OPINION AND AWARD
In the matter of Voluntary
Auglaize Education Association
Auglaize County Board of Mental Retardation and Developmental Disabilities
An arbitration hearing was conducted February 26, 2003 at the Auglaize
County Board of MRDD offices in New Bremen, Ohio.
The parties stipulated the issue the Arbitrator was to decide as being:
“Was the discipline imposed for just cause?
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. Both
advocates presented their respective cases competently and professionally.
Both parties submitted post-hearing briefs, which convincingly summarized
the positions of the respective parties. All
evidence, arguments and views were considered by the Arbitrator in reaching the
decision stated herein.
At the hearing the parties agreed that the matter was
properly before the arbitrator for determination.
In that this grievance deals with a disciplinary matter, management assumed the burden of proof and presented its case first.
Laura Hobler, Workshop Specialist, was assigned to work with client T.L. around July 2, 2002. T.L. had previously been transferred from Wapakoneta City Schools to the MRDD program due to his age.
An Individualized Service Plan (ISP) meeting was conducted on July 18. Such meetings are held to help determine the appropriate services to be provided to each client. The Grievant was present for this meeting.
Following the ISP meeting, on July 26 the Grievant received a directive from Service Coordinator, Betty Gaerke indicating that the ISP would be changed to reflect the discontinuation of “one person lifts” for T.L.
Ms Hobler questioned Ms. Gaerke as to why the ISP was being changed. Grievant was informed that the change was based on the order of a Physical Therapist. The Grievant was apparently not satisfied with the answers she received from Ms. Gaerke.
Ms. Hobler testified that she was informed by the mother of T.L. that he did not have a Physical Therapist.
Ms. Hobler continued to question the change in the ISP to a two man lift. She asked other staff about the order. She asked to see the order. She asked Greg Ferrall, the Workshop Director about the order.
The Union’s brief reports that the Grievant received fifteen (15) memos from Ms. Gaerke and responded, in writing, to at least five (5). She was “verbally coached” to discontinue her inquiries. She did not do so.
On October 16, 2002 the Grievant received a
notice of a pre-disciplinary meeting. That
meeting was held on October 18 and on October 25, the Grievant received the
superintendent’s decision to suspend her for three days.
Grievant Laura Hobler was charged with
violating Sections 5-4-3 of the Board’s Policy and Procedure Manual.
The sections under consideration read:
The specific allegations levied toward Mr. Hobler were:
Use of disrespectful
language in reference to clients.
Failure to take directives
pertaining to your job position.
Failure to cooperate with
fellow staff by continual questioning and delaying of directives.
The employer called various witnesses to support these
Becky Busse, a Habitation Specialist, testified that
the Grievant continually questioned directives from the speech therapist and
that her continued questioning delayed implementation of the plan.
According to Ms. Busse, the Grievant questioned
the goals determined by the Speech Therapist and felt they were all wrong.
Ms. Busse said she approached the Therapist at least eight (8) times to
be sure because of the Grievant’s continuing arguments.
She testified that in one meeting with the
Speech Therapist, Ms. Busse left the meeting due to the badgering of the
Therapist by the Grievant.
Debbie Miller testified that while in the copy
room on October 1, the Grievant referred to clients in the Adult Activity Room
Ms. Gaerke testified regarding the controversy
surrounding the “two man lift.” She
stated that following the ISP meeting she had a discomfort about T.L. being
lifted by one person. She
approached the Case Manager who informed her that there was a Therapist order
requiring a two person lift. She
discussed the matter with her supervisor, Greg Farrell, who instructed her to
send a memo to staff.
The Grievant, once she received the memo,
called Ms. Gaerke and demanded to see a copy of the order.
Ms. Hobler continued to question the two man lift procedure during July,
August and September.
Ms. Gaerke testified that she was notified by
the OEA representative that the Grievant had accused Ms. Gaerke of lying
regarding the physical therapy order.
Mr. Farrell testified that the Grievant
approached him on three or four occasions to dispute the order, the necessity of
the order and to accuse Betty Gaerke of lying about the order.
He testified that he directed the Grievant to drop the subject and obey
Superintendent Willis testified about his
thought processes in administering discipline.
He believes that the continued alleged infractions warrant a greater
level of discipline than a three day suspension but he used the lesser
discipline to attempt to convey a message to the Grievant.
He testified that he believes Ms. Hobler is a
good employee who cares about the clients but must improve in the area of
cooperation with other staff and in following directions given.
Grievant sees herself as a dedicated employee who cares deeply about the
clients. She has
been with the program for twenty two (22) years and has held a number of
She felt when she left the ISP meeting for T.L.
that all things were agreed to and she was upset to receive a change in that
If there was a P.T. order, she wanted to see
She does not deny that she may have used the
word “moron” but if she did so it was in a joking manner and only staff
members were present.
She felt that her questioning of the speech
therapy order was for clarification and to assure the best was done for the
union notes that Ms. Hobler complied with the order not to do “one man
lifts” even though she questioned it.
Union’s view of this situation is that Ms. Hobler embarrassed persons who
mishandled the ISP process and, as a result, thereafter Ms. Hobler was
placed under negative scrunity by management.
was this negative microscopic examination that led to this discipline.
Union properly points out that management must assume the burden of proof in
this matter, and asserts that they have not done so.
ask the arbitrator to grant the grievance.
the conclusion of the hearing, upon questioning by the Arbitrator, the Grievant
stated that she believed she had received a fair hearing and that her Union had
represented her well.
DISCUSSION AND AWARD:
us begin with a discussion of a procedural matter.
Prior to the hearing the Union requested of the American Arbitration
Association, that the Arbitrator issue a subpoena for the treatment records of
The Arbitrator issued that subpoena.
The employer immediately moved to quash.
A pre-hearing telephone conference was held to hear arguments on the
motion to quash.
It was decided that the employer would not
supply the treatment records (due to their concerns about client
confidentiality) and that the matter would be further considered at the
At the hearing the parties were able to agree
to an alternate method of obtaining the needed information without the
introduction of the treatment plan.
The motion to quash was granted.
This arbitrator believes that Grievant Laura
Hobler does care deeply about the clients she works with.
Having made that observation let us review the issues in the instant
The Union apparently wants this arbitrator to
view Laura as some kind of crusading “whistleblower” who has uncovered some
wrongdoing and is persecuted for tirelessly pursuing the truth.
The facts simply do not support such a view.
Let us turn first to the questioning of the
orders of the Speech Therapist. The
un-refuted testimony is that the Grievant questioned the plan and the goals time
and time again.
The Board hires persons with various
specialties and skills and vests them with the authority to make decisions.
If all such decisions could be made by the Direct Care workers, then
there would be no need for specialists.
The Union makes much of the fact that the
Speech Therapist was not called to testify at the Pre-Disciplinary Hearing.
That person, or any other, could have been subpoenaed to appear at the
Arbitration if they had a contrary view to offer or more facts to impart.
Again, the un-refuted testimony of another
witness is that the Grievant used the term “moron.”
I am persuaded that she did.
The Union asserts that the term, if uttered at
all, was taken out of context by an overly sensitive administration that is
“out to get” Laura. There is a
very simple way to guard against such review.
Do not make such statements.
Finally, the entire episode surrounding the
“one lift” vs. “two lift” discussion is hard to believe.
If the facts had been reversed and the memo had said to discontinue a
“two man lift” and replace it with a “one man lift” I might view the
situation differently. Perhaps then
the Grievant would have been concerned about the client’s safety and some
questioning might be appropriate.
But in this case where the outcome could only
result in a more safe environment for the client, there is no reason to continue
this exercise to the lengths it went.
When an employee receives a notice of a change
it is always appropriate to question it for understanding and clarity.
If there really was a question if the memo was sent with the knowledge of
supervision, it might be appropriate to resolve that question.
But once the Grievant knew that the supervisor knew about the memo it was
time to let go.
As a twenty two year employee, I am sure there
are times when Ms. Hobler feels she knows better how to do some things than the
person in charge of that area, but she must still respect the chain of command
and work collaboratively with her co-workers.
I commend the Superintendent for his restraint
in this matter for I agree that this employee can be salvaged.
I also would strongly suggest that the Grievant examine her behaviors and
adjust her working relationships in order to be able to continue to serve the
clients she has served for the past twenty two (22) years.
In summary, I find the employer had just cause
of impose a three day suspension for the violations listed above.
The grievance is denied.
Issued at London,
Ohio this 8th day of May, 2003
N. Eugene Brundige
On May 7, 2003 this Arbitrator received from
the American Arbitration Association, correspondence from both parties in this
matter regarding the post hearing brief filed by the Association.
Mr. Goldberg, Attorney for the Board, in a
letter dated April 23, 2003, argues that “The Association has presented as
‘facts’ some statements that were never testified to at hearing either in
oral testimony or through exhibits. It
has further mischaracterized testimony of management witnesses and just
misstated testimony in an effort to put the grievant’s behavior in a different
light. Further the Association
attempts (after the close of the hearing) to enter some undated, unsigned and
un-sworn papers as exhibits in its brief.”
Mr. Goldberg cites several “examples” to
support his contention.
Ms. Begay, Case Manager for the AAA, afforded
the Association an opportunity to respond to these allegations.
Becki Villamagna, Labor Relations Consultant
for the OEA, responded on behalf of Jennifer Romick who is on medical leave.
After further examination of the letters, the
post hearing briefs and a replay of parts of the audio tape of the hearing, I
find that there are instances in which the Association Brief assumes and uses
facts not in evidence.
Let me deal with the specific allegations
contained in Mr. Goldberg’s letter.
At page three (3) of the Association brief it states as a fact that:
that everyone must provide the services exactly as the
requires as It is a
formal legal document under the Americans with Disabilities Act (ADA) and
services may not be changed
until the entire committee meets again to amend or change the plan. "
A review of my notes and the audio tapes do not
reveal any such testimony offered in the hearing.
The comment is stricken and was not considered by the Arbitrator in the
preparation of this Award.
page four (4) of the Association brief the Association refers to requesting to
see a copy of the disputed "physical therapist's order.” (emphasis
review of my notes and the audio tapes do not reveal any such testimony offered
in the hearing. The comment is
stricken and was not considered by the Arbitrator in the preparation of this
at page four (4) of the Association's brief it states that the grievant
coaching" to dissuade her from further inquiry.
While there is no actual testimony regarding
“verbal coaching” the Arbitrator read this statement as being a
characterization of the action taken by Mr. Farrell, rather than assigning any
specific contractual meaning to the term. The
request to strike this statement is over-ruled.
page seven (7) of the Association brief relating to the use of the term moron in
reference to clients by the grievant, the Association says that: "Questioning of the Board witness showed this was in
a humorous setting.”
A review of the Arbitrator’s notes and the
audio tapes show that the statement in the Association Brief was not an accurate
reflection of the testimony on this point. The statement in the Brief will be stricken and the
Arbitrator’s notes and audio tape will govern.
(8) of the Association brief it indicates that:
"Mr. Farrell was called
as a Board witness and exhibited
anger and intemperance in dealing with issues involving Mrs.
. . , ,”
It is a well established fact of Arbitration
Procedure that the Arbitrator has the sole and exclusive task of assessing the
demeanor and behavior of witnesses. This
Arbitrator assumed that the Association was drawing its own conclusion about Mr.
Farrell’s demeanor. The
Arbitrator saw no evidence of either anger or intemperance exhibited on the
At the bottom of page nine (9) of the Association brief they allege that:
Harruff; who was appointed as the hearing officer; was the direct supervisor and
close personal friend of Ms. Gaerke, one of
the client witnesses against Mrs. Hobler.” (emphasis added)
A review of the Arbitrator’s notes and the
audio tapes reveal no testimony was entered regarding the relationship between
Ms. Harruff and Ms. Gaerke. The
section of the Association Brief is stricken and was not considered in the
preparation of this award.
N. Eugene Brundige
 AEA Brief, page 4