Resolution No. 1928 RESOLUTION NO, 1928
A RESOLUTION OF THE BOARD OF
DIRECTORS OF SOUTH TAHOE PUBLIC
UTILITY DISTRICT ADOPTING PRO-
POSED DECISION OF HEARING OFFICER
SUSTAINING THE DISMISSAL OF EVERETT
E. FOR.
WHEREAS, the General Manager of SOUTH TAHOE PUBLIC UTILITY
DISTRICT terminated the employment of Everett E. Fox with said
District on July 29, 1974; and,
WHEREAS, said Everett E. Fox filed his appeal of said
termination with this Board of Directors at its regular meeting on
August 1, 1974; and,
WHEREAS, after "meet and confer" negotiations between the
attorney for said Everett E. Fox and the recognized employee
organization, Stationary Engineers, Local No. 39, and the attorney
for said District, appeal procedures were adopted by this Board of
Directors for employees terminated by the General Manager of said
District as more particularly set forth in Resolution Nos. 1898
and 1902, and for the appeal of said Everett E. Fox as more parti-
cularly set forth in Resolution No. 1903, all of which were agreed
to by said Everett E. Fox through his attorney; and,
WHEREAS, a hearing on the appeal of termination of said
Everett E. Fox in accordance with said procedures adopted was duly
held on August 28 and 29, 1974, before Coleman E. Stewart, a
"`" Hearing Officer agreed upon to hear the matter by said Everett E.
Fox and this Board of Directors through their respective attorneys;
and,
WHEREAS, said Hearing Officer, Coleman E. Stewart, has
prepared a proposed decision In the Matter of the Dismissal of
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*by Everett E. Fox together with a memorandum opinion in support
thereof, which decision and memorandum were received by the District
on September 27, 1974, and filed by the Clerk of the District as
a public record on September 30, 1974; and,
WHEREAS, said proposed decision and memorandum opinion
in support thereof, was mailed certified to said terminated employee
Everett E. Fox on September 30, 1974, and to his attorneys as well
as each member of this Board of Directors, together with a notice
that the matter of taking any action specified in said Resolution No.
1903 on said proposed decision would be considered at an adjourned
regular meeting of this Board of Directors, October 10, 1974; and,
WHEREAS, each member of this Board of Directors has read
and considered said proposed decision and memorandum opinion in
support thereof, and said decision was fully read in adjourned
meeting of said Board of Directors, October 10, 1974; and,
WHEREAS, this Board of Directors had explained in an
adjourned regular meeting of said Board, October 10, 1974, each of
the courses of action it might take upon said proposed decision;
and,
WHEREAS, the terminated employee Everett E. Fox was present
with a Lobel Union 39 Steward at the adjourned meeting of this
Board on October 10, 1974, and no written or oral statement was
presented on his behalf, except an appearance by Local Union 39
Steward, Harry Hansen;
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS
OF SOUTH TAHOE PUBLIC UTILITY DISTRICT AS FOLLOWS:
l ow 1. The proposed decision of Coleman E. Stewart, Hearing
Officer, dated September 18, 1974, In the Matter of the Dismissal
of Everett E. Fox is hereby adopted in its entirety. A copy of
said decision and memorandum opinion in support thereof, is attached
hereto, marked Exhibit A, incorporated herein, and made a part hereof.
2.
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2. The punitive determination of dismissal of Everett E.
Fox from employment with SOUTH TAHOE PUBLIC UTILITY DISTRICT on
July 29, 1974, by the General Manager of said District is ordered
sustained.
3. The President of the Board of Directors of SOUTH TAHOE
PUBLIC UTILITY DISTRICT is ordered and authorized to sign said
original proposed decision of Coleman E. Stewart, Hearing Officer,
as the decision of this Board of Directors. The Clerk of said District
is directed to sign and attest to the signature of said President
and affix the seal of the District thereon. The Clerk is further
directed to attach a certified copy of this Resolution to said
decision.
PASSED AND ADOPTED at an adjourned regular meeting of
the Board of Directors of SOUTH TAHOE PUBLIC UTILITY DISTRICT on
this 10th day of October, 1974, by the following vote:
AYES: Directors Wakeman, Fesler, Kortes, and
Hegarty
NOES: None
ABSENT: None
ABSTENTION: Director Ream
ROBERT AKEMAN resident,
SOUTH TAHOE PUBLIC UTILITY DISTRICT
ATTEST
LA..4 I 21_.4 I ,
'A t er. �• a �'• ar •
S0' IAMB PUc UTILI DISTR
Certificate
I hereby certify that the foregoing is a full, true
and correct copy of Resolution No. 1928, which was duly and
regularly adopted at an adjourned regular meeting of the Board
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of Directors of the SOUTH TAHOE PUBLIC UTILITY DISTRICT, El Dorado
County, California, held on the 10th day of October, 1974, by the
following vote:
AYES: Directors Wakeman, Fesler, Kortes, and
Hegarty
NOES: None
ABSENT: None
ABSTENTION: Director Ream
(SEAL) •.) • fw_ ,_ '`ms`s ►, /
SOUTH T `:0E PUBLIC P ILITY !1ST' T
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• Filed with South Tahoe Public
S ••' . Utility District as a public
Record Sept. 30, 1974
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8 BEFORE THE BOARD OF DIRECTORS
9 SOUTH TAHOE PUBLIC UTILITY DISTRICT
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In the Matter of the Dismissal of
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EVERETT E. FOX
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kime ] 13 DECISION
14 The appeal of EVERETT E. FOX from the punitive deter -
15 mination of dismissal as an employee of the SOUTH TAHOE PUBLIC
16 UTILITY DISTRICT came on for hearing on the 28th day of August,
17 1974 at 3 P.M., before COLEMAN E. STEWART, Hearing Officer sitting
18 alone. The District was represented by JOHN C. WEIDMAN and LEE
19 H. SCHUERING, Attorneys at Law, and the appellant was represented
20 byMATHREW B.F. BERIN an Attorney at Law.
21 Evidence, both oral and documentary was adduced and
22 reported, and after oral argument the appeal was submitted for
23 decision.
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COLEMAN E. STEWART
ATTORNEY AT LAW
P. O. SOX 306 ( 1)
661 SIXTH ST.
LINCOLN, CALIFORNIA •
9564B
1 FINDINGS OF FACT
2 The following facts have been found to be true:
3 1. July 2, 1974. While on duty purchasing and drinking one can
4 of Olympia Beer at Tahoe Paradise Country Store with assigned
5 truck #3 parked in front of store and thereafter driving truck
6 and continuing shift.
7 2, July 25, 1974. Assigned truck #3 carrying one full can of
8 Olympia Beer and 2 empty bottles.
9 3. April 10, 1974. Loading personal truck with District sod for
10 personal use without permission. Warned by ,Plant Engineer
11 John Gonzales and Supervisor Lee Chada that taking District
12 property without permission could be grounds for termination.
13 4. Used District back -hoe to plow snow from private driveways.
14 5. Use of District assigned truck #3 to cut wood for personal
15 business and transport to his personal wood yard.
16 6. April 30, 1974. Gave permission in violation of a specific
17 directive by Supervisor Lee Chada to one Charles Spiva or his
18 agent to enter the District property for the purpose of re-
19 moving poles.
20 7. During year of 1973 -1974. Stored poles in violation of a
21 specific directive of Supervisor Chada that no wood cut by
22 Fox on the clarifier site could be stored on District property.
23 8. May 10, 1974. Left work area assigned by Acting Supervisor
24 Mel Fagot without permission or knowledge of the Acting
ihr 25 Supervisor and opened Manhole No. 50, grid sheet 0 -20 on
26 Montreal Road leaving manhole spoils in the curb area,
COLEMAN E. BTEWART
ATTORNEY AT LAW requiring 3 men to be pulled off regular infiltration
P. 0. BOX 306
661 SIXTH 6T. / \
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LINCOLN, CALIFORNIA 1`
95648
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1 corrective work on the same day to clean up spoils, replace
2 asphalt, and close manhole.
3 9. Used District back -hoe to level private driveway of non -
4 supervisor employee Al Kruse. June 22, 1974.
5 10. May 1973. In violation of safety instructions by Supervisor
6 Chada, left assigned truck # #3 in middle of street at Lake
7 Tahoe Blvd. in front of Tahoe Verde unattended and without
8 use of emergency warning flasher lights, and left open manhole
9 at the same location without flagman.
10 11. Used high pressure hydro- cleaner through a manhole on Kubel
11 Avenue to relieve stoppage without additional employee to
12 assist.
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14 CONCLUSIONS OF LAW
15 Appellant EVERETT E. FOX is guilty of the following
16 disciplinary offense:
17 1. Wilful disobedience.
18 II
19 SOUTH TAHOE PUBLIC UTILITY DISTRICT did not violate the
20 provisions of Section 3506 of the Government Code.
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22 DECISION
23 The punitive determination of dismissal of appellant,
24 EVERETT E. FOX, as of July 29, 1974, 1_s hereby sustained.
kir 25 DATED AND SIGNED this f f ( day, of September
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COLEMAN L STEWART
ATTORNEY AT LAW Cole an E. Stewart,
P. O. 110% SOB Hearing Officer Presiding.
661 BIRTH ST.
LINCOLN, CALIFORNIA
95648 (3)
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2 The foregoing decision is hereby adopted as the decision
3 of the Board of Directors of the SOUTH TAHOE PUBLIC UTILITY DISTRIC'
4 this 10th day of October, ; 1974.
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6 SOUTH TAHOE PUBLIC UTILITY DISTRICT
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8 Presiders
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B 4/4 1, &,400
10 Secreta
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COLEMAN E. STEWART
ATTORNEY AT LAW
P. 0. 6OX 806 (4)
661 SIXTH 6T.
LINCOLN, CALIFORNIA
95648
• • Filed with South Tahoe public
Utility District as a public
rec d Sept. 30, 1974
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8 BEFORE THE BOARD OF DIRECTORS
9 SOUTH TAHOE PUBLIC UTILITY DISTRICT
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In the Matter of the Dismissal of j
11 — � EVERETT E. FOX MEMORANDUM OPINION
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13 EVERETT E. FOX, an employee of the SOUTH TAHOE PUBLIC
14 UTILITY DISTRICT was dismissed as of July 29, 1974. The letter
15 of termination of that date states the following grounds for such
16 action:
17 1. Drinking on the job on several occasions and
18 carrying alcoholic beverages in District vehicle
19 (2 empty cans, 2 empty bottles, and one full can
20 of beer were found in your District truck on July
21 25, 1974.)
22 2. Dereliction of duty (doing things other t3'an
23 assigned, failure to do assigned work, and
24 performing work in a careless, unsafe and
25 dangerous manner).
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CO L E. ART
A TTORNEY AT LA W ( l )
P. O. BOX 306 1
661 SIXTH BT.
LINCOLN, CALIFORNIA I
95648 ` {{
1 3• Unauthorized use on District time of District
2 equipment for work not associated with the District.
3 4. Willful failure of good conduct with injury to the
4 District.
5 Subsequently, Fox was furnished a Bill of Particulars
6 dated August 13, 1974.
7 A preponderance of the probative evidence introduced
8 herein requires the determination that the following incidents
9 setforth in the Bill of Particulars are true, to -wit:
10 1. July 2, 1974. While on duty purchasing and
11 drinking one can of Olympia Beer at Tahoe Paradise
12 Country Store with assigned truck #3 parked in
13 front of store a,:c1 tr ereafter driving truck and
14 continuing shift.
15 2. July 25, 1974. Assigned truck #3 carrying one full
16 can of Olympia Beer and 2 empty bottles.
17 3. April 10, 1973. Loading personal truck with
18 District sod for personal use without permission.
19 Warned by Plant Engineer John Gonzales and
20 Supervisor Lee Chada that taking District property
21 without permission could be grounds for termination.
22 4, Used District back -hoe to plow snow from private
23 driveways.
24 5. Use of District assigned truck #3 to cut wood
25 for personal business and transport to his
26 personal wood yard.
COLEMAN E. STEWART
ATTORNEY AT LAW ! 2
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P. O. 90X 306 `
661 OIXTH OT.
LINCOLN, CALIFORNIA
95648
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1 6. April 30, 1974. Gave permission in violation of a
2 specific directive by Supervisor Lee Chada to one
3 Charles Spiva or his agent to enter the District
4 property for the purpose of removing poles.
5 7. During year of 1973 -1974. Stored poles in violation
6 of a specific directive of Supervisor Chada that no
7 wood cut by Fox on the clarifier site could be stored on
8 District property.
9 8. May 10, 1974. Left work area signed by Acting
10 Supervisor Mel Fagot without permission or knowledge
11 of the Acting Supervisor and opened Manhole No. 50,
12 grid sheet 0 -20 on Montreal Road leaving manhole
13 spoils in the curb area, requiring 3 men to be pulled
14 off regular infiltration corrective work on the same day
15 to clean up spoils, replace asphalt, and close manhole.
16 9. Used District hack -hoe to level private driveway of
17 non- supervisor employee Al Kruse. June 22, 1974.
18 10. May 1973. In violation of safety instructions by
19 Supervisor Chada, left assigned truck #3 in middle
20 of street at Lake Tahoe Blvd, in front of Tahoe
21 Verde unattended and without use of emergency
22 warning flasher lights, and left open manhole at the
23 same location without flagman.
24 11. Used high pressure hydro - cleaner through a manhole
25 on Kubel Avenue to relieve stoppage without
26 additional employee to assist.
COLEMAN E. STEWART
ATTORNEY AT LAW /
P. O. BOX 306 / 3
661 BIXTN BT.
LINCOLN, CALIFOR
95646
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The cumulative effect of the Findings of Fact support
2 the punitive termination of appellant Fox's employment. Fox's
3 conduct evidences a disobedience of admonitions given him not to
4 use District equipment for personal activities. Such conduct
5 was continued inspite of repeated warnings that it would result
6 in disciplinary action. Reference is made to paragraphs 3, 4, 5,
7 7 and 9.
8 Fox, being an immediate associate of Guild and Gunderson,
9 it is reasonable to infer that the resistance to the over -all
10 supervision of Gonzales, was the motivation of Fox to continue
11 to ignore the warnings given. This is true although warnings
12 were given to Fox by other supervisory personnel. However, what-
k b, 13 ever the motivation, the conduct of Fox discloses a resistance to
14 admonition of management as to restrictions imposed upon his
15 conduct as an employee. This conduct if allowed to go as
16 undisciplined could only result in like conduct on the part of
17 other employees of the District.
18 The defense in opposition to the validity of the dis-
19 missal rests on two primary issues:
20 1, The Bill of Particulars, if established as true,
21 does not support the finding of "Dismissal For
22 Just Cause ".
23 2. The dismissal was motivated by the Board of Directors
24 hostility to the Operating Engineers Union #39 being
25 brought in as the representative of the employees of
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the District, and that the dismissal was a punitive
COLEMAN E. STEWART
ATTORNEY AT LAW
P. O. SOX 306 (4
661 SIXTH ST.
LINCOLN. CALIFORNIA
95648
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1 action taken against Fox as an employee who was active
2 in the program to secure approval of the union.
3 The formal decision in this proceeding finds against
4 the appellant employee in both issues,
5 Sub - section 8 of Section 34, of Ordinance 162 of the
6 District following an introductory sentence reads as follows:
7 "The tenure of every employee shall be during good behavior,
8 and any employee may be dismissed, demoted or otherwise
9 disciplined for any of the following causes:
10 (8) Incompetency, inefficiency, insubordination,
11 inattention or dereliction of duty, discourteous
12 treatment of the public or of fellow employees,
13 physical attack or fighting, or any other wilful
14 failure of good conduct tending to injure the public
15 service, or wilful or persistent violation of
16 District policies adopted by the Board of Directors.
17 Reference may be had to Section 19572 of the Government
18 Code defining causes for discipline of public employees. This
19 section setsforth in part the following causes:
20 (b) Incompetency
21 (c) Inefficiency
22 (e) Insubordination
23 (h) Intemperance
24 (m) Discourteous treatment of public or other employees
25 (o) Wilful disobedience
26 (q) Violation of this part or board rule.
COLEMAN E. STEWART
ATTORNEY AT LAW
P. O. 00X 306 ( )
661 SIXTH BT.
LINCOLN, CALIFORNIA
95648
1 The wilful disobedience of Fox constitutes "just cause"
2 for dismissal. The "wilful disobedience" which constitutes a
3 ground for discipline of an employee connotes a specific violation
4 of a command or prohibition. Peters vs Mitchell, 35 Cal Rep. 535.
5 Statutory terms "insubordination" and "wilful disobedience" as
6 grounds for the discipline of employees overlap, and, so far as
7 they are distinguishable, disobedience connotes a specific
8 violation of a command or prohibition, while insubordination
9 implies general cour of mutinous, disrespectful or contumacious
10 conduct: Coomes vs State Personnel Board, 30 Cal Rep.639. The
11 conduct of Fox did not constitute insubordination. It was a
12 consistent disobedience of directives given to him with respect
13 to company property. It was a continuous pattern of conduct
14 which could not be allowed to continue without challenge. It was
15 also of such a character that dismissal was warranted,
16 Fox's defense of "union discrimination" is not sustained.
17 It is true that as of July 29, 1974, three employees of the
18 District were dismissed. It is also true that these three employees
19 were the ones most active in causing Operating Engineers Local
20 No. 39 to become the bargaining agent for the employees of the
21 District, however, the evidence fails to disclose any prejudice
22 against this union other than a declaration on the part of one
23 member of the Board of Directors that he opposed the bringing
24 in of the union. This was not the attitude of the Board as
25 evidenced by its cooperation in the acceptance of the union without
26 a formal vote of the employees, thus accelerating the establish -
COLEMAN E. STEWART
ATTORNEY AT LAW (6)
P. 0. DOX 306
661 DIXTH 9T.
LINCOLN, CALIFORNIA
9F,64O
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1 ment of the union's jurisdiction by at least two months.
2 Considerable evidence was admitted on behalf of the
3 defense to establish that other employees of the District, who
4 had not been disciplined, were guilty of disciplinary offenses.
5 This evidence is not relevant to the determination of the charges
6 setforth in the Bill of Particulars. That other employees were
7 guilty of disciplinary offenses does not exhonerate Fox. The
8 evidence was relevant only to the issue of "union discrimination ".
9 No one employee was shown to have been guilty of disciplinary
10 offenses, either in number or as serious in consequence, as those
11 established against Fox. Had disciplinary proceedings been
12 instituted against any one of such employees the discipline
13 imposed, of necessity, would have been less severe.
14 Fox strongly contends that his dismissal as of July 29,
15 1974, was more than a coincidence with Local 39 acquiring jurisdiction
16 of the employees of the District; that, but for the resentment
17 by management of his participation in the program of qualifying
18 the union he would not have been disciplined. The most that can
19 be said for this contention is that it was the movement to bring
20 in the union that stimulated a review of the conduct of employees
21 and an evaluation of disciplinary offenses up to July of 1974.
22 Probative evidence does not disclose that the District was anti -
23 union. One director had forcibly expressed his opposition to the
24 union, but the board voted to co- operate with the union, waived
25 a formal vote on the part of the employees, and accelerated the
26 the union's taking over jurisdiction by at least two months. Culp,
COLEMAN E. STEWART
ATTORNEY AT LAW
P. O. PDX 306 ( 7 )
661 SIXTH ST.
LINCOLN, CALIFORNIA
95648
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1 the general manager, and Gonzales, the plant engineer, had been
2 subjected to criticism for being too lax in the exercise of
3 employee supervision. With the union taking over employee
4 representation the time had come to determine who should remain
5 as employees of the District. Appellant Fox is one of three
6 employees so evaluated. 61'
7 DATED AND SIGNED September j 1974.
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Co -man E. Stewart
10 Hearing Officer Presiding.
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COLEMAN E. STEWART
ATTORNEY AT LAW
P. O. PDX 306 )
661 SIXTH ST.
LINCOLN, CALIFORNIA
95640