ARBITRATION
DECISION:
621
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Youth Services - Cuyahoga Hills Boys School
DATE OF
ARBITRATION:
November 18, 1996
DATE OF
DECISION:
December 19, 1996
GRIEVANT:
William VanLeer
OCB
GRIEVANCE NO.:
35-03-(95-05-26)-0056-01-03
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Lynn Kemp, Advocate
Michael Hill, Second Chair
FOR THE
EMPLOYER:
Barry Braverman, ODYS, Advocate
Brian Walton, OCB, Second Chair
KEY WORDS:
Criminal Charges
Discipline
Disparate Treatment
Drug Testing
Just Cause
Removal
ARTICLES:
Article 24 - Discipline
§ 24.01 -
Standard
§ 24.04 -
Pre-Discipline
FACTS:
The grievant was
employed as a Juvenile Correction Officer at the Cuyahoga Hills Boys
School. He was removed from his job on
May 25, 1995 for the misuse of drugs and violating Ohio Revised Code section
124.34.
The events
leading to the grievants removal are the following: On January 17, 1995, the
grievant was working at the institution while the State Highway Patrol
conducted a drug sweep of the facility.
The grievant's car was found to contain drug paraphernalia. Prior to the search, the grievant claimed
that his brother had borrowed his car the previous day. Only one trooper claimed that the grievant
admitted that the marijuana was his. A
drug test conducted on the grievant that same day was negative. Further, the drugs seized amounted only to
1.275 grams of marijuana.
On February 22,
1995 the Cuyahoga County Grand Jury returned a True Bill against the grievant
for conveying drugs, drug possession and drug paraphernalia. The grievant was placed on administrative
leave that same day. On April 21, 1995,
a pre-disciplinary meeting was held and the grievant was removed from his
position on May 26, 1995. On November
17, the grievant was found guilty of conveyance, a third-degree felony. The grievant filed a grievance on May 26,
1995. alleging violation of Article 24 of the Contract.
EMPLOYER’S
POSITION:
The State argues
that the grievant clearly violated Rule 21, misuse of drugs, for which removal
is an appropriate action. Further. the
State contends that the criminal conviction against the grievant supports the State's
decision to remove him. Indeed, the
State presented cases which stated that if there is a nexus between the
correction officer's off duty conduct and his job duties, then removal is
permissible. The Employer also stated
that since the grievant was a role model to the youths in the institution, his
violation would have an adverse effect on the staff and the youths.
In response to
the Union's claims of disparate treatment, the State contended that "a
single instance of different treatment is insufficient to establish disparate
treatment." Further, the State noted that the small amount of drugs
involved is not relevant since the Rule does not specify the minimum amount of
a substance that triggers discharge.
Finally, the State claimed that since a court found the grievant guilty
of criminal conduct. the State was correct in removing him.
UNION’S
POSITION:
The Union
admitted that the grievant's vehicle did contain drug paraphernalia, but
maintains that the removal of the grievant was without just cause. The Union argued that the grievant, who was
a 5-year employee with a good record, should have not been subject to such
extreme treatment. In fact, the Union
stressed that the grievant did not violate all of Rule 21. He was not under the influence of drugs, as
confirmed by the drug test, and no drugs were brought into the building.
Secondly, the
Union argued that the State subjected the grievant to disparate treatment by
removing him. The Union cited several
instances where a grievant who possessed a larger amount of drugs as well as
having tested positive on a drug test still retained his job. In the Union's perspective, a higher
standard should apply where management is involved rather than subordinate
employees, such as the grievant.
Lastly, the Union
contended that the grievant's felony conviction should have no bearing on this
case. When deciding upon the grievant's
termination. the State should have been permitted to rely only on the charges
in existence at the time of consideration.
Further, the Union asserts that the State has failed to establish a
nexus between the grievant's off duty conduct and work performance. As required by Arbitrator Pincus in an
earlier decision, the State must demonstrate damage to the reputation of the
employer, inability of the grievant to perform his job satisfactorily, or
refusal of other employees to work with him.
The Union requested that the Arbitrator impose a lesser discipline by
reinstating the grievant to his former position.
ARBITRATOR’S
OPINION:
The Arbitrator
first focused on the collateral criminal proceeding. The Arbitrator stated that since the State implied that the
grievant's criminal conviction rendered him incapable of performing his job,
then the Employer should have included the conviction among the original
charges against the grievant. However,
since the State failed to do so, the Arbitrator held that the State can only
rely on the charges brought at the time of the discipline, which did not
include the felony conviction.
In addition, the
Arbitrator did not believe that the grievant was aware of the drugs in his
car. Despite this finding, the grievant
was indeed in violation of Rule 21, since a violation of the Rule does not
require knowledge or use of drugs. With
respect to the State's argument that the grievant was no longer a positive role
model to the youths of the institution, the Arbitrator did not believe that
this argument was effective since the Employer did not hold the managers to the
same or higher standards than their subordinates. Further, the cases cited by the State in support of removal were
distinguishable since the grievants in those cases showed signs of drug abuse,
were less senior, and were found guilty of off duty drug trafficking. As a result, the Employer engaged in
disparate treatment bv removing the grievant.
Finally, since the Employer's disciplinary policy was flexible in this
regard, it should have considered the grievant's good record, lack of evidence
of drug abuse or drug trafficking and five-year employment record.
AWARD:
The grievance was
sustained in part and denied in part.
The Arbitrator held that the grievant was removed without just cause,
but found him guilty of a violation of Rule 21. As a result of the violation, the grievant was given a fifteen
(15) day suspension without pay. In
addition. the grievant was restored to his former position with back pay,
benefits, less fifteen days for the suspension. The Arbitrator denied the request for overtime pay as it was too
speculative.
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.:
35-03-950526-056-01-03
December
19, 1996
William VanLeer, Grievant
Removal
Appearances
For the Ohio Civil Service Employees Association:
Lynn Kemp,
Advocate
Michael
Hill, Second Chair
For the Ohio Department of Youth Services:
Barry
Braverman, Ohio Department of Youth Services; Advocate
Brian
Walton, Office of Collective Bargaining; Second Chair
Hearing
A hearing on this
matter was held at 9:15 a.m. on November 18, 1996 at the Ohio Office of
Collective Bargaining in Columbus, Ohio before Anna DuVal Smith, Arbitrator,
who was mutually selected by the parties, pursuant to the procedures of their
collective bargaining agreement. The
parties 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 and
excluded, and to argue their respective positions. No transcript was made.
Testifying for the State were Brad Rahr (Labor Relations Officer),
Robert Jackson (formerly Superintendent, Cuyahoga Hills Boys School), and
Trooper Daniel Ferguson. Also present
was Cardell Parker, Superintendent of Cuyahoga Hills Boys School. Testifying for the Union were Dorothy Brown
(Chapter Representative), William E. VanLeer (Grievant), and the Grievant's
brother, David VanLeer. A number of
documents were entered into evidence: Joint Exhibits 1-5, Management Exhibits
1-6, and Union Exhibits 1-6. The
hearing was concluded at 2:00 p.m. on November 18 following oral arguments,
whereupon the record was closed. At the
close of the hearing, the State moved for a bench decision, to which the Union
objected. The Arbitrator sustained the
Union's objection. This opinion and
award is based solely on the record as described herein.
Stipulated
Issue
Was the
Grievant terminated for just cause? If
not, what shall the remedy be?
Statement
of the Case
At the time of
his removal on May 25, 1995, for misuse of drugs and violation of 123.34 [sic]
O.R.C. (Joint Ex. 2), the Grievant was employed as a Juvenile Correctional
Officer (JCO) at the Cuyahoga Hills Boys School, a State facility for the
incarceration and correction of felony youth offenders. He had been similarly employed since March
14, 1990, was informed on the work rules of the Department, received good
evaluations (Union Ex. 1-3), and had no prior discipline on his record.
The events
leading to the Grievant's removal are these: On January 17, 1995, while the
Grievant was working the 7:00 a.m. to 3:00 p.m. shift, the State Highway Patrol
conducted a drug sweep of the institution.
During the sweep of the parking lot, the dogs alerted on two vehicles,
one of which was the Grievant's. The
Grievant responded to a P.A. request for the owners to come to the parking lot,
but was reluctant to open his car for the troopers, saying his brother had used
the car the previous evening and he did not want "a mess." The Grievant's brother testified that he
did, indeed, use the car the previous day and had unwittingly left items in it
he had confiscated from youth that day.
The troopers finally obtained the Grievant's consent to search his car
where they found and confiscated a number of pertinent items, notably a brown
eyeglass case containing drug paraphernalia: a pot pipe, a yellow lighter, a
package of cigarette papers and three small plastic bags. A field test of the vegetable matter
conducted by Tpr. Ferguson indicated
marijuana. Tpr. Ferguson also testified that a roach was
found in the vehicle's ash tray. At
this point, accounts differ. Tpr. Ferguson claims the Grievant voluntarily
changed his story and admitted the marijuana was his when confronted with the
evidence. The Grievant deniesthe
drug was his or that he ever said it was.
Tle parties stipulated a drug test conducted that day on the Grievant
was negative. They further stipulated
that testing of the seized vegetable matter by the State Highway Patrol
laboratory showed a weight of 1.275 grams of marijuana. The investigation proceeded with the
collection of witness statements. The
evidence was submitted to the Cuyahoga County Grand Jury, which, on February
22, 1995, returned a True Bill against the Grievant on Conveying Drugs, Drug
Possession and Drug Paraphernalia (Joint Ex. 3), whereupon the Grievant was
placed on administrative leave (Union Ex.-4).
He was found guilty of Conveyance (a third-degree felony) on November
17, sentence suspended (Management Ex. 5 admitted over Union objection). Meanwhile, the Employer's case against him
progressed, with a pre-disciplinary meeting held on April 21 and removal
following on May 26 (Joint Ex. 2 & 3).
Robert Jackson, superintendent of Cuyahoga Hills Boys School at the
time, testified to the adverse effect on staff discipline and on the youth of
one of their role models being returned to work after a drug-related
offense. He further testified that the
Grievant's criminal conviction played no role in the recommendation to remove
the Grievant.
The Union brought
evidence through the testimony of Dorothy Brown, Chapter president and chief
steward at the time, about the Department's treatment of other employees whose
vehicles were found to contain drugs while on Department property. Gerald Strother, a Teacher I who admitted
using and tested positive, entered into a last chance agreement pursuant to the
terms of OEA's contract with the State (Union Ex. 5, Management Ex. 6). Brad Rahr, a labor relations officer for the
Department, testified the only reason the State agreed to this is that it had
no choice under that contract. In asecond
case, Brenda James, a unit administrator, was demoted from deputy
superintendent of another institution and reassigned after marijuana was found
in her car and she claimed not to know how it got there. Rahr testified she had four years more
seniority than the Grievant and was not convicted or even indicted and, being
unclassified, serves at the pleasure of the Director.
A grievance
protesting this action was filed May 26, 1995, alleging violation of Article 24
(Discipline) of the Collective Bargaining Agreement. 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 argues
that the facts are not in dispute.
Drugs were found in the Grievant's personal vehicle on State
property. This is clearly a violation
of Rule 21, misuse of drugs, for which removal is appropriate. The story told by the Grievant and his
brother is nothing more than self-serving testimony designed to save his
job. By contrast, nothing discredited
the testimony of Jackson and Ferguson, and the criminal conviction supports the
State's decision to remove him.
The State offers
a number of arbitration decisions which it claims support its position on
various points. In the parties' Luther L. Jones case
(#35-07-910739-34-01-03), Arbitrator Hyman Cohen weighed the grievant's guilty
plea to second degree felony possession in Texas and found a nexus between
juvenile correctional officers' off-duty conduct and the mission of the
Department. In an Ohio Department of
Mental Health case (Stephen Jones, Case
No. 23-14-880104-001-01-04), Arbitrator Pincus sustained the removal of an
employee involved in the direct care of the mentally ill who pled guilty to a
third-degree felony of aggravated trafficking.
Nexus between off-duty drug trafficking and the job of a corrections officer
was also found in the Department of Rehabilitation and Corrections Heiss case, in which the arbitrator
upheld the removal despite dismissal of criminal charges. In this, as in other cases, drug violations
were found to render corrections officers incapable of being role models for
those entrusted to their care. The
State draws particular attention to a second DRC case (BarberICooper-Cullison, Case Nos. 27-10-901023-67-01-03 and
27-10901023-66-01-03) which it says bears a very strong resemblance to the
instant one: drug paraphernalia were found in the grievants' cars during a drug
sweep of the institution, the grievants claimed not to be responsible, and the
employer's discipline grid called for 5-10 day suspension to removal for a
first offense. Even though criminal
charges were dismissed, the Arbitrator found the grievants guilty of
conveyance, nexus to employment in that they had a clear opportunity to bring
the contraband into the prison, and sustained the removals, one of which was of
an employee with more seniority than the Grievant here.
In response to
the Union's argument about disparate treatment, the State argues that this is
an affirmative defense. It directs the
Arbitrator to another Department of Mental Health case (Jennings, Case No. G23-06-891113-01-21-01-03) in which Arbitrator
Rivera set forth the elements the Union must prove. The State contends, the only commonality between the instant case
and those the Union alleges as being similarly situated is the triggering
event. It further contends that a
single instance of different treatment isinsufficient to establish disparate
treatment. What is needed is a pattern,
and the arbitrator must only determine if any variance is within the
"range of reasonableness."
Finally, the
State counters the Union's argument about the small amount of drugs involved by
citing Dunlop Tire v. U.R.W., 104 LA
653 (Teple, 1995) wherein that employer, too, had a rule that did not specify a
minimum amount of the substance, and possession of 2 grams of marijuana was
sufficient to sustain the discharge.
In conclusion,
the State says a court found the Grievant guilty of criminal conduct. Using the lesser standard of just cause, the
Employer did, too, and so should the Arbitrator. It asks that the grievance be denied in its entirety.
Argument of the Union
While admitting
that marijuana and paraphernalia were found in the Grievant's vehicle while in
the institution's parking lot, the Union claims other facts support its
position that the removal was not for just cause. The Grievant, a 5-year employee with a good record, had no way of
knowing the items were in his car.
Testimony establishes that his brother inadvertently left them there
after confiscating them from youth he had run into the day before.
The Union argues
that the Grievant did not violate all of Rule 21. He did not report to work under the influence of drugs nor did he
use illegal drugs or nonprescribed controlled substances while on duty. Even though drugs were in his car in the
parking lot, he was unaware of them and did not bring them into the
building. The discipline policy leaves
a window of opportunity for a first offense which should apply in this case.
The Union also
contends that the removal is defective in its reliance on Rule 46, which other
arbitrators have held to constitute a procedural defect (Ohio Department of Youth Services v. OCSEA Local 11 AFSCME and Wylie
King, Case No. G87-2810 (Pincus, January 7, 1990)).
The Union argues
that it has shown different treatment of similarly situated Department
employees. Although Strother's positive
test invoked the Drug Free Workplace Act, this does not lessen the standard
under Rule 21. Strother had three bags
of marijuana in his car while the Grievant had a very small amount; but the
Grievant, who tested negative, was terminated while Strother stayed in the
employ of the Department. James's
circumstances were very similar to the Grievant's, but her employment, too, was
continued. In the view of the Union, a
higher standard, not a lesser one, should apply for management and teachers
because they serve as role models not just for youth, but also for their
subordinate employees.
In the view of
the Union, the Grievant's felony conviction has no bearing on this case and
should not be considered by the Arbitrator.
Citing Elkouri & Elkouri (p.
675-676), the Union says Management should be allowed to rely only on charges
levied at the time of removal. The
Grievant was not removed for a felony conviction and the Department has not
shown any policy that prevents a person with a felony conviction from being
employed by them.
The Union
contends the Department has not met the criteria for nexus or disparate impact
as set forth by Arbitrator Pincus in Ohio
Department of Mental Retardation & Developmental Disabilities v. OCSEA
Local 11 and Fontelle Burley, Case No. G87-1930, June6,
1988. It has not proved damage to the
reputation of the employer, inability of the Grievant to perform his job
satisfactory, or refusal of other employees to work with him. In fact, it allowed him to continue to work
for some time after the drug sweep.
In conclusion,
the Union asks the Arbitrator to consider the lesser discipline in this case,
reinstate the Grievant to his former position with full back pay and benefits
including seniority, restoration of leave balances and overtime opportunities,
and that he made whole.
Opinion of
the Arbitrator
In determining
the Grievant's guilt or innocence, it is first necessary to determine the
charges and relevant evidence. At issue
is the matter of the collateral criminal proceeding. Implied in much of the State's case is that such a criminal
conviction renders the Grievant incapable of performing his duties which
include serving as a role model. If
that were the case, it was incumbent on the Employer to include the felony
conviction among the charges when it originally considered the discipline. I observe the Employer has the
contractually-provided option of delaying pre-discipline until after
disposition of criminal charges (§ 24.04), presumably to allow it to consider
the outcome in its discipline decision.
It did not do that in this case, and so must rely only on the charges
brought at the time of the discipline which do not include the felony
conviction.
The State also
urges me to defer to the finding of the criminal court that the Grievant was
guilty of conveyance. Although I agree
that the just-cause standard prescribed by the Contract is lower than the
criminal standard, the parties did not bargain for peer factfinding based on
community standards. They bargained for
the industrial expertise of an arbitrator, and it is therefore incumbent on me
to make an independent determinationbased on the Contract charges and relevant
evidence presented at the arbitration hearing.
While I might receive and credit evidence from collateral proceedings
for certain purposes, such as impeachment, it would be inappropriate for me to
decide the case on the record presented in another forum. I therefore turn to the record before me.
There is no
question the Grievant's car contained a small amount of marijuana and drug
paraphernalia while it was parked on institutional grounds. The Grievant broke a legitimate rule of the
workplace. Several factors must,
however, be taken into account in deciding an appropriate consequence of this
violation. To begin with, there is some
question in my mind whether he knew or ought to have known about what was in
his car. It is unlikely the items
belonged to the Grievant himself, for his drug test was negative and no one but
Tpr. Ferguson heard the alleged
admission. Jackson, who was present at
the time, did not mention it in his testimony, and both the Parker and Frias
statements refer to things the Grievant said about his brother, not to a
self-confession. Before the car was
even searched, the Grievant said his brother had borrowed it the previous
day. The brother's account of the day,
while confirming he used the car, does not accord with the time the Grievant
reported to work, thus raising some questions about his testimony. In addition, I am unable to account for the
roach allegedly found in the ash tray.
Thus, while I cannot say how the contraband came into the car, I am
confident the car was not under the control of the Grievant and I am not
convinced he knew the drugs were in it.
Although the Grievant is guilty of violating Rule 21, the offense is not
aggravated either by knowledge or by use.
The State argues
there is a nexus to the job primarily because JCOs serve as role models, but
then it continues the employment of a manager under exactly the same
circumstances. It says the cases are
distinguisable in part by the felony conviction of the Grievant, but that
conviction was not known at the time the Grievant was removed. For the role model argument to have any
credibility or power to affect employee behavior, managers must be held to the
same or higher standards than their subordinates.
The cases offered
by the State to support its termination decision are distinguishable from the
instant case in a number of different ways.
L. Jones, an employee of very brief tenure, was a drug abuser who
continued to use even after a second-degree felony conviction. S. Jones pled guilty to a third-degree
felony drug trafficking charge. Heiss,
too, was guilty of off-duty drug trafficking, and in BarberICooper-Cullison, the arbitrator found knowledge of the
grievants, who also refused to submit to drug testing.
Finally, I am
struck by the injustice and irony of firing a person of good record who might
have saved his job, though not his reputation, by smoking a joint on his way to
work. The Employer's own rules provide
for flexibility in discipline for this offense. Not to exercise that discretion in a case like this, where the
employee is of good record, shows no sign of using, abusing or trafficking in
drugs on or off-duty, whose knowledge of the small amount found in his car
cannot be clearly demonstrated, is beyond the range of reasonableness and makes
a mockery of the discipline grid, particularly when a manager is held to a
lower standard.
Award
The grievance is
sustained in part, denied in part. Tle
Grievant was removed without just cause, but is guilty of Rule 21, Misuse of
Drugs, an offense for which he will receive a 15 day suspension without
pay. The Grievant is to be restored to
his former position forthwith with full back pay less 15 days, benefits and
seniority, less normal deductions and any earnings from employment he may have
had in the interim. The Grievant will
supply such evidence of earnings as the Employer may require. The request for overtime is denied as too
speculative. 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 19, 1996