New Hampshire Arbitration Board
In the matter of the Arbitration between Clarion Water Company and Water Utilities, Local 555
Re: John Haskin
Docket # 88-268
Opinion and award
At hearings held in Clarion, New Hampshire 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 Clarion Water Company have just cause to demote the grievant, John Haskin, from Laboratory Technician to Plant Operator?
If not, is the grievant, Mr. Haskin, entitled to back pay for the period August 8, 1988 to November 3, 1988?
DISCUSSION
Mr. Haskin was hired by the Clarion Water Company in 1980 as a Plant Operator. 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 21st, 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 Mr. Haskin’s work performance as a Plant Operator or as a Lab Tech 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 from 7 a.m. to 3:30 p.m. (Day shift).
On May 11th, 1988, Mr. Maxwell, the Executive Director of the operation, and the Superintendent, Mr. Gregory, had a meeting with Haskin in Maxwell’s office in which they “spoke with John about leaving early without notice and spending time in the lunch room with other employees during lunch and breaks.” At that meeting, according to Gregory’s memorandum: “…Haskin said that he had problems with his car accident and other workers talking with Sidney MacKenzie. John promised this would not happen again.”
Sidney MacKenzie is the Operations Supervisor who supervises the staff under the Plant Superintendent. The purpose of the May 11th meeting was to show Haskin the number of occasions, beginning in May 1987 through May 10th, 1988 in which Haskin left work early. The interoffice memorandum or file note which was presented by the Employer as Exhibit # 8 was, as the note shows, only a memorandum to the file; it was not shown to Haskin. It included 13 occasions in which Haskin left early “in the past.” I was also presented with copies of the grievant’s requests to leave early (Union Exhibit #4) which were in the form of “requests for personnel Action” which were 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 Haskin left early. This practice of submitting such a request in written form was “usually followed” according to the testimony of Mr. MacKenzie.
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 Haskin 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 p.m. 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 Clarion Water and was especially serious in Haskin’s case because of his postion as a Laboratory Technician, which has no direct supervision in the Lab on a full-time basis. Sam Dunny, who recommended Haskin for the position, worked only on a part-time basis as an “Outside contractor” though he was characterized as a “Lab Supervisor.”
MacKenzie, Supervisor of Operations, was not the grievant’s direct Supervisor, though on occasion he would serve as the person to whom Haskin submitted his request for early departures and certainly was present on the afternoon of July 21st. He testified that he spoke to Haskin between 3 and 3:30 p.m. on that day after he had been paged by Haskin 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 Haskin said nothing to him about leaving work early that afternoon though the grievant did leave within a few minutes after this conversation. It is clear from the testimony that, if Haskin had spoken to MacKenzie 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 Haskin had, in fact, gotten permission from MacKenzie as the person who would normally have been the one to whom Haskin would talk about the leaving early problem. Haskin testified at the hearing on June 6th that he told MacKenzie on the 21st: “Sidney, 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. Sidney said okay. This was just before I left.” The grievant believed that MacKenzie “lied” because of some difficulties between the two men in 1986 and MacKenzie had a “vendetta” against him which was especially noticeable after the grievant joined the Union in March 1988.
I was not impressed with Haskin’s testimony in general and clearly I do not believe that he did inform MacKenzie directly that he was going to leave 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 p.m. There was obviously time enough for him to have spoken to MacKenzie and, if he believed MacKenzie 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 this dispute has 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 permanent basis.
As far as I am aware, Clarion Water was entirely satisfied with Haskin’s job performance from May 11 to July 21st. So far as I am aware, there would have been no problem for Haskin if he had left early on July 21st after having requested and received permission to do so.
In Clarion’s response to the third step of the grievance procedure, Mr. Maxwell stated its reason for the demotion of Haskin: “…is a result of Mr. Haskin 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 XI, section 11-09 and section 11-06. These violations are especially sensitive to the position of Lab Tech since only one person is employed in this position.”
The sections referred to in the letter to the Union Vice-President states that: “Clarion Water retains the sole right to discipline or discharge employees for cause. Cause for discharge shall include but shall not be limited to the following*** h) insubordination or failure to follow instructions. i) leaving post without permission of the supervisor (Joint Exhibit 10).
Mr. Haskin’s work performance during the period of his employment was entirely satisfactory except for his leaving work 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 ever 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 Mr. Haskin 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 Lab Tech and that of his new job as a Plant Operator commencing Oct. 3, 1988 to Nov. 3, 1988.
AWARD
The undersigned hereby makes the following Award:
1) Clarion Water did not have just cause permanently or for an indefinite period to demote John Haskin from Lab Tech to Plant Operator on August 8, 1988.
2) Mr. Haskin is entitled to be compensated for the difference between his salary as a Lab Tech and that of his job as a Palnt Operator commencing Oct. 3, 1988 to Nov. 3, 1988.
Certified: Dutchess County Vermont
Clinton A. Morris, Arbitrator