ARBITRATION
DECISION NO.:
673
UNION:
OCSEA,
Local 11, AFSCME, AFL-CIO
EMPLOYER:
Ohio
Department of Rehabilitation and Correction
DATE OF ARBITRATION:
March 31,
1998
DATE OF DECISION:
May 15,
1998
GRIEVANT:
Karla Bobo
OCB GRIEVANCE NO.:
27‑26‑(97‑06‑04)‑0784‑01‑03
ARBITRATOR:
Anna
DuVal Smith
FOR THE UNION:
Robert
Jones, Staff Rep.
FOR THE EMPLOYER:
Patrick
Mayer, LRO
Rodney
Sampson, LRO, OCB
KEY WORDS:
Employee
Assistance Programs
Mitigation
ARTICLES:
Article 24 – Discipline
§24.09
–Employee Assistance Program
FACTS:
The grievant,
Karla Bobo is a Correction Officer employed by the Ohio Department of Rehabilitation and Correction (DR&C) at
the Warren and Dayton Correctional Institutions. She was employed by DR&C
from October 23, 1989 until her removal on May 23, 1997. During this time, the
grievant received mixed performance reviews. While at Warren where she was
stationed when the subject matter of the dispute arose, she received “meets
expectations" reviews. However, during her time at Warren from April 1995
until May 1996, she received ten disciplines, including 5 suspensions. In July
1996, the grievant entered the Ohio Employee Assistance Program (EAP), and went
on disability leave. Her extension of this leave was denied and she returned to
work. In February 1997, she was suspended for failure to follow call‑off
procedures. On April 9,1997, she again violated the call‑off procedure
which gave rise to the disputed removal.
Following her violation of the
call‑off procedure, an incident report was filed and an investigatory
interview was conducted. At that time the grievant asserted that for medical
and financial reasons the utility company was prohibited from cutting‑off
her electricity. she claimed that the utility company's failure to comply with
the prohibition caused her alarm to fail, which lead to her violation of the
call‑off procedure. She later presented a medical certificate and over‑due
billing information, which supported an inference that her power was cut‑off,
but did not conclusively support the defense.
At the pre‑disciplinary
hearing on April 18'h, the hearing officer rejected her defense of power
failure, finding no actual proof that the power was cut off She was
subsequently removed on May 23, 1997.
Although the grievant inquired
with the Warden about protection related to EAP, she did not raise these issues
in the disciplinary hearings. Neither did she request accommodation under the
ADA or the FMLA.
EMPLOYER’S POSITION:
The State argued that it satisfied
its burden to show just cause. The State asserted that there was no dispute
that she violated the call‑off procedure. Additionally, the state
contended that the grievant failed to support a mitigating defense with
conclusive evidence that the power was actually cut‑off. Furthermore,
even if the power was cut off, an employee on the verge of dismissal should
take the appropriate precautions to insure that she would not be late.
The State argued that its
discipline was progressive, giving her a second and third chance to conform her
conduct. The State further argued that the issues of EAP and ADA protections
were not raised in earlier proceedings; had they been raised, it was not clear
that they would apply, and if they did apply, the State was not required to
withhold discipline until the completion of EAP.
Finally, the State argued that
withholding discipline in this situation would undermine Management's ability
to manage the attendance of other employees.
Union's Position:
The Union asserted that the State
lacked just cause. The Union argued that the grievant had shown that the power
was cut‑off when the bankruptcy court failed to pay her bill and the
utility company disregarded her medical certificate. The Union also asserted
that the State failed to consider her enrolment in EAP in the February
disciplinary action, which was a violation of Article 24.09. The Union further
asserted that the State was out of compliance with the Contract (Articles 2.01
and 2.02) by discriminating against a person with severe health problems such
as asthma, depression, and alcoholism. Finally, the Union claimed that the
grievant is a good officer, whose problems began in 1995 following several
years of service to the State.
The Union asked that the grievant
be returned to her former position with back pay, benefits, seniority, and be
made whole.
Arbitrator's
Position:
The Arbitrator found that the
grievant violated the call‑off rule. However, the Arbitrator noted that
the questions at issue were whether the power outage was a mitigating factor
and whether her participation in EAP deserved greater consideration in the
disciplinary process.
The Union's claim, that the power
outage caused her alarm to fail and her rule violation, raises many questions,
which the grievant failed to satisfy. The grievant never presented conclusive
evidence, which was within her responsibility, that the power was actually cut‑off
Furthermore, the medical prohibition
that she presented as evidence is dated the day of the rule violation and lacks
any indication of when it was presented to the utility company, making the
claim suspect. The Arbitrator noted that the grievant's theory was an
affirmative defense and thus she bore the burden of supporting the defense. The
Arbitrator noted that a failure to present evidence leads to the conclusion
that the evidence does not exist.
Considering the EAP and last
chance agreement issue, the Arbitrator pointed out that it was unlikely, based
on the grievant's medical problems and the protocol surrounding disability
leave, that the State was unaware of her participation in the EAP.
However, even when the Arbitrator
gave greater weight to the grievant's participation in the program, the
Arbitrator found that the State had just cause in removing the grievant. The
Arbitrator noted that although the grievant falls within the special
consideration category described in Article 24.09, it does not give the
grievant license to disregard policy. The grievant had participated in the EAP
program for nine months. Despite the assistance of the program, past
discipline, and employer accommodation, the grievant failed to demonstrate any
change in conduct for the better. Accordingly, the grievant failed to
demonstrate an ability to reform, and an abeyance on her removal would be an
invitation to more of the same behavior.
AWARD:
The grievance was denied in its
entirety.
TEXT OF
THE OPINION: * * *
VOLUNTARY LABOR ARBITRATION
TRIBUNAL
OPINION
AND AWARD
In the
Matter of Arbitration
Between
Anna
DuVal Smith, Arbitrator
OHIO
CIVIL SERVICE
EMPLOYEES
ASSOCIATION Case
No. 27‑26‑970604‑0784‑01‑03
LOCAL 11,
AFSCME, AFL/CIO
and
OHIO
DEPARTMENT OF Karla
Bobo, Grievant
REHABILITATION
AND Removal
CORRECTIONS
Appearances
For the Ohio Civil Service Employees Association:
Robert
Jones, Staff Representative
Ohio Civil
Service Employees Association
For the Ohio Department of Rehabilitation and Corrections:
Patrick
Mayer, Labor Relations Officer
Ohio
Department of Rehabilitation and Corrections
Rodney
Sampson, Labor Relations Specialist
Ohio Office
of Collective Bargaining
* * *
HEARING
A hearing
on this matter was held at 9:00 a.m. on March 31, 1998, at the Warren
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. Issues on arbitrability and the merits were
raised. The parties 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 Warden Anthony Brigano, Captain Edward Everhart and Major
Carl Mockabee. Testifying for the Union was the Grievant, Karla Bobo. Also in
attendance were Joseph L. Coleman and Ronald Sixt. A number of documents were
entered into evidence: Joint Exhibits I ‑11, State Exhibits 1‑3 and
Union Exhibits 1‑6. The oral hearing was concluded at 4:30 p.m. on March
31, whereupon the record was closed. This opinion and award is based solely on
the record as described herein.
ARBITRABILITY
Issue
Was the
grievance timely appealed to the fourth step and is it therefore arbitrable?
Decision
This issue was withdrawn by the
State following a review of documents presented by the Union. The grievance is
accordingly deemed timely appealed to Step 4 and is therefore arbitrable. **2**
MERITS
Stipulated
Issue
Was the
removal of the Grievant, Karla Bobo. for just cause? If not, what is the
remedy?
Statement
of the Case
At the
time of her dismissal for failing to follow call‑off procedure, the
Grievant was a Correction Officer working the third shift at the Warren
Correctional Institution in Lebanon, Ohio. This institution is a close security
facility housing approximately 1500 inmates, including a number with special
needs. As a 24‑hour security operation. procedures are in place to
provide adequate staffing when employees scheduled to work are absent, One of
these requires employees to call in 90 minutes before the start of their shift
when they are unable to report at their designated time. This allows the shift
commander time to locate a substitute. State witnesses testified that call‑offs
result in lost managerial time and reduced staff morale, and that the effects
are worse when an employees fails to appear without any notice at all.
The
Grievant has been employed by the Ohio Department of Rehabilitation and
Corrections as a Correction Officer since October 23, 1989, first at the Warren
facility, then at Dayton Correctional Institution, and then again at Warren.
Her performance evaluations have been mixed, in most years meeting
expectations. Attendance problems began to be noted in 1993. The evaluation for
1994 when she was at Dayton Correctional Institution is dominated by
"below" ratings and also notes attendance problems, the former
of which the Grievant testified were
due to having been assigned to inmate housing without training and to her strictness
with inmates who were accustomed to lax treatment. In 1995 she was back at
Warren, and her ratings returned to "meets expectations” levels, but
attendance continued to be a problem. Indeed, during the 13 months from **3**
April 1995 through May 1996, the
Grievant accumulated the following disciplinary record, none of which were
grieved.
Date of
Notice Action
Violation
April 25,
1995 Written
reprimand AWOL
October 5,
1995 Written reprimand Call‑off procedure
October 6,
1995 Written reprimand Loss of tool control
November
17, 1995 1 ‑day
suspension Tardiness/Call‑off
January
17, 1996 3‑day
suspension Call‑off
procedure
February
14, 1996 5‑day
suspension AWOL/Call‑off
February
28,1996 Oral reprimand Clock‑in/out
procedure
February
29, 1996 Written reprimand Clock‑in/out procedure
April 23,
1996 1 0‑day
suspension Tardiness/Call‑off
May
20,1996 1 ‑day
suspension Clock‑in/out
In July
1996, the Grievant entered the Ohio Employee Assistance Program (EAP) and went
on disability leave for major depression and alcohol abuse. Suffering financial
difficulties as well, she returned to work that fall after her application to
extend this leave was denied. She was placed on third shift in an attempt to
accommodate her and minimize disruptions from her attendance problems. She
nevertheless reported for work late on November 24 and again on November 28
without calling in in a timely fashion.
For these infractions, she received another I0‑day suspension in February
1997 which also went ungrieved, The Grievant recalls being told at the time
that she could not afford any more such infractions.
Two months
later, on April 9, the Grievant again did not appear at the 9:50 p.m. third
shift roll call, nor was she at her post at the 10:00 p.m. start of her shift.
The Grievant testified her electricity had been cut off while she slept, thus
disabling her alarm clock. She called in to work at 11:05 p.m., after the cold
of the house awoke her, and requested emergency personal leave. the shift
commander, Captain Edward Everhart, testified he told her she would have to
bring in documentation to support her request, a statement disputed by the
Grievant who testified he merely said, "Whatever you want to do,
ma’am." No request for leave form nor any documentation was
**4**
presented, so Captain Everhart
turned in the call‑off slip. An incident report was filed and an
investigatory interview was conducted, at which time the Grievant said that for
medical and financial reasons her utility company was not supposed to turn off
her power. She later supplied the doctor's April 9, 1997 medical certificate
(for severe asthma) that was supposed to prevent termination of utility
service, and computer printouts showing a past due balance on her electric
bill. In arbitration she also presented Chapter 13 bankruptcy documents showing
the Trustee's allowance for the utility company's claim.
A pre‑disciplinary
hearing was conducted on April 18, 1997. The hearing officer rejected the
Grievant's excuse because no proof was provided to show if or when the
electricity was turned off and how this prevented her from calling off
properly. The Grievant was therefore removed on May 23,1997.
A
grievance protesting this action was filed June 2, alleging discrimination on
the basis of disability and no consideration given to the mitigating
circumstances of power outage or to the Grievant's participation in the RAP.
This grievance was thereafter processed through the grievance steps without
resolution, finally coming to arbitration where it presently resides for a
final and binding decision, free of procedural defect.
The Warden
testified that the Grievant had asked about EAP and a last chance agreement,
and that he had considered it. However, he does not believe the reasons she was
late and failed to call‑off bear any relationship to RAP issues.
Moreover, she did not make him aware that she was already in an EAP and he has
no idea why someone already in one would seek discipline deferral pending EAP.
In addition, had she requested accommodation under ADA, which she did not do,
he would have looked at that, too,
For her
part, the Grievant testified that although she did not mention she was in EAP
for alcoholism during these disciplinary proceedings, management had learned of
it at her pre‑ **5**
disciplinary hearing for her 10‑day
suspension in 1996 and she signed a release on July 24, 1997 so her EAP could
inform management themselves. She never requested ADA accommodation, except for
a hearing loss, nor is she aware whether alcoholism, depression or financial
problems are covered. She did not grieve her prior discipline, assuming the
Union had done so as, in her opinion, it is their responsibility. She has not
made use of her FMLA rights either. She does, however, want her job back and
believes her attendance improved after she entered the EAP.
Arguments
of the Parties
Argument of the State
The State
argues it has proved just cause for terminating the Grievant. There is no
dispute that she called in more than 2‑1/2 hours later than required. She
never submitted a request‑for‑leave form or brought evidence that
her power was shut off. But even if it was improperly turned off as she claims,
the State argues that as a person on the edge of removal, she had the
obligation to take every possible means to assure she was in compliance with
the standards of conduct.
The State
argues removal in this case is progressive, commensurate, and corrective. The
Grievant had twelve disciplines in the two years preceding this incident, at
least seven of which were for similar offenses. The State gave her a second and
a third chance, for the disciplinary grid provides for removal on a fifth
offense. The State's decision not to mitigate or make a last chance agreement
was based on what it knew at the time. Neither EAP nor ADA reasons for her
lapse were raised. The reason provided was power shut off. Power shut off for
nonpayment of bills is not an EAP issue and, even if it were, the employer is
not obligated to hold discipline in abeyance pending EAP results. In any event,
even though she brought no evidence of an EAP issue at the time, she was
already in the program, but with no effect on her attendance. Enough is enough.
The effect of poor attendance is felt primarily by fellow officers who have to
cover for the absent one, whether **6**
by overtime or by working a different assignment than
customary. Putting the Grievant back will send a message to other employees
that they can disregard attendance rules and procedures eight times before it
costs them their jobs. On the other hand, upholding the removal, which another
arbitrator did in a strikingly similar case, will send the message that
attendance matters. 1
The State asks that the grievance
be denied in its entirety.
In the
Union's view, the State lacked just cause to remove the Grievant. The record
shows that the incident of April 9 occurred because her power was turned off
when Bankruptcy Court failed to pay her bill and the utility company
disregarded the Grievant's medical certificate. The Grievant was in Chapter 13
and having her wages garnisheed, leaving only a little money for food,
gasoline, and other necessities.
The
Grievant had entered the EAP and gone on disability leave to address her
problems. This did affect her attendance, but the employer gave no
consideration to these facts. Indeed, the Union asserts the State disregarded
her participation in EAP when it served her with discipline on February 4,
1997. Failure to consider EAP is a violation of Article 24.09 of the Collective
Bargaining Agreement.
The Union
pleads that the Grievant deserves another chance. She was a good officer whose
problems began in 1995 after some years of State service. She felt
discriminated against and believed the State was out of compliance with the ADA
in violation of Article 2.01 (Nondiscrimination) and 2.02 (Agreement Rights)
of the Collective Bargaining Agreement. It is unjust to punish a person with
health problems of severe asthma, depression, and alcoholism. The Union
______________________
1Ohio &R.C V. 0CSEA1AFSCME Local 11
(Fawley, Grievant), No. 27‑26‑930119‑36801‑03 (Loeb,
i995), **7**
concedes her failure to
call‑off did create hardship for the institution, but five extra officers
were assigned to relief that night, so the situation was not critical.
In support of its position, the Union offers the decisions of Kelly‑Springfield Tire Co. v. U.R.W. Local 746, 108 LA 984 (Nicholas, 1997); Vons Companies, Inc. v. Teamsters Local 848,106 LA 740 (Darrow, 1996); Georgia‑Pacific Corp. v. Woodworkers/I.A. M Local W 376, 108 LA 43 (Nicholas, 1997); Ohio D. R. C v. 0CSEA/AFSCME Local 11 (Block Grieiant), No‑ 27‑25‑960617‑1092‑01‑03 (Dworkin, 1997). It asks that the grievance be granted, the Grievant returned to her former position, awarded back pay, benefits and seniority, and made whole.
Pertinent
Contract Provisions
24.09 ‑ Employee
Assistance Program
In cases where disciplinary action is contemplated and the affected employee elects to participate in an Employee Assistance Program, the disciplinary action may be delayed until completion of the program. Upon notification by the Ohio FAP case monitor of successful completion of the program under the provisions of an Ohio EAP Participation Agreement, the Employer will meet and give serious consideration to modifying the, contemplated disciplinary action, Participation in an EAP program by an employee may be considered in mitigating disciplinary action only if such participation commenced within five (5) days of a pre‑disciplinary meeting or prior to the imposition of discipline, whichever is later. Separate disciplinary action may be instituted for offenses committed after the commencement of an EAP program. (Joint Ex. 1)
Opinion of
the Arbitrator
There is
no dispute that the Grievant once again violated the State's reasonable rule to
report her inability to appear for work when expected or that this followed a
history of discipline for eleven rule violations, including attendance rules,
in the preceding two years. That being the case, there are really only two
questions for the Arbitrator to decide: (1) Should the removal be mitigated by
the role, if any, that the alleged power outage played and (2) should her
participation in EAP have been given greater weight than it was? **8**
Regarding
the alleged power outage, I have the same problem the State did at the predisciplinary
hearing, lack of proof. While there is evidence the Grievant owed the utility a
substantial amount of money, was facing a shut‑off against which she
obtained a medical prohibition on the very day she overslept, and that she was
in Chapter 13, she has never brought proof that her electricity was shut off on
the day in question or offered any explanation for why, knowing she could ill afford another rule infraction, she
did not take precautions to assure her timely appearance for work. She has had
many opportunities to present such proof. Even if Captain Everhart did not
request it when she finally called in April 9, it was an issue during the pre‑disciplinary
hearing and was noted on the pre‑disciplinary report. Since then, there
have been grievance meetings and an arbitration hearing. The Grievant has
brought other documentation, but this piece remains singularly lacking, From
this, the inference is drawn that no such proof exists. Lest the Grievant
believe that it is the employer's responsibility to substantiate her claim, I
point out that hers is an affirmative defense. She is the one who claims
mitigating circumstances and she is the one who has the power to request the
records of the utility company. As it stands, even the medical certificate
raises questions about the veracity of the Grievant's claim that the situation
was beyond her control, for it is dated April 9 and lacks any indication of
when it was presented to the utility company or by whom.
Turning
now to the EAP issue, it is difficult for me to believe that the employer was
as ignorant as it claims of the Grievant's history of depression and alcoholism
or the par these illnesses may have
played in the Grievant's financial difficulties that she says caused her to
miss the call‑in window. Her disability leave, after all, had to be
processed through the Department.
However,
giving greater consideration to her request, as I do now, does not compel that
the removal be reduced. Article 24.09 makes clew that the employer need not
modify contemplated discipline, but must only give it serious consideration.
What is more, it specifically contemplates **9**
discipline for infractions
occurring while the employee is in a program, which is precisely what occurred
here. EAP is not a license to disregard legitimate employer directives. The
employer still has the right to expect employees to come to work when scheduled
or to provide adequate notice when they cannot. The Grievant had been in the
EAP for nine months, a large portion of which she spent on disability leave.
Despite this, her prior disciplines and movement to the third shift; she still
could not conform herself to her employer's attendance expectations. Moreover,
she blames everything and everyone else for her troubles. Without some
indication that something is different from the preceding nine months, and
different in a way indicative of success, a last chance agreement seems only a
lam chance at mom of the same. This, in fact, is what Arbitrators Dworkin and
Darrow had in the cases cited by the Union; impending discipline served as a
wake‑up call to Dworkin's grievant and Darrow's grievant had a long,
unblemished record indicative of success.2
If, as my learned co‑panelist Jonathan Dworkin holds, the litmus test in
a removal is whether the grievant is redeemable, I have to say that I agree with the State. This Grievant
has had her second chance and
then some. While it is never easy
to sustain a removal, particularly of a troubled employee who has given good
service, there comes a time when it must be recognized that the employer can do
no more without compromising the expectations and well‑being of other
employees.
Award
The grievance is denied in its entirety.
___________________
Anna
DuVal Smith, Ph.D.
Arbitrator
Cuyahoga
County, Ohio
May 15, 1998
ODRC448 .
__________________
The
other two cases cited by the Union, Kelly-Springfield
Tire and Vons Companies are
distinguished by proof of disparate treatment.
**10**