Holding: The discharge
of a correctional officer for violating a work rule prohibiting forming a romantic
relationship with a prisoner is reduced to a written reprimand, where their
relationship had started 14 years prior to his incarceration. She violated work
rules on notifying her employer of the relationship and being involved in
three-way phone calls with the inmate.
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In re
GEO Group, Inc.
The Wackenhut Corporation
Thornton,
Pa.
and
Delaware County Prison Employees Independent
Union
120
LA (BNA) 729
FMCS
Case No. 04/05495
November
5, 2004
Phyllis Almenoff, Arbitrator,
selected by parties through procedures of the Federal Mediation and
Conciliation Service
Statement
of the Issues
The Employer filed a Motion to Dismiss the arbitration without a hearing arguing that the
matter is non-arbitrable due to the Union’s failure to pursue arbitration in a
timely fashion. The Union responded and requested that the Motion to Dismiss be
denied for various reasons. In the alternative, the Union requested a hearing
to compel the production of evidence and an opportunity to rebut.
After carefully reviewing both
submissions and finding facts in dispute, the Motion to Dismiss without a
hearing was denied. A single hearing on both the arbitrability issue as well as
the merits of the case was scheduled to maximize the use of hearing time.
Should the Arbitrator determine that the dispute is not arbitrable,
the merits of the case will not be decided.
The parties stipulated to the
following issues:
1. Is
the Grievance arbitrable?
2. Did the Employer have just
cause to terminate the Grievant’s employment? If not, what shall be the
remedy?
[Issue
1 discussion omitted]
Issue 2—Termination of
Officer W__
Background
Wackenhut Corrections Corporation
(Employer) recognizes the Delaware County Prison Officers Independent Union
(DCPEIU), as the exclusive collective bargaining representative for all
full-time and regular part time Correctional Officers employed by the Company
at the George W. Hill Correctional Facility, Thornton, PA. (Union)
The June 11, 2003 through June
10, 2006 Collective Bargaining Agreement (CBA) covered the Grievant for the
relevant period of this grievance. The grieving employee, Officer W__, was
empowered to process her grievance through the grievance procedure, including
arbitration, in accordance with the Agreement.
This grievance arose when the
Employer terminated the Grievant on September 23, 2003 for maintaining an
improper relationship with an inmate and failing to report it. Officer W__ has
been employed at the prison for five years. On August 16, 2003, B__, a man with
whom the Grievant was romantically involved for fourteen years was incarcerated
at the Correction Center. They were living together, are currently engaged to
be married and have a ten-year old son. Officer W__ does not work in the
cell-block to which inmate B__ is assigned and they have no contact with each
other at the Correctional Facility.
A fight between B__ and another
inmate took place at the George W. Hill Correctional Facility on August 16,
2003. Officer W__ reported to Captain BB that her fiancé (B__) was involved in
the fight. The Grievant was placed on Administrative Leave pending the outcome
of an official investigation. Following the investigation, Officer W__ was
discharged from employment.
Position
of the Parties
Position of the Employer
The Employer contends that it
terminated Officer W__ for just cause and asserted the following
arguments:
Officer W__ violated the Collective Bargaining Agreement and the
Employee Handbook by maintaining an improper relationship with an inmate. She
failed to report the relationship to the Facility Administrator. Only after a
fight between B__ and another inmate on August 23, 2003 did the Grievant
indicate that her boyfriend was incarcerated at the Facility. Telephone calls made by inmates are monitored and
recorded. There is a sign above each telephone at the Delaware County Prison
stating this information. During the investigation of the incident, the
Lieutenant reviewed telephone records and calls made by B__. Lieutenant MG
discovered that Officer W__ was the recipient of three telephone calls from B__
which were picked up by her answering machine. She did not report these
telephone calls to her supervisor. In addition, Officer W__ participated in
three-way telephone calls made to B__’s mother at
which time she conversed with him. On September 15, Lieutenant MG interviewed
the Grievant, inmate B__, and Captain BB. A few days later, he interviewed the
other inmate who was involved in the altercation with B__ and concluded that
the Grievant was the reason for the fight. The Employer argued that the
Grievant showed favoritism or partiality toward the offender and was
financially involved with him because she paid for the telephone calls. They
also asserted that her credibility at the Facility was affected by her
relationship with the inmate. Officer W__ was terminated on September 23,
2002.
Position of the Union
The Union contends that the Employer did not have just cause to
discharge the Grievant and she should be reinstated to her position and made
whole. They argued that the CBA had not been violated. Article D5 forbids
forming a romantic, sexual, business or other unauthorized relationship with
inmates and may subject the employee to immediate suspension or discharge.
Officer W__ did not “form a relationship” but had actually been romantically
involved with B__ for fourteen years. They live together, are engaged to be
married and have a ten-year old son together. Officer W__ testified that prior
to the altercation between B__ and another inmate, she informed her supervisor,
Captain B that her boyfriend was incarcerated in the Correctional Facility.
When asked to put this in writing, she did so. B__ was not housed in the
correctional facility block to which Officer W__ was assigned. There was no contact between them at the Facility. At the
investigation Officer W__ admitted that telephone calls had been made to her
house by B__ and recorded on her answering machine.
Findings
The issue to be determined in
this arbitration is whether the Employer had just cause to discharge the
Grievant under the terms of the Collective Bargaining Agreement, based on all
of the facts and testimony in evidence. The CBA provides clear direction to the
arbitrator and states the following in Article 12:
In rendering a decision, the
arbitrator shall be confined to the meaning and interpretation of the
particular provision of this Agreement that gave rise to the grievance.
Let us examine the “Just Cause”
provision of Article 14 of the Contract to determine whether the Company was
justified in terminating Officer W__’s employment.
No employee shall be
disciplined or discharged without just cause. The Company shall notify the
Union in writing, that the services of an employee are no longer desirable, and
that he has been disciplined or discharged.
The Grievant is accused of
violating Article 14 D5 which states:
B. An employee who engages
in or actively conspires to engage in the following activities,
may be subject to immediate suspension or discharge:
5. Forming a romantic,
sexual, business or other unauthorized relationship with inmates.
The testimony and evidence
clearly demonstrate that the Grievant did not “form” a romantic relationship
with B__. The relationship has existed for fourteen years and produced a son.
They are an engaged couple, live together and plan to wed. Under
cross-examination, Captain BB testified that he was aware that B__ was the
Grievant’s boyfriend because she visited him several years ago when he was
incarcerated at another correctional facility.
The Arbitrator finds that
Article 14 D5 which “may subject an employee to immediate suspension or
discharge” is not applicable to this relationship.
Let us consider whether the
Grievant violated sections of the Employee Handbook which would make her
subject to Progressive Discipline. Article 14 states:
A. Except where otherwise
provided in this Agreement, where appropriate, the Company will adhere to
concepts of Progressive Discipline, which it defines as the corrective process
of applying sanctions short of discharge or suspension when conduct is a less
serious nature. The nature of discipline should be appropriate to the conduct
and need not begin with the least serious disciplinary action. Acceptance of
the principle of progressive discipline does not limit the Company’s authority
to discharge for serious offenses that cannot be condoner.
The Employer contends that the
Grievant violated the following sections of the Employee Handbook.
Standards of Conduct
WCC expects all employees
to conduct themselves with maturity and self-discipline in the execution of
their responsibilities. It is essential that all employees realize that this
policy is intended as a guideline to reinforce this expected behavior and to provide
a basis for consistent action in the event that behavior falls short of the
expectations.
Employees of WCC shall:
3. Conduct themselves in a manner that creates and maintains respect
for themselves as well as WCC. In all their activities, personal and
professional, they should always be mindful of the high standards of behavior
expected of them.
4. Avoid any action(s)
which might result in, or create the appearance of, affecting adversely the
confidence of the public in the integrity of the facility.
Lt. MG testified that the
Grievant’s conduct created the appearance of, and adversely affected the
confidence of the public and the integrity of the Facility. When questioned
under cross-examination, Lt. MG was unable to explain how her actions
diminished confidence in her ability to do her job.
Personal Conduct
* * *
8. Employees shall not show
favoritism or partiality toward an offender, nor shall employees become
emotionally, physically or financially involved with offenders or ex-offenders
in such a way as to affect performance on the job or the safety and security of
the facility.
Lt. GB testified that the
Grievant showed favoritism or partiality towards B__ by speaking with him on
the telephone at his mother’s house by way of the three way calling system.
However, his explanation as to how her performance on the job or the safety and
security of the facility were compromised was not convincing.
9. Employees shall not
offer or give to an offender or ex-offender any article, favor or service in
the performance of the employee’s duties. Neither shall employees accept any
gift, personal service or favors from offenders, family members or
ex-offenders.
The Employer alleged that
Officer W__ planned to pay for the telephone calls which would constitute a
gift, personal service or favor. The Grievant denied that she said that she
planned to pay for the calls. There was no corroborating testimony or evidence.
In any event, she did not pay for the calls. This charge must be dismissed.
10. Employees who become
involved in a set of circumstances as described above (or any situation that
gives the appearance of improper involvement with offenders, family members or
ex-offenders) should consult with the Facility Administrator. The employee will
then be instructed as to the appropriate course of action.
Captain BB testified that on
August 23, after a fight between B__ and another inmate, Officer W__ went to
the Shift Commander’s Office and stated that her boyfriend was involved in a
fight. The Captain told her to write an incident report concerning the relationship.
On cross-examination, Captain BB indicated that he had known of their
relationship from a previous incarceration of B__ eight or nine years ago.
However, Lt. MG testified that prior to the fight, he
was unaware that B__ was Officer W__’s fiancé. The Grievant testified that she
had told Captain BB about the relationship prior to the altercation and that
she wrote it up as instructed. She testified further that she was not
instructed to speak to the Warden concerning the appropriate course of action.
It is difficult to determine the credibility of the conflicting testimony on
this issue without corroborating evidence. However, her supervisor was aware of
the relationship and had been for many years. Nonetheless, the Warden was not
notified of the relationship as required. The Grievant did not consult with him
to receive advice on the appropriate course of action. In addition the
telephone calls from the inmate and her conversations with him were not
reported to her supervisor.
The arbitrator finds that there
have been some violations of the Standards of Conduct. First, Officer W__
should have informed her supervisors about the telephone calls to her home.
Second, Officer W__ should not have been involved in the three-way calls with
her fiancé. Lastly, Officer W__ should have notified the Warden of the
relationship as soon as B__ was incarcerated and should have sought instruction
as to the appropriate course of action.
The Collective Bargaining
Agreement requires “just cause” for the Company to discipline or discharge an
employee
Discharge is recognized to be
the extreme industrial penalty since the employee’s job, seniority and other
contractual benefits, and reputation are at stake. Because of the seriousness
of this penalty, the burden generally is held to be on the employer to prove
guilt of wrongdoing, and probably always so where the agreement requires “just
cause” for discharge.1
Therefore, it is appropriate for
an arbitrator to require clear and convincing evidence. As explained by
Arbitrator Richman:
The imposition of a lesser
burden than clear and convincing proof fails to give consideration to the harsh
effect of summary discharge upon the employee in terms of future employment
2
The just cause standard has been
defined and incorporates seven tests.
1. Did the company give the
employee forewarning or foreknowledge of the possible or probable disciplinary
consequences of the employee’s conduct?
2. Was the company’s rule
or managerial order reasonably related to (a) the orderly, efficient, and safe
operation of the company’s business and (b) the performance that the company
might properly expect of the employee?
3. Did the company, before
administering discipline to an employee, make an effort to discover whether the
employee did in fact violate or disobey a rule or order of management?
4. Was the employer’s
investigation conducted fairly and objectively?
5. At the investigation,
did the “judge” obtain substantial evidence or proof that the employee was
guilty as charged?
6. Has the company applied
its rules, orders and penalties evenhandedly and without discrimination to all
employees?
7. Was the degree of
discipline administered by the company in a particular case reasonably related
to (a) the seriousness of the proven offense and (b) the record of the employee
in his service with the company? 3
If one or more of these
questions is answered in the negative, then normally the just cause requirement
has not been met.4
The “just cause” standard is a
broad and elastic concept, involving a balance of interests and notions of
fundamental fairness. The applicable standard is one of reasonableness:
... whether a
reasonable person taking into account all relevant circumstances would find
sufficient justification in the conduct of the employee to warrant discharge
(or discipline.) 5
Although some of the tests to
establish the “just cause” standard have been met, others have not. Certainly,
the degree of discipline administered by the company was not reasonably related
to the seriousness of the offense. In considering discipline or discharge, the past record and length of
service are given consideration. Officer W__ has worked for the Employer for
over five years. Disciplinary action must be premised upon reasonable, just and
sufficient cause. The record does not establish behavior, or work performance
issues that rise to the level that compels discharge of an employee who has
provided five years of satisfactory service.
In its post-hearing brief, the
Employer provided a previously upheld arbitration decision in a discharge case
at the prison. In that case, the Correction Officer was video taped using
excessive force on an inmate he was responsible for supervising. In this case,
Officer W__ was discharged for a long-standing romantic involvement with a man
who became an inmate in another cell-block.
The facts and testimony in evidence compel a finding that the Company
did not have just cause to discharge the Grievant. The discipline imposed is
not in compliance with Article 14 of the Contract. The Grievance is sustained.
However, Officer W__ did violate several regulations in the Employee Handbook
and a written reprimand regarding these violations should be placed in her file
concerning these violations. First, Officer W__ should have informed her
supervisors about the telephone calls to her home. Second, Officer W__ should
not have been involved in the three-way calls with her fiancé. Lastly, Officer
W__ should have notified the Warden of the relationship as soon as B__ was
incarcerated and should have sought instruction as to the appropriate course of
action.
Award
Based on the evidence and
testimony entered at the hearing, the Employee’s grievance is sustained. The
discipline imposed is not in compliance with Article 14 of the Labor Agreement.
The Employer did not have just cause to terminate Officer W__. The remedy is as
follows:
1. The Grievance is
arbitrable.
2. The Company shall immediately reinstate Officer W__ to
her position with back pay, full benefits and full seniority as to the date of
her termination, less any and all compensation Officer W__ received from any
other source, including unemployment compensation.
3. Officer W__ is to receive her
backpay within thirty (30) days of the receipt of this award.
4. I will retain jurisdiction
over any disputes between the parties for the sole purpose of deciding any
unresolved dispute over the calculation of back pay as well as any other
dispute that may arise from this Award for a period of sixty days from this
date.
5. A written reprimand shall be placed in Officer W__’s file
concerning the three violations of the Standards of Conduct detailed in the
body of the Decision and Award.
Notes
1 Elkouri and
Elkouri, How Arbitration Works, 905 (5th Ed. 1987).
2 General
Telephone Company of California, 73 LA (BNA) 531, 533 (Richman, 1979).
3 Enterprise
Wire Co., 46 LA (BNA) 359, 363-4 (1966).
4 Enterprise
Wire Co., 46 LA (BNA) 359, 362 (1966).
5 RCA Communications, Inc., 29
LA (BNA) 567, 571 (Harris, 1961) See also Riley Stoker Corp., 7 LA (BNA) 764,
767 (Platt, 1947).