Who has the
upper hand?
Management often
By Jaymes K. Song and
takes it on the chin when
trying to discipline violent
public employees
Christine Donnelly
Star-BulletinWhen a Honolulu county parks supervisor shoved a subordinate against a car, cursing and threatening him, the city fired him, saying workplace violence would not be tolerated.
But supervisor Richard Shuff won back his job, after his union prevailed, saying that he had been "a victim of disparate treatment" because other city employees were punished less severely for worse violence.
An arbitrator said Shuff deserved to be fired but couldn't be under the circumstances; he got his job back in August without back pay or benefits."It's certainly a miscarriage of justice. The whole system failed me," says Francis Gora, 41, the employee who claims Shuff injured his neck and wrist.
Besides raising serious questions about city and state government's ability to discipline its unionized work force, the case spurs debate over whether management has abdicated authority by inconsistently enforcing collective bargaining agreements, civil service regulations and other personnel rules governing work life.
City spokeswoman Carol Costa says it's a priority to come up with a policy that will solve problems arising from Shuff's case and others like it. "We will aggressively take appropriate corrective action and not tolerate violence. We will not back off."
When a government employee is accused of wrongdoing, his immediate supervisor must follow a careful process in investigating the accusations, informing the employee and his union along the way and meting out punishment. There are no set punishments for specific misconduct, just that the employer must have "just cause."
If the employee thinks the punishment was too harsh -- or that any personnel rules were broken along the way -- he and his union can appeal up through the department, to the highest governing personnel office and finally into binding arbitration, as Shuff did. The government carries an "onerous burden and quantum of proof" to justify a firing, is how his lawyer put it.
Some managers argue the unions always have the upper hand because it takes so much to build a case against an employee and a minor technical slip-up can reverse discipline for even serious misconduct. Moreover, they say, union leaders and lawyers have far more time to devote to disciplinary appeals than government managers loaded with other work to do.
"When you have these complicated collective bargaining contracts, I think people in the departments aren't as well versed in the proceedings, while the unions are very well versed," said Keith Kaneshiro, former Director of the state Department of Public Safety. "I don't hold the unions at fault, but management."
Mayor Jeremy Harris said administrators must devote so much time to building a case -- sometimes concentrated efforts for two or three years -- that some give up and the city is left with "deadwood you can't get rid of."
But union leaders counter that many of the rules managers complain tie their hands were actually agreed to at the bargaining table. And they say it's not the unions' fault that neither the state nor counties keep a central accounting of all disciplinary data, which would help cut down on inconsistently applied punishment.
No contest to harassment
The Shuff case began Dec. 6, 1995, when during an argument at the Ala Wai baseyard where both worked, Shuff swore at Gora, including calling him a "f----- Hawaiian," threatened to break his jaw and shoved him against a car, according to the arbitrator's report.Shuff was arrested and charged with assault and terroristic threatening. He later pled "no contest" to the lesser charge of harassment, was fined, placed on probation and ordered to attend anger-management classes.
The city fired him. But he appealed his dismissal through all city channels and finally to binding arbitration. His union, the Hawaii Government Employees Association, backed him up, despite the fact that Gora was also a member.
Shuff, through his lawyer Dennis Chang, declined to be interviewed for this article. But the arbitration report outlines his defense.
In arguing for his reinstatement, Chang, hired by the HGEA, conceded that Shuff was a tough boss, but said that was precisely why the city had given him the job of cleaning up a baseyard rampant with "drugging, cheating poor work performance" and misuse of city property.
Chang claimed city officials inconsistently cited reasons for the dismissal and were tardy and not specific enough in giving a remorseful Shuff written notice. Most persuasively, as far as the arbitrator was concerned, Chang cited numerous other instances -- both before and after Shuff's altercation -- where employees had erupted on the job but had not been fired. That, Chang claimed, proved the city had violated personnel rules and contract agreements aimed at guaranteeing all employees are treated equitably.
Past practice
In his Aug. 13 ruling, arbitrator James Nicholson wrote that Shuff's conduct "certainly warrants dismissal" but that he could not allow it given the other cases, five of which he cited in his report.
Aug. 22, 1996: City worker suspended three days for going to the job site of another employee and shoving the employee to the ground, resulting in a fight.
Moreover, Nicholson wrote that the city also missed a chance to fire Shuff using progressive discipline based on previous on-the-job trouble. Shuff had been suspended two months in 1994 for nonviolent misconduct but the city failed to bring that up until the arbitration hearing. Nicholson ruled that it was too late in the process and that it should have been cited in Shuff's termination letter.
Sandra Ebesu, the city's personnel director, said she did not believe city employees had mishandled the case and that Nicholson's ruling was too liberal.
Without a standard disciplinary chart, there will always be differences in how various bosses punish employees and the unions will exploit that, she said. "They see loopholes in a particular case, and they'll go after it. It does make it very difficult for management."
Nicholson said his ruling was not overly liberal, but based on the standard arbitration tool of looking at past practice.
He added that the unions are expert at digging up management inconsistencies while the management side is often less-prepared at arbitration hearings.
HGEA spokesmen refused to discuss the matter.
However, Gary Rodrigues, head of the United Public Workers, the union most likely to grieve discipline and other contract violations, said Nicholson's comment about the unions being more prepared is "absolutely true."
Although he could not cite a precise number, Rodrigues estimated his union wins 90 percent of its arbitration cases against the state and counties. He's personally involved in every one, developing what many call a peerless institutional memory for past practice.
"I decide what we take to arbitration. I keep track of every case. I know it in my head that way I can be absolutely consistent," said Rodrigues.
The issue of problem workers winning back their jobs, and the growing number of grievances being filed over disciplinary action, is not limited to the city.
State cases
Here are several similar cases from state departments, according to arbitrators' rulings:
He pled no contest and was convicted of misdemeanor sexual assault. He later won his job back with full back pay and benefits. His punishment was reduced to a 10-day suspension and written reprimand.
He also got his job back with full back pay and benefits. Circuit Judge Leland Spencer also allowed Titcomb to work on the weekdays as a prison guard and serve time on the weekends.
Arbitrator James Hoenig ruled in the Pate case that an employee may not be "subjected to such harsh discipline principally as a scapegoat or to make an example for others when there is a pattern of less severe discipline for employees similarly situated absent some clear, loud and uniform forewarning such as republishing rules or setting out new discipline level."
Not keeping track of cases
Neither the state nor the counties keep a central accounting of all disciplinary actions, grievances filed or how they were resolved. But some numbers are available, primarily based on the cases appealed to the central personnel offices.In Honolulu County, for example, 242 grievances reached the central personnel office in 1996 and 1997, according to Costa.
Of those, 39 were over firings and the rest were over other disciplinary actions and other issues, she said. Fifteen cases completed arbitration during that time; the city won seven, she said.
In the state executive branch, 827 grievances over discipline were reported to the state Department of Human Resources Development in the past six fiscal years, including 179 in fiscal 1997.
Of those 179, nearly 73 percent were filed by members of United Public Workers.
Rodrigues, UPW's head, said he aggressively fights for every case he believes has merit. Taking a case to arbitration is costly -- nicking each side a minimum of $5,000 per case, he said -- "but we have to fight, because if you let things go that's how they set people up to fire them."
In Honolulu county, 85 employees were dismissed for misconduct from July 1994 to June 1998, Costa said. Among the more than half of all employees who are tracked by the state personnel department, 128 were fired and 977 suspended over the past four fiscal years, according to spokesman James Dote.
Although dismissals are rare, the tools are there for managers to control problem workers, said James Takushi, the Director of the state Department of Human Resources Development. "Whether managers have the guts to do it, that's the question. But you can do it."
Meanwhile, Gora, now a heavy-equipment supervisor, is suing the city, claiming that Shuff had threatened and assaulted employees before him and bosses did nothing.
He said the message from Shuff winning back his job is that "if they're letting people beat up people, my guys would be fighting everyday. I was failed by the arbitrator. I was failed by HGEA (the union). The city did do their job in firing him, but the city is still liable for his actions."
