Holding: Management wrongfully discharged a firefighter that was in a public altercation with his date; his behavior did not harm the reputation of his office, did not render him unable to perform his duties, and did not lead to refusal, reluctance, or inability of other employees in office to work with him. Note: The Broward County, Florida, fire service is part of the Sheriff’s Office.
Broward County Sheriffs Office
IAFF Local 4321
121 LA (BNA) 1185
FMCS Case No. 05/01966
September 22, 2005
Jerome H. Wolfson, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
The employer offered the position that on March 12, 2004 the grievant was involved in an altercation in public and that he savagely beat his girlfriend. The employer further stated that the grievant was arrested as a result of the incident and was subsequently terminated with an effective date of 11/16/04 on the ground(s) of conduct unbecoming an employee along with a charge that he failed to conform to the law.
The grievant/employee offered the position that he was not married on 3/12/04, there was no severe beating and that the incident, which was as a result of the grievant not wanting to do as his date had wished, occurred after a stop by the police and further that the grievant requested medical care from being beaten by the complaining witness. During the process of proceeding through the criminal court system the grievant plead nolo contendere and was ordered to alcohol and anger management courses. The grievant maintained that his/the conduct was off duty and that there is no link between the conduct and his employment/job.
Findings of Fact and Conclusion
The findings of fact made in this cause are based upon the consideration of all the testimony and evidentiary exhibits along with my observations as concerns the demeanor and credibility of all witnesses who have appeared before me. Any and all evidential conflicts have been weighed and resolved by me. Based upon the foregoing I make the following findings of fact:
1. The arbitrator has jurisdiction of the parties and the subject matter.
2. The evidence submitted is accepted and included in the record.
3. The stipulations entered into between the parties and accepted.
4. The grievant has properly processed his appeal/grievance entitling him to this hearing and has submitted argument as concerns his cause along with all evidence and documentation he sought fit to submit. The employer, the Broward County Sheriffs Office, has offered its case and has argued for upholding and justification for why termination was all appropriate measure in this cause as concerns the grievant. The parties submitted briefs and a transcript of the proceedings.
5. As of 3/12/04 G__ had been a firefighter for approximately 18 years with continuous employment. On said date he was employed by the Broward Sheriffs Department. Shortly after 11:00 p.m. on that date the grievant/petitioner was involved in an altercation in Dania Beach, Florida with a female he was dating and at times had lived with. He was off duty and not in uniform. He struck her and used physical force on her. The female struck the grievant and used physical force on him. Both the grievant and his companion for the evening sustained objective signs of injury as a result of the altercation. Based on a call for police service, the testimony of an independent witness, and the complaint of the grievant’s date/companion, he was arrested. He was charged with misdemeanor battery. Subsequently, (June 16, 2004) the grievant entered a plea of nolo contendere to the charges. Adjudication was withheld and he was ordered to classes in both anger management and alcohol counseling. His probation for the aforementioned offense was completed/expired on June 15, 1005. As of said date he was no longer under supervision of any law enforcement entity.
6. For approximately 50 years arbitrators have considered the issues presented in this cause and have rendered written decisions. They agree that off-duty employees have less responsibility to all employer than on-duty employees. As a general rule employers cannot hold employees accountable for their off-duty conduct unless it produces untold work related consequences. The factors necessary to warrant discipline remain consistent. Proof must exist that the:
See, State of Ohio and Fraternal Order of Police, 94 LA (BNA) 533 (1990). City of Sheboygan Falls and The Labor Association of Wisconsin, LAA 93-1 ARB 4169 (1992). W.E. Caldwell Co. and International Association of Bridge and Ornamental Iron Workers, 28 LA (BNA) 434 (1957). Metropolitan Washington Airports Authority and NWAA Professional Firefighters Association, IAFF, Local 3217, 111 LA (BNA) 712 (1998). (A cause that involves a firefighter).
Similarly, the Florida and Federal courts are not without precedent in this area. They do not deviate from the arbitration decisions in holding for off-duty employees in similar circumstances; See: Weisbrod v. Florida Career Service Commission, 375 So.2d 108 (1979), John Jerome Bruns, III v. Donald D. Pomerleau, 319 F.Supp. 58 (1970); William O. Shuman, Jr. v. City of Philadelphia, 470 F.Supp. 449 (1979); Patricia T. Via, f.k.a. Patricia T. Toomey v. Stan Taylor, 224 F.Supp.2d 753 (2002); Johnsie Washington Wilson, Jr. v. William E. Swing, 463 F.Supp. 555 (1978).
The undersigned chooses to accept the doctrines as included in the arbitration awards. The Florida and Federal doctrines are only mentioned herein but are not the basis of this decision.
7. In the instant cause, the off-duty actions and behavior of the grievant herein did not harm the reputation of the Broward County Sheriffs Office, did not render him unable to perform his duties and did not lead to the refusal, reluctance or inability of other employees of the Broward County Sheriffs Office to work with him. There does not exist a positive and unequivocal showing that there exists a connection between G__’s off-duty conduct and a legitimate public interest that was or would be detrimentally affected by it. Similarly said off-duty conduct of the grievant did not materially and substantially impair his usefulness as a firefighter nor did it affect the performance of his duties or publicly reflect adversely upon the public image of the grievant as a fire fighter or of the Broward County Sheriffs Office as a public body.
Accordingly, the grievant/employee did not commit a wrong on March 12, 2005 for which he deserved to be terminated by his employer. He should not have been the recipient of any form of discipline. His conduct did not adversely affect the discipline, good order or reputation of the Broward County Sheriffs Office. His off-duty behavior should not have resulted in the conclusion by the Broward County Sheriffs Office that sections 2.2.28 and 2.2.39 of its Policy and Procedures (June 1, 2002) were proper grounds for terminating him.
Wherefore, in accordance with the binding arbitration clause as included in Article 36(b) (step 4) of the contract existing between the Broward County Sheriffs Office and IAFF Local 4321.
It is the order of the undersigned that:
A. The disciplinary action taken against the petitioner/grievant of termination is hereby reversed. The actions taken against him under Section 2.2.28 and 2.2.39 of the Broward County Sheriffs Office Policy and Procedures (June 1, 2002) together with any and all regulations, general orders, policies, procedures, statutes and rules that were utilized are specifically reversed for the reasons stated above. The petitioner/employee should not have been terminated. He should be made whole as concerns any and all salary, emoluments and benefit losses.
B. In accordance with Article 36, Subsection B-Step 4 of the agreement between the Broward County Sheriffs Office and the IAFF Local 4321 the fee and expenses of the Arbitrator shall be paid by the Broward County Sheriffs Office.