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Title: West Contra Costa Unified School District and Public Employees Union, Local 1
Date: October 9, 2009
Arbitrator: C. Allen Pool
Citation: 2009 NAC 103

 

 

                                                                                            C. ALLEN POOL, Arbitrator

                                                                                                Arbitrator's Case No. 8-6-09

 

 

 

IN ARBITRATION PROCEEDINGS PURSUANT TO

AGREEMENT BETWEEN THE PARTIES

 

 

Public Employees Union, Local 1                      )                                                      

                                                                                  HEARING OFFICER’S

                        and                               )                      

                                                                        )           Findings, Conclusions and                 

West Contra Costa Unified School District        )           Recommendations        

                                                                        )                 

Appellant:         Joseph Bullock                                         

                                                                                  Advisory Arbitration

(Involving: Dismissal Recommendation              )           

____________________________________)           October 9, 2009

 

 

            This Arbitration arose pursuant to Agreement between the PUBLIC EMPLOYEES UNION, LOCAL 1, hereinafter referred to as the “UNION”, and the WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT, hereinafter referred to as the “DISTRICT ”, under which C. ALLEN POOL was mutually selected by the parties to serve as the Hearing Officer.  The Parties stipulated that the matter was properly before the Hearing Officer and that his recommendation would be advisory to the Board of Education.

            The hearing was held in the City of Richmond, California on August 6, 2009 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.  The parties submitted post-hearing briefs that were timely received on September 25, 2009 at which time the record was closed. 

 

Appearances:

For the Union:                                                  For the City:

 

Marcus L. Mitchell                                           Douglas N. Freifeld

Business Agent                                                 Fagen Friedman & Fulfrost, LLP

4197 Lakeside Drive, Suite 170                        70 Washington Street, Suite 205

Richmond, CA 94806                                       Oakland, CA 95607-3795

(510) 222-5012                                                (510) 550-8200

 

 

STIPULATED ISSUE

            Whether it should be recommended to the Board of Education to find that the charges are sufficient for dismissal?  

 

 

RELEVANT PROVISIONS OF THE MOU

ARTICLE 21: Disciplinary Actions

 

Section 1.  General Provisions: A permanent classified employee may be suspened, demoted or dismissed by the Governing Board for cause.

 

Section 2.  When emergency conditions do not exist, disciplinary steps to be usd by administrators shall be as follows:

1.                  Verbal reprimand

2.                  Written reprimand    

3.                  Suspension

4.                  Demotion

5.                  Dismissal

           

            In all cases the action taken by the District shall be invoked at a level commensurate with the offense.

 

Section 3. Causes:  The causes which shall be deemed sufficient for suspension, demotion, or dismissal of permanent classified employees are the following:

 

5 Insubordination.

7 Neglect of duty.

9 Willful violation of any of the Governing Board’s regulations regarding duties, conduct, or performance of a classified employee.

 

 

 

 

 

Article 27 Harassment

 

            The Board will not tolerate harassment of District employees by any other employee of the District. Harassment is defined as unwelcome verbal or physical contact when:

 

C.        Such conduct has the purpose or effect of unreasonably interfering with an employee’s performance or creating an intimidating, hostile, or offensive working environment.

 

FACTUAL BACKGROUND

            The Appellant, employed by the District in 1987, worked, at the time of the events that led to this hearing, as a Furniture Driver and Repair Worker.  A significant portion of his duties consisted of delivering various supplies to and from the various District school sites.  His primary work site was the District’s so-called Stores and Furniture Warehouse.

            In the two years prior to the District arriving at the decision on April 24, 2009 to recommend to the Board of Education that Appellant be dismissed, the Appellant had a record of progressive disciplinary actions given to him by the District.  These included a Verbal (Written) Warning on August 30, 2007; a Written Reprimand on October 10, 2007; and a thirty-day (30-day) suspension without pay effective October 29, 2007.  The reasons for each of the progressive disciplines were for like and/or similar infractions and misconduct.  These included insubordination, violation of District regulations, failure to follow directives, neglect of duties, and intimidation and harassment of other employees.

            On his return to work from the thirty-day suspension on Monday November 3, 2009, the Appellant met with the District’s Assistant Superintendent for Human Resources, Jessica Romeo and the Director of General Services, David Johnston.  The Appellant was counseled.  He was given notice that his future behavior must be professional.  He was given notice as to what would be expected of him as a classified employee of the District and noticed that anything less would not be tolerated. 

            In the five to six months following the Appellant’s return to work, there were a variety of complaints consisting of the same or similar conduct that led to the above progressive disciplines given to him earlier.  The Appellant was placed on administrative leave with pay on March 25, 2009 (Tr. p. 137).  An investigation followed and in a letter dated April 24, 2009, the Grievant was given notice that at the May 6, 2009 Board of Education meeting a decision was made to recommend him for dismissal from his classified position as a Furniture Warehouse Driver with West Contra Costa Unified School District.  In accordance with the pertinent Education Code, the Appellant filed an appeal and the appeal was processed to this hearing.   

POSITION OF THE DISTRICT

            The charges against the Appellant are sufficient to recommend his dismissal to the Board of Education. Despite the steady application of progressive discipline notifying him that his conduct was unacceptable and despite clear notice on multiple occasions that he needed to correct his behavior, he engaged in a continuing pattern of inappropriate conduct, intimidation, and harassing behavior towards multiple fellow employees.  On his return to work following the 30-day suspension, he was counseled with regards to what was expected of him with respect to his future behavior and performance and given notice that anything less would not be tolerated.  The Appellant continued his practice of intimidating and harassing co-workers.

            The appeal should be denied.  The charges are sufficient to recommend dismissal to the Board of Education. 

POSITION OF THE UNION

            The charges are not sufficient to recommend dismissal to the Board of Education. 

The District did not satisfy the test for just cause.  The District did not perform a fair investigation.  The burden is on the District to provide adequate proof of wrongdoing and the District failed to meet this burden.  The Appellant was not aware the District had any concerns regarding his conduct at work prior to being given the statement of charges on April 24, 2009. He was not given an opportunity to answer or explain the charges levied against him.  The District treated the Appellant unfairly.  The District did not follow the same procedures as it has with other employees not disciplined for their behavior.  He should not be discharged.  The charges do not rise to a level that is sufficient to recommend dismissal to the Board of Education. The appeal should be upheld. 

FINDINGS AND CONCLUSIONS

            As a preface, a few comments about the just cause standard and progressive discipline may be instructive.  The just cause standard is basically a system of fairness.  Though lacking a precise definition, the standard contains several elements that have come to be accepted as basic to the standard.  These elements include proof of wrongdoing, a fair and impartial investigation, and, except for the most egregious misconduct or infraction, the application of progressive/corrective discipline.

            Progressive discipline is simple in concept and practice.  It affords a valued employee an opportunity to correct the behavior that has been identified as unacceptable.  It allows the employee an opportunity to save his/her job. It gives an employee a second and sometimes a third chance to preserve the employment relationship.  However, there is a caveat in that the employee is put on notice that failure to correct the unacceptable behavior will lead to further discipline up to and including discharge.  The essence of progressive discipline is clear.  If the employee fails to correct his/her behavior, the resulting discipline and or discharge is self-imposed.

            The District and the Union have agreed that discipline, when applied, shall be progressive in its application.  That agreement is reflected in Article 21, Section 2 of the Memorandum of Understanding.  With this provision, the District has put all permanent employees on notice they are expected to behave at or above a certain level.  The flip side of that is that the District has also given the employees the clear expectation that each of them will be accorded due process and be treated fairly by the District when administrating discipline.

            The Union acknowledged that the Appellant received previous disciplines that included a Verbal Warning, a Written Reprimand, and a Thirty-Day Suspension.  The Union also did not challenge the charges contained in the notice of April 24, 2009 where District had made a decision to recommend him for dismissal to the Board of Education (Jt-2).[1]   The Union’s contention, as reflected in Stipulated Issue, was that the charges contained in notice of April 24, 2009 do not rise to a level sufficient to recommend dismissal (Tr. P. 27, 28).  This is a pivotal point. The Union acknowledged that the charges are real and that the Appellant did engage in the misconduct but contends that the charges, the misconduct are not sufficient to recommend dismissal. 

            The Union’s contention was that the District did not satisfy the test for just cause.  He was treated unfairly in that the District did not conduct a fair investigation and he was not given an opportunity to answer or explain the charges.  Moreover, the Union contends that the District did not have any concerns about his work or behavior prior to being given the statement of charges in letter of April 24, 2009.

            The evidence record does not support the Union’s contention.  The Appellant was fully aware of the District’s concerns about his behavior.  Over a period of two years, the Appellant was given three disciplines none of which were grieved.  With each discipline he was forewarned, given notice that if he continued to engage in the identified misbehavior further discipline, up to and including discharge, would be imposed.  With the thirty-day suspension a “Skelly” type hearing was held where he had ample opportunity to explain his behavior but did not use the opportunity to respond (Tr. p. 130).

            On his return to work after the suspension, he was counseled by Assistant Superintendent Romeo and Warehouse Director Johnston informing him of the future performance and behavior that would be expected of him and was given notice that a continuance of the identified misbehavior would not be tolerated.  However, the Appellant failed to heed the notice.  The evidence record showed, with contemporaneous documents, that he continued with a pattern of insubordination, failure to follow directions, and intimidation and harassment of co-workers (Jt-2, D-11).

            The Union’s claim that he was the object of disparate treatment was also not supported by the evidence record.  Assistant Superintendent Romeo investigated his claim of disparate treatment but could not find any co-workers to substantiate his claims (Tr. p. 131,143).   Ms. Romeo testified that she received from several co-workers complaints of the Appellant’s intimidation and harassment creating for them a hostile work environment that was causing them stress and causing them to be unable to properly perform their work.  In addition, the Union, on behalf of two of the Appellant’s co-workers, filed a grievance alleging that he had created a hostile work environment with his intimidation and harassment (D-11). 

            Employees are entitled to a safe and civil work environment.  Insubordination, failure to perform work, and intimidation and harassment are serious charges.  However, the Appellant has had a persistent and long pattern of misbehavior that created a hostile work environment for several of his co-workers. 

CONCLUSION & RECOMMENDATION

The appeal is denied.  The charges are sufficient for the District to recommend to the Board of Education the Appellant’s dismissal.

 

___________________                                                          DATE: October 10, 2009

C. ALLEN POOL

Hearing Officer

 

     



[1] Joint Exhibits are cited as Jt-2, Jt-3, etc.  Union Exhibits are cited as U-1, U-2, etc. Citations from the transcript are cited as Tr. p. 123, Tr. P. 356, etc.

 

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