2005 NAC 104 Delaware City Prison Employees Independent Union and GEO Group/The Wackenhut Corporation

Title: GEO Group/The Wackenhut Corporation and Delaware City Prison Employees Independent Union
Date: November 11, 2004
Arbitrator: Phyllis Almenoff
Citation: 2005 NAC 104

FEDERAL MEDIATION AND CONCILIATION SERVICE

For the Employer

Wayne Wynn, Esq.
Willig, Williams & Davidson
1845 Walnut St., STE 24^th Floor
Philadelphia, PA 19103

BEFORE: DR. PHYLLIS ALMENOFF, ARBITRATOR

WITNESSES TESTIFYING

This grievance was submitted to Arbitrator Phyllis Almenoff pursuant to the terms set forth in Article 12 of the Collective Bargaining Agreement between the parties (Joint Exhibit 3) for a final and binding resolution of the issue. The Arbitrator was jointly selected by the parties from a list submitted to them by the Federal Mediation and Conciliation Service of the United States Government.

The grievance was filed February 14, 2002 and was processed through the steps of the grievance procedure without a satisfactory resolution. The grievance was properly before the Arbitrator.

The hearing took place on September 22, 2004 in a conference room at the law offices of Willig, Williams & Davidson at 1845 Walnut Street in Philadelphia, Pennsylvania. At that time both parties were afforded full opportunity to present testimony, offer evidence and arguments in support of their respective positions and cross-examine witnesses. The Company was represented by James P. Foley and the Union was represented by Wayne Wynn, Esq. Both the Employer and the Union indicated that they wished to submit post-hearing briefs to be post marked on October 22, 2004 and sent to the Arbitrator as well as the other party. The record was closed upon receipt of the post hearing briefs.

The Employer filed a Motion to Dismiss the arbitration without a hearing arguing that the matter is non-arbitrable due to the Union’s failure to pursue arbitration in a timely fashion. The Union responded and requested that the Motion to Dismiss be denied for various reasons. In the alternative, the Union requested a hearing to compel the production of evidence and an opportunity to rebut.

After carefully reviewing both submissions and finding facts in dispute, the Motion to Dismiss without a hearing was denied. A single hearing on both the arbitrability issue as well as the merits of the case was scheduled to maximize the use of hearing time. Should the Arbitrator determine that the dispute is not arbitrable, the merits of the case will not be decided.

2. Did the Employer have just cause to terminate the Grievant’s employment? If not, what shall be the remedy?

A. A grievance, for the purpose of this Article shall be defined as an expressed difference, dispute or controversy between an Officer and WCC or the Union and WCC as to the interpretation of, application of or compliance with, the provisions of this Agreement.

D. In the case of disciplinary suspension, the Officer must submit grievances to Step-2 within seven (7) calendar days of receipt of written notification. In the case of discharges, the Officer must submit grievances to Step-3 within seven (7) calendar days of receipt of written notice.

E. Any unsettled grievance, which has been processed in accordance with the timelines set forth herein, which involves the interpretation or application of this Agreement may be referred to arbitration. Referral to arbitration shall require written notice to that effect to WCC within seven (7) calendar days after receipt of the decision in Step-3, or the expiration of the fourteen (14) calendar day period where a decision has not been rendered. Said notice shall specify the provisions of this Agreement alleged to be in violation, remedy sought, identify the grievant and shall have to it a copy of the grievance…

F. The arbitrator is to be selected by the parties jointly within seven (7) calendar days after the requesting party has given written notice. If the parties fail to agree on an arbitrator. The party seeking arbitration must, within fourteen (14) calendar days of the Step-3 answer or fourteen (14) calendar days of the expiration of the time to answer at Step-3, notify the Federal Mediation and Conciliation Service. (FMCS) The FMCS procedures for selection of the arbitrator shall apply.

1. In rendering a decision, the arbitrator shall be confined to the meaning and interpretation of the particular provision of this Agreement that gave rise to the grievance.

2. The Arbitrator shall not have authority to amend, alter, modify or to add to, or subtract from the provision of this Agreement. Nor shall the Arbitrator have the authority to substitute his judgment for that of the management nor alter, add to or amend the discipline imposed by management unless the discipline imposed is not in compliance with Article 14.

3. The arbitrator shall refrain from issuing any statements of opinion or conclusions not essential to the determination of the issues submitted and is prohibited from using any standard not specified in this Agreement.

4. No claim for back wages under this Agreement shall exceed the amount of earning the Officer would have otherwise earned, less any and all compensation the Officer received from any other source, including unemployment compensation.

5. All fees and expenses of the arbitration shall be borne equally by the parties except that each party shall bear the cost of preparing and presenting its own case.

I. If a grievance is not appealed within the time limits herein before set forth, the grievance shall be deemed to be settled on the basis of the decision last made and shall not be eligible for further discussion or appeal….

J. Any time limits as provided at any level above may be expanded by mutual agreement of the parties provided such agreement is in writing.

ARTICLE 8

COMPANY REGULATIONS

…Officers will be provided a copy of Company Rules and Regulations and are required to adhere to Company Rules and Regulations.

ARTICLE 14

JUST CAUSE

A. Except where otherwise provided in this Agreement, where appropriate, the Company will adhere to concepts of Progressive Discipline, which it defines as the corrective process of applying sanctions short of discharge or suspension when conduct is of a less serious nature. The nature of discipline should be appropriate to the conduct and need not begin with the least serious disciplinary action. Acceptance of the principle of progressive discipline does not limit the Company’s authority to discharge for serious offenses that cannot be condoned.

B. No employee shall be disciplined or discharged without just cause. The Company shall notify the Union in writing, that the services of an employee are no longer desirable, and that he has been disciplined or discharged.

C. In cases requiring an investigation into an alleged violation to determine if a serious infraction of rules, policies and/or procedures has occurred, the Company shall have (10) calendar days (excluding Saturdays, Sundays and Holidays) in which to conduct an investigation and determine if discipline is appropriate. at the end of the 10-day investigation period the Company shall notify the affected officer within four (4) calendar days of the investigation of its decision to impose discipline. written notification of the disciplinary action taken (if any) must be served or sent via certified mail to the employee and the Union.

D. An employee who engages in or actively conspires to engage in the following activities, may be subject to immediate suspension or discharge:

5. Forming a romantic, sexual, business or other unauthorized relationship with inmates.

Note: Should a serious offense occur that is not listed above the Company will consult with the Union prior to making a final determination to suspend or discharge officers.

E. Disciplinary sanctions for less serious violations will be progressive in nature and consist of:

· First Offense: Reprimand: A reprimand may be verbal or written and so noted in the personnel file.

· Second Offense: Written Warning: a written document warning the employee that continued violation of rules, regulations, policies, procedures and/or practices will lead to more serious consequences. a copy of this document will be given to the officer and the original signed copy placed in the officer’s personnel file.

· Third Offense: Suspension: A temporary layoff without pay for serious misconduct or repeated offenses.

· Discharge: The result of a serious breach of a rule, standard, practice, policy, procedure or as a result of repeated disciplinary problems.

In agreement with the Union, the company may skip one or more of these steps, depending on the severity of the violations.

WCC expects all employees to conduct themselves with maturity and self-discipline in the execution of their responsibilities. It is essential that all employees realize that this policy is intended as a guideline to reinforce this expected behavior and to provide a basis for consistent action in the event that behavior falls short of the expectations.

1. Conduct themselves in a manner that creates and maintains respect for themselves as well as WCC. In all their activities, personal and professional, they should always be mindful of the high standards of behavior expected of them;

2. Avoid any action(s) which might result in, or create the appearance of, affecting adversely the confidence of the public in the integrity of the facility.

5. Employees shall not show favoritism or partiality toward an offender, nor shall employees become emotionally, physically or financially involved with offenders or ex-offenders in such a way as to affect performance on the job or the safety and security of the facility.

6. Employees shall not offer or give to an offender or ex-offender any article, favor or service in the performance of the employee’s duties. Neither shall employees accept any gift, personal service or favors from offenders, family members or ex-offenders.

7. Employees who become involved in a set of circumstances as described above (or any situation that gives the appearance of improper involvement with offenders, family members or ex-offenders) should consult with the Facility Administrator. The employee will then be instructed as to the appropriate course of action.

At the commencement of the hearing, testimony and evidence on the arbitrability defense raised by the employer were heard. The following is a summary of the facts relevant to the arbitrability issue:

The Employer argues that the matter is non-arbitrable “due to the Union’s failure to pursue arbitration in a timely fashion.” The Collective Bargaining Agreement (CBA) provides that referral to arbitration requires written notice to the Employer within seven (7) calendar days after receipt of the decision in Step 3. The arbitrator is to be selected jointly by the parties within seven (7) days after providing notice. If the parties fail to agree on an arbitrator, the party seeking arbitration must notify the Federal Mediation and Conciliation Service. The CBA states: “If a grievance is not appealed within the time limits herein before set forth the grievance shall be deemed to be settled on the basis of the decision last made and shall not be eligible for further discussion or review.”

Officer Wroten was terminated on September 23, 2003. The grievance she filed challenging her termination was denied and deemed to be untimely. Because records were lost by the Employer, it is unclear when the Union filed an intention to arbitrate the grievance. The contractual deadline for requesting an arbitration panel from FMCS was October 22, 2003. FMCS did not issue a panel until April 29, 2004. The Employer maintained that six months had elapsed between the time the Union invoked arbitration and the time it took action to select an arbitrator. The Employer stated that in the past, the Company had permitted lapses of three months to two years between the notice of intention to arbitrate and the request for a panel from FMCS. However the Employer argues that the time limits of the CBA should be enforced and the grievance dismissed as non-arbitrable.

The Union maintains that the arbitrability issue should be dismissed because the Union has never filed demands for arbitration with FMCS within the 14-day time frame for various reasons. The Union claims that the Employer does not provide requested documents in a timely manner so that it can evaluate the grievance. In addition, the Union uses a committee to evaluate grievances to determine which cases should be brought to arbitration. The Employer is aware of this practice and has never objected in the past. The Union argued that a request for a panel in this case was made to FMCS but there was no response for several months. Finally, the Union stated that after telephoning the Agency, it discovered that the processing fee had been increased.

The Union provided seven (7) exhibits demonstrating that the fourteen-day limitation for requesting an arbitration panel had not been adhered to for the past two years without objection from the Employer. (Union Exhibit Numbers 1, 2, 3, 4, 5, 6, 7)

The Union argued that there was a past practice of ignoring the time limitations in the CBA thereby waiving the time limits specified in the Contract. The Union representative further stated that they are willing to abide by the time limits in the future but the time limits were waived retroactively.

The Employer bears the burden of proving that the dispute is not arbitrable. The CBA is very clear on the negotiated timelines for the arbitration process. The Union did not adhere to the stated timelines. However, the Union provided clear evidence that the timelines had not been adhered to in the past without objection from the Employer and there was no notice that the contractual timelines would be strictly adhered to in the future. The Company conceded that lapses in complying with the timelines had been permitted in the past. The issue was not discussed at the most recent contract negotiations.

Analysis of Union Exhibits 1 through 7 demonstrates that notices of Intent to Arbitrate and Requests for FMCS panels were not made within the fourteen days specified in the CBA but actually ranged between three weeks and nine months for the past two years (Union Exhibits #1-7) and as long as two years according to the Employer.

The Employer has not enforced the negotiated timelines for requesting a panel from FMCS for a minimum of two years and has waived its right to do so retroactively without providing notice of its intention to adhere to timelines in the future. After a thorough review of the evidence and the testimony, the Arbitrator has concluded that the Employer has not met its burden on procedural arbitrability and its arguments do not carry sufficient weight to be grounds for denying the grievance. The Employer’s case was not sufficiently convincing to deny a review of the merits.

Wackenhut Corrections Corporations (Employer) recognizes the Delaware City Prison Officers Independent Union (DCPEIU), as the exclusive collective bargaining representative for all full-time and regular part time Correctional Officers employed by the Company at the George W. Hill Correctional Facility, Thornton, PA.(Union)

The June 11, 2003 through June 10, 2006 Collective Bargaining Agreement (CBA) covered the Grievant for the relevant period of this grievance. The grieving employee, Officer Chrisann Wroten, was empowered to process her grievance through the grievance procedure, including arbitration, in accordance with the Agreement. (Joint Exhibit 3 – Article 12)

This grievance arose when the Employer terminated the Grievant on September 23, 2003 for maintaining an improper relationship with an inmate and failing to report it. Officer Wroten has been employed at the prison for five years. On August 16, 2003, Alexander Bradway, a man with whom the Grievant was romantically involved for fourteen years was incarcerated at the Correction Center. They were living together, are currently engaged to me married and have a ten-year old son. (Union 9) Officer Wroten does not work in the cell-block to which inmate Bradway is assigned and they have no contact with each other at the Correctional Facility.

A fight between AB and another inmate took place at the George W. Hill Correctional Facility on August 16, 2003. Officer Wroten reported to Captain BB that her fiance (AB) was involved in the fight. The Grievant was placed on Administrative Leave pending the outcome of an official investigation. Following the investigation, Officer Wroten was discharged from employment.

The Employer contends that it terminated Officer Chrissan Wroten for just cause and asserted the following arguments:

Officer Wroten violated the Collective Bargaining Agreement and the Employee Handbook by maintaining an improper relationship with an inmate. She failed to report the relationship to the Facility Administrator. Only after a fight between AB and another inmate on August 23, 2003 did the Grievant indicate that her boyfriend was incarcerated at the Facility. Telephone calls made by inmates are monitored and recorded. There is a sign above each telephone at the Delaware County Prison stating this information. During the investigation of the incident, the Lieutenant reviewed telephone records and calls made by AB. Lieutenant MG discovered that Officer Wroten was the recipient of three telephone calls from AB which were picked up by her answering machine. She did not report these telephone calls to her supervisor. In addition, Officer Wroten participated in three-way telephone calls made to AB’s mother at which time she conversed with him. . On September 15, Lieutenant MG interviewed the Grievant, inmate AB, and Captain BB. A few days later, he interviewed the other inmate who was involved in the altercation with AB and concluded that the Grievant was the reason for the fight. The Employer argued that the Grievant showed favoritism or partiality toward the offender and was financially involved with him because she paid for the telephone calls. They also asserted that her credibility at the Facility was affected by her relationship with the inmate. Officer Wroten was terminated on September 23, 2002.

The Union contends that the Employer did not have just cause to discharge the Grievant and she should be reinstated to her position and made whole. They argued that the CBA had not been violated. Article D5 forbids forming a romantic, sexual, business or other unauthorized relationship with inmates and may subject the employee to immediate suspension or discharge. Officer Wroten did not “form a relationship” but had actually been romantically involved with AB for fourteen years. They live together, are engaged to be married and have a ten-year old son together. Officer Wroten testified that prior to the altercation between AB and another inmate, she informed her supervisor, Captain B that her boyfriend was incarcerated in the Correctional Facility. When asked to put this in writing, she did so. AB was not housed in the correctional facility block to which Officer Wroten was assigned. There was no contact between them at the Facility. At the investigation Officer Wroten admitted that telephone calls had been made to her house by AB and recorded on her answering machine.

The issue to be determined in this arbitration is whether the Employer had just cause to discharge the Grievant under the terms of the Collective Bargaining Agreement, based on all of the facts and testimony in evidence. The CBA provides clear direction to the arbitrator and states the following in Article 12:

In rendering a decision, the arbitrator shall be confined to the meaning and interpretation of the particular provision of this Agreement that gave rise to the grievance.

Let us examine the “Just Cause” provision of Article 14 of the Contract to determine whether the Company was justified in terminating Officer Wroten’s employment.

No employee shall be disciplined or discharged without just cause. The Company shall notify the Union in writing, that the services of an employee are no longer desirable, and that he has been disciplined or discharged.

B. An employee who engages in or actively conspires to engage in the following activities, may be subject to immediate suspension or discharge:

5. Forming a romantic, sexual, business or other unauthorized relationship with inmates.

The testimony and evidence clearly demonstrate that the Grievant did not “form” a romantic relationship with AB. The relationship has existed for fourteen years and produced a son. They are an engaged couple, live together and plan to wed. Under cross-examination, Captain BB testified that he was aware that AB was the Grievant’s boyfriend because she visited him several years ago when he was incarcerated at another correctional facility.

The Arbitrator finds that Article 14 D5 which “may subject an employee to immediate suspension or discharge” is not applicable to this relationship.

Let us consider whether the Grievant violated sections of the Employee Handbook which would make her subject to Progressive Discipline. Article 14 states:

A. Except where otherwise provided in this Agreement, where appropriate, the Company will adhere to concepts of Progressive Discipline, which it defines as the corrective process of applying sanctions short of discharge or suspension when conduct is a less serious nature. The nature of discipline should be appropriate to the conduct and need not begin with the least serious disciplinary action. Acceptance of the principle of progressive discipline does not limit the Company’s authority to discharge for serious offenses that cannot be condoned.

The Employer contends that the Grievant violated the following sections of the Employee Handbook.

3. Conduct themselves in a manner that creates and maintains respect for themselves as well as WCC. In all their activities, personal and professional, they should always be mindful of the high standards of behavior expected of them;

4. Avoid any action(s) which might result in, or create the appearance of, affecting adversely the confidence of the public in the integrity of the facility.

Lt. MG testified that the Grievant’s conduct created the appearance of, and adversely affected the confidence of the public and the integrity of the Facility. When questioned under cross-examination, Lt. MG was unable to explain how her actions diminished confidence in her ability to do her job.

8. Employees shall not show favoritism or partiality toward an offender, nor shall employees become emotionally, physically or financially involved with offenders or ex-offenders in such a way as to affect performance on the job or the safety and security of the facility.

Lt. GB testified that the Grievant showed favoritism or partiality towards AB by speaking with him on the telephone at his mother’s house by way of the three way calling system. However, his explanation as to how her performance on the job or the safety and security of the facility were compromised were not convincing.

9. Employees shall not offer or give to an offender or ex-offender any article, favor or service in the performance of the employee’s duties. Neither shall employees accept any gift, personal service or favors from offenders, family members or ex-offenders.

The Employer alleged that Officer Wroten planned to pay for the telephone calls which would constitute a gift, personal service or favor. The Grievant denied that she said that she planned to pay for the calls. There was no corroborating testimony or evidence. In any event, she did not pay for the calls. This charge must be dismissed.

10. Employees who become involved in a set of circumstances as described above (or any situation that gives the appearance of improper involvement with offenders, family members or ex-offenders) should consult with the Facility Administrator. The employee will then be instructed as to the appropriate course of action.

Captain BB testified that on August 23, after a fight between AB and another inmate, Officer Wroten went to the Shift Commander’s Office and stated that her boyfriend was involved in a fight. The Captain told her to write an incident report concerning the relationship. On cross-examination, Captain BB indicated that he had known of their relationship from a previous incarceration of AB eight or nine years ago. However, Lt. MG testified that prior to the fight, he was unaware that AB was Officer Wroten’s fiance. The Grievant testified that she had told Captain BB about the relationship prior to the altercation and that she wrote it up as instructed. She testified further that she was not instructed to speak to the Warden concerning the appropriate course of action. It is difficult to determine the credibility of the conflicting testimony on this issue without corroborating evidence. However, her supervisor was aware of the relationship and had been for many years. Nonetheless, the Warden was not notified of the relationship as required. The Grievant did not consult with him to receive advice on the appropriate course of action. In addition the telephone calls from the inmate and her conversations with him were not reported to her supervisor.

The arbitrator finds that there have been some violations of the Standards of Conduct. First, Officer Wroten should have informed her supervisors about the telephone calls to her home. Second, Officer Wroten should not have been involved in the three-way calls with her fiance. Lastly, Officer Wroten should have notified the Warden of the relationship as soon as AB was incarcerated and should have sought instruction as to the appropriate course of action.

The Collective Bargaining Agreement requires “just cause” for the Company to discipline or discharge an employee

Discharge is recognized to be the extreme industrial penalty since the employee’s job, seniority and other contractual benefits, and reputation are at stake. Because of the seriousness of this penalty, the burden generally is held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires “just cause” for discharge.[1]

Therefore, it is appropriate for an arbitrator to require clear and convincing evidence. As explained by Arbitrator Richman:

The imposition of a lesser burden than clear and convincing proof fails to give consideration to the harsh effect of summary discharge upon the employee in terms of future employment[2]

1. Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

2. Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?

3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

5. At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

6. Has the company applied its rules, orders and penalties evenhandedly and without discrimination to all employees?

7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?[3]

If one or more of these questions is answered in the negative, then normally the just cause requirement has not been met.[4]

The “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness. The applicable standard is one of reasonableness:

…whether a reasonable person taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline.) [5]

Although some of the tests to establish the “just cause” standard have been met, others have not. Certainly, the degree of discipline administered by the company was not reasonably related to the seriousness of the offense. In considering discipline or discharge, the past record and length of service are given consideration. Officer Wroten has worked for the Employer for over five years. Disciplinary action must be premised upon reasonable, just and sufficient cause. The record does not establish behavior, or work performance issues that rise to the level that compels discharge of an employee who has provided five years of satisfactory service.

In its post-hearing brief, the Employer provided a previously upheld arbitration decision in a discharge case at the prison. In that case, the Correction Officer was video taped using excessive force on an inmate he was responsible for supervising. In this case, Officer Wroten was discharged for a longstanding romantic involvement with a man who became an inmate in another cell-block.

The facts and testimony in evidence compel a finding that the Company did not have just cause to discharge the Grievant. The discipline imposed is not in compliance with Article 14 of the Contract. The Grievance is sustained.

However, Officer Wroten did violate several regulations in the Employee Handbook and a written reprimand regarding these violations should be placed in her file concerning these violations. First, Officer Wroten should have informed her supervisors about the telephone calls to her home. Second, Officer Wroten should not have been involved in the three-way calls with her fiance. Lastly, Officer Wroten should have notified the Warden of the relationship as soon as AB was incarcerated and should have sought instruction as to the appropriate course of action

2. The Employer shall immediately reinstate Officer Chrissan Wroten to her position with back pay, full benefits and seniority as to the date of her termination, less any and all compensation Officer Wroten received from any other source, including unemployment compensation.

3. A written reprimand shall be placed in Officer Wroten’s file concerning the three violations of the Standards of Conduct as detailed in the body of the Decision and Award.

Based on the evidence and testimony entered at the hearing, the Employee’s grievance is sustained. The discipline imposed is not in compliance with Article 14 of the Labor Agreement. The Employer did not have just cause to terminate Officer Chrissan Wroten. The remedy is as follows:

2. The Company shall immediately reinstate Officer Chrissan Wroten to her position with back pay, full benefits and full seniority as to the date of her termination, less any and all compensation Officer Wroten received from any other source, including unemployment compensation.

3. Officer Wroten is to receive her backpay within thirty (30) days of the receipt of this award.

4. I will retain jurisdiction over any disputes between the parties for the sole purpose of deciding any unresolved dispute over the calculation of back pay as well as any other dispute that may arise from this Award for a period of sixty days from this date.

5. A written reprimand shall be placed in Officer Wroten’s file concerning the three violations of the Standards of Conduct detailed in the body of the Decision and Award.

I, Phyllis Almenoff, do hereby affirm that I am the individual described in and who executed this instrument which is my award.

[1] Elkouri and Elkouri, How Arbitration Works 905 (5^th Ed. 1987).

[2] General Telephone Company of California, 73 LA 531, 533 (Richman, 1979

[3] Enterprise Wire Co., 46 LA 359, 363-4 (1966)

[4] Enterprise Wire Co., 46 LA 359, 362 (1966)

[5] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961) See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947)

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.