ARBITRATION
DECISION NO.:
417
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Bureau of Employment Services
DATE OF
ARBITRATION:
January 14, 1992
DATE OF
DECISION:
February 10, 1992
GRIEVANT:
Gisela Babette
OCB
GRIEVANCE NO.:
11-09-(89-09-19)-0017-01-09
ARBITRATOR:
Anna Smith
FOR THE
UNION:
Brenda Goheen
Staff
Representative
FOR THE
EMPLOYER:
Victoria Ullmann
Advocate
Lou Kitchen
Second Chair
KEY WORDS:
Suspension
Elements of Theft
Transfer of Employee
Double Jeopardy
ARTICLES:
Article 24-Discipline
§24.01-Standard
FACTS:
The grievant was
a Data Processor II at the Ohio Bureau of Employment Services, and was
suspended in 1989 for thirty days for alleged theft of a magnetic tape under
the custody of the Bureau, and for unauthorized personal use of Bureau
information. The grievant was
transferred to a job with different duties, but without loss of rank or pay.
The magnetic tape
removed from the Bureau’s premises was a payroll tape belonging to the State
Auditor, which, although certain information on the tape is publicly available,
is collectively considered by the Bureau to be confidential. The grievant testified that she took the
tape home on a Friday because she believed the tape contained information which
would aid her in deciding what other State positions she might be interested in
applying for. She testified that she
intended to return the tape on Monday "so it would not be missed,"
but that her attempt to have the tape read failed, and the tape subsequently
disappeared. The grievant informed a
co-worker of the tape's disappearance, but she did not notify her supervisor.
The tape
librarian supervisor reported that the tape was lost, and the State Highway
Patrol found the tape while investigating another matter. The Assistant Director of Data Processing
conducted an investigatory interview with the grievant, who admitted taking the
tape. A pre-disciplinary conference was
held and the grievant was ordered suspended for thirty days.
EMPLOYER’S
POSITION:
The Employer
argued that the grievant removed a physical item from the worksite without
authorization, and that whether the item contained confidential information was
not the point. The grievant was aware
of the essence of her job, which was to provide security, and was aware that the
tape was not to be removed unless signed for by an authorized person. Her failure to sign the log raises doubt as
to her claim that she was only borrowing the tape.
The Employer
argued that a transfer along with a suspension does not constitute "double
jeopardy," and that it is allowed to protect its information, confidential
or not, as it sees fit. The grievant
did not suffer a demotion, and a thirty-day suspension is reasonable discipline
for an unauthorized removal of State property.
UNION’S
POSITION:
The Union
asserted that the four tests for theft articulated by arbitrator Pincus in the
Hurst decision should be applied. The
test requires that 1)Personal goods of another must be involved; 2) The goods
must be taken without the consent of the other; 3) There must be some
asportation (movement of the item taken); 4) Both the taking and the
asportation must be with an intent to steal, or an intent to deprive the owner
of his property permanently.
The Union argued
that the element requiring intent to deprive was missing in this case, since
the grievant meant only to borrow the tape.
The information contained on the tape was public information available
from the Ohio Department of Administrative Services, and the grievant testified
that she gained nothing by removing the tape.
The Union argued
that the dual penalties of transfer to another position and thirty-day
suspension constitute double jeopardy, since the penalties were for the same
conduct. The Union further claims that
a thirty-day suspension is not commensurate with the violation, especially
since the grievant was a relatively new employee with no prior discipline, and
since the Employer offered no proof that the grievant knew of the Bureau’s
policy of confidentiality. Under these
circumstances, counseling would have been the proper remedial action.
ARBITRATOR'S
OPINION:
The Employer
failed to prove the element of intent, and the grievant's testimony that she
intended only to borrow the tape was credible.
The grievant was accordingly found not guilty of theft. However, the removal of the tape was
forbidden by the Employer, and the grievant was aware of this. Thus she behaved surreptitiously, and must
be held accountable.
The Union's
double jeopardy contention is denied, since double jeopardy means that a person
is prosecuted twice for the same offense, not that a person receives two
punishments. The transfer of an
employee who breaches institutional security from what is essentially a
security function to a less sensitive position is an action reasonably related
to the Bureau’s operation. The transfer
was not a disciplinary measure because the grievant suffered neither loss of
rank or pay.
The thirty-day
suspension was not reasonably related to the seriousness of the offense. The offense was more serious than mere
carelessness, but justifies a corrective minor suspension.
AWARD:
The employer
improperly removed the Grievant because the Employer failed to provide
sufficient evidence to support the patient abuse charge, and the Employer had
the burden of proof and persuasion for the charge. The grievance is sustained, and the Grievant is to be reinstated
to his former position with full back pay, seniority and other benefits, less
interim earnings. The removal to be
expunged from the Grievant's personnel file.
TEXT OF
THE OPINION:
In the Matter of Arbitration
Between
STATE OF OHIO,
BUREAU OF EMPLOYMENT 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
11-09-890919-0107-01-09
Gisela
Babette, Grievant
Discipline
Appearances
For the State of Ohio:
Victoria
Ullmann; Legal Counsel,
Ohio
Bureau of Employment Services; Advocate
Lou
Kitchen; Assistant Chief of Contract Compliance,
Ohio
Office of Collective Bargaining; Second Chair
Jerald C.
Mann; Assistant Director, Data Processing, Ohio
Bureau of
Employment Services; Witness
Ada Jones;
Chief of Operations, Data Processing,
Ohio
Bureau of Employment Services; Witness
For OCSEA Local 11, AFSCME:
Brenda
Goheen; Staff Representative, OCSEA Local 11,
AFSCME,
AFL-CIO; Advocate
Gisella
Babette Fritzsche; Grievant
Frank
Ebner; Staff Representative, OCSEA Local 11,
AFSCME,
AFL-CIO; Witness
Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:15 a.m. on January 14, 1992,
at the offices of the Ohio Civil Service Employees Association, Local 11
AFSCME, AFL-CIO, Columbus, Ohio before Anna D. Smith, Arbitrator. The parties were given a full opportunity to
present written evidence and documentation, to examine and cross-examine
witnesses, who were sworn and excluded, and to argue their respective
positions. The record was closed upon
conclusion of oral argument at 11:30 a.m., January 14, 1992. This opinion and award is based solely on
the record as described herein.
Issue
By
agreement of the parties, the issue to be decided by the Arbitrator is:
Was the
discipline of the Grievant for just cause?
If not,
what is the remedy?
Joint Exhibits
1. 1989-91 Collective
Bargaining Agreement
2. Discipline and
grievance trail.
Case History
The Grievant in
this case, a Data Processor II at the Ohio Bureau of Employment Services, was
suspended in 1989 for thirty days for theft of a magnetic tape under the
custody of the Bureau and unauthorized personal use of Bureau information. The conduct that gave rise to this
discipline also resulted in her transfer to a job of different duties, but
without loss of rank or pay. The question
before the Arbitrator is whether the discipline was imposed for just cause and,
if not, what the remedy should be.
The tape the
Grievant admits taking is a payroll tape belonging to the State Auditor. Certain information on the tape is publicly
available, but collectively it is considered by the Bureau to be confidential. While in the possession of the Bureau (which
was responsible for its safe return to the Auditor), the tape was kept in a
secured area with access--including removal--limited to authorized personnel.
At the time she
removed the tape from the Bureau’s premises, the Grievant was a control clerk,
receiving and distributing magnetic material and computer runs. As such, she had physical access to the
tape. She had become interested in
applying for other State positions and so took the tape home on a Friday,
intending to have it read over the weekend to yield information she thought
would be helpful to her in deciding what jobs to bid on. She meant to return it on Monday "so it
would not be missed" (Grievant's testimony). However, the attempted reading was unsuccessful and the tape
disappeared. The Grievant told a
coworker about its disappearance, but not her supervisor.
Management came
to learn of the missing property in two ways.
First, the tape librarian supervisor reported it as lost on July 7,
1989, and an in-house search was launched.
Then, on July 12, 1989, the Highway Patrol reported it had discovered
the tape while investigating another matter.
The Assistant
Director of Data Processing, Jerald Mann, conducted an investigatory interview
with the Grievant, who admitted taking the tape. A pre-disciplinary conference was held and discipline
recommended. On September 6, 1989, the
Grievant was ordered suspended for thirty days, effective beginning September
11. This action was subsequently timely
grieved, alleging violations of Article 24 (Discipline) and any other relevant
articles of the Contract, state and federal laws. The remedy sought is that the Grievant "be reinstated to her
position and to be reimbursed for lost time and benefits. For the grievant to be made whole"
(Joint Ex. 2). The parties being unable
to resolve their differences, the grievance was ultimately appealed to
arbitration, where it presently resides for final and binding decision.
Arguments of the Parties
Argument
of the Employer
The Bureau argues
that whether the tape contained public or confidential information is not the
point. The fact is that the Grievant
removed a physical item without authorization.
She was well aware by the essence of her job, which is to protect
security, that the tape was not to be removed unless signed for by an
authorized person. That she did not
sign the log raises doubt as to her claim that she was only borrowing the tape.
The Bureau
further argues that despite testimony about lax application of policy within
the secure area, control of materials in and out of the area was not lax. The tape was not to leave the area except
according to policy.
Regarding the
Union claim of double jeopardy by both suspension and transfer, the Bureau says
it is allowed to protect its information whether confidential or not, and it
has the right to transfer employees to achieve that end. The Grievant did not suffer a demotion,
losing neither rank nor salary. A
thirty-day suspension, the Bureau maintains, is reasonable discipline for an
unauthorized removal of State property.
Argument
of the Union
The Union argues
for application of the four tests for theft cited by Arbitrator Pincus in the Hurst
decision (Parties’ G87-1494):
1) Personal goods of
another must be involved;
2) The goods must be
taken without the consent of the other;
3) There must be
some asportation;
4) Both the taking
and the asportation must be with an intent to steal, or an intent to deprive
the owner of his property permanently.
What is missing here is intent to deprive, for the Grievant
only meant to borrow the tape, which contained public information available
from the Ohio Department of Administrative Services. Moreover, the Grievant testified there was nothing she gained by
removing the tape. Arbitrator Drotning,
in a similar case (Hosier, #31-07-890323-0020-91-06) held that without
intent to steal there was no theft, only an error in judgment warranting a
written reprimand. Here, the Grievant
was removed from her job, placed in another (which she argues is below her
capabilities) and given a thirty-day suspension. These are two penalties for the same conduct and constitute
double jeopardy.
The Union further
claims a thirty-day suspension is not commensurate with the violation. She was a fairly new employee, having only
9-10 months of employment with the State, and no prior discipline. There is also no proof she knew of the
Bureau’s policy of confidentiality.
Under the circumstances, counseling would have been the proper remedial
action.
Opinion of the Arbitrator
Although it was
clearly established that the Grievant took the tape without authorization, the
State has not proved the difficult element of intent. On the contrary, the Grievant's testimony that she intended
merely to borrow the tape is credible, given that the tape itself was of no
value to her except as a medium for the information it contained. I thus find her to be not guilty of theft.
However, it is
also quite clear to me that what she did was forbidden by her employer and that
she knew it at the time. Why else would
she fail to sign the tape out and plan on returning it after the weekend
"so it would not be missed?"
I conclude she behaved surreptitiously because she knew she would be in
trouble if caught. How she came to know
taking the tape was unacceptable -- through training, by the essence of her
job, or otherwise--is irrelevant. She
knew it was wrong, but removed it anyway.
For this she must be held accountable.
The Union argues
that the discipline was not commensurate with the offense and constitutes
double jeopardy. I agree with the
former, but not the latter. The meaning
of double jeopardy is that a person is prosecuted twice for the same offense,
not that a person receives two punishments.
The problem with the disciplinary action here is not that it is the
result of two prosecutions or that there are two prongs to it, as the Union
argues, but that it is unreasonable for the actual offense. Transferring an employee who breaches
institutional security from what is essentially a security function to a less
sensitive one is certainly an action reasonably related to the Bureau’s
operation. Although the Grievant may
not feel challenged by her new duties, she suffered neither loss of rank nor
pay. I therefore cannot find that the
transfer was a disciplinary measure, that it was uncommensurate with the
offense, or that it was taken solely for punishment.
The thirty-day
suspension is another matter. While it
is a lenient penalty for theft, as the Employer points out, it is not
reasonably related to the seriousness of the offense that was proved:
unauthorized use of State property. I
do not, however, think the offense was as trivial as the Union apparently does
because the essence of the Grievant's job was security, yet she deliberately
violated the Bureau’s security when she took the tape off site, evidently
allowed someone else to handle it, and finally lost it. It is fortunate the tape did not contain
more sensitive information, that no harm came to it, and that it was ultimately
found and returned. This offense is
more serious than mere carelessness and justifies a corrective minor
suspension. Accordingly, the discipline
is reduced to a one-day suspension.
Award
The grievance is
granted in part, denied in part. The
discipline of the Grievant was not for just cause. She is guilty of unauthorized use of State property for which she
will serve a one-day suspension without pay or benefits. Her personnel record will be expunged of the
theft charge for which she is found not guilty and she will be made whole for
29 days lost pay and benefits.
Anna D. Smith, Ph.D.
Arbitrator
February 10, 1992
Shaker Heights, Ohio