Background

The grievant, Officer B__ was employed as a police officer at the Central Arkansas Veterans Healthcare System (VA) for approximately 4 years - the first three or so years of his service were at the Little Rock, Arkansas facility. Prior to his employment with the VA, B__ had 22 years service with the Los Angeles Police Department. B__ is now working at a VA location in another state. His grievance was filed while employed at the Little Rock facility.

The situation that initiated the grievance occurred on October 2, 2000. B__ received a call from a nurse requesting police assistance. The nurse had scheduled a meeting with an employee noted for his history of losing control of his emotions. She wanted an officer in the vicinity in the event that the employee became threatening. According to B__, he handled the situation appropriately by advising the nurse that no officer was available at the time of her call. An investigation conducted by the Chief of Police and Security Service concluded that B__ did not handle the request for police assistance according to established procedures. For his improper handling of the situation on October 2, 2000 B__ received a five-day suspension on December 15, 2000, to be served from December 29, 2000 to January 2, 2001.

The date of the filing of the grievance is in controversy. The VA argues that the grievance was not filed appropriately and is therefore, not arbitrable. The Union argues that the grievance was filed properly. What's more, the Union alleges that the VA failed to respond to the grievance in a timely manner and is obligated to remedy the grievance as proposed by B__. The Union also alleges that the disciplinary action against B__ was not based on just cause.

Stipulations

The parties stipulated that:

On October 2, 2000, B__ received a telephone call from Jennifer Connors requesting the presence of a police officer because she was meeting an employee in the Union office and thought he would become threatening upon receipt of her message.

Jennifer Connors called her husband, Billy Bob Connors, Chief of Emergency Preparedness, VA, concerned that B__ not going to dispatch an officer upon her request.

Billy Bob Connors then telephoned Assistant Chief of Police Walter Rein requesting assistance for Jennifer Connors.

Rein then telephoned Lieutenant Del Gieber and caused Officer David Harrell to respond to Jennifer Conner's request for assistance.

Issues

The case involves three issues. The issues in accordance with the sequence in which they have to be addressed are:

Is the grievance arbitrable based on the language of the Master Agreement between he parties?

If the grievance is arbitrable, is B__ entitled to his remedy as indicated on the grievance form? That is removal of the suspension from his record and pay for time lost during the suspension because the VA did not respond in a timely manner to his grievance?

If the grievance is arbitrable and B__ is not entitled to his remedy as indicated on the grievance form, was his suspension based on just cause? If not, what is the appropriate remedy?

[The section relating to arbitrability has been redacted].

Merits of the Grievance

VA's position on the merits of the grievance **

Tabieros testified that he was in the police office and heard B__'s portion of the conversation with Conner. He testified he heard B__ tell Conner that she should not schedule an interview with an individual which she was uncomfortable with. Tabieros also testified that B__ told the telephone caller that the police officers would be busy in the parking lots when she needed assistance. To which Tabieros told B__, “you might want to reconsider that.” Tabieros felt that if officers are requested, they should respond even if they are engaged in a parking lot assignment.

Engel testified that after Rien notified him of Conner's complaint, he investigated the incident. Engel reviewed Tabieros' mailman message, Gieber's Report of Contact, Conner's notes of the incident, and interviewed B__. In a similar incident in the past, Engel had given an employee a 5-day suspension and the same action for B__ was appropriate for his disrespectful response to Conner and for failure to timely make a log entry related to the incident. Engel also noted prior reports of B__'s rudeness to visitors where he had been counseled about his behavior.

The penalty of a 5-day suspension was appropriate. Failure to dispatch an officer to a call is a serious offence. Rudeness to a complainant is also serious. Further, failure to document events on the police log in a timely manner undermines the confidence in the reliability of the information.

In the present matter, a complainant felt she had to pursue police assistance through non-traditional ways because the traditional way to summons help did not appear effective. Hospital Police have a different mission than that of a municipal police department. The policeman at a college or hospital is the first line ambassador for that institution. It is not uncommon to dispatch an officer to the aid of a staff member who anticipates a disorderly response from a patient. Part of the police officer's job is to assure confidence as to the safety of the hospital.

Conner believed, from her telephone conversation with B__, that help would not arrive. She stated: “What alarmed me was the answer I received in response to the above request—`That's not possible. We will be outside for change of shift at that time.' ” B__'s behavior could undermine the confidence in the department in the minds of patients, employees, and guests who hear of this incident.

B__ claimed that “being rude is not my way of doing things.” B__ said he was neither loud nor yelling. However, the act of disorderly conduct and the act of rudeness are not necessarily the same. Both on direct examination and on cross examination, B__ said if he was rude he should have been given the suspension. On this, the VA concurs with B__. For the reasons stated above and based on its merits, the grievance related to the five-day suspension should be decided in favor of the VA.

The Union's position on the merits of the grievance ***

The VA alleged that B__ showed disrespectful conduct to or about other personnel and careless or negligent workmanship resulting in waste or delay. B__ had never received any disciplinary action prior to the five-day suspension.

The facts show that on October 2, 2000, B__ received a call from Jennifer Conner requesting to have someone from the Police and Security Service Department available while she was interviewing someone in her capacity as a union steward. After her call to B__, Conner called her husband who then called the Police and Security Service Department office. Conner did not testify at the hearing.

B__ testified that he did receive a call from Conner requesting that an officer be in the area of her interview. He advised her that for the time she was requesting assistance the officers were assigned to the parking lots. B__ testified that at that time Conner terminated the conversation. The grievant then notified supervisor Lt. Tabieros of the phone call. Tabieros advised the grievant that maybe he should rethink the situation and send an officer.

At about the same time, Lt. Gieber received a call from the Assistant Chief of Police Walter Rein advising Gieber that he had received a call from Conner's husband. Gieber then inquired of B__ of the nature of the phone call. At that time, Harrell was dispatched to respond to Conner's call for assistance.

The action of B__ did not warrant discipline. A supervisor was immediately informed of the call from Conner. He suggested that B__ reconsider or rethink the situation. An officer was dispatched almost immediately. The testimony showed that the call from Conner and the subsequent call to Rein occurred in a very short time frame. Gieber inquired as to the call from Conner by B__. Harrell supported the testimony and documentary evidence revealed that the grievant did not act in a disrespectful manner. Even Tabieros' report of contact and his testimony did not show any knowledge of disrespectful or rude behavior on the part of the grievant. The burden was on the employer to prove the charges. The VA failed to carry its burden.

The arbitrator in discipline cases is confronted with two questions: (1) whether or not there was any grounds for the imposition of discipline, and (2) if discipline was justified, whether the level of penalty was appropriate. Assuming, arguendo, that the VA met its burden on proving its grounds for discipline, the penalty imposed is not justified. The collective bargaining agreement recognizes progressive discipline is designed to correct behavior, not punish. The intent of any discipline is to correct behavior before the heavier penalties are reached. To impose a heavy penalty for a first offense would be to deprive the employee of the opportunity to correct wrongdoing potentially depriving the employer of the opportunity to retain in its employ an employee who has reformed. The assumption of progressive discipline is that there will be oral warning, a written warning, a counseling, and a reprimand before the imposition of a suspension.

This case is properly before the arbitrator. The VA did not meet its burden to prove by even a preponderance of the evidence that the charges against B__ occurred. Even if they had proved the charges, the discipline imposed was out of proportion to the charges in lieu of the fact that B__'s disciplinary record was unblemished. The union respectfully requests that the suspension of be rescinded. The Union also requests that B__ be made whole in all respects and the union be awarded attorney fees as provided by the Back Pay Act.

Discussion and Opinion

The reasons for B__'s suspension were not altogether clear based on the analysis of my notes, the exhibits presented at the hearing, and the briefs. For example, in its brief, the VA stated that “...[disciplinary] action for B__ was appropriate for his disrespectful response to Conner and for failure to timely make a log entry related to the incident.” However, Chief Engels did not mention anything about a failure to make a log entry in a timely manner related to the incident as a reason for taking disciplinary action in either his initial November 17, 2000 letter to B__ detailing the findings of his investigation or his December 15, 2000 letter to B__ about his final decision on disciplinary action. In his letter dated November 17, 2000, Engel wrote:

You did not notify your supervisor of the call, dispatch an officer to answer the call, nor did you go on the call yourself. You are charged with (a) disrespectful conduct to or about other personnel and (b) careless or negligent workmanship resulting in waste or delay.

No one knows for sure whether B__ was rude to Conner, Conner was rude to B__, both were rude, or neither was rude. With respect to improper notification of the incident, it is hard to imagine anyone in the department not being aware of what happened. People could hear B__'s side of the conversation, B__ told Tabieros (a supervisor) about his conversation immediately after the call, and Conner's husband called the assistant chief of police to complain shortly after the conversation between his wife and B__. Anyone needing notification was aware of the incident.

It seems to me that the primary reason why B__ was suspended, and the only reason that is relevant to this analysis, is that he was negligent in his duty to respond to a legitimate request for help. There are two relevant tests of just cause in the examination of this case. Did the VA have adequate proof of B__'s negligence? And, assuming there was adequate proof, was the five-day suspension reasonably related to the seriousness of his offense and his service with the VA.

There is no question that B__ was negligent. He was. And he should have been disciplined. What's left to consider is whether a five-day suspension was reasonable. It was not.

As a Lieutenant in the Police and Security Service Department, Tabieros needed to say more to B__ than “you might want to reconsider that” when B__ in effect refused Jennifer Conner's request for an officer because the officers were engaged in a parking lot assignment. Tabieros testified that in a situation when an officer is requested by a VA staff member for service, an officer should respond even if officers are otherwise engaged in a situation like a parking lot assignment. Therefore, Tabieros should have immediately taken matters into his own hands to see to it that Conner's request was taken care of. He did not do that. Instead, he suggested to B__, it what appeared to be an off-the-cuff remark, that he might want to reconsider his action. In his position of authority, Tabieros should have directed B__ to send an officer to Conner as she requested and to call her and tell her help was on the way. And, if B__'s initial handling of Conner's request was contrary to department policy, Tabieros should have noted that disciplinary action was warranted and taken action to see that B__ was set straight. All in all, B__'s mishandling of Jennifer Conner's request for service did not appear to be a big issue until she had her husband Billy Bob Conner, apparently a VA employee with significant influence in the VA, telephone Assistant Chief of Police Walter Rein requesting assistance for his wife and to complain about B__.

B__ exercised very poor judgment in his handling of Conner's request. As a career law enforcement officer he knew that an officer's primary duty is to protect and serve. That he discounted Conner's fears and lectured her about her role as a union official were behaviors contrary to his job responsibilities. That Conner got angry and hung up the phone is not surprising. That she called her husband is not surprising either. Surely, had B__ been thinking about his duty, he would have known there would be hell to pay for denying assistance to a any person requesting police assistance. B__ deserved to be disciplined.

But, given the circumstances as discussed above, a five-day suspension was excessive. There were no serious consequences or risks to Conner as a result of B__'s poor judgment. An officer did respond, albeit in an untimely manner and for the wrong reasons—Billy Bob Conner's call to Walter Rein. And, although there was testimony to the effect that B__ had been warned before about his lack of tact and that another employee had been suspended for five days for similar offenses, there were no documents to support that testimony.

Given B__'s record, I would have been inclined to reduce his disciplinary action to a written reprimand. However, I was concerned that B__ might consider a written reprimand as a slap on the wrist and, in effect, an endorsement of his handling of Connor's call.

Not once during the hearing did B__ show remorse, take responsibility for his actions, or show concern for possible consequences of his handling of the incident. In fact, he seemed completely justified in the way he handled Conner's call for help. Assuming he learns nothing from this situation, will B__ be inclined to repeat his intimidating style when people call for help? I think so. Is there a possibility that someone could be hurt as a result of B__'s intimidating response to calls for help? I think so.

AWARD

As mentioned above, I considered two tests of just cause in this case. With respect to first test, the VA has adequate proof of B__'s negligence. However, with respect to second test, the five-day suspension administered to B__ was not reasonably related to the seriousness of his offense and his service with the VA. In light of the above discussion, a one-day suspension is more in keeping with B__'s negligence in failing to respond to an employee's legitimate request for police protection. B__ will be reimbursed for the lost pay for the last four days of his suspension without interest. The VA will not be responsible for any other fees or assessments related to this case. I will maintain jurisdiction over the terms of this Award for an indefinite period of time should there be any controversy over the way this matter is resolved.

Footnotes

* Selected by the parties through procedures of the Federal Mediation and Conciliation Service.

** Edited from the VA's post-hearing brief.

*** Edited from the Union's post-hearing brief.

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