121 LA (BNA) 398
FMCS Case No. 05/00504
David A. Singer Jr., Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
Was W__ (hereinafter the Grievant) suspended for just cause, and, if not, what is the appropriate remedy?
Section 36-26-108. Other disciplinary action, of the current statute, provides “An employee ... may be suspended for more than seven days without pay for just cause....” Consequently, discipline may, under the new statute, be imposed for just cause. Furthermore, the current statute, Section 36-26-110, Major suspensions of employees-Contests, provides that a hearing officer (arbitrator in this case) “shall conduct a de novo hearing and shall render a decision based on the evidence and/or information submitted to the hearing officer. The hearing officer shall determine which of the following actions should be taken relative to the employee: A suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action....” Finally, the new statute, Section 36-26-109, Major suspensions of employees-Procedure, hearings, formalizes the employer’s right to subject classified employees to major suspensions.
Grievant, a classified employee, was hired by the Board on
Members of the school system’s security department are instructed, upon their employment, that they are not policemen. They are security officers, Grievant included. Their duties include the protection of the approximately seventy-five pieces of Board property. They also protect the many employees serving the needs of the school system. Upon the, not infrequent, unauthorized intrusions onto Board property, one or more security officers are dispatched to said property.
While on duty, employees shall be governed by the following rules:
1. Employees will devote their full time and attention to the service of the Board of Education and conduct themselves in a professional manner.
2. Employees will not display cowardice or fail to support their fellow members in the performance of their duties. Members who fail to fulfill their sworn duties because of fear of physical injury, or retaliation, or personal consequences to themselves, will be subject to immediate relief of duty pending further action by the Board.
8. To appear in court as a witness representing the Board of Education when an individual is arrested for any violation of School Board rules and regulations, or city, state, or federal laws.
10. To walk the schools, testing the alarm systems and reporting any problem encountered with the system.
aforementioned rules relate to the basic concern leading to this arbitration.
Did the Grievant exceed his authority when he became involved in a law
enforcement action allegedly not related to his duties as a school system
security officer? The Birmingham Board of Education Security Unit, published a
Mission Statement, also effective on
VI. Disciplinary Action
A. An officer will be subject to disciplinary action if a shooting involves:
2. Violation of department regulations.
3. Poor judgment involving disregard for public safety.
4. Accidental discharge of firearm through carelessness.
Note: When the facts immediately available clearly indicate that the Officer is guilty of misconduct, negligence, or dereliction of Duty, he/she shall be suspended pending an investigation.
The accidental discharge of the Grievant’s service weapon during the events at issue here is pertinent to the propriety of his actions as a security officer.
A vehicle pursuit exposes the Security Officers, fleeing violators, pedestrians and occupants of other motor vehicles to the potential risk of death, serious injury, or damage to personal property. Officers may be subject to administrative action for negligence....
A Security Officer must believe that a felony has occurred and that the seriousness of the offense justifies the risk of a pursuit....
If a Security Officer is considering a pursuit, the following factors must be weighed:
1. What is the violation for which the suspect is wanted?
4. Can the suspect be apprehended later?
presentation of the incident leading to the six-month suspension, without pay,
of the Grievant is necessary. It is important to recognize that the facts attendant to the matter at issue are not in dispute. The
parties agree upon the accuracy of statements relating the series of events
that transpired on
At approximately on April 30, the Grievant was dispatched to investigate a break-in at a school district property. The report of the break-in was a false alarm. After addressing the matter, the Grievant began his return journey to the security office. While proceeding on the interstate highway, he observed an accident investigation. A police car, blue lights flashing, was parked on the shoulder of the interstate. An ambulance was allegedly present. At the same time, the Grievant observed a vehicle, badly damaged and emitting smoke, the hood raised, proceeding away from the accident. The driver, unable to see the road, due to the raised hood, drove erratically. The Grievant concluded that he must follow the damaged car. While in pursuit of the subject vehicle, he phoned the Birmingham Police Department, provided the license tag number to the dispatcher, and related the location of the vehicle. He maintained contact with the police department until the damaged vehicle was brought to a stop.
The Grievant continued pursuit for a
period of time. The subject vehicle eventually exited the interstate, ran a red
light, and executed a U-turn. At that moment the driver stopped his vehicle,
observed the Grievant, and drove onto a truck stop parking lot. The driver then
exited the damaged vehicle and began to walk the approximately seventy feet
toward the Grievant’s vehicle. The Grievant directed the driver to “back off,”
advising that the police were en-route to their location. The driver continued
to approach the Grievant. The Grievant exited his vehicle and displayed his
weapon, but the driver continued to advance. Finally, the Grievant pointed his
weapon at the driver and directed him to “stay away, go back to your car.” The
driver continued to approach until he was “at arm’s length.” The Grievant then
“side kicked” the driver, “side kicked” him again, and executed a third “side
kick.” At that point the driver seized the Grievant’s foot, and the Grievant
fell to the pavement. The driver did not fall, but attacked the Grievant. They
scuffled, the Grievant dropped his weapon, and one round discharged. Throughout
the entire series of events, the driver remained silent. The driver then
returned to his damaged vehicle. At that moment the
The round that was discharged from the Grievant’s weapon penetrated the cab of a parked truck where a relief driver was sleeping. He was not injured, but the damage to the truck totaled $842.80. The Grievant offered to reimburse the trucking company for the necessary repairs, but he was prohibited from doing so.
system officials immediately instituted an investigation of events transpiring
... I am placing a copy of this letter in the personnel file of [the Grievant] to indicate that on this occasion the handling of this incident was improper under the Rules and Regulations Procedure titled “General Work Rules” dated 2/3/96, written by me, which states:
While on duty, employees shall be governed by the following rules. Rule #1 Employees will devote their full time &attention to the service of the B.O.E. and conduct themselves in a professional manner.
Furthermore, this letter will serve as a written reprimand to Officer W__ for involving himself in the aforesaid stated incident. I also intend to reiterate to each member of my command B.O.E. Security Department rules in dealing with non-B.O.E. business.
Pursuant to Alabama Education Laws, Section 36-26-110, the Board issued a major suspension to the Grievant. Proper procedures were observed, and the matter at issue is now properly before me.
Pertinent Provisions of
Section 32-10-1. Duty to stop and remain at scene.
(a) The driver of any motor vehicle involved in an accident resulting in injury to or the death of any person, or in damage to a motor vehicle or other vehicle which is driven or attended by any person, shall immediately stop such vehicle at the scene of such accident or as close thereto as possible and shall then forthwith return to and in every event shall remain at the scene of the accident....
Section 32-10-6. Penalties.
Every person convicted of violating Sections 32-10-1 through 32-10-5 or any of the provisions thereof, when such violation involved only damage to property, shall be punished the same as prescribed by law for a Class A misdemeanor; provided, however, that every person convicted of violating such sections, or any provisions thereof, when such violation involved death or personal injury, shall be punished the same as prescribed by law for a Class C felony.
Section 36-26-108. Other disciplinary action.
An employee on non-probationary status may be suspended for more than seven days without pay for just cause. Such suspension shall not be made for political or personal reasons.
Section 36-26-110. Major suspensions of employee-Contests.
...The hearing officer shall conduct a de novo hearing and shall render a decision based on the evidence and/or information submitted to the hearing officer. The hearing officer shall determine which of the following actions should be taken relative to the employee: A suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action. The hearing officer shall render a written decision, with findings of fact and conclusions of law, within 30 days after its hearing. Expenses of the hearing officer shall be borne by the State Department of Education.
Position of the Board
The Board holds that the Grievant’s
The Grievant violated General Work Rule number one. While on duty, he failed to “...devote [his] full time and attention to the service of the Board of Education and conduct [himself] in a professional manner.” When he engaged in pursuit of the damaged vehicle fleeing the scene of an interstate accident he placed himself in an inappropriate role. He was not engaged in the business of the Board. Later, in the truck stop lot, he drew his weapon, even though the driver of the subject vehicle had given no indication that he, too, had a weapon. The Grievant and driver scuffled and the weapon accidentally discharged and penetrated a truck cab where a relief drier was sleeping. The relief driver was not injured, but repair damage to the truck cab was estimated in the amount of $842.80. Clearly, the Grievant’s decision to follow the damaged car escalated to an unanticipated result. This unfortunate incident serves to justify the rule in question. The Board’s Mission Statement emphasizes the need to safeguard property and employees. The Grievant, himself, could have been injured. Furthermore, unanticipated damage to the vehicle driven by the Grievant could have been sustained. Finally, the relief driver of the truck could have been injured, or worse, killed.
The Firearms Policy-Use of Deadly Force, identifies three pertinent justifications for disciplinary action that resulted from the Grievant’s failure to confine his activities to school district business. First, he clearly violated “department regulations” when he violated the previously identified rule number one. Second, the resulting automobile chase, including events in the truck stop lot, constituted a clear “disregard for public safety.” Finally, even though the discharge of the Grievant’s weapon was accidental; it constituted one unanticipated result of his initial violation of rule one. The Board takes the position that the Grievant violated the pursuit policy, the firearms policy, the mission statement, and the general work rules.
The Board wishes to offer two additional observations regarding the rules infraction charges. First, the General Work Rules, even though they have not been formally adopted by the Board, have been, and continue to be legitimately applied. The rules were accepted by Board attorneys, approved, signed by the previous superintendent, and continue in force under the direction of the current superintendent.
there is no doubt that the driver of the damaged vehicle recognized the
Grievant as one operating in an official capacity. Even though his vehicle was
unmarked and displayed no blue lights, other manifestations of the Grievant’s
authority were evident. He wore a blue polo shirt with a security department
emblem and khaki trousers-the official uniform of school district security
officers. Furthermore, his official badge was prominently displayed on a cord
suspended by a lanyard. The driver could not have failed to see the Grievant’s
bolstered weapon and his walkie-talkie radio. Furthermore, the Grievant’s
actions, especially the execution of a U-turn, clearly reflected official
behavior. The driver readily recognized the Grievant as an officer.
Unfortunately, he was not identified as a
regarding the severity of the
The Board’s Pursuit Policy clearly presents cautions against unjustified pursuit by security officers. They follow:
A vehicle pursuit exposes the Security Officers, fleeing violators, pedestrians and occupants of other motor vehicles to the potential risk of death, serious injury, or damage to personal property. Officers may be subject to administrative action for negligence. Under certain circumstances, criminal prosecution or civil actions could result.
The same document also presents a severely limited scenario regarding circumstances wherein a security officer may participate in a pursuit, in the event said officer is persuaded that a felony is in progress.
A Security Officer must believe that a felony has occurred and that the seriousness of the offense justifies the risk of a pursuit....
The Grievant had no compelling reason to suspect that the subject action was more than a traffic accident, only involving property damage.
(a) The driver of any motor vehicle involved in an accident resulting in injury to or the death of any person, or in damage to a motor vehicle or other vehicle which is driven or attended by any person, shall immediately stop such vehicle at the scene of such accident or as close thereto as possible.
The Grievant was not involved in any aspect of the April 30 incident until he inappropriately intruded into the series of events at issue here. He did not know whether a felony was in progress or not. He only knew that the driver, fleeing the scene of the accident, was committing a misdemeanor.
In violation of General Work Rule number one, he failed to “... devote [his] full time and attention to the service of the Birmingham Board of Education and conduct [himself] in a professional manner.” There is no school property at the truck stop, nor were Board employees other than the Grievant, involved. Upon radioing the license tag number and location of the damaged fleeing vehicle, he should have disengaged.
The Board’s investigation of the Grievant’s participation in the April 30 incident was brief. The chief operating officer was advised of the incident by the chief of security. The chief operating officer immediately informed the superintendent of the available facts. Then, on May 6, the chief operating officer received a memorandum from the chief of security wherein the basic facts regarding the incident were outlined. The chief of security also recommended that a written reprimand be issued.
Shortly thereafter the chief operating officer requested that the superintendent assign the dropout prevention/school safety officer to conduct an investigation. Few individuals were questioned during the investigation, and some were never questioned. Their versions of events including that of the Grievant were in concert. Based upon his investigation, the safety officer recommended discharge.
disciplinary action was eventually forthcoming. The chief operating officer
recommended a six-month suspension without pay, thereby mitigating the safety
officer’s earlier disciplinary recommendation. The superintendent considered
the Grievant’s superior work record and accepted the operating officer’s
recommendation. Through a letter posted on
Board contends that the Grievant, as a security officer, is responsible to
discharge his duty to the school district and not attempt to assume the role of
Position of the Association
Association takes the position that the Grievant behaved properly on the night
The entire range of rules was examined by school system officials in a vain attempt to isolate applicable rules that could, even remotely, be applied to the issue at hand. The chief of security, himself, testified that he thought the Grievant violated only one rule, and he identified said rule in his May 6 memorandum to the chief operating officer. The rule: “Employees will devote their full time and attention to the service of the Board of Education and conduct themselves in a professional manner.” The memorandum also advised the operating officer that a copy of the letter would be placed in the Grievant’s personnel file. Finally, the chief of security declared that the memorandum “...will serve as a written reprimand to [the Grievant] for involving himself in the aforesaid stated incident ....”
chief of security also made reference to the first sentence of the Board’s
Mission Statement: “The
The chief of security became involved in the events of April 30, following a call from the Birmingham Police Department. He was advised that the Grievant was involved in an altercation wherein a shot was fired. The chief proceeded to his office, remaining aware of events by phone. He also phoned the chief operating officer, providing an update, while en route to the office. He again updated the operating officer after the police had concluded their investigation. The Grievant was then instructed to report to the security office where he delivered his statement, recorded by the chief. All information was provided to the operating officer and the Board of Education. The superintendent was ultimately informed. The Association contends that the chief’s May 6 memorandum should have been applied, as intended. If such had been the case, the matter would have been concluded at that point. The Grievant acted within the authority of the General Work Rules, committing only one minor rule violation.
The General Work Rules, at no point, provide that security officers may not intervene under emergency circumstances involving other law enforcement agencies. The Board has never insisted that such intent be included in the rules. The Grievant did not violate the rules as written. The circumstance under examination here clearly constituted an emergency situation. The Grievant behaved in accordance with a statement of duties and responsibilities presented in a June 19, 1997 Notice of Vacancy for a security officer position-a posting that was published only six weeks before the Grievant was hired. The list of duties and responsibilities includes this duty statement:
4. Works with Police Department and assists law enforcement officers when necessary.
The Grievant, an outstanding officer,
did not deliberately violate the General Work Rules. As a matter of fact, he
had no idea that rules were allegedly violated until after the events had
transpired. He has never been instructed to avoid intervention under
circumstances similar to these extant on
The Association finds no evidence that the Grievant violated the General Work Rules as he proceeded to discharge his duties while considering information available at the time. Officers must often act on the spur of the moment, and their actions are dictated by their evaluation of circumstances as they appear at the moment. There is no time to report to an office or research rules and laws preparatory to action.
The General Duties of a Security
Officer clearly state that said officer is “to assist and cooperate with law
enforcement agencies.” The Grievant observed
an accident scene wherein an ambulance was present, and concluded that an
injury had been sustained by a person or persons involved in the accident. Such
conclusion was obvious and legitimate-the product of an on-the-spot assessment
of the situation. At the same time, he observed a damaged, smoking, vehicle leave
the scene of the accident. Furthermore, he saw that the hood of the vehicle
obscured the vision of the driver. Therefore, said driver proceeded along the
interstate, observing the highway with his head out the window-his progress was
erratic. All facts being considered, the Grievant concluded that there was
probable cause to conclude that he was observing a felony, not a misdemeanor,
in progress. Therefore, the unfolding emergency justified his effort “to assist
and cooperate with law enforcement agencies.” The Grievant, in the spirit of
the Board’s Pursuit Policy, believed “...that a felony ha[d] occurred and that
the seriousness of the offense justifi[ed] the risk of pursuit....” The Association holds that the
The Board’s efforts to investigate the events of April 30 leave a great deal to be desired. The dropout prevention/school safety officer only interviewed the Grievant in depth. He failed to talk to the dispatcher and only talked with the investigating officer by phone. His most glaring omission was his failure to talk with the one eyewitness identified in the police report. The chief of security presented the memorandum of reprimand before the safety officer conducted his investigation. This procedural flaw was, to be charitable, inappropriate. The safety officer remarked, during testimony, that he did not interview the dispatcher because the Grievant’s testimony provided all he needed to ascertain exactly what transpired. The Association’s response to this can be stated briefly. How did he know? The safety officer included this astounding observation during arbitration: “It would not be proper to talk to all involved if you intended to recommend discharge.” Evidently the safety officer formulated his disciplinary recommendation before he investigated the matter!
The operating officer requested an investigation because the events in question represented an alleged violation of the General Work Rules. The matter at issue was serious. The Association wonders why the chief of security was not assigned the duty to investigate. The Association recognizes that the safety officer is capable, but an administrative decision was necessary, and the chief of security was the Grievant’s immediate supervisor. The operating officer has dealt with the chief on other occasions, and knows that he has been willing to recommend disciplinary action when appropriate, including recommending discharge of other officers. The Association takes the position that if an investigation was actually conducted, it was cursory at best. The Grievant deserved better!
The Grievant reacted to events based upon facts known to him at the time. He offered assistance to local law enforcement authorities because he calculated that a felony was in progress. As set forth in the Pursuit Policy, the Grievant believed “... that a felony [had] occurred and that the seriousness of the offense justifie[d] the risk of pursuit ....” The Association contends that the Grievant violated no General Work Rule.
For the foregoing reasons, the Association requests that the suspension be denied.
Before addressing the basic elements of this case, I wish to dispatch two points of concerns.
The Grievant had every reason to suspect that a felony was in progress. He observed the police car, the ambulance, the condition of the vehicle fleeing the scene of the accident, and the driver’s behavior. The General Duties of a Security Officer provide that officers are “to assist and cooperate with law enforcement agencies.” More significant to the point at issue is the Pursuit Policy. Specifically and clearly the policy provides that “A security officer must believe that a felony has occurred and that the seriousness of the offense justifies the risk of pursuit.”
The Grievant should not have omitted mention of the presence of the ambulance at the scene of the accident from his Security Report. However, Board witnesses offered no objection to his references to the ambulance in question during testimony. Furthermore, the Board’s advocate did not register a strident objection to said testimony. He quite correctly identified the fact that such reference did not appear in the Security Report. I find no reason to suspect that the ambulance was not present at the scene of the accident. The matter rests. The Grievant correctly suspected that a felony could be in progress.
The chief of security appears to be appropriately engaged in the uphill battle to persuade security officers that they are not police officers-they are security officers. This problem is universal. Police officers routinely retire from law enforcement service and assume new careers as security agents.
The tendency of former law enforcement officers to respond to circumstances as police officers, not security officers is understandable, a product of years of training and experience. Nevertheless, such lapses in judgment cannot be tolerated. Yet, the tendency to behave like a cop could serve as a positive response. After all, the backgrounds of former police officers, Grievant included, is presumably paramount in the decision of security departments to employ them in the first place. The Grievant had good reason to presume that a serious offense justified his involvement and the risk of pursuit. Finally, the Notice of Vacancy required those employed by the Board to assist “law enforcement officers when necessary.” The Grievant’s responses on the evening of April 30 fell within the parameters of the General Work Rules.
Three distinct aspects of this case will be addressed in depth. First, the conduct of the investigation, as it relates to charges against the Grievant, will be evaluated. Second, specific rules infractions allegedly perpetrated by the Grievant, will be examined. Finally, disciplinary measurers will be discussed. My final opinion and award will be based upon all that transpired, as presented in this record.
I found the Board’s investigative procedures, if actual procedures existed, to have been entirely unsatisfactory. When action leading to discipline, especially discipline as serious as that in question here, is investigated, such investigation must be thorough and orderly. If there is a chain of command within the administration, it appears to exist only on paper. Standard organizational procedure requires that the first line supervisor, the chief of security in this case, conduct the initial investigation. Further investigation may or may not be necessary. Recommendations for discipline to be imposed upon the Grievant were multiple and varied. The school safety officer recommended discharge, the chief of security recommended a written warning, and the superintendent finally recommended a six-month suspension without pay. In the midst of this series of events, the chief of security recommended discipline in the form of a written reprimand before the investigation was undertaken. The school safety officer was charged with the duty of conducting an investigation (more about this in subsequent paragraphs). He recommended discharge. To make matters worse, the same safety officer testified at arbitration, when questioned regarding the scope of his investigation, that it would not be proper to interview all involved if discharge was his intent. I can only assume that he reached his decision to recommend discharge prior to the investigation. Disciplinary decisions, especially discharge, are too important to be left to cursory, disjointed, investigative procedures.
The scope of the investigation requires additional examination. The purpose of investigation is to search for information beyond evident facts. In this case it was not the duty of the safety officer to decide who to question and who not to question, or who was worthy of his attention. His responsibility was to investigate all possible sources of information. I have no doubt that the chief operating officer assumed that the safety officer would proceed accordingly. His investigation was not thorough. He failed to interview the dispatcher, he did not talk with the eye witness mentioned in the police report, and he talked with the police department investigating officer by phone. Fortunately, the events that transpired on the evening of April 30 were presented without appreciable disagreement among those involved. Various rules allegedly violated, along with the level of discipline to be imposed, remain the basic areas of concern.
Various pronouncements contained in the General Work Rules relating to this case require examination. Two questions must be addressed. Under what circumstances are security officers to involve themselves with local law enforcement agencies? Did the Grievant violate Board rules when he intruded into the events transpiring on April 30? The formal mission statement provides that the mission of the security unit is “the protection of students, faculty members, administrators, and safeguarding property and materials.” None of these components, identified as being in need of protection, were present on the evening of April 30. Only the Grievant and his vehicle could be construed to fall under the components listed in the mission statement. However, other rules approve assistance to police. For example, the Pursuit Policy provides that the “security officer must believe that a felony has occurred and that the seriousness of the offense justifies the risk.” The Grievant reasonably assumed that a felony was in progress. Furthermore, the duties outlined in the Notice of Vacancy advised applicants that they must be prepared to assist “law enforcement officers when necessary.” Therefore, he appropriately followed the damaged vehicle and radioed the location and tag number to local law enforcement.
Board of Education work rules do not go so far as to prohibit the intervention of security officers in the affairs of local law enforcement. The rules do clearly endorse intervention under emergency circumstances. Work rules are, therefore, configured to allow security officers to act immediately, on the spur of the moment, when an emergency presents itself. Such was the case relative to the incident under discussion here. I must point out that the General Work Rules include one minor contradiction. Rule number one specifically declares that “Employees will devote their full time and attention to the service of the Board of Education.” Later, the Pursuit Policy provides that when an officer believes that a felony has occurred, and the offense is serious, the risk of pursuit is justified-involvement in law enforcement activity outside service to the Board. Consideration of statements and provisions set forth in the General Work Rules, along with other official documents, persuades me that the Board endorses the involvement of security officers in law enforcement matters under emergency circumstances.
I hold that the Grievant’s decision to
follow the damaged car, all the while remaining in contact with local law
enforcement, was appropriately instituted. However, the legitimacy of his action
concluded at that point. The events that unfolded from the time that he
remained in the parking lot until the
Disciplinary measures imposed upon the Grievant require a brief analysis. The Board registered dismay at the Grievant’s failure to display attitudes of remorse and regret. The Grievant did not feel that he violated the rules, and this attitude continues today. It is difficult to express regret or remorse when one honestly feels that no rule has been broken. I sympathize with the Grievant’s attitude. Nevertheless, he did violate rule number one. He failed to devote his full time and attention to the Board’s service. Yet, he followed Board Pursuit Policy when, legitimately concluding that a felony was in progress, he intervened. He concluded that a serious offense was being perpetrated, and that he should risk pursuit. He assisted law enforcement officers because he felt that such action was necessary. As previously stated, I hold that his intervention should have been discontinued once he had informed the Birmingham Police of the vehicle description, location, and license tag number.
I am convinced that the Grievant perpetrated a minor violation of rule number one. Said violation demands discipline, but it demands discipline consistent with the seriousness of the offense that generated a disciplinary response. Disciplinary measurers cannot be pulled out of the air and applied at random. Furthermore, the Grievant’s work record should have also served to mitigate any disciplinary action. Only the chief of security appears to have extended appropriate attention to the Grievant’s superior record, extending over all aspects of his job for almost ten years.
The chief of security developed an excellent set of General Work Rules. Absent, however, is a corresponding series of disciplinary measures present in most such documents. Levels of discipline are designed to address rules infractions according to their severity. Standard disciplinary measures traditionally are arranged in steps routinely known as progressive discipline. For example:
• Verbal Warning
• Written Warning
• Three-day Suspension
• Two-week Suspension
The same process takes into account the fact that some rules infractions are sufficiently severe to justify immediate discharge. For example, sexual harassment, physical violence, drug use, and theft usually demand discharge. In short, the purpose behind progressive discipline is to avoid discipline by sledge hammer when the proper response would call forth discipline by tack hammer. The concept of progressive discipline was not applied in the case under examination here.
I am persuaded that the severity of the Grievant’s rules violation was not sufficient to rise to the level of discipline imposed. The Board used a sledge hammer to accomplish the job of a tack hammer. However, it is important to recognize that once the Grievant intruded into the accident occurrence, and upon completing the first phase of his involvement, pursuit and license tag and location reporting, circumstances degenerated to the point that the driver and Grievant scuffled and the Grievant’s weapon was accidentally discharged. This very development provides ample justification for rules prohibiting security officers from becoming involved in the affairs of local enforcement. In the event of an emergency, they may offer assistance and support. An emergency did, indeed, present itself, but was a direct result of the Grievant’s protracted and unnecessary involvement. He proceeded appropriately when he followed the vehicle, radioing the tag number and location. At that point he should have returned to the security office.
For the foregoing reasons, I find it necessary to mitigate the discipline imposed.
The Grievant is to be issued a three-day suspension without pay.