LEGISLATIVE

City of Cleveland

and

Cleveland Police Patrolmen's Association

Cite as: 108 LA (BNA) 912, AAA Case No. 53-390-00549-96

Arbitrator: Thomas R. Skulina

For the employer -- Joseph J. Jerse, Assistant Director of Law.

For the union -- Gerald S. Gold and Brian Dawney, attorneys.

Issues:

1. Where the Collective Bargaining Agreement (hereafter ``CBA'') provides that an Arbitrator shall not substitute ``his judgment for the judgment of the Chief of Police or the Director of Public Safety in applying the provisions of this article'', namely the ``Suspensions from Duty'' Article, does the same limitation of discretionary review apply to a discharge?

2. What burden does the City have to prove that just cause exists to warrant a discharge?

3. What weight should be given to the City's handling of disciplinary sanctions in previous instances of off-duty non-felony criminal offenses?

Facts:

The grievant, M_, was hired by the City of Cleveland as a patrol officer in the Division of Police on January 6, 1992. His service record was satisfactory and positive until his discharge on August 2, 1996 for an incident that took place on November 5, 1994. His tenure therefore lasted approximately four and one-half years.

The grievant was separated in 1993 from his wife that he married in December 1991. He began living with a divorced mother of two children, a boy and a girl. His divorce was finalized in August of 1995.

The boy, who was part of this new household, was born on September 14, 1981.

His behavior is relevant to what took place and led to the eventual firing of the grievant.

The mother testified in the hearing before the Safety Director that both before and during the time the grievant moved in with her she was having disciplinary problems with her son. He had pushed his mother and ``raised his hand'' at her. He had pushed her across the floor.

He appeared in Juvenile Court on October 16, 1991 for a delinquency hearing. The union advocate represented that the matter concerned the boy striking another juvenile with a pipe. On November 3, 1994, he received a ``Notice of Intended Suspension'' for a fight with a girl. She was knocked off a chair and broke her arm. His mother ``grounded'' him. This involved, among other things, no use of a radio.

The grievant testified that the mother had asked him previously to talk to her son. He had been in multiple fights, verbally abusive and abusive to his sister and his mother. He had a bad temper. The father did not visit his children in 1994 so the grievant had talked to the boy.

On the evening of November 3, 1994, the grievant and the boy's mother had joined another couple for dinner. Upon their return, a loud sound emanated from a radio in the boy's room. This was a clear violation of the mother's grounding rules.

The radio was unplugged and the mother and son argued. Loud voices came from the bedroom. Then there was the sound of a slap.

This is when the grievant charged into the bedroom with the belief that this boy had slapped his mother. Later testimony indicates that it was the opposite. The mother slapped her son.

The grievant got between the mother and her son and testified that he felt the boy put his hand on his waist from behind.

He spun around and back handed the boy on his face. He admits to a possible infliction of other blows but is not sure. The mother and the grievant argued and the grievant left the dwelling.

The boy was taken to the hospital. He related to the attending physician that he had been struck on the right side of the face and the left chest and left shoulder.

Upon examination, the doctor found a large contused area down the right side of the neck. Photos were taken and the imprint on his face was consistent with a violent back hand slap. He had not lost consciousness, his teeth were intact and his neck was otherwise a-traumatic. There were some contusions on the left upper chest and the left biceps area. He had, however, full range of motion in his left shoulder. There was no evidence of trauma or tenderness in his back; nor was there any problems with his abdomen or extremities other than the bruise on the left bicep.

All the x-rays were negative. Tylenol was prescribed for pain and ice was to be used in the bruised areas. The child was not to be let anywhere near the grievant.

An incident report was made to the Cleveland Police on November 5, 1994. It was styled ``Domestic violence/Endangering Children''.

The report made by the mother differs somewhat from her later testimony at the disciplinary hearing.

It is also inconsistent with the medical findings. She had, for example, indicated that the grievant had come past her in the bedroom and began choking and punching her son.

There is no evidence that the boy was choked and though violently struck, it appears that the mark on the face was caused by a back hand blow. The imprint of this blow showed the front of a person's finger nails with the front finger tips below the wrist area.

The mother later testified that she was not struck notwithstanding her earlier report.

She stated ``He (the grievant) got between us. He kept between us to stop us from arguing because my son was getting to be a bad boy. And, when he pushed him, he smashed him. It wasn't a deliberate beating. It was just a reaction. He was protecting me, I would say''.

This testimony took place on May 13, 1996. The mother and grievant had reinstated their relationship and were living together.

The incident took place on a Friday and that Sunday the couple reconciled. The grievant apologized to the boy and took a furlough. Both the boy and girl accompanied the grievant to a trip to New York. The grievant had moved back.

In July, 1995, the boy got into trouble again. This time he sought support from his father and evidently told him about the November, 1994 occurrence.

The father then took his son to the police, filed charges and ultimately the grievant stood trial. He was convicted by a jury of assault on April 3, 1996 and subsequently fined Two Hundred Dollars plus costs and sentenced to one hundred eighty days. The Court suspended one hundred seventy days. Three days were to be served in the Cleveland House of Correction and seven days at home with an electronic monitor.

The offense constituted a misdemeanor of the first degree. The conviction was affirmed. On January 25, 1996, the grievant had been suspended pending discharge after the criminal charges were lodged until his discharge on August 2, 1996. That suspension was separately grieved and went to arbitration. This suspension matter was not placed before this arbitrator. The issues here involved the discharge.

Other evidentiary matters were introduced. These included two Awards, a letter from a Psychologist and testimony regarding nine previous cases and the punishments afforded in those cases. This evidence shall be taken up later.

• Management Rights (Article IV)

• Grievance Procedure (Article XXII)

• Suspensions From Duty (Article XXIX)

• Rule 2:07 Patrol Officers

Discussion:

Issue 1. Where the CBA provides that an Arbitrator shall not substitute his judgment for the judgment of the Chief of Police or the Director of Public Safety in applying the provisions of this article, namely the ``Suspensions from Duty'' Article, does the same limitation of discretionary review apply to a discharge?

In discharge cases, the employer inevitably argues that it has management rights and an Arbitrator has no authority to substitute the Arbitrator's judgment for that of the supervisor who administered the discipline.

In a case where the facts are clear and the only issue is ``was discharge warranted'' the argument is proposed that once the case is made, the arbitrator's job is over and the penalty is sustained. There are reported instances of arbitrators who are reluctant to infringe or invade the judgment process of a supervisor.

On the other hand, there are those arbitrators who consider it a duty to review not only the facts of the grievance, but the severity of the discipline. Otherwise in any clear case of a discipline violation, arbitration is a waste of time.

There are some CBAs, however, that have incorporated strict language to preclude an arbitrator from the opportunity to substitute judgment for the supervisor. Parties to a CBA certainly have the right to pattern the approach to grievance appeals. If they enact such a provision, the Arbitrator must follow it.

In this case, the CBA has a limitation in the Suspension Article. This limitation, albeit in a non-neutral gender application, addresses this issue as it applies to the Suspension Article. In my judgment, if the parties intended to broaden this restriction to discharge sanctions, they would have done so.

This provision does not apply in this case. My finding on this issue is not dispositive of the Award in this case. Other factors such as ``Just cause'' and previous discipline shall be discussed.

Issue 2. What burden does the City have to prove that just case exists to warrant a discharge?

Arbitrators differ as to the degree of proof necessary to establish just cause to warrant a discharge.

I am of the opinion that a discharge is tantamount to economic capital punishment. The employee not only loses the job in issue, but, carries a permanent stigma for future hires. The evidential burden is alleviated to the extent that in the arbitral setting, the rules of evidence are not stringently followed. An employer has a dual burden of proof. Not only must a disciplinary breach be proven beyond a reasonable doubt, but also, it must be proved that just cause has been established to warrant the maximum sanctions.

In this case, there is no question but that a disciplinary breach occurred. The grievant lost his cool, as they say in the vernacular. He struck a thirteen year old boy, probably more than once. Instead of acting as a calming effect in a volatile domestic

between mother and errant son, he aggravated the unfortunate disruptive ending to the dispute.

The pictures of the boy that were taken by the hospital reflect the rage that propelled the backhand swipe at the child. The hospital records, however, make it clear that as horrendous, the blows that were landed, there was no evidence of a conscious, fist directed effort to really injure the boy. Otherwise, there would have been abdominal injuries, dental injuries, lack of consciousness, orthopedic injuries, etc.

Aside from overreacting in a situation where the grievant perceived the son of his lover striking her and about to challenge him, the end result was contusions and abrasions.

This does not entirely minimize what the grievant did. A jury found a criminal assault and an Appellate Court concurred. The Arbitrator also finds an intentional assault on a thirteen year old child as unconscionable, and when committed by a police officer, even more so.

Should the economic death penalty be invoked under these circumstances. Just cause has been proven that some discipline was proper. Whether the proof goes so far as to justify the ultimate sanction is questionable.

Issue 3. What weight should be given to the City's handling of disciplinary sanctions in previous instances of off duty non-felony offense?

No one would seriously contend that a convicted felon should continue to serve as a police officer.

On duty criminal major misdemeanors probably also fall in the category as probable cause for discharge.

What is more complicated is the misdemeanor committed off duty e.g. DUI (3) domestic violence, leaving the scene of an accident, unauthorized use of a vehicle, discharging a weapon, possession of a silencer or aggravated menacing. These were the gist of nine previous grievances involving off duty misdemeanors.

In a review of this series of nine previous off duty crimes committed by police officers, the City did not use discharge as the sanction in every case.

An officer, however, who pleaded guilty to telephone harassment for threatening the life of the Mayor of Cleveland, was fired. This took place after the case presently before this Arbitrator.

The history of reluctance to fire a police officer has relevance.

In this case, there is no proof that this was a disparate sentence. To establish that somehow the grievant was selected for more harsh treatment for some unfair reason, whether it be race, gender, religion, politics, personality or whatever, shifts the burden to the union. There does not appear to be such a claim.

The significance is that the working environment is entitled to an equilibrium in the application of the employer's justice. Thus, the history of previous decisions is appropriate. The fact that previous Safety Directors were involved does not matter. Continuity and even handedness must be maintained by the employer in the public sector, even after changes in the Administration. Good reasons and proof can, of course, justify more serious punishment in a given case.

It is true that the victim here was only thirteen years old. That fact alone does not of itself warrant discharge under the circumstance of this case.

Conclusion:

This officer served approximately four and one-half years. He had favorable reviews by his immediate supervisors and was commended by the Mayor and the Community Relations Committee. His record was good to excellent and there were no breaches of discipline prior to this event.

This off duty incident was a unique chance event. A man lived with a woman who apparently could not control her children. Her son was what can euphemistically be labeled a violent juvenile delinquent near out of control.

The grievant had no right to strike this boy.

In a discharge, consideration must be directed to whether this was probably a one time unfortunate lack of discretion. A clinical psychologist opined that the grievant gives no indication of a pattern of behavior or attitudes that makes him a danger to others.

There is no proof that outside of this one time emotion charged atmosphere, that the grievant would make the same mistake.

In his testimony and demeanor, he is apparently remorseful that he let his temper fly.

If he had acted beyond the slaps, violent though they were, and if any permanent injuries had been inflicted, this report would have been a lot shorter and the result a denial of the grievance.

Just cause has been defined and discussed by many articulate arbitrators. Just cause is something you know when you see it. Though this phrase has been used for other situations, it does fit here.

Just cause incorporates fairness. Hence, the review of evenhandedness in past discipline cases.

It incorporates a protective aspect to prevent future harm to fellow workers or the public.

It also incorporates a corrective feature that should redirect the employee and also let other employees know the bounds of the employer's understanding of its management rights.

In the work place, unlike the criminal justice system, discipline is not designed as a tool for punishment.

Sometimes someone must be taken out of the work place, but it is not to punish that person, but to maintain the harmony and efficiency of the work place that the person must go.

That is not the case here.

The union has asked that the grievant be reinstated with back pay and benefits.

The grievant shall be reinstated, however, the egregious misconduct involving a minor warrants no award of back pay or benefits for the period that is under review in the arbitration i.e. August 2, 1996 to date of reinstatement.

The reinstatement shall take place on June 18, 1997 to allow for efficient placement of the grievant.

AWARD

The grievance is sustained and the grievant shall be reinstated effective June 18, 1997.

The grievance is denied as to the request for back pay, benefits or seniority from August 2, 1996 to June 18, 1997.

The periods of suspension pending discharge from January 25, 1996 to August 2, 1996, is being arbitrated separately and is not within this Arbitrator's jurisdiction.