Holding: The discharge of a correctional officer for violating a work rule prohibiting forming a romantic relationship with a prisoner is reduced to a written reprimand, where their relationship had started 14 years prior to his incarceration. She violated work rules on notifying her employer of the relationship and being involved in three-way phone calls with the inmate.
GEO Group, Inc.
The Wackenhut Corporation
Delaware County Prison Employees Independent Union
120 LA (BNA) 729
FMCS Case No. 04/05495
November 5, 2004
Phyllis Almenoff, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
Statement of the Issues
The Employer filed a Motion to Dismiss the arbitration without a hearing arguing that the matter is non-arbitrable due to the Union’s failure to pursue arbitration in a timely fashion. The Union responded and requested that the Motion to Dismiss be denied for various reasons. In the alternative, the Union requested a hearing to compel the production of evidence and an opportunity to rebut.
After carefully reviewing both submissions and finding facts in dispute, the Motion to Dismiss without a hearing was denied. A single hearing on both the arbitrability issue as well as the merits of the case was scheduled to maximize the use of hearing time. Should the Arbitrator determine that the dispute is not arbitrable, the merits of the case will not be decided.
The parties stipulated to the following issues:
1. Is the Grievance arbitrable?
2. Did the Employer have just cause to terminate the Grievant’s employment? If not, what shall be the remedy?
[Issue 1 discussion omitted]
Issue 2—Termination of Officer W__
Wackenhut Corrections Corporation (Employer) recognizes the Delaware County Prison Officers Independent Union (DCPEIU), as the exclusive collective bargaining representative for all full-time and regular part time Correctional Officers employed by the Company at the George W. Hill Correctional Facility, Thornton, PA. (Union)
The June 11, 2003 through June 10, 2006 Collective Bargaining Agreement (CBA) covered the Grievant for the relevant period of this grievance. The grieving employee, Officer W__, was empowered to process her grievance through the grievance procedure, including arbitration, in accordance with the Agreement.
This grievance arose when the Employer terminated the Grievant on September 23, 2003 for maintaining an improper relationship with an inmate and failing to report it. Officer W__ has been employed at the prison for five years. On August 16, 2003, B__, a man with whom the Grievant was romantically involved for fourteen years was incarcerated at the Correction Center. They were living together, are currently engaged to be married and have a ten-year old son. Officer W__ does not work in the cell-block to which inmate B__ is assigned and they have no contact with each other at the Correctional Facility.
A fight between B__ and another inmate took place at the George W. Hill Correctional Facility on August 16, 2003. Officer W__ reported to Captain BB that her fiancé (B__) was involved in the fight. The Grievant was placed on Administrative Leave pending the outcome of an official investigation. Following the investigation, Officer W__ was discharged from employment.
Position of the Parties
Position of the Employer
The Employer contends that it terminated Officer W__ for just cause and asserted the following arguments:
Officer W__ violated the Collective Bargaining Agreement and the Employee Handbook by maintaining an improper relationship with an inmate. She failed to report the relationship to the Facility Administrator. Only after a fight between B__ and another inmate on August 23, 2003 did the Grievant indicate that her boyfriend was incarcerated at the Facility. Telephone calls made by inmates are monitored and recorded. There is a sign above each telephone at the Delaware County Prison stating this information. During the investigation of the incident, the Lieutenant reviewed telephone records and calls made by B__. Lieutenant MG discovered that Officer W__ was the recipient of three telephone calls from B__ which were picked up by her answering machine. She did not report these telephone calls to her supervisor. In addition, Officer W__ participated in three-way telephone calls made to B__’s mother at which time she conversed with him. On September 15, Lieutenant MG interviewed the Grievant, inmate B__, and Captain BB. A few days later, he interviewed the other inmate who was involved in the altercation with B__ and concluded that the Grievant was the reason for the fight. The Employer argued that the Grievant showed favoritism or partiality toward the offender and was financially involved with him because she paid for the telephone calls. They also asserted that her credibility at the Facility was affected by her relationship with the inmate. Officer W__ was terminated on September 23, 2002.
Position of the Union
The Union contends that the Employer did not have just cause to discharge the Grievant and she should be reinstated to her position and made whole. They argued that the CBA had not been violated. Article D5 forbids forming a romantic, sexual, business or other unauthorized relationship with inmates and may subject the employee to immediate suspension or discharge. Officer W__ did not “form a relationship” but had actually been romantically involved with B__ for fourteen years. They live together, are engaged to be married and have a ten-year old son together. Officer W__ testified that prior to the altercation between B__ and another inmate, she informed her supervisor, Captain B that her boyfriend was incarcerated in the Correctional Facility. When asked to put this in writing, she did so. B__ was not housed in the correctional facility block to which Officer W__ was assigned. There was no contact between them at the Facility. At the investigation Officer W__ admitted that telephone calls had been made to her house by B__ and recorded on her answering machine.
The issue to be determined in this arbitration is whether the Employer had just cause to discharge the Grievant under the terms of the Collective Bargaining Agreement, based on all of the facts and testimony in evidence. The CBA provides clear direction to the arbitrator and states the following in Article 12:
In rendering a decision, the arbitrator shall be confined to the meaning and interpretation of the particular provision of this Agreement that gave rise to the grievance.
Let us examine the “Just Cause” provision of Article 14 of the Contract to determine whether the Company was justified in terminating Officer W__’s employment.
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 no longer desirable, and that he has been disciplined or discharged.
The Grievant is accused of violating Article 14 D5 which states:
B. An employee who engages in or actively conspires to engage in the following activities, may be subject to immediate suspension or discharge:
5. Forming a romantic, sexual, business or other unauthorized relationship with inmates.
The testimony and evidence clearly demonstrate that the Grievant did not “form” a romantic relationship with B__. The relationship has existed for fourteen years and produced a son. They are an engaged couple, live together and plan to wed. Under cross-examination, Captain BB testified that he was aware that B__ was the Grievant’s boyfriend because she visited him several years ago when he was incarcerated at another correctional facility.
The Arbitrator finds that Article 14 D5 which “may subject an employee to immediate suspension or discharge” is not applicable to this relationship.
Let us consider whether the Grievant violated sections of the Employee Handbook which would make her subject to Progressive Discipline. Article 14 states:
A. Except where otherwise provided in this Agreement, where appropriate, the Company will adhere to concepts of Progressive Discipline, which it defines as the corrective process of applying sanctions short of discharge or suspension when conduct is a less serious nature. The nature of discipline should be appropriate to the conduct and need not begin with the least serious disciplinary action. Acceptance of the principle of progressive discipline does not limit the Company’s authority to discharge for serious offenses that cannot be condoner.
The Employer contends that the Grievant violated the following sections of the Employee Handbook.
Standards of Conduct
WCC expects all employees to conduct themselves with maturity and self-discipline in the execution of their responsibilities. It is essential that all employees realize that this policy is intended as a guideline to reinforce this expected behavior and to provide a basis for consistent action in the event that behavior falls short of the expectations.
Employees of WCC shall:
3. Conduct themselves in a manner that creates and maintains respect for themselves as well as WCC. In all their activities, personal and professional, they should always be mindful of the high standards of behavior expected of them.
4. Avoid any action(s) which might result in, or create the appearance of, affecting adversely the confidence of the public in the integrity of the facility.
Lt. MG testified that the Grievant’s conduct created the appearance of, and adversely affected the confidence of the public and the integrity of the Facility. When questioned under cross-examination, Lt. MG was unable to explain how her actions diminished confidence in her ability to do her job.
* * *
8. Employees shall not show favoritism or partiality toward an offender, nor shall employees become emotionally, physically or financially involved with offenders or ex-offenders in such a way as to affect performance on the job or the safety and security of the facility.
Lt. GB testified that the Grievant showed favoritism or partiality towards B__ by speaking with him on the telephone at his mother’s house by way of the three way calling system. However, his explanation as to how her performance on the job or the safety and security of the facility were compromised was not convincing.
9. Employees shall not offer or give to an offender or ex-offender any article, favor or service in the performance of the employee’s duties. Neither shall employees accept any gift, personal service or favors from offenders, family members or ex-offenders.
The Employer alleged that Officer W__ planned to pay for the telephone calls which would constitute a gift, personal service or favor. The Grievant denied that she said that she planned to pay for the calls. There was no corroborating testimony or evidence. In any event, she did not pay for the calls. This charge must be dismissed.
10. Employees who become involved in a set of circumstances as described above (or any situation that gives the appearance of improper involvement with offenders, family members or ex-offenders) should consult with the Facility Administrator. The employee will then be instructed as to the appropriate course of action.
Captain BB testified that on August 23, after a fight between B__ and another inmate, Officer W__ went to the Shift Commander’s Office and stated that her boyfriend was involved in a fight. The Captain told her to write an incident report concerning the relationship. On cross-examination, Captain BB indicated that he had known of their relationship from a previous incarceration of B__ eight or nine years ago. However, Lt. MG testified that prior to the fight, he was unaware that B__ was Officer W__’s fiancé. The Grievant testified that she had told Captain BB about the relationship prior to the altercation and that she wrote it up as instructed. She testified further that she was not instructed to speak to the Warden concerning the appropriate course of action. It is difficult to determine the credibility of the conflicting testimony on this issue without corroborating evidence. However, her supervisor was aware of the relationship and had been for many years. Nonetheless, the Warden was not notified of the relationship as required. The Grievant did not consult with him to receive advice on the appropriate course of action. In addition the telephone calls from the inmate and her conversations with him were not reported to her supervisor.
The arbitrator finds that there have been some violations of the Standards of Conduct. First, Officer W__ should have informed her supervisors about the telephone calls to her home. Second, Officer W__ should not have been involved in the three-way calls with her fiancé. Lastly, Officer W__ should have notified the Warden of the relationship as soon as B__ was incarcerated and should have sought instruction as to the appropriate course of action.
The Collective Bargaining Agreement requires “just cause” for the Company to discipline or discharge an employee
Discharge is recognized to be the extreme industrial penalty since the employee’s job, seniority and other contractual benefits, and reputation are at stake. Because of the seriousness of this penalty, the burden generally is held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires “just cause” for discharge.1
Therefore, it is appropriate for an arbitrator to require clear and convincing evidence. As explained by Arbitrator Richman:
The imposition of a lesser burden than clear and convincing proof fails to give consideration to the harsh effect of summary discharge upon the employee in terms of future employment 2
The just cause standard has been defined and incorporates seven tests.
1. Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?
2. Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?
3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
4. Was the employer’s investigation conducted fairly and objectively?
5. At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?
6. Has the company applied its rules, orders and penalties evenhandedly and without discrimination to all employees?
7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company? 3
If one or more of these questions is answered in the negative, then normally the just cause requirement has not been met.4
The “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness. The applicable standard is one of reasonableness:
... whether a reasonable person taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline.) 5
Although some of the tests to establish the “just cause” standard have been met, others have not. Certainly, the degree of discipline administered by the company was not reasonably related to the seriousness of the offense. In considering discipline or discharge, the past record and length of service are given consideration. Officer W__ has worked for the Employer for over five years. Disciplinary action must be premised upon reasonable, just and sufficient cause. The record does not establish behavior, or work performance issues that rise to the level that compels discharge of an employee who has provided five years of satisfactory service.
In its post-hearing brief, the Employer provided a previously upheld arbitration decision in a discharge case at the prison. In that case, the Correction Officer was video taped using excessive force on an inmate he was responsible for supervising. In this case, Officer W__ was discharged for a long-standing romantic involvement with a man who became an inmate in another cell-block.
The facts and testimony in evidence compel a finding that the Company did not have just cause to discharge the Grievant. The discipline imposed is not in compliance with Article 14 of the Contract. The Grievance is sustained. However, Officer W__ did violate several regulations in the Employee Handbook and a written reprimand regarding these violations should be placed in her file concerning these violations. First, Officer W__ should have informed her supervisors about the telephone calls to her home. Second, Officer W__ should not have been involved in the three-way calls with her fiancé. Lastly, Officer W__ should have notified the Warden of the relationship as soon as B__ was incarcerated and should have sought instruction as to the appropriate course of action.
Based on the evidence and testimony entered at the hearing, the Employee’s grievance is sustained. The discipline imposed is not in compliance with Article 14 of the Labor Agreement. The Employer did not have just cause to terminate Officer W__. The remedy is as follows:
1. The Grievance is arbitrable.
2. The Company shall immediately reinstate Officer W__ to her position with back pay, full benefits and full seniority as to the date of her termination, less any and all compensation Officer W__ received from any other source, including unemployment compensation.
3. Officer W__ is to receive her backpay within thirty (30) days of the receipt of this award.
4. I will retain jurisdiction over any disputes between the parties for the sole purpose of deciding any unresolved dispute over the calculation of back pay as well as any other dispute that may arise from this Award for a period of sixty days from this date.
5. A written reprimand shall be placed in Officer W__’s file concerning the three violations of the Standards of Conduct detailed in the body of the Decision and Award.
1 Elkouri and Elkouri, How Arbitration Works, 905 (5th Ed. 1987).
2 General Telephone Company of California, 73 LA (BNA) 531, 533 (Richman, 1979).
3 Enterprise Wire Co., 46 LA (BNA) 359, 363-4 (1966).
4 Enterprise Wire Co., 46 LA (BNA) 359, 362 (1966).
5 RCA Communications, Inc., 29 LA (BNA) 567, 571 (Harris, 1961) See also Riley Stoker Corp., 7 LA (BNA) 764, 767 (Platt, 1947).