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In re the
Pike County Sheriff,
and the
Fraternal Order of Police,
Ohio Labor Council, Inc.
November 21, 2001
116 LA (BNA) 843
FMCS Case No. 01/1135
Fred E. Kindig, Arbitrator*
* Selected
by parties through procedures of the Federal Mediation and Conciliation Service
ARTICLE 4:
MANAGEMENT RIGHTS
A. The Management of the Pike County
Sheriff's Department has, as it always had, the exclusive right to manage the
business of the Pike County Sheriffs Department and to direct the working
forces. Management's failure to exercise any of its rights under this Agreement
does not indicate that Management is unable to exercise such rights in the
future. The rights of Management include but are not limited to the right
to:
5. suspend, discipline,
demote, or discharge for just cause or layoff, transfer, assign, schedule,
promote or retain employees;
ARTICLE 8: PERSONNEL FILES
D. Disciplinary Action Records.
1. If there has been no
intervening discipline, any record of written will be removed from the employee's
personnel file two (2) years after issuance and will cease to have force and
effect thereafter.
2. If there has been no
intervening discipline, any record or minor suspension (five (5) days or less)
will be removed from the employee's personnel file three (3) years from the
date of issuance and will cease to have force and effect thereafter.
3. If there has been no
intervening discipline, any record of major discipline, including but not
limited to suspensions of more than five (5) calendar days, will be removed
from the employee's personnel file five (5) years from the date of issuance and
will cease to have force and effect thereafter.
ARTICLE 14: SENIORITY
C. Seniority shall be broken when an
employee:
1. resigns; or
2. is discharged for just
cause
ARTICLE 29: DISCIPLINE
A. Purpose.
The Sheriff agrees that a member of the
bargaining unit shall not be peremptorily discharged after the effective date
of this Agreement, but in all instances in which the Sheriff may conclude that
a bargaining unit member's conduct may justify suspension or discharge, the
bargaining unit member shall first be suspended. Such initial suspension shall
be for not more that seven (7) calendar days. No discipline shall be taken against
unit member except for just cause.
C. Disciplinary action involving verbal or
written warnings and/or reprimands will be removed at the end of two (2) years
providing no intervening disciplinary action has occurred. Disciplinary action
involving suspensions of five (5) days or less shall be maintained in a
bargaining unit member's personnel file for two (2) years providing no
intervening disciplinary action has occurred. Disciplinary action involving
suspension of five (5) calendar days or more shall be maintained in a
bargaining unit member's personnel file for five (5) years providing no
intervening disciplinary action has occurred.
ARTICLE 31: GRIEVANCE PROCEDURE
A. The term “grievance” is defined as an allegation
by a bargaining unit member, the O.L.C. or the Employer that there has been a
breach, misinterpretation, or an improper application of this Agreement. It is
specifically agreed by the parties that the grievance procedure is not to be
abused so as to the effect changes in this Agreement nor to address those
matters not specifically set forth by this Agreement.
The Grievant, F__, began his employment with
the Employer in October of 1995 as a Deputy/Dispatcher. In 1996 he became a local
union associate, and effective April of 1997 he was promoted to Road Deputy. On June 26, 1996 the Grievant
was issued a written reprimand for insubordination, for failure to follow an
order. As of November 23, 1996, he was suspended from December 14, 1996 to
December 17, 1996 for inefficiency and neglect of duty, and as of January 13,
1997, he was suspended from January 16, 1997 to January 20, 1997, again for
inefficiency and neglect of duty. On April 18, 1997, the Grievant was issued a
five day suspension for misuse of sick leave, with the suspension running from
June 18, 1997 to June 23, 1997.
On August 28,
1998, the Grievant was given a thirty day suspension, which included a last
chance letter of agreement with the Union and the Grievant. On November 4,
1998, he received a verbal reprimand, or letter of counseling, for a prisoner
escape, and on April 19, 1999 he received a written warning for posting
inappropriate material on the office bulletin board. On November 3, 1999, he
received a written reprimand for neglect of duty for failure to attend a
mandatory staff meeting. On January 18, 2001, the Grievant received a letter of
counseling warning for failure to attend staff meetings, and on February 8,
2001, he received a written reprimand for dishonesty and neglect of duty.
The Grievant was given a Pre-Disciplinary
notice for a March 30, 2001 hearing concerning the January 18 and February 8
charges, with a notice that it was Sheriff's intent to terminate his employment
pursuant to the August 28, 1998, last chance agreement. The Pre-Disciplinary
hearing was held on April 6, 2001, before a neutral hearing officer, Scioto
County Sheriff Marty Donini, who issued a report on the hearing on April 10,
2001 and which upheld the February 8, 2001 charge. As a result, on April 19,
2001, the Employer issued a termination letter to the Grievant, with said
termination effective April 19, 2001. Thereupon, the subject grievance was
filed, which led to the instant arbitration.
The Employer contends that the Grievant was
aware of the Sheriff's Office rules and regulations and that, in December of
1996, he signed that he had attended a Staff Meeting in which several rules
were distributed and discussed. Further, the Memo of September 15, 2000 that he
signed also emphasized notifying dispatch when officers are exiting their
vehicles. The Grievant had been suspended, given written reprimands, letters of
counseling and a “last chance” agreement, which placed him on notice that the
consequences of his action could cost him his job, such that the Employer has
met two of the tests of just cause.
Former Major Smith's report clearly
established that the Grievant had not signaled out twice, once when he went to
his residence and once when he went to the Beaver Fire Station for a meeting on
non-Sheriff business and without permission. The Union did not produce a
witness that stated that the Grievant had permission to attend the meeting.
Although former Deputy Chattin testified that he had heard the Grievant tell
Corporal Harris he was going to said meeting, he admitted he had not heard
Harris give the Grievant permission to attend the EMS meeting at Beaver.
Corporal Harris is a bargaining unit member and could have been available to
testify for the Union, but was not called by the Union. Sheriff Travis stated
that he specifically told the Grievant to put it in writing when he wanted to
attend EMS meetings. Hearing officer Donini determined that the Grievant was
investigated in a fair and objective manner and every effort was made to
determine his guilt prior to any disciplinary action, such that tests three and
four for just cause were also met.
The Employer notes that the Grievant was given numerous opportunities
after the last chance agreement. First, the prisoner incident on
November 4, 1998, second, the admonishment not to post sexual oriented material
on bulletin boards, in April of 1999, third, a written reprimand on November 3,
1999, for failing to attend a required staff meeting and fourth, a warning for
failure to attend a meeting for SRT, with a caution about the consequences of
his last chance agreement. It is noted that no grievances were filed for said
four disciplinary actions, and the Grievant's reasons for not doing so do not ring
true. Thus the Employer was lenient and more than fair with the Grievant before
the February 8, 2001 incidents. The Sheriff had substantial evidence of the
Grievant's guilt on the February 8th incident as well as the other instance
previously committed by him, and the hearing officer's report, before he issued
the termination notice of April 19, 2001, thus fulfilling the fifth test of
just cause.
The last chance agreement puts the Grievant
in a different category for discipline than the average employee and the rules
were fairly applied in any case. Examination of all of the exhibits shows that
the Grievant's disregard for orders was not improving, and although he knew the
rules he consistently ignored them. The degree of discipline imposed because of
the last chance agreement put the Grievant at a final threshold, and although
he had his job saved once, he failed to save himself, such that tests six and
seven for just cause have also been fulfilled.
The Employer notes that SERB dismissed the
unfair labor practice charge, which claimed that the Grievant was fired for
filing the grievance against the Sheriff's wife, as lacking merit. It also
noted that apparently being well trained does not make one follow the rules and
avoid discipline, and the last chance agreement changed the requirement for the
Grievant that suspension should have occurred before discharge as per Article
29-A. As to the Union's claim that the Arbitrator should only consider the two
charges of the pre-disciplinary hearing notice, it must be noted that the
Sheriff stated that “any sustained discipline that occurs during this period
will be automatic cause for F__'s termination of employment.”
The Arbitrator is asked to reject the
grievance and to uphold the discharge as being for just cause and for three
disciplines (four different instances) being sustained and part of the
Grievant's personnel files and records. The Grievant kept committing the same
offenses over and over, such as insubordination, missing meetings, and inappropriate
behavior. The Employer asks the Arbitrator to uphold the last chance agreement
and the Grievant's discharge.
The Grievant was terminated for two allegations of misconduct, failure to
attend a staff meeting on January 10, 2001, and failure to mark out to attend
an EMS meeting on February 8, 2001. He had already received a letter of
counseling for the first allegation and a written reprimand for the second
allegation. Thus, he had already been disciplined for each of the charges and
received the penalty for each allegation. Therefore, the Employer was barred
from utilizing said allegations as a basis for additional discipline, as it has
been widely held that once discipline for a given offense has been imposed and
accepted it cannot thereafter be increased. Arbitrators have set aside
discipline imposed after a grievant has already been punished for the same
offense based on the principle of double jeopardy, which concept applies to a determination
of whether the discipline was for just cause.
Based on the Pre-Disciplinary Hearing
Findings, it appears that the grievant was only actually terminated for the
second allegation. The Employer's argument that it was no longer bound by the contract
because of the “last chance” agreement must fail, as all employees are entitled
to the rights and benefits set forth in the contract. By signing said
agreement, the Grievant did not forfeit his right to only be terminated for
just cause pursuant to the contract, and the Employer was still required to
prove that the Grievant was guilty of the charges for which he was fired and
that it complied with the due process requirement of progressive discipline. As
to the first charge, the Grievant awoke with a severe headache, took a sample
of Midrin which caused him to fall asleep, and as soon as he was paged he went
to the staff meeting. As to the second charge, deputies were allowed to take a
half-hour lunch break if not busy and the Grievant planned to take a quick
break since he was not busy, so he could go to the EMS meeting to vote to
change the meeting time so it would not conflict with his schedule. His
supervisor and other officers knew that he planned to attend the meeting but
did not stop him. The Sheriff was also aware of this, which is why he drove to
the building and saw the Grievant's car and instructed Major Smith to call the
Grievant to his house to confiscate his log. Even the Sheriff did not direct
the Grievant not to attend said meeting, and although other deputies were
allegedly disciplined for not marking out of their police vehicles, none were
terminated.
The Grievant had been disciplined for the
charges that led to his termination, and suddenly, after he filed a grievance
about the Sheriff's wife, the Sheriff terminated him. Since the date of said
grievance was February 17, 2001, and he was terminated right after said filing,
based on charges for which he had already been disciplined, the result becomes
completely logical that the Grievant was terminated solely due to the filing of
the February 17, 2001 grievance. The Grievant was a highly qualified, skilled
deputy and there must be some explanation as to why the Sheriff's department
would fire such a talented employee. The only plausible explanation is that the
Employer wanted to rid itself of an active Union representative. By terminating
the active Union associate for minor matters, the Employer sent a message to
the other deputies about the risks of participating in Union activities. The
discipline for the two incidents that led to the Grievant's termination was not
substantiated and therefore did not fulfill the requirement of just cause.
Therefore, the subject grievance should be sustained and the Grievant should be
reinstated with full back pay and benefits.
The Arbitrator agrees with the Employer that the grievant placed
himself in a completely different category than other employees concerning
discipline, when, by his unsatisfactory behavior as a then short term employee,
he created the necessity for the last chance agreement dated August 28, 1998
and signed it along with the Union. When said agreement was signed, it was
clearly understood that, “Any sustained discipline that occurs during this
period will be automatic cause for F__ termination of employment”, with the
phrase “during this period” referring to Article 29, subsection C of the
Agreement. Said last chance agreement also indicates that, “F.O.P. agrees that
this resolves all claims or grievances that could arise from F__ discipline up
to August 28, 1998.” If there were no such agreement, the Arbitrator would
agree with the Union that there would be the possibility of double jeopardy
involved herein.
The evidence is persuasive that there was “sustained discipline” during
said period because of the Grievant's continued unsatisfactory behavior, such
as the prisoner escape on 11/4/98, posting of unwanted material on 4/19/99, and
not attending a mandatory meeting on 11/3/99, all prior to the failure again to
attend a staff meeting on 1/18/01 and the dishonesty and neglect of duty on
2/8/01. It is the opinion of the Arbitrator that the Employer was actually very
lenient in its interpretation of the phrase “sustained discipline” and in not
terminating the Grievant sooner, considering the last chance agreement.
It should be noted that the parties agreed at the disciplinary hearing before
Sheriff Donini that there was no need for him to make a finding on the 1/18/01
allegation, but he did find that the 2/8/01 allegation did in fact occur, which
would warrant discipline.
The Arbitrator agrees that the 1/8/01 and 2/8/01 incidents, standing
alone, would not justify termination. However, the Grievant was well aware of
the Rules and Regulations, and specifically about notifying dispatch when
exiting one's vehicle as per the memorandum of 9/15/00. He also was aware of
the fact that he almost lost his job in 1998, and that the last chance
agreement he signed required him to demonstrate absolutely good and satisfactory
behavior. The Arbitrator finds it difficult to understand why an otherwise
qualified and well trained person, such as the Grievant, whose job it is to
expect and require the public to follow rules and regulations in the form of
laws, is either unable or unwilling to follow rules and regulations required by
his or her employer. The evidence is persuasive that the Grievant's disregard
for following the rules and regulations was not improving and that he
apparently was relying upon the Employer's lenient interpretation of sustained
discipline before “automatic termination of employment”. Clearly, the last
chance agreement changed the requirement for the Grievant that suspension
should have occurred before discharge, as per Article 29, Section A, of the
Agreement.
The Arbitrator rejects the claim that the
Grievant was terminated because of the grievance filed on 2/7/0l concerning the
Sheriff's wife. SERB dismissed the unfair labor practice charge concerning the
same claim as lacking merit, and the last chance agreement was signed long
before said grievance was filed, such that the Grievant already knew that his
behavior was considered unsatisfactory and should not be repeated on a
sustained basis. It was merely coincidental that the Grievant was actually
terminated shortly after the filing of said grievance, primarily because of the
time required to schedule the disciplinary hearing before the impartial hearing
officer, Sheriff Donini. As a result, the Grievant was terminated for just
cause because of the sustained disciplinary incidents on his record following
the last chance to agreement of 8/28/98.
In consideration of all of the facts in the
case, the testimony and evidence presented, and the post hearing briefs filed, in
accordance with the above opinion, the subject grievance is hereby denied in
its entirety.
1. The Grievant was terminated for just cause because of the sustained
disciplinary incidents on his record following the last chance agreement signed
by him and the Union on August 28, 1998.
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