ARBITRATION
DECISION NO.:
433
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Mental Retardation
and Developmental
Disabilities
Broadview Developmental Center
DATE OF
ARBITRATION:
March 19, 1992
DATE OF
DECISION:
May 6, 1992
GRIEVANT:
John McAlpin
OCB
GRIEVANCE NO.:
24-03-(91-06-30)-0417-01-04
ARBITRATOR:
Anna Smith
FOR THE
UNION:
Robert Robinson
Advocate
Gerald Burlingame
Second Chair
FOR THE
EMPLOYER:
Ed Ostrowski
Advocate
Lou Kitchen
Second Chair
KEY WORDS:
Removal
Client Abuse
ARTICLES:
Article 24-Discipline
§24.01-Standard
FACTS:
The grievant was
a Therapeutic Program Worker who had been employed by the Department of Mental
Retardation and Developmental Disabilities for nine years. The grievant had obtained $150 of client
funds to take clients on a trip. The
grievant was arrested while en route, and not having enough money to bail
himself out of jail, used the $150 for that purpose. He did this in order to avoid another absence from his job. He was questioned about the money before he
was able to repay it and he disclosed what happened in writing. The grievant failed to repay the money on
his pay day despite offers by the employer to go to the bank across the street
with him. The grievant did repay the
funds after the pre-disciplinary hearing on the advice of his steward. The grievant was removed for failure of good
behavior. The grievant also pleaded no
contest to theft charges.
EMPLOYER'S
POSITION:
There was just
cause for the grievant's removal. The
grievant used client's funds for personal use, to bail himself out of jail, and
failed to repay it for ten days despite the employer's accommodations for
repayment. The type of funds at issue
here are strictly controlled, thus arguments of lax control of funds are
misplaced. That the grievant disclosed
the incident of his arrest is not a sufficient mitigating circumstance as the
employer knew of the incident because it happened on work time.
UNION'S
POSITION:
Management has
failed to prove that the grievant violated an employer policy and management
has also failed to meet any of the tests of just cause. Retaining and reimbursing client funds on
payday is a long-standing practice.
Management's lax enforcement caused employees to believe that this
practice is acceptable. Because of the
grievant's prior disciplinary record, remaining in jail would have more
seriously jeopardized his position than using client funds for personal
use. Despite prior discipline, the
grievant works well with Agency employees, and removal is too harsh a penalty.
ARBITRATOR'S
OPINION:
Just cause is
determined by the existence of a clear rule and consistent enforcement of that
rule. The Arbitrator found that no
clearly articulated rule existed, but there was sufficient employee
understanding and enforcement to uphold the grievant’s removal. Usually client funds are retained or held
over until the next trip only with supervisory approval. The Union failed to present specific proof
that the grievant was treated disparately in violation of Article 2 of the
contract. Even though the grievant's
use of client funds was understandable under the circumstances, this was still
a violation because there was no supervisory approval. The grievant did not intend to deprive the
clients of their property; therefore, he is not guilty of theft. Management did not cause the grievant's
delay in repayment; there was no proof that the grievant even tried to pick up
his check on Thursday, and even after the grievant picked up his check, he
delayed several more days, without explanation, before repaying the debt. The grievant's willful failure to return
client funds is serious enough to justify the removal of even an employee who
has never been previously disciplined; therefore, removal of the grievant is
both reasonable and justified.
ARBITRATOR'S
AWARD:
The grievant was
discharged for just cause, and the grievance is denied in its entirety.
TEXT OF
THE OPINION:
In the Matter of Arbitration
Between
STATE OF OHIO,
DEPARTMENT OF MENTAL
RETARDATION AND
DEVELOPMENTAL DISABILITIES
and
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION, LOCAL 11,
A.F.S.C.M.E., AFL/CIO
OPINION and AWARD
Anna D.
Smith, Arbitrator
Case
24-03-910620-0417-01-04
John
McAlpin, Grievant
Removal
Appearances
For the State of Ohio:
Ed
Ostrowski; Labor Relations Coordinator,
Ohio
Department of Mental Retardation and Developmental Disabilities;
Advocate
Lou
Kitchen; Assistant Chief of Operations,
Ohio
Office of Collective Bargaining; Second Chair
Emma
Benson; Residential Care Supervisor, Broadview
Developmental
Center; Witness
Jack Duns;
Quality Assurance Director,
Broadview
Developmental Center; Witness
Officer
Michael English; Patrolman,
Broadview
Developmental Center; Witness
Arthur T.
Laney, Jr.; former Human Relations Director;
Broadview
Developmental Center; Witness
Tamala A.
Solomon; Labor Relations Officer; Broadveiw
Developmental
Center; Witness
For OCSEA Local 11, AFSCME:
Robert
Robinson; Staff Representative, OCSEA Local 11,
AFSCME;
Advocate
Gerald
Burlingame; Staff Representative, OCSEA Local 11,
AFSCME;
Second Chair
John
McAlpin; Grievant
Bennie
Davis, Jr.; Chapter President, OCSEA Local 11,
AFSCME;
Witness by subpoena
Robert
Ellis; Therapeutic Program Worker
and former
Steward; Broadview Developmental Center;
Witness by
subpoena
Barbara
Kennedy; Therapeutic Program Worker and
Chief
Steward; Witness by subpoena
Terence
Oliver; Therapeutic Program Worker, Broadview
Developmental
Center; Witness by subpoena
Gertrude
Robinson; Account Clerk, Broadview Developmental
Center;
Witness by subpoena
Robert E.
Reid; Therapeutic Program Worker, Broadview
Developmental
Center; Witness by subpoena
Dale A.
Walker; Therapeutic Program Worker, Broadview
Developmental
Center; Witness by subpoena
Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:00 a.m. on March 19, 1992, at
Broadview Developmental Center, Broadview Heights, 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.
The record was closed at the conclusion of oral argument at 4:30 p.m.,
March 19, 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 discharged for just cause?
If not,
what shall the remedy be?
Joint Exhibits and Stipulations
Stipulations
of Fact
1. The Grievance is
properly before the Arbitrator.
2. The Grievant was
employed at Broadview from 11/28/82 to 6/20/91.
3. The Grievant's
discipline on record has all been for attendance/tardiness violations.
4. None of the
Grievant's prior discipline is subject to grievance.
Joint
Exhibits
1. Removal Order
6/20/91
2. Grievance
24-03(6-20-91)417-01-04
3. Step Three
Response
4. Personal
Conference Notice
5. Administrative
Leave Notice
6. McAlpin Statement
7. Staff Incident
Report
8. Prior Disciplinary
Action:
31-day suspension, 1/2/91
30-day suspension, 5/14/90
20-day suspension, 11/19/89
10-day suspension, 6/23/89
6-day suspension, 2/8/89
1-day suspension, 12/2/88
9. 1989-91 Collective
Bargaining Agreement
Case History
The Grievant,
John McAlpin, was a Therapeutic Program Worker at the Broadview Developmental
Center, a facility of the Ohio Department of Mental Retardation and
Developmental Disabilities until June, 1991.
He had been similarly employed by the Agency for approximately nine
years with good performance reviews (Union Ex. 3) when he was discharged for
failing to return $150 of resident funds that had been issued to him. The intended use of the money was a May 11
excursion by a group of residents and accompanying staff for an evening of
recreation off the grounds of the facility.
There was an accident while the group was en route to their
destination. The police investigation
that evening revealed outstanding warrants on Mr. McAlpin. He was accordingly arrested and
incarcerated. Being unable to make bail
with his own resources, McAlpin became worried about his job because his
extensive history of attendance-related discipline had placed him at risk of
discharge if he did not report to work in a timely fashion (Joint Ex. 8). He therefore decided to use the residents'
money to bail himself out of jail in time to make his next scheduled
shift, on May 12. He intended to pay
back the Agency on his next payday which was within the week. He testified that he did not think this
would be a problem since it had been a common practice at the facility for
staff to make reimbursements of client funds on payday. Before he could repay the money, however, he
was questioned by Officer English, who had signed the money out to McAlpin
under a new procedure. Officer English
heard McAlpin's story and conferred with the Quality Assurance Director, Jack
Duns. Because the incident involved
client funds, formal proceedings were instituted. Officer English obtained a written statement from McAlpin (Joint
Ex. 6) in which he admitted what he had done and what his intentions were. A Staff Incident Report (Joint Ex. 7) was
prepared and McAlpin was placed on paid administrative leave (Joint Ex. 5),
informed of the charge against him and of the predisciplinary conference scheduled
for May 20, 1991 (Joint Ex. 4). The
Labor Relations Officer who went over this material with McAlpin and his
steward said they tried to work out something to prevent disciplinary action. She advised him to bring in the money. since
she was scheduled off the next day, she told him to give it to her boss, Arthur
Laney.
According to Mr.
Laney, the Grievant picked up his check the next morning, May 17. Laney spoke to him about cashing the check
and returning the money. McAlpin said
he was going across town to cash it.
Laney suggested the corner bank, offering even to take him personally
and arrange check-cashing approval, but McAlpin declined, saying he would
return to the facility later with the money.
The Grievant gives a different version, saying he could not return the
money on Friday because it was so late when he got his check (about 3:00 p.m.)
that no one was at the Center to give the money to.
The following
Monday, May 20, he still had not returned the $150 and missed his pre-disciplinary
conference. The conference went forward
the next day, May 21, with McAlpin and his steward, Barbara Kennedy, in
attendance. Ms. Kennedy testified
McAlpin had the money with him when he showed up for the conference, but she
advised him to hold off on it. He did
finally turn the money in that day, some ten minutes after the conference.
A removal order
was nevertheless issued, to be effective June 20, 1991, citing Failure of Good
Behavior (Joint Ex. 1). The matter was
also referred to the City of Broadview Heights, who charged McAlpin with theft,
§2913.02 O.R.C. McAlpin pled no contest
on August 28, 1991, and was fined $50 (Employer Ex. 2).
The removal was
grieved on June 14, 1991, alleging violations of Article 24 (Discipline) and
2.02 (Non-Discrimination, Agreement Rights) (Joint Ex. 2). Being unresolved at Step Three, the matter
came to arbitration where it presently resides, free of procedural defect, for
final and binding decision.
Pertinent Agency
policies and practices are Corrective Action (Employer Ex. 3), practices on
resident funds, and practices regarding the issuance of paychecks. The Corrective Action Policy OP/P-7 under
which the Grievant was disciplined classifies all Failure of Good Behavior
offenses except Gambling on Duty as "Major Offenses," constituting
grounds for major suspensions or removal.
The guidelines for progressive corrective action allow for lesser penalties
for a first offense of theft, depending "upon the value and recovery of
the article (s) stolen" (Employer Ex. 3).
Labor Relations Officer Solomon testified that discipline for major
offenses builds on prior discipline for minor offenses. She also said there were a number of reasons
a minor penalty might follow a major one, such as plea-bargaining, grievance
adjustment, and violation of different rules.
The record shows a number of cases in which lesser penalties did, in
fact, follow more severe ones, but does not disclose the circumstances of the
various disciplinary actions and grievance proceedings (Union Ex. 5).
Residents' funds
are handled in two different ways, according to the testimony of Supervisor
Benson. Allowance money (for residents'
personal items) is picked up by the house supervisor. There are no special accounting requirements and direct care
employees turn their receipts over to their supervisor. Trip money procedure has changed several
times. The supervisor picks up this
money or has staff do it. At one time
staff turned receipts into their supervisor or to Security. More recently, everything had to be turned
into Security when the trip was over.
Benson also testified that staff might use up leftover money within a
day or two for something like ice cream, but that she never authorized holding
leftover money for the next trip. Union
Chapter President Bennie Davis, Jr. testified that the lack of a written
policy, two different kinds of funds, inconsistent application
of policy, and McAlpin being written up after holding client funds for only one
day caused him to seek a clear, consistently-applied policy. None had been issued as of the arbitration
hearing. Five Union witnesses
(Robinson, Walker, Oliver, Reed and Ellis) testified about lax practices
regarding accounting for client funds.
Management witnesses disowned knowledge of employees using client funds
for their own purposes. No one knew of
anyone being disciplined for keeping client funds prior to the Grievant's case,
and several testified they kept money for later use with supervisory approval. Evidence was submitted of an employee being
ordered to turn in field trip receipts and/or funds two months after the trip
(Union Ex. 1 and 2). This incident
occurred after Mr. McAlpin was disciplined, and Solomon testified that the
affected employee had been on leave during the period in which he held the
money.
Union witnesses
also testified that second shift employees picked up their checks at the
switchboard Thursday evening for cashing the next day. Labor Relations Officer Solomon disputed
this, saying stubs were available for pick-up Thursday, but checks were issued
Friday. Mr. McAlpin got his on Friday,
May 17 (Employer Ex. 4).
Arguments of the Parties
The
Employer
The Agency argues
that it has discharged the Grievant for just cause. The Grievant kept $150 of client money for ten days, refusing
to return it despite repeated attempts by the Agency to get it back and offers
of accommodation. His actions led to a
criminal charge and finding of guilt.
The Employer also draws attention to the Grievant's discipline record.
The Union
allegation of lax practice is challenged on several fronts. First, the Employer says that two kinds of
client funds have been testified about in this case. Allowance money is managed by the supervisors, while trip funds
drawn for a specific purpose are closely controlled. Next, the Employer reviews witness testimony. The accounting clerk did not know the
circumstances under which receipts were not turned in to her liking. The testimony about the outstanding pizza
receipt proves nothing, for the witness did not sign a receipt for the $15
given to him. For all anyone knows, the
supervisor might have paid for the pizza himself. Regarding allegations of a supervisor authorizing staff retention
of leftover trip money, the supervisor referred to has not even been at the
facility for two years. On the other
hand, Supervisor Benson testified that money left over from trips was
outstanding one or two days at most and usually because she or her staff were
off work. Moreover, the State views
appropriation of funds for staff personal use quite differently from a failure
to turn in receipts.
The State goes on
to say that the Grievant telling the truth about using the money for bail is
not such a noble gesture as claimed. He
had to know the State was aware of his arrest since it <PAGE NAME="9">occurred during his
working hours in the presence of residents and other staff.
The Employer
questions the credibility of the Grievant's and his witnesses' testimony as self-serving. By contrast, the State's witnesses have
nothing to gain from fabricating their testimony.
Disparate
treatment, the State asserts, is an affirmative defense for which the Union
bears the burden of proof. This burden,
it says, has not been carried.
In conclusion,
the Employer asks that the discharge be upheld and the grievance denied in its
entirety.
The Union
The Union
contends that it has shown beyond a reasonable doubt there was no just cause
for removing the Grievant. The failure
of good behavior was more that of the Employer than of the Grievant, it says.
The practice of
holding on to client receipts and funds had been going on for years. To suddenly, without warning, discipline for
an alleged violation is unjust. Quoting
Elkouri and Elkouri, the Union says that "lax enforcement of rules may
lead employees reasonably to believe that the conduct in question is sanctioned
by management" (1985, p. 683).
Various panel arbitrators, including the arbitrator of this case, are of
the same opinion.
It is unfortunate
that the Grievant had to use resident money to get out of jail, but the truth
is his employment would have been more jeopardized by an attendance violation
if he stayed in jail until payday.
He could have lied, saying he left the money at home, but he told the
truth and was punished for it.
The Union claims
Management deliberately overlooked its own misdeed in not releasing the
Grievant's paycheck. When it did
acknowledge its error it was too late for the Grievant to come to the facility,
take the bus back to Cleveland, cash the check, and return to the facility
before the end of Laney's shift. If the
Grievant had gotten his check in a timely fashion, Management would have had a
case with teeth in it, says the Union.
As it was, there was no just cause.
The Union
questions the testimony of several Management witnesses. Labor Relations Officer Solomon’s testimony
is doubtful about when employees get their checks when compared with testimony
of second shift employees. She also
said the Grievant arrived on Friday at 9:30 a.m. when he did not get there
until nearly 3:00 p.m. Officer English's testimony about his alleged
conversation with the Grievant on May 12 is questionable since the Grievant
does not own a car. Dun's testimony
that he might do the same as the Grievant in the same situation supports the
Grievant's claim of mitigating circumstances.
The Union goes on to point out that Management's opinion that Union
witnesses have an ax to grind is just that--opinion. So, too, is the prosecutor's opinion on Employer Exhibit 1 just
opinion.
The Union says it
is not trying to hide the Grievant's multiple discipline for attendance
infractions. Although he had these
problems, he worked well with the Agency's clients. His removal is not connected to common sense. Broadview, maintains the Union, has always
issued discipline commensurate with the offense in that penalties are not
progressive from one offense type to the next.
If the Grievant had violated a policy--which he did not--it would have
warranted a different discipline than removal.
In conclusion,
the Union contends that while the Employer must meet seven tests of just cause,
it has not met one. Instead, Management
wants the Arbitrator to validate the removal based on the Grievant's past record. The Union rejects this argument, saying the
charge against the Grievant must stand on its own merits.
The Union asks
that the removal be overturned and the Grievant made whole. It requests that if the Arbitrator finds for
the Grievant, he be reinstated within two weeks of the award and granted back
pay and benefits within Contractual guidelines.
Opinion of the Arbitrator
The first rule of
just cause discipline is the employee's foreknowledge of possible consequences
of his conduct. Two factors in
determining this element are the promulgation of a clear rule and consistent
enforcement of that rule. With respect
to the first of these, I must say I agree with the Union that the Center’s
policy on the return of client funds and receipts was poorly articulated and
communicated prior to the Grievant's discharge. However, the record does not establish such a lack of employee
understanding or inconsistent enforcement as to nullify the discipline of the
Grievant.
Almost without
exception, the Union witnesses testified that when they kept leftover trip
money, they did so with their supervisor's approval and either repaid it on
payday or kept it with approval for another trip. Several cases of exceptions to this practice were offered as
indication of lax enforcement, and so much be examined. The pizza money was not for a trip and not
signed for by the employee. It may not
even have involved client funds. Mr.
Oliver's case did involve a field trip, but the labor relations officer
testified that Oliver was on a leave of absence in the interim. The first deadline given him for repayment
(November 22) was prior to the issuance of the memo (November 23, Union Ex.
1). On the face of it, this would
explain the extension granted by Union Exhibit 2. In the case at bar, the Grievant knew he was subject to
discipline at least as early as May 16, one day before his promised date of
repayment. The circumstances of both
the pizza incident and Mr. Oliver's case are thus different from the
Grievant's. Finally, the Chapter
President testified that he knew of three or four other cases, but was vague as
to their circumstances. I therefore
cannot find sufficient basis to hold that the Grievant was treated differently
from similarly-situated employees.
What the evidence
does establish is that the Grievant used client funds for himself without his
supervisor's permission, intending to repay them on payday. His use of the money is understandable under
the circumstances and I exonerate him of theft out of lack of intent to deprive
the true owners of their property. But
what I cannot get around is the Grievant’s failure to repay the money on payday
as he intended (and as he thought was the practice) or even for several days
thereafter. The Union says Management
prevented timely restitution by improperly withholding the Grievant’s
paycheck. Two things undermine this
contention. First, no evidence was
submitted to establish that the Grievant tried to get his check Thursday night
or that it was unavailable to him.
Second, Mr. Laney's testimony that he talked with the Grievant on Friday
morning when he came to get his check is highly credible, being specific and
consistent in its many details and without self-interest. Even if the Employer improperly withheld the
check, the error was overcome by the offers of assistance in cashing the
check. Moreover, the Grievant had ample
opportunity to make restitution even after Friday, and he did not take them
though he clearly knew he was in trouble.
He had no satisfactory explanation for this lapse, leaving me mystified
as to why he would come to his pre-disciplinary conference on Tuesday with the
money and not offer it even then. This
failure, in light of the Grievant's understanding of client fund practices and
knowledge that he was subject to discipline, makes discipline justified.
It remains to
determine whether removal is commensurate with the offense. Although I do not find the Grievant guilty
of theft (since the intent element is missing) , his willful failure to
cooperate in the return of the money is a serious offense justifying a
substantial penalty even for an employee with a clean record. Following this Grievant’s record of five
major suspensions in 2-1/2 years, the most recent of which was 31
days imposed less than five months prior to this incident, removal is not
unreasonable. It is difficult to see a
long-term employee lose his job, particularly one who is skilled at working
with the Agency's special clients.
Nevertheless, the decision for leniency in the face of willful employee
withholding of client funds must be the Agency's.
Award
The Grievant was
discharged for just cause. Accordingly,
the grievance is denied in its entirety.
Anna D. Smith, Ph.D.
Arbitrator
May 6, 1992
Shaker Heights, Ohio