[nfbmi-talk] boone arbitration decision
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For those who have difficulty with the internet or pdf documents here is the arbitration ruling:
American Arbitration Association
Voluntary Labor Arbitration
In the Matter of the Arbitration Between:
CHRISTINE BOONE
Appellant,
Table with 3 columns and 2 rows-and
AAA No.:
Issue:
Grievant:
Arbitrator: 54 390 00896 10
Discharge
Christine Boone
Michael P. Long MICHIGAN DEPARTMENT OF
ENERGY, LABOR & ECONOMIC GROWTH
Appellee,
Table end________________________________________________________/
BACKGROUND
An arbitration tribunal was convened according to the Voluntary Labor Arbitration
Rules of the American Arbitration Association pursuant to the State of Michigan
Civil Service Rules and Regulations as they apply to the Michigan Department of
Energy, Labor & Economic Growth (“Appellee” or “Employer”) and Christine Boone
(“Appellant” or “Grievant”). Four days of hearing were held on January 12, 19, 20
and 21, 2011 in a meeting room at the Department of Natural Resources and
Environment Kalamazoo District Office in Kalamazoo, Michigan. The subject
matter of this case concerns the termination of the employment of Christine Boone,
who served as Director of the Michigan Training Center for the Blind.
At the arbitration hearing, the parties had the opportunity to articulate their
positions and offer argument, as well as the opportunity to present sworn
testimony, cross-examine witnesses, and submit exhibits into evidence. Appearing
on behalf of Christine Boone are Joseph B. Espo, Attorney at Law of Brown,
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Goldstein & Levy in Baltimore Maryland and Mary Ellen Gurewitz, Attorney at law
of Sachs, Waldman, P.C. in Detroit, Michigan. Appearing on behalf of the Employer
are Michael O. King, Jr., Attorney at Law and Jeanmarie Miller, Attorney at law,
both of the Department of the Michigan Attorney General, Lansing, Michigan. A
verbatim transcript of the hearing was taken by a Certified Shorthand Reporter and
Notary Public and made available to the parties and arbitrator.
The hearing record contains forty-five exhibits and the sworn testimony of nine
witnesses, including the Appellant, Christine Boone. At the conclusion of the
evidentiary portion of the hearing, the parties determined to close by way of written
briefs followed by written reply briefs. A briefing schedule was established by the
arbitrator facilitating the simultaneous filing of briefs by both parties through the
Case Manager of the American Arbitration Association. Upon receipt of the briefs
and reply briefs, the proceedings were closed. The matter is now ready for decision.
The arbitrator reviewed the applicable Rules and Regulations of the Michigan
Department of Civil Service as well as all of the evidence presented and arguments
put forth by the parties in making this decision. The fact that each and every piece
of evidence and or argument of the parties are not specifically addressed in this
decision does not mean that such was not considered in making a determination.
The Appellant is charged with violation of Michigan Civil Service Commission
Regulation 2.05 which references Rule 2-20 – Workplace Safety: Violence, Firearms
and Explosives. It states in pertinent part:
1. PURPOSE V The purpose of this regulation is to provide direction regarding workplace safety and
the reporting of violations involving acts or threats of violence or possessing orcarrying firearms or explosives.
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Rule 2-20 Workplace Safety: Violence, Firearms, and Explosives
2-20.1 Acts of Violence and Threats of Violence
(a) Prohibited Acts. An employee shall not commit an act of violence or a threat of
violence. (b) Requirement to Report. If an employee becomes aware of an act of violence or athreat of violence, the employee shall immediately report the act or threat to theappointing authority or the appointing authority's designee. (c) Action by Appointing Authority. An appointing authority or designee who receives
a credible report of an act Of violence or a threat of violence shall take reasonableactions to protect employees. 2-20.2 Firearms and Explosives
(a) Carrying and Possession Prohibited; Exceptions. An employee shall not carry or
possess a firearm or explosive at a state workplace or during actual-duty time, exceptas authorized below: (1) Firearm. An employee may carry or posses a firearm at a state workplaceor during actual-duty time only under one of the following circumstances: (A) The employee is (I) employed in a law enforcement, correctional,
investigative, security, or military capacity and (2) permitted orrequired by agency work rules to carry or possess a firearm at a stateworkplace or during actual-duty time. (B) The appointing authority has specifically authorized the employeein writing to carry or possess a firearm at a state workplace or duringactual-duty time. (C) Except when prohibited by law or an agency work rule, theemployee carries or possesses a firearm inside a personal vehicle
while the firearm is completely unloaded and enclosed in a case in thevehicle or carried in the trunk of the vehicle. (2) Explosives. An employee may carry or possess an explosive at a stateworkplace or during actual-duty time if the employee is authorized by the
appointing authority to carry or possess the explosive as part of theemployee's official duties. (3) Requirements. An employee authorized to carry or possess a firearm orexplosive under subsection (a)(1) or (a)(2) must carry or possess the firearmor explosive in a reasonable manner and in compliance with (1) all applicable
laws, including the civil service rules and regulations, (2) all agency work Christine Boone Page 4 of 36.
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rules; and (3) any instructions or limitations imposed by the appointing
authority.
(b) Requirement to Report Violations. An employee who becomes aware that anyperson possesses or is carrying a firearm or explosive in violation of this rule shallimmediately report the matter to the appointing authority or the appointingauthority's designee. (c) Action by Appointing Authority. An appointing authority or designee who receivesa credible report of a violation of this rule shall take reasonable actions to protect thesafety of employees. 2-20.3 Effect of Other Laws
This rule regulates the ability of employees to carry or possess firearms andexplosives (1) at any state workplace at any time and (2) in any place during actual-
duty time. Except as specifically authorized in this rule, a constitutional or statutoryprovision that otherwise permits a person to carry or possess a firearm or anexplosive does not authorize an employee to carry or possess a firearm or explosive
during actual-duty time or at a state workplace.
2-20.4 Penalty
If an employee violates this rule, an appointing authority may discipline the
employee, up to and including dismissal.
2-20.5 Agency Work Rules
An appointing authority may issue agency work rules related to firearms, explosives,
and workplace safety that are not inconsistent with this rule.
3. DEFINITIONS A. Civil Service Commission Rule Definitions 1. Act of violence means any intentional, reckless, or grossly negligent act that would
reasonably be expected to cause physical injury or death to another person. 2. Actual-duty time means the time that an employee is scheduled to receivecompensation, benefits, or benefit accruals for the performance of the employee’spublic duties as a member of the classified civil service. Actual-duty time includes all
scheduled work time and overtime. Actual-duty time does not include the time anemployee is on approved leave from the employee's public duties as a member of theclassified civil service, even if the employee receives compensation, benefits, orbenefit accruals for the time. 3. Appointing authority means each of the following: Christine Boone Page 5 of 36.
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(a) A single executive heading a principal department or autonomous entity. (b) A chief executive officer of a principal department or autonomous entityheaded by a board or commission. (c) The state personnel director. (d) A person designated by any of the preceding as responsible for
administering the personnel functions of the department, autonomous entity,
or other agency. 4. Explosive means any bomb, grenade, missile, or other dangerous device deigned toexpand suddenly and release internal energy resulting in an explosion. 5. Firearm means a weapon from which a dangerous projectile may be expelled by anexplosive, gas, or air. 6. State workplace means an office or building owned or leased by the state in whichclassified employees are assigned or work. State workplace includes any state-owned
or leased common grounds or parking areas used by classified employees assigned toor working in the office or building. 7. Threat of violence means any intentional communication or other act thatthreatens an act of violence and would cause a reasonable person to feel terrorized,
threatened, or fear physical injury or death to oneself or another person. STANDARDS
A. Agency Work Rules.
An appointing authority may promulgate work rules not inconsistent with rule 2-20.
B. Imminent Risk.
An employee who observes or learns of an imminent risk of serious physical injury ordeath due to (1) an act of violence or a threat of violence or (2) the carrying or
possession of a firearm or explosive at a state workplace or during actual-duty timeshall immediately take the following actions:
1. Take measures to ensure his or her personal safety. 2. Report the matter to law enforcement. 3. Notify the immediate supervisor, manager, or appointing authority of theincident as soon as possible. Christine Boone Page 6 of 36.
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C. Reporting Obligation. 1. What to Report a. All Employees. An employee is obligated to report to managementor to the appointing authority any of the following circumstances: (1) If the employee is subjected to acts or threats of violence. (2) If the employee witnesses acts or threats of violence. (3) If the employee becomes aware of acts or threats ofviolence. (4) If the employee observes or is made aware that anemployee possesses or is carrying a firearm or explosive at astate workplace or during actual-duty time, unless thereporting employee knows that the appointing authority hasauthorized the employee to carry the firearm or explosive. (5) If the employee receives a protective or restraining orderthat lists a, state workplace as a protected area, the employeemust provide a copy of the order to the appointing authorityresponsible for the state workplace. b. Supervisors and managers. A supervisor or manager who observesor learns of (1) an act subordinate employee explosive at a statesubordinate employee or (2) the carrying or possession of a firearm orworkplace or during actual-duty time by a subordinate employee shalltake prompt and appropriate remedial action and shall report
observation or information to the appointing authority. 2. To Whom to Report. An employee who is obligated to report under this regulation shall report theincident to any available supervisor or the appointing authority.
3. When to Report. An employee who is obligated to make a report must make the requiredreport immediately upon learning of or observing the reportable incident or
as soon thereafter as it is reasonably possible to make the report.
4. Confidentiality. To protect the interests of all involved, the appointing authority shallmaintain confidentiality to the extent practicable and appropriate under the
circumstances.
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D. Action to Stop Violations. 1. Acts or Threats of Violence. If an act or threat of violence is alleged to be continuing or the target of theact or threat needs, protection, the appointing authority shall takeappropriate immediate action it deems reasonably necessary to stop the
alleged acts or threats of violence. Possible actions include, but are notlimited to, (1) notice to law enforcement, (2) change of location of the workstation of the alleged violator or person affected, (3) "no contact" orders toboth parties, (4) temporary reassignment of the alleged violator or the personaffected, and (5) suspension of the alleged violator with or without pay to
conduct an investigation, as authorized in rule 2-6.4.
2. Possession of Firearms or Explosives. If an appointing authority learns that an employee is carrying or inpossession of a firearm or explosive at a state workplace or during actual-
duty time in violation of rule 2-20, this regulation, or an agency work rule,
the appointing authority may notify law enforcement or take otherappropriate action.
E. Discipline. The appointing authority may discipline an employee for (1) engaging in an act orthreat of violence or (2) carrying or possessing a firearm or explosives at a stateworkplace or while on actual-duty time in violation Of rule 2-20, this regulation, oran agency work rule.
F. Education and Training. Each, appointing authority is. encouraged to provide appointed employeesinformation regarding an employee’s dutiesto all current, and newly employee’s duties and responsibilities under rule 2-20, thisregulation, and any applicable agency work rules.
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Table with 2 columns and 14 rows5. PROCEDURE Responsibility Action Employee who observes orlearns of (1) an act orthreat of violence or (2)
carrying or possession of a
firearm or explosives 1. Imminent Risk of Dangera. Immediately takes appropriatemeasures to ensure his or her personalsafety.
b. Contacts law enforcement official to
report incident, if appropriate.
c. Notifies immediate supervisor,
manager, or appointing authority ofincident.
2. No Imminent Risk of Danger
Notifies immediate supervisor,
manager, appointing authority ofincident. Supervisor or Manager 3. Conducts any necessary interviews orinvestigations to obtain specific facts
regarding the reported incident.
4. Forwards a report to the appointingauthority. Appointing Authority 5. Reviews information to substantiate or
dismiss reported incident.
6. Takes appropriate remedial or disciplinaryaction.
7. Consults with law enforcement or other
appropriate agencies. CONTACT
Table endQuestions regarding this regulation should be directed to Office of the GeneralCounsel, Civil Service Commission, P.O. Box 30002, 400 South Pine Street, Lansing,
Michigan 48909; or by telephone, at 517-373-3024.
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DEPARTMENT OF LABOR & ECONOMIC GROWTH
WORK RULE FOR WORKPLACE SAFETY
OCTOBER, 2007
POLICY
It is the Department of Labor & Economic Growth's policy to promote a safe environment for its
employees. The department is committed to working with its employees to maintain a work
environment free from acts of violence and threats of violence.
DEFINITIONS
For purposes of this work rule, the following definitions shall apply:
Act of violence means any intentional, reckless, or grossly negligent act that would reasonably be
expected to cause physical injury or death to another person.
Threat of violence means any intentional communication or other act that threatens an act of
Violence and would cause a reasonable person to feel terrorized, threatened, or fear physical injury
or death to oneself or another person. Any threat of violence, whether verbal, written, visual, or by
gesture, will be presumed to be an expression of intent to do harm to another person.
Workplace means an office or building owned or leased by the state in which employees are
assigned or work. It includes any state-owned of leased common grounds or parking areas used by
employees assigned to or working in the office or building.
Explosive means any bomb, grenade, missile, or other dangerous device designed to expand
suddenly and release internal energy resulting in an explosion.
Firearm means a weapon from which a dangerous projectile may be expelled by an explosive, gas,
or air.
ACT OR THREAT OF VIOLENCE
An act of violence or a threat of violence that is work-related or occurs in the workplace or while
engaged in work related activities is prohibited. Any employee who is subjected to or is aware that
another employee is being subjected to an act of workplace or work-related violence or a threat of
imminent violence shall immediately take appropriate measures to ensure his or her personal
safety. The employee shall then promptly report the incident to appropriate Jaw enforcement
personnel and his/her supervisor. The supervisor shall immediately notify the Human Resource
Office of the incident.
Non-imminent acts or threats of violence shall be reported to the employee's supervisor. If the
employee's supervisor is the individual engaging in violence or making a violent threat, the
employee shall report the incident to the designated Workplace Safety Coordinator or Labor
Relations Manager.
All reports of an act of violence or a threat of workplace or work-related violence will be
investigated and appropriately addressed. The appointing authority shall take reasonable actions to
protect employees when a credible report of a violent act or threat of violence is received.
If the department receives information regarding an alleged act of violence, receives a threat of
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violence, or has a reasonable suspicion that an employee may have transported a firearm or
explosive on state property without authorization, the department or other appropriate authority
may conduct a search of desks, lockers, and any other storage space located on state property as
part of the department's effort to investigate and appropriately address the situation.
Employees shall not sabotage or cause malicious destruction of or damage to state property,
resources, work products, electronic files, or the property-of another employee or a member of the
general public.
FIREARMS AND EXPLOSIVES
An employee shall not carry or possess a firearm or explosive at a state workplace or during
actual-duty time except as specifically, authorized in this work rule and as authorized by law.
Except as provided by law, employees are not prohibited from carrying or possessing a firearm
inside a personal vehicle while the firearm is completely unloaded and enclosed in a case in the
vehicle or carried in the trunk of the vehicle. The firearm must remain inside the personal vehicle.
This work rule covers all department employees' ability to carry or possess firearms or explosives
at any state workplace, at any time and in any place, during actual duty-time. Except as
specifically authorized by this work rule, a constitutional or statutory provision that otherwise
authorizes an employee to carry or possess a firearm or explosive does not authorize the carrying
or possessing of the firearm or explosive during actual duty-time, at a state workplace, or in a
state vehicle.
Reporting
Employees are obligated to report to management if any of the following circumstances occur:
a. The employee is subjected to workplace or work-related violence by a supervisor, manager,
co-worker, or other person. b. The employee witnesses a supervisor, manager, co-worker, or other person in the
workplace engaging in workplace or work-related violence involving another person. c The employee receives a. protective or restraining order, which lists state-owned or leased
premises as a protected area. (A copy of such order shall be provided to the immediate
supervisor and the Human Resource Office.)
A supervisor or manager who witnesses, or is made aware of by one who witnesses, a subordinate
employee engaged in workplace or work-related violence, threatening behavior, or making threats
of violence or has unauthorized possession of a firearm or explosive is obligated to report the
behavior to the Human Resource Office and to take prompt and appropriate remedial action.
REPORTING PROCEDURES
1. An employee who is directly affected by or witnesses workplace or work-related violence
directed at another employee shall report the conduct to a supervisor, Workplace Safety
Coordinator, or the Human Resource Office. 2. An employee who is directly affected by or witnesses workplace or work-related violence
by the employee's own supervisor shall report the conduct of the supervisor to a higher-level Christine Boone Page 11 of 36.
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supervisor, Workplace Response Coordinator, or the appointing authority.
3. An employee who is directly affected by or witnesses workplace or work related violence
caused by a Workplace Response Coordinator shall report the conduct directly to a
supervisor, another Workplace Response Coordinator, or the appointing authority. VIOLATIONS
Any violation of this work rule may result in discipline, up to and including termination of
employment.
ISSUE
The issue in this arbitration:
Was the termination of the employment of Christine Boone for justcause, and, if not, what is the appropriate remedy?
DISCUSSION
This case concerns whether there exists just cause for the termination of the
employment of Christine Boone, Director of the Michigan Commission for the
Blind’s (MCB) Training Center, for violation of Civil Service Rules and
Regulations, as well as work rules, when she allowed her staff to purchase and use
two Ruger Spring Operated Break-Barrel Pellet Rifles on the Training Center
grounds to conduct a marksmanship training class for students.
Ms. Boone was officially discharged for violating Michigan Civil Service Rule 2-20
and the DELEG workplace safety rule concerning firearms (each set forth above).
There is no dispute that it was agreed that the marksmanship training was a
good experience for the students, that Ms. Boone authorized the conducting of
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marksmanship classes by her staff or that she approved the purchase of the pellet
rifles for use in the classes at the MCB Training Center. MCB and DELEG state
that there is just cause to terminate the employment of the Appellant because
she allowed “firearms” to be brought onto state property without the proper
authorization, and that this was done in violation of Civil Service Rule 2-20.2(a).
Counsel for Appellant argues that the Appellant did not knowingly violate any
rules or regulations, and, in fact, took a number of reasonable steps to insure that
she was acting carefully, reasonably and within the law in initiating the
marksmanship classes. Appellant asserts that the regulation defining a firearm
in the Rules and regulations was so difficult to understand or apply that when the
issue arose as to whether the Ruger Spring Operated Break-Barrel Pellet Rifles
used in a marksmanship program at the Training Center were "firearms" according
to the regulation's definition there was no agreement. Only hours and hours of
research by the DELEG Director of Human Resources led her to the conclusion
that the pellet rifles constituted “firearms,” and that the rule had been violated.
Counsel for Appellant asserts that Christine Boone was guilty of no misconduct and
no discipline was warranted.
Appellant, Christine Boone, is 51 years old, married and the mother of two college-
age children. Ms. Boone is blind and has been so since birth. Her only visual
perception now is light perception. She uses email and other text-based computer
programs (such as Word) through the use of a program that converts text to speech.
She reads and takes notes in Braille with a manual slate and stylus device.
Ms. Boone earned a Bachelor of Arts degree from the University of Colorado and a
law degree from Creighton University. Over the course of her career she has
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worked for public libraries, practiced law, and worked as a rehabilitation
counselor and vocational rehabilitation counselor. She served as the Director of
the Bureau of Blindness and Visual Services in the Pennsylvania Department of
Labor and Industry. As such, she held a position that is at the same level as that
held by Patrick Cannon, who is the director of the Michigan Commission for the
Blind.
Ms. Boone was recruited for and hired as Director of the Michigan Training Center
for the Blind ("MCBTC" or "Training Center") in October, 2006 by the Michigan
Commission for the Blind ("MCB"). Ms. Boone testified that that Mr. Cannon told
her during recruitment that he wanted someone who could run the Training
Center and that he would be happy to provide less supervision of the next Training
Center director than he had of the previous one.
In addition to soliciting Ms, Boone's application to be director of the Michigan
Training Center Mr. Cannon was a member of the selection committee. At the
time Ms. Boone was selected to become the Training Center director, Mr. Cannon
wrote that "Christine L, Boone began working in the field of public rehabilitation
programs 25 years ago and since then has developed a most impressive record of
knowledge, experience and achievements in effectively administering vocational
rehabilitation programs." The job description, authored by Mr. Cannon, requires
the person who directs the Training Center to “function independently within
federal, state, and agency guidelines in establishing program priorities."
The Michigan Training Center for the Blind is a residential facility of nearly
50,000 square feet with dormitory rooms, classrooms and related facilities. It can
house up to 50 students who are legally blind and eligible for vocational
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rehabilitation services. It also provides personal adjustment training. The
Training Center is set on approximately 23 acres of land and is located in
Kalamazoo, Michigan. When Ms. Boone began her work as director of the Training
Center there were 36 employees there. Most of those employees reported directly
to Ms. Boone, including rehabilitation counselors and the teaching staff. Id. All
but two others reported to a nurse-supervisor. In March, 2007 the nurse-
supervisor left the Training Center and from then until April 2008, when Bruce
Schultz was promoted to be assistant director, all of the individuals who had
reported to the nurse-supervisor then also reported directly to Ms. Boone, except for
one maintenance employee, who reported to the maintenance supervisor and one
clerical person who reported to Ms. Boone's assistant.
The Training Center provides vocational rehabilitation for those who attend it.
The mission of the Training Center is to prepare its students for gainful
employment. Vocational rehabilitation counselors work with the students, or
clients, to provide services that will help a client achieve a vocational goal, taking
into consideration the client's strengths, abilities, talents, skills and choice. The
Training Center also provides training in cane travel, access technology and other
skills needed by the blind. During the school-year all Training Center participants
are adults. During the summer there are programs for college-age and high school
students. Upon her arrival, Ms. Boone found an absence of career-based
programming at the center, and with Mr. Cannon's support, developed a core
curriculum of Braille, orientation and mobility (traveling with a cane), cooking
and computers. Non-core classes were in subjects such as access technology,
fitness, such as swimming and bowling, and other activities.
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As director of the Training Center, Ms. Boone was expected to provide direction,
management and control of all aspects of the Training Center, including planning,
development and implementation of programs, recruitment and management of staff,
operation of the physical facility, program evaluation and financial management.
Ms. Boone was also responsible for working with universities and other vocational
rehabilitation programs in developing "mutually beneficial programs for students
and agencies."
Ms. Boone was tasked with maintaining or developing a good relationship with the two
consumer organizations of the blind, the National Federation of the Blind and its
Michigan affiliate, and the Michigan Council of the Blind and Visually Impaired,
affiliated with the American Council of the Blind.
Ms. Boone's immediate supervisor, Patrick Cannon, was located at the Michigan
Commission for the Blind offices in Lansing, about 78 miles away. Because it was
her job to provide for the curriculum at the Training Center, Ms. Boone's
understanding was that she did not need Mr. Cannon's approval to begin classes.
When Ms. Boone first began working at the Training Center, she would see Mr.
Cannon monthly for executive management team meetings which were held in
Lansing.
Initially, Ms. Boone had frequent telephone conversations with Mr. Cannon, but the
frequency of those calls diminished over time. Ms. Boone also communicated by
email with Mr. Cannon when she first began working at the Training Center, but
was then told by Mr. Cannon that he would rather discuss things instead of having
them presented in writing and having to write a response. Ms. Boone testified
that "for a long time" there was no particular schedule for conversations because
they spoke frequently. At some point, holding those frequent conversations became
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more difficult because of Mr. Cannon's schedule, so Ms. Boone asked her secretary to
set up a weekly telephone appointment between Mr. Cannon and Ms. Boone,
Though those meetings were "usually held" thereafter, they were generally short.
During the course of her employment Ms. Boone received periodic performance
reviews. Initially, as a probationary employee, she was reviewed quarterly. Ms.
Boone received written employee evaluations conducted or prepared by Mr.
Cannon on four occasions. In her initial performance review, for the period
October, 2006 through January, 2007, Ms. Boone was rated "high performing" for
most of her job functions and "meets expectations" for the others. Mr. Cannon
wrote in that initial evaluation that, "In just three months Christine Boone has
proved to be a high performer who has actively and effectively engaged Training
Center staff and agency staff to begin setting higher standards and positive
change." Ms. Boone's next evaluation, for the period January 6, 2007 to April 5,
2007 was similar with Ms. Boone receiving mostly ratings of "High Performing"
with a few "Meets Expectations."
Ms. Boone was given her third evaluation for the period April, 2007 through October
5, 2007. Ms. Boone again received high marks from Mr. Cannon for her
performance, again being assessed in most categories of her review as "high
performing." Mr. Cannon's summary of his evaluation of Ms. Boone was that "The
wisdom of selecting Christine Boone to be our new Training Center Director is
clearly evident and I am very pleased with her work during her first year with the
Commission."
Following her one-year anniversary, Ms. Boone's performance evaluation schedule
was changed to annual reviews. The final annual review Ms. Boone received was
for the period October, 2007 through December 1, 2008. In that performance
review Ms. Boone was rated mostly either high performing or meets expectations,
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as in the past, with a single rating of "Needs Improvement," which related to Ms.
Boone's not completing her direct reports evaluations in a timely manner. The
reason for her difficulty in completing that task, as Ms. Boone testified, was her
own absence from work following a serious injury she suffered in a fall. In
addition, as discussed above, Ms. Boone had an unusually high number of
direct reports (more than 30) and was responsible for preparing the extensive
evaluations for each of them. Even with that, Mr. Cannon wrote in the final
performance review that "Christine has brought innovation at the center to a
new level and has been most impressive." These positive reviews are the only
documents in Ms. Boone's personnel file reflecting on the quality of her work. Ms.
Boone's personnel file contains no record of any disciplinary action before the
events surrounding the marksmanship class, which led to the termination of her
employment with which we are concerned in this arbitration.
Ms. Boone also received high marks from her subordinates. Assistant Training
Center Director Bruce Schultz testified that he had an "extremely good working
relationship" with Ms. Boone and that he thought she had a very good rapport and
working relationship with everyone at the center.
Regardless of her better than satisfactory performance, the relationship between
Mr. Cannon and Ms. Boone was not tension-free. Mr. Cannon was annoyed with
Ms. Boone over comments in a draft monitoring report from the Federal
Rehabilitation Services Administration (RSA). Cannon sent an email to
Department of Energy Labor & Economic Growth ("DELEG") Human Relations
Manager Patty Gamin asking how to respond to what Mr. Cannon considered
issues that should not have been raised with the RSA. In fact, as Mr. Cannon
acknowledged, Ms. Boone had a legal obligation to respond to questions from the
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RSA monitoring team. Ms. Boone testified that the she noticed a change in her
relationship with Mr. Cannon after the RSA monitoring team visited Michigan.
Mr. Cannon also was frustrated with Ms. Boone's perceived inability to smooth
the relationship between the Michigan Commission for the Blind and the National
Federation of the Blind's Michigan affiliate. He told several members of the NFB
that he hired Christine Boone so she could "settle down" the NFB of Michigan
and that she had failed in that task. As Mr. Posont testified, the relationship
between the MCB in general, and Mr. Cannon in particular, and the NFB had
grown bad.
As noted above, although the primary function of the Training Center is to prepare
its participants for employment, there is a personal adjustment and recreational
component as well. The aide who had long led the recreation program is Karen
Cornell (often referred to as KC in the testimony). Ms. Cornell has demonstrated
herself to be a caring, competent employee who has worked at the Training Center
since 1974. Over the course of her career, Ms. Cornell's job duties have expanded.
Originally she and another teacher took students into the community for activities
like bowling swimming, horseback riding and meals. Eventually, Ms, Cornell was
the only recreation person at the Training Center, and she also began working
with students in the gym.
Ms. Cornell was raised on a farm where "there were always guns in the house"
and she began shooting as a child. She did some hunting but mostly target
shooting with shotguns and deer rifles. She now owns two handguns and has a
State of Michigan concealed weapons permit. Though she had never used them,
she was familiar with BB guns. Not counting her work at the Training Center, Ms.
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Cornell estimated that she had taught "dozens and dozens" of extended family
members how to shoot without any of them suffering any injuries.
Over the years the idea of having a shooting or marksmanship class was raised with
Ms. Cornell by her students. She testified that she knew blind individuals can
hunt in Michigan and that in 2008 she had taken some students to an archery
range. The archery activity increased interest in deer hunting and target shooting
and wondering how a blind or visually impaired person could safely go back to
target shooting." Before the marksmanship class was undertaken, Ms. Cornell
took her students paint ball shooting, but that did not satisfy the students and
they continued to ask whether there was a more realistic way they could shoot.
In early 2009, Ms. Cornell discussed the students' desire to shoot with Ms. Boone.
The conversation led to the development of a performance objective on Ms.
Cornell’s annual evaluation to explore opportunities for target shooting and/or
paint ball in the area. Karen Cornell’s Evaluation dated 2/26/2010 noted that the
objective had been met by helping to create a marksmanship class at Training
Center. During Ms. Cornell's 2008 evaluation it was decided that she would
investigate how such a program might be conducted while Ms, Boone would speak
with Mr. Cannon about having such a program. Ms. Boone testified that she did
speak with Mr. Cannon about the idea of a shooting class in early spring 2009. It
was Ms. Boone’s testimony that in a telephone conversation Ms. Boone told Mr.
Cannon about Ms. Cornell's idea, and he asked what Ms. Boone and Ms. Cornell
had in mind. Ms. Boone stated that she told Mr. Cannon that Ms, Cornell didn't
want to do a "one time thing" but wanted to look into teaching a class. Ms. Boone
told Mr. Cannon that Ms. Cornell was going to check with places in the community
about shooting opportunities at ranges and that they would also explore the
possibility of having something on the Training Center grounds. Ms. Boone
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testified that Mr. Cannon voiced some concern about safety, which Ms. Boone
addressed, and that Mr. Cannon's conclusion was "we're all about combating the
soft bigotry of low expectations, and . . . doing things that are not necessarily
commonplace. So you have my permission to go ahead. . . ."
Mr. Cannon acknowledged at the hearing that he had had a conversation with Ms.
Boone about students engaging in some sort of marksmanship or shooting activity,
although he had earlier denied any recollection of such a discussion. He testified
that he thought Ms. Boone was discussing some sort of a field trip involving
shooting rather than a "class." Mr. Cannon admitted that he had a discussion
about shooting with Ms. Boone that was held in early 2009, and that he told Ms.
Boone the matter could be explored further. Mr. Cannon testified that he
commented that the shooting had to be safe, but it is noted that he did not address
any matter involving any DELEG work rule or Civil Service regulations regarding
firearms.
Ms. Cornell took steps to meet her performance objective by discussing the issue of
where and how students might shoot with employees at a local gun shop and with
the Training Center's assistant director Bruce Schultz. Ms. Cornell asked a gun
shop employee if there was a firing range or other location where blind students
could target shoot and, although the person said he would check and pass any
information onto Ms. Cornell, she never heard back from him. In February 2009,
Ms. Cornell had a conversation about a shooting class with employees at the
Training Center, including Dan Grover, a maintenance employee, and he suggested
that target shooting could be done at the center. As Cornell remembers the events,
Mr. Grover said that with 23 acres of land on the Training Center site there was
plenty of space to safely use pellet guns. He specifically recommended a spot in a
ravine with a large dirt hill behind it as being suitable for pellet gun shooting. After
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discussing the idea further with Mr. Grover and another maintenance employee,
Ms. Cornell spoke with Ms. Boone about the suggestion. Ms. Boone instructed
Ms. Cornell to call the local authorities to investigate whether it would be legal to
hold the marksmanship class at the Training Center.
Following Ms. Boone's instructions, Ms. Cornell called both the Kalamazoo
Department of Public Safety and the local Michigan State Police post to ask
whether it would be legal to conduct a shooting class on the Training Center
grounds with Ruger pellet guns, which she had decided were the appropriate guns
to use. Ms. Cornell was told by the state police officer with whom she spoke that the
Ruger pellet guns were BB class guns under state law, were not considered
firearms, and, therefore, there was no legal reason that the class could not be
held. He also said that he was familiar with the spot on the Training Center
grounds that had been suggested. He recommended that Ms. Cornell should check
with the Kalamazoo Public Safety Department because the Training Center is
located in the city. Ms. Cornell called the Kalamazoo Police Department and
received the same answer from an official there as she had from the state police;
that the pellet guns were not firearms and there was no reason the marksmanship
class could not be held at the Training Center. A contemporaneous note by Ms.
Cornell reflects her conversation with the Kalamazoo Public Safety Department.
The Appellee asserts that Mr. Cannon was duped, and that the decisions to hold the
class on the Training Center grounds and to use the Ruger pellet rifles were made
before Ms. Boone’s call to Mr. Cannon. The contacts with the state and local
police agencies had also been completed by this time. The Appellee quotes Ms.
Boone’s arbitration testimony:
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“I let [Director Cannon] know that Karen said she did not want tohave a one time thing but she wanted to look into doing a class. Soshe was going to do some checking with places in the community,
like shooting ranges and that and see what they had to say. And thatwe would also explore the possibility of having something on thecenter grounds since we did have 22 and a half acres, which when Icame was virtually unused, and ever since the time of my coming
we've been increasingly bringing that property in to use so that itcould benefit our students.”
The Appellee in alleging a conspiracy to dupe Mr. Cannon argues that Ms. Boone
testified that she told Director Cannon that "we would explore the possibility of
having something on the center grounds" even though Boone knew that Cornell
was already planning on having the class on the Training Center grounds, and
while she also knew that Ms. Cornell had already contacted "places in the
community" – one gun shop in January of 2009. Ms. Cornell’s testimony indicated
that she had decided where on the Training Center grounds to have the class, and
had not pursued any other avenues after February of 2009, but it is not known
whether Ms. Boone knew of this. In addition, Ms. Cornell had already
contacted the local police agencies and received approvals, and had already
determined the type of gun to be used – the Ruger air rifles. Mr. Cannon stated
that the “notion of a class was never discussed for students, a shooting class, it
never came up in our conservation. There was discussion about taking students on
a field trip for a target practice experience like at a shooting gallery.”
The Appellee asserts that Ms. Boone deliberately misled Mr. Cannon about an
issue she deemed important, and that this deception combined with other lapses in
Boone's judgment warranted termination.
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It appears that there may well have been a misunderstanding or
miscommunication between Ms. Boone and Mr. Cannon. Ms. Boone believed she
had Mr. Cannon's approval for the marksmanship class, while Mr. Cannon
believes he had not approved the class. Given the pattern of contacts between
Mr. Cannon and Ms. Boone before the marksmanship class, oral approval (which
was not actually required for Training Center activities) was the way in which the
two officials operated. If one assumes both witnesses are telling the truth, there
was simply a misunderstanding, and not a work rule violation. Ms. Boone testified
that initially she communicated with Mr. Cannon frequently by e-mail, until he
said that he would rather speak on the phone with her instead of communicating
in writing. Ms. Gamin testified that there was no written protocol dealing with how
classes for the Training Center were approved.
The Appellant, however, was not charged with deliberately misleading Mr. Cannon.
The Appellee only charged Ms. Boone with violation of the Michigan Civil Service
Commission Regulation 2.05 which references Rule 2-20 – Workplace Safety:
Violence, Firearms and Explosives and the DELEG Work Rule for Workplace
Safety. Absent a determination that discipline or discharge is appropriate for the
charged violation, factors of mitigation or exacerbation are not relevant.
It is undisputed that in the spring of 2009 Mr. Cannon and Ms. Boone spoke during
one of their periodic telephone conferences about students engaging in some sort of
marksmanship or shooting activity, and there was no mention by either of any
trepidation regarding possible violation of Michigan Civil Service Rules or DELEG
Workplace Safety regulations.
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By the time the investigation into holding the class was completed it was spring
and it was decided to hold off on the class because during the summer they had
minor students at the center and they wanted to wait until those students had
returned home to their high schools. Over the summer, however, Ms. Cornell
made targets for the class, finalized where to hold it, and purchased two Ruger
spring operated break-barrel pellet rifles. Ms. Cornell and the maintenance
employees built the targets out of a 4' by 8' 3/4 inch sheet of plywood mounted on
wooden posts and covered with two inches of foam. For shooting, the target was
covered by brown paper and by paper targets of various sizes. When the shooting
was conducted, the pellets would come to rest at the back of the target in the
plywood.
The Ruger pellet rifles were purchased from Meijer storewith a state purchasing
card. There was not the necessity any sort of background check or other
investigation such as one would experience when purchasing an instrument
classified as a firearm under state or federal law. Ms. Cornell submitted the
purchase receipt through the state purchasing bureaucracy, which prompted a
request from the centralized purchasing office asking for a written justification of
the purchase. Bruce Schultz, Assistant Director of the Michigan Training Center
for the Blind, was also involved in the email exchange about the pellet guns with
the DELEG purchasing unit. As Mr. Schultz described it, DELEG called months
after the purchase for an explanation about the purchase, it was provided; and
after that everything was fine as there were no more inquiries. The response of
Mr. Schultz to the purchasing department stated:
“Hi. Karen Cornell asked me to clarify the above named purchase you
were inquiring about.
The Training Center has been expanding our fitness and recreational
activities programs extensively this past year. Many students have
expressed the desire to learn non-visual methods for the safe handling
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Michigan Department of Energy, Labor & Economic GrowthAAA 54 390 00896 10; Termination of Employment / Christine Boone
of firearms. Since it is legal in Michigan for blind people to hunt andto own firearms for self protection in their homes, providing thistraining is consistent with the goals of our rehabilitation program.
Learning mastery of firearms also increases the self confidence ourstudents are building, which will assist them in obtaining competitiveemployment in Michigan.
Two moderately priced pellet rifles were purchased, along with theappropriate ammunition. We have built backstops for paper targetsand have identified a safe shooting area on the Center grounds. All
local authorities have been contacted and have provided their approvalfor these activities to occur on the Center property. The class is alwaystaught by two instructors, as an added safety precaution.
Thanks.
Bruce M. Schultz, Assistant Director
Michigan Commission for the Blind Training Center”
Ms. Cornell testified that the Ruger pellet guns were openly displayed on a bottom
shelf in the sporting good section of the store where she purchased them and that she
was allowed to walk them to the front register herself.
Before the shooting classes began, Ms. Cornell bought safety glasses for the
students and set up the target. The target was equipped with an audible device,
so students could hear its location, as had been done for the archery and as is
done in games. The target was set up in a ravine so that there could not be anyone
behind it on the level of the target. After the 2009 Labor Day holiday the
marksmanship class began. First, there was gun safety instruction. The classes
usually consisted of one or two students. Sighted "spotters" were used to help the
students aim, to make sure the pellet guns were never pointed up and to make
sure that nobody was in the area where the shooting was taking place. Safety was
further assured by making sure that each shot was lined up before the "safety" that
prevented inadvertent firing of the pellet gun was placed in the position that
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would allow firing. Students were taught not to place their fingers inside the
trigger guard until they were ready to shoot.
Bruce Schultz, Training Center Assistant Director, testified that he has had
extensive personal experience with firearms, having participated in "shooting
sports" for 10 to 15 years. He testified that he, too, has a concealed weapons
permit from the State of Michigan. He, like Ms. Cornell, believed the class was a
good idea. He examined the targets that were built and the location where the
class would be held and concluded that the location and targets made the class
location safe. Based on Ms. Cornell's research, Mr. Schultz also believed the pellet
guns used in the marksmanship class were not firearms. It was Mr. Schultz who
told Ms. Cornell in June that it was okay for her to go ahead and purchase the
pellet guns. Mr. Schultz was unaware of any DELEG work rule that would have
prohibited the class from taking place using the pellet rifles on Training Center
property.
There was nothing presented in any of the steps that led up to the marksmanship
class to alert anyone that the pellet guns might be considered firearms, either
under state law or the Civil Service Commission rules or regulations. The
Operation Manual for the pellet guns, stated; "This airgun is not a toy. Treat it
with the same respect you would a firearm." Later on in the same manual it states:
"Warning: Do not brandish or display this product in public -it may confuse people
and may be a crime. Police and others may think it is a firearm. Do not change
the coloration and markings to make it look like a firearm. That is dangerous
and may be a crime." The Appellant asserts that these statements suggest that
while the Ruger pellet rifle may look like a firearm, and perhaps should be treated
as though it is a firearm, it is not, in fact, a firearm.
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Jason Nairn, the Director of Security for the Michigan Department of Management
and Budget, was consulted by the Department regarding the status of the pellet
rifles. He testified that he had to undertake some investigation to determine
whether the pellet rifle was a firearm under Civil Service regulations. He, like
Mr. Schultz and Ms. Cornell, is experienced with firearms and owns "a couple of
shotguns, a rifle, two rifles, and a hand gun." Mr. Nairn indicated that he also
used pellet guns when he was a child. He never took lessons on how to use them
and did not own one himself, but testified that he borrowed the guns from cousins
or brothers or sisters or friends since a 'lot of people in my neighborhood had
pellet guns."
Students of the Center were pleased with the class. A number of them wrote letters
about their experience and praised the program. While this discussion concerns
itself mostly with the marksmanship classes, it must be remembered that the
marksmanship classes were not by any means the only activity being undertaken
at the Center. There were many more activities occurring concurrently as part of
the full range of the curriculum.
There is no indication that Ms. Boone was attempting to keep the marksmanship
classes a secret from Mr. Cannon or anyone else. As part of her job duties Ms. Boone
attended the National Federation of the Blind of Michigan state convention in
November 2009, where she had been invited to speak. Ms. Boone was well aware
that Mr. Cannon and other MCB employees were in attendance at the
convention. During her convention speech, Ms. Boone discussed with pride the
marksmanship class at the Training Center as an example of the kinds of work
being done there. Ms. Boone had earlier discussed the class at meetings with
MCB staff. A participant in at least one of those meetings was Leamon Jones,
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who spoke with Mr. Cannon daily. While Ms. Boone believed that Mr. Cannon
knew about and had approved the marksmanship class, he indicated that he was
surprised when he heard Ms. Boone speaking about it and testified that her speech
was his first knowledge that the class was being held.
The day after Ms. Boone gave her convention address Mr. Cannon called her at
her home. For the first time he raised the issue of the pellet rifles being considered
firearms and there being a rule about no firearms on state property. Mr. Cannon
instructed Ms. Boone to report to his office the following day with the pellet rifles.
Ms. Boone went to meet with Mr. Cannon, but was alarmed by Mr. Cannon’s
comments about the pellet rifles being "firearms," and was concerned how they
might be viewed by state office building guards. Thus, she and did not take the
pellet rifles to the meeting. At the meeting Mr. Cannon directed that the
marksmanship class be stopped immediately and Ms. Boone immediately ordered
Center employees to comply.
Just a few days later, on November 16 or 17 Ms. Boone went out on sick leave due
to a serious medical condition. Ms. Boone was suffering from an ulcer on her foot
that resulted from a congenital absence of veins in her legs. The ulcer was
extremely painful and increasing in size and Ms. Boone was warned by medical
caregivers that it could lead to the need for amputation of her foot. The situation
was so serious that her doctor in Kalamazoo did not believe that he could
successfully treat it, and referred her to the Mayo Clinic in Minnesota. She went
there on November 16 or 17. She had anticipated that it would be a short leave
but she was not cleared to return to work until January 11, 2010, and then only for
a limited day. While on leave due to this disability, Ms. Boone was notified on
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December 29, 2009, of an "investigatory hearing" with DELEG human resources
director Patty Gamin and Mr. Cannon to be held on January 12, 2010. Ms. Boone
returned to work earlier than her doctor had originally recommended because of
the scheduled investigatory hearing. She attended the meeting in considerable
pain as she could not stand or walk and had to be pushed to the meeting location
uphill through the snow in a wheelchair. She described her condition at the time
as physically still feeling "not great" and still suffering from considerable pain.
On January 26, 2010 after the January 12 investigative meeting, Ms, Boone received
a letter saying there would be a disciplinary conference on January 28, 2010. That
was changed, at Ms. Boone's request, to February 4, 2010, so her counsel could
attend. At the disciplinary conference Ms. Boone’s employment was terminated for
violation of Michigan Civil Service Commission Regulation 2.05 which references
Rule 2020 – Workplace Safety: Violence, Firearms and Explosives.
Ms. Boone was discharged for violation of Civil Service Commission Rule 2-20.2.
Rule 2-20 is titled "Workplace Safety." Rule 2-20.2 is titled "Firearms and
Explosives" and states at subparagraph (a) "Carrying and Possession Prohibited;
Exceptions. An employee shall not carry or possess a firearm or explosive at a state
workplace or during actual-duty time, except as authorized below: . . ." The
exceptions then set forth are not applicable.
Rule 2-20 is further explained by Regulation 2.05. Section 3.A.5 of Regulation
2.05 defines firearm as follows: "Firearm means a weapon from which a dangerous
projectile may be expelled by an explosive, gas, or air." It is important to determine whether Ms. Boone or any of the other employees of the
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Training Center, who were involved in planning and implementing the
marksmanship class, would understand that this rule and regulation prohibited the
class at the Training Center using Ruger spring operated break-barrel pellet
rifles. The proofs do not include any evidence that either Ms. Boone or any other
employee involved in developing the marksmanship class had any reasonable belief
that the pellet guns could be considered firearms. Neither Ms. Cornell nor Mr.
Schultz, both of whom had long and extensive familiarity with firearms, thought
that the Civil Service regulation was being violated by the marksmanship class,
because they did not think that the pellet guns were firearms. Christine Boone
reasonably relied on Karen Cornell and Bruce Schultz. Karen Cornell reasonably
relied not only on her own knowledge of firearms but also on the information which
she obtained from the Michigan State Police and the Kalamazoo Public Safety
Department. Mr. Schultz had independently evaluated the situation in
consultation with Ms. Cornell and concluded that the purchase and use of the
pellet rifles were not in violation of any law or regulation.
The employees of the Center believed in reliance on opinions from knowledgeable
law enforcement authorities that it was lawful to use the pellet guns at the Training
Center. In addition, the operation manual for the Ruger air rifles also supported
the employees' understanding that the air rifles, also called pellet guns or BB
guns, were not firearms. The Ruger manual says at its first page "This airgun is
not a toy. Treat it with the same respect you would a firearm." Later on in the
same manual it states: "Warning: Do not brandish or display this product in
public -it may confuse people and may be a crime. Police and others may think it
is a firearm. Do not change the coloration and markings to make it look like a
firearm. That is dangerous and may be a crime." As the employer's witness,
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Jason Nairn, admitted, that language would be taken to suggest that the Ruger
pellet gun is not a firearm.
There was confusion in Ms. Boone’s chain of command over the meaning and
applicability of the rule with which Ms. Boone is charged with violating. On
November 10, 2009, after Mr. Cannon heard Ms. Boone’s comments at the National
Federation of the Blind of Michigan state convention regarding the marksmanship
classes, he instructed an assistant to bring the pellet rifles to his office. Director
Cannon had Jason Nairn, head of DMB Security, come to his office examine the
pellet rifles. It was immediately determined that the pellet rifles could easily
mistaken for more powerful rifles. Nairn examined the pellet rifles, and made the
determination that they constituted “firearms” under the Civil Service Rules. Mr.
Nairn communicated his conclusion to Director Cannon. Mr. Nairn later sent
Director Cannon an e-mail with a Wikipedia article about how air rifles operate
that he had found on line during his research.
Ms. Patty Gamin, the DELEG Human Resources Director and final decision maker
as to the termination of the employment of Ms. Boone, testified that it was not
readily apparent to her that the Ruger pellet guns used in the marksmanship
classes violated the Civil Service Commission rule or regulation. Ms. Gamin
testified that trying to determine whether the pellet rifle was a firearm within the
regulation's definition was a time consuming endeavor which required a number of
hours of research. She stated that she researched using a number of websites to
learn more about how air rifles work. She consulted Mr. Nairn to get his opinion
on whether the air rifles were forearms under the Civil Service Rules, and Mr.
Nairn shared his opinion that the pellet rifles met the definition of “firearms”
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under the Civil Service Rules. Ms. Gamin acknowledged in her testimony that
the definition of a firearm can be different to many individuals and that there are
many definitions of firearms. She testified that she is the “appointing authority”
as it applies to the authority under Civil Service Regulation 2.05, Section 2-20.2
(a) 1 (B) of the Rules to allow firearms on state property. Ms. Gamin consulted the Civil Service Rules and DELEG Work Place Safety
Rules on firearms. Ms. Gamin, using the definition: “Firearm means a weapon
from which a dangerous projectile may be expelled by an explosive, gas, or air.”
determined that the air rifles were firearms because they expelled a dangerous
projectile using air. She relied on Mr. Nairn's assessment and her own research,
including the operator's manual that came with the air rifles. The Operator’s
manual states in pertinent part:
“Ruger Operation Manual
Spring Operated Break Barrel Pellet Rifles * * *
This airgun is not a toy. Treat it with the same respect that you would a
firearm.” * * *
WARNING. This airgun is recommended for adult use only. Misuse or
careless use may cause serious injury or death. May be dangerous up to 575
yards.” * * *
Director Cannon and Mr. Nairn testified that the air rifles had the look and feel of
a rifle. The air rifles even could be mistaken as real firearms.
Ms. Gamin, testified that she believed that Ms. Boone failed to act with due
diligence, because as an attorney, a state employee, and a senior-level manager,
Boone had an obligation to ensure that her actions and the actions of her staff
complied with Civil Service Rules and DELEG work rules. Ms. Boone indicated
that she did not look at the Civil Service Rules when she authorized the
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marksmanship class and the purchase of the air rifles; and her reliance on state
law and local ordinances is misplaced. Ms. Boone was discharged for violating
Civil Service Rules, not state law or the Kalamazoo local ordinance. Ms. Gamin
stated that safety is not an issue because the violation of the firearm rule is strict
liability. The mere violation of the firearm rule exposes a person to the penalty for
their violation. Here, Boone allowed and authorized her staff to hold a
marksmanship class and to purchase firearms for that class. Thus, she is
automatically subject to the penalty associated with that violation. Ms. Gamin
indicated that Ms. Boone's past performance and evaluations were not relevant to
her own decision to terminate the employment of Ms. Boone. Ms, Gamin did not
review Ms. Boone's job description to see if Ms. Boone had the authority to give the
go-ahead to the marksmanship class without Mr. Cannon's approval, if , in fact, it
had not been given.
It is axiomatic under the standard of just cause that in order for an employee to be
disciplined or discharged for acts or omissions, the employee must be provided
reasonable notice of what the expectations of the employer are. It is well
recognized that before an employee can be justifiably disciplined for breach of the
employer’s rules or regulations, the employee must have knowledge of the rule or
regulation with which the employee is charged with violating. In most cases, such
knowledge cannot be inferred, but is required to be evident by direct instruction
and/or accessible, clear and concise rules and regulations to which the employee
has ample and reasonably easy access.
Negligence for which discipline may be imposed is not established merely by proof
that a rule violation occurred or that the employee erred in her judgment; there
must be proof that the employee failed to comply with a prescribed standard which
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in fact was, or reasonably should have been within the employee’s knowledge. An
error in judgment in encountering a situation with which the employee is
unfamiliar and which in itself is complicated and/or unclear does not amount to
negligence which justifies discipline even though deviance from the rule may have
occurred. Each case turns on its own facts.
In this case, there is no dispute that it is reasonably clear to employees that
employees are not allowed to possess firearms on state property. The question
arises as to whether the reasonable employee would understand the pellet rifles to
constitute firearms, and with what diligence an employee made the effort to
determine the propriety of action. As to whether it is readily discernable that the
pellet rifles constituted “firearms” prohibited by the rules and regulations, there
was either a complete breakdown in the system, or a situation where as a general
rule, employees did not understand the pellet rifles to be “firearms” nor their use
for marksmanship classes to constitute a violation of any Workplace Safety rule or
regulation. Mr. Cannon, after informing Ms. Boone that the pellet rifles were
“firearms,” which are not allowed on state property, ordered Ms. Boone to transport
the pellet rifles to his office on state property in Lansing so that he could examine
them -disconcerting taking into account the testimony of Ms. Gamin, who testified
that she was the “appointing authority” as it applies to the authority under Civil
Service Regulation 2.05, Section 2-20.2 (a) 1 (B) of the Rules to allow firearms on
state property.
The Appellant makes a cogent argument that Ms. Boone’s termination for her
alleged violation of the work rule and regulation at issue violates her due process
rights because the policies, as they are applied to the specific facts and
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circumstances in this case, were impermissibly vague. The regulation and work
rule relied upon for the termination of Ms. Boone’s employment are so complicated
that it took both Jason Nairn and Patty Gamin hours of research to determine
whether the rule was violated. Mr. Cannon wasn’t sure and relied on their opinions.
Automatically terminating the employment of an employee for violation of a rule
where the application of such rule is not clear and readily understandable violates
the concept of just cause. Due process requires that noncompliance with a rule
can only be relied upon in administering discipline if the rule is clear and
accessible enough to be readily relied upon by the subject of the discipline.
After careful review of all the facts and circumstances, it is clear that Ms. Boone
performed her work in good faith and with reasonable diligence. It has not been
shown that the Appellant purposely violated any of the rules or regulations with
which she is charged. There is not just cause for discipline or discharge in this
matter. Although there are allegations that the Appellant intended to embarrass
Mr. Cannon by deceiving him about the marksmanship classes and then did
embarrass him at the National Federation of the Blind of Michigan state
convention, there is insufficient evidence to substantiate this – and it is not with
what the Appellant is charged. Accordingly, Ms. Boone must be reinstated to her
employment and made whole as to lost wages and benefits. As there is no just
cause for discipline or discharge proven, there is no need to discuss other issues
including exacerbating or mitigating circumstances.
Pursuant to the request of the Appellant, the arbitrator shall retain jurisdiction
for the purpose of resolving any disputes regarding the “make whole” portion of
the remedy.
Christine Boone Page 36 of 36.
Michigan Department of Energy, Labor & Economic GrowthAAA 54 390 00896 10; Termination of Employment / Christine Boone
DECISION
For all the above stated reasons, the grievance is granted. Ms. Boone shall be
reinstated to her former employment and made whole as to lost wages and benefits.
Dated:
May 23, 2011
American Arbitration Association
VOLUNTARY LABOR ARBITRATION TRIBUNAL
In the Matter of the Arbitration Between:
Table with 3 columns and 6 rowsCHRISTINE BOONE Appellant, AAA No.: 54 390 00896 10 -and
Issue:
Grievant: Discharge
Christine Boone
Arbitrator: Michael P. Long MICHIGAN DEPARTMENT OF
Table endENERGY, LABOR & ECONOMIC GROWTH
Appellee,
________________________________________________________/
AWARD OF THE ARBITRATOR
The UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitrationagreement entered into by the above-named Parties, and having been duly sworn and having duly heardthe proofs and allegations of the Parties, AWARDS as follows:
For all the above stated reasons, the grievance is granted. Ms. Boone shall be reinstated to
her former employment and made whole as to lost wages and benefits. Pursuant to the
request of the Appellant, the arbitrator retains jurisdiction for the purpose of resolving any
disputes regarding the “make whole” portion of the remedy.
Dated: May 23, 2011
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