FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 99-09543

IBEW LOCAL NO. 723,

Union,

and

CITY OF FORT WAYNE, INDIANA,

Employer.
______________________________________/

OPINION OF THE ARBITRATOR

March 8, 2002

After a Hearing Held January 25, 2002

At the City-County Building in Fort Wayne, Indiana

For the Union: For the Employer:

Bruce L. Getts Kathryn A. Brogan

Business Representative Rothberg Logan & Warsco LLP
IBEW Local 723 Attorneys at Law
5401 Keystone Drive PO Box 11647
Fort Wayne, IN 46825 Fort Wayne, IN 46859-1647
 The Parties

Grievant, [PJF], is a greenhouse gardener with the Department of

Parks and Recreation (“Parks Department”) of the City of Fort Wayne,

Indiana (“Employer” or “City”). Local No. 723 of the International

Brotherhood of Electrical Workers, AFL-CIO (“Union”) represents 60-70

City workers in the Parks Department, including Grievant. Relations

between the parties are governed by a collective bargaining Agreement,

which was received into evidence as JX 1 (“CBA”).

The Charges Against Grievant

Grievant was charged with insubordination, disrupting harmony of

unit, job performance, disorderly conduct, and abusive language arising out

four incidents which occurred in July of 1998, described by his supervisor,

Andrew R. Force (“Supervisor”), in a NOTICE OF EMPLOYEE

REPRIMAND dated 8/10/98, as follows:

(I) On or about June 22, 1998 I instructed [PJF] to apply some pesticide
to a group of plants. On 7/7/98 I asked [PJF] if he had applied the
pesticide as instructed. He said he had not.

(II) At approximately 7:45am on 7/8/98 [PJF] reprimanded a greenhouse

employee in an ill-tempered tone, for the way she was watering
plants. [PJF]’s outburst was so disruptive that the employee felt she
couldn’t work the rest of the day and went home. She was in tears
when she advised me she needed to leave. [PJF] had been instructed
not to supervise the work of employees unless instructed to do so by
his supervisor.

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(III) Upon assigning some work to [PJF] at approximately 10:00am on
7/28/98 he became agitated and began shouting at me. He asked why I
didn’t assign the work to someone else. When I explained to him I
wanted him to do the work he began shouting even more. Other
employees and volunteers were working in the greenhouse and could
not help but witness [PJF]’s disruptive behavior. One volunteer
remarked to me later that they were frightened of [PJF]’s behavior and
were unsure if they wanted to continue to volunteer for us due to
[PJF]’s behavior.

(IV) Upon questioning [PJF] at approximately 9:00am about why he

applied a pesticide to the crops that required a 24 hour re-entry period
he became very agitated. He began to shout and swear, using the word
“fuck” frequently. I felt language such as that was uncalled for
especially around other employees. When I asked him to clean up his
language he said, “what have I said that is so bad,” and insisted I
repeat the words to him. I advised him he should know what he said.
His reply was, “no I don’t, you tell me.” JX 6; enumeration supplied.

Following a pre-deprivation hearing on September 8, 1998, Grievant served

the 5-day suspension imposed by the Supervisor.

The Suzanne Henry Incident (II)

An examination of the testimony of the greenhouse employee

involved in the second incident listed above, Suzanne Henry, serves to

illustrate the difficulty which this case presents to the arbitrator. On

September 29, 1999, Ms. Henry’s1 deposition was taken in the case of [PJF]

v City of Fort Wayne Parks Department, United States District Court,

Northern District of Indiana, Fort Wayne Division, No. 1:99-CV-035. The

intervention of this lawsuit is one of the reasons for the delay in scheduling

3
an arbitration hearing. The district court granted summary judgment against

Grievant, and the Court of Appeals affirmed, [PJF] v City of Fort Wayne,

241 F3d 597 (7th Cir 2001).

The City objected to the introduction of Ms. Henry’s testimony via

deposition, on the ground that Grievant could have called her in person.

The arbitrator overruled the objection on the grounds that both parties

were represented by counsel at the deposition, at which the City had the

opportunity to cross-examine her, and the City could have impeached her

deposition testimony at the arbitration hearing, either by calling her or

through other witnesses. Hill & Sinicropi, Evidence in Arbitration (BNA 2nd

ed 1987) @ 140-141. The City made no attempt to impeach her testimony,

which is quoted extensively because she had no axe to grind, her self-

deprecating tone makes her eminently believable, and the testimony

provides insight onto the obvious antagonism between Grievant and his

Supervisor. Ms. Henry’s version of the subject incident was as follows:

Q. … The date that Mr. [PJF] was written up for was … July 8th of
1998. Does that sound about right?

A. Yeah, yes.

Q. … Do you remember what happened that day?

A. It was a Wednesday. It was the day I was back in the greenhouse.

1
In the deposition transcript, her name also is spelled “Susan”. The arbitrator assumes that City records
reflect the correct spelling as “Suzanne”.

4
The other days during the week I was working in the parks with Larry
Walter’s crews.
That Tuesday, I had called in because I was running a
temperature. I didn’t feel good, and that Wednesday I came into work,
even though I felt the same way I did on the Tuesday.
And I was working 6:00 to 2:00 that day, and [PJF] and myself
are the only ones in the greenhouse at the time. …

Q. What time was this?

A. It was … probably 6:15 or so that I got out into the east range to
start the watering for the day. …
The chrysanthemums were in, and I went out to the east range
to mist them. I had just worked that Sunday, and I was told the Friday
before I needed to make sure they were misted every so often during
the day. They go into a type of shock if they don’t get it.

Q. Who had told you to mist them the Friday before?

A. I’m sure Marilyn did. I’m sure a few people told me to make sure I
didn’t forget to do it on Sunday.

Q. Marilyn is Marilyn Setser?

A. Marilyn Setser. …

Q. … So you went to mist the chrysanthemums.

A. I went in to mist the mums, not knowing that they are only
supposed to be misted … the first four days that we get them in. I
didn’t bother to ask either if we were still doing it or not. I just went
ahead and started doing it.
And I was in the middle of a bench, and … I heard something
and turned around, and [PJF] walked in, and he just basically said,
“What are you doing?”
And it was like, “Ahh, I’m misting the mums, obviously.”
And he is like, “Why?”
I said, “Because I’m supposed to,” and then I … got really
upset just because it was like – what? I’m not supposed to be doing
this? And … I was in a bad mood in the first place. I had gotten into

5
an argument with my boyfriend before I came to work, and … I was
like, why are you, you know, like questioning what I’m doing? You
know, I thought I was doing what I was supposed to be doing. I
basically just threw the hose down, cried, and left – clocked out and
left.

Q. Did [PJF] yell at you? Did he scream?

A. No. … I just felt stupid. …

… I wouldn’t say it was a condescending tone or anything. It
was just … “What are you doing?”
… I just felt dumb because … I thought I was doing the right
thing, and I guess I’m not.

Q. So after you went home, did you talk to Andy Force?

A. Actually, I called Andy from the greenhouse before I left …, but

he wasn’t there, so I left a message. I went home. He never called me,
so I tried to call him again at 3:00 to try to tell him what happened … .

Q. … So you didn’t talk to Andy until 3:00 that afternoon?

A. Yeah. … it was later in the afternoon.

Q. … What did you tell him then?

A. … I told him exactly what happened again. …

Q. Were you upset still when you talked to Andy?

A. Yeah, I was.

Q. Upset with [PJF]?

A. I was just upset about the whole incident, and that I made such an
ass of myself really. I was still running a one hundred five fever, and I
felt like crap.

Q. After you found out that [PJF] got the write-up, did you talk to Mr.
Force again?

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A. Yeah. Andy … didn’t tell me that day, but later in the week he had
told me he was going … [to] write up a reprimand, but he said it
wasn’t specifically for the incident between us, that there was a couple
other things that had happened that day, and he was just going to lump
them altogether in this reprimand because … I told him … there’s no
reason to do that because … this was just a misunderstanding. It
wasn’t something that needed to be taken to that level.

Q. You told him that before he wrote him up?

A. Yeah. … I was like, you’re not putting my name on it or anything.

I was like, this is something that, you know, we’ll get over it. …
And he was like, “Well, other things happened that day, and
there needs to be something said, and one needs to be written
anyways.” …

Q. So then you found out later that [PJF] did get written up
specifically for this incident?

A. Uh-huh.

Q. Did you go to Andy again then?

A. I read the reprimand, and I went to Andy, … I didn’t have the

reprimand in my hand when I went to Andy, and I said, “Andy, I just
read the reprimand, and there’s a couple sentences in there that I don’t
agree with. And I think you overstated some things.”

[The NOTICE OF EMPLOYEE REPRIMAND dated 7/9/98, herein

CX 4, was marked by the reporter as Plaintiff’s Deposition Exhibit 1.
This reprimand was one of the four separate ones, CXs 1, 4, 6 and 7,
which were combined into JX 6.] …

Q. Is this the reprimand you read?

A. I would assume so.

Q. … If you look under the detail section, do you remember what you
told Mr. Force was stated wrong?

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 A. “[PJF]’s outburst was so disruptive that Suzanne felt she couldn’t
work the rest of the day and went home.”

Q. What did you tell him about that?

A. … “It wasn’t an outburst. It wasn’t what he said. It was how he

said it, and it wasn’t so much that he yelled at me or anything like an
outburst would be.”

Q. … And were you in tears when you talked to Andy that afternoon?

A. I don’t know. I might have been. I might not have been.

Q. And [PJF]’s handwritten comment says, “I only asked why she

was misting plants. She said she did not feel well and went home.”
Is there anything about that that you disagree with?

A. No. Deposition of Suzanne Henry (UX 9) @ 7-15.

Later in her deposition, Ms. Henry testified about the nature of the

relationship between Grievant and the Parks Department:

Q. A week or two ago Marilyn said, “Don’t talk to [PJF].”

A. (Witness nods.)

Q. Did she say why?

A. I guess there had been a situation where somebody had said

something about him, and he happened to be standing right behind her
after she said it. And so it was just an understanding that everybody
was not to say anything to him anymore. I had been told before,
“Don’t talk to him.”

Q. By who?

A. By Lynda, specifically.

Q. Did Lynda say why?

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 A. Just because they didn’t want to deal with him anymore. Figured if
somebody said something, then it was just another thing that he could
use against them. Deposition of Suzanne Henry (UX 9) @ 19-20.

Q. Were you ever told you’d be reprimanded if you talked to [PJF]?

A. Yes. …

Q. How long ago did this all happen?

A. Probably, within the last one or two weeks. Deposition of

Suzanne Henry (UX 9) @ 23-24.

While not attempting to impeach Ms. Henry’s testimony, the City in

its brief suggests that it should be discounted in light of the “so called code

which inhibits a union member from testifying against another,” citing

General Motors Corp, 2 LA 491 (Hotchkiss Arb 1938) and American

Smelting and Refining Co, 48 LA 1187 (Leonard Arb 1967). Whatever code

may have existed in heavy industrial operations decades ago would seem to

have little relevance in today’s urban garden settings. The arbitrator finds the

witness’ testimony more persuasive than the City’s argument.

The Supervisor’s version of the second of the four incidents differs so

markedly from that of the two participants, who also were the only

witnesses, that it must be discounted. The pre-deprivation hearing officer

recommended that the second portion of the reprimand be dismissed, albeit

on a different ground. Such a disparity between the Supervisor’s version and

the testimony of the only witnesses also tends to undermine the other

9
charges against Grievant. However, because Grievant’s own testimony about

the other charges was little more credible than the Supervisor’s version of

the second incident, it does not seem reasonable to dismiss them all.

Grievant’s Troubled Employment History

Were Grievant’s run-ins with management limited to those with his

Supervisor, it might be tempting to view them as reflective of nothing more

than a serious personality conflict. However, Grievant appears to have had

difficulties with other supervisors as well. See CX 10 (Sean Moody/Larry

Walter), CX 11 (Sean Moody/Larry Walter), CX 12 (Sean Moody), CX 13

(Sean Moody). In an undated letter to Payne Brown, the City’s Director of

Public Safety, against whom Grievant had remonstrated, Grievant himself

stated, “I am writing to apologize for my unruly out-burst on 9-8-98 at the

pre-deprivation hearing this day.” Thus, Grievant’s problems at work are not

limited to those with his Supervisor.

Moreover, Grievant’s answers to straightforward questions are

troubling, because he launches into detailed technical discourses when

simple yes or no responses would be far more appropriate. He is well

educated, having obtained a horticulture degree in greenhouse management

from Purdue University. He keeps abreast of developments in his field by

reading technical materials and attending conferences. He has received

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commendations for his work (UX 6, UX 10), even an earlier one from his

Supervisor (UX 5 dated 4/22/92). Grievant’s command of his subject is

evident.

But possessing technical competence constitutes only part of

Grievant’s job description; another part is, “Works in harmony with fellow

workers and maintains good relations with park [PJF]rons” (JX 8). In a letter

to the Union, dated February 3, 1999, concerning ten (10) grievances,

including the 4 at issue here, which Grievant filed in 1998 alone, the

Director of Public Safety made these insightful comments into Grievant’s

job performance:

Mr. [PJF] most recently alleges a number of contract violations

ranging from appealing a five day suspension to contesting
management’s right to assign him his work location. As in the past,
when faced with similar complaints, I have been of the opinion that
better communication between management and Mr. [PJF] would
alleviate many of the problems Mr. [PJF] suggests he experiences. He
clearly is passionate about his job and this is a good thing, however,
he needs to temper his passion and understand that ultimately it is his
supervisors who are responsible and whether he agrees or disagrees
with their judgment, he is required to adhere to their request. JX 4.

When asked to identify JX 4, just quoted, and the Union’s response,

JX 5, both Joint Exhibits as stipulated by the parties, Grievant claimed to be

unsure whether he had filed all 10 grievances under discussion and to be

equally unsure whether they were filed in 1998, even though the subjects of

the letters were “[PJF] grievances heard January 13, 1999” and “[PJF]

11
Grievances”, respectively, and all 10 grievance numbers began with the

numerals “98”, in accordance with a common scheme of identifying legal

matters by the year in which they are filed. Grievant himself has served as a

Union steward and surely knows how grievances are numbered. Thus,

although the arbitrator finds serious discrepancies with some of the

Supervisor’s testimony, there are comparable shortcomings with respect to

Grievant’s, who sometimes seems unwilling to admit the indisputable.

The Marathon Incident (I)

On or about June 22, 1998, the Supervisor told Grievant to apply the

pesticide, Marathon, to plants to be displayed at an upcoming flower show.

They discussed the fact that protective gloves must be worn when handling

plants treated with Marathon, because the chemical can cause a reaction in

people. A fellow employee, Sharon Zettle, later told Grievant that she was

uncomfortable with Marathon, and Grievant agreed to accommodate her

concerns. He decided to spray Orthene instead, a pesticide which he deemed

better for the intended purpose, and determined not to apply it until just

before the show, so that it would be at full strength. On July 6, 1998,

Grievant sprayed the Orthene (UX 1).

On July 7, 1998, the Supervisor asked Grievant if he had sprayed

Marathon as directed, and Grievant answered that he had not. Grievant did

12
not mention that he had sprayed Orthene instead. Reasonably believing that

Grievant had done nothing, the Supervisor wrote up a reprimand (CX 1), on

which Grievant responded, “APPLIED AS ASKED AND TOLD ANDY 7-

9-98.” The Supervisor then inspected the plants at issue and found no trace

of Marathon. It is unclear when Grievant actually informed the Supervisor

that he had applied Orthene as a response to the Supervisor’s instructions,

although the fact apparently came out at the pre-deprivation hearing (JX 7).

Grievant proffered various explanations for his behavior: that the

Supervisor gave him only general instructions to apply a systemic pesticide

and left the choice of the specific agent up to him, that Orthene was better

suited to the task,2 that the Supervisor never got back to him as to the

specific plants to be sprayed. Despite the Supervisor’s penchant for

embellishment, the events are sufficiently well documented to permit the

conclusion that Grievant deliberately contradicted the Supervisor’s

instructions. The Marathon incident is resolved against Grievant.

In Grievant’s defense, the Union cites Consolidation Coal Co, 77 LA

927 (Nelson Arb 1981) and Hill & Sinicropi, Management Rights (BNA

1986) @ 506-507 for the proposition that insubordination has three

requirements:

13
 (1) The employer must demonstrate that the instructions were clear
and that the grievant understood the directives;

(2) The instructions must be understood to be an order, not just a

request; and

(3) The individual must understand the penalty that may be

imposed for being insubordinate.

While sound, the Union’s argument is insufficient to carry the day, for a

number of reasons.

First, the City’s POLICY AND PROCEDURE 6.14 (JX 2) does not

narrowly restrict the concept of insubordination. Although it contains no

formal definition, it provides that an immediately dischargeable offense may

consist of “[i]nsubordination, including refusal to perform work required by

a working leader.” Thus, while the POLICY AND PROCEDURE includes

the narrow concept for which the Union argues, it is broader, as is the

concept of insubordination itself.

Webster’s 3rd New International Dictionary (Merriam-Webster 1986)

defines insubordinate as “unwilling to submit to authority: disobedient” and

insubordination as “the quality or state of being insubordinate: defiance of

authority.” Black’s Law Dictionary (West 7th ed 1999) defines

insubordination as:

2
Concededly, Grievant has a well founded argument on this point, but the issue is not whether Grievant is
better informed than the Supervisor, who had his own reasons, but whether Grievant disobeyed a direct
instruction.

14
 1. A willful disregard of an employer’s instructions, esp. behavior
that gives the employer cause to terminate a worker’s employment. 2.
An act of disobedience to proper authority; esp., a refusal to obey an
order that a superior officer is authorized to give.

Grievant’s conduct certainly is included within the broader concept of

insubordination.

Even Hill & Sinicropi recognize that a broader concept may be

appropriate under proper circumstances:

The mere failure of an employee to carry out an order is generally not

considered insubordination, although an arbitrator may conclude that
such action is insubordination if coupled with other facts such as prior
instances of abusive behavior toward supervision. Id. @ 506.

Given Grievant’s demonstrated preference for his own judgment over that of

his supervisors, it is not difficult to conclude that his actions were intended

to defy the Supervisor’s instructions.

Finally, Grievant’s conduct arguably passes the strict test posed by the

Union. Grievant obviously understood that a pesticide needed to be applied

to protect plants for the upcoming flower show. The only issue is whether

the Supervisor specifically directed him to use Marathon, and that issue has

been resolved against Grievant. At the arbitration hearing, Grievant

conceded that he is required to comply with management’s directives and, as

a former Union steward, he surely understood the penalty for failing to carry

out instructions. Indeed, the 7th Circuit described him in these words:

15
 [PJF] is no shrinking violet. Over the course of his 20-year career with
the City of Fort Wayne Parks and Recreation Department, [PJF] has
filed numerous lawsuits and administrative agency complaints against
his employer. Not surprisingly, he is not particularly popular with his
supervisors. 241 F3d @ 599.

Having played the game long and hard, Grievant certainly knows the rules.

The Greenhouse Incident (III)

At the arbitration hearing, the Supervisor exhibited little recollection

of the incident of July 28, 1998, beyond what he had recorded in the

reprimand, CX 6. In particular, he could not identify any alleged witness to

the incident. Grievant, however, recalled it well. As the two antagonists

walked into the greenhouse, the Supervisor told Grievant to work on the

irrigation system. Grievant preferred to do his routine daily maintenance.

The usual altercation resulted, with Grievant informing the Supervisor that

he was hired to grow quality plants, not to please the Supervisor.

Also as usual, Grievant had a lengthy technical explanation about

interrupting a bleaching process, about the need to inspect the fertilizer

injector, and about other things he considered to have priority. However

technically correct Grievant may be, this is a labor forum, not a scientific

one. The issue is not the proper priority of work tasks but rather timely

obedience to a reasonable supervisory directive. The third incident also must

be resolved against Grievant.

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 The F-Word Incident (IV)

The last of the four incidents no doubt was precipitated by Grievant’s

continuing irritation at not being allowed to spray insecticides in the

evening, when he considers their application to be more effective and less

disruptive of greenhouse operations. Among the expressions of his extreme

displeasure was the federal lawsuit mentioned above. Inasmuch as the 7th

Circuit already has explained Grievant’s complaint, it is unnecessary to

elaborate here. The Supervisor’s questioning of Grievant about the necessity

for morning spraying apparently struck a nerve with Grievant.

On the morning of July 31, 1998, Grievant sprayed a pesticide on

plants in the greenhouse. The application was duly noted on the Written

Notification for EPA Worker Protection Standards, UX 1, although it

appears that the Supervisor did not see UX 1 or even know which particular

insecticide was applied, until later. According to EPA rules, after spraying,

only specially trained employees may enter the greenhouse for 24 hours, and

for only limited purposes. In practical effect, the greenhouse is shut down

for the duration of the reentry period, which varies with the particular

chemical. Besides Grievant, only one other employee, a seasonal worker,

was on duty at the greenhouse that day. Although an employee is supposed

to be given early entry training within 6 days of employment, the seasonal

17
employee had not yet been trained.

Despite the lack of training, the Supervisor directed the seasonal

employee to enter the greenhouse before the reentry period expired. Grievant

cautioned her not to, as it was against EPA rules. Grievant threatened to call

the state chemist in charge of compliance with federal environmental rules.

The Supervisor challenged Grievant to go ahead and call and wrote Grievant

up for abusive language, disrupting harmony of unit, and disorderly conduct

(CX 7).

Mr. Gerald L. Lewis, a maintenance technician called by the Union,

testified convincingly that formal English is not customarily spoken in the

Parks Department. He described the usual vernacular as “carpenters’

language”. He testified without contradiction that even supervisors use it.

Thus, even though “[t]he use of abusive or threatening language toward

fellow employees, customers, guests, or supervisors” is listed in City

POLICY AND PROCEDURE 6.14 (JX 2) as an infraction “so serious as to

require an employee’s IMMEDIATE DISCHARGE,” because of actual

practice, the City must demonstrate something more than an employee’s

mere use of “carpenters’ language”. See generally Uncivil Nation, The

Atlanta Journal-Constitution, February 22, 2002, @ E1 & E4 (“Off-color

language pervading all age groups”).

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 According to the Supervisor, it was not so much Grievant’s use of

questionable language as Grievant’s reaction when specifically asked to tone

it down that prompted him to reprimand Grievant. The explanation is

reasonable and is consistent with the description of the incident in the

reprimand itself (CX 7). While Grievant did admit to some intemperate

language, as is his custom, he launched into a discussion of the chemical

involved, complete with application chart (UX 1), but again, chemicals are

not the issue. Foul language and Grievant’s refusal to tone it down in public

are.

The Union argues that Grievant’s vulgarities were general expletives

not directed “toward” anyone in particular. Such an argument is not

persuasive, because Grievant’s remarks almost certainly were directed

toward his nemesis, the Supervisor. Moreover, POLICY AND

PROCEDURE 6.14, ¶¶ A.5 and B.4 make abundantly clear that the list of

punishable offenses is not intended to be exclusive and that “latitude shall be

accorded supervisors to cover specific circumstances.” Once the Supervisor

specifically asked Grievant “to clean up his language,” Grievant had an

obligation to do so. For these reasons, the fourth and final incident must be

resolved against Grievant.

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 The Deference To Be Afforded The Hearing Officer’s Decision

Although the pre-deprivation hearing officer recommended that the

second reprimand be dismissed because Grievant’s job description (JX 8)

arguably authorized him to supervise other employees, the hearing officer

nevertheless upheld the full 5-day suspension that the Supervisor imposed.

The arbitrator agrees that the second reprimand was without just cause, on

the basis of Ms. Henry’s description of the alleged incident. He has

difficulty, however, in concurring with the hearing officer’s conclusion

regarding the duration of the suspension.

A threshold issue is, therefore, the deference, if any, to be accorded

the hearing officer’s findings and conclusions. The pre-deprivation hearing

was conducted under authority of ¶ A.3 of POLICY AND PROCEDURE

6.14 (JX 2), which states:

Discipline involving demotion, suspension or termination shall require

a hearing before a neutral party to hear all evidence relative to the
discipline and to provide the employee the opportunity to present
evidence on his/her behalf to refute pending allegations. A decision
will be rendered within five (5) working days.

Cf. Mathews v Eldridge, 424 US 319 (1976). POLICY AND PROCEDURE

6.14 no doubt was promulgated under authority of CBA, Article IV

Management Rights, Section 2 Work Rules. However, neither the POLICY

20
AND PROCEDURE nor the CBA expressly spells out the interplay between

the two.

CBA, Article VII Arbitration, Section 5 Arbitrator’s Authority

provides that, once selected, “The arbitrator shall proceed forthwith to

examine into, and make determination of the matters in dispute.” Because

arbitration is the accepted way of resolving labor-management disputes and

because the CBA does not call for any deference to be afforded to the

hearing officer’s decision but rather calls for the arbitrator to “make

determination of the matters in dispute,” the arbitrator concludes that he is to

hear all matters in dispute, de novo without deference to the hearing officer’s

decision. That being the case, the arbitrator departs from that earlier

decision, insofar as Grievant’s suspension is concerned. Nothing, of course,

precludes reference to the pre-deprivation proceedings, so long as the

arbitrator makes his own independent determination.

The Appropriate Remedy

In Office of the Sheriff, 107 LA 972, 24 LAIS 3328 (Cornelius Arb

1996), the arbitrator was confronted with a situation in which the grievant was

charged with 4 offenses and assessed a single penalty for all 4, only one of

which charges the arbitrator upheld. Because the charges were not made in the

alternative (i.e., because the grievant was not told that any one of the charges

21
would merit the full penalty), the arbitrator substantially reduced the penalty.

He did not do so pro rata (i.e., he did not simply reduce the penalty by ¾),

because the charges were not of equal gravity. Rather, he assessed a penalty

based upon the gravity of the one charge sustained.

In the instant case, the arbitrator is faced with a similar situation. When

the Supervisor prepared reprimands for the first two incidents, CXs 1 and 4, he

recommended a 3-day suspension. In the third and fourth reprimands, CXs 6

and 7, he initially recommended termination. After a conference with the

City’s manager of labor relations, the 4 reprimands were combined into the

NOTICE OF EMPLOYEE REPRIMAND dated 8/10/98 (JX 6), and a single

5-day suspension was imposed. The combined reprimand does not inform

Grievant that commission of any one of the 4 offenses is sufficient to sustain

the full penalty.

The distinction is important to a grievant’s due process rights3 and to a

union’s strategy. A grievant has the right to know not only the offenses with

which he is charged, but also the consequences of each offense. The Union’s

strategy, even its willingness to go to arbitration, may vary, depending upon

what it must prove to prevail. A union may be reluctant to take a multi-charge

grievance to arbitration if it knows that it must refute each and every charge in

3
Read “just cause” when no governmental action is involved. Elkouri & Elkouri, How Arbitration Works
(ABA/BNA 5th ed 1997) @ 918-920 and 1999 Supp @ 145-146.

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order to obtain meaningful relief. For these reasons, both Grievant and the

Union were entitled to know exactly what was at risk.

In the instant case, the hearing officer effectively threw out a highly

exaggerated charge (II), yet sustained the entire penalty. This arbitrator does

not find such an approach at all equitable. For that reason, he modifies the

penalty imposed upon Grievant. Although the arbitrator has doubts about the

Supervisor’s objectivity toward Grievant,4 he has even stronger doubts about

Grievant’s overall innocence. The arbitrator thus limits himself to holding the

City to the Supervisor’s recommended penalty for the first two offenses, a 3-

day suspension. Because Grievant did in fact apply a pesticide to the show

plants and the plants did not suffer, it seems reasonable to treat the two

offenses as having equal gravity. Under that theory, Grievant unjustly was

suspended a day and a half for the Henry incident (II).

The Parties’ Procedural Objections

Both parties in their briefs raise various procedural objections, including

ones about the scope of the arbitration. Beyond peradventure, four incidents

gave rise to a single 5-day suspension, which is the subject of this arbitration.

The case was presented to both the pre-deprivation hearing officer (JX 7) and

4
The City cites Ford Motor and Auto Workers, 1 ALAA ¶ 67,274 (Shulman Arb 1945) and Huron Forge
& Machine Co, 75 LA 83 (Roumell Arb 1980) in support of the Supervisor’s putative objectivity. In the
former, the management accuser and grievant did not even know each other, and the latter concerns the

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to the arbitrator on that basis. Whether the matter be viewed as four separate

grievances or as a single one addressing all four incidents is of no moment,

especially not at this late date. This matter has stretched over five (5) calendar

years, 1998-2002 inclusive, and must be brought to an end. Recently

relationships between the principals seem to have ameliorated and hopefully

will remain tolerable for the good of all concerned. All procedural objections

have been waived by the conduct of the parties. It’s over.

Award

For all the foregoing reasons, the grievances are SUSTAINED IN

PART and DENIED IN PART. Grievant is awarded back pay and any lost

benefits for 1½ days.

Dated March 8, 2002

_____________________________
E. Frank Cornelius, Arbitrator

weighing of the testimony of neutral witnesses against that of those who have a stake in the outcome.
Neither is apposite.

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