Title: City of Berkley and Social Services Union SEIU
IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES
Social Services Union
SEIU Local 535
- and -
OPINION AND AWARD
City of Berkeley
) March 11,
(Involving Grievant Kevin Whitson)
This Arbitration arises pursuant to the Memorandum of Understanding
between the Social Services Union, SEIU Local 535, hereinafter referred to as
the "Union" and the City of Berkeley, hereinafter referred to as the
"City", under which C. ALLEN POOL was selected to serve as Arbitrator
through procedures of the CALIFORNIA STATE MEDIATION AND CONCILIATION SERVICE. The parties agreed that the matter was properly before the
Arbitrator and that his decision would be final and binding upon the parties.
The Hearing was held in Berkeley, California on January 10, 1996 at which
time the parties were afforded the opportunity, of which they availed
themselves, to examine and cross-examine witnesses and to introduce relevant
evidence, exhibits, and arguments. The witnesses were duly sworn and a written
transcript was made of the Hearing. The
Union made an oral closing argument at the close of the Hearing and the City
filed a posthearing brief with the Arbitrator.
On behalf of the Union:
On behalf of the City:
Stewart Weinberg, Esq.
Renée Mueller, Esq.
Van Bourg, Weinberg, Roger
Deputy City Attorney
Office of the City Attorney
180 Grand Avenue, Suite 140
2180 Milvia Street, 4th Floor
Oakland, California 94612
Berkeley, California 94704
Did the City of Berkeley have just cause to discharge the
Grievant, Kevin Whitson? If
not, what shall be the remedy?
RELEVANT PROVISIONS FROM THE
MEMORANDUM OF UNDERSTANDING
Section 27 Discharge
An employee may be discharged at any time by the City Manager/Board of
Library Trustees. If the
probationary period has been completed, then such discharge must be for just
The events leading to this Arbitration began on the morning of March 20,
1995 at approximately
11:30 a.m. in the Berkeley City Library when Maria Nadalini, a library
patron, came to the Grievant's work station, the registration desk, to return
three overdue books and pay a $15.00 fine. The Grievant, a Library Assistant,
and an employee of the City for the past five to six years was assigned to the
registration desk the hour before
noon that day. Ms. Nadalini
returned the books and paid the fine, in cash, to the Grievant.
She also testified that things were "very busy that day.
There were all kinds of things going on, so I just kind of leaned on the
counter, and he came back around .... he handed me a receipt" (Transcript,
pages 9-11). Afterwards, Ms.
Nadalini stayed in the library browsing in the stacks and in the computer room.
The Grievant immediately entered the return of the three overdue books
and receipt of the $15.00 in the library's computer records (Joint Ex. 1, page
The Grievant's co-worker, Uma Paul, was at the counter a few feet away
working at the check-in desk. Ms. Paul testified
that she saw the Grievant with the $15.00 cash in his hand along with a check
for $2.00 and that he held the cash in his hand for about five minutes.
Her testimony, in contrast to Ms. Nadalini's, was that the "counter
was not busy" at the time (Transcript, page 40).
Ms. Paul, in between working with patrons, observed that when the
Grievant went to the cash register he stood to the right of the machine with his
back towards her. As he stood
there, she saw him looking at the check in his hand but could not see what was
done. She testified that
"when he left (the cash register) I got up because I felt something funny
because I never felt before like that..... It was few minutes (about seven) and
I checked the cash register tape. It
wasn't rung up $15.00. And I looked
around (Transcript, pages 24-25). She
saw her supervisor, Vivian Vigil in the office and reported to her, "I
think he didn't put the money in there, and she said 'Are you sure?'
I said, 'Yeah' " (Transcript, pages
25-26). When asked on
cross-examination why she did not confront the Grievant about the $15.00, Ms.
Paul said, "I didn't feel like it".
Ms. Paul pointed out to Vivian Vigil, her immediate supervisor, that the
patron who paid the fine was still in the library.
Ms. Vigil went to Ms. Nadalini and, in their conversation, confirmed that
Ms. Nadalini had paid the $15.00 in cash and received a receipt from the
Grievant. Ms. Nadalini, at Ms.
Vigil's request, identified
the Grievant as the person to whom she paid the money.
All of this took place without approaching the Grievant and out of his
hearing (Transcript, pages
52-53). Ms. Vigil testified she
then went to the cash register and checked the tape and could not find where the
$15.00 had been rung up. She also said she looked around the area of the cash register
for about seven minutes but did not find any cash (Transcript, pages 53-54).
During the search, the Grievant asked Ms. Vigil what she was looking for.
She told him, "That she was looking for money".
She did not tell him how much money she was looking for
(Transcript, page 55). Ms.
Vigil testified she did not ask him to help nor did she at any time ask him
where the $15.00 was (Transcript, pages 61-61).
Both Ms. Paul and Ms. Vigil testified at the hearing that they looked and
searched around the cash register for the money.
However, neither Ms. Paul's
nor Ms. Vigil's written statements (both signed and dated 4-5-95) mentioned a
search being conducted at the time of the incident (Joint Ex. 1, pages 7 and 8).
When asked why she had not mentioned a search in her written statement,
Ms. Vigil said she had not "because I thought it was understood"
(Transcript page 60). Ms.
Vigil was also asked by the
Director of Library Services, Adelia Lines, on May 25, 1995 to write a second
statement. That was the day
following the Grievant's Skelly hearing. When
asked the reason for writing a second statement (which was not entered into the
record), she testified, "She, Ms. Lines, told me that she wanted a
statement from me in chronological order what had happened that day, and when I
went back to my original statement I didn't put exactly what happened that
day" (Transcript, page 69).
Ms. Vigil reported the matter to her supervisor, Helen Harris,
who was out on coffee break at the time of the incident.
When told of the accusation against the Grievant, Ms. Harris asked,
"Can you prove this?" She
was told, "Yes, the patron is here" (Transcript, page 79).
Ms. Harris talked with Ms. Nadalini in the office and Ms. Nadalini showed
her receipt for payment of the $15.00 and identified,
without approaching him, the Grievant as the person to whom she paid the cash.
Ms. Harris went to the cash register, balanced out, checked the tape, and
found a transaction for the $2.00 check but no entry for $15.00.
She testified she then began her search of the area which included a
cabinet, behind the table, the trash can, behind the register, beneath the
register tray, and everywhere in the vicinity on the floor and did not see the
money (Transcript, pages 80-81).
When asked if she confronted the Grievant after her conversation with the
patron, Ms. Nadalini, Ms. Harris stated she did not (Transcript, page 87). Ms. Harris also, in contrast to the testimony of Ms. Nadalini,
testified that they were not busy at the registration desk at the time of the
incident (Transcript, page 79). Like
Ms. Paul and Ms. Vigil, Ms. Harris'
written statement of the events that day (dated 4-6-95) did not contain any
mention of her conducting a search.
Again, like Ms. Paul and Ms. Vigil, Helen Harris was asked by the
Director of Library Services, Adelia Lines,
following the Skelly hearing on May 24, 1995, to write a second
statement. This second statement
was not entered into the record. When
asked why she had not put anything about the search in her April 6 statement,
Ms. Harris said, "I just didn't put anything in there" (Transcript,
page 86). Since Ms. Harris' supervisor, Dolores Wright,
was not at work that day, she reported to matter to
Bob Derbin, an official in the library's administrative office.
The next day, on or about noon, the matter was reported to the
Circulation Services Manager, Dolores Wright.
Testifying that her task was to pull together all the information and to
investigate to see if disciplinary action was necessary, she spoke with Uma
Paul, Vivian Vigil, and Helen Harris. She
asked them if they were "willing to write all this down, essentially, Uma"?
Their written responses regarding the incident on March 20 were signed
and dated April 5 & 6, 1995 (Transcript, page 99 and Joint Ex. 1, pages
After working on the matter Tuesday afternoon and for a couple of hours
Wednesday afternoon (She was off work Wednesday morning.),
Ms. Wright instructed the Grievant to meet with her that afternoon,
Wednesday, March 22 at 3:00 or 4:00 p.m. and to bring a union representative
since it concerned a serious matter. Present at the meeting
were the Grievant, Ms. Wright, Helen Harris and Joe Kempkes, union
representative. At this
meeting, Ms. Wright related the incident to the Grievant, informed him of the
seriousness of the accusation, and asked if he could help in locating the
missing $15.00. The
Grievant, not recalling the details nor the patron, acknowledged that he had
taken a $2.00 check and $15.00 in cash. However,
he could not explain what happened to the $15.00.
He testified that, when busy handling
more than one transaction at a time, he would sometimes reach back and lay the
cash on or next to the cash register so as not to lose it (Transcript, page 102
& 128). Ms. Wright informed the
Grievant that his explanation of what happened to the $15.00 cash was
unacceptable and that she would recommend to the Director his termination (Joint
Ex. 1, page 9 and Transcript, page 99-102).
At no time prior to the meeting on the afternoon of March 22 did Ms.
Wright speak to the Grievant. When
asked why she did not meet with the Grievant sooner, she testified, "it's a
very serious matter and a very serious accusation.
And before I approached (him)
, I needed to have something to stand on and needed to have the information and
to make sure that what I was receiving was correct and accurate, and before I
approached him about that. I think
sometimes approaching someone about something and you haven't done any
investigation, I think is inappropriate" (Transcript, page 107).
Ms. Wright's recommendation that the Grievant be terminated for theft of
public funds was forwarded to the Director of Library Services, Adelia Lines.
Ms. Lines, after reviewing the documentation contained in Joint Exhibit
1, reached the conclusion that the Grievant had stolen the $15.00 and made the
decision to terminate his employment. She
testified that she relied solely upon the evidence contained in Joint Exhibit 1
in reaching this decision. When
asked what her basis was in reaching that decision, she said it was the weight
of the evidence which was "a result of a careful and thorough
investigation", "a thorough search of the premises (conducted by Helen
Harris) close to the time after the incident had been seen and the money was not
found" (Transcript, pages 109-111 & 114).
The Grievant was issued a Notice of Intent to Recommend Termination on
April 30, 1995. This was followed
by a Skelly hearing held on May 24, 1995 where the Grievant was provided an
opportunity to respond to the recommended termination.
Following the Skelly hearing, the Grievant was informed by the Director
of Library Services, Ms. Lines, that she had decided to proceed with the
recommendation to terminate and that the matter would be placed before the Board
of Library Services. He was of
informed of the date and time the matter would be placed before the Board and of
his right to attend the meeting or send a written response to the recommendation
The President of the Board of Library Trustees informed the Grievant on
June 30 of the Board's decision to terminate his employment on the grounds of
theft of public funds and that his termination would be effective Monday, July
3, 1995. Pursuant to Section 31.1
of the MOU between the City and SEIU Local 535 a grievance was filed which
proceeded to this Arbitration.
POSITION OF THE CITY
The City had just cause to terminate the Grievant.
He stole public funds. The
incident was immediately reported and was very carefully and thoroughly
investigated. Within a short period
of time following the incident, the area around the registration was thoroughly
searched by two supervisors and the money was never found.
The decision to terminate was based on the weight of the evidence leading
to the conclusion that the Grievant stole the $15.00 and the fact that he could
not provide a satisfactory explanation as to what happened with the money.
All of the circumstantial evidence is overwhelming.
The only logical conclusion that can be made is that he stole the $15.00
for his personal use. Therefore, the grievance should be denied.
POSITION OF THE UNION
The City did not have just cause to terminate the Grievant.
The City denied due process to him.
The City's frequently quoted "thorough investigation", which
was designed to be fair to all parties, never once confronted the Grievant when
the matter was closest in his memory. The
City waited more than two days before they even approached him to find out what
happened, by which time he said, "I don't know".
The record shows that in a three-minute span he had six occasions to go
to the cash register. At some point in time, the $15.00 was misplaced.
It would have been so easy for his co-worker, or either of his two
supervisors, at the time, to say to the Grievant, "there seems to be a
discrepancy of $15.00." If the
two supervisors had approached him immediately, as they should have been done,
the matter could have been cleared up. Therefore,
the grievance should be sustained.
Before getting into my
discussion, a few comments about the just cause standard are in order. The just cause standard defines misconduct or misbehavior and
protects the employee from unfair treatment.
A thread which runs through the standard is that management, the City in
this instance, make a full, fair, and timely investigation in order to be
satisfied that there was sufficient proof that the Grievant did in fact commit
the charged violation. Management
bears the burden of responsibility of having to consider any and all facts, from
whatever source, that could have an influence on the matter.
In the interest of fair play, the employee should also be promptly
informed of the charges and given a chance to tell his side of the story.
Delay in doing so can cause management to miss the chance to gather
evidence that, by its very nature, is available only at a particular time and
The Grievant, in this case, should have been approached about the missing
$15.00 at the time of the incident. Instead, the City waited more than two days, perhaps
three days, to ask him about the incident. As soon as Uma Paul reported to her
supervisor, Vivian Vigil, that she thought the Grievant had not put the cash in
the register, Ms. Vigil should have asked the Grievant about the discrepancy.
At the least, Helen Harris, the other supervisor present at the time of
the incident, should have asked the Grievant about the discrepancy.
Both Ms. Vigil and Ms. Harris had the authority and the responsibility to
question the Grievant at the time when events were fresh
in everyone's memory and a true accounting of the $15.00 was most likely.
As a result, the only real facts the City's investigation produced was
that the Grievant received and
recorded the return of the three books from Ms. Nadalini, that he received
$15.00 in cash from her, he gave her a receipt for the money, and he entered the
entire transaction in the library's computer records.
(These were not the actions of person acting with the intent to steal.)
The investigation did establish that the $15.00 was not rung up in the
cash register. But, the
investigation did produce not sufficient proof that the Grievant stole public
funds for his personal use as charged by the City.
The explanation he gave to Dolores Wright at the March 22nd meeting and
which he reiterated at the Arbitration hearing, of laying the cash on or next to
the cash register because he was probably busy sounds reasonable given the
circumstances. It also sounds like
it might be a common practice at the library (Transcript, pages 100-102 and
124-128). The City, throughout
these proceedings never challenged the
practice as against policy, rules, or something that is never done. Moreover, Ms. Nadalini's testimony and the cash register tape
support the Union's contention that things were busy at the desk a the
time of the incident. Therefore, his explanation that he probably laid the money on
or next to the cash register sounds plausible.
Regardless, the matter could have been resolved with some finality if he
had been approached at the time of the incident instead of waiting more than 48
hours, allowing memories to fade, and then telling him his explanation was
unacceptable. By not doing
so, the City denied itself the opportunity to gather facts material to the
charge and denied the Grievant a very fundamental element of due process.
There were additional items in the evidence record which pointed to a
flawed investigation by the City. Adelia
Lines, the Director of Library Services, testified that she relied solely upon
the documentation in Joint Exhibit No. 1 in reaching her decision to terminate
the Grievant. She said the basis
for her decision was the weight of the evidence derived from the "careful
and thorough investigation.... a thorough search of the premises (by Helen
Harris) close to the time of the incident" (Transcript, pages 104-111).
I do not believe a thorough search actually took place.
Ms. Harris' statement, along with the statements of Uma Paul and Vivian
Vigil, did not mention a search being conducted at the time of the incident
(Joint Ex. 1, pages 6-8). One
person forgetting to mention a search is plausible, but not three people.
When asked why her statement contained no mention of a search, Helen
Harris said, "I just didn't put anything in there"
and Vivian Vigil said, " I thought it was understood"
(Transcript, pages 86 and 59-62). More
revealing was Ms. Vigil's answer when asked why she wrote a second statement
following the Skelly hearing May 24th. She
said that when she went back to her original statement dated April 5, 1995 she
found she had not put down exactly what happened that day (Transcript, page 69)
. It is clear their
incomplete statements did not reflected a true accounting of what actually
happened. Therefore, Adelia Lines'
decision to terminate the Grievant was without basis.
There is another feature about the statements of Uma Paul, Vivian Vigil,
and Helen Harris which casts some doubt as to their validity.
Their statements were written at the direction of Dolores Wright who
conducted the first meeting with the Grievant on March 22nd (Transcript, page
99). It was at this meeting that
Ms. Wright informed the Grievant his explanation regarding the cash was
unacceptable and that she would be recommending his termination. The written statements by Ms. Paul, Ms. Vigil and Ms.
Harris were signed and dated April 5 and 6, 1995 (Joint Ex. 1, pages 6-8).
This was two weeks after Dolores Wright's first meeting with the
Grievant. I have to believe their
written statements were not available at that meeting.
If they were not, what was her basis for rejecting the Grievant's
explanation and recommending his termination?
Theft of public funds is a
serious charge and must be supported by well-grounded proof.
The written statements of Uma Paul, Vivian Vigil and Helen Harris should
have been available for review at Dolores Wright's meeting with the Grievant and
his representative on March 22. For
her to reach a decision to recommend termination without the statements being
part of the record was also a denial of the Grievant's due process rights.
And lastly, the inconsistencies in testimony also pointed to a flawed
investigation by the City. The
City's contention was that, at the time of the incident, things were not busy at
the registration desk where the Grievant was working.
Uma Paul and Helen Harris both testified that things were not busy at the
time of the incident (Transcript, pages 46 and 79).
The problem is that Helen Harris was out on coffee break at the time of
the incident and could not have had first knowledge of whether things were busy.
In contrast, the patron, Maria Nadalini, testified that things were very
busy at the time she was at the counter (Transcript, pages 10-11) and the cash
register tape shows seven transactions within a span twelve minutes from 11:34
to 11:46 a.m. (Joint Ex. 1, page 4). Things
were busy at the time of the incident and that gives
credibility to the Grievant's explanation.
Therefore, for the reasons above, the Grievance is sustained.
Grievance is sustained. The City of Berkeley did not have just cause to
discharge the Grievant, Kevin Whitson.
The City of Berkeley is directed to immediately restore the Grievant to
his former position without loss of seniority and to make the him whole for all
lost wages and benefits less other income earned.
Implementation of the remedy is remanded to the parties with the
Arbitrator retaining jurisdiction in event the parties cannot agree.
C. ALLEN POOL
Three computers were located on the counter where the two Library
Assistants were working. One at
Ms. Paul's checkout desk on the left, one at the Grievant's registration
desk on the right, and one in the middle of the counter. Located between the middle computer and Ms. Paul's desk on
the left was a printer connected to all three compuers. Directly behind the
middle computer and within an arm's reach of either work station was a cash
register where money received from overdue book fines was rung up.
The cash register was sitting by itself on a small stand and would
open toward the middle of the counter.
Dolores Wright testified at the hearing that the meeting with the Grievant
took place on Wednesday, March 22, 1995. Her written statement regarding the
meeting (Joint Exhibit No. 1, Page 9) stated that the meeting took place on
Thursday, March 23, 1995.