ARBITRATION
DECISION NO.:
313
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Rehabilitation
and Correction
Madison Correctional Institution
DATE OF
ARBITRATION:
December 7, 1990
DATE OF
DECISION:
January 7, 1991
GRIEVANT:
Timothy Follrod
OCB
GRIEVANCE NO.:
27-15-(90-05-15)-0098-01-03
ARBITRATOR:
Anna Smith
FOR THE
UNION:
Patrick A. Mayer
Staff
Representative
FOR THE
EMPLOYER:
Thomas E. Durkee
Advocate
Lou Kitchen
Second Chair
KEY WORDS:
Removal
Personal Relationships with
Inmates
Mitigating Factors in Discipline
Progressive Discipline
Disparate Treatment
Commensurate Discipline
Violation of Rules 39 and 40 of
Standards of
Employee
Conduct
ARTICLES:
Article 24-Discipline
§24.01-Standard
§24.02-Progressive
Discipline
§24.05-Imposition
of Discipline
FACTS:
The grievant, a
Corrections Officer II, worked for the Madison Correctional Institution for
discipline. The grievant allegedly
violated three work rules: Rule 23 -
failure to report a work rule violation, Rule 39 - dealing with an inmate;
receiving something of value from an inmate and Rule 40 - engaging in an
unauthorized personal relationship with an inmate or an ex-inmate's family or
friends.
The grievant
heard from an inmate that a thirteen foot metal rowboat was for sale. The grievant called the inmate's wife and,
in planning to buy the boat, brought another employee to the inmate's
house. The other employee remained in
the car during the transaction.
Although the price of the boat, one hundred dollars, is clear, it is
unclear who received the money. The
employer claims it was the inmate's wife while the grievant testified it was
another man who was not related to the inmate.
The grievant
again visited the same house after the inmate was released. The house may have contained marijuana and
there was a gun present. This later
visit was stipulated by the parties to not be a violation of the Standards of
Employee Conduct. The employer learned
of the boat sale incident and during their investigation the grievant admitted
to wrongdoing and offered a written statement.
The grievant was removed.
EMPLOYER’S
POSITION:
The facts support
the inference that the grievant paid the inmate’s wife one hundred dollars for
the boat. This transaction was
unauthorized and unreported. There are
strict rules against employee fraternization with inmates because this personal
relationship is a potential security breach.
The officer becomes open to manipulation and blackmail. Fellow officers do not know whether they can
trust an officer that is friends with inmates.
This is a serious offense and removal is commensurate with the threat
that this violation poses to the security of the institution. The fact that the incident only involves one
hundred dollars does not change the threat to the security of the institution.
The Union's claim
of disparate treatment is without merit.
Removal is the usual penalty for the violations the grievant committed
and of the nine cases cited by the Union only one dismissal was overturned in
arbitration.
UNION'S
POSITION:
There is no proof
that the money was received by the inmate or a member of his family. The grievant also did not conceal his
activities. The boat was bought in
broad daylight, the grievant brought along another employee and did not caution
the other employee to keep quiet. There
is also no evidence that the grievant received anything of value from the
inmate or offered the inmate any favors in return. The grievant also cooperated fully with the employer. There is no basis for a removal based on a
violation of Rule 39.
Although the
Union conceded the guilt of the grievant under Rule 40, the penalty should be
just, corrective and commensurate with the offense. The grievant has worked for the institution for three years
without discipline and has even been commended for his work performance. The employer did not prove that the
grievant's ability to work as a Corrections Officer is in any way was
diminished or that the institution's security was compromised. other employees
still trusted the grievant.
This violation
was not as severe as dealing in contraband.
There should be lesser discipline for less severe violations as allowed
by the discipline grid. It is unlikely
looking at the grievants record that another incident would occur if he was
reinstated.
ARBITRATOR’S
OPINION:
The violation of
Rule 39 is not established by the employer.
From the facts there is still doubt concerning who received the
money. The grievant did violate Rule 40
in contacting the inmate's wife and later visiting the house of the then
ex-inmate again. This gave the
appearance of impropriety and the grievant's reputation was tarnished. Although the grievant's professional
reputation was tarnished, it was not irreparably destroyed; employees testified
that they still believed that the grievant could be relied on. The gravity of the offense does not warrant
removal.
The claims of
disparate treatment must fail due to the fact that there is not another case
sufficiently like the case at hand.
Some of the factors which differentiate this case are that the grievant
is a three year employee with a good record, the interaction was a single
financial transaction and the connection between the officer and the inmate or
his wife is limited and tenuous. There
is some evidence from the list of cases submitted to the arbitrator for
comparison that the employer has a great deal of flexibility in disciplining
rule 40 violations. Madison
Correctional Institute does not uniformly impose removal on all Rule 40
violators and due to the circumstances in this case the grievant should not be
discharged.
AWARD:
The removal will
be modified to a thirty-day suspension without pay or benefits. The grievant will be reinstated and back pay
will be reduced by any interim earnings of the grievant.
TEXT OF
THE OPINION:
In the Matter of Arbitration
Between
THE STATE OF OHIO,
DEPARTMENT OF REHABILITATION AND CORRECTIONS
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.
27-15-90051598-01-03
Removal of
Timothy Follrod
I. Appearances
For the State of Ohio:
Thomas E.
Durkee, Advocate,
Ohio
Department of Rehabilitation and Corrections
Lou
Kitchen, Second Chair, Office of Collective Bargaining
Rex Zent,
Warden, Madison Correctional Institution,
Witness
Lana
Stanley, Major, Madison Correctional Institution, Witness
Leroy
Payton, Captain, Madison Correctional Institution,
Witness
Jason
Berchtold, Correction Officer, Madison Correctional
Institution,
Witness
Phil
Lomax, Labor Relations Officer,
Madison
Correctional Institution, Observer
For OSCEA/AFSCME Local 11:
Patrick A.
Mayer, Staff Representative and Advocate
Sharon
Vanmeter Bailey, Staff Representative and Observer
Timothy L.
Follrod, Grievant
Frank T.
Penwell, President #4910, Madison Correctional Institution
II. Hearing
Pursuant to the
procedures of the Parties a hearing was held at 9:15 a.m. on December 7, 1990
at the offices of the Ohio Civil Service Employees Association Local 11
A.F.S.C.M.E., 1680 Watermark Drive, Columbus, 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 excluded, and to argue their respective
positions. No post-hearing briefs were
filed in this dispute and the record was closed at the conclusion of oral
argument, 1:00 p.m., December 7, 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
removal of Timothy Follrod, grievant,
on May 1,
1990, for just cause?
If not,
what should the remedy be?
IV. Stipulations
The Parties stipulated to the following facts:
1) Timothy Follrod
was hired March 9, 1987, as a Correction Officer 2 at Madison Correctional
Institution;
2) Grievant has no
prior discipline;
3) Grievant was
removed from his position May 1, 1990;
4) Grievant received
the Department of Rehabilitation and Correction Standards of Employee Conduct;
5) Grievant purchased
a metal boat and picked it up in July or August, 1989, for $100 from the home
of inmate Radclife, #201-144, 4801 Palmetto Drive, Columbus, Ohio;
6) Grievant went to
inmate Radclife's home on at least two occasions and telephoned approximately
four times. The second time, the
employee was not in violation of the Standards of Employee Conduct;
7) Inmate Radclife
was incarcerated at Madison Correctional Institution when he discussed the boat
for sale with grievant;
8) Grievant was
assigned to Zone "A” kitchen when they discussed the sale of the boat;
9) Grievant neither
asked for permission to purchase the boat from inmate Radclife nor reported his
transaction;
10) Grievant
submitted a statement dated April 4, 1990, to Captain Payton reporting the boat
purchase;
11) There
are no procedural issues remaining;
12) The
grievance is properly before the Arbitrator to decide on the merits.
In addition, the following
documents were received as joint exhibits:
1) State of
Ohio/OCSEA Local 11 Contract, 1989-91;
2) Discipline Trail;
3) Grievance Trail;
4) Standards of
Employee Conduct.
V. Relevant Contract Clauses
Article 24
Discipline
§24.01 -
Standard
Disciplinary action shall not be
imposed upon an employee except for just cause. The Employer has the burden of proof to establish just cause for
any disciplinary action.
. . .
§24.02 -
Progressive Discipline
The Employer will follow the
principles of progressive discipline.
Disciplinary action shall be commensurate with the offense. Disciplinary action shall include:
A. One or more
verbal reprimand(s) (with appropriate notation in employee's file);
B. One or more
written reprimand(s);
C. One or more
suspension(s);
D. Termination.
. . .
§24.05 -
Imposition of Discipline
. . .
Disciplinary measures imposed
shall be reasonable and commensurate with the offense and shall not be used
solely for punishment.
. . .
VI. Background
At the time of his removal in
1990, Timothy Follrod had been a Correction Officer 2 at the Madison
Correctional Institution, an 1800-bed medium and minimum security facility, for
three years. He had no prior disciplinary
record, had received a
Letter of Commendation (Union Exhibit 3), was judged to be a good officer by
his commanding officer, Captain Payton, and thought to be dependable by at
least one of his peers, Jason Berchtold.
The facts of the matter which led
to Follrod's removal are largely uncontested.
Very simply, during the summer of 1989, he learned through an inmate of
the institution that a 13-foot metal rowboat in poor condition was for
sale. This knowledge was gained during
a routine shakedown of the inmate's cell.
An outdoorsman, Follrod became interested in purchasing the boat to
restore it for his personal use. He
subsequently telephoned the inmate's wife and made arrangements to buy it. In July or August he went to the inmate's
house, picked up the boat, and paid $100.00 in cash. The inmate, who was still incarcerated, was not present, but a
woman Follrod identified as the inmate's wife was. Follrod testified that he paid the money not to the wife, but to
a man whom he believed was the owner of the boat and had worked on it. Assisting Follrod was a fellow officer and
friend, Jason Berchtold. Berchtold was
unaware of the connection to the inmate.
After the boat was loaded, Berchtold waited in the truck for
Follrod. He did not see the third man,
did not see Follrod go into the house where the man allegedly took the money,
and did not see money change hands.
Neither officer reported the transaction at the time.
Sometime after the inmate was
released, in November or December, the same two officers and a third, Michael
Seitz, visited
at the inmate's home. A weapon was
present; marijuana may also have been.
This visit was not in violation of the Standards of Employee Conduct.
In March of 1990, an otherwise
uninvolved officer reported what he had heard about the boat transaction to
Captain Payton, who initiated an investigation. This investigation included interviews with staff members, a
non-employee friend of the Grievant, and an employee of the Madison County Auto
Title Department. On April 4, Payton
and Deputy Warden Wamsley met with Follrod, who admitted to wrongdoing and
supplied a written statement (Joint Exhibit 2). On April 5, Major Stanley conducted investigatory interviews with
Officers Follrod, Berchtold, Chapman, Seitz and Clay. Her findings were consistent with the facts as outlined above
(Joint Exhibit 2). The result of these
investigations and April 13 predisciplinary conference was that Follrod was
removed from his position as Correction Officer 2 effective May 1, 1990 for the
following rule infractions:
#23 Failure to
report a violation of any work rule
#39 Giving
preferential treatment to an inmate, receiving or giving a favor or anything of
value, dealing
#40 Engaging in
unauthorized personal relationship with an inmate, ex-inmate's [SIC], family or
friends.
Joint
Exhibit 2
This removal was grieved on May 1
and subsequently processed through the grievance procedure to arbitration where
is presently resides free of procedural defect.
VII. Positions of the Parties
Position
of the Employer
The Employer states that the only
fact of this case that is unclear is who got the $100 paid for the boat. It claims that circumstances support the
inference that the inmate's wife received it: the transaction was initiated by
a conversation with the inmate and the boat was picked up from his residence
where his wife was present. The officer
who accompanied the Grievant saw no other person.
The Employer goes on to point out
that this transaction was unreported and unauthorized. Moreover, both the transaction and the
relationship with the inmate's family were purposefully concealed by the
Grievant, aggravating the rule violation.
Further aggravating the case is the inmate's record and reputation as a
kingpin of illicit dealings in the institution.
Strict enforcement of the rules
prohibiting dealings and personal relationships with inmates and their families
is essential, the Agency contends, because of the potential security
breach. Personal relationships and
dealings with inmates compromise the officer's ability to perform his job
enforcing institutional rules because he becomes open to manipulation and
blackmail by the inmates. Once an
employee begins dealing, both the employer and fellow employees lose their
trust and confidence in him. Removal is
thus commensurate with the actions of the Grievant. The seriousness of the offense is not in the dollar value of the
transaction, but in its threat to the security of the institution.
The Agency responds to the Union's
argument of disparate treatment thusly:
1. The Jennings case (23-06-891113-0121-01-03, Arbitrator Rivera,
October 5, 1990) sets forth the tests for disparate treatment, which this
Arbitrator is asked to apply.
2. The Franks case (Union Exhibit 1) in which a written reprimand
was issued is distinguished by facts and degree of guilt. Even so, it is but one case and does not
make a pattern.
3. Other cases cited by the Union were either resolved by settlement
agreements (but nevertheless removal was the original discipline imposed) or
were the discipline of differently-situated exempt employees.
4. A review of all agency cases of Rule 39 and 40 violations in the
1989-90 period revealed 37 removals.
Some of these might be distinguished, some may have been settled, but it
is clear that termination is the common penalty across the Agency.
5. Of the nine cases going to arbitration, eight dismissals were
upheld, one overturned. The activities
involved ranged from receiving flowers to sex.
These cases demonstrate the Agency's stand and dispell the disparate
treatment argument.
In conclusion, the Employer asks
that the grievance be denied in its entirety.
Position
of the Union
With respect to facts, the Union
stipulates that the purchase of the boat was arranged through the inmate, but
argues that there is no evidence that the purchase was from the inmate. That is, it disputes the Employer's
contention that the inmate or a member of his family was the recipient of the
$100.
It further disputes the Agency's
contention that the Grievant concealed the transaction. His actions were not furtive: they were done
in daylight and in the presence of another employee who was not cautioned to
hold his tongue. Moreover, the Grievant
cooperated fully with the Agency's investigation and did not even initially
exercise his right to Union representation.
The Union argues that the
Grievant's cooperation in the investigation is not the only mitigating
factor. For his three years of service
prior to his dismissal he was a promising young officer. His disciplinary record was clean and he had
even received a letter of commendation for his role in an incident occurring
after the boat purchase but before it came to light.
The Union goes on to point out
that the picture the Employer paints of the consequences of dealing with
inmates is, in this case, pure speculation.
The inmate in question was released clean nine months after the transaction
and there is no evidence to show that he benefitted from the deal or received
favors or privilege from the Grievant.
The Union concludes that the Employer had not shown the Grievant's
capacity to perform his duties has been reduced, that institutional security
has been compromised, or that either would be negatively affected if he were
reinstated.
The Union further reminds the
Arbitrator that dismissal is not corrective, and no evidence was presented to
show that a less severe penalty would not have that effect.
While not wishing to minimize the
importance of controlling dealing within the prisons, the Union notes that the
disciplinary grid does not require removal on the first offense, permitting
lesser penalties for lesser violations.
What the Grievant did is not of the same degree of severity as dealing
in contraband, guns or drugs on premises, which acts constitute a serious
breach of security. Thus the Union
argues that discharge is not commensurate with the severity of the violation.
Finally, the Union contends that
similarly situated Employees have not been terminated for these rule
infractions, and cites several cases in support of disparate treatment (Keaton,
O'Connor, Sampson, Cavanaugh, Seitz, Berchtold and Franks). With respect to the cases cited by
Management, the Union urges the Arbitrator to read them all and note their
different facts, all revolving around sex or drugs, furtive actions, and
on-premises behavior.
In conclusion, the Union
acknowledges the guilt of the Grievant, but asks the Arbitrator to adjust the
penalty to make it more just, corrective and commensurate with the offense.
VIII. Opinion
Since the Union concedes to the
guilt of the Grievant and no procedural questions are raised, the only issue
for the Arbitrator to decide is the reasonableness of the penalty imposed by
the Employer. Arguments put forth by
the Union would have the discipline reduced for one or more of the following
reasons:
1. Nature of the offense. Discharge is out of proportion to the
Grievant's action. That is, this case
represents a lesser violation for which a lesser penalty is justified.
2. Probability of correction. The Grievant's record prior to and after the
incident make recurrence unlikely if he were to be reinstated.
3. Discriminatory treatment. Similarly situated employees have been
differently disciplined for similar offenses.
4. Mitigation. The disciplinary grid provides for Employer
discretion which should have been exercised in the Grievant's favor because of
his length of service, absence of prior discipline, and cooperation with the
investigation.
At the outset, let it be noted
that the Arbitrator's authority to modify a termination is limited by the
Contract only in cases of abuse, of which this is not one. Nevertheless, this Arbitrator subscribes to
the theory that leniency is for the Employer and, provided just-cause
requirements are met and the discipline is within the bounds of reason, the
Arbitrator ought not to substitute her judgment for that of the Employer. In the instant case, however, I must agree
with the Union that the Employer has exceeded the bounds of reasonableness.
First, with respect to the nature of the offense, I agree with
Nicholas Menedis as quoted by Arbitrator Keenan that "'dealing with
inmates and the introduction of contraband into the prison is so serious that
the only commensurate penalty is removal"' (LeCI-87-D-003-AFSCME re Burg,
November 11, 1988, p. 21). That is not
the case here, though. No evidence has
been offered that Follrod has been responsible for the introduction of guns,
drugs, cigarettes or other contraband into the prison. Nor is it clear that Follrod dealt with the
inmate in the sense of exchanging or negotiating for the exchange of benefit. The most that can be said with certainty is
that the inmate provided information that led to an exchange. It is not at all clear that he owned the
boat, used his influence with the owner, or acted as broker. While I agree with the Employer that an
inference may be drawn from the fact of the wife's possession of the boat and
Berchtold's testimony about seeing no third man, credit must also be given to
Follrod's sworn testimony. Although
his statement is self-serving and he has shown capacity to lie (with regard to
a second visit to the Palmetto address), he has been consistent in this part of
the story, and the Employer, itself, relies on much of the Grievant's version
of events. Moreover, one wonders why he
would invent a third man who could so easily be disputed by the witness. That Berchtold neither saw Follrod go into
the house nor a third man is easily explained by Berchtold's location in the
truck. His testimony on this matter,
therefore, does not effectively rebut Follrod's. Additionally, the Union's point about the openness of the
Grievant's behavior is well-taken. If
he had, in fact, dealt with the inmate, it is logical that he would have been
more secretive, at least to the point of admonishing Berchtold to keep silent
or not using his assistance at all.
Thus, while the inference that the Employer would have me draw is a
reasonable one, sufficient doubt about the ownership of the boat, recipient of
the money and role of the inmate leaves me unconvinced that the inmate or his
wife sold the boat to the Grievant. In
short, the case for dealing with an inmate is insufficiently established.
Turning now to Rule 40, engaging
in an unauthorized relationship, there is no question that the Grievant had an
unauthorized off-premises, off-duty interaction with the inmate's wife. That at least one additional visit to the
Palmetto address followed (albeit after the inmate was released) suggests the
relationship became more involved than mere participation in an
isolated economic exchange. While the
relationship may not have been an extensive one, it gave the appearance of
wrongdoing and therefore left the Grievant open to manipulation by inmates and
distrust by co-workers who became aware of it.
As the Employer points out, in the prison setting an officer's
reputation influences his ability to perform his job through its impact on
relationships with inmates and co-workers.
Hence the rule prohibiting unauthorized off-duty relationships with a
nexus to employment. Somewhere along
the way in this case coworkers of the Grievant and even the Grievant himself
began to question the propriety of his actions. As testified by Officer Berchtold and Warden Zent, knowledge of
and suspicions about the relationship had an impact on the way co-workers and
the Employer thought of the Grievant.
His reputation was tarnished to the point where Berchtold would no
longer socialize with him but, significantly, not to the point where Berchtold
would not work with him. In fact,
Berchtold testified that despite these events, he thought of Follrod as
dependable and that he could count on him in times of need. Thus, while I cannot conclude that what the
Grievant did so destroyed his reputation that he became or would become subject
to inmate extortion or co-worker avoidance, he did take at least the first step
along that path and went beyond the bounds of propriety. Even if he did not believe the inmate owned
the boat, because of the association he ought not to have purchased it or gone
to that particular address without the approval of his Employer. Having done so, he should have reported it
to prevent the opportunity for exploitation that exists when one has a
secret. The Grievant is guilty of
having violated Rule 40 and Rule 23, but the gravity of his offense is not such
as to warrant termination.
Probability of Correction.
Berchtold's testimony about his feelings toward the Grievant, the
Grievant's good record before and after the incident, and the genuine remorse
an motivation to make amends expressed at the hearing persuade me that a
recurrence of this or similar violations is unlikely. I am further persuaded that his work relationships are not so
eroded that his job performance is likely to be unacceptable. Neither has the Employer established that
returning him to the workplace would place the security of the institution at
risk. The existence and circumstances
of the second visit to the Palmetto address are troublesome because they
suggest a continuing association.
However, very little information about it was revealed at the hearing
and the parties stipulated it was not in violation of the Standards of Employee
Conduct. I conclude that corrective
discipline rather than termination is called for.
Discriminatory Treatment.
Numerous cases of the same rule violations have been cited. All have been carefully read. Not surprisingly, not one is very much like
this one. As to the Union's cases, the
outcomes of the Sampson and Cavanaugh cases must be disregarded because they
were the result of settlement agreements.
Seitz and Berchtold were charged with violations of Rule 23
only. The Keaton and O'Connor cases are
similar in that they involve financial transactions, but are distinguished by
the employees' exempt status and evidence of more extensive inmate influence in
the affairs of the employees. Franks
received a written reprimand for attempts to initiate personal relationships
with several female visitors of inmates.
The case has strong sexual overtones and the employee in question denied
knowing the women and the behavior with which he was accused. Warden Zent testified the discipline may
have been justified because this was a soft case based on innuendo and rumor,
and no favors were actually exchanged.
I agree with the Employer that the facts of the Franks case are different
from the case at hand, but not entirely to the Employer's advantage. The Franks case involved multiple
relationships evidently initiated by the employee who denied even knowing the
women. Follrod's is a single
spontaneous relationship acknowledged by him.
Like the Franks case, there are soft elements: the case for dealing is
circumstantial although it is clear that there was an exchange with
someone. The greatest significance of
the Franks case is that it provides one instance of the Employer's flexibility
with regard to violations of Rule 40, even beyond the grid's provision for 5-10
day suspensions on a first offense.
Warden Zent indicated further examples of flexibility as, for instance,
when an employee gives an inmate a sandwich or permits an unauthorized phone
call. Such flexibility is appropriate
to provide for differing circumstances.
The
question is, is it called for here?
When the cases of sustained removals offered by the Employer are
examined in light of the facts of the instant case, I think the answer must by
in the affirmative.
Bastian,
1989. Fraternized with
inmate's sister for 7-8 months without report.
Abused office to obtain benefit of inmate's van (threat and
coercion). Substantial prior discipline
including major suspension.
Burg, 1988. Exchange of money and drugs for work
assignment. Arbitrator held willingness
alone grounds for discharge.
Dill, 1988. Sunglasses exchanged for cigarettes in an
on-premises, intentional barter.
Grievant unremorseful. Prior
progressive discipline.
Johnson,
1990. Fraternized with
inmate. Evidence of multiple and
lengthy phone calls. Apparent intent to
live with inmate on release.
Insufficient evidence of sexual abuse.
Clean 7-year record. Grievant
lied until confronted with evidence.
Krafthefer,
1990. Intimate, physical
relationship with inmate. Direct
security threat (man-down alarm behind locked doors). Prior discipline. 1-1/2 year employee.
McNeal,
1987. Sexual activity
with inmates. Gifts of alcohol and money. Arbitrator held conduct constituted physical
abuse, therefore no authority to modify termination.
Morgan,
1990. Overwhelming
evidence of extensive off-duty non-casual relationship with parolee initiated
at institution. Manipulation of
grievant by parolee. Grievant never
told truth. No prior disciplines. 1-1/2
year employee.
Reed-Werling,
1990. On-duty non-casual
relationship with inmate nurtured and sustained by grievant. Covert exchange of notes, letters, flowers,
pictures. Grievant lied. No prior discipline. 1-year employee.
The sole case submitted by the Employer in which the
discharge was overturned involved an alleged rape of an inmate for which the
arbitrator found insufficient proof.
Thus, all challenged-and-sustained removals were for established
relationships, sex or contraband, and all but one were short-term employees
and/or had
prior records. The instant case, on the
other hand, involves a single financial transaction by a good-record three-year
employee with a tenuous and limited connection to the inmate and his family
member.
Because none of the cited cases is
very like Follrod's, there is no basis for a finding of disparate
treatment. Neither are the cited cases
helpful in establishing a reasonable penalty for Follrod's offense. While serious, his actions are not as
egregious as those previously resulting in discharge. On the other hand, the Franks case and testimony of Warden Zent
establish that the Agency does not, as a rule, uniformly discharge for
violation of Rule 40. Therefore, while
I cannot find that Follrod has been disparately disciplined in comparison to
like cases, I can and do find that a lesser penalty than discharge is called
for by the facts at hand.
Appropriate Penalty. The warden
testified that he took the totality of the circumstances into account when he
decided to remove Follrod. Those
circumstances were principally the reputation of the inmate, his record as a
career criminal, and results of drug tests.
Further aggravating circumstances are the second visit to the Palmetto
address and the Grievant's lie about it in his first interview. These suggest a penalty harsher than the
minimum 5-10 day suspension called for on the grid. Mitigating circumstances such as the Grievant's record and the
seriousness and extent of the infraction have already been taken into account
in the decision to overturn the dis-charge and afford the Grievant an opportunity to
correct his behavior. The Grievant will
be returned to his job and suspended for thirty days.
IX. Award
The grievance is sustained. The Employer did not have just cause to
remove the Grievant, Accordingly, the discharge is reduced to a thirty-day
suspension without pay or benefits. The
Grievant is to be reinstated to his former position as Correction Officer 2 and
otherwise made whole. Back pay is to be
reduced by such interim earnings as the Grievant may have had and he is to
supply the Employer with such evidence of earnings as it may require.
Anna D. Smith, Ph.D.
Arbitrator
Shaker Heights, Ohio
January 7, 1991