Arbitration Award and Opinion
Stark County [Ohio] Sheriff
Fraternal Order of Police
FMCS Case No. 031001/00019-6
Marvin J. Feldman, arbitrator, selected through Federal Mediation and Conciliation Service procedures.
Under the terms of the relationship between the parties, a notice of pre-disciplinary hearing is to be served upon a grievant who demands that such notice be forwarded. Such was the case in this particular matter. This decision is rendered on the basis of lack of due process, not on the basis of the activity that the grievant was involved with, in the triggering of his notice of discipline, such as it was. Because due process was not given to the grievant, it is unnecessary to discuss the substantive evidence in this particular case, but only necessary to discuss the pre-hearing disciplinary notice and its activity as contemplated by the parties.
Due process rights of grievants must be protected. An individual must have the right to controvert, by proof, every material fact of the charge. The signed off documents in this matter reveal that a pre hearing disciplinary conference be offered, if demanded. Such was the case herein. An undated notice of pre-disciplinary hearing was served on the grievant and his union. That notice, according to the employer, stated the alleged charges of the grievant. Those charges on that notice stated the following:
“11908.01 Conduct unbecoming an employee of the Stark County Sheriff's Office or creating an appearance of conflict of interest. (h) Misconduct, on or off duty, which seriously reflects on the department or the County. To wit: on numerous occasions between April 28, 2002 to Aug. 23, 2002 complaints were filed against your conduct off duty.”
The employer, by way of opening remark at the pre-disciplinary hearing stated the following:
“Perez: Okay. This hearing will be uh, tape recorded. You've been charged with 11908.01 Conduct unbecoming an employee of the Stark County Sheriff's Office or creating an appearance of conflict of interest. Misconduct on or off duty, which seriously reflects on the department or the county. To wit: on numerous occasions between April 28, 2002 and August 23, 2002 complaints were filed against you regarding your conduct off duty. We're here for the hearing today. I've received no witness list so I take it you have no witnesses.”
On August 28, 2002, and prior to this pre-disciplinary hearing, the union requested information of employer as to the evidence the employer would use at pre-disciplinary hearing: See the following:
TO: MAJOR MCDONALD
CC: SHERIFF TIMOTHY SWANSON
FROM: C.O. II ERIC CHANGET
RE: OFFICER H__
MAJOR MCDONALD WE (THE UNION) DO UNDERSTAND THAT OFFICER H__ IS SCHEDULED FOR A PRE-DISIPLINARY (sic) HEARING ON 9-4-02. WE WOULD LIKE TO BE ABLE TO BE PREPARED FOR THIS PRE-DISIPLINARY (sic) HEARING. WE ARE REQUESTING THAT ANY AND ALL INFORMATION THAT YOU HAVE PERTAINING TO OFFICER H__ (sic) PRE-DISIPLINARY (sic) HEARING BE MADE AVAILABLE TO US. THANK YOU FOR YOUR TIME AND CONSIDERATION IN THIS MATTER.
S:// ERIC CHANGET”
The employer answered as follows:
“DATE: September 2, 2002
TO: Officer Eric Changet
F.O.P. Union Rep.
FROM: Major Michael A. McDonald
RE: Your request on items for the H__ Hearing
As per your request for any and all information pertaining to the H__ Pre-Disciplinary Conference, we have informed Officer H__ of the allegations that have been made against him. He has been given an opportunity to respond to these allegations and he has been made fully aware of the circumstances that have led to the Pre-Disciplinary Conference.
If you are planning on representing Officer H__ in the hearing, you will be provided with copies of material that I will be submitting to the hearing officer.
If you have any further questions in reference to this matter, please feel free to contact me.
S:// Major Michael A. McDonald”
According to evidence, it was revealed by the employer that an interrogation of the grievant took place by way of an internal affairs investigation. The date of that interrogation was August 8, 2002. The union had a representative present but not the representative that usually represented him. That occurred because management would not change the date so that the regular representative of the grievant could be present. The interrogation was 102 pages as transcribed by an employer typist all of which was placed into evidence. It was presumed by the employer, evidently, that the 102 pages of inquiry was sufficient to cause the employee to know the charges against him and to cause the employer to answer as it did to the union's request for specificity.
The question must be answered as to whether the notice of pre-disciplinary hearing, as served, in and of itself, is adequate to protect the grievant's rights of due process as allegedly mandated under the rules for pre-disciplinary hearing notices. It might be noted that the interrogation of the grievant took place on August 8, 2002 and the pre-hearing took place on September 4, 2002.
It appears that the pre-hearing discipline conference is established in the contract, see Article 9 of the contract at Section 3 which states the following:
“SECTION 3. Upon his request, an employee shall be permitted to have a Union representative present during a formal disciplinary meeting. If a union representative is requested by a member facing pre-disciplinary hearing, the Union Staff Representative or his designee shall represent members of the bargaining unit at all pre-disciplinary hearings or disciplinary meetings.”
Also see the attachment to the notice of pre-disciplinary conferences scheduled for September 4, 2002 at pages 2 and 3, which attachment is stated in full as follows:
“Whenever the employer, or his designee, determines that an employee may be disciplined for cause (suspension, reductions or termination), a pre-disciplinary conference will be scheduled to give the employee an opportunity to be heard with regard to the matter.
Pre-disciplinary conferences will be conducted by a neutral individual who will be selected by the employer, or his designee, from those supervisors, or other persons not directly in the chain of command, of the employee.
Not less than twenty-four (24) hours prior to the scheduled starting time of the conference, the employer will provide to the employee a written outline of the charges which may be the basis for disciplinary action. The employee must choose to: (1) appear at the conference to present an oral or written statement in his or her defense; (2) appear at the conference and have a union representative present an oral or written statement in defense of the employee; or (3) elect in writing to waive the opportunity to have a pre-disciplinary conference.
At the pre-disciplinary conference, the neutral individual will ask the employee, or his or her union representative, to respond to the allegations of misconduct which were outlined to the employee. Failure to respond, or respond truthfully, may result in further disciplinary action. However, if the nature of the allegations are such that possible criminal charges may be involved, the employee may assert any appropriate constitutional privilege without fear of disciplinary action based upon his or her assertion of such privilege.
At the conference, the employee and employer may present any testimony, witnesses, or documents which explain whether or not the alleged misconduct occurred. The employee shall provide a list of witnesses through his or her union representative to the neutral individual as far in advance as possible, but no later than on (sic) (1) hour prior to the conference. It is the employee's responsibility to notify witnesses that their attendance is desired.
The employee, or his or her union representative, and the employer will be permitted to question witnesses. A written report will be prepared by the neutral individual concluding as to whether or not the alleged misconduct did occur. The employer will decide what discipline, if any, is appropriate. A copy of the neutral individual's report will be provided to the employee within five (5) days following its preparation.”
Thus, the understandings of the parties contemplate the use of a pre-hearing discipline notice as part and parcel of the grievance procedure of the employees within this bargaining unit. It has meaning. It is to allow the grievant notice of the charges, with some specificity, that he or she is being held responsible. Upon reading the notice in this case, it can easily be seen that the document falls far short of specific notice to the grievant. By saying, the “grievant knows” of the charges is to beg off on the specificity mandated for the pre-disciplinary notice language. The interrogation of August 8, 2002, is not even mentioned in the pre-disciplinary notice. Nor is it inclusive by oral reference at hearing sufficient to cure the defect of the generic language in the notice. It reminds me of the movie “I Know What You Did Last Summer.”
The employee in this case is charged with the supreme penalty of the industrial society. Discharge! Due process must be followed. Specific notice of wrongdoing must be given. That was not the case in this matter. It simply is not enough to say, “he did it and he knows what he did.” The rules of procedure mandated by the documents, i.e., revealed that due process must be followed.
There was such a request by the union for information on August 28, 2002. It was denied and ignored. Such cannot be the case if the rules of pre-disciplinary hearing notice are adhered to. Charges without specification are meaningless. The chronology revealed that the interrogation occurred; it was followed by a pre-disciplinary notice; it was followed by a request for information; it was followed by a denial and all of that was followed by the pre-disciplinary hearing. The grievant was prejudiced by a failure to state the written charges with some specificity. Simply put, the grievance must be granted for failure of the employer to follow due process, i.e., the notification demanded in the pre-hearing disciplinary notice writings.
It might be noted further, that the grievant was advised of the notice of his interrogation on August 8, without due regard for a date to which his regular union representation could be present. A continuance was not granted.
The reason the grievance must be granted in this matter is because of a failure by the employer to give due process or adequate notice of the specific charges to the grievant. Specific notice of wrongdoing was lacking.
This Award is not meant to vitiate any prior discipline.
Grievance granted. The grievant shall be reinstated with full back pay, seniority and benefits forthwith.