28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Contra Costa Water District and Stationary Engineers Local 39
Date: 
September 17, 2007
Arbitrator: 
Michael Anthony Marr
Citation: 2007 NAC 124

 

BEFORE ARBITRATOR MICHAEL ANTHONY MARR

STATE OF CALIFORNIA

In the Matter of the Arbitration Between

STATIONARY ENGINEERS LOCAL 39,  

                                    Union,

            and

The CONTRA COSTA WATER DISTRICT

 

                                    Employer.

_______________________________________________________________  

)
)
)
)
)
)
)
)
)
)
)
)


California State Mediation and Conciliation Service Number
ARB-06-0303

DECISION AND AWARD;
CERTIFICATE OF SERVICE

HEARING DATES: June 21 and 22, 2007 

Grievance of Troy Ibbeson

                                                   

MICHAEL ANTHONY MARR
A
ttorney, Arbitrator, & Mediator
111 North King Street
Suite # 314
Honolulu, Hawaii 96817
Telephone: (808) 599-5258
Facsimile:   (808) 599-1545
E-mail: MmarrADR@aol.com

 


DECISION AND AWARD

            The above-referenced matter came on for hearing before the arbitrator on June 21 and 22, 2007 in Concord, California. (Please refer to transcript of these proceedings, hereinafter sometimes referred to as “Tr.” or by a witness’s last name followed by the transcript page number(s)). The arbitrator was mutually selected by the parties using the rules and procedures of the California State Mediation and Conciliation Service. Both parties were represented by professional and competent counsel at the arbitration hearing. The Stationary Engineers Local 39, hereinafter sometimes referred to as “Union” and Troy Ibbeson, hereinafter sometimes referred to as the “Grievant” were represented by Andrea Laiacona from the law firm of Weinberg, Roger, and Rosenfeld. The Contra Costa Water Department, hereinafter sometimes referred to as “District” or “Employer” was represented by Joseph E. Wiley from the law firm of Wiley, Price & Radulovich, LLP.  During the arbitration hearing, fourteen (14) joint exhibits were received into evidence from the parties. Joint Exhibit 1 (one) was the Memorandum of Understanding between the parties, hereinafter sometimes referred to as “MOU.” Joint Exhibit 2 is the Contra Costa Water District’s Administrative Procedure, Subject: Disciplinary Procedures, effective November 15, 2000, sometimes hereinafter referred to at as “DP.” Seven (7) District exhibits were also received into evidence. The District called five (5) witnesses for its case-in-chief and two (2) rebuttal witnesses. The Union called five (5) witnesses, one of which was the Grievant. Full opportunity was given to the parties to present evidence, examine and cross-examine witnesses and to present oral argument. Since the MOU was silent as to when closing briefs would be due after the arbitration hearing, the parties agreed that their post-hearing briefs would be due on August 31, 2007. The MOU is also silent as to when the arbitration decision and award are due. In light of the MOU’s silence on this matter, the arbitrator has elected to follow his general rule and submit his award and decision on or before 30 calendar days after the submission of the closing briefs of the parties, September 30, 2007.

            The arbitrator has reviewed the testimony and evidence presented during the arbitration hearing as well as reviewed the well-written and convincing briefs submitted by counsel. The arbitrator does not feel compelled to address all of the numerous arguments and issues raised by these professional advocates. Please note that this is not to be interpreted that the arbitrator has not read and reread the transcripts, briefs and numerous pages of exhibits and carefully considered all arguments of counsel. Rather, the arbitrator elects to address only those elements that have a significant impact on his decision making process. The arbitrator, as a general rule will not comment on matters that he believes are irrelevant, superfluous, redundant, or rendered moot by the arbitrator’s decision.                          

I.                   BRIEF BACKGROUND.

            Mr. Michael Holley is the  Director of Operations and Maintenance for the Contra Costa Water District. Holley at 39:13 and 15. His duties include the direction of maintenance activities throughout the District, both for the District’s treated water and underground facilities.[1] Holley at 39:23-25.

            There are five cross connection inspector positions in the District. Holley at 41:15-16. They report to the senior cross connection inspector, Mr. Sean Kelly. Holley at 41:17-19. Mr. Kelly reports to the Maintenance Manager of Distribution, Mr. Doug Young. Holley at 41:20. Mr. Young reports directly to Mr. Holley. Holley at 40:22-23.

            Mr. Holley is the Director of Operations and Maintenance. Holley at 39:15-16.

            The Contra Costa Water District has approximately 800 miles of treated-water mains in it’s treated-water service area. Holley at 42:4-6. Throughout the mains are a series of backflow prevention devices that allow water to flow only in one direction. Holley at 52:1-7. There are approximately 85,000 backflow prevention devices in the District. Holley at 61:6. The District inspects approximately 12,000 of these devices annually. Holley at 61:4.

            Each device has two check valves. Holley at 52:8-10. The valves prevent untreated water and contaminants from backing up into the District’s water system. Holley at 52:11-12. If one value fails, the other acts as a backup valve. Holley at 13-14. If a backflow device fails to work, the public drinking water system could become contaminated with lethal bacteria or carcinogenic chemicals. Holley at 55:7-12; District Exhibit 7. Prevention of backflow at its worst can lead to sickness and death. Reynolds at 108:13-18; 110:15-23; District Exhibit 6.

            Backflow devices are regulated by the State of California, State Department of Health. Holley at 55:1-2; District Exhibit 4and District Exhibit 5. The State of California requires that backflow prevention assemblies be tested on an annual basis. Holley at 55:16; Reynolds at 110:5; District Exhibit 4. In some situations, a device must be tested twice a year. Holley at 56:6-8. Records of testing and maintenance are to be maintained by the water supplier for at least three (3) years. District Exhibit 4. The devices are built to be tested at various pressure points on the devices. District Exhibit 1; District Exhibit 4. The check valves are tested to determine if there is leaking water. Holley at 56:20-25; District Exhibit 1. If a device is leaking water, it is repaired. Holley at 57:1-5.

            Public Water Utilities are regulated by the State of California, California Administrative Code, Title 17, Public Health, Department of Drinking Water Supply and Appendix A: Laws and Regulations. District Exhibits 4 and 5. These regulations include evaluation of water hazards, approval of backflow prevention devices, testing and maintenance of backflow prevention devices, and their relationship to fire protection and fire and panic safety regulations. District Exhibits 4 and 5. 

            Failure to test these devices in accordance with California law could result in the District being citations from the State. Holley at 55:22-25. The District could also lose its permit to purvey treated water. Holley at 56:1-2; Reynolds at 110:9-12.

            The charges against the Grievant and a co-worker, Mr. Matt Fowler, were based upon the removal of a backflow prevention device from property located at 979 San Miguel, Concord, California 94518, hereinafter sometimes referred to as “979 San Miguel.” The initial recommendation against the Grievant and Mr. Matt Fowler was that both should be terminated for falsifying production records, dishonesty, neglect of duty, and failure to perform work as assigned. As discussed below, Grievant was terminated. Mr. Fowler was given a written reprimand.

            The homeowner of 979 San Miguel had the backflow prevention device removed from the property on April 1, 2003. Mr. Matt Fowler filed a Backflow Prevention Assembly Test Report, hereinafter sometimes referred to as “Mr. Fowler’s Backflow Report,” dated April 4, 2003 that indicated that the backflow prevention device was tested on this day and that the test results for the device “passed.” Joint Exhibit 3, Tab 4. Subsequent thereto, the Grievant filed a Backflow Prevention Assembly Test Report, hereinafter sometimes referred to as “Grievant’s Backflow Report,” dated September 21, 2004, reflecting that the backflow prevention device was tested on this day. Joint Exhibit 3, Tab 3. Thereafter, on December 17, 2005, James Melandt discovered that the backflow prevention device had been removed from 979 San Miguel. Mr. Melandt filed a Backflow Prevention Assembly Device Report, hereinafter sometimes referred to as Mr. Melandt’s Backflow Report,” dated this same day indicating that the device had been removed by the customer. Joint Exhibit 3, Tab 5. At the time Mr. Fowler, the Grievant, and Mr. Melandt tested, allegedly tested, or attempted to test the backflow prevention device at 979 San Miguel, each did so in their capacity as a cross connection inspector for the District.

            Mr. Melandt’s Backflow Report, which indicated that there was no backflow prevention device at 979 San Miguel led to a preliminary investigation, conducted by Mr. Sean Kelly, the O&M Supervisor within the Distribution Maintenance Division of the O&M Department of the District. The Grievant’s supervisor, Mr. Kelly, and Mr. Kelly’s supervisor, Mr. Young, both informed Mr. Holley that there may be a problem with the Grievant’s Backflow Report. Holley at 61:20-21. Mr. Holley directed Mr. Kelly and Mr. Young begin a preliminary investigation. Holley at 62:6-7. Both reported back to Mr. Holley after their preliminary investigation was completed. Holley at 62:23. The investigations eventually led to the termination of the Grievant. After it was confirmed by the property owner of 979 San Miguel and the plumber who removed the backflow prevention device that the device had in fact been removed, Mr. Holley directed Mr. Young to do a formal investigation. Young at 166:8, 10, 12, and 16-17. The formal investigation led to Mr. Holley recommending that Mr. Fowler and the Grievant both be terminated. 

            The termination of the Grievant was based upon Grievant’s Backflow Report. It was alleged that since the backflow prevention device was removed by the homeowner of 979 San Miguel on April 1, 2003, it was not possible for Mr. Fowler to have tested the device on April 4, 2003 as per Mr. Fowler’s Backflow Report or for the Grievant to have tested the device on September 21, 2004 as per the Grievant’s Backflow Report. Mr. Holley recommended that the employment relationship between the District and both Mr. Fowler and the Grievant  be terminated. The four grounds for this decision were neglect of duty, failure to perform work as assigned, falsifying production records, and dishonesty, sometimes hereinafter collectively referred to as the “Four Disciplinary Grounds for Termination.” On August 17, 2006, Mr. Kurt Ladensack, Assistant General Manager for the District wrote the Grievant a letter regarding the Grievant’s Skelly Hearing Decision.  In said letter concerning the Grievant, Mr. Ladensack found that the “Key Findings and Basis for Decision” to terminate the Grievant were falsifying production records and dishonesty. Joint Exhibit 4. Mr. Ladensack did not specifically refer to neglect of duty and failure to perform assigned work as grounds for the termination of the Grievant’s employment with the District.[2]

II.                ISSUES.

                        The two primary stipulated issues to be resolved by the arbitrator are as follows:

(1)   Did the employer have just and proper cause to terminate the Grievant?

(2)   If so, what is the appropriate remedy?

III.             THE MEMORANDUM OF UNDERSTANDING AND  DISCIPLINARY PROCEDURES.

The MOU, Section 4.12 is entitled “Disciplinary Procedure.” It provides as follows:

Employees with permanent status may appeal disciplinary action imposed through the arbitration procedure set forth in Section 4.11 herein.

The General Manager shall approve suspensions invoked prior to a “notice of intent to suspend.”

Effective July 1, 1997, the District agrees that it will not use Written Reprimands that were given to employees more than 36 months prior for further disciplinary action, provided that the employee has received no other discipline during that period.

                        Section 4.11 consists of guidelines for requesting arbitration, selecting the arbitrator, the arbitration hearing and decision, and the authority of the arbitrator. The MOU contains no “just cause” provision.

                        The DP used by the District was entered into evidence as Joint Exhibit 2.

It provides as follows:

CONTRA COSTA WATER DISTRICTADMINISTRATIVE PROCEDURE

 

SUBJECT:

   DISCIPLINARY

   PROCEDURES

 

Number IV-1

Effective Date:

Issued:     2/13/87

Revised:  11/15/00

Page 1 of 8

 

PURPOSE:

To outline procedures and policies relating to employee counseling, discipline, and due process, and to provide sample letters pertaining to counseling and corrective actions.

OVERVIEW:

In 1974, the United States Supreme Court determined that a post termination evidentiary administrative hearing may be sufficient under procedural due process so long as notice and opportunity to respond preceded termination action. Arnett v. Kennedy, 416 U.S. 134 (1974). In 1975, the California Supreme Court spelled out the minimum procedure that the court felt was mandated by Arnett. The minimum procedure included notice of the proposed action, and the reasons therefore, a copy of the charges and materials upon which the action was based, and the right to respond either orally or in writing to the authority initially imposing discipline. Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975).

In addition to Skelly requirements, employees are entitled to compliance by the governmental employer with the procedures specified within its own regulations. Layton v. Merit System Commission of the City of Pomona, 60 Cal.App.3d 58 (1976).

Skelly procedures are required for disciplinary demotions and suspensions as well as dismissals, although in the case of short-term suspensions (five [5] days or less) the Skelly procedural requirements may occur immediately after the suspension action was put into effect. Ng. v. State Personnel Board 68 Cal.App.3d 600 (1977); Civil Service Association, Local 400 v. City and County of San Francisco, 79 Cal.3d 540 (1978).

POLICY:

It is the policy of the District to establish conformity in procedures relating to employee discipline. Although exceptions will occur, a well-defined disciplinary process will enhance employer/employee relations.

The Human Resources Division shall be contacted whenever a supervisor has reason to believe that an employee has violated a District rule or work practice. The determination of corrective action, if any, will be made after an investigation by department management of the alleged violation.

Administrative Procedure

IV-1 DISCIPLINARY PROCEDURE

Effective: November 15, 2000

Page 2 of 8

If a determination is made that corrective action is necessary, department management will prepare necessary correspondence subject to review by the Human Resources Division. If a suspension without pay, in-grade salary reduction, or demotion is recommended, the General Manager or his designee shall approve.

A Skelly meeting will generally precede disciplinary action involving a loss or reduction in pay. However, suspensions of five days or fewer may be immediately implemented providing that the Skelly procedure is then promptly followed. Under certain conditions more severe disciplinary action may immediately occur.

FORMS OF DISCIPLINARY ACTION:

The following forms of disciplinary action are listed in order of the least severe (oral reprimand) to the most sever (discharge). The Human Resources Division should be contacted for advice and counsel prior to any type of formal disciplinary action.

1.                  Verbal Reprimand

The verbal reprimand is considered informal discipline and notifies the employee that his/her performance or behavior must be improved. This warning defines the areas in which improvement is required, sets up goals leading to this improvement and informs the employee that failure to improve will result in more serious disciplinary action.

This is the first official step of disciplinary action. It should be used to deal with minor infractions of rules and practices. It is, in effect, a statement to the employee that he/she has (1) violated a District rule or work practice that he/she should have been aware of, (2) that he/she will be expected to abide by all such rules in the future.

2.                  Written Reprimand

The written reprimand is an official record of discipline, usually, but not always, issued after a previous verbal reprimand. The employee is advised that his/her behavior is seriously below standard and that continuation or repetition of that behavior shall result in more serious disciplinary action. The written reprimand shall cite violations of the District’s Causes for Disciplinary Action.

The written reprimand is considered the first formal step in the disciplinary procedure.

Administrative Procedure

IV-1 DISCIPLINARY PROCEDURE

Effective: November 15, 2000

Page 3 of 8

3.                  Suspension

The suspension is an ordered absence from duty without pay for a prescribed period of time. An employee may be suspended without pay for up to thirty (30) days. Suspension without pay is a serious action by management involving loss of pay and fringe benefits. An employee generally receives less severe discipline prior to a suspension advising said employee that his/her performance is not satisfactory.

4.                  Reduction in Pay

Reduction in pay is a temporary reduction in salary to a lower salary step for a specified maximum period of time. The employee does not have sudden stoppage of income and may be able to have the reduction lifted to good performance. The department does not lose the services of the employee. As with suspensions, an individual should have been warned or reprimanded prior to taking this action to advise him/her that his/her performance is not acceptable.

5.                  Demotion

A demotion is a permanent change in classification of an employee to a position of lower responsibility and pay for unsatisfactory performance or disciplinary reasons. If demotion is used:

a.       The letter of demotion must be specific as to the reason(s) for the action;

b.      The employee should be removed from his/her former place of work, if possible to avoid embarrassment;

c.       The employee’s new duties must be consistent with those described in the class specification for the new classification.

6.         Discharge

Discharge is the most severe form of disciplinary action. Removal from employment may be caused by a serious violation of the District’s “Causes of Disciplinary Actions,” or due to an accumulation of various violations. This action should only be taken when management is thoroughly satisfied that the employee has been given every reasonable opportunity to meet performance or behavior standards and clearly failed to do so.

Administrative Procedure

IV-1:  DISCIPLINARY PROCEDURE

Effective: November 15, 2000

Page 4 of 8

CAUSES FOR DISCIPLINARY ACTION

Any of the following may be sufficient cause for disciplinary action:

1.      Unauthorized possession or use of District property or another employee’s property

2.      Willful abuse, damage, or defacing of District property

3.      Misuse or personal use of District materials, equipment or property

4.      Neglect of duty

5.      Insubordination

6.      Violation or disregard of published safety rules or common safety practices

7.      Sleeping on the job

8.      Refusal or failure to perform work as assigned

9.      Loitering or willfully wasting time during working hours

10.  Gross negligence that negatively affects the quality of service or finished product

11.  Fighting on District premises

12.  Gambling on District premises

13.  Smoking in smoke-free District premises

14.  Possession of alcoholic beverages, illegal/unauthorized drugs, or being under the influence of intoxicating beverages/drugs on District property

15.  Conviction of illegal conduct

16.  Unauthorized selling of merchandise on District premises or during working hours

17.  Unauthorized possession of weapons

18.  Falsifying pay records or production records

19.  Excessive absenteeism/tardiness

20.  AWOL – Absence without approved leave

Administrative Procedure

IV-1: DISCIPLINARY PROCEDURE

Effective: November 15, 2000

Page 5 of 8

21.  Offensive treatment of the public or other employees, threatening others, engaging in threatening behavior, or committing a violent act in the workplace

22.  Fraud in securing employment

23.  Dishonesty

24.  Incompetence. As used herein, the term “incompetence” shall mean that the employee lacks adequate ability, knowledge or fitness to perform the duties which are within the scope of the employee’s employment.

25.  Suspension, revocation, lapse, or expiration of a driver’s license required for the job classification.

PRE-DISCIPLINARY PROCEEDINGS:

The California Supreme Court’s Skelly v. State Personnel Board decision provides a public employee with certain procedural protections before discipline (a suspension of more than five (5) working days) may be imposed. Although the Skelly case is commonly cited for the proposition that an employee is entitled to a “hearing” prior to the imposition of discipline, the term “hearing” is misleading. A hearing provides for the introduction of evidence and direct and cross-examination of witnesses. Skelly requires an “administrative meeting” whereby the employee or his/her representative may respond to the charges with facts and/or other information, which may not have been considered.

The requirements of the Skelly procedure are satisfied as follows:

1.      The employee receives advance notice of the maximum punitive action imposed.

2.      The notice states the reasons for the proposed action.

3.      The notice contains the charges upon which the proposed action is based.

4.      The employee is allowed access to the materials upon which the action is based.

5.      The employee is afforded the right, either orally or in writing, or both, to respond to the proposed charges

SKELLY NOTICE:

1.      The Skelly notice should be in writing.

2.   The letter should set a date, time and place for the employee to respond to the charges if he/she elects to do so. In order to allow the employee time to seek advice and to prepare any oral or written response he/she may wish to make, the date for his/her response should be approximately five working days from the date the letter is sent. The letter should contain a request that the employee give notice if he/she elects to waive his/her right to respond orally.

Administrative Procedure

IV-1: DISCIPLINARY PROCEDURE

Effective: November 15, 2000

Page 6 of 8

3.      The letter should contain the maximum penalty, which may be imposed.

4.   The reasons for the proposed action must be set out in detail. The part of the Skelly letter setting out the misconduct with which the employee is charged must be factual so that any person reading the letter will be able to determine the exact misconduct charged.

5.   The factual allegations of misconduct must specifically cite violations of the District’s “Causes for Disciplinary Action” as described in this Administrative Procedure.

6.   The notice must advise the employee of his/her right to respond to the charges, either orally or in writing.

7.    The notice must advise the employee of his/her right to representation if he/she elects to respond.

8.   The notice will advise the employee that discipline may be imposed whether or not he/she responds to the charges.

9.   Copies of the notice should be sent to:

a.       The General Manager;

b.      The Human Resources Manager;

c.       The employee’s supervisor;

d.      The employee’s bargaining Union representative, if any.

SKELLY MEETING:

The Skelly meeting, if the employee elects to have a meeting, should be conducted as follows:

1.      The authority who may impose discipline should chair the meeting.

2.      The meeting chairperson should establish that the employee has received the Skelly notice and understands the charges set forth therein.

3.      The chairperson should make available any documents which were considered in determining the proposed charges and disciplinary action.

4.      The employee or his/her representative should be given the opportunity to make final comments regarding the proposed action.

5.      The employee or his/her representative should be given the opportunity to make final comments regarding the proposed action.

6.      The chairperson should close the meeting by indicating that he/she will consider all statements and/or documents, which may have been presented prior to determining the final action.

ACTION LETTER:

The person who conducted the hearing should promptly prepare a letter containing all of the following:

1.      Factual findings. This part of the letter may, for charges which have been established, repeat the charges as set out in the Skelly notice letter. If a charge has not been established, or if facts in mitigation of a charge’s seriousness have been disclosed, the letter should so state.

2.      The specific provision(s) of the “Causes of Disciplinary Action” which were violated.

Administrative Procedure

IV-1  DISCIPLINARY PROCEDURE

Effective: November 15, 2000

Page 7 of 8

3.      The discipline imposed may not exceed the maximum stated in the Skelly letter.

4.      A statement that the employee may appeal the action consistent with the provisions of the Union contract or other District procedures, if applicable.

5.      Copies of the action letter should be sent to:

a.       The General Manager;

b.      The Human Resources Manager;

c.       The employee’s supervisor;

d.      The employee’s bargaining Union representative, if any.

Administrative Procedure

IV-1: DISCIPLINARY PROCEDURE

Effective: November 15, 2000

Page 8 of 8

APPROVED:

/S/____________________________

WALTER J. BISHOP

General Manager

Attachments:

           

            Exhibit A – Report of Disciplinary Action

            Exhibit B -  Confirmation of Verbal Reprimand

            Exhibit C -  Written Reprimand

            Exhibit D -  Notice of Intent to Terminate (or Suspend or Demote)

            Exhibit E -   Notice of Termination (or Suspension or Demotion)

            Exhibit F -   Notice of Rejection of Temporary (or Probationary) Appointment

IV.             SKELLY v. STATE PERSONNEL BOARD.

The aribitrator has reviewed Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975).  The arbitrator believes that this case is an excellent supplement to Arbitrator Daugherty’s Just Cause Test as discussed and applied below.

V.                CONCISE STATEMENT OF THE EMPLOYER.

The District has maintained that it has just and proper cause to terminate the Grievant. The District argues that the basis for the termination of the Grievant was justified given the Four Disciplinary Grounds for Termination arising out the Grievant’s Backflow Test, dated September 21, 2004, for property located at 979 San Miguel. The District argues that since the backflow device was removed on April 1, 2003 by Mr. William Delucchi, a plumber hired by the owner of the property located at 979 San Miguel, the Grievant could not have possibly inspected the backflow device on September 21, 2004 as indicated on Grievant’s Backflow Test. As a result, the Grievant was properly charged with falsifying production records and dishonesty. Since the Grievant was provided his Skelly rights and hearing under California law, the District had “just cause” to discharge the Grievant from his employment with the Contra Costa Water District.

VI.       CONCISE STATEMENT OF THE UNION.

The Union maintains, on behalf the Grievant, that the Grievant should be reinstated since his actions are the result of a mistake. The Union further argues that the Grievant did not intentionally neglect to perform his duty nor did he falsify production records.  Lastly, the Union argues that the Grievant was not dishonest because the error that he committed was a mistake.

VII.       DID THE DISTRICT HAVE JUSTCAUSE TO TERMINATE THE GRIEVANT?

The MOU between the District and the Union contains no definition of “just cause.” Likewise, the DP does not contain the words “just cause” and therefore does not have a definition for just cause. As a result, the arbitrator must define what constitutes “just cause” within the guidelines of established arbitral precedent. 

A “just cause” test must meet the minimum notions of fundamental fairness and industrial due process. Any test that does not contain these basic requirements would fail to meet a “just cause” standard.

The DP also does not refer to the term “just cause” or any term similar thereto. However, it is clear from a review of the DP that the District implemented the DP to make certain that employees who were disciplined, up to and including termination, were done so with “procedural due process of law.” Accordingly, a “just cause” provision can be read into the MOU and DP. It is also significant to note that the District stipulated that one of the primary issues to be determined before the arbitrator would be whether the Grievant was discharged for “just cause” but no stipulation was made as to what constitutes “just cause.”

            Ms. Laiacona indicated that it was her understanding that the DP constituted a Districtwide disciplinary policy (Laiacona at 9:5-8) while Mr. Wiley indicated that the DP governed the disciplinary procedures relating to the Grievant’s discipline. (Wiley at 9:14-17). Ms. Laiacona indicated that there was no dispute regarding the DP’s application to the Grievant. (Laiacona at 9:18).  In regard to the Arbitrator Daugherty’s just cause test as set forth in Enterprise Wire, Ms. Laiacona argued that the DP simply constitutes disciplinary procedures and do not set forth the “just cause” standard to be applied by the arbitrator. (Laiacona at 14:17-23). Mr. Wiley indicated that if the DP conflicts with Arbitrator Daugherty’s just cause test, the DP would control. Otherwise, Mr. Wiley had no objection to Arbitrator Daugherty’s just cause test being used as a guideline and generally followed (Wiley at 14:25 through 15:1-7). It is significant to note that the arbitrator does not believe that the DP conflicts with Arbitrator Daugherty’s “just cause” test. In fact, the arbitrator believes that the DP is an excellent compliment to Arbitrator Daugherty’s test, particularly since the DP incorporates Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975).

            Arbitrator Carroll Daugherty suggested using a set of criterial questions, to be used in disciplinary proceedings, to determine whether “just cause” has been met. Arbitrator Daugherty established a standard that has been widely accepted since its inception, first in In Grief Bros. Cooperage Corp., 42 LA 555 (1964) and later in Enterprise Wire Co., 46 LA 359 (1966). This “just cause” test concerning discipline has become so widely accepted that it has been analyzed, embraced and explained in Koven & Smith, Just Cause: The Seven Tests, 2d Ed., revised by Farwell (BNA Books, 1992).

The test has continued to gain growing acceptance among arbitrators. This just cause test is currently being used by the State of Hawaii, all County governments of Hawaii, and all Unions representing public employees in arbitration matters to determine if “just cause” has been met in disciplinary actions taken by a public employer. Arbitral decisions published in the Labor Law Reporter (BNA) and the Commerce Clearing House indicate that arbitrators continue to adopt the “just cause test” throughout the several States of the United States of America in both the public and private sectors. It continues to gain momentous support simply because it has come to symbolize the essence of fundamental fairness and industrial due process.

Although the arbitrator has applied a different “just cause” test in disciplinary matters, he recently elected to adopt the test established by Arbitrator Daugherty, not merely because it meets accepted wisdom of fundamental fairness and due process, but also because it provides arbitrators, employers and unions with an outline of the most important elements of industrial due process. If parties to disciplinary proceedings know exactly what an arbitrator will be looking for regarding just cause, they shall be able to begin an investigation so that industrial due process is not violated. In addition, the disciplinary decisions concerning employees shall be more consistent. Lastly, the parties will be less likely to inadvertently overlook important elements of just cause and industrial due process while preparing for an arbitration hearing. For these reasons, the arbitrator has referenced Arbitrator Daugherty’s just cause test in City and County of Honolulu and the United Public Workers (March 13, 2003) (Marr, Arb.); State of Hawaii, Department of Public Safety, Halawa Correctional Center and the United Public Workers (September 22, 2005) (Marr, Arb.); State of Hawaii, Department of Public Safety, Hawaii Community Correctional Facility and the United Public Workers (July 13, 2006) (Marr, Arb.); and Qwest Communications and the Communication Workers of America, FMCS # 06-54506 (November 20, 2006) (Marr, Arb.).

Arbitrator Daugherty’s “just cause” test consists of seven (7) criterial questions against which the employer’s conduct is evaluated and analyzed. A single negative response to any of the seven criterial questions suggests that “just cause” either was not fulfilled or has been substantially impaired. These criterial questions consist of the following:

(1) NOTICE. Did the employer give the employee forewarning or foreknowledge of the possible or probable consequences of the employee’s disciplinary conduct?

(2) REASONABLE RULE AND ORDER. Was the employer’s rule reasonably related to business efficiency and the performance the employer might reasonably expect from an employee?

(3) INVESTIGATION. Did the employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

(4) FAIR INVESTIGATION. Was the employer’s investigation conducted fairly and objectively?

(5) PROOF. At the investigation, did the “judge” 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 its employees?

(7) PENALTY. Was the degree of discipline administered by the employer in a particular 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?

            If one of the seven criterial questions cannot be answered in the negative, an arbitrator is free to use his own judgment, based upon arbitral precedent, as to what would constitute an appropriate disciplinary penalty. Arbitrator Daugherty’s test provides arbitrators with seven (7) criterial questions with which to determine if industrial due process has been met. Each of these criterial questions clearly addresses industrial due process. 

VII.A.         NOTICE. DID THE EMPLOYER GIVE THE EMPLOYEE FOREWARNING OR FOREKNOWLEGE OF THE POSSIBLE OR PROBABLE CONSEQUENCES OF THE EMPLOYEE’S DISCIPLINARY CONDUCT?

            To meet this test, notice may be express or implied. The Grievant testified that he received a copy of the DP, Joint Exhibit 2 and was aware of its contents. Ibbeson at 336:21. Joint Exhibit 2, page 3 provides:

                        Discharge

Discharge is the most severe form of disciplinary action. Removal from employment may be caused by a serious violation of the District’s “Causes of Disciplinary Actions,” or due to an accumulation of various violations. This action should only be taken when management is thoroughly satisfied that the employee has been given every reasonable opportunity to meet performance or behavior standards and clearly failed to do so.

In addition, Joint Exhibit 2, pages 4 and 5 provide in relevant part as follows:

                                    CAUSES FOR DISCIPLINARY ACTION

Any of the following may be sufficient cause for disciplinary action:

1.      Unauthorized possession or use of District property or another employee’s property

2.      Willful abuse, damage, or defacing of District property

3.      Misuse or personal use of District materials, equipment or property

4.      Neglect of duty

5.      Insubordination

6.      Violation or disregard of published safety rules or common safety practices

7.      Sleeping on the job

8.      Refusal or failure to perform work as assigned

9.      Loitering or willfully wasting time during working hours

10.  Gross negligence that negatively affects the quality of service or finished product

11.  Fighting on District premises

12.  Gambling on District premises

13.  Smoking in smoke-free District premises

14.  Possession of alcoholic beverages, illegal/unauthorized drugs, or being under the influence of intoxication beverages/drugs on District property

15.  Conviction of illegal conduct

16.  Unauthorized selling of merchandise on District premises or during working hours

17.  Unauthorized possession of weapons

18.  Falsifying pay records or production records

19.  Excessive absenteeism/tardiness

20.  AWOL – Absence without approved leave

21.  Offensive treatment of the public or other employees, threatening others, engaging in threatening behavior, or committing a violent act in the workplace

22.  Fraud in securing employment

23.  Dishonesty

24.  Incompetence. As used herein, “incompetence” shall mean that the employee lacks adequate ability, knowledge or fitness to perform the duties which are within the scope of the employee’s employment.

25.  Suspension, revocation, lapse, or expiration of a driver’s license required for the job classification.

The Grievant testified that he had a set of what constitutes Joint Exhibit 2. The

Grievant was discharged for violating #18, falsifying pay records or production records, and #23, dishonesty concerning Grievant’s Backflow Report for property located at 979 San Miguel. The Grievant had express notice that committing any of the “Causes For Disciplinary Action” could result in his termination. The Grievant also testified that he knew he could be disciplined for falsification of production records (Ibbeson at 337:8) and dishonesty. Ibbeson at 337:14.

            The Grievant also had implied notice. Notice is implied when a reasonable employee would believe that he or she could be disciplined, or in the case before the arbitrator, terminated for certain misconduct. Clearly, a reasonable employee would believe that he or she could be disciplined and or terminated for falsifying pay records or production records and dishonesty concerning the Grievant’s Backflow Report relating to property located at 979 San Miguel.  

The Grievant had both expressed and implied knowledge that falsifying production records and dishonesty concerning Grievant’s Backflow Report could lead to disciplinary action, up to and including termination. The answer to the first criterial question is answered in the affirmative.

VII.B.         REASONABLE RULE AND ORDER. WAS THE EMPLOYER’S RULE OR MANAGERIAL ORDER REASONABLY RELATED TO (A) THE ORDERLY,EFFICIENT, AND SAFE OPERATION OF EMPLOYER’S BUSINESS AND (B) PERFORMANCE THAT THE EMPLOYER MIGHT PROPERLY EXPECT FROM THE EMPLOYEE?

In regard to this second inquiry, the arbitrator must ask if the District established a rule that was reasonably related to the orderly, efficient, and safe operation of the District’s business and to the performance that can be expected of Grievant. As per Koven and Smith, “[f]ew propositions in labor relations are more firmly established than the proposition that the Employer has the right to make reasonable rules and give reasonable orders in the conduct of its business.” Id., at 86.                      

            Joint Exhibit 3, Tab 2, is a copy of the “Cross Connection  Inspector Classification Specification” that was held by the Grievant while he worked for the District as a Cross Connection Inspector. It provides in relevant part:

DEFINITION

Under supervision, investigates consumer compliance with District water service regulations, as well as State and local laws governing the protection of public water supply. Checks complaints, collects samples and makes routine field and laboratory tests. Performs related work as required.

DISTINGUISHING FEATURES

The duties of this class involve dealing with the public in diverse situations where considerable tact, initiative, and discretion are required. Varied and responsible work is performed in handling complaints, field investigations and inspection and adjustments of double check valve and other backflow prevention device installations.

TYPICAL EXAMPLES OF WORK

1.  Locates and inspects backflow prevention assemblies. Maintains and installs assemblies as may be required.

2.  Investigates consumer complaints of water quality, pressure, volume, seepage, or leaking; takes samples, performs routine field tests as necessary; and advises the consumer of possible solutions to water problems.

3.  Investigates valves and fittings to determine cross-connection hazards; instructs consumer to install adequate backflow prevention devices; performs tests to be sure the devices are in proper working condition.

4.  Advises the consumer on District rates and regulations.

5.  Maintains files and records.

6.  Disinfects and flushes distribution mains; periodically flushes fire hydrants and dead-end lines.

7.  Assembles and analyzes data, including diagrams of cross connections, to be used preparing reports; prepares reports of field work performed.

8.  Cleans and maintains vehicle and other field equipment.

9.  Operates a motor vehicle in connection with the duties of the classification.

10.  Performs related work as required.

QUALIFICATIONS FOR EMPLOYMENT

Education:

            Completion of the twelfth grade or its equivalent.

Experience:

One year of employment with water utility or other agency involving public contact work and minor mechanical duties or equivalent familiarity with complaint investigation, adjustment of mechanical control devices.

Knowledge, Skills and Abilities:

Knowledge of the principles, construction, and operation of cross connection control devices; of basic hydraulics as applied to a water distribution system; of common hand tools; of street locations within the District’s service area; and of general water district policies and procedures.

Skill in performing inspections and tests; in preparing clear and concise oral or written reports; and to operate a motor vehicle safely.

Ability to deal with the public courteously and effectively, and to gain acceptance of District policies and procedures; to know applicable sanitary laws and codes; to read and interpret maps and specifications; to make minor mechanical adjustments, installations and repairs; to plan and organize his/her work, adhering to a strict follow-up schedule.

Other Requirements:

Must possess a valid California Driver’s License and have a satisfactory driving record.

Successful completion of general and specific aptitude tests, and oral interview.

Must be in good physical condition and pass a physical examination before employment with the District.

Adopted: August 16, 1984.

Joint Exhibit 3, Tab1 is a copy of the Contra Costa Water District Water Supply Permit which was issued by the State of California, Health and Human Services, Department of Health Services. It provides in relevant part as follows:

                                                STATE OF CALIFORNIA
                                                AMENDMENT TO THE
                        DOMESTIC WATER SUPPLY PERMIT ISSUED TO
                                         The Contra Costa Water District
                                                System No. 0710003

ORIGINAL PERMIT NO. 02-93-011                       DATE OF ISSUE: April 21, 1993
PERMIT AMENDMENT NO. 4
                               EFFECTIVE DATE: May 14, 2003

WHEREAS:

1.      The Contra Costa Water District is a public water system whose headquarters is located at 1331 Concord Avenue, California.

2.      The Contra Costa Water District serves domestic water to the cities and communities of Clayton, Concord, Pacheco, Clyde, Martinez, Pleasant Hill, and Walnut Creek in Contra Costa County by permit from the California Department of Health Services dated April 21, 1993.

3.      Contra Costa Water District submitted an application to add the Multi-purpose Pipeline and Pump Station to the system to distribute and receive treated water.

And WHEREAS:

  1. The Contra Costa Water District has submitted all of the required information related to the use of the Multi-Purpose Pipeline to distribute and receive treated water.
  2. The California Department of Health Services has evaluated the information submitted by the Contra Costa Water District.
  3. The California Department of Health Services has the authority to issue domestic water supply permits and amendments pursuant to Section 116540 of the California Health and Safety Code.

THEREFORE:

The Contra Costa Water District is issued this amendment to the Contra Costa Water District Domestic Water Supply Permit No. 02-93-011 dated April 21, 1993, to add the Multi-Purpose Pipeline and Pump Station to the system to distribute and receive treated water, subject to the following conditions:

  1. Contra Costa Water District shall comply with all state laws applicable to public water systems including, but not limited to, Division 5, Part 1, Chapter 7 of the California Health and Safety Code and any regulations, standards, or orders adopted thereunder.
  2. Contra Costa Water District shall submit the Multi-Purpose Pipeline coliform monitoring results to the Department prior to placing the pipeline into service.
  3. Contra Costa Water District shall submit a revised Water Quality Monitoring plan incorporating the Multi-Purpose Pipeline for Department review and approval prior to use of the Multi-Purpose Pipeline as a regular source of domestic water supply.
  4. All provisions of the Contra Costa Water District Domestic Water Supply Permit No. 02-93-011, dated  April 21, 1993 and subsequent amendments shall remain in effect.

This amendment shall be appended to and shall be considered to be an integral part of the Domestic Water Supply issued to the Contra Costa Water District on April 21, 1993.

For the California Department of Health Services:

/S/_________________________________              ____________________
Kalyanpur Y. Baliga, Ph.D., P.E.                                      Date

Senior Sanitary Engineer
San Francisco District
Drinking Water Field Operations Branch

            The District’s rules for cross connection inspectors as set forth in Joint Exhibit 3, Tab 2, are reasonably related to the orderly, efficient and safe operation of the District’s business of supplying water, especially consumable water to the public. The District can properly expect that its employees perform the work described in Joint Exhibit 3, Tab 2. California State law and regulations backflow prevention programs and devices. District Exhibits 4 and 5. Failure of the District and its employees to comply with Joint Exhibit 3, Tab 2, could lead to the permit described in Joint Exhibit 3, Tab1, the Contra Costa Water District Water Supply Permit, being adversely affected. It could also lead to sickness and death of the consumers to whom it supplies consumable water. District Exhibits 6 and 7. Lastly, the District and its employees have a duty to maintain the public trust that has been bestowed upon them by the State of California. The breach of this public trust degrades the best interests of the public whom the District and the Grievant are legally and morally obligated to serve and protect. The answer to the second criterial question is answered in the affirmative.


VII.C.  INVESTIGATION.  DID THE EMPLOYER, BEFORE ADMINISTERING DISCIPLINE TO AN EMPLOYEE, MAKE AN EFFORT TO DISCOVER WHETHER THE EMPLOYEE DID IN FACT VIOLATE OR DISOBEY A RULE OR ORDER OF THE EMPLOYER?

The third inquiry requires the arbitrator to evaluate whether the District conducted a timely and thorough investigation to satisfy due process requirements as well as obtain adequate proof of misconduct. Just Cause: The Seven Tests, supra, at 159-160. Due process requires that the employee be informed promptly and in sufficient detail of the charges against him, and that the employee be given the opportunity to respond to the charges. Id. at 159. Also See Gaylord Container Corp., 107 LA 147 (Statham, 1996); PQ Cor. 101 LA 694 (Pratte,1993); Walt Disney World Co., 98-2 ARB & 5342 (1988). In addition, industrial due process requires management to conduct a reasonable inquiry or investigation before assessing punishment. Southern Frozen Food, 107 LA 1030 ((Giblin, 1996); Express River Casino Corp., 97-1 ARB & 3009 (Berman, 1996).

As to gathering adequate proof, an employer must consider all sides of the dispute, obtain documentary evidence, and conduct the investigation in a timely manner. Id. at 161-179. The issue in the case before the arbitrator is the Union’s allegations that there was no meaningful investigation.

Mr. Melandt’s Backflow Report was the catalyst that led to an initial investigation  conducted by Mr. Sean Kelly, a supervisor for the Contra Costa Water District. The investigation was completed prior to discipline being administered to the Grievant.

Mr. Kelly initially investigated the missing backflow device by researching records, visiting the site, and by contacting the homeowner. Mr. Kelly also confirmed that the backflow prevention device was in fact missing. Mr. Kelly also contacted the homeowner’s plumber, Mr. Bob Delucchi. Mr. Delucchi informed Mr. Kelly that he had removed the backflow prevention device from 979 San Miguel. Mr. Delucchi, by letter dated June 5, 2006, also informed Mr. Kelly that he had removed the backflow prevention device on April 1, 2003 from 979 San Miguel. Joint Exhibit Tab 7. [3]  Based upon Mr. Kelly’s findings, the case was transferred to Mr. Doug Young for a complete investigation.  Mr. Young completed his investigation on July 31, 2006, by letter to Mr. Michael D. Holley, hereinafter sometimes referred to as “Mr. Young’s Investigation Report.”  Joint Exhibit 3, Attachment 2. The discovery date of the alleged offense was December 17, 2005. It took a little over 7 months from the initiation of Mr. Kelly’s preliminary investigation for Mr. Young’s Investigation Report to be completed. Given the number of persons who were interviewed, the on site viewings by both Mr. Kelly and Mr. Young, the witness statements, and the research that was done on 979 San Miguel, approximately 7 months was not an unreasonable period of time to complete the investigation, particularly since some of the delay was attributable to the Union. The investigation was therefore completed in a timely manner.

The investigation of the Grievant was done before he was disciplined. The investigation was also completed in a timely manner. The answer to the third criterial question is answered in the affirmative.

       VII.D. FAIR INVESTIGATION. WAS THE EMPLOYER’S

INVESTIGATION CONDUCTED FAIRLY AND OBJECTIVELY?

The fourth of the seven criterial questions for just cause concerns the focus of an objective posture of an employer during its investigation. In his notes, Arbitrator Daughtery explained the inquiry in this way:

Note 1: At said investigation, the management official may both ‘prosecute’ and ‘judge’ but he may not also be a witness against the employee.

Note 2: It is essential for some higher, detached management official to                                assume and conscientiously perform the judicial role, giving commonly                                 accepted meaning to the term in his attitude and conduct.

           

Note 3: In some disputes between an employee and a management person there are no witnesses to an incident other than the two immediate participants. In such cases, it is particularly important that the management “judge” question the management participant rigorously and thoroughly, just as an actual third party would.

Koven & Smith at 229. 

            What these notes add up to is this:

For an investigation to be successful (from the point of view of both proof and due process), it must be objective.

For it to be objective, someone from management must make sure that as much available evidence as possible is collected and that evidence gets a careful look, not from a partisan, management-oriented perspective but from the perspective of a disinterested third party.

For a disinterested evaluation to be conducted, some management official other than the supervisor who imposed discipline is generally required.

Id at 230.

There are five cross connection inspector positions in the District. Holley at 41:15-16. The Cross inspectors report to the senior cross inspector, Mr. Gill Mendoza. Kelly at 128:9. They also report to the Operations and Maintenance Supervisor, Mr. Sean Kelly. Mr. Kelly was Grievant’s supervisor. Kelly at 129:1-2. Holley at 41:17-19; Kelly at 127:21. Mr. Kelly reports to the Maintenance Manager of Distribution, Mr. Doug Young. Holley at 41:20. Mr. Young reports directly to Mr. Holley, the Director of Operations and Maintenance. Holley at 39:15-16; 40:22-23.

            The preliminary investigation was ordered by a detached management official,

Mr. Michael Holley, after Mr. Holley was informed by Mr. Sean Kelly and Mr. Doug

Young that there may be problems with the Grievant’s Backflow Report. Holley at 61:20-21. Mr. Holley is the Director of Operations and Maintenance. Holley at 39:15-16. Mr. Kelly primarily performed the preliminary investigation. Holley at 62:20-22.  Mr. Holley was informed that the backflow prevention device was removed on April 1, 2003. Thereafter, Mr. Holley ordered that Mr. Doug Young prepare a “complete investigation.” Holley at 65:12. Mr. Young referred to Mr. Holley’s order for an investigation as a “formal investigation.” Young at 166:16-17. Irrespective of the terminology used, it is clear that the investigation, once it was transferred to Mr. Young,  had reached a higher, more serious level of investigation. It was not Mr. Young’s role to make a recommendation with respect to discipline. Holley at 66:6.

Other than as noted below, the record indicates that during the investigation, Mr. Sean Kelly or Mr. Doug Young did not act as a witnesses against the Grievant. Generally, each appeared to collect data and evidence in an objective manner. Mr. Holley, the detached management official directed the investigation, reviewed the evidence, and made his recommendation to Ms. Ramirez.

Mr. Young’s Investigation report indicates that Mr. Young and Mr. Kelly addressed the allegations against the Grievant and another employee, Mr. Matt Fowler, pertaining to their duties as Cross Connection Inspectors and the property located at 979 San Miguel. Both individuals were investigated for failing to perform work as assigned, neglect of duty, dishonesty, and falsifying production records.

Mr. Young’s Investigation Report had several attachments to it. They are as follows:

1.      Copy of the CCWD Water Supply Permit Issued by the Department of Health Services, Joint Exhibit 3, Attachment 1;

2.      Copy of Cross Connection Inspector Classification Specification, Joint Exhibit 3, Attachment 2;

3.      Copy of Test Report of Grievant dated 09/21/04, Joint Exhibit 3, Attachment 3;

4.      Copy of Test Report of Mr. Fowler dated 04/04/03, Joint Exhibit 3, Attachment 4;

5.      Copy of Test Report by Mr. Melandt dated 12/17/05 reflecting no backflow device removed, Joint Exhibit 3, Attachment 5;

6.      Copy of letter from the Homeowner of 979 San Miguel Road, Concord, CA 94518, to Mr. Kelly, dated 01/04/06 indicating that the backflow device was removed approximately 3 years ago by a plumber, Bob Delucchi, Joint Exhibit 3, Attachment 6;

7.      Copy of a letter from Mr. Bob Delucchi’s to Mr. Sean Kelly of the Contra Costa Water District, indicating that Mr. Delucchi removed the “existing galvanized water service” and the “copper tubing and fitting” from the double check valve at the meter on April 1, 2003, Joint Exhibit 3, Attachment 7;

8.      List of Questions asked of the Grievant during interview of 06/29/06, Joint Exhibit 3, Attachment 8; Copy of Grievant’s Written Response, dated 07/10/06, Joint Exhibit 3, Attachment; Copy of Tara Masanet’s interview notes provided to Grievant, Joint Exhibit 3, Attachment 8;

9.      List of Questions asked of Mr. Matt Fowler during interview of 06/29/06, Joint Exhibit 3, Attachment 9; Copy of Mr. Fowler’s Written Response, dated 07/10/06, Joint Exhibit 3, Attachment 9; Copy of Tara Masanet’s interview notes provided to Mr. Fowler, Joint Exhibit 3, Attachment 9;

10.  Statement documenting subsequent interview with Mr. Fowler on July 27, 2006, Joint Exhibit 3, Attachment 10;

11.  Copy of Records search results for “San Miguel” addresses;

12.  Copy of detailed records search for 979 San Miguel Road;

13.  Copy of personal note from homeowner to Mr. Young, dated July 18, 2006, regarding plumber Bob Delucchi and check, and check, dated April 1, 2003 for $500.00.

14.  Photos of 979 San Miguel Road.

Mr. Young, with the assistance of Mr. Kelly, collected substantial evidence and data concerning the Grievant and Mr. Matt Fowler. In addition, both Mr. Ibbeson (Joint Exhibit 3, Tab 8) and Mr. Fowler (Joint Exhibit 3, Tab 9) were interviewed on June 29, 2006 by Mr. Young while notes were taken for the District by Tara Masanet. Young at 167: 17-19; Young at 173:23.  During the interview, both were given an opportunity to provide their view of what occurred when asked “Is there anything you want to add?” Each was also provided an opportunity to provide a written statement. Each was also represented by Union Business Agent Lynn Long while being interviewed by the District.

            Mr. Young’s Investigative Report to Mr. Michael D. Holley, dated July 31, 2006 recommended that Grievant and Mr. Fowler should be disciplined for neglect of duty, failure to perform work as assigned, falsifying production records, and dishonesty. Holley at 67:1-2 and 70:21. As noted above, although Mr. Holley had testified that it was his understanding that Mr. Young’s role was not to make a recommendation concerning discipline, Mr. Young recommended discipline based upon the following findings:

1. The backflow prevention device formerly located at the 979 San Miguel residence has been removed. Statements by both the homeowner, Ms. Ercolino, and the plumber, Bob Delucchi, indicate the device was removed on 4/1/03. This is further substantiated by a copy of Ms. Ercolino’s cancelled check dated 4/1/03 which she issued to Bob Delucchi on the date the work was performed. The check was for performing the necessary plumbing work, which included removal of the backflow device. 

2. Matt Fowler completed a report indicating he had tested and passed a backflow prevention device at 979 San Miguel on 4/4/03. Matt Fowler could not have tested this device on 4/4/03 as he indicated on his test report because this device was removed on 4/1/03.

3. Troy Ibbeson completed a test report indicating he had tested and passed a backflow prevention device at 979 San Miguel on 9/21/04. His statement that he could have tested the device for the service next door by mistake is not credible. Troy Ibbeson could not have tested this device on 9/21/04 as he indicated on his test report, because this device was removed on 4/1/03.

4. It is the responsibility of a Cross Connection Inspector, as specified in the Classification Specification to locate, inspect, and maintain backflow prevention assemblies. Cross Connection Inspectors are also required to perform tests to be sure devices are in proper working condition. Both Mr. Fowler (in 2003) and Mr. Ibbeson (in 2004) were assigned to conduct a backflow prevention device test at the property located at 979 San Miguel Road. Mr. Fowler and Mr. Ibbeson could not have performed this test, as the device had been removed prior to the dates listed on their test reports. Therefore, both Mr. Fowler and Mr. Ibbeson neglected their duty as Cross Connection Inspectors, and failed to perform work as assigned. 

5. Mr. Fowler, in his test report of 4/4/03, indicated he tested and passed the backflow prevention device at 979 San Miguel on 4/4/03. Mr. Ibesson, in his test report of 9/21/04, indicated he tested and passed the backflow device at 979 San Miguel on 9/21/04. There is credible evidence that the device in question had been removed on 4/1/03. It is therefore not possible for those tests to have been performed on the dates specified by Mr. Fowler and Mr. Ibbeson on their respective test reports. Both Mr. Fowler and Mr. Ibbeson thereby falsified important records when they submitted fraudulent test reports indicating testing of a device that was no longer in existence.

6. Falsification of records is a very serious issue. The work being performed by Cross Connection Inspectors is necessary to help ensure the safety of the public’s drinking water and required by the California Department of Health and Safety. As such, any falsification of records, or a failure to perform testing duties or report missing devices represents a significant breach in the ethical responsibility of these public sector employees to place the public good first and foremost. Falsification of records inpugns the District’s reputation with regulatory agencies and irreparably damages the public’s faith in the District’s ability to adequately maintain safety standards on their behalf. As such, falsification of records, even one record, is intolerable and absolutely unacceptable.

Mr. Kelly assisted Mr. Young in the investigation. Young at 166:1-15. Mr. Kelly did not recommend discipline. His function in the investigation apparently was to gather evidence. Young at 166:1-15. Mr. Young’s Investigation Report, as noted above, set forth the allegations, evidence, findings, and that discipline would be appropriate. Mr. Young, although he recommended discipline, he did not recommend specific disciplinary penalties.

            On August 1, 2006, based upon Mr. Young’s Investigation Report, Mr. Michael D. Holley, in a letter to Margaret Ramirez, recommended that Grievant’s employment with the District be terminated. Holley at 67:1-2; Joint Exhibit 3, Attachment 1. Thereafter, on August 2, 2006, Margaret Ramirez, Human Resources Supervisor, sent a letter to Grievant, informing him of the District’s “Notice of Intent to Terminate” his employment with the District, effective August 15, 2006.  Joint Exhibit 3, Preamble. Grievant was provided Joint Exhibit 3 with all attachments. He was also advised of his right to a Skelly meeting before Assistant General Manager Kurt Ladensack on August 15, 2006 at 9:00 a.m.

It is significant to note that the Grievant has consistently maintained that Grievant’s Backflow Report and the remarks made therein was the result of a mistake.

As indicated in the Mr. Young’s Investigation Report:

He offered a possible explanation as to how he may have created a document stating he tested a device that had actually been removed by the property owners prior to his arrival at the site. He stated that in the San Miguel Road area, the water meters and backflow prevention devices are arranged in groups and that relationship of water meters and backflow prevention devices are hard to identify, thus making it difficult to determine which device goes to which customer. He further stated that he could have tested the device for the service next door by mistake. He also stated that he could have accidentally written the wrong date on the form.

Mr. Kelly, Mr. Young, and Mr. Holley each visited 979 San Miguel. Kelly at 135:22-24; Young at 171:6; Holley at 86:5. However, none of them ever fully investigated the possibility or probability that Grievant could have made a mistake as per his explanation.

Mr. Young ordered Joint Exhibit 3, Tab 11, entitled “A copy of “Records Research Results for Addresses containing “San Miguel” and Joint Exhibit 12,  Tab 12, entitled  “A copy of detailed records for 979 San Miguel Road” were evidently produced to help the District to consider whether the Grievant could have made a mistake. Joint Exhibit 3, Tab 11 was ordered to see if Grievant could have confused by transposing numbers. Young at 180:23-25. Joint Exhibit 3, Tab 14 was ordered for the property as 979 San Miguel to determine that the property address and meter matched. Young at 181:22-23. Mr. Young also took 8 color photos (items A through H) of 979 San Miguel, which included the markings on the curb directly in front of the mailbox, clearly showing the numbers 979 (item A), the front of the house at 979 San Miguel (item B), the front of the property and home as viewed from across the street and where the meter box and box containing the backflow device were located (item C), the device area which includes where the mailbox is located (item  D), the device area with a few cement lids behind it and the mailbox (item E), a close-up of the top of the meter with the meter number (item F), the meter with the meter number on it (item G), and meter box and where the double check device should have been placed and what appears to be a yellowish copper line (item H). Young at 184:1 through 188; Photo items A through H; Holley at 87:12, 14-15,17, 20-21. The photos taken by Mr. Young and computer searches ordered by Mr. Young are probative evidence of the backflow prevention device being removed from 979 San Miguel and the meter number matching 979 San Miguel. They are also relevant to the meter number on Grievant’s Backflow Report. All are relevant to possible wrongdoing by the Grievant. However, given how the mistake could have occurred as explained by the Grievant, the photos and record searches do not eliminate a possible reason given by the Grievant for his mistake.

The Grievant offered three possibilities to Mr. Young regarding his mistake. The first was that the devices in the area are hard to identify because of the way they are banked in the area around 979 San Miguel. However, Mr. Young who visited the property noted that the banks of meters are not confusing nor are they close to 979 San Miguel. Young at 171:2-4, 9.

A second possibility for the mistake alleged by the Grievant was that he could have written down the wrong date. However, this was logically discounted by Mr. Young because Grievant was testing was for 2004 and the backflow prevention assembly had been removed for more than 1 ½ years. Young at 171:20-21.

The third explanation for the mistake was that Grievant could have tested the device for the service next door. There is no evidence that either Mr. Kelly, Mr. Young or Mr. Holley ever attempted to discover if Grievant could have mistakenly tested the device “next door” with the preprinted test form for 979 San Miguel. Joint Exhibit 3, Tab 11 indicates that one of the “next door” properties has an address of 983 San Miguel Road.  This property also has the same type of double check valve assembly (DCVA) as 979 San Miguel. Assuming that the Grievant is telling the truth about mistakenly testing the device for service “next door,” and assuming that the address for “next door” is 983 San Miguel, it would be not be unreasonable to assume that the preprinted test form for 983 San Miguel might indicate that the backflow prevention device had been removed, when in fact there is such a device at 983 San Miguel and it tested 1.8 PSID, Valve #1, 2.2 PSID for Value #2, and that both Valves #1 and #2 were closed tight. In a nutshell, the Grievant may have used the preprinted test form for 979 San Miguel to test 983 San Miguel. Likewise, he may have used the preprinted test form for 983 San Miguel to test 979 San Miguel. It would not have been unreasonable for the District to have investigated this third allegation as to the alleged mistake.

The District put on no evidence that the one mistake was not related to properties “next door” to 979 San Miguel. Investigating the properties “next door” to 979 San Miguel would not have been an unreasonable burden on the District. Industrial due process requires that if an employee alleges that a mistake may have occurred due to specific reasons, the specific reasons for the mistake must be investigated, provided the investigation can reasonably and practically be completed and is not unduly burdensome. Mr. Kelly and Mr. Young and Mr. Holley all failed to investigate the facts that Grievant gave for his mistake, in particular the “house next” door. Such an investigation could have been reasonably completed and would not have been unduly burdensome. In the case before the arbitrator, only two of the three reasons for the Grievant’s alleged mistake were investigated.

Given the above, the investigation of the Grievant was incomplete and unfair. See In the Matter of the Controversy between Public Employees Union Local 1 and Contra Costa Water District, Involving the Discharge of Donna R. Johnson, Grievant (Conception, 1992) (Joint Exhibit 8). The answer to this criterial test must be answered in the negative.

VII.E.  PROOF. AT THE INVESTIGATION, DID THE ‘JUDGE’ OBTAIN SUBSTANTIAL EVIDENCE OR PROOF THAT THE GRIEVANT WAS GUILTY AS CHARGED?

The charges against the Grievant are very serious. They concern offenses of moral turpitude. Offenses such as falsification of records and dishonesty are among the most serious offenses that can be committed by an employee against his employer. Once an employee loses his honor, integrity, and reputation for honesty with his employer, it is almost impossible to regain. The employee’s veracity for truthfulness will always be questionable. Insubordination, poor work performance, violation of work rules, and similar offenses, although serious, are correctable. An employee can recover from discipline imposed for these offenses. The employer can objectively determine if the employee has in fact changed. These offenses do not hold the heavy stigma that those involving moral turpitude clearly acquire.

The charges of falsification of records and dishonesty are specific intent offenses. In other words, the District must prove that the Grievant intentionally falsified records and was intentionally dishonest. One cannot mistakenly or erroneously, or negligently falsify records or otherwise be dishonest.

Recent reported terminations for falsification of records and dishonesty have been routinely been upheld by arbitrators. Such cases include falsifying time records, Embarq, 123 LA 923 (Armendanz, 2007); falsification of statements on an employment application, American Ordinance, 123 L 983 (Kilroy, 2007); false accusations against a manager, United States Steel Corp., 123 LA 441 (Das, 2006); false accusations against a police chief, City of Port Orchard, 123 LA 581 (Knutson, 2006); false statements on an employment application and during an interview, State of Minnesota, 123 LA 92 (Befort, 2006); falsification of information to obtain unemployment benefits from their employer, Sanyo Manufacturing Corp., 121 LA 91 (Nicolas, Jr., 2005); falsification of a doctor’s note, ATC/Vancom, 121 LA 1601 (Armendariz, 2005); falsification of records concerning the Family and Medical Leave Act relating to time taken off from his employer, Interstate Brands Corp., 121 LA 1581 (Skulina, 2005); failure to complete assigned inspection of various areas on campus and falsification of same. University of Chicago, 120 LA 89 (Briggs, 2004); falsifying certifications that a truck had been routinely checked for safety, Waste Management, 120 LA 176 (Cavanough, 2004), and falsification of an inventory check, Adephia Communications, 120 LA 467 (Richman, 2004).

The burden of proof is on the District to prove by substantial evidence that the Grievant has committed the offenses charged. The arbitrator believes that the District has failed to meet this burden of proof.

The District has argued in its Closing Brief that there is evidence that Grievant was being investigated for falsifying reports at other locations. Also see Kelly at 149:15-150:4. However, Mr. Holley and the District believed that the evidence was “inconclusive.” Kelly at 150:9. No disciplinary action was taken against Grievant. Kelly at 151:1. It is significant to note that Mr. Holley and Mr. Young never testified that the Grievant had been investigated for falsifying other reports. Evidence of falsification of reports other than 979 San Miguel is not anywhere in the record of the arbitration and numerous exhibits of the parties and was not considered at the Skelly hearing. Given this fact as well as the fact that  the results were inconclusive and no disciplinary action was taken against the Grievant, it would be improper for the arbitrator to consider this investigation as proof of wrongdoing against the Grievant. The findings were “inconclusive” and no disciplinary action was ever taken against the Grievant. Therefore, this testimony by Mr. Kelly of other alleged, uncharged, and unproven prior bad acts shall not be accorded any weight in determining if the District has met its burden of substantial evidence.

The Skelly hearing was held on August 15, 2006. Ibbeson at 325:1. Mr. Kurt Ladensack is an Assistant General Manager for the District. Ladensack at 339:4-5. He was the Skelly hearing officer for the Grievant’s Skelly meeting. Ladensack at 339:21-22. He has served as a hearing officer between 40-50 times. Ladensack at 340:11-12. The Grievant testified that his Union representative, Ms. Lynn Long was present. Ibbeson at 324:20.

Grievant testified that at the Skelly hearing that he must have made a mistake. Ibbeson at 325:11-13. In regard to what Grievant stated at the Skelly hearing, the following exchange occurred between Counsel for the District and the Grievant:

Counsel:   And can you tell us what those explanations with respect to the possibility that you offered to Mr. Ladensack.

Grievant:  I believe I told Kurt and Margaret and Bea and Lynn that during the course of the day, as you go through the route there are many things that can happen, many things that can come up, that potentially an organization error with the documentation or the test forms on my sheet could have gotten mixed up.

I believe I also mentioned that San Miguel Road, one side of the road is – very clear and easy to see where the meters are and that the other side of the street the meters were banked. There were meter banks of five, meter banks of two, meter banks of three, and it could have been very easily that I mistook the actual test form at one of the other addresses for the testing question at 979 San Miguel.

I got that far and Kurt basically cut me off and said, I’ve been there, you don’t have to go any further, I have been to San Miguel Road and I have seen the devices on San Miguel Road.

            Counsel:   In fact, they’re not banked at 979, correct?

            Grievant:  979 is not banked.

            Counsel:  Anything else?

            Grievant: No, I believe that was it.

Grievant testified that the explanations set forth above to Mr. Kurt Ladensack were not based upon his actual memory or knowledge of the event, but speculation. Ibbeson at 331:24 through 332:2. The Skelly hearings officer, Mr. Ladensack, by letter dated August 17, 2006, informed the Grievant that he had decided to uphold the Grievant’s termination based upon the evidence, particularly Mr. Young’s Investigation Report. Mr. Ladensack found that the Grievant’s statements regarding a “mistake” lacked credibility and were self-serving and dishonest. Joint Exhibit 4.

The following exchange between Skelly hearings officer Mr. Ladensack and counsel for the Grievant is significant:

            Counsel:  And what facts did you consider that contradicted Mr. Ibbeson’s assertion that he had made a simple mistake?

            Ladensack:  What I took into consideration was the documentation in the investigation reports and the record of the hearing, and most particularly that the – that the report forms that are completed by these inspectors include a service address, a meter number and other information that would identify unique aspects of the particular backflow device that was installed at the site. And all of that information would provide an opportunity for the inspector to determine that that information lined up with the particular service address where the test was being performed; or conversely, if the service address or meter number or device did not align with the form information, then that would signal to that individual that there was something amiss and that they needed to figure it out and remedy it.

            Counsel:  But what about those facts that indicate to you that Mr. Ibbeson was lying about the data that was put on the form?

            Ladensack: What I relied upon was that Mr. Ibbeson had completed a report, signed it representing that he had performed a test at a particular address on a specific date and that there was separate, objective evidence provided by the property owner and their contractors that seemed to show, unequivocally, and Mr. Ibbesson conceded in the Skelly hearing that that was credible information, that the device was not there. It was simply not there. And despite my repeated attempts to have Mr. Ibbeson explain how that could be, he was unable to provide me with a plausible explanation.

            Counsel:  Isn’t it true that you don’t have any evidence that Mr. Ibbeson intentionally falsified a report?

            Ladensack:  I have no evidence of his intent.

Tr. at 347:2 through 348:14.

Mr. Ladensack further testified that he concluded that Grievant purposefully completed the test report for 979 San Miguel at a time when no device was present. Ladensack at 357:14. The evidence against the Grievant is all circumstantial evidence. Circumstantial evidence is sufficient to infer intent to falsify production records. However, the arbitrator does not believe that the evidence relating to Grievant is substantial evidence for reasons set forth below.

It is also significant to note that Skelly Hearing Officer Ladensack relied upon Mr. Young’s Investigation Report. As noted above in Section VII.D, Mr. Young investigated only 2 of the 3 reasons the Grievant gave as explanations for his mistake. Mr. Ladensack’s reliance upon this faulty investigation report makes the Skelly hearing unfair to the Grievant.

It is also significant to note that Grievant’s Backflow Report is not the type of report that requires substantial reflection, writing and analysis. Rather, it is a District preprinted form that requires the Cross Connection Inspector to fill in various blanks. During the week of September 21st, 2004, Grievant estimated that he completed approximately 60 reports. As Grievant testified:

No. I can only give the approximation of 60. And I don’t know if I was off that week any days. I don’t know if other issues arose where we were called away from doing our normal testing. Unfortunately, I tried to request all of my documents twice through the District and they refused to give them to me.

Ibbeson at 286:3-9.

A copy of Greivant’s Backflow Report is set forth below as follows:

                                                       BACKFLOW PREVENTION ASSEMBLY
LOGO     CONTRA COSTA                                                                              TEST REPORT
                WATER DISTRICT                                                                  Contra Costa Water District

 

Assembly ID

22547

Facility Name

ERCOLINO

Acct Number

18108115

Meter #

88506786

Test Report Due

09/30/2003

Service Address

979 SAN MIGUEL

Schedule Code

3.17

 

CONCORD CA 94518

Assembly Info  (Replacement/Correction)

Equip Location

 

SN        

P3472

 

Testers Initials

 

Containment

Containment

Mfr       

CONBRACO

 

Contact Name

RICHARD ERCOLINO

Ph

 

Type     

DCVA

 

Map Page

48 A7

                #2                   

 

Size      

¾

 

Meter Make: 01 Meter installed:  7/15/88

Initial Acct Date: 10/23/7

Initial Service Date: 10/26/77           2004 Test

End Service Date: 00/00/00

Model   

Install Date

Permit Num

40-104-A2T

 

 

 

 Confinement

 Freeze Protect

Hazard Type

Canal

Haz. Level

 

04/04/2003       Pass                           by: Matt Fowler []:  CV1:   2.4   CV2:   2.2:

10/24/2002       TEST                         by: Anthony Fio [08402]  CV1:  2.4  DV2:  2.0:

11/02/2001       TEST                         by: Tom Ramirez [07464]    CV1: 2.9  CV2: 2.6:

Line pressure at time of test: ________________     REPORT OF TEST RESULTS                               1A

 

Check Valve #1

Check Valve #2

Relief Valve

PVB/SVB

Shut Off Valves

 

Initial

Test

 

 

  Held at:

      1.8     PSID

 Closed Tight

 Leaked                         

 

 

  Held at:

      2.2       PSID

  Closed Tight

  Leaked        

 

 Opened at

__________ PSID

 Did Not Open

 

 Air Inlet Opened at

___________ PSID

 Did not Open

 Check Held at

___________ PSID

 Leaked

 

               #1 #2

Closed Tight  

Leaked           

R

E

P

A

I

R

 

 

 CLEANED

REPLACED

 Disc

 Spring

 Guide

 Seat

 Hinge Pin

 Diaphragm

 Module

_____________

 

 

 CLEANED

REPLACED

 Disc

 Spring

 Guide

 Seat

 Hinge Pin

 Module

 _____________

 

 

 CLEANED

REPLACED

 Disc

 Spring

 Guide

 Seat

 Hinge Pin

 Module

 _____________

 

 

 CLEANED

REPLACED

 Air Inlet Disc

 Air Inlet Spring

 Check Disc

 Check Spring

 Float

 Diaphragm

 _____________

 

 

CLEANED     

REPLACED   

REPAIR         

Other               

Other/Notes:____________________________________________________________________________

 

Final

Test

____  PSID

 Closed Tight

____ PSID

 Closed Tight

 Opened at

______ PSID

Air Inlet ___ PSID

CK Valve __ PSID

 

Closed Tight

 

            

THE ABOVE REPORT IS CERTIFIED TO BE TRUE:

Initial Test By THI

Certificate

Date: 9-26-04

Gauge Num

Time In

Time Out

Company

Phone

Final Test By

 

 

 

 

 

 

 

Repair By

 

 

 

 

 

 

 

 

The form itself contains a clear and unambiguous error. Under “Test Report Due” the date preprinted is 09/30/2003. However, the Grievant performed this test for the year 2004, not 2003. The error is further perpetuated by the fact that Mr. Fowler’s Backflow Report indicates the same “Test Report Due” date of 09/30/2003. The form used by the Grievant clearly had incorrect information preprinted on it. For demonstrative purposes, the only portions of the form that Grievant input information are in bold/italic print.

The preprinted form has information such as the customer name, address, account number, previous test dates, previous testers, etc., are all preprinted on the form. The only areas that the Grievant filled out were Check Valve #1 (wrote 1.8), Check Valve #2  (wrote 2.2) Shut off Values #1 (X placed in box), #2 (X placed in box), placement of his initials next to “Initial Test By” and placement of date next to “Date.” An indication that Grievant may have been thinking about other matters at the time that he completed filling in the blanks on this form is the fact that after the words “REPORT OF TEST RESULTS” there is no pass or fail written by the Grievant. In contrast, Joint Exhibit 3, Tab 4, the Backflow Prevention Assembly Test Report submitted by Mr. Matt Fowler, indicates the word “Pass.” Also, Grievant did not write the words “2004 TEST” on this preprinted form. This was done by Mr. Sean Kelly. Kelly at 140:10-15.

The preprinted Backflow Prevention Assembly Test Report that was used by the Grievant to prepare Grievant’s Backflow Report (when considering one mistake by the Grievant as opposed to several) is consistent with Grievant’s assertion that he made a mistake. Each form Backflow Prevention Assembly Test Report that was used by the Grievant has the address and owner’s name already typed into the form. Considerable data is preprinted on the form, including the year the test was administered, previous Cross Flow Connection testers, the dates of the tests, and the meter number. The process is now being revised to prevent these types of situations from occurring again.

The manner in which the inspectors are given the reports is also conducive to creating errors. Gill Mendoza, the Senior Cross Connection Inspector testified that on some days the cross connection inspectors are handed 75, 80, or 100 test reports in a stack. Mendoza at 219:5-8. The cross connection inspectors then go to a location on the report. Mendoza at 219:14. The manner and number or reports, accompanied with the fact that the test report itself requires little analysis makes a mistake very probable.

Grievant testified that on an annual basis, he performs approximately 2500 backflow tests. Ibbeson at 277:1. During the week of September 21, 2004, Grievant assumed that he performed approximately 60 tests. Ibbeson at 286:4. During his tenure with the District, Grievant estimated that he performed approximately 10,000 test reports during his tenure with the District. Ibbeson at 286:14.

The following exchange occurred between the Grievant and his counsel in regard to his alleged mistake:

            Counsel:   Do you have any idea of why you would have reported that you tested check values at a property that no longer had a backflow device?

            Grievant:   No, and I can say with zero doubt that if I had come to a property or residence with no check valve, I would not have filled out a test report. There is absolutely zero doubt. I would have no reason not to turn that in as a removed device.  

            Counsel:   So do you believe that this was a result of a mistake on your part?

            Grievant:   If, in fact, I did fill out this test report form – and like I say, I have never been showed the original in any investigation – the only way it could have been filled out is a mistake.

The District relies heavily upon In the Matter of the Controversy between Public Employees Union Local 1 and Contra Costa Water District, Involving the Discharge of Donna R. Johnson, Grievant (Conception, 1992) (Joint Exhibit 8). In this case the District investigated 38 different properties between February 8, 1991 and March 6, 1991 where Ms. Johnson alleged that she tested backflow prevention devices but in fact did not. In addition, two of the 38 properties did not have backflow prevention devices present on the property to test. In the case of each property where a backflow prevention device was allegedly not tested, the District advised Ms. Johnson of the date the test was logged, but not tested, the date the supervisor inspected the property, and the address of the customer. Photographs were also taken of 40% of the properties where the District alleged that work was not performed as alleged by the Ms. Johnson. Ms. Johnson, rather than alleging that she was mistaken, alleged that she checked all of the devices at each of the 38 properties. The proof against Ms. Johnson was overwhelming and the arbitrator agrees with Arbitrator Conception that there was substantial proof that Ms. Johnson did not test the devices as she so testified.

It is also important to note that in a recent in investigation concerning an employee named Robbie Porto, Mr. Holley recommended that she be terminated for falsification of production records. The Robbie Porto investigation involves falsification of production reports for six (6) sites where backflow prevention devices were not present. Holly at 355:8.

Unlike the Johnson investigation, the allegations and proof against the Grievant do not concern 38 different properties, but rather one property. Likewise, unlike the Porto investigation where Ms. Porto is being investigated for reports concerning six (6) missing backflow devices, Grievant was investigated for one (1) missing backflow device.

There is some circumstantial evidence against the Grievant regarding falsification of production records and dishonesty concerning the backflow device located at 979 San Miguel. However, the burden of proving that the Grievant has committed offenses that justify his termination is upon the District. The District must have substantial evidence. The District does not have substantial evidence to terminate the Grievant. The following totality of circumstances prevents the District from meeting its burden of substantial evidence:

(1) the Backflow Prevention Assembly Test Report form does not require substantial reflection, writing and analysis, thus making a mistake on this preprinted form very probable given the totality of circumstances of the case before the arbitrator;

(2) as set forth in SectionVII.D above, the District only investigated 2 of the 3 given reasons as to how Grievant explained how he could have made a mistake and such an investigation would not have been unreasonable or impractical to complete;

(3) the Grievant has consistently maintained that the Grievant’s Backflow Test was the result of a mistake;

(4) the Grievant, during his approximately 10 year tenure has no disciplinary record to indicate that he would falsify production records or otherwise be dishonest;

(5) the Grievant has never been counseled or disciplined for making a “mistake” regarding his work;

(6)  There is no direct evidence to sustain the charges against the Grievant, i.e., an admission by Grievant;

(7)  Mr. Ladensack acknowledged that although he believed that the Grievant  purposefully completed Grievant’s Backflow Report at a time when no device was present (Ladensack at 357:14) he also testified that he had no evidence that Grievant intentionally falsified his report (Ladensack at 348:14). The evidence against the Grievant concerning this one mistake is circumstantial;

(8)  Johnson was charged with falsifying 38 false backflow reports, 2 of which did not have backflow devices. While it is unclear as to how many total test reports Johnson tested during her period from February 4, 2001 through March 5, 2001, it is clear that of the 38 falsified backflow reports submitted by Johnson, two did not have backflow prevention devices.  More than 5% (.0526%) of the falsified tests submitted by Johnson did not have backflow prevention devices. Assuming arguendo that Johnson performed, like Grievant, 60 tests per week or 240 per month, her error to correct test ratio for a one month period would be a staggering 0.1583%, a clear indication of falsification of production reports;

(9) the Johnson and Porto investigations clearly indicate that the missing backflow prevention assemblies are quite probable throughout the District. This increases the probability of Grievant making one mistake;

(10)  Mr. Kelly testified that missing backflow devices are a frequent occurrence. He estimated that the District may come across, one, two, maybe three a month. Kelly at 147:21-23. Given this fact, Mr. Kelly or Mr. Young should have gone “next door” as Grievant suggested to investigate Grievant’s claim of mistake. Once again, the frequent occurrence of missing backflow devices increases the probability that Grievant made a mistake, as opposed to an intentional falsification of records;

(11) Grievant has been charged with falsifying one backflow prevention test. Grievant testified that he believes that annually he completes 2500 tests. Ibbeson at 277:1. Assuming arguendo that 979 San Miguel was Grievant’s only mistake during a one year period, his mistake to correct test ratio would be less than 1%, or a mere .0004%;

(12) Grievant also testified that during the week of September 21, 2004 he believes that he probably completed 60 backflow prevention tests. Assuming arguendo that Grievant completed 240 tests per month and 979 San Miguel was his only mistake during a one month period, his mistake to correct test ratio would be 0.00416% for a one month period, substantially less than 1%;

(13)  The Grievant testified that after his initial investigation, Mr. Young informed Grievant in May of 2005 that the basic “allowable rate for error is three percent.” Ibbeson at 333:6-7. While the District obviously decided that Grievant’s mistake was not an error, but rather a falsification of records, the 3% figure is reasonable and should be applied to the Grievant’s mistake given the totality of the circumstances of his grievance;

(14)  Mr. Ladensack, the Skelly Hearings Officer, relied substantially upon Mr. Young’s Investigation Report. As noted in SectionVII.D above, the District only investigated 2 of the 3 given reasons as to how Grievant explained how he could have made a mistake and such an investigation would not have been unreasonable or impractical to complete. Mr. Young’s Investigation denied the Grievant of a fair and objective investigation. In turn, it negates the fairness of the Skelly hearing that the Grievant received. In City of Modesto, 121 LA 65, 68, (2005), Arbitrator Pool found that a Skelly hearings officer who relied upon a flawed investigation lacked the evidence to sustain a termination of a grievant.

Given items (1) through (14), the arbitrator does not believe that the District has  provided substantial evidence that the Grievant intentionally falsified Grievant’s Backflow Report.  The arbitrator also does not believe that Grievant has been dishonest with the District. It appears to the arbitrator that Grievant made one honest mistake. This criterial test must be answered in the negative as to the District’s charges that the Grievant falsified records and was dishonest.

VII.F.  EQUAL TREATMENT. HAS THE EMPLOYER APPLIED ITS RULES, ORDERS, AND PENALTIES EVENHANDEDLY AND WITHOUT DISCRIMINATION TO ITS EMPLOYEES?

The Grievant was terminated for his misconduct. However, his co-worker, Matt Fowler was given a written reprimand. As noted above, both had initially been charged with the Four Disciplinary Grounds for Termination.           

As a general proposition, employees who have committed the same offense and are similarly situated must be disciplined in the same manner absent justification for the different treatment. If the employer disciplines such employees differently the employer must have good cause for the disparate treatment. Recent cases discussing this principle of disparate treatment include MKM Machine Tool Co., 123 LA 769 (Hoffmeyer, 2007); Schnuck Markets, 121 LA 783 (King, Jr., 2005); Bigfork Valley Hospital, 120 LA 1007 (Neigh, 2005); VA Medical Center, 120 LA 624 (Betts, 2004); Davidson Transit Organization, 120 LA 663 (Cox, 2004). In Union County Sheriff, 123 LA 1101, 1111 (Sellman, 2007) a police officer had informed his employer that he was K-9 certified, but later discovered that he was not. The officer did not inform his employer of his misstatement. Another officer had received a suspension for a similar misstatement. In setting aside the termination and reducing the discipline to a suspension, the arbitrator stated as follows:

Regardless of the circumstances, an employer has an obligation to be consistent in the way it disciplines its employees, unless a sufficient basis exists for disparate treatment. If the penalty is not the same, the employer has the burden of demonstrating the reasonable basis for the disparity. Giving the Employer the benefit of the doubt in the handling of the two cases cited, there is no justification in this case for one employee to receive a one day suspension and the other being terminated.

            In the case before the arbitrator, the District has consistently attempted to discharge those that have falsified production records and dishonesty concerning backflow prevention tests. This is evident from In the Matter of the Controversy between Public Employees Union Local 1 and Contra Costa Water District, Involving the Discharge of Donna R. Johnson, Grievant (Conception, 1992) (Joint Exhibit 8). In addition, the District recently terminated another employee named Robbie Porto for falsification of production records. Holley at 349:24.

The Union argues that the case of Matt Fowler indicates that the Grievant was disparately treated. However, the Grievant and Mr. Fowler were not similarly situated. Mr. Kurt Ladensack, the Skelly hearing Officer for both Grievant and Mr. Fowler, decided that since the backflow prevention device was removed on April 1, 2003, but Mr. Fowler’s Backflow Report was dated April 3, 2003, Mr. Fowler would be given the benefit of the doubt since he stated that he may have banked the report. In other words, he did inspect the device at 979 San Miguel, however, he postdated the test. Mr. Fowler was therefore given only a written reprimand for failure to perform work as directed by his supervisor. Ladensack at 343:23-25; Ibbeson at 333:22-24. On the other hand, he did not believe Grievant’s explanation of a mistake.  

Mr. Holley testified that the practice of “banking” had not been approved by the District. Holley at 71:24. In addition, Mr. Sean Kelly as unaware of this practice. Holley at 89:23-24.  In regard to “banking,” Mr. Holley testified as follows:

Banking was a process that was used allegedly by certain cross connection inspectors. As has been pointed out, we have 12,000 devices in the system. We have to get through those every year, so about a thousand devices a month have to be tested.

And those are broken up amongst effectively five cross connection control inspectors. We don’t want to get to the end of the year and find out that we’ve got six months of testing still to do.

So they have a quota. They have to test a certain number of devices every month. The process, as I understand it, of banking was that on good days they may test 23, 24 devices, and that they would just hold some of those tags back and then date them on days that they did not produce quite that many. Maybe their target was 15 and they only produced nine.

Well, then they would take six of those tags that they did on a good day, date them, and send those in to show that they’re keeping their quota up.

The practice of “banking” was evidently an accepted practice among cross connection inspectors. As Gill Mendoza, the supervising cross inspector testified:

Yeah. That was a thing that an old retiree had taught another guy that work here, Mike Mitchell, and Mike Mitchell taught me. We’d bank for like rainy days is what we did. My inspectors are no longer allowed to do that anymore.

The “banking” defense was not available to the Grievant since the Grievant’s report was dated September 21, 2004, the backflow prevention device had been removed on April 1, 2003, and the Grievant reported that he never postdated or otherwise banked a Backflow Prevention Device Test for more than one year. Grievant agreed that the unapproved practice of banking could not have affected Grievant’s Test Report of 979 San Miguel. Ibbeson at 328:23. In addition, he informed Mr. Young that he typically banked test reports for a maximum of 30 days and never banked tests reports banked one into the next year. Young at 170:11-14, 20.

Mr. Ladensack decided at the Skelly meeting for Grievant that termination was the appropriate discipline. He believed that the Grievant purposefully submitted a false production report when the device had been removed. However, in regard to Mr. Fowler, he decided that a written reprimand was the appropriate discipline. The following exchange occurred between counsel for the District and Mr. Ladensack:

            Counsel:  All right. And if I could direct your attention to Mr. Fowler. And I’ll just summarize for the record, Mr. Fowler received a written reprimand. So the Notice of Intent to Terminate was reduced to a written reprimand. Can you explain what testimony of Mr. Fowler offered at his Skelly hearing that caused you to reduce the recommended action of discharge - -

            Ladensack:  Uh-huh.

            Counsel:  -- to a written reprimand.

            Ladensack:  Yes. The key testimony from Mr. Fowler, a statement from Mr. Fowler at the Skelly hearing that was persuasive to me was that he admitted that he banked tags, that being he would perform a test on day one and perhaps submit the test postdated up to several business days later and submitted it as though that work had been performed that day.

Given the – information and evidence that was part of the record of the hearing, the customer at the address – service address on 979 San Miguel had shown that the device had been removed as of April 1 of that year and the device report that Mr. fowler had submitted was a matter of two or three days following that.

So I viewed it as a credible account of events that he had banked that particular tag, had performed the test prior to April 1 and had submitted the test result several days later….

            Counsel:  You, nevertheless, issued a written reprimand to him. Can you explain why you thought a written reprimand was appropriate?  

            Ladensack: Because the banking tags is not a condoned activity, and I found that he had not performed work as directed by his supervisor.

Tr. at 342:16 through 343:25.

The District believes that there is a difference between submitting a false report because the employee has not checked the device and submitting a false report with only the date being banked. Although both constitute falsification of a record, the difference between the two is clear and obvious. The former concerns an absolute disregard for the safety of the public, literally millions of people. The latter does not disregard the safety of the public. This practice has never been sanctioned by the District. Once it was brought to the attention of the District’s management, it was quickly prohibited.

The Grievant and Mr. Fowler were never similarly situated given the finding of Mr. Ladensack. Assuming arguendo that they were similarly situated, there was good cause for the Mr. Ladensack to order a different disciplinary penalty for the Grievant and Mr. Fowler. The answer to this criterial test must be answered in the affirmative.

VII.G       PENALTY. WAS THE DEGREE OF DISCIPLINE ADMINISTERED BY THE EMPLOYER IN THE GRIEVANT’S CASE REASONABLY RELATED TO THE SERIOUSNESS OF THE PROVEN OFFENSE, AND (b) THE RECORD OF THE EMPLOYEE IN HIS SERVICE WITH THE EMPLOYER?

            Assuming arguendo that the offenses of falsification of production records and dishonesty had been proven by substantial evidence, the discipline sought to be imposed by the District would not have been improper. The charged offenses against the Grievant are extremely serious.

            As noted above, the record of the Grievant in the service of the Contra Costa Water District has been average. He has been employed by the District for approximately 10 years. Ibbeson at 269:16. Prior to Grievant’s termination, he had never been disciplined. Holley at 90:20. Grievant’s termination was the first time he had ever been disciplined.[4]

The Grievant, throughout the arbitration hearing and during the several recesses presented himself as a respectful young man who exchanged pleasantries with his superiors that were present to testify in support of his termination. Throughout the course of the arbitration hearing, he either displayed a friendly smile, attentive demeanor, or conscientious concern. He never demonstrated a lack of respect for the District, management or his superiors.

The Grievant, while testifying presented himself as an intelligent, articulate, and mature young man. His testimony was not implausible, not incredible, and not unbelievable.

The Grievant was cooperative throughout the investigation. There is no evidence to indicate that he has attempted to conceal information. Until Grievant’s recent termination, his approximately 10 years of service was absent a disciplinary record. Ibbeson at 334:19-20.

The Grievant’s performance evaluations reflect an average employee. He has generally ranked between “satisfactory” and “above average” with an occasional “needs improvement” and an occasional “outstanding” on District’s “Performance Evaluation”  forms. Arnold at 251:8; Joint Exhibits 9, 10, 11, 12, 13, and 14. Prior to the investigation that led to his termination, Mr. Holley had informed Grievant that his work had been “excellent.” Holley at 92:9. In addition, Mr. Holley had suggested that Grievant “look into the more high-level, responsibility type jobs…” Holley at 92:21-25.

Several co-worker witnesses testified in support of the Grievant. He is clearly well-liked among his peers. The co-worker support for the Grievant, although not entitled to much weight, is an additional indication that the Grievant is not the type of person to falsify production records or otherwise be dishonest. For example, Mike Messner testified that Grievant was “[g]enerally seemed to be interested in doing as good as he could.” Messner at 201:20-21. Ed Mena testified that “[i]n my opinion, Troy Ibbeson is probably the smartest one out there among that group over there.” Mena at 212:17-19.  Gilbert Mendoza testified that “Troy is the one that pretty much helped me. Wasn’t nobody else could step up to the plate. Mendoza at 225:12-14. Steve Arnold testified that he considered Grievant a very good inspector. Arnold at 247:20-21. It is significant to note that while these witnesses all testified as to Grievant being a likeable person and good worker, none testified as to Grievant’s veracity or reputation for truthfulness.

            If the arbitrator had found that the District had substantial evidence to prove that Grievant had falsified production records and had been dishonest as charged by the District, the above circumstances would have been no mitigating circumstances to justify a reduction of the discharge penalty to a suspension or a written reprimand. [5] The above-referenced positive comments on Grievant’s behalf would not have been sufficient to mitigate his discharge to a suspension or other form of disciplinary action. The Grievant’s intentional exposure of potentially lethal health risks to the millions of people of the County of San Francisco and the substantial and significant breach of the public’s trust would have been too overwhelming to consider mitigating Grievant’s termination. The breach of trust would have involved millions of persons, exposing each to health risks that would have included the possibility of death. Logic, statistics, and reason all infer that the more alleged mistakes, the less likelihood there is of any mistake.

VIII.  AWARD.

The District has failed two of the most important tests, fair investigation and substantial proof. Accordingly, the grievance is granted. All allegations that Grievant intentionally falsified production records and was dishonest shall be permanently removed from Grievant’s personnel record and destroyed. Grievant is immediately reinstated to the position that he held immediately prior to his discharge with all back pay, seniority and benefits lost in his status as a terminated employee. Grievant is to be  made whole. The arbitrator shall continue to maintain jurisdiction of this matter for a period of 90 days as per the request of the parties.

DATED: Honolulu, Hawaii, September 17, 2007.

                                                /S/_____________________________
                                                MICHAEL ANTHONY MARR
                                                Attorney, Arbitrator, and Mediator

STATE OF HAWAII                                   )
                                                                    
)
CITY AND COUNTY OF HONOLULU     )

On this 17th day of September, 2007, before me personally appeared Michael Anthony Marr, to me known to be the person described in and who executed the foregoing “Decision and Award” and acknowledged that he executed same as his free act and deed.

                                   

                                                SEAL

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

                                               

                                                CERTIFICATE OF SERVICE

            I do hereby certify that a copy of the foregoing “Award and Decision” was duly mailed, postage prepaid on September 17, 2007 to the following persons at the addresses listed below:

Andrea Laiacona, Esq.                                                Joseph E. Wiley, Esq.
Weinberg, Roger & Rosenfeld                                    Wiley, Price, & Radulovich, LLP
1001 Marina Village Parkway                                      1301 Marina Village Parkway
Suite #200                                                                   Suite #310
Alameda, CA 94501-1091                                           Alameda, CA 94501

            DATED: Honolulu, Hawaii, September 17, 2007.
                                                /S/______________________________
                                                MICHAEL ANTHONY MARR
                                                Arbitrator



[1] Treated water is treated by the District  so that it is suitable for human consumption. The water goes through a very rigorous cleansing and disinfection process. Holley at 40:18-22. Raw water is water that is extracted by pumps from the Sacramento River or the San Joaquin River that flow into the Delta. Raw water is stored in raw water reservoirs. Holley at 40:11-17.

[2] Consistent with this finding of the arbitrator is the post-hearing brief of the District. The District argues therein that the  grounds for the dismissal for the Grievant were falsifying production records and dishonesty. There is no argument as to neglect of duty and failure to perform assigned work throughout the post-hearing brief. 

[3] Mr. Delucchi also testified that he removed the backflow prevention device on April 1, 2003 from 979 San Miguel. Delucchi at 159:11. He further testified that he did not put a new backflow prevention assembly. Delucchi at 158:23. Mr. Young also contacted Mr. Delucchi and was informed by Mr. Delucchi that he removed the backflow prevention device located at 979 San Miguel. Young at 179:2.

[4] The Grievant’s father is a former employee and union steward with the District. Ibbeson at 316:20; Holley at 91:8-15. However, there is absolutely no evidence whatsoever that the Grievant’s father’s former employment with the District has either been a positive or negative factor in the District’s decision to terminate the Grievant. In fact, it must have been positive to some degree, since Grievant was hired by the District.

[5] Each case involving falsification of production records and dishonesty must be evaluated on case-by-case basis. Unlike the case currently before the arbitrator, the falsification of a production record or dishonesty may be minor under the totality of circumstances of the case. Likewise, there may be mitigating circumstances sufficient to justify reducing a termination to a suspension.

  

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028