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In the matter of arbitration between
Fraternal
Order of Police, Lodge 127
and
The
City of Newark, Ohio
FMCS
Case Number 061026-00360-8
July
19, 2006
Jon
Bell, Grievant
N.
Eugene Brundige, Arbitrator
An arbitration hearing was
conducted on April 19, 2006, at the Newark, Ohio City Building.
The parties stipulated the issue
in this case to be: “Was the Grievant
disciplined for just cause? If not, what
shall the remedy be?”
BACKGROUND:
Officer Jon Bell is employed as a police officer in Newark, Ohio. He has served as a police officer for
approximately seven years. On three
occasions during 2004 employees of The Energy Cooperative, an electric company
serving the home of the Grievant, went to the Grievant’s home in response to
assignments given them regarding disconnecting and reconnecting his electric
power for non payment.
On each occasion the Grievant appeared at his door with a firearm in
his hand. The Grievant is alleged to
have ordered the employees to leave his property.
Upon being made aware of these
incidents, the Chief of Police ordered an investigation into the matter.
Based upon the findings of that investigation, the Chief approached the
City Safety Director and the Prosecutor about possible criminal charges against
the Grievant. The Prosecutor declined to
prosecute and no charges were filed.
The Chief then proceeded to levy administrative charges against the
Grievant for violation of two City of Newark Departmental Rules (1) Contact
with the Public and (2) Conduct On Duty/ Off Duty. The City Safety Director
suspended the Grievant for twenty (20) hours which is the equivalent of two ten
(10) hour shifts.
The Grievant filed a grievance
on July 28, 2005. The grievance
proceeded to arbitration pursuant to the collective bargaining agreement
between the parties.
At the arbitration hearing the
parties agreed that the matter was properly before the arbitrator for a
decision and award.
POSITION OF THE EMPLOYER:
The Employer notes that the
Grievant received a counseling in April 2004 for an
incident in which he allegedly failed to deal with the public in a professional
manner. In July 2004 the Grievant
received an oral reprimand for his conduct wherein a citizen felt threatened by
the conduct of the Grievant. In November
2004 the Grievant received a written reprimand for neglect of duty for failing
to appear at a court proceeding.
The Employer notes that the
incidents with Energy Cooperative employees began in March 2004. On March 18 an employee was dispatched to
disconnect the electric service at the Grievant’s home. The employee, Greg Hayden, testified that
when he arrived at the residence of the Grievant, he answered the door with a
gun in his hand held behind his leg. The
Employer says that the Grievant told Mr. Hayden that he had mailed the check a
week earlier. Hayden left the property
at that time.
On November 16, 2004, Hayden was
dispatched again to collect the past due electric bill. Mr. Hayden testified that he rang the
doorbell and got no answer. He went to
the side of the house to disconnect the electric service. The Grievant came to the door with a pistol
in his hand.
Mr. Hayden testified that the
Grievant informed him that a partial payment had been made the day before. Hayden indicated that he informed the
Grievant that if the matter was not resolved by the next day he would return to
disconnect the service.
Mr. Hayden was then informed
that the check was returned for insufficient funds. His supervisor asked Randy Van Winkle,
another employee, to accompany Hayden because of the Grievant’s actions the
previous day.
The two employees testified that
no one answered the door and they proceeded to disconnect the service. Grievant came to the door with gun in hand
and asked Hayden what he was doing.
An exchange followed regarding
the status of the check. The Energy
Cooperative employees testified that the Grievant became angry and told them to
“get the fuck off his property.” As the
employees were leaving, the Grievant wanted to know how soon the power could be
reconnected. The Energy Cooperative
employees responded that they could not reconnect the service if they were not
allowed on the property.
A few days later Chief
Pennington learned about these incidents and initiated an investigation which
led to the current arbitration.
The Employer argues that the
Energy Cooperative employees wore uniforms that identified them as employees of
the company and their truck also had the company logo on the side.
The Employer further argues that
the behavior of the Grievant violated the rules of the Department and that the
discipline imposed was reasonable for this offense.
While noting the existence of
prior counseling and discipline, the Employer Representative argues that the
two day suspension is consistent with just cause and progressive discipline
even if the Arbitrator does not view the prior discipline as relevant.
POSITION OF THE FRATERNAL
ORDER OF POLICE:
Grievant Jon Bell has a clean
department record with the exception of a written reprimand for missing a court
date.
The FOP argues that the actions
of the Grievant are reasonable, occurred when he was not on duty, and are not a
violation of the departmental rules.
The Grievant had previously
contacted local law enforcement about intruders on his property and that the
Grievant had received threats. The FOP
believes that these concerns explain the actions of the Grievant and argue that
those actions are understandable due to his legitimate fear.
If any violation occurred, FOP
argues that it could only be a minor offense and that the principles of
progressive discipline, which begin with an oral reprimand, must be followed.
The FOP notes that Chief
Pennington testified that he received a complaint per week about Officer Bell,
but that the Grievant denied this was true.
Since the Grievant has not received discipline for such complaints, it
appears to the FOP that this unsupported claim is offered only to bolster the
City’s case regarding this grievance.
The FOP notes that the burden of
proof rests with Management and argues that it has failed to meet that burden.
The Grievant was off duty when
the incident(s) occurred.
The FOP notes that the Chief
believed the conduct was criminal in nature but both the Prosecutor and the
Safety Director did not press charges.
Safety Director Barch says she could not find
that the grievant had violated the Criminal Conduct Section of the rules. The FOP believes that this Criminal Conduct
was “the crux of the Employer’s case during the arbitration of this
matter.”
The FOP notes that the Grievant
did not identify himself as a police officer during the two incidents involved.
The FOP states that the Chief testified that he did not have a problem
with an officer displaying a weapon in his own home in a lawful manner. Because no criminal charges were brought, the
FOP argues that the Grievant was displaying his weapon in a lawful manner.
The FOP reminds the Arbitrator
that both Energy Cooperative employees testified the Grievant did not point the
gun at them.
The FOP points to the testimony
by Captain Phillips of the Newark Police Department regarding a visit to the
Grievant’s home. The Grievant went to
the door with his gun in hand. The
officers entered the house and the gun was laid on the table in plain sight.
No action was taken by Captain
Phillips regarding this behavior.
The FOP argues that Energy
Cooperative employee Van Winkle testified that the action was “kinda intimidating” and employee Hayden said he was not
intimidated.
In conclusion the FOP argues the
incident has been blown out of proportion by the Employer and that the FOP has
proven seven points:
(1)
The Grievant’s off
duty conduct was not so egregious as to warrant the discipline invoked;
(2)
The Grievant did not
identify himself as a Police Officer during these incidents;
(3)
The Grievant was not
discourteous to the Energy Cooperative employees;
(4)
The Grievant had
received threats to his life and property prior to the visit of the Cooperative
employees;
(5)
The Grievant was not
guilty of any criminal misconduct;
(6)
The Grievant has a
clean department record; and
(7)
The Employer failed to
follow the principles of progressive discipline.
DISCUSSION:
The question of criminal
misconduct is clearly not before this Arbitrator.
Many issues have been discussed
in the course of this case but the central charges before this Arbitrator are
the two Department Rules which the Grievant is alleged to have violated:
1. Code of Conduct 3.1.4
Employees will, at all times, be courteous to the
public. They will be orderly, attentive,
and will exercise patience and discretion in dealing with the public.
2. Code of Conduct 3.1.9.14
Employees will conduct themselves both on duty and off duty in such a manner as
to reflect favorable on the police department.
Conduct which is unbecoming includes that which tends to bring the
department into disrepute or reflects discredit upon the employee as a
representative of the department; or that which tends to impair the operation
of efficiency of the department or employee.
The only questions before this Arbitrator are: (1) Did the Employer
prove the Grievant violated one or both of these sections of the Code of
Conduct and (2) If so, is a two day (20 hour) suspension an appropriate
penalty?
Most of the facts in this matter are not in dispute. The Grievant did carry a loaded weapon to the
door on several occasions and did encounter employees of the Energy Cooperative
at those times.
The employees testify that the Grievant was rude and angry. The Grievant denies that allegation.
One of the major tasks of an
arbitrator is to determine the credibility of witnesses in cases where there is
a conflict in the facts presented. The
arbitrator sits as the sole judge of credibility and quite often an entire case
will turn upon who the arbitrator believes.
Arbitrator Fleming noted this role in a case in 1957:
Arbitrators are not equipped
with any special divining rod which enables them to know who is telling the
truth and who is not where a conflict in testimony develops. They can only do
what the Courts have done in similar circumstances for centuries. A judgment
must finally be made, and there is a possibility that judgment when made is
wrong.
In this case I find the
testimony of the Grievant not to be credible on several points.
Observing the demeanor of the witnesses, I must believe the Grievant
displayed anger and ordered Energy Cooperative employees off his property in a
rude and profane manner. Both Mr. Van
Winkle and Mr. Hayden appeared very uncomfortable and apprehensive about
offering testimony in this manner.
The statement by Mr. Van Winkle
that the actions of the Grievant were “kinda”
intimidating and the denial by Mr. Hayden that he was intimidated, must be
examined against the fact that the supervisor at Energy Cooperative had enough concern about
the safety of his meter reader, that he sent a second employee with him.
The testimony of the Grievant
contained many references to the fact he did not recall a specific incident or
happening. This raises serious concerns
in the mind of this Arbitrator. A
trained police officer who is so convinced of his innocence in this matter and
who has specific and detailed recall of those facts that are helpful to his
case, would be unlikely to have forgotten other facts that are not as helpful.
Throughout the record, the testimony of the Grievant reflects that the
Grievant has no recollection of many events.
I find this testimony not to be credible.
The FOP offered several defenses
to the actions of Officer Bell. Let us
consider each of those defenses:
In this case I find that Grievant Jon Bell violated Code of Conduct
section 3.1.4 by carrying a gun while talking to Energy Cooperative employees
on more than one occasion and by profanely and angrily ordering the employees
off his property.
The Code section clearly states
the required behavior is “at all times.”
There is no specific exemption because the Grievant was on his own
property. Arbitrators and Courts have
long held Law Enforcement Officials to a higher standard of conduct than other
employees.
Likewise I find that Grievant
violated Code of Conduct 3.1.9.14 where it states: Employees will conduct themselves both on
duty and off duty in such a manner as to reflect favorable on the police
department.
Arbitrator Marvin Feldman
clearly articulated the view held by many arbitrators when he said: “There is
no doubt that off duty activity on the part of a bargaining unit member that
may be embarrassing to the employer is subject to discipline by the
employer.”
Officer Bell did not conduct
himself in such a manner as to reflect favorable on the police department. The Energy Cooperative employees were merely
doing their jobs and the behavior of Officer Bell was rude and
intimidating.
In a Cuyahoga Falls case
Arbitrator Thomas Coyne expressed his strong feeling about police officer
intimidation when he commented on the testimony of a nineteen (19) year old
girl who had been pursued and intimidated by a police officer: “Once the
officer arrived at the nineteen year old girl's private residence, she let him
in as she was afraid not to do so. Imagine that! She could not call the police
for help, she said. Imagine that: Afraid of the police, in the USA.”
No law abiding citizen should ever be afraid of a police officer while
that citizen is properly performing his or her duties. The actions of Officer Bell were intimidating
and had the potential to instill fear in the Energy Cooperative employees.
Having found the grievant did
violate both of the cited sections of the Code of Conduct,
the only remaining question is the reasonableness of the penalty imposed.
Arbitrator Whitney McCoy stated
the prevailing view of the role of the arbitrator in reviewing penalties back
in 1945 when he wrote:
Where an employee has violated a
rule or engaged in conduct meriting disciplinary action, it is primarily the
function of management to decide upon the proper penalty. If management acts in good faith upon a fair
investigation and fixes a penalty not inconsistent with that imposed in other
like cases, an arbitrator should not disturb it.”
I find the investigation was
fair and that management did act in goof faith. No evidence was presented that
would indicate the penalty was different from similarly situated cases.
It is not my task to second guess the Employer in this case and
determine that a lesser or greater penalty should be imposed.
DECISION
AND AWARD
For the reasons herein
stated, the grievance is denied.
Issued at
London, Ohio this nineteenth day of July, 2006.
Notes:
1. These incidents are not
before this arbitrator for determination but are offered by the employer
2. FOP Post Hearing Brief, Page
4.
3. General Cable Co., 28 LA
(BNA) 97, 99 (Fleming, 1957).
4. 107 LA
(BNA) 779 State of Ohio and FOP/OLC
5. 116 LA
(BNA) 545 City of Cuyahoga Falls and
the Fraternal Order of Police.
6. Stockholm Pipe Fitting
Company, 1 LA (BNA) 160 (1945)