ARBITRATION
DECISION NO.:
566
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Public Safety
Bureau of Motor Vehicles
Obetz Model Facility
DATE OF
ARBITRATION:
October 12, 1994
November 9, 1994
November 21, 1994
DATE OF
DECISION:
February 7, 1995
GRIEVANT:
Joseph Eichhorn
OCB
GRIEVANCE NO.:
15-02-(92-05-11)-0030-01-09
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Anne Light Hoke, Assoc. Gen. Counsel
Jeff Griffen, Steward
FOR THE
EMPLOYER:
Wayne P. Mogan, Jr., Labor Relations Specialist
Michael P. Duco, Asst. Legal Counsel
KEY WORDS:
Removal
Just Cause
Theft
Burden of Proof
Violation of Work Rules
Negative Inference
ARTICLES:
Article 24 - Discipline
§ 24.01 -
Standard
FACTS:
The grievant was
employed with the Ohio Bureau of Motor Vehicles as a Public Inquiries Assistant
1 for eleven years and was discharged for allegedly misappropriating $5,500
from his sales of Commercial Drivers License (CDL) test receipts. The grievant's supervisor testified that the
agency had stopped honoring receipts from testers who obtained CDL test
receipts from other organizations and tried to obtain refunds for additional
tests from facilities other than the ones that issued the initial tests. Therefore, a new procedure was instituted
which required testers to pay cash for CDL test receipts. The applicant would then get a refund on the
unused portion of the private organization's prepayment receipt from that
organization, not from the Bureau.
The grievant's
supervisor testified that he told the grievant not to accept third party
receipts and not to issue CDL test receipts without a cash payment. The grievant testified, however, that he was
never given written notification of this new procedure, and was instead told to
honor third-party receipts. The grievant
would then return the third-party's cash receipt to the applicant for tax
proof. The grievant did not write these
transactions on his reports as exceptions because he did not think that they
were irregular.
The grievant was
absent from work for a period in August, 1991.
During this time, irregularities concerning the sale of test receipts
were noticed, which prompted an Internal Audit investigation by a management
analyst. The management analyst found
that there were discrepancies with voided transactions and end-of-day summary
reports which amounted to a shortage of approximately $5,500. Further inquiries showed no suspicious
transactions during the grievant's absence, and a conclusion was made that the
grievant was responsible for stealing the $5,500. A union steward who was also employed as an Account Examiner II
challenged the management analyst's audit and believed that there were no
discrepancies in the records and the questionable transactions were third-party
tester situations.
In April, 1992
the grievant was indicted on five counts of theft in office and was placed on
administrative leave with pay. A
pre-disciplinary hearing was conducted on April 24, where it was determined by
management that the grievant violated Work Rules #7 (felony commission or
conviction) and #30 ("any act of commission not otherwise set forth herein
which constitutes a threat to the BMV, its image, staff or the
general public"). The steward who
represented the grievant testified that failure to produce documents and other
procedural difficulties hindered her ability to represent the grievant
effectively.
The grievant was
found not guilty at his criminal trial.
Subsequent reviews by the audit office revealed discrepancies which
corroborated those of the management analyst.
EMPLOYER'S
POSITION:
The state
contended that it clearly and convincingly established that the grievant
misappropriated over $5,500 paid to him by members of the public and that his
actions constituted a threat to the Bureau and its image and to the general
public. The state also argued that a
thorough investigation was conducted and that evidence of the grievant's guilt
was proved.
This evidence
stemmed from an investigation of payroll records, work schedules and cash
register tapes, which management believed proved that the grievant was working
on certain dates during which questionable transactions occurred. Further testimony showed that the grievant
was working alone, that his number was on the cash register tape, and that he
signed the daily report. On these days,
irregular transactions existed but on days that the grievant was working with
another employee, all transactions were performed correctly. Management reasoned that the grievant did
not misappropriate funds on the other dates because he would have had to
account for it to the second employee.
The state also
argued that a reasonable person would have made copies of the receipts brought
by the third-party applicants or made some sort of record to balance the books
and the f act that the grievant did not do this suggested devious motivation on
his part.
As a remedy, the
state requested that the grievance should be denied in its entirety.
UNION’S
POSITION:
The union argued
that the Bureau’s own procedures were responsible for the appearance of
discrepancies with its test receipt transactions. The union also pointed out that there was insufficient evidence
of the grievant's guilt due to management's failure to call any employees,
except the supervisor, to testify on how the facility was run. Also, there were no written procedures
offered to show that the grievant was supposed to stop accepting third party
receipts. The union also challenged the
audit conducted by the management analyst and argued that errors were made in
her work and that she never established that money was missing because money
in the till was never counted. The
union also pointed out that two employees who worked at the same facility as
the grievant and who were either discharged or quit because of passing bad
checks were never accused because the attendance calendar made by the
supervisor did not include their names.
Additionally, the
union stated that the management analyst's audit was not consistent with a
review that was conducted by its own witness.
According to this witness, the challenged transactions were actually
refunds given to truckers who learned that the facility accepted third-party
pre-payments.
Therefore, the
union sought reinstatement of the grievant to his position with full backpay,
health expenses that would have been paid by employer-provided insurance, and
attorney's fees suffered as a result of bad faith prosecution.
ARBITRATOR’S
OPINION:
The arbitrator
reasoned that based on the lack of direct evidence and witness testimony, it
was difficult to tell whether the missing money made its way into the
grievant's pocket or was refunded to the applicants. Since no witnesses testified as to what occurred, the arbitrator
reasoned that when witnesses who clearly have probative evidence are not
called, one must draw the inference that they have nothing to add. Furthermore, the arbitrator held that the
employer's case for theft fails, not on a technical violation of the fair
investigation test, but on the substantive ground of failing to produce the
convincing evidence that might have been discovered in a full investigation.
Although the
grievant knew that the policy of accepting third-party prepayments lacked
sufficient controls and gave the appearance of and created the opportunity for
impropriety, the arbitrator believed that the grievant should have done
something to protect himself, such as copying the documents he accepted or
recording an explanation on his Sales Summary Report. From this, one might infer guilt, but one might just as easily
infer trust. The controls and
investigation at the Agency were simply too lax to draw a strong enough
inference to justify the grievant's termination, whether for theft or for
failure to follow procedures.
Therefore, the
arbitrator held that the grievant was not removed for just cause.
AWARD:
The grievance was
sustained and the grievant was returned to his position and awarded backpay,
benefits, and seniority. However, the
Union's request for interest and attorney's fees was denied.
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,
BUREAU OF MOTOR VEHICLES
OPINION AND AWARD
Anna DuVal
Smith, Arbitrator
Case No.
15-02-920511-0030-01-09
February
7, 1995
Joseph
Eichhorn, Grievant
Discharge
Appearances
For the Ohio Civil Service Employees Association:
Anne Light
Hoke, Esq.
Associate
General Counsel
OCSEA
Local 11, AFSCME, AFL-CIO
Columbus,
Ohio
Jeff
Giffen
Steward
OCSEA
Local 11, AFSCME, AFL-CIO
Columbus,
Ohio
For the Ohio Bureau of Motor Vehicles:
Wayne P.
Mogan, Jr.
Labor
Relations Specialist
Ohio
Office of Collective Bargaining
Columbus,
Ohio
Michael P.
Duco
Asst. Legal Counsel
Ohio
Office of Collective Bargaining
Columbus,
Ohio
Hearing
A hearing on this
matter was held at 10:00 a.m. on October 12, 1994 and continued on November 9
and 21, 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 stipulated the
matter was properly before the Arbitrator and submitted one issue set forth
below. They were given a full
opportunity to present written evidence and documentation on this issue, to
examine and cross-examine witnesses, who were sworn or affirmed and excluded,
and to argue their respective positions.
As many incidents of wrongdoing over several months time were alleged,
the parties agreed in arbitration to focus on a limited number of specific
dates: May 22 and 23, June 13, July 1, 2 and 24, and August 12. Testifying for the Employer were Cumi L.
Roberts (Management Analyst, Bureau of Motor Vehicles, by subpoena), Thomas L.
Tefft (Supervisor, Audit Section, Bureau of Motor Vehicles), Linda L. Morefield
(Chief. Internal Audit Division, Bureau
of Motor Vehicles) and Samuel F. Cassandra (Asst. Auditor, Auditor of State).
Also present was Florence A. Warren, Chief, Office of Human Services,
Ohio Department of Public Safety. Testifying
for the Union were Joseph Eichhorn (Grievant), Rosemary Jamison (Account
Examiner II, Bureau of Motor Vehicles) and Allen Schilling (Schilling &
Associates). A number of documents were
admitted into evidence (Joint Ex. 1-7, Employer Ex. 1-4 and Union Ex. 1-18) and
the parties stipulated to certain facts regarding the Grievant's employment
history. Post-hearing statements were
filed on December 7, whereupon the record was closed. The record was reopened for submission of written replies,
which were received on December 27, 1994, whereupon the record was again
closed. This opinion and award is based
solely on the record as described herein.
Issue
Was the
Grievant disciplined for just cause?
If not,
what is the proper remedy?
Statement of the Case
Before his
removal in April of 1992, the Grievant was an eleven-year employee of the Ohio
Bureau of Motor Vehicles (the State agency responsible for issuing on-road
motor vehicle operator's licenses) in the classification of Public Inquiries
Assistant I. His performance
evaluations indicate he was at or above his employer's expectations (Union Ex.
10 & 13) and he had been suspended for ten days on November 18, 1991 for
neglect of duty/abuse of sick leave and dishonesty (Union Ex. 7). The Grievant was discharged because his
employer believes he misappropriated approximately $5500 over a period of
eighteen months from his sales of Commercial Drivers License (CDL) test
receipts at the Bureau's Obetz Model Facility in Columbus, Ohio.
Under federal
mandate, the CDL program was initiated early in 1990. Various organizations became involved in the sale of CDL test
receipts which qualify an applicant to be tested by the Ohio Highway Patrol for
the license: so-called "third party testers" (organizations
independent of the State such as joint vocational schools), a deputy registrar
in Jackson, and the Bureau at the Obetz facility. Among other requirements, the Commercial Drivers License
necessitates passing three tests: pre-trip inspection, basic off-road (manual),
and a road test. Applicants do not have
to pass all at once and may retake any part failed for an additional fee. Because of the multiple parts of the test
and different sales agents, an applicant might purchase the CDL test receipt
from one organization, but take one or more of the various parts of the test at
the testing facility associated with a different organization. An applicant who is unable to pass one or
two of the tests after the maximum allowable trials might also seek a refund
for the remaining test(s) from a facility other than the one that issued the
test receipt. This, of course, amounts
to trying to get Macy's to provide the goods that Gimbel's was paid for, or
asking Gimbel's to refund money paid to Macy's. Aggravating the problem was the haste with which the program had
to be established, with the result that policies and procedures were developed
and revised as the need was perceived.
The Grievant was
assigned to the Bureau's Obetz facility on March 12, 1990. When established, the facility had an
on-site supervisor, but he was reassigned and the facility came under the
off-site supervision of Tom Tefft, whose oversight of the one or two employees
was by telephone and site visits. Still
later another supervisor was assigned, again off site. Mr. Tefft testified about the procedure for
various transactions, which he said were conveyed to employees verbally. Obetz honored cashier receipts from the
deputy registrar in Jackson and, in the beginning, from third-party
testers. It stopped honoring the
latter, though, because it had no way to collect from the private
organization. The new procedure was to
require cash from the applicant and issue a CDL test receipt. The customer would then get a refund on the
unused portion of the private organization's prepayment receipt from that
organization, not from the Bureau. Mr.
Tefft said that sometime in 1990, he believed around the middle, he told the
Grievant not to accept third-party receipts and not to issue CDL test receipts
without a cash payment. The Grievant
knew what to do and did it daily. The
Grievant testified he was never given written procedure on this. In fact, he said he was told to honor
third-party receipts and, after issuing the CDL test receipt, he would return
the third-party's cash receipt to the applicant for tax proof. He testified he mentioned this as a problem
to Management, but nothing was ever done.
He did not write these transactions on his reports as exceptions because
he did not think they were irregular.
As far as refunds on the Bureau's own transactions were concerned, a
test receipt can be voided and a refund made by the PIA the same day it is
issued, but refunds requested other times must come from the Cashier's
Department.
During the
Grievant's absence from work in August 1991, irregularities regarding the sale
of test receipts at the Obetz facility came to the Employer's attention during
the normal course of business. The
former supervisor of the facility (Marvin Fisher, since deceased) was called in
to investigate, but eventually the audit was turned over to the Bureau's
Internal Audit Division. Cumi Roberts,
Management Analyst, undertook a two month review of the facility's records from
March 1990 through August 1991 under the supervision of Linda L. Morefield,
Chief of the Division. She found
discrepancies in the records, particularly with regard to voided transactions
and end-of-day summary reports, amounting to a shortage of about $5500. The Grievant's code was used on the
pertinent cash register transactions and he had signed the end-of-day reports. She then extended her inquiry to the period
when the Grievant was absent from the facility and after he had been reassigned
(on September 10, 1991). Finding no
suspicious transactions during his absence, she concluded that the Grievant was
responsible for the theft and recommended revisions to the facility's
control procedures. Detailed testimony
and documents, including working papers and source documents were presented to
support her conclusion, focusing on several dates where under-reporting is
alleged: May 22 and 23, June 13, July 1, 2 and 24, and August 12, 1991 (Employer
Ex.1 & 4 A-F). Rosemary Jamison,
Account Examiner II and Union Steward, challenged the professionalism of Ms.
Roberts' audit and offered her own analysis of the shortages the Employer
claims for these dates (Union Ex. 4 and 6).
In her opinion, there were no discrepancies in the records and the
questionable transactions were third-party tester situations. Allen Schilling, retired police officer and
now private investigator, testified Marvin Fisher told him from his hospital
bed where he was dying that he, too, had doubts about the thoroughness of the
Bureau's audit and control procedures for off-site testing. The Ohio Highway Patrol also conducted an
investigation, but only the Grievant's statement to an investigating trooper
was submitted (Union Ex. 14).
On April 10,
1992, the Grievant was indicted on five counts of theft in office. He was placed on administrative leave with
pay five days later at an investigatory interview. A pre-disciplinary hearing was conducted April 24, with the
result that the Grievant was terminated April 29 for "violation of Work
Rules #7 (Felony Commission or Conviction) and #30 (Any act of commission not
otherwise set forth herein which constitutes a threat to the BMV, its image,
staff or the general public)" (Joint Ex. 2). The Steward who represented the Grievant at the pre-disciplinary
meeting testified that document production and other procedural difficulties
hindered her ability to represent him effectively.
This action was
grieved on May 8 and appealed without resolution to arbitration where it
presently resides for final and binding decision, free of procedural defect.
While the case
awaited arbitration, the Grievant's criminal case came to trial. He was found not guilty in February
1994. The Auditor of State then
assigned Asst. Auditor Cassandra to
conduct his own review. His findings,
published on September 8, corroborated those of Ms. Roberts' (although the loss
he attributed to the Grievant was somewhat less at $5260). Two other employees had smaller
discrepancies, one an overage of $30, another a shortage of $140 which Mr.
Cassandra said was later explained to the Auditor's satisfaction. The Auditor of State therefore issued a
finding of recovery against the Grievant and his fidelity bond. In sufficiencies in the Department's
internal control structure at the time of the irregularities were also noted as
having been corrected.
Arguments of the Parties
Argument
of the Employer
The State
contends it has clearly and convincingly established that the Grievant
misappropriated over $5000 paid to him by members of the public and that this
action constitutes a threat to the Bureau and its image and to the general
public.
It says the
Grievant was personally informed by his supervisor, Tom Tefft, on proper
procedure for handling applicants from third-party testers.
The State further
maintains that it conducted a thorough investigation. A calendar was constructed from payroll records, work schedules
and cash register tapes. The tapes alone
prove the Grievant was working on certain dates during which questionable
transactions occurred and which entries were his. Ms. Roberts, a bargaining unit member testifying by subpoena,
performed an audit that proves on five dates more CDL test receipts were issued
and unvoided than were reported as paid for.
On every date the Grievant was working alone, his number is on the cash register
tape, and he signed the daily report.
He claims the irregular transactions were third-party situations, but on
a sixth day there is one of these done correctly by him, proving he knew the
proper procedure. Significantly, on
this sixth day, the Grievant was not working alone. The State argues the Grievant did not misappropriate funds on
this date because he would have had to account for it to the second
employee. The State further points out
that Ms. Roberts' conclusions were confirmed by Mr. Cassandra (of the Auditor
of State's office) who worked independently of Ms. Roberts. The Union's witness, Ms. Jamison, got the
same results although she used a different method and had a different
explanation for the discrepancies.
The Bureau
asserts that the Union's various explanations for the discrepancies do not
account for more test receipts being issued than were paid for, nor does it
explain how he expected the State would collect, nor why the activity stopped
when the Grievant was gone. The State
argues that a reasonable person would have made copies of the receipts brought
by the third-party applicants or made some sort of record to balance the
books. The fact that the Grievant did
not suggests devious motivation. The
State further contends it successfully damaged the Grievant's credibility when
he admitted on cross examination that he accepted a 10-day suspension for
dishonesty, conduct that occurred after he knew his integrity was in question.
The State argues
that although the Grievant was found not guilty of a felony in criminal court,
he did violate work rule 30. It urges
her to disregard the level or lack of criminal conviction when she considers
the State's decision to discharge the Grievant citing her own opinion in the
parties' case number 31-02-890403-0018-01-06 (Wharton). Theft of any amount warrants
termination for a first offense and is covered under the work rule cited. Moreover, the Union was aware of the
specificity of the charge from the outset.
Regarding the
remedy requested by the Union, the State asks that the Arbitrator deny the
request for attorney fees, medical expenses and interest on back pay as these
costs do not proximately flow from the Bureau's removal of the Grievant. The Franklin County Prosecutor brought the
criminal charges, the Grievant made the decision regarding his insurance
coverage and the Employer had no part in denial of his claim, and the Employer
did not unreasonably hinder the progress of the grievance, but acted within its
rights under Article 24.04 of the Contract.
In sum, the State
asks that the grievance be denied in its entirety, but deny unusual remedies
should she grant the grievance.
Argument
of the Union
The Union
contends the State did not prove its case.
Instead, it believes the record shows that the Bureau's own shoddy
procedures are responsible for the appearance of shortfalls.
The Union first
points to what the State failed to do in arbitration: it did not call any
employees except the supervisor to testify how the Obetz facility was run, it
did not offer written procedures, it did not bring proof that the Grievant was
told to stop accepting third-party prepayments, and it did not call truckers to
testify that they had not been refunded their money.
The Union next
challenges the adequacy of the audit that purports to show the Grievant is
guilty of theft: The auditor did not audit the third-party testers, she
considered the CDL test receipts chargeable inventory even
though the employees did not, she made sloppy efforts in her work, she did not
consider validations of the test receipts, she did not document the timing of
sales and voids though some occurred within minutes of each other, she did not
notice when substitutes were working, she never counted the money in the till
and, in fact, never established that money was missing, and she disregarded the
Bureau's internal procedures. On top of
this, two employees who worked at Obetz during the period but who either quit
or were fired for passing bad checks were never accused simply because the
attendance calendar made by the supervisor did not include their names. The Union also says the State Auditor
employee's audit suffers from the same limitations.
The Union
contrasts the State's audit with the review performed by its own witness. Ms. Jamison considered Obetz policies such
as not voiding CDL test receipts issued on third-party prepayments so that the
Highway Patrol would honor them, same-day refunds being treated as voids, and
coverage during lunch breaks. She also
worked by matching validation numbers.
Her conclusion, which is consistent with the Grievant's story, is that
the challenged transactions were actually refunds given to truckers who learned
that Obetz accepted third-party prepayments.
The Union also
offers the "dying declaration" statement of the Bureau's former
supervisor who said the procedures at Obetz were terrible and attacks the
Employer's characterization of the evidence before her.
With respect to
the Grievant's testimony, the Union claims he has been consistent with his
story in the Highway Patrol investigation, in the criminal trial, and in arbitration. He was never told the Bureau no longer
accepted third-party prepayments. He
did not document these refunds because he understood them
to be acceptable practice though he had seen and pointed out the appearance of
impropriety to Management. Finally, he
has explanations for his documentation on August 12 (he was documenting a true
exception) and lack thereof on other days (voided test receipts would not be
accepted by the Highway Patrol, third-party cash receipts were returned to the
customer for their tax records, and these were not exceptions requiring
explanation).
Next the Union
asserts that it was denied necessary documents in the pre-disciplinary phase
and that the Employer did not present its case in the Step 3 response. It says the Employer tried to develop its
case in arbitration, but had no proof that the Grievant stole any money or even
that money was actually taken. It
argues the grievance should therefore be granted.
As a remedy, the
Union seeks reinstatement, full back pay (including shift premium and
overtime), health expenses that would have been paid by Employer-provided
insurance, interest on back pay on account of the Employer's deliberate attempt
to injure the Grievant, and attorney fees suffered as a result of bad faith
prosecution. It offers the decision of
Arbitrator Rivera in the parties' #07-00-(12-27-89)-0059-01-09 and cases cited
therein as support for the requested remedy.
Opinion of the Arbitrator
One of the proven
facts of this case is that control procedures and policies at the Obetz
facility during the period that the Grievant worked there were inadequate. Whether the Grievant exploited this fact to
his own advantage or was himself a victim of it depends on whose view of the
matter one accepts.
Of the seven
dates taken as a sample of the Grievant's work at Obetz, the parties finally
agreed that there were five days on which he did not account for having issued
one more CDL test receipt than cash or check payment received and deposited:
May 23, June 13, July 1, July 2 and July 24.[1] They also finally appear to agree that the
Grievant made the cash register transactions offsetting the sales in question
and signed off on the daily reports.
The differences between the parties arise in their theories of what
transpired when the Grievant voided the transaction for each of these but not
the test receipt itself.[2] The Employer says he pocketed each $50
himself, the Union says he accepted proof of third-party prepayment as he had
been instructed. There is no direct
evidence of either. There is only
circumstantial evidence from records (which the Arbitrator has gone to
considerable length to study) and the uncorroborated testimony of a supervisor
and the Grievant. The weight of these
leaves the matter in considerable doubt.
The Arbitrator
has carefully scrutinized the source records submitted and can determine from
them that cash was received for some of the unvoided test receipts (in some
cases change was given), and also that the Grievant's code was used on the
offsetting void transactions. Accepting
arguendo that he, and not someone
else using his code, made the void transactions, one cannot tell whether the
money made its way into his pocket or was refunded to the applicants. No one came forward to say they saw what he
did. Most telling of all, not one
single applicant was called to testify to what occurred, despite the identity
of all of them clearly being known by the Agency from their test receipts and
drivers' licenses. When witnesses who
clearly have probative evidence are not called, one must draw the inference
that they have nothing to add. The
Employer cannot be excused because of the time elapsed since the irregularities
were discovered. Had a full
investigation been conducted at the time, it is reasonable to expect that at
least some of the truckers would have been able to shed light on the
matter. The Employer's case for theft
fails not on a technical violation of the fair investigation test, but on the
substantive one of failing to produce the convincing evidence that might have
been discovered in a full investigation.
One of the
Employer's contentions is that although the Agency at first accepted
third-party prepayments, it later changed its policy and so informed the
Grievant. If this is true then the
Grievant's defense is shattered and he is at least guilty of failing to follow
proper procedure, costing his Employer the sum unrecovered from the third-party
testers. As proof, the Employer offers
the supervisor's testimony, the August 12 transaction that was properly
accounted for, and its auditor's observation that similar shortages did not
occur after the Grievant was no longer there (the latter is also offered as
proof that he created a scheme to steal from his Employer, knowing that
controls were inadequate). The Union
provided a plausible alternative explanation for the August 12 transaction, and
one would expect practices to change after the irregularities occurred on
August 13. On the other hand, the
Grievant clearly knew the policy of accepting third-party prepayments lacked
sufficient controls and thus gave the appearance of and created the opportunity
for impropriety. Yet he did nothing to
protect himself, neither copying the documents he accepted nor recording an
explanation on his Sales Summary Report.
One might infer guilt, as the Employer argues, but one might just as
easily infer trust.
And so one comes
to the credibility of two opposing and facially self-serving declarations: the
hazy memory of a supervisor that he informed the Grievant sometime in 1990
against the word of the Grievant that nothing was ever changed about the
procedure even after he brought it to Management's attention. While it is true that the Grievant has an
incident of dishonesty on his record, this does not prove the case against him
here, but only subjects his testimony to closer scrutiny than otherwise. The credibility issue is too close a call in
this case where there are no corroborating witnesses, documentation or strong
circumstantial evidence that the Grievant knew that it was against procedure to
accept third-party prepayments.
In sum, the
controls and investigation at the Agency were simply too lax to draw a strong
enough inference to justify the Grievant's termination, whether for theft or
failure to follow procedure thus threatening the Bureau, its image, staff or
the general public. The Grievant was
not removed for just cause.
Award
The grievance is
sustained. The Grievant will be returned
to a position as Public Inquiries Assistant I in the Bureau forthwith, his
record expunged, and afforded all back pay, benefits and seniority to the time
of his removal, less any earnings he may have had in the interim. The Union's request for interest and
attorney fees is denied. The Arbitrator
finds no reliable evidence that the Employer either deliberately tried to
injure the Grievant or stall the case, and the criminal charges were brought by
the County Prosecutor. As to medical
payments, the Employer is ordered to reimburse the Grievant any medical
expenses incurred that would have been covered by his employer-paid insurance
had he not been removed without just cause.
The Arbitrator retains jurisdiction for 30 days to resolve any dispute
over the calculation and implementation of this award.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
February 7, 1995
[1] On May 22, #6641 was properly voided. On August 12, the Grievant explained the exception on his Sales Summary Report.
[2] A voided CDL test receipt is one that has been stamped “void" on the front and validated on the back. The Ohio Highway Patrol would not honor these. A void transaction, on the other hand, could merely correct an erroneous case register transaction and not result in the voiding of a test receipt.