ARBITRATION
DECISION NO.:
558
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Public Safety
Division of Highway Patrol
DATE OF
ARBITRATION:
September 20, 1994
DATE OF
DECISION:
October 7, 1994
GRIEVANT:
James Stringer
OCB
GRIEVANCE NO.:
15-03-(93-11-24)-0123-01-07
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Gerald Burlingame, Advocate
FOR THE
EMPLOYER:
Lt. Richard G. Corbin, Advocate
Heather Reese, OCB, 2nd Chair
KEY WORDS:
Removal
Discipline
Failure of Good Behavior
Just Cause
Nexus
ARTICLES:
Article 24 - Discipline
§ 24.01 -
Standard
FACTS:
The grievant was
employed as a Driver’s License Examiner 1 for the Ohio State Highway Patrol and
was responsible for conducting written examinations, vision screening, and
on-road tests. The grievant had no
prior discipline on his record.
On November 19,
1993, the grievant was removed from his position for off-duty commission of a
criminal act and Failure of Good Behavior, stemming from his arrest for
possession of cocaine on October 1, 1993.
On the advice of counsel, the grievant pled no contest to the drug
possession charge and was found guilty of the reduced charge of attempted drug
abuse.
EMPLOYER’S
POSITION:
The state argued
that it was justified in removing the grievant from his position based on the
grievant's criminal conviction. The
state also found that the officer who arrested the grievant on October 1, 1993
was credible and that the grievant's recollection of the events that led to his
arrest was probably impaired based on the amount of alcohol that he had
consumed that night. The state believed
that although the grievant's arrest occurred while he was off-duty, there was a
connection between the off-duty arrest and the grievant's removal. Therefore, discipline was justified. Additionally, the state believed that the
grievant's job required operating state vehicles, working autonomously in a
position of trust and being a uniformed representative of an organization whose
mission is law enforcement and public safety.
Therefore, his off-duty arrest was a serious offense and removal was
justified since the offense was in direct conflict with the employer's mission
and was damaging to the employer's reputation.
The state
believed that it did not act unreasonably, capriciously, or arbitrarily in
removing the grievant, based on the circumstances.
UNION'S
POSITION:
The union
believed that the grievant did not possess illegal drugs and urged the
arbitrator to evaluate the credibility of the grievant and the arresting
officer. In addition, the fact that the
arresting officer had previously been found guilty of lying in an interrogation
and the fact that the grievant was willing to submit to polygraph and drug
tests should have been considered, according to the union.
The union also
believed that the grievant's criminal conviction was irrelevant and should not
be considered due to the grievant's plea of no contest. In addition, no injury was shown to justify
discharge. That is, there was no
inability to work, no harm to the employer, and no danger to fellow
employees. Therefore, according to the
union, the grievant should be returned to his position with full back pay and
benefits.
ARBITRATOR'S
OPINION:
Management was
not successful in carrying its burden of proving that the grievant was guilty
of drug possession. Therefore, the
removal was overturned. In addition, no
weight was given to the grievant's conviction, which was based on a no contest
plea to a reduced charge. This
conviction did not establish the grievant's guilt but only his and the
prosecution's desire to avoid trial on the felony charge. Management may not rely entirely on the no
contest plea but is obligated to bring to arbitration other evidence to
establish the grievant's guilt.
Evidence of the
arresting officer's testimony was found unreliable due to a finding that the
officer previously lied in an investigation.
The arbitrator also believed that the facts did not support management's
claims that the grievant was guilty but only that the grievant and prosecution
were trying to avoid trial on a felony charge.
Additionally, the fact that the grievant was willing to undergo drug
tests and polygraph tests supported the union's position.
Corrective
discipline for the grievant's possession of an open container was warranted but
discharge was beyond reason for the offense, due to the grievant's good
record. Therefore, a written reprimand
for Failure of Good Behavior was commensurate with the grievant's offense.
AWARD:
The grievance was
sustained in part and denied in part.
There was no just cause to remove the grievant so he was returned to his
position with full back pay, seniority and benefits. His record reflected a written reprimand for Failure of Good
Behavior.
TEXT OF
THE OPINION:
VOLUNTARY LABOR ARBITRATION TRIBUNAL
In the
Matter of Arbitration
Between
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION LOCAL 11, AFSCME,
AFL/CIO
and
OHIO DEPARTMENT OF PUBLIC SAFETY,
DIVISION OF HIGHWAY PATROL
OPINION AND AWARD
Anna DuVal Smith, Arbitrator
Case No.:
15-03-931124-123-01-07
October 7,
1994
James Stringer, Grievant
Discharge
Appearances
For the Ohio Civil Service Employees Association:
Gerald
Burlingame, Staff Representative, OCSEA/AFSCME, Advocate
James
Stringer, Grievant
For the Ohio Highway Patrol:
Lt.
Richard G. Corbin, Advocate
Heather
Reese, Ohio Office of Collective Bargaining, Second Chair
Pete
Shonk, Drivers' License Manager, Witness
Of.
Charles List, Police Officer, City of Warren, Ohio, Witness
Staff Lt.
Timothy Blubaugh, Human Relations Dept., Ohio Highway Patrol, Witness
Hearing
A hearing on this
matter was held at 9:40 a.m. on September 20, 1994, at the offices of the Ohio
Civil Service Employees Association in Fairlawn, Ohio before Anna DuVal Smith,
Arbitrator, who was mutually selected by the parties, pursuant to the
procedures of their collective bargaining agreement. The parties were given a full opportunity to present written
evidence and documentation, to examine and cross-examine witnesses, who were
sworn or affirmed, and to argue their respective positions. The oral hearing concluded at 12:00 noon on
May 20, whereupon the record was closed.
This opinion and award is based solely on the record as described
herein.
Statement of the Case
At the time of his
removal for Failure of Good Behavior on November 19, 1993, the Grievant had
been a Driver Examiner 1 for the Ohio State Highway Patrol for over seven
years, being hired on January 21, 1986.
His duties included conducting written examinations, vision screening,
and on-road tests, which were carried out with considerable autonomy and often
to juveniles. He was informed on the
rules, had received positive performance evaluations and a letter of
commendation from a superior officer, and had no prior discipline on his
record. Co-workers provided affidavits
stating him to be a dependable and courteous fellow employee.
The incident that
led to the Grievant's removal was his arrest for possession of cocaine in the
early hours of October 1, 1993 while off-duty and off-premises. Sometime after midnight, the Grievant was
observed by Officer List leaving Jackson's Lounge (a bar and restaurant in
Warren, Ohio) and entering a car with a drink in his hand. When Officer List investigated, he
discovered a folded $5 bill concealing what proved to be a quantity of
cocaine. Officer List testified he saw
the Grievant holding the bill, then making a furtive gesture as he dropped it,
a claim the Grievant denies. Both agree
this drug packet was recovered from the floor of the passenger side, where the
Grievant was sitting, and that there were two other occupants--the driver and
back-seat passenger. The Grievant
testified he was casually acquainted with these people, and only getting a lift
home from the American Legion, by way of Jackson's Lounge. In any event, the Grievant was arrested for
an open container and possession of cocaine.
The Department
launched an investigation and the Grievant was placed on administrative
leave. On November 19, 1993, a
pre-disciplinary meeting was held, the outcome of which was termination of the
Grievant's employment. The removal
order cites off duty commission of a criminal act and arrest as Failure of Good
Behavior, Public Safety Work Rule (A)(6).
This action was timely grieved on November 24, 1993, claiming violation
of various sections of the Discipline Article of the 1992-94 Collective
Bargaining Agreement and seeking reinstatement with full back pay. On May 12, 1994, on the advice of counsel,
the Grievant pled no contest and was found guilty of the reduced charge of
attempted drug abuse, §2923.02 and §2925.11 O.R.C. In the meantime, the grievance was processed through the
contractual procedure without resolution, until it came to arbitration, where
it presently resides for final and binding decision, free of procedural defect.
Issue
As stipulated by the parties, the issue before the
Arbitrator is the following:
Was there
just cause to remove the Grievant.
If not,
what shall the remedy be?
Arguments of the Parties
Argument of the Employer
The Highway
Patrol first argues that its evidence is sufficient to support removal. To begin with, the documents show a criminal
conviction, which the Grievant knew from the rules would subject him to
discipline. Raising an issue of
credibility, the State compares the testimony of the Grievant with that of the
arresting officer, arguing that its own witness is the more believable. On the one hand, Officer List's testimony is
in accord with the documentary evidence and his memory of the incident must be
clearer than the Grievant's because Officer List was not drinking that
night. Although the State believes the
Arbitrator should not weigh the disciplinary record of the police officer
(being over two years old at the time of this hearing) it does demonstrate that
the officer has everything to lose by lying.
On the other hand, the Grievant has nothing to lose by lying and his
recollection of the events that led to his arrest is likely impaired by the
alcohol he consumed that night. The
State might have been influenced to provide an opportunity for rehabilitation,
bypassing discipline, but the Grievant refused to admit what the evidence
shows. The Employer concludes that he
is either a user himself or covering up for someone, and that his statements
are self-serving.
Although the
events leading to the Grievant's removal took place off-duty and off-premises,
the Highway Patrol contends there is a nexus to the Grievant's employment justifying
discipline.[1] The Grievant's job requires operating state
vehicles, working autonomously in a position of trust (particularly with regard
to minors) and being a uniformed representative of an organization whose
mission is law enforcement and public safety.
Even off-duty cocaine possession is a very serious offense justifying
removal as it is in direct conflict with the Employer's mission and tarnishes
its reputation.
The Highway
Patrol submits that in discharging the Grievant, it has acted neither
unreasonably, capriciously, nor arbitrarily.
Given the nature of the violation and the Grievant's awareness of its
potential impact on his employment, discharge is not an abuse of employer
discretion. It says that what the Union
really wants is clemency, which the Employer argues is not the Arbitrator's to
give, but its own. Because the Highway
Patrol cannot accept responsibility for maintaining the Grievant's employment,
knowing what he was involved with, employer leniency is out of the question as
well. It therefore urges the Arbitrator
to deny the grievance in its entirety.
Argument of the Union
The Union states
emphatically that at no time did the Grievant have illegal drugs. Like the State, it urges to Arbitrator to
evaluate the credibility of the two principal witnesses. One of these has an impeccable record (the
Grievant); the other admits to prior procedural violations (the arresting
officer). The Union further contends that the Grievant's offer to submit to
polygraph and drug tests would be weighed, as should the Employer's decision to
accept that offer.
As to the
criminal conviction, the Union argues that this is not relevant and should not
be weighed because the Grievant pled no contest. It offers Ohio Veterans
Home v. OCSEA (Wm. J. Smith, Grievant), Parties' Case No.
33-00-(92-12-07)-0450-01-05 (Goldberg, Arb.) as support.
Finally, the
Union says that no injury has been shown that might justify discharge: no
inability to work, no harm to the Employer, and no danger to fellow
employees. The Grievant therefore
should be returned to work with full back pay and benefits.
Opinion of the Arbitrator
The offense with
which the Grievant is charged is a serious one. If true, it warrants discipline even thought the conduct was off
duty because of the nature of the Drivers License Examiner's job and the
Department's mission. The Department
successfully established adverse impact on its ability to carry out its
mission. It was not successful in
carrying its burden on proving the Grievant's guilt, however, and for this
reason the removal is overturned.
The removal order
states that the Grievant "did commit a criminal violation and [was]
arrested ... for possession of cocaine."
In support of this charge, the Department offers the conviction for attempted
drug abuse and the testimony of the arresting officer along with investigative
reports.
As to the
Grievant's conviction for attempted drug abuse, I am unwilling to give weight
to a conviction based on a no contest plea to a reduced charge. Such a conviction does not establish the
Grievant's guilt, but only his and the prosecution's desire to avoid trial on
the felony charge. The Employer may not
rely on a no contest plea bargain, but must bring to arbitration other evidence that convincingly
establishes the guilt of the Grievant.
As to the other
evidence brought forth in arbitration, everything depends on witness
credibility. On the one hand, there is
a fairly long-term employee with an excellent record who has consistently
claimed he did not touch the drug packet and is not a user. This, of course, could be a self-serving
statement. On the other hand, there is
an arresting officer who had procedural violations on his record at the time of
the incident and whose story has been neither consistent over time nor in
accord with the assisting officer's (most specifically with whether the drug
was retrieved before or after the Grievant exited the vehicle), but who has no
apparent motive for prevarication. In
the absence of a reliable third witness to what transpired while Officer List
was advising the Grievant of the open container violation, it is the word of
one against the other whether the Grievant ever held, touched or even knew of
the drug packet prior to its recovery.
I am accordingly unable to conclude that the officer was clearly correct
about what he says he saw. Moreover,
there are plenty of facts to raise substantial doubt of the Grievant's guilt
and to support his claim that be did not hold the drugs. There is nothing in his work record or
demeanor to suggest use or abuse of cocaine; he readily admitted to the open
container violation; and he agreed to submit to polygraph and drug tests, something
the Employer declined to pursue. Even
the police officers stated he was out of his element, and thought the back seat
passenger was the original holder of the drug.
This grievant was
in the wrong place in the wrong company at the wrong time. The worst I can find him guilty of with any
degree of certainty is imprudent association and having an open
container. Given the mission of the
Department and the Grievant's foreknowledge of the rules, corrective discipline
for the open container violation is warranted.
Discharge, however, is beyond reason for this offense by an employee
with this work record. The Grievant
will receive a written reprimand for Failure of Good Behavior.
Award
The grievance is
sustained in part, denied in part.
There was no just cause to remove the Grievant. He is to be returned to his former position
forthwith, with full back pay, seniority and benefits. His record will reflect a written reprimand
for Failure of Good Behavior (conduct inconsistent with the mission, goals and
objectives of the Department).
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
October 7, 1994