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Title: The Trumball County Sheriff’s Office and The Ohio Patrolmen’s Benevolent Association
Date: October 4, 2002
Arbitrator: Joseph Krislov
Citation: 2002 NAC 119

Opinion and Award
01-09737-6

The Ohio Patrolmen’s Benevolent Association

and

The Trumball County Sheriff’s Office

 

                                                                                            

Arbitrator:   Joseph Krislov, from an FMCS panel

Appearances:

 OPBA 

 

Sheriff’s Office

M. Volcheck

 

J.L. Petronelli

J. Spelich

 

T.W. Stewart

N. Elias

 

L.A. Stredney

 

 

R. Baker

 

 

M. Howard

 

 

J.S. Belany, D.O.

            A hearing was held at the Sheriff’s Office on 12 July 2002.  A transcript was received by the Arbitrator on 30 July 2002, and briefs were submitted and reached the Arbitrator on 6 September 2002.

 Issue:

            Was the grievant, N. Elias, discharged for just cause?  If so, why?  If not, why not and what remedy?

Award:

1.          N. Elias was discharged for just cause.

2.         His grievance is therefore without merit, and must be denied.

Background:

            N. Elias, the grievant, was notified on 6 March 2001 that he had “violated certain rules and regulations of the Trumbull County Sheriff’s Office”, and that the Sheriff proposed to discharge him.  Specifically, the Sheriff’s ten page memo alleged the following violations:

            Article 04 - Maintaining Acceptable and Availability for Work

            Article 07 - Conflicts of Interest

            Article 11 - Dishonesty or Untruthfulness

            Article 13 - Establishing Patterns of Absenteeism

            Article 18 - Observance of Laws

A pre-disciplinary hearing was scheduled for 6 March 2001 (JE2, pp. 49-59).

            A charge by another employee, R. Baker, surfaced a few days after 6 March.  Baker alleged that Elias stole some prescription drugs from her purse.  (ER, J)  And on 29 March 2001 Sheriff Altiere wrote Elias a second memorandum alleging the following violations:

Article 18 - Observance of Laws

Article 20 - Use or unlawful sale or possession of illegal or unauthorized drugs.

The Sheriff proposed to terminate Elias for these violations, as well as the Article 04 and Article 11 alleged violations, previously cited (JE 3).

These two memos contain numerous general allegations to justify the discharge.  The Employer’s brief presents three specific justifications; .  they are as follows:

A. THE EMPLOYER PROPERLY TERMINATED THE GRIEVANT FOR ABUSE AND PATTERNED USE OF SICK LEAVE, WHICH INCLUDE DECEPTION, ACTIVITY CREATING A CONFLICT OF INTEREST AND FAILURE TO OBSERVE LAWS.  (P. 21)

 

B. THE EMPLOYER PROPERLY TERMINATED THE GRIEVANT FOR DISHONESTY, CONFLICT OF INTEREST AND FAILURE TO OBSERVE LAWS.  (p. 39)

 

C. THE EMPLOYER PROPERLY TERMINATED THE GRIEVANT FOR THE SERIOUS MISCONDUCT INCLUDING THEFT OF DRUGS AND POSSESSION OF ILLEGAL SUBSTANCES.  (p. 49)

 

These three justifications are well-focused, presenting me with an excellent framework to analyze the Employer’s action.  I shall examine each justification separately.

            The grievant, N. Elias, is a short term employee, joining the Sheriff’s office in March, 1999.  His attendance record was not very impressive;  I counted 29 days or partial days off through 28 February 2000.  The parties extended the grievant’s probation date and his attendance improved (ER,C).  Elias had no sick days off until 2 July 2000, when he reverted to his earlier pattern.  In both July and August, he was off several days each month for health problems (ER, E).

            Beginning in September 2000, the grievant had to contend with the fact that his father was diagnosed with a serious illness.  In a memo dated 19 September 2000, to the Personnel Director, L. Stredney, Elias wrote:

I am requesting consideration for family medical leave due to my father’s seriously ailing health.  He has recently been diagnosed with kidney and congestive heart failure, unfortunately this all occurred very suddenly which has caused me to miss some time last week.  I am also the only relative with the knowledge of all his medications and such and felt obligated to be there to inform his doctors of all the necessary information.  I am not exactly sure what the outcome of this will be, but I can only hope that I can be there for him when I’m needed without penalty or worrying about whether or not I’m going to loose my job.  Hopefully pending all going well, my father will be transported to Florida by mid October to live with his sister.  I do not foresee any immediate time missed but nothing is certain.  Your consideration on this matter is greatly appreciated.  (ER, D)

 

On 22 September 2000 Stredney responded:  (ER, D, p. 2)

The Sheriff has approved your request for Family Medical Leave due to your father’s illness.  I am sorry that he is not well, and I hope everything works out ok.

The FML has been approved for any medical necessities on behalf of your father from the date of your request forward.  Unfortunately, the dates prior will not fall under the approval because FML must be approved before your using it.

If you have any questions, please feel free to call me.

About a month later, Stredney reminded Elias that a letter from a doctor was needed for absences in October;  she wrote:

I need a letter or memo from your father’s doctor stating that you were needed on October 8, 18, 21, and 22.  This form needs to be kept for payroll purposes and a copy will be put into your personal file.  (ER, D, p. 3)

 

And Dr. Belany, the physician taking care of Elias’ father, confirmed that the grievant was needed “to take care of his father’s affairs”. (ER D, p. 4, 26 October 2000)

            In December 2000 and early January 2001 N. Elias was off work, and Stredney asked for a doctor’s certificate to verify the illness.  (ER, D, p. 8) Employer Exhibit E indicates that a sinus condition was the  reason for the absence.  On 8 February 2001 Elias presented a note purporting to be from Dr. Belany indicating that N. Elias was under his care from December 30, 31, January 1, 2; Feb 4, 5”, and the nature of the illness or injury was to “deliver meds to father in Mansfield”. (See Appendix A, Certificate to Return to Work)

            Correspondence continued between the personnel director and Elias;  Stredney asked about Feb 4 and 5 and asserted that Elias had claimed that the February absences were because of a back injury.  Elias replied sometime after 8 Feb 2001:

           It can go anyway you want it, it started FMLA to back problems! I did not want to confuse them people taking the report off! (ER, D)

            Confused by these responses, the Sheriff authorized an investigation and Captain Stewart of his staff interviewed Dr. Belany and his employees in their office.  Captain Stewart’s report indicates that Dr. Belany did not approve the days off, and that Louis Elias was not his “patient” in December 2000 because he had been moved to Mansfield. (ER, I)  Dr. Belany testified that he sent the father’s records to a pulmonologist in Mansfield, and that doctor then assumed responsibility for the father (T, 91-92).

            Baker’s drug stealing charge was also assigned to Captain Stewart.  He interviewed Baker, Elias and Howard, an employee who witnessed the alleged event. (ER, J, K,L,M,O).  Based on the information from this investigation and the earlier 6 March investigation, N. Elias was suspended on 30 March.  He grieved his suspension/discharge.  Efforts to resolve the grievance failed, and the dispute was arbitrated on 12 July 2002.

Relevant Contract and Legal Provisions:

            The Employer cited 6 pages of pertinent CBA Provisions, specifically portions of the following,

            Article III                  Management Rights

            Article XI                  Discipline

            Article XIV               Grievance Procedure

            Article XXIII             Personal Days

            Article XXIV             Sick Leave

            Article XXXIX           Conflict and Amendment

            Article XLVI              Disciplinary Procedure

                                                (Company Brief, 2-8)

            The Union cited several CBA provisions, particularly Article XI;  it also cited the entire Family and Medical Leave Act (FMLA).  It also included several Department of Labor CFR’s regarding the Act, namely 825.08, 825.301, 825.303 and 825.305.

            The Employer also submitted material on the FMLA, the Department of Labor’s CFR, and a number of court decisions (Employer B, Tabs 4-11).

            And finally the parties here introduced a number of arbitration decisions.  The Union introduced Arbitrator Fabian’s February 2000 decision, and the Company, Arbitrator Gorham’s 1993 decision, Arbitrator Riveria’s 1988 decision, and Arbitrator Mancini’s 1996 decision.

            I have studied all these documents and plan to refer to some of them when appropriate.

Discussion

            I begin with the Employer’s three justifications for terminating Elias.  They were:  the drug stealing and abuse charge;  the dishonesty charge; and the abuse and patterned use of sick leave (p. 2, this opinion).

The Drug Charge:

            The evidence is clear that the grievant stole prescription drugs from a co-worker.  I need only cite the grievant’s own admission (T, 153-4).  There is more (Employer Brief, pp 16-18), but I shall not repeat it here.

            Stealing by a corrections officer is shocking and merits the most serious discipline.  Stealing a prescription drug from a co-worker who is dependent on the medicine indicates a basic lack of sensitivity and consideration. 

The Union’s brief (pp. 10-12) argues that there were mitigating factors.  Baker’s credibility was raised by her contradictory testimony as to when she first knew Elias.  I pursued the issue with her but was unsuccessful in establishing exactly when they met (T, 122-123).  There is also the question whether Baker gave Elias pills.  (T, 116)  And finally the Union cites the “desperate mental state” of the grievant in 2001 and the fact that he has undergone drug abuse treatment since his discharge.

These factors do not wash away Elias’ theft of a co-worker’s prescription drugs.  Elias’ possession and then use of his co-worker’s prescription drugs similarly cannot be easily disregarded.  Standing entirely by itself and completely independent of the grievant’s work record, I believe that his theft and use of drugs clearly merits termination.  A corrections officer who steals and lies about his theft to his co-worker cannot be trusted to perform his duties.

The Union argues that the “Principles of Progressive Discipline dictate that the termination imposed on Elias is too severe” (B, pp 13-14).  I disagree.  Section 11.03 A reads:  “Except in extreme instances wherein the employee is found guilty of gross misconduct, discipline will be applied in a corrective, progressive and uniform manner”.  I regard stealing by a corrections officer as “gross misconduct”.  I also regard depriving a fellow co-worker of prescription drugs as “gross misconduct”.  And I also regard lying to a co-worker about the theft of the drugs as “gross misconduct”.  Section 11.03A compels me to conclude that the Employer was justified in terminating Elias on drug charges.

Having concluded that the Employer was justified in terminating Elias on drug charges does not relieve me of the task of examining the other charges.  I turn to the second charge, the dishonesty allegation.

The Dishonesty Charge

The Employer’s brief is quite focused on this charge.   At issue is whether the “return to work” certificate was “fraudulent”, and whether its submission justifies discharge.  These two questions become intertwined with the FMLA, but the answers focus on the circumstances in this situation.   A somewhat lengthy introduction, perhaps repetitious, is necessary before the two questions can be answered.

            As has been indicated, Elias’ father became seriously ill in August 2000.  Elias requested FMLA leave in September 2000, and it was granted “without delay or dispute” (EB, 11)

            But in late November Elias asked for additional days on FMLA leave and additional days in late December/early January 2001 for “sinus” (ER, E).  Because the request listed “sinus”, L. Stredney requested a physician’s return to work for these absences.  Elias returned with a most confusing “return to work” certificate from his father’s physician!  In addition, the right to work slip lists “deliver meds to Father in Mansfield” as the nature of illness, not “sinus”, and adds dates in February, the 4th and 5th.

            Stredney was understandably confused, and, as has been indicated, Captain Stewart was dispatched to Dr. Belany’s office to make sense of this note.  Dr. Belany reported that he had stopped treating Elias’ father in November; and asserted further that he had not authorized the return to work notice, and that the handwriting on the note was not his Secretary’s, as claimed by Elias (T, 94-95).  As  indicated in the Company Brief (p 14), six days to deliver “meds” to Mansfield is “implausible”.  Elias confirmed this conclusion at the hearing, admitting that he had not delivered meds on each of the six days, but only in late December (EB, 30)

It seems clear that the Grievant misrepresented his situation.  Exactly why he did this is not clear.  All he had to do was visit the new doctor in Mansfield (whom he testified he never met), and obtain some work releases for FMLA.  Why engage in this deceptive and devious behavior?  Elias testified that he could not account for his behavior during much of this because of his father’s illness and other family mishaps (T, 131-132).  Losing a parent is a traumatic and stressful event.  Elias was undoubtedly distressed during the long period from late 2000 to February 2001 while his father lingered.  While the Employer and I are obligated to take into account his stressful circumstances, I cannot believe that they justify his misrepresentations.

The FMLA Connection

            With this background, I am now prepared to examine the FMLA provisions that the parties have cited.  The Union’s brief argues that the employer “failed to provide written guidance... concerning his rights and obligations under the FMLA.”  As a result, the Sheriff cannot take any action against Elias (p. 8, 29CFR, 825.301 (a) (2), 825.208 (b) (i), (c) and 825.301 (f)).

            As has been indicated, the Sheriff’s office approved his September request for leave.  It seems obvious that the Employer could have supplied more information, but a reading of Elias’ request suggests that it is not clear exactly what details were needed or what would be particularly useful.  Elias wrote on 18 September:

I am not exactly sure what the outcome of this will be ... Hopefully pending all going well, my father will be transported to Florida by mid October to live with his sister.  I do not foresee any immediate time missed but nothing is certain.  (see p 3, this Opinion)

 

Confronted with this request, it is understandable that Stredney wrote to grant him FMLA leave (ER, D, 22 September 2002).  When Elias requested leave in October, Stredney wrote that a notice from his father’s doctor was needed.  After that Elias’ memos and requests were so confusing that the Employer was not sure what kind of leave he was requesting.

            Was the Employer in violation of the Guidelines to justify the penalty suggested in 301 (f)?  I cannot conclude that it was because of the uncertainty of the Grievant’s request and the basic correctness of the Employer’s responses.

            Assuming that the Employer had been technically negligent, the Sheriff’s brief points to an FMLA guideline that seems to exonerate the Office.  It argues that what is relevant is that the Grievant lied about his reasons for taking time off (B, 33).  And it cites the Labor Department’s Compliance Assistance material as follows:

The protection of FMLA will not however, cover situations ... where the employee has misrepresented the reason for leave ( Tab 6, Q&A, p. 9)

I accept the Employer’s argument that the grievant’s return to work slip misrepresented his situation.  Hence, I concluded that Elias cannot claim FMLA protection.

            Having concluded that the FMLA does not bar disciplinary action, I now turn to the issue of a proper penalty.

            As in the earlier allegation, I must conclude that presenting a fraudulent return to work notice is “gross misconduct”.  The Employer’s brief (pp 39-48) documents in detail the harmful impact on a Sheriff’s operations when correction officers are dishonest.  Accordingly the Employer was justified in terminating Elias on a “dishonesty” charge.

The Abuse and Pattern of Sick Leave Charge

            The Employer’s case is straightforward, and rests upon Section 24.10 (T, 17 and CBA, 21).  It reads:

Any abuse or patterned use of sick leave shall be just and sufficient cause for disciplinary action.

Following this section in CBA is Section 24.11 which provides for specific penalties for use of sick leave during a calendar year.  Paragraph A reads as follows:

24.11 A.  Effective June 1, 1996, use of sick leave, other than injury leave or leave utilized pursuant to FMLA, on six (6) or more occasions in any calendar year, shall subject the employee to disciplinary action according to the following schedule:

                        Six (6) times             written caution letter

                        Seven (7) times         one (1) day suspension

                        Eight (8) times           two (2) day suspension

                        Nine (9) times           three (3) day suspension

                        Ten (10) times           ten (10) day suspension

Clearly Section 24.10 was drafted before Section 11, and designed to handle sick leave abuse in general.  The new section, effective in 1996,  is designed to deal systematically with problems within a year.  Section 10 remains with general authority to discipline sick leave abuse beyond a year.

            Moreover, Sheriff Altiere’s 6 March 01 memo (JE 2) alleging violations of the office’s rules and regulations charge Elias with attendance infractions.  Specifically, Elias is charged with violating Article 4 “Maintaining Acceptable Attendance and Availability for Work” (p. 49).  Elias is also charged with violating Article 13, “Establishing Patterns of Absenteeism”; the regulation includes the following example:  “Use of sick leave at a rate that consistently leaves the member’s balance at or near zero (e.g. less than 16 hours”) pp 54-55).

            The Arbitrator concludes that the CBA and the Sheriff’s Rules and Regulations permit discipline for “the abuse and patterned use of sick leave”.  The time period of abuse must be extended beyond a calendar year because the parties have jointly established Section 24.11 to govern sick leave problems during a year.

            Was the grievant guilty of abuse and patterned use of sick leave during his employment of two years?  It is difficult to imagine a worse case.  Acting under Section 24.11 the Employer’s brief claimed 12 disciplinary measures (p. 24) during Elias’ two year tenure.  The Employer’s brief points out that:

The only period of time in which the grievant did not use up his sick leave as quickly as it was earned, as well as take more sick leave time than available, was during his extended probation, which was provided specifically in an attempt to correct the Grievant’s sick leave abuse. (p. 23)

The brief also points out “that the Grievant reported off for sick leave in excess of his available hours on 51 days.” (p. 26)

What remains inexplicable is the Grievant’s exemplary behavior from approximately mid-Jan to July - not a day off for sick leave (ER,E).  Of course the Grievant must have known that his probationary was ending in February and that he might not be awarded permanent status.  When his probationary status was extended, the Grievant again realized that his job was in jeopardy.  And he behaved appropriately and was awarded permanent status.  When his probationary status ended, he began a pattern of abuse.  He disregarded the gift of a “second chance”, and unfortunately his father’s illness and death complicated his efforts to maintain an acceptable attendance record.

            While the Grievant his indicated that he is drug free and eager to work, I regret that I can find little that would permit me to conclude that Elias’ attendance will permanently improve, and hesitate to reverse the Employer’s judgment regarding Elias’ future performance.

Summary

            I was asked to determine whether the grievant was discharged for just cause.  The Employer presented three justifications for the discharge.  I examined the drug theft and possession charge first because it is the most serious.  The evidence was overwhelming and it included the grievant’s admission of the charge.  Elias’ misrepresentations in securing the return to work certificate (Appendix A)  also justified discharge.  Finally, the grievant’s abuse and patterned use of sick leave in violation of Section 24.10 and the Sheriff’s rules and regulations warranted discharge.  I concluded that there was no basis for me to intervene and set aside the Sheriff’s judgment.

 

 

_______4 October 2002________            ____   ___  _____________       _____
                  
Date                                               Joseph Krislov, Arbitrator

 

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