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Title: State of Oregon, Oregon State Correctional Institution and Oregon Public Employees Union
Date: September 6, 1995
Arbitrator: Luella E. Nelson
Citation: 1995 NAC 116 

IN ARBITRATION PROCEEDINGS

PURSUANT TO AGREEMENT BETWEEN THE PARTIES

 

In the Matter of a Controversy

                 between  

OREGON PUBLIC EMPLOYEES UNION,

                 and

 

STATE OF OREGON, OREGON STATE

CORRECTIONAL INSTITUTION.

 

RE: Grievance of David Schroeder, GS 00195

 

ARBITRATOR'S

OPINION AND AWARD

 

 

 

                                                                                            

       

This Arbitration arises pursuant to Agreement between OREGON PUBLIC EMPLOYEES UNION ("Union"), and STATE OF OREGON, OREGON STATE CORRECTIONAL INSTITUTION ("Employer"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on June 6 and 30, 1995, in Salem, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about August 2, 1995.

APPEARANCES:

On behalf of the Union: 

Charlene Sherwood, Esquire, 135 SW Ash, Suite 600, Portland, OR   97204 

On behalf of the Employer: 

Mark Hunt, Labor Relations Manager, Labor Relations Division, Department of Administrative Services, 155 Cottage Street NE, Salem, OR   97310-0314

 

              ISSUE

 

Whether or not the Employer violated Article 20 of the 1993-95 collective bargaining agreement when it reduced grievant's salary by 1 step for 2 months effective January 1, 1995.  If so, what is the appropri­ate remedy?

 

      RELEVANT SECTIONS OF AGREEMENT 

ARTICLE 20 - DISCIPLINE AND DISCHARGE

...

Section 1.  The principles of progressive discipline shall be used when appropriate.  Discipline shall include, but not be limited to:  written reprimands, denial of an annual performance pay increase; reduction in pay; demotion; suspension and dismissal.  Discipline shall be imposed only for just cause.

.... 

       PROCEDURE #40

...

III. Procedures

A. Code of Ethics:

1. In relationships with inmates/offenders, collegues [sic], other criminal justice agencies, and the public, Division employees and volunteers shall:

...

f. Conduct relationships with colleagues in such a manner so as to promote mutual respect and improvement of the quality of services provided;

....

 

             FACTS

Grievant has worked as a correctional officer at the Oregon State Correctional Institution ("OSCI"), a medium security male correctional facility, since August 1990.  On December 9, 1994, he received a one-step salary reduction for two months on the following charges:

On October 7, 1994, ... you called Sergeant Tennant "a rat" for reporting an accident.  You also stated to Sergeant Tennant that he "would get what was coming to him."

This behavior clearly violates Department of Corrections Procedure #40, Code of Ethics, Section A. 1. f.:  Conduct relationships with colleagues in such a manner so as to promote mutual respect and improvement of the quality of services provided.

On August 2, 1994, you were given a formal reprimand for making an intimidating and unprofessional statement.

....

The October 7 incident arose while Grievant was on hospital watch at Salem Memorial Hospital.  Inmates from both OSCI and the Oregon State Penitentiary ("OSP"), the maximum security cor­rec­tional facility, are hospitalized in one of two rooms at Salem Memorial.  Hospitalized inmates have one or more guards inside the room, and may also be guarded outside the room.  The guard station outside the hospital rooms has a telephone.

Guards are temporarily reassigned from correctional facilities as needed for hospital watch.  In addition, the Department of Correction has a separate Transportation Unit whose officers transport inmates to the hospital and stand guard.  Unlike OSCI and OSP staff, Transportation Unit officers are armed.  Armed guards are allowed only outside the hospital rooms.

Each inmate hospital bed has a television.  A daily $3 fee is collected each afternoon to turn on the televisions.  Post Orders for both OSCI and OSP pro­hib­it guards from, inter alia, paying for the tele­vi­sion.  Nevertheless, both OSCI and OSP officers on hospital watch have contributed to a common fund to pay for the television.  Grievant testified he was told by a senior corporal to do so when he first began to pull hospital watch duty.  Until the date of this incident, OSP officers kept a coffee can in the area with a sign indicating it was for contributions toward inmate television.  Transportation Unit Sergeant William Tennant testified he noticed the OSP coffee can for the first time that day, and threw it away.

On October 7, Grievant arrived at the hospital shortly before 3 p.m.  Tennant was at the outer guard station augmenting the guard on a high-risk OSP inmate.  Shortly after his arrival, Grievant paid the fee for the television.  Tennant testified he observed Grievant talking in a very friendly manner to the OSCI inmate about what television program to watch, whether to buy cigarettes, and whether to take the inmate to the courtyard to smoke.  He also noticed Grievant was wearing sunglasses.

Tennant testified he called OSCI Captain Fusselman and reported that Grievant had paid for an inmate's television, was watching television with the inmate, acted overly friendly to the inmate, and was wearing sunglasses rather than clear lenses.  Fusselman asked him to write a memo on the matter.  Shortly there­after, Tennant received a telephone call from Joan Palmateer, Security Manager for OSCI.  Palmateer told him she had been informed of Grievant's conduct, and asked for verification.  He verified his report.

Ten to twenty minutes later, Palmateer called Tennant and asked to speak to Grievant.  According to Tennant, after the conversation, Grievant hung up the phone and stomped angrily back into the hospital room.  He came back out and asked Tennant for a piece of paper.  After getting the paper, Grievant asked Tennant if he had reported the incident.  On direct examination, Tennant testified that Grievant called him a "rat."[1]  On cross examination, Tennant testified that Grievant asked, "Why did you rat me off?"  Tennant testified that Grievant also told him he would get what was coming to him.

According to Tennant, the two were four or five feet from other officers during this conversation.  Grievant spoke in a normal conversational tone, but seemed very angry, agitated, and upset.  Grievant then went back inside the hospital room.  This exchange has been Tennant's only interaction with Grievant.  He testified he felt threatened by both the "rat" reference and the comment that he would get what was coming to him.  He took the latter statement as a threat to do something later rather than a threat of immediate physical harm.  Tennant is 6'4" tall; Grievant is about 5'8".

OSP Officer Jerry Joslyn had just arrived.  He was unaware of Tennant's call to report Grievant's conduct.  He was 6-10 feet away when Grievant came out to talk to Tennant.  He testified that Grievant asked Tennant, "Did you tell on me for buying the TV for the in­mate?"  When Tennant said he had, Grievant asked why.  Joslyn testified he was distracted briefly, per­haps by a nurse walking by.  He then heard Grievant say, "Thanks a lot, sergeant," and saw him walk back into the inmate's room.  Grievant appeared upset or mad to Joslyn.  Joslyn did not hear Grievant call Tennant a "rat," nor did he hear him say Tennant would "get what's coming to you."  He testified he would have paid attention to any name-calling or threats.  The men's posture suggested there was tension be­tween them, but he did not view the conversation as threatening, nor did a fight or dispute seem imminent. 

Grievant testified he asked Tennant if he called, and may have phrased his inquiry as, "Did you rat on me?"  He asked Tennant why he called.  Tennant said it was against Post Orders and policies to pay for the television.  Grievant told Tennant that had been the common practice ever since he started.  He did not recall Tennant's response.  He then said, "Thanks a lot, sergeant," and returned to the room.  He denied saying Tennant would "get what's coming to you."  He later came back out to call Palmateer and ask if she wanted a memo on the incident.

Grievant's report of October 7 made only the following mention of his interaction with Tennant:

...At approximately 1628hrs. I asked Sgt. Tennant if he was the one that called Mrs. Palmateer?  Sgt. Tennant stated yes he was the one that called Mrs. Palmateer.

Grievant testified he had previously served in the Army, and still follows military precepts in dealing with his superiors.  He therefore would not be disrespectful or threatening to a superior officer.  He testified he had never had someone report his conduct without first ap­proach­ing him directly.  Other officers usually would correct him directly and give him tips on how to handle situations better.

Grievant testified he was wearing sunglasses because he had forgotten his regular glasses.  He testified the inmate asked if he could chew tobacco or smoke, and he told him he could not.  He denied any discussion of taking the inmate to an area where he could smoke.

Palmateer testified she took Tennant's October 7 call because Fusselman was busy.  After dis­cuss­ing Tennant's report with Fusselman, she called back to talk to Grievant.  She asked if he had paid for the television; he acknowledged he had.  She asked if he understood the Post Orders said not to do that; he responded it was done all the time.  She told him that was not her question, and told him not to do it again.  He acknowledged her order.  Half an hour later, he called back to find out whether she wanted a memo from him on the incident.  He reiterated that other officers paid for the television all the time.

Palmateer discussed Tennant's call with Grievant and his steward upon his return to OSCI.  She issued a non-disciplinary letter of instruction reiterating the Post Orders regarding guarding an inmate at the hospital.  She testified she discussed the issue of paying for inmate televisions with long-term staff, and learned it had been done in the past.  She reminded them of the Post Orders and advised them to re-read those if they were assigned to hospital watch again in the future.

THE EMPLOYER'S INVESTIGATION

Palmateer testified she may have heard from Fusselman that an incident had occurred between Grievant and Tennant, but received no documentation of it until October 12.  On that date, she received the following written report from Tennant:

On Friday, October 7, 1994, at approximately 1530, I observed Officer Schoerder [sic] pay $3.00 to hook up the television for inmate [P].  I also observed Officer Schoerder [sic] behaving in an overly friendly manner towards inmate [P] and watching television with said inmate.

In addition, Officer Schoerder [sic] was unprofessional in his appearance, i.e., by wearing his sunglasses while assigned to supervise an inmate inside a poorly lit hospital room.

Joan Palmateer, Security Manager at OSCI, called and spoke to Officer Schoerder [sic].  Ap­par­ently, Ms. Palmateer informed Officer Schoerder [sic] that I had reported his actions to OSCI security.  After Officer Schoerder [sic] finished his conversation with Ms. Palmateer, his attitude was hostile towards me and he called me a rat for reporting this incident.  Officer Schoerder [sic] stated, that I was not man enough to tell him that he was not following the Department of Corrections or hospital procedures and that I would get what was coming to me.

After this conversation, Officer Schoerder [sic] went back into inmate [P's] hospital room and continued to watch television.

Palmateer discussed this report with Grievant and his Union steward, John Kegley, and told them she would investigate.  She gave unclear testimony regarding whether she had Tennant's report at the time she issued the letter of instruction, or instead received it at a later date.  Later, Kegley informed Palmateer that none of the other officers in the area at the time saw the incident as Tennant did.  Kegley also re­ported that Joslyn had written a report of the incident.  Joslyn's report, pre­pared on October 13, described the interaction between Grievant and Tennant as follows:

... Officer Schoerder [sic] came back out a few minutes later and asked Sgt. Tennant if he had called and told on him for buying the television for the inmate.  Sgt. Tennant said yes he had.  To this, Officer Schoerder [sic] said "Why did you do that?" "Thanks allot sergeant!"  Then Officer Schoerder [sic] turned and walked back into the room in a very indignant manner.

After an interview with Palmateer, Joslyn submitted a second report, stating Grievant en­gaged in a second conversation with Tennant after the one described in his October 13 memo.  The statement re­counted that Joslyn was unable to hear the conversation because he was talking to another officer.  Joslyn testified he saw Grievant leaning over the officer station with Tennant nearby, and thought Grievant was talking to Tennant.  He has since learned that Grievant was not talking to Tennant on that later occasion, but instead was on the phone.  No other officers on duty at the hospital around that time reported hearing any of the interaction between Grievant and Tennant.

GRIEVANT'S WORK HISTORY

Grievant has been evaluated as at least satisfactory in all job elements.  His first evaluation, in 1991, commented he was too aggressive toward inmates and needed to work on his inter­personal skills.  His 1993 evaluation remarked on his improvement in communications skills.  He received letters of com­menda­tion for his role in handling inmate disturbances in January and September 1994.  His 1994 evaluation reflected one of those letters of commendation, as well as a formal reprimand.  That reprimand, dated August 2, 1994, involved the following charges:

On July 31, 1994, you telephoned another OSCI Correctional Officer and made an in­tim­i­dating and unprofessional statement.

Several days prior to this phone call, you were working Recreation Yard and Officer Moutria was working Tower #3.  Mr. Moutria reported to Mr. Harrington that he believed you were spending too much time in long conversations with inmates, thereby neglecting your security duties.  Mr. Harrington discussed this concern with you.  You thought about it for a few days, and on 7/31/94 made a call to Correctional Officer Moutria on duty, and said:  "What's this you're talking shit to Harrington about me talking to inmates.  We're not going to be talking about this in the future you dickhead.  I'll see to that."

Grievant testified he reported his conduct to Palmateer the day after calling Moutria.  He knew he had made a mistake and wanted to explain the situation.  Palmateer tes­tified Grievant did come to her, but that it was to talk about his desire to become an Oregon State Police officer.  She raised Moutria's report with him, and he admitted having made the statement reported by Moutria.  He said he was sorry and knew he should not do it, and that he would not have such exchanges again.  Palmateer discussed the Code of Ethics with Grievant at the time she issued this reprimand.

In response to a grievance on the matter, the Employer noted the following factors:

...

1. There was an incident prior to the one which resulted in the formal reprimand in which you were verbally counseled by your supervisor.  The incident in fact re­sulted in repair necessary to the Unit Officers restroom door.  You had slammed the door so hard in anger that it broke.[2]

2. The statement you made to Officer Moutria was so blatantly disrespectful, and unprofessional, that a formal reprimand was appropriate even if there had not been previous incidents.  You lost control in this instance just as you lost control when you slammed the restroom door in the prior incident.

OTHER EVIDENCE

Grievant requested and took a polygraph examination on November 18.  Before the examination, Grievant recounted his recollection of what had occurred, consistent with his testimony in arbitration.  During the examination, Detective Fredrick Ackom concluded Grievant had shown "consistent deceptive responses" in answering "No" to each of the following four questions:

1. Did you tell Sergeant Tennant he was not man enough to come to you first to talk to you about this incident?

2. Did you call Sergeant Tennant a rat for reporting this incident to Ms. Pallenteer [sic]?

3. Was there a second meeting with Sergeant Tennant about this incident?

4. Did you tell Sergeant Tennant he would get what was coming to him?

After turning off the polygraph equipment, Ackom told Grievant he believed he was untruthful in those responses.  According to Ackom, Grievant then said he "may have been" mad, and was unsure if he had called Tennant a rat or told him he would get what was coming to him.  Grievant acknowledged having told another officer that Tennant had "ratted him off."

Kegley testified the stress of the job sometimes causes staff to blow up at one another and speak harshly.  He testified that name-calling occurs, but much of it is joking.  He testified he once handled a grievance regarding an incident in which Fusselman called an offi­cer a "cocksucker."  Fusselman wrote a letter of apology over the incident, explaining he had not meant it literally.  On another occasion, Kegley expressed anger to Captain Butler over what he perceived as a failure to back Kegley up on a suggestion that an inmate be put in segregation.  Both men spoke very harsh words, and Butler threatened to dis­charge Kegley.  Kegley testified the two discussed their perceptions of the incident, and no disciplinary action ensued.  OSCI Corrections Sergeant James West testified that officers ordinarily are not disciplined for outbursts toward one another unless they occur in front of inmates or cause undue public embar­rass­ment to the Employer.

Sullivan, West, and Joslyn testified most staff approach one another directly to address problems, except where a security issue exists.  According to Sullivan, officers who do not take problems first to the officer involved are deemed untrustworthy by their fellow officers.  He considers teamwork and morale crucial.

Sullivan and West have found Grievant direct and straightforward, but not threatening.  Sullivan would not con­sider a question, "Did you rat on me?" to be a threat unless it was accompanied by threatening conduct.

Palmateer testified she counsels officers when she learns they called each other profane names.  Other than Grievant's incidents with Moutria and Tennant, she has not seen this extent of workplace hos­til­ities.  She testified that, to her knowledge, no manager has called a staff member a "cocksucker."

POSITION OF EMPLOYER

Arbitrators are divided on the quantum of evidence required to prove misconduct in discipline cases.  The appropriate degree of proof required here is preponderance of the evidence.  If the misconduct were punishable under criminal law or regarded as morally reprehensible, a higher standard would be appro­priate.  No higher degree of proof is applicable or warranted here.  Grievant's violation involved policy and procedures, not criminal law or moral turpitude.

The Arbitrator determines the weight, relevancy and authenticity of evidence.  Grievant's actions clearly violated the Employer's policy.  His actions were further compromised by the lack of authenticity of his testimony.  He has considerable motivation for selective recall of the events.  His credibility falls far short of meeting even the preponderance of the evidence threshold.

The Employer had just cause for this discipline.  Safety and security are paramount in any penal sys­tem.  Interpersonal dependence and relationships with colleagues are a critical component in safety and se­­curity.  It would be irresponsible for the Employer not to respond to a serious verbal confrontation with an element of threat to do someone harm.  Such behavior is disruptive to the workforce and contrary to procedures.

Grievant had forewarning or foreknowledge of the possible or probable consequences of his conduct.  He had over four years' experience at the time.  Grievant was less than candid on his knowledge of policy and acceptable behavior.  The issue of wearing sunglasses or paying for inmate TV privileges has nothing to do with this case.  The issue is Grievant's behavior and predilection for intimidation.  Grievant's record shows notice through verbal counseling, formal reprimand, and performance appraisal.

The Employer's policies were reasonably related to orderly, efficient, and safe operations and employee performance.  Security and safety are paramount.  Grievant neglected this fundamental expectation.

The Employer made a proper investigation before administering discipline.  As an officer outside the OSCI chain of command, Tennant properly reported Grievant's initial conduct to OSCI management.  Palmateer promptly reiterated appropriate protocols to Grievant.  Under any other circumstances, that would be the end of the matter.  Grievant elected to verbally assault and threaten Tennant for doing his duty.  In determining what occurred, it is significant that Grievant and Tennant had no prior acquaintance.  To determine what happened, Palmateer engaged in considerable investigation.  Grievant and all pertinent witnesses were interviewed, and all evidence was considered.  Grievant had a chance to respond to the charge and present mitigation.

The Employer's investigation was fair and objective.  It contacted all persons known to have been present, and interviewed some individuals more than once.  Joslyn's testimony does not support the Union's claim that the Employer failed to give appropriate consideration or weight to Joslyn's account of events.  The investigation did not speculate or slant the evidence to reach a particular result.

The Employer obtained substantial evidence that Grievant was guilty as charged.  Grievant made un­solicited comments to Tennant.  The two had not known each other previously.  Joslyn confirmed that Grievant was agitated and indignant in his exchange with Tennant.  Joslyn's observation that Grievant returned to the hall to talk to Tennant confirms that the subsequent exchange was a product of conscious con­templation by Grievant.  Other evidence of guilt includes Grievant's claim of ignorance of policy despite his prior documented notice of policy; his denial of difficulty in controlling his anger despite past incidents; and his claim that he initiated the contact with Palmateer that led to the August 2 letter of reprimand, which was rebutted by Palmateer.

The Employer has applied its rules, orders and penalties evenhandedly and without discrimination.  No substantive or credible evidence exists that the Employer was aware of any other employees who did not comply with the Ethics Policy.  The burden of showing disparity of discipline rests on the Union.  The Employer has no per se position regarding discipline.  It metes out discipline based on such matters as past discipline, the nature of the incident, the employee's credibility, the potential for reoccurrence, and mitigating factors.  Lacking evidence to the contrary, the Arbitrator may not substitute her opinion regarding what is appropriate.  The sole question is whether the Employer has met its burden of just cause.

The degree of discipline administered was reasonably related to the seriousness of the proven offense and Grievant's record.  It was intended to correct, not punish.  Grievant had previously received verbal counseling and a formal reprimand.  In light of that record, the Employer properly reduced his pay for two months.

POSITION OF THE UNION

Grievant did not threaten Tennant.  The Employer has not shown that Grievant called Tennant "a rat" or told him he "would get what was coming to him."  The Arbitrator should find no just cause for the discipline.  She should set aside the pay reduction and order the Employer to make Grievant whole for lost wages, plus interest, and any benefits.

Tennant gave contradictory evidence as to whether Grievant called him "a rat" or merely asked if he "ratted on him."  Grievant denied the former, but may have used the latter phrase, and he denies the threat that Tennant alleged.  Joslyn's testimony helps resolve this conflict.  Joslyn did not hear Grievant call Tennant "a rat," but did hear him ask if he had reported him.  He also did not hear the alleged threat, nor did he interpret anything Grievant said as a threat.  Joslyn could hear Grievant's tone of voice, and observed his demeanor and physical actions.  Based on that testimony alone, the Arbitrator should find that Grievant did not call Tennant "a rat" and did not threaten him.

The Arbitrator should reject Joslyn's suggestion that he might have missed parts of the con­ver­sa­tion.  Joslyn's explanation was the only evidence to account for the inconsistency with Tennant.  Upon cross-examination, it became clear that Joslyn would have paid attention to any kind of threat, consistent with his training.  Also, Joslyn's recounting of the content and length of the conversation was consistent with both participants' description of the conversation.  The only difference is in how the term "rat" was used and Tennant's substitution of the threat that he "would get what was coming to him" in lieu of Joslyn's and Grievant's recollection that Grievant said "Thanks a lot, Sarge."  There is not enough conver­sa­tion missing for any significant lapse in hearing to have occurred.  Moreover, Joslyn's memo did not mention not hearing portions of the conversation, nor did he report any such lapse when interviewed.  The conversation was very short.  Joslyn was within earshot for the whole conversation.  Nothing inter­fered with his ability to hear any portion of the conversation, and no evidence supports the claim that his attention or listening was redirected in some fashion which precluded him from hearing the conversation.

Ackom's testimony about Grievant's comments after a polygraph examination does not establish mis­conduct by Grievant.  Grievant told Ackom before the test that he did not make these state­ments.  He expressed uncertainty only after being told that the test indicated he ap­peared deceptive.  However, those test results were clearly faulty.  The third question on which the test indicated deception asked whether Grievant had a second meeting with Tennant about the incident.  Grievant answered he had not had such a meeting, a response that Ackom concluded was deceptive.  However, Tennant, Grievant, and Joslyn all agree that no such second meeting occurred, con­sistent with Grievant's response during the polygraph exam­ination.  The results of the test were there­fore completely unreliable, and any statements Grievant made after receiving unreliable test results must be viewed in that context.  Moreover, even after being given those unreliable results, Grievant did not admit to having called Tennant "a rat" or threatened him.  The Arbitrator has more than enough first-hand evidence to base her decision.  Any reliance on the polygraph or Ackom's testimony regarding statements made in that process would be improper.

The alleged statements would not be cause for discipline.  They were not threats.  Only Tennant viewed them such.  Even Tennant's testimony does not support such a con­clu­sion.  The term "rat" means to tell on someone, and is commonly used by both inmates and employees.  The unproven allegation that Grievant said Tennant "would get what was coming to him" also is not a threat.  It is nothing more than someone venting.

The alleged statements did not become threats by the manner in which they were made.  No evi­dence exists they were made in a threatening fashion.  Even Tennant acknowledged Grievant did not raise his voice, made no physical threat or gesture, and was not disruptive.  Tennant is significantly larger than Grievant.  Joslyn did not view anything Grievant said, or the manner in which it was said, as threatening.  Sullivan would not consider such statements to be threats.

Grievant's conduct did not violate the Code of Ethics.  In the stressful, high risk, and unpredictable environment of a penal institution, employees must communicate openly, honestly, and directly.  They must trust one another.  Section A.1.f. of the Code of Ethics has been interpreted to mean that employees should resolve differences by going directly to one another to discuss the issue.  Such issues appropriately go to a supervisor only if the employees cannot resolve their differences.  Such communication is neces­sary because inmates significantly outnumber staff.  Employees must be able to depend on one another to back them up if a problem arises.  A co-worker who does not bring a problem directly to the person in­volved, but instead goes directly to a supervisor, is viewed as untrustworthy.  This results in an inability to work as a team.  Such communication is necessary except where immediate bodily injury is involved.

In this case, Tennant violated the Code of Ethics.  He should have gone directly to Grievant if he was concerned about Grievant paying for the TV hookup.  Payment for a TV hookup is not a security breach, nor does it raise a risk of immediate bodily injury.  According to every witness, Tennant im­prop­erly handled this situation.  One must question Tennant's motivations.  He apparently believes he is a self-appointed "enforcer."  In addition to the alleged threat, he reported Grievant for allegedly being overly friendly to the inmate and wearing sunglasses.  The Employer expressed no concern over these matters.

Tennant is a classic example of how mistrust develops between co-workers.  If he was truly con­cerned about Grievant's interactions with the inmate or his sunglasses, he should have approached him directly and resolved the issue.  He said nothing to Grievant, but reported it to Grievant's supervisor in the hope of having him disciplined.  It would be difficult for Grievant, or any officer, to trust Tennant.

One consequence of direct communication between employees is harsh words or expressions of anger.  However, most of the time, employees are able to resolve the conflict through discussion, and the anger dissipates.  Anger expressed in resolving conflicts among co-workers is not cause for discipline.

In approaching Tennant to determine whether Tennant had contacted the Employer about the tele­vision hookup, Grievant acted consistent with the manner in which employees are trained to confront problems.  He did not violate the Code of Ethics.

In context, Grievant's response to Tennant's conduct was completely reasonable.  Despite Post Orders, paying for the television had been a practice as long as he had been doing hospital watches, and was something he was specifically instructed to do.  Tennant did not approach him directly, but went behind his back and reported the incident to the Employer.  Grievant was trying to determine who had reported as wrongdoing behavior which had taken place for years.

The Employer failed to consider Grievant's length of service and past work record.  His per­formance appraisals clearly indicate he is an average or better employee.  1991 comments about com­muni­cation difficulties with inmates are nothing more than constructive criticism.  Moreover, his 1993 appraisal reflected an improvement in communication skills.  The Employer relied extensively on his sole letter of reprimand, while ignoring the contemporaneous letters of commendation.

The facts for which Grievant was disciplined are not similar to those which gave rise to the reprimand.  While he was upset, he did not lose control, raise his voice, use profanity, or make inappropriate gestures or assertive actions.

         OPINION

PRELIMINARY MATTERS

The Employer bears the burden of establishing just cause for discipline.  It must show both that Grievant was guilty of misconduct and that the Employer imposed an appropriate penalty for that misconduct.

As the Employer's brief points out, where the contract is silent on the matter, arbitrators are split regarding the quantum of proof required in discipline and discharge cases.  At one end of the spectrum, some arbitrators require proof of wrongdoing by a "preponderance of the evidence."  Under that test, substantial doubt may exist, but the Employer prevails if the balance tilts ever so slightly in support of the charges.  At the other end of the spectrum, some arbitrators have borrowed from criminal law to re­quire proof "beyond a reasonable doubt," particularly if the charges involve allegations of criminal conduct or moral turpitude.  Most arbitrators, however, recognize that the arbitral forum is not the criminal forum.  This is especially true when the charge is more of a rule violation, as opposed to an allegation with crim­inal or moral overtones.  Thus, arbitral decisions are often made in the face of some doubt.

To sustain discipline or discharge, this Arbitrator requires that evidence must be clear and convincing.  To meet this test, the Arbitrator must be fairly certain of the result, giving the employee the benefit of any favorable evidence on his behalf and any lack of sufficiency in the employer's case.  Put another way, this Arbitrator does not sustain discipline or discharge if the most that can be said is that it is "more likely than not" that misconduct occurred.  Admittedly, however, it is a rare case in which this distinction comes into play.

It is well settled that discipline must be corrective rather than punitive.  If the discipline is within a range of reasonable responses to the severity of the proven misconduct, no basis exists to reduce it sim­ply because the Arbitrator would have chosen a different level of discipline.  However, if the proven mis­con­duct encompasses less than all of the charges upon which discipline was based, the discipline im­posed requires greater scrutiny to determine whether it remains appropriate in light of the partial failure of proof.

The Arbitrator cannot fault Tennant for seeking to enforce the Post Orders strictly.  As a higher-ranking officer in a related service, he had a particular duty to correct what he perceived to be misconduct.  His methods for doing so may have caused consternation to Grievant, but they do not reflect on his veracity.  Indeed, no evidence exists that those methods varied from accepted practice in Tennant's work unit.  Further, even if Tennant demonstrated questionable judgment in not first approaching Grievant, or acted beyond his actual authority in reporting his observations, that would not justify the later conduct with which Grievant is charged.  Simply put, threats of harm and name-calling are inappropriate responses to workplace disputes.  The real issue, then, is not whether Grievant violated Post Orders, whether Tennant misinterpreted those orders, or whether Tennant utilized the wrong channels to correct what he perceived as misconduct.  Instead, the dispositive issue is whether Grievant made the alleged comments.

THE MERITS

Grievant and Tennant are not in as much disagreement about the "rat" allegation as might appear from their respective written reports.  Tennant's report that Grievant called him a "rat" was a conclusion, not a quote.  When asked to recount the conversation itself, he quoted Grievant as asking "Why did you rat me off?"  This quote is consistent with both Grievant's and Joslyn's recollection that, rather than engaging in name-calling, Grievant merely inquired into Tennant's conduct.  No evidence exists that the Employer ever asked him for an exact quote during its investigation; instead, it accepted his conclusory report as evidence.  On the more complete record made in arbitration, the charge of calling Tennant a "rat" cannot be sustained.

Tennant alone recalls the alleged threat, "You'll get what's coming to you."  Certainly, if proven, this threat would warrant very serious discipline.  Tennant had no apparent reason to invent such a com­ment, whereas Grievant has considerable incentive to deny it.  Nonetheless, on this record, a number of factors suggest that the threat was not made.

Tennant's response to the alleged threat was inconsistent with his response to other perceived misconduct.  A threat of retaliation, if made, would be extremely serious--at least as serious as paying for an inmate's television, wearing sunglasses, or acting too friendly toward an inmate.  Yet, Tennant reported this alleged threat to the Employer only in a written memo.  Given his recent willingness to report sus­pected misconduct by telephone, it is inexplicable that he would permit such a threat to go unchallenged and unreported until he could complete a memo on the subject.

Tennant also evidenced a lack of precision in reporting events.  As noted above, his charge of name-calling exaggerated Grievant's actual comment.  He also incorrectly identified not only the identity, but the gender, of the OSCI manager to whom he reported the television incident.  Indeed, he erroneously inserted an additional telephone call from Palmateer, allegedly to verify his report to Fusselman, when in fact he spoke to her (rather than Fusselman) in his initial call.

Tennant's lack of precision would be less problematic if other independent evidence existed of the alleged threat.  However, the only other witness (besides Grievant) did not hear it.  Joslyn was standing within earshot, and perceived tension between the two men.  Regardless of whether Joslyn's attention was momentarily diverted, it is more likely than not that an overt threat such as this would catch his attention.

Grievant's admitted misconduct toward Moutria cuts both ways on this issue.  On one hand, it establishes that, on one occasion, he responded to criticism by making hostile remarks to the person who had reported him.  On the other hand, at the very least, he admitted that wrongdoing to Palmateer when confronted.  His honesty in that situation was consistent with his obligations as an employee.  His demon­strated lapse in judgment in the incident with Moutria thus did not cast doubt on his honesty.

Finally, Grievant's comments following his polygraph examination do not undermine his denial of the alleged threat.  Ackom's testimony and report were admitted on the representation that Grievant's post-examination comments cast doubt on his credibility.  As noted above, the Arbitrator has concluded that Grievant truthfully answered that he did not call Tennant a "rat."  By all accounts, he truthfully answered that he had not had a second con­ver­sa­tion with Tennant.  Yet, the polygraph examination re­vealed what Ackom interpreted as "consis­tently deceptive" responses to these two questions, as well as to the question of the alleged threat.[3]  His ex­pressions of uncertainty when informed of his "deceptive" results reflect his misplaced reliance on the reliability of polygraph results.

For all the above reasons, it is concluded that Grievant neither threatened Tennant nor called him a "rat."  He did express irritation or anger at what he perceived to be an underhanded method of correcting his behavior.  No evidence exists that such expressions, unaccompanied by unprofessional or threatening com­ments, have drawn discipline in the past.  Accordingly, the imposition of discipline in this case violated the "just cause" requirements of Article 20.  The Employer must rescind that discipline and expunge it from Grievant's record.  It must also make him whole for any wages and benefits lost as a result of the discipline.

Finally, the Union has requested interest as part of the remedy.  Except in very unusual cases, arbitral practice has been not to award interest as part of the make-whole remedy.  This practice is so well-established that it must be presumed that the parties knew of it at the time they formed their contract.  Absent a contractual directive or submission agreement to award interest on backpay, the Arbitrator will not depart from this practice.

           AWARD

The Employer violated Article 20 of the 1993-95 collective bargaining agreement when it reduced grievant's salary by 1 step for 2 months effective January 1, 1995.  As a remedy, it must rescind the reduction, expunge it from Grievant's record, and make him whole for lost wages and benefits occasioned by this discipline. 

As agreed by the parties, the Arbitrator retains jurisdiction over the Remedy portion of this Award and any disputes arising therefrom.

 

 

DATED:  September 6, 1995

 

 

___________________________________

   LUELLA E. NELSON - Arbitrator


[1]            According to OSCI Corrections Officer Robert Sullivan, "rat" is corrections or inmate lingo for a tattle-tale.  He has seen this term used by staff in inmate misconduct reports; for example, one reported that a fight had started because an inmate had "ratted on" another inmate.

[2]            Palmateer testified this incident occurred during the summer of 1993.  Grievant testified he slammed the door in anger because an officer on the prior shift had left without inventorying inmate property.  When he did, the lock jammed shut, requiring re-keying.

[3]           If such results were reliable, his consistent physiological responses would suggest, if anything, that Ackom misinterpreted the readings and that Grievant's answer to the fourth question was as truth­ful as his answers to the second and third questions.  The possibility of misreadings has led to both judicial and arbitral reluctance to admit polygraph results themselves as evidence of veracity.

 

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