ARBITRATION
DECISION NO.:
429
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Rehabilitation Services
Commission
Bureau of Disability
Determination
DATE OF
ARBITRATION:
February 25, 1992
DATE OF
DECISION:
April 13, 1992
GRIEVANT:
Jeanette Sammons
OCB
GRIEVANCE NO.:
29-04-(91-06-24)-0102-01-09
ARBITRATOR:
Anna Smith
FOR THE
UNION:
Steve Lieber
Advocate
Robert Robinson
Second Chair
FOR THE
EMPLOYER:
Darla J. Burns
Advocate
Rachel L. Livengood
Second Chair
KEY WORDS:
Removal
Drug Abuse
AWOL
EAP
Drug Free Workplace Act
ARTICLES:
Article 24-Discipline
§24.01-Standard
§24.02-Progressive Discipline
§24.05-Imposition of Discipline
§24.06-Prior-Disciplinary
Actions
§24.08-Employee Assistance
Program
FACTS:
The grievant, an Office Assistant 2
at the Bureau of Disability Determination, was removed in June, 1991 for
unapproved absences, conviction of a drug charge, and failure to report the
conviction, thus violating the State's Drug-Free Workplace Policy. On June 15, 1990, the grievant received a
written reprimand for being AWOL on May 25, 1990. Additional unapproved absences resulted in a 10 day suspension
effective March 11, 1991, which was later reduced to a one day suspension
through arbitration. The grievant pled
guilty to drug abuse charges and paid a $75 fine. The agency became aware of this conviction and approached the
grievant but she allegedly denied the conviction. The grievant was then removed from employment by the agency.
EMPLOYER'S
POSITION:
The employer asserts that it is
required by law to discipline the grievant because of her drug conviction. The state claims that the grievant was
convicted, did not inform her employer as required, and was dishonest when
asked about it. The employer claims that the drug conviction, coupled with her
absenteeism problems warrants her removal even though she had only received a
one day suspension prior to her removal.
UNION'S
POSITION:
The union points out that the
agency's drug policy omits possession of drugs as a disciplinary offense and
claims that the employer tried to cover its error by asserting that the phrase
"in any way" includes "possession." The investigation, claimed the union, was
not fair and objective inasmuch as the employer talked only to management
personnel. Finally, the union contends
that the penalty was not progressive nor reasonably related to the offense, and
did not take into account the grievant's good work record, year-long EAP
involvement, and health problems. What
it did consider, the union claims, is her tenure and actions as a union
steward.
ARBITRATOR'S
OPINION:
The arbitrator recognizes the
employer's right to implement and enforce a drug policy but cautions that
enforcement of such a policy cannot be done in violation of the provisions of
the Contract. First, the arbitrator
points out that the employer is not required to remove an employee upon his/her
first drug offense.
The arbitrator concluded that the discipline was not progressive in
light of the grievant's past discipline.
Further, the arbitrator finds that the phrase "in any way"
does not include possession of drugs.
As for the absenteeism problem, there is no doubt that it exists. However, removal is too severe a punishment
for such actions.
AWARD:
The grievance is sustained. The removal is set aside and reduced to a
ten day suspension. This award is
conditioned upon the grievant's participation in and compliance with her
Employer's Employee Assistance Program.
The grievant is further placed on notice that a second violation of the
drug policy will warrant her removal.
TEXT OF
THE OPINION:
In the Matter of Arbitration
Between
STATE OF OHIO,
REHABILITATION SERVICES
COMMISSION
and
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION, LOCAL 11,
A.F.S.C.M.E., AFL/CIO
OPINION and AWARD
Anna D.
Smith, Arbitrator
Case
29-04-910624-0102-01-09
Jeanette
Sammons, Grievant
Removal
Appearances
For the State of Ohio:
Darla J.
Burns; Assistant Staff Attorney,
Ohio
Rehabilitation Services Commission; Advocate
Rachel L.
Livengood; Ohio Office of Collective Bargaining;
Second
Chair
Bruce
Hicken; Area Manager, Bureau of
Disability
Determination; Witness
Lori
Trinkley; Human Resources Officer; Witness
Bruce
Mrofka; Manager, Human Resources/Labor Relations;
Witness
For OSCEA Local 11, AFSCME:
Steven
Lieber; Staff Representative, OCSEA Local 11,
AFSCME,
AFL-CIO; Advocate
Robert
Robinson; Staff Representative, OCSEA Local 11,
AFSCME;
Second Chair
Jeanette
Sammons; Grievant
Karen
Vroman; Steward; Witness
Tina
Moody; Chief Steward; Witness
Radene
Matheny; Witness
Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:15 a.m. on February 25, 1992,
at the offices of the Ohio Civil Service Employees Association, 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. The oral hearing concluded at
3:00 p.m., February 25, 1992. The case
was argued by briefs which were exchanged through the arbitrator on March 11,
1992, whereupon the record was closed.
This opinion and award is based solely on the record as described
herein.
Issue
The parties stipulated that the issue to be decided by the
Arbitrator is:
Did management remove the grievant for just cause?
If not, what shall the remedy be?
Joint Exhibits
1. 1989-91 Collective
Bargaining Agreement
2. Discipline Trail:
Notification of Request for Discipline
Pre-Disciplinary Meeting Notice
Pre-Disciplinary Report and Recommendation
Termination Notice
3. Grievance Trail:
Grievance
Step 3/Step 4 Response
Demand for Arbitration
4. 1987-1991
Evaluations of Grievant's Performance
5. Phone Logs of
Barry Snider
6. EAP Participation
of Grievant
Case History
The Grievant in
this case was removed from State employment in June 1991 for unapproved
absences, conviction of a drug charge, and failure to report the conviction in
compliance with the State's Drug-Free Workplace Policy. At the time of her discharge, the Grievant
had ten years of continuous service with the State plus an additional three
years in the 1970s. The position from
which she was removed was Office Assistant 2 at the Bureau of Disability
Determination. She also served as a Union
steward.
The Bureau is one of three
comprising the Ohio Rehabilitation Services Commission, whose mission is
"to work in partnership with people with disabilities to assist them to
achieve full community participation through employment and independent living
opportunities" (Union Ex. 1). The
function of the Bureau where the Grievant was employed is the adjudication of
social security disability claims. As
such, the Bureau is funded by the Federal Social Security Trust Fund and is
thus subject to the Drug-Free Workplace Act of 1988. Amongst else, this Act requires Federal contractors to certify
(A) publishing a statement notifying employees
that the unlawful manufacture, distribution, dispensation, possession, or use
of a controlled substance is prohibited in the person's workplace and
specifying the actions that will be taken against employees for violations of
such prohibition;
(F) imposing a sanction on, or requiring the
satisfactory participation in a drug abuse assistance or rehabilitation program
by, any employee who is so convicted, as required by section 5154; . . . .
(State Ex. 6)
The Policy adopted by the State of Ohio to comply with
provisions of the Acts states in relevant part
1. Any state employee
who, in any way, uses, gives, or transfers to another person a controlled
substance or who sells or manufactures a controlled substance while at his or
her place of employment or at any place where State of Ohio business is or
would be conducted will be subject to discipline, up to and including
termination.
3. Each state
employee is required by law to inform his or her State of Ohio employer within
five (5) days after he or she is convicted for violation of any federal or
state criminal drug statute where such violation occurred at the worksite. A conviction means a finding of guilty, no
contest (including a plea of nolo contendre) or the imposition of a sentence by
a judge or jury in any federal or state court.
5. If an employee is
convicted of violating any criminal drug statute while at the workplace, he or
she will be subject to discipline, up to and including termination.
(State Ex. 6)
By the Grievant's
own admission, she has a drinking history pre-dating 1988, but during that year
she entered a difficult personal relationship with a co-worker and her alcohol
problems escalated. Her performance reviews
are indicative of the progression of her drug and alcohol abuse as her ratings
slipped from favorable in 1987 and 1988 to neutral in 1989 and 1990, and to
unfavorable in 1991. Her supervisor's
comments explaining the poor ratings in the last two years relate them to
excessive absenteeism. Her performance
when at work was nevertheless satisfactory (Joint Ex. 4). In 1990 she exhausted all leave
balances. As a result of her attendance
problems, she was informed on April 27, 1990, that the Bureau would no longer
authorize unpaid leave and warned of disciplinary consequences of being AWOL (State Ex.
1). On June 15, 1990, she received a
written reprimand for being AWOL on May 25, 1990. Additional unapproved absences resulted in a 10-day suspension
effective March 11, 1991, later reduced to one day in arbitration. After her pre-disciplinary meeting on the
latter action, the Grievant continued to take unauthorized leave, accumulating
19 hours from February 12 through March 8 (State Ex. 11).
In the meantime, the Grievant's
relationship with her co-worker had become troubled was ultimately broken
off. About this time--May 1990--the
Grievant entered the State's Employee Assistance Program, seeking help with her
difficulties. She testified that her
former boyfriend had begun to harass her at work. Two witnesses told of incidents they observed. The harassment was reported to the
Grievant's supervisor and to the Area Manager, Bruce Hickins, who later came to
believe that the harassment stopped.
However, the Grievant testified this was but a temporary cessation, and
that it continued even after she spoke with the Agency's EEO officer. An EEO complaint was ultimately filed, in
May 1991, contemporaneously with the Grievant's request for Employer
accommodation to her disability and the Employer's pre-disciplinary action
against her.
The events that directly led to the
Grievant's removal began with an anonymous phone call to the State Highway
Patrol in November 1990. (The Union suggests this call was actually placed by
the Grievant's former boyfriend, who had recently threatened her.)
The caller reported that the Grievant smoked marijuana in her car while it was
parked in the Ohio Rehabilitation Services Commission parking lot (State Ex.
4). The Highway Patrol initiated an
investigation, during which drug paraphernalia and a small amount (less than
100 grams) of marijuana was obtained from the Grievant's vehicle during working
hours in the Commission's parking lot (State Ex. 5). The Grievant was charged with Drug Abuse 2925.11(A) O.R.C. on the
advice of her attorney, who said the offense was a minor misdemeanor for which
no criminal record would be established, the Grievant pled guilty, and paid the
$75 fine (State Ex. 8). The Agency's
Human Resources Officer, Lori Trinkley, was informed of these events, and asked
the Grievant during an investigatory meeting March 25, 1991, whether she had
been convicted. The Grievant twice said
she had not. When she was confronted
with the Drug-Free Workplace Policy which requires the employee to report
conviction for worksite violation of a federal or state criminal drug statute
(State Ex. 6), she said--again based on her attorney's advice--that this did
not apply to her since her offense was a minor misdemeanor. The Grievant was then informed that
discipline would be sought for accumulated AWOLs and drug policy violations.
The Grievant testified she became
despondent over the amassed weight of her problems. On March 28, she called off work, began to drink, and consumed
the Prozac and Xanax she had available (her psychologist had referred her to a
doctor for anti-anxiety medication (Union Ex. 7)). She remembers nothing until the next day at about 5 p.m. when
she received a phone call from friends who were concerned about her absence
from work. One, Radene Matheny,
testified the Grievant was in very bad condition when she arrived at the
Grievant's home, and that she found a number of suicide notes there. The Grievant was admitted to the hospital
that evening. She testified she
remained in intensive care until transferred to the drug and alcohol treatment
unit. Altogether she was hospitalized
two weeks, returning to work on April 15 (State Ex. 3 and 14). During this period, from April 1-12, she was
carried on approved leave status so as not to jeopardize her disability claim. The absences of March 28 and March 29,
however, were not approved.
On April 19, 1991, the Grievant was
informed the Director of the Bureau was seeking her removal for neglect of
duty, dishonesty, insubordination and failure of good behavior (Joint Ex.
2). A pre-disciplinary meeting was held
May 6, 1991, at which time the Grievant requested that disciplinary actions be
held in abeyance during her EAP participation (Joint Ex. 2). Before the hearing officer's report and
recommendations were issued, the Agency received word that the Grievant was
considered out of compliance with the EAP (State Ex. 12). The Grievant testified that this was because
she was placed with a new doctor when discharged from the inpatient program,
and the EAP coordinator had not yet received notification of the change.
On June 3, the hearing officer's
finding of just cause was issued. The
removal order was issued June 14 (effective the same date), citing the
"extremely serious" failures and the Grievant's disciplinary record
of a written reprimand and 10-day suspension (Joint Ex. 2).
A grievance was filed June 24, 1991,
protesting the removal as being in violation of multiple sections of the
Contract and seeking reduction of discipline, reinstatement, and restitution
for losses. Being processed through the
grievance procedure without resolution, the dispute came to arbitration, free
of procedural defect, for final and binding decision (Joint Ex. 3).
Arguments of the Parties
Argument
of the Employer
The Employer's
position is that it has clearly demonstrated that the Grievant was removed for
just cause.
First addressed is the issue of the
drug offense. The Employer points out
that the Drug-Free Workplace Act requires it to take disciplinary action if an
employee is convicted of a criminal drug statute as a result of workplace behavior. The Grievant was so convicted within the
meaning of the Act, which defines a criminal drug statute to be "involving
manufacture, distribution, dispensation, use, or possession of any controlled
substance."
The Employer disputes the Union's
reliance on State v. Weber for two reasons. First, Weber predates the Act and thus is not
controlling. Second, the Weber
case does not stand for the proposition that the Grievant's offense is not a
conviction because it is a minor misdemeanor.
Instead, the Employer argues, the Weber case established minor
misdemeanors as "offenses" for purposes of expungement statutes,
although 2925.11(D) relieves the individual from disclosing such conviction
when asked. Since the Employer here
could retrieve her conviction, it must be part of the criminal record archives. Therefore, the Drug-Free Workplace Policy
applies and has been violated. The
Employer further points out neither the Act nor the Policy distinguishes
between felonies, misdemeanors, and minor misdemeanors. That the Grievant's offense was a minor
misdemeanor is therefore not relevant.
The Employer additionally notes that
the Grievant was on notice of the Policy through training and distribution of
the pamphlet, and that her claim of attorney's advice is without
corroboration. In sum, the State asserts
she was convicted, did not inform her Employer as required, and was dishonest
when asked about it.
The State next turns its attention
to the unauthorized absences, only one of which it sees disputed by the
Grievant (March 29). Here it challenges
the Union claim of extenuating circumstances by calling into question the
veracity of witness Matheny's testimony about her concern for the Grievant and
by noting the lack of independent medical evidence of a suicide attempt and/or
coma prior to hospital admission. While
it can only speculate as to how it might have acted had it received evidence
this claim is true, the Employer points out it did grant two weeks unpaid leave
despite the April 27, 1990 cut-off.
Regarding the Grievant's claim that
her problems were caused by her former boyfriend's harassment and the
Employer's failure to stop it, the State says her alcohol and
attendance problems go back to 1981-82, prior to her relationship with the
co-worker. The State also denies it
gave lax attention to the claim of harassment, thinks it is simply part of a
pattern of charges and countercharges in a soured relationship, and points out
that the EEO case has been adjudicated in another forum.
The Employer last takes up the level
of discipline. Although the Grievant
has only a written reprimand and a one-day suspension on her record, the drug
offense is so serious as to warrant termination. In support, the State offers Cooper & Barber v. Ohio
Department of Rehabilitation & Corrections wherein
removal was upheld for 3-1/2 and 7-1/2-year employees with short or no prior
discipline records. Allowing there are
differences between the two agencies, the Employer nevertheless argues a
similarity in the impact of drug offenses on the Agency's ability to carry out
its mission through loss of Federal funding.
In conclusion, the State contends
the Grievant was dishonest in failing to report her conviction, was
insubordinate in her absences without leave and failure to call in properly,
and neglected her duties by her continued absences.
For all these reasons the Employer
asks that the grievance be denied in its entirety.
Argument
of the Union
The
Union argues that the evidence shows beyond even a reasonable doubt that
Management removed the Grievant without just cause. Indeed, it goes on, the evidence shows that the same Employer
whose stated mission is partnership with people with disabilities has acted
insensitively towards one of its own disabled staff.
The Union further contends that the
Wellness training received by the Grievant on the drug policy was not as
represented by Employer witnesses. The
Human Resources Officer did not know what the training was about. Additionally, the Drug-Free Workplace Act of
1988, the text of which was deceptively included in the State's Exhibit 6 as if
it was part of the packet given to employees, was never any part of training
nor even given to employees.
The Union points out that the Policy
omits possession of drugs as a disciplinary offense and claims Management tries
to cover its error by asserting that "in any way" includes
"possession." Moreover,
Management erroneously excludes R.C. 2925.11(C)(3) and (D) and appropriate case
law (State v. Weber) which provide exceptions for minor misdemeanor
convictions, such as the Grievant's.
The investigation, claims the Union,
was not fair and objective inasmuch as Management talked only to Management
personnel. Additionally, the Employer
took no action against the harasser and tried to cloud the issue by including
absenteeism which its insensitivity helped to create.
Finally, the Union contends that the
penalty was not progressive nor reasonably related to the offense, and did not
take into account the Grievant's good work record, year-long EAP involvement,
and suicide attempt. What it did
consider the Union claims, is her tenure as a Union steward.
In conclusion, the Union asks that
the Grievant be returned to work with appropriate modification of the
discipline and award of back pay, seniority and benefits.
Opinion of the Arbitrator
At
the outset, it bears stating that the right of the Employer to promulgate
reasonable policies and rules to guide employees' work-related conduct is not
questioned. Certainly a drug and
alcohol policy that protects the Employer's interest in retaining its source of
funding and its employees' job performance has legitimate ends. So, too, do rules concerning
absenteeism. But--and this is where the
Employer has failed here--no rule may be applied with disregard for employee
rights agreed to by the Employer at the bargaining table. The contractually guaranteed rights violated
here are just cause (§24.01), progressive discipline (§24.02) and nonpunitive
discipline (§24.05).
I first take up the incidents
surrounding the Grievant's undisputed possession of marijuana at the
worksite. The Employer' s reliance on
the Drug-Free Workplace Act and Policy to justify removal is misplaced, for neither
requires the penalty of discharge. The
Act states
"(1)
take appropriate personnel action against such employee up to and
including termination; or (2) require such employee to
satisfactorily participate in a drug abuse assistance or rehabilitation program
approved for such purposes by a Federal, State, or local health, law
enforcement, or other appropriate agency."
(§5154, State Ex. 6, emphasis added)
The Policy is similarly permissive with respect
to discipline, stating in both (1) and (5) that the employee is subject to
discipline "up to and including termination." Both the Act and the Policy thus anticipate
instances where discipline less severe than removal would be appropriate. Therefore, neither the Act nor Policy is in
conflict with the Contractual mandate for "reasonable and
commensurate" disciplinary measures or the Contract's allowance for
abeyance of discipline pending EAP completion (§24.08). In fact, the Act makes specific provision
for rehabilitation, and the Employer's Policy pamphlet itself urges
consultation with the Ohio EAP.
The Employer also contends that the
bare fact of the Grievant's conviction justifies removal. This argument ignores the Ohio criminal
justice system's view that possession of a small amount of marijuana, although
against public interest, is a minor misdemeanor. In some settings, such as the Department of Rehabilitation and
Corrections, removal on a first workplace drug offense of any degree could be
justified. In other settings, however,
a factor to consider in evaluating the commensurateness of the penalty is the
gravity of the drug offense. Such is
the case here.
The Employer further states that
removal is justified because its ability to accomplish its mission is
compromised by the Grievant's behavior.
This is patently not true.
Federal funding is threatened by employer conduct (§5152(b)), not
one employee's single worksite minor misdemeanor, and the Act specifically
allows the
Employer certain flexibility in dealing with convicted employees. In sum, neither the existence of the Act and
Policy nor their specific provisions relieves the Employer of its contractual
obligation to discipline for just cause.
None of this is to say that the
Grievant's behavior should be condoned because it constitutes only a minor
misdemeanor. It is an undisputed fact
that the marijuana was obtained from her car while it was parked in the
Employer's parking lot, that she was convicted, and that she was on notice
through Item #5 and the general anti-drug message of the Policy. Corrective action is called for, but it must
be within the bounds of the Contract's just cause requirement.
Although the Grievant is guilty of
violating Item #5 of the Policy, violations of Items 1 and 3 were not
sufficiently established. Item 1 makes
using, giving, transferring, selling and manufacturing controlled substances
violations. The Grievant stands accused
of none of these. The Employer argues
that the phrase "in any way" means that possession is a violation,
too. No doubt the Employer intended to
include possession as an offense since the Act requires it, but I cannot see
how "in any way" conveys this.
The apparent meaning of "in any way" is "knowingly or
otherwise." If the Employer
intended an unconventional meaning, it has the duty to explain this to its
employees lest they conclude that what is omitted from a list of specifics is
not subject to discipline.
The
Grievant is also not guilty of dishonesty either in failing to report her
conviction or in her answers to Human Resources Officer Trinkley's
questions. Her testimony that she
relied on her attorney's advice that she had no record and thus was exempt from
reporting it was credible. This is
particularly so since she gave this defense as early as the investigatory
interview. Since she gave the truth as
she knew it to be, she was not intentionally dishonest.
Turning now to the absenteeism
issue, there is no question that the Grievant has shown a disregard for the
Employer's need for regular attendance and its prior attempts to bring her into
compliance with acceptable standards.
It is also evident that her attendance history is associated with her
history of alcohol and drug abuse, much of which she seems to blame on her
ex-boyfriend and employer. Whether,
instead, her relationship and work problems are themselves the result, rather
than the cause, of alcohol and/or drug abuse is for the Grievant to discover in
her recovery. In any event, the
Arbitrator cannot shield the Grievant from her own behavior, however it is best
explained. The fact is that the
Grievant presents a series of absences that occurred after she was warned of
the consequences and disciplined twice.
However, it was unreasonable for the Employer to ignore the
circumstances under which the Grievant was admitted to the hospital on March
29. If the Employer doubted her claim
that she was in no condition to call in or appear for work on March 29, it
should have asked for corroborating evidence before deciding to discipline her
for this particular absence. Setting this absence aside, corrective action is still warranted
for the prior unexcused absences.
Removal, however, is too severe, as being neither corrective nor
progressive following a one-day suspension.
The Arbitrator is disturbed by the
atmosphere in which this employee was terminated. The picture that emerges from the evidence and argument is that
of a cold and unduly harsh employer.
Though its mission states a commitment to the disabled, it enforces a
drug and alcohol policy punitively rather than supportively, ignoring
legislated and bargained flexibility in favor of a rigid maximum penalty. It submits evidence of training its staff in
drug and alcohol abuse, including identification and intervention, yet it
ignores the evidence of such a problem in a long-term, otherwise
well-performing employee. It is true
that the Grievant has violated both attendance requirements and drug policy,
but the discipline meted out disregards the degree of the drug violation, the
extenuating circumstances of her admission to the hospital, her attendant
illness and apparent confrontation with and acceptance of it, and the long
record of good service before alcohol affected her attendance. The disciplinary action was also accompanied
by an unwillingness to investigate and consider fairly claims made by the
Grievant and her Representatives, such as her suicide attempt and EAP
participation. If this Employer was not
disciplining the Grievant to punish her, at the very least it acted arbitrarily
in failing to consider the totality of her conduct and the circumstances
that surrounded it. For these reasons I
find for the Union.
Award
The
removal of the Grievant, Jeanette Sammons, was not for just cause. The grievance is sustained. The removal is set aside and reduced to a
ten (10) day suspension without pay for violation of drug policy and unexcused
absences. The Grievant will receive
back pay, benefits and seniority retroactive to the date of her removal less
the ten days suspension, normal deductions, and any earnings she may have had
in the interim on account of her unjust dismissal. Further, the record of her absence of March 29 will be changed to
reflect excused unpaid leave. This
award is conditioned upon the Grievant's participation in and compliance with
her Employer's Employee Assistance Program.
The Grievant is further placed on notice that a second violation of the
Drug-Free Workplace Policy will provide grounds for her removal. She is also warned that further unexcused
absences during the Contract's 24-month statute of limitations (§24.06) will
subject her to further discipline, up to and including removal.
Anna D. Smith, Ph.D.
Arbitrator
April 13, 1992
Shaker Heights, Ohio