Arbitration Award In re Multi-County Correctional Center and Fraternal Order of Police, Ohio Labor Council 124 LA (BNA) 1519 FMCS Case No. 07/03923 December 7, 2007 Saundria Bordone, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service I. Introduction The parties stipulated that this grievance is properly before the Arbitrator and that the issue is: Was the Grievant terminated for just cause? If not, what is the appropriate remedy? II. Relevant Contract Language The parties collective-bargaining agreement concerned in this matter is effective by its terms from January 1, 2007 to December 31, 2009. Its relevant provisions follow: Article 2 Management Rights Section 2.1 Except as specifically limited herein, the Employer shall have the exclusive right to administer the business of the Multi-County Correctional Center wherever located, and to perform other functions and responsibilities which are required by law. Specifically, the Employer s exclusive management rights include, but are not limited to: i) The management and direction of its employees, including the right to select, hire, promote, transfer, assign, evaluate, layoff, recall, reprimand, suspend, discharge, or discipline for just cause, and the maintenance of order among employees;
ii) The promulgation and enforcement of reasonable work rules and regulations and the right to otherwise exercise the prerogatives of management;. Section 2.2. The Union agrees that all rights of the Employer not expressly restricted or modified by this Agreement and as permitted by law shall be retained by the Employer. Article 3 Work Rules Section 3.1. The Union recognizes that the Employer, in order to carry out its statutory mandates and goals, has the right to promulgate work rules, policies, procedures and directives consistent with its statutory authority, to regulate the personal conduct of employees as it may relate to their employment or affect the Multi-County Correctional Center, and the conduct of the Employer s services and programs. Section 3.2. It is agreed that, where the Employer has determined that written work rules are necessary, and to the extent any work rules have been or will become reduced to writing, the Employer will make them available to the employees. Copies of newly established work rules, or amendments to existing work rules, will be furnished to the Union and posted a minimum of seven (7) calendar days prior to their implementation. Furthermore, the Employer agrees to discuss any such work rules with the Union upon the Union s request prior to implementation except in cases of emergencies, and if that is the case, then as soon as practicable after the emergency has passed. The notification of the work rules shall not diminish the Employer s ability to effectively operate the facility. In instances where the seven (7) day notification cannot be adhered to due to the emergency nature of the work rule as reasonably determined by the Executive Director, the notification time shall be waived. Section 3.3. The Employer shall inform the employees in advance of any change in work rules. This notice may be by posting a notice on the bulletin board(s) or through general distribution of a memorandum. Section 3.4. This Article shall not be interpreted in any manner to relieve an employee of his responsibility to follow established rules and procedures of good conduct and common sense whether or not such rules and procedures have been reduced to writing. Article 9 Corrective Action and Personnel Files Section 9.1 The tenure of every employee in the bargaining unit shall be during good behavior and efficient service. No member of the bargaining unit shall be suspended, discharged or removed without just cause. Examples of such cause shall be incompetency, inefficiency, dishonesty, insubordination, immoral conduct, discourteous treatment of the public, neglect of duty or other failure of good behavior and efficient
service, or other act of misfeasance, malfeasance or nonfeasance of duty. Section 9.2. Disciplinary action may include, depending upon the severity of the offense: i) Verbal warning; ii) Written warning; iii) One or more days suspension without pay; iv) Discharge III. Facts 1 The Grievant was hired by the Employer as a corrections officer on June 19, 2006. On June 15, 2007, the Employer s Executive Director and the Grievant entered into a Last Chance Agreement which the Union had a hand in negotiating. The agreement is in evidence as Joint Exhibit 2 and states: This agreement is being written as a mutual agreement between [the Grievant] and Multi-County Correctional Center. It is understood and agreed to by both parties as shown below. Whereas, [the Grievant] has shown an overwhelming personality trait that is intimidating and threatening to other officers; and Whereas, on April 28, 2007 [the Grievant] was involved in a verbal confrontation with Officer [S] in the Male Control area and Whereas, on May 2, 2007 [the Grievant] was told by Executive Director Osborn that this type of behavior would not be tolerated in anyway in the future; and Whereas, on Saturday, June 9, 2007 he once again had a verbal confrontation with Officer [C] in the Male Control room; and Whereas, after the above warning from the Director and a thorough internal investigation it was determined that [the Grievant] did in fact attempt to intimidate and coerce Officer [C] in violation of Policy 104.00 (II). 11. Therefore, the Last Chance agreement is being agreed to with the following conditions. [The Grievant] will serve a 10 day unpaid suspension from June 12, 2007 forward 10 working days. [The Grievant] will be placed on a shift at the sole discretion of MCCC until such time this agreement expires, then he will be able to bid a shift at the next following shift bid
process. [The Grievant] understands that he will be terminated immediately for any acts similar in nature to the above referenced events including acts of malfeasance, misfeasance, insubornation, [sic] intimidation, threatening behavior, or acts unbecoming an officer within the Multi-County Correctional Center. This agreement shall expire 18 months from the date of signature. [The Grievant] will not grieve this matter in any way. In evidence as Joint Exhibit 3 is the Employer s Policy number 400.11, entitled Jail Entry/Exit Security. Relevant portions of it follow: II. Policy: All staff are concerned about the safety of personnel, prisoners and visitors and security of the jail facility. To ensure that staff are doing their part they are to adhere to contraband laws, rules, regulations, directives, post orders and policy & procedures. This policy sets forth guidelines to minimize opportunities for breaches in safety and security at this facility. Any violations of this policy will result in disciplinary action and/or criminal charges. III. Definitions: Contraband: Anything possessed by prisoners or within the confinement facility which is declared illegal by law or which is expressly prohibited by those legally charged with the responsibility for the administration and government of the jail. Security Perimeter: A secure boundary which encloses the entire portion of the facility in which prisoners are confined, including any area to which prisoners may have access. Passage through this boundary must be strictly controlled. Staff: Any person employed by the Multi-County Correctional Center IV. Procedures: A. Items Considered as Contraband (Examples) This is not an all-inclusive list and it may be updated at any time. Common sense must prevail when bringing items into the jail. 16. Cell Phones
In evidence as Joint Exhibit 4 is the Employer s Policy number 104.00 entitled, Employee Discipline. Relevant portions of it follow: I. Policy: The Multi-County Correctional Center recognizes that, from time-to-time, the policies and procedures, post orders and directives of this agency will not be followed, either willfully, or through negligence. The policy is designed to deal, in a fair and equitable manner, with employees who fail to follow such policies, procedures, post orders and directives. Recognizing that each instance of potential discipline involving a violation of established policy, procedure, directives and/or post orders may differ in some respect, the Executive Director retains the right to treat each violation of policy. procedure, directives and/or post order upon individual merit and without creating any precedent. II. Discipline: There are four levels of discipline that may be given to employees who violate policy, procedure, directives and/or post orders at the Multi-County Correctional Center. 1. Verbal reprimand: These will remain effective for future discipline for 12 months. 2. Written reprimand: These will remain effective for future discipline for 12 months. 3. Suspension without pay: Suspensions from 1-5 days shall remain effective for future discipline for 24 months. For suspensions greater than 5 days will remain effective for future discipline for 36 months. 4. Removal: (from employment) Disciplinary Grid II. General Violations 2. Insubordination and/or disobedience of a direct order: disrespectful attitude, language and/or behavior toward a supervisor or higher ranking individual regarding the carrying out of an assignment. The disregarding of an order either verbally or otherwise given by a supervisor or higher tanking individual. 1st Offense Written reprimand up to removal 2nd Offense Three day unpaid suspension up to removal 3rd Offense Removal
11. Threatening, intimidating, coercing, striking, fighting or any other physical or verbal confrontation with another employee or member of the general public. 1st Offense Five day unpaid suspension up to removal 2nd Offense Removal 19. Conveyance, distribution possession or consumption of any alcoholic beverage, drug of abuse or prescription drug (without authorization) or the unauthorized conveyance, distribution or possession of any firearm, knife, or any other type of contraband. 1st Offense Removal The events which triggered the discharge at issue here occurred on July 9. The Grievant s direct testimony regarding what occurred follows: A: Roughly approximately 0145 on the 9th, I believe was the date, I was working central control. I had taken a break. I had gone out the employee entrance out here and I was checking my messages on my phone because I was waiting for an important phone call. I had accidentally kept my phone. Q: You didn t bring a phone in originally? A: No. I did not. Q: But you went out to check it because you were worried about messages? A: Yeh. I was waiting for a phone call from my attorney. Q: And then you said you forgot about it? A: Yeh. Well, I walked to my car and I walked back up to the employee entrance you know so I m not sitting out there in my car doing who knows what. I intended on taking it back to my car and it just slipped my mind and I came back to work. I was in the control room. I realized I had my phone and I knew I was already under the radar for for what not. And I decided I would just turn my phone off and stick it in my pocket and take it out on my next break. No big deal. No harm, no foul. Sergeant [A] had been coming through the door. I let him through the door. I was turning my phone off at the same time Apparently he had seen me. He had I had let him into the control room. He said, [Grievant], do you have your cell phone? I said, Yeh, I do.
I accidentally brought it in when I went on break. He said, Give to me now. I said, Can I take it out to my car? I don t want to give you my phone. I don t 100 percent trust you with my phone. I said, It was expensive. He said, Give me your phone. I said, I ll take it up to the Director myself. I said, You can walk me out to my car. I said, Why not? I said, It doesn t bother me if you tell him. I m not trying to hide it Said, If somebody calls the signal and drops my phone, who s going to pay for it? The jail s not, because it wasn t supposed to be there to start with. He said, Well, I m going to go tell the Director. I said, That s fine. I ll give it to him. He went and got the Director. They came back. I mean it was within minutes, 2 or 3 minutes. Director Osborn had walked in the control room and he said, [Grievant], do you have your phone? I said, Yeh, I do. It was an accident. He said, Well let me see it. I said, I didn t make a call on it, but here you go. I powered it back on. He asked me to show him where it showed my recent calls. I showed him and the recent call was the day before at ten something. He d handed it back to me. He had asked me if I had said the F word to Sergeant [A]. I said, No, I did not. And that when I was asked to leave the facility. Q: And had you had a confrontation with the Sergeant prior to that on that day? A: Yes, I did. It was roughly 2 hours earlier. We were out the sally port door. I was taking a little break and he had asked me I believe I had called in the day prior to that. The first one I d called in er the second day I had called in in the year that I ve worked there. He had made the statement that I might get fired for pattern abuse because it happened to be two Sundays, I believe, in a row. Q: Was this related to any prior conversations that you were having with him? A: No. No. I mean That was just the first thing out of his mouth. He and I were just standing out there. He and I don t talk a whole lot. He Q: So he s not one of your friends? A: Yeh. No. I, I, I, I would go tooth and nail I would take a bullet for him here at work. I would stand up for any of my fellow officers. But he is not somebody that I would probably talk to outside of the jail. I don t look at him any different inside the jail. I don t dislike him. But if I had a choice to sit at a table by myself and sit with him, chances are I would sit by myself. On cross-examination, the Grievant was asked whether it ever occurred to him to notify his supervisor that he had mistakenly brought his cell phone into the secured side. The Grievant responded that Sergeant A was his supervisor, that Sergeant A had just made supervisor, and in the Grievant s opinion, Sergeant A had a chip on his shoulder. The
Grievant also said that with his previous discipline he would just as soon not tell anybody and take the phone out on his next break in all hour or so. Sergeant A testified that on July 9, as he was walking past the central control area, he saw through the window that the Grievant was holding a cell phone in his hand. Sergeant A entered central control and asked the Grievant for his cell phone. According to Sergeant A, the Grievant responded saying, You re not getting my fucking cell phone. The Sergeant testified that he told the Grievant that, at this point, it was no big deal that the Grievant could get his phone back from Director Osborn at the end of his shift. According to Sergeant A, he could not recall how many times he asked the Grievant for his cell phone, but that it was more than once; and the Grievant never did give him the phone. Sergeant A finally went to get Director Osborn. When asked what exact words he used to ask for the cell phone, as well as he could recall, Sergeant A said: A: I believe I said, I m going to need your cell phone to take it to Director Osborn. I believe I said, You know you re not supposed to have that in here. Q: Is that what you said when you asked repeated times or did you say different things? A: I m sure I said different I know I said, Give me your cell phone. At this point it s no big deal, Director Osborn will talk to you and you ll get it back at the end of shift. I don t know if it was in them exact words order but it all was referring to On cross examination, the Sergeant conceded that, at some point, the Grievant offered to take the phone to his vehicle or locker, and also offered to let the Sergeant go out with him to his vehicle. On cross examination, the following exchange took place between the Union s attorney and the Sergeant: Q: He even offered to let you go out with him to his vehicle to make sure he left it didn t he? A: Yeh. I Q: And why wasn t this acceptable? A: Due to the fact, when I asked for it, he told me he wasn t going to give me his fucking cell phone. At that point, it becomes a part where, what I ask is going to be done. Q: You had a confrontation with him earlier in that day, didn t you? Didn t you threaten him with trying to get him fired for pattern sick leave abuse earlier that day? A: No. I don t recall that.
Dale Osborn, the Employer s Executive Director, testified regarding the July 9 incident: On that date, Sergeant [A] came to my office, explained the situation, that he had given a directive he had found that [the Grievant] had a cell phone in the central control area and that he had given him a directive twice to turn the cell phone over and that he was refusing to do so. So therefore he was asking for my assistance. I then went to the central control area, confirmed that [the Grievant] did have a cell phone back there. He handed it over to me for the purpose of looking at the recent calls that may or may not have been made on it. I then handed the cell phone back. We talked briefly about the fact that [Sergeant A] had given him the directives to turn the cell phone over. We didn t get into the exact words of what were being said but I, at that time, asked [the Grievant] to come with me, we were leaving the facility, and said that I was putting him on administrative leave at that time pending a pre-disciplinary conference. According to Director Osborn, the rule against cell phones on the secured side of the facility is enforced, and, during his about two years there, one corrections officer had been disciplined for having a cell phone in the central control area. Director Osborn testified that the officer immediately surrendered the phone when his supervisor asked for it, and the officer was given a 5-day suspension for having the cell phone on the secured side. Although the Grievant s Garrity Warning Notice in evidence states that the Grievant would be questioned about having a cell phone on the secured side and refusing to give it to a supervisor when directed, ultimately, the Grievant was charged only with insubordination and/or disobedience of a direct order. Director Osborn testified that he made the decision to terminate the Grievant for insubordination and/or disobedience of a direct order. According to the Director, whether or not the Grievant used the F word in the exchange with Sergeant A did not have any bearing on his decision. He said he decided on removal rather than a lesser discipline because of the severity of this event as well as that we were operating under the last chance agreement. According to the Director, the Grievant had been facing discharge for the alleged misconduct which led to the execution of the June 15, 2007 last chance agreement. Joint Exhibit 5 is a letter dated July 13, 2007, from the Executive Director to the Grievant with two subject lines: one says Pre-Disciplinary Conference; and the other says Alleged Violation Insubordination and/or disobedience of a direct order. The body of the letter states: As a result of the pre-disciplinary conference held on this date your employment has been terminated with the Multi-County Correctional Center. It has been determined that your actions on July 9, 2007 were deemed to be in direct violation of the above referenced allegations.
These actions (acts of insubordination) were also found to be in violation of the Last Chance Agreement signed on June 15, 2007. IV. Positions of the Parties A. The Employer s Position The Employer contends that, in accordance with the collective-bargaining agreement s management rights clause, it has the authority to discharge employees for just cause, and that the Grievant s termination was for just cause. The Employer argues that the Grievant was insubordinate in that on two occasions he blatantly refused the Sergeant s directives to surrender his cell phone. The Employer urges that this result is not changed because the Grievant wanted to deal with the situation his way. According to the Employer, the insubordination alone subjected the Grievant to discipline ranging from a written reprimand to removal. But, the Employer argues there is also the last chance agreement, with the ink barely dry on it, which states that further acts of misconduct including insubordination will result in discharge. According to the Employer, were it not for the Union s intervention and negotiation of the last chance agreement, the Grievant would have been terminated in June. B. The Union s Position The Union contends that the Grievant s termination was not for just cause, the termination should be set aside, and the Grievant should be reinstated. The Union argues that the Employer s discipline policy in evidence does not control here, but rather Article 9 does. It urges that just cause is more than just simply showing that an incident occurred. [but] is a circumstance of viewing the whole picture and not myopically focusing on one or the other aspect of it. According to the Union, a finding of insubordination requires an actual direct order and an absolutely clear understanding between the parties. The Union contends that this cannot be shown in this case where, according to the Sergeant s testimony, he did not give a direct order to the Grievant. The Union argues, There s no evidence that the Grievant was being obstreperous or otherwise difficult that day. As soon as the Director came, he handed the phone over. The Union contends there is no showing of prior severe discipline or that the last chance agreement was entered into in lieu of termination. It also notes that the Director even admitted that the language that was used in the exchange between the Sergeant and the Grievant was not a significant factor in the decision to terminate the Grievant. Regarding the last chance agreement, the Union argued that, when read as a whole document, it is apparent that the purpose of that had to do with these confrontations with employees which was not related to this issue. And in fact you will notice that while there was some problem with Sergeant [A], there was no direct confrontation with him like is alleged to have occurred in the last chance agreement.
V. Decision and Discussion Despite the Union s valiant efforts to frame the issue otherwise, the Grievant s conduct on July 9 was contrary to the well accepted obey now-grieve later doctrine. The principle of this doctrine is that employees must previous obey management s orders, then turn to the grievance procedure for any relief they believe might be due. 2 The rule is based on a presumption that the parties to a collective bargaining agreement intend to refer all their disagreements to the grievance procedure and that no self-help is to be tolerated. 3 Generally, an employee who refuses to previous obey now (and grieve later) is considered insubordinate. 4 Six qualifications, however, have been placed on this basic definition. (1) the refusal to obey must be knowing, willful, and deliberate; (2) the order must be both explicit and clearly given; (3) the order must be reasonable and work related; (4) the order must have been given by someone the employee understands to have the authority to give it; (5) the employee must be made aware of the consequences of failing to follow the directive; and (6) if practical, the employee must be given or have time to correct his purportedly insubordinate behavior. 5 Here, these six qualifications are met. The Grievant testified that initially the Sergeant asked if he had a cell phone and said Give it to me now; and later in the conversation the Sergeant said to him Give me your phone. Thus, the order was explicit and clearly given. The Grievant s version of the conversation shows that his failure to obey the direction to give up his phone was knowing, deliberate and willful, and that he insisted that the situation be handled differently. The Grievant also testified that Sergeant A was his supervisor, and there is no contention that the Sergeant did not have the authority to direct the Grievant to hand over his phone. The order was reasonable and work related. Having the phone in the central control area where the Grievant was assigned to work was prohibited and that prohibition itself was enforceable by serious discipline according to the Employer s disciplinary policy in evidence. The consequences of the Grievant s conduct should have been obvious. The Employer s written work rules in evidence state that cell phones are not allowed on the secured side and violation of those policies will result in disciplinary action and/or criminal charges; 6 and that the disregarding of an order either verbally or otherwise given by a supervisor or higher ranking individual is insubordination and is punishable as a first offense with a written reprimand up to removal. 7 There is no contention that these rules were not properly promulgated. Additionally, less than a month earlier, the Grievant had entered into a last chance agreement which
explicitly stated that insubordination would cause his immediate termination. Finally, the Grievant was given several chances during his conversation with the Sergeant to comply and give his cell phone to the Sergeant. As to the last chance agreement, valid last chance agreements are generally strictly construed and enforced by arbitrators. They are usually found to be valid and enforceable if the Grievant was represented by the Union and entered into the agreement with understanding and of his own free will; the period of time it is to be in effect is fair; and the terms and requirements of the agreement are clearly outlined in the agreement. If the agreement is valid and enforceable, the agreement is generally viewed as having waived the employee s normally applied rights to just cause due process considerations, procedural protections, or a progressive discipline scheme under the collective-bargaining agreement, and the arbitrator s role is limited to determining whether the employee engaged in the conduct which under the terms of the agreement would cause termination. 8 Here, the Union did not challenge the last chance agreement on any of the above stated enforceability grounds or present evidence showing that any of these requirements for enforceability were not met in this case. However, by contending that the Grievant s July 9 alleged misconduct was not insubordination, the Union did indirectly contend that the agreement did not specifically state that the conduct which the Grievant engaged in on July 9 would trigger termination under the agreement. Additionally, more directly the Union contends that the last chance agreement does not apply to the July 9 situation because the Grievant s alleged misconduct on July 9 is different from that which resulted in the last chance agreement. The Union s argument in this regard is based on the content of the last chance agreement. The Union provided no additional evidence of the situation(s) which led to the agreement and it strenuously objected when the Employer tried to introduce such evidence. I find that the last chance agreement does apply in this case. The Grievant s July 9 conduct did constitute insubordination, both as insubordination is defined in the Employer s work rules 9 and as generally accepted in the labor relations community as discussed above. Further, contrary to the Union s contentions, the Grievant s July 9 conduct at issue here is sufficiently similar to his conduct in the two situations which resulted in the last chance agreement. Thus, the last chance agreement characterizes the two situations which resulted in its creation as verbal confrontations with fellow employees, and the July 9 exchange that the Grievant had with Sergeant A could also be fairly characterized as a verbal confrontation. 10 Of course the Union contends that it was Sergeant A who made the July 9 conversation a confrontation, if anyone did. However, the Grievant s testimony shows that it was the Grievant s failures to comply with clear, reasonable, work-related orders from Sergeant A, the Grievant s admitted supervisor, that caused the verbal confrontation.
VI. AWARD The Grievant was terminated for just cause. The grievance is denied. Notes: 1 Facts not attributed to their source, are not contradicted by record evidence. 2 See generally Discipline and Discharge in Arbitration, 153-72 (Norman Brand ed., BNA Books 1998); Discipline and Discharge in Arbitration 2001 Supplement, 35-40 (Anne L. Draznin, ed., BNA Books 2001); Elkouri & Elkouri, How Arbitration Works, 1023 (Alan Miles Rubin ed., 6th ed. 2003); and cases cited therein. 3 Discipline and Discharge in Arbitration, supra note 3. at 153. 4 Id. at 156. 5 Id. at 156-57 and cases cited therein. 6 Employer Policy number 400.11, entitled Jail Entry/Exit Security, set forth in relevant part in section III, above. 7 Employer Policy number 104.00, entitled Employee Discipline, set forth in relevant part in section III, above. 8 See generally Discipline and Discharge in Arbitration, 403-06 (Norman Brand ed., BNA Books 1998); Discipline and Discharge in Arbitration 2001 Supplement, 119-20 (Anne L. Draznin ed., BNA Books 2001); Elkouri & Elkouri, How Arbitration Works, 969-73 (Alan Miles Rubin ed., 6th ed. 2003); and cases cited therein. 9 Employer Policy number 104.00, entitled Employee Discipline, set forth in relevant part in section III, above. 10 Webster s Third New International Dictionary of the English Language Unabridged (Philip Babcock Grove ed., Merriam Webster 20002) defines confrontation as the act of confronting; the state of being confronted. It gives as its first definition of the verb confront, to stand facing or opposing esp. in challenge, defiance, or accusation.