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IN THE MATTER OF ARBITRATION BETWEEN

AFSCME Council 5 ) Opinion and Award ) Grievance Arbitration -and- ) Unpaid Suspension ) Minnesota Judicial Branch Anoka County, Minnesota ) ) ) Arbitrator: ) James A. Laumeyer ) BMS Case No. 17PA0367

Date and Place of Hearing— April 25, 2017 – Minnesota Bureau of Mediation Services Offices

St Paul, Minnesota

Date of Receipt of Post Hearing— May 26, 2017 - Briefs

Date of Award—

June 19, 2017

APPEARANCES

Minnesota Judicial Branch For AFSCME Council 5

Jessi Bienfang, Labor and Employee Relations Kurt Erickson, Field Representative, AFSCME Program Manager Council 5 Patrick Busch, Staff Attorney Sabrina Becker, Chief Steward/Secretary, Lori Meyer, Anoka County Court Administrator AFSCME Local 3688 Marianne Setala, Court Operations Manager Jillian Kealy, Grievant Susan Segerstom, Chief Deputy Court Administrator Mike Moriarity, Tenth Judicial District Administrator Kristine Lancaster, Tenth Judicial District Human Resources Manager

STATEMENT OF JURISDICTION

Pursuant to the Public Employee Labor Relations Act, as amended, and Article XII – Grievance Procedure of the Agreement between the Parties, the Issue as stipulated by the Parties and stated below was submitted to arbitration. The Arbitrator, selected by the Parties from a list provided by the Minnesota Bureau of Mediation Services, was James A. Laumeyer. The Hearing was convened at 10:00 AM on April 25, 2017 in the Minnesota Bureau of Mediation Services Offices in St Paul MN. Each of the Parties presented testimony under Oath, was afforded full opportunity for examination and cross-examination of witnesses and submitted exhibits in support of

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their respective positions. The Parties elected to submit post-hearing briefs, such were duly received and the Hearing was declared closed on May 26, 2017.

THE ISSUE

Whether the employer had just cause to discipline the Grievant with a one-day unpaid

suspension. If not, what shall be the remedy?

BACKGROUND

The employer is a County District Court that processes filings for civil, criminal, traffic, family,

probate, and juvenile matters in Anoka County. The Union, AFSCME Council 5 represents county

employees to include court clerks.

Grievant Jillian Kealy is accused of behaving in a rude and unprofessional way to court staff and

clients, violating Minnesota Judicial Branch Policy 318—Court Employee of Code of Ethics, Article V.

Performance of Duties, which resulted in a one-day unpaid suspension. Kealy is a senior court clerk at

the Minnesota Judicial Branch—assigned to Anoka County Courts—who is responsible for handling

notices, sentencing, preparing clerk minutes, scheduling court activities, and working with a variety of

court staff and clients. She has worked with the Minnesota Judicial Branch at Anoka since the spring of

2012, and at the time of her discipline, worked mainly with Judge Hall.

In June 2016, the managing attorney for the Anoka county Public Defender’s office expressed

concerns for his office regarding the behavior of the Grievant in the courtroom, which was described as

unprofessional, disrespectful and inappropriate. The Employer responded with interviews, followed by

an investigation conducted by the Court Administrator. Prior to the investigation, the Grievant was

placed on Administrative leave. The Findings of the investigation stated in the July 20. 2016 suspension

notification letter (Exh #14) are as follows:

“1. Failure to carry out your responsibilities to the public in an impartial and courteous manner

and exceeded the authority of your position by publically admonishing litigants and attorneys

regarding their timeliness, making decisions beyond the scope of your position and instructing

attorneys when they can and cannot leave the courtroom.”

“2. Conducted yourself in a way that would reflect adversely on your positon and the court in

your communication with co-workers, justice partners and litigants.”

At genesis in this dispute is whether the employer had just cause to discipline the Grievant with

a one-day unpaid suspension for the reasons given. In addition to the disciplinary suspension, the

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Grievant was reassigned duties outside of the courtroom. Accordingly, the Union filed the following

grievance:

Statement of Grievance There is no just cause to discipline Grievant, or transfer her out of courtroom services.

Remedy

Remove the Grievant’s suspension and make the Grievant whole.

The Employer consistently denied the position and the request on the basis that the Grievant

received the appropriate disciplinary action based upon the AFSCME Labor Agreement 2015-2017.

Therefore, given the parties were unable to resolve the dispute and stipulate to an absence of

procedural deficiency, the matter was reduced to writing in accordance with Article 18 – Grievance

Procedure of the Agreement between the Parties and appealed to Arbitration.

PERTINENT PROVISIONS

A—Minnesota Judicial Branch Policy (excerpted and emphasis added) I. POLICY STATEMENT Ethical, courteous, and respectful conduct by court employees is critical to the administration of justice and the public perception of the integrity of the Judicial Branch. A Code of Ethics for court employees in addition to law and other court policies and guidelines will assist court employees in understanding judicial branch ethical expectations. The conduct of judicial officers is governed by the Code of Judicial Conduct. ARTICLE V. Performance of Duties A. Employees should carry out their responsibilities to the public in a timely, impartial, diligent, and courteous manner, strictly adhering to the principles embodies in this code. B. Employees shall create and maintain a respectful workplace. Intimidating, hostile, or offensive conduct will not be tolerated and will be subject to disciplinary action. C. Employees shall not discriminate on the basis of, nor manifest by words, conduct, a bias or prejudice based upon race, color, religion, national origin, gender, or other groups protected by law, in the conduct of service to the court and public. See link to: Judicial Branch Policy Against Discrimination and Harassment B—AFSCME Labor Agreement 2015-2017 (excerpted and emphasis added) ARTICLE 4 MANAGEMENT RIGHTS Section 1 General It is recognized that, except as expressly modified by this Agreement, the Employer retains all inherent managerial rights necessary to operate and direct the affairs of the Employer, and its District Courts and Judicial Districts, in all its various aspects.

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These rights include but are not limited to the right to determine policy, functions and programs, determine and establish budgets, utilize technology, relieve employees due to lack of work or other legitimate reasons, determine the methods, means, organization and number of persons by which such operations and services are to be conducted, and select and direct personnel. ARTICLE 7 WORK RULES Section 1 Work Rules and Policies The Employer and/or its designees may establish and enforce reasonable work rules and policies that are not in conflict with the provisions of this Agreement. Such rules and policies shall be applied and enforced without discrimination. The Employer shall notify the Union Presidents and Exclusive representatives regarding changes in new or amended work rules and Human Resource policies that apply to Bargaining Unit Employees prior to the Employer placing them in effect. Work rules and policies will be labeled as new or amended and shall be communicated via email or provided in written format at staff meetings as far in advance of their effective date as possible. ARTICLE 17 DISCIPLINE, DISCHARGE AND RESIGNATION Section 1 Purpose Disciplinary action may be imposed upon an employee who has attained permanent status only for just cause. Section 3 Disciplinary Procedure Discipline is intended to be corrective; not punitive. This process is intended to ensure employees understand the Employer’s expectations, standards, and rules, and are aware of the consequences of unimproved conduct or performance. Disciplinary action shall include only the following forms and depending upon the seriousness of the offense shall normally be administered progressively in the following order: 1) Oral reprimand 2) Written reprimand 3) Suspension 4) Demotion 5) Discharge Section 4 Investigatory Leave The Employer or its designee may place an employee who is the subject of a disciplinary investigation on an investigatory leave with pay provided a reasonable basis exits to warrant such leave. Section 6 Appeal Procedures Any disciplinary action imposed upon an employee may be processed as a grievance through the regular grievance procedure as provided in this Agreement except that oral reprimands are able to be appealed only through Step 2 of the grievance procedure. The Union reserves the right to initiate a grievance at Step 2 of the grievance procedure for all disciplinary action other than a written or oral reprimand. Upon mutual agreement of the parties, a grievance may be initiated at Step 3. ARTICLE 18 GRIEVANCE PROCEDURE Section 1 Grievance Procedure A grievance is defined as a dispute or disagreement as to the interpretation or application of any term or terms of this Agreement. Beginning at Step 2, a grievance must be in writing and shall state the nature of the grievance, the condition(s) of employment allegedly violated, the Articles of the Agreement allegedly violated, and the remedy sought.

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Section 3 Arbitration Except as indicated in Section 4 below, all arbitrations arising under the Agreement shall be conducted by an arbitrator to be selected by mutual agreement of the Employer and the Union. If the parties fail to mutually agree upon the arbitrator, the moving party shall request a list of seven arbitrators from the Minnesota Bureau of Mediation Services. Both the Employer and the Union shall have the right to strike three names from the list. A coin shall be flipped to determine which party shall strike the first name. The other party shall then strike one name and the process shall be repeated, and the remaining person shall be the arbitrator. Section 5 Arbitrator’s Authority The arbitrator shall have no right to amend, modify, nullify, or ignore, add to or subtract from the provisions of this Agreement. He/she shall consider and decided only the specific issue(s) submitted to him/her in writing by the parties to the Agreement, and shall have no authority to make a decision on any other matter not so submitted to him/her. The arbitrator shall be without power to make decisions contrary to, on consistent with or modifying or varying in any way the application of laws, rules or regulations having the force and effect of laws. The decision shall be based solely upon the arbitrator’s interpretation and application of the expressed terms of this Agreement and the facts presented.

POSITION OF THE PARTIES

THE EMPLOYER The Minnesota Judicial Branch – Anoka County

1) The Grievant was disciplined for just cause.

2) The Grievant was disciplined for violation of Article V of the Employee Code of Ethics, which

states that “ethical, courteous and respectful conduct by court employees is crucial to the

administration of justice.” Article V further states the following:

“Employees should carry out their responsibilities to the public in a timely, impartial,

diligent and courteous manner.”

“Intimidating, hostile or offensive conduct will not be tolerated and will be subject to

disciplinary action.”

“Employees…should not exceed that authority.”

“Avoid any activity that would reflect adversely on their position in court.”

3) The Employee Code of Ethics makes it very clear that violations will lead to discipline.

4) Court Operations Manager testified that she and the supervisor had coaching sessions from

2014 through 2016 that were intended to address the Grievant’s persistent issues with

unprofessional conduct, going above and beyond the scope of her duties, getting involved in

situations she didn’t need to, and exhibiting rude and unprofessional behavior. After the

coaching sessions, all staff members were required to acknowledge that they had read the Code

of Ethics. In one coaching session, the supervisor had to ask the Grievant twice to lower her

voice and followed up by a letter stating that “similar conduct or behavior…result in discipline.”

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5) The Grievant’s performance evaluations stated the following:

“there are situations where she is unaware of her audience and occasionally has to be

reminded of this; she is becoming more cognizant of the situations.” (2015)

“this year has required numerous coaching sessions regarding how her actions can be

perceived by others and how this could affect her future and current interactions with

others in the office.” (2016)

“For a period of time she has become easily frustrated and visibly upset when there

were changes that she was not expecting; management and she discussed the issue.”

“There have been times when she has not fully embodied the team player.

Management encouraged her to maintain positive interactions and respect all

employees in the office, regardless of the situation.”

There have been times in the last year that she carried herself in a slightly adversarial

manner which created an uncongenial atmosphere while in the courtroom.

The Grievant was assigned developmental courses specifically to help develop her

cultural sensitivity while interacting with court customers living in poverty or with

mental issues.

In May 2016, the Grievant had the following written reminder: “expectation that

communications must always be respectful with court staff and stakeholders.”

6) These controlling standards are reasonably related to efficient and safe operations. These

behaviors are important for court employees to be professional in all that they do in order to

preserve the appearance and impartiality and fairness in the court system. ( County

Administrator testimony)

7) The Grievant acknowledged that she understood that she needed to treat people respectfully in

the courtroom so they would trust that they were being treated fairly.

8) Arbitrators have recognized that “the workplace in this case is formal by definition: clear

communications are essential and internal relationships between stakeholders must be

respectful (BMS11PA921 Jensen).

9) The allegations were thoroughly investigated before discipline. The Court Administrator

interviewed eight attorneys and three others, in addition to reviewing e-mails and speaking with

ten people and receiving written documentation from another.

10) The investigation was fair and objective. The court administrator report is carefully written and

describes the allegations of misconduct in objective detail.

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11) The managing attorney who brought the complaints forward was complimentary and concluded

“all of us have bad days, but in this case, I see it as ongoing and pervasive.”

12) The investigation report listed 16 incidents of inappropriate behavior.

13) The Employer’s involvement was even-handed and non-discriminatory.

14) The disciplinary action was reasonable in light of the Grievant’s record and the gravity of her

offense.

15) The Grievant received numerous warnings, but failed to change her unacceptable behavior.

16) The Employer requested that the Grievant be denied in its entirety.

THE UNION AFSCME Council 5

1) The Employer did not have just cause to suspend the Grievant.

2) The Employer did not bear the burden of proof.

3) Many of the reports of offensive conversations came not from the participants, but from ease

droppers as hearsay evidence.

4) Many of the reports lack specific detail.

5) The facts underlying several of the complaints are wrong, or plainly implausible, given the

physical to procedural nature of the conversation.

6) Issues attributed to the Grievant’s communication style and attitude stem from her

responsibility to follow rules regarding court procedures set forth by her judge.

7) The record has shown that there is no just cause for discipline or transfer out courtroom

services.

8) Many of the complaints are very old and not addressed at the time.

9) The complaints are second-hand through a supervisor who did not testify.

10) The Grievant did request the assignment of different deputies who would pay attention and

keep the courtroom safe.

11) Much of the frustration expressed resulted from the Grievant’s application of the rules set by a

strict judge.

12) Much of the evidence used against the Grievant is based on inaccurate or incredible facts.

13) The Employer offered no specifics on when, where or with whom any of these incidents

occurred. The lack of specifics makes it impossible for the Grievant to offer a specific defense.

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14) The Court Administrator testified that the Employer received these complaints in July 2016,

while most of the alleged improprieties occurred early in the previous fall.

15) Sergeant Hunt waited nine months to raise concerns.

16) Because coaching statements are non-disciplinary, they are not subject to the grievance

procedures to the test of just cause.

17) For all but one of the incidents that were subject of coaching, the Grievant either denies or

offered reasonable explanations.

18) In regard to the incidents of an emotional reaction with her supervisor, the Grievant did attempt

to remove herself to deescalate the situation, but the suspension followed her.

19) The Grievant is an awarded employee. She has received the SPOT award of a letter from a judge

regarding teamwork and contribution of handling a busy day in his courtroom.

20) The Employer’s investigation failed to seek testimony from a variety of potential witnesses and

participants in the discussions.

21) It appears that a complaint from an attorney, regardless of the merit, was all they needed to

discipline the Grievant.

22) The Employer needs more than a simple complaint from a frustrated lawyer; it needs hard facts

to support discipline. The record in this case is about these facts. The Grievant deserves better.

23) The Grievant is an intelligent, hard-working, competent court clerk—a fact recognized by a

variety of court staff, including her supervisor and the managing attorney.

24) The Union requests that the grievance be sustained and that the Grievant be made whole in all

ways, including returning her to her former courtroom assignment.

OPINION, ANALYSIS AND AWARD

On the basis of the evidence presented, the decision of the arbitrator is to deny the grievance of the

Union for the following reasons:

1) Initially, the Arbitrator can readily empathize with the mutual concerns and apparent

frustration inherent in the disparate positions of the Parties when confronted with the emotion-laden

matter of the disciplinary suspension of a court clerk for alleged unprofessional conduct in the

courtroom that necessitated these proceedings. Therefore, the Award shall not be interpreted as

reflecting upon the integrity of the principals given the behavior of each exhibited at the Hearing could

be characterized as an open, reserved, and sincere attempt to provide convincing argumentation

supportive of their positions. Nevertheless, the Award was predicated upon well documented standards

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of contract interpretation and just cause, recognized by both the principals in a dispute and neutrals

alike.

2) The alleged misconduct by the Grievant is the violation of Article V Exhibit 15 of the Employer’s

Employee Code of Ethics provided below. (excerpted and emphasis added)

I. POLICY STATEMENT

Ethical, courteous, and respectful conduct by court employees is critical to the administration of justice and the public perception of the integrity of the Judicial Branch. A Code of Ethics for court employees in addition to law and other court policies ad guidelines will assist court employees in understanding the judicial branch ethical expectations. The conduct of judicial officer is governed by the Code of Judicial Conduct. Article V. Performance of Duties A. Employees should carry out their responsibilities to the public in a timely, impartial, diligent, and courteous manner, strictly adhering to the principles embodied in this code. B. Employees shall create and maintain a respectful workplace. Intimidating, hostile, or offensive conduct will not be tolerated and will be subject to the disciplinary action. C. Employees shall not discriminate on the basis of, nor manifest by words or conduct, a bias or prejudice based upon race, color, religion, national origin, gender, or other groups protected by law, in the conduct of service to the court and public. See link to: Judicial Branch Policy against Discrimination and Harassment

3) At the Hearing, all parties recognized that professional conduct by court employees was

essential to the administration of justice and the public perception of the integrity of the courts. In this

regard, court employees are held to the highest standards of professional behavior while in the

courtroom. This finding is consistent with those provided by Arbitrators Jensen and Latimer:

As one arbitrator put it, in upholding the termination of a court employee for repeated instances of inappropriate behavior: “The worksite in this case is formal by definition: clear communications are essential, and interrelationships between stakeholders must be respectful.” BMS No. 11PA0921, p. 22 (Jensen, March 21, 2012). Another Arbitrator recently described in detail the unique importance of ethical, courteous behavior by employees of a court of law: The workplace at the center of this dispute is fundamentally unlike others. In other workplaces, whether a factory floor, a business office, or shopping center, employers establish rules and policies to assure a respectful environment for its employees and customers. In a court of law, however, those rules and policies are driven by a historical mission, which has evolved over hundreds of years. In this country, that mission was embraced in the Constitution which established an independent Judiciary. States, including the State of Minnesota have adopted that principle. The symbols of that independence abound. The goddess of justice is blindfolded to tell al who come seeking justice that they will not be judged by their color, status, or origin. The policies and rules in every courtroom put these symbols into practice. Witnesses take an oath to tell the truth. Order and decorum are required. The Judges wear robes. In a secular society, Courts of Law give people hope—they function as a sacred place. The rules and policies of the Minnesota Judicial Branch are written in plain language to instruct its employees that they share in the duty to assure that every person who enters the courtroom can depend upon equal justice under the law. BMS No. 17PA0032, pp. 37-38 (Latimer, April 28, 2017).

4) The Record indicates that the crux of the matter premised upon the complaints of 11 individuals

(primarily attorneys) who stated 17 incidents of inappropriate conduct by the Grievant in the

courtroom. Those who complained were identified and summarized in the investigation by the County

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Administrator, and none of those who complained testified at the Hearing. The Union has emphatically

and accurately characterized this evidence as second hand hearsay. While hearsay is not “best

evidence,” arbitrators often consider hearsay as evidence that may be a basis for influence and/or

control. Upon review and contemplation this Arbitrator finds the hearsay evidence as “worthy” and

appropriate for consideration in this matter. This finding is similar to these of the U.S. Court of Appeals

(11th Circuit), Elkouri & Elkouri.

Hearsay is admissible in administrative hearings and may constitute substantial evidence if found reliable and credible. Williams v. U.S. Dep’t of Transp., 781 F.2d 1573, 1578 n.7 (11th Circ. 1986). We have identified several factors that demonstrate hearsay’s probative value and reliability for purposes of its admissibility in an administrative proceeding: whether (1) the out-of-court declarant was not biased and had no interest in the result of the case; (2) the opposing party could have obtained the information contained in the hearsay before the hearing can could have subpoenaed the declarant: (3) the information was not inconsistent on its face; and (4) the information has been recognized by courts as inherently reliable. See U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264, 270 (5th Cir. 1979) (citing Richardson v. Perales, 402 U.S. 389, 402-06, 91 S.Ct. 1420, 1428-30, 28 L.Ed.2d 842 (1971) 1 Hearsay statements from identified people are frequently admitted into evidence in arbitration proceedings. This is because arbitrators are well-suited to “determine the testimonial trustworthiness of the hearsay in question, and whether, in the absence of the ability to cross-examine the declarant, the opposing party has a fair opportunity and means to counter the testimony in an appropriate fashion.” ELKOURI & ELKOURI, HOW ARBITRATION WORKS Ch. 8.4.A-8.4.C., pp. 8-29, 8-33 (Kenneth May ed., 8th ed. 2016)…Customer complaints have been allowed into evidence, even though the customers may not testify in person. For example, in Nassau Inter-County Express, 131 LA 28 (Horn, 2012), the arbitrator considered customer complaints from passengers on a bus about the driver’s offensive comments, although the passengers did not testify at the hearing. In Caesars Palace Hotel & Casino, 132 LA 786 (Riker, 2013), the arbitrator considered complaints from restaurant customers about a server’s conduct, although the customers did not testify at the hearing. And in Veolia Transportation, 132 LA 1423 (Crider, 2015), the arbitrator considered a customer complaint that a streetcar driver was rude, even though the customer was not called to testify. As the arbitrator put it, “[c]redible complaints from customers can serve as competent evidence in arbitration without the customer having to be present at the hearing.” Id. At 1426.

5) A presumptive factor in this matter was the Arbitrator finding that the Grievant has displayed a

clear and persistent pattern of behavior that is consistent with the allegations and the charges of

unprofessional and disrespectful, inappropriate behavior in the courtroom. This finding was premised

upon the following cogent conclusions: First, the Record is clear and consistent in characterizing the

Grievant as an intelligent skilled employee who has made significant contribution to the court system.

Her actions and commitment in the establishment of the Veterans Court is a significant and lasting

accomplishment for the judicial system. Second, the Record also documents a compelling pattern of

unprofessional and inappropriate behavior, which has violated the Code of Conduct as contended by the

Employer and the basis for just cause for the one day suspension. These persuasive conclusions from the

Record compel the finding of this pattern and reject the Union’s position. Third, the Grievant’s pattern

35 J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 19 OSH Cases 1241 (11th Cir)

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was recusant, despite numerous coaching sessions which included training sessions in attempt to

change her behavior.

6) Given the nature of the evidence and the clear and persistent repudiation of the Grievant,

determination of credibility is paramount in this opinion and award. This finding is reminiscent of the

comments of Arbitrator R.W. Fleming decades earlier.

As Arbitrator R. W. Fleming aptly observed: “Arbitrators are not equipped with any special divining rod which enables them to know who is telling the truth and who is not where a conflict in testimony develops. They can only do what the courts have done in similar circumstances for centuries. A judgment must finally be made, and there is a possibility that that judgment when made is wrong.” 2

The respected standards for assessment and determination of credibility are those of Clair V. Duff. Arbitrator Clair V. Duff, in turn, has offered some considerations relevant in evaluating testimony: INTEREST. While having an interest or stake in the outcome does not disqualify a witness, it renders his testimony subject to most careful scrutiny. Few witnesses will deliberately falsify but there is common tendency to “put our best foot forward.” This tendency, either consciously or subconsciously, leads many witnesses to remember and express testimony in a way favorable to the result which they hope the Hearing will produce. PERCEPTION. Frequently the initial observation is faulty or incomplete because the observer has no prior knowledge that a dispute will develop concerning the observer has no prior knowledge that a dispute will develop concerning what he has seen or heard and his casual sensory impression is not sharp and keen. MEMORY. The remembrance of an event weeks or months after it occurred is frequently dim and inaccurate and a witness may be confused as to facts which initially he correctly perceived. By lapse of time precise details may elude his memory. COMMUNICATION. The manner in which a witness expresses what he saw and heard may fail to communicate exactly his initial perception of the occurrence, so that after listening to the testimony and the cross-examination of the witnesses, the fact-finder may not have had transmitted to him a completely accurate impression of the facts, even though they were initially observed carefully and well remembered by the witness.3

The Arbitrator found the following conclusions compelling in the determination of the credibility

in this matter: First, The investigation was found to be thorough, professional and effective. Second, the

Record is absent of evidence or rationale for motive of any or all of these professionals who work in the

courts to give false accounts. The Grievant has offered denials or explanations for each of the incidents.

It is only the Grievant who potentially has a motive to give an inaccurate account of her conduct. Given

the significant number of complainants, the consistent and consensus nature of the alleged misconduct,

and the apparent credibility of those who came forward, the Arbitrator is compelled to conclude that

while every incident may not be verifiable, the weight of the evidence documents a pattern of behaviors

of the Grievant that has violated the Code of Ethics and is basis for discipline.

2 Billingsley, Inc., 48 LA 802, 807 (1967), where he added, however, that “nothing in either of these relationships to a matter in arbitration can be taken to mean there is any presumption any witness will lie.” 3 Smith Renn ail Co 29 LA 718-720 1957

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A convincing example of the nature of the Grievant’s behaviors is the following statement of an

attorney in the investigation:

Attorney Goodrich was interviewed by Lori Mayer on July 21, 2016. Attorney Goodrich indicates “It would not surprise me at all” that attorney Bakke would report that Jill rolled her eyes and asked him in a condescending tone why he would want a continuance. He says Jill is “very animated.” Attorney Good rich indicates that it’s obvious that Jill has “favorites” so she treats some attorneys differently than others. He said because “I’m older” I don’t have the same interactions with her as the younger attorneys. He said she (Jill) “does not kid around with me much.” (Exhibit 12)

In addition to the investigation, the Arbitrator considered other exhibits in determining the

pattern of behavior while acknowledging the position of the Union that the coaching sessions and

comments from performance reviews should not be considered in disciplinary decisions. The Arbitrator

has found some influence in the documentation given that the nature of the conduct identified is

supportive of the recognition of the pattern of misconduct at issue in the matter. Some of the significant

and relevant comments from the Grievant’s coaching sessions and performance reviews are as follows:

Exhibit 14—(excerpts and emphasis added)

7/21/15—Jill was coached regarding an incident that took place on 7/20/15 between Jill and Katrese where Jill had yelled and sworn at her supervisor both in Katrese’s office and at her own cubicle. A staff person reported the incident to Marianne on 7/21/15 upon Marianne’s return to the office. Jill was instructed that morning that her behavior was inappropriate, unprofessional, made those in the office who witnesses it uncomfortable and would not be tolerated in the office. During the session, Jill had to be told by Marianne to lower her voice twice and calm down. A follow up letter was sent to till on 7/24/15 documenting the coaching session and putting her on notice that any further conduct of that sort would result in formal discipline in the future. 5/4/16—Jill was coached regarding the use of appropriate language/tone after a complaint was issued from a co-worker. 8/3/16—Hi Jill, I wanted to recapture in writing the Workplace Expectations that were addressed in the coaching session on Monday, August 1, 2016, to ensure that you understand what is expected of you going forward and to make sure we are all on the same page.

The senior court clerk should maintain a serious, professional attitude toward work with in the courtroom setting.

The senior court clerk should remain absolutely impartial and shall neither by word or action indicate that any party is favored in litigation. This applied within the court setting and also outside the courtroom when engaged in conversation with non-court personnel and stakeholders. It is imperative to remain impartial and totally neutral, in word or action, to all parties within the court setting, particularly with attorneys.

The senior court clerk is a representative of the Judicial Branch of government, an extension of the judge and one of the most visible persons in the Court Administrative team. The attitude, actions and appearance of the senior court clerk reflect the stability, professionalism and respect the court system maintains within the community. You will display actions becoming of a court employee to promote harmony and respect within our working environment.

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Exhibit 25 Performance Reviews—(excerpts and emphasis added) Title: Professionalism in the work place Jillian will focus on providing a respectful and inclusive environment for all within the Courthouse she interacts with. In order to assist Jillian towards this goal she will complete the following skillsoft sessions and discuss with her direct supervisor: “Coping with Accusations in the Workplace,” “Managing Conflict,” and “Working for Your Inner Boss”… On the opposite side of the spectrum, there have been times in the last year that she has carried herself in a slightly adversarial manner, which has created an uncongenial atmosphere while in the courtroom. Jillian can focus on the internal impact of the processes at times and is not able to see how the larger picture influences customer and stakeholder needs.

7) The Arbitrator found that the one day suspension was an appropriate discipline for the following reasons:

The violations of the Code of Conduct in the courtroom do constitute a serious infraction.

The progressive discipline process of the Collective Bargaining Agreement (CBA) provides

“disciplinary action shall include only the following forms and depending upon the seriousness

of the offense.”

Exhibit 24 page 102 documents the Employer’s imposition—a disciplinary suspension for similar

misconduct on four occasions since 2010.

Having found the Grievant’s misconduct and pattern of behavior deserving of discipline, the

Arbitrator will not substitute her judgement for that off the Employer consistent with the

predicated finding of Arbitrator Whitley P. McCoy a decade earlier:

Where an employee has violated a rule or engaged in conduct meriting disciplinary action, it is primarily the function of management to decide upon the proper penalty. If management acts in good faith upon a fair investigation and fixes a penalty not inconsistent with that imposed in other like cases, an arbitrator should not disturb it. The mere fact that management has imposed a somewhat different penalty or a somewhat more severe penalty than the arbitrator would have, if he had had the decision to make originally, is no justification for changing it. The minds of equally reasonable men differ. A consideration which would weigh heavily with one man will seem of less importance to another. If an arbitrator could substitute his judgment and discretion honestly exercised by management, then the functions of management would have been abdicated, and unions would take every case to arbitration. The result would be as intolerable tot employees as to management. The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary actions are proved—in other words, where there has been abuse of discretion. 4 Under an agreement requiring just cause, Arbitrator Wilber C. Bothwell held that “the arbitrator should not substitute his judgment

8) The Union has included the reassignment of the Grievant back to the courtroom in their

requested relief. The issuance of this award makes that request moot. However, in review of the

demonstrated pattern and clear and consistent violations of the Employee Court Code of Ethics, the

4 Stockham Pipe Fittings Co. , 1 LA 160, 162 ( 1945), where the submissions specifically empowered the arbitrator to determine “what disposition” should be made of the dispute

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Arbitrator finds the removal of the Grievant from the courtroom as responsible and appropriate, and

would not have directed her reassignment to the courtroom. The Arbitrator prefers to leave to

conjecture whether the Grievant’s demonstrated pattern of inappropriate behavior in the courtroom

would remain recusant in the future.

Therefore, on the basis of the analysis and conclusions above, the Arbitrator is compelled to

render the Award.

AWARD

The decision of the Arbitrator is to deny the grievance of the Union in its entirety.

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JAMES A. LAUMEYER, ARBITRATOR

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DATE OF AWARD

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DATE