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Ross Runkel

Title: Auglaize Education Association and Auglaize County Board of Mental Retardation and Developmental Disabilities
Date: May 8, 2003
Arbitrator: N. Eugene Brundige
Citation: 2003 NAC 121

OPINION AND AWARD

In the matter of  Voluntary Arbitration
Under the rules of the American Arbitration Association
(AAA)

Between

The Auglaize Education Association

And

The Auglaize County Board of Mental Retardation and Developmental Disabilities

Regarding

Case Number 53-390-00859-02
{Laura Hobler}

            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.

BACKGROUND:

            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” [1]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.

Management Position:

            Grievant Laura Hobler was charged with violating Sections 5-4-3 of the Board’s Policy and Procedure Manual.

            The sections under consideration read:

• Malicious mischief, horseplay, wresting, or other undesirable conduct, including use of profane or abusive language.

• Threatening, intimidating, coercing, interfering with subordinates or other employees.

• Failure to cooperate with other employees as required by job duties.

The specific allegations levied toward Mr. Hobler were:

1.        Use of disrespectful language in reference to clients.

2.        Failure to take directives pertaining to your job position.

3.        Failure to cooperate with fellow staff by continual questioning and delaying of directives.

The employer called various witnesses to support these charges. 

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 as “morons.”

            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 the order.

            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.

UNION POSITION:

            The 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 positions.

            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 plan.

            If there was a P.T. order, she wanted to see it.

            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 client.

The union notes that Ms. Hobler complied with the order not to do “one man lifts” even though she questioned it.

The 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.

It was this negative microscopic examination that led to this discipline.

The Union properly points out that management must assume the burden of proof in this matter, and asserts that they have not done so.

They ask the arbitrator to grant the grievance.

At 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:

            Let 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 Tom *******. 

            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 Arbitration Hearing.

            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 case.

            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.

AWARD:

            The grievance is denied.

Issued at London, Ohio this 8^th day of May, 2003

______________________

N. Eugene Brundige

Arbitrator

Addendum to Award

            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:

It is crucial that everyone must provide the services exactly as the

plan 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.

Ø      At page four (4) of the Association brief the Association refers to requesting to see a copy of the disputed "physical therapist's order.” (emphasis added)

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.

Ø      Further at page four (4) of the Association's brief it states that the grievant

received "verbal 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.

Ø      At 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.

Ø      At page eight (8) of the Association brief it indicates that:

"Mr.  Farrell was called as a Board witness and exhibited clear

anger and intemperance in dealing with issues involving Mrs.

Hobler. . . , ,”

            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 witness stand.

Ø      At the bottom of page nine (9) of the Association brief they allege that:

"Kim 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

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