NAGE Win Reverses Suspensions for DYS Employees
November 14, 2011
An arbitrator reversed the one-day suspensions given to two Department of Youth Services employees after a NAGE attorney showed the suspensions did not meet the “just cause” standard.
“The employer was faced with serious allegations about an employee’s behavior, but instead of conducting a proper investigation, management made scapegoats of the employee’s supervisors,” said Rebecca Lee Mitchell, the NAGE attorney who won the case. “Because of that failure, the arbitrator gave our members a well-deserved win and gave the employer a much-needed lesson.”
Background
The two grievants were longtime employees at the Tinkham Road Western Youth Service Center in Springfield. The DYS facility provides a host of services for at-risk youth. DYS also allows inmates from a nearby correctional alcohol program to perform general maintenance work as part of their restitution. Workers at the Tinkham Road DYS location often refer to the alcohol program and its inmates as “Howard,” after the program’s Howard Street address.
One Howard Street participant was assigned to work at Tinkham Road for three days a week during his incarceration, which ran from summer 2007 through early 2008. The inmate did not have direct contact with DYS residents. He was supervised by DYS staff and transported to and from the DYS location by DYS employees. This inmate said that most of the DYS people he worked with were “great guys.”
“Difficult” employee
There was one exception—a third DYS employee who, the inmate said, made sexually explicit gestures towards him and harassed him repeatedly. The inmate asked the grievants why the employee behaved so badly. The grievants said they hadn’t witnessed the particular behaviors that the inmate had described, but that they knew the employee often exhibited other difficult, problematic behaviors. The grievants arranged for other DYS staffers to transport the inmate to and from Tinkham Road.
Many months later, after the inmate had completed his sentence, he complained to the DYS about the employee’s behavior towards him. He also said that the employee was removing scrap metal from the facility to sell it to a scrap yard. The inmate also told them of a rumor that the same employee had harassed a DYS resident to such an extent that the resident kicked in the employee’s car windshield.
DYS interviewed the grievants, tape recording the interviews without the union’s knowledge and telling the grievants that the union didn’t mind. DYS gave the grievants one-day suspensions for failing to manage the situation between the inmate and the employee, for allowing the employee to remove the scrap metal, and for violating a general departmental policy about “professional” conduct. NAGE grieved the suspensions and ultimately took them to arbitration.
Arbitration
At arbitration, DYS management stood by their contention that the grievants had failed to uphold a standard of professional behavior, had failed to manage a personnel situation, and had allowed a staff member to remove scrap metal from the location against policy. NAGE attorney Mitchell, however, challenged management’s investigation and its version of events.
Rumors and hearsay regarding events like the alleged windshield incident, she said, do not constitute sufficient evidence for discipline. Any appropriate discipline would have to be based on solid evidence, not rumors.
Previous administrators had long allowed that employee to remove scrap metal from the Tinkham Road facility because the metal was a safety hazard and the facility did not have adequate funds for its removal otherwise. Other employees had been allowed to remove other items from the site without discipline under the current administration, a case of what Mitchell called disparate treatment and a lack of clear rules and notice.
Mitchell also got the DYS investigator to admit that the grievants had not received any supervisory training before the complaint that led to their suspensions. The two received significant training thereafter, and received performance reviews ranging from “good” to “exceeds.”
Decision
The arbitrator decided in favor of the grievants and ordered their suspensions reversed. She said she found that evidence persuaded her that the grievants had not witnessed the employee’s alleged sexually explicit behavior towards the inmate, and that they had acted appropriately based on the informal practices long allowed at Tinkham Road. Likewise, she ruled, the grievants merely adhered to past practice when it came to the removal of scrap metal from the facility. Finally, she said that incomplete and uncorroborated evidence regarding an alleged windshield-kicking incident was a “wholly inadequate basis upon which to discipline two long-term employees with unblemished records.”
“The arbitrator agreed that the employer couldn’t blame the grievants for not receiving proper reports of alleged behavior that they never witnessed,” said Mitchell. “The employer can’t pass the blame to our members to escape their own established practices, daily operations, and possible liabilities, either. That’s an important message to send to management.”