ARBITRATION
DECISION NO.:
243
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Youth Services
Cuyahoga Hills Boys School
DATE OF
ARBITRATION:
February 26, 1990
DATE OF
DECISION:
March 26, 1990
GRIEVANT:
Jerry Stevens
OCB
GRIEVANCE NO.:
35-03-(08-10-89)-0046-01-03
ARBITRATOR:
Anna D. Smith
FOR THE
UNION:
Tim Miller, Staff Representative and Advocate
FOR THE
EMPLOYER:
Donald E. Elder, Advocate, DYS
John Tornes, Second Chair, OCB
KEY WORDS:
Just Cause
Removal
Neglect of Duty
Sleeping on Duty
Mitigating Circumstances
Reasonable Work Rule
ARTICLES:
Article 24 - Discipline
Article 31 - Leaves of Absence
Article 43 - Duration
§ 43.03 - Work
Rules
FACTS:
The grievant was
a Youth Leader 2 employed by the Department of Youth Services. He was found sleeping on the job on two
occasions during a three week period by the Deputy superintendent of the
facility. The grievant was removed for
violating directive B-19, rule (7), sleeping during work hours. Directive B-38 specifies removal as the
appropriate penalty for the offense.
EMPLOYER’S
POSITION:
There is just
cause for removal. The grievant was
sleeping on the job which is a serious violation. His position as a Youth Leader 2 places him inside the facility
with keys to the facility. This creates
a risk to the youth, the employees and the surrounding community if he is
sleeping and his key is taken. The fact
that no incident occurred is irrelevant.
The grievant had
notice of the directives and their effective dates. There are no mitigating circumstances. The employer was not notified of the grievant's medical problems
and the grievant is responsible for his own tiredness. The grievant has four prior suspensions in
the two years before his removal.
UNION’S
POSITION:
The grievant was sleeping
on the job, however, there are procedural defects and mitigating circumstances
present. The grievant was taking
medication which causes drowsiness and the employer knew that the grievant was
taking medication. The grievant had
also been traveling due to ill family members.
There was no
notice that the penalty for sleeping would be removal. The grievant was not informed of the
specific possible discipline before the pre-disciplinary hearing. The speed with which the employer reached a
decision indicates that the grievant's arguments were not considered. The employer relied on Ohio Revised Code
section 124.34 as justification for removal.
It is the union’s position that section 124.34 of the Revised Code does
not supersede the contract.
ARBITRATOR’S
OPINION:
The grievant was
sleeping on duty which is neglect of duty.
A rule against sleeping on duty is a reasonable rule. That no harm resulted is not a mitigating
circumstance. The grievant had
knowledge of the employer's rules. He
had notice of possible removal through the rules and his own disciplinary
record. No disparate treatment was
proven. The employer acted consistently
with the rules in effect.
The employer did
consider the grievant's arguments and the fact that management made its
decision within two days of the pre-disciplinary hearing does not mean that the
union's arguments were not considered.
The employer did not argue that Ohio Revised Code section 124.34
superseded the contract. The grievant's
physical condition and failure to request leave were his own doing. The union failed to prove that the employer
knew the grievant was taking medication which made him drowsy. While the arbitrator acknowledged that the
grievant had physical and emotional problems because of his family's health
problems, he should have taken leave rather than working.
AWARD:
Grievance denied.
TEXT OF
THE OPINION:
In the
Matter of Arbitration
Between
THE STATE
OF OHIO,
DEPARTMENT
OF YOUTH SERVICES
CUYAHOGA
HILLS BOYS SCHOOL
and
OHIO CIVIL
SERVICE EMPLOYEES
ASSOCIATION,
LOCAL 11,
A.F.S.C.M.E.,
AFL-CIO
OPINION
and AWARD
Anna D.
Smith, Arbitrator
Case
No.: 35-03-(08-10-89)-0046-01-03
Removal of
Jerry Stevens
I. Appearances
For the State of Ohio:
Donald E. Elder, Advocate, Department of Youth Services
John Tornes, Second Chair, Office of Collective Bargaining
Crystal E. Bragg, Superintendent, Cuyahoga Hills Boys School
Harry Edwards, Deputy Superintendent, Cuyahoga Hills Boys
School
For OCSEA/AFSCME Local 11:
Tim Miller, Staff Representative and Advocate
Jerry Stevens, Grievant
Dorothy 0. Brown, Chapter 1830 President
II. Hearing
Pursuant to the
procedures of the Parties a hearing was held at 12:00 noon on February 26, 1990
at the Cuyahoga Hills Boys School, Warrensville Township, Ohio before Anna D.
Smith, Arbitrator. The Parties were
given a full opportunity to present written evidence and documentation, to
examine and cross-examine witnesses, who were sworn, and to argue their
respective positions. No post-hearing
briefs were filed in this dispute and the record was closed at the conclusion
oforal
argument, 3:45 p.m., February 26, 1990.
The opinion and award is based solely on the record as described herein.
III. Issue
The Parties
stipulated that the issue before the Arbitrator is:
Was the
Grievant, Jerry Stevens, terminated for just cause and, if not, what shall be
the remedy?
IV. Stipulations
The Parties stipulated to two facts:
1) The case is
properly before the Arbitrator;
2) Jerry Stevens was
hired by Cuyahoga Hills Boys School as Youth Leader 2 in
March, 1981.
The following documents were received as joint exhibits:
1) State of
Ohio/OCSEA Local 11 Contract, 1986-89;
2) Grievance Trail;
3) Discipline Trail;
4) Department of
Youth Services Directive B-19,"D.Y.S. General Work Rules" and
Grievant's
acknowledgment;
5) Department of
Youth Services Directive B-38, "Disciplinary Actions" and Grievant's
acknowledgment;
6) Letter from
physician, July 19, 1989;
7) Performance
Evaluation of Grievant, 1987-88;
8) Performance
Evaluation of Grievant, 1988-89;
9) Grievant's
Employment Application.
V. Relevant
Contract Clauses
Article 24 Discipline
Article 31 Leaves of
Absence
Article 43.03 Duration:
Work Rules
VI. Case History
Cuyahoga Hills
Boys School is a maximum security facility for the confinement of high-risk,
violent youth offenders in an open dormitory arrangement. Built for a capacity of 200 beds, its
population in the last two years has exceeded 300 youth.<PAGE NAME="3">
The Grievant,
Jerry Stevens, was hired in March of 1981.
In his capacity as Youth Leader 2, he was directly responsible for the
youth in the dorm to which he was assigned.
He has an extensive background for this position, holding a bachelor's
degree and some graduate work in behavioral sciences and social work, 35-40
years of experience in working with youth, and has received a number of
awards. His performance at Cuyahoga
Hills Boys School for the 1987-89 period was acceptable. He concurrently holds a full-time day-time
position with the Domestic Relations Court of Cuyahoga County (Joint Exhibit #9
and Grievant's testimony).
The events that
led to his removal on August 8, 1989 are these: Superintendent Crystal Bragg
entered the institution on June 10 and 28, 1989, outside her normal working
hours to investigate reports she had been receiving about staff members
sleeping on the job during the third shift.
Because of an alleged employee warning system, she took precautions to
make her visits a surprise so that she could get an accurate view of what went
on at the institution during her absence. on June 10, she, Deputy
Superintendent Edwards and Chief of Security Saunders arrived at about 3:00
a.m. Saunders stayed at the switchboard to control phone communications while
Edwards and Bragg toured the buildings. of the twelve staff members on duty
that night, eight had investigations initiated for sleeping on duty, including
one member of management. All employees
for whom sleeping was proved were removed.
The Grievant, who wasworking his regular assignment on the 11:00
p.m.-7:00 a.m. shift in "G” dorm, was one of these staff members. On June 28, 1989, Edwards and Bragg again
visited Cuyahoga Hills Boys School during the third shift and again found the
Grievant asleep at his post.
The Grievant
admits that he was sleeping on duty as charged, but testified that there were
extenuating circumstances accounting for his behavior. He was tired from traveling to and caring
for his seriously-ill brother and mother.
He was also taking medication for pain caused by arthritis, a chronic
condition known to Management. This
medication makes him drowsy. He
testified that he reported his use of it to his supervisors. on both occasions
the dormitory was warm and quiet. On
June 10, he had just nodded off after the duty officer's visit when
Superintendent Bragg appeared. On June
28, he had been working without a break except for when his supervisor came
through and signed the books.
The record
discloses that Mr. Stevens had received four suspensions for neglect of duty in
the two years prior to the incidents precipitating his removal (Joint Exhibit
#3). He testified that the three-day
suspension was related to his exceptionally heavy personal
responsibilities. He also stated that
his prior difficulties have been resolved.
On June 10 and June 28, notices of investigation were issued
on the above incidents, citing Mr. Stevens for violating Directive B-19, Rule
#7, sleeping during working hours. ANotice
of Third-Party Hearing was issued on June 30 and said hearing was held July 6.
On August 8, Grievant was notified that he was removed from his position of
Youth Leader 2, effective August 9, 1989, for neglect of duty (sleeping) in
violation of Chapter 124.34 O.R.C. (Joint Exhibit #3). This action was grieved on August 10, 1989
and processed through to arbitration where it presently resides.
Several practices
of the institution are relevant. one is that the youth leaders are locked into
the dormitory to which they are assigned, taking their keys with them. According to the testimony of Deputy
Superintendent Harry Edwards, youth leaders are very important for maintaining
the security of the institution and its community because of their direct
supervision of the youth who do such things as start fights, make keys and
weapons from stolen items, and plan and attempt escapes. In this environment youth leaders must
remain alert for their own safety as well as that of others. If a youth leader is afraid of becoming
drowsy, according to Superintendent Crystal Bragg, he is supposed to notify the
duty officer, who makes relief in the form of breaks and assistance
available. If the youth leader is
unable to perform his duty, he is not to come to work, but to use the call-off
measures of the institution.
Another relevant
practice of the institution is the method by which the Employer implements new
work rules, in particular, Directive B-38 (Joint Exhibit #5). This directive, which is dated June, 1988,
specifies removal for the fourthoccurrence of minor neglect of duty (Violation
#1b) or sleeping on duty (Violation #9), and for the first or second occurrence
of neglect of duty (Violation #1a) or sleeping on duty (Violation #9a) which
endangers life, property of public safety.
Superintendent Bragg was informed of the directive in the fall of 1988,
whereupon she began its implementation.
The Grievant received and reviewed the directive on October 10, 1988
(Joint Exhibit #5).
Ms. Dorothy 0.
Brown, a 13-year employee, President of Chapter 1830 and Chief Steward,
testified that when she became aware of Stevens' pre-disciplinary investigation
she did not think he would be discharged because no one had ever before been
removed for sleeping in the years she had been at Cuyahoga Hills Boys
School. Randy Garrett was discharged,
but that was on July 29, after Stevens' hearing. Directive B-38 was on the OCSEA/AFSCME Labor Management meeting
agenda for October 13, 1988 (Employer Exhibit #5) and she knew of it, but she
does not know when it became effective.
She further testified that when the Union is aware that an employee is
subject to discharge, it is put on notice as to what actions to take to defend
the employee. In this case, the
discharge was a total surprise to her.
VII. Positions of
the Parties
Position of the Employer
The Employer
argues that the Grievant was, in fact, found sleeping on duty both on June 10
and June 28. Contraryto the
Union's argument, there are no degrees of sleeping at Cuyahoga Hills Boys
School. Sleeping on duty is so serious
as to warrant discharge on the first offense because of the threat of danger to
the youth, the institution, and the surrounding community. It constitutes a major breach of security.
The Employer
contends that the Grievant knew of the seriousness of sleeping on duty and of
the injuries and escapes that could result.
He was also aware of the rules prohibiting sleeping and neglect of duty,
having read and understood Directive B-19, "General Work Rules." Both
the Grievant and the Union were aware of the disciplinary grid of Directive
B-38, "Disciplinary Actions," which became effective on the date each
employee acknowledged having reviewed it.
Management has
not bargained away its authority to manage which is protected by _117 O.R.C. and Article 5 of
the Collective Bargaining Agreement, and the Union has not grieved or objected
to the implementation of Directive B-38, for which notice was provided as
called for in _3.03 of the Contract.
The Employer also
points out that past practices are not binding authority under _3.03 of the Contract, and
that since B-38 has been in effect it has been consistently applied.
Regarding the
Union's contention that the Employer knew of the Grievant's medical problems
and medication, it points out that the physician's statement was dated July 19,
1989, after the fact of the sleeping incidents. The Grievant never provided documentation of on-going medical
problems and failedto show that he notified the duty officers on the
nights in question. Given the
Grievant's personal schedule of working two jobs and time at the gym, it is no
wonder he was tired, but his medication defense is self-serving.
Regarding the
Union's contention that nothing serious happened as a consequence of the
Grievant's actions, what if something had happened? Management's hands cannot be tied because there is always the
risk of danger and the public, if it knew, would not tolerate eight of twelve
staff members sleeping while on duty in this institution.
The Employer also
claims 124.34 O.R.C. is assumed in the just cause standard, and management's
use of it has been consistently upheld.
Finally, in
support of its right to establish rules and to discharge on a first offense of
sleeping, the Employer cites Arbitrator Feldman in M.R.D.D. v. O.C.S.E.A.
(Brown), Grievance No. G87-0874 (7-31-87).
Position of the Union
The Union does
not dispute that the Grievant was asleep on the job on both June 10 and June
28. However, it claims that there were
mitigating circumstances and procedural defects that violate the just cause and
progressive discipline standards of Article 24 of the Collective Bargaining
Agreement.
First it claims
that the only prior discipline of the Grievant in his eight years of employment
at Cuyahoga Hills occurred one and a half years prior to the instant case. This,too, was related to the personal
responsibilities that played a role in his current difficulty. on both June 10
and June 28, the Grievant was on medication that produces drowsiness and
reported same to his superior.
Moreover, Management knew of his medical history. The Union cites Arbitrator Pincus who
sustained a grievance partially because of the Employer's failure to
investigate and consider the Grievant's medical problem (Cuyahoga Hills Boys
School v. O.C.S.E.A. (Cayson) 35-05-8708-89-00670103). Also on the nights in question, the Grievant
had been working without breaks following stressful and tiring trips out of
town to attend to seriously ill family members. Moreover, nothing untoward happened at the institution as a
result of his accidental nodding off--no escapes or attempts and no injuries to
youth or staff.
The Union goes on
to argue that the Grievant had no forewarning that he could be discharged for
sleeping. Directive B-19 does not
specify a penalty for the infraction of this rule. Directive B-38 does, but arbitrators have ruled that its grid is
a guideline for management (Graham in M.R.D.D. v. O.C.S.E.A. (Niepling)
#24-09-890214-0174-01-04 and Smith in Cuyahoga Hills Boys School v. O.C.S.E.A.
(Garrett) #35-03-(0802-89)-41-01-03).
Moreover, it was not clear when B-38 was actually in effect. Article 24.04 requires that employees be
informed of the possible form of discipline when they are notified of the
pre-disciplinary hearing, but the Grievant's Notice of Third-Party Hearing
merely says "discipline" and theNotices of Investigation refer to
B-19. Since no employee had previously
been discharged for sleeping, the most the Grievant could reasonably expect was
a suspension. The Union was thus
hindered in its ability to represent the Grievant effectively. It argues that it is not fair to get tough
without clear advanced warning, and cites Arbitrators Pincus (Cuyahoga Hills v.
O.C.S.E.A. (King) #G87-2810) and Smith (Cuyahoga Hills v. O.C.S.E.A. (Garrett)
#35-03-(08-02-89)-41-01-03), each of whom returned an employee to work because
of procedural violations including failure to inform the grievant of the
possible form of discipline.
The Union goes on
to contend that the timing of the Employer's actions in this matter are also at
fault. The removal decision was made on
July 11, just two business days after the hearing, too fast to have taken into
consideration the Union's evidence and argument put forth at the hearing. The actual removal, however, did not occur
until August 9, four weeks after the hearing and six weeks after the second
incident of sleeping. Arbitrator
Drotning has found a 44-day delay to call into question management's view that
the employee's action warranted discharge rather than rehabilitation (Kristen
Hosier v. O.D.O.T. 31-07-890323-20-01-06).
Finally, the
Union challenges the State's reliance on O.R.C. 124.34, claiming that this
diminishes the due process rights guaranteed by Article 24 of the
Contract. In support itcites
Rollins v. Cleveland Heights and Arbitrator Pincus in Wiley King v. CHBS -
G87-2810.
For all of these
reasons, it asks that the Grievant be returned to work with full back pay,
seniority, and benefits, and be made whole.
VIII. Opinion
It is an
uncontroverted fact that the Grievant was found asleep on duty twice within a
three-week period. It is also clear
that sleeping on duty in these circumstances constitutes neglect of duty with
potentially serious consequences for the youth in the care of the State, for
the staff of the institution, and for the community. As I have previously held, that no harm was done on these
particular instances does not mitigate the threat of danger, which is real and
not speculative. The Employer's rule
against sleeping on duty is therefore a reasonable one, and one for which
discipline is appropriate to improve and ensure employee performance. It is also clear from the record that the
Grievant knew of the rule because of his acknowledgment of Directives B-19 and
B-38. What is not so clear is whether
he and the Union knew, or ought to have known, that discharge was a possible
consequence of his behavior on the nights of June 10 and June 28. I think the answer to this is yes, the
Grievant and Union could reasonable have foreseen that he could be removed,
particularly after the June 10 incident.
The Grievant had received four increasingly heavy suspensions in the two
years preceding the June 10 incident for neglect ofduty. The record, including the cases submitted by
the Union as Exhibit #2, does not disclose how the Employer treated other
employees on their fifth rule violation (or, indeed, if any had accumulated a
similar discipline record), but the Grievant and Union must have known or ought
to have known that the Employer's tolerance for rule violations was nearing
exhaustion. Despite this, the Grievant
neglected his duty yet a sixth time on June 28.
The Union claims
that the ambiguity surrounding the implementation of Directive B-38 deprived it
of clear notice that Stevens was to be held to a higher standard than prior
rule offenders. It asks that this
discharge be set aside for the same reasons that Randy Garrett's removal
was. There are several reasons this
cannot be done. A major factor in the
Garrett case was the fact that he had twice been held to the pre-B-38 standard
after he had received the directive setting forth the disciplinary grid. This fact plus the failure of the Employer
to indicate in any way that the situation was different in May from what it had
been when the prior discipline had been applied persuaded me that "the
Union and Grievant could not have reasonably foreseen that discharge was a
possible outcome of the pre-disciplinary hearing" (Garrett decision, p.
16). As a consequence, Garrett waived
his right of Union representation at the pre-disciplinary hearing. These facts do not obtain in the case at
bar. There were no disciplinary actions
intervening between the acknowledgment of B-38 on October 10, 1988 and theincidents
giving rise to the removal in June, 1989 to cloud further the effective date of
B-38. Additionally, unlike the Garrett
case, the Union here did not show prejudice to the Grievant on account of
B-38's ambiguous effective date.
Indeed, the uncertainty surrounding the effective date of the higher
standard is irrelevant in this case because when Stevens was found sleeping in
June, his neglect of duty record of four violations placed him at risk of
losing his job under the pre-B-38 standard.
The Union and the Grievant should have known this.
The Union
correctly points out that timeliness is a factor to be considered by the
Arbitrator under § 24.02. I disagree
that two days is too little time for the Employer to have considered the
Union's case as put forth at the pre-disciplinary hearing. I am also persuaded by the testimony of
Superintendent Bragg and Employer Exhibits 1 and 2 tracing the routing of this
disciplinary action that the time elapsing between Superintendent Bragg's
decision and the actual removal represents due consideration of the issues
involved by specialized staff and higher authority rather than unwarranted
delay.
The Union's argument that reliance on O.R.C. 124.34 diminishes the Grievant's due process and procedural rights under the Contract is unfounded since the Employer does not seek to use the Code to usurp the collectively-bargained provisions of the Contract.
Finally, the
Union raises the issue of the Grievant's condition on the nights he was found
sleeping. The claim that the Employer
knew the Grievant was taking medication that produces drowsiness is
unsubstantiated. While the Arbitrator
sympathizes with the Grievant's physical and emotional condition brought on by
his own and his family's ill health, the fact remains that he chose to work
while under personal stress and without adequate sleep, rather than to seek
leave. This decision placed himself,
the youth in his charge, the institution, and community at risk.
To summarize,
Jerry Stevens neglected his duty by sleeping on June 10 and June 28, 1989, he
was progressively disciplined under reasonable and known work rules, he could
reasonably foresee the consequences of his behavior, and he received due
process.
IX. Award
Grievance denied.
Anna D. Smith, Ph.D.
Arbitrator
Shaker Heights, Ohio
March 26, 1990