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Title: State of Indiana and American Federation of State County and Municipal Employees
Date: April 28, 2004
Arbitrator: 
N. Eugene Brundige
Citation: 2004 NAC 152

 

OPINION AND AWARD

In the matter of Arbitration

Between

 

The State of Indiana, Office of Family and Children

And

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

Regarding

[Jackie Mains]

APPEARANCES:

FOR THE STATE:
Kevin Wild, Advocate
 
Amy Matthews, Dispute Resol. Director
Nancy Lowry, Supervisor 
Traci Eggleston, Office Director
Mary Medler,
[1] Shelby Co. Director

FOR THE UNION:
Sylvia Warrick, AFSCME Rep.
Andrea Helm, AFSCME Rep.
Jackie Mains, Grievant
Jim Mills, AFSCME
Barbara C. Waits, Union Steward
Jean Kelly, CW - PAC    

            An arbitration hearing was conducted April 6, 2004 at the State Government Center in Indianapolis, Indiana.  The issue before the arbitrator related to the termination of Jackie Mains. 

            The basic question before the arbitrator is: “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, 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:

            Jackie Mains was a PAC worker at the Decatur County office of Family and Children.  PAC workers are the first level of contact with clients who apply for public assistance from any one of a number of programs. 

            Prior to May 2002 Ms. Mains was viewed as doing acceptable work.  In May Ms. Mains supervisor, Nancy Lowry went on a medical leave of absence.  Upon her return from medical leave, Ms. Lowry conducted a staff meeting where a disagreement occurred between Ms. Lowry and Ms. Mains.  One outcome of this meeting was a letter of counseling from Ms. Lowry to Ms. Mains.

            Ms. Mains requested that Ms. Lowry communicate with her in writing rather than verbally.  Ms. Lowry apparently complied with this request.

            Ms. Lowry monitored Ms. Mains work and determined that the error rate had increased significantly.  Alerts (notifications) were issued.   The number of alerts increased and in December 2002 Ms. Mains was placed on an initial performance improvement plan.

            During this performance improvement plan period, Jackie Mains was given an opportunity for additional training which she completed successfully.  Her work load was reviewed and it was determined that she would be assigned a reduced case load.

            Subsequent to the initial performance improvement plan the accuracy rate was reviewed and it was determined that the accuracy rate had declined. 

            Ms. Mains was placed on a second or extended, performance improvement plan.  During this period she was provided assistance in organizing the files in her office and offered compensatory time to make corrections to cases.

            On April 23, 2003 a pre-deprivation meeting was convened by Mary A. Bean, Director of the Shelby County Office.  She issued her report and recommendation on May 5, 2003.  She recommended a thirty day suspension to commence May 7 and continue through June 7 at which time Ms. Mains would be dismissed from service.  

MANAGEMENT’S POSITION:

            It is management’s contention that Jackie Mains had the ability to correctly and accurately perform her work but from the fall of 2003 forward, she chose not to do so.  They believe they made many attempts to get Jackie Mains to improve her performance and when this failed they took action that led to her termination.[2]

            Supervisor Nancy Lowry reviewed the accuracy rate for all the workers she supervised starting in  August 2002.

            In August the grievant had a 90% accuracy rate, September was 91% and October the rate dropped to 60%.  In November the accuracy rate was 67% and in December 42%.  She was placed on the performance improvement plan in December.  In January the accuracy rate was 54%, February 38% and March 40%. 

            Ms. Lowry testified that the state standard or goal is from errors to be 5% or below.

            An external audit team was brought in to review Ms. Mains work.  That review cited policy misapplication, failure to follow-up, failure to act on known information, failure to verify information, data entry errors, procedural errors in documentation, and failure to get necessary signatures.

            Formal alerts (notifications) increased to 20 pages during the three month period of the performance improvement plan.

            Other steps taken by management to assist Jackie included providing clerical assistance, assistance by other employees in organizing her office, and corrections to cases with errors.

            Her caseload was reduced and she was provided compensatory time to permit her to make corrections.

            Jackie was provided training and retraining opportunities.

            One of the major concerns of management was the number of over-issuances identified. [3]  At the time of the pre-deprivation meeting over $20,000 had been discovered. [4]

            Based upon all the information provided the employer requests the termination be upheld and the grievance denied.

UNION’S POSITION:

            Not surprising, the Union views this case from a very different perspective.  They note Ms. Mains started work in Ripley County in 1996 and transferred to Decatur County at the end of 1999.

            Her performance evaluations and lack of other documentation would indicate that she was a successful employee.

            She apparently was successful at Decatur County until October of 2002.  They believe management was not fair in dealing with Ms. Mains and harassed her throughout the period leading up to her dismissal.

            Jim Mills, President of Local 3732 and Council 62, testified from a great deal of first hand and family knowledge.  Mr. Mills had served as a PAC worker prior to assuming his Union duties and his wife is a supervisor within the Department.  His mother retired from the same department.

            Mr. Mills testified that he felt management had been too quick to put Jackie into an improvement plan.  He based this on the fact that there had been only one “Fact File” [5] entry prior to the improvement plan.

            He concluded that management didn’t establish a foundation for its actions.

            Jackie Mains testified on her own behalf. She believes she was singled out. 

            She noted that her husband had surgery on October 30 and that they had been suspicious of cancer.

            She testified that she felt like “they (management) set me up to fail.”

            She also testified that she had filed an ethics complaint against the Office Director.

            In its closing statement, the Union argued that Ms. Mains was the subject of disparate treatment.  They noted that other employees had fact file entries and less than perfect accuracy figures.

            They noted the unusual step of bringing in a management auditing team to review Jackie’s work was evidence of the intention of management to harass Ms. Mains.

MANAGEMENT REBUTTAL:

            Management offered testimony from Ms. Eggleston, Office Director to show that she had no knowledge that Ms. Mains had filed an ethics charge against her until after all decisions and actions affecting Ms. Mains had been completed.

            The Union apparently believes management should have been aggressive in determining what was bothering Ms. Mains and in urging her to obtain help.

DISCUSSION AND AWARD:

            This is an unfortunate case.  It appears that Jackie Mains had been a successful employee prior to the fall of 2002.  For some reason that situation changed and the period from October 2002 until Ms. Mains dismissal was one in which her work performance not only did not improve, but actually deteriorated even more.

            While this arbitrator encourages management to work with employees through employee assistance and other means, to deal with personal problems, the only question before the arbitrator is to determine if there was just cause to support management’s decision to dismiss the employee.

            One could speculate as to the reasons why this situation occurred but that would not be particularly helpful.  The responsibility of management is to prove that the work of the grievant was not being performed at an acceptable level.  The evidence on this point is clear and convincing.

            The accuracy rate is much lower than other employees.  Even with efforts to retrain, compensatory time in which to get the work corrected, and the knowledge that management is closely monitoring the situation, there was still no improvement.

            Other indicators such as the number of alerts, the handling of priorities, and the accumulation of overpayments, point to an ongoing serious problem.

            This case differs from the more traditional disciplinary matter in that it is clearly related to job performance instead of ongoing violations of work rules.  As such the arbitrator must look to different criteria to judge the correctness of the management action.  Arbitrator David T. Borland, in a 1985 case, proposed three such factors in reviewing work performance cases.  He said:

            “The Union was quite correct in characterizing the merits of this case as ones involving more a work performance issue than a traditional discharge case,… In such a case, as the parties have argued here, the core of the dispute contains three basic parts.  Arbitrators are usually asked to consider (1) the personal characteristics, attitudes, or abilities of the grievant, (2) the characteristics and established standards of the job to be performed, and (3) the manner in which employees have been trained and evaluated by management as they have attempted to meet the standards.”   [6]

            The characteristics, attitudes and abilities of the grievant were adequate to do this work.  Her performance evaluations show that she had been successful in the past.  The evaluation of her trainers noted that she had the ability to do this work.  Ms. Mains testified that she had been troubled by the uncertainty of her husband’s health. 

            It is unfortunate that she had to face such trying times, but the employee has a responsibility to share those things that are bothering her and to seek assistance to deal with such situations.

            It appears that the grievant has the necessary abilities to perform her job.  One can only speculate as to why she did not do so.  If this was some type of a “protest” related to an interpersonal clash in the office, it was ill advised. 

            Criteria 2 requires the arbitrator to evaluate the reasonableness of the standards and job expectations.  Other employees seemed to be able to perform similar job duties.  While it appears Ms. Mains had a heavier work load than some, there still should have been some improvement when the load was reduced and when compensatory time was offered in order to get caught up.

            The final test relates to training and evaluation.  Ms. Mains was able to convince the trainers that she had the ability to do her job and her pervious job evaluations indicate that she had been successful in performing her duties.

            The union, in an attempt to protect the grievant, asserts that the grievant has suffered from harassment and disparate treatment.  To support their contention, they note no other employee in the office was placed on a work improvement plan.  They note that having the outside audit team review the grievant’s work is unprecedented.

            Arbitrator Gerald Cohen noted in a Central Illinois case: “As to disparate treatment, there is a difference between different treatment and disparate treatment.  While it is true that other employees might have been treated differently, that does not mean that they were treated disparately.  The Union must show factually similar cases in which one employee was treated differently than the grievant.” [7]           

            The Union failed to do so.  There was no other employee with a comparable work record, to which this situation could be compared.

            Management provided a good business reason for its observation of the grievant.

            After carefully reviewing the testimony of all witnesses, reviewing the documents submitted, and considering the arguments advanced, I conclude the evidence established that the grievant was discharged for unsatisfactory job performance after management had made a reasonable attempt to provide the grievant with the tools and opportunity to improve.  Further, there was no evidence to establish that management violated the agreement. 

            Based upon the facts and arguments presented, I find just cause does exist to support the termination.

           

AWARD,

            The grievance is denied.

Issued at London, Ohio this 28th Day of April, 2004

___________________________
N. Eugene Brundige, Arbitrator

 



[1] Mary Medler and Mary Banks are the same person.

[2] During the hearing management attempted to enter a number of “alert letters” into evidence.  The Union objected based upon the fact they had made a request to receive all “alert letters” and they had not received them.  Management explained that the alert letters in state files were provided but that the supervisor had later found other copies.  The Union was given an opportunity to review all the alert letters in dispute, before proceeding.  When the hearing resumed the Management Advocate decided not to introduce the contested alert letters.  The Union also objected to Management Exhibits Numbered 12 & 13.  That objection is over-ruled and the documents are received for what they are worth. 

[3] Overpayments are amounts of assistance improperly paid to clients that must, when discovered, be recollected from those clients.

[4] After the pre-deprivation hearing additional over-issuances were identified totaling $155,000.

[5] A Fact File is a device used to record “any discussion with an employee for complimentary or corrective action or other appropriate information” (from the Fact File Form)

[6] In re MICHIGAN DEPARTMENT OF STATE POLICE and MICHIGAN STATE EMPLOYEES ASSOCIATION,  87 LA 648, February 12, 1986, AAA No. 54 39 011185.

[7] In re CENTRAL ILLINOIS PUBLIC SERVICE COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 702, Arbitrator’s File 95-15-1555 (105) LA 372, October 18, 1995.

 

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