Government Employees Union and City and County of Honolulu Board of Water Supply
MICHAEL ANTHONY MARR
BEFORE ARBITRATOR MICHAEL ANTHONY MARR
STATE OF HAWAII
DECISION AND AWARD
The above-referenced matter was heard before this Arbitrator on June 17, 18, and 19, 2008 at the Hawaii Government Employees Association Union Hall in Honolulu, Hawaii. The proceeding was transcribed by the Honolulu Reporting Services. [Please refer to transcript of these proceedings, hereinafter sometimes referred to as “Tr.” or by a witness’s or an attorney’s last name followed by the transcript page number(s)]. This Arbitrator was mutually selected by the parties to render a final and binding decision concerning the above-referenced grievance. Both parties were represented by professional and competent counsel at the arbitration hearing. The Hawaii Government Employees Association, AFSCME, Local 152, AFL-CIO, hereinafter sometimes referred to as “Union” and W***********, hereinafter sometimes referred to as the “Grievant” were represented by Greg Nishioka, Esq. The City and County of Honolulu, Board of Water Supply, hereinafter sometimes referred to as “Employer” or “City” or “BWS” was represented by Deputy Corporation Counsel Paul K. Hoshino. During the arbitration hearing, sixteen (16) exhibits were received into evidence from the Employer. Nine (9) exhibits were received into evidence from the Union. The Unit 1 Collective Bargaining Agreement, which governs the relationship between the parties, hereinafter sometimes referred to as “CBA,” was accepted into evidence as Joint Exhibit 1. The Employer called three (3) witnesses and the Union called three witnesses (3), one of whom 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 CBA was silent as to when closing briefs would be due, the parties agreed that their briefs would be due 30 days from the receipt of the transcripts. The transcripts were delivered to this Arbitrator on June 18, 2008. Therefore, the closing briefs of the parties were due on July 20, 2008. The parties mutually agreed to continue the deadline to submit closing briefs. This Arbitrator received the closing brief of the Grievant on December 8, 2008. Therefore, his arbitrator’s decision and award were due 30 days from the receipt of closing briefs, or January 8, 2009. The Decision and Award was sent to the parties on January 8, 2009.
This 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. This 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 this Arbitrator has not read and reread the transcripts, briefs and numerous pages of exhibits and carefully considered all arguments of counsel. Rather, this Arbitrator elects to address only those elements that have had a significant impact on his decision-making process. This Arbitrator, as a general rule, will not comment on matters that he believes are irrelevant, superfluous, redundant, or rendered moot by his decision and award.
I. BRIEF BACKGROUND.
The City has argued that at approximately 2:00 p.m. on October 14, 2004 an incident occurred between the Grievant and Security Guard Richard Borrero at the City and County of Honolulu, Board of Water Supply, Kalihi Substation. The events of October 14, 2004 shall hereinafter be referred to as “the incident.”
An investigation was initiated by the City after Security Guard Richard Borrero filed an Incident Report alleging workplace violence against the Grievant (Employer Exhibit A, Appendix A). The investigator, Trisha Watson, concluded that the Grievant had directed profanity at Security Guard Richard Borrero while attempting to initiate a physical confrontation with him during the incident. The Union has argued that the Grievant has denied the allegations and was not responsible for initiating a confrontation with the Grievant during the incident. The Union further argues that the incident as described by Mr. Borrero never took place. Rather, the incident occurred as described by the Grievant.
II. STIPULATED ISSUES.
The two primary stipulated issues to be resolved by this Arbitrator are as follows:
(1) Did the employer have proper cause under the Unit 4 Collective Bargaining Agreement to suspend the Grievant for 15 days?
(2) If so, what is the appropriate remedy?
(Tr. at 5).
III. THE UNIT 4 COLLECTIVE
Article 8 of the Unit 4 Collective Bargaining Agreement provides in relevant part as follows:
Article 8 - Discipline
IV. DID THE CITY AND COUNTY OF HONOLULU
HAVE PROPER CAUSE TO
SUSPEND THE GRIEVANT FOR 15 DAYS?
Given Article 8 of the Unit 4 CBA, Grievant may not be disciplined without proper cause. 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. A review of arbitration decisions at the Hawaii Labor Relations Board Law Library indicates that this test has been regularly used by Hawaii arbitrators, public employers and unions that represent public employees to determine if “just cause” exists for disciplining public employees who are employed by the State of Hawaii and the County Governments of the State of Hawaii. Arbitral decisions published in the Labor Law Reporter (BNA) and the Commerce Clearing House Labor Reporter 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 support simply because it has come to symbolize the essence of fundamental fairness and industrial due process.
Although this Arbitrator has applied a different “just cause” test in disciplinary matters, he has 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 the most important elements of industrial due process that must be addressed at a grievance hearing relating to disciplinary action. 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. Industrial Due Process, without framework and structure, is an ambiguous term. Employers and Unions will not be put on notice exactly what factors an arbitrator shall consider as meeting the due process rights of public employees. With the Daugherty test, 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, this Arbitrator has referenced Arbitrator Daugherty’s just cause test in City and County of Honolulu and the United Public Workers, Union, Class Grievance (March 13, 2003) (Marr, Arb.); State of Hawaii, Department of Public Safety, Halawa Correctional Center and the United Public Workers, Grievance of Gordon Leslie, (September 22, 2005) (Marr, Arb.); State of Hawaii, Department of Public Safety, Hawaii Community Correctional Facility and the United Public Workers, Grievance of Kirby Imai, (July 13, 2006) (Marr, Arb.); Qwest Communications and the Communication Workers of America, Grievance of Michael Mason, FMCS # 06-54506 (November 20, 2006) (Marr, Arb.); In the Matter of the Arbitration between the Contra Costa Water District and the Stationary Engineers Local 39, California State Mediation and Conciliation Service Arb #06-0303, Grievance of Troy Ibbeson, (September 17, 2007) (Marr, Arb.); In the Matter of the Arbitration between the United Food and Commercial Workers Local 7 and the United Local Seven Staff Union, Grievance of Lori Mueller, FMCS # 07-58217 (February 11, 2008) (Marr, Arb.) and In the Matter of the Arbitration between the United Public Workers and the City and County of Honolulu, Department of Facility Maintenance, Grievance of Francis Smith, (October 28, 2008) (Marr, Arb.).
The City argues that Arbitrator Daugherty’s just cause test should be used as a guide and rejected, but at the same time applies the test to the suspension of the Grievant. The City cited three decisions where Hawaii Arbitrator Ikeda used Arbitrator Daugherty’s just cause test as a guide. Arbitrator Walter Ikeda indicated that he would not apply the test in UPW and State of Hawaii, Department of Transportation, Grievance of Shane Alcosiba (2001), stating that “there is no prevailing view that there must be an affirmative finding on each point, otherwise the discipline will be reversed. Some situations simply do not fit into such neat categorization.”
Arbitrator Walter Ikeda has a reputation as an arbitrator who possesses arbitral independence, integrity, knowledge, fairness, patience and common sense intelligence. I would most certainly agree with such a learned arbitrator that “[s]ome situations simply do not fit into such neat categorization.” This only makes common sense as there are exceptions to almost every rule. However, the grievance before this Arbitrator concerning Mr. W is not one of those “exceptional situations” where Arbitrator Daugherty’s just cause test should not be applied.
Arbitrator Daugherty’s “just cause” test consists of seven (7) criterial questions against which an 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 affirmative, an arbitrator is free to use his own judgment, based upon arbitral precedent and industrial due process, 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.
IV.A. NOTICE. DID THE EMPLOYER GIVE THE
EMPLOYEE FOREWARNING OR FOREKNOWLEDGE
OF THE POSSIBLE OR PROBABLE CONSEQUENCES
OF THE EMPLOYEE’S DISCIPLINARY CONDUCT?
To meet this criterial question, notice may be express or implied. The record indicates that the Grievant had express warning that workplace violence in the form of attempting to initiate a physical confrontation with a co-worker could lead to disciplinary action. The Board of Water Supply has a “Workplace Violence Prevention and Intervention Policy.” (Employer Exhibit M). The purpose of this policy as stated therein is as follows:
To establish a workplace violence prevention and intervention policy for the Board of Water Supply that establishes an analysis of our employees risk to hazard of violence, mandates the application of reasonable administrative and/or engineering controls to counteract the reasonable potentialities of violence, and codify a singular approach to workplace violence review that shall be followed in all operating units.
The Board of Water Supply “Workplace Violence Prevention and Intervention
Policy” provides the following as an introduction to the policy:
It is the policy of the Board of Water Supply to promote a safe work environment for all employees. A safe work environment free from acts or threats of violence is the joint responsibility of management and employees. Acts or threats of physical violence, including harassment, intimidation and other disruptive behavior in the workplace will not be condoned or tolerated. All incidents of workplace violence shall be taken seriously, investigated promptly, and dealt with appropriately.
Grievant attended workplace violence training classes on May 22, 2000, February 22, 2002, and October 9, 2002. (Witeck at 188:19-20). Also see Employer Exhibit O. The Grievant had knowledge that his actions during the incident could result in disciplinary action.
Assuming arguendo that the Grievant did not have express notice, notice may also be implied. As stated in Smith and Koven’s Just Cause, The Seven Tests, 7th Edition, BNA Books, 1992, at pages 31-34:
Conduct Wrong in Itself. There are some kinds of activities that every employee should know will not be tolerated on the job. For misconduct of this kind, “forewarning or foreknowledge” is given by common sense rather than by any specific written rule or explicit oral direction. To put it another way, notice that actions in this category are wrong is “implied…”
As a general rule, discipline may be imposed without specific advance notice for two classes of misconduct:
Socially disapproved – actions that society as a whole prohibits or disapproves, including: …
● misconduct directed against persons, such as threats of bodily harm, unprovoked assaults, police brutality, caring of firearms on company premises, rape, or sexual harassment…
Industrially disapproved – activities that violate fundamental principles of the employer-employee relationship, including:…
In Norman Brand’s Discipline and Discharge in Arbitration, 4th Edition, BNA Books, 1998, page 272, it was stated that a policy or rules against fights are not necessary:
Arbitrators have defined fighting as a physical attack or struggle involving the exchange of blows, or a strike by one upon another with an intent to harm or injure. Employer’s have an obligation to provide for the safety of their employees, which includes protecting them from violence by other employees. Employees who engage in fighting can be disciplined or discharged for their misconduct. Arbitrators have upheld the discharge of an employee after a first offense for fighting. Arbitral authority also supports the discharge of all employees who are actively involved in a fight.
Discipline for fighting, even immediate discharge, is not contingent on a workplace rule expressly prohibiting the conduct. Certain types of conduct are so inherently improper that no published rule is necessary to prohibit them in order to make them subject to discipline. Arbitrators take a number of factors into consideration when deciding whether discipline is justified…
(Bold scoring provided by this Arbitrator).
Accordingly, the 2002 Supplement to Norman Brand’s Discipline and Discharge in Arbitration, 4th Edition, BNA Books, 1998, page 78 provides:
Direct threats of violence are considered tantamount to the violent act itself in some situations. An employee was held to be discharged for just cause for violent action where he pointed his finger at another employee, saying “you are about to get your ****** whipped,” and swung at him with a clenched fist, even though he did not actually hit the other employee.
(Bold scoring provided by this Arbitrator).
Grievant’s alleged use of
profanity in an offensive manner toward Security Guard Richard Borrero and
his challenge to him to fight would clearly constitute socially unacceptable
With or without a ‘zero tolerance policy’ against violence, employers have the right to expect that their employees will refrain from treating co-workers in a manner that can shock and upset them. The claimant in this case breached that duty. Furthermore, she did so willfully. Although she did not intend to harm or threaten the co-worker, she did not p[ut] her hands around her co-worker’s neck and throat inadvertently or accidentally, but intentionally. Under these circumstances, it is concluded the claimant did commit acts which showed a deliberate disregard of standards of behavior which the Employer had a right to expect of her. It is therefore concluded that claimant was discharged for misconduct connected with … work.
Id. at 263.
This first criterial question must be 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, this Arbitrator must ask if the City and County of Honolulu established a rule that was reasonably related to the orderly, efficient, and safe operation of the City’s business and to the performance that can be expected of the 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. The City and County of Honolulu rule against fighting, threats of violence against co-workers, and challenging co-workers to fighting is most certainly reasonably related to the orderly, efficient and safe operation of the City’s business and operations As the Supreme Court stated in Haworth v. State, 60 Hawai´i 557, 560 (1979):
The common law duty of an employer to exercise reasonable care for the safety of his employees has been stated: A Master is subject to a duty that care be used either to provide working conditions which are reasonably safe for his servants and subservants considering the nature of the employment, to warn them of risks of unsafe conditions which he should realize they may not discover by the exercise of due care.
In addition, it most certainly is reasonable for the City to expect that BWS employees refrain from workplace violence. The answer to the second criterial question is answered in the affirmative.
IV.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 this Arbitrator to evaluate whether the City and County of Honolulu, Board of Water Supply, conducted a timely and thorough investigation to satisfy due process requirements in determining if an employee has committed 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 this Arbitrator is the Union’s allegations that there was no meaningful investigation.
The incident occurred at approximately 2:00 p.m. on October 14, 2004. Shortly thereafter, that same day at approximately 2:30 p.m., Security Guard Richard Borrero filled out a “District Protective Service, Inc., Incident Report.” The incident report provides in relevant part as follows:
At about 8AM to 830AM, Mr. W brought my attention to illegal parked vehicle in a restricted area. He ordered me to tag that vehicle, I then stated that I’ll tag, when main entrance not bust. At about 9:00 to 9:30 AM when I went back there, there was one truck parked by nursery, so I tagged vehicle and completed my patrol around premises. I noticed 2 more vehicles parked in restricted area and I tag vehicles because I did not want Supervisor Mr. W to tell me why I tag this vehicle & not that vehicle and try to confuse me like he normally do & turn me in for not doing my job. A few hours later, Mr. Kerry from around the back came in, called me over & asked me about tags on vehicles, I told Mr. Kerry that Mr. W told me to tag vehicle, he then (sic) & I stated to him, I tagged all vehicles in the restricted area and left. Around 2PM Mr. W came through the main gate, told me to come by gas pump and told me that he wanted me to tag only one vehicle, I then stated I tagged all vehicles, then Mr. W started yelling at me, that I told someone he was a *********from there I did not understand what he was saying so I walked walked away. A few minutes later, he approached me at Guard Shack, started yelling at me and asked me to step off the premises so we could fight. I went off premises and I tried to tell Mr. ********, I’m just trying to do my job & I walk away and went back to guard shack. Thereafter, I stopped and apologized to Mr. W and told him I did not understand what he wanted me to do. Every time he orders me to do something, it always comes out wrong. I cannot please Mr. W as hard as I try.
(Employer Exhibit A, Appendix A). 
Ms. Trisha Watson was retained as “Lead Investigator” with Mr. John Witeck acting as “investigator” concerning the statements of Mr. Borrero and Mr. Maldonado. (Watson at 36:22; Employer Exhibit A). Mr. Witeck believes that Ms. Watson was retained from the “outside” because of the “rank” that the Grievant held with the Board of Water Supply. (Witeck at 195:20-22). Ms. Trisha Watson was a private consultant for various law firms and entities that reviewed Human Resources issues. (Watson at 9:5-17). Ms. Watson was given the written statements of two security officers and asked to investigate the written statements. (Watson at 12:14-19). She was subsequently put in contact with Mr. John Witeck who was instructed to assist Ms. Watson as an investigator and to arrange for the interviews of Mr. W, and the two security officers, Mr. Borrero and Mr. Maldonado. (Watson at 13:21-24; 14:4-5; 36:15-18). Mr. Witeck was present when Ms. Watson interviewed the Grievant, Mr. Borrero, and Mr. Maldonado. (Watson at 40:25-41:1-2; 104:5; 122:25; Witeck at 202:8).
Ms. Watson testified that although Mr. Witeck had considerable control over the investigation, “Mr. Witeck really served largely more as an assistant with logistics. He would arrange for the times with the exception, as I noted earlier, with Mr. W, where I gave him the option of determining which time he wanted to be interviewed at.” (Watson at 116:13-20). Mr. Witeck testified that Ms. Watson, as “Lead Investigator” was responsible for leading with the investigation questions at the interview, for preparing the investigation report and for investigating the incident. (Witeck at 205:25-206:2). His job was to advise Ms. Watson of the Grievant’s rights under the labor contract such as the right to representation and also to provide logistical support. (Witeck at 206:1-13).
Ms. Watson acknowledged that although Mr. Witeck may have spoken to other persons such as Gary Ping, she was not privy to the interviews and same did not have any weight on her investigation. (Watson at 44:10-13). Ms. Watson was not interested in conclusions drawn by other persons. (Watson at 44:18-19).
The first person to be interviewed was the Grievant at the Kalihi baseyard. (Watson at 148:21-24; Witeck at 176:11-16). The Grievant was interviewed on November 4, 2004. (Witeck at 200:1). Ms. Watson also inspected the site of the incident which occurred at the Kalihi baseyard. (Watson at 149:12). Prior to the Grievant’s interview, he was asked if he wanted to have a Union representative present but he elected to proceed without one. (Witeck at 177:9-17). Subsequently, on that same day of November 4, Mr. Borrero and Mr. Maldonado were interviewed at the Beretania Street Board of Water Supply. (Watson at 150:1-2; Witeck at 181:16; Witeck at 201:9-10). Ms. Watson, as part of her investigation, prepared a computer diagram of the area where the incident occurred. (Watson at 150:12-13) (Employer Exhibit A, Page 13). Mr. Witeck also provided Ms. Watson with a brief orientation of the layout of the facilities at the Kalihi baseyard. (Watson at 150:21-23).
When Mr. Borrero and Mr. Maldonado were interviewed, their supervisor, Mr. Brasher was also present. (Watson at 118:16-17). Ms. Watson was not concerned about coercion by Mr. Brasher during the interview process as both men look worried and wanted to have Mr. Brasher present. (Watson at 118:16-17). During Mr. Maldonado’s interview, Mr. Brasher left the interview for a period of time. (Watson at 118:18-20). Ms. Watson considered Mr. Brasher’s presence support for his employees. (Watson at 119:1-2).
Both Mr. Borrero and Mr. Maldonado looked very nervous. (Watson at 117:16-17). Ms. Watson completed her extensive and complete investigation report on November 17, 2004 (Employer Exhibit A), hereinafter sometimes referred to as “the Investigation Report.” The Investigation Report was written by Ms. Watson and Mr. Witeck was given an opportunity to edit and contribute to the report. (Watson at 37:207). Ms. Watson believes that she “bent over backwards” to give the Grievant the benefit of any doubt. (Watson at 54:23-25).
As per the Investigation Report and as noted above, the first person interviewed was the Grievant. The Grievant signed a statement that was prepared by Ms. Watson. The statement provides as follows:
STATEMENT OF MR. W
RE: INCIDENT REPORT FILED BY RICHARD ON OCT. 14, 2004
My name is Mr. W. I am a Water Service Superintendent. I have been with the Board of Water Supply (BWS) for approximately 33 years. I work at the Kalihi Baseyard.
Richard is a private security guard. BWS has a contract with his employer. Richard has been at this location for about 2 years. I am not Richard’s supervisor. Richard reports to Lan Yoneda, the Superintendent. While Richard has once called me to report an invasion incident at the baseyard, I do not give Richard orders.
I was on vacation and sick leave for most of the month of September. Prior to my leave, Richard and I would talk on a regular basis. We were friendly with each other, talking regularly about our hobbies and families. We shared an interest in racing trucks, so we would talk about fixing cars or building cars.
When I came back from my leave on approximately October 1, 2004, Richard and I would share casual conversations. During these conversations, many different topics would come up. Two topics included a complaint made by Gary Ping (a BWS employee) about having his car tagged and the changing of the contract between BWS and the private guard company Richard works for.
Richard told me that he tagged Gary Ping’s car and that Gary complained to the supervisors about it. I only heard about the incident from Richard, as it occurred while I was on leave.
Richard also told me BWS was changing the security contract with Richard’s employer and that he was going to lose his job because of it. He said that he would have to collect unemployment. He seemed angry about losing his job.
On October 14, 2004, I came to work and saw that there was a truck parked near the nursery where Gary Ping works. Gary Ping was outside talking to someone and looking at the truck. Remembering what Richard told me about Gary Ping’s complaint and not wanting Richard to get into trouble for tagging Gary’s car, but not tagging others’ cars, I went out to Richard to talk to him. I, as a friend, suggested that he find the owner of the car and ask the owner to move the car.
Later that same day, at approximately 1:15 pm, I saw Cary Shinozawa at the 24 hour crew shack. Cary and I were just talking when Cary mentioned that Richard was tagging cars. Cary also told me that Richard told him (Cary) that I had told Richard to tag cars.
This upset me. This was not the first time Richard placed blame on me for his actions. I had not told Richard to tag cars. I only suggested that he find the owner of the truck parked illegally near the nursery so that Gary Ping would not get angry. I feel that Richard’s behavior of telling the work crew that the supervisors are telling him to tag cars only creates problems between the men and the bosses. The supervisors and work crew are working hard to get along well, and Richard’s behavior only hurts this effort.
After talking to Cary, I went to talk with Richard in the guard shack. When I got there, there were two security guards, Richard and another security guard. Not wanting to embarrass Richard by scolding him in front of another employee, I asked Richard to step out of the guard shack so we could talk privately. I never asked Richard to step off the premises and I never asked him to fight.
Richard and I talked outside of the guard shack. While I was angry and did get loud, I never swore or threatened Richard. I did scold him for going around and telling the employees that I told Richard to tag their cars when I never did that. After I confronted Richard, he said that I had told him to cite the cars. I did not do that. I left Richard at the guard shack.
I did not think much of the incident. The following week I attended a training and was not at the baseyard, so Richard and I did not interact. After I found out about the complaint, I tried to talk to Richard about it, but he just walked away. I was surprised by the complaint because we still waved to each other daily. We even waved to each other on the day of the incident as I left the baseyard.
I, Mr. W, HAD THE OPPORTUNITY TO READ, MAKE CHANGES TO, AND ASK QUESTIONS ABOUT THIS STATEMENT. I DECLARE UNDER THE PENALTY OF PERJURY THAT THE FOLLOWING STATEMENT IS TRUE AND ACCURATE TO THE BEST OF MY KNOWLEDGE.
Mr. W____________________ Water Service Superintendent___
Printed Name Title
Trisha K. Watson ____________ /S/ 11//4/04______
Prepared by Signature and date
John J. Witeck ______ Personnel Management Specialist
Witness (printed name) Title
Witness Signature Date
(Employer Exhibit A – Appendix C).
The process of interviewing the Grievant and preparing Employer
Exhibit A, Appendix C, took approximately 2 hours. (Watson at 14:22-23). The
Grievant was given an opportunity to review
The Grievant also informed Ms. Watson that Mr. Cary Shinozawa would be a witness for him and Mr. Shinozawa contacted Ms. Watson by telephone. (Watson at 16:2-4; 43:14-19). Ms. Watson indicated in her Investigation Report (Employer Exhibit A, footnote 18) the following regarding Mr. Shinozawa:
While Mr. W also provided witnesses as to the altercation, they were
largely irrelevant or unconvincing. First,
Cary Shinozawa admits that while he saw Mr. W and Borrero talking, and that
Shinozawa did testify as a witness at the arbitration hearing. (Shinozawa at
311-328). However, he could not remember much about the incident. (Shinozawa
at 313:9). He had only heard
Ms. Watson also contacted the supervisor for Mr. Borrero and Mr. Maldonado, Mr. Brasher, whom she interviewed and was provided with various logs and documentation which she reviewed. (Watson at 16:4-7; Witeck at 247:9). However, the interview with Mr. Basher was primarily for clarification of a diagram where the incident took place. (Watson at 43:20-44:1; 107:8-16).
The reports of Mr. Borrero and Mr. Maldonado differed from the Grievant. (Watson at 16:10-15). Ms. Watson testified that she wanted to make every effort to find evidence that would indicate that the statements of Mr. Borrero and Mr. Maldonado against Grievant were false. (Watson at 16:16-24). Ms. Watson discovered that no one admitted to seeing the incident or being close enough to give an account of what happened between the Grievant and Mr. Borrero with the exception of Mr. Maldonado. (Watson at 17:3-10). Ms. Watson was unable to find any evidence that would support the Grievant’s side of the incident. (Watson at 17:13). Ms. Watson did not find Grievant’s statement to be as credible as that of Mr. Borrero and Mr. Maldonado. (Watson at 22:23-24).
Ms. Watson considered Mr. Maldonado’s statement of the events important for two reasons, proximity to the incident where he could hear what was being said and her belief that he had no interest in what had happened between Grievant and Mr. Borrero. (Watson at 17:25-18:1-7). Ms. Watson believed that Mr. Borrero and Mr. Maldonado had no affinity because they were not “buddies,” did not “hang out together,” and did not necessarily work with one another at the same time. (Watson at 18:710). When one was getting off of work the other would be reporting for work for the security company. (Watson at 18:11-14). She found Mr. Maldonado to be a very compelling and convincing witness (Watson at 18:20-22) and also the most credible witness. (Watson at 22:14-16). Ms. Watson also concluded that there was no evidence that Mr. Borerro would file a false written statement against the Grievant despite the fact that there was evidently tension between BWS employees and the security guard company. (Watson at 46:5-23).  Ms. Watson did not believe that either Mr. Borrero or Mr. Maldonado would be willing to risk their jobs by filing a false complaint against the Grievant. (Watson at 50:12-15).
As noted above, Ms. Watson relied heavily upon the written statement and interview of Mr. Maldonado. She spent approximately one hour interviewing Mr. Maldonado. (Watson at 80:7). His written report, in relevant part, provides as follows (Employer Exhibit A, Appendix B):
At 2 pm on Oct 14, 04 Supervisor Mr. W confronted S/O Richard at the gas pumps in the Kalihi base yard about tagging private vehicles which supervisor Mr. W told him to do earlier when S/O Richard walked back to the shack to talk to me. Supervisor Mr. W was swearing at S/O Richard to come out of the gate to fight him. S/O Richard walked away back to the shack to talk to me.
Ms. Watson’s investigation report elaborated more on the events concerning the incident and the statements given by the Grievant, Mr. Borrero, and Mr. Maldonado. The most relevant provides as follows:
All parties agree that there was a confrontation between Mr. W and Borrero. There is a disagreement as to the number of confrontations and their locations.
Mr. W insists that there was only one brief confrontation between the two men outside the guard shack. Mr. W said that he went into the guard shack where Borrero and Maldonado were located. Mr. W asked Borrero to step out of the guard shack so they could speak, so as not to embarrass Mr. W in front of Maldonado. Mr. W says the two men (Mr. W and Borrero) spoke outside the guard shack (but well within the BWS property). Mr. W admits the conversation got heated, but insists there was no foul language or any threats of violence.
Borrero tells a much different story. Security officer Albert Maldonado verifies Borrero’s version of the events. Borrero says that when the confrontations began he was sitting in his truck under the tree near the crew shack. Mr. W was putting gas in his car when called over to Borrero. Borrero says that Mr. W called out to him, saying, “********ing idiot, come here!”Borerro walked over, and Mr. W proceeded to yell at Borrero about tagging the cars, specifically asking him why he tagged the cars. Borrero says he walked away from Mr. W at this point.
During the confrontation at the gas pumps, Maldonado arrived at work. Maldonado catches the bus to work and was walking up the street when he saw Mr. W and Borrero at the gas pumps. While Maldonado could not hear the confrontation, he insists that he saw the two men at the gas pumps speaking Mr. W denies there was ever any confrontation at the gas pumps.
Borrero then explains that he moved his car from its location in front of the crew shack to a location behind the guard shack. While Borrero was still in his car, Mr. W approached Borrero. Borrero and Maldonado insist Mr. W was very aggressive, searing and physically challenging Borrero. Borrero and Maldonado both recall Mr. W loudly calling Borrero “a rat” and saying he “had no balls.” Both Borrero and Maldonado also insist that Mr. W repeatedly used profane language, calling Borrero a “*******.” They also claimed that Mr. W, while he was with Borrero outside the gate, had his two hands up as if to punch and fight.
Borrero and Maldonado both claim that Mr. W then encouraged Borrero to come off the premises to fight. Yet, it does not appear, even from Borrero and Maldonado’s version of the events that Mr. W actually wanted to fight with Borrero. Mr. W never physically touched Borrero, nor did he ever attempt to grab or strike Borrero, despite standing there with his fists raised.
Mr. W stepped off the BWS property (out the front gate), but Borrero willingly followed him. Borrero even admits he removed his work shirt (he wore a t-shirt underneath), although his reasons for doing so are not particularly clear. He insists he never intended to fight. And despite leaving the property to talk to Mr. W, which, in retrospect he agrees was not the best course of action, Borrero seems to have taken every opportunity to avoid a confrontation and/or altercation with Mr. W. Borrero walked away from Mr. W before the final confrontation. And while leaving the property to confront Mr. W was not an appropriate course of action, it is unclear whey Mr. W would have otherwise stopped physically pursuing or stopped verbally attacking Borrero.
Once off the property, the men got into a verbal altercation. While there was no violence, the altercation got loud and both men used profanity. Borrero admits that Mr. W never made any physical move towards Borrero. Therefore, if Mr. W truly wanted to get into a fight with Borrero, he had the opportunity to do so but did not take the opportunity. Borrero walked away first, after telling Mr. W to “******.” This ended the altercation.
(Employer Exhibit A, pages14-17) (footnotes omitted).
Evidently, approximately 10 to 12 people reportedly saw Grievant walk away saying the Mr. Borrero was a punk because he did not want to fight. (Witeck at 262:14-18). Mr. Witeck attempted to determine who these people were but they were never able to ascertain their identities. (Witeck at 262:25-264:1-7).
based upon her interviews, concluded that Mr. Borrero and Mr. Maldonado
recalled the incident “more accurately” than the Grievant. (Watson at
19:3-5). She also concluded that
Mr. Borrero did nothing to provoke the Grievant. (Watson at 157:4-5).
Although the baseyard is “a bit physical and masculine,” Ms. Watson
concluded that Grievant’s behavior
The findings of this investigation are that Borrero’s allegations are
generally true and that Mr. W physically pursued him (in an aggressive
manner that involved yelling at him and
Mr. W appears to be a generally abrasive and aggressive individual at times, judging from his history of workplace violence, this incident, and his response to this report. Yet, Mr. W is a supervisor, and the impact of Mr. W conducting himself in this manner is significant, given his position and the employees who reportedly witnessed the incident. As a supervisor, it would seem that he should set a much better example, particularly if workplace violence is not to be condoned.
Borrero contributed o the incident, by going outside the gate with Mr. W, leading to the most potentially violent part of the incident. Fortunately, neither Borrero nor Mr. W initiated any physical contact or actual fighting, and the incident ended with Borrero walking away. It is unclear what would have happened had Borrero opted to stay and the altercation continued. But it would seem that Mr. W, as a BWS supervisor, should have had the sense, the experience, and the responsibility to avoid such an incident and certainly not to encourage it or prolong it. And it was Borrero, not Mr. W, who apparently put an end to it, by walking away and back into the baseyard. And it was Borrero, not Mr. W, who reported the incident.
It may be that in a fairly rugged workplace (as appears the Kaliha baseyard), such conduct, while inappropriate and unwarranted, may not seem wholly out of place (particularly to Mr. W). This is not to excuse the behavior, but instead to contextualize it based on Mr. W’s behavioral history and draw attention to what seems to be a problematic work environment, which could be a contributing factor. Yet, as stated above, if BWS would like to curb this sort of aggressive and unprofessional behavior, incidents like those that transpired on October 14, 2004 must cease.
Ms. Watson testified that she was not instructed by the BWS to determine if the Grievant had violated any specific violation of any City policy or Board of Water Supply policy. (Watson at 20:7). She also was not given any responsibility to determine if there was any type of discipline appropriate under the circumstances and was asked only to determine what had happened. (Watson at 20:4-9; 72:24-25). She was informed that a complaint had been made and that it was her job to investigate the complaint and determine what had happened during the incident. (Watson at 30:23-25). Nobody from the BWS informed Ms. Watson to assess the credibility of the persons that she was interviewing and she did this on her own initiative. (Watson at 32:11).
Mr. Witeck did not participate in the disciplinary process. (Witeck at
190:25). His participation in the investigation ended when Ms. Watson
submitted her Investigation Report. (Witeck at
Witeck also informally spoke to Gary Ping (Witeck at 181:7-9; 247:9; 238:2),
BWS employee Gerald Souza (Witeck at
274:18-21) and Willie Iaela (Witeck at 247:16). Mr. Souza said
he did not
Mr. W received notice from the Board of Water Supply, via a
memorandum, dated December 6, 2004, from Clifform S. Jaile, Manager and
Chief Engineer regarding his suspension. The
TO: Mr. W
Water Service Superintendent
FROM: CLIFFORD S. JAMILE
Manage and Chief Engineer
You are hereby suspended without pay for a period of 15 days, from January 4, 2005 through January 24, 2005, as a result of your conduct on October 14, 2004. The investigation of a report filed by Mr. Richard Borrero, security guard with District Parking, was conducted and concludes that you were verbally abusive, including use of profanity, and exhibited aggressive and hostile behavior toward Mr. Borrero. Further, you initiated the altercation, aggressively pursued Mr. Borrero with your fists held in a manner which can readily be viewed as provoking physical confrontation. This is conduct unbecoming an employee in your position.
During the period of suspension, you are directed to remain away from Board of Water Supply premises, surrender your BWS ID badge, and to avoid contact with those who may have provided relevant information on this matter. You are to refrain from retaliatory acts against the complainant, witnesses, and others who may have provided information in the investigatory process. Any retaliatory act on your part will be a separate cause for disciplinary action.
Further, you are hereby directed to attend a BWS mandated program of skill-building to manage your anger in the workplace. You will be provided the pertinent details on this matter.
We expect you to have learned from this experience and to conduct yourself in a manner appropriate to your position as a superintendent. Any further conduct of this nature will result in more severe disciplinary action, up to and including discharge from employment.
Mr. Michael Fuke is the current program administrator for the Board of Water Supply. (Fuke at 286:20). Part of Mr. Fuke’s responsibilities included providing recommendations for discipline to the manager and chief engineer of the Board of Water Supply. (Fuke at 287:21-23; 290:9-10). In November of 2004, Mr. Fuke’s supervisor was Mr. Stephen Hayashi. (Fuke at 289:7). Mr. Fuke recommended the disciplinary action against the Grievant to Mr. Hayashi (Fuke at 293:3) and Mr. Hayashi forwarded the recommendation to his supervisor, Mr. Clifford Jamile. (Fuke at 289:1-18; 292:23; 297:2; Fuke at 297:20). Mr. Fuke, prior to recommending discipline discussed the matter with Peggy Hong. (Fuke at 292:1-2). They discussed what disciplinary action was appropriate. (Fuke at 294:4-7). Manager and Chief Engineer, Clifford Jamile, supported the disciplinary recommendation of an anger management assessment and a 15-day suspension. (Fuke at 294:25-296:1; 303:20).
The incident occurred on October 14, 2004. The Investigation Report of Lead Investigator Watson and investigator Mr. John Witeck was completed on November 17, 2004. (Employer Exhibit A), a little over one month after the incident. The Investigation Report was though and several persons were interviewed or contacted for information. The Grievant was promptly informed of the charges against him while he was being interviewed by Ms. Watson and Mr. Witeck when they showed him the written statements of Mr. Borrero (Employer Exhibit A, Appendix A) and Mr. Maldonado (Employer Exhibit A, Appendix B). During the interview the Grievant was also given the opportunity to respond to the charges as set forth in the written statements of Mr. Borrero and Mr. Maldonado. This is evident from the fact that Grievant exercised his right to modify his statement. (Employer Exhibit A, Appendix C). By memorandum dated November 24, 2004 from Stephen Hayashi, Chief Operations Officer to Clifford S. Jamile, Manager and Chief Engineer, a recommendation was made that Grievant be suspended for 15 days and attend a program that would help him “manage his anger management.” (Employer Exhibit B). On December 6, 2008, via memorandum from Clifford S. Jamile, Manager and Chief Engineer, to the Grievant, the Grievant was formally informed that he was suspended for a fifteen day period from January 4, 2005 through January 24, 2005 as a result of the incident. (Employer Exhibit C).
The BWS conducted a prompt and reasonable investigation that considered all of the available relevant and noncumulative evidence prior to assessing disciplinary action against the Grievant. The answer to this 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 Daugherty 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.
As noted above, Ms. Watson was retained by the City to conduct the investigation of the incident as the lead investigator. She is an independent contractor. Mr. Witeck is employed with the City as a Personnel Management Specialist and was also an investigator. The Investigation Report was at least 95% completed by Ms. Watson. (Watson at 39:14-15). Mr. Witeck’s contributions were “largely typos” that she did not catch or superficial, grammatical changes.” (Watson at 39:17-21; 40:1-5; Witeck at 183:16-22). The responsibility for the investigation was primarily given to Ms. Watson. (Watson at 39:22-23). Mr. Witeck does not recall adding any “substance” to the Investigation Report. (Witeck at 183:25). Mr. Witeck agreed with Ms. Watson’s conclusion that the Grievant’s behavior during the incident was inappropriate (Witeck at 185:13) and that the Grievant’s behavior was also in a violation of the City’s workplace violence policy. (Witeck at 190:8).
Both Ms. Watson and Mr. Witeck were detached management officials who conscientiously performed their fact-finding investigation. Neither was a witness nor a supervisor of the Grievant. Grievant’s supervisor was Mr. Lan Yoneda. (Watson at 37:22-38:1-2). Mr. Witeck, in the chain of command is above Mr. Lan Yoneda. (Watson at 38:3-5).
The first time Ms. Watson met Mr. Witeck was the day they began interviewing witnesses. (Watson at 38:11-13). Ms. Watson chose not to met Mr. Witeck prior to interviewing the Grievant because it was her understanding that Mr. Witeck was a supervisor at the baseyard and she did not want any information from Mr. Witeck prior to interviewing the Grievant. (Watson at 38:11-25).
The Union has argued that Ms. Watson
and Mr. Witeck did not interview neighbors who
resided in the residential area of the baseyard. The Grievant argues that
the investigation therefore was
1. The Grievant never testified that he believed that neighbors could help exonerate him of the disciplinary action taken against him by the City;
2. The record does not reflect that the Grievant raised the concern that neighbors were not interviewed during the grievance step process prior to the arbitration hearing although he did raise the concern, as discussed below, that a female security guard was not interviewed;
3. Although record reflects that neighbors were not interviewed, it does not reflect why they were not interviewed. For example, there is nothing in the record to indicate that neighbors were home on October 14, 2004 at approximately 2:00 p.m;
4. October 14, 2004 was a Thursday, was not a holiday, and was a workday for most people. This Arbitrator believes that most, if not all residents would have been at work at the time of the alleged incident;
5. If BWS employee Cary Shinozawa saw the Grievant and Mr. Borerro talking with one another but could not overhear their conversation, is it highly unlikely that neighbors would be able to hear what the Grievant and Mr. Borrero were saying;
6. There is absolutely nothing in the record to indicate that neighbors, if witnesses to the incident, would have provided useful information to either the City or the Grievant concerning the incident;
7. Given items 1 through 6 above, the probability that a neighbor may have heard something that would either help the case of the City or the case of the Grievant is very remote and improbable.
Under the facts of this
grievance, the City’s failure to interview neighbors surrounding the
baseyard concerning the incident does not
render the investigation invalid. Minimum requirements of industrial due
The Union has also argued that another female security guard named Sabrina complained about not being contacted about the incident. (Doi at 330:19-24; 334:14-15). This information was passed by business agent HGEA business agent Robert Doi to the City’s human resource employee, Mr. Yim, during the step grievance process. (Doi at 346:25-338:6). Sabrina was never contacted to Mr. Doi’s knowledge. (Doi at 331:21-22).
Arbitrator held in In the
Matter of the Arbitration between the Contra Costa Water District and the
Stationary Engineers Local 39, California State Mediation and Conciliation
In the case of Mr. W, the proposed testimony, if true, would not have led to clearing the Grievant of misconduct. Per Mr. Doi, the security guard would have testified that Mr. Borerro
is not truthful and
lies. (Doi at 346:23-25; 347:3-4). However, this offer of proof, while
relevant, if presented at the
arbitration hearing by Sabrina would have been cumulative evidence. There is
The objectivity of the City’s investigation is supported by the extensive and the exhaustive Investigation Report that Ms. Watson, as lead investigator, and Mr. John Witeck, as Investigator concerning the incident. (Employer Exhibit A). There is nothing in the record to indicate that either Lead Investigator Watson or Investigator Witeck disliked and would not be fair and objective in their investigation. There is also nothing in the record to indicate that any supervisor of the Grievant disliked the Grievant. Lastly, the record lacks any evidence that the City acted arbitrarily, capriciously, unreasonably or improperly during the investigation. This Arbitrator believes that the investigation appears to have been fairly and objectively completed. The answer to this fourth criterial question is also answered in the affirmative.
VII.E. PROOF. AT THE INVESTIGATION, DID THE ‘JUDGE’
OBTAIN SUBSTANTIAL EVIDENCE OR PROOF
THAT THE GRIEVANT WAS GUILTY AS CHARGED?
This Arbitrator must now consider if the City presented, at the arbitration hearing, substantial evidence or proof that the Grievant was guilty, in the case of Mr. W, workplace violence. Arbitrators complete this task by evaluating the totality of circumstances such as the credibility of the witnesses, inconsistent statements made by the witnesses during the investigation and while under oath at the arbitration hearing, statements of the parties such as admissions, direct evidence, circumstantial evidence, corroborative evidence, all of which would lead a reasonable person to believe that the Grievant had committed workplace violence.
The City witnesses, Ms. Watson and Mr. Witeck have testified that based upon their investigation, the Grievant committed workplace violence. Their conclusions were based upon the interviews of Mr. Borrero and Mr. Maldonado all of which is set forth in detail above.
The Grievant testified to essentially what was provided in his written statement made during his interview with Ms. Watson and Mr. Witeck. (Employer Exhibit A – Appendix A). (Mr. W at 348:14-381:25). Mr. W acknowledged that he was given the opportunity to review and make corrections to his statement. (Mr. W at 374:13). He also feels that he was given a full opportunity to give his statement to Ms. Watson. (Mr. W at 374:16).The Grievant denied getting into a “verbal confrontation” with Mr. Borrero. (Mr. W at 354:11). The Grievant also denied stepping off the property or swearing at Mr. Borrero (Mr. W at 370:25-371:1-11). The Grievant also testified that he did not argue with Mr. Borrero. (Mr. W at 379:8), never stepped off of the BWS property (Mr. W at 357:24), and that Mr. Borrero never took off his shirt. (Mr. W at 379:5). The events concerning the incident, as described by the Grievant and both Mr. Borrero and Mr. Maldonado differ in all major aspects. In short, the Grievant argues that the incident never occurred while Mr. Borrero and witness Mr. Maldonado reported that the Grievant challenged Mr. Borrero to a fight while directing profanity against him.
Union Counsel objected several times in his closing brief that the City’s proof is unfair and insufficient to establish substantial proof because Mr. Borrero and Mr. Maldonado did not testify at the arbitration hearing. This Arbitrator’s review of the pleadings indicates that although Mr. Borrero and Mr. Maldonado were evidently listed on the City’s witness list, it is unclear why they were not called to testify. For all practical purposes, the Union’s arguments indicate that the evidence that was introduced by the City is hearsay and considering same would be unfair to the Grievant because Grievant was deprived of asking his accusers questions. A review of the record reflects that all of the evidence used by the City to argue just and proper cause for the City’s disciplinary action has been based upon the hearsay testimony of City witnesses.
Hawaii Rule of Evidence 801 provides for the definitions concerning hearsay.
This rule provides as follows:
The following definitions apply to this article:
“Statement” is an oral assertion, an assertion in a writing, or nonverbal conduct of a person, if it is intended by the person as an assertion.
“Declarant is a person who makes a statement.
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Hawaii Rule of Evidence Section 801-1 provides as follows concerning the policy for the hearsay rule:
Hearsay is rejected because its reliability is suspect and not amenable to adversary testing. The hearsay declarant, defined in rule 801 as a person who utters a hearsay statement, is not under oath, is not present in the courtroom for the jury to observe her demeanor as she gives her evidence, and is not available for cross-examination. These three deficiencies distinguish the hearsay declarant from the live witness whose courtroom presence and availability for cross-examination establish a standard of scrutiny and trustworthiness that characterizes the adversary system of justice. The law is ambivalent about the hearsay exclusion, however, because much hearsay bears comparable, if not equivalent, indicia of reliability, and half a loaf is often better than none at all. Accordingly, rules 802.1, 803, and 804 contain no fewer than forty exceptions to the general hearsay exclusion.
(Bold scoring provided).
Hawaii Rule of Evidence 802 provides the following concerning the hearsay rule:
Hearsay is not admissible
except as provided by these rules prescribed by the Hawaii Supreme Court, or
by statute. The Hawaii Rules of Procedure and the Hawaii Rules of Evidence
This Arbitrator has researched the position taken by the Union. After carefully reviewing the record, including the transcripts and evidence, the ultimate facts necessary for the City to establish workplace violence are all based upon hearsay evidence. This Arbitrator wishes to emphasize that the complaining party, Security Guard Richard Borrero and witness Security Guard Alfred Maldonado were not called as witnesses by the City. This Arbitrator also wishes to emphasize that there were no other witnesses to the incident. In addition, Grievant has denied the allegations made by Mr. Borrero and Mr. Maldonado. There is no other evidence, direct, circumstantial, or corroborative that is not hearsay to prove the ultimate fact that the City had “proper cause” to discipline the Grievant.
Arbitrators are selected to follow arbitral law and the laws of the State of Hawaii and the United States of America. Four learned treatises on labor arbitration indicate that the evidence presented by the City at the arbitration hearing on this grievance is not substantial since it is all based upon hearsay. The first is, Elkouri & Elkouri, How Arbitration Works, 5th Ed., (BNA Books, 1997) at pages 449-451 provides as follows:
Evidence of hearsay character is often presented at arbitration hearings. Arbitrators generally admit such evidence, but qualify its reception by informing the parties that it is admitted only ‘for what it is worth.’ One general survey of labor arbitration revealed the following responses as to hearsay evidence:
On the admission of hearsay into arbitration proceedings the consensus can be described as a collective shrug, a throwing-up of the hands, and a proclamation that it is inevitable. Many responses of both sides indicated that hearsay ‘has to come in’ and that the arbitrator ‘can’t keep it out.’ Admission of hearsay is justified to keep arbitration from becoming too cumbersome through procedural wrangling, or by the requirement that every witness who might be brought in be required to appear. It is agreed that the arbitrator must have wide latitude, and that he should let a witness with a grievance ‘get it out.’ Through the parties should feel that they have had their say in an informal manner, hearsay should be carefully weighed, once admitted, for its probative value. Despite the general fatalism expressed about the admission of hearsay evidence, there was still substantial opposition to its use. (Citations omitted)…
In many cases very little weight is given to hearsay evidence, and it is exceedingly unlikely that an arbitrator will render a decision supported by hearsay evidence alone. Then, too, hearsay evidence will be given little weight if contradicted by evidence that has been subjected to cross-examination.
(Citations omitted) (Bold scoring provided by this Arbitrator).
The Second is Fairweather’s: Practice and Procedure in Labor Law, 4th Ed., revised by Farwell (BNA Books, 1999) at pages 332-333 provides as follows:
‘Hearsay evidence’ as classically defined, is the report of an ‘out of court statement” (written or oral) made by a person who is not present testifying in the proceeding and introduced to prove the truth of what is asserted. Hearsay, when evidence is inadmissible, is excluded generally not because it is irrelevant, but because it is unreliable…. (Citations omitted).
The informality and speed of the arbitration process would suffer if the introduction of the hearsay evidence were limited as tightly as it is in a court. Longer periods of preparation would be required, more witnesses would be needed, and lawyers who are familiar with the hearsay rules would be needed to prepare and present arbitration cases. Consequently, hearsay is frequently allowed in arbitration. However, “when hearsay evidence conflicts with uncontested evidence based on first-hand knowledge, the latter will generally prevail…(Citations omitted).
Reports and affidavits of individuals not attending the hearing, and hence not subject to cross-examination, are sometimes introduced as evidence in arbitrations and are often admitted subject to the same limitations that apply to all hearsay evidence. In disciplinary cases, however, arbitrators more frequently rule that affidavits are inadmissible because they deprive one of the parties of the right to cross-examination in a situation where careful evaluation of evidence is important. At least one arbitrator has held that an affidavit of a nonwitness could be introduced to corroborate other evidence that was subject to cross-examination, but was inadmissible if it produced new evidence not testified to by other witnesses… (Citations omitted).
Fairweather’s also provides at pages 293-294 as follows:
Bethlehem Steel Corp. illustrates the problems that can occur where even a skilled arbitrator adopts either a trial-court proof-and-procedure process or a de novo appellate-court procedure in the disciplinary context. A female employee was discharged because she had administered a brutal beating to a fellow female employee in the shower room. The two women who found the victim on the floor and helped her to the dispensary and the nurse who treated her wounds, gave written statements during the investigation and reported the victim’s concurrent hearsay statements identifying the attacker. The victim was carefully questioned by an investigator and signed statements identifying the attacker; those identifications were confirmed by polygraph examination. Following this investigation, the company discharged the attacker, who filed a grievance which was processed up through the various steps of the grievance procedure with full disclosure of the company’s investigations to the union representatives. At the arbitration hearing before Arbitrator Ralph T. Seward, the victim refused to testify. The grievant, however, did testify and denied being in the shower room when the beating took place. Several of her friends corroborated her testimony, explaining that she had showered at a time different from the one recorded n the company’s investigation record. Arbitrator Seward reinstated the grievant primarily because he, acted as the trial judge, had not had the opportunity to hear the testimony of the victim and thereby reach a personal judgment concerning her truthfulness versus the truthfulness of the grievant and her corroboration witness. He said:
On this state of the record, the Impartial Chairman holds that the discharge of B simply cannot be upheld. He holds this despite his clear recognition that B may well have been guilty of assault with which she was charged and that she and other women who had been with her in the [shower] room may well have been lying about what went on… The point is that the identification of B as A’s assailant rests in the last analysis on hearsay – on what A said to other people about the assault – and there is no testimony in the record from A herself… The failure of A to appear and testify at the arbitration hearing… means that B has not had the opportunity to confront her accuser, hear her testimony, and, through the Union, to cross-examine her and directly challenge or reply to her account of the assault.
The third is Antoine, Theodore: The Common Law of the Workplace, (BNA Books, 1998) which provides as follows concerning hearsay evidence at page 35:
§ Hearsay as Only Evidence to Support Claim. Some arbitrators have held that unrebutted hearsay evidence alone is sufficient to establish a claim.
Comment: Other arbitrators conclude that if hearsay is the only type of evidence presented, the evidence will not have enough weight to support a claim or affirmative defense.
(Bold scoring provide by this Arbitrator).
The fourth is Discipline and Discharge in Arbitration, 2001 Supplement, BNA Books, 2001, which provides the following at page 99:
Although arbitration proceedings are more informal than judicial proceedings, objections sometimes are raised when the failure to follow procedural rules that govern court actions appears to make a difference in the outcome. For example, in ABC Rail Products Corp., an employer was held not to have met its burden of proving just cause to discharge the grievant for threatening the employee of an outside service where the outside employee gave a written statement but did not appear as a witness. The arbitrator held that the matters contained in the statement were too important to deprive the union of the right to cross-examination.
Hearsay evidence has been held not sufficient to establish just cause to discharge an employee for inadequate production. However, hearsay has been admitted and used as corroboration of firsthand evidence.
(Citations omitted) (Bold scoring provided by this Arbitrator).
This Arbitrator, in researching the issue of hearsay as the only evidence used to sustain disciplinary action has not found one case where an arbitrator determined that hearsay evidence alone, particularly when the hearsay evidence is rebutted by a Grievant and there is no admission by the Grievant, has upheld a disciplinary action. The last reported case that this Arbitrator reviewed concerning investigations and hearsay evidence was American Gate Gourmet, 125 LA 81 (Smith, 2008). Arbitrator Smith held that just cause did not exist to terminate an employee who allegedly caused an accident because the employer relied on hearsay statements of employees who worked for another company and the employer also failed to interview the victims.
Also consider City of Oklahoma, 123 LA 24 (Walker, 2006). Arbitrator Walker refused to consider a Police Investigator’s hearsay testimony that statements that prostitutes had had sexual relations with a police officer. The investigation led to the discharge of the police officer. None of the prostitutes testified. Arbitrator Walker concluded that hearsay evidence cannot be used to prove the ultimate fact that discipline is just and proper except in the most extreme circumstances, which were not present in the case before him. Several other recent reported cases reviewed by this Arbitrator, in which hearsay evidence has not been allowed by arbitrators to establish just and proper cause for disciplinary action include American West, 215 LA 73 (Nelson, 2008) (flight attendant’s discharge was set aside because passengers who complained about her behavior did not testify); Aeolia Transportation, 123 LA 495 (Gentile, 2007) (co-worker who alleged workplace violence did not testify and grievant rebutted allegations at arbitration hearing); Minneapolis Special School District Number One, 123 LA 545 (Jacobowski, 2007) (since school district’s entire case rested upon principal’s hearsay statements concerning threatening and disrespectful statements made by teacher to students and students did not testify the grievance was sustained for lack of just cause); and American Airlines, 122 LA 1691 (Vernon, 2006) (reports and e-mails from unproduced witnesses had no value in investigation of pilot who allegedly falsified time records since they were hearsay).
Lead Investigator Watson and
Investigator Witeck did an excellent job in interviewing witnesses and
gathering evidence regarding the incident. In addition, counsel for the City
(1) Both the complaining party, Security Guard Richard Borrero and the witness Security Guard Allred Maldonado did not testify;
(2) Other than hearsay testimony, there is no direct evidence, such as a witness, presented by the City, who testified that he observed the Grievant commit workplace violence;
(3) There is no circumstantial evidence presented by the City to indicate that the Grievant committed workplace violence;
(4) There is no corroborating evidence (other than hearsay evidence such as the statements of investigators Watson and Witeck and the investigation report) to prove that Grievant is guilty of wrongdoing, i.e., other witnesses who heard the Grievant use words similar to those that the City alleges that Grievant used;
(5) All of the evidence concerning the discipline of the Grievant is based upon hearsay statements obtained by investigators;
(6) There are no extreme or otherwise unusual circumstances that would indicate that the hearsay testimony of Mr. Borrero and Mr. Maldonado should be given substantial weight;
(7) The Grievant has not had an opportunity to confront his accuser;
(8) This Arbitrator has not had the opportunity to view the demeanor of those that are accusing the Grievant of workplace violence;
(9) There is no admission by the Grievant;
(10) The Grievant expressly denied any wrongdoing;
(11) Tension existed between BWS employees and the employees of the private security company. (Employer Exhibit 1; Watson at 45:25).
Given the totality of
circumstances set forth in items (1) through (11) as well as arbitral
authority as set forth above, this Arbitrator cannot find that the City has
provided the substantial proof
The grievance is sustained. The Grievant’s 15-day suspension is set aside.
Grievant is entitled to backpay and other benefits
under the Unit Collective Bargaining Agreement that he lost due to his
15-day suspension. This Arbitrator shall maintaing jurisdiction for 90 days
DATED: Honolulu, Hawaii, January 8, 2009.
MICHAEL ANTHONY MARR
STATE OF HAWAII )
CITY AND COUNTY OF HONOLULU )
this 8th day of
January, 2009, before me personally appeared Michael Anthony
Marr, to me known to be the person described in and who executed the
foregoing “Amended Decision and
Notary Public, State of Hawaii
My Commission expires on May 2, 2012.
BEFORE ARBITRATOR MICHAEL ANTHONY MARR
STATE OF HAWAII
In the Matter of the Arbitration ) CERTIFICATE OF SERVICE
between the )
HAWAII GOVERNMENT EMPLOYEES ) HEARING DATES: June
UNION, AFSCME, LOCAL 152, ) 17, 18, and 19, 2008.
) Grievance of Mr. W
CITY AND COUNTY OF HONOLULU, )
BOAR OF WATER SUPPLY, )
CERTIFICATE OF SERVICE
I do hereby certify that a copy of the foregoing “Award and Decision” was duly mailed, postage prepaid on January 8, 2009 to the following persons at the addresses listed below:
Greg Nishioka, Esq. Paul Hoshino
888 Mililani Street Deputy Corporation Counsel
Suite # 800 Honolulu Hale
Honolulu, Hawaii 96813 530 South King Street, Room #110
Honolulu, Hawaii 96813
DATED: Honolulu, Hawaii, January 8, 2009.
MICHAEL ANTHONY MARR
 This decision and award cites to the decisions of several arbitrators. Therefore, unless otherwise specifically indicated, the words “this Arbitrator” shall always be in reference to Arbitrator Michael Anthony Marr.
 According to Mr. Witeck, the Grievant has been employed by the City and County of Honolulu, Board of Water Supply for at least 30 years and is considered a veteran supervisor in a critical area. (Witeck at 173:18-20). At the time of the incident he held the title of “Water Service Superintendent.” (Witeck at 196:6). The Grievant testified that he had been employed by the BWS for 35 years and six months. (Mr. W at 348:24).
 Mr. Borrero’s statement contained several grammatical errors and misspelled words. This Arbitrator has made no corrections to Mr. Borrero’s statement.
 Ms. Watson, prior to working as a private consultant, obtained bachelor’s degrees in sociology and in American studies, a master’s degree in American studies, and a law degree and at the time of the arbitration hearing was working on her Ph.D. (Watson at 9:20-25; 24:20). Prior to October 14, 2004 she had conducted between 10 and 20 different investigations for different private and state entities, including the EEOC. (Watson at 26:1-15). She became associated with the Board of Water Supply after reviewing a procurement request for investigation services which she responded to. (Watson at 11:18-21). Ms. Watson was subsequently interviewed to determine her qualifications and was placed on an “as needed basis for hire” for the Board of Water Supply. (Watson at 11:22-12:1-5). While an investigator with the BWS, she completed 4 investigations, the investigation of Mr. Mr. W being in the first group of cases that she received. (Watson at 28:28:18-23).
 Mr. John Witeck is currently the Human Resource Manager for the Board of Water Supply. (Witeck at 170:8-10). His responsibilities include labor relations, grievances, fact finding relating to misconduct, negotiations and consultations with Unions relating to issues concerning policy changes. (Witeck at 170:13-16). He has held this position since last year. Prior to holding this position he was employed as a personnel specialist but has basically held the same duties. (Witeck at 171:1-2). This is the position that he held in July, 2004. (Witeck at 171:5). He has been certified by the City and County of Honolulu, after the completion of a 4 day course, to perform internal investigations and the record reflect that he is very experienced in handling workplace violence investigations. (Witeck at 171:15-172:11; 172:23-173:1-4). Approximately 25% of the investigations done by the BWS are investigated by outside investigators. (Witeck at 197:1-2). Mr. Witeck has assisted attorney Lisa Bail from Goodsill, Anderson, and Stifle who did an investigation for the Board of Water Supply. (Witeck at 197:13-14)
 Ms. Watson did not consider tension between BWS employees and the Security Guard Company employees as relevant to her investigation. Nor did she consider Grievant’s prior incidents of workplace misconduct as she did not deem them as relevant to the incident that she was retained to investigate. (Watson at 46:5-47:8-9; 48:11-49:1-5). Evidently, Grievant had informed Ms. Watson of the incidents during her investigation. (Watson at 70:3-4). Ms. Watson was never offered nor given the Grievant’s employee record. (Watson at 70:23-24). Ms. Watson was aware of the fact that Mr. Borrero and the Grievant did not like one another, but there was no evidence that Mr. Maldonado disliked the Grievant (Watson at 113:15-20; 114-7-16; 156:7-8). However, she did not consider the relationship between the Grievant and Mr. Borerro or Mr. Maldonado as relevant to the incident. (Watson at 51:9-10). Mr. Witeck on the other hand believed that it should have “some weight.” (Witeck at 228:10). Ms. Watson and Mr. Witeck did not consider the fact that Mr. Borrero, although he had walked away from the incident, had taken his shirt off during the incident with the Grievant as a factor that may have provoked the Grievant. (Watson at 158:4-8; Witeck at 235:23-24). Rather, Ms. Watson referred to the action by Mr. Borrero as a form of defense in preparation of an attack. (Watson at 159:3-19). Mr. Witeck did not see it as raising “any issue for us.” (Witeck at 236:12-14). This evidence is not indicated in Ms. Watson’s Investigation Report. (Watson at 160:17; Witeck at 241:9). Mr. Borerro was also off of the premises by being outside of the front gate. (Watson at 160:20-25). However, Mr. Borrero walked away from the incident and told the Grievant “******* off.” (Watson at 161:18). Mr. Witeck, despite Mr. Borrero taking off his shirt gave more credibility to Mr. Borrero since by stating so he appeared to be more truthful. (Witeck at 242:10-22; 242:25-243:5). Mr. Witeck does not know if Mr. Borrero was ever disciplined for his conduct regarding the incident. (246:4). However, prior to the incident, evidently there were never any complaints against Mr. Borrero. (Witeck at 251:22).
 Mr. Michael Fuke has been an employee with the Board of Water Supply since 1972. (Fuke at 286:23-24). He first started as a civil engineer. (Fuke at 287:3-5). His responsibilities as program administrator include the management of Field Operations Division. (Fuke at 287:8-9). This division is responsible for the maintenance of the water distribution system, facilities, ground maintenance and custodial work. (Fuke at 287:8-13).
Once again, this Arbitrator wishes to emphasize that substantial evidence may be established by other evidence that does not constitute hearsay such as other direct evidence (item 2 above), circumstantial evidence (item 3 above), or corroborative evidence (item 4 above), but no such evidence is a part of the record of this grievance.
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