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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
|
In the Matter of the Arbitration Between STATIONARY ENGINEERS LOCAL 39,
and The CONTRA COSTA WATER DISTRICT
Employer. _______________________________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
DECISION AND AWARD; HEARING DATES: June 21 and 22, 2007
Grievance of |
MICHAEL ANTHONY MARR
A
DECISION AND AWARD
The above-referenced matter came on for hearing
before the arbitrator on June 21 and 22, 2007 in
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
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
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
In addition to
Skelly
requirements, employees are entitled to compliance by the governmental
employer with the procedures specified within its own regulations.
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
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
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
VI.
CONCISE STATEMENT OF THE
The
VII.
DID THE
DISTRICT HAVE JUSTCAUSE TO TERMINATE THE GRIEVANT?
The MOU between the District and
the
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
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.”
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
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
2.
The Contra Costa Water
District serves domestic water to the cities and communities of Clayton,
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:
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:
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, es
