Officer’s invocation of spousal privilege is not a failure to cooperate, termination overturned
Arbitrator Russel Bergstedt sustained a grievance filed on behalf of a Tulsa police officer dismissed for failure to answer a question during an Internal Affairs investigation. City of Tulsa and FOP Lodge 93. The officer’s husband (also a Tulsa police officer) had been alleged to have shot and killed their daughter’s boyfriend. While grievant was initially charged with being an accessory after the fact, that charge was dropped. Six months after the shooting, at the Chief’s direction, an Internal Affairs investigation was initiated concerning grievant’s earlier arrest on the accessory charge. During the IA interview, grievant declined, on the advice of counsel, to answer one of the questions on the grounds of spousal privilege. The interview was cut short and grievant was subsequently advised that, while the investigation found no basis for a conclusion that she had been an accessory after the fact, her employment was being terminated because of her failure to cooperate in the investigation.
While the parties disagreed on the applicability of the spousal privilege to the circumstances here, the Arbitrator sustained the grievance, concluding:
I find the violation of Rule 6 is without merit given the protections afforded [grievant] by and through her Garrity rights. While being afforded protection under those rights, “…neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding. I further wish to advise you that if you refuse to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to department charges which could result in discipline or dismissal from the Tulsa Police Department.” [Grievant] never refused to answer question 12 from the IA interview, she responded, “On the advice of counsel.” [Grievant] was entitled to, “…all the rights and privileges guaranteed by the laws of the State of Oklahoma and the Constitution of the United States of America.
Arbitrator rejects termination of police officer for Facebook posts
Arbitrator Thomas Gibbons overturned the termination of a Peoria police officer dismissed because of what the Department described as “racialized” Facebook postings. Peoria Police Benevolent Association and City of Peoria. In response to articles about the closing of supermarkets in the South Peoria neighborhood, the officer made comments about numerous thefts at the stores. The officer’s page also included photos of him in uniform, and one wearing a t-shirt with the legend “Baby Daddy Removal Team.” The Department’s termination decision was based on its belief that by his postings grievant had engaged in “conduct unbecoming.” Rejecting the City’s position, Arbitrator Gibbons found no evidence that the posts were racially motivated, and concluded:
Just cause mandates that the City act on the Grievant’s actual words, not the public’s reaction to what they infer what Grievant meant by his words or what even the City infers to be Grievant’s meaning and intent of his words. The Grievant explicitly said in his posting that he was not talking about race but rather he was addressing crime as the community’s problem. It is Grievant’s only reference to race in his postings but the one reference ignored by the City and the community. And as stated before, the lack of a social media policy at the time of this discipline, thus denying Grievant with fair notice that his postings could lead to discipline, is also concerning. Ultimately, just cause requires more to terminate a 17-year police veteran with a relatively unblemished record with no history of racist or discriminatory conduct directed toward Peoria’s minority citizens. [footnote omitted].
The Arbitrator found it unnecessary to resolve the Union’s claim that grievant’s postings were protected by the First Amendment.
The issue of racially charged messages in social media is also addressed in Several recent cases address use of racial epithets or biased statements by employees – on duty, off duty and on social media and End of year Quick Hits – Public Safety, Public policy, Arbitrability and Injunctions pending arbitration
Termination of officer for antisemitic comments upheld
Arbitrator John L. Woods upheld the termination of a Miami, FL police Sergeant for what were alleged to be his antisemitic comments in a self recorded video made while cleaning out the Union’s offices. (The video can be viewed here.) Roberto Destephen and City of Miami. Arbitrator Woods rejected grievant’s argument that the Department was without jurisdiction to investigate the incident because it occurred off duty and while grievant was acting “in the capacity of a union official.” The Arbitrator found that grievant’s conduct “garnered international attention based on the video’s content which displayed offensive behavior towards the Jewish community,” and concluded that grievant’s conduct resulted in “irreparable harm concerning his status in the community within any capacity with Miami Police Department” and “he cannot be rehabilitated.”
Termination of Fire Lieutenant in charge reduced to
Grievant was the Lieutenant in charge of the scene to which rescue personnel had been dispatched. A subsequent investigation determined that the team had not properly handled the situation and had breached a number of policies in the process. While all of the employees who were at the scene were disciplined, grievant was the only one whose employment was terminated. Arbitrator Stephen Owens reduced the termination to a suspension, noting grievant’s prior good record, and the absence of progressive discipline. Hillsborough County and Hillsborough County Firefighters, IAFF, Local 2294. While finding that the County had proved by clear and convincing evidence that it had just cause to discipline grievant “for his failure to effectively manage and control the situation,” he also found that the other three medics on the scene had contributed to the errors made. Those other individuals were disciplined short of termination. Arbitrator Owens concluded that “[a]n essential element of just cause is the principle of progressive discipline.” The County’s failure to apply progressive discipline in this case, while affording it to the other individuals on the scene, undermined the case for termination. Accordingly, Arbitrator Owens reduced the termination to a suspension and ordered grievant’s reinstatement.
Arbitrator finds just cause is the appropriate standard despite the absence of an explicit just cause provision in the cba.
In Cascades Containerboard Packaging v. Graphics Communications Conference of International Brotherhood of Teamsters, Local No. 503, the Company seeks to set aside an award of Arbitrator Eric Lawson, arguing that he improperly aded a just cause for discharge provision to a cba where no such provision was explicitly included. The grievance in issue involved the termination of an employee for alleged FMLA abuse. Arbitrator Lawson’s award acknowledged the absence of an explicit reference to just cause in the discipline article of the cba. He concluded, nevertheless, that other provisions of the cba, including seniority, a reference to a probationary period for new employees, and language in the cba’s preface stating the intent of the parties for “the promotion of harmonious relations … [and] the establishment of an equitable and peaceful procedure for the resolution of disputes …” were counter to the Company’s claim that it could terminate employees “at will.” He observed:
To evaluate these competing positions it is necessary to adopt a standard by which the Grievant’s discharge can be measured since if it is found that the discharge was without merit that would sharpen the focus as to what the reasons for the discharge actually were. Such a standard is just cause, a measure which both parties agree appears in many union/management contracts, perhaps a majority .In addition, the review of “specific provisions” in JE I set forth above discloses the need for a standard to reconcile these provisions and reconciliation is needed to meet the purpose described in the preamble, i.e., “harmonious relations” and an “equitable and peaceful procedure for the resolution of disputes”. In addition, the absence from Article 6 of a written standard by which a “disciplinary action” can be grieved does not automatically give rise to the imposition of the unrecorded at will doctrine advanced by the Company.
The Company asserts that the Arbitrator exceeded his authority by going beyond the scope of the cba and “exhibited a manifest disregard of the law by inferring a just cause standard that does not exist in Article 6 of the CBA.”
Similar issues are raised also in Prairie Farms Dairy, Inc. v. Teamsters Local 525 (alleging Arbitrator exceeded his authority when he reinstated an employee despite finding that the Company had “serious just cause” as set forth in the cba) and Securiguard, Inc. v. Uniformed Government Security Officers of America, Local 276 (asserting that the Arbitrator’s reinstatement of grievant after finding that he had committed a Level Two offense despite language in the cba that commission of a Level Two offense “shall subject an employee to immediate discharge.”)