.3d 929 (2005);

     Pancakes o f Hawaii, Inc. v. Pomare Properties Corp., 85 Haw. 300, 944 P.2d 97 (1997); Joy Technologies, 96 LA 740 (Hewitt, 1990); Mesker Industries, 85 LA 921 (Mikrut, 1985); and George-Pacific Corp., 87 LA 217, (Cohen, 1986).

XII.  DOES THE “JUST AND PROPER CAUSE” REQUIREMENT OF SECTION 11 OF THE CBA ALSO APPLY TO SECTION 11A OF THE COLLECTIVE BARGAINING AGREEMENT?

If the Employer exercises a CBA provision or management right as a disciplinary tool, since the Employer is imposing discipline, the Employer must meet the requirements of Section 11 of the CBA and the just and proper cause requirement set forth therein.  If the Employer failed to meet the just and proper cause test as set forth in Enterprise Wire, 46 LA 359 (1966), discussed more fully below, the Employer’s actions, as a general proposition, would constitute unreasonable, arbitrary and capricious conduct. Otherwise, Section 11A of the CBA does not include the just and proper cause requirement set forth in Section 11 of the CBA concerning the imposition of discipline by the Employer.

As noted in Section XI, item one (1), “Twenty-One Rules of Law for Use in the Interpretation and Construction of Collective Bargaining Agreements,” a CBA should be read as a whole. As Arbitrator Platt stated in Riley Stoker Corp., 7 LA 764, 767:

[The] primary rule in construing a written instrument is to determine, not along from a single word of phrase, but from the instrument as a whole, the true intent of the parties, and to interpret the meaning of a questioned word, or part with regard to the connection in which it is used, the subject matter and its relation to all other parts of the provisions.

(Platt, 1947).

The CBA read as a whole clearly and unambiguously indicates that Sections 11 and 11A are separate and independent CBA provisions. Sections 11 and 11A of the CBA have different contractual objectives. Section 11 of the CBA sets forth the procedure which the employer must follow when it disciplines an employee. Section 11A on the other hand sets forth the procedure that the employer must follow prior to placing an employee on leave without pay pending an investigation which could lead to possible disciplinary action.

In addition, both Sections 11 and 11A of the CBA also have safeguards exclusive only to their respective sections. Prior to implementing Section 11 of the CBA, the Employer must have just and proper cause. This safeguard is exclusive to Section 11 of the CBA. Prior to implementing Section 11A of the CBA, the Employer must make certain that the employee’s presence at the workplace would not be detrimental to the investigation or the operations of the workplace. Other safeguards exclusive only to Section 11 are the opportunity to respond to charges (Section 11.01f), a possible meeting at the election of the employer (Section 11.02a), the right to have a union representative being present at the meeting under certain circumstances (Section 11.02b), and the Employee being credited with work time in the event the meeting is held on non-work hours (Section 11.02c).

On the other hand, both sections 11 and 11A contain provisions (hereinafter “safeguards”) with language to protect an employee from an Employer’s use of unfettered discretion. For example, both sections 11 and 11A include the following safeguards:

(1) The employee who shall be furnished the specific reasons for the Employer’s action. See sections 11.01b and 11A.01b.

(2) The Employee and the Union shall be provided the reasons for the Employer’s action within 48 hours of the action being taken. See sections 11.01d and 11A.01a.

(3) Written notification shall include specific reasons for the Employer’s action and the effective dates of the action. See sections 11.01e and 11A01b.

The fact that both sections 11 and 11A have different contractual objectives, have some of the same safeguards, but also have a major safeguards exclusive only to their respective sections indicates that Sections 11 and 11A  should be interpreted and construed as two separate and independent CBA provisions. Sections 11 and 11A do not present a CBA scenario where their respective provisions appear to have a double meaning or otherwise present two different interpretations, thereby creating an ambiguity, particularly in regard to the just and proper cause requirement. There is no ambiguity. Absent an unreasonable, arbitrary, or capricious application of Section 11A of the CBA by the Employer, the just and proper cause requirement applies only to Section 11 and not Section 11A of the CBA.       

Assuming arguendo that the CBA is ambiguous and unclear, as noted above in Section XI, item five (5), “Twenty-One Rules Rules of Law for Use in the Interpretation and Construction of Collective Bargaining Agreement,” unless a CBA as construed as a whole indicates a contrary interpretation, the application of a general provision is restricted by more specific provisions. Krisport, Inc., 109 LA 59 (Fullmer, 1997); City of Aurora, 96 LA 1196, 1201 (Snider, 1990); and Nationwide Industries, 93 LA 286, 288 (Richard, 1989). As Arbitrator Dworkin stated:

[a] broadly observed principle of contract interpretation, acknowledged in both courts of law and arbitration, holds that specific language prevails over general language.

Airco Carbon, 86 LA 6, 9: (Dworkin, 1986).

Section 11 of the CBA contains general provisions regarding the implementation of discipline while Section 11A contains more specific provisions concerning leave pending investigation of possible discipline. Since specific language prevails over general language, the just and proper cause requirement of Section 11 should not be incorporated into to Section 11A.

It is also significant to note that in Section XI, item Six (6), “Twenty-One Rules of Law for Use in the Interpretation and Construction of Collective Bargaining Agreement,” another well accepted principle of collective bargaining agreement construction is that the express mention of one thing implies the exclusion of others. Columbia Local School District, 100 LA 227, 231 (Fullmer, 1992); Ludlow-Saylor, Inc., 96-1 ¶ 6021, 6097 (Suardi, 1995). As Arbitrator Nathan Lispon stated:

The above principle fits in with the general idea that a written contract is presumed to embody the whole agreement of the parties, and terms or obligations that the parties did not include should be deemed to be deliberately excluded. This is part of the philosophy that to the greatest extent possible, the words that the parties themselves have used should govern, and legal obligations should be limited to the contract.

Hoover Universal, 77 LA 107, 112 (Lispon, 1981).

As noted above, there are several safeguards set forth in section 11A of the CBA. However, these safeguards do not include a just and proper cause safeguard. This being the case, it is clear that the parties intended to exclude just and proper cause as a safeguard clause in Section 11A.

In summary, given Section XI above, “Twenty-One Rules Of Law For Use in the Interpretation and Construction Of  Collective Bargaining Agreements,” particularly items (1), (2), (3), (4), (5), and (6), it is unnecessary for the Employer to show just and proper cause prior to implementing section 11A of the CBA since Sections 11 and 11A are separate and distinct provisions of the CBA with no ambiguity. Assuming arguendo that the CBA is unclear and ambiguous, the specific language in Section 11A (does not contain a just and proper cause clause) prevails over the general language (does contain a just and proper cause clause) set forth Section 11 and since the several safeguards and contingencies set forth in Section 11A make no mention of the additional safeguard of  just and proper cause, it must be excluded as a safeguard for purposes of Section 11A. It is significant to note that just and proper cause would become a critical factor if the Employer, after its investigation, elected to discipline Grievant under Section 11 of the CBA.  

It is significant to note that Section 11A is a bargained for right that the Employer and the Union negotiated.  If this Arbitrator added the just and proper cause requirement to Section 11A, he would be modifying the CBA between the parties and abusing his authority. It is an Arbitrator’s duty to enforce a CBA, not to alter, supplement, or amend it. Kaiser v. First Hawaiian Bank, supra, Scotella v. Osgood, supra, Strouss v. Simmons, 66 Haw. Supra, and Chicago Education Television Association, supra. In addition, the CBA, Section 15A.16b.1 specifically provides as follows:

The Arbitrator shall not have the power to add to, subtract from, disregard, alter or modify any of the sections of the Unit 1 Agreement and/or Section 15A.21.

However, this conclusion should not be interpreted to give the Employer unfettered discretion if it decides to implement section11A of the CBA. The Employer must still strictly abide by the language of section 11A and failure to comply will result in a finding that the Employer has breached the CBA.

Lastly, as noted above, if an Employer implements a CBA provision or management right as a disciplinary tool (such actions would constituted unreasonable, arbitrary and capricious conduct by the Employer), the Employer must comply with Section 11 of the CBA as the just and proper cause provision set forth therein must be met. This in turn would necessitate the analysis set forth in  Enterprise Wire Co., 46 LA 359 (1966) which is discussed more thoroughly below. 

XIII.  DID THE EMPLOYER USE SECTION 11A AS A DISCIPLINARY TOOL AGAINST THE GRIEVANT, THEREBY REQUIRING  THAT THE EMPLOYER MEET THE JUST AND PROPER CAUSE PROVISION OF SECTON 11 OF THE CBA?

Section 11.01.a of the Unit 1 CBA provides that A[a] regular employee shall be subject to discipline by the Employer for “just and proper cause.” This Arbitrator has found that an employee was improperly disciplined (discharged) by the Employer’s use of a reduction-in-force as a pretext to the discharge an employee in In the Matter of the Hawaii Government Employees Association, AFSCME,  Local 152, AFL-CIO, Union and the State of Hawaii, Department of Commerce and Consumer Affairs, Hawaii Public Broadcasting Authority, Grievance of Michael Hoogerwerf (Marr, 1998) and in United Public Workers, AFSCME, Local 646, AFL-CIO and the City and County of Honolulu, Department of Facility Maintenance, All Corporation Yards, Class Grievance (Marr, 2003) where the Employer used “counseling,” which is traditionally a management right and not considered discipline in combination with  “anonymous tips” (some of which constituted quadruple hearsay) in a manner and in such a way as to constitute discipline. [6]

There is no specific definition of what constitutes “just and proper cause.” At a minimum, discharge and disciplinary actions by an employer have been reversed where basic notions of fairness and due process have not been met. AIndustrial due process@ is becoming a component of just and proper cause. Arkansas Power & Light Co., 92 LA 144, 149-50 (Weisbrod, 1989) (grievant reinstated because employer violated employee=s due process rights by denying him union representation during investigatory interview) and Adrian College, 89 LA 857 LA 861 (Ellmann, 1987) (employer failed to make fair investigation).

Arbitrator Carroll Daugherty suggested using a set of guidelines, to be used in disciplinary proceedings, to determine whether an Arbitrator should, Asubstitute his judgment for that of the employer@ Elkouri and Elkouri, How Arbitration Works, page 884, 5th Edition, (1987) as well as to determine whether an employer has met the test of just and proper cause. Arbitrator Daugherty established a standard that has been widely accepted since its inception. In Grief Bros. Cooperage Corp., 42 LA 557 (1965), and later in Enterprise Wire Co., 46 LA 359 (1966). This test on discipline has been embraced in Koven & Smith, Just Cause: The Seven Tests, 2d Ed., revised by Farwell (BNA Books, 1992). The test was first applied in Hawaii by Arbitrator Peter L. Trask in United Public Workers, AFSCME, Local 646, AFL-CIO and Governor George R. Ariyoshi State of Hawaii (Grievance of Gilbert Hicks) (1984); applied again by Arbitrator Trask in United Public Workers; AFSCME, Local 646, ALF-CIO and City and County of Honolulu, Department of Parks and Recreation (Grievance of John Feliciano) (1990); applied by Arbitrator Barclay Bryan in United Public Workers, AFSCME, Local 646, AFL-CIO, and State of Hawaii, Department of Education, Royal Elementary School  (Grievance of Manuel H. Pascua) (1995);  applied by Arbitrator Walter H. Ikeda in UPW v. County of Maui, Department of Public Works and Waste Management (Grievance of Johnny Ramoran) (1996); applied by Arbitrator Jim Nicholson in HGEA and State of Hawaii, Department of Education (Grievance of Crown Arnold) (1994), in United Public Workers, AFSCME, Local 646, AFL-CIO and State of Hawaii, Hawaii Health Systems Corporation, Hale Ho=ola Hamakua (Grievance of Ailene Parel) (2001), in United Public Workers, AFSCME, Local 646, AFL-CIO and State of Hawaii, Department of Public Safety, Halawa Correctional Facility (Grievance of Larry Moore) (2001); in United Public Workers, AFSCME Local 645, of Public Workers, AFSCME, Local 646, ALF-CIO v. State of Hawaii, Department of Education, Maui School District, Lahainalua High School (Grievance of Francis Cosma, Jr.) (2002); and in UPW and the State of Hawaii, Oahu Community Correctional Center (Consolidated Grievances of Fereti Manumaleuna and Polo Vaimoana (2005); applied by Arbitrator Russel T. Higa in United Public Workers, AFSCME Local 646, AFL-CIO and Department of Health, Adult Mental Health Division Hawaii, State Hospital (Grievance of Marvin H. L. Rowe) (2001); applied by Arbitrator Kerry M. Komatsubara in United Public Workers Union, AFSCME, Local 646, AFL-CIO, Unit 10 and State of Hawaii, Department of Human Resources, Hawaii Youth Correctional Facility Section 11A., 11 (Grievance of Valentin Luecuona) (2001) and In the Matter of the Arbitration Between the Hawaii Government Employee’s Association, AFSCME LOCAL 152, AFL-CIO and the Department of Transportation, State of Hawaii, Department of Transportation (Grievance of Gwen Kawamoto) (2005); and applied by Arbitrator Michael F. Nauyokas in United Public Workers, AFSCME, Local 646, AFL-CIO and Hawaii Health Systems Corporation, Maluhia, (Grievance of Edgar Esperancilla) (2002); in the UPW and the State of Hawaii, Department of Public Safety, Oahu Community Correctional Center, (Tsujimura, 2005); applied by Arbitrator Philip S. Uesato in Hawaii Government Employees Association, AFSCME, Local 142, AFL-CIO and the State of Hawaii, Department of Agriculture, Quality Assurance Division, (Grievance of Felan) (2006) and in In the Matter of the Arbitration between the United Public Workers, AFSCME, LOCAL 646, AFL-CIO and the State of Hawaii, Department of Health, Hawaii State Hospital, (Grievance of Lo) (2006); and by this Arbitrator in United Public Worker’s AFSCME, Local 646, AFL-CIO and the State of Hawaii, Department of Public Safety, (Grievance of Gordon Leslie) (2005).

The guidelines for this test consist of seven (7) questions against which the Employer=s conduct is judged or measured. A single negative response to any of the seven questions invalidates the Employer=s action, allowing the arbitrator to substitute his own judgment. These questions include the following:

(1) NOTICE. Did the Employer give the Employee forewarning for or foreknowledge of the possible or probable disciplinary consequences of the Employee's conduct?

(2) REASONABLE RULE AND ORDER. Was the Employer=s rule reasonably related to (a) the orderly, efficient, and safe operation of the Employer=s business and (b) performances that the Employer might expect of the Employee?

(3) INVESTIGATION. Did the Employer, before administering discipline to an Employee, make an effort to discover whether the Employee did in fact violate or discharge a rule or order of the Employer?

(4) FAIR INVESTIGATION. Was the Employer=s investigation conducted fairly and objectively?

(5) PROOF. Did the Employer obtain substantial evidence or proof that the Employee was guilty as charged?              

(6) EQUAL TREATMENT. Has the Employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

(7) PENALTY. Was the degree of discipline administered by the Employer in this case reasonably related to (a) the seriousness of the Employee’s proven offense and (b) the record of the Employee in his service with the Employer?

The vast majority of Hawaii Arbitrators have elected to use the test set forth in Enterprise Wire Company, supra, for determining if the just and proper cause test has been met in public employment cases. In addition, the State of Hawaii and the UPW have both utilized this test in their respective closing briefs in various grievances concerning disciplinary actions. However, the just and proper cause test does not appear to apply to Grievant since the following facts indicate that the Employer did not use Section 11A of the CBA as a disciplinary tool:

(1)  On February 7, 2005, Ms. Kodama received a telephone call from the Hilo intake center, where arrestees are processed, and was asked if Grievant was employed at the Hawaii Community Correctional Center. (Kodama at 215, 217). Ms. Kodama asked for further information and was faxed Employer’s Exhibit 3 (the arrest report of the Grievant). (Kodama at 216).

(2)  After Ms. Kodama reviewed Employer’s Exhibit 3, she genuinely believed that Grievant was involved in a violent incident with Jane Doe. (Kodama at 217-18). Ms. Kodama believed that the Grievant’s actions had violated various provisions of the Standards of Conduct. (Kodama at 219-20). After Ms. Kodama reviewed the arrest report, she consulted with her supervisor, Miles Murakami (hereinafter sometimes referred to as “Mr. Murakami”) concerning her decision to place Grievant on leave pending investigation. Mr. Murakami evidently agreed with Ms. Kodama. (Kodama at 217-18, 247-48). Ms. Kodama sought an opinion from her supervisor prior to invoking Section 11A.

(3)  Ms. Kodama also acknowledged that the only way that she could place an employee on leave without pay was by using Section 11A.01 of the CBA. (Kodama at 244).  She also acknowledged that the employees presence at the workplace must be either detrimental to the conduct of the investigation or the operations of the workplace. (Kodama at 244). This Arbitrator believes that Ms. Kodama believed (albeit a mistaken belief) that on February 7, 2005, with knowledge of the arrest of the Grievant, the violent nature of the alleged offense against Jane Doe, and the possession of a police report were sufficient to meet these requirements of Section11A.01.  It is significant to note that Ms. Kodama has never done an investigation herself. (Kodama at 274).

(4)  Ms. Kodama also implemented Section 11A of the CBA and placed Grievant on leave without pay because she believed investigators would be conducting interviews with co-workers and she did not want them to feel intimidated. (Kodama at 225). She also believed that Michael Ortiz would be interviewed. (Kodama at 229). Ms. Kodama, at the time she requested the investigation was uncertain if it would be conducted by the facility or by internal affairs as it is the director’s decision. (Kodama at 225).  

(5)  The written notice from Natalie Kodama, FSO, to Mr. Kirby Imai, dated February 7, 2005 was evidently sent to the Grievant on February 7, 2005 with a copy to several persons, including the UPW. (Kodama at 224; Employer’s Exhibit 4). It was signed by the Grievant on February 8, 2005 and witnessed by his supervisor, Ms. Granger. Ms. Kodama, as agent for the Employer complied with Section 11A.01a. There is no evidence to indicate that the Union did not receive a copy of the written notice.

(6)  The written notice included the specific reason(s) for placing the Grievant on leave without pay; specifically, an alleged violation of the standards of conduct, a charge of HRS 709-906-85, and an arrest report dated February 7, 2005. The facts supporting the reasons for Grievant being placed on leave without pay pending an investigation are include in the arrest report of February 7, 2005.  Lastly, it provides for the effective period of the leave of absence without pay pending investigation, February 7, 2005 through March 8, 2005. Ms. Kodama, as agent for the Employer complied with Section 11A.01b.       

(7)  Grievant’s immediate supervisor, Ms. Mary Granger (hereinafter sometimes referred to as “Ms. Granger”) appears to have had a good working relationship with the Grievant. The record does not indicate that she has ever initiated any disciplinary action against the Grievant. Ms. Granger indicated that the Grievant was an excellent cook and an asset to the Department of Public Safety. (Granger at 340). Ms. Granger appeared to be a very credible witness.

(8)  Ms. Natalie Kodama also appeared to be a credible witness. Prior to February 7, 2005, she had not personally met the Grievant. Although she placed Grievant on leave without pay for 30 days and made the request for an investigation on February 7, 2005, she did not appear to have any personal dislike or animosity toward the Grievant. She appeared to be doing what she though her job required her to do when she implemented Section 11A of the CBA.   

(9)  Lastly, the preponderance of the evidence, given the record before this Arbitrator, indicates that Grievant has not been subject to disparate treatment. It is significant to note that the Employer appears to have used the full 30 day suspension period for each employee that it has investigated pursuant to Section 11A of the CBA. Ms. Kodama could recall only two other situations where employees were placed on leave without pay for 30 days pending investigation. The first is the case of James Frietas which occurred approximately 2 years from September 29, 2005. (Kodama at 248). He was employed at the Waiawa facility and was also arrested for abuse of a household member. (Kodama at 248). The second involved an arrest of an employee who brought contraband into the Halawa facility. (Kodama at 255). This incident occurred around the time Ms. Kodama first started with the Department of Public Safety around 1995. (Kodama at 256).

Ms. Kodama’s testimony is similar to that of Warden MacDonald. Warden MacDonald has personally been involved in several investigations, sometimes as the investigator. (MacDonald at 444).  For all persons accused of violating the Standards of Conduct, the accused is suspended pending investigation and the question is if it is with or without pay. (MacDonald at 451). In regard to the latter issue of suspension with or without pay, he usually seeks consultation from his boss, Ed Shimoda, or Ed Shimoda’s boss, Roy Yamamoto. (MacDonald at 458).

Unfortunately, Ed Shimoda and Roy Yamamoto did not testify. They could have shed more light on this issue of “with or without pay.” In any event, Ms. Kodama’s placement of Grievant on leave for 30 days without pay pending investigation is consistent with the Freitas incident and the Halawa incident, the only two incidents that she was aware of concerning employees being placed on leave without pay on February 7, 2005.

The record also indicates that some employees have been reassigned to other facilities such as Kulani pending investigation. (Kodama; 291; MacDonald at 468). Kodama on at least two occasions has reassigned employees in lieu of placing them on leave without pay. (Kodama at 291). During another portion of her testimony, she testified that she was unable to move an employee to another facility. (Kodama at 300). However, the record of the case before this Arbitrator does not fully indicate the circumstances and full reasons supporting the reassignments. For example, this Arbitrator does not know if those assigned to Kulani pending investigation were or were not being investigated for incidents concerning use of violence, were or were not arrested, had requested a reassignment after receiving notice of being placed on leave pending investigation, or had prior work experience at Kulani. More importantly, there is no evidence that Ms. Kodama could have reassigned the Grievant to Kulani on February 7, 2005, in lieu of placing him on leave without pay. For example, was there a vacant position at Kulani, need for additional assistance at Kulani, or some other justification that the Grievant could have been reassigned rather than placed on leave without pay pending investigation?

Given the record before this Arbitrator, the factual situation on February 7, 2006, and the totality of circumstances set forth in (1) through (9) of this section of this Arbitrator’s decision, this Arbitrator does not believe that the Employer used Section 11A of the Unit 1 CBA as a disciplinary tool, did not act unreasonably, arbitrarily or capriciously against the Grievant and therefore shall not find that the Employer’s actions were subject to the “just and proper cause” test,  thereby requiring the analysis set forth in Enterprise Wire, supra. The evidence before this Arbitrator does not indicate that the Employer’s actions were anything other than an attempt to properly exercise of its CBA rights under Section 11A.

XIV.  DID THE DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAII VIOLATE, MISAPPLY, OR MISINTERPRET SECTION 11A OF THE UNIT 1 CBA BY TAKING ACTION AGAINST THE GRIEVANT, AS SET FORTH IN THE EMPLOYER’S LETTER TO THE GRIEVANT, DATED FEBRUARY 7, 2005.

                        The Employer has a management right set forth in Section 11A of the  CBA to place an employee on leave without pay pending investigation. However, this right is subject to the Employer adhering to the procedures set forth in Section 11A of the CBA concerning leave pending an investigation. The above analysis concerning “safeguards” in Section 11A also indicates that Section 11A should be strictly construed. These procedures are set forth below as follows:

(1) When an investigation of charges against an Employee is pending and the Employee’s presence at the workplace is deemed to be detrimental to the conduct of the investigation or the operations of the workplace. See Section 11A.01.

(2)  The Employee, who is placed on a leave of absence without pay pending investigation, and the Union shall be given written notice within forty-eight (48) hours after the action is taken. See Section 11A.01a.

(3)   The written notice shall include the specific reason(s) for placing the Employee on leave without pay pending investigation available facts supporting the reason(s), and the effective date of the leave of absence without pay pending investigation. See Section 11A.01b.

(4)  After the investigation ends, the Employee who has been placed on leave without pay pending investigation shall be reinstated without loss of pay and all rights and benefits will be restored as though the Employee had not been on leave of absence without pay pending investigation if the Employee is cleared by the investigation or the charge is dropped or not substantiated. See Section 11.A01d. 

Section 11A of the CBA contains several safeguards to protect the Grievant from the Employer’s abuse of unfettered discretion. Section 11A is a very powerful Employer right under the CBA. The language in Section 11A.01 is clear and unambiguous. If the words underscored above were removed from Section 11A.01, this section would place no restrictions of the Employer’s use of Section 11A. In effect, the Employer’s decision to place employees on leave without pay would be totally subjective and unfettered, less notice requirements set forth in Sections 11A.01a and 11A.01b. This Arbitrator does not believe that it was the intent of the parties to give the Employer unfettered discretion to discipline its employees. Such an interpretation would lead to an unreasonable result. (See Section XI above, item three (3), “Twenty-One Rules of Law for Use in the Interpretation and Construction of Collective Bargaining Agreements”).

The Grievant was placed on leave without pay on February 7, 2005. Therefore, information gathered after this date as well as events that occurred after this date may be relevant to future disciplinary proceeding, but is irrelevant in determining if the Employer complied with Section 11A on February 7, 2005. Such information and events are irrelevant because the Employer could not have possibly known about such facts when it decided to implement section 11A. Generally, Arbitrators look at what the Employer knew at the time it made its decision to take action under a CBA, not what the Employer learned later. Albertson’s Inc., 111 LA 630 Eisenmenger, 1998); Pepsi-Cola Bottling Co., 107 LA 257 (Ross, 1996).  The after acquired evidence is irrelevant to whether an employee should be returned to the workplace. BFI Gardena Division, 121 LA 289 (Gentile, 2005). This being the case, the several incidents concerning Jane Doe and criminal charges that were brought against Grievant after February 7, 2005, cited as authority to buttress the Employer’s justification for implementing Section 11A are irrelevant to the implementation decision made by Ms. Kodama since Ms. Kodama was not aware of this “after acquired evidence” until after February 7, 2005. [7]

The facts concerning this case indicate that on February 7, 2005, the Employer was unable to properly determine that Grievant’s presence at the HCCC would have been detrimental to the conduct of the investigation of Grievant or the operations of the workplace as per Section 11A.01 of the CBA. This finding is based upon the following facts:

(1)  The record is unclear, in several areas, as to what information Ms. Kodama relied upon when she implemented Section 11A of the CBA. For example, Ms. Kodama testified that she was concerned that HCCC operations were being interrupted because of the phone calls Grievant had been receiving from Jane Doe. (Kodama at 230-31).  However, Ms. Kodama did not discover these telephone calls (from Jane Doe to Ms. Granger and Grievant) until March 24, 2005 when Ms. Granger called Ms. Kodama to tell her about Jane Doe being on the property of HCCC and causing a disturbance. (Kodama at 285-86). This after acquired knowledge could not be used by the Employer to establish that Ms. Kodama had sufficient facts to meet the requirements of Section 11A.01 on February 7, 2005.   

(2)  An internal affairs investigation conducted after April 2005 brought to light that Grievant had three arrests for misdemeanors against Grievant (all concerning acts of violence against Jane Doe), one in 2005, one in 2004, and one in 2003 and an arrest in 2005 for promoting prison contraband and promoting a dangerous drug. These arrests are serious and could lead to future discipline. However, these arrests could not have been a factor in the Employer’s decision because the arrest discoveries were made after February 7, 2005, at the earliest on April 11, 2005 when investigation was assigned to Mr. Nakashima. (Tr. at 75 and Nakashima at 86-8). This being the case, the Employer’s after acquired knowledge of these discoveries cannot be used to buttress the Employer’s decision to implement Section 11A of the CBA on February 7, 2005.

(3)  Ms. Kodama, prior to February 2005, could not recall (contrary to when she first began her testimony) for certain if there were ever any complaints made against the Grievant although his name may have “popped up.” (Kodama at 265).  Initially, nothing stood out during Ms. Kodama’s testimony (Kodama at 265) with the exception of an incident that occurred between another cook named Eddie Pena and the Grievant. (Kodama at 266). This incident occurred more than 4 years ago. (Kodama at 266).  Mr. Pena no longer works at HCCC. (Kodama at 266). The following exchange took place between counsel for the Employer and the Ms. Kodama (Kodama at 265):

Q. Prior to the February 2005 time period, did you ever come over to  the Hilo facility because of complaints regarding Kirby Imai?

A.  I didn't come up for -- specifically for Kirby Imai.

Q. Had you ever received in your office any complaints against Kirby  Imai, other than -- I mean just direct -- directly to you, prior to February 2005?

A.  Well, there may be sometimes where the managers may have  some problems with their cooks, and maybe Kirby name might pop  out.

Q.  Nothing that stands out, though?

A.  No.

Q.  Okay.  By "problems with the cook," you can't recall what those  problems would have been that they were mentioning to you?

A.  It can be -- it can vary from operations.

Q.  Right.  But specific to Mr. Imai, you can't recall what they were  complaining -- what the complaint might have been?A.        No.

Q. Do you recall -- I think you relayed an incident with another cook                                     with Mr. Imai prior to February 7, 2005?

A.  Yes.

Q.  What was the name of the other cook?

A.  Eddie Pena.

Q.  Is he still working there?

A.  No.

This Arbitrator does not believe that the Pena incident was a factor in determining if Grievant’s presence at the facility would have been detrimental to the conduct of the investigation or operations of the Employer, particularly since Pena no longer works at HCCC. It may have been considered by Ms. Kodama after February 7, 2005, but such consideration is irrelevant to her decision to invoke Section 11A of the CBA on

February 7, 2005.

(4)  On direct examination Ms. Kodama’s memory concerning the Ortiz incident appeared to be clear. However, upon cross-examination, she had difficulty remembering this situation and at one point indicated that the Grievant had not been placed on leave without pay (Kodama at 268-69). However, Ms. Kodama’s letter dated March 3, 2005 (after the incident of February 7, 2005), to Grievant indicated that Grievant was in fact placed on leave without pay (Union Exhibit 14).

(5)  Ms. Kodama’s lack of recollection and confusing testimony regarding inmate Michael Ortiz leads this Arbitrator to believe that the Ortiz incident was not a factor she considered when she implemented Section 11A of the CBA. It is significant to note that inmate Ortiz was on furlough and not on the kitchen work line. (Granger at 379). Like the Pena incident, this Arbitrator does not believe the Ms. Kodama considered this incident on February 7, 2005 as a factor when she elected to place Grievant on leave pending investigation. The Ortiz incident may have been considered by Ms. Kodama after February 7, 2005, but this tardy consideration makes this information irrelevant as a factor used to justify that Grievant’s presence at the workplace would be detrimental to the conduct of the investigation or the investigation or operations of the workplace. [8]  

(6)  Although this Arbitrator believes that Ms. Kodama acted in good faith while she attempted to implement section 11A, her testimony not only is contradictory with itself, but was inconsistent with the testimony of other Employer witnesses. For example, Ms. Kodama testified that the Grievant was given a cease and desist order from the Warden so that Grievant would not harass inmate Oritz. (Kodama at 209; 267-68). However, Warden MacDonald testified that he never gave Grievant a cease and desist order to stop harassing inmate Ortiz. (MacDonald at 478-79).  In addition, Ms. Kodama testified that she “restricted” Grievant’s delivery of food to HCCC and believed that she so informed Ms. Granger. (Kodama at 234 and 305). However, Ms. Granger testified that she was not aware of any such directive and was surprised that such an directive would have been given. (Granger at 380-81). Also Ms. Kodama testified that in regard to the Ortiz complaint, she spoke to Warden MacDonald and he informed her that the investigation was being “wrapped up” or “closed.” (Kodama at 273-74). However, Warden MacDonald testified that he never had a conversation with Ms. Kodama informing Ms. Kodama that the Ortiz investigation was completed or almost completed. (MacDonald at 480). These are major inconsistencies, not minor discrepancies in her testimony.  A cease and desist order against the Grievant to prevent the Grievant from harassing an inmate, restrictions on the Grievant’s responsibilities and duties and whether a conversation indicating that the Ortiz investigation was close to being closed or closed (relevant to Ms. Kodama having knowledge of the Ortiz complaint before or after February 7, 2005) are serious matters. These inconsistencies in Ms. Kodama’s testimony further this Arbitrator’s suspicions that Ms. Kodama did not rely upon the Ortiz incident when she placed Grievant on leave pending investigation. The Ortiz incident may have been considered by Ms. Kodama after February 7, 2005, but as noted above, it cannot be used to determine if Ms. Kodama has sufficient grounds to believe that Grievant’s presence at the workplace would have been detrimental to the investigation or operations of the workplace.

(7)  Ms. Kodama, prior to February of 2005 stated that she did not have complaints regarding Grievant’s work. (Kodama at 322). After the February 7, 2005 incident, none of the Grievant’s fellow employees (presumably male and female) ever informed Ms. Kodama that they did not want to work with Grievant. (Kodama at  304; 321-22).  In addition, no inmate (presumably including Oritiz) ever expressed not wanting to work with Grievant. (Kodama at 322).

(8)  Ms. Granger testified that none of the staff expressed concerns, after the February 7, 2005 arrest, about working with the Grievant. (Granger at 359). In addition none of the inmates expressed concerns about working with Grievant after his arrest. (Granger at 359-60).  Ms. Granger also testified that she never observed conduct by Grievant that would indicate co-workers or inmates at the facility were at risk by Grievant working at the facility. (Granger at 360).

(9)  Ms. Kodama did not appear to attempt to collect information to determine if the Grievant’s presence at the workplace was deemed to be detrimental to the conduct of the investigation of Grievant or the operations of the workplace. For example, she did not ask the immediate supervisor of the Grievant, Ms. Granger, for her input on the Section 11A.01 safeguards. (Granger at 356). If Ms. Kodama had asked Ms. Granger for her input, given Ms. Granger’s testimony, Ms. Kodama may have decided not to implement Section 11A of the CBA. It appears that Ms. Kodama thought (albeit mistakenly) that given the arrest of Grievant, the Standards of Conduct, and the police report concerning the arrest, she could conclude that Grievant’s presence at the workplace would be detrimental to the conduct of the investigation or the operations of the workplace.

Lastly, this Arbitrator is mindful that he should refrain from interfering with a management right. However, this right is not absolute and subject to the safeguards as noted above. In addition to items (1) through (9) of this Section of this Decision and Award, what concerns this Arbitrator regarding the Employer’s actions is that if the Grievant’s presence would have been detrimental to the conduct of the investigation or operations of the workplace, the Employer most certainly would have completed its investigation within 30 days of February 7, 2005, rather waiting until April 11, 2005 to assign the case for investigation after the Grievant had returned to the workplace. However, the fact that the investigation began after the Grievant returned to workplace is significant to this Arbitrator. It indicates to this Arbitrator that the Employer’s concerns regarding the Grievant’s presence being detrimental to the conduct of the investigation or the operations of the workplace were borderline or minor at best.                                 

XV.  CONCLUSION.

The preponderance of the evidence indicates that on February 7, 2005, the Employer did not have sufficient facts to show that the Grievant’s presence at the workplace would have been detrimental to the conduct of the investigation or operations of the workplace. Therefore, the Employer has violated Section 11A.01 of the CBA. Such a violation constitutes a material breach of the CBA. Issues raised by the parties but not addressed in this decision are moot given this Arbitrator’s decision as set forth above and award as set forth below.

XVI.  AWARD.                     

The Grievance is granted as set forth below:

(1)  This Arbitrator is concerned with the evidence that the Employer used (Ms. Kodama) on February 7, 2005 to determine that Grievant’s presence at the workplace would be detrimental to the conduct of the investigation of the Grievant or the operations of the workplace. As noted above, although this Arbitrator believes that Ms. Kodama had thought (albeit mistakenly) that she had met the requirements of Section 11.A01 because she had knowledge of Grievant’s arrest, the nature of the allegations, and a copy of the police report, this information is insufficient to show that the Grievant’s presence at the workplace would be detrimental to the investigation of the Grievant or the operation of the workplace. The Employer is ordered to cease and desist using Section 11A.01 of the CBA to place employees on leave without pay pending an investigation unless it has reasonable grounds to believe that an employee’s presence at the workplace shall be detrimental to the conduct of the investigation or the operations of the workplace.

Facts exist to implement Section 11A.01 only if a reasonable person, on the date the Employer decides to implement Section 11A.01, has knowledge of facts sufficient to objectively establish that the employee’s presence at workplace would detrimental to the conduct of the investigation of an employee or the operations of the workplace. It is significant to note that If Ms. Kodama had knowledge of Jane Doe’s disruptive behavior or the contraband and promoting drug allegations on February 7, 2005 when she implemented Section 11A, under the circumstances of this case, these facts would have been sufficient to meet establish that the Grievant’s presence at the workplace would have been detrimental to the operations of the workplace. However, Ms. Kodama did not gain possession of such facts until after February 7, 2005.  In addition, if Ms. Kodama had information that staff or inmates did not wish to work with Grievant, or were afraid of Grievant, given the facts of this case, this information would have satisfied the requirement that Grievant’s presence at the workplace would have been detrimental to the conduct of the investigation and the operations of the workplace. The evidence indicates that Ms. Kodama was not made privy to this information before or even after February 7, 2005, since same more likely than not does not exist. Ms. Kodama could have made an informed decision as to whether of not to implement Section 11A by simply asking Grievant’s immediate supervisor, Ms. Granger for her opinion.   

(2) The Employer and the Union have appeared before this Arbitrator in several other matters and have consistently followed his arbitral orders. However, in the unlikely event the event the Employer uses Section 11A.01 to place an Employee on leave without pay for 30 days and it appears to the Union that the Employer once again has failed to sufficiently determine that an employee’s presence at the workplace would be detrimental to the conduct  of the investigation of the Grievant or the operations of the workplace, the Union if free to use this Decision and Award to argue that since the Employer has been placed on notice of this Arbitrator’s concerns regarding item (1) of this award, the Employer’s actions constitute unreasonable, arbitrary, and capricious action since the Employer is using Section 11.A.01 as a disciplinary tool.

(3)  Grievant was placed on leave without pay for 30 days from February 7, 2005 through March 8, 2005. The record does not indicate that Grievant was paid for this period of time. The Employer cites to the transcripts, pages 231-32 and Employer’s Exhibit 4-3. However, Ms. Kodama testified that Grievant was paid for the entire month of March, although he did not work for each day in March. It is more reasonable to assume that Grievant was on leave during the entire period of March because he was ordered by the Employer not to come to work as per Union Exhibit 14 and later paid for the entire period of March because the Employer issued a decision that was favorable to Grievant. See section 11.A01d. An offset in such a situation would not be appropriate. To the extent that Grievant has not been paid in full, including accrued benefits for each day, for the period of February 7, 2005 through March 8 2005, the Employer is ordered to make Grievant whole for this period of leave without pay, including back wages and all benefits that he would have accrued if he had not been placed on leave without pay.

(4)  The 30 day period of leave without pay from February 7, 2005 through March 8, 2005, as set forth in Employer’s Exhibit 4, is rescinded.

(5)  The Grievant’s personnel file shall be purged of any and all matters concerning his leave without pay status regarding item (4) of this award.

(6)  This Arbitrator shall continue to assume jurisdiction of this arbitration for 90 days from the date of this decision and award to oversee compliance with same.

                        DATED:  Honolulu, Hawaii this 13th day of July, 2006.

                                                /S/_____________________________
                                                MICHAEL ANTHONY MARR
                                                Arbitrator

STATE OF HAWAII                                 )
                                                                  
)
CITY AND COUNTY OF HONOLULU  
)

On this 13th day of July, 2006, before me personally appeared Michael Anthony Marr, to me known to be the person described in and who executed the foregoing ADecision and Award@ and acknowledged that he executed same as his free act and deed.

/S/___________________________________
Notary Public, State of Hawaii
My Commission expires on May 2, 2008

SEAL

CERTIFICATE OF SERVICE

I, MICHAEL ANTHONY MARR, Arbitrator in the above-referenced matter, do hereby certify that at a copy of this Arbitrator=s decision, dated July 13, 2006,                     attached hereto, was duly mailed, postage prepaid, to the following persons at the addresses listed below:

Rebecca L. Covert, Esq.                                              Nelson Y. Nabeta
Takahashi Vasconcellos & Covert                              Deputy Attorney General
345 Queen Street                                                          State of Hawaii
Suite #506
                                                                      235 South Beretania Street, 15th Floor
Honolulu, Hawaii 96813                                                Honolulu, Hawaii 96813

DATED: Honolulu, Hawaii, July 13, 2006.
/S/__________________________________
MICHAEL ANTHONY MARR
ARBITRATOR


[1]  The Grievant and “Jane Doe” maintained a boyfriend/girlfriend relationship. To protect her identity as a possible victim, her true name was never revealed throughout the testimony and in the exhibits at the arbitration hearing. Rather, Grievant’s girlfriend was referred to as “Jane Doe.” 

[2] The relationship between a Private Employer and its Employees is primarily governed the collective bargaining agreement between the parties, the National Labor Relations Act, Title 29, Chapter 7, Subchapter II, of the United States Code, the Hawaii Employment Relations Act, Chapter 377 of the Hawaii Revised Statutes and  the Hawaii Employment Practices Act, Chapter 378 of the Hawaii Revised Statutes. 

[3] It is significant to note that the Preamble to the State of Hawaii Constitution provides that [t]he Constitution of the United States of America is adopted on behalf of the people of Hawaii.” In addition, Article XIII of the State of Hawaii Constitution, Section 1, protects private sector employees to a limited degree by stating “[p]ersons in private employment shall have the right to organize for the purpose of collective bargaining. (Ren Const 1978 and election November 7, 1978) while public sector employees are protected under Section 2, which provides that “[p]ersons in public employment shall have the right to organize for the purpose of collective bargaining as provided by law. (Am Const Con 1968 and election November 5, 1968 and am Const Con 1978 and election November 7, 1978). See also Hawaii Professional Assembly v. Cayetano, 183 F.3d 1096 (9th Cir. 1999) and AFSCME, LOCAL, 646 v. Yogi, 100 Haw. 138 (2002) concerning various constitutional provisions and their effect on the Public Employer-Employee relationship.

 In addition to constitutional rights and rights bargained for under a collective bargaining agreement, the relationship between a public employer (State or subdivision) is principally governed by the  Hawaii Public Employment Relations Act, Chapter 89 of the Hawaii Revised Statutes and the rights of the Federal Government and its employees are primarily governed by the Federal Labor Management and Employee Relations Statute (FLRA), Title 5 of the United States Code, Part III, Subpart F, Chapter 71.

[4] These constitutional rights, set forth in the Constitution of the Untied States of America are also specifically set forth in Article 1 of the State of Hawaii Constitution. 

[5] In NLRB v. Weingarten v. NLRB, 420 U.S. 251, 88 LRRM 2689 (1975), the United States Supreme Court upheld the National Labor Relations Board’s decision that Section 7 of the National Labor Relations Act  grants an employee the right to refuse to submit without union representation to an interview which he reasonably fears may result in discipline. Id. at 963, 88 LRRM at 2691. The Supreme Court of the United States also found that the employer’s conduct constituted an unfair labor practice in violation of 8 (a) (1) of the National Labor Relations Act because it interfered with, restrained, and coerced the individual right of the employee, protected by 7 of the Act, “to engage in… concerted activities… for mutual aid or protection…It is significant to note that this ruling is not based upon the United States Constitution. In addition, the National Labor Relations Act does not apply to the United States Government, the 50 states or their respective subdivisions, but as a general rule applies to the private sector. However, the Federal Government and the Hawaii Labor Relations Board have adopted the principles of law set forth in Weingarten, supra. The Hawaii Labor Relations Board recently affirmed its extension of “Weingarten rights” in In the Matter of Stephanie Stucky, Complainant and Board of Education, State of Hawaii, et. al., Respondents, Decision No. 450 (December 13 2004), by holding that once an employee exercises his or her right to union representation, the Employer may not attempt to dissuade or discourage the employee from a position taken during a grievance without a union representative being present. Id. at 9-10.

[6] In the former grievance between the Hawaii Government Employees Union and the State of Hawaii, Department of Commerce and Consumer Affairs, Hawaii Public Broadcasting Authority, known as the Hoogerswerf Grievance, the Grievant was hired to fill a position that was described by the Employer as “critical to its operations.” However, within a few months after the Grievant was hired, he bean to receive e-mail from his supervisor that clearly indicated that the supervisor did not like the Grievant. In one e-mail, the supervisor apologized for treating the Grievant “like a baby.” The Employer also failed to show that it had a current lack of funds when it used a Reduction-in-Force to terminate the Grievant and in fact was actively recruiting for various positions. In ordering that Grievant be reinstated, this Arbitrator found that the Employer improperly used a Reduction-in-Force as a pretext to terminate the Grievant, that the improper use of a contract right constituted discipline, and that the Employer’s conduct was unreasonable, arbitrary and capricious.

In the latter grievance between the United Public Workers and the City and County of Honolulu, Department of Facility Maintenance, All Corporations Yards, a class grievance, although actual testimony was only one day, this Arbitrator found it necessary to examine and digest the testimony of 5 witnesses, 48 exhibits (several of which were more than 50 pages), address eight (8) individual grievants with different circumstances in addition to the class grievance and address four (4) arbitral issues of first impression for arbitrators in Hawaii. The first issue of first impression was whether the confidentiality of complainants, anonymous or otherwise, must be disclosed to the Union or are protected under the Hawaii Revised Statutes, Sections 92F-13(3) and 92F-22. The second issue was whether Chapter 89 of the Hawaii Revised Statutes superseded or conflicted with Chapter 92F of the Hawaii Revised Statutes. The third issue was an analysis of the Federal Freedom of Information Act and its effect on Hawaii’s Uniform Information Practices Act. The last issue of first impression was the fine line between counseling actions and disciplinary actions. Other issues concerned arbitrability, class grievances, waiver, continuing violations, and disciplinary issues. The Employer was ordered to cease and desist the use of  “counseling actions” that used “anonymous tips,” in some cases based upon quadruple hearsay, to discipline its employees. This Arbitrator found that the actions of the Employer constituted unreasonable, arbitrary and capricious action and that the “just and proper cause” test applied to the Employer’s conduct. This has been the most complicated, lengthy, and time-consuming grievance concerning research that this arbitrator has been selected to arbitrate.

[7]  A few case situations outside of the context of industrial due process, but analogous to Jane Doe and the criminal charges brought against the Grievant may make this Arbitrator’s analysis better understandable: Example One: A police officer, without reasonable suspicion stops a citizen because he does not like the haircut of the citizen and subjectively believes that the citizen may be in possession of drugs. The police officer illegally searches the citizen without a warrant and discovers illegal drugs. The stop and search of the citizen is illegal and the evidence must be suppressed. The police officer cannot later argue that after acquired facts, the discovery of illegal drugs justified the illegal stop and search. Example Two: Attorney A is placed on leave without pay pending an investigation for a DUI arrest. One month later, Attorney A is arrested for illegal camping. The illegal camping arrest cannot be used to justify the decision to place attorney A on leave pending investigation because the camping arrest is irrelevant since it occurred one month after the decision to place Attorney A on leave pending investigation for the DUI offense.

[8]  The Ortiz complaint was eventually resolved with a finding in favor of Grievant. (Kodama at 278.)

  

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