City of Elgin
Elgin Police Dept.
119 LA (BNA) 517
Arbitration Case No. 02/074
October 3, 2003
Elliott H. Goldstein, Arbitrator
The stipulated issue is as follows:
Was there just cause for the issuance of the grieved suspension of Grievant H__. If not, what shall be the remedy?
The grievance is sustained in part and denied in part, as set forth more fully below.
Item 2. Management Responsibilities
The City shall retain the sole right and authority to operate and direct the affairs of the City and the Police Department in all of its various aspects, including, but not limited to, all rights and authority exercised by the City prior to the execution of this Agreement, except as modified in this Agreement. Among the rights retained is the City’s right to determine its mission and set standards of service offered to the public; to direct the working forces; to assign overtime; to plan, direct, control and determine the operations, or services to be conducted in or at the Police Department or by employees of the City; to assign and transfer employees within the Police Department; to hire, promote, demote, suspend, discipline, or discharge for just cause, or relieve employees due to lack of work or for other legitimate reasons; to make and enforce rules and regulations; to change methods, equipment or facilities; provided however, that the exercise of any of the above rights shall not conflict with any of the specific provisions of this Agreement. Any matters within the jurisdiction of the Elgin Board of Fire and Police Commissioners shall not be affected by the terms of this paragraph.
Item 14. Grievance Procedure
Section a. Definition of a Grievance. A grievance for the purpose of this Agreement is defined as a difference of opinion between an employee covered by this Agreement and the City with respect to the meaning and application of the express terms of this Agreement and matters involving the discharge, suspension or discipline of non-probationary employees. Such disciplinary grievances shall be initiated at step 4 of the grievance procedure. The contractual grievance and arbitration procedure shall be the sole recourse for appealing such disciplinary action and shall be in lieu of the provisions of the Board of Fire and Police Commissioners Act and disciplinary proceedings before the City of Elgin Board of Fire and Police Commissioners. * * *
Step 5. Arbitration. If the grievance is not settled in accordance with the foregoing procedure, the Association may refer the grievance to arbitration by giving written notice to the City Manager within ten (10) calendar days after receipt of the City’s answer in Step 4. The parties shall attempt to agree upon an arbitrator promptly. In the event the parties are unable to agree upon an arbitrator, they shall jointly request the Federal Mediation and Conciliation Service to submit a panel of five (5) arbitrators. The Association shall strike two (2) names and the City shall then strike two (2) names; the person whose name remains shall be the arbitrator; provided that either party before striking any names, shall have the right to reject on [sic] panel of arbitrators. The arbitrator shall be notified of his/her selection by a joint letter from the City and the Association requesting that he/she set a time and place for hearing, subject to the availability of the City and Association representative. The arbitrator shall have no authority to amend, modify, nullify, ignore, add to, or subtract from the provisions of this Agreement. He/she shall consider and decide only the specific issue(s) submitted to him/her and his/her opinion shall be based solely upon his/her interpretation of the meaning or application of the terms of this Agreement to the facts of the grievance presented. Where the parties mutually agree in writing, more than one grievance may be submitted to the same arbitrator. The decision of the arbitrator shall be final and binding. The costs of the arbitration proceeding, including the fee and expenses of the arbitrator, shall be borne equally by both parties; provided, however, that each party shall be responsible for compensating its own attorneys, representatives, or witnesses.
Item 27. Employee Discipline
Section a. Standards of Discipline
All disciplinary action against officers covered by this Agreement shall be carried out in accordance with department rules, regulations, orders, policies, procedures, City Ordinance, Board of Fire and Police Commissioners’ Rules and Regulations, and State laws governing the discipline of law enforcement officers.
The City agrees with the tenets of progressive and corrective discipline where appropriate. However, when the severity of an infraction is great, discipline outside the progression shall be considered an appropriate remedy. It should also be recognized that when using the principal of progressive discipline, all aspects of performance are taken into consideration. Individual infractions standing alone may not warrant action beyond the first, but when cumulatively with warnings and other discipline actions, more extreme action may be appropriate. No non-probationary employee may be removed or discharged, or suspended, for a period of more than five (5) calendar days, except for cause.
Section b. Departmental Discipline
Disciplinary action rendered by the Department may take any one or more of the following forms:
a. Oral reprimand;
b. Written reprimand;
c. Suspension without pay;
Suspension without pay and recommendations for dismissal are to be levied by the Police Chief or his designee. * * *
On April 25, 2002, the Grievant, a police officer employed by the Elgin Police Department for approximately 16 years, arrived at a restaurant known as Quizno’s for his lunch break. At the time he arrived there, Police Officer Piazza was already there and Police Officer Danner entered the restaurant a short time later. Section 41.1.5(H), WORK BREAKS, of the Elgin Police Department’s “SOP”(Standard Operating Procedures) reads as follows:
“H. No more that [sic] two marked police units may be at any location while taking a work break. Exceptions may be granted by a supervisor under special circumstances. This section does not apply to plainclothes or unmarked units.”
According to Sergeant Troiola, Section 41.1.5(H) is known as the “two-car” rule, which exists for reasons of public safety (officers must remain in the vicinity of the citizens they protect) and public perception (the public should not have to wonder why three polices cars are parked at one restaurant). Troiola testified that when police officers desire a work break, they must radio their requests to communications personnel who allow the breaks based on manpower requirements and on the order in which the break requests are received. When an officer’s break is allowed and he is cleared to go to lunch, he is supposed to inform communications that he is en route to his lunch destination. Once he arrives there, he should then “call out” his location. The officers’ lunch breaks end 40 minutes after they “call out.” By “calling out” their lunch break requests and eating locations over the radio, the officers are aware of the schedules and whereabouts of their fellow officers.
Troiola testified that, on the incident date, he and Police Officer Reardon were en route, in their separate cars, to Quizno’s, a restaurant located on Elgin’s west side. Situated in a strip mall, Quizno’s is just one of a few restaurants located there, Troiola stated. When Officer Reardon entered the restaurant, Police Officer Piazza, who was already there, told him be and Police Officer Danner had decided to eat there and he, Piazza, was waiting for Danner. According to Troiola, he and Reardon did not eat at Quizno’s because Officers Piazza and Danner had decided to eat there first. If Troiola and Reardon had stayed, four cars would have been parked at Quizno’s in violation of “SOP”41.1.5(H). As Troiola and Reardon were exiting the mall parking lot, they saw the Grievant driving his marked police car into the parking lot. Troiola testified that he knew the Grievant had been cleared to take a lunch break, and because there were other eating establishments located in the mall, he was not concerned about where the Grievant would be eating lunch.
Troiola testified that he heard Piazza and Danner call out that they were eating at Quizno’s, before hearing the Grievant call out that he was going to eat there, too. In Troiola’s words, “I heard Officer H__ call out that he would be eating at Quizno’s, so that made a total of three marked police vehicles eating at that location.” Troiola testified that shortly after the Grievant had finished eating, he informed the Grievant that he had violated the “two-car” policy. According to Troiola, the Grievant told him he thought that the policy allowed up to three police units at a single restaurant, but that he had realized only two vehicles could be parked at the same location.
According to the record, later that day Troiola requested that the Grievant prepare a memorandum of what had transpired. The memorandum, entered into evidence as City Exhibit 1, reads as follows:
FROM: OFC. H__ 147
RE: 10-7 POLICY
REFERENCE OUR CONVERSATION ABOUT THREE SQUADS 10-7 AT THE SAME PLACE ON 04-25-02, AS I STATED I BELIEVED THE POLICY ALLOWED THREE SQUADS TO BE AT THE SAME PLACE. I DID NOT ATTEMPT TO COVER UP THE FACT THAT I WAS THE THIRD CAR, I CALLED OUT OF SERVICE ON THE RADIO GIVING MY LOCATION, AND CALLED BACK IN ON THE RADIO.”
According to the testimony of Troiola, prior to the April 25, 2002 incident, the Claimant had not committed any violation similar to the “two-car” policy. With respect to this incident involving the policy, Troiola specifically recommended to his superiors that the Claimant serve a one-day suspension, given his “shift-level” knowledge of the incident. According to the testimony of Assistant Chief of Police Beeter, Troiola’s recommendation was subject to the approval of Beeter who, in collaboration with the chief of police, reviewed Troiola’s memoranda concerning the incident. Beeter testified that his function was to review any recommendations concerning employee discipline in light of the employee’s disciplinary history.
According to Beeter, he and Acting Chief of Police Lamkin decided that the appropriate level of discipline to be assessed against the Grievant as a result of the instant offense was a four-day suspension based on, in Beeter’s words, the Grievant’s “extensive history regarding disciplinary matters, specifically some relating to ... these allegations.” According to Beeter, in late 1997, the Grievant had been assessed discipline of a “three-day suspension for insubordination, neglect of duty.”
The testimony of Acting Police Chief Lamkin indicates that his decision to assess discipline of not less than a three-day suspension was based, in part, on the Grievant’s prior record, mainly the 1997 three-day suspension for a “similar rule violation.” By letter dated May 30, 2002, Lamkin informed the Grievant that he was being assessed a three-day suspension as a result of his violation of Elgin Police Department Rules & Regulations, Section 1.3, Obedience to Orders and Standard Operating Procedure Section 41.1. According to Personnel Order 02 C 051, the Grievant was scheduled to serve the three-day suspension on July 3, 17 and 30, 2002.
Contentions of the Parties
A. The Employer
The Employer argues that based on “clear and unequivocal” evidence, the Claimant’s violation of the City of Elgin’s Standard Operating Procedures and Rules has been proven. According to the Employer, the Grievant was aware of the violation, admitted to it in writing and later admitted he lied about the matter in his report to Sergeant Troiola. The Grievant’s intentional violation of a known rule is clear given the testimony of Officer Piazza, which the Employer states confirmed that the Grievant had planned to go and eat there “anyway,” the “SOP” notwithstanding. The Employer stresses that the Grievant “has no credibility” given his testimony that, on the one hand he did not understand the rule, but on the other hand, he acknowledged the rule based on his statement to Piazza that he would eat there anyway.
Regarding the appropriateness of discipline assessed in this case, the Employer asserts that both the nature of the proven offense and the Grievant’s prior disciplinary record justified the assessment of a three-day actual suspension. The Employer submits that on more than one occasion the Grievant was informed about the “two-car” rule. The Grievant’s attempt at creating an impression of disparate discipline was unsuccessful, given the fact that he presented no evidence to substantiate such an assertion, the Employer argues. Citing Elkouri & Elkouri, “How Arbitration Works,” Fifth Edition, p. 935 (Genie Company, 97 LA (BNA) 542, 549 (1991)), the Employer argues that the Grievant and the Union bore a burden of proving that the Grievant was treated disparately or differently from any other officer. The Grievant “has failed to provide any evidence to establish that the circumstances surrounding his offense were substantively like those of any individual who received a more moderate penalty,” the Employer stresses. In closing, the Employer states, “The judgment of Deputy Chief Lamkin in this instance is sound and reasonable, and has been uncontroverted by any credible evidence.” Thus, the Employer submits that its imposition of the three-day suspension should not be disturbed.
The Union disputes the City’s disciplinary action against the Grievant for several reasons. Substantively, the Grievant did not violate the “SOP” regarding work breaks and was not disobedient to orders, and the “SOP” concerning work breaks was being selectively enforced. The Union argues, therefore, that a lack of just cause warranting any discipline exists in this case, and that the City failed to follow its disciplinary policy regarding the degree of discipline it assessed against the Grievant. Finally, the Union asserts that in the event the Arbitrator should find the Grievant guilty of the offense with which charged, “a three-day suspension is more severe than warranted.”
Regarding the facts of this case, the Union stresses that at the time of this incident the Grievant was in this 16th year of service with the Employer and both of his performance evaluations for the years 2001 and 2002 indicated a rating of “Meets Expectations.” Moreover, according to the Grievant’s disciplinary record, the most recent entry involving a suspension prior to the incident grieved here dated back to 1997 (when he received a three-day suspension for failing to perform the duties of evidence technician, and insubordination to the chief of police). In the Union’s view, the Employer did not impose progressive discipline upon the Grievant because the 1997 suspension occurred more than five years before the instant infraction and therefore, should have been dropped from his record.
According to the Union, on the incident date, Police Officers Piazza, Danner and the Grievant had all been cleared for lunch, and all three had informed communications they were at Quizno’s. During questioning by Sergeant Troiola later that day, the Grievant prepared a written statement in which he explained that he thought the policy allowed as many as three squad cars at a location, and that he never tried to cover up the fact that his was the third car there. The Grievant’s statement reveals he was confused about the policy because there had been talk of revising it, and in the Grievant’s view, there were different policies for different shifts. The Union submits that the Grievant was the second officer, not the third officer, to actually arrive at Quizno’s. The City chose to ignore that fact, the Union argues, and made no effort to ascertain whether the Grievant had actually violated any rule before taking disciplinary action.
Turning to the level of discipline imposed, the Union avers that, according to the City, the Grievant was disciplined for violating the “SOP” involving work breaks and for failing to obey an order. Sergeant Troiola recommended a one-day suspension, which was upgraded to a four-day suspension by Assistant Chief Beeter. The actual discipline assessed was a three-day suspension, the Union notes. However, it further emphasizes that before the discipline date of May, 2002, no other police officer had ever been suspended for violating a work break “SOP.” Officer B__ had received a written reprimand for violating a similar work break “SOP” after the fact, the Union points out.
Based on all of the above, in the Union’s view, the City failed to demonstrate just cause for issuing any discipline whatsoever to the Grievant, arguing that a “just cause” standard has been determined through seven questions to be addressed by arbitrators, as spelled out in Grief Bros. Cooperage Corp., 42 LA (BNA) 555 (Daugherty 1964). The seven questions are as follows:
“1. Did the employer give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?
2. Was the employer’s rule or managerial order involved reasonably related to orderly, efficient and safe operation of the employer’s business?
3. Did the employer, before administering discipline to an employee, make an effort to discover whether the employee violated or disobeyed a rule or order of management?
4. Was the employer’s investigation conducted fairly and objectively?
5. In the investigation, did the adjudicator obtain substantial evidence or proof that the employee was guilty as charged?
6. Has the employer applied its rules, orders and penalties evenhandedly and without discrimination to all employees?
7. Was the degree of discipline administered by the employer reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee’s service?”
According to the Union, the City did not forewarn the Grievant of the probable disciplinary consequences that could have resulted if he were found to have violated the “two-car” policy. Additionally, the parties’ disciplinary rule required the City to follow the progressive disciplinary path specified in that rule, the Union argues.
It is the further position of the PBPA that Sergeant Troiola testified that, before the date of the subject offense, he had merely “talked” to the Grievant about the break policy and had also mentioned it during roll call. In the Union’s view, this did not constitute a bona-fide instance of counseling or proper notice to this Grievant.
The Union also asserts that the Employer’s witnesses could not agree as to whether the rule violation in question required the imposition of major or minor discipline. Moreover, the Union argues that the “two-car” rule was selectively enforced, even though, the Union concedes, “The work break SOP is reasonably related to the orderly, efficient and safe operation of the department.” The basis for this specific line of argument is that in the one instance where similar discipline was imposed, that discipline was a mere written reprimand. The Union thus notes that Officer B__ was disciplined in a much less severe manner than the Grievant for a supposed violation of the same rule. Other officers were observed violating the “two-car” rule, with no discipline whatsoever resulting from these activities, the Union says. Thus, selective enforcement or unequal enforcement by management has been observed, the Union avers.
In sum, the Union maintains that the punishment in this case resulted from the Employer’s selective enforcement of the rules and that the Grievant received no counseling before the date of the instant infraction. The Union stresses that the City did not carry its burden of proof here because the Grievant’s police car was the second one to arrive at Quizno’s. Finally, the Union emphasizes that the discipline assessed in this matter was too severe, and inconsistent with progressive disciplinary policies.
The respective positions of both parties are clear, and summarized as follows:
The Employer argued that it established by a preponderance of the evidence that the Grievant violated a promulgated “SOP” that was reasonable and related to its effective delivery of police protection services. The Employer’s issuance of a three-day suspension for the Grievant’s proven violation of the “SOP” was based on the Grievant’s proven guilt and his prior disciplinary record in view of the contractual schedule of progressive discipline. Therefore, the Employer stressed that as a result of the proven rule violation and the Grievant’s prior disciplinary record, the level of discipline assessed should not be disturbed, and the grievance should be denied in all respects.
According to the Union, on the other hand, the City did not meet its burden of showing just cause to assess the Grievant a three-day suspension. In the Union’s view, the City did not submit substantial evidence of the Grievant’s guilt and therefore, failed to prove its case. As a result, no discipline was warranted and the discipline that was assessed was too steep and outside the negotiated progressive disciplinary scheme.
Initially, I note that the stipulated issue contains the phrase “just cause.” The last sentence of paragraph two of Item 27. Employee Discipline, Section a. Standards of Discipline, of the Agreement between the parties states, “No no-probationary employee may be removed or discharged, or suspended, for a period of more that [sic] five (5) calendar days, except for cause.” (emphasis added)
As I recently held in an unpublished award dated July 31, 2003, involving Illinois School Bus Company, Inc. and United Steelworkers of America, Local Union 7234-05, at p. 31, the stipulation that “cause” or “just cause” must be evident prior to management’s imposition of serious disciplinary penalties, e.g., suspensions without pay, protects employees from being disciplined unreasonably or unfairly. See also, e.g. Worthington Corp., 24 LA (BNA) 1 (McGoldrick, 1955) at pp. 6-7. In order for an employer to prevail in an argument that the discipline or discharge of an employee was for “just cause,” the employer must proffer clear and convincing evidence of the employee’s guilt, I submit. Once “just cause” has been established, the employer must then demonstrate that both its decision to discipline and the degree of discipline to be imposed is justified, and not arbitrary, capricious or unreasonable. See Elkouri & Elkouri, How Arbitration Works (5th Ed. 1997), pp. 905-906. See also my discussion of just cause in Keystone Steel &Wire Co., 114 LA (BNA) 1466 (2000) and in Maury Manufacturing Co., 95 LA (BNA) 148, pp. 152-153 (1990).
From my review of the record, I find that the City met its burden of proving that the Grievant violated the Elgin Police Department’s Standard Operating Procedure Section 41.1.5(H) concerning work breaks, specifically, what the parties have termed the “two-car” rule. According to the testimony of Sergeant Troiola, he and Police Officer Reardon had made plans to eat at Quizno’s and headed there. Police Officer Reardon entered the restaurant and a short time later Officer Piazza arrived and told Reardon he had been cleared by communications to go and eat, and that he and Officer Danner had planned to eat at Quizno’s. So that they would not disrupt the plans of Piazza and Danner, Reardon and Troiola decided to eat elsewhere and Reardon left Quizno’s.
Upon leaving the mall, Reardon and Sergeant Troiola saw the Grievant drive into the parking lot in his police car. Troiola credibly testified that despite the fact that the Grievant had actually arrived at Quizno’s before Danner, the record confirms that Troiola had heard Danner and Piazza call out before the Grievant that they were eating at Quizno’s.
Therefore, Sergeant Troiola’s testimony convinces me that the Grievant was actually the third officer to call out Quizno’s as his eating location, and therefore violated the “two-car” rule when he arrived at Quizno’s and ate there even though Piazza and Danner had made earlier plans to eat at Quizno’s and had announced that location over the radio. I do not recall any testimony to the effect that the Grievant did not hear Piazza and Danner “call out” Quizno’s as their lunch location. Furthermore, I find that the statement the Grievant submitted to Troiola constitutes an admission by the Grievant that he was, in fact, the third marked police vehicle to arrive at Quizno’s. The pertinent part of the Grievant’s statement is as follows:
“...AS I STATED I BELIEVED THE POLICY ALLOWED THREE SQUADS TO BE AT THE SAME PLACE. I DID NOT ATTEMPT TO COVER UP THE FACT THAT I WAS THE THIRD CAR...”
In response to the Union’s arguments that the Grievant did not violate the “SOP” concerning work breaks, that the Grievant was not disobedient and that the Employer enforced the “SOP” in a selective manner, I find no evidence from the Union in support of those arguments. When raising such arguments in an affirmative defense of a Grievant’s innocence, the Union bears a burden of establishing the truth to those arguments by submitting substantial evidence in support thereof. Indeed, under direct examination, Sergeant Troiola recalled two occasions when he discussed the “SOP” concerning work breaks with either the Grievant individually or with all the police officers as a group.
Specifically, on January 20, 2002 the date of a fire under the Kimball Street Bridge, I find, the Grievant and two other officers ate at a restaurant on the far southwest side of the city. According to Troiola, the Grievant was assigned on the east side and had crossed over to the southwest side to eat. In Troiola’s opinion, that constituted a violation of the “two-car” policy. Troiola testified that “...he and the other officers were spoken to about ... I advised them that the policy dictated that he wasn’t to cross over the river for a work break and that there were to be no more than two cars at a restaurant at that time.” (emphasis added) Sergeant Troiola also credibly testified that the second time he discussed the “two-car” policy with the officers was during a roll call.
From my review of the record I find Sergeant Troiola’s testimony to be forthright and credible, and find no evidence which indicates the Grievant was singled out regarding his duty to comply with the “two-car” policy based on the facts of record in this case. Therefore, at least to that extent, 1 further find no violation of the “Seven Tests of Just Cause” in this instance, and so I hold.
Furthermore, I find that according to the record, on the date of the instant grievance, “SOP”41.1.5 (H), WORK BREAKS, was in force and effect. While the Grievant might have been confused as to whether two cars or three cars could be parked at one lunch location based on what seems to have been casual talk of changing the policy, the Grievant’s statement that he was the “third car” leads me to believe that his knowledge of the rule overshadowed any claim of confusion. Paragraph 1.1 of Section 1 and Paragraph 2.12 of Section 2 of the ELGIN POLICE DEPARTMENT RULES AND REGULATIONS requires that all department members follow all rules, regulations, orders, policies and procedures of the Department.
In summary, I conclude that, based on the entire record, the Grievant was knowledgeable of the provisions of “SOP” 41.1.5(H). The two occasions during the months prior to the date of the grievance, when Troiola discussed the work break “SOP” with the Grievant and the other police officers, served to reinforce the Grievant’s awareness of the requirements of the “two-car” policy and his duty to comply with it. Because “SOP” 41.1.5(H) was still “on the books” on the date of the aggrieved infraction, the Grievant had a duty to know the rule and to comply with it pursuant to Paragraphs 1.1 and 2.12, discussed above. Finally, there is no question that “SOP” 41.1.5(H) was reasonably related to the Employer’s operation and placed no undue hardship upon the police officers under its jurisdiction, I conclude, based on the totality of the evidence of record.
Accordingly, as explained above, I find that the City had just cause to discipline the Grievant for his proven violation of the “two-car” policy, and that the City thus sustained its burden as articulated in Grief Bros., cited by the Union. However, turning to the level of discipline assessed in view of the negotiated ladder of progressive and corrective discipline, I agree with the Union that the discipline assessed was inconsistent with the progression of discipline as set forth in the Agreement.
The record reflects that at the time the incident occurred, Sergeant Troiola interviewed the Grievant and obtained a statement from him in which he essentially admitted that he did not comply with the “two-car” policy. According to that statement, the Grievant did not attempt to cover-up the fact that his police car was the third to arrive at Quizno’s. In addition to being the Grievant’s supervisory officer, Troiola possessed what he termed, “shift-level” knowledge of the incident, for example, he had heard the radio communications of Piazza, Danner and the Grievant, and actually saw the Grievant enter the parking lot. As discussed above, earlier in the year Troiola had counseled both the Grievant and other police officers about the “two-car” policy. Based on his experience with this Grievant, Troiola determined that the appropriate level of discipline to be assessed for this infraction was a one-day suspension.
From my review of the record, and in view of Troiola’s first-hand knowledge of the facts surrounding the Grievant’s violation of the “two-car” rule, I find that the decision of the Assistant Chief and Acting Chief to bump the one-day suspension recommended by Troiola to a three-day suspension was arbitrary and unsupported given the facts of record.
First, nothing in the testimony of either the Assistant Chief or then-Acting Chief convinced me that the infraction in this case was so severe as to warrant discipline outside the progression set forth in the parties’ Agreement. This is not a summary discipline case, I hold.
Second, I find that based on my review of Joint Exhibit 4 (page 2), the suspension assessed against the Grievant on October 2, 1997, the offenses which gave rise to that discipline (stating he was not an evidence technician when training records indicated to the contrary, and insubordination by failing to leave the building, as ordered) were not sufficiently similar or related to the “two-car” policy addressed in Section 41.1.5(H), as the City argues. This is so because, as I understand it, the Employer is here suggesting that “insubordination” was at least tacitly involved in both the 1997 and the current discipline. With regard to the instant case, I believe direct insubordination including an intent to defy authority has not been proved, and I so hold.
Moreover, as the Union pointed out, the 1997 three-day suspension occurred almost five years prior to the date of the instant offense, and the record confirms that, in the interim, the Grievant was assessed a reprimand on January 28, 1999 for having responsibility in connection with a traffic accident. That breaks the ladder of progression, as I interpret the facts of this case.
I also find there is absolutely no evidence that the Grievant tried to cover up his actions on the incident date, and an aggravation component to this incident, therefore, is nonexistent. Furthermore, the lack of proven intent to disobey an order to the magnitude of “insubordination” was not shown, as I already have found. This is especially true since the Sergeant who issued this current discipline, Sergeant Troiola, never stated he interpreted the Grievant’s conduct in this case as any act of insubordination, I note. To the contrary, as the Grievant’s statement to Sergeant Troiola indicates, the Grievant’s candor in admitting his was the third car together with his statement that he never tried to hide anything could serve as a basis for mitigating the severity of any imposed discipline. Moreover, in January 2002, Officer B__ was assessed a written reprimand for his violation of the “two-car” policy, based on B__’s apparent guilt and the negotiated progressive disciplinary steps. B__ was placed on the first rung of the disciplinary ladder as a result of his violation of Section 41.1.5(H), while the Grievant was assessed discipline of a suspension involving multiple days after receiving a reprimand for an unrelated offense in 1999.
Without regard to any of the mitigating factors discussed above, that arguably are present in the instant case, I stress that two objective factors form the basis of my opinion that the level of discipline imposed upon the Grievant must be reduced. Specifically, I find that Sergeant Troiola’s testimony that he had recommended a one-day suspension based on his “shift-level” knowledge of the facts underlying the incident, carries great weight. In addition, I find that the nature of the instant offense was not so severe as to justify a departure from the normal progression of corrective and discipline provided for in the Agreement, and that the most recent disciplinary entry on the Grievant’s record at the time of this incident was a reprimand in 1999.
Therefore, for purposes of correction, and based on the levels of progressive discipline specified in the parties’ Agreement, I conclude that the three-day suspension grieved here should be reduced to a one-day suspension. My award providing for same follows.
For the reasons set forth above and incorporated herein as if fully rewritten, the subject grievance is hereby sustained in part and denied in part, in accordance with the above Findings.
1. There was cause to suspend the Grievant based on the Employer’s proven violation of the “two-car” policy, but the imposition of three-day suspension was excessive.
2. The suspension will be reduced to a one-day suspension, and the Grievant will be granted back wages and benefits for the two days lost.
3. Based on the above determinations, and in accordance with Item 14, Section b, Step 5 of the parties’ Agreement, the Arbitrator’s expenses and fees are hereby apportioned to this Employer and Union on an equal or 50%-50% basis. It is so ordered.