Venice on the web
A semi-regular column

Union forces city to reinstate fired worker Michael Pell;
also: AFSCME elects new officers
Pell to receive two years worth of retroactive pay and benefits; arbitration ruling states that city had entered into an agreement with employees that allowed employees to take city property
-- John Patten, 09/06/03
-- jpatten@veniceflorida.com

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Related:
Full text of Arbitration Order
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City forced to rehire Pell
Michael Pell will return to work on Monday, September 8, resuming his job with the city's Public Works Department, thanks to a binding arbitration decision forced by the city workers' union, AFSCME.

Attorney Jerome Wolfson of Miami acted as final arbitrator in the case. On August 23, Wolfson ordered the city to reinstate Pell and to pay him back pay and benefits.

Pell was fired on July 29, 2001 for misappropriation of city property for personal use. The case involved signs that were made at the city's sign-making shop.

According to the judgment, the signs came to the attention of the city after an unnamed  civilian filed a criminal complaint with the Venice Police Department. Pell was questioned by police detectives at the time of the discovery of signs on his property, but no subsequent criminal case was pursued. Pell maintained that the signs on his property were from "scrap or discarded material."

The union had argued that Pell was singled out for punishment, as it was a common practice for workers and supervisors to make signs for personal use in the city's sign-making shop.

In an arbitration hearing held on July 25 of this year, the union successfully argued that Pell's punishment was unfair as no other city employees were given similar punishments for the same offense. Wolfson noted in his judgment that after Pell was fired, members of the Public Works Department were given an amnesty "window" in which they would be allowed to return stolen property with no questions asked. According to the ruling document, numerous signs, street sign poles and even two picnic tables were returned with no punitive action taken against the offenders.

Citing case law in a labor arbitration case involving Lockheed, Wolfson stated that since the city did not enforce the rules against appropriating city property, the city had effectively neutralized the enforceability of such rules:

"It is a basic arbitration principle that non-enforcement or lax enforcement of a company rule will neutralize its enforceability, unless there is advance warning that the rule will be enforced in the future. That principle is plainly applicable here." -- Lockheed Corp., 75 LA 1085, 1980.

After citing the above-mentioned ruling, Wolfson then applied the Lockheed case to Pell's particular situation:

"The behavior of the employees and the employer as concerns the aforementioned practice [of taking city property] showed a definite assent of the parties and their minds....

"...Said actions were similar and consistent with the behavior of other members of the work force including those occupying higher positions than his. His actions were merely patterned after the regularly followed behavior that was allowed in his shop."

Wolfson's entire ruling in a nutshell: you can't single one man out for punishment when others, including supervisors, are doing the same thing and are allowed to get away with it.

Jane O'Connor, the city's head of Administration Services, confirmed Pell's pending reinstatement, but stated that any specific answers about Pell's case should come from the city attorney's office. O'Conner stated that the amount in ordered retroactive pay and benefits for Pell was still being calculated.

Pell was unavailable for comment.

AFSCME holds elections
In other union news, the Venice AFSCME Local 1718 held elections on August 21. Ralph Hamann was elected president of the local, Marco Tucak became the local's new vice president. Hamann had previously served the local as vice president.

Hamann faces some unique challenges as the new president. He has a little over a year before the current union contract expires, a contract that has been viewed by many members as significantly weakening workers' rights. Additionally, there are a number of grievances, and the numbers are growing, coming out of the city's beleaguered utilities department.

Hamann refused to comment on the nature of current grievances undergoing review by the union.