American Arbitration Association Arbitration Pursuant to Agreement of the Parties Before Timothy J. Brown, Esquire

Transcription

1 American Arbitration Association Arbitration Pursuant to Agreement of the Parties Before Timothy J. Brown, Esquire In the matter of: Teamsters Union, Local No. 115 : : and : AAA Case No : County of Delaware Services : for the Aging : (Re: Manny Karalis Termination) DECISION AND AWARD Appearances: On behalf of Teamsters Union, Local No. 115 Norton Brainard, Esquire Teamsters Union, Local No Cottman Ave, Philadelphia, PA On behalf of County of Delaware Services for the Aging Michael D. Keffer, Esquire Blank Rome LLP One Logan Square 18 th and Cherry Streets Philadelphia, PA Summary of decision: For the reasons stated in the following Decision, the subject grievance is denied. Dated: December 11, 2004 Timothy J Brown, Esquire Arbitrator 1

2 INTRODUCTION County of Delaware Services for the Aging (COSA) (the Employer) is an agency of Delaware County, Pennsylvania providing various social services to eligible elderly within its jurisdiction. Teamsters Union, Local 115 (the Union) represents a unit of fulltime and regular part-time professional employees of the County s departments of mental retardation, early intervention and county services for the aging. The Employer and Union are party to a collective-bargaining agreement effective by its terms from January 1, 2002 through December 31, This matter concerns the June 17, 2004 termination of unit employee Manny Karalis (the Grievant). Grievant was terminated because he allegedly submitted a falsified June 11, consumer assessment. At the time of his termination, Grievant had worked for the Employer for approximately eighteen months. The Union filed a grievance over the termination and pursued the matter through the required steps of the contractual grievance procedure. Following the Employer s denials of the grievance the Union filed for arbitration. The undersigned was selected by the parties to conduct a hearing in this matter and render a binding arbitration award. A hearing was held on November 12 in Philadelphia, Pennsylvania. At the hearing, the parties were afforded the opportunity for examination and cross-examination of witnesses, presentation of relevant argument and introduction of relevant exhibits. Both parties presented closing oral argument and the dispute was deemed submitted at the close of the November 12 hearing. 1 All dates herein are 2004 unless otherwise indicated. 2

3 ISSUE The parties stipulated that there are no procedural issues presented in this matter, the matter is properly before the arbitrator for determination and that the following describes the issue or issues to be resolved by the arbitrator: Was the Employer s termination of Manny Karalis for cause and, if not, what shall be the remedy? RELEVANT CONTRACT LANGUAGE The following provisions of the bargaining agreement were identified as relevant to the issues presented in this matter: ARTICLE 11 DISCIPLINE (1) The Employer shall not discharge nor suspend without pay any employee until the case has been discussed with the Business Agent in person, except where the provisions of this Article provide for immediate discharge. (2) No warning need be given to an employee before he is discharged or suspended if the cause of such discharge is: C. Proven theft or dishonesty. (4) Disciplinary action must be for just cause after written notice to the employee and the Union. The parties agree that included within the concept of just cause is the principle that disciplinary action shall be corrective and progressive in nature and that the employee should be apprised of conduct requirements for violation of which they may be disciplined or discharged. In these classifications of offenses which would warrant discharge or disciplinary action, if repetitive (for example, habitual lateness or absenteeism), the Employer must first have issued a verbal and two (2) written warnings, for the same or similar offense, with copies of the written warnings to the Union, prior to issuing a suspension or termination. 3

4 EVIDENCE As an Aging Program Assessor, Grievant was responsible for conducting evaluations of the physical and mental status of elderly consumers to determine whether they should be placed in nursing home, boarding home, assisted at-home or other care. COSA evaluations are also used in determining consumers eligibility for government funds. Assessments are recorded on a standard Pennsylvania Comprehensive Assessments Form, or PA COAF (herein COAF). On June 8 Complainant was assigned the assessment of an elderly consumer (herein referred to as The Consumer ) whose identity has been withheld by agreement the parties for privacy reasons. On the morning of Friday, June 11 the Employer s Administrative Support Unit Manager, Linda Jensen, received a telephone call from The Consumer s daughter. The daughter asked Jensen who would be completing her mother s assessment and when the assessment would take place. Jenkins responded that she would check and get back to the daughter. The daughter explained that she did not have a telephone and made arrangement to call Jenkins back. Jenkins reviewed the office s assignment records and when the daughter called back informed her that Grievant had been assigned the assessment and transferred the call to Grievant. On Monday morning, June 14 Jensen received a second call from The Consumer s daughter, who reported that in a telephone conversation with Grievant that morning Grievant claimed he had not been assigned The Consumer. Jensen investigated and found the Consumer s file on the desk of Grievant s supervisor. 2 Handwritten notations by Grievant in the file s log stated: 2 Grievant s supervisor had recently been terminated. Nevertheless, assessors were instructed that when assessments were done they were to place their completed files on the ex-supervisor s desk and other supervisors would pick them up to be reviewed. 4

5 TC to St James informing Facility I will be assessing consumer today for nursing home placement (rm) TC to daughter informing her that I will be assessing Consumer at St. James for NH placement. Daughter is agreeable to Nursing home due to the change in consumer s medical condition. (MK) assessment completed at St. James. Consumer appeared NFCE 3 and is recommended for NR/LT for Loc. (MK) Consumer prognosis is deteriorating and Requires Nursing home placement. (MK) Jensen took the file to Grievant and asked him about the matter. Grievant reported that he had spoken to the daughter and that he had never received a referral to perform an assessment of The Consumer. Jensen handed the file to Grievant, stated that he had been assigned the matter and told him that when the daughter called again, Jensen would refer her to Grievant. When the daughter called Jensen a second time on June 14, Jensen told her that The Consumer had been assessed by Grievant on June 11. The daughter expressed upset that she had been given conflicting information, and stated that no one had assessed her mother on June 11. Jensen gave the daughter the telephone number of Program Director, Suzanne Bernstein, (Grievant s second level supervisor) and again transferred her to Grievant. Shortly thereafter Bernstein received a call from the daughter complaining about the situation and insisting that her mother had not been assessed. The daughter explained that her mother had been in the hospital since the evening of June 10 and desired to go to a nursing home. Bernstein then located Grievant and asked him if he had assessed The Consumer. Grievant replied that he had. When asked where he assessed The Consumer, Grievant responded that he had completed the assessment at the St James Boarding Home. 3 Nursing Facility Care Eligible 5

6 Bernstein then asked for, and received, The Consumer s file from Grievant. Bernstein reviewed the file and the completed COAF submitted by Grievant, decided The Consumer should be reassessed and reported the situation to her superior, Deputy Director of Long Term Care, Denise Stewart. In response to the report received from Bernstein, on June 15 Stewart sent Grievant an ed asking about The Consumer s assessment. Specifically Stewart asked; Grievant replied: (1) What date did you do your assessment? (2) What time did you do your assessment? (3) How long did it take? (4) Was any staff from St. James present? Assessment date done Assessment time around 10:30am returned to office around 12:00pm, wrote up case in office and had office coverage from 2-4:30 pm Time it took around 1.5 Present was the nurse aide of St. James staff, had questions on chart On June 15 Bernstein directed Nurse Betsy Anderson to perform a redline assessment of The Consumer. In such an assessment, the original COAF is modified by adding responses in red that are different from those already contained in the COAF. Bernstein accompanied Anderson and spoke to the daughter about the situation. The daughter insisted that no one had met with The Consumer on June 11. The daughter explained that her mother was taken to the hospital on Thursday, June 10 and was in the hospital the entire day of June 11. She further reported that she had been with her mother for almost the entire day on June 11 and no one met with The Consumer. Anderson s assessment was inconclusive as to whether The Consumer was appropriate for referral to 6

7 nursing home care. (The Consumer subsequently received a nursing home referral after further review from an Employer consultant.) Based upon the redlined assessment and her interview of the daughter, Bernstein concluded that, contrary to the notations in the file log sheet and COAF, Grievant had not met with The Consumer on Friday, June 11. As a consequence, Bernstein submitted a memorandum to the Employer s Director, Lewis Cobert, recommending that Grievant be terminated. Cobert reviewed reports received from Jensen, Stewart and Bernstein as well as language in Article 11 of the Bargaining Agreement relating to theft and dishonesty, and decided to forward a recommendation of termination to the Employer s personnel department. On June 16 the Personnel Department concurred with the Director s recommendation and the Director then informed Union steward Frank Gallagher that the Employer would be taking an adverse employment action against a bargaining unit member who would be needing Union representation at 3:00 p.m. June 17. Gallagher claims he asked for the name of the employee and reasons for the termination and that Cobert responded that the Employer was not ready to disclose the information. Cobert claims Gallagher did not ask for the employee s name or further information about the pending discipline. Gallagher then told the Director that he was about to leave on vacation that afternoon and would have another steward contact Cobert. Cobert thereafter exchanged a series of messages with Union steward Gail Grant about the scheduled meeting. Cobert additionally received a message from Union president Bernadette Bonner instructing the Director to inform the Union s steward of the identity of the involved employee and reasons for the termination. During the morning of 7

8 June 17, Union steward Grant spoke to Cobert and asked for the name of the employee and reasons for the termination. According to Grant, Cobert responded that the Employer had not yet informed the employee of the termination and did not want to tell the steward. According to Cobert, he spoke to Grant on June 17 after receiving a message to do so from Union President Bonner, and gave Grant Grievant s name and explained that Grievant was being terminated for dishonesty. According to Grant, when Grant asked how the Employer was showing proven dishonesty, Cobert replied; I assure you it is dishonesty. According to Cobert, he discussed the termination and reasons for the termination in detail with Grant. Grant then consulted with Grievant. The parties met as scheduled on June 17. Deputy Director Stewart began by asking Grievant if he met with The Consumer to do her assessment. According to Stewart, Grievant began responding that he did meet with her, but when Steward pointed to the file and said that the report indicated that Grievant met with The Consumer but he did not. Grievant admitted that he had not met with The Consumer face-to-face, and that he completed the COAF based upon information he received from the Consumer s Boarding Home records and the nurses aide at the Boarding Home. Grievant further explained that when he arrived at the Boarding Home on June 11, he learned that The Consumer had been transferred to a hospital. Complainant also stated that this was the first time he had completed a COAF without a face-to-face interview and that other assessors complete their assessments without face-to-face meetings. The Union argued that Grievant was guilty only of a mistake and that a mistake was not a dischargeable offense. Cobert eventually gave Grievant the choice of resignation or termination. Grievant chose not to resign. Cobert informed Grievant that he was being terminated for 8

9 falsifying documents in The Consumer s file. At the end of the meeting, Union president Bonner spoke to Cobert via telephone, complained about the Employer s failure to provide timely information on the matter to the Union and attempted to gain a reduction in the discipline issued Grievant. The conversation ended with the Union requesting a copy of the document allegedly falsified by Grievant. Cobert testified that the decision to terminate Grievant was made on June 15, and that had information been presented on June 17 that would have caused him to reconsider his decision, he could have recommended that the Personnel Department change the decision. Cobert also testified that he did not talk directly to Grievant prior to making his termination recommendation because two of his supervisors had already spoken directly to grievant about the matter and another had ed him. Cobert explained that the Employer receives a significant portion of its funding from the Pennsylvania Department of Aging, and that the Employer is required as a condition of receiving that funding to comply with Department of Aging regulations and instructions. Cobert, as well as the other Employer witnesses, testified that COAF assessments are required to be performed in a face-to-face interview with the consumer. Cobert further testified that should his organization be found to have submitted false reports to the State, such could jeopardize the County s contract with its primary source of funding; the State Department of Aging. Perhaps more significant, Cobert, asserted, is the fact that these assessments are very important to the lives of elderly consumers, and largely determine how the consumers will thereafter live. Under these circumstances, Cobert testified, it is fundamentally wrong to cut the consumer out of the opportunity to have personal input into their own assessment and futures. 9

10 Cobert testified that he has terminated non-unit employees for falsifying records and that in the past he was aware of one bargaining unit employee who falsified a COAF and resigned before being terminated. He also stated that he is not aware that any other assessors complete COAFs without meeting with consumers. Union steward Gallagher testified that he has worked for the Employer for three years and that one of his responsibilities is to complete COAFs. He claimed he was trained in COAF completion by supervisors and reviewing other COAFs, and that he had never been provided nor seen a copy of the State instructions for completing a COAF. Gallagher admitted that if he received information from a son or daughter rather than the consumer to complete a COAF he would reflect that fact in the COAF. Grievant testified that his training consisted of informal training at COSA, shadowing other assessors and learning from mistakes. He testified that he received two days of brief training at COSA from a representative of the Department of Aging about how to fill out COAF forms. Grievant asserts, consistent with steward Gallagher, that he was never shown the State COAF instructions. Grievant claimed that when an assessor was unable to meet directly with a consumer because the consumer was not available or for some other reason, assessors were permitted to collect necessary information from sources other than the consumer; they were encouraged to use their professional judgment. According to Grievant, prior to going to do his assessment of The Consumer on June 11 he telephoned the Boarding Home and informed them that he was going there to assess The Consumer and requested the Consumer s room number. He then noted on the COSA Daily Attendance Sheet were he was going and that he anticipated returning to the 10

11 office at 11:00 am. Only when he arrived at the Boarding Home did he learn that The Consumer had been sent to an undisclosed hospital. While at the Boarding home Grievant reviewed the Consumer s medical notes to learn what medications The Consumer was taking and spoke to a nurses aide about the Consumer s condition to complete the COAF. Grievant claims he then returned to the COSA office with the completed COAF and imputed the information on the COAF into the computer. Grievant explained that before he left for the assessment on June 11 he originally inserted 11:00 am as his expected return time on the Employer s Daily Attendance sheet and wrote FV in the Place/Reason column to indicate that he would be on a field visit. He testified that he changed the attendance form information when he returned form his visit on June 11 to reflect his actual return at noon and added that he was at St. James. Grievant claims that it was policy for assessors to change the attendance sheet upon their return from a field visit to reflect the actual time they were out. The Employer submitted a copy of the Attendance sheet without the Grievantadmitted-to changes. According to Employer witness Bernstein, she made a copy of the attendance sheet on June 14 that did not contain the changes made by Grievant. As for the information on the COAF at issue itself, Grievant admitted that in Section 1.C. question 3 Where was consumer interviewed? he marked off Personal Care Home. In response to question 5 Who was present at time of assessment? he admitted he also checked off Consumer. Grievant explained the he accidentally checked off consumer because you do so many of these, that you re in a repetition type mode that I just accidentally checked off consumer. In question 6 where the form asks; Names of those present for the assessment? Grievant admitted writing consumer and 11

12 explained that it was just like a mistake which he cleared up in his to Denise Stewart. He further stated that he should have put down consumer and nurses aide. In regard to the SPMSQ, Section 7.B. of the form, Grievant explained that the nurses aide knew The Consumer well and he asked her the various questions and marked the form with the nurses aides answers. He denied that he used The Consumer s prior COAF to complete the June 11 COAF. In regard to the final page of the COAF, Grievant explained that he typed in the remarks contained on the form. Grievant explained that although the file log states call to consumer s daughter, he did not call The Consumer s daughter on June 11; he spoke to the daughter on the phone when she was transferred to him by Jensen. He talked to the daughter at that time about her mother s wishes to be sent to a nursing home and told the daughter that he would be going out to assess her mother. In regard to his entry in the file log stating that consumer appeared NFCS and is recommended for NFLTC, Grievant explained that; based upon the nurses aides and medical records and I and other assessors had visited the home before, the person didn t have to be there, that is why you are called professional, that appeared is there because you can t use the word is because it is a judgment determination you are giving to the state, we are not medical professionals and we cannot say for certain that a person is NFLTC, so assessors use the word appear to reflect that it is a recommendation. Grievant stated that he was never interviewed by the Employer about his assessment of The Consumer; that his first discussion he had with management about the matter was with Cobert on June 17 when he was told the Employer would be taking 12

13 disciplinary action against him that afternoon and asked if he wanted Union representation. He was not told he was being terminated or for what reason until he spoke with the Union s steward before the 3:00 pm meeting. On cross examination, Grievant admitted that (1) the information he inserted in the COAF and his entries in the log reflect that he met with The Consumer at the boarding home, and (2) by just looking at the COAF and the log a supervisor would not be able to understand that the Consumer was not present when the assessment was taken. In regard to the information in the COAF Grievant testified that his answer to 2.I, question 5 was a mistake; He initially testified that the black check marks on the form on page 16, in 7.B. questions 7 and 8 were marked off by him, but then stated that the marks were not his and he has no idea who marked them off; that his answer consumer to question 11 Section 8.B. was accidentally marked off; that his answer to the same question where he marked the information was based upon observation was accidentally checked off and that he shouldn t have done so. He first testified that all of the black check marks and writing in Section 11.D, question 1 through 9 page 24 were not all his, but then explained that they were his and were based upon his telephone conversation with the Consumer s daughter. He further testified that the marks in Section 11.E. questions 1, 2, 4, 5 and 8, were not his, that some one else must have done them. Concerning his yes answer to question 4 in Section 17.A. which asks; Consumer (Guardian if applicable) satisfied with outcome of Assessment? Grievant testified he did not speak to The Consumer, but that the Department of Ageing doesn t really care for this question; that it just has to be answered for the computer program. He then testified that he should have marked unknown rather that Yes. 13

14 POSITION OF THE PARTIES The Employer The Employer argues that it has met its burden of showing cause for termination of Grievant under either a preponderance of the evidence or a clear and convincing standard. Although, much time and attention has been spent in this matter on the issue of whether or not a face-to-face interview is required for an assessor to complete a COAF, such is not the issue in this case, the Employer asserts. Rather, this case is about dishonesty, and the issue here is whether Grievant intentionally recorded false information in The Consumer s COAF and file log. Here, the Employer asserts, it has presented substantial evidence that Grievant completed the file log and COAF at issue in a manner designed to give the miss impression that he met with The Consumer. Time after time Grievant chose to check off answers or write in words such as observed and appeared that in common usage communicated that the Grievant met with The Consumer at the time he performed her assessment. Grievant offered no rational explanation as to why he chose these various answers or used these words to rebut his obvious intention to mislead. Moreover, the Employer continues, Grievant had many opportunities to clear up any ambiguity that may have existed about whether or not he met with The Consumer or to inform his Employer that the assessment at issue was not performed in the usual faceto-face manner. Thus, not only could grievant have indicated such in the file log and in numerous places on the COAF, he had opportunities to explain his conduct directly to Jensen on June 11 and June 14, Bernstein on June 14 and Stewart on June 15. However, 14

15 Grievant chose to allow the miss-impression to continue. Although Grievant was terminated for dishonesty, the well established requirement that assessments be performed face-to-face is relevant to this matter, the Employer explains. In this regard, Grievant was aware of the face-to-face requirement, and such was the motive for Grievant covering up his failure to meet face-to-face with The Consumer. Indeed, the Grievant s own admission that this was the first time in his eighteen months of completing COAF forms that he failed to have a face-to-face meeting reflects his own understanding that face-to-face meetings were expected. The Employer further argued that it met the due process requirements of a showing of cause. Here, the Employer asserts, the Union bargained away any right Grievant may have had to progressive discipline or the Union may have had to prior notice of the intent to terminate. Under Article 11 of the Agreement the Employer may terminate an employee without prior warning and without need to meet with the Union for proven theft or dishonesty. However, the Employer continues, notwithstanding that it was not required to do so, it applied progressive discipline and gave notice to the Union. In this regard, the Employer argues, the Employer s Director spoke to the Union steward about the pending discipline on June 16, and although the Employer may not have initially given the Union specific details about the case, the Union did not request them. The evidence establishes, the Employer maintains, that it provided details about the identity of the Grievant and reasons for the termination as soon as the Union first requested them. Similarly, although the contract does not require progressive discipline for proven theft or dishonesty, the Employer argued, here Grievant had previously been warned for not properly completing COAFs. 15

16 The Employer further argues that this is not a matter appropriate for mitigation. Just because the Consumer eventually was placed in a nursing home as recommended by Grievant, the Employer stresses, Grievant should get no points merely because he guessed right. Grievant had motive to be dishonest, was dishonest multiple times and offered no rational explanation for his conduct. Under the circumstances, the Employer concludes, it has met its burden of showing cause for termination. The Union The Union takes the position that because this is a case alleging employee dishonesty a clear and convincing evidence standard of proof is appropriate. The contract language at issue grants the Employer the right to terminate only for proven theft or dishonesty. Grievant was terminated because he allegedly falsified a case assessment. Falsification of a document does not meet the definition of dishonesty, the Union argues. Dishonesty requires willful conduct or fraudulent conduct. Such is not the case here. The Union argues the seven tests of just cause should apply here. Of these tests, the Union asserts, the Employer did not meet the requirements (1) that the employee be forewarned of the rule and the consequences of breaking the rule, (2) that there be substantial evidence of guilt and (3) that the punishment fit the crime. On the issue of providing Grievant adequate warning, the Union argues, the County s training relating to the necessity for a face-to-face meeting for assessments was wanting. The Employer never provided the Grievant a copy of the regulations and State 16

17 contract language the Employer is now relying upon, and there was no information provided Grievant that the harshest of discipline would result if he failed to have a faceto-face meeting. Moreover, the regulations themselves provide room for assessors to exercise their professional judgment and, where prudent, gather information from sources other than the consumer. Here there was no intent by Grievant to lie, cheat or steal. Grievant did not steal time or gain anything from his conduct; he did not defraud the Employer of anything. Grievant may have made a mistake, but the evidence does not show that these mistakes were intentional. Mistakes do not rise to the level of dishonesty. Mistakes can be corrected, the Union asserts, and should such require discipline, the discipline should be corrective in nature. Moreover, the final result of the Employer s assessment of The Consumer, the Union points out, was consistent with Grievant s recommendation and the desire of The Consumer and The Consumer s daughter. Under the circumstances, the Union argues, the punishment here was excessive and went well beyond the crime. The Employer has neither shown that Grievant engaged in intentional dishonesty or met the requirements of showing just cause for termination. As a result, the Union concludes, the grievance should be granted, and Grievant should be reinstated with full back pay and benefits. DISCUSSION Cause An analysis of a case claiming discharge for cause as is presented here requires consideration of several factors, such as; (1) whether or not the employer relied on a reasonable rule for the disciplinary action, (2) whether there was prior notice to the 17

18 employee of the rule and the consequences for violating the rule, (3) whether the disciplinary investigation was adequately conducted, (4) whether the employer was justified in concluding that the employee engaged in the conduct as charged and (5) whether the discipline issued was appropriate given the relative gravity of the offense and has been consistently applied to other employees charged with violation of the same or similar rules. Burden The burden of proving the employee engaged in the subject prohibited conduct rests upon the Employer. There is no contract language in the instant case offering guidance as to the standard of proof the Employer must satisfy to meet its burden. In the absence of contractual language providing guidance on the subject, many arbitrators require the Employer to establish the violation of a rule relating to employee honesty by a preponderance of the evidence. Others require clear and convincing evidence. And others apply the criminal standard of beyond a reasonable doubt. In my view such categorizing may be too formulistic. I believe the parties choose an arbitrator to exercise his or her own good judgment. Such judgment is best exercised on a case-by-case basis after due consideration is given to all of the evidence, argument and circumstances of the case to determine whether or not the arbitrator is satisfied that the grievant engaged in the conduct of which he or she is accused. Considering the totality of the evidence and arguments presented by the parties in this matter, I find that the Employer has met its burden of showing cause for its discharge of Grievant. The rule at issue here against dishonesty protects legitimate and important Employer interests. The language of the Bargaining Agreement providing that dishonesty 18

19 may result in termination placed Grievant, a member of the bargaining unit, on notice that violation of the rule could result in his discharge. The Employer s investigation included three supervisor discussions with Grievant, an exchange of s between the employee and member of management, inquiry of the involved boarding home, interviews of The Consumer and the Consumer s daughter, and close examination of the involved documents, and was sufficient to meet the cause standard. Under the circumstances here, including the language of the Bargaining Agreement providing for discharge for dishonesty and the absence of any history of lesser discipline for violation of the rule, discharge is not an inappropriate level of discipline for proven dishonesty. The remaining, and primary issue in this matter is whether the Employer has met its burden of proving that Grievant engaged in dishonesty in completing The Consumer s case record. To Falsify is to Engage in Dishonesty The Employer s letter of June 17 states that Greivant was being terminated because his case record regarding a June 11 assessment of The Consumer was falsified. Although the Employer may not have used the word dishonesty as appears in Article 11 of the Bargaining Agreement in its termination notice, the Employer s accusation that Grievant falsified a record is no different than accusing him of dishonesty. The definition of falsify includes; To state untruthfully, to misrepresent. 4 The definition of honesty includes; The capacity or condition of being honest; integrity; trustworthiness Truthfulness, sincerity 5 Accordingly, whether one says that an individual engaged in dishonesty in the completion of a record or falsified the record, 4 The American Heritage Dictionary, New College Edition, Houghton Mifflin Company 5 Id. 19

20 one is claiming the same thing; that the individual was untruthful in his or her completion of the record. Given the context of the rule in the bargaining agreement and the severity of the discipline resulting from violation of the rule, it is apparent that the parties did not intend to include honest mistakes or inadvertent acts within the rule s proscription. As a consequence, the Employer must show that when Grievant completed the involved COAF and file log he did so intentionally in a deliberate attempt to misrepresent that he actually met with The Consumer. Intent It is undisputed that Grievant did not meet with The Consumer for her assessment and that Grievant made no effort to directly inform the Employer either in the written record or orally that he did not conduct such a meeting. In circumstances such as presented here, where Grievant denies any intent to misrepresent or deceive, proof of such bad intend must necessarily be established through circumstantial evidence. Here, the evidence establishes to my satisfaction that Grievant was intentionally untruthful. My conclusion in this regard is based upon evidence coming primary from Grievant himself. Viewing the writings of Grievant on the involved file log, words written by Grievant in the involved COAF and selections made by Grievant in the COAF, there is little doubt that Grievant intended to leave his Employer and the State with the impression that he met with The Consumer at the time he completed her assessment. In his third file log entry of June 11 Grievant wrote that assessment completed at St. James. Consumer appeared NFCE and is recommended for NR/LT.. Notwithstanding the Grievant s convoluted attempt to explain that he used the word 20

21 appeared merely to reflect that his recommendation was not a medical certainty, I find that the use of the word appeared within the context of the sentence and the surrounding circumstances was intended to convey the impression that Grievant actually met withthe Consumer. In the COAF itself, Grievant indicated one way or another that he met face-toface with the Consumer eight times. Thus, Grievant: (a) once stated that The Consumer was interviewed at a personal care home; (b) twice stated that The Consumer was present for the assessment; (c) three times stated that The Consumer was the source of information recorded on the form; and (d) twice stated that the source of the information recorded in various sections of the COAF was based upon his observation of the Consumer. Although on two occasions Grievant claimed entries he had earlier admitted making were not made by him, his overall explanation for these eight entries is that they were mistakes. I find that the likelihood that these entries were mere mistakes declines with the number of times Grievant made the conscious choice to chose answers or insert text reflecting that he was in the presence of the Consumer when he performed her assessment. Here, the mistakes occurred with such regularity that I find the likelihood that the entries were mere mistakes to be non existent. Moreover, it is beyond the reasonable limits of mere consequence that the only mistakes Grievant made on the form were mistakes that happen to convey the impression that he met face-to-face with the Consumer. Other behavior by Grievant also reflects that he was intentional in his conduct. Grievant had four opportunities to tell his superiors that he did not meet with The Consumer, but did not reveal such information. Additionally, Grievant engaged in an 21

22 extraordinary attempt to further promote his misimpression by modifying the June 11 attendance sheet. Although, Grievant testified that he made his changes to the sheet upon his returned from the boarding home on June 11, his edits had to have actually been made sometime after June 14. Program Director Bernstein credibly testified that she made a copy of the document when she first became aware of a potential issue with Grievant on June 14. (Indeed there would have been no reason for Bernstein to make a copy of the document before she learned there was an issue.) When Bernstein made her copy there were no modifications yet made to the sheet. Thus, rather than effecting the changes on June 11, the evidence establishes that the changes, including the increase in his time away from the office to reflect an amount of time ordinarily spent on a face-to-face assessment, were made by Grievant only after he became aware that his June 11 conduct was under management scrutiny. Such conduct by Grievant is consistent with an intentional effort to cover up, and belies Grievant s claim that he merely engaged in a series of repeated good-faith mistakes. Based upon the record as a whole, I find that Grievant was deliberately untruthful in his completion of the involved records, and as a consequence violated the Employer s rule against dishonesty. 6 CONCLUSION The Company has met its burden of showing just cause for terminating Grievant. 6 Much time and effort was spent at the hearing on the Employer s conduct toward the Union after the decision to terminate Grievant was made. Although the bargaining agreement may provide the Employer a legitimate argument that in certain contractually identified circumstances it need not fully inform the Union of the identity of the involved employee and its reasons for terminating a unit employee prior to the termination, principals of good labor relations would suggests that the Employer should readily share such information with the Union. Moreover, there would likely be no basis to withhold such information in the context of processing a matter through the parties agreed-upon grievance procedure. 22

23 American Arbitration Association Arbitration Pursuant to Agreement of the Parties Before Timothy J. Brown, Esquire In the matter of: Teamsters Union, Local No. 115 : : and : AAA Case No : County of Delaware Services : for the Aging : (Re: Manny Karalis Termination) AWARD The subject grievance is denied. Dated: December 11, 2004 Timothy J Brown, Esquire Arbitrator 23