Title: West Contra Costa Unified School District
and Public Employees Union, Local 1.
IN ARBITRATION PROCEEDINGS PURSUANT TO
Public Employees Union, Local 1.
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.
For the Union:
For the City:
Marcus L. Mitchell
Douglas N. Freifeld
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
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:
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
Such conduct has the purpose or effect of unreasonably interfering with
an employee’s performance or creating an intimidating, hostile, or offensive
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
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
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
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
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
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
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.
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
 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.
Joint Exhibits are
referred to as Jt-1, Jt-2, etc. Company
Exhibits are referred to as C-1, C-2, etc.
Union Exhibits are referred to as U-1, U-2, etc.