In the matter of Department of Correction’s Case Number 5188

Hearing Date: May 14, 2001
Decision Issued: May 16, 2001

Grievant
Assistant to grievant
Two witnesses for grievant
Resident Engineer
Legal representative for Agency
Three witnesses for Agency

Was the grievant’s conduct on December 2, 2000 subject to disciplinary action under the Commonwealth of Virginia Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from Group I Written Notice issued on December 8, 2000 for inadequate work performance because the grievant was not available when called for emergency snow removal duty. Following failure by the parties to resolve the grievance at the third resolution step, the agency head qualified the matter for a hearing.

The Virginia Department of Transportation has employed the grievant since November 1999 as a transportation bridge crew member. At the time grievant was interviewed prior to hiring, he was asked whether he would agree to work 12-hour shifts and be on call (24-hour availability) during inclement weather conditions; grievant responded affirmatively. Employees are made aware that, if necessary, they can be called in during vacation if a severe weather event occurs.¹ During the winter season, vacations are not approved for those wanting to travel out of the immediate area.

In September of each year, the residency begins preparations for the upcoming winter snow season. Among other things, the superintendent prepares a snow removal schedule that assigns essential employees² to specific routes in the event of a snow or ice event. The grievant has been designated an "essential employee" and understood that he could be called in to work during snow events. For the October 2000 – April 2001 snow season, the schedule was prepared in September 2000. The grievant volunteered to be assigned to a high priority route on a designated U.S. route that runs across a mountain to the state line. Grievant’s supervisor emphasized to grievant that this particular route was the most critical, troublesome route and therefore a high priority, and that grievant needed to be available whenever called to come in to work. Grievant’s normal schedule was to be 8:00 am to 8:00 p.m.

The supervisor distributed to grievant and all other employees a copy of the snow removal schedule showing route assignments and times, and listing telephone numbers of the supervisor’s home phone, cell phone and mobile phone. Employees were advised to stay current with weather forecasts during off-duty time and be prepared to come to work if a snow or ice event was forecast or imminent. They were also advised to be available so that the superintendent could call them or, to call in if they were not at home when inclement weather was threatening.

The resident engineer has distributed to all employees a memorandum regarding inclement weather policy, which states, in pertinent part:

On November 2, 2000, grievant submitted a leave request form for November 20 through November 22, and for November 29 through December 1, 2000. Grievant’s supervisor approved the request the same day. On November 9, 2000, the superintendent met with all employees (including grievant) and reminded them that being on vacation during hunting season ⁴ does not excuse employees from their assigned snow removal duties and that they are essential personnel. A second meeting (at which grievant was also present) was conducted on November 16, 2000 covering snow removal policy and obligations of essential employees. He also reminded them that they would be short-handed during the 2000-2001 season because some new employees had not yet qualified for the commercial driver’s license needed to operate VDOT trucks.

During 2000, the Thanksgiving holidays fell on November 23 and 24. Grievant went hunting during the period of November 20-24 in a mountainous area located approximately 75 miles from the Residency.⁵ On November 24, grievant learned that snow was forecast that evening and the following day. He drove to a telephone in the area, and called home to check his voice mail at 8:00 p.m. Since there was no message to come to work, he returned to the mountains to hunt. Another employee also went hunting in the same general area during this time. When inclement weather was being forecast on November 24 for the following day, that employee returned home in the event that he was needed for snow removal.

Because of the impending snow forecast, the superintendent called out the night shift for snow removal duty on the evening of November 24, 2000. He made calls to the night shift personnel during the early evening prior to their starting time of 8:00 p.m. Because the forecast predicted that snow could continue into the day on November 25, he then began calling day shift personnel (including the grievant) to alert them that they would probably be called in the following morning. He called the grievant at approximately 8:30 p.m. and left a message on the grievant’s voice mail. ⁶

On Saturday, November 25, when grievant awoke, the area in which he was hunting was blanketed in snow. He called home to check his voice mail and had two messages telling him to call in; one message was from the superintendent, the other from the maintenance operations manager. Grievant then left the mountains and drove home, arriving at about 3:00 p.m. He called the superintendent’s home but the superintendent was out. Grievant left to run errands and returned home at 6:30 p.m. By then, the superintendent had called grievant and left a voice mail message that he would call later. On Monday, November 27, grievant attended classes in another residency office. On Tuesday, November 28, grievant’s supervisor verbally counseled grievant about his failure to be available on November 24 & 25, 2000. He also advised grievant not to let this happen again, and that if it did, disciplinary action would be taken. The superintendent documented this counseling in writing. Grievant refused to accept a copy of the written documentation because he disagreed with it.

On December 1, the weather forecast was for heavy snow beginning that evening and continuing into Saturday morning. The grievant left his home on December 1 and returned to the mountains to hunt because December 2, 2000 was the last day of the hunting season. On Saturday, December 2, 2000, grievant called his home at 9:00 a.m. and learned that the superintendent had called him at 7:30 a.m. to report for work. Grievant returned home arriving there about noon. By the time he got home, weather conditions had improved sufficiently that a decision had been made to end snow removal work. The superintendent issued the Group I Written Notice on December 8, 2000.

Grievant’s supervisor was aware that grievant and most other employees were hunting during the late November hunting season. However, grievant had not told the supervisor where he would be hunting, or that he could not be contacted by telephone. It was grievant’s responsibility to stay abreast of weather conditions and to contact the supervisor if the supervisor could not contact him. Grievant did not take the snow schedule containing the supervisor’s telephone numbers with him when he went hunting.

In the past, four other employees have not been available when called during a snow event. Each received written counseling on his first offense. If he had a second occurrence, he received a Group I Written Notice.

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee’s ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth’s grievance procedure and provides, in pertinent part:

In disciplinary actions and dismissals for unsatisfactory performance, the agency must present its evidence first and must show by a preponderance of the evidence that the action was warranted and appropriate under the circumstances. In all other actions, the employee must present her evidence first and must prove her claim by a preponderance of the evidence.¹ 7

To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to § 2.1-114.5 of the Code of Virginia, the Department of Personnel and Training⁸ promulgated Standards of Conduct Policy No. 1.60 effective September 16, 1993. The Standards of Conduct provide a set of rules governing the professional and personal conduct and acceptable standards for work performance of employees. The Standards serve to establish a fair and objective process for correcting or treating unacceptable conduct or work performance, to distinguish between less serious and more serious actions of misconduct and to provide appropriate corrective action. Section V.B.1 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Group I offenses include "inadequate or unsatisfactory work performance."

Credible and persuasive testimony from multiple agency witnesses established that snow removal is a high priority function of the agency. Preparations are begun in September of each year including specific route assignments for each employee. There was one meeting in September and two meetings in November at which the superintendent advised grievant and others of the importance of their role as essential personnel and the necessity for them to be on call and available as needed. In addition, grievant knew that he was to regularly check weather forecasts, stay alert to changing conditions and assure that he was available if inclement weather was expected.

The grievant was not available when called in to work by his supervisor on November 24 & 25, 2000. As a result of this incident, the grievant’s supervisor counseled him verbally and in writing on November 28, 2000. Notwithstanding the supervisor’s unambiguous warning, the grievant was again unavailable when called on December 1 & 2, 2000. Moreover, snow was being forecast for the night of December 1 – the very day when grievant left home and went into the mountains to go hunting. The grievant knew, or reasonably should have known, of the snow forecast. He also knew that he did not have a telephone in the woods where he hunted and that a cell phone could not receive signals in that area. Thus, grievant knew that it would be impossible to receive a call from his supervisor. Given the warning he had received only three days earlier, grievant’s decision to leave home and travel to an area where he could not be reached was a failure to follow his supervisor’s instructions.⁹

Grievant argues that he did all that he could do by calling home to check his voice mail at 9:00 a.m. on December 2, 2000. This argument is not persuasive. Grievant was expected to be available to work a shift beginning at 8:00 a.m. By his estimate, it takes him nearly three hours to return home from the mountains. Thus, by the time he returned home on December 2^nd, he was already four hours late for work. Moreover, grievant went into the mountains knowing that snow had been forecast. Given the forecast, grievant could have remained home in order to be available for work.

Grievant also contends that he has not been called in to work on other days this past winter during snow events. Whether he was called on another day does not alter the fact that, when he was called, the grievant was not available. Management has the right to call those employees it deems necessary and most appropriate for the job. Section 2.1-116.06.B of the Code of Virginia states, in pertinent part:

In this case, the Hearing Officer concludes that the determination of who shall be called to handle snow events is a matter that falls solely within management’s right to manage the operations of the agency. It is quite likely that agency management may feel that an important factor in calling in employees is to call those who have shown by past performance that they are reliable and available when called.

Grievant says it was not possible for him to call his supervisor while hunting because he did not have the list of telephone numbers with him. This argument is also not persuasive. The grievant could have taken a copy of the snow schedule and list of numbers and left it in the glove box of his vehicle while hunting. By failing to do so, grievant did not take reasonable precautions to stay in contact with his supervisor.

Grievant also contends that he did not understand he could be called in from vacation. If grievant truly believed this, he has not explained why he called in from his hunting trip on at least three separate occasions on November 21, November 24 and December 2. The fact that grievant called home to check whether his supervisor had called him in to work contradicts his assertion that he was not subject to being on call while on vacation. It appears from the evidence that the grievant attempted to have the best of both situations, i.e., he wanted to go hunting and yet still be available for work. Unfortunately, he failed to properly manage these two conflicting situations in a manner that complied with the agency’s requirement for 24-hour availability.

The decision of the agency is affirmed.

The Group I Written Notice issued on December 8, 2000 for inadequate work performance is AFFIRMED. This Written Notice shall be retained in the grievant’s personnel file for the period specified in Section VII.B.2 of the Standards of Conduct.

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

Section 7/2(d) of the Grievance Procedure Manual provides that a hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

David J. Latham, Esq.
Hearing Officer