28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: State of Indiana and American Federation of State County and Municipal Employees
Date: September 25, 2002
Arbitrator: 
N. Eugene Brundige
Citation: 2002 NAC 136

 

OPINION AND AWARD

 

In the matter of Arbitration

Between

 

The State of Indiana, Family and Social Services Administration – Evansville State Hospital

And

American Federation of State County and Municipal Employees (AFSCME) Indiana Council 62, Local 289

Regarding

Grievance Number 01-A-84100-036
[Shirley A. Reed]

APPEARANCES:
FOR THE STATE:  
John Wood, Advocate
 
Ralph Nichols, Superintendent ESH
 
Amy Hedges, State Personnel
 
Cletus Miller II, Witness
  
Jeff Weir, Witness
   
Tracey Harris, Witness
FOR THE UNION:
Susan J. Leib, AFSCME Attorney
George Dearing, Staff Rep.
Shirley Reed, Pres. Local 289 and Grievant
and Grievant
Sherrie Hurst, Witness
Lois Marks, Witness

            An arbitration hearing was conducted August 29, 2002 at the Evansville State Hospital at Evansville, Indiana.  The issue before the arbitrator related to the suspension of Shirley Reed.  Ms. Reed was and is president of the local union.  This was an unusual case in that this arbitrator had previously decided a termination case involving Nancy Rowley from her position at Evansville State Hospital.  This arbitrator had sustained Ms. Rowley’s grievance and reinstated her.  The instant case involves Ms. Reed’s role in the investigation of the Nancy Rowley matter.  

            Ms. Reed was suspended for a period of thirty days.

The basic question before the arbitrator is: “Was the discipline imposed for  just cause?  If not, what shall the remedy be?”

            Early in the presentations the parties discussed the fact that the suspension was for thirty workdays and that Indiana law and policy only permitted a maximum suspension of thirty calendar days.  The union asserted this position and the state did not disagree. 

            Both parties were given full opportunity to examine and cross-examine witnesses, pose arguments and present their respective cases.  Both advocates presented their respective cases competently, efficiently and professionally.  All respective evidence, arguments and views were considered by the Arbitrator in reaching the decision stated herein.

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

BACKGROUND:

            The grievance claims violations of Article 26, Article 24, and Article 2 “including but not limited to any other Articles, Policies, Work Rules, past practice just cause or applicable laws.”

            The basic position of the grievant was that she was suspended without “just cause” and that management failed to conduct a fair investigation.

            The remedy requested included:

            “1,  Remove the suspension and all allegations from my record.

2.    Give me back pay and all compensation appropriate for lost time.

3.    Suspend Ralph Nichols for 30 days for wrongful action taken without the accurate investigation or just cause.  Make Ralph Nichols responsible for the same loss he would impose.

4.    I wish to be made whole.”

            In the heat of the circumstances surrounding the Nancy Rowley termination Shirley Reed entered into conversation Cletus Miller and Jeff Weir.  She is accused on witness tampering and improper contact with an employee regarding his sexual orientation.

MANAGEMENT’S POSITION:

            Management contends that Ms. Reed confronted Mr. Miller in the closet in the J4 Nursing Office.  She asked him to change his statement regarding Nancy Rowley.  While in this setting Mr. Miller testified that Shirley Reed said to him: “How does it feel to be back in the closet?”

            Subsequent to this conversation Ms. Reed realized that she had confronted the wrong person.  Her intended contact was with Jeff Coombes who is a roommate of Mr. Miller.

            Mr. Miller had not made any comment about Nancy Rowley and had no knowledge of the circumstances of her case.

            Management then called Marla Renee Weir.  The Union objected on the basis that she would be testifying regarding events that allegedly took place after the date of these incidents and after the filing of the grievance.

            After giving each party full opportunity to argue their respective decisions, it was the decision of this arbitrator that incidents occurring after the date of this grievance could not be relevant to this proceeding.  The objection of the union was sustained and Mrs. Weir was excused.

            Management called Jeff Weir who stated that he had run into Shirley Reed near the Union Office door.  He said Ms. Reed asked him to come into the office  and Ms. Reed then asked him to change his statement regarding Nancy Rowley. 

            Mr. Weir said he asked her how changing his statement would affect his job.  He stated she did not answer him.  He stated that he never gave Ms. Reed a reply.

            He said they went on to discuss a grievance Mr. Weir had filed.  During this discussion Ms. Marks enter the Union Office.

            Management called Superintendent Nichols.  He stated that in March 2001 he was informed of these alleged incidents.  He said he asked Don Thorpe to investigate.  He described Mr. Thorpe’s credentials and the quality of his work. 

            Mr. Nichols indicated that he had attempted to get Mr. Thorpe to the hearing but that he was committed elsewhere.

            Mr. Nichols described the process he followed in gathering input into the appropriate penalty for this matter.

            Mr. Nichols testified that Ms. Reed stated in the pre-deprivation meeting that she did not know the contemporary meaning of the term: “in the closet.”

            On re-direct Mr. Nichols testified that neither Ms. Reed nor her union representative, provided names of other witnesses.

UNION’S POSITION:

            The union called Sherrie Hurst who has been a QMA for eighteen years.  She testified regarding the incident in the Nursing Office.  She stated that Shirley Reed asked Mr. Miller if he wanted to change his statement.  He stated that they were standing back by the closet but not in the closet, and that this was a very short conversation.  Ms. Hurst testified that she did not hear any comment about being “in the closet.”

            She testified that Cletus is very open about his sexual orientation and that he talks about different people he meets and his dates. 

            The Union then called Tracy Harris who has been a Psych Attendant for four and a half years.  Ms. Harris said there were a “couple staff in there” and that she heard Shirley Reed and Cletus Miller talking “something about the Nancy Rowley case”.  She said Shirley was looking through some papers.  She testified that Shirley Reed was talking something about the ketchup incident.

            When asked if someone was sitting by the desk she stated: “I don’t remember.”

            On cross-examination Ms. Harris was asked, “You don’t remember anything specific that was said?”  She answered “No.”  She indicated that Cletus put his gym bag in the closet.

            Lois Marks testified that she has been employed for twenty-two years and that she entered the Union Office while Jeff Weir and Shirley Reed was there.  She indicated that the two of them were discussing a grievance Jeff had filed when she entered. 

            She said Shirley did not “strong arm” Jeff but that they did talk about Jeff’s statement.  She said the conversation was very relaxed and that Jeff Weir asked, “What do you want me to do?”

            The grievant was called to testify.  She stated that she had been an employee for twenty-three years and that she had never been disciplined except for this occasion.

            She related her version of the two events in question:

            She said she was conducting an investigation at step four and that she had people read their statements and then asked: “Is there anything in your statement you want to change?”

            She denied telling Cletus he was “in the closet.”

DISCUSSION AND AWARD:

            During the hearing the Union advocate offered the suggestion that labor and management representatives at the Evansville facility ought to sit down and work out a process for conducting investigations.  She offered the possibility that perhaps the Staff Representative could conduct some of the investigation steps.  I strongly endorse and recommend these steps be taken following the conclusion of this matter.  It is apparent that everyone thought they were operating properly but much work remains to be done to ensure that the proper roles of the respective parties are provided and protected without tramping on the rights and responsibilities of others.

            Circumstances surrounding the Nancy Rowley matter were very emotional and confrontational.  Tempers apparently heightened and, from the vantage point of this arbitrator, significant mistakes were made on both sides.

            Let us evaluate the testimony of the various witnesses. 

            I find Mr. Miller’s testimony to be very credible.  From the evidence presented he did not appear to be involved in the pending matter.  He was caught off guard when questioned by Ms. Reed. 

            As to what happened in the Union Office, I doubt if the testimony of either of the principal witnesses is totally accurate.  This is to be expected based upon the passing of time and the passion that surrounds the relationship of these persons. 

            Ms. Marks testimony is likely more accurate but she was not in the room for the whole period of time.  Her remembering that there was no “strong-arming” is not the determining factor.  The question is whether the intention and desire of Ms. Reed was to gather facts in order to properly process the grievances or to influence the testimony offered.

            If Ms. Reed had only confronted Mr. Weir I might view the matter differently.  Mr. Weir seemed to be willing to change his testimony.  Ms. Reed likely felt that management had applied pressure on Mr. Weir that resulted in him changing his testimony.  That was a matter to be considered at the Rowley arbitration (and it was).

            It is the right and responsibility of the union to ascertain what a witness is going to say, but not to influence the content of witness statements.  

            I have some difficulty with the testimony of Ms. Harris and Ms. Hurst.   The grievant and the Union had ample opportunity to report the presence of these two women throughout the process but only mentioned that they had something to contribute when the case gets to arbitration.

            Arbitrator Allen in a Proctor and Gamble case faced a similar situation.  A witness was called at the last minute to provide material information.  He concluded that he could not give much credence to that testimony.

“that V_ was calling N_ a ``wife beater, child molester,'' etc.,  was  not mentioned by the Grievant at any point in the Begin hit highlightgrievance investigation End hit highlight prior  to the arbitration hearing. This is honestly confirmed by Union Official Gary  Smith. Had this ``excuse'' been brought to light by N_ during the grievance  process, the Company could have investigated the truth of this allegation to  determine if it constituted sufficient ``mitigating circumstances'' to merit a  lesser penalty than discharge. As it stands now, the undersigned can give  little weight to N_'s testimony regarding the ugly nature of V_'s alleged  ``gossip.'' [1]

            It is interesting to note that there were apparently other employees also present in the J4 Nursing Office but they were not called.

            Even though there is some suspicion in my mind regarding the late identification of these witnesses, their testimony was not particularly helpful to the grievant’s case.  Ms. Hurst indicated that she heard Shirley Reed ask Cletus Miller if “wanted to change his statement.”  This is quite a different question than asking a witness if the statement is accurate.

            Based upon the evidence considered I find that Shirley Reed did attempt to get witnesses to change their statements.  That crosses the line between the proper execution of union duties and interference.  The proper charge certainly was not intimidation.  Witness tampering more correctly describes the offense.

            Let us turn to the second part of the charge relating to the alleged sexual innuendo surrounding the conversation in or by the closet.

            Much discussion took place regarding whether of not Shirley Reed and Cletus Miller went totally into the closet in the J4 Nursing Office.  I doubt that this happened.  Based upon the testimony it appears that Shirley and Cletus had a conversation just outside the closet.  It is clear that Cletus had gone into the closet to place his gym bag there.  It is likely that the two persons were standing at the opening of the closet. No testimony was offered indicating that the door was closed although Mr. Miller testified that Shirley Reed “pulled it [the door] to”.

            As noted above, Ms. Reed apparently asked Mr. Miller if he wanted to change his statement.  The remaining question is whether Shirley Reed made a statement to Cletus Miller about being back in the closet.  Mr. Miller says she did.  Ms. Reed said she did not.

            Ms. Hughes and Ms. Harris said they did not hear anything like that.  I have discussed the problem I have found with their testimony earlier.

            One of the tasks of an arbitrator is to make credibility determinations regarding conflicting witness statements

            In this case I believe the statement was made.  The evidence shows no reason why Mr. Miller would fabricate such a statement.  In light of the fact Mr. Miller says he is not particularly bothered by discussions of his sexuality, I have to believe such a statement was made.

            Likewise I find it very difficult to imagine that Shirley Reed, as a state employee, and as a union president, had never encountered the term “in the closet.”

            The union made the point that Mr. Miller talks openly about his sexual orientation and implies that if Shirley’s statement is improper then Mr. Miller’s statements are also improper. 

            I agree.  Discussions of sexual matters in the work place must be guarded and in good taste or the person risks creating a hostile work environment.  This is true whether the discussion is of a homosexual or heterosexual nature.  Mr. Miller’s alleged statements are not a part of the case before me.

            In order to establish sexual harassment the conduct must either meet the test of quid pro quo or hostile work environment.  There is no assertion of quid pro quo in this matter The concept behind hostile work environment is that statements or behaviors of a sexual nature may embarrass or make uncomfortable a person or persons who are, or are not, necessarily directly involved in the discussion or action.

            Cletus Miller testified under cross-examination that he was not offended, embarrassed or bothered by discussions of his homosexuality.  No other witnesses said that they heard the “closet” comment.  Thus, I cannot conclude that the statement rises to the level of sexual harassment.  If Cletus Miller is offended by the statement it is sexual harassment.  If he is not, it is something else.  In his statement of March 14 Mr. Miller reported the incident but does not say if he was offended.

            Investigator Thorpe’s report states that Mr. Miller was not “intimidated” but was “offended.”  We have the problem that Mr. Thorpe was not present to be examined regarding exactly what was said to him.

            The charge, however, is not sexual harassment but “improper conduct with a co-worker involving his sexual orientation.”  I do believe Shirley Reed made a statement to Cletus Miller regarding being in the closet.  This is an improper statement and should not occur in the workplace.  I do not believe the evidence supports the conclusion reached by the superintendent when he writes: “…therefore an atmosphere of sexual harassment was created.”

            In conclusion, I find that Shirley Reed did engage in witness tampering by attempting to get employees to change their statements and that she did involve herself in improper conduct with a co-worker involving his sexual orientation.

            While a 30-day suspension is a severe penalty, an effort to get witnesses to change their statements is a very serious offense.  I find no reason to question the judgment of management in the penalty assessed.

            As noted, the penalty imposed appears to be in excess of the maximum allowed under Indiana law.  Because of this, Ms. Reed is to be reimbursed for days for which she was suspended beyond thirty calendar days.

            Other than this adjustment, I find that just cause exists to support the discipline imposed. 

AWARD,

            Except for the adjustment stated herein, the grievance is denied.

Issued at London, Ohio this 25th. Day of September, 2002

___________________________

N. Eugene Brundige, Arbitrator

 



[1] In re PROCTOR & GAMBLE COMPANY GREEN BAY, WISCONSIN and Local 47, PAPER, ALLIED INDUSTRIAL, CHEMICAL & ENERGY WORKERS (PACE), 114 LA 1195, August 10, 2000, Dale Allen, Arbitrator.

 

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028