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Service Employees International Union Local 99
and Orange County Head Start
June 25, 2007
Citation: 2007 NAC 130
In the Matter of
Santa Ana CA
Union Local 99
DATE: MAY 9,
FMCS CASE #:
BEFORE: David P.
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
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
DATE OF AWARD: June 25, 2007
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.
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?
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,
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.
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.
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.
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
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.
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.
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.
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.
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,
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
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
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
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.
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
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
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
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
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
Q When the
little boy went over to talk to Marisela Hernandez, where was Ms Walker?
A I donít remember.
Do you remember where the little girl was at that point?
Q Did the boy
immediately go to Ms Hernandez after you saw the sand dumped on his head?
A About three or four minutes
Q What did he do
during the three or four minutes?
I donít recall.
Do you recall what Ms Walker did during the three or four minutes?
Q Do you
recall what the little girl did during the three or four minutes?
Q Did the
little boy cry for the entire three or four minutes?
I donít remember.
Was he crying when he said, ďTeacher Sharon dumped sand on meĒ?
I donít remember.
Do you remember for how long he did cry?
(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
Demeanor of each witness during testimony:
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.
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
Q Do you
know whether she had a bucket or not?
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:
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?
I donít remember.
Do you have any recollection of the little girl walking over to the play
structure with Ms Walker and the little boy?
(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:
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.
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
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.
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.
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
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
The Agency would do well to heed this argument if similar circumstances should
arise. Undoubtedly, any number of
arbitrators would find this argument appealing.
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
DATE OF AWARD: June 25, 2007
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