Argued: October 9, 2013.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge.
PATRICIA A. McCULLOUGH, Judge.
Lancaster County (County) petitions for review of the May 15, 2012 final order of the Pennsylvania Labor Relations Board (PLRB) that dismissed the County's exceptions to the hearing examiner's decision and order, concluding that the County violated sections 1201(a)(1) and (3) of the Public Employe Relations Act (PERA) in terminating the employment of Tommy Epps and Adam Medina in retaliation for their union activities. Among other things, the County contends on appeal that the evidence was legally insufficient to support a finding that it had knowledge of Epps' and Medina's union activities or that anti-union animus was the motivating factor in its decision to terminate their employment. We reverse.
Facts and Procedural History
On October 7, 2010, the American Federation of State, County and Municipal Employees, District Council 89 (Union) filed a charge of unfair labor practices with the PLRB against County, alleging violations of sections 1201(a)(1) and (3) of PERA. A hearing ensued, at which the parties presented testimony and documentary evidence. The facts of this case, taken predominately from the hearing examiner's findings of fact and also uncontradicted evidence from the Union and the County, are as follows.
The County operates a Youth Intervention Center (Center) with a detention side for juveniles who have been adjudicated delinquent by a court and a shelter side for other juveniles. The juvenile residents on the detention side have been ordered there by a court for committing a variety of offenses, including theft, burglary, robbery, drug possession, assault, and motor vehicle theft. In the spring of 2010, the Union conducted an organizing drive to accrete into its existing prison guard unit the detention and security officers employed at the Center. (Findings of Fact (F.F.) Nos. 3-5.)
Medina worked in the detention side of the Center, on the third shift, from 11:00 p.m. to 7:00 a.m. Medina was involved in the Union's organizing effort, attending the Union meetings, recruiting other employees to attend meetings, and reporting back to third shift staff members. In May 2010, Medina told his supervisor, Fred Arnold, about his support for the Union. (F.F. Nos. 27, 39.) Specifically, Medina testified that he asked Arnold "what [Arnold] thought about the Union" and also what Arnold thought about what "[Medina] was doing about the Union[.]" (F.F. No. 39; N.T. at 61.)
Epps also worked in the detention side of the Center, on the second shift, from 7:00 a.m. to 3:00 p.m. (F.F. No. 28.) Epps was involved in the Union's organizing effort, talking to staff about how the Union could benefit them. Epps told his supervisor, William Delgado, that "the Union [was] coming" and that he had "talked to the Union representatives." (F.F. Nos. 28, 40; N.T. at 104.) On June 10, 2010, the Union filed a petition for representation with the PLRB. (F.F. No. 6.)
Evette Sepulveda works in the shelter side of the Center on the third shift. On June 20, 2010, Sepulveda complained to her supervisor, Christina Delgado (William Delgado's wife), that someone was taking snacks from her workplace mailbox. At the Center, each employee has an open mailbox with his or her name under it. Sepulveda said that items had been taken over the previous month, but the most recent time was Thursday or Friday. (F.F. Nos. 7-9, 12, 41.)
Christine Delgado initiated an investigation and reviewed surveillance video of the mailbox area with Arnold, the third shift detention supervisor. The video from Wednesday, June 16, and Thursday, June 17, shows three employees taking something out of Sepulveda's mailbox. Two of the employees were Medina and Epps, and the third was Latoya Boddy, a part-time employee. The video shows Medina taking a snack-size bag of chips, approximately six inches in size. The video also shows Epps taking a similar sized bag of cookies. (F.F. Nos. 13-14, 24, 41.)
Christina Delgado reported her video observations to the Center's Director, Drew Fredericks. In an e-mail dated June 21, 2010, Christina Delgado informed Fredericks that an examination of the surveillance video showed that Medina and Epps took snacks from Sepulveda's mailbox. At the end of the e-mail, Christina Delgado stated: "I don't know if there is anything we can do about this but I wanted to make you aware that this was going on." (County Ex. 1.)
On Monday, June 21, 2010, Fredericks called Sepulveda and asked her if she had given anyone permission to take snacks from her mailbox. Sepulveda stated that she only gave permission to Lavon Jackson and Damaris Veley. Fredericks instructed Sepulveda to write an unusual incident report. In her ensuing report, Sepulveda confirmed that only Jackson and Veley had permission to take snacks from her mailbox. (F.F. No. 15.)
Fredericks then reviewed the videotape and met with Medina and Epps. After Fredericks showed the videotape to Medina and Epps, Medina admitted that he had taken snacks from Sepulveda's mailbox. Epps admitted that he, too, had taken snacks out of Sepulveda's mailbox. However, Epps stated that he believed the snacks belonged to another employee, Leroy Kirkland, and that he thought Kirkland had given him permission to take the snacks. On June 21, 2010, Fredericks asked Sepulveda, Medina, and Epps to write reports about the incidents on June 16 and 17. (F.F. Nos. 16-17.)
In response, Medina wrote a report admitting that he removed a snack size bag of chips from Sepulveda's mailbox on June 16, but claimed that approximately one year ago, Sepulveda had given him permission to take food items from her mailbox. Epps also wrote a report, admitting that he took a snack bag of cookies from Kirkland's mailbox, who Epps believed had given him permission to take snacks from his mailbox. (F.F. Nos. 18-19.) After being contacted by Medina, Sepulveda issued her report, which stated:
On Monday, June 21, 2010, at about maybe 2:00 pm, I received a call from my co-worker, Adam Medina. [H]e asked me if I had said anything to my supervisor about missing food from my mailbox. I said, "Yes, why." Adam went on to tell me that he took chips from my mailbox and that he was sorry but he thought he could because of a conversation he said we had about 1 year ago. I told Adam I didn't remember but that he should have told me because I really wouldn't care if he wanted chips because I knew him and it wouldn't be a big deal. I told Adam this has been going on for a while, the missing food from my mailbox, Adam said that it had only been one or two times that he took chips from my mailbox. I then told Adam again that he should have told me he wanted them before taking it since I have been missing food …. I also told Adam if I would have known it was him, I wouldn't even care….
(F.F. No. 20; Union Ex. U-6) (emphasis added).
Fredericks also contacted Kirkland, and he submitted a written report stating that he authorized only two people to take items from his mailbox – Boddy and "Eva." (County Ex. C-21.) Following the reports, no one from the County asked Sepulveda if she specifically gave Medina permission to take snacks from her mailbox. (F.F. No. 21.)
Fredericks believed that termination was warranted, and he consulted with Andrea McCue, the County Human Resources Director, about the incidents and the appropriate discipline. The County's Center has a progressive discipline policy. The first step is corrective counseling; the second step is a verbal warning; the third step is a written warning; the fourth step is a one-day suspension; the fifth step is a three-day suspension; the sixth step is a five-day suspension; and the seventh step is termination. (F.F. Nos. 30, 32.) The progressive discipline policy also states that "[t]here are, however, violations of the rules or laws so severe as to render warning or progressive discipline futile. Immediate suspension or discharge is appropriate in these cases." (F.F. No. 31.) McCue concurred with Fredericks that termination was warranted from a human resources perspective. In making this determination, she relied on the County's "Guidelines for Determining Unacceptable Behavior, " which included "theft or damage/destruction of County or co-worker property" as one of 16 incidents of unacceptable behavior that could lead to disciplinary action under the County's disciplinary policy. (F.F. No. 33; N.T. at 241.)
On June 23, 2010, Fredericks issued notices to Medina, Epps, and Boddy, informing them that he was recommending that they be terminated immediately for taking items from Sepulveda's mailbox. (F.F. No. 22.) Each notice stated: "[T]he shear [sic] theft of another employee's personal property demonstrated this individual's total failure to achieve the basic expectations of a [Center] and County employee." (F.F. No. 23.) Fredericks believed that the taking of snacks, standing alone, was serious enough to justify immediate termination rather than progressive discipline because of the need for a youth care worker to be a "positive role model" for the juvenile residents of the Center. (F.F. No. 34.) As Fredericks explained:
[Fredericks]: Again, we work with residents that are detained, some of them, for theft charges, and we expect our staff members to come and be a role model for these residents.
It would be unacceptable and unprofessional to actually have people go on break and steal things from other employees and then go back in the unit and work with these residents and counsel these residents on some of their issues, you know, when some of them are – they're in there for theft.
(N.T. at 212-13.)
Medina's prior record contained two written reprimands, one for leaving a resident unattended and the other for failing to pay a five dollar fee to participate in a dress down day at work. Epps' prior record, accumulated over ten and one-half years of employment with the County, consisted of over twenty incidents, including at least one suspension. Fredericks reviewed Medina's prior disciplinary record before issuing the termination notice, but he did not consider it as a basis for his decision. Fredericks did not review Epps' disciplinary history prior to issuing the termination notice, stating that it had no bearing on his decision. Neither Medina nor Epps had been disciplined for theft before the mailbox incidents, and the County has never fired anyone else for taking something from an employee's mailbox. Prior to the incidents with Medina and Epps, Fredericks had received complaints from employees that personal items had been taken from their mailboxes, including a cell phone, but he did not investigate any of these allegations because no written complaints were filed by the employees or the employees never provided their supervisors with a specific time-frame in which the items were stolen. (F.F. Nos. 11, 29, 35-37; N.T. at 34-37, 43.) Fredericks stated that without a specific time-frame, the County would have to "pursue video for days on end, " which is something that he believed was not feasible. (N.T. at 36.)
On June 24, 2010, the day after Medina was terminated, a co-worker, Allison Buckwalter, informed Fredericks that she was present during a phone call between Medina and Sepulveda and "understood" from Medina's "side of the conversation" that Medina had permission from Sepulveda to take snacks from her mailbox. (Union Ex. 7.) Buckwalter stated that she could "only give … a general time that this conversation took place, " namely when Medina was on "light duty" status working with her. Id. Significantly, Buckwalter was "not able to say whether [Sepulveda's] permission was for any time or just that day." Id. However, Buckwalter "would be willing to say that … it is very possible that [Sepulveda] does not remember saying anything." Buckwalter told Fredericks that she was "pretty sure" Medina was going to file an appeal, and asked him if he would like her to file a written report. Fredericks responded that the County "already [had] all of the documentation from all individuals involved." Id.
Thereafter, Medina and Epps went through a grievance and appeals procedure for employees who are not covered by collective bargaining agreements. The first step in the grievance process occurred before the immediate supervisor; the second step was an appeal to Fredericks; the third step was an appeal and hearing before McCue; and the final step was an appeal to a panel of County officials from other departments. (F.F. Nos. 43-45.) During the grievance process, Medina and Epps were provided with the opportunity to present evidence and make arguments as to what they thought was the appropriate level of discipline. (County Ex. C-3 - C-7, C-10 - C-14.) The other discharged employee, Boddy, did not appeal her termination because she was a part-time employee and the grievance appeal procedure does not cover part-time employees. Ultimately, Medina's and Epps' appeals were denied and they were terminated from their employment with the County. (F.F. Nos. 43-45.)
Based upon his factual findings and apparent credibility determinations, the hearing examiner determined that the County violated section 1201(a)(3). The hearing examiner stated that to prevail on such a charge, it was the Union's burden to prove three elements: (1) Medina and Epps were engaged in protected activity; (2) the County was aware of the protected activity; and (3) the adverse employment action, termination, would ...