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In re
Auglaize County Sheriff
and
Ohio Patrolmen’s Benevolent Association
121 LA (BNA) 311
FMCS Case No. 05/50289-8
May 9, 2005
Mitchell B. Goldberg, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
I. Introduction and Background
This grievance was submitted to arbitration under Section 9.5, Step 3 of the parties’ collective bargaining agreement (“CBA”). That section places limits upon the jurisdiction or authority of the arbitrator. Any decision must be limited to a specific issue outlined in a submission agreement, and must further be limited to the interpretation, application, or enforcement of the specific articles and sections of the CBA. An arbitration decision must not be contrary to, inconsistent with, or vary the terms of the CBA or applicable law. However, in the case of a discharge or work suspension, the arbitrator “shall have the authority to recommend modification of said discipline.”
The costs and fees of the proceeding “shall be borne by the losing party.” However, in the event that the decision “fails to grant the requested award of either party and represents a `split decision,’ the costs and fees of the arbitrator shall be borne equally by the parties.”
The Employer operates a full service jail staffed with 24 officers and supervisors. Grievant R__, a corrections officer, filed a grievance on September 17, 2004 alleging that she was “constructively discharged without just cause” in violation of the CBA. She requests restoration of her employment together with all back pay and benefits. The Employer denied the grievance throughout each step of the grievance procedure and the matter proceeded to binding arbitration.1
II. Facts
This case turns upon the disputed factual events that transpired on September 10, 2004 when Grievant appeared for her work shift at 3:00 p.m. She was summoned to her Sergeant’s office for a meeting to discover the reasons underlying her claim for paid sick leave days. Paid sick leave requests “may be granted to an employee upon approval of the Employer.” Section 20.4(E) further provides that all employees who use sick leave “shall be required to sign a statement indicating the legitimacy and the reason for the use of sick leave.” Reports are to be filed except in emergency situations. These reports must “contain the nature of the sickness or injury and whether [the illness or injury] was attended by a physician.” Section 20.4(B).
The Grievant objected to filling out a form or report, or otherwise providing a signed statement of the reasons for her paid sick leave request. She took the position that she would not cooperate with the request unless the reports or statements were required of other employees. She left the meeting to consult with her Union representative, Director Brincefield. A meeting was then arranged between the Grievant, Director Brincefield, Sergeant Fuerstenau and Administrator Lynch. A discussion ensued between Brincefield and the management representatives wherein it was made clear to the Union Director that the Grievant would be required to document her sick leave request, or she would be subject to being disciplined or discharged.
Sergeant Fuerstenau informed Administrator Lynch that the Grievant was emotionally upset when she left the first meeting with him. It is fair to conclude from the evidence that she remained upset during the second meeting when her refusal to sign a report or statement was being required of her. She learned for the first time management was investigating her conduct for possible sick leave abuse. The investigation began in July. During the discussion that was characterized as “heated” between her Union Director and the Sergeant and Administrator, the Grievant unexpectedly left the meeting. She entered the office of Sheriff Longsworth and handed her keys to him. They did not engage in any discussion or conversation. She then left the premises without obtaining permission from any of her supervisors.
Sheriff Longsworth interpreted the Grievant’s action as a voluntary resignation of her employment. He noted in his log that the Grievant resigned and he issued a directive that she was no longer permitted entry into the jail without receiving advanced permission. Within one to three days later, upon the advice of Director Brincefield, the Grievant attempted to report for work, but was denied entry into her workplace. She still had clothes and personal effects stored in her locker.
Some of the disputed facts are: (1) whether the Grievant knew she was under investigation for sick leave abuse; (2) whether she believed that the decision had already been made that she was to be fired for her refusal to provide the statement during the discussion between Brincefield and her superiors; (3) whether the Sergeant and the Administrator knew that she stated that she was too sick and upset to continue working; and (4) the precise date that she attempted to report to work after she left the premises on September 10 without permission.
The issues for resolution are whether the Grievant voluntarily resigned or relinquished her job, or whether she was constructively discharged from her employment.
III. Contentions of the Parties
The Employer contends that the Union did not make its case to prove a constructive discharge, which is defined as the imposition of working conditions that are so intolerable, difficult, or unpleasant that no reasonable employee would continue on the job. Here, the Employer merely insisted upon its contractual rights to require the Grievant to document her sick leave claim to obtain payment. It further was justified in investigating the Grievant’s past sick leave claims for possible discipline. The Grievant had a record that included past discipline for failure to properly document her absences and her attendance record was poor.
The Grievant’s actions were those of a disgruntled employee who was dissatisfied with the job. Her actions were consistent with prior behavior where she complained about her job to fellow employees and stated that she intended to resign her employment when she had the opportunity to do so. She was a marginal employee who had been disciplined in the past and who was facing the possibility of further discipline or a discharge.2 With this background, her actions reflected her intention to quit. She walked into the Sheriff’s office and dropped off her keys without any explanation.
The Sheriff reached the conclusion that the Grievant quit her job based upon the facts and circumstances presented to him. Once the keys were dropped off and the Grievant left the building, he determined that she resigned and notified the rest of the staff. Any attempts by the Grievant to rescind her resignation were after it was accepted.
The Union believes that the intense scrutiny of the Grievant’s use of sick leave and her prior discipline over these matters made her working conditions intolerable. Moreover, after it became apparent that the Employer’s pressure was causing her to become so emotionally upset that she could no longer continue working; she was prohibited from leaving work. She believed she was being singled out for discipline because the sick leave requests of other employees were not being scrutinized to this extent. She became certain, based upon what was being discussed in front of her, that she was going to be fired. Her condition was such that no employee could continue to work that day in the pressurized environment of jail security. Because of her deteriorating condition and the demands of her job, she had no reasonable alternative other than to leave work.
Even if one were to consider the Grievant’s actions as a resignation, the Employer never formally accepted it before she attempted to rescind her actions by appearing for work the next day. The Sheriff had no discussion with her. She dropped off her keys, but she retained her I.D. card. Her uniforms and belongings still remained in her locker. The Sheriff, therefore, unreasonably jumped to the conclusion that she resigned when there was no reasonable basis to make that decision without further discussing the subject with her. The Sheriff did not attempt to formally accept her resignation until September 14 when he sent a letter to the Grievant. This was after the Grievant attempted to return to work, but was denied access. Accordingly, there was no objective evidence of any intention of the Grievant to resign her employment and she did not relinquish her position. If a resignation is found, she rescinded it before the Sheriff accepted her resignation.
IV. Discussion and Findings
In order to prove a claim of “constructive discharge,” an employee must overcome a substantial burden. The employee must prove that the employer’s actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign. The cumulative effect of the employer’s actions must make a reasonable person believe that termination was imminent. Thibodeaux v. B E & K Construction Co., #04CA2761, 2005 Ohio 66, 2005 Ohio App. Lexis 62; Mauzy v. Kelly Services, Inc., #95-301, 1996 Ohio 265, 664 N.E.2d 1272, 1996 Ohio Lexis 366, 75 Ohio St.3d 578 (1966). Here, there was no reasonable basis for the Grievant to walk off the job. At the time she left, her Union representative was acting in her best interest. He was trying to prevent the Employer from issuing discipline against her for refusing to submit the forms or statements justifying her sick leave usage. All that was said by the management representatives was that the Grievant could be disciplined and possibly discharged for refusing to meet her contractual obligations regarding compensation for sick leave usage. The Grievant could have cut off the discussion by merely complying with the Employer’s request. There was no reasonable basis for the Grievant to conclude that she was being fired or that discharge was imminent. The discussion between her Union representative and management was still ongoing.
The conditions at the time were not intolerable. The Grievant could have controlled the situation by merely complying with the Employer’s request. She could have and should have abided by the long-standing arbitration principle of the workplace to follow the directives of management and grieve later. Nothing that was done by the Employer was out of the ordinary in discipline situations. It was merely exercising its contractual rights to correct what it perceived was an abuse of the sick leave policy by the Grievant. No employee acting in a reasonable manner would be compelled during this meeting to simply walk off the job. At a minimum, the Grievant was required to disclose to her Supervisor that she was too sick to work, and that she was requesting permission to leave. This was not done.
The question of rescission in resignation cases depends upon the particular facts of each case. Cases where the employee has time to rescind the resignation before the Employer accepts the resignation should be distinguished from cases such as this where the Employee walks off the job without notice or permission and abandons their obligations. See, e.g., Dore v. Miller, #03CA008416, 2004 Ohio 4870, 2004 Ohio App. Lexis 4424 (Fire Chief gave formal written notice of resignation and withdrew his notice before the Commission formally accepted it). Here, the Grievant abandoned her job in the middle of her work shift without any explanation to the Sheriff. The act of resignation and the acceptance was instantaneous and final. Her later attempt to retract her decision was too late. She resigned her employment from the perspective of her Employer.
The evidence in this case, however, presents a more complicated issue, that of the Grievant’s frame of mind and whether she was capable of making an informed voluntary decision relative to the continuation of her employment. The evidence, from a laymen’s perspective, is inconclusive in this regard. The Grievant provided the following unrebutted testimony regarding the use of sick leave time in the summer of 2004:
Q. There was a question that came up earlier about whether you were working enough hours to continue to be qualified for health insurance.
A. Uh-huh.
Q. What happened there?
A. I had a house fire in July, and I lost my whole house. And I took some time off to get everything situated and find housing for me and my granddaughter, and I didn’t get it all completed within the time they told me I had to. And so when I asked for extended time off, and all of this was without pay, I lost my insurance benefits.
Q. Why was the time off without pay?
A. Because that’s what I asked for. I didn’t have enough time to cover it. I took several weeks off.
It is well understood that the loss of one’s home, personal effects and belongings in a tragedy such as a fire is an extremely traumatic event. One cannot imagine a more traumatic event except for the loss of a loved one. It is well known that events of this nature can result in post traumatic stress disorders, severe depression, and other serious mental problems affecting the ability of persons to function properly, or otherwise act in a reasonable manner. The exterior traumatic events of losing a home and personal property, the loss of health insurance, and the forced move of her residence could have played a significant role in the manner in which the Grievant reacted to the events on September 10. However other facts weigh against this finding.
The Grievant’s record makes reference to other occasions in which the Grievant was so “stressed” that she could not work or function in a normal manner. In April 2003, the Grievant was offered counseling services after she observed an inmate’s suicide attempt. She declined the offer. On June 2, 2004, the Grievant’s son reported her off work because she was “too stressed out” to work. She was off work from June 9–11 because an off duty head injury she received. The Grievant attempted to explain her behavior on September 10 as follows:
A. Well, by this time [after the first meeting with her Sergeant], I was upset. I went down to my post, and I was crying.
A. Well [Brincefield] was talking to Joe [at the second meeting]. And they were talking about I was going to be terminated, I could be fired [for not completing the sick leave statement]. And basically I was upset from the very first meeting with Sergeant Fuerstenau and I had asked [Brincefield] to ask him if I could go home sick. I was too upset to do my job, sit in my post down in intake. And [Brincefield] said he would ask, and that’s when they all came down and we went into the office. And it was Joe talking to [Brincefield] and kind of arguing. And I was—I said I couldn’t take it anymore.
There is no question that the Grievant became emotional and upset during the discussions with her Sergeant, and during the meeting between her Union representative and the Sergeant and the Administrator. However, there is no evidence, expert or otherwise, that the Grievant was suffering from any post-traumatic stress or other mental health condition at this time. The fire and damage occurred in July. She took leave from work to deal with these matters. She resumed working and on September 10 she presented herself as a fit employee to perform the duties of a corrections officer at her job. She acted irrationally and exercised poor judgment when she abandoned her job without notice or permission, but there is insufficient evidence to establish that her judgment was impaired because of a medical or health condition.
She erred when she requested Brincefield to notify her Sergeant that she was leaving because she was ill.3 She should have made the request herself, or at least made sure that her superiors knew she was leaving. Instead, she went to the Sheriff’s office and dropped off her keys without advising the Sheriff of the reason for leaving the job. The act of dropping off the keys has particular significance. An employee leaving work without securing permission because of an illness does not normally relinquish their keys to the boss. The act of leaving the keys with the Sheriff, without any explanation for her conduct, evidences an intention to abandon the job and not to return to work. One must keep in mind that the entire incident developed over the Grievant’s refusal to document her sick leave usage. She was obligated to comply with her Sergeant’s request. Her Union Representative stated that he would have advised her to comply. The Grievant presumably knew that her compliance was going to be insisted upon. Inst ad, she overreacted out of anger or because of other emotions by turning in her keys and abandoning her job.4 Her decision was irrational and regrettable, but under the circumstances, was irreversible.
V. Award
The grievance is denied for the above reasons. The costs and expenses of the arbitration shall be borne by the Union in accordance with Section 9.5, Step 3 of the grievance procedure.
Notes:
1. The Employer’s grievance answer raises a procedural issue. It states that the grievance should be considered waived because it was not initiated with an informal step within five working days after the Grievant knew or should have known of the triggering event. Section 9.2(E). The Union, however, relies upon Section 10.9, which states that suspensions, demotions and dismissals shall be filed at Step 2, thereby skipping the informal step. Moreover, the Union contends that the Grievant was prevented from taking the grievance up with her immediate supervisor because she was prohibited from entering the jail after the incident triggering the grievance. The Employer’s brief does not discuss the procedural defense, although it is raised in its opening statement. I find that the defense has been effectively withdrawn because of the Employer’s decision not to address the issues and defenses raised by the Union.
2. The Employer argues that the Grievant would have been fired for insubordination for failing to document her leave request, for walking out of two meetings with her superiors without permission, and for leaving the premises without permission. She left the shift understaffed. There is no basis in the record to review whether a discharge was justified. The only issues for resolution are whether there was a resignation or a constructive discharge.
3. Brincefield did not clearly verify that the Grievant requested him to report her off because she was ill. He testified: “It’s been awhile. I honestly don’t know. Really, I don’t know.”
4. It is recognized by arbitrators that statements and actions of a grievant that take place during a step in the grievance procedure, or during a meeting between the employer and the union for the purpose of resolving a dispute or grievance are entitled to a limited privilege, and should not be used by the employer as a basis for further discipline. This principle could arguably excuse the Grievant’s action of leaving the meeting; however, it could not excuse the Grievant’s conduct of leaving the workplace without permission, turning in her keys, and abandoning her job and responsibilities. These facts are particularly egregious in the context of a safety force workplace that is sometimes characterized as a “para-military” environment.