ARBITRATION DECISION NO.:
317
UNION:
OCSEA, Local 11, AFSCME,
AFL-CIO
EMPLOYER:
Department of Youth
Services
Buckeye Youth Center
DATE OF ARBITRATION:
October 26, 1990
DATE OF DECISION:
January 21, 1991
GRIEVANT:
Mary Peal
OCB GRIEVANCE NO.:
35-02-(90-05-02)-0170-01-03
ARBITRATOR:
Anna Smith
FOR THE UNION:
Robert W. Steele, 1st
Chair;
Ronald Stevenson, 2nd Chair
on October 26, 1990
John Fisher, 2nd Chair
on December 17, 1990
FOR THE EMPLOYER:
Barry Braverman, 1st Chair;
Meril Price, 2nd Chair
on October 26, 1990
Sally Miller, 2nd Chair
on December 17, 1990
KEY WORDS:
Removal
Unauthorized Relationship
with a Youth
Procedural Violations
Failure to Attend
Pre-Disciplinary Hearing
ARTICLES:
Article 24
Article 25
FACTS:
The grievant works for the Buckeye Youth Center as a Youth
Leader 2. This work assignment meant
dealing with more troublesome youths.
The grievant bad been working there for less than a year and had
accumulated two disciplines: a written reprimand for making an escape possible
and a 10-day suspension for the use of physical force against a youth. In the fall of 1988, management questioned
the grievant about a rumor that she was engaged in a questionable relationship
with a youth. There were vague rumors
that the grievant had kissed a youth.
There was no charge, but the grievant was counseled on how to avoid
overtures by the youth. Later reports indicated that there was
sexual activity between the grievant and a youth. At the end of March the State, based on the testimony of three
youths, removed the grievant for giving a youth tobacco and allowing phone
calls to be made in exchange for sexual favors. The youths claimed they saw one youth with his pants down and a
newspaper covering his torso while the grievant moved her hand up and
down. The grievant and the union
steward did not attend the Pre-Disciplinary meeting. There was a dispute concerning why the grievant or the union
representative did not attend.
EMPLOYER’S POSITION:
The grievant's ability to perform her job
is compromised to the point of not being able to effectively perform her
job. She was counseled on how to handle
the advances of youths and had notice of Work Rule 21: Displaying immoral or
indecent conduct on or off Department premises. If the grievant was reinstated the
arbitrator would be giving a license to youths to make overtures to staff and
subject staff to extortion attempts and blackmail. The youth's mother also testified that the grievant smoked a
joint in the parking lot and even gave her marijuana.
The employer did not immediately discipline the grievant
because time was needed to make an investigation. The employer is required to make a fair investigation prior to
disciplining employees. The Union was
also notified of the Pre-disciplinary Hearing and the absence of both the
grievant and Union representation is not fatal to the State's case since the
parties voluntarily decided not to attend.
The next procedural issue raised by the Union of no notice of
discipline is not a harmful error; the grievance was filed timely. The purpose of this requirement is to allow
a timely filing of a grievance which
was done.
UNION’S POSITION:
The grievant should not be discharged for vague rumors started
by the youth. Three of the four youth
witnesses were incarcerated in the Department of Youth system for sex related
offenses. The youth's mother is not a
credible witness; she waited over a year to report the alleged parking lot
incident.
The State's case is riddled with
procedural errors. First the discipline
was not timely imposed. A meeting
about these allegations was held in September of 1988. The Union did not receive notice of the
pre-disciplinary hearing which should be taken into consideration when deciding
the merits of the case. The State
also violated the due process requirements of discovery by withholding the
files of the youth witnesses. The Union
could not adequately cross examine these witness because of this procedural
defect.
ARBITRATOR’S OPINION:
The first issue is timeliness.
The employer did not delay discipline arbitrarily or capriciously but
simply dropped the matter for lack of evidence. The time delay does prejudice the grievant's case because of the
decay in the quality of evidence. None
of the witnesses can remember exactly when the event occurred. The second procedural issue is the lack of
notice. The arbitrator found from the
facts that the Union and the grievant were properly notified. The third issue is the improper
discovery. The Union was not given
relevant information specifically the youth's statements. Even though the Union knew the names of the
four witnesses the State argued that the statements must be kept secret for the
protection of the four youth. The State's argument for not providing the
Union with these requested statements is without merit. A continuance
was granted in this case which diminished most of the problems the Union faced
in preparing its defense.
One area in which the State could not
reduce the hardship on the Union and grievant in preparing a defense was its
lack of specific details on when the grievant committed these acts. The argument by the State that the grievant
did it sometime in September of 1988 is an irrebuttable presumption. The grievant is left with the bare
alternative of denying the incident.
The State's case is not overwhelming; three of the four witnesses are
youth with a history of unacceptable sexual activity. The State's evidence is not enough to sustain the charge,
especially in light of the due process problems.
AWARD:
The grievant will be reinstated with back pay and benefits and
this incident will be expunged from her record.
TEXT OF THE OPINION:
In the
Matter of Arbitration
Between
THE STATE OF OHIO,
DEPARTMENT OF YOUTH SERVICES
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.:
35-02-900502-0170-01-03
Removal of Mary Peal
I. Appearances
For the State of Ohio:
Barry Braverman, Advocate,
Ohio Department of Youth Services
Meril Price, Second Chair
on October 26, 1990, Office of Collective Bargaining
Sally Miller, Second Chair
on December 17, 1990, Office of Collective Bargaining
Rufus L. Thomas,
Superintendent, Buckeye Youth Center, Witness
Anna Mills, Witness
Three
youth (J.C., A.M., and F.M.) currently or formerly under the custody of the
State
of Ohio, Witnesses
Jim
Goshay, Steward, Witness
For OCSEA/AFSCME Local 11:
Robert W. Steele, Staff
Representative and Advocate
Ronald Stevenson, Staff
Representative and Second Chair on October 26, 1990.
John Fisher, Second Chair
on December 17, 1990.
Mary Peal, Grievant
Tim Ayers, Social Worker 4,
Witness
Dannie Fairley, Chapter
President and Chief Steward, Witness
II. Hearing
Pursuant to the procedures of the Parties a hearing was held at
11:00 a.m. on October 26, 1990 at the offices of the State of Ohio office of
Collective Bargaining, 65 East State Street, Columbus, Ohio before Anna D. Smith,
Arbitrator. Prior to the start of this
hearing the Union moved for a postponement, stating that it had not received
documents requested from the Employer until that morning. Said motion to postpone until a later date
was denied in view of the assembled witnesses.
However, the hearing was postponed for two hours and a continuance
granted at the conclusion of the Employer's case to permit the Union adequate
time to prepare. Said hearing was
continued at 9:15 a.m. on December 17, 1990 at the offices of the Ohio Civil
Service Employees Association, 1680 Watermark Drive, Columbus, Ohio. 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, December 17, 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 discharged for just cause? If
not,, what shall the remedy be?
IV. Stipulations
The Parties stipulated to
the following facts:
1) The Grievant was a Youth Leader 2 at Buckeye Youth Center;
2) The Grievant started as a Youth Leader 2 on January 4, 1988;
3) The Grievant was working on Group 52 in the institution;
4) A youth, F.M., was housed in the Buckeye Youth Center at Group 52
and was under the care of the Grievant;
5) The Grievant has prior discipline:
4/5/89 - Written Reprimand
3/6/90 - Ten (10) Day Suspension;
6) The Grievant was removed for violations #21 DYS Directive B-19 and
Ohio Revised Code Section 124.34;
7) The Grievant was terminated on April 30, 1990;
8) The case is properly before the Arbitrator.
In addition, the following
documents were received as joint exhibits:
1A) State of Ohio/OCSEA Local 11 Contract, 1986-89;
1B) State of Ohio/OCSEA Local 11 Contract,
1989-91;
2) Grievance Trail;
3) Discipline Trail including Notice of Investigation package
and Pre-Disciplinary Package, the latter of which includes prior disciplines in
the file at the time;
4) DYS Directive B-19, "General Work Rules."
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. In cases involving
termination, if the arbitrator finds that there has been an abuse of a patient
or another in the care or custody of the State of Ohio, the arbitrator does not
have authority to modify the termination of an employee committing such abuse.
§24.02 - Progressive Discipline
The Employer will follow the principles of progressive
discipline....
Disciplinary action shall be initiated as soon as reasonably
possible consistent with the requirements of the other provisions of this
Article. An arbitrator deciding a
discipline grievance must consider the timeliness of the Employer's decision to
begin the disciplinary process.
§24.04 - Pre-Discipline
An employee shall be entitled to the presence of a union
steward at an investigatory interview upon request if he/she has reasonable
grounds to believe that the interview may be used to support disciplinary
action against him/her.
An employee has the right to a meeting prior to the imposition
of a suspension or termination. The
employee may waive this meeting, which shall be scheduled no earlier than three
(3) days following the notification to the employee. Prior to the meeting the employee and his/her representative
shall be informed in writing of the reasons for the contemplated discipline and
the
possible form of discipline. When the
pre-disciplinary notice is sent, the Employer will provide a list of witnesses
to the event or act known of at that time and documents known of at that time
used to support the possible disciplinary action. If the Employer becomes aware of additional witnesses or documents
that will be relied upon in imposing discipline, they shall also be provided to
the Union and the employee....
§24.05 - Imposition of Discipline
... If a
final decision is made to impose discipline, the employee and Union shall be
notified in writing. The OCSEA Chapter
President shall designate the Union representative who shall receive such
notice who is assigned to selected work areas under the jurisdiction of the
Chapter.
Article 25 Grievance Procedure
§25.08 - Relevant Witnesses and Information
The Union may request specific documents, books, papers or
witnesses reasonably available from the Employer and relevant to the grievance
under consideration. Such request shall
not be unreasonably denied.
VI. Background
The Ohio Department of Youth Services is charged with the
confinement of high-risk, violent, serious juvenile offenders in secure
facilities for public safety and offender rehabilitation. During the youths' confinement, the
Department is their legal custodian and responsible for their welfare. As such, the Department provides basic
necessities such as housing and clothing, medical and psychological treatment,
and education and vocational training.
The Buckeye Youth Center is one of the Department's facilities. With a staff of 200, it houses 387-400 youth
felony offenders.
At the time the alleged incidents took place, the Grievant,
Mary Peal, was working as a second shift Youth Leader 2 <PAGE NAME="6">on Group 52 of the
institution. In this capacity she had
direct charge of the youths entrusted to her care. Group 52, it should be noted, usually housed the more troublesome
youths. Ms. Peal had less than a year
of service at Buckeye, having been employed on January 4, 1988. She had received pre-service training on the
work rules under which she was removed (Employer Exhibit 3). At the time of her removal on April 30,
1990, she had two prior disciplines on her record: a written reprimand for
making an escape possible and a 10-day suspension for physical force against
youth (Joint Exhibit 3).
In the fall of 1988, management (Robert Pritchett and John
Carter) met with the Grievant and Dannie Fairley to discuss certain allegations
against her. Supt. Thomas testified that he did not know about
these allegations at the time, but when he learned about the meeting during the
processing of this grievance, the supervisors represented them to be rumors of
favoritism towards one F.M., a youth entrusted to the care of the
Grievant. Fairley and Peal testified
that F.M. had told Fairley that he had kissed Peal, and that Fairley reported
it. At the time no further action was
taken as the youths had nothing to say at the meeting and no one corroborated
the story. According to Supt. Thomas, the charge was considered to be
"vague rumors--not enough substance to go further than talk with Peal
about what had been said" about her.
Peal and Fairley said she was counseled on how to handle herself with
male youths to protect herself from these kinds of charges.
Superintendent Thomas was unaware of possible sexual activity
between the youth and the Grievant until late February or early March 1990,
when Bill Mullens of the Department's central office contacted him and told him
that an informant had levied charges against several people at Buckeye,
including Ms. Peal. The Highway Patrol
proceeded with its investigation and Mr. Thomas with his. Statements from two of the youth involved,
F.M. and T.T., were taken by Supt.
Thomas at T.I.C.O. on March 9, 1990.
Staff took statements from two other youths, A.M. and J.C., who were
then at Indian River School.
Thomas further testified that the activity with which the
Grievant is charged compromises her ability to function on the job. The actions are particularly inappropriate
because of the developmental level of the male youths. Reinstatement, he said, would give license
to youth to make overtures to staff and subject staff to extortion attempts and
blackmail.
The Charges
Three of the youths from whom statements were obtained
testified at the arbitration hearing.
J.C. testified that while he was at Buckeye, F.M. told him that Peal had
done "stuff for him," including "jackin' off." Nobody
believed F.M. Then one youth told J.C. to look in the staff office. J.C. saw F.M. sitting with a paper held in
front of his lower torso. Peal’s hand
was behind the paper. F.M. also told
him Peal and he had masturbated each other in the commissary, but J.C. did not
see these encounters. On
cross-examination this witness restated that F.M. had told him these things. He also said that he had not actually seen
the "jackin' off and fingering."
A.M., F.M.'s roommate at Buckeye, testified that F.M. had told
him about sexual favors provided by the Grievant, and that he had seen F.M. and
Peal together in the office. F.M.'s
pants were down, he held a paper in front of himself, and Peal’s hand was
behind the paper. A.M. looked from the
side and could see Peal’s hand moving. on cross, he also said that F.M.'s penis
was out. No other Youth Leader was
around at the time. A.M. further
testified that he, too, had been the recipient of sexual favors from the
Grievant and had been supplied with cigarettes and marijuana. Later Peal had written him up, made him look
bad to the staff and punched him. Then
he was shipped to T.I.C.O.
At the arbitration hearing, the Grievant's chief accuser, F.M.,
initially denied sexual activity between himself and the Grievant. He stated that he did not want the Grievant
to lose her job. After a brief recess
he agreed to testify. The Union
objected to his testimony on the grounds that the Employer advocates had spoken
to the witness during the recess. The
Arbitrator over-ruled, but the witness again refused to testify. After a lengthier recess, during which the
Arbitrator talked with the witness off the record in the presence of Mr. Steele
and Mr. Thomas, he again agreed to testify.
Now he admitted that the Grievant had touched him when they stayed back
from dinner, that she had masturbated him to ejaculation 10-15 times,
and that she had given him cigarettes but no joints, and allowed him the favor
of phone calls. He further named
several people who knew about it, including Dannie Fairley. On cross-examination he confirmed Mr.
Fairley's prior knowledge and the 1988 meeting where the rumor of his
relationship with Ms. Peal was discussed.
He said he signaled the others not to say anything.
F.M.'s mother also testified.
She stated that Ms. Peal had befriended her, given her baby gifts with
two marijuana joints tied to them and that on another occasion the two women
had smoked a joint together in the parking lot of the institution. Peal, Ms. Mills said, had supplied the
drug. She further testified that her
son told her Peal had kissed him and rubbed his penis, and had allowed him to
touch her breast in the visiting room.
Her son did not want her to take Peal’s gifts, but she did anyway. She did not report these contacts and favors
when they occurred--maybe in 1987--because they were illicit. Only when contacted by Sgt. Lloyd and asked about Peal did she say
anything. She admitted she had not seen
Peal touch her son sexually, but stated that her son does not lie to her.
For her part, the Grievant denied the charges and said that she
had had problems with the three youths.
A.M. and J.C. were defiant and verbally abusive. She had had to write up all three. She further testified that this issue had
been taken to court and dismissed on a bond forfeiture, an outcome she agreed to on
her lawyer's advice. on cross-examination she denied that she and F.M.'s mother
had become friends, but admitted that she had given her baby gifts.
Tim Ayers, Social Worker 4 at the institution, worked on the
group to which the three youth and the Grievant were assigned. He testified
about his knowledge of the three youths.
A.M., he said, had continuous problems with the Youth Leaders, including
Peal, and was assigned to the Severe Behavior Handicapped class. He was a sex offender and a very deceptive
chronic liar.
Ayers could not recall why J.C. was transferred to Group 52,
but did recall that he was a sex offender and thought the other social worker
on the group had had him in her sex offender group. He characterized J.C. as a dangerous person who had inserted a
gun in a female youth's vagina.
The youth F.M. was directly charged to Mr. Ayers. Ayers testified to F.M.'s inappropriate
behavior with females, such as holding his sex organs in front of them, his
belief that adult women liked him, and his shallow relationship with his
mother. F.M., he said, dominated his
mother. The Release Summary Report
prepared by Connie Jaycox for Mr. Ayers states in part,
“Even then [F.] has a gift
at manipulating people and has been at least partially successful at times at
convincing certain adults that what some staff labeled as negative behavior was
in truth a misrepresentation of what he actually did or at the very least a
misrepresentation of what he intended to do.
[F.] has had a number of
problems with female staff in which he has been challenging and/or verbally
sexually provocative/inappropriate.
[F.] has been involved in
several serious problems with peers. He
has been written up for numerous horseplay and several "sex play"
incidents.”
Union
Exhibit 3, page 6.
In sum, Ayers agreed that
the three youths were very incorrigible, three he would never forget. Given that they were problem youths,
however, he also stated that they could tell the truth.
Dannie Fairley, Youth Leader at the Department of Youth
Services for thirteen years and Chapter President, also testified about the
youths, who had been on his group. His
testimony substantially corroborated that of Ayers regarding the behavior of
the youths in the institution and their truth-telling capability. Finally, he said that the three were all
from Columbus.
After each Party rested its case and the Employer had given its
oral summation the Union attempted to introduce additional evidence. Finding that this evidence further addressed
the credibility of one of the witnesses and was available for submission prior
to closing statements, the Arbitrator sustained the Employer's objection.
The Discipline Process
The circumstances under which Peal was disciplined and her
grievance processed form the basis for several union objections and, the Union
claims, grounds for reversal of the remov-al. They therefore need to be
reviewed before the contentions of the Parties are set forth.
The day that the Grievant was served with the Notice of
Investigation and Pre-Disciplinary Hearing Notice, March 22, she was on sick
leave. Supt. Thomas was aware that she had or would come in for her check, so
he sent word that she was to come to his office. No union steward was present at Buckeye, so one from the
adjoining Training Center for Youth was sent for. This was Jim Goshay.
Supt. Thomas explained the
nature of the issue and served the Notice of Investigation, Pre-disciplinary
Hearing Notice, notice placing Ms. Peal on administrative leave, and gave Ms.
Peal her paycheck. Ms. Peal commented
that she hoped her foot would not prevent her from attending the hearing (her foot
had been giving her trouble and she was on crutches). Thomas testified that he discussed the two youth statements dated
March 9 (those of F.M. and T.T.) with Peal and the steward. He could not remember if he read the
statements in their entirety, but he did go over them in response to Peal’s and
Goshay's questions. He did not give
them to Peal or Goshay. The statements
of the other youths, J.C. and A.M. (marked as received on April 6, 1990) were
not available at the time.
Goshay and Peal spoke privately. She denied the incidents and said she would consult another
steward whom she knew, Dannie Fairley.
She said she would call one of them.
Goshay did not hear back from her.
At the time Goshay was upset that Peal was on sick leave when given
the notice. He had never before been
called on to represent an employee on sick leave. He further testified that sometimes management provides youth
statements when serving the notice, sometimes not until the pre-disciplinary
hearing.
Ms. Peal testified that she spoke to Fairley about the matter
on March 22, asking that the pre-disciplinary hearing be rescheduled. Everyone knew she could not be there, she
said. Fairley told her to wait to hear
from him because the hearing would be rescheduled.
Fairley testified that he spoke to Supt. Thomas and arranged to have the hearing
rescheduled. Supt. Thomas, on the other hand, testified that
Fairley did request a postponement, but on the day of the hearing. He claimed he denied the request. The reason he gave in arbitration was that
neither he nor the hearing officer had had any direct contact with her and the
time of the hearing was the first they had heard the request. Given the importance of the matter he
allowed the hearing to proceed. His
opinion was that although she was on crutches when he had seen her on March 22,
he felt she was able to attend the hearing on March 26 because she had been
able to come in for her paycheck on March 22.
The hearing did go forward as scheduled on March 26, with
neither Peal nor a union representative in attendance. Based on the statements obtained from the
four youths, the hearing officer recommended discipline. Supt.
Thomas reviewed the hearing officer's summary and concurred. On April 30 Ms. Peal was removed for
engaging "in sexual activities with a youth entrusted into the care of the
Department and [she] supplied him with tobacco [SIC] products.... 11 in
violation of General Work Rules Chapter B-19 and §124.30 O.R.C. (Joint Exhibit
2). The rules cited on the Notice of
Investigation were 6 and 12:
6. Possessing and/or consuming drugs
including alcohol on the Department property or during working hours; reporting
to work under the influence of drugs, including alcohol; giving or making
available to youth drugs, including alcohol.
If an employee is taking medication for a health related condition this
must be communicated to the employee's supervisor at the beginning of the
shift, along with any information regarding known side effects which may affect
the employee's work performance.
21. Displaying immoral or indecent conduct on
or off Department premises.
Joint
Exhibit 4
Fairley testified that Peal called him to say she had been
terminated, a fact she said she discovered when she called in to say she was
able to return to work. The Union,
however, was not officially informed of the removal. Fairley called Supt.
Thomas who told him the pre-disciplinary meeting had been held in
absentia. Thomas, Fairley alleged, did
not remember who the hearing officer was or remember the prior conversation
with Fairley about postponement.
The Grievance
Fairley did not receive any paperwork about the pre-disciplinary
hearing, so he filed a grievance on May 3, 1990, based on conversations
with Peal. He charged the Employer with
violating the following sections of the Contract: Preamble, §1.01 Exclusive
Representation, §2.01 Non-Discrimination, §2.02 Agreement Rights, §2.03 Affirmative
Action, §3.01 Union Rights Access, §3.02 Union Rights - Stewards, §24.01
Discipline Standard, §24.02 Progressive Discipline, §24.03 Supervisory
Intimidation, §24.04 Pre-Discipline, §24.05 Imposition of Discipline, and
§24.06 Prior Disciplinary Action (Joint Exhibit 2). He included a 4-1/2 page statement of facts and requested the
following documents and witnesses:
Documents:
1. Copy of second pre-disciplinary hearing notice sent to Union &
Peal [SIC]
2. Copy of Hearing Officer's Report
3. Copy of Termination (Removal notice [SIC])
4. Copy of Robert Pritchett’s [SIC] investigation report (the lst
report) September 1988
5. Copy of DYS "Just Cause Form"
6. Copy of Highway Patrols [SIC] Investigation report
7. Copy of Prosecutor's Report
8. Copy of (10) day suspension order
9. EEOC Officers (SIC] report
10. Copy Mary Peal 10 day suspension.
Witnesses:
John Carter
Robert
Pritchett
Rufus
Thomas
Connie
Jaycox
Tim Ayers
Dannie Fairley
Harry Doty
Mike Guess
Ms. Lemmon
Youths: F.M., A.M., T.T., T.H., J.C. [the latter not
being the same J.C. who testified at the arbitration hearing]
DYS EEOC Officer.
Joint
Exhibit 2
<PAGE NAME="16">
Fairley represented Ms. Peal at the third step meeting, June 8,
1990. She, however, was not there. Fairley testified that Management could not
explain why she had not been notified.
He, himself, had learned of the meeting indirectly through Ron
Stevenson. He said Management could not
explain why the Grievant had not been informed. Mr. Fairley got some of the things he had requested, but a number
of documents were still missing, e.g., witness statements, the removal order,
and files on the youths. The meeting
proceeded without the Grievant. The
outcome was Management's denial of the grievance, but without addressing all
issues raised in the written grievance.
The matter was subsequently appealed to arbitration.
In preparing for arbitration, Robert Steele of OCSEA on October
11 and 15 sought certain documents and facts:
1. Specific date and time when incident occurred.
2. Statement from [F.M.'s] mother.
3. All highway patrol reports and documents relevant to this case,
dating back to September 1988. When did
patrol investigation end?
4. All institutional reports and documents relative to this case,
dating back to September 1988.
5. All background information on the four youths who wrote
statements, i.e., charges, ages, etc.
6. Where are youths presently, and if released where are they
residing?
7. Any and all other written statements pertaining to this case.
8. All discipline records for others who were disciplined for same or
similar violations.
9. Specific discipline records of Jackie LaLonis and Carnie Anthony
including N.O.I., prediscipline reports and third step hearings.
Union Exhibit
1, October 11
1. All incident reports written on youths [A.M., J.C. and F.M.]
during the time period of 1/88 to present date.
2. All paper work pertaining to the three youths as to when they were
put on backhall and isolation.
3. All paperwork as to why [F.M.] was sent from group 54 to group 52.
Union
Exhibit 1, October 15
Most of these items were supplied or responded to on the
morning of the arbitration hearing. The
Employer took the position that others did not exist or were missing,
specifically
1. Specific date of time of incident: only month and year known;
2. Anna Mills' statement: none;
3. Date highway patrol investigation ended: Employer does not know if
ended. File supplied;
4. Discipline file dating back to September 1988: no record of
investigation in 1988; balance supplied;
5. All else: there is no more;
6. Discipline record for similar offenses: only similar case
(Stockling) was settled October 12, 1990.
7. Paperwork on why F.M. transferred: search did not discover. Probably lost in transfer of records.
The Union further stated that while files on the youth
witnesses were brought to the first day of the arbitration hearing, copies were
not provided on the J.C. and A.M. files until the next working day and the
missing material on F.M. was provided two working days before the second day of
hearing.
VII. Positions of the Parties
Employer's Position on the Merits
The Employer argues that it has convincing evidence that the
Grievant violated a reasonable work rule and that the penalty imposed is
commensurate with the offense and the Grievant's background.
Evidence. Testimony of three youth witnesses shows
that the Grievant engaged in sexual activities with youth while on duty
and allowed other youths to watch. She
provided them with special favors, cigarettes and marijuana. When the situation got out of control, she
wrote incident reports on the youths.
Although these witnesses are troubled youths, they are nonetheless
credible in their testimony. They do
not live near each other and have not seen each other for an extended period of
time. Their stories have remained the
same throughout.
In addition, there is the testimony of the mother of one of the
youths, which supports her son's story.
She also testified that she saw the Grievant smoking a joint in the
parking lot of the institution and was herself given marijuana by the Grievant.
Reasonable Rule. Superintendent Thomas's testimony shows that
this behavior, as well as interfering with the Grievant's ability to perform
her job, jeopardizes other staff and the youths entrusted to their care.
Penalty. His testimony further establishes the harm
that would result from returning the Grievant to the workplace. Removal, the Employer claims, is thus
commensurate with the violation.
Moreover, the Grievant's prior discipline history and relatively short
tenure further supports that the removal is justified.
Employer's Position on the Union's Due Process Arguments
Timeliness (§24.02). The Employer claims its action was
timely. It acted within a reasonable
period of time upon notice from the Highway Patrol which was conducting its own
investigation. If the Union's argument were to prevail, the
Employer would be required to take disciplinary action on every rumor without
first determining the foundation of the claim.
Pre-Discipline Without Notice
(§24.04). The Union's claim
is not true. The Grievant was served
with Notice of Investigation and Notice of Pre-Disciplinary Hearing in the
presence of a Union steward. The
Union's argument is also absurd, for it would permit the Union and Grievant to
purposefully absent themselves from the pre-disciplinary hearing to contrive a
fatal flaw.
No Notice of Discipline
(§24.05). Even if the Union's
claim that it did not receive the removal notice is true, no harm was
done. According to the Employer, the
purpose of this requirement is to allow the Union to file a grievance if the
employee overlooks contractual rights.
In this case a grievance was timely filed on May 3. Hence, no harm was
done. The Employer also claims that the
Darnell Brown case (G-87-1299) cited by the Union is with respect to a
different issue and thus does not apply here.
Step 3 Response. The Employer argues that it has not been the
practice of the Parties to discuss every issue and Contract article mentioned
in the grievance at the Step 3 meeting.
Never before has there been an issue of the substance of a Step 3
response. The Employer also states that
at the Step 3 meeting the Union did not request or discuss documents, nor did
it claim disparate or discriminatory treatment. The pre-discipline hearing, administrative leave and
evidence were discussed. The Employer's
position is that the Step 3 meeting was properly held and it responded properly
to all issues raised.
Employer's Position on Other Issues
Disparate Treatment. The Employer refers the Arbitrator to
Arbitrator Rivera’s Jennings decision (23-06-891113-0121-01-03) and
contends that the cases referred to
by the Union (LaLonis and Anthony)
do not qualify under the first of the tests set forth by Arbitrator Rivera.
Citation of O.R.C. The Employer refers the Arbitrator to her
own previous decision (Stevens 35-03-890810-46-01-03) in which she held
that citation of §124.34 O.R.C. on the removal notice does not in itself
constitute grounds for overturning the removal.
In conclusion, the Employer asserts that it had just cause to
remove the Grievant and asks that the grievance be denied in its entirety.
Position of the Union
Timeliness. The Union raises as the threshold issue the
matter of timeliness. It contends that
the Employer first became aware of the allegations against the Grievant in
September 1988, not during the Highway Patrol investigation as claimed by the
Employer. A meeting was held in
September 1988 between members of Management, the Union and the Grievant about
the allegations. This meeting was
perceived as an investigatory interview.
Moreover, the Union did not receive notice of the pre-disciplinary
meeting nor a pre-disciplinary packet.
Asserting that these constitute violations of §24.02, 24.04 and 24.05 of the Contract and pointing
out that §24.02 requires an arbitrator to consider the timeliness of the
Employer's decision to begin the disciplinary process, the Union requests a
ruling on these procedural violations before going to the merits of the
case. As a remedy to the procedural
violations it seeks reinstatement with all back pay, overtime and benefits, and
that the Grievant be made whole.
Relevant Documents. The Union raises the additional due process
issue of discovery, claiming a violation of §25.08. By the Employer's
withholding of files on the youths, the Union was hampered in its defense of
the Grievant because it could not adequately cross-examine these
witnesses. In support of its position
it cites Arbitrator Rivera in the Darnell Brown (G-87-1299) and T. Turner
(35-16-900502-0032-01-03) cases.
Merits. The Union attacks the Employer's claimed
weight of evidence along several lines.
First, it challenges the credibility of the youth witnesses. These youth, it contends, were problematic
when they were in the custody of the Department and after release. They were either convicted of sex crimes or
moved within the institution because of sexual gestures or other inappropriate
conduct. The testimony of two Union
witnesses supports the position that the youths lied and set up the
Grievant. The youth ran together at
Buckeye Youth Center and
had the opportunity to do so after release.
They therefore had the opportunity to fabricate the charges. The Union would have introduced additional
evidence in the form of an incident report on one youth, but was prevented from
doing so by the Employer's objection which was sustained by the Arbitrator.
The Union contends that the youth's mother is not a responsible
person or credible witness or she would not have waited over a year to say
anything. Surely, it says, she had
nothing to fear from the Grievant.
The Union also asserts that in agreeing to a bond forfeiture,
the Grievant did not admit her guilt in this matter.
In conclusion, the Union contends that the Employer has not
proved its case. It has merely
subjected the Grievant to double jeopardy and procedurally erred
throughout. It asks that the Grievant
be reinstated, granted all lost wages, benefits and overtime, and made whole.
VIII. Opinion
Timeliness
The threshold issue is whether the existence of the September
1988 meeting blocks consideration of the merits of the case. The Union holds the view that the Employer
waited too long after this meeting to take disciplinary action and that this
constitutes a violation of §24.02 and a fatal flaw. The Arbitrator agrees with the Employer that it did not
capriciously or arbitrarily delay its disciplinary action, thereby subjecting
the Grievant to the hardship of a threatened penalty for 18 months and
preventing the Union from collecting evidence with which to defend its member. Rather, it dropped the matter for lack of
evidence in 1988, and took it up again when new evidence came to light from an
entirely different source.
Significantly, the Employer had no control over its notification by the
Inspector General’s office and it acted promptly upon being notified. However, both the Employer's and Grievant's
cases are harmed by the eighteen month delay because of decay in the quality of
evidence. Thus, no one remembers
exactly when the alleged incidents occurred.
This makes it impossible for the Union to refute the charges by, for
example, placing either the youth or the Grievant elsewhere. In the absence of overwhelming evidence that
the Grievant is guilty, this would be enough to overturn the removal. I shall return to this below.
The Union also advances a theory of double jeopardy: the case
was tried once in 1988 and again in 1990.
This argument is misplaced, for it falsely assumes a full hearing in
1988.
Lack of Notice
Another issue raised by the Union is the allegation that it did
not receive a pre-disciplinary notice in violation of §24.04. It is clear that
the Union was notified in writing of the March 26, 1990 meeting because its
steward, Jim Goshay, signed both the Notice of Investigation and Pre-Disciplinary
Meeting Notice. The Union did not
suggest that Mr. Goshay was unauthorized to be the recipient of the
notification as provided in §24.04, so it must be assumed that, as a Union
officer, he qualified. Moreover, it is
clear from the testimony of the Chapter President, Superintendent and Grievant
that the Union was aware of the meeting, or it would not have sought a
postponement. The failure of the
Employer to mail a separate written copy of these notices at the time they were
served cannot be said to have prejudiced the Grievant. Her absence and that of her representatives
from the pre-disciplinary meeting were not the result of lack of notification.
List of Witnesses and Documents
What is more troublesome is the withholding of the so-called
"pre-disciplinary packet" of list of witnesses and documents, and
subsequent withholding of other relevant information. The Department made its customary argument that it never provides
youth statements until arbitration to protect the youths from threats or acts
of retaliation. This argument is
misplaced in the instant case, for none of the four youths were incarcerated at
Buckeye when the notice was served. The
argument is similarly without merit as an answer to the Union's charge that the
youths' statements were not provided at the pre-disciplinary or Step 3
meetings. Moreover, it is clear from
the grievance that the Union knew the identity of three of the four youths by
May 3 (Joint Exhibit 2). What can have
been the point of withholding their statements once their identity was
known? It is equally clear that the
Employer considered the statements in imposing discipline,
notwithstanding Thomas's claim that he disregarded J.C.'s and A.M.'s statements,
for all four are discussed in the pre-disciplinary hearing officer's report
(Joint Exhibit 3). The Employer,
therefore, had the contractual duty to supply them to the Union and its
justification for withholding them--protection of youth--is without merit.
Relevant Documents
The Union requested specific documents bearing on the case on
May 3, 1990 on the grievance form. Some
were provided at the third step meeting.
Specific documents and information were also requested October 11, 1990,
two weeks prior to arbitration. More
documents were requested on October 15.
Of those that existed, the removal notice, youths' files and the Highway
Patrol file were not supplied until the morning of the arbitration. (However,
notes on the latter had been provided the preceding week.) Both the removal
notice and Highway Patrol report had been requested as early as May 3. It was
on the basis of the last minute delivery of these files that a continuance was
granted to the Union. The seven-week
period between hearing days allowed the Union ample time to prepare. The Union nevertheless claimed not having
the files prior to the Employer's case hampered its cross-examination of the
Employer's witnesses, specifically the youths.
They did not, however, seek to recall any of these witnesses on the
second day of hearing, and so the Arbitrator doubts more would have been forthcoming
had the Union gotten the files when they were first requested. All the same, the Employer agreed in §25.08
to supply relevant and reasonably available documents. The Union's request was specific, the
documents relevant and reasonably available.
The Employer did not respond until the morning of the hearing and gave
no reason it could not do so earlier.
While much, if not all, of the harm was undone by the continuance, the
timing was unfair since it made the Union's preparation more difficult. It also constituted a violation of §25.08.
Other Issues
There are some additional features of this case that were
globally referred to in the Union's oral summation as Employer procedural
errors:
1. Pre-disciplinary
hearing and Step 3 meeting. The
Union alleges and the Employer denies that the Parties agreed to postpone the
pre-disciplinary hearing because of the Grievant's health. The Employer agrees that the Union requested
the postponement, but denied it because the Superintendent doubted the
Grievant's inability to attend and it was a last minute request. The Grievant testified that she thought she
spoke to Fairley about it on the day of the hearing because she had not been
notified (as he had told her she would be) about its being rescheduled. The pre-disciplinary hearing notice, which
was signed by the Grievant and a steward plainly states,
“This is your formal notice
of the meeting. If there are no
changes, you will receive no further letters.
You are directed to attend the meeting unless you wish to waive your
right to this meeting by informing the Superintendent in
writing, stating that you accept the proposed discipline.”
Joint
Exhibit 3
It is plain that the
testimony of the Superintendent and that of the Chapter President are in direct
conflict. Neither Party has supporting
evidence. The Grievant did not waive
her right to a hearing nor request a postponement in writing. Neither did she or the Union receive written
notice of postponement. The Arbitrator
is somewhat more inclined to believe the Employer's version of events because
the Grievant's testimony suggests that Fairley may not have made the request
until the day of the hearing when the Grievant’s phone call reminded him. The Arbitrator also understands the
Employer's doubt of the Grievant's inability to attend and reluctance to
postpone: if she could come in for her check, why not when her job was at
stake? The Union did not offer evidence
at arbitration or, apparently, when making its request, that the situation was
materially changed for the Grievant.
Given the importance of the matter, however, a wiser and kinder course
for the Employer may have been to postpone on a physician's verification of
altered condition. The justice of any
alleged refusal aside, having received "no further letters," i.e.,
written notice of postponement, the proper course of action for the Union was
to attend the meeting, document the request and the reason for it, and its
refusal. To hold the Employer
accountable for the absence of the Grievant and her representative when they
had been properly notified is to open the door for the abuses suggested by the
Employer. In short, the record
inadequately supports the proposition that the Employer granted a postponement
and then betrayed the Grievant by holding the hearing as originally scheduled.
The Grievant was also absent from the Step 3 hearing. Here there is no claim that a postponement
was requested, only the statement that Management could not explain why she had
not been informed. It is impossible
from the record to determine whether the Grievant simply did not show up or
was, in fact, not informed by either the Union or Employer. Moreover, there is no evidence whether
either Party sought to locate her or to postpone because of her absence. It is only clear that she was not there and
that the Parties proceeded without her.
Responsibility for her absence cannot be ascertained from the
record. Nevertheless, there is cause
for deep concern: an employee is discharged for immoral conduct and not until
arbitration is she present at any hearing to which she is contractually
entitled. I shall return to this
concern below.
2. Notice of
Discipline (§24.05). The Chapter
President testified that as late as the Step 3 hearing he had not received the
removal notice, despite §24.05's requirement and his specific request on the
grievance (Joint Exhibit 2). The
removal order indicates it was certified mailed on May 3, but there is no
record to indicate the Chapter President or his designee was an addressee
(Joint Exhibit 3). The Employer neither
admits nor denies the alleged omission.
The Arbitrator concludes the Employer violated §24.05 by failing
to provide a copy of the removal notice.
The Employer argues, and the Arbitrator agrees, that this did not
prevent the Union from timely filing of the grievance. Nevertheless, this is yet another instance
of a technical violation of the contract to which the Arbitrator must return.
3. Citation of O.R.C.
on Removal Notice. The Employer
makes no claim to the supremacy of the Code over the Contract. It contends that the Grievant was
disciplined for violating a reasonable work rule according to the just-cause
standards of the Contract. As this
Arbitrator has previous held, citation of O.R.C. on the removal notice is
insufficient by itself for overturning the removal.
4. Disparate
Treatment. The Chapter President
described in his testimony the foundation for his claim when he filed the
grievance. No proof of this charge was
provided in arbitration, however. The
Union claim is rejected.
5. Step 3 Response. Similarly, the Union did not establish to
the Arbitrator's satisfaction that the Step 3 response was inadequate.
In summary, the Employer violated §24.04 by failing to supply a
pre-disciplinary packet including witness statements used against the Grievant,
it violated §25.08 by failing to supply relevant and reasonable documents in a
timely fashion, and it violated §24.05 by failing to supply a copy of the
removal notice as called for in that section.
Additionally, although it was not established that the absence
of the Grievant from all pre-arbitration meetings was the fault of the
Employer, the Employer's failure to give more than cursory consideration to a
postponement and, given her prior absence, the Employer's ready willingness to
proceed with the Step 3 meeting give the appearance of unfairness. Finally, eighteen months elapsing from the
alleged incidents to serving of papers, although not caused by the Employer,
compromised the ability of the Union to defend its member. Taken as a whole, a pattern of disregard for
the Grievant's due process rights and the integrity of the Contract is
apparent. While much of the damage to
the Grievant's defense was overcome, the effect of the 18 month delay was
irreversible and prejudicial to the Grievant.
Merits
The case against the Grievant is not overwhelming. It consists of the testimony of four
witnesses, three of whom are youth felony offenders who were problem youths at
the institution and who, according to Union witnesses, had a history of
unacceptable, even dangerous, sexual behavior, but who nevertheless could tell
the truth. The Arbitrator found A.M.'s
testimony to be of little value. While
he may have been telling the truth in part, his story of his activities with
the Grievant had the character of boastful fabrication, was not convincing and
tainted the rest of his testimony. I am
more convinced that he heard the story of Peal and F.M. from F.M. or another
youth than that he saw the alleged behavior himself.
I found Anna Mills' testimony to be unhelpful regardless of its
credibility. She did not see any sexual
contact or tobacco change hands. She
did receive gifts (which the Grievant admits), including, she says,
marijuana. She also claims to have
smoked a joint with the Grievant in the parking lot of the institution. Although the Notice of Investigation cites
giving drugs to a youth's mother on Department property, the removal order
cites giving tobacco to youth. From the
history of the case, it appears that the Department dropped the drug charge
during the discipline process and renewed it during the grievance process,
something the Arbitrator cannot condone.
The testimony of this witness, therefore, must be disregarded.
This brings the case down to two witnesses whose credibility is
difficult to assess. I am more inclined
to believe them than not because their stories have common elements, were given
independently of each other, and they seem to have had little opportunity or
reason to conspire against the Grievant after being released from Buckeye. However, these witnesses essentially offered
an unrebuttable proposition: the Grievant did it sometime in September
1988. Given the lack of specificity,
how could the Grievant defend except to swear she did not do it? In the mind of this Arbitrator, this
evidence is insufficient to sustain charges of moral turpitude, particularly in
the face of the due process problems discussed above.
XI. Award
The grievance is sustained.
The Employer did not have just cause to discharge the Grievant. She is to be reinstated to her former
position as Youth Leader 2 forthwith and made whole for all pay and benefits
lost as a result of the Employer's violation of the Contract, including holiday
pay but excluding overtime. Back pay is
to be reduced by such interim earnings as the Grievant may have had and she is
to supply the Employer with such evidence of earnings as it may require. All reference to this incident is to be
expunged from the Grievant's record.
Anna D. Smith, Ph.D.
Arbitrator
Shaker Heights, Ohio
January 21, 1991