National Arbitration Center
State of Oregon, Oregon State Correctional Institution and
Oregon Public Employees Union
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
Arbitration arises pursuant to Agreement between OREGON PUBLIC EMPLOYEES
UNION ("Union"), and STATE OF OREGON, OREGON STATE CORRECTIONAL
INSTITUTION ("Employer"), under which LUELLA E. NELSON was
selected to serve as Arbitrator and under which her Award shall be final and
binding upon the parties.
was held on June 6 and 30, 1995, in Salem, Oregon.
The parties had the opportunity to examine and cross-examine
witnesses, introduce relevant exhibits, and argue the issues in dispute.
Both parties filed post-hearing briefs on or about August 2, 1995.
behalf of the Union:
Charlene Sherwood, Esquire, 135 SW Ash, Suite 600, Portland, OR
behalf of the Employer:
Mark Hunt, Labor Relations Manager, Labor Relations Division, Department
of Administrative Services, 155 Cottage Street NE, Salem, OR
Whether or not the Employer violated Article 20 of the 1993-95
collective bargaining agreement when it reduced grievant's salary by 1 step
for 2 months effective January 1, 1995.
If so, what is the appropriate remedy?
RELEVANT SECTIONS OF AGREEMENT
20 - DISCIPLINE AND DISCHARGE
1. The principles of
progressive discipline shall be used when appropriate.
Discipline shall include, but not be limited to:
written reprimands, denial of an annual performance pay increase;
reduction in pay; demotion; suspension and dismissal.
Discipline shall be imposed only for just cause.
Code of Ethics:
In relationships with inmates/offenders, collegues [sic], other
criminal justice agencies, and the public, Division employees and volunteers
f. Conduct relationships with colleagues in such a manner so as to promote mutual respect and improvement of the quality of services provided;
has worked as a correctional officer at the Oregon State Correctional
Institution ("OSCI"), a medium security male correctional
facility, since August 1990. On
December 9, 1994, he received a one-step salary reduction for two months on
the following charges:
October 7, 1994, ... you called Sergeant Tennant "a rat" for
reporting an accident. You also
stated to Sergeant Tennant that he "would get what was coming to
behavior clearly violates Department of Corrections Procedure #40, Code of
Ethics, Section A. 1. f.: Conduct
relationships with colleagues in such a manner so as to promote mutual
respect and improvement of the quality of services provided.
August 2, 1994, you were given a formal reprimand for making an intimidating
and unprofessional statement.
October 7 incident arose while Grievant was on hospital watch at Salem
Memorial Hospital. Inmates from
both OSCI and the Oregon State Penitentiary ("OSP"), the maximum
security correctional facility, are hospitalized in one of two rooms at
Salem Memorial. Hospitalized inmates have one or more guards inside the room,
and may also be guarded outside the room.
The guard station outside the hospital rooms has a telephone.
are temporarily reassigned from correctional facilities as needed for
hospital watch. In addition,
the Department of Correction has a separate Transportation Unit whose
officers transport inmates to the hospital and stand guard.
Unlike OSCI and OSP staff, Transportation Unit officers are armed.
Armed guards are allowed only outside the hospital rooms.
inmate hospital bed has a television. A
daily $3 fee is collected each afternoon to turn on the televisions.
Post Orders for both OSCI and OSP prohibit guards from, inter
alia, paying for the television.
Nevertheless, both OSCI and OSP officers on hospital watch have
contributed to a common fund to pay for the television.
Grievant testified he was told by a senior corporal to do so when he
first began to pull hospital watch duty.
Until the date of this incident, OSP officers kept a coffee can in
the area with a sign indicating it was for contributions toward inmate
television. Transportation Unit Sergeant William Tennant testified he
noticed the OSP coffee can for the first time that day, and threw it away.
October 7, Grievant arrived at the hospital shortly before 3 p.m.
Tennant was at the outer guard station augmenting the guard on a
high-risk OSP inmate. Shortly
after his arrival, Grievant paid the fee for the television.
Tennant testified he observed Grievant talking in a very friendly
manner to the OSCI inmate about what television program to watch, whether to
buy cigarettes, and whether to take the inmate to the courtyard to smoke. He also noticed Grievant was wearing sunglasses.
testified he called OSCI Captain Fusselman and reported that Grievant had
paid for an inmate's television, was watching television with the inmate,
acted overly friendly to the inmate, and was wearing sunglasses rather than
clear lenses. Fusselman asked
him to write a memo on the matter. Shortly
thereafter, Tennant received a telephone call from Joan Palmateer,
Security Manager for OSCI. Palmateer
told him she had been informed of Grievant's conduct, and asked for
verification. He verified his report.
to twenty minutes later, Palmateer called Tennant and asked to speak to
Grievant. According to Tennant,
after the conversation, Grievant hung up the phone and stomped angrily back
into the hospital room. He came back out and asked Tennant for a piece of paper.
After getting the paper, Grievant asked Tennant if he had reported
the incident. On direct
examination, Tennant testified that Grievant called him a "rat." On
cross examination, Tennant testified that Grievant asked, "Why did you
rat me off?" Tennant testified that Grievant also told him he would get
what was coming to him.
to Tennant, the two were four or five feet from other officers during this
conversation. Grievant spoke in
a normal conversational tone, but seemed very angry, agitated, and upset.
Grievant then went back inside the hospital room.
This exchange has been Tennant's only interaction with Grievant.
He testified he felt threatened by both the "rat" reference
and the comment that he would get what was coming to him.
He took the latter statement as a threat to do something later rather
than a threat of immediate physical harm.
Tennant is 6'4" tall; Grievant is about 5'8".
Officer Jerry Joslyn had just arrived.
He was unaware of Tennant's call to report Grievant's conduct.
He was 6-10 feet away when Grievant came out to talk to Tennant. He testified that Grievant asked Tennant, "Did you tell
on me for buying the TV for the inmate?"
When Tennant said he had, Grievant asked why. Joslyn testified he was distracted briefly, perhaps by a
nurse walking by. He then heard
Grievant say, "Thanks a lot, sergeant," and saw him walk back into
the inmate's room. Grievant
appeared upset or mad to Joslyn. Joslyn
did not hear Grievant call Tennant a "rat," nor did he hear him
say Tennant would "get what's coming to you."
He testified he would have paid attention to any name-calling or
threats. The men's posture
suggested there was tension between them, but he did not view the
conversation as threatening, nor did a fight or dispute seem imminent.
testified he asked Tennant if he called, and may have phrased his inquiry
as, "Did you rat on me?" He
asked Tennant why he called. Tennant
said it was against Post Orders and policies to pay for the television.
Grievant told Tennant that had been the common practice ever since he
started. He did not recall
Tennant's response. He then
said, "Thanks a lot, sergeant," and returned to the room.
He denied saying Tennant would "get what's coming to you."
He later came back out to call Palmateer and ask if she wanted a memo
on the incident.
report of October 7 made only the following mention of his interaction with
approximately 1628hrs. I asked Sgt. Tennant if he was the one that called
Mrs. Palmateer? Sgt. Tennant
stated yes he was the one that called Mrs. Palmateer.
testified he had previously served in the Army, and still follows military
precepts in dealing with his superiors.
He therefore would not be disrespectful or threatening to a superior
officer. He testified he had
never had someone report his conduct without first approaching him
directly. Other officers
usually would correct him directly and give him tips on how to handle
Grievant testified he was wearing sunglasses because he had forgotten his regular glasses. He testified the inmate asked if he could chew tobacco or smoke, and he told him he could not. He denied any discussion of taking the inmate to an area where he could smoke.
testified she took Tennant's October 7 call because Fusselman was busy.
After discussing Tennant's report with Fusselman, she called back
to talk to Grievant. She asked
if he had paid for the television; he acknowledged he had.
She asked if he understood the Post Orders said not to do that; he
responded it was done all the time. She
told him that was not her question, and told him not to do it again.
He acknowledged her order. Half
an hour later, he called back to find out whether she wanted a memo from him
on the incident. He reiterated
that other officers paid for the television all the time.
discussed Tennant's call with Grievant and his steward upon his return to
OSCI. She issued a
non-disciplinary letter of instruction reiterating the Post Orders regarding
guarding an inmate at the hospital. She testified she discussed the issue of paying for inmate
televisions with long-term staff, and learned it had been done in the past.
She reminded them of the Post Orders and advised them to re-read
those if they were assigned to hospital watch again in the future.
THE EMPLOYER'S INVESTIGATION
testified she may have heard from Fusselman that an incident had occurred
between Grievant and Tennant, but received no documentation of it until
October 12. On that date, she
received the following written report from Tennant:
Friday, October 7, 1994, at approximately 1530, I observed Officer Schoerder
[sic] pay $3.00 to hook up the television for inmate [P].
I also observed Officer Schoerder [sic] behaving in an overly
friendly manner towards inmate [P] and watching television with said inmate.
addition, Officer Schoerder [sic] was unprofessional in his appearance,
i.e., by wearing his sunglasses while assigned to supervise an inmate inside
a poorly lit hospital room.
Palmateer, Security Manager at OSCI, called and spoke to Officer Schoerder
[sic]. Apparently, Ms.
Palmateer informed Officer Schoerder [sic] that I had reported his actions
to OSCI security. After Officer
Schoerder [sic] finished his conversation with Ms. Palmateer, his attitude
was hostile towards me and he called me a rat for reporting this incident.
Officer Schoerder [sic] stated, that I was not man enough to tell him
that he was not following the Department of Corrections or hospital
procedures and that I would get what was coming to me.
this conversation, Officer Schoerder [sic] went back into inmate [P's]
hospital room and continued to watch television.
discussed this report with Grievant and his Union steward, John Kegley, and
told them she would investigate. She
gave unclear testimony regarding whether she had Tennant's report at the
time she issued the letter of instruction, or instead received it at a later
date. Later, Kegley informed
Palmateer that none of the other officers in the area at the time saw the
incident as Tennant did. Kegley also reported that Joslyn had written a report of
the incident. Joslyn's report,
prepared on October 13, described the interaction between Grievant and
Tennant as follows:
Officer Schoerder [sic] came back out a few minutes later and asked Sgt.
Tennant if he had called and told on him for buying the television for the
inmate. Sgt. Tennant said yes
he had. To this, Officer
Schoerder [sic] said "Why did you do that?" "Thanks allot
sergeant!" Then Officer
Schoerder [sic] turned and walked back into the room in a very indignant
an interview with Palmateer, Joslyn submitted a second report, stating
Grievant engaged in a second conversation with Tennant after the one
described in his October 13 memo. The statement recounted that Joslyn was unable to hear the
conversation because he was talking to another officer.
Joslyn testified he saw Grievant leaning over the officer station
with Tennant nearby, and thought Grievant was talking to Tennant.
He has since learned that Grievant was not talking to Tennant on that
later occasion, but instead was on the phone.
No other officers on duty at the hospital around that time reported
hearing any of the interaction between Grievant and Tennant.
GRIEVANT'S WORK HISTORY
has been evaluated as at least satisfactory in all job elements.
His first evaluation, in 1991, commented he was too aggressive toward
inmates and needed to work on his interpersonal skills.
His 1993 evaluation remarked on his improvement in communications
skills. He received letters of
commendation for his role in handling inmate disturbances in January and
September 1994. His 1994
evaluation reflected one of those letters of commendation, as well as a
formal reprimand. That
reprimand, dated August 2, 1994, involved the following charges:
July 31, 1994, you telephoned another OSCI Correctional Officer and made an
intimidating and unprofessional statement.
days prior to this phone call, you were working Recreation Yard and Officer
Moutria was working Tower #3. Mr.
Moutria reported to Mr. Harrington that he believed you were spending too
much time in long conversations with inmates, thereby neglecting your
security duties. Mr. Harrington
discussed this concern with you. You
thought about it for a few days, and on 7/31/94 made a call to Correctional
Officer Moutria on duty, and said: "What's
this you're talking shit to Harrington about me talking to inmates.
We're not going to be talking about this in the future you dickhead.
I'll see to that."
testified he reported his conduct to Palmateer the day after calling Moutria.
He knew he had made a mistake and wanted to explain the situation.
Palmateer testified Grievant did come to her, but that it was to
talk about his desire to become an Oregon State Police officer.
She raised Moutria's report with him, and he admitted having made the
statement reported by Moutria. He
said he was sorry and knew he should not do it, and that he would not have
such exchanges again. Palmateer
discussed the Code of Ethics with Grievant at the time she issued this
In response to a grievance on the matter, the Employer noted the following factors:
There was an incident prior to the one which resulted in the formal
reprimand in which you were verbally counseled by your supervisor.
The incident in fact resulted in repair necessary to the Unit
Officers restroom door. You had
slammed the door so hard in anger that it broke.
2. The statement you made to Officer Moutria was so blatantly disrespectful, and unprofessional, that a formal reprimand was appropriate even if there had not been previous incidents. You lost control in this instance just as you lost control when you slammed the restroom door in the prior incident.
requested and took a polygraph examination on November 18.
Before the examination, Grievant recounted his recollection of what
had occurred, consistent with his testimony in arbitration.
During the examination, Detective Fredrick Ackom concluded Grievant
had shown "consistent deceptive responses" in answering
"No" to each of the following four questions:
Did you tell Sergeant Tennant he was not man enough to come to you
first to talk to you about this incident?
Did you call Sergeant Tennant a rat for reporting this incident to
Ms. Pallenteer [sic]?
Was there a second meeting with Sergeant Tennant about this incident?
Did you tell Sergeant Tennant he would get what was coming to him?
turning off the polygraph equipment, Ackom told Grievant he believed he was
untruthful in those responses. According
to Ackom, Grievant then said he "may have been" mad, and was
unsure if he had called Tennant a rat or told him he would get what was
coming to him. Grievant
acknowledged having told another officer that Tennant had "ratted him
testified the stress of the job sometimes causes staff to blow up at one
another and speak harshly. He
testified that name-calling occurs, but much of it is joking.
He testified he once handled a grievance regarding an incident in
which Fusselman called an officer a "cocksucker."
Fusselman wrote a letter of apology over the incident, explaining he
had not meant it literally. On
another occasion, Kegley expressed anger to Captain Butler over what he
perceived as a failure to back Kegley up on a suggestion that an inmate be
put in segregation. Both men
spoke very harsh words, and Butler threatened to discharge Kegley.
Kegley testified the two discussed their perceptions of the incident,
and no disciplinary action ensued. OSCI
Corrections Sergeant James West testified that officers ordinarily are not
disciplined for outbursts toward one another unless they occur in front of
inmates or cause undue public embarrassment to the Employer.
West, and Joslyn testified most staff approach one another directly to
address problems, except where a security issue exists.
According to Sullivan, officers who do not take problems first to the
officer involved are deemed untrustworthy by their fellow officers.
He considers teamwork and morale crucial.
and West have found Grievant direct and straightforward, but not
threatening. Sullivan would not
consider a question, "Did you rat on me?" to be a threat unless
it was accompanied by threatening conduct.
testified she counsels officers when she learns they called each other
profane names. Other than
Grievant's incidents with Moutria and Tennant, she has not seen this extent
of workplace hostilities. She
testified that, to her knowledge, no manager has called a staff member a
POSITION OF EMPLOYER
are divided on the quantum of evidence required to prove misconduct in
discipline cases. The appropriate degree of proof required here is
preponderance of the evidence. If
the misconduct were punishable under criminal law or regarded as morally
reprehensible, a higher standard would be appropriate.
No higher degree of proof is applicable or warranted here.
Grievant's violation involved policy and procedures, not criminal law
or moral turpitude.
Arbitrator determines the weight, relevancy and authenticity of evidence.
Grievant's actions clearly violated the Employer's policy. His actions were further compromised by the lack of
authenticity of his testimony. He
has considerable motivation for selective recall of the events.
His credibility falls far short of meeting even the preponderance of
the evidence threshold.
Employer had just cause for this discipline.
Safety and security are paramount in any penal system.
Interpersonal dependence and relationships with colleagues are a
critical component in safety and security. It
would be irresponsible for the Employer not to respond to a serious verbal
confrontation with an element of threat to do someone harm.
Such behavior is disruptive to the workforce and contrary to
had forewarning or foreknowledge of the possible or probable consequences of
his conduct. He had over four years' experience at the time.
Grievant was less than candid on his knowledge of policy and
acceptable behavior. The issue
of wearing sunglasses or paying for inmate TV privileges has nothing to do
with this case. The issue is
Grievant's behavior and predilection for intimidation.
Grievant's record shows notice through verbal counseling, formal
reprimand, and performance appraisal.
Employer's policies were reasonably related to orderly, efficient, and safe
operations and employee performance. Security
and safety are paramount. Grievant
neglected this fundamental expectation.
Employer made a proper investigation before administering discipline.
As an officer outside the OSCI chain of command, Tennant properly
reported Grievant's initial conduct to OSCI management.
Palmateer promptly reiterated appropriate protocols to Grievant.
Under any other circumstances, that would be the end of the matter.
Grievant elected to verbally assault and threaten Tennant for doing
his duty. In determining what
occurred, it is significant that Grievant and Tennant had no prior
acquaintance. To determine what
happened, Palmateer engaged in considerable investigation.
Grievant and all pertinent witnesses were interviewed, and all
evidence was considered. Grievant
had a chance to respond to the charge and present mitigation.
Employer's investigation was fair and objective.
It contacted all persons known to have been present, and interviewed
some individuals more than once. Joslyn's
testimony does not support the Union's claim that the Employer failed to
give appropriate consideration or weight to Joslyn's account of events.
The investigation did not speculate or slant the evidence to reach a
Employer obtained substantial evidence that Grievant was guilty as charged.
Grievant made unsolicited comments to Tennant.
The two had not known each other previously.
Joslyn confirmed that Grievant was agitated and indignant in his
exchange with Tennant. Joslyn's
observation that Grievant returned to the hall to talk to Tennant confirms
that the subsequent exchange was a product of conscious contemplation by
Grievant. Other evidence of guilt includes Grievant's claim of
ignorance of policy despite his prior documented notice of policy; his
denial of difficulty in controlling his anger despite past incidents; and
his claim that he initiated the contact with Palmateer that led to the
August 2 letter of reprimand, which was rebutted by Palmateer.
Employer has applied its rules, orders and penalties evenhandedly and
without discrimination. No substantive or credible evidence exists that the Employer
was aware of any other employees who did not comply with the Ethics Policy.
The burden of showing disparity of discipline rests on the Union.
The Employer has no per se position regarding discipline.
It metes out discipline based on such matters as past discipline, the
nature of the incident, the employee's credibility, the potential for
reoccurrence, and mitigating factors. Lacking
evidence to the contrary, the Arbitrator may not substitute her opinion
regarding what is appropriate. The
sole question is whether the Employer has met its burden of just cause.
degree of discipline administered was reasonably related to the seriousness
of the proven offense and Grievant's record.
It was intended to correct, not punish.
Grievant had previously received verbal counseling and a formal
reprimand. In light of that
record, the Employer properly reduced his pay for two months.
POSITION OF THE UNION
did not threaten Tennant. The
Employer has not shown that Grievant called Tennant "a rat" or
told him he "would get what was coming to him."
The Arbitrator should find no just cause for the discipline.
She should set aside the pay reduction and order the Employer to make
Grievant whole for lost wages, plus interest, and any benefits.
gave contradictory evidence as to whether Grievant called him "a
rat" or merely asked if he "ratted on him."
Grievant denied the former, but may have used the latter phrase, and
he denies the threat that Tennant alleged.
Joslyn's testimony helps resolve this conflict.
Joslyn did not hear Grievant call Tennant "a rat," but did
hear him ask if he had reported him. He
also did not hear the alleged threat, nor did he interpret anything Grievant
said as a threat. Joslyn could
hear Grievant's tone of voice, and observed his demeanor and physical
actions. Based on that testimony alone, the Arbitrator should find
that Grievant did not call Tennant "a rat" and did not threaten
Arbitrator should reject Joslyn's suggestion that he might have missed parts
of the conversation. Joslyn's explanation was the only evidence to account for the
inconsistency with Tennant. Upon
cross-examination, it became clear that Joslyn would have paid attention to
any kind of threat, consistent with his training.
Also, Joslyn's recounting of the content and length of the
conversation was consistent with both participants' description of the
conversation. The only
difference is in how the term "rat" was used and Tennant's
substitution of the threat that he "would get what was coming to
him" in lieu of Joslyn's and Grievant's recollection that Grievant said
"Thanks a lot, Sarge." There
is not enough conversation missing for any significant lapse in hearing
to have occurred. Moreover,
Joslyn's memo did not mention not hearing portions of the conversation, nor
did he report any such lapse when interviewed.
The conversation was very short.
Joslyn was within earshot for the whole conversation.
Nothing interfered with his ability to hear any portion of the
conversation, and no evidence supports the claim that his attention or
listening was redirected in some fashion which precluded him from hearing
testimony about Grievant's comments after a polygraph examination does not
establish misconduct by Grievant. Grievant
told Ackom before the test that he did not make these statements.
He expressed uncertainty only after being told that the test
indicated he appeared deceptive. However,
those test results were clearly faulty.
The third question on which the test indicated deception asked
whether Grievant had a second meeting with Tennant about the incident.
Grievant answered he had not had such a meeting, a response that
Ackom concluded was deceptive. However,
Tennant, Grievant, and Joslyn all agree that no such second meeting
occurred, consistent with Grievant's response during the polygraph examination.
The results of the test were therefore completely unreliable, and
any statements Grievant made after receiving unreliable test results must be
viewed in that context. Moreover,
even after being given those unreliable results, Grievant did not admit to
having called Tennant "a rat" or threatened him.
The Arbitrator has more than enough first-hand evidence to base her
decision. Any reliance on the
polygraph or Ackom's testimony regarding statements made in that process
would be improper.
alleged statements would not be cause for discipline.
They were not threats. Only
Tennant viewed them such. Even
Tennant's testimony does not support such a conclusion.
The term "rat" means to tell on someone, and is commonly
used by both inmates and employees. The
unproven allegation that Grievant said Tennant "would get what was
coming to him" also is not a threat.
It is nothing more than someone venting.
alleged statements did not become threats by the manner in which they were
made. No evidence exists they
were made in a threatening fashion. Even Tennant acknowledged Grievant did not raise his voice,
made no physical threat or gesture, and was not disruptive.
Tennant is significantly larger than Grievant.
Joslyn did not view anything Grievant said, or the manner in which it
was said, as threatening. Sullivan
would not consider such statements to be threats.
conduct did not violate the Code of Ethics.
In the stressful, high risk, and unpredictable environment of a penal
institution, employees must communicate openly, honestly, and directly.
They must trust one another. Section
A.1.f. of the Code of Ethics has been interpreted to mean that employees
should resolve differences by going directly to one another to discuss the
issue. Such issues
appropriately go to a supervisor only if the employees cannot resolve their
differences. Such communication
is necessary because inmates significantly outnumber staff.
Employees must be able to depend on one another to back them up if a
problem arises. A co-worker who
does not bring a problem directly to the person involved, but instead goes
directly to a supervisor, is viewed as untrustworthy.
This results in an inability to work as a team.
Such communication is necessary except where immediate bodily injury
this case, Tennant violated the Code of Ethics.
He should have gone directly to Grievant if he was concerned about
Grievant paying for the TV hookup. Payment
for a TV hookup is not a security breach, nor does it raise a risk of
immediate bodily injury. According
to every witness, Tennant improperly handled this situation.
One must question Tennant's motivations.
He apparently believes he is a self-appointed "enforcer."
In addition to the alleged threat, he reported Grievant for allegedly
being overly friendly to the inmate and wearing sunglasses.
The Employer expressed no concern over these matters.
is a classic example of how mistrust develops between co-workers.
If he was truly concerned about Grievant's interactions with the
inmate or his sunglasses, he should have approached him directly and
resolved the issue. He said nothing to Grievant, but reported it to Grievant's
supervisor in the hope of having him disciplined. It would be difficult for Grievant, or any officer, to trust
consequence of direct communication between employees is harsh words or
expressions of anger. However, most of the time, employees are able to resolve the
conflict through discussion, and the anger dissipates.
Anger expressed in resolving conflicts among co-workers is not cause
approaching Tennant to determine whether Tennant had contacted the Employer
about the television hookup, Grievant acted consistent with the manner in
which employees are trained to confront problems.
He did not violate the Code of Ethics.
context, Grievant's response to Tennant's conduct was completely reasonable.
Despite Post Orders, paying for the television had been a practice as
long as he had been doing hospital watches, and was something he was
specifically instructed to do. Tennant
did not approach him directly, but went behind his back and reported the
incident to the Employer. Grievant
was trying to determine who had reported as wrongdoing behavior which had
taken place for years.
Employer failed to consider Grievant's length of service and past work
record. His performance
appraisals clearly indicate he is an average or better employee.
1991 comments about communication difficulties with inmates are
nothing more than constructive criticism.
Moreover, his 1993 appraisal reflected an improvement in
communication skills. The
Employer relied extensively on his sole letter of reprimand, while ignoring
the contemporaneous letters of commendation.
facts for which Grievant was disciplined are not similar to those which gave
rise to the reprimand. While he was upset, he did not lose control, raise his voice,
use profanity, or make inappropriate gestures or assertive actions.
Employer bears the burden of establishing just cause for discipline.
It must show both that Grievant was guilty of misconduct and that the
Employer imposed an appropriate penalty for that misconduct.
the Employer's brief points out, where the contract is silent on the matter,
arbitrators are split regarding the quantum of proof required in discipline
and discharge cases. At one end
of the spectrum, some arbitrators require proof of wrongdoing by a
"preponderance of the evidence." Under that test, substantial doubt may exist, but the
Employer prevails if the balance tilts ever so slightly in support of the
charges. At the other end of
the spectrum, some arbitrators have borrowed from criminal law to require
proof "beyond a reasonable doubt," particularly if the charges
involve allegations of criminal conduct or moral turpitude.
Most arbitrators, however, recognize that the arbitral forum is not
the criminal forum. This is
especially true when the charge is more of a rule violation, as opposed to
an allegation with criminal or moral overtones.
Thus, arbitral decisions are often made in the face of some doubt.
sustain discipline or discharge, this Arbitrator requires that evidence must
be clear and convincing. To meet this test, the Arbitrator must be fairly certain of
the result, giving the employee the benefit of any favorable evidence on his
behalf and any lack of sufficiency in the employer's case. Put another way, this Arbitrator does not sustain discipline
or discharge if the most that can be said is that it is "more likely
than not" that misconduct occurred.
Admittedly, however, it is a rare case in which this distinction
comes into play.
is well settled that discipline must be corrective rather than punitive.
If the discipline is within a range of reasonable responses to the
severity of the proven misconduct, no basis exists to reduce it simply
because the Arbitrator would have chosen a different level of discipline.
However, if the proven misconduct encompasses less than all of
the charges upon which discipline was based, the discipline imposed
requires greater scrutiny to determine whether it remains appropriate in
light of the partial failure of proof.
Arbitrator cannot fault Tennant for seeking to enforce the Post Orders
strictly. As a higher-ranking
officer in a related service, he had a particular duty to correct what he
perceived to be misconduct. His
methods for doing so may have caused consternation to Grievant, but they do
not reflect on his veracity. Indeed,
no evidence exists that those methods varied from accepted practice in
Tennant's work unit. Further,
even if Tennant demonstrated questionable judgment in not first approaching
Grievant, or acted beyond his actual authority in reporting his
observations, that would not justify the later conduct with which Grievant
is charged. Simply put, threats
of harm and name-calling are inappropriate responses to workplace disputes.
The real issue, then, is not whether Grievant violated Post Orders,
whether Tennant misinterpreted those orders, or whether Tennant utilized the
wrong channels to correct what he perceived as misconduct.
Instead, the dispositive issue is whether Grievant made the alleged
and Tennant are not in as much disagreement about the "rat"
allegation as might appear from their respective written reports.
Tennant's report that Grievant called him a "rat" was a
conclusion, not a quote. When
asked to recount the conversation itself, he quoted Grievant as asking
"Why did you rat me off?" This
quote is consistent with both Grievant's and Joslyn's recollection that,
rather than engaging in name-calling, Grievant merely inquired into
Tennant's conduct. No evidence
exists that the Employer ever asked him for an exact quote during its
investigation; instead, it accepted his conclusory report as evidence.
On the more complete record made in arbitration, the charge of
calling Tennant a "rat" cannot be sustained.
alone recalls the alleged threat, "You'll get what's coming to
you." Certainly, if
proven, this threat would warrant very serious discipline.
Tennant had no apparent reason to invent such a comment, whereas
Grievant has considerable incentive to deny it.
Nonetheless, on this record, a number of factors suggest that the
threat was not made.
response to the alleged threat was inconsistent with his response to other
perceived misconduct. A threat
of retaliation, if made, would be extremely serious--at least as serious as
paying for an inmate's television, wearing sunglasses, or acting too
friendly toward an inmate. Yet,
Tennant reported this alleged threat to the Employer only in a written memo.
Given his recent willingness to report suspected misconduct by
telephone, it is inexplicable that he would permit such a threat to go
unchallenged and unreported until he could complete a memo on the subject.
also evidenced a lack of precision in reporting events.
As noted above, his charge of name-calling exaggerated Grievant's
actual comment. He also
incorrectly identified not only the identity, but the gender, of the OSCI
manager to whom he reported the television incident.
Indeed, he erroneously inserted an additional telephone call from
Palmateer, allegedly to verify his report to Fusselman, when in fact he
spoke to her (rather than Fusselman) in his initial call.
lack of precision would be less problematic if other independent evidence
existed of the alleged threat. However,
the only other witness (besides Grievant) did not hear it.
Joslyn was standing within earshot, and perceived tension between the
two men. Regardless of whether
Joslyn's attention was momentarily diverted, it is more likely than not that
an overt threat such as this would catch his attention.
admitted misconduct toward Moutria cuts both ways on this issue.
On one hand, it establishes that, on one occasion, he responded to
criticism by making hostile remarks to the person who had reported him. On the other hand, at the very least, he admitted that
wrongdoing to Palmateer when confronted.
His honesty in that situation was consistent with his obligations as
an employee. His demonstrated
lapse in judgment in the incident with Moutria thus did not cast doubt on
Grievant's comments following his polygraph examination do not undermine his
denial of the alleged threat. Ackom's
testimony and report were admitted on the representation that Grievant's
post-examination comments cast doubt on his credibility.
As noted above, the Arbitrator has concluded that Grievant truthfully
answered that he did not call Tennant a "rat."
By all accounts, he truthfully answered that he had not had a second
conversation with Tennant. Yet,
the polygraph examination revealed what Ackom interpreted as "consistently
deceptive" responses to these two questions, as well as to the question
of the alleged threat. His
expressions of uncertainty when informed of his "deceptive"
results reflect his misplaced reliance on the reliability of polygraph
all the above reasons, it is concluded that Grievant neither threatened
Tennant nor called him a "rat."
He did express irritation or anger at what he perceived to be an
underhanded method of correcting his behavior.
No evidence exists that such expressions, unaccompanied by
unprofessional or threatening comments, have drawn discipline in the past.
Accordingly, the imposition of discipline in this case violated the
"just cause" requirements of Article 20.
The Employer must rescind that discipline and expunge it from
Grievant's record. It must also
make him whole for any wages and benefits lost as a result of the discipline.
the Union has requested interest as part of the remedy.
Except in very unusual cases, arbitral practice has been not to award
interest as part of the make-whole remedy.
This practice is so well-established that it must be presumed that the
parties knew of it at the time they formed their contract.
Absent a contractual directive or submission agreement to award
interest on backpay, the Arbitrator will not depart from this practice.
Employer violated Article 20 of the 1993-95 collective bargaining agreement
when it reduced grievant's salary by 1 step for 2 months effective January 1,
1995. As a remedy, it must
rescind the reduction, expunge it from Grievant's record, and make him whole
for lost wages and benefits occasioned by this discipline.
As agreed by the parties, the Arbitrator retains jurisdiction over the Remedy portion of this Award and any disputes arising therefrom.
LUELLA E. NELSON - Arbitrator
According to OSCI Corrections Officer Robert Sullivan,
"rat" is corrections or inmate lingo for a tattle-tale.
He has seen this term used by staff in inmate misconduct reports;
for example, one reported that a fight had started because an inmate had
"ratted on" another inmate.
Palmateer testified this incident occurred during the summer of
1993. Grievant testified he
slammed the door in anger because an officer on the prior shift had left
without inventorying inmate property.
When he did, the lock jammed shut, requiring re-keying.
If such results were reliable, his consistent physiological
responses would suggest, if anything, that Ackom misinterpreted the
readings and that Grievant's answer to the fourth question was as truthful
as his answers to the second and third questions.
The possibility of misreadings has led to both judicial and
arbitral reluctance to admit polygraph results themselves as evidence of