ARBITRATION
DECISION NO.:
377
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Rehabilitation and
Corrections, Dayton Correctional
Institution
DATE OF
ARBITRATION:
September 4, 1991
DATE OF
DECISION:
September 17, 1991
GRIEVANT:
Michael Ward
OCB
GRIEVANCE NO.:
27-03-(91-02-11)-0068-01-03
ARBITRATOR:
Anna D. Smith
FOR THE
UNION:
Patrick A. Mayer, Advocate
FOR THE
EMPLOYER:
Roger A. Coe, Advocate
David Burrus, Second Chair
KEY WORDS:
Removal, Improper Job
Performance
Attendance at Pre-
Disciplinary
Meeting
Postponed Pre-
Disciplinary
Meeting
Imposition of Discipline
Within 45 Days
Union Waiver of Pre-
Disciplinary
Meeting
Elements
ARTICLES:
Article 24 - Discipline
§24.01-Standard
§24.04-Pre-Discipline
§24.05-Imposition
of
Discipline
FACTS:
The grievant had
been a Corrections Officer 2 employed at the Dayton Correctional Institution
approximately four years. He had prior
discipline including a ten day suspension.
A sergeant at the institution saw the grievant watching four inmates
playing cards outside their regular housing unit. While the sergeant was reporting the incident, the grievant
entered the room and admitted watching the inmates play cards. A pre-disciplinary meeting was scheduled
first for November 30, then December 3 and later December 4, 1990 because each
meeting was canceled due to the grievant's absence. The pre-disciplinary meeting was held December 17, 1990 without
the grievant or the employer representative recommending discipline in
attendance. The grievant's removal
order was signed January 15, 1991.
EMPLOYER’S
POSITION:
There was just
cause for the grievant's removal. That
he allowed four inmates to play cards outside their regular housing unit was
not disputed. The grievant admitted to
the Unit Manager that he had done so.
Discipline was imposed within 45 days of the pre-disciplinary meeting
which was held. The employer did not
hold scheduled pre-disciplinary meetings on November 30, December 3, and 4 due
to the grievant's absence. A
pre-disciplinary meeting was held December 17 and the removal order was signed
January 15, 29 days later. The presence
of the management representative recommending discipline at the
pre-disciplinary meeting is not mandated by the contract, and alternatively,
the union waived this requirement.
Lastly, the inmates' statements were not relied upon by the hearing
officer or the employer when discipline was recommended, therefore, their
unavailability to the union was not a procedural error.
UNION'S
POSITION:
There was no just
cause for removal of the grievant. It
was not disputed that the grievant allowed four inmates to play cards outside
their housing unit. Contract section
24.04 mandates attendance of the management representative recommending
discipline at the pre-disciplinary meeting.
The employer also withheld evidence from the union which was used to
support discipline. The union did not
and cannot waive these contractual rights.
Additionally, discipline was not imposed within 45 days as required by
the contract. Pre-disciplinary meetings
were scheduled on November 30, December 4, 5 due to the grievant's
absence. The meeting was finally held
on December 17 without the grievant.
The meetings were rescheduled at the employer's request, therefore, the
45 day limit runs from the first scheduled meeting. The disciplinary notice was signed on January 15, 1991, 46 days
after the first scheduled meeting.
Therefore, the employer's procedural errors warrant a reduced penalty.
ARBITRATOR’S
OPINION:
It was proven
that the grievant knew that four inmates were outside their housing unit,
playing cards. The union presented no
evidence that the inmates had permission to be out of their housing unit, while
the employer provided a rational explanation for why the inmates were not
disciplined. The employer did not
commit procedural errors when the employer's representative recommending
discipline was not present at the pre-disciplinary meeting. The contract allows the union to waive the
meeting entirely. The ability to waive
any part of the meeting is subsumed in the power to waive the meeting itself. The union representative present at the
meeting failed to object to the employer representative’s absence, therefore
that requirement had been waived. Secondly,
no procedural error occurred due to the employer's refusal to supply inmate
statements to the union. The statements
were not used to support discipline at arbitration or at prior times. Lastly, discipline was imposed within 45
days of the pre-disciplinary meeting.
Meetings scheduled on November 30, December 4, and 5, 1990, were not
held due to the grievant's absence. The
triggering event for the 45 day period was the pre-disciplinary meeting
actually held on December 17, 1990.
Therefore, the employer committed no procedural error which warrants a
reduction in the penalty.
AWARD:
Grievance denied.
TEXT OF
THE OPINION:
In the
Matter of Arbitration
Between
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
Anna D.
Smith, Arbitrator
Case:
27-03-(910211)-68-01-03
Michael
Ward, Grievant
Removal
I. Appearances
For the State of Ohio:
Roger A. Coe, Advocate, Labor Relations Officer, Ohio
Department of Rehabilitation and Corrections
David Burrus, Second Chair, Labor Relations Officer
Melvin D. Morton, Unit Manager, Dayton Correctional
Institution, Witness
Kurt E. Klopfenstein, Correctional Supervisor I, Dayton
Correctional Institution, Witness
A. Hasani Stone II, Labor Relations Officer, Dayton
Correctional Institution, Witness
For OSCEA Local 11, AFSCME:
Patrick A. Mayer, Advocate, Staff Representative, OCSEA
Local 11, AFSCME, AFL-CIO.
II. Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:15 a.m. on September 4, 1991
at the Office of Collective Bargaining, 65 East State Street, 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 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, 10:30 a.m., September 4, 1991. The opinion and award is based solely on the
record as described herein.
III. Issue
By agreement of
the parties, the issue is:
“Was the grievant
removed for just cause? If not, what
should the remedy be?”
No issue of arbitrability was presented.
IV. Joint Exhibits and
Stipulations
Joint
Exhibits
1. 1989-91 Collective
Bargaining Agreement;
2. Discipline Trail;
3. Grievance Trail;
4. Grievant's
Discipline Record;
5. December 24, 1990
Memo to Grievant;
6. O.D.R.C. Standards
of Employee Conduct.
Joint
Stipulations of Fact
1. The Grievant was
employed as a Correction Officer 2 at the Dayton Correctional Institution on
December 15, 1986.
2. The Grievant was
on notice as to the work rules relevant to the facts of this grievance.
3. The Grievant's
discipline record is attached hereto as Joint Exhibit 4.
V. Relevant Contract
Provision
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....
§24.04 -
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. The employer
representative recommending discipline shall be present at the meeting unless
inappropriate or if he/she is legitimately unable to attend....
§24.05 -
Imposition of Discipline
The Agency Head
or, in the absence of the Agency Head, the Acting Agency Head shall make a
final decision on the recommended disciplinary action as soon as reasonably
possible but no more than forty-five (45) days after the conclusion of the
pre-disciplinary meeting.
VI. Case History
On the morning of
November 20, 1990, while making a routine building check on the R-T Unit of
Dayton Correctional Institution, Sgt. Klopfenstein saw four inmates playing
cards on the R-1 side with the Grievant, Michael Ward, watching. As housing unit officer, Ward’s duties
included insuring that inmates were not "out of place.” Three of the inmates, however, were such;
that is, they were not assigned to the R-1 unit and were consequently in
violation of institution rules. Sgt.
Klopfenstein testified that when he approached, they looked up but continued to
play. Officer Ward said, "You're
all busted. Don't get a heart
now." Then he said they would
finish the game and be gone. Sgt.
Klopfenstein ordered them off, but Officer Ward said to let them finish the
game. Sgt. Klopfenstein ordered them
off again and then tried to reach the unit manager, Melvin Morton, by
phone. Thereupon the game broke up.
Sgt. Klopfenstein
went to Morton's office. While he was
telling Morton of the incident, Ward came in and said to write him up, he would
take the heat. He also said he did not
care if he was written up because he was going to be gone soon anyway.
Sgt. Klopfenstein
wrote an incident report, but does not think he wrote conduct reports on the
inmates because of a statement Ward made that they were there by his
permission, and officer permission would constitute a defense before the Rules
Infraction Board. He also testified
that an officer does not have authority to give inmates permission to be out of
place to play cards.
Unit Manager
Morton corroborated Klopfenstein's testimony about statements made by Ward in
Morton's office following the incident and disavowed knowledge of inmate
discipline resulting from the incident.
Labor Relations
Officer Stone scheduled a pre-disciplinary meeting for November 30, 1990. When the hearing was scheduled, Ward signed
a statement that he did not waive his right to the meeting (Joint Ex. 2). He indicated the date was acceptable and
that he would be there. According to
Stone, he also declined to have the Employer representative recommending
discipline be at the hearing.
Nevertheless, Ward did not appear at the scheduled hearing, it being his
"good day." Later he said
that the reason he agreed to the hearing on his good day was that he
forgot. The hearing was not held in
absentia, according to Stone, because of the severity of the charges. The hearing would have been held on Stone’s
next scheduled work day, December 3, but Ward called in sick. On December 4, Stone called Ward and
informed him the pre-disciplinary hearing would take place at 9 o'clock that
day. Again the hearing did not take
place, this time because Ward went home early.
He did not return to work. The
pre-disciplinary meeting was finally held December 17, with neither the
Grievant nor the Employer representative recommending discipline in
attendance. Larry Hunt, Chapter
President, appeared for the Grievant.
Inmate pass logs and statements did not come up at the hearing, and
Stone did not rely on them in recommending discipline. The Union representative also did not object
to proceeding in the absence of either the Grievant or Management
representative. On December 24, 1990, a
memo was sent to the Grievant by certified mail reviewing the three aborted
attempts to hold the pre-disciplinary hearing and informing him that the in
absentia hearing had been held (Joint Ex. 5).
The removal order
was signed on January 15, 1991, citing Rule 9 (failure to carry out a work
assignment or the exercise of poor judgment in carrying out an assignment),
Rule 12 (inattention to duty), and Rule 39 (other actions that could compromise
or impair the ability of the employee to effectively carry out his duties as a
public employee) (Joint Ex. 4).
At the time of
the incident leading to his removal, Ward had been a corrections officer at the
Dayton Correctional Institution for nearly four years. As stipulated by the parties, he was on
notice of the work rules relative to his removal. The following discipline had been imposed for assorted rule
violations prior to his removal:
Date Discipline Rule Violation
12/18/87 Oral
Reprimand 1
12/21/87 Written
Reprimand 1b
2/7/88 5-Day
Suspension 25
3/2/88 1-Day
Suspension 1a, 25
5/22/89 Written
Reprimand 1
8/14/89 Written
Reprimand 25
8/17/89 1-Day
Suspension 1a, 6c
2/13/90 3-Day
Suspension 1
6/11/90 3-Day
Suspension 6c
7/22/90 Oral
Reprimand 2b
11/13/90 5-Day
Suspension 3d
12/5/90 10-Day
Suspension 1,2b,3d,7,9,38,44
(Joint
Ex. 4)
A grievance was
filed January 25, 1991, alleging no just cause for removal and requesting
reinstatement with full back pay and seniority. On February 26, 1991, a Step 3 meeting was held but the Grievant
did not attend. Again there were no
procedural objections.
The grievance was denied at this level and subsequently moved to
arbitration where it presently resides.
VII. Positions of the Parties
Position
of the Employer
Management
contends it has a clear case on the merits.
The facts are unrebutted: the
Grievant clearly violated rules that are reasonably related to the mission of
the Department and he was on notice with respect to those rules. A short-term employee, the Grievant had
discipline problems from the beginning of his employment. This was simply the last straw.
The only issues,
Management asserts, are with respect to the Grievant's due process rights under
the Contract. First, the Employer
claims it did impose discipline within 45 days of the pre-disciplinary
conference as required. Because of the
Grievant's past record and the charges against him, Management continually
tried to hold the conference to give him an opportunity to be heard. He repeatedly failed to appear. The language of the pre-disciplinary notice
to the effect that failure to appear constitutes waiver is boiler plate. The Employer could have proceeded with the
first scheduled conference and would have terminated the Grievant
thereafter. Instead, it went overboard
to protect the employee's rights.
Finally, a pre-disciplinary meeting was held where the Grievant was
properly represented. Only then was
discipline imposed.
The second due
process issue is the availability of inmate statements. The hearing officer testified that he did
not rely on inmate statements in recommending discipline, and
it is mere speculation that the appointing authority relied on them in imposing
discipline. Even if there is an error,
Management argues, it is a harmless one since there is ample evidence of the
Grievant's guilt without them.
Finally, there is
the matter of the absence of the charging management official from the
pre-disciplinary conference. The Union
did not object to his absence, nor did it request his presence. Contrary to the Union's position, Management
believes both the Union and employee have the right to waive Contractual
rights. In any event, the Employer
contends that the officials presence is not an absolute requirement of the
Contract.
In conclusion,
the Employer maintains that it has gone out of its way to afford the Grievant
all his rights even though the Grievant has consistently expressed a lack of
interest in the matter. The Employer
urges that the grievance be denied in its entirety.
Position
of the Union
The Union first
argues that the absence of the Grievant should not be taken as a sign of lack
of interest. The arbitration hearing
was postponed several times at the behest of Management. Claiming the Grievant was available for the
earlier dates, the Union points out that he has obligations to his new employer
and family that in all likelihood made it impossible for him to attend the
arbitration.
If the Grievant
had been able to attend, the Union contends he would have rebutted several key
Management points. One of these is that
the inmates were in the building as the result of being issued passes for a specific
purpose. That no discipline was issued
to the inmates supports this contention.
Moreover, no evidence has been presented to show they were not issued
passes.
With respect to
procedural issues, the Union asserts that the Contract is not vague or
ambiguous regarding the presence of the management official at the
pre-disciplinary conference. Article
24.04 says the employer representative "shall be present" unless a
certain set of circumstances exists.
Similarly, §24.04 is clear with respect to witnesses and documents used
to support contemplated discipline.
This is an absolute requirement and does not depend on Union
request. Although the hearing officer
claims he did not see them and that they were not used in the imposition of
discipline, the warden had them and he is responsible for recommending
discipline to the director. Somewhere
along the discipline trail they were used, asserts the Union.
Although
Management says it bent over backwards to guarantee the Grievant his due
process rights, it did not do so with the employer representatives presence at
the hearing, nor with the documents.
These rights are not waiverable rights, contends the Union. The parties to the Contract can waive only
those rights where latitude is specifically granted, such as in Article 13.07,
Overtime.
The 45-day limit
on imposition of discipline is another absolute, as upheld by virtually the
entire main arbitration panel and even acknowledged by Management
advocates. The first pre-disciplinary
meeting was scheduled for November 30, 1990.
No indication was given as to why it could not proceed without the
Grievant. ODRC has done so in the past
and the Grievant was on notice that failure to appear would constitute a
waiver. That Management rescheduled the
hearing is irrelevant. The only notice
the Grievant has is that for November 30; the only notice the Union has is for
November 30. The relevant date is
therefore November 30, and the director signed the removal order on the 46th
day.
The Union
acknowledges that the Grievant's disciplinary history justifies removal for the
alleged offense, but this does not release Management from its Contractual duty
to afford the Grievant due process. In
the Union's view, the multiple and grievous procedural errors call for
reinstatement with full back pay.
VIII. Opinion of the
Arbitrator
There is
virtually no question that the Grievant knew that inmates were out of place on
his post and allowed it to happen. This
is evident from his reaction when Sgt. Klopfenstein discovered them and from
his statement in the unit manager's office.
The Union suggests that the Grievant's testimony and pass logs would
rebut Management's case, but does not offer that evidence, despite multiple
opportunities to do so. It further
argues that the absence of discipline against the inmates supports the
proposition that they were not out of place. Management, however, provided a reasonable
explanation for not having disciplined the inmates. Management clearly has borne its burden of proof and its case is
unchallenged by any evidence whatsoever.
The Grievant is guilty as charged.
Given his disciplinary history, which shows a flagrant disregard for the
rules of the workplace and the Employer's efforts to redeem him, removal is
warranted.
The Union raises
several due process issues which it argues merit the overturning of the
removal. The first of these is absence
of the Employer representative from the pre-disciplinary conference. The right to meet with this person is
unwaiverable, contends the Union. It is
true that the Contract states that this person "shall be present at the
meeting unless inappropriate or if he/she is legitimately unable to
attend" (§24.04). However, the
same section also gives the employee the right to waive the entire
meeting. Surely if the whole is
waiverable, a part of the whole is also waiverable, and the unrebutted
testimony of Labor Relations Officer Stone was that the Grievant said he did
not want the Management official there.
Moreover, when the pre-disciplinary conference was ultimately held, the
Union representative did not object to Management's absence. The purpose of having the Employer
representative at the pre-disciplinary meeting is so that the employee can
confront his accuser. If neither
interested party--the employee who is interested in the disciplinary outcome
and the Union who is interested also in the integrity of the Contract- cares to
question Management or to hear or react to information the Management
official may have provided, his absence does not make the procedure unfair.
A second due
process issue is with regard to the inmate statements which should have been
provided if they were to be used against the Grievant. The pre-disciplinary hearing officer
disavowed having ever read them, although he knew of their existence. To what extent, if any, they might have been
relied upon by higher levels of management cannot be determined from the
record, since there is no reference to them until the Step 3 response. Again the Union makes an allegation--that
they must have been used somewhere in the disciplinary process--without
providing evidence that the assertion is true.
In any event, Management's case both at the pre-disciplinary meeting and
in arbitration was made without them, and so the Grievant was not harmed by
their having been withheld in the pre-disciplinary stage.
Finally, there is
the timeliness of discipline issue.
Whether Management adhered to the 45-day time limit depends on whether
the pre-disciplinary meeting was concluded on November 30. If the answer to this is yes, then the
removal order was signed on the 46th day and the Employer is in violation of
§24.05. Labor Relations Officer Stone's
testimony indicates that it was not an unusual practice to reschedule these
meetings. Although the language of the
pre-disciplinary letter puts the employee on notice that failure to appear
could result in waiver of the conference right, the Employer is not bound to
proceed with a conference as originally scheduled. The boiler-plate of the letter provides for extenuating
circumstances, there is a custom of rescheduling, and the Contract is
silent. I conclude that the Employer
has exercised its discretion and that it has done so properly to afford the
Grievant an opportunity to be heard rather than to eclipse his rights, as
suggested by the Union.
In conclusion, I
do not agree with the Union that the fact pattern depicts a scenario of
grievous abrogation of due process. In
another context, to be sure, I could take a dim view of the absence of the
management official from the pre-discipline conference, withholding of witness
statements, and repeatedly rescheduled meetings ultimately held without two
principals. Here, however, the Grievant
first agrees to take responsibility for the inmates' behavior, simultaneously
states his disinterest in the consequences, and then follows through by failing
to appear at any of the many opportunities afforded him to protect whatever
interest he may have in his job and reputation. Management did not deprive the Grievant of a fair consideration
of his case by acceding to his disinclination to confront his accuser, not
supplying unused evidence prior to grievance discovery, repeatedly postponing
the conference because of the Grievant's failure to appear, and finally
informing him before the discipline decision that the meeting had been
held. This is a pattern of Management
attempts to complete the discipline process without abrogating the due process
rights of an employee who has held himself apart throughout. Management cannot be said here to have
breached the just cause standard or to have otherwise violated the
Contract. Indeed, if any party deprived
the Grievant of a full consideration of his case, it was the Grievant himself.
IX. Award
The grievant was
removed for just cause. Accordingly,
the grievance is denied in its entirety.
Anna D. Smith, Ph.D.
Arbitrator
September 17, 1991
Shaker Heights, Ohio