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Title: Butler County ESC and SEIU, District 1199WKO
Date:
July 27, 2006
Arbitrator: 
N. Eugene Brundige
Citation: 2006 NAC 117

OPINION AND AWARD

In the matter of Voluntary Arbitration

Between 

SEIU, District 1199WKO

&

Butler County ESC

FMCS No. 060320-54620-8
(Linda Martin)

Before
Arbitrator N. Eugene Brundige

Date of Hearing:
May 8, 2006

Date of Receipt of Briefs:
May 27, 2006

Date of Opinion and Award:
July 27, 2006

 

APPEARANCES:

            FOR BUTLER COUNTY:               FOR THE UNION:
Michael L. Fischer, Attorney
Dan Hare, Superintendent  
Nancy Baker, TIP Program Manager 
Candie Bower, Family Services Worker
Lori Thesken, Asst. Supt. H.R.
Kathy Matteson, Director
Jeff Narten, Administrative Organizer
Linda H. Martin, Grievant
Beth Skidmore, ESU Steward


            An arbitration hearing was conducted May 8, 2006, at the offices of the Butler County Educational Service Center (ESC) in Hamilton, Ohio.

            The Grievant was represented by Jeff Narten, Administrative Organizer for Service Employees International Union, District 1199.  Butler County ESC was represented by Michael Fischer, Attorney.

            The issue before the Arbitrator in this matter is: Was Grievant Linda Martin terminated for just cause?  If not what shall the remedy be?

Background:

The Butler County ESC operates a Head Start Program for qualifying children in Butler County.  Head Start is a joint federal and state program designed to provide educational, social and other services for economically disadvantaged preschool children and their families with the goal of helping those children improve their abilities to be successful in regular public school program. 

Butler County Head Start operates a program called the Therapeutic Interagency Program (TIP) in conjunction with Butler County Children’s Services Board.  This specialized Head Start program provides, in addition to regular Head Start services, more intensive mental health counseling and monitoring services. 

            The TIP Program is for those preschool children who are identified by Children’s Services as facing an increased risk of being physically or sexually abused.

            The County operates two TIP classrooms.  The one in question meets in the mornings in Hamilton.  The second classroom operates in the afternoon in Middletown, Ohio.

            Three teachers or teacher assistants, one family service worker, and one mental health professional are available to each classroom.

            Linda Martin, the grievant in this case, was employed as an assistant teacher in the Butler County classroom.  In addition, Ms. Martin rode the bus with the children to and from their homes as a monitor.

            On December 5, 2005, the grievant called in sick.  She was asked to ride the morning bus and monitor the children and then return home on sick leave.  She agreed to do so.

            On the bus one male student identified as MO told the Grievant he was mad at his sister JO.  JO overheard this comment and told Grievant that “MO was mad at her because she wouldn’t let him lay down on her anymore so grandpa could take pictures. JO went on to tell the Grievant that grandpa took pictures and put them on the computer.” [1]

            The Grievant told the family services worker about this incident and later made a note in her running notes, but did not report the incident to Children’s Services or to her supervisor.

            Supervision became aware of the incident by reading the Grievant’s running notes on December 22, 2005.  Program Director Baker attempted to call Children’s Services to determine if the Grievant had made a report of this incident.  She did not receive a call back from Children’s Services until January 10, 2006.

            The Grievant admitted that she did not report the incident to Children’s Services.

            The Grievant was terminated for failure to follow proper procedures. 

            A grievance was filed and processed to arbitration. 

            At the arbitration hearing both parties stipulated that the grievance was properly before the Arbitrator for determination.

            At the conclusion of the hearing the grievant stated that she believed she had received a full hearing and that she had been properly represented by her Union.

POSITION OF BUTLER COUNTY EDUCATIONAL SERVICE CENTER

            The Employer argues that a similar event happened a few months before.  Witnesses testified that in late September MO began having toileting accidents even though he had been toilet trained when school started.  The school team discussed these accidents in an October meeting.  Late in October the Grievant assisted MO in cleaning himself from such an accident.

            It was reported that the Grievant said to MO that she needed to clean his backside a little more since he did not get it completely clean.

            At this point MO resisted and began to cry.  He told Grievant: “No, I don’t want you to put anything in.” [2] 

            This incident occurred on October 25, 2005.

            The Employer notes that the Grievant did not ask any follow-up questions or report the incident to her superiors.

            The Grievant did write an entry about the incident in her daily report.[3] 

            Program Manager Nancy Baker reviews the daily reports in order to compile a monthly report to Children’s Services.  Ms. Baker discovered this entry when she reviewed the daily reports early in November.  She met with the Grievant on November 11, 2005, to review the October 25 incident.

            Ms. Baker testified that the Grievant admitted she had “dropped the ball” regarding the October 25 incident.

            Also on November 11, a team meeting was held to discuss MO’s behavior and his comments to the Grievant.  Dr. Jane Sites, a consultant and founder of the TIP program in Hamilton County, was present.

            Dr. Sites explained to the team indicators of possible sexual abuse.  It was noted that MO’s behaviors might be such indicators.  The procedures for reported suspected child abuse were reviewed again as well as techniques that might be used to elicit more information from a child.

            Management argues that it gave the Grievant the benefit of the doubt regarding the October incident, and provided counseling and training on proper procedures.

            It argues that the December incident, which followed the same general pattern of failure to properly report, led Management to the conclusion that termination would be the only proper penalty for this serious breach.

            The Superintendent recommended to the Butler County Educational Services Center Governing Board that Ms. Martin be terminated.  The Board concurred and she was terminated February 23, 2006.

POSITION OF THE UNION AND THE GRIEVANT

            Neither the Union nor the Grievant dispute the material facts in this matter.  They do note the following items.

            On December 5, 2005, the Grievant did report the conversation among herself, MO, and JO in her “running notes.”  She completed the report to Children’s Services on January 12, 2006 and did mention something of her concerns to the family services worker requesting follow-up and that the FSW should be aware of any conversation about “grandparents prior to her leaving”[4] on December 5, 2005.

            The Union explains that the Grievant was sick on December 5, 2005, and reported off during the morning.  Only after a request from Management to ride the morning bus run, did she show up for work.  After recording the conversation in her “running notes,” she went home on sick leave.

            The Union notes that the Grievant’s supervisor, Nancy Baker, discovered this conversation in the notes on December 22, 2005, and left a message with Children’s Services but did not take any other action until January 10, 2006.  The Union points out that Ms. Baker did not ask the Grievant anything about the matter for nineteen days.

            While admitting the matter could have been handled better, the Union offers as a mitigating circumstance, the fact that the Grievant was taking a medication for continued pain that her Doctor states could cause a “memory issue that would interfere with reporting.”

            The Union introduced a letter from the doctor wherein he took personal responsibility for having prescribed the medication in question  and notes there is a  high probability that it affected her memory.  The Grievant went to the doctor who changed the medication to one that does not cite memory loss as a side effect.

            The Union notes that the December incident occurred because the Grievant made herself available for work even though she was sick.  The alternative would have been to cancel transportation for the clients.

            The Union argues that the break in the normal routine of being sick disrupted the likelihood that the Grievant would have remembered to follow-up on this conversation the next day.

            The Union proffers an interesting theory that the “running notes” may have been removed from the book after December 6, 2005, thus preventing their review. 

            The conclusion reached by the Union is that a number of factors intervened to “block further investigation.”[5]

            The final argument advanced by SEIU is that progressive discipline was not followed.  The Union notes that no discipline was issued as a result of the October incident.

            SEIU argues that ESC Policy is not clear that termination is the likely result for failing to properly report. 

            The failure of Nancy Baker to take more aggressive action after discovering the entry in the Daily Report leads the Union to conclude that she did not view this matter as seriously as it is being portrayed at the arbitration hearing.

            It was noted that the Grievant has been a successful employee of the Board for more than twelve years and that she has a good record of filing reports and a good history of performance evaluations.

            The Union notes that the Ohio Revised Code reference should not be considered in that it is a criminal statute.  If Ms. Martin was believed to have violated the statute, she would have to have been charged criminally.

            In conclusion, the Union argues that there are more than enough mitigating circumstances to reverse the determination of termination.

RELEVANT AUTHORITY:

Article 13-Disciplinary Procedure—Collective Bargaining Agreement

Employees covered by this agreement may be disciplined, including suspended and/or terminated, for just cause. Depending upon the nature of the offense, progressive discipline will be utilized, i.e., an employee shall be warned orally and in writing before being suspended for the same or similar offense, and an employee shall be suspended before being terminated for the same or similar offense, provided, however, that the Superintendent may accelerate disciplinary measures to any step if the gravity of the offense warrants such action.

Before an employee can be suspended or terminated, the employee shall be notified in writing of the reason for the proposed disciplinary action and provided a hearing before the Head Start Program Director or designee at which the employee may respond to the proposed disciplinary action. If it is the decision of the Program Director or designee to suspend or terminate the employee, the employee may appeal the suspension or termination action to the Superintendent. At the Superintendent's discretion, an employee may be taken out of service, without pay, until the hearing process provided for herein is completed. Grievances pertaining to suspension or termination shall begin at Step 3(a) of the grievance procedure. All other disciplinary grievances shall begin at Step 1.

An employee shall be entitled to union representation at any meeting or hearing which may result in discipline being imposed or at which discipline is imposed. A copy of any disciplinary action shall be provided to the Union President.

Except for employees in the probationary period provided for in Article 8, an employee may appeal any discipline given to the grievance procedure.

In imposing discipline on a current charge, prior infractions which occurred more than two (2) years prior to the current charge will not be taken into account provided the employee has not been disciplined for the same or a similar offense within the two (2) year period.

BUTLER COUNTY POLICY MANUAL – Relevant Sections

L.       Child Abuse and Neglect Report.

The Governing Board is concerned with the physical and mental well-being of the children and will cooperate in the identification and reporting of cases of child abuse or neglect in accordance with law.

Each employee or contracted provider of this agency who knows or suspects child abuse or neglect shall be responsible for reporting the suspected abuse or neglect in accordance with the superintendent's guidelines. In accordance with Ohio Revised Code 2151.421, no employee or service provider shall fail to immediately report the knowledge or suspicion of abuse or neglect to the Butler County Children's Services Board or local police department. Such reporting shall be required in every case that reasonably indicates that a child under the age of 18 or a physically or mentally disabled child under the age of 21 has been abused or neglected or faces a threat of being abused or neglected.

OHIO REVISED CODE Section 2151.421(A)(1)

 (A)(1 )(a) No person described in division (A)(1 }(b) of this section who is acting in official or professional capacity and knows or suspects that a child under 18 years of age or a mentally retarded, developmentally disabled, or physically impaired child under 21 years of age has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of a child, shall fail to immediately report that knowledge or suspicion to the entity or persons specified in this division. Except as provided in section 5120.173 of the Revised Code, the person making the report shall make it to the public children's services agency or a municipal or county peace officer in the county in which the child resides or in which the abuse or neglect is occurring or has occurred.

{b}       Division (A}(1 )(a) of this section applies to any person who is .. . administrator or employee of a certified child care agency or other public or private children's services agency; school teacher; school employee; school authority…

DISCUSSION:

            The facts in this matter are not really in dispute.  The October incident is acknowledged although the parties see the importance of this event from very different perspectives.

            Management sees the October event, the counseling, and the subsequent training provided by Dr. Sites as providing notice.

            The Union sees the absence of discipline as a signal that Management did not view the failure to properly report as a very serious error.

            There is some truth in both views.  Certainly Management did address this failing to properly report in a very humane and professional manner.  Likewise, one can see how an employee might view the lack of discipline as a signal that the failure to properly report was not as serious as is being portrayed in the subsequent termination for the second incident.

            In a perfect world Management would have clearly indicated to the Grievant, following the training, that a repeat of the October incident would lead to her termination.  We do not live in a perfect world.  Instead it is plausible that Management believed, based on the employee’s prior record, that the counseling and refresher training would solve the problem.

            Nothing in the record would indicate that Management in any way condoned the behavior present in October.

            It must be noted that the Grievant is not being terminated for her role in the October incident but that occurrence is important in light of the progressive discipline language of the collective bargaining agreement.

            I must conclude that the Grievant was aware of her error and its potential serious effect when she indicated she had “dropped the ball”[6] when speaking of the October incident.   

            I do not find that the October incident can be viewed as a first step in progressive discipline.  No discipline occurred and the grievant was not clearly warned that a repeat of her actions would lead to termination.

            Thus, I must consider the December incident on its own merits and decide if termination is an allowable disciplinary step pursuant to the Agreement between the parties.

            The language of the Agreement is standard in establishing the steps of progressive discipline.  The caveat or exception language is somewhat unique.  The language states: “however, that the Superintendent may accelerate disciplinary measures to any step if the gravity of the offense warrants such action.”

The central question can be phrased as, “Does the gravity of the offense (the failure to properly report the December incident) warrant termination?”

On the surface it would appear to do so.  The Grievant is a mandated reporter as specified in Ohio Revised Code 2151.421.  The statute clearly states the responsibility of such persons:  No person described in division (A)(1 }(b) of this section who is acting in official or professional capacity and knows or suspects that a child under 18 years of age… has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of a child, shall fail to immediately report that knowledge or suspicion to the entity or persons specified in this division.”

There is nothing vague about the instructions contained in this statement. 

While the Union is correct in noting that the Grievant is not charged criminally for a violation of this section of law, the statute still has value in determining the responsibilities of persons covered by it.

In addition, the policies of the Butler County Board capture and reiterate the same standard.

In the mind of this Arbitrator the duty of reporting statements such as were heard on December 5, 2005, rises to the level of meeting the “gravity” test established in the collective bargaining agreement.

The testimony of the Grievant in explaining that the words she wrote in her daily notes do not truly reflect what she heard appear self serving and unconvincing.  The notes written the same or next day are much more likely to accurately reflect what was said than the testimony as revised by time and the realities of the arbitration hearing.

The Grievant wrote: “J said the kids got their Christmas presents from J’s grandmother.  They also saw J’s mom whom none of them had seen in about a year.  M said he is mad a J.  J interrupted and said M is mad cause J wouldn’t let him lay down on her anymore so grandpa could take pictures.  Grandpa took pictures and put them on the computer.”  [7]

The record indicates Grievant had knowledge of the fact that grandpa had a history of sexual abuse.

Any reasonable person considering that statement would conclude that a suspicion existed that would require mandatory and immediate reporting to Children’s Services or at least some follow-up inquiry to glean more information. 

The Grievant did report the incident in her daily notes and did bring the issue to the attention of another employee, but neither action fulfills the requirements of the policy or the statute.

Let us turn our attention then to the matter of mitigation.  Termination or discharge is an extremely serious action and requires careful review by an arbitrator.  The prevailing view among arbitrators is stated in How Arbitration Works which is considered by many as the most authoritative work on arbitration.  It states: “Discharge is recognized to be the extreme industrial penalty since the employee’s job, seniority and other contractual benefits, and reputation are at stake.” [8]

Conversely, arbitrators are slow to substitute their judgment for that of management regarding the level of penalty involved.  Arbitrator Whitney P. McCoy articulated this standard in a landmark case in 1945 when he said:  “Where an employee has violated a rule or engaged in conduct meriting disciplinary action, it is primarily the function of management to decide upon the proper penalty.  If management acts in good faith upon a fair investigation and fixes a penalty not inconsistent with that imposed in like cases, an arbitrator should not disturb it.  The mere fact management has imposed a somewhat different penalty or a somewhat more severe penalty than the arbitrator would have, if he had had the decision to make originally, is no justification for changing it.” [9]

In offering arguments for mitigation, the Union fulfilled its statutory responsibility of representing the Grievant by advancing several arguments and theories . 

In reviewing those arguments I find the first relating to the fact that the daily notes were, perhaps, removed is not relevant to this matter and not well founded. 

The questions of the medication and the health of the Grievant at the time of the December incident does require careful examination.

The Union submitted at note from Doctor Rothstein M.D. that was presented to Superintendent Hare.  In that letter Dr. Rothstein states:

Linda Martin is a patient whom I have been treating for intractable neck pain, which has included some radiation into the upper back, should and head, consistent with her BWC allowed diagnoses.  As part of her management, I added Topamax for the neuropathic component of her pain.  Topamax is known to cause memory problems, forgetfulness and confusion and as such, I discontinued that medication.

It has come to my attention that Linda had some problems at work, which were related to the side effects mentioned above, and as such, I do not feel she would be held accountable, as the medications could certainly have been responsible.  I feel that the medications were indicated and that her ongoing pain supports the use of anti-neuropathics, but I have obviously switched her from that medication.” [10]

The Arbitrator is sympathetic to the fact the Grievant decided to report to work even though she was ill that particular day.  The fact she was in pain must be noted, but the letter from the doctor is of limited use in deciding this case. 

Without the testimony and cross examination of Dr. Rothstein or another medical profession, it is difficult to determine what exact role the prescribed medication might have played in this particular case.

While due note is made of the medical opinions of the Doctor recorded in the first paragraph of his letter, the second paragraph raises more questions than it answers.  It is difficult for the Arbitrator to understand how Dr. Rothstein could state with certainty, “It has come to my attention that Linda had some problems at work, which, were related to the side effects mentioned above, and as such I do not feel she should be held accountable.”

Without benefit of medical testimony the Arbitrator must rely upon his own research into the impact of Topamax.  All material reviewed lists as one of the possible side effects “problems with memory.”

Allowing this possible side effect of the medication, if the Grievant had fulfilled her responsibility as stated in the statute and the Butler County policy by “immediately reporting” at the same time she remembered to record the incident in her daily notes, then the potential side effect would not have come into play.

The Union also notes that the Employer must not have viewed the matter as very serious in that there was no follow-up between the time Nancy Baker discovered the entry in the daily notes on December 22, 2005, and the subsequent return call from Children’s Services in January 2006.

While I agree that this was not the most professional work on the part of the supervision of the program, the investigation into the protocols of follow-up rests with Management.

It is plausible that the rush of the holidays and the uncertainty as to whether or not the report had actually been made to Children’s Services could account for the delay.

 Regardless, I do not feel this shortcoming excuses the clear statutory responsibility of the Grievant.

Arbitrator Duane Traynor in a case between Eureka Company and IAMAW Local 1000 reached a similar conclusion when the union argued that a delay in initiating an investigation into a complaint of sexual harassment was evidence that the employer did not take the matter seriously.  He wrote, in that case: “I am not persuaded that the… delay in making the investigation indicates Management didn’t think this a serious matter.”[11]

It is apparent to this Arbitrator from the documentation and the testimony at the hearing, that all involved in Management and the Butler County Board viewed this situation as a very serious matter.

It is always sad when an employee with good performance evaluations and an overall good employment record is discharged for such an occurrence. 

It is equally sad when at-risk children who are put into such a program for protection and help, are subjected to increased risk because an employee fails to exercise the responsibility given them by statue and policy.

The Grievant was, by her own admission, trained in how to properly report suspicion of abuse. 

She had been reminded of the indicators of abuse in November and yet failed to fulfill her responsibilities the next month.

The mitigating factors simply are inadequate to overturn this termination and potentially subject other children to similar risks of failure to report.

DECISION AND AWARD:

            After a full review and consideration of all documents and arguments presented, as well as the testimony of witnesses, and the post hearing briefs of the parties, I find just cause does exist to support the termination of the Grievant.

            THE GRIEVANCE IS DENIED.

Respectfully submitted this 27th day of July, 2006 at London, Ohio.

___________________________   

N. Eugene Brundige,

Arbitrator



[1] Butler County Brief Page 6.

[2] Butler County Brief Page 4.

[3] Daily Report and Running Log are references to the same documents.

[4] SEIU Post Hearing Brief, Page 2.

[5] SEIU Post Hearing Brief, Page 5.

[6] Testimony of Nancy Baker

[7] Management exhibit B.

[8] Elkouri & Elkouri, HOW ARBITRATION WORKS, Fifth Edition, Voltz & Goggin, Co-editors, BNA Books, Washington, D.C. (1999) pg. 905.

[9] Stockholm Pipe Fitting, 1 LA 160 (1945).

[10] Union Exhibit 5.

[11] EUREKA COMPANY, and IAMAW Local 1000,101 LA 1151 (1993).

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