ARBITRATION
DECISION NO.:
619
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Ohio Bureau of Workers’ Compensation - Akron Service Office
DATE OF
ARBITRATION:
September 11, 1996
DATE OF
DECISION:
November 14, 1996
GRIEVANT:
Harold T. Wilson
OCB GRIEVANCE
NO.:
34-18-(95-12-06)-0235-01-09
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Steven W. Lieber, Staff Representative
FOR THE
EMPLOYER:
Roger A. Coe, Labor Relations Officer
Tom Gulla, Second Chair
KEY WORDS:
Delay
Criminal Charges
Removal
Circumstantial Evidence
Fairness of Investigation
45-day Time Limit
Commensurate Discipline
Just Cause
ARTICLES:
Article 24 - Discipline
§ 24.01 -
Standard
FACTS:
The grievant was
employed as a Clerk 3 in the Akron Office of the Bureau of Worker's Compensation. He was dismissed from his job on December 1,
1995. The incidents from August 1
through September 20, 1995 led to the removal of the grievant. The grievant had stated that he would tear
up certain records and throw them away because he believed that it was a
"waste of time" to copy them.
Management made a decision to monitor the grievant's wastebasket in
order to document the destruction or disposal of any records. This surveillance began on August 3,
1995. Management never confronted the
grievant about his destruction of documents, claiming that it was preparing the
evidence for a potential criminal trial.
The grievant had
received the following discipline: (1) March 16, 1995, a written reprimand for
discourteous treatment of customers; (2) April 6, 1995, nondisciplinary
counseling on job performance issues and an order not to "second
guess" Claims Service Specialists; (3) May 11, 1995, a suspension of seven
(7) days for insubordination and failure of good behavior. The grievant's performance evaluation
indicated that he was performing at or below expectation in every
dimension. The grievant was removed
from his job on December 1, 1995 for "Neglect of Duty, Failure to Follow
the Policies of the Bureau; Carelessness with Agency Information; and Failure
of Good Behavior, Destruction and/or Damage of Claims, Tools,
Equipment." This removal was based
on his alleged destruction of agency documents.
EMPLOYER’S
POSITION:
The State argued
that the grievant was a "difficult employee" who showed contempt for
his superiors and failed to follow orders.
Further, the State contended that the destruction of the Employer's
documents was an aggravating circumstance that led to his discharge. The State conceded that the evidence
presented was purely circumstantial, but argued that "circumstantial but
cumulative evidence can persuade the fact finder."
In defense of the
Employer's delay in imposing discipline, the State argued that it was
conducting a full and fair investigation and was considering bringing criminal
charges. Further, the State contended
that the Union has the burden of raising the 45-day time limit, and this issue
was never raised.
Finally, the
State disputes the Union's claims that the Employer "planted"
evidence in order to provide a reason for discharging the grievant. The State asserted that the grievant had his
own motivations for destroying the documents, which demonstrated a complete
disregard for the orders of his supervisors.
UNION’S
POSITION:
The Union argued
that the State presented contradictory evidence and emphasized that the
evidence presented by the State was merely circumstantial at best. Further, the Union disputed the State's
characterization of the grievant as a "difficult employee." Evidence was presented demonstrating the
positive work ethic of the grievant.
The Union argued that the grievant had no reason to act against his self-interest,
since he knew that he could lose his job if he commits another infraction of
the agency's rules. Secondly, the Union
alleged that the State did not conduct a full and fair investigation with
respect to the charges against the grievant.
In addition, the Union claimed that the State violated the 45-day
discipline deadline prescribed in Article Section 24.05. Finally, the Union contended that the
grievant's removal was not commensurate with the alleged offense and that the
Bureau lacked just cause to remove the grievant.
ARBITRATOR’S
OPINION:
The Arbitrator
noted that two opposing views existed in this case: from one perspective the
grievant was a problematic employee who resisted orders from Management; and on
the other hand, Management seized on an opportunity to discharge an employee it
disliked. With respect to this
viewpoint, the Arbitrator stated that the Employer "must not allow its
desire to rid itself of a problem to taint its investigation."
Further, the
Arbitrator held that even with the lengthy investigation conducted by the State
and the strong circumstantial evidence accumulated, the investigation was not a
full and fair investigation since it was one-sided. As an example of the partiality demonstrated in the
investigation, the Arbitrator pointed out that Management did not collect
material from the grievant's wastebasket on the days the grievant was not at
work and noted that Management also did not observe his work area during the
day. In the Arbitrator's opinion,
either of these procedures might have produced evidence of the grievant's
innocence. The Arbitrator also noted
that the decision to discharge the grievant was extreme since the purpose of
imposing discipline is to attempt to rehabilitate the employee. The Arbitrator determined that the grievant
should be given an opportunity to correct his behavior.
AWARD:
The grievance was
granted in part and denied in part. The
removal was reduced to a suspension of thirty (30) days. The Arbitrator held that the grievant was
removed without just cause. He was
reinstated to his former position with full back pay, seniority and benefits,
less thirty (30) days. A record of this
action was placed in the grievant's personnel file.
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 BUREAU OF WORKERS
COMPENSATION
OPINION AND AWARD
Anna DuVal Smith, Arbitrator
Case No.:
34-18-951206-0235-01-09
Harold T. Wilson, Grievant
Discharge
Appearances
For the Ohio Civil Service Employees Association:
Steven W.
Lieber
Staff
Representative
Ohio Civil
Service Employees Association
Columbus,
Ohio
For the Ohio Bureau of Workers' Compensation:
Roger A.
Coe, Labor Relations Officer
Tom Gulla,
Second Chair
Bureau of
Workers' Compensation
Columbus,
Ohio
Hearing
A hearing on this
matter was held at 9:10 a.m. on September 11, 1996, at the offices of the Ohio
Civil Service Employees Association in Fairlawn, Ohio and continued on
September 16 at the State Office Building, Akron, Ohio before Anna DuVal Smith,
Arbitrator, who was mutually selected by the parties by direct appointment,
pursuant to the procedures of their collective bargaining agreement. The parties stipulated the matter was
properly before the Arbitrator and presented one issue on the merits, which is
set forth below. They 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. Testifying for
the Bureau were Victoria Bartel, William Orosz, Melissa Wilkinson, Cynthia
Risby, Jody Hentosz, and Lora Hunt, the latter three by subpoena. Also present were Dan Neubert (Agency
Representative) and Rodney Sampson (Ohio Office of Collective Bargaining). Testifying for the Union were Teresa E.
Gallagher, Carol Totten, Mildred Kolinoff, Jane Kapsa, Dorothy Jannie, Barbara
Moran (by subpoena) and Harold Wilson (Grievant). Also present was Elise Schorr (Chapter President and
Steward). A number of documents were
admitted into evidence (Joint Ex. 1-7, Bureau Ex. 1-32, and Union Ex.
1-7). The oral hearing concluded at
4:00 p.m. on September 16. Post-hearing
briefs and replies were timely filed with the Arbitrator and directly
exchanged, whereupon the record was closed on October 4, 1996. This opinion and award is based solely on
the record as described herein.
Statement of the Case
At the time of
his dismissal on December 1, 1995, the Grievant was a Clerk 3 in the Akron
Service Office of the Bureau of Workers' Compensation. The record does not reveal any difficulty
with his job performance from the time he was hired on May 17, 1982, until
1995, shortly after he came under the supervision Melissa Wilkinson, a person
with whom he had worked when she was a college student in 1994 and whom he once
reported for irregularities in taking her lunch break. The Grievant then accumulated the following
record: on March 16, he received a written reprimand for discourteous treatment
of customers (Joint Ex. 5); on April 6, he received nondisciplinary counseling
on a number of job performance issues, most particularly mail backlog, and was
directed to keep a log of his activities and not to "second guess” Claims
Service Specialists (Management Ex. 2 & 32); on May 11, he was suspended for
seven days for Insubordination and Failure of Good Behavior (Joint Ex. 5). Ms. Wilkinson prepared his performance
evaluation for the year in June, rating him at or below expectations on every
dimension and providing a written explanation of these ratings, to which the
Grievant responded, also in writing (Joint Ex. 6).
During the summer
of 1995, Ms. Wilkinson went on leave and the Grievant came under the
supervision of Victoria Bartel. The
incidents that gave rise to his removal thus occurred while Ms. Wilkinson was
not at work. What happened is this: on
August 1, self-insurance team employees came to Ms. Bartel, informing her that
the Grievant had said it was a waste of time to copy certain records and that
he would "tear them up and throw them away," (Union Ex. 2). These employees testified they were
concerned because if he did so, this would mean additional work for them. Ms. Bartel reported this to her superior,William
Orosz, who then conferred with staff in Labor Relations. A decision was made to monitor the
wastebasket kept in the Grievant's open pod and to document any destruction or
disposal of records. Ms. Bartel and Mr.
Orosz began this surveillance on August 3, removing the contents of the
wastebasket each day but skipping those days when the Grievant was not at work
(Management Exs. 4-10, 14-28). Ms.
Bartel prepared several memoranda detailing the documents found and her
comparison of them with the contents of the claims files (Management Ex. 11-13). In addition, on August 4, Ms. Bartel wrote a
memorandum to the Grievant confirming conversations of August 2 and 4 in which,
amongst else, she reminded him not to be "second guessing” the work of the
Claims Service Specialist (Management Ex. 12).
By August 7. she had concluded that the Grievant was consistently
disposing of claim file information in contravention of a Bureau rule
prohibiting "destruction and/or damage of claims," and was
"prepared to ask for progressive discipline" (Management Ex. 12). On August 8, Mr. Orosz documented an
incident with the Grievant on that date during which he observed the Grievant
rip an internal routing sheet from a file, stating, "You don't need
this," upon which Mr. Orosz told him documents were not to be removed from
Bureau files (Management Ex. 12). However, neither Bartel nor Orosz confronted the Grievant with
their evidence, but continued to empty his trash can until September 20,
testifying that they did not confront him because there might be a criminal investigation. However, the Grievant was never prosecuted.
For his part, the
Grievant testified he had been told by his former supervisor, Barbara Moran,
that it was alright to dispose of duplicate copies, something she confirmed in
her own testimony. He went back and
verified this sometime later after he heard arumor to the contrary. A number of witnesses testified that there
was no written policy concerning the destruction of duplicates and some
testified they had done so themselves or had seen a supervisor do so. The Grievant also testified he never
discarded originals, Ms. Moran agreed that she did not think he would, and all
witnesses who were asked said they had not seen him throw any documents away.
The Grievant
further testified that he assumed the “second guessing" he was admonished
to stop meant helping others with problems they encountered. Indeed, several witnesses testified to the
knowledge, helpfulness and conscientiousness of the Grievant, and others
submitted affidavits to the same effect (Union Ex. 1).
The Grievant also
said that although he was aware his wastebasket was being monitored, he did not
know he was in trouble for throwing documents away until the
prediscipline. He did, however, know
that if he got in trouble again he would be fired.
On September 19,
Mr. Orosz conducted an investigatory interview with the Grievant, and Ms.
Wilkinson, who had since returned from leave, issued a report of her opinion
regarding the seriousness of the destruction of the documents found. The three employees who had heard the
Grievant say he would “tear up and throw away" unnecessary copies were
ordered to provide affidavits and, on September 20, did so (but later asked to
have them withdrawn) (Union Ex. 2-4).
In addition, Mr. Orosz confiscated a cartoon from the Grievant's pod
about destroying "useless" work documents (Management Ex. 29). A predisciplinary meeting notice was issued
on October 3, followed by a corrected one on October 4 seeking his removal. Prior to this meeting Chief Steward Carol
Totten conducted her own investigation, comparing Management's list of what was
retrieved from theGrievant's wastebasket with the contents of the
files (Union Ex. 7). Following the
October 12 pre-disciplinary meeting, the Grievant's employment was terminated
effective December 1, 1995 for “Neglect of Duty, Failure to Follow the Policies
of the Bureau; Carelessness with Agency Information (e.g., mail, warrants,
claim files); and Failure of Good Behavior, Destruction and/or Damage of
Claims, Tools, Equipment" (Joint Ex. 3).
A grievance
protesting this action was filed on December 2, 1995. Being unresolved at lower steps of the grievance procedure, it
came to arbitration where it presently resides for final and binding decision,
free of procedural defect.
Stipulated Issue
Was the
Grievant, Harold Wilson, removed for just cause?
If not,
what should the remedy be?
Arguments of the Parties
Argument
of the Employer
Management's
position is that this was a difficult employee who showed contempt for his
superiors, consumed an inordinate amount of supervisory time, and substituted
his own judgment for that of his superiors.
It contends it had cause to collect evidence from the co-workers'
reports and to do so over a period of time, being under an obligation to
conduct a full investigation and to provide evidence for the Highway Patrol's
investigation. What it found was both
copies and original documents, the latter of which the arbitrator should
consider an aggravating circumstance.
Conceding that
the evidence is circumstantial, the Bureau nevertheless claims it is
cumulative, arguing that "circumstantial but cumulative evidence can
persuade the factfinder” (Ohio Department of Rehabilitation and
Correction v. OCSEA/AFSCME, Sampson and Lawson, Grievants (1993) (Rivera,
Arb.). It does not need direct evidence to prove the Grievant's
culpability. It points out that all
documents found came under the Grievant's control in the ordinary course of
business, were interspersed with wrappers of food he was known to consume at
work, and were reviewed by at least two Bureau officials on a daily basis over
a period of time. The Union's
challenges to the Bureau's evidence and motive fail, contends the Bureau. Ms. Wilkinson does not even recall the
incident of the lunch reporting time and the allegations of her use of Bureau
time for personal business has no relevance.
Regarding the statements of the self-insurance team, the Bureau says the
order to write them was legitimate and in no way vitiates their probative
value. On the other hand, the
Grievant's testimony lacks credibility.
His claim of inadequate training contradicts witness testimony about his
expertise, and the categorical nature of his denial that he threw original
documents away is too strong to be believable.
In addition, the Bureau raises a number of questions about the
Grievant's claim that he never received direction not to discard this kind of
material, among them a lame excuse of the rumor that he used to explain why he
consulted his former supervisor. The
Bureau asks the Arbitrator to find the weight of the evidence is that the
Grievant disregarded an explicit order by Ms. Wilkinson not to do so.
The Bureau
defends its delay in confronting the Grievant and in imposing discipline,
saying it needed to conduct a full investigation which involved the collection
of cumulative evidence, and was under the instructions of Labor Relations to
continue the effort pending a Highway Patrol decision on the matter. It says the Union should be barred from
makingthe
45-day argument because the Union itself bears responsibility for the delay and
never raised the issue prior to arbitration.
The Bureau
disputes the Union's allegation that it set up the Grievant, planting evidence
to get him. The Grievant is the one
guilty of misconduct for which he had two possible motives. First, discarding documents offered itself
as a solution to the backlogged mail problem for which he had been recently
disciplined. Second, the Grievant
arrogantly and falsely believed he better knew the appropriate contents of
claims files than did the supervisor from whom he was unwilling to take
direction.
In conclusion,
the Bureau says the weight of the evidence is that the Grievant is guilty. The Arbitrator should therefore sustain
Management's action and deny the grievance.
Argument
of the Union
The Union attacks
the quality of the Bureau's evidence.
It points to contradictions in Ms. Wilkinson's testimony, saying not
only was she not a credible witness but her testimony showed her to be
unavailable to the Grievant even though she had time to conduct her personal
affairs and business on Bureau time.
Mr. Orosz, too, had holes in his testimony which he attributed to faulty
memory. No one testified they saw the
Grievant throw away the documents the Bureau relies on. No one testified to their accuracy or
importance, a significant lapse since the material included worksheets,
internal notes and "original” yellow sheets. No one rebutted the Union steward's testimony about the results
of her investigation, which yielded, amongst else, discovery of some of the
allegedly missingmaterial, and no credible explanation of the
Bureau's possession of the steward's meeting notes was given. The Bureau's evidence is circumstantial at
best, contends the Union.
The Bureau has
attempted to portray the Grievant as an employee with a bad attitude who is
therefore guilty, but the truth, contends the Union, is that the Bureau singled
out the Grievant. Other employees had
messy pods, but no action was taken against them. Other employees had cartoons, but did not have them confiscated
as evidence of misdeeds. Even though
the pod was open and anyone might have placed the documents in the Grievant's
wastebasket the Bureau was only interested in him. If it had conducted a full and fair investigation, it would have
discovered that the Grievant was innocent.
Instead, the Bureau set out to get him, ordering Ms. Bartel to spy on
him, using co-workers of the Grievant for their own ends by ordering them to
submit statements after six weeks of surveillance failed to produce any more
than flimsy evidence, and never confronting the Grievant until the pre-discipline,
weeks after the investigation started.
The alleged Highway Patrol investigation is just a smokescreen, claims
the Union, of which there is no proof.
In addition, the Bureau exceeded the 45-day discipline deadline
prescribed in Section 24.05 of the Collective Bargaining Agreement.
The Union
challenges the Bureau's portrayal of the Grievant as a problem employee,
offering the testimony of witnesses who stated he was a good, honest, reliable,
responsible and thorough employee who would do no harm to injured workers. He would never throw away original documents
and certainly not when he knew he was being monitored. His motive was to keep his job and he knew
he could lose it with his next infraction.
Why would he act against self interest?
As far as
duplicate copies are concerned, the Grievant admits he did dispose of unneeded
ones. However, his former supervisor
told him this was alright and he never received orders or written policy
otherwise. All he received was a vague
caution not to "second guess" claims representatives about their
cases.
The Union argues
removal is not commensurate with the alleged offense, and says the case cited
by the Bureau supports this claim. The
Department of Rehabilitation and Corrections case involved interference with
U.S. Mail and grievants of less service to the State than Mr. Wilson who were
only suspended--not removed--for their alleged infraction. Giving consideration to having only
circumstantial evidence and the grievants' seniority, the arbitrator overturned
one suspension entirely and reduced the other by half. In the instant case, the Arbitrator should
find the Bureau lacked just cause and return the Grievant to work, possibly
with back pay and benefits.
Opinion of the Arbitrator
This has been a
long and arduous case, not just in arbitration, but from beginning to end. In the final analysis, though, very little
is clear. On the one hand, the Bureau
has submitted a mountain of material it retrieved from the Grievant's
wastebasket over a long period of time and it offers plausible explanations for
him being responsible. On the other
hand, "second guessing" cannot fairly be characterized as clear
directions not to throw away any file documents, copies or originals,
particularly in the face of the former supervisor's instructions. It is also hard to see why, knowing he was
under surveillance and faced removal in his next infraction, he would persist
with activities he knew were wrong. Perhaps
this explains why he went back to check with his former supervisor.
There are two
aspects of the case that are evident to me, however. One is that this was a problematic employee who was resisting
various changes at the Bureau, including direction from management he did not
respect. The other aspect is that
Management seized the opportunity of what it found early on to get rid of
him. One can understand having less
tolerance for a difficult employee than for an exemplary one, but it is
precisely for this reason that it is incumbent on Management to make a full and
fair investigation. It must not allow
its desire to rid itself of a problem to taint its investigation. It is clear to me that it did allow it here,
for it only looked for evidence of guilt and never for evidence of innocence. It did not collect material from the
wastebasket when the Grievant was not at work and it took no pains to observe
his pod during the day, either of which might have produced evidence to clear
him. Thus, although the investigation
was lengthy and produced a substantial accumulation of circumstantial
evidence--even strong circumstantial evidence--it was neither full nor fair for
it only looked at one side of the case.
As such, while it seems more likely than not that the Grievant is
guilty, it is not clear that he is.
Another
difficulty with prejudice is that it can taint not just the investigation, but
also the ultimate disciplinary decision.
Under the corrective discipline concept the guiding issue must be
whether the employee can be rehabilitated.
In this case, the question is whether there is a reasonable possibility
the Grievant will take direction from legitimate authority if he is returned to
work. Searching the record for
indicators, I take note that he is a long-term employee with only a recent
record of poor performance and disciplinary actions. Many spoke to his conscientiousness, either in oral testimony or
affidavit. Moreover, if returned to
work he would come under the supervision of a different individual than theperson
with whom he has had a troubled relationship.
Under these circumstances, the Grievant is deserving of another chance
as there is a reasonable likelihood he will be responsive. While I am fairly well convinced by the
evidence that he was discarding claim file documents outside his authority to
do so (the intermixing of food wrappers and other extraneous trash with the
documents is telling) and with potential consequences for the Bureau and its
clients, I am also persuaded that removal was too harsh an action. I therefore reduce the removal to a
suspension of thirty days.
Award
The grievance is
granted in part, denied in part. The
Grievant was removed without just cause.
He is to be reinstated to his former position forthwith with full back
pay, seniority and benefits, less thirty days.
A record of this action will be placed in his personnel file.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
November 14, 1996