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In re the
Pike County Sheriff,
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
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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