TO: AT&T SE Local Presidents, Staff
FROM: Judith R. Dennis, CWA District 3 Vice President
RE: Favorable ESM/MSOC Arbitration Decision
CWA and SWB, AT&T Network Services, No. 6-12-079
DATE: September 10, 2014
I wanted to make you aware of a very good arbitration decision handed down recently in District 6 that may be helpful in pursuing ESM discipline cases here in District 3. While this decision will not resolve the ongoing controversy over the requirements for grieving inaccurate “scorecards,” it does provide helpful insights on successfully challenging cases where technicians are terminated for ‘willful misconduct – failure to follow direction,’ just for not making their numbers.
For the reasons more fully set forth below, the arbitrator sustained CWA’s grievance, reasoning:
“Establishing just cause for willful misconduct, regardless of the origins, requires proof that the employee knew or should have known the reasons that her performance was unacceptable … just cause … requires more than simply mechanical application of the numbers.”
The grievant was a 14 year employee with a good work record. She worked as a Service Representative for the first 11 years. When her position was declared surplus, she transferred to a Premises Technician (Wire Technician) position. Her training included both classroom and field work.
The grievant consistently had difficulty reaching a satisfactory efficiency rating under MSOC. Her performance appraisals for her first two years ranked her deficient in “measurement of work,” or efficiency. At the end of her second year as a Premises Technician she was placed on a Performance Improvement Plan (“PIP”) and given two “ride days.” Her efficiency ratings did not show consistent improvement. In the next year her efficiency did not meet the Company’s 95 percent standard, she was counseled, warned, suspended, and eventually terminated.
Before the arbitrator, the Company argued that it had established just cause for termination because the grievant failed to meet legitimate objective performance standards uniformly applied to all Premises Technicians and did not improve after progressive discipline – a classic case of “will, not skill.” CWA countered by arguing that just cause was not established because discipline was imposed “on the basis of a mechanical application of numerical production stands, without individualized consideration of the Grievant’s performance and circumstances.”
The arbitrator identified the issue in the case in a very insightful manner. He stated:
“… the crux of the Union’s grievance is that the Company never provided [the grievant] with sufficient guidance and training for her to gain a genuine, specific understanding of what she was doing wrong and what she could do to meet Company expectations.”
The arbitrator recognized two fundamental flaws in the Company’s reliance on its statistical model:
(1) “… there was no scientific basis presented to support management’s conclusion that the plus and minus time factors associated with factors outside of the employee’s control would average out over time.” (Emphasis supplied.)
(2) Management assumed that all Premises Technicians “should be able to achieve and maintain near-average or better efficiency scores over long periods of time… this in itself would indicate that the efficiency scores are not normally distributed. It is commonly known that only on a popular PBS radio show can everyone be assumed to be above average.”
The arbitrator also faulted the Company for misusing statistical evidence it knew to be inaccurate – efficiency scores were known to be skewed by missing data, including daily scores missing due to an employee’s absence from work on scheduled work days.
Further, the arbitrator faulted the Company for using a ‘one-size-fits-all’ approach to its Performance Improvement Plan. The supervisor used a generic form PIP that included areas for improvement that were not relevant to the grievant’s performance problems. He concluded that, in the circumstance, management did not really take the grievant’s situation seriously. He concluded:
“Unless an underperforming Premises Technician is slacking off and can eliminate the slack, it is necessary to identify the elements of her work that took an above-average amount of time.”
The grievant had excellent attendance, was always where she was supposed to be, had high customer satisfaction, and no manager or supervisor could testify to anything they observed her doing wrong. Yet she was terminated for ”willful misconduct” – failure to follow directions. In sustaining the grievance, the arbitrator rule, “… the employer must make a case-by-case analysis of the employee’s performance record and demonstrate that it took reasonable steps to assist the worker in making improvements.” (Emphasis supplied.)
A successful frontal assault on a statistical production model is virtually impossible. A case-by-case analysis may be highly effective where one or more of the following can be demonstrated:
(1) The employee has requested help with performance issues and is otherwise a good employee – no attendance, disciplinary, or other issues which support a “will, not skill” argument by the Company;
(2) The Company has not validated that factors outside the employee’s control really do average out over time.
(3) The Company has failed to establish that in the relevant group of technicians, a sizeable number are consistently above average while a few consistently score below average (e.g. ‘how can everyone be expected to be above average?’).
(4) The Company has used statistical evidence known to be inaccurate.
(5) The PIP is not really geared to address specific performance issues relevant to the grievant.
(6) The Company has failed to pinpoint any specific causes for the grievant’s performance issues.
(7) The Company has not observed the grievant doing anything significant that warranted correction.
The Company is simply relying on a mechanistic application of “the numbers