ARBITRATION
DECISION NO.:
326
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Youth Services
Indian River School
DATE OF
ARBITRATION:
January 25, 1991
DATE OF
DECISION:
February 25, 1991
GRIEVANT:
Santiago Vanegas
OCB
GRIEVANCE NO.:
35-04-(90-08-30)-0042-01-03
ARBITRATOR:
Anna D. Smith
FOR THE
UNION:
Dennis Falcione, Staff Representative, Advocate
Robert Robinson, Staff Representative, Second Chair
FOR THE
EMPLOYER:
Barry Braverman, Advocate, DYS
Bruce Brown, Second Chair, OCB
KEY WORDS:
Removal
Abuse of Youth
Discovery - 25.08
Procedural Violations - 24.04
Criminal Abuse Standards - ORC 2903.33
ARTICLES:
Article 24 - Discipline
24.01 - Standard
24.04 -
Pre-Discipline
Article 25 - Grievance Procedure
25.08 - Relevant
Witnesses and Information
FACTS:
The grievant had
been employed for six years by the Department of Youth Services as a Youth
Leader 2. One of the youths in the
grievant's assigned dormitory had been restricted to his room but got in line
to go to school instead. The youth
refused to return to his room when asked to do so by the grievant. A physical struggle occurred, which was
witnessed by several youths and staff members.
Other staff assisted the grievant in returning the youth to his room and
placing him in isolation. The grievant
filled out an incident report and the youth was examined and found to have
suffered bruises on his head, neck and arms.
The Unit Administrator conducted an investigation upon hearing of the
incident. The grievant was removed for
physically abusing a youth.
EMPLOYER’S
POSITION:
There is clear
evidence that the grievant, in attempting to return a youth to his room, abused
a youth in his custody. Three other
youths witnessed the struggle and saw the grievant strike the youth. Staff members present did not see the
grievant strike the youth, however they did not witness the entire
incident. The grievant's actions were
not an appropriate means of controlling a disruptive youth. Lastly, a physical examination and
photographs revealed bruises and other evidence of injury.
The grievant has
a substantial disciplinary record consisting of 18 prior disciplinary actions
for various violations of the employer's rules. For that reason removal does not violate progressive discipline. There have been no procedural violations
committed by the employer. All
documents and witness names were disclosed to the union according to the
party's past practice and pursuant to section 25.08. Lastly, the fact that the
employer cited the Ohio Revised Code does not justify overturning the grievants
removal. Therefore, there was just
cause for discipline.
UNION’S
POSITION:
The grievant did
not abuse a youth in his custody. He
was attacked by the youth who was confined to his room when he attempted to
return the youth to the room. The
grievant was protecting himself and the youth.
The physical force used did not rise to the level of abuse. The applicable standard for abuse found in
O.R.C. section 2903.33 (B) (2) requires knowingly causing physical harm or
recklessly causing serious physical harm.
Staff members who witnessed the incident did not see the grievant strike
the youth. Further, the grievant has
not hit or abused any youths during his employment with the department.
The employer
committed several procedural errors.
The employer cited O.R.C. 124.34 which incorporates a lower standard
than the just cause required by the contract.
The employer failed to disclose all witness statements, photographs and
investigative reports prior to the pre-disciplinary meeting. They were disclosed one week prior to
arbitration but the Unit Administrator's report has never been disclosed. Additionally, the grievant's prior
discipline was not for similar events and, therefore, not related to this
incident. Because of these procedural
violations there was not just cause for removal.
ARBITRATOR’S
OPINION:
The grievant did
not recklessly cause serious physical harm because no hospitalization or
permanent harm was caused. The grievant
did cause physical harm, however the state did not prove that he acted
knowingly by a standard of clear and convincing evidence. There were no witnesses to give a good
account of the entire incident. There
was conflicting evidence as to what the grievant did. The remaining evidence was the grievant's word against that of
the complaining youth. other acts of the grievant were consistent with a fight,
one which the youth may have started given the youth's history of aggressive
behavior. It was not proven that the
grievant knowingly caused physical harm.
The grievant may have acted recklessly but did not cause serious harm,
therefore, the grievant was not found to have abused the youth, but he was
guilty of fighting.
The employer's
citation to the Ohio Revised Code section 124.34 is a technical violation but
the employer makes no claim that the code supersedes the agreement. The grievant claimed not to have received
any documents prior to the pre-disciplinary meeting. The arbitrator found that the union did receive witness lists and
documents but did not receive the Unit Administrator's report which contained
witness statements and additional photographs.
The employer is obligated to produce information relied upon to support
discipline, with the pre-disciplinary hearing notice. Therefore, the employer did violate section 24.04. The grievant was prejudiced when the
employer failed to disclose pre-disciplinary conference reports when the
discipline imposed was decided by the employer.
Further, the Unit
Administrator's investigation was not complete. She never interviewed the grievant. She was not an assigned investigator but she acted as an
investigator. The employer must follow
contractual procedures and its own policies and that did not occur in this
case.
The employer did
violate the contract by improperly withholding information and failing to
investigate the incident properly.
However, the grievant has substantial prior discipline and has committed
a serious offense. Therefore, there is
just cause for discipline.
AWARD:
The grievance was
sustained in part. The grievant was
reinstated with no back pay and a record of the incident is to be placed in the
grievant's file. It was recommended
that the grievant receive training in the appropriate use of physical force.
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.
35-04-900830-0042-02-03
Removal of
Santiago Vanegas
I. Appearances
For the
State of Ohio:
Barry
Braverman, Advocate, Ohio Department of Youth services
Bruce
Brown, Second Chair, Office of Collective Bargaining
Crystal
Bragg, Superintendent, Indian River School, Witness
Michael R.
Frias, Deputy Superintendent, Indian River School, Witness
Susan
Frew, Unit Administrator, Indian River School, Witness
Vera
Taylor, R.N., Indian River School, Witness
Three
youth (B.C., B.S. and J.P.) currently or formerly under the custody of the
State of Ohio, Witnesses
For
OCSEA/AFSCME Local 11:
Dennis A.
Falcione, Staff Representative and Advocate
Robert
Robinson, Staff Representative and Second Chair
Santiago
Vanegas, Grievant
William S.
Taylor, Youth Leader 2, Witness
Frank Thomas,
Youth Leader & Chief Steward, Witness
Joseph
Harkless, Chaplain, Witness.
II. Hearing
Pursuant to the
procedures of the Parties a hearing was held at 10:00 a.m. on January 25, 1991
at the Ohio Department of Youth Services, Indian River School, Massillon, 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, 6:30 p.m. January 25, 1991. 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
hired with DYS on October 22, 1984;
2) On August 14, 1990
he was working as a Youth Leader II on Navajo Dorm on IRS;
3) The Grievant's
prior discipline is as follows:
7-90 Written Reprimand
2-90 Verbal Reprimand
11-89 Verbal Reprimand
7-89 Verbal Reprimand
6-89 Written Reprimand
5-89 Written Reprimand
1-89 7-Day Suspension
9-88 Written Reprimand
6-88 5-Day Suspension
1-88 5-Day Suspension
11-87 Written Reprimand
9-87 1-Day Suspension
6-87 Verbal Reprimand
12-86 Verbal Reprimand
12-86 Verbal Reprimand
12-86 2-Day Suspension
9-86 Verbal Reprimand
3-86 1-Day Suspension
4) The Grievant was
terminated on August 30, 1990;
5) The matter is
properly before the Arbitrator.
In addition, the following documents were received as joint
exhibits:
1) State of
Ohio/OCSEA Local 11 AFSCME Contract, 198991;
2) Grievance Trail;
3) Discipline Trail
including prior discipline;
4) Nurse’s Report on
Youth W.G. and Santiago Vanegas;
5) DYS Directive
B-19, "General Work Rules;"
6) Population Control
Sheet for 8-14-90 at IRS Navajo Unit;
7) DYS Directive
B-34, "Pre-Disciplinary Hearing for Suspensions and Terminations;"
8) DYS Directive E-7,
"Incidents of Physical Force;"
9) IRS Directive 05,
"Use of and Incidents of Physical Force on Youth."
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.
§24.04 - 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.
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 care and confinement of felony
youth 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.
At the time of
his removal the Grievant, Santiago Vanegas, was a Youth Leader 2 on the Navajo
Dorm of the Indian River School. As
such, he had the primary responsibility for the care and control of the youth
assigned to the dorm. Mr. Vanegas had
been so employed for nearly six years until his removal on August 30, 1990 for
physically abusing a youth "thus causing bruises and injuries to the
youth" (Joint Exhibit 3). During
the course of his employment, the Grievant had been trained several times in
the use of physical force, special management of high-risk youth, and other
related procedures (Employer Exhibit 8), but he had not received any hands-on training. He had also been informed of his employer's
work rules, DYS Directive B-19 (Joint Exhibit 5 and Employer Exhibit 4). He had
been disciplined on eighteen occasions prior to this removal, said discipline
ranging from verbal reprimands to a seven-day suspension. The rule infractions varied from improper
call-off procedure to fighting with staff (Joint Exhibit 3B).
The Incident
On August 14,
1990, a youth housed on the Navajo dorm (W.G.) was suspended from school and
placed on door restriction on his dorm for threatening another youth. W.G.'s disruptive behavior was on-going, for
it had been the subject of team discussion on August 9, 1990 (Union Exhibit
9). Shortly before 1 p.m., the youths
lined up at the door of the dorm to return to school. Mr. Vanegas saw that youth W.G. had also lined up. He ordered the youth to return to his
door. The youth refused. An argument ensued, culminating in a
physical struggle between the two. The
disturbance was witnessed by several youths on the dorm and by several staff on
Navajo and in the connecting Cherokee dorm.
The struggle was broken up by two who came from the adjacent dorm,
William Taylor (a youth leader) and Chaplain Joseph Harkless. When the youth was subdued, Mr. Taylor and Mr.
Vanegas escorted him to his room, prepared him for and placed him in
isolation. Taylor and Harkless returned
to Cherokee, and Vanegas began the paperwork on the incident-Youth Behavior
Incident Report (Employer Exhibit 2) and Physical Force Report and
Investigation (Employer Exhibit 6). At
1:10 P.M., Vanegas was seen by Vera Taylor, R.N. Nurse Taylor saw redness on
his neck and a superficial laceration and redness on his arm (Joint Exhibit 4). Nurse Taylor examined the youth at 1:38 p.m.
She observed swelling and redness on his forehead, neck and arms. The youth also complained of soreness in his
testicle and scrotal area (joint Exhibit 4), but Nurse Taylor apparently did
not directly observe abnormality.
Photographs taken of the youth less than an hour later match the
observations of Nurse Taylor (Employer Exhibit 3).
Susan Frew, unit
administrator, heard that the youth was on Medical and asked him what had
happened. He told her about the
altercation with the Grievant, so Ms. Frew launched an investigation and moved
the youth off his dorm. She did not
interview Mr. Vanegas, but did tell him that an investigation was
underway. She then notified her
superiors, called Security and had pictures taken (Employer Exhibit 3). At a later time she took an additional set
of photographs herself, which she turned in to her superior and did not see again. Statements from twelve youths, including the
alleged victim, were taken, to which Ms. Frew attached her report (Employer
Exhibit 5).
Discipline and Grievance
Vanegas was
placed on administrative leave and served with the pre-disciplinary meeting
notice on August 16, 1990 (Joint Exhibit 3).
Attached to the notice was a list of witnesses and a list of documents
provided. This list identified three
staff by name and "various youths" who were not identified. Among the documents listed were photographs
of youth W.G., which were not provided to the Grievant but were shown to him at
the meeting. The list also contains the
following summary of youth statements: "you grabbed youth [G.] by his
shoulders, slapped his face several times, grabbed him by the throat, pushed
him into furniture and a wall, kneed him in the groin area and pressed your
keys into his head/face" (Joint Exhibit 3). The youth statements referred to were not included in the
pre-disciplinary packet nor were they provided him nor shown to him at the
pre-disciplinary meeting on August 20.
Michael Frias was the hearing officer. on cross-examination he admitted
to having read the youth statements prior to the meeting and further admitted
that they entered into his recommendation.
Frias further testified that at no time did he see the second set of
photographs taken by Ms. Frew. At the
hearing Vanegas presented his version of events and submitted a three page
written statement. This statement
describes the incident from his point of view, responds to specific charges
from the summary of youth statements, and denies the charge of abuse (Joint
Exhibit 3). On August 21, 1990 Frias
completed his report to the superintendent, concluding that "just cause
for discipline exists" (Joint Exhibit 3).
On August 30 Mr.
Vanegas received notification of his removal for failure of good behavior
"in violation of Chapter 124.34 of the Ohio Revised Code and DYS Directive
B-19, Work Rule #1, ‘abusing or mistreating youth entrusted
to the Department's care... ‘“ (Joint Exhibit 3).
A grievance of
this removal was filed on August 30. In
the grievance Vanegas complains of reliance on a second set of pictures
allegedly taken 25 hours after the confrontation. He alleges that the youth had no marks, that any marks were self-inflicted,
and that youths submitting statements had probably been coached by a supervisor
(joint Exhibit 2).
Three weeks prior
to the third-step hearing, on September 17, the Union requested in writing
names and documents relevant to the grievance, including youth statements. This request was denied (Union Exhibit 5). This request was renewed by Chief Steward
Thomas during the third-step hearing on October 1, 1990. Thomas testified that Management's response
was that the Union would see the statements at arbitration. The Employer denied the alleged contract
violations and the grievance (Joint Exhibit 2).
On January 10, in
preparation for arbitration, the Union again requested specific documents
including the photographs, complete statements of 11 youths, and Frew's
investigative report and findings (Employer Exhibit 9). In the main these documents were finally
provided on January 17, but as of the date of arbitration the Union still did
not have a copy of Frew’s report.
VII. Contentions of the Parties
The Employer
The Employer's
version of the incident is that Vanegas abused the youth, W.G. Three youth
witnesses, none of whom had a particular ax to grind with the Grievant,
testified that in the struggle Vanegas kneed W.G. in his genital region. B.C. saw the two push each other and Vanegas
hit the youth on the forehead. B.S. saw
Vanegas push W.G. against the office window.
J.P. saw Vanegas grab W.G. by the shirt. Photographs taken of the youth, the nurse’s report and testimony
all confirm that the youth received injury.
The testimony of the two staff witnesses for the Union proves nothing
except that an incident occurred. That
Taylor and Harkless never saw Vanegas hit a youth does not prove that he did
not abuse this youth on this occasion since they did not see the entire
incident.
Even if the youth
was disruptive, this does not justify the behavior of the Grievant. His actions were not necessary nor were they
appropriate, as was testified by staff and evidenced by written policies.
This action--the
use of abusive force--by itself is enough to warrant discharge, for abuse has
no place in the Department's facilities. moreover, the Grievant's cumulative
disciplinary record shows that he has no regard for progressive discipline, for
he had ample warning and opportunity to correct his behavior. Therefore, even on the theory of
progressive, corrective discipline, discharge is warranted.
The Employer
contends that there have been no procedural violations of the Contract and the
Grievant's due process rights have not been harmed. Notice was provided, pre-disciplinary meeting held, level three
hearing held, and now the case is in arbitration.
Past practice has
been to provide a summary of youth witness statements until arbitration when
the full documents are given. There was
no formal request made at the third step hearing for youth statements, but even
then the Union knew the number of statements that existed. Pursuant to §25.08 of the Contract, the
Union requested documents on January 10, and these were provided by agreement
on January 17. In arbitration the Union
has all the documents the Employer does.
With respect to
the Union claim on the Employer's removal order citation of the Ohio Revised
Code, the Employer points out that this Arbitrator and others have found this
to be insufficient reason by itself for overturning discipline.
The Employer
concludes that it had just cause for terminating Santiago Vanegas and asks that
the removal be upheld under §24.01 of the Contract.
In support of its
position, the Employer offers three arbitration decisions. In Park Geriatric Village, 81 LA 306,
the arbitrator upheld the reasonableness of the employer's protection of its
patients from staff abuse. The
arbitrator further found that the employer proved abuse and sustained the
dismissal as required by the contract, which provided that removal
was the sole penalty for abuse. The
arbitrator also made note of the grievant's poor work record, having six disciplines
in 3-1/4 years of employment. The
Employer in the instant case points out that Vanegas's record is much worse,
having 19 violations in less than six years.
In a second case,
City of Tampa, 79 LA 1155, the arbitrator held that provocation by
immature adolescents (by spitting on grievant) does not justify threatening and
belligerent behavior by an adult.
Noting a poor work record, the arbitrator upheld the discharge.
In the third
case, Central Telephone Co. of Florida, 76 LA 1137, the arbitrator held
that the employer's failure to comply with a procedural requirement was no
basis for setting aside a removal since there was no evidence that the case
would have progressed differently, either substantively or procedurally, had
the employer complied. The arbitrator
found that the grievant had not been deprived of due process by the employer's
lapse.
The Union
The Union's
version of events differs in several respects from that of the Employer's. It claims that the Grievant did not abuse or
mistreat youth W.G. Rather, when attacked by the youth, Vanegas restrained him
to protect himself and the youth. Staff
testified and wrote in their statements that they did not see Vanegas strike
the youth. They saw a struggle, the
youth resisting, and the two interlocked in a motionless position. Additionally, Chaplain Harkless said he had never
known the Grievant to hit or abuse a youth in the four years he had known
him. Furthermore, youth leader Taylor
testified that he did not notice any marks or signs of discomfort when they
were preparing the youth for isolation.
The Union also claims that these staff would not leave the youth alone
with the Grievant if they felt the youth to be in danger. It points out that these are credible,
responsible witnesses who would not lie and contrasts their character with that
of the youth witnesses who are problematic boys and convicted felons who can be
manipulative and lie to get youth leaders in trouble.
The Union states
that the standard for abuse was set by Arbitrator Pincus in the Dunning
decision (G87-0001A). In this decision,
the Department of Youth Services was exempted from the definition set forth in
the Ohio Administrative Code. The
definition to apply is that contained in §2903.33(B)(2) O.R.C.:
"Abuse" means knowingly causing physical harm or
recklessly causing serious physical harm to a person by physical contact with
the person or by the inappropriate use of a physical or chemical restraint,
medication, or isolation on the person.
The definition for serious physical harm is contained in
§2901.01(E):
"Serious physical harm to persons" means any of
the following:
(1) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric treatment;
(2) Any physical harm which carries a substantial risk of
death;
(3) Any physical harm which involves some
permanent incapacity, whether partial or total, or which involves some
temporary, substantial incapacity;
(4) Any physical harm which involves some permanent
disfigurement, or which involves some temporary, serious disfigurement;
(5) Any physical harm which involves acute pain of such
duration as to result in substantial suffering, or which involves any degree of
prolonged or intractable pain.
The Union contends that Management has not met the standard
of the Ohio Revised Code, for the Grievant has not knowingly caused physical
harm or recklessly caused serious physical harm to the youth. In support of its position that the Grievant
be returned to work, the Union cites two arbitration cases. In the Nixon case (G87-1008)
Arbitrator Michael held that the grievant acted recklessly when he broke the
arm of a youth with a ping-pong table.
Grievant was reinstated and his suspension was further reduced by the
Employer's procedural violation of the Contract. In ODMRDD v. OCSEA (G87-0366 Kassandra Jefferson,
Grievant), Arbitrator Michael held that abuse must be of a serious enough
nature to establish just cause for termination.
The Union further
contends that there are procedural violations of the Contract that warrant
sustaining the grievance. First, the
removal order cites 124.34 of the Ohio Revised Code. The Code holds Management to a lesser standard than does the
Contract, for it does not contain a due process guarantee. Arbitrator Pincus in the Wiley King
decision (G87-2810) returned the grievant to work due in part to the employer's
citation of 124.34. Arbitrator Rivera in the T. Turner case
(35-16-900502)0032-01-03) ruled that the employer's use of 124.34
is inappropriate. Additionally, the
Ohio Supreme Court ruled in Rollins v. City of Cleveland Heights that
the Code cannot be used to usurp or circumvent the Contract.
Additionally, the
Employer violated §24.04 of the Contract when it did not furnish all witness
statements, photographs and investigative reports prior to conducting the
pre-disciplinary meeting. If further
violated §25.08 when it failed to provide these documents and the
pre-disciplinary meeting report prior to and during the third step hearing as
requested by the Union. These documents
were not provided until one week prior to the scheduled arbitration, and the
Employer still has not provided Frew's investigative report and findings. In the Woods decision (ODMH v. OCSEA,
G86-0431) Arbitrator Klein ruled that management must provide documents used to
support discipline at least by the time of the pre-disciplinary hearing. In Arbitrator Rivera’s Turner
decision cited above, she ruled that the employer's failure to provide complete
witness statements violates the specific mandate of the Contract, and set the
termination aside.
Finally, the
Union points out that prior discipline of the Grievant was for rule infractions
unrelated to the violation alleged here, and resulted in only minor penalties.
For all these
reasons, the Union asks that the Grievant be returned to work, awarded all back
pay, benefits and seniority, and made whole.
VIII. Discussion and Opinion
Merits of the Case
For the convenience
of discussion, the issue will be approached through a series of questions. First, did the Grievant commit abuse within
the meaning of §24.01? In the Dunning decision, abuse is defined by
§2903.33, Ohio Revised Code, to be knowingly causing physical harm or
recklessly causing serious physical harm.
I will take these in reverse order.
First, did the Grievant recklessly cause serious physical harm? The answer to this must be "No,"
for the youth did not require hospitalization or prolonged psychiatric
treatment; there was no substantial risk of death; and there was no permanent
incapacity or disfigurement nor temporary substantial incapacity or
disfigurement. While the youth
complained of soreness, there is no evidence of substantial suffering or
prolonged or intractable pain. Thus,
while the Grievant may have acted recklessly, he did not cause serious physical
harm.
Did he cause
physical harm to the youth? As
evidenced by the nurse’s testimony and report, supported by the photographs,
the youth did receive injury. It is
clear that the red marks, etc. were the result of the fracas with the
Grievant. That they were self-inflicted
is beyond belief. Even the Grievant
received mild injury as a result their struggle. Did he knowingly cause the injuries? What happened during the fracas and whether
Vanegas was acting in retaliation to injure the youth or in a misguided attempt
to restrain him and protect himself is not at all plain. There were no witnesses to give a good
account of the full exchange. Taylor
and Harkless apparently missed the beginning of the altercation and their view
was totally obscured below by desks and walls and partially obscured above by
several thickness’ of glass. None of
the three boys gave a very complete account, and each was somewhat
different. For example, B.C. stated
that Taylor broke up the fight while J.P. testified that Harkless broke it
up. The one feature the three agreed on
was that the Grievant kneed the youth in his groin. The Union argues that youth conspire to get staff in trouble and
their testimony is therefore suspect.
Be that as it may, in this case the alleged victim was separated from
his peers immediately after the incident and does not seem to have had an
opportunity to participate in a conspiracy.
Yet both he and the youth witnesses remark on the kneeing. Unfortunately this issue cannot be clarified
because youth W.G. did not testify. We
only know what Frew said he said, what he complained of to Nurse Taylor and
what he wrote in his statement, all of which are hearsay and cannot be
credited. We therefore are left with
the word of the Grievant against the word of the three youth witnesses, who may
in fact have seen an opportunity to gain some leverage over the youth leaders
or who may have been mistaken in what they saw and drew certain
conclusions. Against the youth
witnesses we have the statements of staff and the Grievant that W.G. had no
difficulty in walking to his room and exhibited no visible evidence of having
received a blow to his genitals.
To be sure, the Grievant's statements are self-serving and youth leaders
understandably protect one another, but none of the youth witnesses nor
Harkless remarked on any apparent physical disability. Moreover, the nurse did not observe any
injury to this region. In short, the
evidence does not clearly and convincingly demonstrate that the Grievant
knowingly kneed the youth in the genitals.
If there were, the Arbitrator would agree that this constitutes abuse
within the meaning of §24.01.
Other specific
actions the Grievant allegedly took against the youth were to hit him, push
him, tussle, grab his shirt, wrestle around, fend off, and get one arm around
his head. All of these are
characteristic of a fight--one which (in view of the youth's record) could well
have started as the Grievant states with the youth retaliating for the
Grievant's attempt to move him to his door by taking him by the arm. The Grievant calls the result
"self-defense" and/or "restraining" the youth. The Employer calls it "abuse." The
photographs are not particularly helpful in resolving the issue since the
injuries they show could have resulted from either motivation and, as the nurse
testified, "could be from anything." Since no one saw the altercation
from its beginning there is no way of knowing more than that they had a
struggle. There simply is not clear and
convincing evidence that the Grievant knowingly caused injury and therefore
abused the youth. The Grievant may have
acted recklessly in a misguided attempt to control the <PAGE NAME="18">youth, but he not
cause serious harm. Certainly the
Grievant acted negligently by failing to wear his beeper in such a manner to
sound it easily when necessary. This is
particularly true since the Grievant knew the youth to be a behavioral
problem. The Grievant says that he
acted in self-defense. This could well
be true since it would have been foolish for the Grievant to provoke a fight in
the presence of so many witnesses--staff and youth. However, the Grievant has acted foolishly before, as his
extensive disciplinary record testifies, the defense is self-serving, and there
is no independent corroboration. But
even if the self-defense claim is true, the Arbitrator believes that he became
or was close to becoming out of control because Chaplain Harkless put himself
between the Grievant and the youth who was already restrained by Taylor and
wrote that Vanegas was upset. I
conclude that the situation was not as controlled as the Union would have me
believe. Thus, while I am unable to
find the Grievant guilty of physical abuse within the meaning of §24.01, I do
find him guilty of fighting.
Due Process
Was the removal
notice defective in that it cited Chapter 124.34 of the Ohio Revised Code? Citation of the Code constitutes a technical
violation of the Contract. However, the
Employer makes no claim to the supremacy of the Code over the Contract. Rather, it contends that the Grievant was
disciplined for violating a reasonable work rule according the just-cause
standards of the Contract. As this
Arbitrator has consistently held, citation of Code on the removal notice is
insufficient by itself for overturning the removal.
Did the Employer
violate §24.04 of the Contract by failing to supply certain documents when the
pre-disciplinary notice was served? The
Grievant claims that when he was served the pre-disciplinary notice, nothing was
attached to it and that he received none of the documents indicated on the list
until the pre-disciplinary hearing.
This cannot be true, for the Grievant's written statement given to Frias
at the hearing makes reference to information that he only could have obtained
from the list of witnesses and documents.
Therefore, at least the list was attached to the notice and probably
also staff statements. This calls into
question the veracity of his statement that he received none of the documents
until the hearing. I therefore conclude
that what was missing from the pre-disciplinary packet were the youth
statements and Frew’s report attached to them (Employer Exhibit 5), and the
three photographs taken by Security (Employer Exhibit 3). The only other Frew report of which there is
any evidence is Employer Exhibit 6--Physical Report and Investigation. This was timely provided. The Union made much of a second set of
photographs taken by Ms. Frew. Certainly
this second set existed at one time, but there is no evidence the Employer
relied on them in the disciplinary process and the Arbitrator is not even sure
that they existed after Frew turned them in to her superior. We are therefore left to deal with the
original set of photo-graphs, which the Employer admittedly only showed
to the Grievant at the pre-disciplinary meeting, and the complete youth
statements, which were denied the Grievant and his Union until January 17. The Arbitrator is cognizant of the need to
balance the Employer's responsibility to youth in its custody with the Union's
responsibility to represent its members in the disciplinary and grievance
process. Nevertheless, the Parties
themselves struck such a balance when they negotiated the language of §24.04 of
the Contract. This language does not
exempt the Department of Youth Services or make photographs and youth
statements exceptions to the rule. The
Employer therefore had the contractual duty to supply copies of youth witness
statements and photographs, since it plainly relied on them to discipline
Vanegas, and to do so when it served the pre-disciplinary notice. It follows that the Employer violated
§24.04.
The Employer
argues that withholding these documents did not prevent the Grievant from
getting to arbitration or otherwise prejudice his case. The first of these is true. The Union makes no case for the second, and
the Arbitrator can only speculate as to how things might have progressed had
the statements and photographs been provided in a timely fashion. Nevertheless, the Contract has been violated
and the breach is more serious than that of the removal notice. The Arbitrator will return to this when she
fashions a remedy.
Did the Employer
violate §25.08 of the Contract when it refused to supply certain documents
requested during the grie-vance procedure?
The youth statements and pre-disciplinary conference report were
requested on September 13 (Union Exhibit 5). An Employer refusal is documented
for September 17. Chief Steward Thomas
testified that he renewed his request during the third step hearing. They were finally provided on January 17,
after the third step hearing but prior to arbitration. These documents are discoverable under
§25.08 for the request was specific, the documents were reasonably available
from the Employer, and they were relevant to the grievance. Moreover, the youth statements should have
been provided when the pre-disciplinary notice was issued. In Arbitrator Rivera’s Darnell Brown
case (G87-1299), pre-disciplinary conference reports are held to be not
discoverable prior to the final decision but discoverable prior to
arbitration. In this arbitrator's view
the pre-disciplinary conference report is discoverable once the final
disciplinary decision has been made and the grievance filed. It was, therefore, improper for Management
to refuse the Union request on September 17.
As with the complete pre-disciplinary hearing packet, there is no
evidence that this violation of §25.08 prejudiced the Grievant's case,
particularly since these documents were provided in advance of the arbitration
hearing.
The Arbitrator is
also disturbed that no interview of the Grievant was conducted by Ms. Frew
during her investigation. Ms. Frew
questions whether she was assigned that responsibility, but in every other
respect she acted as the investigator.
It was she who talked with the nurse, arranged for
the photographs and youth statements, and filed the report. Just-cause principles and the Department’s
own policy (Joint Exhibit 8, Chapter E-7, "Incidents of Physical
Force") call for an interview with employees involved in the incident,
including the Grievant. The Grievant's
reports and presence at the pre-disciplinary meeting mitigate this lapse to
some extent. But for an employer to be
fair and have credibility in its disciplinary actions it must conform not only
to the contractual procedures but also to the rules and guidelines it, itself,
has established. I therefore find that
the Employer violated §24.01 and did not have just cause to discharge the
Grievant. However, it is clear that the
Grievant committed a serious, actionable offense, and that this followed a
substantial history of progressive discipline.
Moreover, the Employer's infractions did not so taint the process as to
warrant overturning the discipline in its entirety. Accordingly, the Grievant will be returned to his job forthwith,
but not receive back pay. He is also
advised that were it not for his Employer's violations of the Contract and its
own procedure, the removal would have been sustained.
XI. Award
The grievance is
sustained in part, denied in part. The
Employer did not have just cause to discharge the Grievant. The Grievant will be reinstated forthwith,
but afforded no back pay, benefits or seniority. A record of this action will be placed in his personnel
file. It is recommended but not
required that he receive the Employer's standard training on the use of physical
force on youth, verbal strategies in crisis, and special management of high
risk youth at the first available opportunity.
Anna D. Smith, Ph.D.
Arbitrator
Shaker Heights, Ohio
February 25, 1991