ARBITRATION
DECISION NO.
587
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Ohio Department of Youth Services,
Cuyahoga Hills Boys School
DATE OF
ARBITRATION:
August 22, 1995
DATE OF
DECISION:
September 22, 1995
GRIEVANT:
Darrell Hill
OCB
GRIEVANCE NO.:
35-03-(94-06-08)-0024-01-04
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Dennis Falcione, Staff Representative
FOR THE
EMPLOYER:
Edie Bargar, First Chair
Rachel Livengood, Second Chair
KEY WORDS:
Expert Witness
Investigation
Criminal
Removal
Forgery
Misuse of Credit Card
Burden of Proof
ARTICLES:
Article 24 - Discipline
§24.01 - Standard
FACTS:
In early January
1994 an Employer credit card assigned to state vehicle 53-124 was discovered
missing. The grievant, an Activities
Therapist 1 at Cuyahoga Hills Boys School for 14 years, was accused of
unauthorized use of the missing credit card.
The grievant allegedly used the credit card to make personal purchases
and falsely signed other staff names to receipts to cover his alleged misuse of
the card.
Management
assigned a security officer to investigate the disappearance of the credit
card. Evidence was uncovered which led
the security officer to conclude that they were dealing with theft of the
credit card rather than its being misplaced.
On January 11, 1994 a Significant Incident Report was filed and the Ohio
Highway Patrol was notified in accordance with normal procedure.
The Ohio State
Highway Patrol investigation identified seven staff members of the Cuyahoga
Hills Boys School as suspects, including the grievant. Signatures of the seven suspects were
submitted to an expert in forensic document examination. The preliminary examination showed a
possible match between the grievant's handwriting and that found on the
receipts. Additional writing samples
were requested from the grievant and two of the staff members whose names were
signed to some of the receipts. Writing
samples were also obtained from the personnel file of the grievant. On March 7, 1994 the expert issued his
report, positively identifying the grievant as the signer of the signatures on
five sales receipts.
On March 30,
1994, the grievant was indicted on 12 counts of forgery, 12 counts of uttering,
and one count of theft in office. Based
on the results of the Department's investigation, the grievant was removed from
his job at CHBS effective June 8, 1994.
The action was promptly grieved, with the Union alleging violation of
Contract Article 24. The grievant was
found not guilty of the criminal charges against him, and the grievance was
taken to arbitration.
EMPLOYER'S
POSITION:
It is
Management's position that the sole issue for the arbitrator is whether the
grievant signed the credit card receipts.
The expert's testimony makes it clear that the grievant is guilty. The Union did not successfully challenge the
expert's testimony despite ample opportunity.
UNION'S
POSITION:
The Union made
three arguments: (1) the investigation
was not fair and objective, (2) there is insufficient proof of guilt, and (3)
the penalty of removal is too severe.
The Union
contended that the investigation focused unfairly on the grievant. The Union notes that not all personnel with
access to the area where the credit cards were kept were investigated or
required to provide copies of their handwriting. Additionally, the Union asserts that the State Highway Patrol
trooper charged with the investigation had his mind made up before all the
evidence had been collected.
The Union
challenged the testimony of the expert witness as his arbitration testimony
conflicted with the testimony he had given at the criminal trial. Therefore, the State did not meet its burden
of proof by the "beyond reasonable doubt" standard required in cases
of moral turpitude.
Finally, the
Union argued that the grievant's length of service and considerable
achievements should serve to mitigate the penalty. The removal of the grievant constitutes punishment in violation
of the Collective Bargaining Agreement (Article 24) because of its stigmatizing
effect on the grievant.
ARBITRATOR'S
OPINION:
The Arbitrator
concluded that there was inadequate support for the Union's position that the
grievant was not provided a full and fair hearing. There was no evidence that either the internal investigation or
the State Highway Patrol investigation unfairly focused on the grievant or that
the conclusions of the expert were preordained in any manner. The State's reliance on outside
investigators and multiple sources of data indicated that the hearing was full
and fair.
As to the Union's
position that the State failed to meet its burden of proof, the Arbitrator
concluded that while the trial testimony of the expert conflicted with his
arbitration testimony, the conflict was the result of a misunderstood question
rather than a change of opinion. The
expert was highly competent and his conclusions were "positive,
well-grounded, and unchallenged by anyone qualified to do so." The bottom line was the Arbitrator was
convinced that grievant was the person who signed the receipts.
The Arbitrator
concluded that the disciplinary action was commensurate with the offense and
therefore consistent with the Contract.
Removal is justified provided the employer is not "arbitrary,
capricious or discriminatory in its imposition." Due to the nature of the grievant's position and a complete lack
of evidence that other employees charged with theft had received lesser
penalties, the Employer's decision not to mitigate was justified.
AWARD:
The grievance was
denied in its entirety.
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
YOUTH
SERVICES
OPINION
AND AWARD
Anna DuVal
Smith, Arbitrator
Case No.
35-03-940608-24-01-04
September
22, 1995
Darrell
Hill, Grievant
Discharge
Appearances
For the
Ohio Civil Service Employees Association:
Dennis
Falcione
Staff
Representative
Ohio Civil
Service Employees Association
Columbus,
Ohio
For the
Ohio Department of Youth Services:
Edie
Bargar; Rachel Livengood (Second Chair)
Office of
Collective Bargaining
Ohio
Department of Administrative Services
Columbus,
Ohio
Hearing
A hearing on this
matter was held at 9:45 a.m. on August 22, 1995 at the offices of the Ohio
Civil Service Employees Association in Fairlawn, Ohio before Anna Du Val 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
excluded and sworn or affirmed, and to argue their respective positions. Testifying on behalf of the Employer were
Nicholas Discenza (Security Supervisor), Vernon Saunders (Security
Administrator), Trooper Tom Esenwein (Ohio Highway Patrol), and Dr. Phillip
Bouffard (Lake County Regional Forensic Laboratory). Testifying on behalf of the Union were the Grievant, Dorothy
Brown (Chapter President), Arlene Goodman (Security Officer/Switchboard),
Howard Turner (Duty Officer), and Valerie Dudley (Former Deputy
Superintendent). The oral hearing
concluded at 10:10 p.m., whereupon the record was closed. This opinion and award is based solely on
the record as described herein.
Issue
The parties
stipulated that the case is properly before the arbitrator. They further stipulated that the questions
to be answered are:
Was the Grievant
removed for just cause? If not, what
shall the remedy be?
Statement
of the Case
At the time of
his removal for theft and falsification of documents, the Grievant was an
Activities Therapist I at Cuyahoga Hills Boys School (CHBS), a State facility
for the incarceration
and correction of felony youth offenders. The Grievant had been similarly employed by the Ohio Department of
Youth Services (ODYS) for 14 years, during the course of which he had an
exemplary, even stellar, career, receiving letters of commendation for his
accomplishments with the youth under his care, positive performance
evaluations, and no disciplinary actions.
The misdeeds of which the Grievant is accused are the unauthorized use
of an Employer credit card to make personal purchases and falsely signing other
staff names to receipts to cover himself.
The institution's
vehicle control system at the time the relevant events took place bears
description. State vehicles received
routine maintenance (including fueling) on site, but there was a credit card
for each vehicle for occasions when it was likely the vehicle would need
service while away from the institution, such as on out of town trips. The number of each credit card matched the
license plate of its corresponding vehicle.
Employees using the vehicles and cards were issued the keys, card,
telephone and paperwork at the communications center in the facility and were
supposed to sign for them when taken and upon their return. Separate logs for the vehicles and cards
were maintained, but the records submitted are obviously incomplete. Witnesses disagreed on the freedom of
employee access to the area where keys and cards were kept, but clearly the
security of the entire system was lax at the time and the system was changed
afterwards.
In early January
1994, the credit card for vehicle 53-124 was discovered to be missing. Security Administrator Vernon Saunders
assigned Security Officer Discenza to investigate its disappearance. The logs were in too great a disarray to
track the use of the missing card, but gas receipts that were still being
turned in revealed that the card was in use after the <PAGE NAME="4">last date on the
log. The grade of gasoline being
purchased (in one case this was racing fuel), similarities in the signatures,
and apparently forged signatures of three CHBS staff caused Ofc. Discenza to
report to Saunders that they were dealing with a case of theft rather than
misplacement. That most purchases were
local and the later discovery that the vehicle had been out of service during
part of the period strengthened this conclusion. On January 11, 1994, a Significant Incident Report was filed and
the Ohio Highway Patrol notified in accordance with normal procedure.
Trooper Esenwein
conducted the investigation for the Highway Patrol, during the course of which
Saunders named several suspects, among them the Grievant. Saunders testified that the reason he
suspected the Grievant was that his name had come up in connection with the
disappearance of two other cards. Tpr.
Esenwein's report shows that he submitted signatures of seven CHBS staff
obtained from their personnel files to the Lake County Regional Forensic Lab on
January 19 (State Ex. 3). Signatures of
the three staff whose names were signed to some receipts as well as the four
suspects named by Saunders were submitted, but not that of the person who last
signed out the card or of personnel authorized access to the communications
center, among whom was Ofc. Discenza.
Dr. Phillip Bouffard, an expert in forensic document examination, testified
that his preliminary examination showed a possible match between the Grievant's
handwriting and that on the receipts.
He requested additional samples.
Tpr. Esenwein obtained exemplars from the Grievant and two of the staff
whose names were signed to some of the receipts. He and Ofc. Discenza testified that the Grievant's took
two-to-three times as long as the others to complete. The content of the Grievant's exemplar also differed from that of
the other two employees in that the latter were asked to provide
signature specimens of only their own names while the Grievant provided
specimens of four names in addition to his own. When these handwriting samples were delivered to Dr. Bouffard, he
said the Grievant's showed signs of being deliberately disguised, so additional
handwriting samples obtained from the files were provided to Dr. Bouchard. On March 7, 1994, Dr. Bouchard issued his
report positively identifying the Grievant as the writer of the signatures on
five sales receipts. A supplemental
report on March 23 concerning five additional receipts and exemplars from two
employees whose names were signed to newly-received receipts also named the
Grievant. Tpr. Esenwein then took the
case to the Cuyahoga County Prosecutor's Office.
On March 30,
1994, the Grievant was indicted on 12 counts of forgery, 12 counts of uttering
and one count of theft in office. While
he was awaiting trial, the Department's investigation continued. Based on its results, a pre-disciplinary
hearing was held on May 6, 1994 and the Grievant was removed from his job at
CHBS effective June 8, 1994. The
removal order cites use of credit card #53-124 between October 21, 1993 and November
30, 1993 in violation of "Rule 2, Falsification of documents, Falsifying,
altering or failing to accurately complete an official document; Rule 34,
Destruction, damage, misuse or theft of property, Destroying, damaging and/or
stealing the property of the state, other employees, the youth or visitors;
Rule 46, Violation of ORC 124.34, Dishonesty, immoral conduct and/or
misfeasance." (Joint Ex. 7) This
action was promptly grieved, alleging violation of Article 24 (Discipline) and
24.01 (Standard) of the Agreement (Joint Ex. 8). The parties agreed to extend the grievance process deadlines
pending outcome of the criminal trial.
Dr. Bouffard
testified at both the criminal trial and arbitration hearing. In the latter, he testified he has no doubt
that the Grievant signed the receipts.
He is of the further opinion that he would have come to the same
conclusion even if the others had written the same names as the Grievant. Acknowledging this testimony is at variance
with what the trial transcript has him saying, he explained he does not
remember the specific question put to him at the trial but believes his intent
then was to testify that he would have looked at anything else submitted for
his examination. The Union sought to
admit a partial transcript of Dr. Bouffard's testimony, but the Arbitrator
sustained the State's objection.
In any event, the
Grievant was found not guilty of the criminal charges against him, and the
grievance was taken up again, but denied at Step 3. It was thereafter appealed to arbitration where it presently
resides for final and binding decision, free of procedural defect. In arbitration, as in all interviews and
prior hearings, the Grievant steadfastly maintained his innocence. Four witnesses, including two from outside
the bargaining unit, testified to their belief in his good character.
Arguments
of the Parties
Argument of the Employer
Management argues
that what matters in this case is not whether the Grievant had any reason to
throw away his long and distinguished career, but whether he did, in fact, sign
the-credit card receipts. The latter issue,
contends the Employer, is settled by the testimony of Dr. Bouffard and the
handwriting he identified as being that of the Grievant. Management points out that no one refuted
Dr. Bouffard's testimony. The Union
might have called its own expert witness, but did not. From this fact, the Arbitrator is urged to draw a
conclusion adverse to the Grievant, uphold the penalty of removal that is
appropriate for theft, and deny the grievance in its entirety.
Argument of the Union
The Union makes
three arguments: (1) the investigation
was not fair and objective,
(2) there is insufficient proof of guilt, and (3) the
penalty of removal is too severe.
With respect to
the investigation, not all employees with authorized access to the area where
the credit cards were kept were investigated or asked to provide exemplars, nor
were the employees last known to have had possession of the card. Even the investigating officer, who himself
had access, wanted to be taken off the case and have all authorized personnel
investigated, but this did not happen.
Instead, the investigation focused on the Grievant, whom the logs show
returned the card the last time he signed it out and who normally used vans to
transport the sports teams rather than sedans like car #124. When it came to the Highway Patrol's
investigation, the trooper had his mind made up before all documents were
gathered and obtained different exemplars from the Grievant than from the other
four employees. Thus, the investigation
was neither full nor fair.
As to proof of
guilt, Dr. Bouffard testified he changed his testimony from that given at the
trial because he did not understand the question. But he did not seek clarification at the time. In response to the trial question about
whether he would conclude the same way if the investigation had proceeded
differently, he answered directly, "No." Thus, the State does not meet its burden of proof by the
"reasonable doubt" standard required in cases of moral turpitude.
The Union's last
argument is that the Employer should have mitigated the penalty by the
Grievant's length of service and considerable achievements, as permitted by the
Employer's own discipline policy that calls for flexibility. In the Union's view, the capital penalty is
unreasonably related to the offense and the Grievant's past record, and
constitutes punishment in violation of the Collective Bargaining Agreement
because of its stigmatizing effect.
The Union
concludes by reminding the Arbitrator of the Grievant's record, his denial of
the charges, and the testimony of supporting witnesses. It asks that the grievance be sustained, the
Grievant's work record be expunged, he be reinstated and made whole for all
lost wages, benefits, seniority, and leaves.
Opinion of
the Arbitrator
The Union alleges
a procedural error that, if true, could constitute a fatal flaw such that would
prevent reaching the question of guilt.
For the reasons given below, I do not find such an insurmountable error.
The Union's chief
argument is that the investigation was not full and fair because the outcome
was a foregone conclusion and all relevant information was not obtained. I cannot agree. Although an individual (Ofc. Discenza) who himself had access to
the storage area .and who had signed out the card was involved in the
investigation, the Grievant's name was initially provided, along with others,
by Mr. Saunders. When the case went to
the Highway Patrol, again a number of names were provided and their original
source was not Discenza, but Saunders.
While one could make something of the fact that Saunders, too, had
authorized access and was technically a suspect, every security person at the
institution was in the same category.
Had the investigation stayed under the control of the security staff at
the facility, or if there were credible evidence that Saunders and/or Discenza
tried to pin the theft on the Grievant, the investigation would have been
improper. Instead, several names were
provided, the grounds for suspicion were neither arbitrary nor capricious, and
an outsider took over the investigation.
The Union also
raises questions about Tpr. Esenwein's role, contending that his mind was made
up as evidenced by discriminatory treatment of the Grievant. Again, I cannot agree. There is no evidence that Esenwein attempted
to lead Dr. Bouffard into identifying the Grievant as the possible writer when
he presented the first set of writing samples.
Rather, it is more reasonable to believe that the investigation grew
more focused as the evidence mounted.
It was not until after Dr. Bouffard identified Hill as the probable
forger that the exemplars at issue were collected. In addition, the set of exemplars at issue did not result in a
positive identification, but only a request for more samples; and this request
was reasonably based on indications of disguised handwriting. It was not until the third sample was
collected and all material analyzed the Dr. Bouffard reached a conclusion. A follow-up report on a fourth set was later
issued. This was not an investigation
that hastily jumped to conclusions or failed to obtain the evidence that might
have changed the course of the case.
Neither the involvement of the institution's security staff nor the
different content of the Grievant's exemplar was ideal. But in the context of the entire
investigation that rested on outside investigators and multiple sources of
data, and followed up not once but several times, it was full and fair.
The issue of
completeness also comes up with respect to the quantum of proof. The Union contends that Dr. Bouffard might
have concluded differently had he been given the same exemplars from all
suspects. Dr. Bouffard readily admitted
that the trial testimony shows he gave a different answer there than in
arbitration, but he was so obviously mystified at how he could have given such
an answer at the trial that I am satisfied he misunderstood the question. He was in all respects a credible witness,
an expert highly competent in his field, and his conclusions were positive,
well-grounded, and unchallenged by anyone qualified to do so. While the Employer might have had the
handwriting of all possible suspects compared to the receipts, I cannot see
that there was anything to be gained from it that might have helped the
Grievant. I am convinced he was the
person who signed the receipts at issue.
Finally there is
the matter of the penalty. While it is
true that the Contract requires the Employer to follow the principles of
progressive discipline and the Employer's own policy permits flexibility in the
penalty, the Contract and just-cause standards also demand that disciplinary
action be commensurate with the offense.
As I and many other arbitrators have frequently ruled, removal for theft
is justified provided the employer is not arbitrary, capricious or
discriminatory in its imposition. In
this particular case, where the Grievant was in the position of being a role
model for the youth under his care and where there is no evidence other
employees charged with theft have received lesser penalties, the Employer's
decision not to mitigate is justified, even though the Grievant has a long and
distinguished career in the service of the State.
Award
The Grievant was
removed for just cause. The grievance
is denied in its entirety.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
September 22, 1995