County of Blair,
District Council 83
118 LA (BNA) 238
FMCS Case No. 99/16996
September 9, 2002
Kathleen Miller, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
This September 18, 2001 grievance was filed as a “Class Action” on behalf of Corrections Officers at Blair County Prison (BCP). The statement of the grievance reads:
“The right to due process was violated during a hearing of Officer M__ on September 10, 2001 when Management refused to allow him to question witnesses. The right to question such witnesses is part of employees’ rights at disciplinary hearings in the Blair County Prison standard operating procedures Section (VI) subsection (5.10)(c). The same right was denied to Officer C__ on September 11, 2001 during a similar proceeding.”
The grievance asks for a cease and desist remedy, and it alleges a violation of Article II, as well as all other contractual provision which apply.
After being processed in the lower stages of the grievance procedure, the grievance was submitted to arbitration pursuant to Article XXI of the parties’ Collective Bargaining Agreement (CBA). At the April 24, 2002 arbitration hearing, both parties submitted evidence and argument regarding the Union’s due process claim, as well as the issue of whether Employer had just cause to issue a 10-day suspension to Grievant M__ after the conclusion of the due process hearing where his rights are said to have been violated. No transcript of the proceedings was taken, and the Arbitrator received the parties’ post-hearing Briefs as of June 10, 2002.
This grievance was brought under the CBA which is in effect from January 1, 2001, through and including December 31, 2004. In relevant part, Article XXVI, DISCHARGE, DEMOTION, SUSPENSION AND DISCIPLINE, Section 1 provides: “The Employer shall not demote, suspend, discharge, or take disciplinary action against an employee without just cause.” Under Article XXI, GRIEVANCES AND ARBITRATION, STEP 3 addresses the parties’ agreement with respect to arbitration. In relevant part, this provision reads:
Each case shall be considered on its merits and the collective agreement shall constitute the basis upon which a decision shall be rendered . . . .
The arbitrator shall neither add to, subtract from, nor modify the provisions of this Agreement. The arbitrator shall confine himself to the precise issue submitted for arbitration and shall have no authority to determine any other issue not so submitted to him.
At the time in issue, Employer’s EMPLOYEE DISCIPLINARY PROCEEDINGS POLICY included the following:
5.2 Employees are entitled to a hearing before the Deputy Warden prior to the imposition of any sanction beyond a verbal reprimand.
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5.5 Disciplinary hearings shall be conducted by the Deputy Warden and the highest ranking custody supervisor.
5.6 The purpose of the hearing shall be as follows:
a) Determine the relevant facts
b) To establish, by a preponderance of the evidence, the guilt or innocence of the cited employee.
c) To consider mitigating circumstances presented by the cited employee.
d) To determine appropriate sanctions if warranted.
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5.9 Employee may be represented at the hearing by legal counsel and/or a union representative.
5.10 At the hearing, the employee shall have the following rights:
a) He/she may plead guilty or not guilty to the charges.
b) May present his/her version of the circumstances surrounding the incident(s) leading to the citation.
c) May introduce relevant evidence on his/her behalf and may question any witness.
d) May present mitigating circumstances for consideration.
e) May be present during the entire hearing proceeding except the deliberation process after evidence has been taken.
Also, the Standard Operating Procedures in effect for Corrections Officers at the prison includes the following SOP:
VII. FREEDOM OF EXPRESSION
7. ON-DUTY SPEECH/EXPRESSION:
7.1(e) Staff shall make no verbal, written or diagramic statement that ridicules or defames others.
On October 16, 2001, about a month after the present grievance was filed, Warden O’Connor issued to all Corrections Officers a memorandum notifying them of the following immediately effective policy changes:
It is your responsibility to understand that Section 5, Employee Disciplinary Proceedings, Sub-Section 5.10(c) has been modified to read “May introduce relevant evidence on his/her behalf.” The former remaining language in this sentence “and may question any witness” has been deleted.
It is your further responsibility to understand that Sub-Section 5.10(e) “May be present during the entire hearing proceeding except the deliberation process after evidence has been taken,” has been deleted in it’s entirety.
Grievant, whose date of hire is August 10, 1994, works as a Corrections Officer at BCP. On September 11, 2001, Warden O’Connor notified him in writing that he would be suspended without pay for 10 days (September 16 through 20 and 23 through 27) and would be required to attend a course on professionalism and ethics. O’Connor cited Grievant’s August 19, 2001 use of profanity when addressing an inmate as a violation of the SOP relating to on-duty speech and expression and the prison Code of Ethics
This disciplinary notice referred to multiple past occasions when Grievant had violated BCP’s rules, regulations and SOPs. The evidence shows that Grievant’s disciplinary history includes: a May 27, 1998 Written Warning for treating an inmate in a humiliating manner, as well as a one-day unpaid suspension for disobeying the orders of his Shift Commander; a January 10, 2001 three-day unpaid suspension for making sexual remarks to an inmate about his wife and making sexual gestures behind a nurse’s back; a March 7, 2001 Written Reprimand for failing to follow his supervisor’s orders; and a May 23, 2001 five-day unpaid suspension for insubordination, failing to follow orders, conduct unbecoming an officer, and cruelty to an inmate At arbitration, the Union did not dispute Employer’s claim that no grievances were filed to challenge any of these disciplinary actions. In its post-hearing Brief, however, the Union stated that the five-day suspension is pending arbitration.
The incident which resulted in Grievant’s 10-day suspension occurred at about 9:00 p.m. on August 19, 2001, when he was working the Commitment post. Lt. James Kaufman testified that he was in his office, with the door closed, when he heard Grievant and inmate K__ yelling and using profane language in the committing area across the hall. The evidence shows that the inmate was in a committing cell, and Grievant was in the committing area at the time. When Kaufman heard the yelling, he was about 30 feet from the cell, with three closed doors between him and the inmate.
Kaufman said that while he still was in his office: he heard K__ use the word “pussy”; and he heard Grievant use the words “asshole” and “retard”, as well as screaming, “As long as I’m working here, you’ll never get anything from me again.” Kaufman was the shift supervisor, and he said that he left his office to see what was going on, but by the time he entered the hallway the commotion was dying down. In the hallway, he saw Officer Cheryl Consalvo, who was cleaning along with two female inmates. He said that pursuant to the investigation he conducted before submitting an incident report to Deputy Warden Larry LaVelle, he interviewed Consalvo and the two female inmates, but he did not interview Grievant or K__.
A few days after the incident, Consalvo prepared a written report stating that K__ began swearing at Grievant during the incident, and Grievant responded by yelling at K__, calling him a “fucking retard” and a “fucking asshole” and telling him that he “would never get another fucking thing from him” when he was on duty. At the end of the incident, she said, Grievant came and apologized to her and the two female inmates for his behavior. At arbitration, Consalvo said that by the time Kaufman asked her to prepare this report she had forgotten which names Grievant had called K__, so she asked the two female inmates who were present. She independently recalled, however, that Grievant called K__ a “fucking ass”.
On September 10, 2001, a due process conference was held, with the following attendees: Warden O’Connor, Deputy Warden LaVelle, Grievant, and Union Representatives Joseph Salomie and Thomas Castellucci. At arbitration, O’Connor said that he conducted the conference, including interviewing Grievant. Grievant and Salomie said that LaVelle asked the questions, and Castellucci did not recall. All the attendees agreed, however, that at the conference Grievant was informed of the charges against him and provided with an opportunity to give his version of the August 19, 2001 incident involving K__. Grievant said that he used this opportunity to explain that K__ had been permitted to make a phone call, but it did not go through, so he was constantly pestering Grievant to place the call for him.
All the attendees also said that Grievant asked to interview witnesses, and O’Connor said he could not. O’Connor became Warden on August 13, 2001. He said that since he was new he checked first before he told Grievant that he would not be permitted to interview witnesses. Grievant said that he also notified management five days before the conference that he wanted to call witnesses, but he got no response before the conference. Salomie, who had not previously attended a due process conference as a Union Representative, recalled that no witness statements were produced at the conference. Castellucci, who had previous experience as a Union Representative at due process conferences, said that Employer does not usually bring witnesses to these conferences. He also said that inmate statements are used in investigations, but they usually are not used in disciplinary proceedings.
O’Connor said that LaVelle took notes at the conference, and based on these notes a written summary was prepared. Grievant confirmed the accuracy of the portions of this summary which report: that he denied calling K__ a “retard”; that he admitted he was screaming at K__; and that he admitted that he told K__ to “quit acting like a fucking asshole”. Grievant also acknowledged that he was angry and using a loud voice with K__. He stressed, however, that he did not “call” K__ a “fucking asshole”-he only told him to stop acting like one.
Grievant testified that it is an everyday occurrence for Corrections Officers to use such language in the presence of inmates, but he acknowledged that this is a violation of standards and practices. He said that it also would be a violation for a Corrections Officer to call an inmate a “retard”, but he is certain that he did not call K__ that name. He acknowledged that he told K__ that he no longer would do anything for him, and he said this was a reference to the “something extra” he was doing in helping K__ to get his phone call placed. The conference summary states that when Grievant was reporting that K__ was “bugging” him to place the call, he also said: “You have to yell at K__ to get through to him.” According to the summary, when Grievant asked if he felt his language and conduct were appropriate during the incident in issue, he responded: “For K__, yes.”
The evidence shows that at the time in issue, Grievant had undergone a 30-day evaluation at a state psychiatric hospital and was receiving treatment for psychiatric problems which included being on medication.
In its post-hearing Brief, Employer contends that the only issue properly before the Arbitrator is defined on the face of the present grievance, which cites only Article II and alleges only that Grievant was denied due process during the investigation which resulted in his suspension. Therefore, says Employer, if the grievance is sustained the only appropriate remedy, in accordance with the cease and desist remedy sought, would be an order that the County permit the questioning of all witnesses in future investigation hearings.
Regarding the due process claim, Employer asserts that the evidence shows: that Grievant was given a due process hearing on September 10, 2001, in the presence of his Union representatives; and that at the hearing he was confronted with the nature of the charges against him and given an opportunity to respond to those charges. Employer points out that the parties did not include in the CBA any provisions regarding due process, including any language addressing any due process rights concerning investigations of employees. According to Employer, it is well-established arbitral law that as long as an employee is given an opportunity to give his side of the story, basic due process rights are satisfied in the workplace.
Employer rejects the Union’s claim that Grievant’s due process rights were violated because he was not permitted to question witnesses at his due process hearing. It points out, in fact, that no witnesses were present and that Grievant and the Union were provided with the basic substance of their statements before he was given an opportunity to respond. Citing a recent decision of the Pennsylvania Labor Relations Board, as well as two arbitration decisions outside this relationship, Employer contends that due process is met as long as an employee is provided with an opportunity to be heard, and as long as the disciplinary process is fundamentally fair, even if it is not totally free of procedural error. According to Employer, even where Arbitrators have found a procedural violation of a CBA, an Employer’s disciplinary action will not be overturned unless it also is found that there was at least a remote possibility that the error may have deprived the grievant of fair consideration of his or her case. Employer urges that in the present case, even if it were found that it should have provided witnesses to be questioned, this would amount to a de minimis procedural violation which would not provide a sufficient basis to overturn the discipline.
Additionally, says Employer, should the Arbitrator consider the issue of just cause, even though the Union did not raise it in its grievance, the evidence presented is sufficient to sustain Grievant’s suspension. Employer points out that Grievant admitted using the words “fucking asshole” in front of the inmate, and he admitted that using this language was improper conduct for a Corrections Officer. In Employer’s view, the weight of the evidence also shows that Grievant called the inmate a “retard”. It stresses that this type of conduct could have exposed it to substantial liability, since the inmate was being treated and medicated for psychological problems, and recently had undergone a 30-day psychiatric evaluation at a hospital.
Finally, Employer points to evidence which shows that Grievant had received prior discipline, including suspensions, for conduct of a similar nature. In light of this prior discipline, Employer asserts that the present 10-day suspension was reasonable and, in fact, Grievant should be grateful that he was not discharged for his conduct in this matter.
On all the evidence, Employer asks the Arbitrator to dismiss the grievance, to uphold the 10-day suspension, and to find that Grievant’s due process rights were not violated in the investigation in this matter.
The Union notes that it is well-established that the suspension of an employee is capital punishment, as far as labor is concerned. In such a case, says the Union, it is the Employer’s burden to prove by a preponderance of the evidence that there was just cause for the employee’s suspension. The Union asserts that Employer has failed to prove that there was just cause for Grievant’s suspension for alleged violation of the SOP relating to on-duty speech and expression and for alleged violation of rules and regulations from the prison Code of Ethics relating to profanity directed to inmates.
In the Union’s view, witness testimony comprises the most important evidence regarding the facts which led to an employee’s discipline, and the testimony provided by Employer in the present case is weak. As to Lt. Kaufman, the Union points out that the noncompliance citation he gave Grievant states that he could hear Grievant and K__ yelling from his office, but he did not state this at arbitration. At arbitration, says the Union, Kaufman said he could hear yelling from his office, but it questions this possibility since there were 30 feet and three steel doors between him and the cell where inmate K__ was being held. The Union also points out that Kaufman testified that by the time he came out of his office the yelling had stopped, and it wonders why he did no immediate investigation, at least to determine whether someone needed help. Additionally, the Union stresses that at arbitration Officer Consalvo said that at the time in issue she really did not know what was going on in the committing area, even though she was standing in the nearby hallway with two inmates. Moreover, says the Union, the written statement she prepared at Lt. Kaufman’s request clearly must be regarded as hearsay, since she testified that she obtained the information she put in the report from the two inmates.
The Union also asserts that Grievant’s due process rights were violated in the present case. It contends that Employer violated its own disciplinary proceedings policy when it prohibited Grievant from questioning any witnesses at his September 10, 2001 due process conference. In fact, says the Union, Warden O’Connor admitted during his testimony that shortly thereafter, on October 16, 2001, he changed the applicable portion of this policy. The Union also points out: that O’Connor testified that he conducted Grievant’s due process conference; that the Union witnesses who were present at the hearing testified that the Deputy Warden asked Grievant all the questions; and that Employer’s minutes of that conference are not signed by anyone.
Additionally, the Union asserts that the object of an investigation is to gather all possible information available, to conduct impartial interviews, to analyze the information gathered and to test the findings to be made based on the facts. In the Union’s view, the evidence shows that Grievant was denied a fair and thorough investigation before he was suspended on September 11, 2001. It points out that Lt. Kaufman was the only person who investigated the August 19, 2001 incident, and that his investigation was biased, highly personal, and based on an unreasonable distortion of judgment rather than an effort to find the facts. In support of this position, the Union stresses that Kaufman did not include Grievant in the investigation, and he did not interview inmate K__, even though the employee non-compliance citation he issued to Grievant on August 28, 2001 identified K__ as having direct knowledge of the incident in issue. Moreover, in light of Kaufman’s testimony as to how loud the yelling was during the incident, the Union questions why he did not seek out other witnesses in the area to interview as part of his investigation.
On all the evidence, the Union asks the Arbitrator to sustain the grievance, to make Grievant whole for the 10 days of lost wages, including overtime and benefits, and to remove the employee non-compliance citation from his personnel file.
Employer correctly asserts that the face of the present grievance does not bring into issue the contractual propriety of Grievant’s 10-day suspension, under Article XXVI. While Employer noted this at the arbitration hearing in the present case, no claim was made at that time that the scope of my authority under Article XXI would be offended were I to consider the issue as to whether there was just cause for this suspension. Rather, both parties presented full evidence and argument as to both that issue and the due process issue stated on the face of the grievance form. Under these circumstances, I find that both these issues were “submitted for arbitration” in the present case, as contemplated under the jurisdictional grant in Article XXI.
The evidence as to the August 19, 2001 incident undisputedly shows that a loud altercation broke out between Grievant and an inmate who at the time was confined to a holding cell in the area where Grievant was assigned. Under Grievant’s own account of the incident, he screamed at the inmate and, in reference to his recent attempts to help this inmate place a permitted phone call, he told him that he never would do anything to help him again while he was on duty. Grievant denies that he called the inmate a “retard” during the course of this incident. He also denies that he called him a “fucking asshole”, insisting instead that he only told him to stop acting like a “fucking asshole”.
The fact that the eruption of this incident drew Lt. Kaufman from his office-some 30 feet away, through the barrier of three closed steel doors-confirms that this indeed was a “screaming” incident, rather than just a heated exchange of words. That it had begun to die down by the time Kaufman left his office to investigate shows only that the incident was short in duration, which is irrelevant to any characterization of the nature of the incident. Kaufman does not claim that he heard everything that went on while he still was in his office, but from the beginning he has stated that he heard Grievant use the words “asshole” and “retard” and tell the inmate that as long as he was working there he would never get anything from him.
Based on her own firsthand recollection, Officer Consalvo testified that during the incident, she heard Grievant call the inmate a “fucking ass”. She acknowledged that her written report that he also called the inmate a “fucking retard” was based on the recollection of the two female inmates who were with her at the time. She consulted these inmates, she said, because she could not recall exactly which names Grievant had called the inmate. In her written report, she also stated that Grievant told the inmate that he “would never get another fucking thing from him”, and she made no claim that this statement was based on anyone else’s memory, rather than her own firsthand recollection.
At the time of this incident, the inmate in question was receiving ongoing psychiatric treatment which included medication. Under these circumstances, if Grievant in fact called him a “retard” in the course of his performance of his duties as a Correction Officer, the Shift Supervisor heard this, and Employer took no corrective action, the risk of potential liability to BCP seems obvious. Even setting aside any question of liability, in the context of the inmate’s medical condition, as well as the inherent power imbalance based on Grievant’s position with respect to the inmate, Grievant’s responsibility to restrain himself from using such a term seems equally obvious. At arbitration, Grievant acknowledged that had he used this term it would have been a violation of procedure.
While Consalvo’s written report that Grievant used the term “retard” is hearsay, it corroborates Kaufman’s firsthand account that Grievant used this term when he was screaming at the inmate. For purposes of the present decision, however, even assuming, without so deciding, that Grievant did not use the term “retard”, the whole of the evidence sufficiently supports Employer’s determination that there was just cause for his discipline for the remainder of his conduct during the incident.
This evidence is uncontested, and it shows that while acting in his capacity as a Corrections Officer on duty Grievant screamed at the inmate, used the term “fucking asshole”, and threatened to withhold future aid to him, even, under Grievant’s own account, with respect to helping him realize a privilege which had been granted to him by Management. Grievant insists that he did not actually call the inmate a “fucking asshole”, but only told him to stop acting like one, but I find that this is a distinction without a difference for purposes of the present just cause determination. I also find that this record contains no persuasive mitigating evidence in Grievant’s favor. Most notably, although the evidence shows that the inmate was an active participant in the incident and likely was the first to use profanity, he was locked in a cell at the time, so that there is no legitimate question as to provocation. Regarding Grievant’s “shop talk” defense, his behavior was directed not toward a fellow worker, but toward an incarcerated person over whom he had substantial authority as an incident of his position. Even if the inmate had not been in psychiatric care, Grievant’s responsibility would have included handling any outburst on the inmate’s part with sufficient judgment and control to avoid violating the policies and procedures applicable to his conduct, in his capacity as a Corrections Officer.
Also, the evidence shows that Grievant had been disciplined progressively for previous inappropriate behavior while on duty, including receiving a three-day and a five-day suspension within the seven-month period prior to the present incident. There is no evidence that a grievance was filed in any of the prior instances. Even if the five-day suspension had been grieved, however, a resolution was still pending at the time of the present incident, which occurred only two months after the behavior which resulted in the five-day suspension. The purpose of progressive discipline is to encourage an employee to correct his behavior before similar misconduct leads to more severe discipline. On the totality of the evidence, I do not find that Employer’s imposition of a 10-day suspension in the present case constitutes an abuse of its authority under Article XXVI.
The Union also challenges Grievant’s discipline on the basis that Employer violated his due process rights during the investigation and due process conference which preceded the issuance of the 10-day suspension. There is no provision in the CBA which addresses employees’ due process rights in the context of Employer’s imposition of disciplinary action. The question regarding the investigation is whether it constituted a fundamentally fair consideration of the facts pertaining to the August 19, 2001 incident.
Lt. Kaufman conducted the investigation, and the Union says that he did not make an effort to question all possible witnesses to the incident. Because of the particular circumstances under which the incident occurred, Kaufman, himself, was a firsthand witness. He heard Grievant screaming at the inmate, including the comments which formed the basis of the charges against him. He questioned the staff member who also was in the area at the time, Officer Consalvo, and he instructed her to complete a written statement immediately thereafter, the substance of which corroborated his own firsthand account. He also interviewed the two female inmates who were with Consalvo at the time of the incident. On these facts, I cannot find that Kaufman’s investigation was procedurally flawed because he failed to interview the inmate who was involved in the incident with Grievant, and he failed to question Grievant in advance of his due process conference. Nor am I persuaded that Kaufman’s investigation was fundamentally unfair because he did not seek out other potential witnesses, beyond those who clearly were within earshot of the incident when it occurred.
As for the Union’s claim regarding the September 10, 2001 disciplinary conference, the evidence establishes that Employer satisfied all the obligations set forth in Sections 5.2, 5.5, 5.6, 5.9, and 5.10(a), (b), (d) and (e) of its unilaterally-promulgated EMPLOYEE DISCIPLINARY PROCEEDINGS POLICY. On this score, it should be noted that both the Warden and the Deputy Warden participated in this conference. Thus, regardless of which of them may have posed the interview questions to Grievant, I find that the conference was conducted in accordance with the intent underlying Section 5.5. This provision establishes that, where a disciplinary sanction beyond a verbal reprimand may be imposed, the conference will be conducted by the Deputy Warden and the highest ranking custody supervisor.
Under Section 5.10(c), an employee has the fight at the disciplinary conference to “introduce relevant evidence on his/her behalf and may question any witnesses.” The evidence leaves no doubt that Employer honored its obligation under the first part of this phrase. Indeed, all attendees of the conference, including Grievant and both his Union Representatives, testified that Grievant was confronted with a full statement of the charges against him and was provided with a full opportunity to respond, including giving his version of what occurred during the August 19, 2001 incident.
In the absence of a contrary contractual provision, normally Employer would be correct in asserting that due process in the context of a workplace disciplinary conference generally is regarded as having been observed if an employee is provided with a full opportunity to be heard. Here, however, Employer was obligated under its own Section 5.10(c) to provide Grievant with an opportunity “to question any witnesses”. In its Brief, Employer points out that there were no witnesses present at Grievant’s conference, but if Management could avoid its obligation under 5.5(c) simply by failing to bring witnesses to a conference, then the employee right established thereunder would be meaningless.
The evidence shows that Grievant asked at his conference for an opportunity to question witnesses. I find that Employer was obligated to produce them for questioning under 5.5(c), and that it violated this provision of its policy when it refused to do so. In light of the sufficiency of Employer’s evidence that Grievant committed the misconduct with which he was charged, however, I do not find that Employer’s procedural error under 5.5(c) warrants removal of his 10-day suspension. This evidence includes Grievant’s own admissions at the conference that he had screamed profanity at an inmate who was confined to a cell and that he threatened to withhold future cooperation from the inmate, even regarding privileges to which he was entitled. It also includes Grievant’s prior history of similarly serious misconduct, as well as the progressive discipline which resulted in each instance.
As a separate matter, the face of the present grievance requests that I issue a cease and desist order as a remedy for any found procedural error. On the basis of the present record as to Employer’s refusal to permit Grievant to question witnesses at the September 10, 2001 conference, I would have been prepared to direct Employer to honor such a request under its 5.5(c) obligation, in future cases. The evidence shows, however, that on October 16, 2001-after the present grievance was filed but before it was presented in arbitration-Employer modified 5.5(c) by eliminating the language which establishes an employee’s right to question witnesses at his or her disciplinary conference.
The present record contains no evidence as to whether the Union sought in any forum to challenge this October 16, 2001 modification, but no such issue has been raised as part of the present proceeding. Additionally, the remedy request made in the Union’s post-hearing Brief makes no mention of a cease and desist order. As limited to this particular, and somewhat peculiar, evidentiary record, I can find no existing basis on which to award a cease and desist order in the present case.
For the reasons expressed in the above Opinion, the grievance is denied.