Issue: Compliance-Hearing Decision; Ruling Date June 15, 2001; Ruling #2001-071; Agency: Department of Labor and Industry; Outcome: Hearing Officer out of Compliance; Hearing Decision Upheld on Other Grounds

In the matter of Department of Labor and Industry/ No. 2001-071

June 15, 2001

On behalf of the Department of Labor and Industry, the agency’s counsel has challenged the hearing officer’s decision in the above captioned grievance. Agency counsel claims that the hearing officer exceeded the scope of his authority by applying a double jeopardy analysis to the grievance procedure, and thus, his decision should be reversed and remanded for further proceedings.

For the reasons discussed below, this Department concludes that as a matter of compliance with the grievance procedure, the hearing officer’s application of the double jeopardy analysis was erroneous, and thus cannot serve as support for his reversal of the Group III Written Notice and termination. The hearing officer’s resolution of the grievance must stand, however, because it is supported by other uncontested factual findings cited in his decision. This Department’s rulings on matters of compliance are final and nonappealable.

The grievant is employed as a compliance officer with the Department of Labor and Industry. On November 2, 2000, the grievant received a Group II Written Notice, with one-day suspension, for alleged threatening behavior toward a co-worker. The grievant initiated a grievance challenging the Written Notice on November 17, 2000. On December 8, 2000, the grievant received a Group III Written Notice and termination for the same incident, and the original Group II Written Notice was rescinded (with back pay and benefits restored for the one-day suspension). The grievant then initiated a second grievance on December 12, challenging the issuance of the second Written Notice and termination.

On December 29, 2000, upon the parties’ mutual agreement and request, this Department permitted "the concerns raised and the evidence proffered" in the grievant’s November 17 grievance to be consolidated into the December 12 grievance and presented at hearing. Although the two grievances were allowed to proceed together to hearing, EDR’s ruling expressly stated that the rescinded Group II Written Notice and suspension underlying the first grievance were "not at issue."¹

The hearing officer conducted an administrative hearing on February 22, 2001 and rendered his decision on April 6, 2001. In his decision, the hearing officer concluded that the agency failed to prove by a preponderance of the evidence that the disciplinary action was warranted. Specifically, the hearing officer determined that (i) the Group III Written Notice was in violation of the Double Jeopardy rule, (ii) the Standards of Conduct had not been uniformly administered, (iii) the grievant did not confront or made statements to another employee in a threatening manner, and (iv) the agency had not complied with the Standards of Conduct. He ordered the removal of the Group III Written Notice and the grievant’s reinstatement.

By statute, this Department has been given the power to establish the grievance procedure, promulgate rules for conducting grievance hearings, and "[r]ender final decisions in all matters related to procedural compliance with the grievance procedure."² If the hearing officer’s exercise of authority is not in compliance with the grievance procedure, this Department does not award a decision in favor of a party; the sole remedy is that the action be correctly taken.³

Hearing officers are authorized to make "findings of fact as to the material issues in the case"⁴ and to determine the grievance based "on the material issues and grounds in the record for those findings."⁵ Further, "[i]n cases involving discipline, the hearing officer reviews the facts de novo to determine whether the cited actions constituted misconduct and whether there were mitigating circumstances to justify a reduction or removal of the disciplinary action. If misconduct is found but the hearing officer determines that the level of discipline administered was too severe, the hearing officer may reduce the discipline."⁶

Thus, in disciplinary actions the hearing officer has the authority to determine whether the agency has established by a preponderance of the evidence that the action taken was both warranted and appropriate under all the facts and circumstances.⁷ This Department does not substitute its judgment for that of the hearing officer regarding the weight of the evidence, the credibility of the witnesses, mitigating or aggravating factors, or any related factual findings, as long as the hearing officer’s decision is based upon the record evidence and the material issues in the case.

Agency counsel asserts that the hearing officer erred by using a double jeopardy analysis. This Department agrees. The double jeopardy doctrine, simply defined, is a prohibition against a second criminal prosecution after a first trial for the same offense. ⁸ The doctrine of double jeopardy therefore applies to criminal proceedings only, and is inapplicable to the Commonwealth’s grievance procedure.⁹ Indeed, the Employment Dispute Resolution Act recognizes management’s exclusive right to manage the operations of state government.¹⁰ Inherent in this authority is the right and responsibility to address, and to reconsider if deemed necessary, perceived employee problems through corrective measures and disciplinary actions, even during the management steps of the grievance process. ¹¹ Thus, upper management has the discretion to review the initial discipline and, as in this case, to increase the disciplinary action, as long as retaliation or other improper motives has not prompted the increased discipline.¹²

Notwithstanding the hearing officer’s erroneous application of the double jeopardy doctrine, his resolution of this case must stand, based on two other independent grounds for his decision: his findings that (i) the agency’s evidence was insufficient to support the charge set forth in the Group III Written Notice (i.e., the charge that the grievant had confronted the other employee in a threatening manner while motioning his hands to fight), and (ii) the agency had not uniformly administered the Standards of Conduct in this case among the employees involved in the incident. Such determinations – the weight of the evidence in support of the agency’s claims and the effect of mitigating factors -- are entirely within a hearing officer’s authority.

Neil A.G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant