STATE BOARD OF MEDIATION                    Case No. 88-263

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In the Matter of the Arbitration

               between                                                    OPINION

     The Utilities Authority                                            and

                 -and-                                                          AWARD

      Utility Workers Union

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At hearings held on December 13, 1988 and April 18 and June 6, 1989, both of the above-named parties were represented. At the April 18th hearing, the parties agreed upon the following issue to be submitted to the undersigned, duly selected arbitrator, for decision:

Did the Authority have just cause to demote the grievant from Laboratory Technician to Plant Operator on August 8, 1988?

If not, is the grievant entitled to back pay for the period August 8, 1988 to November 3, 1988?

                                                DISCUSSION

The grievant was hired by the Authority in 1980 as a Plant Operator (rotating shift). He was promoted to the position of Laboratory Technician in October 1983 and was demoted to the position of Plant Operator on August 8, 1988 as a disciplinary action for leaving work early without permission on July 21, 1988 after having been warned not to do so. The demotion was properly grieved by the Union; was taken through the grievance procedure; and, since no agreement was reached, was brought to arbitration. 

The record indicates that there was no dissatisfaction with the grievant's work performance as a Plant Operator or as a Laboratory Technician throughout his employment, except that there were a number of occasions in 1987 and 1988 when he left work early. His work hours as a Technician were from 8 a.m. to 4:30 p.m. Previously, as a Plant Operator, which is a three-shift operation, he had worked three different shifts in a 35 day cycle. 

On May 11, 1988 the Executive Director, and the Superintendent had a meeting with the grievant in the Executive's office in which they "spoke with the grievant about leaving early without notice and spending time in the lunch room with other employees during lunch and breaks." At that meeting, according to the Superintendent's memorandum:

"The grievant said that he had problems with his car accident and other workers talking with a supervisor. Grievant promised this would not happen again."

The purpose of the May 11th meeting was to show the grievant the number of occasions, beginning in May 1987 through May 10, 1988, in which the grievant left work early. The inter-office memorandum or file note which was presented by the Employer as Exhibit #3 was, as the note shows, only a memorandum to the file; it was not shown to the grievant. It included 13 occasions in which the grievant left early "in the past." I was also presented with copies of the grievant's requests to leave early (Union Exhibit #5) which were in the form of "Requests for personnel Action" which were to be used by employees who desired, among other things, to leave work early. Requests had been filled out by the grievant for March 15th and April 8th, which are two of the thirteen occasions when the grievant left early. This practice of submitting such a request in written form was "usually followed" according to the testimony of the Operations Supervisor.

In any event, there is no indication that the grievant left work early, after the May 11th discussion, until July 21st, during part of which time the grievant was on vacation. The principal contention of the Employer is that his early departure on July 21st took place without any notification and, of course, without completing the proper request form or orally informing any Supervisor of his intention to do so. 

According to his time-card, he punched out at 3:24 on July 21st and is credited with having worked for seven hours on that day. There is no doubt that the grievant left work on the 21st without making any written request to do so. This was a violation of the policy of the Authority and was especially serious in the grievant's case because of his position as Laboratory Technician, which has no direct supervision in the Laboratory on a full-time basis. The certified Lab Supervisor, who recommended the grievant for the position, worked only on a part-time basis as an "outside contractor" though he was characterized as a "Laboratory Supervisor."

The Supervisor of Operations was not the grievant's direct Supervisor, though on occasion he would serve as the person to whom the grievant submitted his request for early departures and certainly was present on the afternoon of July 21st. He testified that he spoke to the grievant between 3 and 3:30 p.m. on that day after he had been paged by the grievant who told him that he would be off on the following day, Friday, as a vacation day, as he would also probably be off the following week to take care of his neck. He was quite emphatic that the grievant said nothing to him about leaving early that afternoon though the grievant did leave within a few minutes after this conversation. It is clear from the testimony that, if the grievant had spoken to the Supervisor and informed him that he was leaving early, there would have been no problem in doing so.

At no time during the grievance procedure was it claimed by the Union that the grievant had, in fact, gotten permission from the Operations Supervisor as the person who would normally have been the one to whom the grievant "would" talk about the leaving-early problem. The grievant testified at the hearing on June 6th that he told the Supervisor on the 21st: 

"I'm having a lot of trouble with my neck. I've really got to go. Please tell [another person] to cancel my vacation day for Friday, the 22nd. The Supervisor said okay. This was just before I left."

The grievant believed that the Supervisor "lied" because of some difficulties between the two men in 1986 and this Supervisor had a "vendetta" against him which was especially noticeable after the grievant joined the Union in March 1988.

I was not impressed with the grievant's testimony in general and clearly I do not believe that he did inform the Supervisor "directly" that he was leaving early on July 21st. He also testified that during the afternoon of that day, after lunch, the pain in his neck increased to the point where he finally had to leave, as he did at 3:24. There was obviously time enough for him to have spoken to the Supervisor and, if he believed that the Supervisor was unreliable, there was time enough for him to have obtained and filled out a written request, if he did not already have the proper form in his desk.

The only question in this dispute is whether his failure was so serious as to justify his demotion with a consequent reduction in pay on what was then considered to be a permanebt basis, not to mention being put on a health-risky rotating shift.

As far as I am aware, the Authority was entirely satisfied with the grievant's job performance from May 11 to July 21st. So far as I am aware, there would have been no problem for the grievant if he had left early on July 21st after having requested and received permission to do so.

In the Authority's response to the third step of the grievance procedure, the Executive Director stated its reason for the demotion of the grievant:

"...is a result of the grievant leaving work without permission after being warned not to do so, and for his failure to follow instructions and proper procedures. These actions are in direct violation of the Collective Bargaining Agreement under Article XXX, Section 1-0 and Section 1-H. These violations are especially sensitive to the position of Laboratory technician since only one person is employed in this position."

The grievant's work performance during the period of his employment was entirely satisfactory except for his leaving early from a job which, in the employer's judgment, required his attendance until the specified quitting time. I believe that he was told in May 1988 that he should not do so and, indeed thereafter, his record from May 11 to July 21st was not criticized.

He should have realized after the May 11th meeting that any further failure to follow the attendance rules would be treated seriously by the employer. As far as I know, his time-card record was maintained accurately -- that is, at no time did he attempt to be paid for work not performed and the only question to be answered by me is whether his demotion was a proper response to his failure to follow the rule with respect to reporting his intention to leave before quitting time on July 21st.

I do not think that a satisfactory employee over a period of nearly eight years should be permanently demoted under the circumstances which existed on july 21st, on which day I believe the grievant was in fact suffering some pain in the afternoon and envisioned that in his immediate future it would require him to visit a chiropractic center for treatment of his ailment. He was in fact excused from work by the authorizing doctor on the following Monday, July 25th until August 8th.

I believe that a proper reaction from the Employer would have been to demote him which I think, under the circumstances, was a reasonable exercise of the Employer's discretion, from August 8th, which was the effective date of his change in rate and title, for a period of eight weeks and that he should be compensated for the difference between his salary as a Laboratory Technician and that of his new job as Plant Operator, commencing October 3, 1988 to November 3, 1988.

                                                       AWARD

The undersigned hereby makes the following Award:

1. The Authority did not have just cause permanently or for an indefinite period to demote the grievant from Laboratory Technician to Plant Operator on August 8, 1988.

2. The grievant is entitled to be compensated for the difference between his salary as a Laboratory Technician and that of his job as a Plant Operator commencing October 3, 1988 to November 3, 1988. 

Dated: June 26, 1989

Thomas A. Knowlton, Arbitrator

The Executive Director was spitting bullets after this award, and so all the higher-ups conspired to eliminate the Lab Tech "title" so the grievant would not be placed back into the lab. Next up will be the unfair labor practice charge before the State Public Employment Relations Commission.

TO BE CONTINUED