Arbitration
Award
|
Lucas County Sheriff
and
Ohio Patrolmen’s Benevolent Association
118 LA (BNA) 1673
July 28, 2003
John S. Weisheit, Arbitrator *
Grievance Defined
By stipulation, the parties put
before the Arbitrator the following issue:
Did the Grievant voluntarily resign his position as a correction officer and therefore the Grievance should be denied, or was the Grievant constructively discharged and therefore the Grievance should be sustained and the Grievant should be reinstated with full back pay and benefits?
The Lucas County, Ohio, Sheriff’s
Office, hereinafter called the “Employer” and/or the “LCSO”, and the Ohio
Patrolmen’s Benevolent Association, hereinafter called the “OPBA” and/or the “Union”,
have entered into a collective bargaining agreement governing wages, hours, and
certain terms of employment for certain classification of employees, including
Corrections Officers, Road Patrol Deputies, Court security officers,
Dispatchers, 911 call-takers, warrant desk clerks, Counselors, and Maintenance
personnel. The LCSO is a public employer as defined in the Ohio Revised Code
Chapter 4117.
The issue before the Arbitrator is a
Grievance on September 30, 2002, alleging the Grievant was wrongfully
terminated in violation of Articles IV and V of the collective bargaining
agreement.
The
Grievant was employed as a Correction Officer (CO), third shift, in the booking
department. On August 24, 2002, an inmate, R__ was processed for booking by the
Grievant. This included removing an inmate’s personal effects and money before
being incarcerated. The Grievant did relieve Inmate R__ of $360.22. The money
was then taken by CO M. who took $50.00 for the “pay for stay” program, placing
it into one envelope and placed the remaining monies into a second envelope.
The envelopes were then placed in the booking booth window with other money
envelopes. Another Correction Officer then picked up the money envelopes and
placed them on the booking office Sgt’s desk. On August 25, 2002, the booking
Sergeant on duty was notified to release Inmate R__’s money and personal
effects. The booking Sergeant looked for the money in the safe, where such
items were routinely kept, but was unable to find the envelope and/or the
money. A Critical Incident Report Form was completed and filed by the Sergeant
concerning the matter of the missing money. An internal affairs investigation
was initiated into the matter.
On
September 27, 2002, the Grievant was approached by Det. Sgt. Sa. and directed
to accompany him to the detective bureau office. There he was introduced to
Det. Lt. A. Also present was Det. Sr. Lt. Det. A. advised the Grievant the
purpose of the meeting was to relate information he had seen a video tape of
the booking processing area that implicated the Grievant in the theft of the
money. Lt. Det. A. offered the Grievant the opportunity to sign a prepared
letter of resignation, and avoid departmental action and/or criminal charges.
The Grievant did sign the prepared letter of resignation.
The Grievant was asked for and
submitted his ID and badge then escorted off the premises.
The
Grievant, later that same day, made contact with the OPBA attorney, who on the
Grievant’s behalf, submitted a letter recanting the letter of resignation. The
Grievant reported to work at the start of his next shift, but was denied access
to the jail premises. On September 27, 2002, a Grievance was filed on behalf of
the Grievant alleging wrongful termination and violation of terms of the
collective bargaining agreement.
The
Grievance, when unresolved through administrative levels of the Grievance
Procedure, was submitted to Arbitration.
The following issues were mutually
stipulated by the parties:
1. The
Grievance, as cited above, is properly before the Arbitrator for determination
on its merit.
2. The
arbitrability issue initially raised, is withdrawn upon the introduction of
joint introduction of the definition of the Grievance.
3. A
stenographic record of the Hearing and will constitute the official record of
its proceedings.
4. All
witnesses will testify under oath.
5. Joint
Exhibits # 1–19 were introduced into the record.
Pertinent Contract Terms
A. An employee has the right to the presence of counsel and/or a representative of his/her recognized bargaining unit, and the right to cross examination of witnesses at all disciplinary hearings before the employee’s disciplinary board and the Sheriff or his designated representative. An employee has the right to a representative of his recognized bargaining unit if it is reasonably foreseeable that an employee may face disciplinary charges whether the Office intends to charge the employee or not.
B.
An employee who is to be questioned as a suspect in any investigation of any
criminal charge against him shall be advised of his constitutional rights
before any questioning starts.
* * *
D. Any interrogation, questioning or interview shall be conducted
at a reasonable hour, * * *
E. The employee shall be informed of the nature of the
investigation prior to any questioning.
* * *
H. When an employee suspected of a violation is being interrogated
in an Internal Affairs investigation, such interrogation shall be recorded at
the request of either party.
* * *
J. No hearing that may
result in dismissal, demotion, suspension or reprimand shall be held unless the
employee is notified of [t]he hearing and the reasons for it at least seven (7)
calendar days prior thereto.
K. Any evidence obtained in
the course of internal investigation through the use of administrative
pressures, threats or promises made to the employee shall not be used in any
subsequent criminal court action.
N. If the rights of the
employee who is under investigation as provided herein have been violated, the
violation of procedure shall be subject to the grievance procedure.
Article
V Employee Discipline
* *
*
Upon completion of the investigation by the Internal Affairs
Bureau, the findings shall be presented to the Sheriff and/or the appropriate
hearing officer in writing. No employee shall be disciplined before he/she is
afforded the opportunity to present the charges to the Review Board. * * *
Sec.
4. Relief From Duty
No employee shall be
relieved from duty without first being afforded a hearing as provided in
Article V, Section III, * * * Should it become necessary to relieve an employee
from duty, it shall be done only by the highest sectional command Officer
available. This shall be followed by the immediate notification of the employee’s
division head or designee.
Article
VI Grievance Procedure
Sec.
1. Grievance Procedure Defined
The term “grievance” shall mean an allegation by a bargaining unit
employee, the employee’s bargaining unit representative, or the Employer that
there has been a breach, misinterpretation, or improper application of this
Agreement.
* * *
Sec.
5. Arbitration
* * *
. . . . following the
request for arbitration, request a list of seven (7) impartial arbitrators from
the Federal Mediation and Conciliation Service (FMCS) * * * The arbitrator
shall hold the arbitration [hearing] promptly and issue his/her decision and
recommendation within a reasonable time thereafter. The arbitrator shall limit
his/her decision strictly to the interpretation, application or enforcement of
those specific articles and/or sections of this agreement in question. The
arbitrator’s decision shall be consistent with the applicable law.
The arbitrator shall not have the authority to add to, subtract
from, modify, change, or alter any provision of this Agreement, nor add to,
subtract from, or modify the language therein arriving at his/her determination
on any issue presented that is properly within the limitations expressed
herein. * * *
Decisions of the arbitrator shall be final and binding upon the
parties. The parties shall share equally all costs directly related to the
services of the arbitrator. * * *
Summation of Union Argument
The
Union contends the Employer obtained the Grievant’s resignation by using means
of duress, coercion, intimidation, and/or imposing emotional distress. It
argues the Grievant was denied the right to timely rescind a coerced and/or
involuntary resignation and, in effect, the Employer constructively discharged
him. The Union further states the Employer violated
the Grievant’s rights in conducting the September 27, 2002, meeting.
The Union asks that the Grievance be
sustained and the Grievant be reinstated with complete back pay and benefits.
The Union further requests the Arbitrator to retain jurisdiction in this matter
for ninety (90) days.
Summation of Employer Argument
The Employer contends the meeting of
September 27, 2002, was appropriate and conducted in a manner that did not
deprive the Grievant of any of his rights. The issues presented at this hearing
dealt with the Grievant’s resignation and the Grievant ultimately voluntarily
submitted his resignation before leaving the hearing, the Employer contends.
While recognizing the right of a public employee to rescind a resignation, the
Employer contends such action is to occur before the effective date of the
resignation. In this instant case, the Employer contends it did take action
affirming immediate acceptance of the Grievant’s resignation by notifying the
Correction Administrator of the Grievant’s resignation with a directive to deny
the Grievant further access to the correction facilities. The Employer states
the Grievant’s resignation was submitted without duress, threat, or involving
any wrongful act. The Employer concludes the resignation should be affirmed and
the Grievance denied.
The Grievant began his law
enforcement employment as a correction officer for the LCSO in January, 2001.
At the time of the incident(s) giving rise to this Grievance, he had been
employed in this entry level position with the LCSO for a little more than one
year and one-half, and had not yet completed his course work a technology
degree in law enforcement.
The issue, as framed by the parties,
before the Arbitrator is limited to the question of whether the Grievant
voluntarily resigned or was wrongfully terminated from his position with
LCSO.
An employee’s voluntary right to
resign is without reservation unless the parties have entered into an
individual employment contract, duration of the employment term is addressed by
statute, or such terms are specifically addressed in an applicable collective
bargaining agreement. It is normally preferred that a voluntary resignation be
in writing. Generally,
such a written resignation, accepted by the employer, is considered effective
according to the terms as stated. In some exceptions, a resignation may be
rescinded if it was attained while the employee was under duress, or means or
circumstances that persuade the deciding authority that the resignation was
other than voluntary. This instant case contains elements that cause rise to
determine if the Grievant’s resignation was, in fact, a voluntary resignation
or a resignation attained under duress and in violation of terms of an
applicable collective bargaining agreement.
Initial attention is directed to the
meeting in the detective bureau office about 6:00 a.m. of September 27, 2002
called by Det. Lt. A., head of the detective bureau, and attended by two other
members of his division and the Grievant. Det. Lt. A. was directed by the
Sheriff to offer the Grievant an opportunity resign his position with the
Employer prior to considering/imposing any administrative disciplinary
action(s) and/or seeking any criminal charges related to the disappearance of
the inmate’s money in the jail booking area on August 24, 2002. An on-going
internal affairs investigation was being conducted by the LCSO into the matter
and the Grievant was a suspect in the matter. Det. Lt. A., prior to the meeting
with the Grievant on September 27, 2002, had access to review documents and, in
particular, a video tape recording of the booking area of the prison at the
time that the inmate was being processed for booking by the Grievant. Testimony
of Det. Lt. A. differed from that of the Grievant regarding some of the details
of what was said and not said during that meeting.
Det. Lt. A. had arranged for the
meeting and had discussed its purpose and relayed details to the two members of
his bureau in attendance. The Grievant, on the other hand, was not given prior
notice of the meeting nor informed of the purpose for the meeting. Det. Lt. A’s
version of what transpired at the meeting was supported by the other detectives
attending the meeting. The detectives had briefed them regarding the issues he
planned to cover in the meeting. They also testified to having an opportunity
prior to the meeting to review reports, video tapes, and related attained
during the internal affairs investigation prior to the convening of the
meeting.
The Grievant creditably testified he
had no advance notice of what was to be discussed in the meeting, and was in a
state of shock and surprise.
A reasonable doubt exists as to what
the Grievant, in fact, heard and what his perception of what he thought he
heard said during the meeting. It is possible and likely that, given the
circumstances, setting, and proceedings that took place, it created at least an
intense, if not a threatening, environment for the Grievant. The physical
layout was not familiar to the him. He did not know the Employer
representatives nor the purpose of the meeting. In his testimony, Det. Lt. A.
indicated he opened the meeting having the detectives first introduce
themselves and asking all present to take a seat. The testimony, in direct
examination, of Det. Lt. A. sets a less than congenial atmosphere for the
Grievant. The following excerpts from the transcript help assess the
setting:
Q. Did he
(the Grievant) take a seat at one of the tables or chairs?
A. He was
seated in a chair kind of in the center of the room.
Q. Did you
proceed to ask him any questions or advise him of any rights?
A. Well,
when he came in there, I started off by explaining to him that he was not under
arrest, very dear on that point. . . . I told him that there was not going to
be any action taken then, that he would be leaving, that he was going home
then. Then I proceeded to read him his
Miranda rights.
Q. You did
not ask him questions then about the incident; is that correct?
A. No.
Basically what I did is I asked him to listen to what I had to say first, then
I would answer any questions that he had. I continued on after that, and I
just... I told him about the tape 1, and what the tape showed. I told him that
if he chose to resign for personal reasons, that would be the end of it. I told
him if he elected not to resign, there could be administrative action taken
against him, and I was very clear what that was, that I did not know what the
outcome of that would be. . . . I said I’m not very savvy on all that.
I said my portion of it would be to
present the criminal case to the grand jury, and if an indictment was returned,
then he would be criminally charged.
While Det. Lt. A. asked the Grievant
if he wanted to have a Union representative or Attorney present for the
meeting, according to the transcript and notes of the Arbitrator, the question
was asked only once and then before identifying the issues he intended to
address in this meeting. Thus, the Grievant was not made aware of the
possibility of facing disciplinary charges “if it is reasonable foreseeable
that an employee may face disciplinary charges whether the Office intends to
charge the employee or not.” 2
Det.
Lt. A.’s testimony strongly conveys the message if the Grievant resigns, he
will not be exposed to, or the possible consideration of, administrative
disciplinary action, or criminal action regarding this matter.
It
is also noted that the Employer clearly retained the right to accept or not
accept the Grievant’s resignation without conditions. The Employer’s right to
impose administrative disciplinary action or seek criminal action is retained,
regardless of the final determination of this Award.
The Contract expresses a number of
rights for bargaining unit members facing possible administrative or criminal
charges. These rights are found in Article IV-Employee’s Bill of Rights as well
as Article V, Employee Discipline. It appears The Employer attempted to avoid
violating these defined employee rights in this instant matter. However, it is
found such attempts failed. In particular, Section J of Article IV states:
“No hearing that may result in dismissal,
demotion, suspension or reprimand shall be held unless the employee is notified
of [t]he hearing and the reasons for it at least seven (7) calendar days prior
thereto.”
This
right was flagrantly violated in this instant case.
It was also revealed in the
Arbitration Heating that an internal investigation was under way from about
August 25, 2002, through the date of the September 27, 2002, meeting. The
findings of that investigation, as they related to the Grievant were not made
known to the Grievant at, or prior to, the meeting on September 27th. While,
during the course of the meeting, great care was made to explain to the
Grievant the benefit of resigning; however, little, if any, explanation of the
waiver of contract rights were cited.
The
Grievant is not a highly trained or broadly experienced law enforcement officer
as proposed by the Employer. At the meeting on September 27, 2002, the Grievant
was in an isolated setting with specially trained law enforcement officers
trained in the ways and means to attain desired results from suspects in
criminal investigations. The record clearly reveals he cooperated fully with
the detectives. Scared, yes, and he admitted such in the course of his testimony.
An innocent question put to him by an attending detective, “Are you married?”
can give rise, if not already on the Grievant’s mind, about the effects of the
claims made in this setting will have on his family. Thus, in this setting, he signs the resignation.
Added to this scenario, it is of
significant proportion to consider the fact that the Grievant signed an
Employer prepared document.
“I _________________ hereby resign my employment with the Lucas County Sheriff’s Office, for personal reasons. Said resignation is effective immediately”
Public
employees in Ohio may rescind a signed resignation under extenuating
circumstances. Case law cited by the Employer
stated to effectively rescind calls for the issuance of the rescinding prior to
the effective date of the time specified in the resignation. It was the
Employer that chose the language, “effective immediately”, not the Grievant. No
date or time definite was used. Counsel for the Grievant did, in his behalf,
submit a notice to rescind the letter of resignation. The written notice to
rescind was submitted prior to the time the Grievant reported for his next shift
on the evening of September 27, 2002. When the Grievant attempted to report to
work, he was advised that by orders of the Employer, he was barred to enter the
secured area of the jail in which he would normally perform his duties.
It
is determined that the resignation in this instant case was attained under
duress and coercion and resulted in an involuntary act on the part of the
Grievant. It is determined a timely and duly executed notice to rescind the
Grievant’s resignation was provided to the Employer. It is further determined
the manner, setting, and means in which the Employer attained and implemented
the Grievant’s resignation constitutes an action of constructive discharge and
violates applicable terms of the collective bargaining agreement.
Based on the foregoing, the
Grievance is hereby sustained.
The
Grievant is to be reinstated to his position as a correction officer within
fourteen (14) days of the date of this Opinion & Award. The Grievant is to
be granted base back pay, seniority, holiday pay, and all other contract
benefits and rights that would have been conferred upon him had his termination
not been activated as of September 27, 2002. Overtime pay shall be used in the
computation of this back pay award. Base back pay shall be reduced by any
monies earned during the time the Grievant was absent from active pay status
until his reinstatement.
The Arbitrator will retain
jurisdiction of this case for ninety (90) days for the purpose of assisting in
resolving issues related to back pay and benefits, if so requested by both
parties.
* Selected by parties through
procedures of the Federal Mediation and Conciliation Service
1. A video tape recording of booking
at the time of the Inmate by the Grievant on August 24, 2002.
2. Excerpt from Article IV, Section
A of the Collective Bargaining Agreement.