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Wackenhut Corrections Corp.
Delaware County Prison Employees
Independent Union Corrections Officers
118 LA (BNA) 63
FMCS Case No. 02/12669
January 5, 2003
Donald T. O'Connor, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
This arbitration arises pursuant to a collective bargaining agreement between the Union and the Company. The Union contends that the Company discharged the Grievant on March 1, 2002 without just cause. The Grievant filed a written grievance on March 5, 2002. The Company maintains that the Grievant's discharge was justified by her prior disciplinary record and her conduct on March 1, 2002.
The parties agreed upon the following statement of the issue to be resolved:
Was the Grievant discharged for just cause?
If not, what shall be the appropriate remedy?
The Company, Wackenhut Correctional Corporation, operates under a contract the George W. Hill Correctional Facility in Thorton, Delaware County, Pennsylvania which houses offenders waiting for trial as well as convicted prisoners serving up to five years. There are 1750 inmates and a staff of about 400.
The Grievant was hired on January 4, 1999 as a Correctional Officer and was discharged on March 1, 2002 for alleged insubordination. The Employee Disciplinary Record reflecting the Grievant's discharge stated that the incident occurred at around 1:00 P.M. on that date in the Supervisor's Office. The summary of the incident reads as follows:
On the above date and time Officer (Grievant) stormed into the Shift Cmdr's Office while I was preparing overtime for the shift. Ofc. (Grievant) threw a piece of paper at me and began bellowing at me; Stating she is going to “fucking” sue me, This writer instructed her to exit the office and informed her that if she wanted to talk to me she could be a little more respectful on her Initial (sic) entry. At this time Ofc. (Grievant) stated, “Fuck you and Fuck that. I am writing you the fuck up and all you and all you Mother Fucking Supervisors.” At this time Officer (Grievant) stormed out of the Office and walked over to then Warden's office, by passing her proper chain of command. Officer (Grievant) was completely insubordinate and violated policy and procedure.
The form was signed by her Shift Commander Lt. R__.
Around 3:40 P.M. that day, the Grievant was advised that she was terminated. Four days later, on March 5, the Grievant filed a grievance that read:
On 3-1-02 at approx. 1300 1 C/O (Grievant) was going to chow when I approached center desk. I was given a note by C/O Y__ I asked her where did this come from. C/O Y__ stated that she did not know. I C/O (Grievant) went into master control and asked Lt. G__ did he know where the Not(e) (sic) came from. He said no. I C/O (Grievant) left master control and went to the supervisor's office. I knocked on the door and went in. Lt. R__ was sitting at the desk on the phone. I asked him did he know anything about this message. He stated yes, I took the message. I then asked when. He stated at 10:00 or 11:00 AM. I gave it to Officer K__ to give to you (he said) (sic). I then stated why would you give another C/O something to give to me. Lt. R__ stated because I wanted to. Now get out of my office in a very unprofessional tone. I think Lt. R__ was wrong for given another c/o a message for me. The message was confidential. It was about my surgery that I had on 3/28/02 (sic). At no time did I use profanity towards him. I don't see how I was terminated for insubordination it his (sic) word against mine.
At the hearing the Company called Mr. C__, the current Warden to testify as to the Grievant's disciplinary/discharge record. Mr. C__ has been the Warden since July 8, 2002. He did not witness any of the events leading up to Grievant's discharge.
He testified that according to the Company's personnel records the Grievant was given an oral reprimand on October 6, 2001 for refusing to stay and work necessary overtime as mandated. On the Employee Disciplinary Record, the Grievant wrote that she did not have anyone to watch her son. She went on to say “I am sorry that I caused someone else to be mandated.” According to Mr. C__, no grievance or appeal was taken to this discipline.
Mr. C__ went on to testify that the Grievant received a second oral reprimand on November 25, 2001 that read in part the Grievant “did call out for First Shift. This is this Officer's 3rd unauthorized absence occurrence.” The Grievant wrote on the Disciplinary Record that she had a doctor's note. (No evidence was submitted reflecting whether a grievance over this incident was filed or was pending. Since the Union did not claim that such a grievance existed, the Arbitrator assumes no such grievance was ever filed).
The following month, Mr. C__ stated that the Grievant received a Written Reprimand on December 23, 2001 for refusing to stay on duty for mandated overtime as ordered. The Employee Disciplinary Record stated that she “refused to obey this order. This is the 1st occurrence of refusing to obey orders/refusing mandated overtime for this officer.” No explanation was written on the Disciplinary Record and no grievance was filed.
Less than a month later, on January 13, 2002, the Grievant received a written reprimand for calling out sick. “This is Officer Grievant's 5th unauthorized absence occurrence.” Again no explanation was written in on the Disciplinary Record by the Grievant, and no grievance was filed. However, she did produce a “Certificate to Return to Work” dated January 30, 2002. No explanation was made at the hearing as what this doctor's note had to do with her January 13th absence. The Grievant did not grieve this reprimand.
The Grievant was given a three day disciplinary suspension on February 22 for her failure to complete “all segregation sheets and failed to document the logbook. There were no entries for the 1st shift.” A Grievance dated February 27 was submitted on March 6, five days after the Grievant was terminated claiming the Grievant never received copies of the post orders. The grievance was denied on March 13, and no appeal was taken to Step-2 by the Grievant.
Thereafter, the Grievant was discharged on March 1 for the reason stated above. In response to the Grievant's March 5 grievance the then Warden, Mr. J__, handed down his written answer on April 5 denying the grievance. His answer read as follows:
After thorough review of your grievance/appeal, I find no reason to overturn your termination. The disciplinary (sic) you received was your fourth documented violation of the Employee Handbook and in accordance with Article 14 Section C of the CBA. All four disciplinaries (sic) you received were properly documented and served. There was no evidence to support allegations that Lt. R__ acted inappropriately or unprofessionally during the incident you are grieving. However, on the date of the incident, you arrived in my secretary's office in a loud and angry manner, such that she stepped out of her office with you, in an effort to keep your actions from interfering with my work. Termination is upheld.
Ms. R__ Secretary for the Warden, then testified. She said that she was in her office and the Warden was in his office when the Grievant came storming into her office on March 1. She said that the Grievant was very upset. According to Ms. R__ , the Grievant used profanity. Ms. R__ asked her to keep her voice down. She stated that the Grievant was upset about a message. Ms. R__ wasn't sure whether the Grievant's complaint was that she did not receive the message or the message was given to someone else, but she was very upset about a message. She told the Grievant that she would like to help her, but that the Grievant had to keep her voice down. When the Grievant left, she still could not tell exactly what the complaint was about. She said she was taken back by the loudness and the profanity.
The next witness was Captain R__ , Shift Commander on the night shift. She testified that she also does training. Captain R__ testified there is no policy as to how telephone messages should be handled. Calls, she said, come into the front reception area where all the phone messages are taken. They cannot, she said, be put directly into the units. Captain R__ said that calls coming in for an employee when the employee is in his or her unit are usually directed to the shift commander or one of the supervisors.
The only witness for the Union was the Grievant herself. She said that as a Correctional Officer, her duties were to watch the inmates and make sure they were secure and safe at all times. She said that two days before the March 1 incident she'd had an abortion at the Philadelphia Women's Center.
She testified that on March 1, the date that she was terminated, she left from her assigned unit at around 12:30 to 12:45 P.M. to go to lunch. On the way out, as she was approaching the Center Desk, she was given a note by Correctional Officer M__. It had her name on it. She said that when she went to open it, she noticed that although it had been stapled shut, it had subsequently been opened. The note had on it the name of the Philadelphia Women's Center (which is an abortion clinic) with a phone number and a women's name. She said that she asked everyone at the Center Desk where the note came from, but they responded that they didn't know where it came from. She said that she then went into master control and talked to Lt. G__. According to the Grievant, Lt. G__ said he couldn't tell her anything about the note.
She said that she then went to the Shift Commander's office where Lt. R__ was sitting at the desk and was on the phone at the time. According to the Grievant, the door was open and she went into the office and waited for him to finish his phone call. She said that she then asked him if he knew anything about the note that she had in her hands. He said “ya-I took the message.” The Grievant said that she then asked when the message came in, and he replied “roughly between 9 or 9:30.” She responded that it was “12:30- quarter to one” when she got the message. She testified that Lt. R__ replied that he gave the message to another Correctional Officer (not a supervisory employee) to give to her. The Grievant states that she then said to Lt. R__ that it was none of the Correctional Officer's business to know the contents of the note, nor was it his responsibility to give her the message. She said that she said to Lt. R__ that he should have delivered the note to her personally or called her to come and get it. He should not have given the note to some Correctional Officer, she said she told him. She testified that Lt. R__ hollered at her “You don't tell me how to run my office.”
She said she walked out of Lt. R__ 's office and looked for Captain B__, but Captain B__ wasn't on the premises. She said that she then went to Major T__'s Office, only to find out that he was out of town. She then went to the Warden's Office. She said that she talked to Ms. R__ , the Warden's secretary. The Grievant said that Ms. R__ took her name and said that she would give the Warden her message. She said that when she walked away from the Warden's Office she talked to some gentleman from the County, whose name the Grievant could not remember. According to her, the gentleman from the County said he would talk to Lt. R__ .
The Grievant said that she then got in her car and went to lunch. After lunch, she returned to the post until about 3:30 P.M. to 3:45 P.M. when she was called to the administration building where she was terminated for insubordination and for being loud. She was not informed of the termination by Lt. R__ . She said that she then asked the person terminating her that “if she was loud and insubordinate why wasn't the K-9 unit called to see her off the property.” She went on to say that the K-9 unit is always called to escort those off of the premises who become loud or unruly. In her case, however, she was allowed to leave on her own, go to lunch and come back to her post. She went on to testify that she did not use profanity or raise her voice with Lt. R__ or with Ms. R__ . She acknowledges that she was angry and very upset over the event. She had an abortion and she felt her privacy was violated the way the message was handled. She said that that was not information others should have seen. She said the call from the Women's Center was for the purpose of having her pick up special medication in connection with her abortion.
As to her prior disciplinary record, the Grievant testified to various reasons that might exonerate her from the discipline or may act as mitigating circumstances. Since, as I note below, those prior disciplinary actions can not be challenged in the instant matter, I have not considered any of her testimony as to those offenses.
Lt. R__ was not called. The Company's representative said he was no longer employed by the Company, but gave no other explanation why he wasn't called as a witness or subpoenaed.
IV. Relevant Contractual Provisions
Article 12, Grievance Procedure and Arbitration
Section B. A grievance as to the interpretation of, application of or compliance with the provisions of this Agreement shall be handled in the following manner:
Step 1: The employee through his Union representative, shall first present such grievance to the Major or his designee, provided such grievance is presented within five (5) calendar days after the grievant knew or should have known of the occurrence of the event upon which such grievance is founded....
Step 2: The employee through his Union representative, shall present the subject grievance in writing to the Deputy Warden, or his designee within the aforementioned seven (7) calendar day appeal period referred to instep-1 above....
Step 3: The Union representative may deliver the written grievance to the Warden provided it is done within seven (7) calendar days of the decision rendered in Step-2, or if no decision has been rendered within seven (7) calendar days of the expiration of the period provided for such decision. In the event a decision has not satisfactorily resolved the grievance or if a decision has not been rendered within fourteen (14) calendar days of the submission of such grievance, the grievant may proceed to arbitration under Section-D.
Section C. In the case of disciplinary suspension, grievances must be submitted to: Step-2 within seven (7) calendar days of receipt of written notice by the employee or the Union, which ever is sooner. In the cases of discharges grievances must be submitted to Step-3 within seven (7) calendar days of receipt of written notice by the employee or the Union, whichever is sooner. Suspensions for attendance and/or lateness, will not be served if a grievance is filed until final appeals are resolved through Step-3 of the Grievance Procedure.
Section D. Any unsettled grievance which has been processed in accordance with the timelines set forth herein, which involves the interpretation or application of this Agreement may be referred to arbitration.... * * *
Section I. If a grievance is not appealed within the time limits hereinbefore set forth, the grievance shall be deemed to be settled on the basis of the decision last made and shall not be eligible for further discussion or appeal. If a decision is not rendered within the time limits set forth, then the grievance shall proceed to the next step. * * *
Article 14, Just Cause
Section A. No employee shall be disciplined or discharged without just cause. The Company shall notify the Union, in writing, that the services of an employee are not desirable, and that he has been discharged.
Section B. (Lists 17 offenses that may subject an employee “to immediate suspension or discharge,” insubordination not being one of the listed offenses.)
Section C. Employees shall not be disciplined without just cause. Other than those matters listed above in Section B., all discipline as contained within the WCC Employee Handbook shall be progressive in nature as outlined below:
a. First Offense—Oral Reprimand (Notation in Personnel file).
b. Second Offense Written Reprimand—(Copy to Employee and Personnel File).
c. Third Offense—Suspension (1 to 3 days without pay).
d. Fourth Offense—Termination.
In agreement with the Union, the Company may skip one or more of these steps, depending on the severity of the violations. Employees may be suspended without pay during disciplinary investigation for up to 10-days. Should the employee be cleared and no cause found, the employee will receive full back pay.
Section D. Disciplinary actions will remain in a Correctional Officer's personnel file, but cannot be used against the Officer after the expiration of 12 months from the date of the last violation. * * *
Section F. In the event a discharge action or a discharge of any employee shall be deemed by the said employee to be in violation of the terms and provisions of this Article, the said employee may avail himself of the grievance procedure as elsewhere herein set forth in full. (Emphasis supplied).
A. Are the prior disciplinary actions now reviewable?
At the hearing the Company introduced the disciplinary record of the Grievant covering the period of October 6, 2001 through March 1, 2002, the date that she was terminated Mr. C__, the current Warden, explained that the Company uses a progressive discipline policy consisting of an Oral Warning (recorded) for the 1st Offense; Written Warning for the 2nd Offense; Disciplinary Suspension without pay for the 3rd Offense, and Discharge for the 4th Offense. That is consistent with Article 14, the Just Cause article, Section C of the collective bargaining agreement.
The Union in presenting its case offered testimony as to the pre March 1 discipline, if believed would have exonerated the Grievant or acted as evidence of mitigating circumstances.
The Arbitrator in analyzing Article 12, the Grievance Procedure and Arbitration article and Article 14, the Just Cause article of the Agreement, has concluded that the earlier offenses cannot be reviewed in the instant proceeding since no grievances were filed in some cases, or where grievances were filed, they were denied and not subsequently appealed. It is clear under Section F of Article 14, the Just Cause clause, that disciplinary actions, whether warnings, suspensions, or discharges, may be challenged in the grievance procedure. As noted above, grievances were either not filed, or were filed, denied, and were not appealed further. Step-1 and Step-2 of the Grievance Procedure have time limits that grievances must be filed by or appealed, i.e., “five (5) calendar days” at Step-1 and “seven (7) calendar days” at Step-2. Section I of Article 12 provides that “[I]f a grievance is not appealed within the time limits hereinbefore set forth, the grievance shall be deemed to be settled on the basis of the decision last made and shall not be eligible for further discussion or appeal.”(Emphasis added). As a result it seems that the prior disciplinary record must stand and cannot be reviewed by me at this time. Elkouri and Elkouri in their treatise on How Arbitration Works, (BNA Books, 5th Edition-1997), 926 states: “If an employee is given notice of adverse record entries and does not file a grievance where able to do so, an arbitrator may subsequently accept the entries on their face without considering their merits.”
B. Has the company met its burden of proof of wrongdoing?
It is well established in labor arbitration that the employer in a discharge case has the burden of going forward and the burden of persuasion, especially where the labor agreement requires, as in the instant case, that discharges be accompanied by just cause. Elkouri and Elkouri, How Arbitration Works, 905.
The Company's evidence of the March 1 incident was based entirely on hearsay evidence. Other than the Grievant, Lt. R__ is the only other person that was present for the alleged altercation that took place in the Shift Commander's Office. The current Warden's testimony was purely hearsay. As noted above, the Company explained that Lt. R__ no longer works for the Company. However, it did not make a request to the Arbitrator that Lt. R__ be subpoenaed and offered no explanation, other than he no longer was with the Company, to explain his absence. On the other hand the Grievant testified unequivocally that she was not loud and did not use profanity. Ms. R__ 's testimony, though interesting, did not deal with the altercation that took place in Lt. R__ 's office. The Termination notice dealt solely with what took place in Lt. R__ 's presence. There is nothing in the notice that suggests that what allegedly took place in Ms. R__ 's office was even considered by the Company in deciding to terminate the Grievant.
Though arbitrators frequently allow hearsay evidence, it is generally not given much weight, especially if the only evidence to meet the burden of persuasion is uncorroborated hearsay or the hearsay is contradicted by testimony of a witness who has been subject to cross-examination. See, Elkouri and Elkouri, How Arbitration Works, 450-51. Therefore, the Arbitrator is of the opinion that the Company has not met its burden of persuasion.
C. Is the way the phone message was handled a mitigating circumstance?
Though, I need not get into the question of whether the phone message was properly handled since I have held that the Company has not met its burden of persuasion, I do believe that the way the phone message was handled might have constituted a mitigating circumstance that may well have required the discharge to be reduced to a disciplinary suspension. See Elkouri and Elkouri, How Arbitration Works, 938-39 and cases cited in fn. 253. The delay of 2 to 3 hours in getting the message to the grievant and the fact that it was given to a non supervisory employee who could read the message, could well have been grounds to educe the penalty. Giving this note to others who could see who it was from, an abortion clinic, two days after having an abortion could well be seen as a very disconcerting event. The Grievant, understandably would be very embarrassed by such an event.
On the basis of the above, the Arbitrator rules that the grievance be granted. The Company is directed to reinstate the Grievant to her former job with full seniority and to make her whole for all time and benefits lost as a result of her discharge without just cause. From any back pay due the Grievant, the Company may deduct and Unemployment Compensation paid as a result of the Grievant's termination and any interim earning earned during the discharge period. On the issue of reducing back pay by unemployment compensation received and interim earnings see Elkouri and Elkouri, How Arbitration Works, 593.
Since disciplinary notations can only be used for 12 months, it would not be fair to the Company not to make an adjustment of the records to reflect that the Grievant has not worked for over 10 months. See Section D of Article 14 of the Labor Agreement. Therefore, it is directed that, for the purpose of determining when the 12 month period is to expire for each of the Grievant's pre 3/1/01 disciplinary record, the personnel records be modified to show that they shall expire after the number of calendar days shown below following the date the Grievant is reinstated:
October 6, 2001 Oral Warning-220 calendar days
November 25, 2001 Oral Warning-270 calendar days
December 23, 2001 Written Warning-298 calendar days
January 13, 2002 Written Warning-319 calendar days
February 22, 2002 Suspension-359 calendar days
The Arbitrator will retain jurisdiction of the present grievance for 30 days from the date of this Opinion and Award to resolve disputes regarding the remedy directed herein, if any. If the Union or the Company advise the Arbitrator in writing (letter, fax or e-mail) with a copy to the other side or by a conference call that a dispute regarding the remedy exists, the Arbitrator's jurisdiction shall be extended for so long as necessary to resolve the dispute. If the Arbitrator is not so advised, the Arbitrator's jurisdiction over this grievance shall then cease.
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