County and City Employee
WASHINGTON STATE COUNCIL OF COUNTY AND CITY EMPLOYEES  -  AFSCME AFL-CIO  - COUNCIL 2
County and City Employees
WASHINGTON STATE COUNCIL OF COUNTY AND CITY EMPLOYEES - COUNCIL 2 - AFSCME AFL-CIO
...

Employee, fired over corrected test paper, is reinstated

by County and City Employee staff on September 17, 2012

 It all began when an employee for the Spokane County Roads Department took home his answer sheet from a flagger class administered by a county instructor. The sheet contained the corrected answers.

The employee, a member of Council 2, did so accidentally, he said, bundling it with his class materials and a magazine he had brought to the class.

When the road-crew member realized his mistake, he called the instructor and apologized. He returned the answer sheet the next day.

But the instructor was not impressed. He alerted the County Engineer, who issued a Loudermill notice the next day that said he was considering terminating the employee, who had been told not to remove the test results from the testing room.

These actions were “insubordinate to the instructions that were given to you and fraudulent in nature,” the County Engineer told the employee.

Three weeks later, the employee was issued a termination letter that said, in part, that the employee’s actions could result in the testing agency seeking reimbursement for developing a new test.

Council 2 filed a grievance against Spokane County on the employee’s behalf. After the two parties were unable to resolve the dispute, a hearing was held before Arbitrator M. Zane Lumbley.

The county contended in the hearing that the employee knew he could not remove the test from the classroom or modify it, but did so anyway, thus engaging in theft and conversion of county property. The choice of termination, the county officials argued, was appropriate.

Council 2, represented by General Counsel Audrey Eide, argued that the termination lacked just cause. The county did not show what personal gain the employee derived from taking the test answers home, nor did the county investigate that he had committed a disciplinable infraction.

All the other seven employees who had taken the test that day said the instructor had failed to tell  them that the score sheet was not to leave the room. 

Lumbley ruled that there was not just cause to terminate the employee.

“I find this to be an appalling case,” he said.

“In the first place, while it is undisputed that the grievant took the flagger test results home and later modified them, assertedly to show his wife how smart he was after changing the results to reveal a perfect score, there is absolutely no evidence to show he removed the sheet intentionally.”

He said he did not find the instructor credible. He accepted that the county was concerned about the integrity of the test and its value to the organization that drew it up.

“But it appears that the instructor “threw the grievant under the bus” to save his license to administer examinations because he feared he had been lax in his stewardship of the results, Lumbley said.

“As a result, I do not believe it can be said the grievant was on notice of a rule and then knowingly violated it,” he said.

Lumbley added that the reason he called the case “appalling” was that it resulted from the failure of the county to investigate the situation before terminating the grievant.

“Had the employer done so, among other things, it would have learned, just as I did at the hearing, that the overwhelming weight of the evidence demonstrates that the instructor did not state a hard rule about leaving the test results in the room.

“That failure to properly investigate before taking disciplinary action exhibits a disregard for the disciplinary process in general and the requirement for due process in particular...

“The employer must perform a fair and unbiased investigation before deciding whether to institute discipline at any level. It did not do so here. Instead, it abused its discretion by leaping to the conclusion that the grievant was aware of and must have violated an announced rule based entirely on the self-serving accusations of the instructor.”

Lumbley rescinded the termination and directed that the employee be reinstated and made whole.

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