ARBITRATION
DECISION NO.:
560
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Mental Retardation
and Developmental
Disabilities
Broadview Developmental Center
DATE OF
ARBITRATION:
September 26, 1994
DATE OF
DECISION:
October 19, 1994
GRIEVANT:
Audrey Reed
OCB
GRIEVANCE NO.:
24-03-(91-12-02)-0461-01-04
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Robert Robinson
FOR THE
EMPLOYER:
Ed Ostrowski
Pat Mogan
KEY WORDS:
Removal
Arbitrability
Just Cause
Last Chance Agreement
ARTICLES:
Article 24 - Discipline
§ 24.01 -
Standard
Article 25 - Grievance Procedure
§ 25.03 -
Arbitration Procedures
FACTS:
The grievant was
employed as a Therapeutic Program Worker (TPW) for fifteen years at a state
facility for residential care of the mentally retarded and developmentally
disabled. The grievant had previously
received a 45-day suspension for resident abuse/neglect, which led to her
entering into a Last Chance Agreement with her employer. Based on the terms of the agreement, if any
policies or procedures were violated by the grievant, she would be removed. By
signing the Last Chance Agreement, the grievant waived her right to grieve the
45-day suspension.
The grievant was
subsequently removed for resident abuse/neglect approximately three months
later. The resident whom the grievant
was accused of abusing had been masturbating on the grievant's shift. The grievant attempted to redirect the
patient by giving him a shower but the resident had a temper tantrum. A co-worker of the grievant testified that,
he went to see what was going on and was assured by the grievant that
everything was all right. This same
co-worker was asked by the grievant to replace her at 6:00 am, as the grievant
went to begin another shift. The
co-worker testified that the patient was asleep as he started the grievant's
shift. The co-worker was subsequently
relieved by another co-worker. This
TPW, after toileting the resident around 7:45am, found red marks on the
resident's thigh which was most likely caused by a metal slotted spoon. These spoons are usually found in an area
accessible only to facility staff.
As a result of
the investigation, the grievant was removed for resident abuse/neglect and
indicted for patient abuse. The
grievant was found guilty and sentenced to a one-year term at the Ohio
Reformatory for Women. In addition, a
grievance protesting the removal was filed and moved to arbitration.
EMPLOYER’S
POSITION:
The state
interpreted the Last Chance Agreement to mean that the grievant gave up all
rights to even bring a grievance. The
state also argued that the Collective Bargaining Agreement prohibits the
arbitrator from overturning a removal where patient abuse is found to have
occurred and that this and other arbitrations have upheld the terms of Last Chance
Agreements.
In addition, the
state believed that it had met its burden of proof in finding that the grievant
should have been removed and that the grievant's guilt was supported by her
criminal conviction. The state also
wanted to remind the arbitrator that arbitral deference is given to criminal
convictions.
The testimony of
the grievant's co-worker, which was unrebutted, was given substantial
weight. Also supporting the grievant's
guilt was the fact that the grievant failed to attend the arbitration hearing.
In sum, the state
believed that based on the grievant's prior 45-day suspension for a similar
offense and the fact that convicted felons are prohibited from being hired
under state law, removal was appropriate.
The state also believed that even if the grievant could overturn the
removal, she was not entitled to back pay because she failed to mitigate the
employer's liability when she delayed her appeal. Therefore, the state requested that the grievance be denied and
believed that the arbitrator should not retain jurisdiction pending outcome of
the appeal of the criminal conviction.
UNION’S
POSITION:
The union
believed that the employer should be barred from raising the arbitrability
issue since the claim was not made until the Friday prior to the arbitration
hearing. In addition, the union
believed that the employer's testimony on the meaning of the Last Chance
Agreement was rebutted and that the agreement only applied to the 45-day
suspension. Similarly, the union
believed that the Last Chance Agreement was inadmissible in any subsequent
proceeding and that the matter was arbitrable.
The union
believed that the employer did not meet its burden to establish by clear and
convincing evidence that it had just cause to remove the grievant from her
position. Since the conviction was
being appealed, the union believed that it should not be considered. Therefore, since the employer does not let
an acquittal stand in the way of arbitration, the union should not be asked to
waive its rights because of a conviction.
Concrete evidence
that the grievant abused the resident was lacking, according to the union. Estimates of the time that the abuse
occurred varied and this supported the possibility that someone else could have
abused the resident.
In sum, the union
believed that the case against the grievant was weak and flawed due to an
inadequate investigation and, as such, the grievance should be sustained and
the arbitrator should consider retaining jurisdiction to reopen the case if the
grievant is successful in her appeal of the criminal conviction.
ARBITRATOR’S
OPINION:
The arbitrator
held that the removal is grievable and arbitrable. The employer believed that the Last Chance Agreement could not be
admitted in a subsequent proceeding but according to the terms of the
agreement, it could be used here but could not be relied on to get a similar
deal in the future. In addition, the
arbitrator held that the waiver barring the right to file a grievance did not
apply because the events giving rise to the grievance did not occur until after
the agreement was signed. The Last
Chance Agreement applied to the penalty for a subsequent violation of the same
or a similar rule, therefore, there should be no restriction on the right to
grieve, contrary to what the state believed.
The grievant, by signing the Last Chance Agreement, did not waive her
just cause or due process rights when she was charged with committing a similar
act of patient abuse. She was only
informed, pursuant to the agreement, that if a subsequent violation occurred,
she would be removed from her position and she could not grieve the
suspension. If a conviction for patient
abuse barred arbitration, as the state contends because the arbitrator is
powerless to modify the termination, the grievant and the union would be denied
just cause rights under the contract and the arbitrator would be left without
the opportunity to fashion a remedy for these procedural violations. This is a blatant infringement on due
process guarantees contained in the contract.
In addition, the
arbitrator ruled that although all evidence concerning the grievant was
circumstantial, the grievant was, nevertheless, placed in the center and
plausible alternative theories were ruled out.
The evidence supported the state's claim that the grievant did, in fact,
abuse the patient since only about 15 minutes elapsed between the time that the
grievant was relieved by her co-worker and the assigned TPW began work. Therefore, there was no way that the
resident could have received a blow hard enough to leave marks on his body and
been found asleep such a short time later.
The co-worker was a credible witness since he really had no motive to
lie, and the arbitrator believed that the grievant abused the resident. To support this belief, the arbitrator
considered the fact that the grievant had a history of discipline for patient
abuse, and the grievant was aware of the consequences of another proven act
(since she agreed to them). Therefore,
the discharge was for just cause.
AWARD:
The grievance was
denied.
TEXT OF
THE OPINION:
VOLUNTARY LABOR ARBITRATION TRIBUNAL
In the
Matter of Arbitration
Between
OHIO DEPARTMENT OF
MENTAL RETARDATION &
DEVELOPMENTAL DISABILITIES
and
OHIO CIVIL SERVICE
EMPLOYEES ASSOCIATION
LOCAL 11, AFSCME, AFL-CIO
OPINION AND AWARD
Anna DuVal Smith, Arbitrator
Case No.:
24-03-911202-0461-01-04
October 19, 1994
Audrey Reed, Grievant
Arbitrability
Discharge
Appearances
For the Ohio Department of Mental Retardation & Developmental
Disabilities:
Ed
Ostrowski, Chief of Labor Relations, Ohio Department of Mental Retardation
&
Developmental Disabilities, Advocate
Pat Mogan,
Ohio Office of Collective Bargaining, Second Chair
Tamala
Solomon, formerly Labor Relations Officer, Broadview Developmental
Center,
Witness
Dennis
Pike, Trooper, Ohio Highway Patrol, Witness
Jack Duns,
formerly Quality Assurance Director, Broadview Developmental Center,
Witness
Charles
Steadman, formerly Therapeutic Program Worker, Broadview
Developmental
Center, Witness
Ignacy
Gorka, formerly Therapeutic-Program Worker, Broadview Developmental
Center,
Witness
For the Ohio Civil Service Employees Association:
Robert
Robinson, Staff Representative, OCSEA/AFSCME, Advocate
Paul D.
Caldwell, President, OCSEA Chapter 1860
HEARING
A hearing on this
matter was held at 9:10 a.m. on September 26, 1994, at the Office of Collective
Bargaining in Columbus, 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 Grievant did not appear.
Two issues were presented for final and binding determination, an issue
of arbitrability and an issue on the merits of the case. Pursuant to §25.03 of the 1989-91 Collective
Bargaining Agreement, the hearing was bifurcated on the issue of
arbitrability. The Arbitrator ruled
from the bench that the matter is arbitrable, for reasons set forth below,
whereupon the parties presented their cases on the merits. The hearing concluded at 3:30 p.m. whereupon
the record was closed. This opinion and
award is based solely on the record as described herein.
ISSUES
As stipulated by the parties, the issues before the
Arbitrator are:
Is the discharge
of Audrey Reed grievable under the Collective Bargaining Agreement?
If so, was Audrey
Reed's discharge for just cause and, if not what shall be the remedy?
ARBITRABILITY
At the time of
her removal for Resident Abuse/Neglect on November 27, 1991, the Grievant was a
Therapeutic Program Worker (TPW) at Broadview Developmental Center, a State
facility for residential care of the mentally retarded and developmentally
disabled. She had previously received a
45-day suspension for the same offense, and had returned on June 24, 1991
(Joint Ex. 4B) under what the Employer characterizes as a "last
chance" agreement (Joint Ex. 4A).
Pertinent portions of this agreement are:
“2. The employee
agrees that if, at any time within a two year period beginning with the
employee's return to work from her forty-five (45) day suspension, she violates
any of Broadview Developmental Center's policies and procedures (relative to
abuse), the employee if found guilty of the offense after a pre-disciplinary
conference will be removed, or may resign in lieu of removal.
. . .
The employee acknowledges that she is fully aware that
although she has entered into this agreement such agreement is in no way
precedent setting. This agreement shall
not be introduced, referred to or in any other way utilized in any subsequent
proceedings, grievances, arbitration, litigation or administrative hearings(s).
The employee and the Union waives [sic] any and all rights
as a result of the events which formed the basis of this agreement, including
the right to file a grievance through the grievance process, arbitration, or
through administrative appeal or through the institution of legal action.”
Tamala Solomon,
Labor Relations Officer at the facility at the time this document was executed,
and signatory, testified that the Grievant and the Union knew that if the
Grievant were found guilty of another offense she would have no right of
appeal.
Paul Caldwell,
who was Vice President of the Chapter at the time, but not a signatory to the
document testified that he talked to the Grievant about it at the time. He said it was a settlement agreement
wherein the Grievant obtained a quick resolution of the matter, in exchange for
which she accepted a 45-day suspension and waived her right to grieve that
suspension. That is, the waiver was
limited to that particular disciplinary action and to no subsequent ones.
Arguments of the Parties on the Arbitrability
Argument
of the Employer
The Employer
argues that its case on the meaning of the "last chance" agreement is
unrebutted, as the Employer called its signer while the Union, which might have
subpoenaed its own, did not exercise that right. The Employer further argues that the language of the agreement is
plain on its face. Paragraph 2 is meaningless
without a restriction on the right to grieve.
If any clarification is needed, it is provided by the last
paragraph. The Grievant knew she had
given up this right, as Solomon attested.
As to the Union's
claim of surprise, the Employer points to the Step 3 response, which it says
contains a reference to the matter.
The Employer goes
on to point out that among the joint exhibits are proof of the Grievant's
criminal conviction for patient abuse, that case law requires the arbitrator to
accept as true facts established by criminal convictions, that state and
federal law prohibit the Department from employing a person convicted of the
Grievant's crime, that the Collective Bargaining Agreement prohibits the
Arbitrator from overturning a removal where patient abuse is found to have
occurred, and that this and other arbitrators have upheld the terms of last
chance agreements.
Argument
of the Union
The Union argues
that the Employer should be barred from raising the arbitrability issue since
it made no such claim until the Friday prior to the arbitration hearing. It further claims that its witness did rebut
the Employer's testimony on the meaning of the settlement agreement's waiver,
which it says applies only to the 45-day suspension. The Union goes on to note that language in this agreement makes
the document inadmissible in any subsequent proceeding.
The Union does
not deny that the Grievant was convicted, but it points out that the case is
under appeal.
In sum, the Union
contends that the matter is arbitrable.
Opinion of the Arbitrator on Arbitrability
The Employer's
action in this case is grievable and therefore arbitrable. Taking first the admissibility of the
"last chance" agreement, it is somewhat puzzling that the Union would
raise this argument inasmuch as the document was entered into evidence as a joint
exhibit. Be that as it may, it appears
to me that the restriction on introducing the agreement in subsequent
proceedings refers to its use to establish a procedure for this level of
discipline in another patient abuse case.
Thus, the "employee acknowledges that ... such an agreement is in
no way precedent setting" means it can't be relied upon to get a similar
deal in the future.
As to the
Grievant's right to file a grievance, the last paragraph clearly states the
waiver applies to "all rights as a result of the events which formed the basis of this agreement" (emphasis
added). Since the events that gave rise
to the instant grievance occurred after the agreement was signed, they could
not possibly have formed the basis for it.
Therefore, the waiver does not apply.
The Employer also
argues that paragraph 2 makes no sense without a restriction on the right to
grieve. I disagree. What paragraph 2 is about is the penalty for
a subsequent violation of the same or similar rule.
In sum, nowhere
in the agreement do I find a waiver of the Grievant's just cause or due process
rights when she is again charged with violating an abuse policy, only that a
subsequent violation will cost her her job, that she will not grieve the
suspension, and that the agreement is not to serve as a precedent.
Far from the
agreement being "plain on its face" that the removal is nongrievable,
it is clear to me quite the contrary.
Moreover, the employer's "plain on its face" Theory does not
square with the tardy discovery of the alleged flaw. It is reasonable to assume that someone in management would have
noticed such plain meaning sometime in the grievance process and made the
objection then to preserve its right.
On the contrary, the third step response unequivocally states
"There were no procedural objections."
The Employer's
collateral estoppel argument is misplaced as well. Although conviction of patient abuse may be admitted and weighed,
it is not necessarily dispositive of the grievance. An arbitrator is more than a fact-finder, for just cause includes
elements beyond guilt or innocence of the accused. Holding that a conviction for patient abuse bars arbitration
because the arbitrator is powerless to modify the termination would deny the
Grievant and Union protection of the just cause rights guaranteed by the
Contract, for it would preclude the arbitrator from fashioning a remedy for
procedural violations. This would have
the effect of excising from the Collective Bargaining Agreement substantial due
process, guarantees. The record
discloses no such intent by the parties.
MERITS
The incident that
gave rise to the Grievant's removal occurred during the third shift (10 p.m.,
Sept. 7 - 6:30 a.m.), September 8, 1991, when she was working on the men's side
of
her assigned cottage. The Grievant did
not appear to testify, but in her written statements taken during the
investigation she says that the resident whom she is accused of injuring was up
most of the night masturbating. (This resident is nonverbal, non-self-abusive
and constantly masturbates.) The
Grievant attempted to deal with this by trying to redirect him, giving him a
shower, and sitting him in a chair, but the resident had a temper tantrum in
his frustration and "really started hollering," sometime around 3:00
a.m. (Joint Ex. 5B).
Ignacy Gorka, a
TPW on the women's side of the cottage, heard the resident yelling louder and
longer than usual. He and his
co-worker, Donna Markley, went to see what the commotion was about. Gorka testified that they found the Grievant
and resident seated at a table in the living room of the men's side. Gorka said he saw the Grievant's hands under
the table and heard a metal object hit the table once. He asked what was going on, received
assurances from the Grievant, and returned to his side. His co-worker, who did not testify, stayed
on the men's side talking to the Grievant awhile longer.
Shortly before 6
a.m., the Grievant asked Gorka if he would watch her side since she was leaving
to work a second shift at another site.
Gorka checked the men's side, found it quiet and the subject resident
asleep on the couch in the living room.
As he returned to his side, the first shift staff was arriving for
work. One of these, Charles Steadman,
proceeded to awaken, toilet and shower the residents. At approximately 7:45 a.m., when he was toileting the subject
resident, Steadman discovered red marks on the resident's thigh, in the shape
of the bowl of a large slotted spoon.
An investigation
was launched during which statements were taken and the area searched. According to Officer Pike, who conducted the
investigation for the Ohio Highway Patrol, a metal slotted spoon matching the welts
on the resident's thigh was found in an area accessible only to facility
staff. The attending physician did not
testify, nor was any statement offered of his opinion as to when the injury
occurred, although hearsay evidence was offered to the effect that the
physician was unwilling to put his estimate in writing.
As a result of
the investigation, the Grievant was removed on November 27, 1991 for Resident
Abuse/Neglect and indicted on December 3 for Patient Abuse, R.C. 2903.34. She was found guilty of the criminal charge
on April 23, 1992 and sentenced to Ohio Reformatory for Women for a period of
one year, but the case is on appeal. A
grievance protesting the removal was timely filed on November 27 and, being
unresolved at Step 3 of the grievance procedure, moved to arbitration, where it
presently resides for final and binding decision.
Arguments of the Parties on the Merits
Argument
of the Employer
The Employer
contends this has been an unusual and difficult case to try because of the
length of time since the incident, the Grievant's absence and the Union's
failure to supply the criminal transcript and appeal brief pursuant to §25.03
of the Collective Bargaining Agreement.
The Employer has had to reconstruct much, but it nevertheless says it
has met its burden of proof.
Regarding the
Grievant's guilt, the State points to the criminal conviction based on the
reasonable doubt standard, which it says stands until overturned by an
appellate court citing §2945.75 O.R.C.
Acknowledging that the principles of res
judicata and collateral estoppel are
often confused, the Employer reminds the Arbitrator that although arbitral deference
is not given to acquittal, the situation is different for conviction (City of Lebanon v. District Council 8,
AFSCME, Pa.Cmwlth., 388 A.2d 1116; State
of Ohio v. OCSEA (Tokar, Grievant) Parties's No. 27-17-92-0323-0138-01-03
(Goldberg, Arb.); State of Ohio v. OCSEA
(Key, Grievant) Parties No. G86-585 (Klein, Arb.).
The Employer
contends that it also proved its case through the unrebutted testimony of
Ignacy Gorka. He has no reason to lie,
says the Employer, having left State employment. Regarding the Union's contention that Gorka should be held
accountable because his acceptance of the residents implies they were in good
condition, the Employer says he was on the men's side for 10-15 minutes and he
did a walk-through inspection. He saw
nothing amiss and the subject resident was asleep.
Also pointing to
the Grievant's guilt is the doctor's estimate of time of injury, which was
within the Grievant's shift when she was working alone.
The Employer also
reminds the Arbitrator that she can draw an inference from the Grievant's
failure to appear at the arbitration hearing.
As to the
discipline meted out, the State says removal is entirely appropriate. It is uncontested that proven abuse is
grounds for discharge, and this ocurrence was a mere three months following a
previous incident that resulted in a 45-day suspension. The Grievant knew when she negotiated the
last chance agreement that another proven case of abuse would cost her her job.
The Employer
contends it has established the required nexus through federal and state law
that prohibits it from hiring a convicted felon (§5123.08 O.R.C.) and would
cause it to lose its Medicare stipend (citing federal rules and HCFA surveyor). Clearly the Grievant cannot be
returned to work, so the Arbitrator is without a remedy should she disregard
the jury's decision. Even if she could
overturn the removal, the Grievant is not entitled to back pay since she failed
to mitigate the Employer's liability when she delayed her appeal.
In conclusion,
the State prays for the grievance to be denied in its entirety and does not
join in the Union's request for the Arbitrator to retain jurisdiction pending
outcome of the appeal of the criminal conviction.
Argument
of the Union
The Union
believes the Employer has not met its burden to establish by clear and
convincing evidence that it had just cause to remove this 15-year employee from
her position. It argues that the
conviction should not be weighed because it is being appealed. Two union members recently won their cases
on appeal, which shows it is premature to sustain a removal based on criminal
conviction until the appeals process is complete. The Union also points out that the Employer does not let an
acquittal stand in the way of arbitration, neither should the union be asked to
waive its rights because of a conviction.
The Union
contends that the evidence against the Grievant is circumstantial. No concrete evidence that the Grievant
inflicted the injury was offered. While
she could have done it, so might have the chief witness against her or someone
else entirely. Estimates of the time of
injury vary and Gorka did not follow proper procedure when the resident was
handed off to him. Checking the
resident was particularly called for because of the noises heard earlier that
morning. Not only did Gorka have
opportunity. but the different stories he told over time weaken his
credibility. On top of this, the State
brings statements allegedly made by the woman working with Gorka
that night and the doctor who examined the resident, but these were not brought
forth at the pre-disciplinary conference or Step 3 meeting. The Union concludes that the case against
the Grievant is weak and further flawed by an inadequate investigation.
As to the
Grievant's failure to appear, the Union says she could not attend because it
would have jeopardized her new job.
Regarding the
documents sought by the Employer, the Union claims it would have liked to
review the transcript and brief, too.
It tried to get them, talking both to the Grievant and her attorney, but
the attorney refused. The Union cannot
supply what it does not have.
In sum, the Union
asks that the grievance be sustained, the Grievant returned to work and made
whole. In the alternative, it suggests
that the Arbitrator consider retaining jurisdiction to reopen the case should
the Grievant's appeal be won.
Opinion of the Arbitrator on the Merits
The Union
correctly observes that the evidence against the Grievant is
circumstantial. However, the web of
this evidence places the Grievant at the center and rules out plausible
alternative theories. This conclusion
is reached without consideration for the criminal conviction or for the hearsay
statements allegedly made by the physician and Gorka's co-worker.
No doubt has been
raised about the resident's condition when the Grievant came on duty or his
activity during the preceding shift, and the Grievant accepted the hand-off,
which the Union points out makes her accountable. On the back side of the shift, the resident was either
asleep (Gorka) or lying quietly on the couch (Grievant) when Gorka agreed to
cover the Grievant's side of the cottage.
Ten or fifteen minutes later, when Steadman came on duty, the resident
was asleep. It is beyond the realm of
possibility that the resident could have received a blow sufficiently hard to
leave the marks indicated on the photograph and been found peacefully sleeping
such a short time later. Clearly, the
injury occurred during the Grievant's solitary shift.
Gorka, himself,
was a credible witness. Although he may
have had a motive to lie at the time the incident occurred, he has none now,
being employed elsewhere. I have no
problem with his later statements being more detailed than his earlier
ones. The Grievant's is, too. People frequently recall at a later time
things they previously overlooked or dismissed as insignificant. On the whole, his story hung together and
survived vigorous attempts by the Union to discredit it. In the absence of even a single witness, not
even the Grievant, to rebut Gorka's story, his confident recounting of it, and
his lack of motive for lying, it must be, and is, accepted at face value. I am convinced the Grievant did, in fact,
abuse the resident as charged.
The Union claims
an incomplete investigation flaws the Employer's case. It is true the investigatory packet does not
contain statements from the doctor of Gorka's co-worker. Inasmuch as the doctor was apparently
unwilling to make a written estimate of the time of injury, it is hard to see
how this could have been included. As
far as the co-worker is concerned, her statement, too, would have made for a
more complete investigation, but just cause does not require employers to leave
every stone unturned. The investigation
must be timely, even-handed and thorough, and this it was.
Turning now to
the penalty, the Employer is well within its right to remove the Grievant. Even if I had authority to restore her job,
I would be unable to find the Employer abused its discretion. The Grievant had a history of discipline for
patient abuse, well knew the consequences of another proven act and even agreed
to them.
The Grievant's
discharge was for just cause.
AWARD
The Grievance is
denied in its entirety.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
October 19, 1994