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Title: State of Indiana and American Federation of State County and Municipal Employees
Date: October 9, 2001
Arbitrator: 
N. Eugene Brundige
Citation: 2001 NAC 144

 

OPINION AND AWARD

 

In the matter of Arbitration

Between

The State of Indiana, Richmond State Hospital

And

American Federation of State County and Municipal Employees (AFSCME) Indiana Council 62

Regarding

Grievance Number 01-A-844-12,13,14
[Philip English]

APPEARANCES:
FOR THE STATE: 
Kevin Wild, Advocate
Beth Hatfield, State Personnel 
Amy Hedges, State Personnel 
Judy Malone, RSH Clinical Director
Lisa Suttle, witness
Brenda Jeffries, witness  
Darlene Caves, witness 
Melanie Collins, witness 
FOR THE UNION:
Andi Helm, Advocate
Jay Wallace, Staff Rep.   
Mr. Robinson, Pres. Local 795
Philip English, Grievant
Peggy Floyd, Union Steward
Bill Clouse, Staff Rep.

            An arbitration hearing was conducted on September 11, 2001 at the Richmond State Hospital at Richmond Indiana.  The issue before the arbitrator related to the termination of Philip English from his position as Licensed Practical Nurse.  Three grievances were filed on the subject.:  Even though there were sub-issues, the basic question before the arbitrator is: “Was the discipline imposed just?  If not, what shall the remedy be?”

                        Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases.  All respective arguments and views were put forth and considered by the representatives of both sides.

            In that this grievance deals with a disciplinary matter, management assumed the burden of proof and presented its case first.

            The three grievances were all filed on January 5, 2001 and all covered basically the same subject matter from a different perspective.  The first cites the Preamble, past practice and Articles 1, 2 and 4.  The grievance states “This grievance continues to be harassed by management.”  The remedy requested includes: “(1) Stop the harassment, (2) Allow him to do his job, (3) Stop Progressive Discipline and (4) Make whole.

            The second grievance also cites the Preamble, past practice, Article 26, Section a,c, and d.  The statement of the grievance is “Suspension of 30 days, pending dismissal, “predis” untimely, had been scheduled for 1-3-99.   The remedy requested includes:  (1) back pay from suspension & possible dismissal, (2) remove pre-dis and disciplinary action, (3) Pre-dis untimely. (4)  Be taken out of his disciplinary action so he may laterally transfer to another agency. (5) make whole.

            The third grievance again cites the Preamble, past practice, and Article 26, a,c,d, and f.  The statement of the grievance is “Untimely Employee Performance Appraisal.  Incorrect dates, Incorrect information, Dated 8-98 – 8-99.  Information dated 10-11-99.  Given to grievant 45 minutes before Pre-Dep meeting.”  The remedy requested  (1)  Receive correct appraisal for correct year 99-2000. (2)  Remove incorrect comments sheet, (3)  Make management accountable, (4) make whole.

            Prior to the commencement of the hearing the union stated an objection that they had requested numerous documents regarding this matter and they had not received all that they had requested. 

            Management responded that a significant number of documents had been provided to the union but some of the documents had only been requested two days earlier.

            A recess was taken while management attempted to gather the requested documents.  It was then decided to proceed and if the union felt that management was using a document they had not seen, the union could file an objection at that time.

MANAGEMENT’S POSITION:

            Philip English had been a Licensed Practical Nurse at the Richmond State Hospital, Division of Mental Health.  Prior to coming to Richmond State Hospital he had been employed in a similar position in the Department of Corrections.  He had made numerous medication errors throughout his time at Richmond.  He had received other discipline and had been removed from administering Insulin while he underwent additional training.  In spite of these efforts he had another incident November 11, 1999.  A pre-deprivational meeting was scheduled for December 7, 1999.  The grievant was not present for that meeting and went on disability leave.  The employee returned on January 3, 2001 and the hearing was held at that time.

            Lisa Suttle testified that Mr. English had been involved in at least eight other medication errors and three more were pending except that they had been put on hold pending the outcome of this proceeding.

            Other management witnesses outlined the record of Mr. English at Richmond State Hospital.  This outline included:

            An incident on 1-11-99 wherein the grievant didn’t properly read a Doctor’s order.

            An incident on 1-18-99 wherein a telephone order was not written properly

            On 1-12-99 the grievant was referred to Staff Development for a refresher class.

            A reprimand on 4-13-99 regarding the administration of PPD

            An incident on 5-10-99 regarding failure to fax Glucometer readings for a diabetic patient.  (These last two incidents led to a pre-deprivational hearing on 6-11-99 which resulted in a five day suspension.)

            A counseling on 3-25-99 addressing problems with duties being completed on time.

            A counseling on 3-12-99 regarding treatment plans beings completed on time.

            A counseling on 2-3-99 communicating standards of job performance.

            Management submitted the State’s Discipline Policy which indicates that for serious conduct Disciplinary Progression is fulfilled in two or three steps:  Step 1: Reprimand/Suspension,  Step 2:  Suspension Dismissal, Step 3: Dismissal

            Based upon the fact there had been progressive discipline, other medication errors and efforts at retraining, the decision was to suspend for thirty days pending dismissal.  Management asks that the Arbitrator uphold the termination.

POSITION OF THE UNION:

            The Union contends that Mr. English has been harassed since coming to Richmond State Hospital.  They note that he had no discipline while working at the Department of Corrections.

            They believe the performance evaluation was untimely and should not be considered.

            They also assert that disparate treatment is involved in this incident and that the employee has had problems because of the supervision of Brenda Jeffries.

            They offered testimony that this employee was not trained when he came to work for the Richmond State Hospital.

            The remedy asked is that Mr. English be awarded another state position and that he be paid for time lost, have his leaves reinstated, as well retirement benefits.  They also asked that he be reimbursed for any medical bills that he may have incurred during the time he has been separated from employment.  Finally they asked that once reinstated, the grievant be allowed to transfer to another position.

            The union offered significant testimony regarding the events of January 3, 2001.  In their view it was apparent that management had already made up their minds regarding the outcome of the pre-deprivational meeting before it was held.  They state that Mr. English was handed a letter at the hearing telling him he was being suspended for thirty days pending termination, even though he asked for additional time to review his notes and answer the charges against him.

DISCUSSION AND FINDING:

            First let us consider the three separate grievances.  Let us consider the parts of the contract the union believes have been violated.

            Each grievance includes an assertion that the Preamble of the Collective Bargaining Agreement has been violated.  While many unions routinely list this I fail to understand why.  The Preamble is a philosophical statement of the commitments of each party to that agreement.  Listing it as a point of contention does not seem to be helpful to this arbitrator.  I have never seen a grievance granted on the basis that the preamble was violated.

            Likewise, Past Practice is listed on each grievance and yet no past practice is asserted, much less proven.

            We turn then to the substantive Articles that are quoted in the various grievances.  They include Articles 1, 2, 4 and 26 A,C,D, & F.

            Article 1 is the recognition Article.  No testimony was offered or issues raised, that impact on this Article.

            Article 2 Is Non-Discrimination.  Except for a vague reference to disparate treatment, no testimony was offered or issued raised, that impact on this Article.

            Article 4 is the Affirmative Action Article.  No testimony was offered or issues raised, that impact on this Article.

            Article 26 is the Article that outlines the disciplinary procedures for the State of Indiana and AFSCME employees.  It is this article that is at the heart of this Arbitration.

   While much paper has been put forth the basic issue remains: “Was the Discipline Imposed for Just Cause, if not what shall the remedy be?”  In deciding this question the Arbitrator must decide if there are procedural defects that prevent the State from establishing “just cause.” 

            First let me address the question of documents that may or may not have been provided to the union.  In order to properly process a disciplinary case, management should provide any documents which it will rely upon to prove the State’s case to the union at the time the decision is made to utilize that particular document.

            If the union desire other documents a timely (emphasis added) request should be made to the State for such documents and they should be provided forthwith.  In this case the union made its request very late (some of the documents were requested only one or two working days before the arbitration) and management may not have routinely provided documents when the decision was made to utilize them.

            For future reference I would suggest the parties have conversations about document exchanges much earlier in the process.  This would allow the parties to be more selective in deciding which documents to submit, rather than just submit lots of paper to the arbitrator.  It would also be very helpful if the parties would meet to decide which facts and documents could be stipulated into the record.

            In the instant case it is my ruling that more than enough documents were submitted and exchanged to allow the arbitrator to understand the case at hand and prove the respective points of view of each party.  Likewise, it seems to this arbitrator that the union did receive adequate documentation to properly defend this case as was evidenced by the through and complete job done by the union in presenting its case.

            A second area of concern raised by the union related to the extremely long time lapse between the first scheduled pre-deprivational meeting and the final one conducted on January 3, 2001. 

            This arbitrator cannot give an opinion on whether or not the State could have proceeded to conduct the hearing in the absence of the employee, and proceed with the discipline while the grievant was on disability leave.  In order to give such an opinion I would have needed to consider the policies governing disability and other relevant policies of the state.

            If the State had attempted to interrupt the disability leave by the imposition of discipline the Union would most likely have objected noting that to do so was to deprive the grievant of a different and separate right to disability.

            The State apparently decided to put all proceedings on “hold” and to pick up the process as soon as the grievant returned to duty.

            The grievant was presented with a performance appraisal form, and then called into a reconvened pre-deprivational hearing.  He stated that he could not recall the events of the incident being discussed and asked for additional time to “review his notes.” 

            The grievant would then have us believe that he was immediately handed the letter from Lisa Suttle which is marked Management Exhibit 1.

            This arbitrator has a hard time believing this remembrance of the events.  The letter details what happened at the 11:15 hearing on January 3.  It clearly appears to have been written after the meeting closed.  The grievant’s testimony, and that of Peggy Floyd, that some letter was handed to grievant at the end of the meeting is not found to be credible.  If such a second letter existed, and if it announced a determination of a thirty day suspension pending dismissal, then certainly either the grievant or the union representative would have kept a copy.

            Regarding the fact that the grievant was not given additional time to offer a defense, the contract says: “the employee will be provided an opportunity to respond and explain any mitigating circumstances during the meeting.”  The record does not indicate that the requested “continuance” was granted.

            The decision maker left the meeting and made her decision.

            The grievant asserts that he was harassed by members of management at Richmond.  This arbitrator has no way of determining if there was some dislike of him or not, but he could have protected himself by not violating the rules or expectations of his supervisors.

            The grievant was clearly on notice regarding the expectations of management and efforts were made to retrain him.  Management substantively met the contractual obligations regarding due process.  Progressive discipline was followed and fell within the policy guidelines of the State of Indiana.

            Therefore I can find no reason to overturn the discipline proposed.

DECISION:

            I find the discipline imposed (30 day suspension pending dismissal, and  dismissal) to be for just cause.  The three grievances are denied.

It is so ordered at London, Ohio this 9th. Day of October, 2001.

N. Eugene Brundige, Arbitrator

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