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Title: Multnomah County, Oregon and Multnomah County Employees Local 88
Date: March, 2001
Arbitrator: Jack H. Calhoun
Citation: 2001 NAC 112

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

 

MULTNOMAH COUNTY EMPLOYEES       )

LOCAL 88, AFSCME COUNCIL 75,              )

AFL-CIO,                                                          )

       Union,                                                          )

               )

                                and                                      )                       OPINION

                                                                           )                       AND

MULTNOMAH COUNTY, OREGON,            )                        AWARD

        Employer.                                                    )

                                                                                                                                                           

 

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

 

 

 

 

HEARING HELD

January 25, 2001

Portland, Oregon

 

______________________________________________________________________________

 

REPRESENTATION

 

FOR THE UNION:                                                            FOR THE EMPLOYER:

Jim Younger                                                                        Patrick Ward

Council Representative                                                Labor Relations Specialist

Oregon AFSCME Council 75                                    Multnomah County

123 N.E. 3rd Avenue                                                            1120 S.W. 5th Avenue

Suite 505                                                                        Suite 1430

Portland, Oregon 97232                                                Portland, Oregon 97204-1934


BACKGROUND

            Local 88 of the American Federation of State, County and Municipal Employees, AFL-CIO (the Union), and Multnomah County, Oregon (the Employer or the County) are parties to a collective bargaining agreement that provides employees may be subject to disciplinary action, including dismissal, for cause. Barbara Seaquist, an employee of the County Health Department, was dismissed from her employment on July 25, 2000.  She filed a grievance and the matter went to arbitration.

ISSUE

            The parties agreed the issue in dispute was whether the County had just cause to suspend and subsequently dismiss Ms. Seaquist from her employment.  If it did not, what is the appropriate remedy?

RELEVANT CONTRACT PROVISIONS

            The following provisions of the parties’ collective bargaining agreement are relevant to the issue in dispute:

            Article 17.  Disciplinary Action

 

            I.  Forms of Discipline for Cause and Notice Requirements

 

Employees may, in good faith for just cause, be subject to disciplinary action by oral or written reprimand, demotion, reduction in pay, suspension, dismissal, or any combination of the above, provided, however, that such action shall take effect only after the exempt supervisor gives written notice of the action and cause to the employee and sends written notice to the Union.  Oral or written reprimands do not require prior written notice.

 

            II.  Definition of Cause

 

Cause shall include misconduct, inefficiency, incompetence, insubordination, indolence, malfeasance, or failing to fulfill responsibilities as an employee.

 

STATEMENT OF FACTS

            Barbara Seaquist had two periods of employment with Multnomah County.  The first was June 14, 1995 until September 15, 1999, as an office assistant with the Department of Community Justice.  The second was from March 28, 2000 to July 25, 2000, with the Health Department, also as an office assistant.

            In January of 1997, an operations supervisor with the Department of Community Corrections wrote a letter to Ms. Seaquist regarding the Department’s policy that required employees to immediately report any personal or business relationship with offenders.  The letter informed her that the Department was not notified by her about her son’s status as an offender in the system.  The seriousness of the failure to notify was expressed in the letter, and a set of Department rules were given her.  The letter expressly told her not to access any information on her son.

            In April of 1999, a counselor at the Snake River Correctional Institution lodged a complaint with officials of the County Department of Community Justice alleging that Barbara Seaquist had improperly accessed State of Oregon Department of Correction’s electronic records on inmate Joel Seaquist, Barbara’s son who was at Snake River.  The counselor said Seaquist had added her son’s identification number to her caseload thereby enabling her to access counselor notes and pass them on to her son.  A copy of the electronically generated notice showing the added case to her caseload was furnished to County Department of Community Justice officials.

            An investigator for Community Justice met with Ms. Seaquist and her supervisor to discuss the complaint.  When asked if she would like to make any comment about the complaint, she declined and stated she knew nothing about it.  She indicated she knew accessing such records without a business reason was improper.  Later that same day, she asked to speak again with the investigator and expressed an interest in the possible consequences of accessing the records as alleged.

            On July 6, 1999, Ms. Seaquist received written notice from Michael King, district manager and her supervisor’s superior, of the specific charges that were being brought against her.  The basis for the charges was accessing confidential information of an offender.  The notice invited her written response.

            Ms. Seaquist responded in writing to King’s letter by saying she put her son’s identification number into the computer because a number was asked for and she knew his number.  In trying to get his number off, she opened the counselor’s caseload, but was not successful and closed out.  She denied any violation of rules or confidentiality.  She said she did not understand what was happening when the investigator and her supervisor first approached her.

            A few days later, Ms. Seaquist wrote Mr. King asking that he consider transferring her to another agency where she would not have access to corrections data.  She went on to say she understood she violated policy and that she should have been more conscientious.

            On August 30, 1999, Ms. Seaquist was notified that she was suspended without pay from her job for fifteen days and would be dismissed effective September 16, 1999.  During meetings between her, King and union stewards prior to her suspension and notice of dismissal, resignation was discussed as one option she had.  The meetings were congenial, and no hostility was involved.  Mr. King did not ask her to resign or tell her she would be fired unless she did.

            On September 14, 1999, Ms. Seaquist sent Mr. King a memorandum advising him that she resigned her position.  Mr. King acknowledged her resignation on September 20.

            Ms. Seaquist applied for a job with the County Health Department and was eventually interviewed and hired.  On her application for employment, under employment history, she left blank the space that asked her reason for leaving her job at Community Corrections.  Of the five former employers she listed as full-time paid work and gave detailed information about, none of the reasons-for-leaving spaces were left blank, except Community Corrections.  Her explanation was that it was an oversight.

            Linda Pickthorne, a supervisor for whom Ms. Seaquist had worked as an on-call employee


in the County Health Department, interviewed and hired Ms. Seaquist to a permanent office assistant position.  Ms. Seaquist advised her that she, Seaquist, had worked as a county employee previously and would probably be eligible to be placed as a reinstated employee.

            Prior to Ms. Seaquist’s actual appointment as a permanent employee, Ms. Pickthorne called Ms. Seaquist’s former supervisor at the Department of Community Justice, Sheryle Sample.  Ms. Sample was unwilling to provide information about Ms. Seaquist’s performance.  Nonetheless, Ms. Pickthorne hired Ms. Seaquist based on her performance as an on-call employee for Health. 

            Soon after Ms. Seaquist was employed as a regular employee in the County Health Department, Multnomah County Detention Center, where her duties involved maintaining records on inmates, the Human Resources Manager, Suzanne Kahn, received a call from a person who was concerned over the fact that Ms. Seaquist was working at the Detention Center because she had been terminated from the Department of Community Justice.

            Ms. Seaquist signed a document acknowledging she had read and understood that any violation of County policies, including those on confidentiality and truthfulness, could result in her termination.  The County has detailed policies related to employees’ dealings with inmates.

            Ms. Kahn contacted Ms. Pickthorne to find out if Ms. Seaquist had access to confidential information.  Ms. Pickthorne said Seaquist had access to confidential medical records and the Sheriff’s Warrants Information System, computer programs showing inmate location in jail facilities and booking information, but that she was not concerned about Ms. Seaquist having such access.

            Ms. Kahn learned from the Department of Community Justice that Ms. Seaquist had resigned on her final day of a fifteen-day suspension without pay pending dismissal.  Ms. Pickthorne and a deputy director met with Ms. Seaquist at the direction of Ms. Kahn.  Ms. Pickthorne was directed to ask Ms. Seaquist about the circumstances under which she left her position with the Department of Community Justice, to take her identification badge and to place Ms. Seaquist on paid administrative leave pending an investigation into her employment with the Department of Community Justice.

            At the meeting on June 14, 2000, Ms. Pickthorne asked Ms. Seaquist about the circumstances of her leaving the Department of Community Justice.  She said she was asked to resign and she did so.  She also said someone else had requested her son’s criminal record three times and she was accused of doing it.

            On June 23, 2000, Suzanne Kahn issued written notification to Ms. Seaquist that charges of lying to her supervisor and misrepresentation on her employment application had been brought against her, and if the charges were confirmed, she could be dismissed.  The notification listed the basis of the two charges and concluded by stating that if the Health Department had known about the circumstances under which she resigned her employment with the County in 1999, she would not have been hired.  The notice also said she should have been truthful in explaining the circumstances under which she left her previous position with the County.  Ms. Seaquist was given an opportunity to rebut the charges.  At a later meeting with Ms. Kahn, Ms. Seaquist did not change her story from the one she had told in June.

            On July 7, 2000, Ms. Kahn wrote Ms. Seaquist a letter of suspension, effective July 10, and dismissal, effective July 25.  The reasons were those specified in Ms. Kahn’s June 23 letter to her.

SUMMARY OF THE EMPLOYER’S POSITION

            The County contends it had just cause to suspend and subsequently dismiss Ms. Seaquist.  There was substantial proof that she was guilty as charged and the degree of discipline imposed by the County was reasonably related to the seriousness of the offense and the record of her service.

            There is ample proof that Mr. King did not ask Ms. Seaquist to resign.  His testimony was corroborated by the testimony of Sample, Griffiths and Watkins.  They all discussed her resignation at meetings with her, but she was not asked to resign, offered any inducement to resign, or threatened.  The meetings were polite with no screaming or shouting taking place.  Ms. Seaquist was not truthful when she told Ms. Pickthorne and Ms. Burrow she had been asked to resign.

            About the June 14, 2000, meeting with Pickthorne and Burrow, Ms. Seaquist said it was unexpected and she did not have time to prepare.  No preparation was needed to be truthful.  Moreover, although she had ample opportunity to prepare for her meeting with Ms. Kahn on July 28, she did not change her story.

            Ms. Seaquist knowingly omitted relevant information from her employment application by not stating the reason she left her position with the Department of Community Justice.  Her explanation for the omission as an oversight was unlikely at best given the detailed information on the rest of the page.

            Ms. Seaquist said she created the page containing her employment history while she was still working at the Department of Community Justice and updated it later but failed to enter the reason she left.  The explanation is implausible, however, because she had to update the page to show her last date of employment and her ending salary.  She also had to update it to show other employment after she left.

            Dishonesty violates a fundamental principle of the employer-employee relationship and is grounds for discharge.  Even absent a specific policy, honesty is a trait of character an employer has a right to expect.  Dishonesty destroys the trust that is essential in the relationship.

            Ms. Seaquist signed a statement on June 13, 2000 acknowledging she read and understood the policy requiring employees to be truthful.  It stated that any violation could result in termination.

            The failure on Ms. Seaquist’s part to state the reason she left her position with the Department of Community Justice amounts to dishonesty by concealment.  It was misrepresentation by omission rather than commission.  The Department would not have hired her if the circumstances under which she left Community Justice had been known.

SUMMARY OF THE UNION’S POSITION

            The Union maintains the County did not have just cause to suspend and terminate Ms. Seaquist because she did not lie to her supervisor or make a misrepresentation on her employment application.  Although the County claims she omitted information from her employment application and later was untruthful when she was questioned about it by her supervisor, that is not the case.

            Ms. Seaquist was set up for failure when she met with Ms. Pickthorne and Ms. Burrow on June 14, 20900.  She had no reason to expect the type of meeting that occurred.  She believed her situation with the Department of Community Correction was behind her.  Personnel records showed she had resigned.

            At the June 14 meeting Ms. Seaquist was as truthful as she could be under the circumstances.  She resigned her former County position because she was forced to resign or be fired.  Her resignation was not voluntary.

            Several factors must be considered to determine if an employer has proven falsification and whether a reasonable penalty has been imposed.  Those are whether: (1) the employee intentionally engaged in the conduct, (2) the employee was motivated by financial or other gain, (3) the falsification had a significant effect on the employer’s business or the grievant’s co-workers, the employer relies upon a policy that prohibits the falsification, (4) the employee violated specific contract language, (5) the employee has a good work record, and (6) the employee tried to cover up the alleged falsification.

            Ms. Seaquist’s answers to the questions asked on June 14, did not justify discharge.  Suzanne Kahn wanted her terminated.  Nothing Ms. Seaquist could have said would have mattered.

            With respect to the misrepresentation issue, leaving a blank space on an employment application should not be grounds for discipline.  It was not that she made a statement or a claim that later turned out to be false.

            If Ms. Seaquist violated a rule when she did not specifically explain why she resigned then so did the Department of Community Corrections.  The Department would only say she resigned.

            Ms. Seaquist’s work record with the Health Department is clean.  She did not violate any confidentiality statement, rule or policy.  There is no rule in the County that requires a reinstated employee to explain why she resigned her previous employment with the County.

            The Health Department’s act of dismissing Ms. Seaquist is nothing more than firing her because of her situation with the Department of Community Corrections, not her answers on June 14, 2000.  Mr. King did not have to accept her resignation.  He could have said the dismissal stands.  Instead, he accepted her resignation and wished her luck.

            The suspension and dismissal of Ms. Seaquist was excessive and unreasonable.  She should not  have received discipline.

            Ms. Seaquist had no forewarning that if she was not accurate in her answers she would be fired.  There was no rule requiring employees to give details of why they resigned.  The County made no effort to discover whether she violated a rule.  The County’s investigation was not fair.  (Citing Enterprise Wire Co., 46 LA 359 (Daugherty, 1966.)

OPINION

            Falsification of the employment application may be grounds for discharge where the misrepresentation was deliberate, material to the employment at the time of hiring and at the time of discharge and was acted upon promptly by the employer.  Intent is significant in falsification cases.  To uphold a discharge, it must be found that the employee intentionally falsified the document.  Inadvertent errors and honest mistakes will not support a discharge.  The primary focus in falsification cases is generally on materiality and deliberateness.  The misrepresentation must be on a subject that is material to the employer and it must have been deliberate.

            When dishonesty exists in any form, it violates the fundamental principles of the employee-employer relationship.  Put another way, where an employee intentionally falsified documents, it impairs the employee-employer trust.

            The employer has the burden in a falsification case to prove the employee acted as alleged.  The quantum of proof necessary to carry that burden is somewhat greater in falsification cases than in cases not involving moral turpitude.         

            One of the reasons the County suspended and later dismissed Ms. Seaquist was her failure to show on her employment application the reason she left her position with the Department of Community Justice.  Although she said the omission was a mere oversight, the more plausible explanation is that it was a deliberate omission on her part.

            Given the totality of the protracted and profound circumstances surrounding her pending dismissal from the Department of Community Justice by Michael King, it would require an act of faith to credit her testimony on that point.  She gave detailed information on the rest of the page.  The blank space beside the reason-for-leaving phrase is portentous.  It would be unlikely she would inadvertently omit such information from the application knowing she had resigned while on suspension pending dismissal on serious charges.  Contrary to what Ms. Seaquist asserted, the fact was she was not asked to resign her employment with Community Justice, she chose to resign immediately before she was to be discharged because she added her son to her case load, a clear violation of policy.

            Ms. Seaquist’s failure to state the real reason she had to leave the Department of Community Justice was material to her hiring by the Department of Health.  Had the Department known about the circumstances under which she had to leave her previous County employer, she would not have been hired.  The Department of Health deals with confidential information and its employees’ judgment must be trusted.  To have an employee who had been terminated, in effect, for misuse of confidential information, would have presented an unacceptable risk.

            Even if the Health Department had contemplated a lesser penalty than discharge, it could not have kept Ms. Seaquist on as an employee because it was likely the Sheriff’s department would have  revoked her security pass and she would not be able to get into the physical facilities.  There were no positions in the Department that did not require a security pass.  In any location, she would have had access to confidential information.  Her judgment regarding misuse of such information had been established, despite the fact she had been trained and warned about it.  The misrepresentation Ms. Seaquist made on her employment application was material to the County at the time of her discharge.

            The other allegation made by the County for dismissing Ms. Seaquist was that she lied to her supervisor.  At the meeting with Ms. Pickthorne and Ms. Burrow, Ms. Seaquist was asked about her omission on the employment application.  She said she was asked to resign.  That statement is contrary to all the other evidence on the record.  She was not asked to resign, she was on suspension pending dismissal when she chose to resign rather than be dismissed, a fact she must have been well aware of when she omitted the reasons-for-leaving part of the employment application.

            There is no evidence to support a conclusion that Ms. Seaquist was set up for failure at the meeting with Ms. Pickthorne and Ms. Burrow.  Short notice and lack of preparation does not justify deliberate untruthfulness.  The Department’s policies require truthfulness and Ms. Seaquist knew that.  Truthfulness is basic to the employment relationship and critical to the Department’s operations.  Ms. Seaquist’s brief good work record at the Health Department does not serve to mitigate the penalty imposed for her misrepresentation and falsification.

            Contrary to the Union’s arguments, it is altogether proper to consider Ms. Seaquist’s conduct while she was an employee at the Department of Community Justice.  It was her behavior there that, if it had been known to Health, would have precluded her employment by Health.  Her failure to make an accurate representation on the application necessitated and warranted the subsequent investigation and inquiry by Health.

            For the reason set forth above, I have determined the County had just cause to suspend and subsequently dismiss Ms. Seaquist from her employment.  Accordingly, I will enter an award.

AWARD

            The grievance is denied.

            Dated this the _____ day of March 2001.

 

 

                                                                                    ____________________________________

                                                                                    Jack H. Calhoun

116-00OR      

 

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