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supervisors may organize. Fla Stat § 447.301. Until February 4, 2010, when
First Coast News aired an unflattering video featuring two of Grievant’s crews,2
he had received excellent reviews from the very Manager who disciplined him.3
him an overall rating of Exceeds Standard, the highest rating used. Among the
again gave him an overall rating of Exceeds Standard and made these
1
Until 1997 when the utility took over water and sewer, it was known as Jacksonville Electric Authority. “JEA”
is now an orphan acronym. TR @ 16, http://en.wikipedia.org/wiki/JEA.
2
“JEA Workers Unplugged…On the Clock ”, http://www.firstcoastnews.com/news/news-article.aspx?storyid=
151621.
3
The Manager of Transmission & Distribution Maintenance, sometimes abbreviated T&D Maintenance. Because
other managers are mentioned, “Manager” will be treated as a term of art referring to the T&D Manager.
2
comments:
3
[Grievant] fully reviews jobs before assignments are issued. For
storeroom issues he notifies all other coordinators when he sees stocking
issues get low on critical items. He also notifies the storeroom of
potential problems. UX 2.
In the last evaluation preceding the events of February 4, 2010 (UX 3),
[Grievant] will check with his crew to make sure they can arrive in a
timely manner before assigning tickets. He will shift crews if necessary to
ensure quick response time.
[Grievant] reviews the project file upon receipt and drives the job. He
then checks for storeroom material. Then he issues the package to the
working foreman. He clearly communicates progress of projects his
crews are working on. Internal customers feel confident he can meet
goals expected of him.
4
your actions based on information made aware to T&D Maintenance
Management from a media story which aired Thursday, February 04,
2010.
‘JEA Unplugged’,” dated February 12, 2010 (EX 3),4 was produced, the
4
JEA exhibits will be denoted by EX and joint exhibits by JX. Arbitrator.
5
Name Omitted Emp#7386 (IBEW 2358) Linemaintainer
Name Omitted Emp#7472 (IBEW 2358) Linemaintainer
Name Omitted Emp#5979 (IBEW 2358) Linemaintainer
Name Omitted Emp#6862 (IBEW 2358) Linemaintainer
Name Omitted Emp#7679 (IBEW 2358) Apprentice
Fact findings and follow-ups were held February 8 through February 11.
Union representation was present during all. The following is a summary
of each fact finding held. Note: the FCN story focused on 3 dates;
November 10 & 13, 2009 and December 9, 2010. Through a public
records request, the reporter also requested information regarding time
sheets, pay scales, crew & vehicle assignments for the weeks of
November 9-14 2009, December 7-11 2009, January 4-8 & January 11-
14 2010. In January 2010, crew members were reassigned to different
crews. Because of this annual event, additional individuals were
questioned regarding the presumed improper behavior. Normal crew
sizes is 4 to 5 individuals. EX 3.
indicates the Manager’s exact words except for the bracketed [] material
6
on occasion. He stated he did notice other JEA vehicles and employees there.
He could recall the job video-taped on December 9th. After the job finished, he
released his crew to lunch and told them to reassemble at the Hartley Road
Substation at a later time. He was unsure of the time to reassemble and unsure if
he himself was at the substation that afternoon. He stated his logbook didn’t
show his workload/location for that day or any day because he doesn’t take
notes well and doesn’t keep his book up to date. He stated his crew sometimes
assembled at a substation to rig materiel for an upcoming jobs or perform clean-
up on their vehicles. He stated his coordinator, [Grievant], gives him ample
work to complete for that day or days in advance. He stated his coordinator
would identify his crew for picking up trouble calls but never told him to stand-
by at the substation for trouble calls. [The foreman’s] timecard and his crew
have showed 4 hours of trouble calls (FMS) during this timeframe. A data
search of FMS showed no tickets being cleared by his crew that day.”
7
told to reassemble at the Hartley Road Substation at a later time. He states he
was at the substation and was told by his WF that they were the trouble crew.
He stated this was a common occurrence during the holidays. He stated his WF
generally filled out his time card and didn’t know why the 4 hours of trouble
calls was on his timecard.”
8
Name Omitted, Emp#5979, Linemaintainer (Crew 345)
“Not identified in the report/video. … [Linemaintainer] transferred to crew 345
January 4, 2010” Testimony cumulative.
5
Cut-ins are new electric lines. TR @ 21. Footnote by arbitrator.
9
[The lineman] stated he was at the substation on the date in question. … He
stated he visits substations as necessary to use the facilities (restroom).”
“In reviewing LR 606, I believe the following standards of conduct may have
been violated:
II.11-Failure to complete work assignments
II.14-Failure to comply with Rules, Regulations, Policies and Procedures.
II.15-Failure to comply with safety rules and practices.
II.21-Fraud and/or the falsification of records.
II.25-Insubordination.
II.32-Unsatisfactory performance.” EX 3; emphasis in original.
Reprimand (JX 4), in which the Nature of Unacceptable Behavior was described
10
as follows:
was cited:
Your conduct has violated Civil Service Rule and Regulation 9.05 (1)
relating to:
Be advised that should your conduct not improve, the next step in the
discipline process may well be your dismissal. JX 4.
(“Director”) on March 15, 2010, following the Manager’s March 4, 2010 denial
at the informal grievance step. JX 2. A meeting was held with the Director on
March 23, 2010, and he denied the grievance in a letter dated April 5, 2010. Id.
11
At the next step, the grievance was presented to the Vice President of Fuels,
In a denial letter dated May 4, 2010, the Vice President made these key
points:
[Grievant] and JSA state that the discipline received violates certain
provisions of the Collective Bargaining Agreement (CBA) between JEA
and JSA. They argue that there was no “just cause” for discipline as is
required in article 26.1, because [Grievant] has no way of knowing where
his crews are, as JEA does not have a GPS system installed on most
vehicles, and thus, cannot be held responsible for their whereabouts or
activities. [Grievant]/JSA alleged, however, that they believe stopping for
breakfast to be common practice in the work group. Further they argue
that JEA has no written policy prohibiting personnel from stopping for
breakfast prior to starting work for the day and that taking of breakfast
prior to start of work for the day was “common practice”. …
[Grievant]/JSA explained that some of the guys got counseling but I got a
reprimand.
[The Director] explained that the written reprimand was issued because
[Emp#746, Working Foreman], who has been assigned to [Grievant] for
approximately one year, reported in the fact finding that he had been
stopping with his entire crew for many years. [Grievant] should have
been aware of this. … [The Manager] explained that he strived to be
consistent with the discipline for this event. JX 2.
were (i) the Director; (ii) the WF of crew 345, Emp#746; (iii) the WF of crew
375, Emp#1805; and (iv) the Manager. The Union witnesses were (a) a
12
coordinator who had no stake in the events at issue; (ii) a linemaintainer from
transcript was made (“TR”). The parties stipulated that the issue presented is
“whether the discipline of a written reprimand was for just cause, and if not,
what shall be the remedy?” TR @ 11. Briefs were due on January 19, 2011.
In an apparent effort to close the barn door after the farm animals had
13
return to the service yard no sooner than 3:30pm …, unless otherwise
authorized by their Coordinator. JX 6; emphasis in original.
Although JXs 6 and 7 address the breakfast issue, they do not appear to address
they provide support for the arbitrator’s decision. The principal eating place at
issue is Bobby’s Lunch Box.6 For the sake of specificity, the arbitrator uses the
6
Bobby’s Lunch Box, 5065 St. Augustine Road, Jacksonville, FL 32207. According to one customer,
“This place is great.....get the tater in a sack for only $4.60 and you won't eat again all day....huge portions
for little money. Best breakfast sandwich in town. For a Sandwich shop this place great.”
http://www.urbanspoon.com/r/44/480174/restaurant/Southside/Bobbys-Lunch-Box-Jacksonville. No one
seems concerned about how the new breakfast rules (JXs 6 & 7) will affect poor Bobby’s business.
14
III.A. First Employer witness, the Director
3. Crews always have been allowed to stop for food and drink on the way to
a jobsite. TR @ 39.
8. Either Grievant knew that crew 345 was having breakfast daily at
Bobby’s and did nothing about it or, if he didn’t know, he wasn’t doing
his job. TR @ 62-63.
10. WF Emp#746 said he’d been having breakfast for over 40 years. TR @
65.
11. “If [the Manager] should have known [about employees eating
breakfast], he would have got disciplined, too.” TR @ 65-66.
12. The Manager did the fact-finding. He decided that the Manager wasn’t
culpable. TR @ 66-67.
13. He does not believe that, in his 8½ years with JEA, management knew
about crew 345 eating breakfast. TR @ 67.
14. There was no written policy prior to February 2010 about breakfast. TR
@ 68.
15
15. There's no policy that says you've got to wipe your rear end with your
right hand or your left hand. TR @ 71.
17. Grievant said he did not know employees were sitting down to eat
breakfast. TR @ 72.
18. There was no written policy against stopping for breakfast before getting
to a job. TR @ 75.
1. He’s been with JEA for almost 41 years and has been a foreman for 18
years. Grievant is his supervisor. TR @ 102.
16
7. “There was never any policy I knew you could or could not do that.” TR
@ 111.
8. “For 40 years I've thought that [having breakfast wasn’t wrong], and I've
gone through I don't know how many foremans myself and supervisors.
Never. Nobody was even talked to, said to anything, until the news media
came out on this particular call, and that's what happened, and they made
a big deal out of it. That's what all started it. It would still be going on
today if it wasn't for that.” TR @ 112.
10. “I don't really like the guys driving with their food in the laps and all that
in the big trucks anyway.” TR @ 125.
11. His crew has seen the Manager sitting down and eating at Bobby’s. TR
@ 126-127.
13. Before February of 2010, he never knew of anyone being disciplined for
eating breakfast. TR @ 128.
2. Work is done before his crew leaves the Southside Service Center. TR @
137.
17
6. Until this year, he did not know of anyone being disciplined for going to
a substation. TR @ 151.
7. JEA has a policy that once employees leave the Southside Service
Center, they cannot return until 3:30, so if they run out of work, they go
to a substation instead of staying out in public. TR @ 151-152.
2. Crews were allowed to stop on their way out to work and pick up a
sandwich and drink to take out to the work site. TR @ 160.
8. Grievant prefers crews to return to the Service Center to work if they run
out of jobs. He has seen Grievant’s crews working at the Center. TR @
183.
7
He changed jobs, but for the sake of simplicity, the arbitrator uses his title at the time of the hearing. TR @ 157.
18
9. “JEA tries to use discipline more as a way of changing behavior than it
does to … punish people.” TR @ 184.
10. “I just found it hard to believe that [Grievant] had had [Emp#746] as a
working foreman for a year and didn't know that this was going on.” TR
@ 185.
11. “[WF Emp#746’s behavior] was the majority of the reason why
[Grievant] received the written reprimand.” TR @ 186.
15. Grievant is the best coordinator on the south side of town. “I consider
him a great coordinator.” TR @ 201.
17. There was no written policy about going to a substation and waiting for
an assignment back in December of 2009. TR @ 224.
19. “We can find him some work … if he communicates that he doesn't have
any work.” TR @ 225-226.
20. Grievant was not told that December 9, 2009 was the focal date. TR @
231, 234.
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2. He has worked for JEA for 28½ years, as an apprentice linemaintainer, a
lineman, a foreman, and a coordinator. TR @ 236.
3. When he was a lineman or foreman, after his crew stocked their trucks
and got the trucks ready for the day, they would stop for breakfast on
their way to the job. TR @ 239.
4. Q Why did you take a break at that time of day instead of later in the
day?
A Well, again, depending on what we were doing during the day. If we
were to go out and do a job and we started a job and we take our
midmorning break and we have lights out, … a customer's lights out,
which is a large majority of our work, we're going to be sitting on a job
… with lights out while a customer is out of power, and that does look
bad.
Or … we may be working on a job that will work us straight through,
all the way through lunch, and we may not even take a lunch that day,
depending on … if we're having a power outage. TR @ 239.
6. He has seen managers eating at the same time as he was, and neither he
nor anyone else was disciplined. TR @ 242.
8. Prior to 2010, there was no written policy against sitting down or taking
more than 5 minutes to eat. TR @ 243.
10. “[I]f I knew that this was the work that I have for the day, and ‘This is
what I've got. That's all we have. This is where I want you to go.’ I mean,
that was kind of an understood thing throughout my whole career.” TR
@ 253.
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assignment. TR @ 253.
14. Foremen have been taking their crews to substations to await assignments
for 28½ years. TR @ 256.
15. “I would rather them sit down and take their sandwich and eat it at a table
than driving a truck, trying to drink, eat and go down the road.” TR @
258.
16. “They come to work, they get their trucks stocked. We have to do an
OSHA walk-around of our trucks that takes … 15 to 20 minutes. … most
of the time the storeroom is delivering the material the same time that
we're in the yard. They don't put it on our trucks. Our guys have to load
this material up themselves. … if you have 12 crews, the first guy starts
his load and the last guy gets his load, it may be an hour, it may be an
hour and 15 minutes.” TR @ 259.
17. At breakfast they can talk about the Manager going back to his ex-wife.
TR @ 263.
18. He would expect Grievant to know about employees going out and sitting
down and eating breakfast in a restaurant before they got out to the work
site. TR @ 264.
19. “[The Manager] went to breakfast with me. [The Manager] took me to
breakfast, me and [coordinator Emp#1252].” TR @ 276.
1. He has worked for JEA for 28 years and been a coordinator for the past 8.
He swapped positions with the first Union witness about 2008. TR @
21
281, 286.
5. “The thing about the summer is it's so hot, when our guys are out there
working, they generally -- nobody eats lunch. It's too hot to eat.” TR @
283.
1. He has worked for JEA for 23 years, the last 8 as an electric maintenance
coordinator. TR @ 298.
2. People ate breakfast fresh out of the yard before they got to their first job.
TR @ 300.
22
3. Before December of 2009, the Manager never told him to make sure that
his crews did not sit down and eat. TR @ 300-301.
4. In December of 2009, linemen and foremen did not have GPS devices on
their trucks, and he had no way of tracking their movements. TR @ 301-
302.
6. On December 9, 2009, he had no work for one of his crews but got some
street light work for them from coordinator Emp#1252. TR @ 309-310.
7. His crews had laptops through which he could send them work
assignments. TR @ 316.
focus upon the letter of May 4, 2010, to Grievant from the Vice President, the
highest ranking JEA official involved with Grievant’s discipline, to which the
arbitrator gives definitive weight. In that letter (JX 2), the Vice President
explained that Grievant was disciplined because crew 345’s working foreman
“had been stopping with his entire crew for many years.” In light of this
admission, it is unnecessary for the arbitrator to consider any other alleged acts
23
alleged to have occurred on December 9, 2009.8
foreman. For example, the name of crew 375’s WF, Emp#1805, is mentioned
25 times in the brief, while the name of crew 345’s WF, Emp#746, is mentioned
V. Breakfast at Bobby’s
discipline against Grievant. In the FCN report, a JEA customer who was
8
“Only the December 9, 2009 investigation is at issue in this case.” JEA brief @ 4 n 2.
9
Repeatedly throughout JEA’s brief, the Employer insists that the foreman held tailgate meetings at Bobby’s.
This allegation was not borne out by the evidence. Indeed, the Manager himself conceded that only one employee
used the term “tailgate”. TR @ 177: “One of them even stated that it was considered to be a tailgate meeting.”
Moreover, the foreman himself thoroughly refuted the accusation. TR @ 109-110. Footnote by arbitrator.
24
interviewed made a trenchant observation:
I just don't understand how that can go on, really, you cannot be this
naïve to know that your trucks are being parked and there's no work that's
being done.10
This is precisely the feeling the arbitrator got as he watched the video, listened
to the testimony at the hearing, and reviewed the exhibits. This case presents
some hard questions as to what management knew and how long they had
known it.
breakfast at Bobby’s. FCN described the restaurant as being “just around the
restaurant,”12 and the Director placed it “a few blocks down the road.” As many
as 11 “big JEA bucket trucks” are seen parked at the restaurant at one time.13
Unquestionably this has been going on for years, even decades. Without rebuttal
by JEA, Union witnesses testified that they have seen managers, including
reasonably possible that higher management was unaware of what was going
10
http://www.firstcoastnews.com/news/news-article.aspx?storyid=151621.
11
Id.
12
TR @ 19.
13
TR @ 179, http://www.firstcoastnews.com/news/news-article.aspx?storyid=151621.
25
Bobby’s, especially not on December 9, 2009, merely imputing that knowledge
attend breakfast meetings.” JEA brief @ 9. The distance from the Service
Center to Bobby’s was the same for higher management as it was for Grievant,
and if JEA insists upon imputing to Grievant knowledge of the goings-on there,
then the arbitrator will insist upon imputing that knowledge to higher
management. The concept of just cause does not support disciplining Grievant
simply because one of his foremen ate breakfast with his crew every morning,
when eating breakfast on the job was common conduct at the time.
and is said to be the best Southside coordinator by—the very Manager who
The testimony was unanimous that, until JXs 6 and 7 were issued, there
of the employees who ate breakfast was unanimous that they had been doing it
26
for a long time. The working foreman of crew 345 testified that he had been
eating breakfast on the job for 40 years!14 It was a widely accepted conduct,15
for which Grievant cannot justly be disciplined. The proper way to change
evaluations for 2006-2009, completed by the Manager who disciplined him and
then proceeded to testify that he was the best Southside coordinator. The
VII. Award
VIII. Postscript
14
Although this gentleman refused to rat on his coworkers, he was brutally candid about his own actions, and the
arbitrator credits his testimony. Not unexpectedly, he was acquitted of misconduct with respect to his involvement
in the events at issue in this arbitration. JEA Supervisor’s Ass and JEA, FMCS No. 10-03379 (King Arb 2011).
The Union makes the argument that Grievant “cannot be charged with negligently supervising [Emp#746] if
[Emp#746] did nothing wrong. Since [Emp#746]’s alleged ‘loitering in a restaurant’ was ‘the majority of the
reason’ that [Grievant] was disciplined, the discipline itself should be rescinded.” Union brief @ 18. This arbitrator
agrees; see JX 2.
15
The witnesses and parties frequently used the word “practice” instead of “conduct”. The arbitrator uses the
latter to avoid confusion with “custom and past practice”, terms of art. See Elkouri & Elkouri, How Arbitration
Works (ABA/BNA 6th ed 2003) & 2010 Cumulative Supplement, Ch 12, “Custom and Past Practice”.
27
statement:
Equally unfortunate was the decision not to head into the storm and ride
it out but rather to toss some of the ship’s crew overboard in an effort to save the
officers.16 To the arbitrator, JEA’s reaction to the First Coast News story
16
The first Union witness stated the following: “[I]t was commonly known what was going on, and when the
news story broke everybody kind of ran for cover and it all came down on JSA employees. The IBEW employees
walked away with warnings. Management hid behind … the JSA employees.” TR @ 282. See Elkouri & Elkouri,
How Arbitration Works (ABA/BNA 6th ed 2003) @ 1000-1002 & 2010 Cumulative Supplement @ 367,
“Management Also at Fault”. The arbitrator has commented on the inequitable treatment of employees. See for
example, AFGE Local 96 and Department of Veterans Affairs, 09-1 ARB ¶ 4497, 109 FLRR-2 40, 109 LRP 6279
(Cornelius Arb 2009), Part V.C, “Evenhandedness of Discipline”; exceptions den 63 FLRA 316. In the usual case,
the inequity is found between union employees and management. Here the Union supervisors are part of
management, so any inequity is between Union employees and higher management. TR @ 295.
28