FEDERAL MEDIATION AND CONCILIATION SERVICE In the Matter of the Arbitration between FMCS No. 10-03380 Grievant Tom Kerns JEA SUPERVISOR’S ASSOCIATION, Union, and JEA, formerly known as JACKSONVILLE ELECTRIC AUTHORITY, Employer. ________________________________________/

OPINION OF THE ARBITRATOR

January 25, 2011

After a Hearing Held December 2, 2010 At the JEA Customer Care Center in Jacksonville, Florida

For the Union: Tobe M. Lev Attorney at Law Egan, Lev & Siwica, PA PO Box 2231 Orlando, Florida 32802

For the Employer:

Mary W. Jarrett Assistant General Counsel City of Jacksonville 117 W Duval Street, Suite 480 Jacksonville, FL 32202

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I. The Precipitating Incident and Its Aftermath

Grievant is an electric maintenance coordinator employed by JEA, a

public utility headquartered in Jacksonville, Florida,1 where he is in charge of 6

maintenance crews at the utility’s South Side Service Center. He is a member of

the JEA Supervisors Association (“JSA” or “Union”). Under Florida law,

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

In Grievant’s 2006 performance evaluation (UX 5), the Manager gave

him an overall rating of Exceeds Standard, the highest rating used. Among the

comments that the Manager made in the evaluation are these:

[Grievant] is very familiar with policies and procedures. [Grievant] coordinates assigning crews to trouble tickets in a concise manner. He accurately assigns crews based on the skill, capability, and proximity. [Grievant] clearly communicates progress of projects his crews are working on. Internal customers feel confident he can meet goals expected of him.

In Grievant’s 2007 performance evaluation (UX 1), the same Manager

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.

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comments:

[Grievant] works extremely well meeting both internal and external customer’s expectations. His can-do attitude makes it easy for him to complete any task, no matter how difficult. His skills matching crews to specific projects and achieving success are commendable. He consistently receives high praise from the engineering department for completing jobs in a timely and professional manner. He takes a proactive role in mentoring his working foremen and apprentices. His foremen, journeymen and apprentices have confidence in his leadership abilities. [Grievant] is very familiar with policies and procedures. [Grievant] clearly communicates progress of projects his crews are working on. Internal customers feel confident he can meet goals expected of him.

For 2008, the Manager continued to rate Grievant as Exceeds Standard

and make comments such as:

[Grievant] works extremely well meeting both internal and external customer’s expectations. He maintains direction and focus with the status of jobs, crew locations, materials and is very hands on to ensure lights-out situations are resolved quickly. His skills matching crews to specific projects and achieving success are commendable. He consistently receives high praise from the engineering department for completing jobs in a timely and professional manner. He takes a proactive role in mentoring his working foremen and apprentices. His foremen, journeymen and apprentices have confidence in his leadership abilities. His performance fully exceeds the requirements for the position. [Grievant] is familiar with policies and procedures and keeps abreast of any new changes. [Grievant] constantly reviews the FMS [Field Management System] screens for outages. He stays in constant communication with the SOCC [System Operations Control Center] and his crews to ensure the work is completed correctly and in a timely manner.

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[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),

the Manager continued to rate Grievant as Exceeds Standard and complement

him on his job performance:

[Grievant] continues to excel in his position as Coordinator. During Tropical Storm Faye, [Grievant] picked up the workload of another coordinator that was out of town. His leadership and upbeat attitude helped the service center crews clear over 1100 trouble tickets without delay. His skills matching crews to specific projects and achieving success are commendable. His crews have confidence in his leadership abilities. His performance fully exceeds the requirements for the position. [Grievant] is familiar with policies and procedures. No error this evaluation period. [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.

By letter dated February 4, 2010, the Manager gave Grievant a notice of

intent to discipline, stating:

This letter is a Notice of Intent to Discipline, in accordance with the Agreement between JEA and JSA, Article 26.1, Discipline and Discharge, for possible violation of general regulations as noted in ES A0202 LR 606 – Company-Wide Guidelines for Disciplinary Action for

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your actions based on information made aware to T&D Maintenance Management from a media story which aired Thursday, February 04, 2010. Please be advised that this incident will be investigated, a fact-finding meeting will be held, and you will be informed of the results. JX 5.

Fact-finding by the Manager took place February 8-11, 2010, and a 6-

page “Summary of Fact-finding in regard to media story airing 4 February 2010,

‘JEA Unplugged’,” dated February 12, 2010 (EX 3),4 was produced, the

opening paragraph of which reads as follows:

On February 4, 2010 First Coast News (FCN) aired a comprehensive report titled “JEA-Unplugged” showing JEA employees from the Southside Service Center engaging in questionable acts. Those acts including loitering for an extended period of time at a local restaurant and in a JEA sub-station. Upon viewing the story and raw video posted on FCN’s web site, per LR606, Letters of Intent to Discipline were issued to 4 JSA employees and 13 IBEW [International Brotherhood of Electrical Workers] 2358 employees.

These 17 employees then were organized by coordinator and crew;

names have been omitted by the arbitrator:

GRIEVANT Emp#1255 (JSA) COORDINATOR Crew 375 Name Omitted Emp#1805 (JSA) Working Foreman Name Omitted Emp#495 (IBEW 2358) Linemaintainer Name Omitted Emp#2454 (IBEW 2358) Linemaintainer Name Omitted Emp#6656 (IBEW 2358) Apprentice Name Omitted Emp#6866 (IBEW 2358) Apprentice Crew 345 Name Omitted Emp#746 (JSA) Working Foreman Name Omitted Emp#2955 (IBEW 2358) Linemaintainer

4 JEA exhibits will be denoted by EX and joint exhibits by JX. Arbitrator.

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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 NAME OMITTED Emp#1252 (JSA) COORDINATOR Crew 360 Name Omitted Emp#1377 (IBEW 2358) Linemaintainer Crew 363 (Street-light) Name Omitted Emp#1558 (IBEW 2358) UG Lineman Name Omitted Emp#1184 (IBEW 2358) UG Lineman 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.

Set forth below are excerpts from EX 3. Material in quotation marks

indicates the Manager’s exact words except for the bracketed [] material

inserted by the arbitrator; otherwise it represents the arbitrator’s characterization

of the Manager’s words:

Name Omitted, Emp#1805, Working Foreman (Crew 375) “The FCN report identified one member ([Emp#495]) of his crew as frequenting the restaurant for breakfast, working on a job for two hours and then loitering the rest of the day at the Hartley Rd Substation. [The foreman] stated he himself did frequent the restaurant for breakfast on occasion, but did not require his crewmembers to do so. He stated he got his food on both a sit-down and to go basis. He stated he did see members of his crew at the restaurant also

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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.” Name Omitted, Emp#495, Linemaintainer (Crew 375) “The FCN report identified [the linemaintainer] as frequenting the restaurant for breakfast, working on a job for two hours and loitering the rest of the day at the Hartley Rd Substation. He stated he was the operator of truck 5678, identified in the video. He stated he frequents the restaurant occasionally on an individual basis. He stated he got his food on both a sit-down and to go basis. He states he saw members of his crew there, including his working foreman (WF), but was never told to report there as a crew. He stated he did notice other JEA vehicles and employees there. He could recall the job video-taped on December 9th. After the job was finished, he was released by his WF to lunch and told to reassemble at the Hartley Road Substation at a later time. He recalls seeing other vehicles in the substation but could only identify his WF. He stated his WF was told by their Coordinator, [Grievant], to standby for trouble-calls if any became available. He stated his crew sometimes assembled at a substation to rig materiel for an upcoming job or perform clean-up on their vehicles. He stated his WF generally filled out his time card and couldn’t recall doing any trouble calls that afternoon.” Name Omitted, Emp#2454, Linemaintainer (Crew 375) “Not identified in the report/video. He stated he frequents the restaurant occasionally on an individual basis and as a crew. He states he saw members of his crew there, including his working foreman (WF), but never was told to report there as a crew. 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 was released by his WF to lunch but could not remember being

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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.” Name Omitted, Emp#6656, Apprentice (Crew 375) “He too could recall the job video-taped on December 9th. After the job finished, he was released by his WF to lunch and reassembled at the Hartley Road Substation afterward. He stated that the crew often assembled at the Hartley Road Substation as a meeting place after lunch. He remembered seeing his WF, [Emp#495] and [Emp#2454] there the afternoon of December 9, 2009. He stated they performed clean-up of their vehicles and he studied his Spec Book. He stated this was not a common occurrence while assigned to crew 375.” Name Omitted, Emp#6866, Apprentice (Crew 375) “He was assigned to the Westside Training yard for upgrade training 30-November-Decmeber 17, 2009.” Name Omitted, Emp#746, Working Foreman (Crew 345) “[The foreman] was prominently identified in the FCN raw video posted on their website leaving the restaurant. [The foreman] stated he frequented the restaurant regularly and required his crew to go there also. He stated he got his food on both a sit-down and to go basis. He stated he used it as a meeting place to discuss the upcoming job that day. He stated he did notice other JEA vehicles and employees there but would not identify them.” Name Omitted, Emp#2955, Linemaintainer (Crew 345) “Not identified in the report/video. [The linemaintainer] stated he frequented the restaurant as an individual and was also required to go there as a member of crew 345. He stated the WF of crew 345 used it as a meeting place to discuss the upcoming job that day.” Name Omitted, Emp#7386, Linemaintainer (Crew 345) “Not identified in the report/video.” Corroborated testimony of Emp#2955. Name Omitted, Emp#7472, Linemaintainer (Crew 345) “Not identified in the report/video.” Testimony cumulative.

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Name Omitted, Emp#5979, Linemaintainer (Crew 345) “Not identified in the report/video. … [Linemaintainer] transferred to crew 345 January 4, 2010” Testimony cumulative. Name Omitted, Emp#6862, Linemaintainer (Crew 345) “Not identified in the report/video. … He stated the WF of crew 345 used it as a meeting place to discuss the upcoming job (tail gate) that day. Note: [linemaintainer] transferred to crew 345 January 4, 2010” Name Omitted, Emp#7679, Apprentice (Crew 345) “Not identified in the report/video. … [Apprentice] transferred to crew 345 January 4, 2010” Testimony cumulative. GRIEVANT, Emp#1255, COORDINATOR for Crew 345 & 375 “Not identified in the report/video. This fact finding was held to determine if [Grievant] had knowledge of his crews taking extended breaks for breakfast or loitering in substations. He stated he knew of employees going to the restaurant, but not to the extent viewed in the FCN report. He stated he thought they went there and got the food on a to-go basis and didn’t spend much time there. If he noticed that many vehicles in the parking lot, he would have notified his crews not to go there. He stated he went to this restaurant years ago but now eats his breakfast at his desk, if at all. He stated he gave his crews more than enough work on a daily basis and that they had no reason to loiter at a substation for an extended period of time. He stated he trains his WF to lay out their work correctly to avoid a situation where there is non-productive time in the afternoon. He stated he never told a WF to hold his crew at a substation to await trouble tickets. He stated if a WF needs work, he can get plenty of routine, street light, or even cut-ins for them to do.5 To fill in the rest of their day.” Name Omitted, Emp#1377, Linemaintainer (Crew 360 Cut-in) “[The linemaintainer] was prominently identified in the FCN report driving into the restaurant parking lot. [The linemaintainer] stated he frequented the restaurant regularly.” Name Omitted, Emp#1558, UG [Underground] Lineman (Crew 363 Street-light) “[The lineman] was prominently identified in the FCN report driving with his crewmate, [Emp#1184], from the substation to lunch and back to the substation.

5 Cut-ins are new electric lines. TR @ 21. Footnote by arbitrator.

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[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).” Name Omitted, Emp#1184, UG Lineman (Crew 363 Street-light) “[The lineman] was prominently identified in the FCN report driving with his crewmate, [Emp#1558], from the substation to lunch and back to the substation.” Corroborated testimony of Emp#1558. Name Omitted, Emp#1252, COORDINATOR for Crew 360 & 363 “This fact finding was held to determine if [the coordinator] had knowledge of his crews taking extended breaks for breakfast or loitering in substations. [The coordinator] stated he regularly frequented the restaurant in question on a sit-down and to-go basis. He stated on occasion he noticed JEA trucks in the parking lot but that he parked in the front with the majority of trucks parking on the side and in the rear of the restaurant. He stated he noticed JEA employees in the restaurant getting food to-go and sitting down. He stated his crew members were taking their food to-go. He stated he gave his crews all available cut-in and street light tickets and that was more than enough work on a daily basis that they had no reason to loiter at a substation for an extended period of time. If they did run out of tickets he instructed them to come back to the yard to restock their trucks, etc. He stated he never told a crew to hold at a substation and await trouble tickets.” After summarizing the testimony of these 17 employees, the Manager

listed violations which may have occurred:

“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. On February 25, 2010, the Manager issued Grievant a Written

Reprimand (JX 4), in which the Nature of Unacceptable Behavior was described

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as follows:

On February 4, 2010 First Coast News aired an investigative report showing JEA crews from the Southside Service Center loitering for an extended period of time at a local restaurant and in a substation. Two of your crews; crew 345 and crew 375, were prominent in the report as loitering at the restaurant and substation. A fact finding was conducted on February 8, 2010. In that meeting you stated that you did not know your crews were loitering as reported.

In the Written Reprimand, the following Civil Service Rule Violation

was cited:

Your conduct has violated Civil Service Rule and Regulation 9.05 (1) relating to:

(f) Been incompetent or inefficient in the performance of the duties of the position

Your conduct also violated JEA’s discipline procedure LR 606, Rules: (14) Failure to comply with rules, regulations, policies and procedures (32) Unsatisfactory performance

Grievant then was warned:

Be advised that should your conduct not improve, the next step in the discipline process may well be your dismissal. JX 4.

A formal grievance was filed with the Director of T&D Maintenance

(“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.

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At the next step, the grievance was presented to the Vice President of Fuels,

Purchased Power and Compliance (“Vice President”), who held a meeting on

April 20, 2010. Id.

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.

On May 10, 2010, the Union invoked arbitration. JX 2. A hearing was

held on December 2, 2010, at the JEA Customer Care Center in Jacksonville,

Florida. Both parties were represented by counsel. The Employer witnesses

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

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coordinator who had no stake in the events at issue; (ii) a linemaintainer from

crew 345, Emp#2955; (c) Coordinator Emp#1252; and (d) Grievant. A

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.

II. Management Imposed New Rules After the Fact

In an apparent effort to close the barn door after the farm animals had

wandered away, the Manager issued a Reaffirmation of Expectations to

Southside Distribution Maintenance Employees, in which he made the

following pertinent points:

2. Currently, regular scheduled workdays and work hours are Monday through Friday, starting at 7:00am and ending at 4:00pm. 4. Foremen are to report to their respective Coordinators office at 7:00am to receive and discuss work assignments. 5. Coordinators shall ensure work assignments for their crews are ready and distributed no later than 7:30am. 6. Coordinators shall ensure work assignments for each crew are sufficient to provide enough work for the entire workday. 7. During the period 7:00am-7:30am, the Apprentices and Linemen shall be stocking their trucks as expeditiously as practical in order to avoid any unnecessary delay in crews leaving the service yard for the first job. 8. Coordinators shall monitor and ensure their crews leave the service yard as soon as practical after receiving their assignments, with the goal of crews exiting the gate by 7:30am. 9. Foremen shall notify their Coordinator in the event the day’s work assignments are completed ahead of schedule, or otherwise cannot be worked, and they need additional work assignments for the day. 11. Rest breaks shall be taken as determined by the Foremen, and shall not be excessive in frequency or duration. 12. Crews shall continue working their assignments so as to time their

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return to the service yard no sooner than 3:30pm …, unless otherwise authorized by their Coordinator. JX 6; emphasis in original.

On June 22, 2010, the Manager issued a Policy on Acceptable Break

Periods-WB001, which stated in pertinent part:

1. Employees are expected to report to their assigned work location on time and prepared to work through to the normal work break time, as determined by their supervisor. 4. At the Working Foreman’s discretion, crews may stop briefly (5 minutes) at a convenience store that is in route to their first assignment. No additional stops are permitted. 5. Stopping at fast food establishments, sandwich shops or restaurants (or utilizing the drive-thru) is prohibited. 6. Rest breaks shall not be excessive in frequency nor duration. JX 7.

Although JXs 6 and 7 address the breakfast issue, they do not appear to address

the substation issue.

III. Highlights of Witnesses’ Testimony

Set forth in this section are highlights of witnesses’ testimony, insofar as

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

establishment’s name, even though a witness may not have.

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.

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III.A. First Employer witness, the Director

1. He was the supervisor of the Manager, who in turn is Grievant’s supervisor. TR @ 36.

2. Bobby’s is 3-6 blocks away from the Southside Service Center. TR @

38. 3. Crews always have been allowed to stop for food and drink on the way to

a jobsite. TR @ 39. 4. 20 employees were interviewed during the fact-finding. TR @ 41. 5. “the December incident” TR @ 47. 6. Linemaintainers are well paid, $30-$40 an hour. TR @ 57-58. 7. Grievant is a good coordinator, very conscientious. He “always got great

evaluations.” TR @ 62. 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.

9. Bobby’s is “a few blocks down the road.” TR @ 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.

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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.

16. WF’s are very high paid. 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. 19. Coordinators don't have any capability to do GPS tracking. TR @ 75. 20. GPS tracking of JEA vehicles is coming. TR @ 75-76. 21. Only one day’s conduct is at issue. TR @ 77. 22. His office is at the Westside Service Center. TR @ 77. 23. The day in question is December 9, 2009. TR @ 78. 24. Grievant is very good at giving out plenty of work. TR @ 92.

III.B. Second Employer witness, the WF of crew 345, Emp#746

1. He’s been with JEA for almost 41 years and has been a foreman for 18 years. Grievant is his supervisor. TR @ 102.

2. Work is performed before heading to the first job. TR @ 102-103. 3. Bobby's Lunch Box was close by to the Southside Service Center. TR @

104. 4. He had a phone and a radio for communicating with the coordinator. TR

@ 105. 5. He’s been having breakfast on the job for 40 years. TR @ 106. 6. “Basically everything's cell phone around there.” TR @ 106-107.

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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.

9. Grievant knew everybody was taking their own break. 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. 12. He has seen other managers eating breakfast. TR @ 127-128. 13. Before February of 2010, he never knew of anyone being disciplined for

eating breakfast. TR @ 128. 14. He saw the Manager at Bobby’s with two girls. TR @ 129.

III.C Third Employer witness, the WF of crew 375, Emp#1805

1. Grievant is his supervisor. TR @ 137. 2. Work is done before his crew leaves the Southside Service Center. TR @

137. 3. He has a laptop through which he and Grievant communicate. TR @ 149. 4. He had never seen a written policy against going to a substation. TR @

150. 5. He has worked on 20 crews, all of which would go to substations when

they ran out of work. TR @ 150.

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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.

8. “So everyone [who ran out of work] would either go to a substation or

what they call make the loop, you know, ride around town until the appropriate time to come back in.” He imagines Grievant knew that. TR @ 153.

III.D. Fourth Employer witness, the Manager

1. He was Grievant’s supervisor and was involved in disciplining Grievant.7

TR @ 158. 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. 3. He never observed employees doing anything other than getting take-

outs. TR @ 161. 4. Grievant supervises 6 WF’s. Emp#1805 and Emp#746 worked for

Grievant at the time of the events at issue. TR @ 172. 5. He thinks he interviewed 2 full crews and 21 individuals during fact-

finding. TR @ 174. 6. 21 out of 70 employees were given notices of intent to discipline, which

caused quite a stir. TR @ 175-176. 7. 11 trucks were seen at Bobby’s on December 9, 2009. TR @ 179. 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.

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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. 12. JX 6 was the first written policy. TR @ 188. 13. He is in coordinators’ offices “on a constant basis”. TR @ 198. 14. Grievant thought he should be given a letter of counseling instead of a

written reprimand. TR @ 200. 15. Grievant is the best coordinator on the south side of town. “I consider

him a great coordinator.” TR @ 201. 16. The day of the video was December 9, 2009. TR @ 210. 17. There was no written policy about going to a substation and waiting for

an assignment back in December of 2009. TR @ 224. 18. It was WF Emp#1805’s responsibility to contact his coordinator for more

work. TR @ 225. 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.

III.E. First Union witness, a coordinator without any stake in the events at issue

1. He is a coordinator at the Southside Service Center. His position is

essentially the same as Grievant’s. He was not disciplined over the fracas that developed from the videotaping of the JEA crew. TR @ 237-238.

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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.

5. Prior to 2010, he was unaware of any prohibition against sitting down to

eat breakfast or taking more than 5 minutes to eat. TR @ 241. 6. He has seen managers eating at the same time as he was, and neither he

nor anyone else was disciplined. TR @ 242. 7. As a coordinator, he allowed his crews to stop for breakfast on the way to

a job. TR @ 242. 8. Prior to 2010, there was no written policy against sitting down or taking

more than 5 minutes to eat. TR @ 243. 9. If one of his crews ran out of work, he would want them to go to a

substation. TR @ 252-253. 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.

11. In 2009 there was no policy against waiting at a substation for an

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assignment. TR @ 253. 12. Crews can assemble or “rig” parts at a substation. TR @ 253-254. 13. It may take hours to clean a truck because of accumulated debris. TR @

254-255. 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.

III.F. Second Union witness, linemaintainer on crew 345, Emp#2955

1. He had little to say.

III.G. Third Union witness, Coordinator Emp#1252

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 @

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281, 286. 2. He is the Union president. TR @ 281-282. 3. When he was a lineman and a foreman, he “regularly” ate on his way to

his first job. TR @ 282. 4. Q Did you go to a place where a waitress would serve you at your

table? A No, sir. It was always go to the counter and get it and wolf it down and go. TR @ 282-283.

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.

6. Going to a substation when work is slack is common practice. TR @

290-291. 7. Q Have you ever eaten breakfast with [the Manager]?

A Yes, sir. Q In which places? A Bobby's Lunch Box. The Sultan. I believe San Marco Deli, but I don't swear to that. Multiple places. Q On how many occasions? A I don't know. Several's not a good answer. I heard him testify that he'd been there twice, and I know he's been to Bobby's more than twice. I know he's been to The Sultan several times with us. He's driven us in his car; he's ridden in a JEA truck with us. Q And what time frame are you talking about? A Ever since he's been our manager up until all this happened. TR @ 292-293.

III.H. Fourth Union witness, Grievant

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.

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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.

5. On December 9, 2009, WF Emp#1805 could not go out and set utility

poles, because there were no poles laying on the ground for him to set. TR @ 308.

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. 8. On December 9, 2009, he told WF Emp#1805 that there was only one

job for crew 375 but that they would get any trouble calls that came in. None did. TR @ 316.

IV. A Narrow Ruling on a Narrow Issue

To understand the arbitrator’s decision in this matter, it is necessary to

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

or omissions by Grievant. Moreover, he need consider only acts or omissions

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alleged to have occurred on December 9, 2009.8

According to JEA’s brief, the Employer would have it otherwise, as most

of the brief is devoted to the alleged misconduct of crew 375’s working

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

only 17 times. The Employer writes:

Based on its investigation, on February 25, 2010, JEA concluded that [Grievant’s] conduct as the front line supervisor of [Emp#1805] and [Emp#746], violated both Civil Service and JEA disciplinary rules, and JEA issued a Written Reprimand due to the fact that [Grievant] had two foremen engaging in misconduct with no corrective action from [Grievant]. JEA determined that [Grievant] should have been aware that at least one of his crews frequently had breakfast at a sit-down restaurant prior to the start of productive work, claiming that they had a “tailgate meeting” at the restaurant instead of at the specific workplace, where it needs to take place.9 JEA also determined that [Grievant] did not take action as to Foreman [Emp#1805] and his crew, who were allowed to loaf for an entire afternoon. JEA brief @ 2.

Because of the Vice President’s admission, the arbitrator considers only

Grievant’s alleged acts and omissions vis-à-vis crew 345’s WF.

V. Breakfast at Bobby’s

There are a number of reasons why the arbitrator is reluctant to uphold

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.

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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.

Consider the uproar over Southside Service Center employees eating

breakfast at Bobby’s. FCN described the restaurant as being “just around the

corner on St. Augustine Road,”11 JEA counsel referred to it as “a close-by

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

Grievant’s own disciplinarian Manager, eating at Bobby’s. It does not seem

reasonably possible that higher management was unaware of what was going

on, only blocks from the Southside Service Center.

JEA presented no direct proof that Grievant knew about breakfast at

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.

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Bobby’s, especially not on December 9, 2009, merely imputing that knowledge

to him. Because of the proximity of Bobby’s to the Southside Service Center,

Grievant “should have known of a foreman engaging in requiring his crew to

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.

VI. Analysis of the Specific Charges Against Grievant

VI.A. Incompetence or Inefficiency Grievant, who consistently received the highest overall ranking from—

and is said to be the best Southside coordinator by—the very Manager who

disciplined him, cannot justifiably be accused of incompetence or inefficiency.

JEA utterly failed to bear its burden of proof on this charge.

VI.B. Failure To Comply with Rules, Regulations, Policies and Procedures

The testimony was unanimous that, until JXs 6 and 7 were issued, there

was no rule, regulation, policy or procedure governing breakfast. The testimony

of the employees who ate breakfast was unanimous that they had been doing it

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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

conduct of long standing is through rule-making, not discipline. Elkouri &

Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003) @ 994-995 (requiring

clear advance notice to discipline for conduct previously tolerated).

VI.C. Unsatisfactory Performance This description of Grievant’s work flies in the face of his performance

evaluations for 2006-2009, completed by the Manager who disciplined him and

then proceeded to testify that he was the best Southside coordinator. The

inconsistency is manifest, and the charge cannot stand.

VII. Award

The grievance is SUSTAINED. All of JEA’s copies of Grievant’s

Written Reprimand should be destroyed.

VIII. Postscript

JEA was caught in a perfect storm. As counsel explained in opening

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”.

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statement:

[U]nfortunately, just before the economic collapse, the economic situation required [JEA] to start raising rates. And then in January of this year, 2010, Jacksonville had one of the … longest cold snaps in history. So the combination was that electric bills were quite high, and the conduct surrounding the discipline issue today came to JEA's attention through an investigation done by one of the local TV stations because people were complaining about their electric rates, so it made a good story. TR @ 17.

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

appears to be a classic case of scapegoating, a prime example of the aphorism,

the s*#! flows downhill.

Dated January 25, 2011 ________________________________ E. Frank Cornelius, PhD, JD, Arbitrator

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.