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the February, 2002 issue.
State of Montana
Dept. of Corrections
Pine Hills Youth Corr. Facility
--
and --
Montana Public Employees Assn.
116 LA (BNA) 410
October 19, 2001
Donald S. Prayzich, Arbitrator
At the outset of the hearing, the Parties agreed to the following statement of the Issue:
“Was there just
cause for the discharge of C__ from his employment as a Correctional Officer
II?
If not, what is
the appropriate remedy?”
The Parties stipulated that the matter is
properly before the Arbitrator, who is authorized to render a final and binding
decision with regard to the foregoing submission statements.
C__(“Grievant”) was employed for
approximately two years at Pine Hills Youth Correctional Facility (“Employer”)
as a Correctional Officer II. In that capacity, the Grievant was covered for
wages, benefits, and working conditions by a Collective Bargaining Agreement
(“CBA,” “Agreement,” or “Contract”) between the Employer and Montana Public
Employee Association (“Union” or “Association”). He was discharged on or about
November 15, 2000. The Employer's facility is under the jurisdiction of the
Department of Corrections, State of Montana.
According to the Employer, the Grievant repeatedly failed
to comply with necessary and reasonable requirements, including attendance at
mandatory meetings and the proper filing of time reports, despite repeated written
warnings and at least two suspensions. Further, the Employer alleges that in a
short period of time, just prior to discharge, the Grievant engaged in three
additional separate acts of unprofessional conduct. The Employer seeks a
decision sustaining the Grievant's discharge.
According to the Union, the Employer
violated its own program, which was supposed to correct the Grievant's
deficiencies. Specifically: The Grievant was directed to request twenty-six
weekly meetings with his supervisor, which he did. However, after three or four
such meetings, the supervisor would not meet, and the Employer breached its own
agreement which was the Employer's Action Plan, designed to correct the alleged
meeting and time sheet deficiencies. Further, the Grievant was promoted to a
Lead position, which provided additional pay and responsibilities, even though
more senior employees could have been assigned to the vacancy. So far as the
other three alleged violations, the Association dismisses them out of hand, as
each are easily explained away, and they were not acts of misconduct. The Union
seeks reinstatement of the Grievant with all lost wages and benefits.
When the matter could not be resolved by
the Parties, it was referred to this Arbitrator, who is authorized to render a
final and binding decision.
EMPLOYER POSITION
The Employer emphasizes that C__ was discharged for
failure to attend required staff/safety meetings and failure to properly
complete required time reports, but further, that he displayed unprofessional
conduct. Specifically: Abuse of sick leave, use of the prescription drug
amitriptyline before reporting to work, (a mood altering drug for which he had
no prescription), use of the term “chomo”, against a resident of the facility,
and physically grabbing his crotch and making a gesture in the presence of youth.
The Employer stresses the application and
its satisfaction of the “Seven-Point Test” for just cause, as set forth by
Arbitrator Daugherty in Enterprise Wire ( 46 LA 359 -365). A short
summary of the Employer's position, focusing on the seven points is set forth
below:
1.
The importance of required staff/safety meetings is stressed by the Employer by
their inclusion in the vacancy announcement for the position of Correctional
Officer. Progressive discipline imposed on the Grievant for failure to attend
the required meetings and failure to record time sheets properly failed to
correct the Grievant's performance deficiencies. It is stressed that there can
be no contention, by the Grievant, nor the Association, that C__ was not
forewarned of the consequences of his repeated failure to perform the two job
requirements.
2.
The Employer stresses the importance of staff training through required
staff/safety meetings and, in support of that premise, references the
Supplement to Master Agreement , wherein there is reference to Management's
responsibility to make a good faith effort to provide training to employees in
the bargaining unit.
3.
The Employer maintains that it properly and thoroughly investigated the
Grievant's rule violations before imposing disciplinary action.
4.
The investigation was both fair and objective, and the results of that
investigation were turned over by Supervisor Jeffrey Lee to the
Predetermination Panel, for its review and recommendations. In support of its
position, the Employer references Discipline and Discharge in Arbitration
(1998), p. 54, citing Cameron Iron Work , 73 LA 878 .
5. The Employer submits that there
is no dispute that the Grievant did in fact fail to attend required monthly
staff/safety meetings and failed to record his time sheets properly. It is
argued that the dispute at hand is not one in which the Grievant was lulled into
a false sense of security. He was repeatedly warned through progressive
corrective discipline of the seriousness of his violations. A six-month Action
Plan requiring C__ to initiate meetings with his supervisor on a weekly basis
was developed in an effort to get to the bottom of the problem of why he did
not attend safety meetings and did not turn in proper time reports. That Action
Plan had all the “earmarks” of a last-chance agreement.
6.
The record establishes that the Employer has applied its rules uniformly and
consistently to all employees.
7.
The Employer contends that this is not a case of an occasionally missed safety
meeting nor an occasional improperly filed time sheet, but is one of repeated
serious misconduct, warranting the penalty of discharge. The Grievant's
breaches of his responsibilities to the Employer were blatant. Referencing How
Arbitration Works , Fifth Edition, (1996), p. 932, the Employer emphasizes
that when an employee has been repeatedly warned about rule violations and the
consequences of failure to comply, the warnings stand against the employee.
Additionally, the Employer emphasizes that the Grievant had only two years of
service.
In support of its argument that it is
proper to evaluate and consider an employee's entire work record in determining
the degree of discipline to impose, the Employer cites Troy Department of
Public Works , 77 LA 153 , (1981). In this respect, the Grievant's work
record includes:
a. A January 29, 1999 warning for unprofessional
conduct.
b. A May 14, 1999 warning for sleeping on duty, and less
than a month later, the Grievant was suspended for two days for a repeated
sleeping on duty violation.
The Employer argues, that the
aforementioned discipline was properly considered and is admissible under an
exception to the one-year provision of the Collective Bargaining
Agreement.
In conclusion, the Employer stresses that
the Grievant was not a long-term dependable employee who had developed a good
work record. To the contrary, he in fact established that he could not be
rehabilitated through repeated efforts to correct his misconduct by progressive
discipline. Moreover, the explanations he offered for his “flagrant”
absenteeism from meetings were nothing more than he “forgot”, and such excuses
are unacceptable. So far as any defense that the required meetings conflicted
with C__'s work schedule, the Employer emphasizes that the meetings are offered
four times each month, at various times, and it would have been easy for him to
attend one of the four meetings scheduled. Additionally, the importance of
safety, and instruction with regard to safety, cannot be over-stressed. The
Employer respectfully requests that the Arbitrator deny the grievance of C__and
sustain his termination.
ASSOCIATION
POSITION
The Association stresses that the
Employer has the burden of proving that it had just cause to discharge Grievant
C__. Additionally, allegations that the Grievant engaged in other violations
(using a mood-altering prescription drug for which he had no prescription, the
use of the term, “chomo” against a youth at the Facility, and physically
grabbing his crotch as a gesture) must be deemed abandoned by the Employer. A
determination that the Employer abandoned the three aforementioned charges of
unprofessional conduct is required because the Employer produced no evidence to
prove the alleged misconduct. It was only mentioned at the trial, by Counsel
for the Employer in argument. Moreover, the Association submits that misconduct
did not occur. Specifically: The
Grievant did not use amitriptyline, but only used an herbal over-the-counter
sleep aid, used the term “chomo” in response and in jest to a youth with whom
the Grievant had a good relationship. So far as the alleged misconduct
of grabbing his crotch, the Association submits that there was no misconduct,
but merely a normal adjustment, which is often required during a long and
sweaty basketball game, as that which the Grievant was engaged in at the time a
photo of the incident was taken. So far as proving the allegations of failure
to attend required staff/safety meetings and failure to complete proper time
reports, the Association argues that just cause has not been proven and, in
support of this position, references the “Seven-Point Test”. A short summary of
the Association's position regarding application of the facts of the instant
dispute to the Seven-Point Test follows:
1. So far as notice of the
seriousness of the Grievant's failure to attend required meetings, the
Association submits that there was no such notice. The issue was not addressed
during the probationary period, and although the Grievant received warnings,
they were made in the context of a promotion and a substantial pay raise.
2.
Was the order or rule reasonable? The Association submits, that on its face, it
appears to be reasonable, but that the Action Plan prepared and required by the
Employer was not followed by management.
3.
& 4. With regard to the investigation, the Association maintains that
“three of the first letters' elements were so poorly investigated, that they
were dropped before proof was even attempted to be offered.”
5. In
regard to the investigations substantiating guilt by the Grievant of the
charges against him, the Association maintains that there was only proof so far
as attendance at meetings, although the accuracy of supervisors' notes is
questionable.
6.
Whether or not the Grievant was treated in the same manner under the same or
similar circumstances as other employees had been treated, the Association
submits that he was not.
7. The Association argues that the
punishment did not fit the crime, as the Grievant read all important
information which was prepared for reading, at all Lodges.
In conclusion, the Association argues that the just result of the Grievant's arbitration trial requires a finding that C__ should be restored to his previous employment, with full back pay and benefits, offset only by what the Arbitrator might deem to be an appropriate amount of discipline for the “alleged offenses actually demonstrated”.
It is well settled (as stressed by the
Association) that the burden of proving just cause for discharge is placed
squarely with the Employer. [N. 1]
In the dispute at hand, the Employer
focuses on two primary allegations of misconduct: 1) Repeated failure by the
Grievant, C__, to attend required monthly staff/safety meetings and, 2) Failure
to submit properly completed time reports in a timely manner. In addition to
the foregoing, the Employer submits, that within a short period of time, the
Grievant engaged in three other acts of misconduct, which it characterizes as
unprofessional and serious violations of Rules and Policies. Specifically: 1)
Reporting to work under the influence of the mood-altering
(prescription-required), drug, amitriptyline, for which he did not have a
prescription, 2) The use of the term “chomo”(child molester) against a student,
and 3) Physically grabbing his crotch and making a gesture in the presence of
youth. Additionally, use of sick leave was being monitored for possible abuse.
Further, the Employer submits that the Grievant acted more like a peer than an
authority figure.
The Association offers an explanation for
each of the foregoing three allegations of unprofessional conduct, and
emphasizes that the Employer abandoned its position with regard to those three
secondary allegations as it offered no proof of the charges but referred to them
only in the Employer's Opening Statement.
Addressing the two primary reasons for
termination, it is necessary to note and/or discuss the following, as
established by the evidentiary record:
1. A
Performance Appraisal, for the period November 20, 1998 to June 17, 1999,
states in part under Appraisal Comments :
8.
You are responsible for attending one lodge all-staff meeting each month for
the purposes of training and policy or procedural changes. It would be most
beneficial for you to attend the meeting in the lodge for which you find
yourself working the most shifts. You have not attended any meetings in Russell
Lodge, and I am unaware if you are attending these meetings in other lodges.
All staff meetings are generally scheduled a month in advance to give you
enough time to plan on attending one of them. If you are unfamiliar with where
to look up the dates of the meetings, you can ask one of the other staff to
show you.
Your co-workers have commented on the
improvement they have seen over the past few months, specifically in the area
of interaction with the youth. Recommendations from coworkers indicate a need
for you to pay closer attention to details regarding routines and
procedures.
The Action Plan states in part:
Make sure you are attending one lodge
all-staff meeting each month. If you are unable to attend for any reason, make
sure your supervisor is notified so the missed training can be made up in some
other fashion.
The Grievant acknowledged, by signature,
that he received the foregoing.
2.
Performance Appraisal for the period June 17, 1999 to December 15, 1999, p. 2,
item no. 5, Grievant was graded unsatisfactory for the following: “Participates
in meetings as scheduled and required.” On p. 3 of the Performance Appraisal,
the Grievant was graded unsatisfactory on item no. 8: “Participates in monthly
safety meetings.” Under Appraisal Comments : the following is found:
5. To
my knowledge, you have not attended any monthly lodge all-staff/safety
meetings. Attendance at one of these meetings each month is mandatory.
Concerning the Grievant's failure to
comply with time sheet reporting requirements, the following was noted:
Other.
Completing time sheets has been an ongoing issue. You have
received a counseling record as well as a letter of warning for not completing
and submitting a time sheet. Turning in your time sheets has improved in the
past couple of months, but you still need to pay closer attention to some of
the details, such as recording times on the correct days you worked, recording
overtime, and signing and dating your time sheets (both sides when
necessary).
Under
Action Plan , 8 provides:
Uses communication system general.
It is your responsibility to attend one lodge all-staff
safety meeting each month. The dates of these meetings are generally posted a
month in advance and are available in the lodge. When you fail to attend these
meetings, you also miss the training that is offered at these times. Self-read
training material is also delivered to the lodge routinely, covering general
topics or policy updates, and I have never received any training records from
you which indicated that you completed the material. Again, it is your
responsibility to keep up with these training materials. If you do not know
where to locate them, ask a coworker or other correctional worker in the lodge
where you are working. Your attendance at meetings and your completion of self-read
training material will be tracked on the attached form and will be evaluated at
the end of six months from the signing of this appraisal.
Other.
Now that you are in the habit of turning your time sheets
in, pay closer attention to making sure it is accurate. If you have questions
on how to complete it accurately, you can ask a coworker, myself, or Jodi Stone
in the business office.
3.
Ex. D-9, dated April 12, 2000, contains an Action Plan , which states that the
Grievant is to initiate a meeting, each week, with his supervisor, to discuss
issues involving “Training, compliance with policy and any other job
performance issues.” Weekly periods are set forth, commencing with April 17,
2000 through October 20, 2000.
The foregoing clearly establishes notice
to the Grievant of the requirements of the Employer so far as the two primary
deficiencies which are alleged. A review of the record establishes that
subsequent to the foregoing notice, and comments in connection with performance
reviews, the following record of discipline is included in his personnel
file:
1. On April 11, 2000, the
Grievant acknowledged, by his signature, that he received a written warning
dated March 13, 2000. That document summarizes prior discipline imposed and
addresses the Grievant's continued failure to attend monthly required
staff/safety meetings and failure to properly complete time sheets. The
document also states: “I am formally warning you that further violations of
this policy may result in additional disciplinary action.”
2.
Ex. D-11 characterizes failure to attend required monthly meetings and failure
to comply with an Action Plan as insubordination. The letter states that there
was one attempt by the Grievant to comply with monthly meetings, and in that
one situation, he reported 15 minutes late. Moreover, C__ did not attend a
pre-scheduled meeting set for 0900 on March 13, 2000 and did not call. The
purpose of the meeting was to discuss the Grievant's areas of job performance
deficiency. The warning letter also references inaccuracies in his completion
of time sheets. This letter of warning also states: “Further violations of this
policy may result in additional disciplinary action.” The letter was signed by
the Grievant on April 12, 2000.
3. On
that same date, C__ was sent a certified, return receipt letter, from Ms. Carol
Nelson of Personnel, advising of a predetermination meeting on April 20, at
2:00 p.m., to discuss the two primary deficiencies of failure to attend monthly
required staff/safety meetings and failure to comply with time sheet
requirements.
4.
Ex. D-13 is a letter addressed to Superintendent Steve Gibson from the
predetermination committee, regarding the April 20, 2000 meeting. The committee
recommended further disciplinary action.
5. In
response to that letter, Mark Schwarzkopf suspended the Grievant for one day
(letter contains wrong date of the suspension). That suspension letter states:
“Further violations of Pine Hills Policy will result in additional disciplinary
action and could result in termination of your employment with this
agency.”
6.
Ex. D-16 is a letter to the Grievant from Ms. Carol Nelson of Personnel, dated
November 3, 2000, advising of a predetermination meeting on November 8, 2000 at
10:30 a.m. That letter includes allegations regarding illegal drug use
(amitriptyline), the grabbing of his crotch by the Grievant and making an
inappropriate comment in the presence of youth, and the use of the word “chomo”
against a student. Those three allegations were in addition to the two primary
violations of failure to perform regarding meetings and time sheets. There is
no reference to sick leave in that letter.
7.
Ex. D-19 is a November 15, 2000 letter signed by Supervisor Jeffrey Lee,
addressed to the Grievant. Lee assumed supervisory responsibility for the
Grievant on April 12, 2000. This letter discharged C__ and addresses failure to
attend required staff/safety meetings and failure to complete time sheets.
Significantly, the letter references conclusions drawn by the predetermination
committee as a result of the November 8, 2000 predetermination meeting, which
was attended by the Grievant and Association Representative Mark Langdorf. In
this regard, the Grievant was found to have violated rules against unacceptable
performance and conduct, “Using or being under the influence of a mood-altering
substance, including prescription medication that could impact the effective
performance of duties and responsibilities.” Moreover, the letter states that
the Grievant was found to have violated the Code of Ethics , sexual harassment
guidelines for employee performance and conduct, exhibiting inappropriate
conduct in the presence of youth. The letter also states, “The photo indicates
that you were looking directly at two youths when you were grabbing your
genital area. Additionally, you admitted to calling a youth `chomo'.” Further,
the letter references abuse of sick leave. The letter concludes by noting that
as a result of the November 8, 2000 predetermination meeting, and the violations
of the previously cited Policies and Procedures, including the three
allegations over and above the two primaries, the Grievant's employment was
terminated.
Discharge is the “capital punishment”of industry. The
affected employee suffers a loss of his source of income, contractual benefits,
seniority, and his/her reputation is often severely affected for future
employment opportunities. [N. 2] The
record clearly establishes that the Grievant accumulated an unsatisfactory and
unacceptable record during his relatively short term of employment. The monthly
staff/safety meetings must be construed as reasonable and necessary for
professional job performance by Correctional Officers. Further, the accuracy
and timely completion of time sheets must be deemed both necessary and
reasonable. The weight of the evidence clearly establishes that the Grievant
repeatedly failed to comply with meeting and time sheet Rules and Policies.
Moreover, the evidentiary record establishes substantial efforts through
progressive discipline, to correct the required meeting and time sheet
deficiencies. Thus, discipline is warranted. However, in assessing whether
discharge was appropriate, there are certain elements of this dispute that
concern the Arbitrator and must be weighed and balanced against the penalty
imposed. Specifically:
1.
The Grievant was assigned as Shift Leader for maximum security (Unit C).
Supervisor Jeffrey Lee testified that a Lead person gives direction to other
Correctional Officers. Lee further testified that if anything goes wrong, the
Shift Leader is held responsible. Moreover, he (Lee) never recommended that C__
be removed from his Lead position. The Association stated that the Employer has
discretion to assign whomever they consider responsible for Lead positions.
Accordingly, the Arbitrator must conclude t hat setting aside the primary
allegations, which must be deemed serious misconduct, both with regard to
non-attendance at the required meetings and the failure to comply with time
sheet requirements, the Grievant must have performed as a satisfactory employee.
2. So
far as the three secondary alleged violations (plus inference of sick leave
abuse), the use of the term “chomo”, the physical grabbing of his crotch, and
the use of the prescription drug, amitriptyline, before reporting to work:
There is insufficient evidence to conclude that those three allegations were
properly included in the reasons for discharge. In Ex. D-19, conclusions
reached by the predetermination committee at their meeting of November 8, 2000,
are set forth by Lee. Reasons for termination include the three secondary
allegations, as well as reference to sick leave abuse. In reviewing the
submitted evidence, a conclusion is mandated, that there is a clear absence of
sufficient proof with regard to those three additional alleged secondary
violations and abuse of sick leave. Those allegations, however, were factors in
the conclusions reached by the predetermination committee on November 8, 2000,
and were set forth by Jeffrey Lee in his letter of discharge.
3.
The record establishes that the first threat of discharge (the April 26, 2000
letter) states in part: “We are hereby formally warning you that further
violations of Pine Hills Policy will result in additional disciplinary action
and could result in termination of your employment with this agency.” All prior
letters of warning or notices of deficient performance merely state that
further violations may result in additional disciplinary action. The Grievant's
failure to perform continued for about 17 months before he was on notice that
his job was in jeopardy. He was then subjected to an Action Plan which was not
completely followed by supervision.
4.
The Arbitrator is persuaded that Supervisor Lee's letter to Mr. Jim Hunter,
referencing the three additional allegations, and sick leave abuse, were for
the most part, the triggering incident leading to the November predetermination
meeting. Significantly, there is no record of discipline imposed by Lee from
the time he assumed supervision (April 12, 2000) until he discharged C__, even
though the Grievant's failure to comply with meeting and time sheet
requirements continued.
5.
The Action Plan imposed by the Employer for a 26-week period commencing in
April 2000, requiring the Grievant to initiate weekly meetings with his supervisor
to monitor and evaluate his job performance in the areas of the two primary
deficiencies (failure to perform) was not completely complied with by the
Employer because of Jeffrey Lee's involvement in other matters (Lee so
testified), which prevented him from attending some of the meetings. C__
testified that since supervisor Lee was not available for many of the weekly
meetings, he (C__) felt that the meetings were not that important. This does
not excuse the Grievant's misconduct, but must be considered.
6. Length of service is
generally a valid consideration in assessing the penalty of discharge. [N. 3]
The Grievant's length of service was approximately two years. His short term of
employment and his unacceptable record of discipline weigh heavily against him.
Nonetheless, after careful consideration of the
foregoing, as well as the entire evidentiary record, the Arbitrator has
concluded that the weight of the evidence is insufficient to meet the
contractual standard of just cause to discharge and mitigation of the penalty
is required. Accordingly, a determination is made that the Grievant shall be
conditionally reinstated to his position as Correctional Officer II, without
back pay or benefits. The Arbitrator recognizes that this is a long
disciplinary lay-off , but under the record established, including the
Grievant's short length of service and the seriousness of his misconduct, no
back pay or benefits are warranted. The conditions of reinstatement are
set forth in the Award.
After careful consideration of all
evidence and argument, and for the reasons offered above, it is the decision of
the Arbitrator that:
There was not just cause for the
discharge of C__ from his employment as a Correctional Officer II.
Accordingly, the remedy is to conditionally reinstate C__
to his former position as a Correctional Officer II. The conditions under which
he is to be reinstated include his compliance with attendance requirements
regarding staff/safety meetings on a monthly basis, or at such other times as
directed by the Employer and the proper and timely completion of time sheets.
Failure to comply with either of those requirements shall be deemed a violation
of the conditions of his reinstatement and may be considered a basis for
termination. Additionally, the Grievant is to be credited with all seniority
which he had acquired prior to his discharge on or about November 15, 2000, and
the time off shall be deemed a disciplinary lay-off without back pay, benefits,
or seniority accrual from the period of time commencing with his discharge to
the date of reinstatement.
For purposes of resolving any dispute
that may arise over the implementation of this Award, the Arbitrator will
retain jurisdiction for 90 calendar days from this date.
1.
Evidence in Arbitration, Hill and Sinicropi, Second Edition, p. 40. (BNA
1990).
2.
How Arbitration Works, Volz and Goggin, Co-Editors, Fifth Edition, p. 905. (BNA
1998).
3.
Discipline and Discharge in Arbitration , Norman Brand, Editor-In-Chief, ABA
Section of Labor and Employment Law, p. 402. (BNA 1998).
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the February, 2002 issue.