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Title: Anaconda-Deer Lodge County and Police Protective Association Local 1
Date: December 2, 1994
Arbitrator: Jack H. Calhoun
Citation: 1994 NAC 101

STATEMENT OF FACTS

            The grievant, Donna Miller, had worked for the employer for nine years prior to her discharge.  She started in 1985 as a part-time employee.  For the last two years she worked as full-time dispatcher and civil clerk.  She had no prior discipline on her record.  In her capacity as civil clerk she served writs of execution and at times handled sums of money amounting to as much as $2,000-3,000 each month.  An audit performed on her office after her termination showed nothing out of order, no money was missing.

            Chief Connors was the grievant's immediate supervisor and the person who hired her when she fist began working for the employer.  The grievant was subpoenaed to appear as a juror on November 17, 1993, in a case pending before the district court.  She informed Connors of the subpoena and he authorized her to attend.  November 17 was a scheduled work day for the grievant.

            When she arrived in the jury room the clerk of court asked the grievant and other prospective jurors to sign blank claim forms so they could be paid for their services.  The grievant informed the clerk of court that it was not necessary that she sign the claim form because she was on duty and would receive her regular pay.  The clerk of court told the grievant it was nonetheless necessary that she sign the blank claim form because the judge had to know who had honored the subpoena to appear for jury duty.  The grievant then signed the form; however, she did not sign it with the intention or expectation of receiving money from the county.

            The grievant was not selected to sit on the jury.  The whole process took about 25 minutes and the grievant returned to work when it was over.

            Previously, in 1989, the grievant had been selected and served on a jury.  She signed a blank claim form and told the clerk of court she should only be paid for one day of the five-day trial because she would be receiving regular pay for the other four days.  She received payment in the amount of $39.40 within two to three weeks of the trial.  As a result of that experience, the grievant came to believe that when she received her regular pay while serving on a jury she would not receive a check from the county for jury duty.

            Chief Connors made a note in his records that the grievant served on jury duty on November 17.  In December he checked with county officials who informed him that the grievant had not been paid for jury duty.  It was later revealed that the claims processing procedure had broken down, the clerk of court failed to forward the claim forms to the clerk and recorder's office for processing.

            In January Connors checked again to see if the grievant had been paid for jury duty.  He found out a check had been issued.  In March he checked again and was told the grievant had received a check for the November 17 jury duty and had cashed it on January 25.  At no time during his efforts to determine the status of the grievant's jury duty pay did chief Connors talk to the grievant about it or ask her questions about whether she had received payment.

            On January 20, 1994, the grievant received a check in the amount of $13.68 from the county.  The check was green in color and had nothing on it or its stub to indicate it was for jury duty.  When she received it, the grievant thought it was a check to correct a miscalculation she may have made on a claim form she had turned in several months earlier for expenses related to education she had pursued.  The green color of the check reinformed that belief because the other education-related reimbursement checks had also been of the same color.  She thought she had made a mistake on her previously submitted claim form for which she had received advance payment, and that the auditor's office had caught the mistake, corrected it, and sent her a check for the difference.  She cashed the check without thinking more about it.

            No communication was had between Connors and the grievant over the jury duty pay until March 28 when he called her into his office and handed her a letter of termination.  She hurriedly read through the two-page letter, surmised that it had to do with jury duty, and attempted to talk to him about the matter.  He refused to talk to her.

            The letter of termination recited the events leading up to the dismissal and concluded that the grievant had committed theft and had breached county policies and the collective bargaining agreement.  The amount she was considered to have stolen was $12.00.  The letter acknowledged she was entitled to $1.68 in mileage allowance.

            After she cleared out her office, the grievant and another bargaining unit member went to the office of the chief executive, Cheryl Beatty, and talked to her about the termination.  The chief executive mistakenly understood that county personnel policies were applicable to the situation and consequently gave erroneous advice to the grievant regarding how to appeal the decision to terminate her.

            Once the chief executive discovered her mistake, she assumed the correct posture and let the matter be pursued under the terms of the grievance procedure in the collective bargaining agreement.  The chief executive had co-signed the original letter of termination along with chief Connors.

            When she signed the letter of termination on March 28, 1994, the chief executive did so because she believe Connors could discharge the grievant regardless of whether she signed it.  By signing it she believed she would keep her office in the process of reviewing the case.  She had no knowledge of the facts leading up to the grievant's discharge, except for those she was given by Connors immediately before she signed the letter of termination.  She had conducted no investigation prior to signing the letter, but rather accepted Connors' recommendation.

            Later, when chief executive Beatty talked to the grievant and the other union member, she told them that under the procedure set forth in the personnel manual the grievant could consider her dismissal as a "mini vacation."  In other words, the grievant could expect to be reinstated.  The manual provides for progressive discipline beginning with an oral warning, a written reprimand, suspension, and finally demotion and dismissal.

            On March 30, 1994, the grievant filed her grievance under the terms of the collective bargaining agreement.  She alleged no informal discussion with her was offered prior to her dismissal, she was not made aware that the check was for jury duty pay, and she was told the claim she signed was to record her presence for jury duty.

            The grievance was denied at step one by chief Connors.  At step two, chief executive Beatty also denied it.  At step three the county commissioners decided that the penalty should be reduced to a suspension without pay from March 28, 1994, through May 20, 1994, thereafter, they recommended she be reinstated to her position effective May 23, 1994.  The grievant rejected the commissioners' decision.  She did not report to work on May 23.

            At the same time that the grievant appeared for jury duty, November 17, 1993, two other county employees also appeared.  Like the grievant, they were asked to sign the blank claim forms and they did so.  One of the two employees took vacation pay and was, therefore, entitled to keep her jury duty pay.  The other employee received his check in the mail, took it to the county treasurer's office, and returned it in full.  He did so because a fellow worker had told him about the jury duty payment process and his obligation to return the money he received.

            Another employee of chief Connors', John Roche, served on jury duty.  In that instance, Connors voluntarily informed Roche that he had to turn back to the county any money he received for jury duty.

            The grievant returned $12.00 to the county sometime after her termination.  Since her termination the county has revised the method of processing claims so that, among other things, checks now show what service was rendered for the amount received.  The old system did not have the capability of doing that.  The county did not have a code manual available to employees to tell them what the code numbers on the checks issued under the old system meant.

            Travel and expense checks issued by the county are the same color, green, as jury duty checks.  Both are issued on the general fund, as is noted on the checks.

            Subsequent to her termination the grievant was again called for jury duty.  On May 25, 1994, when she received a check from the county the stub had the notation "Jury Duty" printed on it.

            Since the grievant's termination, the clerk of court has changed the procedure she uses when county employees are called to serve jury duty.  Employees are now asked to make a specific election, in writing, of whether they want to take vacation time and keep their jury duty pay or serve on county time and not accept pay for jury duty.

            The grievant was a union activist and served in various capacities, including negotiator and steward.  She was also a supporter of chief Connors' opponent in the last election.

                        POSITIONS OF THE PARTIES

The Employer

            The employer contends that the terms of the collective bargaining agreement must be strictly construed against the grievant.  She must be presumed to have knowledge of the terms of the agreement since she was a member of the negotiating committee and a shop steward.

            Because of her position, which entailed the handling of money, even the appearance of dishonesty is to be avoided.  Public confidence in the agency for which she worked could be undermined.  The necessity of honesty and truthfulness on the part of law enforcement officers is basic, and severe punishment for breaches thereof is justified and widely recognized.

            It strains the limits of credibility to believe the grievant, an employee who was also a shop steward, would assume she was entitled to keep money for which she had no reason to believe she was entitled.  An employee in her position, which entailed handling large sums of money, should be absolutely scrupulous in handling money from the employer.  Although the circumstances under which she received the money were unusual, that fact underscores the responsibility she had to inquire as to why she received it.

            The employer maintains that both the termination and suspension are appropriate under the facts of the case.  Keeping the jury duty pay without inquiring as to its origin or purpose constituted theft and dishonesty on the part of the grievant.  Summary discharge for theft is appropriate, and it is a well-established principle of arbitration law.  By dismissing an employee for theft, and employer makes clear that such conduct will not be tolerated.  Although it is unclear why the county commissioners changed the grievant's penalty from termination to a suspension without pay, it is clear that the agreement was breached and a significant disciplinary action was warranted.  There was ample just cause to impose the discipline upon the grievant.

            The actual improper conduct of the grievant, which was the basis for the discipline imposed, should be the focus here.  The grievant alleged she was discriminated against because of her political and union activities; however, chief Connors' testimony clearly rebutted that allegation.  He testified that the charges he made were legitimate management decisions applied equally to all members of the department.  The basis for the discipline was the grievant's breach of the terms of the agreement.  All arguments regarding ulterior motives are without merit.

The Union

            The union contends that the grievant appealed the county commissioners' decision because it did not give her back pay, did not address benefits and seniority, did not expunge her record, and did not clear her name.  At no time after the commissioners' decision was issued did anyone offer to reinstate the grievant.

            The quantum of proof required to sustain an accusation of an offense involving an element of moral turpitude or criminal intent is proof beyond a reasonable doubt.  The seriousness of such accusations, such as dishonesty and fraud, carry with them the penalty of a first-offense discharge.  It is necessary for management to be able to establish a firm position against dishonesty, but at the same time it is necessary to protect employees from unjust actions by the employer.

            Just cause requires that employees be informed of rules, the infraction of which may result in suspension or discharge.  The employer must establish that the grievant had actual knowledge of the rule or policy that she is accused of violating.

            The grievant knew the contract required employees to return money received for jury duty if they were receiving their regular pay from the county while serving on jury duty; however, she did not know that the check she received in the mail was for her jury duty service.  She thought the check she received was for travel expenses to go to school.  She believed she was entitled to the money.  No one told the grievant she would be terminated or disciplined for cashing the check.  Despite his inquiries to other county offices as to whether the grievant had received the check for jury duty, he never told the grievant to return the money when she received it or she would be terminated or otherwise disciplined.

            Any rule related to the returning of money for jury duty service is not reasonably related to the efficient operation of the police department because funds for jury duty service are not reflected on the police department payroll.  Such money comes from the general fund.

            The employer made no effort before discharging the grievant to determine whether she was guilty as charged.  Chief Connors did not talk to her before terminating her employment, nor did he talk to any of the various people involved in the claims process or any of the grievant's fellow jurors.  Cheryl Beatty failed to talk to anyone other than Connors prior to signing the termination letter.  The efforts by Connors more closely resemble entrapment than investigation.  Failure to make a reasonable inquiry or investigation before assessing a penalty is a factor in determining whether an employer had just cause to impose discipline.

            Since no investigation was done prior to the termination of the grievant, it cannot be said that the investigation was conducted fairly and objectively.  The action taken against the grievant by chief Connors was done solely to punish her for supporting his opponent in the election.

            Substantial evidence of an employee's guilt must be obtained.  In order to be guilty of theft, the accused must have intended to take the money without any authority.  There was no evidence to show that the grievant did so.

            The rules were not applied fairly and without discrimination in this case.  The chief punished the grievant for supporting his opponent in the election.  The clerk of court handled past cases of employee juror pay differently than she handled the instant case.  In the past cases, employees were not saddled with the burden of returning money to the county.  The grievant was not afforded the opportunity to return the money prior to her termination.

            The degree of discipline imposed in the instant case is not reasonably related to the seriousness of the grievant's offense and her past record as an employee.  The county commissioners determined she should not have been terminated but should have been suspended; however, suspension is totally unwarranted.  The grievant did not commit theft.  The grievant was a nine-year employee of the county with an unblemished record.  Prior to her discharge she had never been warned, disciplined, suspended, or terminated.  The 45-day suspension without pay would have a devastating effect on her reputation.

DISCUSSION

            The question raised by the grievance is whether the employer violated the collective bargaining agreement when it terminated the grievant, and later reduced the termination to a suspension without pay.  The agreement contains a grievance provision that proscribes employer conduct that causes harm to an employee.  It also provides that such conduct shall be corrected and the employee shall be given retroactive relief.  Essentially, the issue is whether the employer had just cause to ultimately suspend the grievant for 45 days without pay because she cashed a check sent to her for jury duty service.

            Although I do not agree with the union's argument that proof beyond a reasonable doubt is required in this case, proof that is clear and convincing is required.  A mere preponderance of the evidence should not suffice in cases such as this where the grievant has been accused of a criminal act and a serious social stigma can reasonably be expected to result.  Under that standard of proof, the employer failed to carry its burden.  The evidence on the record does not support the employer's contention that just cause existed for the punishment it imposed on the grievant.

            Even if the terms of the agreement is strictly construed, as the employer argues, the fact remains that the grievant did not know she had received a check for jury duty service.  She had every reason to believe she would not receive a check for such service because she had told the clerk of court she did not need to sign a claim form and only did so because the clerk told her it was for a different purpose.  Moreover, the grievant believed she was in receipt of a check that was meant to correct a mistake she might have made on a travel claim form she had submitted several months earlier.

            All of the controversy could have been avoided if the grievant had been afforded an opportunity to explain her actions before the positions of the two management officials became polarized.  It is a basic arbitration principle that an employer should make an investigation before a discharge or other discipline is imposed. 

Artco-Bell Corp., 61 LA 773 (Springfield, 1973).  Disciplinary actions must conform to procedural fairness, which requires a full and fair investigation of the facts and circumstances surrounding the employee conduct, including an opportunity for the employee, before the employer makes its decision, to offer any denials, explanations, or justifications that may be relevant.  United Tel. Co. of Florida, 61 LA 443 (Murphy 1973); Lockheed Corp., 83 CA 1018 (Taylor 1984).

            At the hearing the employer failed to prove that the grievant committed theft.  To prove theft it was necessary that the employer show clearly that the grievant took its goods without its consent with the intent to steal them.  There is no doubt, based on the evidence on the record, that the grievant did not intend to steal from the employer.  She had every reason to believe the check for $13.68 was to correct an error that had been made.  Not only was she not guilty of larceny, she was not even remiss in her obligation as an employee.  No one can seriously argue that an employee who receives a check thinking it is for a particular purpose is under a duty to check with the employer to make sure it actually is for that purpose.  There was nothing on the check to suggest if was for jury duty.  The grievant reasonably concluded it was to correct a previous mistake she had made on a travel claim form.  She was not expecting a check for jury duty because the clerk and recorder told her the signing of the blank form was for a purpose other than payment.  The grievant informed the clerk that she was not to be paid because she appeared for jury service on county time.

            While the employer's argument that honesty and truthfulness on the part of employees who work in the law enforcement area is sound, it would be unconscionable to permit undue discipline to be imposed on an employee who was altogether innocent of any wrongdoing.  That is especially so where the employee has a spotless record over a long period of time with the employer.

            The employer acknowledges in its argument that the circumstances under which the grievant received the check were unusual; however, the employer urges that as a reason why the grievant should have inquired as to why she received it.  There is no question that the circumstances were out of the ordinary as far as the processing of the claim is concerned, but the grievant believed she knew exactly what the check was for.  Moreover, she did not think she would be paid for the few minutes she spent in the jury room on November 17.

            Having decided that the grievant was not guilty of the misconduct for which she was ultimately suspended for 45 days without pay, I find it unnecessary to address the arguments offered by both parties regarding disparate treatment of the grievant because of her political and union activities.  Suffice it to say, the record falls short of showing clearly that any such treatment took place.

            In summary, I find that the employer failed to prove it had just cause to terminate the grievant, and later reduce the termination to suspension without pay.  The grievant was not guilty of the misconduct for which she was disciplined.

            The remedy in discharge cases where just cause is not proved is usually reinstatement with full restoration of seniority and benefits.  In the instant case, the county commissioners reduced the penalty imposed by chief Connors to a 45-day suspension without pay.  The commissioners' letter to the  union president dated May 19, 1994, states that the grievant was recommended to be reinstated to her position effective May 23, 1994.  The fact that she did not report to work must be considered in the back pay award.  She should not be paid or receive benefits for the period of time from May 23, 1994, until her reinstatement is carried out in accordance with this award.  The grievant was under a duty to report to work as recommended by the commissioners.  Her failure to report serves to mitigate the employer's back pay liability.  She could still have appealed the suspension, which I find to be without just cause.

            With respect to relief sought by the union, other than reinstatement and restoration of seniority and benefits, there is no basis for such relief.  There is no evidence on the record to support the extraordinary remedy sought by the union.  No argument was made at the hearing for anything other than the traditional make-whole order.  I am unable to conclude from the evidence on the record that the employer acted in such a dilatory or bad-faith manner as to justify a remedy beyond what I have awarded below.

AWARD

            The grievance is sustained.  The grievant shall be reinstated to her former position, with all benefits and rights she held at the time of her discharge on March 28, 1994.  Effective ten days from the date of this award, she shall be paid for the period of time she normally would have worked from March 28, 1994, until May 23, 1994.

            In accordance with the parties' collective bargaining agreement, expenses for arbitration services shall be paid by the employer, the losing party in this matter.

            Dated this 2nd day of December 1994.

                                                                        Jack H. Calhoun

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