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Arbitration Award
In re
Cuyahoga County
Sheriff
and
Ohio Patrolmen's Benevolent Association
117 LA (BNA) 1438
FMCS Case No. 01/(0913)-16089-6
November 8, 2002
Thomas R. Skulina, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service.
This dispute was brought as a “group” grievance under the Collective Bargaining Agreement (“CBA”). The employees affected are Correcting Officers employed by the County Sheriff. In 2001, there were nine hundred sixty disciplinary actions.
One such action involved a verbal altercation with a supervisor. The only witness was a nurse. She did not elect to be present at the pre-disciplinary conference.
In another case, an AWOL issue was involved. The defense involved the FMLA. The Benefits Coordinator was requested to attend the pre-disciplinary hearing but refused to do so.
The union seeks an interpretation of the CBA language regarding conduct of the pre-disciplinary hearing.
Does the “pre-discipline” provision of the CBA mandate that an accused employee may require the attendance of witnesses at the hearing?
Applicable Provisions of the CBA
Section 1. Employees covered by this Agreement shall not be disciplined or discharged except for just and proper cause. “Disciplinary action shall be initiated as soon as reasonably possible. An arbitrator deciding a discipline grievance must consider the timeliness of the Employer's decision to begin the disciplinary process”.
Section 2.—Pre-discipline. An Employee has the right to Union representation at investigatory interviews upon request if he/she has reasonable grounds to believe the interview may be used to support disciplinary action against him/her.
Prior to imposition of discipline involving a suspension without pay or removal, the Employer will provide the Employee and the Union with a written notice of the basis for the discipline (including the specifics of the alleged violation, copies of the documents and list of witnesses known at that time who may be issued to support the charges) and afford the employee the opportunity to respond. For any discipline greater than a suspension without pay for more than three (3) days, the Employer shall provide a pre-disciplinary hearing which will be conducted within five (5) days following notification to the Employee and Union.
The hearing shall be conducted by a neutral administrator selected from those administrators not directly in the chain of command of the Employee. The Employer shall elect the neutral administrator. At the pre-disciplinary hearing, the Employee shall have the right to be represented by the Union. The Employees shall be afforded the opportunity to offer an explanation of any alleged misconduct, to call witnesses, and to offer documentary evidence relevant to the charge. No tape recording of the hearing shall be made. The Employer representative recommending discipline shall be present at the hearing unless inappropriate or extenuating circumstances prevent a timely hearing. A report of said hearing shall be prepared by the neutral administrator.
The union takes the position that those under the Sheriff's command should be compelled to attend the pre-discipline meeting. They could be subject to cross examination.
Knowing what material witnesses say would assist the union in determining which cases to arbitrate. With an average of eighty cases a month, and discipline issues ranging from reprimand to termination, only a fraction of these cases could go to arbitration.
A witness at the arbitration may be asked about matters that occurred months ago as opposed to days earlier.
The right “to call witnesses” implies that all employees employed by the Sheriff must be made available at the initial hearing.
The union claims a federal constitutional right to question witnesses and accuser.
The employer has not followed the clear language of the CBA.
Correction Officers are given the opportunity to respond and present favorable facts at the disciplinary hearing. A union representative may be present. Prior to the hearing, written reports are prepared and made part of the file.
A neutral administrator hears the matter. The affected correction officer may present facts favorable to his or her side.
If discipline is recommended, a grievance may be filed which can end up in arbitration with due process requirements and the right to cross examine witnesses.
State legal opinions: Kennedy v. Maria Correctional Institution, 69 Ohio St.3d 20 (1994); Communication Workers of American v. The Ohio State University, 49 Ohio St.3d 1 (1990); AFSCME, AFL-CIO v. Lakewood City School District Board of Education, 68 Ohio St.3d 175 (1994) do not require discovery tools at the preliminary hearing stage.
The employer also cited Cleveland Board of Education v. Loudermill, 470 US 532 (1985) which limits the public employee to receive oral or written notice of the charge, an explanation of the employer's evidence and an opportunity to present his side of the story, “period”.
By reading the terms of the CBA with the law set out by the United States and Ohio Supreme Court, the group grievance should be denied.
The parties have presented arguments as to the interpretation each side contends the CBA language should be given.
Both parties also argue that each of their positions has a constitutional fiat.
In the arbitration process, language of the CBA is interpreted by an arbitrator. The arbitrator has the benefit of the language itself and any evidence the parties may offer as to the intent of the parties and whether there is a past practice issue. This case can be decided on that basis.
The evidence indicated a substantial docket of discipline cases. Nine hundred sixty cases in a year involve a lot of hearings.
The CBA (present and past) provides a pre-discipline process.
The employer must furnish copies of documents and known witnesses. The employee must be afforded the opportunity to respond.
Where discipline is greater than suspension without pay for more than three days, a hearing is conducted by a neutral within five days.
The employee may offer an explanation, “call witnesses” and offer documentary evidence. No tape recording of the hearing shall be made.
The pre-disciplinary hearing may involve written reports. No where does the CBA indicate that there is a subpoena right extended to the charged employee at this early stage inquiry.
There was evidence of CBA's in the present, as well as the CBA for 7/1/90 to 6/30/93, and for the next CBA through 1996.
In the earliest CBA presented, there were less specifics with respect to the conduct of the hearing. The neutral could tape record the hearing.
The next CBA, which has the same language as the present CBA, removed the tape recording option and added that an employee may call witnesses.
The CBA did not provide that the Sheriff was obligated to order unwilling witnesses under his command to attend the hearing.
Enough years have passed since the 1993 to 1996 CBA that the parties would have had ample opportunity to clarify or expand this right if that was the intention of the parties.
No change was made and from reading the CBA and hearing the evidence of the parties, I do not read a right to summon unwilling witnesses to the hearing.
Since both parties discussed the Constitution, it is appropriate that it be addressed here.
The landmark case involving public sector employees was decided by the United States Supreme Court in 1985, Cleveland Board of Education v. Loudermill, 470 U.S. 532.
Mr. Loudermill was a security officer for the Cleveland Board of Education. When he hired on, he filled out an application. There he was asked whether he had ever been convicted of a felony. He said no.
It turned out that he had a felony on his record.
He was discharged and appealed to the Cleveland Civil Service Commission. In those days, that was the appropriate forum.
A Civil Service Referee ruled in the employee's favor. His defense was that he did not realize this charge was a felony. He served no time and was on probation for six months. The Referee believed him.
When the full Commission heard the case, it overruled its Referee and sustained the discharge.
This matter worked its way up to the Supreme Court.
The case now stands for the proposition that due process is guaranteed by the Constitution where a property right (a public sector job) is affected. There a discharge. Due process in the holding by the majority requires a preliminary hearing.
The Court did not rule that the preliminary hearing definitely resolved the propriety of the discipline. Rather, the initial hearing was to decide whether there are reasonable grounds to believe that the charges are true and support the proposed action. The essential requirements of due process are notice and an opportunity to respond.
The property right is not granted by the Constitution. Statutes do that.
The Constitution comes into play over the due process requirement when a property right is eliminated or diminished.
The majority discussed other cases and stated that “In general, `something less' than a full evidentiary hearing is sufficient prior to adverse administrative action.”
Though the dissenters wanted more for the pre-disciplinary process, the majority rule is still before us.
Incidentally, the Cleveland Civil Service Commission, after the decision placed pre-disciplinary conferences in its rule. So too did numerous CBA's that were executed over the years.
The pre-disciplinary hearing that is afforded by the Sheriff in Cuyahoga County must past muster with the Loudermill case.
From the evidence and review of the language, I do not see that the Sheriff may be compelled to call in reluctant employees to be witnesses subject to cross examination in this preliminary hearing before a neutral (a sergeant under the Sheriff's command).
Therefore, the group grievance is denied.
The grievance is denied and costs shall be shared equally by the parties.
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