Miami-Dade (FL) Aviation Department and AFSCME, Local 1542

AAA 32 390 00097 06

Final Award

Introduction

The two-day hearing in the instant case was held at Metro-Dade Center, Suite 2810, 111 N.W. 1st Street, Miami, Florida on May 25 and June 6, 2006. The Local 1542 and employee Grievants (hereinafter respectively "the Union," and "Kobilansky" or "the Grievant") were represented by James C. Casey, Esq. of Slesnick & Casey, LLP. The Respondent (hereinafter "Respondent" or "the County") was represented by William X. Candella, Esq., Assistant County Attorney. Also present were the Grievant, Jim O'Reilly, the Union's President, who was present for most but not all of the hearing, and Wallace Madry, Jr., Manager of Administrative Services for the Aviation Department and the Respondent's management representative at the hearing.

Background and Issues

This matter arose from a grievance challenging the Miami-Dade Aviation Department's decision to terminate the Grievant, Alan Kobilansky, as a result of two incidents, the first of which was an alleged verbal and physical confrontation with fellow employee Marcel Johnson, and the second of which involved alleged threats made by the Grievant to lead worker Peter Marchese and co-worker Charles Williams. The parties agreed that the following issues are submitted for resolution by the Arbitrator:

1. Did the Company have just cause for terminating the Grievant?

2. If not, what remedy would be appropriate?

Pertinent Contract Provisions and County Administrative Orders

1. Collective Bargaining Agreement

Article 6. Arbitration

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Section 3. The arbitration shall be conducted under the rules set forth in this Agreement and, where not in conflict with this Agreement, under the labor rules of the American Arbitration Association. Subject to the following, the arbitrator hall have jurisdiction and authority to decide a grievance as defined and submitted in this Agreement. The arbitrator shall have no authority to change, amend, add to, subtract from, ignore, modify, nullify, or otherwise alter or supplement this Agreement or any part thereof or any amendment thereto. The arbitrator shall have no authority to consider or rule upon any matter which is stated in this Agreement not to be subject to arbitration or which is not a grievance as defined in this Agreement, or which is not covered by this Agreement, nor shall this Collective Bargaining Agreement be construed by an arbitrator to supersede any applicable laws.

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Section 7. The award of the arbitrator shall be final and binding when made in accordance with the jurisdiction and authority of this agreement. The arbitrator shall make his award within 30 days of the close of the hearing and shall promptly furnish copies to both parties.

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Article 22. Management Rights and the Scope of this Agreement

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Section 3. These rights and powers include, but are not limited to the authority to:

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e. Discipline or discharge employees for just cause in accordance with applicable sections of the Code of Miami-Dade County, Florida and/or Personnel Rules.

Section 4. Management rights shall be exercised by the County in a manner that is not arbitrary, discriminatory or capricious.

2. Administrative Order No. 7-3

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FINAL RECOMMENDATION AND APPROVAL:

As soon as possible after the employee interview, a final determination should be made as to the disciplinary action to be taken, if any. ... If disciplinary action is to be carried out, the penalty should be determined by a balanced judgment based upon:

- The seriousness of the violation;

- Mitigating circumstances, if any;

- The length of service and previous record of the employee;

- Reasonable consistency in applying similar penalties to similar offenses;

- The prospect that disciplinary action may play a rehabilitative role;

- The attitude and conduct of the employee throughout investigation and personal interview;

- Other relevant factors arising out of County or department practice or the peculiarities of the particular incident under consideration.

3. Administrative Order No. 7-36

POLICY:

It is the policy of Miami-Dade County to ensure that all employees are able to enjoy a work environment free from all forms of violence and threats of violence. This policy includes an absolute prohibition against employees carrying firearms or personal weapons onto any County property, except as may be specifically authorized by law.

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DEFINITION:

Workplace violence or occupational violent crime (OVC) is defined as violent and/or threatening behavior in the workplace. Threatening behavior includes any behavior that could be interpreted by a reasonable person as an intent to cause physical harm to another individual. Threatening behavior may, or may not, include the actual act of physical force, with or without a weapon, toward another individual. Threatening behavior may be verbal or non-verbal.

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IMPLEMENTATION:

In order to effectively implement the above policy, all County employees must refrain from:

1. Committing any violent physical act in the workplace against another County employee or member of the public;

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3. Making verbal or non-verbal threats of violence toward another person. Threats shall include any behavior or words that would reasonably cause another person to fear bodily harm.

ENFORCEMENT:

Any employee who violates any provision of this Administrative Order shall be subject to appropriate action by the employee's department, in accordance with Administrative Order 7-3, Disciplinary Action. ... The department director or his designee shall refer the employee to ESS for counseling and/or referral. Such referral shall not preclude disciplinary action or possible criminal sanctions, which shall be administered in conjunction with ESS referral and shall be imposed in accordance with existing County and departmental rules. ...

4. County Personnel Rules

Chapter VIII, Section 7, Paragraph B. That the employee has been offensive in his conduct toward his fellow employees, wards of the County or the public.

The Position of the Department

It is essentially undisputed that the Grievant had an altercation with Marcel Joseph, a black man of Haitian descent, during which he called Joseph a "monkey" and to take the peanuts and give them to your family -- a racial slur -- and then grabbed Joseph, a much smaller man, pushed him against the locker, and cocked his arm as though he was going to hit Joseph. Only the intervention of fellow worker Charles Williams prevented more serious violence. In a later incident the Grievant, without provocation, threatened lead worker Peter Marchese that he was going to "kick his ass" and then made the same threat to employee Williams. The Grievant had been disciplined in 2002 and informed that the next time he engaged in misconduct he would be terminated. The Grievant's alleged impairment caused by his head injury cannot excuse his misconduct in this case, and the decision to terminate him is warranted and clearly not an abuse of discretion which might justify a lesser punishment.

The Position of the Union and the Grievant

The Grievant is an employee with several years of seniority and with a satisfactory or above satisfactory performance history. He suffered serious a serious brain injury when he was assaulted in a bar in 2003, but worked hard to recover sufficiently to come back to work. The events which caused his discharge were, in essence, caused by the physical and psychological effect of his injuries on his mental state. He sought out treatment when he realized he had difficulty controlling his aggression, and has successfully learned to do so. The County did not do enough to help him or take into account his mental disability as a mitigating factor in determining appropriate discipline in this case, and has not discharged others who have committed more serious violations of the County's workplace violence policy.

Facts

The genesis of the events leading to the Grievant's termination was a brutal physical beating he received in March of 2003, in which he suffered serious injuries to his face, eye, and head. His initial treating physician, Dr. Kester Nedd, testified at the hearing that the Grievant had a severe trauma to his brain that caused disability in his thinking ability and, as a result, he was confused and disoriented for quite some time. According to Dr. Nedd, the Grievant encountered problems related to "excessive function," i.e., his ability to initiate activities, to process information, memory, his attention span, his concentration, trouble with his balance, and managing stressful situations. After he was given a course of treatment at the Jackson Memorial Hospital's acute neurology service, the Grievant was transferred to the rehabilitation unit and ultimately discharged to the outpatient center, where Dr. Nedd has evidently been one of the physicians who continue to treat him.

Initially the Grievant's physicians were not certain that he would ever be able to go back to work, given the severity of his injuries. However, Dr. Nedd testified that, despite permanent injury to his cognitive skills, causing difficulty with socialization with others and with processing information, the Grievant eventually improved to the point that Dr. Nedd recommended in an October 8, 2003 letter that the Grievant should be able to return to full-time duty without restrictions. One reason for what Dr. Nedd described as an "amazing recovery" was the Grievant's strong motivation to resume working.

Unfortunately, despite the Grievant's remarkable recovery, a new set of problems surfaced once he returned to work. He began to experience a number of troubles linked to his brain injury, including anger management problems caused by frustrations he was encountering in interacting with his fellow employees. Another source of frustration was his difficulty in processing information given to him by his supervisors, which interfered with his ability to understand and follow their instructions.

The Grievant's frustrations and resulting anger continued to simmer until they finally boiled over on March 10, 2005. He had a confrontation with one of the other Department employees, Marcel Johnson, in the employees' locker room, evidently beginning with a dispute over a chair that Johnson had reclaimed before it was thrown out and usually used in the locker room.¹ While Johnson and the Grievant disagreed with exactly how the confrontation commenced, it is essentially undisputed (or at least the Grievant does not deny)² that he said something like, "Monkey, I don't have any peanuts for the monkey, I don't have any peanuts for your family (or mother)," and that Johnson responded with a comment to the effect that "you take the peanuts and give them to your family." It is further undisputed that the Grievant was infuriated by Johnson's remark and stepped towards him in an intimidating manner, and then threw his arms around Johnson, causing Johnson to hit the Grievant with his elbow in order to get away. Evidently the Grievant then released Johnson and the dispute died down.³

The following day, the Department, through Kelly Flores, an administrative officer, commenced an investigation into the incident and summarized into writing the statements of Johnson, Williams, and the Grievant about what had occurred. However, for reasons that are not clear in the record, the Department did not take any further action regarding possible disciplinary action until after a second incident occurred on June 7, 2005.

On that occasion, the Grievant separately told Williams and Lead Man Peter Marchese, for different reasons, that he was going to "kick [their] ass." The Grievant testified that he threatened to kick Williams' ass because Williams had been repeatedly calling him on his cell phone, most recently the weekend before June 7, and making squealing sounds like a pig, and he was fed up with the calls. Regarding Marchese, the Grievant testified that he was upset with Marchese for two reasons, first, that Marchese had not shown up to do an investigation after the Grievant was involved in a traffic accident in a County vehicle, causing the Grievant to wait around for quite a while; and second, that Marchese had called to check up on the Grievant's whereabouts rather than contacting him directly, upsetting the Grievant because Marchese had taken time to check up on him but had not taken time to show up for the traffic accident. Considering the Grievant's demeanor and obvious anger, both Marchese and Williams took his threats seriously and reported them.

That same day, on June 7, 2005, the Department issued and served on the Grievant a Disciplinary Action Report (DAR) charging him with a violation of the County's Personnel Rules and of Administrative Order 7-36, dealing with workplace violence, on account of the March 10 and June 7, 2005 incidents. A DAR Session was scheduled for June 15, 2005.

Concerned that his job was in jeopardy and that he needed to gain better control over his emotions, the Grievant immediately sought additional medical assistance. One of the physicians treating the Grievant, a Dr. Nunez, prescribed a medication called Effexor, a psychotropic medication which increases a patient's attention span and capacity to process information and which would assist him with respect to some of the cognitive problems that were frustrating him.⁴ Also, he was referred by Dr. Nunez and Teresa Alba, a brain injury and spinal cord injury case manager assigned to the Grievant, to Doctor Rhonda Rees-Vivas, a clinical psychologist with a focus on neuropsychology; that is, working with brain injured and similar patients.

Dr. Vivas's first appointment with the Grievant was on June 23, 2005. She quickly concluded that he was suffering from job-related stress, in great part because he did not have enough knowledge about traumatic brain injuries and their consequences, and did not know how to manage the anger outbursts he was experiencing in the workplace. She arranged for him to attend some support groups and educated him on how to recognize issues triggering emotional responses as well as methods of dealing with them. He has been under her treatment ever since.

Dr. Vivas testified that she is convinced that the Grievant has now learned to deal with his mental impairment and to cope with his anger.

Discussion

Regarding his March 10, 2005 confrontation with Joseph, the Grievant could not deny telling Joseph words to the effect that "I have no more peanuts for the monkey, I don't have any peanuts for your family." He described himself as "infuriated" when Joseph responded by saying, "ok, you take the peanut and give it to your family" (or, as the Grievant remembered it, "your mother"). The Grievant admitted that he was the main physical aggressor by stepping forward in an effort to intimidate Joseph after Joseph's retort, and although he testified that he grabbed Joseph in order to keep him from falling, he conceded that Joseph thought he was assaulting him and that was why Joseph elbowed him in the head. In short, the Grievant candidly acknowledged that he knew the incident was "getting carried away." It was fortunate that the confrontation did not escalate out of control, as it easily could have. With respect to the June 7, 2005 episode, the Grievant admitted that he angrily told both Marchese and Williams that he was going to "kick [their] ass." It was obvious that the Grievant was not simply joking around, and both Marchese and Williams reasonably took his threats of violence seriously.

Therefore, the record establishes beyond any doubt that the Grievant violated the provisions of Administrative Order 7-36, prohibiting "violent and/or threatening behavior in the workplace," by his conduct on March 10 and June 7, 2005.

Furthermore, the Arbitrator agrees with the Department that it did not violate the ADA by its decision to impose discipline in this case. As the Department points out, most courts, including those in the Eleventh Circuit, have held that an employee may be disciplined for misconduct without violating the ADA, even if the misconduct is caused by his or her disability. Although it was evident from the record that the Grievant's mental condition, caused by his severe head injuries, contributed to his actions on March 10, 2005 and June 7, 2005, the County is not prohibited by the ADA from taking disciplinary action in response to his inappropriate behavior.⁵

However, the fact that the ADA was not violated by Director Abreau's decision to discharge the Grievant does not automatically dispose of the grievance in this case. The ultimate issue before the Arbitrator is whether the County had "just cause" to terminate the Grievant, not simply whether the County violated the ADA or was justified in imposing discipline. In deciding this issue, the Arbitrator must consider the language of Administrative Order 7-3, which lists the factors to be reviewed by management before imposing discipline on County employees.⁶ They include, for example, any "mitigating circumstances," and the Grievant's brain injury and subsequent mental condition in March and June of 2005 certainly qualifies as a mitigating factor in determining the level of punishment that is appropriate in this case. Another factor set forth in Administrative Order 7-3 is "[r]easonable consistency in applying similar penalties to similar offenses," which requires a review of other disciplinary actions that may have involved similar offenses.⁷

The County urges the Arbitrator to adopt the reasoning of Arbitrator Whitley P. McCoy's decision in Stockham Pipe Fitting Co., 1 LA 160, 162 (McCoy, 1945):

Where an employee has violated a rule or engaged in conduct meriting disciplinary action, it is primarily the function of management to decide upon the proper penalty. If management acts in good faith upon a fair investigation and fixes a penalty not inconsistent with that imposed in other like cases, an arbitrator should not disturb it. ... The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved -- in other words, where there has been abuse of discretion.

In general, the Arbitrator agrees with this reasoning. Inasmuch as a violation by the Grievant of an important administrative order was established, Director Abreau was entitled to exercise substantial discretion in deciding upon the punishment that was warranted. Thus, in undertaking his analysis, the Arbitrator must be careful not to impress on the County his own purely personal views of the level of punishment that he believes should have been rendered, nor to allow his sympathy for the Grievant's severe injuries to cause the Arbitrator simply to accord leniency or clemency without regard to whether just cause for discharge exists.⁸See Chattanooga Box & Lumber Co., 10 LA 260, 261 (McCoy, Forman & Frazier, 1948). Nevertheless, it is ultimately the Arbitrator's responsibility under the contract to determine whether there is just cause for Director Abreau's decision, on behalf of the Miami-Dade Aviation Department, to terminate the Grievant instead of imposing a lesser punishment, taking into account, among other things, the language of Administrative Order 7-3.⁹

In his letter of dismissal, Director Abreau articulated the basis for his determination that the Grievant should be discharged:

I find however no justification for you grabbing another employee and threatening your Lead Worker which is totally unacceptable and a direct violation of County Policy. The most disturbing and appalling act to me is you referring to a fellow employee as a monkey and telling him to take peanuts home and give them to his family, which is compounded by the fact that the employee happens to be Black.

He confirmed in his testimony at the hearing that the primary reason for his decision, in spite of his sympathy for the Grievant's injury, was that he could not "get past" the Grievant's actions in calling a black man a "monkey" and telling him to take home peanuts, which he obviously considered a vicious racial slur and statement of hate, and which reminded him of a painful event from his own youth in which he was called a "spic" and thrown off a bus.¹⁰

As earlier noted, in determining whether just cause existed for Director Abreau's decision to terminate the Grievant, the Arbitrator must take into account the language of Administrative Order 7-3. Obviously, the seven factors listed in that Order should not be given equal weight, and the first factor, dealing with the seriousness of the offense, will outweigh all of the other factors put together in some cases. While a factor by factor analysis would not normally be required, because the Arbitration regards the instant case to be a close one, he will discuss each of the factors separately herein.

1. The Seriousness of the Violation

There can be little doubt that incidents of workplace violence are serious offenses in and of themselves, and the County's justified concern is manifested by its adoption of a specific administrative order addressing that issue.

In addition, because of the emphasis Director Abreau placed on the Grievant's name-calling¹¹, the Arbitrator must consider whether or not his conclusion that the Grievant was intentionally using racist language is correct under the circumstances of this case. The Grievant's confrontation with Johnson on March 10, 2005 would be an even more serious offense if it had been racially provoked.

The Department forcefully contends that the only tenable interpretation of the Grievant's statements to Johnson -- calling him "monkey" and saying that he had no peanuts for the monkey to take home to his family -- is that they were racially motivated. In support, the Department cites to an arbitration case, City of Schenectady, N.Y., 2004 WL 440762 (Lobel, 2004) finding that the use of "monkey" to a black man was inappropriate and the employee should have known it had racial overtones, and to a news article describing European soccer fans as racially motivated when they chanted "monkey" and threw peanuts and banana peels at black players.

The Union, on the other hand, argues that the nickname "monkey" was not created by the Grievant, was constantly used other employees as well as by Williams, who is also black, to refer to Johnson, and was allegedly based on an incident at the airport several years ago, having nothing to do with Johnson's race or color but with the fact that Johnson was on a telephone line at the same time some escaped monkeys were hanging from a telephone wire. The Union contends that these facts demonstrate that the Grievant did not use the word "monkey," nor make the reference to peanuts, as a racial taunt.

In resolving this issue, the Arbitrator believes he must consider all of the relevant testimony regarding the origin and use of Joseph's nickname, "monkey," as well as any past history indicating that the Grievant used racist remarks or otherwise demonstrated a racist attitude. While a white man's calling a black man a "monkey" very often is an intentional racial insult, depending on the situation, and never wise because it can so easily be interpreted as a racial slur,¹² it is not the equivalent of a white man's using the "N" word, where there can be no doubt that racism is involved.

Several witnesses testified that there was a great deal of name-calling at the workplace, that several persons in addition to the Grievant, including Williams, called Johnson "monkey," that Williams would joke around about that nickname by bring bananas to the job, and that Williams was likely the person responsible for putting up pictures of monkeys on the walls to tease Johnson since he was spotted carrying them around. The fact that Williams, a black employee, used and joked about Johnson's nickname suggests that "monkey" was not intended to be a racist term. Johnson testified that sometimes he felt "bad" about being called a monkey, because monkeys walk in trees and humans walk on the ground, but added that other times "I don't care." Nowhere did he indicate he thought the nickname was racist or that Grievant called him "monkey" as a racial slur. Finally, the Grievant testified that he had no racial motive for using Johnson's nickname, "monkey," during the altercation.

Whether Johnson acquired his nickname because of his diminutive size¹³ or other physical characteristic, or because of an incident at the airport involving monkeys, or for some other reason, like many nicknames the term "monkey" is somewhat derogatory and Johnson often does not appreciate its use. Moreover, during the March 10, 2005 incident, the Grievant's comments about a "monkey" and "peanuts" were certainly not expressions of affection and were meant to be derisive. However, in light of the record as a whole the Arbitrator cannot conclude that the Grievant's March 10, 2005 conduct in calling Johnson by one of his commonly-used nicknames, "monkey," and the Grievant's reference to peanuts, were clearly intended to be racial slurs. The evidence is at best inconclusive on this point. In addition, no evidence was presented suggesting that the Grievant generally harbors racial hostility or had ever used unambiguously racial slurs such as the "N" word. Simply put, the record does not show that the Grievant is the racial bigot that Director Abreau evidently thought he was or that the March 10, 2005 confrontation was racial in nature.

Nonetheless, the Grievant's violations of Administrative Order 7-63 must be regarded as very serious, deserving of disciplinary action and in appropriate cases warranting discharge. As a whole, this factor supports Director Abreau's decision to terminate the Grievant.

2. Mitigating Circumstances, If Any

The Arbitrator finds that Grievant's mental condition at the time of the incidents, caused by his brain trauma, was a significant mitigating circumstance in this case.¹⁴ The Union presented unequivocal expert testimony that, in the first part of 2005, the Grievant had not yet learned to control his aggressive behavior, grounded in part in his frustration over the effects of his injuries. The Grievant had no history of violent behavior prior to his injuries, and Marchese, the lead man whom the Grievant threatened, testified that the Grievant's conduct on June 7, 2005 was not characteristic of him.

It is reasonable to infer that, were it not for the Grievant's brain injury and its effects on him, neither incident of workplace violence would have occurred. Director Abreau gave this factor consideration but obviously did not consider it sufficiently mitigating to reduce the Grievant's discipline to something less than discharge. Nevertheless, this factor weighs in favor of imposing lesser discipline than termination.

3. The Length of Service and Previous Record of the Employee

The Grievant was employed by the County for 13 years, and his most recent performance evaluations indicated his performance, for the most part, was "satisfactory" or "above satisfactory." On the other hand, the Grievant was initially discharged, and ultimately suspended for 30 days, for leave-time abuses and a pattern of excessive absenteeism in 2002. In his February 4, 2002 letter accepting the findings and recommendations of the Hearing Examiner regarding these and other alleged incidents of misconduct, the then-County Manager concluded, "You are warned that your conduct in this case is unacceptable and any future violation of the Miami-Dade County Personnel Rules shall result in your dismissal from County service."

Thus, this factor is a mixed bag of positive and negative information. Although the February 4, 2002 letter could be a controlling factor in other circumstances, its significance in the instant case is greatly reduced by the Grievant's intervening severe brain injury suffered in 2003, which played such an important role in causing the violations in question. Moreover, it appears from the record that Director did not rely on any of this information, including the February 4, 2002 letter, in reaching his decision.

Under all of the circumstances, the Arbitrator believes that this factor somewhat supports the termination decision, but does not have the significance it might in other cases.

4. Reasonable Consistency in Applying Similar Penalties to Similar Offenses

The Union introduced into evidence records regarding disciplinary actions by the Department in other workplace violence cases occurring in 2005. In one case a supervisor was demoted from Maintenance Supervisor to Airport Carpenter/Roofer for screaming and cursing and throwing a piece of aluminum in the lunch area, as well as making such threats as "I will kill everyone."

In another case an employee was charged with three separate incidents, the first where the employee tried to hit a co-worker with a chair and then took the telephone from the wall and threw it at him; the second where the employee threatened that same co-worker verbally in front of his colleagues at a safety meeting; and the third where the employee threw a rock at the county vehicle in which two co-workers, one the same victim as in the earlier incidents, were seated, and then threatened the other co-worker when he protested by saying, "I will knock your old ass the fuck out." While he was initially recommended for discharge, this employee was ultimately given a five-day suspension and mandatory ESS.

In a third case, one employee kicked a chair out from another employee, who responded by pulling a chair out from under the first employee. Fire rescue responded to the incidents as both employees suffered injuries. Both employees received 10-day suspensions.

No case was presented where an employee in the Department was terminated as a result of alleged workplace violence. In every case introduced into the record, the employees involved committed serious violations of the workplace violence policy but lesser punishment than discharge was imposed. Therefore, this factor supports levying less harsh discipline than termination.

5. The Prospect That Disciplinary Action May Play a Rehabilitative Role

It appears from the Grievant's actions in seeking help to control his behavior that the very threat of termination played a rehabilitative role. This factor weighs in favor of lesser punishment than discharge.

6. The Attitude and Conduct of the Employee Throughout Investigation and Personal Interview

The Grievant seems sincerely to have accepted responsibility for his improper actions and, according to Director Abreau, the Grievant was "very correct" in the way he conducted himself throughout his interaction with the Director. Although not a major aspect of deciding the appropriate level of punishment, this factor does favor lesser discipline than termination.

7. Other Relevant Factors Arising Out of County or Department Practice or the Peculiarities of the Particular Incident Under Consideration

The Arbitrator believes that there are some aspects that may be considered peculiar to this case and warrant special attention. First, the Grievant made an almost heroic effort to return to work after his grievous injuries, and it would be a great shame to have that effort go to waste. Given his mental disability, it is extremely unlikely that he will ever again be able to secure a job that suits him as well as the one he had at the time of his termination. Second, although he may have been motivated by his fear of discharge, the fact remains that the Grievant recognized that he had a serious anger management problem and took affirmative steps to seek help in addressing that problem. These considerations certainly should not be controlling factors in deciding whether his termination was appropriate, but they have some relevance and therefore this factor supports the imposition of punishment short of discharge.

After consideration of all of the circumstances, including the seven factors discussed above, the Arbitrator finds that, while severe disciplinary action is warranted, discharge is too harsh a punishment for the Grievant's behavior in this case. Especially determinative in his mind are the following factors: (1) Director Abreau may have placed too much weight on the Grievant's "monkey" and "peanut" comments, inasmuch as the evidence does not unequivocally demonstrate those words were intended as racial slurs, and the record as a whole does not suggest that the Grievant is a racist or has problems working with black co-workers¹⁵; (2) the relationship between the Grievant's misconduct and his mental impairment is an especially strong mitigating factor, so long, of course, as his anger management is now under control, as his physicians asserted at the hearing; and (3) his termination is not reasonably consistent with the discipline meted out to other employees guilty of similar workplace violence offenses, particularly since some of those cases involved a greater degree of violence than occurred in the instant case. See Stockham Pipe Fitting Co., supra ("If management acts in good faith upon a fair investigation and fixes a penalty not inconsistent with that imposed in other like cases, an arbitrator should not disturb it [emphasis supplied]").

The Arbitrator concludes that the Grievant's discharge should be reduced to a 30-day suspension without pay¹⁶ and that he should be reinstated to his former job¹⁷ within certain guidelines as provided below. These guidelines are intended to safeguard the Department's right to effectively enforce its workplace violence program, and to provide some assurance that the Grievance has indeed learned to control his anger on a permanent basis so that he does not constitute a danger to himself or others. The probationary period imposed reflects, among other things, the Arbitrator's concern that, if the Grievant is proved to have engaged in any future violation of the Department's rules and policies, the Department should be considered to have accorded the Grievant every opportunity to rehabilitate himself if disciplinary action against him is challenged. Furthermore, the Grievant is now on notice of the Director's strong distaste for racism, and should scrupulously avoid the use of any words, nicknames or otherwise, including "monkey," that could be construed as slurs against blacks or other minorities, regardless of whether they are used by other employees.

That said, the Arbitration recognizes that the Grievant has made extraordinary efforts to recover from his injuries and their consequences, and expects the Grievant to apply this same determination to be a productive and exemplary employee.

Conclusion

The grievance is sustained in part. The Grievant's termination is reduced to a thirty (30) day suspension without pay; the Grievant shall be reinstated by the Company to his former position with full seniority and back pay, after taking into account his 30-day suspension without pay; the Grievant's reinstatement is dependent on his faithfully taking his medication as prescribed by his physicians and continuing under the care of Dr. Vivas until she informs the Department that her care is no longer necessary; and the Grievant shall be placed on probation for a period of one (1) year.

¹Reminiscent of Rashomon, every witness who testified regarding the locker-room incident described a different version of what occurred and how the argument started, and sometimes their testimony varied from the written summary of their verbal statements made during the investigation into what had occurred. However, Williams did corroborate the Grievant's testimony that Johnson had a proprietary attitude towards the chair and that the argument began over the Grievant's use of the chair.

²In his version of what occurred, the Grievant testified that he was seated in Johnson's chair, apparently dozing, that he was startled awake when Johnson kicked his foot, and that he does not remember what he said to Johnson. However, he acknowledges that he cannot deny what Johnson claims he said about a "monkey" and "peanuts."

³The Grievant contends that he grabbed Johnson to keep him from falling, while Williams claims (without corroboration from Johnson) that he had to intervene to keep the Grievant from striking Johnson with a cocked fist. The Arbitrator finds it unnecessary to resolve these disputed issues, because it is undisputed that a serious verbal and physical altercation erupted between the Grievant and Johnson and that the Grievant was the main aggressor.

⁴The Grievant continues to take this medication up until the present.

⁵In addition, the Arbitrator does not believe that the Department was at fault for not recognizing that the Grievant might need anger management training. It was not until the Grievant started seeing Dr. Rees-Vivas in June of 2005 that his underlying problem with controlling aggressiveness was uncovered.

⁶Article 22, Section 3(e) provides that just cause must be determined "in accordance with applicable sections of the Code of Miami-Dade County, Florida and/or Personnel Rules," which the Arbitrator finds would clearly include the Administrative Orders introduced into evidence at the hearing. As was noted earlier, the entire list of factors to be considered in meting out discipline is as follows:

- The seriousness of the violation;

- Mitigating circumstances, if any;

- The length of service and previous record of the employee;

- Reasonable consistency in applying similar penalties to similar offenses;

- The prospect that disciplinary action may play a rehabilitative role;

- The attitude and conduct of the employee throughout investigation and personal interview;

- Other relevant factors arising out of County or department practice or the peculiarities of the particular incident under consideration.

⁷It is clear from a review of Administrative Order 7-36, as well as of other disciplinary actions involving violence in the workplace, that the County has not adopted a "zero tolerance" workplace violence policy that mandates termination for every violation. Indeed, Administrative Order 7-36 provides that "disciplinary action ... shall be imposed in accordance with existing County and departmental rules." Therefore, the Arbitrator concludes that the provisions of Administrative Order 7-3 apply to alleged incidents of workplace violence.

⁸For this reason, the Arbitrator places little, if any, reliance on the petition circulated by the Union, and signed by several employees, asking that the Grievant not be discharged. Likewise, the Arbitrator discounts the fact that a majority of lower-level management employees recommended suspension rather than discharge. As Director Abreau observed, supervisors often disagree as to the level of discipline that should be imposed, but that the buck stops with him and he has the responsibility for making the final call.

⁹The Union also argues that the two incidents, especially the June 7, 2005 threats, were not properly investigated. However, there is no evidence that the decision to terminate the Grievant was caused by an inadequate investigation, particularly since there was no real dispute as to most of the salient facts.

¹⁰At the hearing, Director Abreau testified that another factor he relied on was the Grievant's past history of violence, but it became clear that, other than the two events for which he was charged, the Grievant had no prior history of violent behavior. Nevertheless, the Director credibly testified that, even if he was wrong on that point, he would not have changed his mind. It is clear from the record that Director Abreau's termination decision was driven by his belief that the Grievant's comments about a "monkey" and "peanuts" were inexcusable racial slurs.

¹¹The Union contends that Director Abreau's personal experience of some 40 years ago should not be the basis for a termination. However, in the Arbitrator's mind the effect this past event had on Director Abreau's present attitude simply demonstrates how emotionally traumatic it can be to be the victim of egregious discrimination. There can be no doubt that, particularly in a culturally diverse community such as Miami's, an employee's verbal expression of racism is a serious workplace offense.

¹²One of the Grievant's own witnesses testified that he thought calling a black man a "monkey" was a racist term, although he also commented that Williams was a black man calling a black man a monkey and therefore must be a racist. Dr. Vivas likewise testified that she "guessed" that calling a black man a monkey was a racial slur.

¹³Another nickname the employees gave Johnson was "mini-me."

¹⁴The Arbitrator does not find that the harassing phone calls, consisting of pig noises, the Grievant received the weekend previous to June 7, 2005, and his supervisor's alleged inattention to his traffic accident, while they may help explain why he would be upset, qualify as circumstances legitimately excusing his misconduct on June 7. Engaging in or threatening violence is not an appropriate response to aggravations encountered in the workplace. Additionally, although the Grievant testified that he had stopped taking his medication at the time of the incidents, it appears from the record that the medication he was using at the time was not designed to control aggressive behavior.

¹⁵The Arbitrator notes that, even though Arbitrator Lobel found that the employee knew or should have known that the use of the word "monkey" to a black man was inappropriate in light of all the circumstances in the case before him, he stated he was "troubled by the discharge of an employee for uttering one word that could be interpreted as racial and used in circumstances that are not at all clear," and he concluded that he did not "believe that termination is warranted for this type of offense." City of Schenectady, N.Y., supra at p. 11.

¹⁶The Arbitrator has determined that this relatively high level of suspension is warranted in light of the fact that one other employee found guilty of workplace violence was demoted from supervisor, a fairly severe penalty, that it is consistent with the punishment he received with respect to the prior disciplinary action against him in 2002, and that it reflects the Director's belief that strong disciplinary action is called for.

¹⁷Although not fully developed in the record, it appears that sometime after the June 7, 2005 incident the Grievant was transferred to a different location, where it appears he has been working without further problems. It is the job to which the Grievant was assigned at the time of his termination to which he should be returned.