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Title: Contra Costa Water District and Stationary Engineers Local 39
Date: March 29, 2008
Arbitrator: Allen Pool
Citation: 2008 NAC 105

 

California State Mediation and
Conciliation Service Case No. ARB-06-0546
C. ALLEN POOL, Arbitrator
Arbitrator's Case No. 12-18-07

IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES

Stationary Engineers Local 39

                            and

Contra Costa Water District   

 

Grievance: Kim Nies - Discharge     

 

ARBITRATOR'S

OPINION AND AWARD

March 29, 2008

 



            This Arbitration arose pursuant to Agreement between the Stationary Engineers Local Union No. 39, hereinafter referred to as the “Union”, and the Contra Costa Water District, hereinafter referred to as the “District”, under which C. ALLEN POOL, through procedures of the California State Mediation and Conciliation Service was selected by the parties to serve as the Arbitrator.  The Parties stipulated that the matter was properly before the Arbitrator and that his decision shall be final and binding.

            The hearing was held in the Concord, California on December 18, 2007 and January 25, 2008 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and argument.  The witnesses were duly sworn and a written transcript was made of the hearing.  Post-hearing briefs were timely submitted to and received by the Arbitrator as of March 18, 2008 and then exchanged between the parties via the Arbitrator at which time the record was closed.

APPEARANCES:

For the Union: For the Employer:
Andrea Laiacona 
Weinberg Roger & Rosenfeld 
1001 Marina Village Parkway, Suite 200 
Alameda, CA 94501 
510.337.1001
                                                                       
Joseph E. Wiley
Wiley Price & Radulovich, LLP
1301 Marina Village Parkway, Suite 310
Alameda, CA 94501
510.337.2810



STIPULATED ISSUE

 

            Whether the District had just cause to discharge Kim Nies?  If not, what shall be an appropriate remedy?

 

RELEVANT PROVISIONS OF THE DISTRICT’S DISCIPLINARY PROCEDURES

 

(Section 4 of the MOU expresses the Grievance & Arbitration Procedure but the parties stipulated to rely on the disciplinary matters addressed in the District’s Disciplinary Procedures.)

 

            “Discharge is the most severe form of disciplinary action.  Removal from employment may be caused by a serious violation of the District’s “Causes for 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.” (Jt-13, p. 105)

 

BACKGROUND

            The Contra Costa County Water District provides drinkable water to its customers throughout the sprawling County of Contra Costa.  The District takes water from the Sacramento Delta, processes it through its two water treatment plants, and then distributes pure, drinkable water to its customers through a system of 800 miles of pipes.  One of the water treatment plants, the Bollman Plant, was the site where the events took place that led to this arbitration.  The main building of the Bollman Plant is ½ mile in length and ¼ mile in width.  Outside of the main building are 18 out-buildings that are used to house specialized equipment and chemicals used in the filtering and purification of the water, i.e. ozone, chlorine, ammonia, chloramines, etc. 

            The equipment housed in each of the outbuildings is monitored by computer systems located in a control room in the main plant.  There are two computer systems located in the Main Building’s control room.  One, the distribution system, monitors the intake of water into the plant and the distribution of purified water to the customers.  The employees who monitor this system are classified as Water Distribution Control Operators.  These operators work a different shift than the Water Treatment Operators discussed below but are located in the same control room.

            The other computer system monitors the equipment and chemicals located in the 18 out-buildings.  The employees responsible for this system are the Water Treatment (WT) Operators. If there is an equipment or chemical failure, the computer sounds an audible alarm alerting the Operator as to where and what is likely the problem.  The District has a WT Operator on duty 24 hours a day and seven days a week.  There is a day shift, an evening shift, and a night shift. 

            With one exception, there is a two-hour overlap in the shift of an incoming WT Operator and an outgoing WT Operator.  During the two-hour overlap period, the incoming WT Operator will sign in and the two WT Operators exchange information.  Usually, though not required, the incoming WT Operator will go outside to make a round to physically check the equipment and chemical gauges in the out-buildings during the over-lap period (Tr. p. 99).  An inspection round to check the equipment in the outbuildings normally takes about an hour.  One inspection round per shift is required.  Additional inspections are performed as needed.  The purpose of an inspection round of the out-buildings is to verify that the plant is secure and all systems are working and that there are no leaks.  The record showed that some of the out-buildings can be accessed via tunnels from the Main Building.  The exact number of tunnels was not placed into the record.  Plant Supervisor Paul Prewitt testified that the tunnel door to the Ozone Contractor structure was probably unlocked at the time (Tr. p. 122, 133, 134).

            Each Operator is issued two keys:  a magnetic key (card) used to access the main building and a metal key is used to access the out-buildings.  The keys are numbered and a record of to whom a key is issued is kept in the office of Ms. Tracy Simpson in the Maintenance Department.  When a WT Operator is issued a key, the person signs a Key Authorization card that cautions the person that loss of a key may result in discipline. 

            The Grievant was a State licensed Water Treatment Operator.  At the time of her termination, she was a 17-year employee of the District and had been working in District’s Bollman Plant for several years.  As a member of the top Ops Team and through the California-Nevada American Water Works Association, the Grievant won first place in a competition as a water treatment operator (Tr. p. 95-96).

            Sometime in July 2006, the Grievant lost her metal key.  She failed to report the loss to her supervisor. She and another Water Treatment Operator, Tom Bond, shared his key for the next 3 to 4 weeks.  Mr. Bond kept his key in an envelope in his desk drawer in the control room.  (There was an odd twist in the story here.  At some point before she lost her key, the Grievant and Mr. Bond’s had unknowingly switched keys.  The Grievant had Bond’s key and Bond had her key.  The keys were alike in look and shape.  So, for the 3 to 4 weeks she and Mr. Bond were sharing what was thought to be his key when actually the two of them were sharing her key.)  

            On August 11, 2006 the management team was on site at the Bollman plant.  The team included District Director David Huey, Director of Operations & Maintenance Michael Holley, Superintendent Pat Panus, and Bollman Plant Supervisor Paul Prewitt.   During their inspection tour, Supervisor Prewitt found a metal key that had been left in the door of one of the out-buildings.  The management team decided that Supervisor Prewitt would hold on to the key to give the employee, to whom the key was issued, an opportunity to come forward and claim the key (Jt-13, p. 77; Trx. P. 50-51). 

            Twenty-eight (28) days went by and no one came forward to claim the key (Trx. P. 72).  On September 8th, Director Huey instructed Superintendent Panus to conduct an investigation into the incident.  It was noteworthy that, prior to the commencement of Superintendent Panus’ investigation on September 8th , no effort was made by the District to check the number on the key found in the door with the records kept in Ms. Simpson’s office.  (I have to assume that a quick telephone call or a walk down the hall at the time the key had been found in the door on August 11th would have identified the person to whom the key had been issued.)  When a check was finally made with Ms. Simpson’s office on September 8th , and after the investigation commenced, it was learned that the key had been issued to the Grievant (Jt-13, p. 77).

            The Grievant, still thinking she had lost her key, went to Supervisor Prewitt on the afternoon of September 8th, and told him she had lost her key. This was after he had checked earlier in the day to see to whom the key had been issued.  Mr. Prewitt informed her that he had her key and that the matter was under investigation.   Superintendent Panus concluded his investigation and reported his findings on December 27, 2006.   His report included a recommendation that the Grievant be disciplined.  His recommendation, however, was influenced by subsequent events that occurred in late December.

            Over the holidays in late December, the Grievant lost her key for a second time.  On the morning of Thursday, December 22, 2006, as best she could recall, she lost her key while taking out the garbage that morning in the dark and in the rain.  She did not report the loss and worked the next three shifts without a key.  Towards the end of her third shift on December 24th, she reported the loss of the key to Supervisor Prewitt via an e-mail message.  

            Following the loss of her key the second time, the investigation initiated by Superintendent Panus was continued and expanded by the District’s Human Resource Director, Margaret Ramirez.   At the conclusion of Ms. Ramirez’s investigation, the Grievant was issued a Notice of Intent to Terminate (Jt-3).  The charges were Neglect of Duty and Failure to Perform Duties as required.  Given the seriousness of the charges and the Grievant’s history of prior disciplines, the District determined there was just cause to terminate the Grievant.  A Skelly hearing was held with the hearing officer upholding the decision to terminate.  A notice of termination was issued.  A grievance was filed and was processed to this arbitration.

POSITION OF THE EMPLOYER

            The District had just cause to terminate the Grievant for her Neglect of Duty and Failure to Perform Work as Assigned.  On two occasions she lost her high security metal key and failed to immediately inform her supervisor of the losses.  The first loss occurred sometime prior to when her key was found in a door of one of the out-buildings on August 11, 2006.  The second loss occurred in late December 2006 during the holidays.  As with the first loss, she failed to immediately inform her supervisor of the loss.  In the latter instance, the Grievant worked three 10-hour shifts without a key.  The significance of this was that without a key, she was unable to perform the full range of her duties.  Her duties involved critical work related to the disinfectant process and could have jeopardized water quality and the health and safety of the District’s customers.  The duties of a Water Treatment Operator require a physical inspection of the out-buildings.  It is critical that the operator, during an inspection, enter the buildings and perform the required duties inside the buildings.  

            During two of the three shifts she worked without a key in December, she failed to perform her duties for the first two hours of the shifts because she spent the entire time sitting with a scarf over her face.   During these two hour periods she failed to perform her duties as expected.

            In addition, her prior disciplines for excessive attendance/tardy problems were a factor in issuing the termination.  She had been given a Written Reprimand in June 2006, a 5-day suspension in September 2006, and a second 5-day suspension in November 2006.  (The second 5-day suspension was held in abeyance with the notice it would not be served if no further attendance problems occurred within the next six months.)  The District had just cause to terminate the Grievant. The grievance should be denied.

POSITION OF THE UNION

            The District did not have just cause to terminate the Grievant.  She did not commit a serious violation or have an accumulation of various violations which would warrant termination.  The Grievant was a long-time employee and the termination was a draconian punishment for losing a key and covering her face with a scarf.   The District failed to follow progressive discipline. The prior disciplines were not for the same kind of conduct as alleged in this termination. The grievance should be sustained. The Grievant should be reinstated to her position with the District and made whole all lost benefits and seniority and all lost income plus interest.

DISCUSSION

            The first item to be addressed was the District’s inclusion of the Grievant’s prior disciplines for attendance/tardy problems as a factor in the determination to discharge her.  The District’s progressive discipline policy is clearly enunciated in its Administrative Procedures and the hierarchy of discipline is clear (Jt-2, pp. 103-110).  The District, however, failed to follow a fundamental precept included in the progressive discipline standard.  Discipline is progressively applied for the same or similar misbehavior or misconduct.  The Grievant’s prior disciplines for attendance/tardy problems were not related to the charges in this instance, i.e. loss of a key, non-performance of duties.  It was inappropriate for the District to include the prior disciplines for attendance/tardy problems as a cause for termination. 

            The matter of the scarf over her face was a non-issue.  There was no violation. Nothing was placed in the record showing that she was not performing her duties.  The Grievant, on arriving for her shift, told her co-worker Mr. Irshad Ahmad that she was tired and wanted to rest.  He testified that he had no problem with that since he was there and on duty (Trx. p. 148).  Also, nothing was put into the record to show that she was asleep or had failed to perform her duties during those periods of time.  The computer monitors were working and would have sounded an audible alarm if there had been a malfunction (Trx. p. 146).   Moreover, Mr. Ahmad testified that when he left the Grievant said “Goodbye” (Trx. p. 141).  Mr. Galen Wade, the Distribution Operator, testified that the Grievant removed the scarf as soon as Mr. Ahmad left (Trx. p. 159).  With respect to the scarf incident, there was no violation.

            The critical charge against the Grievant focused on the key issued to her for access to the out-buildings.  The record was clear.  She did, in fact, lose her key on two occasions.  Two members of the District’s management team testified that to perform the required full range of duties a WT Operator must have a key, and if the person does not have a key the person cannot perform the requisite duties (Superintendent Trx. pp. 88, 91; Plant Supervisor Prewitt Trx. p. 115).  In the Grievant’s case, since she worked three 10-hour shifts over the December holidays without a key, the District concluded that she failed to perform her duties, compromised the security of the facility, and created a potential health risk for customers.

            The loss of a key in and of itself is not a serious violation.  The loss of a key has the potential for serious consequences but, in this instance, the conclusion of the Arbitrator was that up until the time the Grievant lost her key for the second time the loss of a key was not considered a serious offense by the District. No evidence was put into the record showing that the District had ever terminated an employee for loss of a key.  In most cases, the employee(s) were given a written reprimand.  The one exception was when Mr. Bond was given a 3-day suspension for the loss his key in the Summer/Fall of 2006.

            The seriousness of the charges that the Grievant compromised security and created a health risk was undercut by the District’s attitude and actions when an unknown employee was knowingly allowed by the District to work for 28 days without a key from August 11th to September 8, 2006.  When the management team discovered the key left in an out-building door, the group made no effort to identify the person to whom the key was issued.  During that 28-day period an employee worked his/her scheduled shifts without a key. 

            When asked why that was allowed to happen the Director of Operations and Maintenance, Michael Holley, testified that security was not a problem because the District had possession of the key.  When asked if the unknown employee performed the full range of his/her duties, Mr. Holley testified that the log sheets kept in the control room showed that the duties had been performed.  He also testified that it was a busy time of the year, there was a heat wave, and Plant Supervisor Prewitt, along with others, was gone on vacation (Trx. pp. 50-55; pp. 76-78).    In addition, when it was discovered that the lost key from the door belonged to Mr. Bond, the District did perceive it to be a serious violation.  He was issued a 3-day suspension not a termination. 

            The record did not reveal why the Grievant received disparate treatment, but she did.  The record revealed that she lost a key twice.  However, losing a key is a mistake not a serious violation.  Nothing was put into record showing that the District had ever terminated an employee for losing a key (Trx. p. 48-50).

            The record revealed that at the time Mr. Bond lost his key the District did not conclude that that Mr. Bond failed to perform the full range of his duties.  With the Grievant, the District took a different position and concluded that an employee (the Grievant in this instance) could not perform the full range of duties without possession of a key.  That may be a correct assumption but the problem was that the District treated her differently than other employees in the past.  Inherent in the just cause standard and in every collective bargaining agreement (MOU) there is a covenant of good faith and fair dealing.  The manner with which the District treated the Grievant was a violation of that covenant. 

            For reasons discussed in the above, the conclusion of the Arbitrator is that the District acted arbitrarily and unfairly and did not have just cause to terminate the Grievant.  The grievance is sustained in part.  The District is directed to immediately reinstate the Grievant to her position with the District, to restore her seniority, and to make her whole for all lost benefits and all lost income plus interest.

            The Grievant was not without some fault.  She lost a key twice and with each loss failed to timely report the losses as she should have done.  For those violations, it is the decision of the Arbitrator that the Grievant be issued a three-day suspension. 

AWARD

 

            The Grievance is sustained in part.  The District did not have just cause to terminate the Grievant, Kim Nies. 

 

            The Grievant was not without some fault.  She lost a key twice and with each loss failed to timely report the losses as she should have done.  For those violations, it is the decision of the Arbitrator that the Grievant be issued a three-day suspension. 

 

REMEDY

 

            The District is directed to immediately reinstate the Grievant to her position with the District, to restore her seniority, and to make her whole for all lost benefits and all lost income plus interest.

            The Arbitrator retains jurisdiction over any dispute that may arise over the implementation of the remedy.

 

 

 

 

March 29, 2008                                                 ________________________________

                                                                                    C. ALLEN POOL, Arbitrator

 

                       



[1] The Parties stipulated that “negotiated agreement” referred solely to their Collective Bargaining Agreement (Tr-9).

[2] Union Exhibits are referenced as U-1, U-2, etc.  Agency Exhibits are referenced as A-1, A-2, etc.  References from the transcript are cited as Tr. p. 1, Tr. p. 2, etc.

2 For more on “just cause” see pages 930-933 in Elkouri & Elkouri. How Arbitration Works, Bureau of National Affairs, 6th Edition, 2003.

Chapter 2, “Just Cause” in  Discipline and Discharge in Arbitration, Editor-in-Chief Norman Brand.  The Bureau of National Affairs, 1998.

Koven, Adolph & Susan L. Smith, Just Cause the Seven Tests, 2nd Edition, pages 1-26. The Bureau of National Affairs, 1992.

 

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