Title: Anaconda-Deer Lodge County and
Police Protective Association Local 1
BEFORE THE ARBITRATOR
IN THE MATTER OF THE
ANACONDA-DEER LODGE COUNTY,
DEPARTMENT OF LAW ENFORCEMENT,
POLICE PROTECTIVE ASSOCIATION,
BPA CASE NO. 26-94
LOCAL NO. 1,
Jack H. Calhoun
September 30, 1994
FOR THE EMPLOYER:
FOR THE UNION:
Edward G. Beaudette
Timothy J. McKittrick
County Attorney McKittrick
Law Firm, P.C.
Anaconda-Deer Lodge County
P.O. Box 1184
800 S. Main Street
Great Falls, MT 59403
The employer, Anaconda-Deer Lodge County, Department of Law
Enforcement, and the union, the Police Protective Association, Local No. 1,
were parties to a collective bargaining agreement that set forth the terms and
conditions of employment for bargaining unit employees during the period of
time pertinent to the grievance at issue.
On March 28, 1994, Donna Miller was discharged from her position with
the employer. The discharge was
over a check she had received and cashed for jury duty service performed
November 17, 1993. On March 30,
1994, a grievance was filed under the terms of the agreement in effect at that
time. Failing to resolve the
matter at earlier steps in the grievance procedure, the issue was submitted to
arbitration. A hearing was held
on September 30, 1994, at which time the parties agreed the matter was
properly before the arbitrator. Post-hearing
briefs were filed.
The parties agreed at hearing that the issue is whether the employer
violated the collective bargaining agreement when it terminated/disciplined
Donna Miller, and if so, what is the appropriate remedy.
The following provisions of the parties' collective bargaining
agreement are relevant to the issue in dispute.
ARTICLE IV: NON-DISCRIMINATION
The Employer agrees not to discriminate
against any employee for his activity on behalf of, or membership in, the
Association. The Employer and the
Association agree that there shall be no discrimination against any employee
because of race, creed, sex, or religion.
The Employer may grant reasonable leaves
of absence to employees whenever required in the performance of duties as
"duly" authorized representatives of the Association.
It is recognized that employees
representing the Association for the purpose of negotiations and grievances
are acting on behalf of the Association and its members and not in their
capacity as employees of the Employer. However,
employees representing the Association in these activities shall be given
sufficient time during duty hours without loss of pay or other benefits, to
perform their duties. No more
than two (2) Association members will be released during duty hours to perform
Subject to the laws of the State of Montana, the Employer reserves the
right to hire, lay-off, promote, transfer, discharge for cause, maintain
discipline, require observation of the Employer's rules and regulations, and
maintain efficiency of employees, is the sole responsibility of the Employer,
provided that Association members shall not be discriminated against as such,
and the Employer shall not exercise these rights in violation of the
provisions of this Agreement. In
addition, the Employer has the exclusive duty and right to manage its affairs,
direct the working forces, schedule the work, and all of the rights granted to
the Employer under State Law. Neither
the Association nor the Employer shall discriminate against its employees or
applicants for employment on the basis of color, race, sex, creed, age, or
Association affiliation. The
foregoing enumeration of the Employer's Management Rights shall not be deemed
to exclude other functions not specifically set forth.
The retention of these rights does not
preclude any employee from filing a grievance.
Each employee of the state or any
political subdivision thereof who is under proper summons as a juror or
witness shall be granted leave of absence with pay.
Such employee(s) shall collect all fees and allowances payable as a
result of the service and forward the fees to the appropriate accounting
office of the Employer. Such fees
shall be applied against the amount due the employee from the Employer.
However, if an employee elects to charge his juror time or witness time
off against his annual vacation leave, he shall not be required to remit his
fees to the Employer. In no
instance is an employee required to remit to the Employer any expense or
mileage allowance paid him by the Court.
The Employer may request the Court to
excuse his employees from jury duty if they are needed for the proper
operation of the department.
Employees selected by the Association to act as Association
Representatives shall be known as "Stewards."
The names of four (4) employees selected as Stewards and the names of
other Association Representatives who may represent employees shall be
certified in writing to the Employer by the local Association and the
individuals so certified shall constitute the Association Grievance Committee.
A Grievance Committee Chairman shall be selected by the Committee.
No employee at any stage of the grievance procedure shall be required
to meet with any Administrator without Association representation.
A grievance shall mean a complaint by an employee that there has been a
violation, misinterpretation, or misapplication of the provisions of this
Agreement or of established grievance procedure by the Employer.
Departure from the established grievance procedure by the Employer
shall cause the grievance to proceed to the immediately following step.
Departure from the established procedure by the Association shall, at
other than the first step, cause the grievance to proceed to the immediately
following step. Departure from
the established procedure by the Association at the first step shall nullify
Any action taken by the Employer or any action of the Employer which
causes an employee(s) harm, either financially, physically, or with respect to
employment status, that is subsequently found to have been inappropriate,
shall be promptly corrected and the employee(s) shall be furnished retroactive
relief to the extent of the injury suffered.
The parties herein agree that informal discussion can be beneficial and
is encouraged; however, if the absence of or inability of such discussion to
resolve a problem exists, any grievance or dispute which may arise between the
parties, including the application, meaning, or interpretation of this
Agreement shall be settled in the following manner:
Any employee who is a member of the bargaining unit who feels his
rights have been violated shall report the fact in writing to a Steward within
ten (10) working days of the aggrieved [sic].
The Grievance Committee shall meet within five (5) working days from
the receipt of the grievance. At
least three (3) members must be present to form a quorum.
The Grievance Committee will decide if the grievance is justified or
If the Grievance Committee decides the employee's grievance is not
justified, the Chairman shall notify the employee to that effect.
The employee may appeal to the Association as a whole within ten (10)
working days, and the Association membership will decide the justification of
the grievance at the next scheduled meeting by referendum vote.
Should they decide the grievance is justified, the Grievance Committee
shall proceed with the grievance procedure.
If the Grievance Committee decides the grievance is justified with or
without the presence of the aggrieved employee, they shall take up the
grievance or dispute with the employee's department head, or appropriate
authority, within three (3) working days.
The department head, or appropriate
authority, shall attempt to adjust the matter and shall respond in writing to
the Grievance Committee within three (3) working days.
Should the reply of the department head, or appropriate authority, be
unsatisfactory, the Grievance Committee shall, within five (5) working days
from the due date of the response from the department head, take up the matter
with the City-County Manager. The
Manager or his/her designee will discuss the facts of the case with the
Grievance Committee and shall submit his decision in writing to the Grievance
Committee within ten (10) working days.
Should the reply of the City-County Manager be unsatisfactory, the
Grievance Committee shall, within ten (10) working days from the date of the
City-County Manager's response, appeal such decision to the Commissioners.
The Commissioners or their designee and the union will meet within ten
(10) days to schedule an appeal hearing.
The Commissioners will render their decision in writing to the
Grievance Committee after their next regularly scheduled meeting.
If the reply of the Commissioners is unsatisfactory, the Association
shall notify the Commissioners within three (3) days of its decision to submit
this controversy to arbitration. Thereupon,
within ten (10) working days after such written notice is delivered to the
Manger, the Manger and the Association shall jointly request the Board of
Personnel Appeals, Department of Labor and Industry, State of Montana, to
supply both parties with an identical list of names and addresses of five (5)
persons who have indicated a desire to provide service as arbiters.
The Association and the Manager shall,
within three (3) working days of the receipt of such lists, meet and by
alternately striking names from the list select the arbiter by requesting the
services of the last name remaining on the list.
The arbiter shall be requested to render
a decision within thirty (30) days and such decision shall be final and
binding upon both parties. The
arbiter shall have no authority to alter in any way the terms of this
Agreement. The arbiter shall
notify both parties of his/her decision in writing.
Expenses for the arbiter's services shall be paid by the losing party.
The arbiter shall be advised that in the event of a split decision on
the grievance, that the arbiter shall divide the cost of the arbitration
between the Employer and the employee. The
arbiter shall be expressly informed of this provision.
It is understood by both parties to this Agreement that an appointed
authority may replace any titled position mentioned in the above-stated
grievance procedure, providing that such appointee shall have full authority
to act in the capacity of the person(s) being replaced.
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
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
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 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
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 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.
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
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
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
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
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
Dated this 2nd day of December 1994.
Jack H. Calhoun