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Title: Lawrence County Board of Mental Retardation and Developmental  Disabilities and Ohio Association of Public School Employees Local 069
Date: January 24, 2006
Arbitrator: 
N. Eugene Brundige
Citation: 2006 NAC 133

OPINION AND AWARD

 

In the matter of Voluntary Arbitration

 

Between

 

The Ohio Association of Public School Employees Local 069

 

And

 

The Lawrence County Board of Mental Retardation and Developmental  Disabilities

Regarding
FMCS Case Number 050824-58577-8
[Donna Malone]

 

 

Appearances:

For the Union
Karen Kuehne, Field Representative
Donna Malone, Grievant
Jerry Boggs, Union President
Randy Lavender, Witness
Bill Barker, Witness

For the Board
Benjamin Albrecht, Esq. Advocate
Paul Mollett, Superintendent
Sandy Kelien, Business Manager
Paul Brown, Supervisor


An Arbitration hearing was conducted October 26, 2005 in the offices of the Lawrence County Board of Mental Retardation and Developmental Disabilities (MR/DD), at Coal Grove, Ohio.

The parties in this matter are the MR/DD Board (Board) and The Ohio Association of Public School Employees Local 069, (OAPSE).

The parties agreed that the issue in this case could be stated as:  “Was the termination of Donna Malone for just cause?  If not what shall the remedy be?”

RELEVANT COLLECTIVE BARGAINING SECTIONS:

ARTICLE 15:        WORK RULES

A. Except as modified by this Agreement, the Board or Superintendent in order to carry out its statutory mandates and goals, maintains the right to promulgated and enforce work rules, policies, procedures and directives, consistent with Chapter 4117. For the purpose of this Article, all of the above shall be considered inclusive in the terminology of work rules. Work rules which affect employees of this bargaining unit may cover subjects not addressed in this Agreement. The Employer shall not promulgate and enforce work rules which unilaterally change wages, hours or terms of this Agreement.

B. Work rules shall be applied uniformly within the group of employees to whom such rules are directed.

C. Any additions or amendments to the work rules shall be reduced to writing, and signed by all affected employees to acknowledge awareness of the addition or amendment within five (5) working days of the effective date of the rule or rules. Any employee on a leave of absence, sick leave, vacation, or other approved leave shall be required to sign the acknowledgment within three (3) working days upon return to work.

D. All work rules relating to safety standards and safe practice procedures shall, in addition to being posted, be verbally communicated to each affected employee by the Transportation Director or Superintendent.

ARTICLE 16:                                  DISCIPLINE

A.  This Article applies only to employees who have completed their initial probationary period.

B.  The Board retains the right to adopt rules and regulations for the efficient operation of its facilities and the conduct of its employees. No employee shall be disciplined except for just cause.

C.  Purpose.

The Employer agrees that a member of the bargaining unit shall not be peremptorily discharged after the effective date of this Agreement, but that in all instances in which the Employer may conclude that a bargaining unit member’s conduct may justify suspension or discharge, the bargaining unit member shall be given a hearing. No discipline shall be taken against any employee except for just cause. The Board shall normally follow the principles of progressive discipline; however, the discipline may be administered out of the progression so the penalty fits the infraction or act.

D.  Disciplinary Procedures.

1.   The Employer will not impose discipline in the presence of other employees, residents, or the public except in extraordinary situations which pose a serious, immediate threat to health, safety or well-being of others. All discipline is to be carried out in a private business-like manner.

2.   Bargaining unit members are entitled to have a union representative present during any disciplinary conference including verbal or written reprimands. The request for a union representative will not unduly delay the conference.

3.   The bargaining unit member and his/her Union representative shall be given a statement in writing promptly, but not later than twenty-four (24) hours from the time of the suspension, as to the reason(s) for the suspension. The Employer shall make an effort to communicate the reason(s) to the bargaining unit member and his/her representative prior to the start of the suspension.

4.   Whenever the bargaining unit member is to be suspended, he/she shall be entitled to a pre-suspension hearing so the bargaining unit member may reply to the charge.

The bargaining unit member shall receive a written notice of the hearing time, charges, location and right to union representation. Failure to appear shall result in a waiver of this hearing right.

5.   The bargaining unit member may waive the pre-disciplinary hearing in favor of a grievance hearing, unless the employee is charged with a felony crime, an MR/DD client rights violation or violent behavior. Any of the above incidents can result in a suspension prior to a hearing of any kind, the bargaining unit member will receive a hearing after the fact in those cases

a.   Such pre-disciplinary hearing shall be held within the initial working day suspension period. The period for the hearing may be extended by mutual agreement of the parties.

(1) In the event the hearing is not held or waived within the initial working days suspension referred to above, the Employer shall issue his decision on the case within five (5) working days from the start of the suspension and the affected bargaining unit member may thereafter present a grievance at any time within five (5) working days from the filing of the Employer’s decision with the bargaining unit member and the Union; such grievance shall be introduced at the second step of the grievance procedure.

b.   At the suspension hearing the facts concerning the case shall be made available to both parties.

c.   After such hearing, the Employer shall conclude within five (5) working days whether to convert the suspension into discharge or extend, reduce, sustain, or revoke the suspension. If the suspension is revoked, the bargaining unit member shall be returned to work and shall receive full compensation at his/her regular rate of pay for the time lost. If the suspension is sustained, extended or converted into discharge, the bargaining unit member may, at any time within ten (10) working days from the filing of the Employer’s decision, allege and present a grievance to be introduced at the third step of the Grievance Procedure.

E.  At the employee’s request, all records of disciplinary actions shall cease to have force and effect for purposes of progressive corrective action twelve (12) working months for oral, and twenty-four (24) working months for written reprimands and forty-eight (48) working months for suspensions after their effective date, provided there has been no intervening related disciplinary action within the established time frame. At the employee’s request, all verbal or written reprimands issued prior to July 1,2001 will cease to have force.

F.   Verbal warnings are not appealable to the third step of the Grievance Procedure.  G. A probationary bargaining unit member does not have recourse to the Grievance Procedure for his/her removal during his/her probationary period on initial employment. 

H.   Bargaining unit members are required to undergo a criminal background check every two years, and maintain all licenses or certificates required for their position. Failure to pass a criminal background check or maintain the appropriate license could result in discipline up to and including termination. 

BACKGROUND:

The Board of MR/DD serves adult and children consumers in Lawrence County.  Donna Malone (grievant) worked as a bus driver for MR/DD transporting consumers to and from their programs.

On June 7, 2005 the grievant reported for her afternoon run.  She began to feel ill.  The grievant stopped by her home which is near the MR/DD facility.  She got off the bus and entered her home to pick up her medication.

During the time the grievant was off the bus the adult consumers were on the bus unsupervised and unattended.

During this period two adult consumers got into some type of an altercation.  One of the adult consumers subsequently reported that he had been stabbed by the other.

The Board initiated an investigation.  The grievant was immediately placed on an unpaid suspension pending the outcome of the investigation.

The investigator concluded that there was not adequate information to substantiate that a stabbing took place but noted that the grievant admitted leaving the bus.

The grievant was notified that a pre-disciplinary meeting would be held on June 14, 2005.  She was charged with misconduct including “Neglect of Duty, violation of Board transportation policy, Ohio Pupil Transportation Operation and Safety Rules and Ohio Administrative Rule 5123:2-1-03, Transportation.”

Following the pre-disciplinary meeting Superintendent Paul B. Mollett notified the grievant that she was terminated from her employment effective June 15, 2005.

Ms. Malone grieved her termination on June 22, 2005.  In her grievance she stated:

The Lawrence County Board of MRDD and/or it’s delegate has violated article 16 and any other article of the collective bargaining agreement between OAPSE Local 069 and the Board by terminating my employment without just cause on June 15, 05.

On or about June 7, 2005,I  was driving my evening route. I had bent down to assist on a wheel chair lift and when I stood up I had a severe headache. Having experienced these symptoms before, I realized that I needed to get some pain medication before driving the rural roads or I would have to stop several times and get off the bus. Furthermore, it was my understanding there was no driver available to cover my route. Therefore, a quick decision had to be made. I was very close to my home and I had only adult clients on my bus. So, I drove to my home, parked my bus, turned off my bus and took my keys. I instructed the clients not to get out of their seats and that I would be right back. I hurriedly went to my front door in clear view of the bus. I opened my screen door and pushed open my front door and then reached inside and retrieved pain medicine located on the hutch, just next to my door. I then proceeded immediately to my bus to complete my evening route without incident. My time off of the bus would have been less than one (1) minute. (The screen door didn’t even have a chance to close.)

I did not even consider radioing in because it was my understanding that it would be alright to, leave a bus transporting adult consumers only; especially in the case of an emergency. I felt, given the above facts, this was an emergency.

After being terminated, I spoke to several drivers who acknowledged that on more than one occasion they had left their bus unattended with adult clients without radioing in. In most cases it was for emergency situations such as needing to go to the restroom or becoming overheated and needing to get something to drink. I then asked them if their immediate supervisor, Paul Brown was aware of this. Without exception, they all said yes. I then asked them what they thought Mr. Brown’s advice would have been to me if I had radioed in. Again, without exception, I was told “He would have told you to do exactly what I did.

Furthermore, I have never been reprimanded for leaving my bus with consumers aboard. The conversation between Mr. Brown and myself in February was a warning to be careful because Mr. Saunders passes that location on his way to work, it was not a reprimand.”

The remedy requested on the grievance stated:

Remove termination from my file, return me to my previous position as full-time bus driver with the Board of MRDD and make whole for all lost wages and benefits.

The parties indicated that there were no procedural issues to be considered and that the matter was properly before me for determination.

BOARD POSITION:

The Board argues that the collective bargaining agreement requires just cause to support a termination and that they have clearly met that burden.  They choose to apply a four part test to determine if just cause exists to support the action.  They cite the tests used by Arbitration Frank Specht  in re: Hospitality Care Center v. Service Employees International Local 679, 21 LAIS 1097, at XI 327.

The first of these tests, the Board argues, deals with whether a relevant standard or rules existed to prohibit leaving individuals unsupervised on the bus.

They argue that the action of the grievant was a violation of  Ohio Administrative Code 5123:2-17-02 and MR/DD policy which defines Neglect of Duty  as “when there is a duty to do so, failing to provide an individual with any treatment, care, goods, supervision or services necessary to maintain the health and safety of the individual.”

The Board further argues that the grievant violated Lawrence County MRDD Transportation Policies and Procedures Section 7 VII, Emergency Disability of a Driver.  They argue, pursuant to these policies, the driver should act by ”notifying a supervisor and/or pulling into a parking lot and radio the supervisor.” (Board’s Brief, page 7). 

The Board believes the grievant also violated the Ohio Pupil Transportation Operation and Safety rules.”

In conclusion, regarding their first argument, the Board believes that numerous rules and policies were in existence requiring the grievant not to take the actions she took in leaving adult consumers on her bus unsupervised.

The second assertion of the Board is that the grievant was aware of these policies and procedures.

They note that the Grievant acknowledges she had received training on the “policies and procedures regarding transportation services at the MRDD.” (Board’s Brief, page 9).

They note that Sandy Kelien, business manger for the MR/DD provided training records indicating the grievant had received copies of the policies and her attendance at training.

One of the major contentions of the Board relates to a previous incident in which the grievant had received a warning from her supervisor Paul Brown regarding leaving individuals unattended on the bus.

The Board did acknowledge that in the grievant’s pre-disciplinary meeting, she contended that other drivers left adult consumers on their busses at times and that their supervisor, Paul Brown was aware they were doing so.

The Board attempted to investigate this allegation by interviewing all the drivers about their understandings and practices.  They acknowledge that two drivers did testify during the hearing that they had left consumers on the bus but attempted to differentiate the actions of these drivers from those of the grievant.

The third prong of the Board’s defense of the termination is to note: “A sufficient basis exists to conclude that the Grievant’s (sic) left the bus unattended in violation of the MR/DD’s transportation policies and rules.

The Board simply notes the employer has met its burden, by a preponderance of the evidence standard, to demonstrate that the Grievant, by her own admission, did leave the adult consumers unattended.  They believe this did violation the standard of conduct required in this case.

Finally the Board argues that termination is the appropriate discipline.

The Board argues the final authority to issue discipline rests with Superintendent Paul Mollett.

The Superintendent testified regarding how seriously he viewed the violation.  He noted a primary duty of the MR/DD is to protect the health and safety of the Consumers.

The Board argues that there were more than adequate procedures in place to take care of such situations as these.  Each of these procedures provide for the health and safety of the consumers.

In it’s Post Hearing Brief the Board argues the grievant has a considerable disciplinary history and that the grievant had been warned that “further infractions of Board policy could result in termination of your employment with Lawrence County Board of MR/DD.” (page 15)  They argue that even without this disciplinary history, this case merits termination.

They support their case by citing several Ohio cases including Napier v. Centerville City Schools, 157 Ohio App.3d 503 (2004). In which a child was left on the bus unattended in extreme heat.  The Court upheld the termination.

POSITION OF THE UNION OF BEHALF OF THE GRIEVANT:

The Union notes Ms. Malone has been a bus driver with Lawrence County MR/DD for the last four years.  They do not believe just cause exists to support this termination.

Their first argument relates to Article 15 of the Collective Bargaining Agreement which states: “All work rules relating to the safety standards and safe practice procedures shall, in addition to being posted, be verbally communicated to each affected employee by the Transportation Director or Superintendent.” (Union’s Brief page 4)

The Union acknowledges the grievant, along with all other bus drivers, received a copy of the Board’s Transportation Policy but that there was never any evidence to show there had been verbal communication of the policy.

The Union points to the testimony of two bus drivers that stated, prior to this incident, the only training they had received was the county wide in-service training for all bus drivers.  They testified that they had never received any specialized instructions regarding their responsibilities specific to serving MRDD clients.

The second argument of the Union is that the Board’s own policy allows drivers to leave pupils unattended in the event of an emergency (emphasis added). They argue that this is the only rule on point that was ever communicated verbally to the grievant.

The Union argues that “The employer had designated Mr. Brown to verbally communicate all work rules relating to safety standards and safe practice procedures to the bus drivers.  It is the Union’s position that Mr. Brown did not clearly communicate the expectations of the Board to the drivers and specifically to the grievant.

The union notes that the two drivers who testified they had also left adult consumers on the bus did not receive discipline. It was the testimony of Driver Randy Lavender that he made an emergency restroom stop without radio contact with his supervisor.  He stated in this testimony that he shared this story in the presence of the Grievant and Supervisor Paul Brown, and no action was taken.

The Union believes the grievant stopped at her house in response to an emergency situation and with the belief that such action fell under the provision of an emergency.

The Union does not believe that a more stringent view of the rules was ever verbally communicated or enforced.

Finally the union cites a myriad of prior arbitration cases in which arbitrators have overturned terminations where there was not clear and timely warning or where the employer has been lax in the enforcement of rules and policies.

DISCUSSION:

This arbitrator utilizes the more commonly accepted seven tests of just cause first formulated by Arbitrator Carroll Daugherty in the Enterprise Wire case, but those are not substantially different from the four prong test utilized by the Employer in their Post Hearing Brief.

There are certain basic elements of just cause that must be examined by every arbitrator.

First among them is the question: “Was the employee forewarned?”  There is no doubt the Lawrence County Board of MR/DD has written policy requiring that all consumers not be left unsupervised. 

That is only common sense and good public policy.  I am less convinced that the state administrative rule applies in that it comes from the Department of Education which has jurisdiction over children, but It is an unnecessary distinction.

This arbitrator believes most, if not all, of the Lawrence County bus drivers are aware of that requirement and likely agree with it. 

The problem comes in the day to day application of that rule.  There are always exceptions.  The one in this case is the wording “or in the event of an emergency.”

There is no doubt in the mind of this arbitrator that Superintendent Mollett has a clear image of what constitutes an emergency.  The Superintendent, as the Chief Administrative Officer for the Board can formulate such a definition so long as that definition and application is clearly communicated to the employees it applies to. (emphasis added.)

Herein lies the problem in this case.  There is nothing in the testimony or the documents to convince this arbitrator that Supervisor Brown or anyone else clearly articulated the position of the Board and the Superintendent about when it was acceptable for a bus driver to leave adult clients.

I find the testimony of driver Randy Lavender to be credible and persuasive, He truthfully testified, against his own interest, that he had to relieve himself so he stopped and went behind a church.  The fact that he would recount the story in the presence of his supervisor indicates there was no universally understood bar against ever getting off the bus with adult clients on board.

I applaud the efforts of management to determine if there was a common practice of leaving consumers on the bus unattended but I do not find individual interviews requiring signed statements, following the termination of a fellow employee, to be an effective way to gather honest and unbiased information.

The testimony surrounding the way in which Mr. Brown recounts his warning to the grievant is also troubling. He wrote a note to himself which read:

“This morning Jeff Saunders called and asked me about Donna

Malone stopping at a mini mart on 93.  I asked Donna. She said she stopped there to get donuts and pop.  I told her that if Barb was on the bus, she needed to take Barb in the store with her.”

It is interesting to this arbitrator that the instructions regarding a clearly non-emergency situation lacked any reminder of the policy and procedures but merely provided a way for the employee to continue doing what she had done previously without getting intodifficulty.  This would have provided a perfect opportunity to reinforce the rules and expectations of the Board.

Likewise the testimony of Bill Barker was instructive to this arbitrator.  He testified that when he and Mr. Brown had a conversation about stopping to get a pop, Mr. Brown seemed to have no objection but instructed him “not to ever stop and leave the bus when there were school age children on there.”  (Barker’s Testimony)

Thus, in my view the Board has failed in its duty to provide clear notice to the grievant that leaving adult clients of her bus would result in her termination.

There remains the question of whether just cause exists to support a lesser discipline than termination.

It is my conclusion, based upon the evidence and the testimony in that matter, that the grievant is aware she should not leave consumers on the bus unattended regardless of age.

In her action of stopping the bus in front of her house and running in to get her medicine, did she believe she was doing nothing wrong or was she merely counting on the fact others did similar acts from time to time and were not disciplined.  I believe the latter is more likely the case.

The Board raised the issue of the substantial amount of discipline already in the file of this four year employee.  There is a significant amount.  Discipline ranges from a verbal warning to a seven day suspension.  If I found there was just cause to support termination then a good and long work record would clearly constitute mitigating circumstances.

In this case, where I have determined that the failure of the board on the question of notice, precludes termination, then does the poor work record work in reverse?  The well accepted authoritative text How Arbitration Works, Elkouri & Elkouri (fifth edition), states on page 925 “Some consideration generally is given to the past record of any disciplined or discharged employee.  An offense may be mitigated by a good past record and it may be aggravated by a poor one.  Indeed, the employee’s past record often is a major factor in the determination of the proper penalty for the offense.”

While one might argue that all other discipline imposed on this grievant was for attendance related matters including tardiness, absenteeism, and failure to report to work, it is clear that this employee does not have a spotless recording in working for the Board.

In assessing progressive discipline I usually apply the “reasonably related” test.  There is also a standard observed by many arbitrators that examines and considers the total work record of the employee as it relates to the appropriate penalty to be assessed.  Arbitrator Thomas Hewitt utilized this “total record” standard in a 1983 case (in re APCOA, INC. and AUTOMOTIVE CHAUFFEURS, PARTS AND GARAGE EMPLOYEES, LOCAL 926. (81 LA 449).  This seems to be the appropriate standard to apply in determining the appropriate level of discipline in this case.

In summary, I find that just cause does not exist to support termination in this case but does exist to support a lesser penalty.  I base this lesser penalty on the seriousness of the infraction and, in part, on the past work record or the grievant.

AWARD:

The grievance is granted in part and denied in part.  The termination shall be rescinded.  The grievant will be reinstated to her previous position and compensated for lost wages from the time of her termination except for a suspension of thirty working days which shall be deducted from any back pay award.  Her record shall be corrected to reflect a 30 days suspension.

The collective bargaining agreement specifically excludes unemployment compensation from back pay awarded, thus such amounts shall be deducted pursuant to Article 17 (3) (f).

In that this arbitration is granted in part and denied in part, and in that The Collective Bargaining Agreement, Article 17 (3) (1) provides that the costs of the arbitrator shall be borne by the losing party, it is my determination that neither party is totally the winning party, and neither is totally the losing party.  Therefore I assess the costs as a shared responsibility of the parties.

The arbitrator will retain jurisdiction for the sole purpose of resolving any disagreements which may arise regarding the computation of back pay.

Issued at London, Ohio this 24th day of January, 2006

___________________________ 
N. Eugene Brundige, Arbitrator

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