International Association of Firefighters
122 LA (BNA) 277
AAA No. 14-390-00964-02
Kinard Lang, Arbitrator.
the City of
Grievant became a Firefighter in early 1992, between then and his May 21, 2002 “Notice
of Dismissal” our record shows no other behavior problems, and performance that
was always rated “Satisfactory” or “Superior”. The last formal “Performance
“Bonner was cheap, after night work he would get up early and take leftovers home. The reason for the joke was to get Bonner’s credit card and make it look like someone was trying to take his money, because money was is all he cared about ... Bonner would be scared.”
Positions of the Parties
According to the City there is no dispute regarding the Grievant’s perpetration of the act; he took his supervisor’s credit card without permission and attempted to use it, and then falsely reported finding it on the firehouse floor. He had opportunities to confess before the police were notified and Engine 7’s Station was placed out of service for approximately four hours, while the theft was investigated.
His acts were “Conduct Unbecoming a Member”, as detailed in Appendix B, the “Trial Board Charge Sheet”. There was Just Cause for his dismissal, which must be upheld.
IAFF, Local 22
We are told this is a bad joke gone worse; that in addition to being a perilous profession, firefighting is one that requires a “thick skin” with regard to jokes and kidding, and that, not “theft”, is what this case is really about. The City has the burden of proving “theft” with clear and convincing evidence; that requires more than just establishing that the wrongdoing “events” occurred, but also that the perpetrator had evil “motivation”. Additionally, we are told that in assessing the ultimate disciplinary penalty, dismissal, the City gave NO consideration to the Grievant’s excellent long-term service as a Firefighter. The City did not have Just Cause for dismissal in this case. This grievance must be sustained, and remedied with Firefighter Z__’s reinstatement with back pay.
Discussion and Analysis
know what the Grievant did. He provided a “reason” for doing it. The
That set of circumstances, along with the Grievant’s unrebutted testimony regarding his recent cash settlements for more than $200,000.00, lends credibility to his “bad joke” explanation. However, Special Investigations Officer Nelson testified convincingly with regard to the seriousness of theft among Firefighters; they share confined quarters while on-duty, and possibly asleep, and they must trust each other with their personal effects, just as they trust each other with their lives at fires.
Nelson testified that when he arrived at the firehouse to investigate the credit card theft, he was told a wallet had also been stolen, and the Grievant was believed to have “found” the credit card, and the wallet.
wallet belonged to
“9. What was your interest in the videotape at the 7-11?
To know that I was busted, with the camera being there, and in full uniform.” * * *
“13. Is there anything you want to add to this interview?
I do not wish to resign or be fired. I have been a member of this department for 10 years, and never been in trouble. I was a Detective with SEPTA for 4 years, before I was a Firefighter. I know I was wrong for what happened, I feel that I shouldn’t be dismissed for a practical joke. I never did anything like this before. I was afraid that’s why I didn’t come forward. I don’t need his money. I have money in the bank, we just settled for $53,000 with an insurance issue on our house.”
C. and D. show that the criminal justice system did not find the Grievant to be
a “thief”, per se; he was placed in the “Accelerated Rehabilitative Disposition
Program”, which he completed successfully, and his “criminal record” was “Expunged”.
In a similar vein, at Arbitration the City did not successfully rebut the claim
that Lt. Bonner, the “victim”, testified at the Grievant’s “Preliminary Hearing”
I am convinced that what we have here is a bad practical joke that got out of hand.
Grievant’s behavior on
Clearly, his “practical Joke” was stupid, and he “choked” when had a chance to confess. But his employment history does not persuade me he was a stupid “thief”, who “stole” Bonner’s wallet with the intent to use it to retrieve money from an ATM, while in full Firefighter uniform, without the required PIN number, with the expectation of avoiding capture. Similarly, the fact that he had unauthorized possession of Bonner’s VISA card overnight, on April 18th, but did not attempt to make purchases or get cash, until 6:20 A.M. on the 19th, is consistent with the “practical joke” explanation.
Within the complete evidentiary context, his practical joke explanation, while not an excuse, warrants the following penalty mitigation.
grievance is sustained in part and denied in part, Z__ shall, after successful
completion of all the Fire Department’s return to duty regimens, be returned to
duty with the seniority, benefits and pay-grade appropriate to a Firefighter
with the years of service he had on the date of his 2002 separation from
service. The time off the
job shall be treated as disciplinary suspension without pay. [