ARBITRATION DECISION NO:
651
UNION:
OCSEA, Local 11, AFSCME,
AFL-CIO
EMPLOYER:
Ohio Department of
Rehabilitation and Corrections
DATE OF ARBITRATION:
September 30, 1997
DATE OF DECISION:
November 10, 1997
GRIEVANT:
Kathy Cottrell
OCB GRIEVANCE NO.:
27‑25‑(96-10‑16)‑1159‑01‑03
ARBITRATOR:
Anna DuVal Smith
FOR THE UNION:
Don Sargent, Staff Rep.
FOR THE EMPLOYER:
David Burrus, LRO
John McNally, LRO, OCB
KEY WORDS:
Correction Officer
Investigatory
Interview
Just Cause
Removal
Unauthorized
Relationship with an Inmate
ARTICLES:
Article 24
– Discipline
§24.01
- Standard
§24.02
– Progressive Discipline
§24.04 –
Pre-Discipline
FACTS:
This case
concerned the removal of a Correction Officer (CO) at the Southern Ohio
Correctional Facility (SOCF) for allegedly carrying on an unauthorized
relationship with an inmate. The evidence against the grievant primarily
consisted of telephone records and recorded telephone conversations. The
investigator who handled the case stated that while he was checking the
telephone records at SOCF, he discovered that four calls had been made from the
inmate telephones to the grievant's phone number of record. The male caller was
the same in all three of the phone calls that were recorded.
The caller
identified himself as "Lee." The female recipient of the calls was
also the same, and she identified herself as "Kathy" in the first
conservation. The computer logs revealed that the call had been placed to the
number the grievant had on file at SOCF. During this conversation, the inmate
referred to mail he sent the female but that she had not yet picked up. The
parties spoke until they were cut off, and the inmate called her back. During
the second conversation, reference was made to the female's uncle, whom she had
to transport for dialysis. In the third conversation, the caller spoke of being
angry with her "that night at the bar where she was working."
EMPLOYER’S POSITION:
On the
merits of the case, the State contended that the female voice on the tape was
that of the grievant. The State asked the Arbitrator to listen carefully to the
tape and make her own determination at
the hearing by comparing the voice on the tape to the grievant's voice,
The State claimed that the grievant's only defense was her steadfast denial
that her voice was on the tape and her unsubstantiated claim that the
investigator was out to get her. Furthermore, the State contended that it met
its burden of proof because the evidence established that it was more probable
than not that the calls between the grievant and an inmate took place.
The State
argued that the content of the recorded conversations showed a relationship
between a female working at SOCF named "Kathy" and an inmate. The
relationship was clearly one that could not be tolerated in a correctional
environment because it threatened the security of the institution. Therefore,
progressive discipline was not required prior to issuing the removal order
against the grievant.
UNION’S
POSITION:
The Union
first argued that the discharge should be overturned on the grounds that the
State violated Article 24.04 of the collective bargaining agreement when it
refused the grievant's request for Union representation at the investigatory
interview. The Union claimed that the State attempted to force the grievant
into resigning at the interview, and that had a Union representative been
present that would not have been possible.
Second, the Union questioned
whether there was a violation of work rules. The State did not have an admission of guilt, and there was no record
of consistent contact. The Union attacked the quality of the State's evidence
by saying management tampered with the tapes. Also, the Union argued that
sections of the tape were erased, blank, or unclear. As to the woman's voice on
the tape, she obviously never worked at the institution because she did not
know what the inmate expression "checking in" meant. The woman on the
tape worked in a bar, and spoke of an uncle who had diabetes. The grievant has
never worked in a bar, and has no relatives with diabetes. Furthermore, the
State did not intercept any mail from an inmate to the grievant.
The Union
offered an alternative theory. It contended that the inmate wanted a transfer
to an institution closer to friends and relatives in Dayton. The inmate saw the
grievant as an easy mark because she was new to the institution and was not
well accepted. The inmate simply looked up the grievant's number in the phone
book and called the number in order to set up the grievant.
The Union
argued that the State had to prove its case beyond a reasonable doubt because
the grievant's reputation and credibility were at stake. Because the State did
not meet its burden of proof, the Union requested that the Arbitrator sustain
the grievance.
ARBITRATOR’S OPINION:
The
Union's procedural argument rested entirely on credibility, as there was no
waiver signed by the grievant. The statements of two management witnesses were
that the grievant was offered representation and refused. In any event, the
Arbitrator did not feel it was necessary to make a decision on the issue
because no evidence prejudicial to the grievant, such as a confession, was
produced by that interview.
In
weighing the arguments, the Arbitrator disagreed with the Union's claim that it
was necessary for the Employer to prove beyond a reasonable doubt that the
grievant had engaged in the alleged activity. The Arbitrator stated that the
probability of guilt "must be high enough to be convincing" in order
to uphold the grievant's removal. The Arbitrator proceeded to test the evidence
through voice identification, circumstantial evidence, and through technical
foundation.
From the
content of the conversations, the Arbitrator found that the circumstances
surrounding the calls matched the circumstances of the grievant. The Arbitrator
also found that the State sufficiently established the integrity of the
telephone recordings by showing that institutional operators have "read‑only"
abilities and are thus able only to query the data, not modify it. While the State's
case was based on technological evidence supported by just enough foundation,
identification, and circumstantial evidence to make it convincing, the Union's
case was based on uncorroborated testimony of the grievant who had a great
interest in the outcome, phone bills which were rebutted by the State, and
unsupported speculation offered by the Union. Additionally, all the evidence
presented by the Union that the State falsified the telephone logs and
recordings was either unreliable, inconclusive, or was satisfactorily explained
by the State.
AWARD:
The Arbitrator denied the
grievance in its entirety.
TEXT OF
THE OPPINION: * * *
VOLUNTARY
LABOR ARBITRATION TRIBUNAL
In the Matter of Arbitration
Between
OPINION
AND AWARD
OHIO CIVIL SERVICE
EMPLOYEES ASSOCIATION Anna DuVal
Smith, Arbitrator
LOCAL 11. AFSCME, AFL/CIO
Case
No. 27-25-961016-1159-01-03
and
OHIO DEPARTMENT OF Kathy
Cottrell, Grievant
REHABILITATION & Removal
CORRECTIONS
Appearances
For the Ohio Civil Service Employees Association:
Don
Sargent, Staff Representative
Ohio Civil
Service Employees Association
For the Ohio Department of Rehabilitation and Corrections:
David
Burrus, Labor Relations Officer
Ohio
Department of Rehabilitation and Corrections
John
McNally, Labor Relations Specialist
Ohio
Office of Collective Bargaining
* * *
Hearing
A hearing
on this matter was held at 9:30 a.m. on September 10, 1997, at the Southern
Ohio Correctional Facility in Lucasville, 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 Vic Crum (Labor Relations Officer), Correction
Officer Donald Evans (by subpoena), David See (Investigator), and Deputy Warden
Jim Hieneman, all of the Southern Ohio Correctional Facility. Also testifying
for the State were Investigator Tom Ratcliffe of the Southeastern Correctional
Institution and Thomas Ruckhold, II of MCI. Testifying for the Union were
Correction Officers Darrin Howard, William Haggy, Robert Clagg, and Matt
Hapney. Also testifying for the Union were Correction Sergeant/Counselor James
Minzelli and the Grievant, Kathy Cottrell. Also in attendance was Glen Barlowe,
Chapter President. A number of documents were entered into evidence: Joint
Exhibits 1‑4, State Exhibits 1‑6 and Union Exhibits 1‑8. The
oral hearing was concluded at 5:30 p.m. on September 10. Written closing
statements were timely filed and exchanged by the Arbitrator on September 27,
whereupon the record was closed. This opinion and award is based solely on the
record as described herein.
**2**
Issue
Was the
grievant's removal for just cause?
If not,
what shall the remedy be?
Statement
of the Case
This case
concerns the removal of a correction officer for an unauthorized relationship
with an inmate of the Southern Ohio Correctional Facility (SOCF). At the time of
her removal on September 30, 1996, the Grievant had been similarly employed for
twenty months. She had received the Department's Standards of Employee Conduct,
performed at or above expectations, and had one disciplinary action on her
record, an oral reprimand for failure to follow post orders, administrative
regulations, policies, procedures or directives.
The
evidence against the Grievant consists of telephone records, recorded telephone
conversations, and intercepted written messages and mail. John Ison, the
investigator who handled the case through the pre‑disciplinary hearing
died thereafter. His report of August 12, 1996, states that while he was
checking computer records from the TRACS system1
for SOCF employee telephone numbers that were called from inmate phones, he
discovered four calls that had been made on August 1, 1996, to the Grievant's
phone number of record. The personal identification number (PIN) used to place
the called was for Inmate Litteral. The TRACS system automatically records all
conversations in digital format (Digital Voice Logger, aka DVL). The DVL
recording of two of these calls and three later ones placed
_______________________
1The TRACS system is a
sophisticated computer system that logs, monitors and records outgoing collect
calls placed by inmates.
**3**
to a different number was played
during the hearing, as was a copy in conventional cassette format. A
DigitGrabber decoded the audible tones to a visual display of the numbers
entered and dialed. Three copies of the DVL recording in conventional format
were submitted as exhibits. The Arbitrator was thus visually able to verify
that the tones on the recording match the computer log and aurally able to
verify that the conventional recording matches that on the DVL tape. She later
timed the phone calls and found their length also match the computer log, and
listened to the recorded conversations on all three exhibits.
The male
caller is the same on all phone calls. He identifies himself as
"Lee." The State represents that the true caller was Inmate Lee Howe
using the PIN of Inmate Litteral, who resided in the same housing unit as
Inmate Howe. It is common practice for inmates to use each other's PINS. The
female recipient of the three completed phone calls is the same, and she
identifies herself as "Kathy" in the first conversation, which the
computer logs show as having been placed to the Grievant's mother's phone, the
number the Grievant had on file at SOCF. In this conversation, the inmate
refers to mail he sent the female but that she had not yet picked up. The
parties talk until they are cut off, then the inmate calls her back. During
this second conversation, reference is made to the female's uncle, whom she had
to transport for dialysis. The female provides the inmate with another phone
number to use that evening. A log of calls to that number reports three calls
placed during the time frame discussed in the morning calls, two lasting less
than a minute, one of eleven minutes in duration. The tape recordings of these
calls reflect two calls were refused and one was completed, lasting about
eleven minutes. In the completed call, the inmate states that he tried to call
her two or three times and that the party who answered did not know who she
**4**
was. He talks further about his
letters to her, asking her if she had picked them up yet. He also tells about
being angry with her "that night at the bar where she was working."
The inmate's voice is readily understood throughout all tapes, but the female
is barely audible in places because of a very quiet voice and, in places,
background noise. Thre are gaps in the original and copies, which were
explained as processing pauses. The conversations appear to pick up precisely
where they are interrupted, even mid‑sentence.
Investigator
Ratcliffe of the Southeastern Correctional Institution who works with a similar
system, Thomas Ruckhold of MCI, and Investigator David See of SOCI all
testified about the integrity of the TRACS system. Ratcliffe said that he had
testified about the system and the evidence it produces in 20‑50
proceedings, and that all had resulted in convictions. He stated that the
system can malfunction, but that this results in loss of data or audio, and the
data that are collected are not erroneous. The system self‑reports
problems. To his knowledge, it was not possible to override the printout. Users
at the institutions, such as himself, do not have the superuser password that
might permit them to alter logs. He further testified that while it is possible
to copy DVL tapes to conventional ones, it is not possible to do the reverse.
Ruckhold confirmed that operators cannot enter data records on the system, they
can only read them. In his opinion, if the system logs a phone call, the phone
call happened. Investigator See, who took over the investigation after Ison
died, testified that the only way be
knew of for inmates to defeat the system was through three‑way calling,
but Ratcliffe said three‑way calls could be detected by characteristic
clicks and pauses as the go‑between places the hand‑off call and
connects the three parties. See also testified that there was no question in
his mind as to the validity
**5**
of the
tape recording or the identity of the parties. In his opinion, the male is
Inmate
Howe, though
he did not admit his guilt and whom See has not found to be credible; the
female is
the Grievant, though she, too, did not admit her guilt.
The Union
submitted copies of the Grievant's mother's phone bills for the dates of July
15 through November 13, 1996. None of these bills shows collect calls from
SOCF. Chief Steward Howard testified (without objection) that during mediation
of the instant case, the parties telephoned GTE. GTE's representative reported
that there was no record of collect calls to the Grievant's mother's phone on
or around the pertinent date. A written statement from Charles R. Adams, Labor
Relations Officer of the Department, who was also present at the mediation,
confirms Howard's testimony. Mr. Ruckhold of MCI testified that there was a
routing problem between MCI and GTE at the time that caused some local traffic
to be misdirected to MCI rather than to the GTE operators. Thus, the calls were
not billed by GTE. Moreover, MCI purges its records from time to time, and by
July 1, 1997, was unable to retrieve information about the calls at issue.
Letters from MCI and GTE to Investigator See explain the routing and billing
problems, and also express confidence in the information provided by the TRACS
system because that information is collected before the call traffic leaves the
institution.
Regarding
the calls placed to the second number, the Union submitted telephone
directories to show that the number was listed in 1996 as belonging to Angela
Cobern on Roy Rogers Drive. An affidavit from a Kenny Altman states that he
received two collect phone calls at that number on August I at approximately
8:30 p.m. from a "Lee" for a "Cathy," but that he hung up
the first one after telling the caller that he knew no Cathy and **6**
hung up the second one before
accepting the charges. The Grievant testified when She first heard the
recording of the phone conversations, the man's denial of knowing a Cathy was
on the tape, but it was never there after that.
CO Donald
Evans testified by subpoena that on August 13, he observed his porter being
passed a piece of paper, which the porter then voluntarily turned in. CO Evans
reported the incident and passed the note along to his lieutenant. The note
names "Kathy," refers to the Grievant's telephone number, directs an
unnamed person to call her three‑way, as this is safe, and asks this
person to relay certain information. CO Evans also testified that he may have
worked with the Grievant and that he believes her to be an excellent officer.
In his opinion, whenever an inmate willingly gives up an officer, the motive is
revenge.
On August
12, an investigatory interview was conducted and the Grievant was placed on
administrative leave. Deputy Warden Hieneman testified he and Major Adkins were
present when the Grievant refused Union representation. Correction
Sgt/Counselor Minzelli, who was Union president at the time, testified he was
available for and expecting to be called to the interview. He was surprised not
to have been summoned because it is usual for a Union representative to be
present at such interviews. CO Clagg, chief steward at the time, confirmed that
Ison and Hieneman almost always had a Union representative present and thought
it strange this was not the case here. Minzelli testified the Grievant later
told him she was not offered representation, but that Ison disputed this. The
Grievant testified that after Hieneman and Adkins left, Ison told her he
suspected three other women and wanted her cooperation. When she refused, he
threatened her with discipline for aiding
**7**
and
abetting as she allowed another officer to use her phone. That was when she
wanted a Union representative, she said.
CO William
Haggy, the Grievant's partner with whom she worked on cell block L‑3
during July and August of 1996, testified he never saw her around Inmate Howe's
cell or noticed anything suspicious about her or her interactions with inmates.
In his experience, she is a by‑the‑book professional officer. He
further testified that they ran a tight ship on that cell block, which caused
them to have problems with inmates trying to get rid of specific officers. CO
Matt Hapney, the Grievant's fiance´, is also of the opinion that she is an
excellent officer. He thinks she is aware of the games inmates play and not
stupid enough to fall for them. He testified that the Grievant and he moved in
together at an address in Waverly, Ohio at the end of July, that she had never
worked in a bar, that she has no relatives on dialysis, and that he does not
believe she is guilty. However, he never listened to the tape.
As for the
Grievant, she denies she ever received phone calls from inmates. If she had
done so, she would have reported it. Moreover, she knew from a prior case that
inmate calls are recorded. She said she moved in with her boyfriend towards the
end of July. The phone there was not turned on right away and, being placed on
leave, she did not have the opportunity to file a change of address until she
was asked for it. The Grievant said she still visits her mother, but was not
there on August 1 because she was cleaning her new home. Her mother does not
take collect calls, but there are other relatives around. The Grievant further
testified about the training she underwent for her job and that she felt she was
subjected to greater scrutiny than other COs because she is female. She said
after she **8**
received death threats on cell
block L‑3, she wanted to be moved out, but was told to stay to prove
she's strong. She further testified she had written up L‑3 inmates about
four times for trying to start a relationship with her. The Grievant testified
about problems she had in the past with Ison, including a 1970 platonic
relationship her uncle had with Ison's wife that resulted in divorce. The
Grievant denied ever working or even frequenting a bar and that anyone in her
family has diabetes. She said she doesn't know where Roy Rogers Drive is and
has never been there. She wanted the State to do a voice analysis and a
polygraph, but was denied, so she had a polygraph (not admitted into evidence
on objection of the State) done at her own expense and her attorney got a sworn
affidavit from the inmate in which he denies ever having a relationship with
her or phoning her.
According
to Ison's report, the Grievant denied the charge during the investigative
interview. She denied them again at the pre‑disciplinary hearing that was
conducted on August 26. Believing her guilty, Hieneman signed a removal order
on August 30 for Acting Warden Terry Collins. This order, effective September
30, cites phone calls and written communications with the inmate in violation
of Standards of Employee Conduct Rule 46a.
This
action was grieved on October 7, 1996, and processed through the grievance
steps without resolution. Hence it came to arbitration, where it presently
resides, for final and binding decision, free of procedural defect.
Arguments
of the Parties
Argument.
of the Employer
The State first
addresses the Union's argument that the case is fatally flawed by the
State's denial of Union representation during the investigatory interview. The Union's claim **9**
was not,
in fact, established by its own witnesses, who could only testify that they
were
standing
by and not called, though it was the usual practice to have them attend such
interviews.
Hieneman's testimony, corroborated by Adkins' statement, explains why they were
not called: the Grievant was offered Union representation, but declined it for
privacy reasons. The State contends the Union's failure to raise the argument
at the pre-disciplinary hearing, where she was represented by the very
individual who expected to be called to the investigatory interview, undermines
the Grievant's claim that she requested and was denied this right.
On the
merits, the State argues that testimony from Ratcliffe, See and Ruckhold
establish the reliability and accuracy of the TRACS system. This system
recorded two phone conversations between an inmate phone and a woman at 259‑3327,
which was the Grievant's number of record. The first of which was answered by
"Kathy." A third conversation between the inmate and the same woman
was recorded from a call placed to the phone number "Kathy" provided
in the second conversation. The computer logs were supported by the DigitGrabber
decoding of the audible tones. Although the phone calls were not billed, both
GTE and MCI provided an explanation and asserted the reliability of the TRACS
system. The State contends the female voice is that of the Grievant, and begs
the Arbitrator to listen carefully to the tape and make her own determination
from a comparison to what she heard during the hearing.
The State
argues the only defense offered by the Grievant is her steadfast denial and
claim that Ison, the original investigator, was out to get her. It says its
refusal to provide a voice analysis is justified as that examination is
unreliable and unnecessary, inasmuch as **10**
a preponderance of the evidence is
required to establish guilt. The State has met its burden of proof because the
evidence establishes that it is more probable than not that the calls between
the Grievant and an inmate took place.
The State
finds it suspicious that the cohabitation defense was not raised earlier. The
only support for the Grievant's claim that she was not residing with her mother
at the time was the testimony of her fiance’. No utility bills, no signed
lease, no change‑of‑address registration were offered, except the
document the State submitted, which the Grievant did not fill out until August
22.
No
evidence was brought to support the Grievant's claims that Ison had it in for
her or that she was treated differently in her daily work than other correction
officers either, asserts the State. Had the events alleged actually occurred,
there would be a record in reports and grievances. The State contends these
allegations were merely raised as a smokescreen.
The State
argues the content of the conversations recorded shows a relationship between a
female working at SOCF named "Kathy' and an inmate. This "Kathy"
is the Grievant. No other Kathy working at SOCF has come forward. The
relationship is clearly one that cannot be tolerated in a correctional
environment because it threatens the security of the institution and the
Department's ability to meet its charge. It asks that in light of this and the
evidence and testimony presented, the State's decision to remove the grievant
be upheld and the grievance denied in its entirety.
**11**
Argument
of the Union
The Union
first argues that the discharge should be overturned on the grounds that the
State refused the Grievant's request for Union representation at the
investigatory interview in violation of Article 24.04. The Union says the
testimony of Hieneman is key because he corroborated Union witnesses on what
usual practice is. If it is mutually beneficial and normal practice to have a
steward present, why was one denied in this instance, asks the Union. In its
view, the reason is because the Sike wanted to bully her into resigning. The
State's privacy excuse is false, says the Union, claiming management put the
word out to embarrass and shame the Grievant.
If the
Arbitrator reaches the merits of the case, the Union argues the State did not
have just cause to remove the Grievant. To begin with, it violated it's own
disciplinary rule, which provides for suspension to removal for a first
violation of Rule 46a and did not follow the principle of progressive
discipline. The Grievant only had a written reprimand on her record, for a
completely unrelated offense.
Second,
the Union questions whether there has even been an offense committed. The State
has no admission of guilt and none of the circumstances present in the parties'
McClendon case are present. No
separate line was installed and then removed, no calls appeared on the phone
company bills, and there was no record of consistent contact. The Union attacks
the quality of the State's evidence, saying the tapes have obviously been
tampered with, having sections erased, blank or unclear. The State has tried to
cover up by getting GTE and MCI to explain the lack of billing as a
"procedural error." Which computer is flawed, asks the Union, the
established billing automated GTE teller or the **12**
new, unproven TRACS system being operated by untrained technicians? The DigitGrabbber, too, is a last minute attempt to plug a hole. Might not this device have been preprogrammed to display for the Arbitrator what the State wanted her to see? In fact, says the Union, the State intercepted no mail from an inmate to the Grievant and has not even proven it was an inmate in the recorded conversations. As to the woman on the tape, she has obviously never worked at the institution because she did not know what the inmate slang expression, "checking in" means. The woman on the tape has an uncle in dialysis and worked in a bar. The Grievant has no relatives with diabetes and has never worked in a bar.
The State
has also not conducted a fair investigation. It never had a voice analysis
performed, nor did it polygraph the inmate, nor did it try to prove
correspondence was sent by the inmate to the post office box in Lucasville. It
also did not rebut testimony that the Grievant was cohabiting with her fiance’
at the time or that the phone number was not hers, but her mother's. In
addition, the death of the investigator hampered the Union because it was
unable to cross‑examine him.
The Union
offers an alternative theory. It contends the inmate wanted a transfer to a
less security‑oriented institution closer to his home in Dayton. He
spotted the Grievant as an easy mark because she was new to the institution and
not well accepted. Suggestions of a relationship between a female officer and
an inmate would be well‑received by Department. It is obvious he looked
up the numbers he needed in a phone book, which are readily accessible to
anyone in the prison, because they are both found in the "C" section
of the Portsmouth telephone book. The intercepted note is suspicious in light
of the **13**
testimony that inmates do not
willingly give up an officer unless they have something to gain from it. The
Union's theory is given credence, it says, by the fact that the inmate has been
transferred to Warren Correctional Facility.
The Union
argues the State must prove its case beyond a reasonable doubt because the
Grievant's reputation and credibility are at stake. The State has not met its
burden to show just cause for terminating the Grievant. The Union therefore
asks that the grievance be sustained, the Grievant be returned to work with
full back pay, no loss of seniority and longevity benefits, no loss of leave
accruals, be allowed to buy back all leaves that were paid out to her, than
unemployment benefits be paid back to
OBES by the Department, that she be paid interest on lost wages and made whole.
0pinion of
the Arbitrator
The case
for the Union's procedural argument rests entirely on credibility, there being
no waiver of union representation signed by the Grievant. The fact that it is
the usual practice to have Union representation at investigatory interviews
does not make it an absolute requirement or imply that the State necessarily
refused a request. Employees are entitled to a steward, not required to have
one. The statements of two management witnesses are that she was offered and
refused. The Union officer's availability does not undermine this evidence any
more than the employee's right to proceed on her own does. Indeed, it seems to
me that since Minzelli expected to be summoned and was not, but then did represent
her at the. pre‑disciplinary hearing, the issue would have been raised
then and there if it were true. The fact that it did not come up until
afterwards, even though the Grievant talked to the Union the same day as the
interview creates the inference that she
**14**
proceeded on her own of her own
free will and possibly later thought better of it. In any event no evidence
prejudicial to the Grievant such as a confession, was produced by that
interview.
Turning
now to the merits, there is no question that a relationship such as revealed in
the alleged phone calls between a correction officer and a convicted felon
incarcerated in an institution such as this one constitutes a perilous breach
of security and, if true, justifies removal on a first offense. If the content
of the tapes is to be believed, the inmate already had the female under his
control. She was afraid, but she gave him another number to use when he begged
to call again. It took very little begging at that. I therefore disagree with
the Union that the State broke its own rule and did not use progressive
discipline in violation of Article 24.02.
I also
disagree with the Union that the criminal quantum of proof, beyond a reasonable
doubt, is required. Employees fired for misconduct do not face the same
limitations on their freedoms that those convicted of crimes do, and I see no
reason why an employer should be held to the highest standard of proof when the evidence clearly and convincingly points
to an employee's guilt, though there be some question about it. On the other
hand, the damage to reputation and economic security that results from a
disciplinary discharge demands more than the preponderance standard argued by
the State. Yes, it is a matter of probabilities, as stated by Arbitrator Graham
in the case cited by both parties, but the probability of guilt must be high
enough to be convincing. So, finally we come to the central and most difficult
question of this case: is the State's evidence persuasive? **15**
I have
spent a considerable amount of time studying the record of this case,
struggling with the evidentiary problems it presents. The main evidence against
the Grievant consists of computer logs and sound recordings of alleged
telephone conversations. I am asked to believe, as the State does, that the
recordings are authentic and correct, and that the speakers are an inmate and
the Grievant. I am not persuaded by testimony of the system's use in other
proceedings, for there is nothing in the record about how large a role the
TRACS system played in their outcomes. Instead, I must look to the evidence
presented in this arbitration and evaluate the system in light of the complete
record. Ideally, there would be reliable evidence independent of that produced
by the TRACS system unequivocally supporting or refuting the latter. Nelson,
Dworkin and Graham all had at least grievant admissions, corroborating phone
company records and the like. Not so here. There are no phone bills with the
alleged calls on them. No mail was apparently intercepted between the inmate
and the Grievant. There is the note turned in by the porter, but I give both it
and all the correspondence in the discipline trail no weight nor do I credit
the inmate's written statement exonerating the Grievant, since the alleged
authors are convicted felons and did not testify. I am left with electronic and
circumstantial evidence on the one hand, Grievant and her fiance's testimony on
the other.
Because I,
myself, listened to the original recording on the DVL as well as cassette
reproductions, I do not have the problem of the reliability of the
reproduction. One of the copies is of much poorer quality than the others, but
the later copies adequately report the content of the original. The real
problem is whether the original (DVL) recording is reliable. There are several
ways to test it. One is through voice identification, another is **16**
through circumstantial evidence, a
third is through technical foundation. The State has elements of all three.
Though each taken by itself does not convince me, taken collectively, they do.
Investigator
See, whom the Grievant does not claim has a personal axe to grind with her and
who has talked with both the Grievant and Inmate Howe, identified their voices.
Although his experience with the Grievant is not extensive, he has heard her
telephone voice. My own, necessarily limited observation, is that the female
voice on the tape is not dissimilar to the Grievant's. A positive
identification by a person very familiar with the Grievant would provide
stronger evidence of identity, but the Grievant's fiance, who of all the
witnesses would be best able to authenticate her voice, did not listen to the
recording. Truly reliable scientific evidence would also be helpful, but spectrographic
voice print analysis does not rise to the level of general scientific
acceptance. The Employer cannot be forced to submit unreliable evidence and I
am unwilling to draw any inference from its unwillingness to do so voluntarily.
Circumstantial
evidence supports the conclusion that the parties and their conversations are
as represented by the State. The DigitGrabber unequivocally indentified the
numbers dialed and comported with the computer logs. The Union's suggestion
that the DigitGrabber was reprogrammed to provide false information to the
Arbitrator is pure speculation. Indeed. the Union's theory of the case amounts
to a paramilitary‑industrial conspiracy involving four organizations as
well as inmates and the original investigator with an alleged ancient grudge
against the Grievant's family. I agree that the lack of corroborating charges
on the GTE phone bills and MCI records weakens the State's case, **17**
but the explanation given was
supported by testimony and documentation I have no reason to disbelieve, and
there are other indices of reliability.
From the
content of the conversations, it is clear that the originator of the call was
inside a cellblock, an inmate, and speaking to someone employed at the
institution in his area. This person identified herself as "Kathy,"
was living with her mother who does not accept collect calls, and had to pick
up her mail as from a post office box. All of these circumstances match the
Grievant's. The Grievant testified she was no longer living with her mother at
the time, but she did not change her address until late August and her mother's
phone bill does not reflect long‑distance calls to Waverly until August
20. Thus, nothing she brought corroborates her testimony except that of her
fiance’. Her alibi is not that she was working, which would have cleared her,
but that she was cleaning the new home. I have similar problems with the uncle
and bar. It seems to me from the context that the "bar" was a code
word for a place inside the prison rather than a commercial establishment for
the sale of liquor. But even if it were the latter, one has only the Grievant's
and her fiance's testimony that she never worked in one, uncorroborated by
employment records. Neither did she offer medical records of relatives or
tickets on inmates to support her claims that no uncle is on dialysis and that
she is strict with inmates.
As for the
technical reliability of the computer logs and DVL, the State sufficiently
established the technical integrity of the TRACS system and the particular
recording at issue through the testimony of its witnesses. Institutional
operators, for example, have read-only abilities and are thus able only to
query the data, not to modify it. I do accept the proposition that inmates will
go to extreme lengths to break the system that controls them; **18**
also that computer and telephone
systems are not immune to being cracked by determined people with time and
talent. That this particular system has been hacked at all or was defeated
specifically for the purpose of setting up the Grievant is, again, speculative.
No theory of how this was done was developed, only the idea that it was
possible. If different numbers than those recorded on the DVL were dialed, how
did the Grievant's come to replace the true ones? If none of these phone calls
occurred, how were they placed on the DVL and the computer log? All evidence of
falsification of the log and recording is either unreliable, inconclusive, or
satisfactorily explained. Altman, who did not testify, gave a statement three
months after the calls. It provides a time two hours later than the two calls
were logged and the inmate said he made them. The GTE automated operator
handles the transaction according to the tape, but the record does not disclose
whether the handoff to MCI occurs before or after the recorded announcement. As
discussed above, gaps in the DVL recording were explained as normal functioning
not affecting the integrity of the data.
In sum,
while the State's case is based on technological evidence girded by just enough
foundation, identification and circumstantial
evidence to make it convincing, the Union's case is based on
uncorroborated testimony of the Grievant and her fianc6, both of whom have a
high interest in the outcome, phone bills which were rebutted by the State, and
unsupported speculation. The Grievant's removal was for just cause.
**19**
Award
The grievance is denied in its entirety. Anna
DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
November 10, 1997, **20**