ARBITRATION
DECISION NO.:
432
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Administrative
Services
Division of Public Works
DATE OF
ARBITRATION:
March 17, 1992
DATE OF
DECISION:
April 25, 1992
GRIEVANT:
Michael Fitch
OCB
GRIEVANCE NO.:
02-03-(91-08-05)-0207-01-05
ARBITRATOR:
Anna Smith
FOR THE
UNION:
Robert W. Steele
Staff
Representative
Maxine S. Hicks
Second Chair
FOR THE
EMPLOYER:
Paul Kirschner
OCB, Advocate
KEY WORDS:
Removal
Theft
Possession of State
Property
ARTICLES:
Article 24-Discipline
§24.01-Standard
Article 25-Grievance Procedure
§25.02-Grievance
Steps
§25.05-Time
Limits
FACTS:
The grievant, a
3-1/2 year custodial worker employed by the Ohio Division of Public Works, was
removed for unauthorized possession of State property. The grievant had a long history of
discipline involving absenteeism and tardiness. Marking tape with a value of $96.00 and which belonged to ODOT,
was discovered in the trunk of the grievant's car when he was apprehended by
the Columbus Police Department on May 3, 1991.
As a result the grievant was removed from employment. The action was grieved at Step 3 on July 31,
1991. A Step 3 meeting was held on
September 9, 1991. The employer's
response denying the grievance was issued on February 26, 1992.
EMPLOYER'S
POSITION:
The employer
argues that absence of a timely Step 3 response to the grievance does not
constitute a fatal flaw, pointing out that there is no contractual bar to
management's ability to uphold discipline when a Step 3 response is late. As to the merits, the employer points out
that the grievant admits to possession of property taken from the ODOT
facility. The employer admits that the
evidence against the grievant is circumstantial, but contends that possession
of stolen property creates the presumption that the grievant took part in its
removal.
UNION'S
POSITION:
The union
contends that procedural defects are fatal to the employer's case in that the
Step 3 response was late. The union
further argues that the employer has failed to prove that the grievant is
guilty of having unauthorized possession of state property. The grievant was not aware that his job was
at risk when he took the discarded tape.
The employer also failed to investigate whether the supervisor permitted
the grievant to take the tape.
ARBITRATOR'S
OPINION:
The arbitrator
found procedural violations by the employer but did not find them sufficient to
set aside the removal. As for the
merits, the arbitrator found that it was an uncontroverted fact that the
grievant was in possession of ODOT property.
Where he found the tape and its value are irrelevant to this case. What does matter is whether he had
permission to take it. The arbitrator
found that he did not, and further that he knew it was necessary to obtain
consent to take state property.
Clearly, this employee violated that trust essential to the performance
of his duty and delivery of his employer's service.
AWARD:
The grievance is
denied in its entirety.
TEXT OF
THE OPINION:
In the Matter of Arbitration
Between
STATE OF OHIO,
DEPARTMENT OF ADMINISTRATIVE SERVICES,
DIVISION OF PUBLIC WORKS
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.:
02-03-910805-0207-01-05
Grievant:
Michael
Fitch
Removal
Appearances
For the State of Ohio:
Paul
Kirschner; Ohio Office of Collective Bargaining;
Advocate
Shirley
Turrell; Ohio Department of Administrative Services;
Director's
Designee
Ernest
Chesser; former Building Construction Superintendent,
Ohio
Department of Transportation; Witness
Thomas J.
Foody; Assistant to Deputy Director of Operations,
Ohio
Department of Transportation; Witness
Charles J.
Nishwitz; Investigator, Ohio Department of Transportation;
Witness
Robert N.
White; former Building Superintendent, ODAS
Division
of Public Works; Witness
For OCSEA Local 11, AFSCME:
Robert W.
Steele; Staff Representative, OCSEA Local 11,
AFSCME;
Advocate
Maxine S.
Hicks; Staff Representative, OCSEA Local 11,
AFSCME;
Second Chair
Michael D.
Fitch; Grievant
Tommy
Cannon; Witness
Larry G.
Leigh; Witness
Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:15 a.m. on March 17, 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 record was closed at the
conclusion of oral argument at 1:45 p.m., March 17, 1992. 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:
Was the
Grievant removed from his position for just cause?
If not,
what shall the remedy be?
They further stipulated that the case is properly before the
Arbitrator.
Joint Exhibits and Stipulations
Joint
Exhibits
1. 1989-91 Collective
Bargaining Agreement
2. Discipline Trail:
Notice of charge and placement on administrative leave,
5/9/91
Proposal to suspend/remove, 5/10/91
Pre-Disciplinary notice, 5/20/91
Pre-Disciplinary date change, 5/23/91
Pre-Disciplinary report, 6/11/91
Notice of removal, 7/19/91
3. Grievance Trail:
Grievance, 7/31/91
Notice of grievance review meeting, 8/28/91
Step 3 response, 2/25/92
4. Investigative
Reports:
Report of ODOT Investigator, Charles Nishwitz, 5/9/91
Notes in preparation for Nishwitz report, 5/6/91
Inter-office communication of Ernest Chesser to Charles
Nishwitz, 6/5/91
Stipulations
of Fact
The Grievant,
Michael Fitch, was in possession of two (2) boxes of highway marking tape that
were the property of the Ohio Department of Transportation.
Case History
The Grievant in
this case was discharged for unauthorized possession of State property in
violation of his employer's Rule #14, Failure of Good Behavior. At the time of his removal, he was a 3-1/2
year custodial worker employed by the Ohio Division of Public Works and
assigned to the second shift crew, cleaning the second floor of the Ohio
Department of Transportation’s central office in Columbus, Ohio. He was informed on his employer's work
rules, but had accumulated a record of seven disciplinary actions, largely for
absenteeism and tardiness. The most
recent and severest of these was a one-day suspension served on April 17, 1991.[1]
The property that
the Grievant is accused of having without authorization is marking tape with an
approximate value of $96.00 belonging to the Ohio Department of Transportation
(ODOT) . The tape was discovered in the trunk of the Grievant's car when he was
apprehended by the Columbus Police Department on outstanding arrest warrants
on May 3, 1991. Because the two unopened
"boxes had mailing labels on them addressed to ODOT, the Police Department
notified the Ohio State Highway Patrol, who in turn notified Investigator
Nishwitz of ODOT. Nishwitz launched an
investigation that ultimately led to identification of the property by Thomas
Foody of the Department. Mr. Foody
testified that the tape had been acquired in 1986 to mark traffic lanes and
parking stalls. The tape did not work
well for this purpose, so it was stored in an unsecured area of the
sub-basement for future alternative use.
After being notified that the tape had been recovered, Foody verified
that it was, in fact, missing from the storage area. He further testified that ODOT would not have discarded the tape,
that Public Works had no authority to do so themselves, and that it was
possible but unlikely to have been thrown away by accident. Ernest Chesser, Superintendent in charge of
the building, testified that 2-1/2 boxes had been stored (two full and sealed
with shipping tape, one open), and corroborated that they were missing although
he had not authorized their disposal.
Both these witnesses and Robert White, Public Works Building
Superintendent, agreed that a general clean-up of the building that occurred in
February or March of 1991 was confined to the offices and did not involve the
storage area.
The Grievant
denies stealing the tape. He and two
co-workers testified that trash-picking with supervisor permission is a common
practice at the building. They also
stated that the night after a general clean-up at the facility, the Grievant
found two boxes of tape in a trash cart. One or both were already open.
They further stated that the Grievant got permission from their
immediate supervisor (who did not testify) before he took the tape. The supervisor's alleged approval was not
previously reported by these witnesses, they said, because the Grievant asked
one to withhold the information for his lawyer and neither wanted to implicate
their boss. The Grievant's written
statement does include a reference to the supervisor's approval:
“... As we were emptying the trash cart we noticed two (2)
cardbord [sic] boxes that were already open in the trash cart. Tommy & I seen [sic] that it was tape
.... So I put the boxes in the trunk of my car.
About this time
it was about 11:45 p.m. I was on my way
back up to my floor (2nd) to turn off the lights. I was waiting elevator I heard some thing out in the garage. So I went out to see what it was, and I saw
Richard ... (the nigth [sic] supervicer [sic]). I told him about the tape, and he said since it was trash don't
worry about it and on my way back to the elevator I saw Richard staggering
around by his truck. I asked him was he
all rigth [sic]? And he said he
was. Thats [sic] when I noticed he
wasn't. He had almost [illegible] on
his [illegible]. I knew he was drunk so
I helped him back to his truck. I told
him to sleep it off and to be cool because [illegible] was still in the
building. Thats [sic] when I saw four
or five empty beer cans in the front seat.
And that was the last time I saw him until 12:30 a.m.”
(Union Ex.
4)
After discovery
of the tape in the Grievant's car, he was placed on paid administrative leave
pending disciplinary decision. The
Employer also pressed criminal charges against him, the outcome of which was a
bond forfeiture. As to the disciplinary
action, the Grievant was charged on May 20, 1991, with "Failure of good
behavior; Theft of state property; Violation of Ohio Revised Code 2921.41 -
Theft in Office" (Joint Ex. 2).
The pre-disciplinary meeting was duly conducted on June 4, 1991. The Hearing Officer's finding
of just cause for discipline was issued June 11, 1991, with a recommendation
that the theft-in-office charge be dropped.
The removal order was issued July 19, 1991, citing "Failure of good
behavior; Being in unauthorized possession of property belonging to the State
of Ohio, Department of Transportation.
Violation of Work Rule 14” (Joint Ex. 2).
This action was
grieved on July 31, 1991, at Step 3.
The grievance alleged violation of Article 24 (Discipline). Section 2.01 (Discrimination) was added
later. A Step 3 meeting was held on
September 9, 1991. The Employer's
response denying the grievance was issued February 26, 1992. Being still unresolved, the grievance came
to arbitration, where it resides for final and binding decision.
Arguments of the Parties
Arguments
on Procedure
The Union
contends that procedural defects are fatal to the Employer's case. It first asserts that it did not receive the
Step 3 response until March 12, 1992, a mere five days before arbitration. Article 25.02 of the Contract is not
permissive, the Union says, but requires a written response within 35 days of
the Step 3 conference:
Article-25
Grievance Procedure
§25.02 -
Grievance Steps
Step 3 -
Agency Head or Designee
A. Disciplinary
grievances (suspension and removal)
The Step 3
grievance response shall be prepared by the Agency Head or designee and
reviewed by the Office of Collective Bargaining. The response will be issued by the Agency Head or designee within
thirty-five (35) days of the meeting.
The response shall be forwarded to the grievant and a copy to one representative
designated by the Local Chapter Officer. Additionally, a copy of the answer will be
forwarded to the Union's Central Office.
This response shall be accompanied by a legible copy of the grievance
form.
(Joint Ex.
1)
The failure of
the Employer to meet its obligation indicates a lack of good faith to resolve
the grievance early in the process.
The Union also
contends that the Step 3 response is filled with inaccuracies. For example, there was no discussion of past
discipline at the hearing, nor did Management cite the Grievant's disciplinary
record in support of the removal.
Additionally, Management erroneously states that the Grievant worked on
the same floor where the property was stored.
Another
procedural defect, claims the Union, is the Employer’s reliance on the Code and
its use of rules pre-dating even the first Agreement between the parties. Despite what the State says, the Union
maintains citation of the Code is in violation of the Agreement since Article
43.01 states that the Contract supercedes State laws.
The Employer
disagrees that absence of a timely Step 3 response to the grievance constitutes
a fatal flaw, pointing out that there is no contractual bar to management's
ability to discipline under this circumstance.
It further notes that the Grievant was afforded due process rights in the
pre-disciplinary conference and the Union was not prevented from proceeding to
arbitration. Management additionally
claims that the Step 3 designee understood that an extension was in effect.
As to the Union’s
position that the work rules may not be applied since they reference 124.34
O.R.C., the State acknowledges that the work rules predate the contract, but
asserts they do not conflict with it.
The charge against the Grievant references a rule which merely gives
examples of inappropriate behavior under a concept originating in state
law. The Employer goes on to state that
the Union has not brought evidence that the Contract was intended to disregard
concepts of poor performance recognized under state law. In fact, says the State, the Union's former
executive director issued a statement in 1986 by which it was agreed concepts
of 124.34 would constitute just cause.
Since then the work rules of the Division of Public Works have stood
unchallenged. The Employer's position
is that the Union has long since waived its rights to challenge the rules.
Arguments
on the Merits
The Employer
first points out that the Grievant admits possession of property taken from the
ODOT facility. It contends that his
defense of merely participating in a common practice of trash-picking is
without merit. State evidence shows
that it was unlikely the tape had been discarded, and there is discrepancy in
the testimony about the number and condition of the boxes. Even if the tape had been found in the
trash, it was the employee’s obligation to get permission to take it from
someone in authority, and the Grievant knew this. The Grievant makes a mockery of authorization. In his statement he wrote that he ran into
his supervisor by accident after he put the tape in his car, and that when he
did, the supervisor was so drunk he had to help him to his vehicle. Now the Grievant testifies he sought the
supervisor out, taking the tape with him. The State goes on to contend that the
co-worker’s explanation for omitting the critical information about the
supervisor's permission from his statement is not credible. The State suggests the Grievant has
reconstructed his story with the aid of his friends to suit his own purpose.
The Employer
admits that the evidence against the Grievant is circumstantial, but contends
that possession of stolen property creates the presumption that the possessor
took part in its removal. This
presumption is essentially irrefutable if the employee does not tell the
employer he has it, says the State. In
support of this argument, the Employer references a decision by Arbitrator
Klamon (Allen Industries v. U.A.W., 26 LA 363) regarding the use of
circumstantial evidence, a decision by Arbitrator Seidenberg (Morgan
Millwork v. District 50, U.M.W.A.) affirming discharge for possession of
employer property and a decision by Arbitrator Smith (ODOT v. OCSEA,
Parties' Case No. 31-02-(01-11-91)-0003-01-06) sustaining removal for theft of
employer property of any value.
In conclusion, the
Employer requests that the removal be sustained and the grievance denied in its
entirety. Should the Grievant be
returned to work, the Employer asks the Arbitrator to accommodate the fact that
his job has been abolished.
The Union's
position on the merits is that the State has failed to prove that the Grievant
is guilty of violating Rule 14 or having unauthorized possession of State
property. Rule 14 is not specific
regarding possession of State property nor does it address property
found in the trash. The Grievant was
not aware his job was at risk when he took the discarded tape. He followed the procedure in practice at the
facility by asking permission of his supervisor, facts supported by two
witnesses. The State cannot say how the
property came to leave the unsecured area and get into the trash. It also failed to investigate whether the
supervisor permitted the Grievant to take the tape and did not report the
results of its investigation into the telephone incident.
In sum, the Union's
position is that the State lacks just cause for removing the Grievant. It asks that the grievance be upheld, the
Grievant reinstated and afforded all back pay, seniority and benefits,
including layoff and recall rights as specified in Article 18.
Opinion of the Arbitrator
The Union raises
several procedural points as threshold issues which can be summarized as
follows: do contractual violations
exist sufficient to invalidate the discharge without considering the Grievant's
guilt or innocence? Although I do find
procedural deficiencies, in my opinion they do not compel setting aside the
removal. The most serious of these is
the Employer's untimely Step 3 response.
I must agree with the Union that this indicates a lack of good faith
effort to resolve the grievance at an early stage and that the practice should
be discouraged. However, this
deficiency is not fatal for several reasons.
First, there is no evidence even suggesting that the Union sought the
response during the months it was overdue.
What this implies is that the Union, itself, was not eager for an
early resolution. Whatever the damage
to the grievance process, I suggest that the Union participated by its failure
to protest the delay until the case came to arbitration. Then, too, regardless of the parties'
intentions, the potential loss to this Grievant is only the pay and benefits he
might have received had he been returned to work sooner by settlement than by
arbitration award. Should the Grievant
be reinstated in arbitration, this loss can be remedied by awarding him back
pay at least from the date of the Union's protest to the date of the award.
A second reason I
do not hold that the violation of §25.02 invalidates the discharge, is that the
Contract itself contemplates tardy or nonforthcoming responses and provides a
remedy:
Article 25
Grievance Procedure
§25.02 -
Grievance Steps
Step 3 -
Agency Head or Designee
. . .
If the grievance
is not resolved at Step 3, the Union may appeal the grievance to arbitration by providing written notice and a legible copy
of the grievance form to the Director of the Office of Collective Bargaining
within thirty (30) days of the answer, or the due date of the answer if no
answer is given whichever is earlier. [Emphasis added]
§25.05 -
Time Limits
. . .
In the absence of
such extensions at any step where a grievance response of the Employer has
not been received by the grievant and the Union representative within the
specified time limits, the grievant may file the grievance to the next
successive step in the grievance procedure. [Emphasis added]
(Joint Ex.
1)
Thus, the Employer's lapse did not prevent the Grievant from
appealing his case, for the Union availed itself of the contractual remedy and
moved to arbitrate.
Yet a third
reason the discharge is not invalidated by the tardy Step 3 response is the
absence of any evidence or even a claim that the untimely receipt of the
response prevented the Grievant from receiving a full and fair hearing. In fact, he had such a hearing from me,
wherein his Union mounted a vigorous defense unblemished by the tardiness of
the Step 3 response. In conclusion, the
availability of adequate remedies makes this violation no bar to deciding the
case on its merits.
The same result
is obtained on the point of Step 3 response inaccuracies. None of those referenced by the Union are
resistant to correction in arbitration.
Indeed, one rarely finds that the parties are in accord on the facts of
a dispute. If they were, the important
fact-finding function of arbitration would not exist. What matters is not whether there are factual errors, but whether
those errors that do exist are relevant and correctable.
Another problem
claimed by the Union is the reference in the Work Rules to the Revised Code as
a basis for discipline. I have held
repeatedly and consistently that citation of the Code on discipline documents
such as pre-disciplinary hearing notices and removal orders does not invalidate
the disciplinary action. I see no
reason to rule otherwise here where the reference is in the Work Rules, since
the Employer does not attempt to use the Code to usurp <PAGE NAME="13">the authority of the
Contract, but merely to define unacceptable behavior.
Having crossed
the procedural hurdles raised by the Union, I turn now to the merits. It is an uncontroverted fact that the
Grievant was in possession of ODOT property.
Where he found the tape and its value is irrelevant to this case. What does matter is whether he had
permission to take it. I am convinced
he did not, and further, that he knew it was necessary to obtain consent to
take State property with impunity.
Beginning with
the Grievant’s knowledge of the consequences of his action, the Union says the
rules are inadequate notice because Rule 14 (Employee Discipline - Rights and
Responsibilities) and especially Example 4 (Failure of good behavior) do not
refer specifically to unauthorized possession of State property or to property
found in the trash. While it is true
that these rules are not as detailed as some promulgated by other State
agencies whose employees are represented by this Union, the Grievant had
adequate notice. First, the Grievant's
offense is one of the general class referred to in Example 4: "Any misconduct which violates
reasonable standards of conduct....” (Union Ex. 1). Second, it is clear to me that the Grievant knew appropriation
even of apparently discarded State property without authorization was improper
and therefore of this class because he and his co-workers testified that
getting a supervisor's approval was essential.
All instances of trash-picking related by these witnesses included a
supervisor's knowledge and approval, and the Grievant took
considerable care trying to establish that he had it in this instance.
I do not,
however, find his claim of authorization credible. His statement differs too much from his testimony to be explained
by nervousness. The co-worker's
explanation that he left out his observation of the supervisor's permission to
help his friend is simply too far-fetched, since the omission could only be
detrimental to the Grievant. More
credible is the story of the witness who said he did not write a statement
because he did not want to implicate his supervisor. Yet now he does implicate him to help his friend. The extent of these changes and the
different accounts of the boxes simply makes the version of events offered by
the Grievant unreliable. But even if I
did believe that the Grievant asked his supervisor, who then gave his consent,
I would still hold that authorization was not obtained. This is because the consent of someone so
intoxicated he had to be helped to his car is no consent at all.
The Union also
alleges a deficient investigation.
Inasmuch as the pre-disciplinary report makes no mention of a Grievant
defense of permission granted, the Employer would lack knowledge of any role
the supervisor might have played in the incident or even of his presence at the
time. Although the Employer did not
turn over every stone, its investigation was fundamentally fair. It had the strong circumstantial evidence of
ODOT property in the Grievant's possession, it looked to see if the tape was
missing from storage, it inquired into access, and it heard from witnesses on
both sides.
It remains to
determine whether the level of discipline is reasonable under the
circumstances. This employee was
entrusted with the property of his employer's client. It was central to his job.
Yet he appropriated some of that property for himself and later sought
to justify it by claiming to have gotten permission from a supervisor whom he
knew to be incompetent at the time to grant that permission. Clearly this employee violated the trust
essential to the performance of his duty and delivery of his employer's
service. Removal is justified.
Award
The grievance is
denied in its entirety.
Anna D. Smith, Ph.D.
Arbitrator
April 25, 1992
Shaker Heights, Ohio
[1] 1-day suspension, 11/21/89, neglect of duty; written reprimand, 12/8/89, tardiness; verbal reprimand, 10/29/90, neglect of duty; written reprimand, 10/30/90, tampering with State documents; written reprimand, 1/8/91, neglect of duty; verbal reprimand, 3/28/91, tardiness; 1-day suspension, 4/17/91, neglect of duty, failure to report absence and personal conduct.