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Title: City of Berkley and Social Services Union SEIU Local 535
Date: March 11, 1996
Arbitrator: Allen Pool
Citation: 1996 NAC 105

IN ARBITRATION PROCEEDINGS PURSUANT TO

AGREEMENT BETWEEN THE PARTIES

 

Social Services Union                                       )

SEIU Local 535                                               )

                                                                        )                       ARBITRATOR'S

- and -                                                              )

                                                                         )                OPINION AND AWARD

City of Berkeley                                                )

                                                                         )                     March 11, 1996

(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.

APPEARANCES:

 

On behalf of the Union:                                             On behalf of the City:

Stewart Weinberg, Esq.                                            Renée Mueller, Esq.

Van Bourg, Weinberg, Roger                                    Deputy City Attorney

and Rosenfeld                                                           Office of the City Attorney

180 Grand Avenue, Suite 140                                   2180 Milvia Street, 4th Floor

Oakland, California 94612                                        Berkeley, California 94704

(510) 839-6600                                                       (510) 644-6380

 

ISSUE

 

                        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 cause..........

 

BACKGROUND

            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 5).

            The Grievant's co-worker, Uma Paul, was at the counter a few feet away working at the check-in desk.[1]   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 6-8).

            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.[2]   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 to terminate.  

            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.

 

 

 

DISCUSSION

             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 place.

            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.

 

AWARD

           

      The Grievance is sustained. The City of Berkeley did not have just cause to discharge the Grievant, Kevin Whitson.

 

THE REMEDY

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.

 

 

 

Date: _______________________                          ___________________________________

                                                                                    C. ALLEN POOL

                                                                                    Arbitrator

 



[1]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.

 

[2]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.

 

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