ARBITRATION
DECISION NO.:
620
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Rehabilitation and Corrections
Lebanon Correctional Institution
DATE OF
ARBITRATION:
October 29, 1996
DATE OF
DECISION:
December 3, 1996
GRIEVANT:
Sherri White
OCB
GRIEVANCE NO.:
27-11-(95-06-23)-0337-01-03
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Michael Hill, Advocate
Robert Jones, Second Chair
FOR THE
EMPLOYER:
James C. Spain, Advocate
Georgia Brokaw, Second Chair
KEY WORDS:
Constructive Discharge
Just Cause
Resignation
Voluntary Quit
ARTICLES:
Article 24 - Discipline
§ 24.01 -
Standard
FACTS:
The grievant was
employed as a Correction Officer at Lebanon Correctional Institution. The main issue in this case was whether the
grievant resigned from her job on June 12, 1995. If she did not resign, then the issue becomes what shall the
remedy be?
On June 12, 1995,
the Deputy Warden and the Unit Manager conducted a corrective counseling
meeting with the grievant. During this
meeting, the grievant was informed of three problematic areas of her
performance: difficult working relations with other correction officers,
informal inmate complaints of favoritism, and erratic overall performance on
her cellblock. The grievant became
angry and the steward tried to calm her down.
Management witnesses claim that the grievant said "I quit"
several times and that she subsequently removed her identification badge and
left. The grievant, on the other hand,
believed that she was being fired. In
an agitated state, the grievant began to empty her locker. A Lieutenant approached the grievant and the
steward and assisted the grievant in removing items from her locker. Then, they proceeded to the captain's office
where the grievant was asked to sign a quit slip. The grievant refused to sign anything. Subsequently, the grievant was relieved of her badge and
identification. However, the grievant
was informed that she could get her badge and identification when she returned.
According to
testimony, the grievant claimed that she thought she was fired and stated that
she called in on the 13th and 14th of June to ask her shift commander why she
was fired. She also attempted to
schedule a meeting with the Warden.
Conflicting testimony from the Warden stated that he never received a
phone call from her rescinding her resignation. On June 22, the grievant filed a grievance charging the State
with constructive discharge in violation of Article 24 of the Contract.
UNION’S
POSITION:
The Union argued
that the grievant did not voluntarily quit her position. Rather, the Union argued that no resignation
ever existed. For a resignation to be
effective, it must be conveyed to the proper authority. The resignation should have been confirmed
by the Warden himself.
Secondly, the Union
pointed to many inconsistencies in the record.
The testimony of the witnesses presented by the State was
conflicting. Further, the Union noted
that the absence of the Lieutenant's testimony was significant. The Warden had relied upon the Lieutenant's
statements that the grievant had resigned and the Lieutenant was the only
witness who could have refuted the testimony that the grievant had refused to
sign a written resignation.
Finally, the
Union argued that even if the grievant resigned, the Warden was required to
accept the resignation before the grievant left the institution because the
grievant left with the intention to return.
The Union asserted that the Lieutenant was aware of the grievant's state
of mind since she informed the grievant that she would give the grievant her
badge and identification upon her return.
In any event, the Union asserted that the Warden acted upon a
resignation that did not exist. As a
result, the Union concluded that the grievant was discharged without just
cause.
EMPLOYER’S
POSITION:
The State claimed
that it had met the burden of proof to establish that the grievant had
resigned. The State argued that the
testimony of the Union's witness was inconsistent while the testimony of the
witnesses produced by the State was consistent with the fact that the grievant
resigned. Further, the State claimed
that the grievants own testimony was contradictory and self-serving. The theory presented by the State was that
the grievant knew that she had quit her job, but had second thoughts about her
decision. The State maintained that the
grievant brought this issue to arbitration because she changed her mind.
Secondly, the
State noted that the grievant's claimed anxiety is not sufficient to excuse her
voluntary act of resignation. In
support of this position, the State cited several cases which stated that
employees are responsible for their own decisions even if the decisions were
thoughtless or made under pressure.
Finally, the State concluded that since the grievant voluntarily
resigned, she was not discharged.
Therefore, the Employer had not violated Article 24 of the Contract.
ARBITRATOR’S
OPINION:
The Arbitrator
held that the grievant did not voluntarily resign and was constructively
discharged without just cause. The
cases cited by the State were not applicable to this situation because in those
cases, the grievants actually signed a quit slip. This case presented a different factual situation since the
grievant here refused to sign a written resignation. Further, the credibility of the witnesses was significant in the
outcome of the decision. The Arbitrator
noted that the credibility of all of the witnesses was questionable, thus the
absence of the Lieutenant's testimony was important. The State needed to have the Lieutenant affirm that the grievant
stated that she was quitting and that she voluntarily surrendered her badge and
identification. If this was proven, the
State would have had a stronger case.
Further, the Union presented uncontroverted testimony that the grievant
refused to sign a written resignation.
As a result of the evidence presented, the Arbitrator was not convinced
that the grievant had resigned.
AWARD:
The grievance was
sustained. The grievant was restored to
her former position with full back pay, benefits, and seniority less the normal
deductions and any earnings from employment she may have had in the interim.
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
REHABILITATION &
CORRECTIONS
OPINION AND AWARD
Anna DuVal
Smith, Arbitrator
Case No.:
27-11-950623-0337-01-03
December
3, 1996
Sherri White, Grievant
Resignation
Appearances
For the Ohio Civil Service Employees Association:
Michael
Hill, Advocate
Robert
Jones, Second Chair
Warren
Gebhart, Chief Steward
For the Ohio Department of Rehabilitation and Corrections:
James C.
Spain, Ohio Department of Rehabilitation & Corrections; Advocate
Georgia
Brokaw, Office of Collective Bargaining; Second Chair
Terri
Decker, Assistant Chief of Labor Relations, Ohio Department of
Rehabilitation
& Corrections
Ron Hart,
Labor Relations Officer, Lebanon Correctional Institution
Hearing
A hearing on this
matter was held at 9:10 a.m. on October 29, 1996 at the Lebanon Correctional
Institution in Lebanon, 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 is 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 excluded, and to argue their respective positions. Testifying for the State, were Harry Russell
(Warden), Dan Burns (Deputy Warden, Operations) and Richard Huggins (Unit
Manager), Testifying for the Union were Bret Land (Steward), Willie Worley
(Correctional Officer), Darrin Davenport (Correctional Officer) and the
Grievant Sherri White. A number of
documents were entered into evidence: Joint Exhibits II A-F and III A-D and
State Exhibits I-Ill. The oral hearing
was concluded at 12:30 p.m. on October 29.
Written closing statements were timely filed and exchanged by the
Arbitrator on November 13, whereupon the record was closed. This opinion and award is based solely on
the record as described herein.
Issue
Did Sherri
White resign on June 12, 1995? If not,
what shall the remedy be?
Statement of the Case
The Grievant,
Sherri White, was employed as a Correctional Officer at Lebanon Correctional
Institution on February 8, 1993. This
case concerns how she came to leave the employ of the Department on June 13,
1995.
On June 12, 1995,
Deputy Warden Burns and Unit Manager Huggins conducted a corrective counseling
meeting with the Grievant near the end of her shift. Union Steward Bret Land also attended at the request of the
Grievant. A written statement was
reviewed with the Grievant (Joint Ex. II-A).
It noted three areas of problematic performance: difficult working
relations with other correctional officers, informal inmate complaints of
favoritism, and erratic overall performance of her cellblock. Upon hearing these criticisms, which the
steward testified were harshly made but Management denied, the Grievant became
angry. The steward tried to calm her
down, but the Grievant remained upset.
Management witnesses testified the Grievant said, “I quit” several
times, removed her identification badge, and left the office. However, the Grievant testified that when
she was told other officers did not want to work with her and that she had no
right to be in the institution, she believed she was being fired and remarked
to the steward that "these people just want me to quit." Feeling so
ill from an impending anxiety attack, she got up and left.
Upon leaving
Burns's office, the Grievant was intercepted by Lt. Marshall, whom the Grievant said badgered her to tell what had
happened. Willie Worley, who was Chief
Steward at the time, saw the Grievant approach in a state of agitation,
followed closely by the lieutenant. He
followed the two into the officers' station in E-block, where the Grievant
began to empty her locker, shaking and crying and saying she was being blamed
for a recentescape.
Lt. Marshall assisted the
Grievant and remarked that she would have to inventory the items being
removed. The three then proceeded to
the captain's office where the Grievant talked to her doctor on the phone and
then refused to sign anything until she could meet with her doctor. The Grievant testified that Lt. Marshall relieved her of her badge,
identification and PR-24 baton. C.O.
Davenport was summoned to drive the Grievant home. At her car, the Grievant realized she had not clocked out and
asked for her badge and identification so she could do this. However, Marshall said she would take care
of it. The Grievant and Davenport both
testified that Lt. Marshall said the
Grievant could get her badge and identification when she returned. Davenport then drove the Grievant home. He said she was still upset and explained
that "they want me to resign, but I'm not going to."
The next two
days, June 13 and 14, were the Grievant's days off. On the 13th, Burns saw the steward again and tried to discuss the
incident but Land refused, saying the Grievant had quit (according to Burns) or
"I guess she quit" (according to Land). Warden Russell learned of the incident at his daily staff
meeting. With three staff statements
and a policy of allowing staff to make their own decisions regarding whether
they wish to remain employed, he accepted the Grievant's oral resignation
(Joint Ex. II-B) and directed the
personnel office to initiate the separation procedure (State Ex. I).
Meanwhile, the Grievant testified she called in on the 13th and talked
to her shift commander to ask him why she was fired. On the 14th, she talked to the union steward to ask about filing
a grievance over intimidation and was told someone had resigned for her. She testified that on Thursday she called
the warden's secretary to make an appointment with him, but was told he was toobusy
working on a recent escape. The warden,
however, testified that he never got a phone call from her rescinding her
resignation. But on July 13 he
responded (Joint Ex. II-D) to her June 27 written letter in which she denied
that she had resigned and requested reinstatement (Joint Ex- II-C).
On June 22, a
grievance was filed charging the State with constructive discharge in violation
of Article 24 (Discipline) of the Collective Bargaining Agreement and
requesting reinstatement with full back pay.
Being unresolved at lower steps of the grievance procedure, the case was
appealed to arbitration where it presently resides for final and binding
decision, free of procedural defect.
Arguments of the Parties
Argument
of the State
The State's
position is that it has carried its burden of proof to establish that the
Grievant resigned. The two management
witnesses were consistent from their initial reports through their testimony in
arbitration and the Union never challenged the facts on which the warden
relied. In contrast the testimony of
Union witnesses was inconsistent, claims the State. Why would Steward Land advise the Grievant not to "act
hastily” unless he heard her quit?
Worley's testimony that the Grievant told him Management was blaming her
for the escape is at variance with the Grievant's own testimony on cross that
Huggins, Burns and Marshall did not counsel her about it. Davenport's testimony should be given no
weight because he only heard part of a conversation. Finally, the Grievant's own testimony is self-serving and
inconsistent. How could she be both
rational enough to take her coffee pot home for cleaning and at the same time
so upset that she collapsed on the floor in E-block? Moreover, no support was offered for her
claim that she called her shift commander the next day to discuss her removal.
The State offers
a theory alternative to the Union's to explain what happened. It believes the Grievant knew she quit her
job, but had second thoughts on the way home, then tried to piece together a
story that would get her job back.
In the view of
the State, Management acted properly in accepting a voluntary resignation and
in choosing not to rescind that decision.
In support of its position it offers several resignation cases. Arbitrator Dworkin in Cedar Coal Co. (79 LA 1028) held that anxiety does not excuse one
of responsibility for voluntary acts and that compassion is for the employer,
not for the arbitrator. In the parties Eilerman case (Case No.
27-26-890629-0109-01-06) Dworkin reiterated that employees are responsible for
their own decisions even if made in a thoughtless outburst. In Davis
v. Marion County Engineer, 573 N.E.2d 51 (Ohio 1991), the Ohio Supreme
Court held that while written memos of resignation, acceptance or withdrawal
are preferred, they are not required.
The State
concludes that inasmuch as the Grievant voluntarily resigned, she was not
discharged and there is, therefore, no violation of Article 24. It accordingly asks that the grievance be
denied in its entirety.
Argument
of the Union
The Union, too,
draws the Arbitrator's attention to inconsistencies and holes in the
record. The testimony of Huggins and
Burns about the corrective counseling meeting differs from that of White and
Land, whom the Union claims were credible witnesses. Burns and Land conflict again over what Land said the next
day. When the Wardendecided
to accept what he thought was the Grievant's resignation, he relied on Huggins'
statement that he saw the Grievant emptying her locker. Yet in arbitration, Huggins testified he was
hazy on this point while Union witnesses established that it was not the
Grievant who emptied the locker, but Lt. Marshall.
The Union argues
that the State's failure to call certain witnesses should cause the Arbitrator
to draw conclusions adverse to the State.
It did not call the secretary whose testimony might have resolved the
issue of whether the Grievant telephoned the warden. More significant is the absence of Lt. Marshall, upon whose statement the warden relied. Neither Worley nor Davenport heard the
Grievant tell the lieutenant she quit, and Worley corroborated that she refused
the lieutenant's request that she sign a written resignation. In addition, these witnesses confirmed that
it was the lieutenant who relieved the Grievant of her badge, identification,
and PR-24 (not that the Grievant surrendered them) and that it was the
lieutenant who emptied the locker (not the Grievant). The State's failure to call this particular witness, especially
given her role in the events of June 12, suggests her testimony would have been
unfavorable to the State, says the Union, citing Wigmore on Evidence §285 3d
ed. (and as cited by numerous arbitrators).
The Union
contends no resignation ever existed.
For a resignation to exist, it must be communicated to the proper
authority. Conveyed to anyone else, it
is nothing (State ex rel. Sawyer v.
Pollner (1899), 18 OCC 304, 10 OCD 141).
By the warden's testimony, only he can accept resignations from the
institution's staff. He should,
therefore, have confirmed the Grievant's decision directly with her himself.
Finally, even if
the Grievant did resign on June 12, the warden would have had to accept it
before she left the institution because when she left, she did so with the
intent to return. Lt. Marshall was aware of this because she knew
the Grievant had refused to sign a resignation letter and she said she would
give the Grievant her badge and identification back when she returned to
work. Either Lt. Marshall misled the warden or he ignored
this information. But in any case, the
warden acted on a resignation that did not exist on June 13.
The Union
concluded that the Grievant did not voluntarily quit her job, but was
discharged without just cause. It asks
that the grievance be sustained, the Grievant reinstated to her former position
with full back pay and benefits and with no loss of seniority, and be made
whole.
Opinion of the Arbitrator
Although I hold
to the same view as Arbitrator Dworkin regarding the responsibility of
employees for their own decisions, Dworkin was not faced with the same facts in
the cases cited as presented here. In
both the Eilerman and Cedar Coal cases, there was no question
that the grievant actually resigned because each had signed a quit slip. They were accordingly held responsible for
their actions. The situation here is
quite different, for the issue is whether the Grievant did, in fact, resign.
In this case, the
warden based his acceptance on reports by other management staff that the
Grievant had orally resigned and had behaved in a manner consistent with a
person who has quit her job. Other
witnesses to the same events, however, presented a version materially different
from Management's. I have considered
the credibility of the witnessesfor and against the Grievant and am unable to
conclude with any comfortable degree of certainty on credibility alone that one
or the other side is clearly right and the other wrong. Both Union and Management witnesses gave
evidence confidently and forthrightly.
Both sides have an incentive to see things their own way. Almost all inconsistencies are minor or can
readily be explained away. There is,
however, a glaring hole in Management's case that brings me to a conclusion on
other grounds. This is that although
the warden relied in part on Lt.
Marshall's statement about what occurred once the Grievant left the
deputy warden's office, it presented no reliable evidence to substantiate what
he says he learned from her: that the
Grievant reiterated to her that she was quitting, that she emptied her locker,
and that she voluntarily surrendered her official identification, badge and
PR-24 in the lobby on her way out of the institution. If true, these acts, particularly the latter two, would lend
credence to Management's view. However,
without Lt. Marshall's testimony, these
allegations are no more than hearsay, and I am left with two conflicting
versions of what occurred in the corrective counseling meeting and one credible
version of what occurred immediately thereafter.
It is probable
that the Grievant did say something about quitting to Lt. Marshall before Worley saw them because the
subject of an inventory came up, but I am unable to determine from the record
exactly what was said. However, there
was uncontroverted testimony from Worley, Davenport and the Grievant that the
Grievant refused to sign a resignation when the lieutenant offered to have one
prepared on the spot. Also
uncontroverted was that although the Grievant removed some items from her
locker, it was Marshall, not the Grievant who completed the job. I thus cannot tell whether the Grievantintended
to clear out entirely, or whether this was Marshall's idea. Moreover, it was Marshall, not the Grievant,
who took the initiative to separate the Grievant from her official equipment,
and then she told her she could have her badge back when she returned to the
institution. Without testimony of
Lt. Marshall to the contrary, it is
evident to me that no matter what occurred in the corrective counseling meeting
and en route to the Grievant's locker, what transpired at the locker and
afterwards is both different from what the warden based his decision on and
implies a different outcome than what he concluded, namely that when the
Grievant left the institution for her "good days," she did so not as
someone who had clearly resigned, but as someone indecisive and under pressure. Moreover, Lt. Marshall had to have had the same opinion, despite what she may
or may not have told the warden. Since
the State did not call Marshall or any other witnesses to rebut the Union on
what happened after the Grievant left the deputy warden's office, I must infer
that her testimony would not have been helpful to its case and that the above
scenario is what occurred. In sum, the
evidence does not convince me that the Grievant resigned her position. The Warden therefore had nothing to
accept. This being the case, the
Grievant was constructively discharged without just cause.
Award
The grievance is
sustained in its entirety. The Grievant
will be restored to her former position forthwith with full back pay, benefits
and seniority retroactive to the effective date of her separation, less normal
deductions and any earnings from employment she may have had in the
interim. The Grievant will supply such
evidence of earnings as the Employer may require. The Arbitrator retains jurisdiction for thirty (30) days to
resolve any disputes that may arise in the implementation of this award.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
December 3, 1996