28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Service Employees International Union Local 99 and Orange County Head Start
Date: June 25, 2007
Arbitrator: David Beauvais
Citation: 2007 NAC 1
30

 

In the Matter of Arbitration

Between

Orange County Head Start
Santa Ana CA

and

Service Employees International
Union Local 99

 

DATE: MAY 9, 2007

FMCS CASE #: 07-54174

 


GRIEVANT: S. Walker


BEFORE: David P. Beauvais, Arbitrator

APPEARANCES:

For Orange County Head Start: Erick J. Becker, American Consulting Group

For the SEIU: Ellen Greenstone, Rothner, Segall & Greenstone

PLACE OF HEARING: Orange County Head Start, 2900 South Harbor Blvd, # 101, Santa Ana, CA 92704

AWARD:  The grievance is sustained.  The Grievant will be reinstated to her previous position and relative seniority standing.  The Grievant will be made whole for the lost time and benefits, less any interim earnings, including unemployment payments.

DATE OF AWARD: June 25, 2007

 

________________________
Arbitrator                                   





INTRODUCTION

This Arbitration proceeding arises pursuant to the 2006-2009 agreement between Orange County Head Start, Inc. (hereinafter the Agency or Employer) and the Service Employees International Union Local 99 (hereinafter the SEIU or the Union).  The undersigned was selected as Arbitrator in accordance with procedures set forth by the Federal Mediation and Conciliation Service.  Pursuant to the partiesí agreement in Article XIII, Section 4E of the CBA, the Arbitratorís decision is final and binding.

The hearing was conducted on May 9, 2007, at the offices of Orange County Head Start Inc, 2900 South Harbor Blvd, # 101, Santa Ana California, 92704.  The hearing commenced at 9:00 a.m. and concluded at 4:35 p.m.  The hearing proceeded in an orderly manner.  There was a full opportunity for the parties to submit evidence, and to examine and cross-examine witnesses.  All witnesses testified under oath.  The parties submitted two joint exhibits.  Additionally, the Agency submitted twelve exhibits and the Union submitted five exhibits during the course of the hearing.  These documents were received and made part of the record. 

The advocates fully and fairly represented their respective parties.  Erick J. Becker, Chief Executive Officer of American Consulting Group represented the Agency.  Ellen Greenstone, of Rothner, Segall & Greenstone represented the Union.  There were no challenges to the substantive or procedural arbitrability of the dispute.  The parties submitted the matter on the basis of testimony and evidence presented at the hearing and through argument set forth in their respective post hearing briefs.  It was agreed the briefs would be sent to the Arbitrator via U.S. Mail by close of business on June 15, 2007, and that the Arbitrator would render a decision within thirty days of the close of record.  Both briefs were received on June 16, 2007, at which time the hearing record was closed.  This opinion and award will serve as the arbitratorís final and binding decision in this dispute.

ISSUE

The parties stipulated to the following issue statement:

Did the Employer discharge the Grievant for just cause or otherwise violate the discipline procedure?  If so, what is the proper remedy?


BACKGROUND

The Grievant, Sharon Walker, is a Level 2 Teachers Assistant employed by Orange County Head Start, Inc.  At the time of the alleged incident that led to her discharge, the Grievant had approximately ten (10) years of service.  The incident leading to the Grievantís discharge occurred on December 21, 2006.

At that time the Grievant was working at Topaz Head Start Center in Fullerton California.  The Grievant was one of four teachers or teacherís assistants on duty that day.  The person in charge of the facility, Michelle Ahmad, was on duty that morning, but left the facility due to illness just prior to or shortly after the incident in question.

Besides the Grievant, the other individuals on duty were Rosa Oragel, a Teacher, Marisela Hernandez, a Teacherís Assistant, and Noemi Brito, a Teacherís Assistant.  The Grievant, Ms Oragel and Ms Hernandez worked together in the full-time program.  Ms Brito worked in the part-time program, which was not in session, and was substituting for another teacher.  There were two full-time classes in session on December 21, 2006.  Each class had approximately twenty (20) children.  Ms Oragel and Ms Walker were in charge of one class, Ms Hernandez and Ms Brito the other.

The classes had two scheduled play periods during the day, one in the morning, and another later in the afternoon.  The classes took their play periods at the same time.  The play area includes a play structure with slides and climbers on one side, a sandbox in the middle, and a grassy area containing a second sandbox on the other side.

The Teachers and Teacherís Assistants apparently had no assigned areas during the play period; rather they all jointly supervised both classes.  Although there was some dispute regarding the exact positions of the Teachers and Teacherís Aides during the play period, testimony revealed that Ms Hernandez was in or around the play structure, the Grievant was near or around the middle sandbox, and Ms Brito was in the grassy area, nearer the second sandbox.  Ms Oragel initially was also in the play area, but returned to the classroom on a break.

According to Ms Britoís testimony and written statement, she observed the Grievant approach the sandbox in the middle of the play area.  The Grievant then grabbed a little boy by the arm and admonished him for throwing sand on a little girl in the sandbox.  The Grievant then took the little boy over to the play structure and had him sit down.  The Grievant returned to the sandbox with the little girl, where she helped her fill a bucket with sand.  The Grievant and the little girl then carried the bucket of sand to the play structure and jointly dumped it on the boy.  The Grievant then told the little boy ďsee how it feels to get sand on you?Ē  The little boy then went to Ms Hernandez.  Ms Brito overheard the little boy tell Ms Hernandez that the Grievant had dumped sand on him, but could not hear Ms Hernandez reply.

Ms Brito did not report the incident on the 21st.  She was scheduled to substitute the next day, the 22nd, but did not, due to some family problems.  Upon her return, which was on January 3, 2007, Ms Brito reported the incident to a teacher she normally worked with in the part-time program, Mericruz Mendoza.  Ms Mendoza subsequently reported the incident to Ms Ahmad.

Ms Ahmad discussed the reported incident with Ms Brito the following day, January 4, 2007.  Ms Ahmad advised Ms Brito that she was going to report the incident to her supervisor, and that she (Ms Brito) would likely need to make a written statement.  According to Ms Ahmadís testimony, she contacted her supervisor, Valerie Padilla the same day.  Ms Padilla subsequently made arrangements to investigate the incident on January 8, 2007.

Ms Padilla testified that she interviewed Ms Brito, Ms Hernandez and Ms Oragel on January 8, 2007.  Ms Brito related the incident consistent with her written statement dated January 5, 2007 (Agency Ex. #5).  According to Ms Padilla, Ms Hernandez and Ms Oragel could not remember much about December 21, 2006, the day in question, and had no specific recollection of the incident.  As part of her investigation, Ms Padilla also interviewed the Grievant.

Ms Padilla testified that the Grievant remembered the incident between the little boy (whose name is Aaron), and the little girl.  The Grievant stated that she knew Aaron, and he had been known to throw sand at other children.  The Grievant observed the little girl crying near the sandbox, and went over to see why she was crying.  She asked the other children in the sandbox what happened, and one (or more) of the children told her that Aaron had thrown sand on the little girl.  The Grievant admonished Aaron, telling him that it was not nice to throw sand.  She then had Aaron help her brush the sand off the little girl.

The Grievant then took Aaron over to the play structure.  She stood with Aaron for a few minutes at the play structure.  Then she heard Aaron crying, and observed that the little girl had thrown sand on Aaron.  The Grievant then told Aaron, ďsee how it feels to get sand on you?Ē  She then told the little girl that throwing sand was not nice, and had the little girl help brush the sand off Aaron. 

The Grievantís testimony at hearing was consistent with Ms Padillaís testimony regarding the Grievantís version of events during her interview on January 8, 2007.  The Grievant specifically denied helping the little girl dump sand on Aaron, both during the interview and in her testimony at hearing.

Ms Padilla testified that she subsequently re-interviewed both Ms Brito and the Grievant.  Ms Padilla testified that she believed Ms Brito to be credible and truthful, with no motive to lie or make up the incident.  Ms Padilla therefore concluded that the Grievant had acted as observed by Ms Brito, and that disciplinary action was appropriate.

Ms Padilla testified that she discussed the matter with several other managers, including Ms Ahmad, Human Resources Coordinator Ophelia Trujillo, and Executive Director Lucia Palacios.  Ms Padilla prepared a written recommendation to discharge the Grievant January 11, 2007.  The recommendation was directed to Executive Director Palacios, who concurred with the discharge recommendation.

The recommendation then went to the Human Resources Committee of the Head Start Policy Council.  The Policy Council is made up of a parent representative from each of the Orange County Head Start Centers, including delegate agencies.  The Policy Council has the final approval of hiring and termination of employees.  The Human Resources Committee is a sub-committee that reviews hiring and termination recommendations and presents their findings to the full Policy Council.

The Human Resources Committee met on January 16, 2007, and after a review of the recommendation from the staff (Emp. Ex. 7), agreed that discharge was appropriate.  The recommendation then went to the full Policy Council on January 24, 2007.  After a review of the staff and Human Resources Committee recommendations, the Policy Council made the decision to discharge the Grievant.  The Grievant received a Discharge Notice on the afternoon of January 24, 2007.  The Union subsequently filed a timely grievance over the discharge.  The parties could not settle the grievance, and the Union requested arbitration of the matter. 


ANALYSIS

The Arbitrator has carefully reviewed the evidence of record, the testimony of witnesses at hearing, and the post-hearing briefs submitted in this matter.  At the outset, the Arbitrator notes that this type of case, turning principally on the credibility of the two primary witnesses, is unquestionably difficult to resolve.  The Arbitrator scrutinized the testimony and demeanor of Ms Brito and the Grievant, who were the principal witnesses, but also considered the testimony of Ms Hernandez, and other factors relevant to the investigation.

Further, the Arbitrator believes that the conduct charged, if proved by clear and convincing evidence, is grounds for summary discharge.  The Employer is correct when they assert that the conduct alleged could be enormously damaging to the child, both physically and mentally. 

Undoubtedly, some Arbitrators might find that discharge for an offense of this type, especially considering the Grievantís years of discipline free service, is too harsh, and modify the penalty.  However, the Arbitrator notes that the parties contract specifically calls for his role to be judicial rather than legislative.  The Arbitrator agrees that is the correct role.  An Arbitrator is not a super Human Resources Manager hired to second-guess the Agency decision.  Unless the penalty clearly exceeds the bounds of reasonableness, it should be undisturbed by the Arbitrator.  

However, the Arbitrator finds that the employer has failed to meet its burden of proof in this case, and therefore sustains the grievance.  The Arbitratorís reasoning and analysis follows.



The Level of Proof Required

The Union argues that the level of proof in this case should be clear and convincing evidence.  The Arbitrator concurs.  The Grievant has over ten years invested in her current position as a Teachers Assistant, and has earned an Associate Degree in childhood development.  Based on the charge, it is difficult to imagine that she could continue a career in early childhood education.  Essentially, not only is the Greivantís job at stake, but a career to which she has devoted significant time and effort. 

The Investigation

Several aspects of the investigation into the alleged incident are troubling.  In particular, the length of time between the alleged incident and the actual investigation; the interrogation of the various witnesses; and the information provided to the Human Resources Committee and the Policy Council all raise legitimate questions regarding the efficacy of the investigation.

First, the time that elapsed between the alleged incident and the investigation is disturbing.  Of course, the Agency cannot be faulted in this regard.  The incident date was December 21, 2006.  The alleged incident was not reported until January 3, 2007, and interviews were then conducted starting January 8, 2007.  The Agency moved forward with the investigation in a timely manner once they learned of the allegation; nonetheless, as the Union pointed out in written argument, eighteen days elapsed between the alleged incident and the interviews.

This time lapse between incident date and interviews put the Grievant at a serious disadvantage.  Not only had the Grievant worked on multiple days in that time, but there were also two significant holiday weekends during that period.  It is not unreasonable to assume that had the Grievant been interviewed a day or two after the alleged incident; she might have recalled facts that would have led to a different conclusion by the investigators.

Additionally, as noted in the background information above, when interviewed on January 8, 2007, neither Ms Oragel or Ms Hernandez could remember anything significant that happened on December 21, 2007.  Again, had the employees been interviewed immediately after the alleged incident, they may have remembered facts that either bolstered the Agencyís case, or provided exculpatory evidence on behalf of the grievant.

The Arbitrator is troubled by the fact that Ms Brito did not report this alleged incident until her return to work on January 3, 2007.  Moreover, it is significant that she did not report the alleged incident to her supervisor, Ms Ahmad, but to a teacher,
Mericruz Mendoza. 

Certainly, Ms Brito had an opportunity to discuss the alleged incident with Ms Hernandez on December 21, 2006.  Ms Brito and Ms Hernandez were in the same classroom for the remainder of the day following the play period, and according to Ms Britoís written statement and testimony, Ms Hernandez interacted with Aaron immediately after the incident. 

Further, Ms Brito almost certainly had an opportunity to report the matter to Ms Oragel, the only teacher on duty that day.  The alleged incident happened during the first of two lengthy play periods during the day.  There was nothing to prevent Ms Brito from reporting the alleged incident promptly to Ms Oragel when she returned to the play area after her break, or during the second play period.

It is possible that Ms Brito felt uncomfortable reporting the alleged incident to either Ms Hernandez or Ms Oragel, and intended to report to Ms Ahmad the following day, as she (Ms Brito) was scheduled to work.  However, events intervened, neither Ms Ahmad or Ms Brito worked on the 22nd, and Ms Brito did not return to work until January 3, 2007.  Nevertheless, given the serious nature of the accusation here, it is perplexing that Ms Brito made no attempt to report this alleged incident to Ms Ahmad during that two-week period.

Secondly, the interrogation of the various witnesses was somewhat perfunctory.  In particular, the interview of Ms Brito elicited little more than what she had already stated in her brief two-paragraph statement (Emp. Ex. 5).  Although the interviews were conducted at the Topaz Center, no effort was made to go out to the yard to establish where the various individual were located at the time of the alleged incident.  No attempt was made to locate or identify the bucket that the Grievant allegedly filled with sand and dumped on Aaron.  And Ms Brito was not asked why she failed to report the incident the same day.

The interviews of Rosa Oragel and Marisela Hernandez were similarly truncated.  The employees were given minimal information regarding the alleged incident, and neither could remember anything of significance.  Ms Padilla testified that the Grievant was not identified as the subject of the investigation to either Ms Oragel or Ms Hernandez out of confidentiality concerns.  While that concern is laudable, the information provided regarding the alleged incident was so limited that it may have precluded the employees from remembering anything.

Additionally, although a written statement was obtained from Ms Brito, none was requested of the Grievant.  In the Arbitratorís opinion, this actually worked against the Agency, since there was nothing to compare with the Grievantís testimony at hearing other then Ms Ahmadís notes.

Third, the memo provided the Human Resources Committee (Emp. Ex. 7) was conclusional in nature, and failed to provide a balanced account of the facts.  The memo did not disclose the time lag in reporting the alleged incident, the Grievantís denial of culpability, and did not note that the Grievant had ten years discipline free service with the agency.  Ms Padilla testified that some of this information was provided to the Human Resources Committee in response to questions from Committee members.

The Arbitrator agrees with the Agencyís argument that the function of the Human Resources Committee and the Policy Council is one of review rather than investigation, which is properly left to the Agency staff.  However, a review process should include a proper evaluation of all the facts, and not simply be a rubber stamp of the conclusions reached by staff.


The Credibility of the Witnesses

The determination in this case comes down to the credibility of the principal witnesses, Noemi Brito and the Grievant.  The Arbitrator has carefully considered the testimony of each witness at hearing, as well as previous oral and written statements in the record.  The Arbitrator also relied, to some extent, on the testimony provided by Marisela Hernandez.

In weighing the testimony, the Arbitrator considered several factors; the ability of each witness to recall the event; the demeanor of each witness during testimony; the consistency (or lack thereof) of the testimony at hearing with prior oral and written statements with regard to the event; the consistency of testimony with other witnesses; and the motivation (or lack thereof) of each witness to be truthful or fabricate testimony.

Ability of each witness to recall the event:

As discussed earlier in the award, one of the disconcerting aspects of this case was the length of time, nearly three weeks, between the alleged incident and the investigative interviews.  This undoubtedly had some impact on the recall of the witnesses during the interviews, and at hearing.

Despite the passage of time, the Grievant had fairly good recall of the events on December 21st.  The Grievant recalled the episode with some detail; for instance, she seemed quite certain of her location and movements around the play area.  She could recall approximately how many children were in the sandbox when the little girl started crying.  And she could recall where Ms Hernandez and Ms Brito were located prior to the alleged incident.

On the other hand, while Ms Brito testified regarding the basic sequence of events during the alleged incident, she could not remember some critical details.  For instance, on cross examination Counsel for the Union and Ms Brito had the following exchange:

Q   When the little boy went over to talk to Marisela Hernandez, where was Ms Walker?

A  I donít remember.

Q  Do you remember where the little girl was at that point?

A  No.

Q  Did the boy immediately go to Ms Hernandez after you saw the sand dumped on his head?

A  About three or four minutes after

Q  What did he do during the three or four minutes?

A  I donít recall.

Q  Do you recall what Ms Walker did during the three or four minutes?

A  I donít.

Q  Do you recall what the little girl did during the three or four minutes?

A  I donít.

Q  Did the little boy cry for the entire three or four minutes?

A  I donít remember.

Q  Was he crying when he said, ďTeacher Sharon dumped sand on meĒ?

A  I donít remember.

Q  Do you remember for how long he did cry?

A  I donít.

(Transcript pages 140/141)

The questions and answers from this exchange do not illustrate a firm and cogent recall on the part of the witness.  It is expected that witnesses will not be able to remember every detail of an event they have witnessed.  But the ability of a witness to recall an event in sufficient detail is an important factor in assessing credibility.

Demeanor of each witness during testimony:

Both witnesses answered questions in an open and willing manner.  The Arbitrator did not detect any attempt to deflect or evade questions on either direct or cross-examination by either witness.  Ms Brito seemed quite nervous.  However, most witnesses are a little nervous, given the circumstances, and no adverse inference was made by the Arbitrator. 



Consistency of the testimony at hearing with prior oral and written statements with regard to the event:

As noted previously, no written statement was requested of the Grievant, so the Arbitrator relied on Ms Padillaís testimony regarding her investigative interviews with the Grievant, and Ms Ahmadís notes taken at both investigative interview.

In the Arbitratorís judgment, the Grievantís testimony at hearing did not differ from her oral statements, as related by Ms Padilla, or as reflected in Ms Ahmadís notes, with one possible exception.   Ms Ahmadís notes taken during the first investigative interview on January 9, 2008, indicate the Grievant stated the little girl poured a bucket of sand on Aaron as he stood with her near the play structure (Emp. Ex. 9).  However, in the follow up interview conducted later that day, Ms Ahmadís notes reflect that the Grievant stated that she saw the little girl dump sand on Aaron, but did not recall if the little girl had a bucket (Emp. Ex. 12)

There is no way to know at this point if Ms Ahmadís notes incorrectly reflected the Grievantís first statement, or if the Grievant changed her story during the second interview.  However, at hearing, the Grievant, in response to a question on direct examination stated the following:

Q  Do you know whether she had a bucket or not?

A  No, I donít think she had a bucket.

(Transcript page 161)

Although the answer is somewhat different than that reflected in Ms Ahmadís notes in Employer Exhibit 12, it still reflects uncertainty, rather than a positive statement that contradicts the Grievantís prior oral statements.  Additionally, Ms Ahmadís notes cannot be given the same weight as a written statement from the Grievant.  There is simply no way to test the accuracy of the notes; they are certainly not verbatim, and were not represented as such by the Agency.

On the other hand, Ms Britoís testimony at hearing did deviate at one point from her written statement.  In her written statement, Ms Brito said:

ďÖThen the teacher (the Grievant) removed both children from the sand box.  She then asked the child (Aaron) to sit on the blue foam under the climber.  While the little boy sat there waiting for the teacher, the teacher took the little girl back to the sandboxÖĒ

But in response to cross examination at hearing, Ms Brito testified that she did not know where the little girl was after the Grievant took Aaron to the play area:

Q  During the time that Ms. Walker walked the boy over to the play structure and the minute or two that he sat there before you stooped down to help the other child tie his shoe, where was the little girl?

A  I donít remember.

Q  Do you have any recollection of the little girl walking over to the play structure with Ms Walker and the little boy?

A  I donít.   

(Transcript page 133)

This inconsistency between Ms Britoís written statement and her testimony at hearing may simply be a matter of recall.  But the clear inference in the written statement is that both children were at or near the play structure following the initial sand throwing by Aaron, while the testimony at hearing differed. 

Moreover, Ms Brito testified on direct-examination that ďÖI saw Sharon go to the sandbox with the little girl and together filled a bucket with sandÖĒ (Transcript page 113).  However, on cross-examination, Ms Brito placed the little girlís location at or next to the sandbox, with the Grievant walking from the play structure to the sandbox (Transcript page 133).  Again, this may be a minor point, and perhaps not a crucial one, but the inconsistency is troubling.    

Consistency of testimony with other witnesses:

The only other witness present in the play area during this alleged incident was Teacher Assistant Marisela Hernandez.  Ms Hernandezí testimony generally supported the Grievant, and contradicted Ms Britoís testimony on three points.  First, Ms Hernandez placed Ms Brito somewhat further away from the play structure than Ms Brito placed herself.  This point more coincided with the Grievantís testimony. 

Secondly, Ms Brito testified that after the Grievant walked Aaron over to the play structure, she had him sit on the blue foam under the climber.  Ms Hernandez testified that she saw the Grievant walk over with Aaron and stand by the play structure for about two minutes.  Again, this was consistent with the Grievantís testimony.

Third, Ms Hernandez testified that she did not recall Aaron crying, or coming to her to tell her that the Grievant had dumped sand on him.  This is an important point, and one that the Arbitrator has considered carefully.  Either the delay in time between the alleged incident and the interview clouded Ms Hernandezí memory, or an important element of Ms Britoís testimony is mistaken. 

If this is a matter of faulty recall, the benefit of the doubt must be given to the Grievant.  She is in no way responsible for the eighteen-day delay between the alleged incident and the investigative interviews.  On the other hand, if Ms Hernandezí recollection is correct, then it directly contradicts Ms Britoís written statement and testimony, and supports the Grievantís version of the alleged incident. 

Motivation (or lack thereof) of each witness to be truthful or fabricate testimony:

The crux of the Agencyís case rests on Ms Britoís testimony.  Ms Padilla, as the principal decision maker in this case, testified that she felt Ms Britoís version of the events was more credible because she had no motivation to lie or fabricate the events.  On the other hand, the Grievant had a motive to deny the accusation because she knew she might lose her job or otherwise be disciplined.

The Agency cogently lays out this argument in their post-hearing brief.  The Arbitrator has made similar arguments in a number of arbitration cases as a Management Advocate, and agrees with the underlying principle.  But this presumption of credibility is by no means absolute.  Rather it is one factor, among many, that an Arbitrator must consider in a case where the credibility of two witnesses must be decided.

In the case at bar, several other factors, some previously discussed, simply outweigh the presumption that the Grievant has been untruthful regarding this alleged incident.  The Grievantís recall of events, her consistency of testimony with prior oral statements, and Ms Hernandezí supporting testimony are all factors that weigh in her favor.

Additionally, there are several other facts the Arbitrator took into consideration.  One is the fact that the Grievant has ten years of discipline free employment with the Agency.  There is not so much as a hint that the Grievant has ever interacted inappropriately with a student, let alone abused or humiliated one.  That is not to say that an experienced employee is not capable of such action, but certainly the Grievantís work record and evaluations work in her favor in this regard.

The second fact is that Ms Britoís version of the alleged incident seemed contradictory.  Ms Brito testified that she overheard the Grievant tell Aaron that it was not nice to throw sand.  The Grievant then made Aaron help brush sand off the little girl.  The Grievant then took Aaron out of the immediate area.  All of these actions were positive and nurturing.  Why then would the Grievant then resort to a negative action?  It certainly is not consistent with her previous actions.

Of course, as Agency Counsel implied in direct, the Grievant could have been frustrated with Aaron, and simply decided to teach him a lesson by dumping sand on him.  But as the Grievant stated, it did not bother her, as she is used to it.  Indeed, one would think that throwing sand is a common occurrence among three and four year old children, and expect that teachers would become quite used to it.

Lastly, the Grievant testified, without contradiction, that she mentioned that  Aaron was throwing sand to both Ms Hernandez and Ms Oragel (Transcript pages 160 &163).  According to the Grievantís testimony, she mentioned that Aaron was ďthrowing sand againĒ when she and Aaron went over to the play structure.  The Grievant also mentioned this to Ms Oragel when she returned to the playground.  The Grievant testified to this without hesitation, and as a part of the sequence of events that day.

But if the Grievant was planning on dumping sand on Aaron, or had already done so, it is not reasonable that the Grievant would draw attention to Aaronís actions to either teacher that day.  On the other hand, if the Grievantís version of events were truthful, then such an offhand comment would be natural. 

For all of these reasons, the Arbitrator concludes that the Agency has not met their burden of proof of clear and convincing evidence.  As the Arbitrator observed in the opening paragraph of his analysis, this type of case is extremely difficult.  The Arbitrator is under no illusion that he is omnipresent; like a baseball umpire, he is calling balls and strikes based on his own unique strike zone.  This was an extremely close call, and the Arbitrator believes the Agency acted in good faith in reaching their decision to discharge the Grievant.  Had the Arbitrator been convinced of the Grievantís culpability, he would have upheld the disciplinary action without modification.
   
The Retention of the Grievant in Duty Status During the Investigation

The Union has also argued in their post hearing brief that the Agencyís failure to place the Grievant on emergency suspension should be considered as a factor in mitigating the discharge.  However, the Arbitrator has already concluded that if the charge had been proven by clear and convincing evidence, then summary discharge was within the bounds of reasonableness.

The Arbitrator would note however, that the Union is correct when they point out that the Agencyís actions in this regard are contradictory.  To quote the Union ďIf the sand incident was not serious enough to suspend Walker pending the month-long investigation/decision-making process, then it was not serious enough to justify immediate discharge thereafter without application of contractually-required discipline.Ē  The Agency would do well to heed this argument if similar circumstances should arise.  Undoubtedly, any number of arbitrators would find this argument appealing.




 


AWARD

The grievance is sustained.  The Grievant will be reinstated to her previous position and relative seniority standing.  The Grievant will be made whole for the lost time and benefits, less any interim earnings, including unemployment payments.  The Arbitrator will retain jurisdiction for a period of sixty (60) days in the event of any dispute over remedy.



DATE OF AWARD: June 25, 2007 


________________________
  Arbitrator                                  


Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028