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City of Elgin
Elgin Police Dept.
and
119
LA (BNA) 517
Arbitration
Case No. 02/074
October
3, 2003
Elliott H. Goldstein, Arbitrator
The stipulated issue is as
follows:
Was there just cause for the issuance of the grieved suspension of Grievant H__. If not, what shall be the remedy?
The grievance is sustained in
part and denied in part, as set forth more fully below.
Item 2. Management Responsibilities
The City shall retain the sole right and authority to
operate and direct the affairs of the City and the Police Department in all of
its various aspects, including, but not limited to, all rights and authority
exercised by the City prior to the execution of this Agreement, except as
modified in this Agreement. Among the rights retained is the City’s right to
determine its mission and set standards of service offered to the public; to
direct the working forces; to assign overtime; to plan, direct, control and
determine the operations, or services to be conducted in or at the Police Department
or by employees of the City; to assign and transfer employees within the Police
Department; to hire, promote, demote, suspend, discipline, or discharge for
just cause, or relieve employees due to lack of work or for other legitimate
reasons; to make and enforce rules and regulations; to change methods,
equipment or facilities; provided however, that the exercise of any of the
above rights shall not conflict with any of the specific provisions of this
Agreement. Any matters within the jurisdiction of the Elgin Board of Fire and
Police Commissioners shall not be affected by the terms of this paragraph.
Item 14. Grievance Procedure
Section a. Definition of a Grievance. A grievance for the
purpose of this Agreement is defined as a difference of opinion between an
employee covered by this Agreement and the City with respect to the meaning and
application of the express terms of this Agreement and matters involving the
discharge, suspension or discipline of non-probationary employees. Such
disciplinary grievances shall be initiated at step 4 of the grievance
procedure. The contractual grievance and arbitration procedure shall be the sole
recourse for appealing such disciplinary action and shall be in lieu of the
provisions of the Board of Fire and Police Commissioners Act and disciplinary
proceedings before the City of Elgin Board of Fire and Police Commissioners. * * *
Step 5. Arbitration. If the grievance is not settled in
accordance with the foregoing procedure, the Association may refer the
grievance to arbitration by giving written notice to the City Manager within
ten (10) calendar days after receipt of the City’s answer in Step 4. The
parties shall attempt to agree upon an arbitrator promptly. In the event the parties are unable to agree upon an arbitrator, they shall
jointly request the Federal Mediation and Conciliation Service to submit a
panel of five (5) arbitrators. The Association shall strike two (2) names and
the City shall then strike two (2) names; the person whose name remains shall
be the arbitrator; provided that either party before striking any names, shall
have the right to reject on [sic] panel of arbitrators. The arbitrator shall be
notified of his/her selection by a joint letter from the City and the
Association requesting that he/she set a time and place for hearing, subject to
the availability of the City and Association representative. The arbitrator
shall have no authority to amend, modify, nullify, ignore, add to, or subtract
from the provisions of this Agreement. He/she shall consider and decide only
the specific issue(s) submitted to him/her and his/her opinion shall be based
solely upon his/her interpretation of the meaning or application of the terms
of this Agreement to the facts of the grievance presented. Where the parties
mutually agree in writing, more than one grievance may be submitted to the same
arbitrator. The decision of the arbitrator shall be final and binding. The
costs of the arbitration proceeding, including the fee and expenses of the
arbitrator, shall be borne equally by both parties; provided, however, that
each party shall be responsible for compensating its own attorneys, representatives,
or witnesses.
Item 27. Employee Discipline
Section a. Standards of Discipline
All disciplinary action against officers covered by this
Agreement shall be carried out in accordance with department rules,
regulations, orders, policies, procedures, City Ordinance, Board of Fire and
Police Commissioners’ Rules and Regulations, and State laws governing the
discipline of law enforcement officers.
The City agrees with the tenets of progressive and
corrective discipline where appropriate. However, when the severity of an
infraction is great, discipline outside the progression shall be considered an
appropriate remedy. It should also be recognized that when using the principal
of progressive discipline, all aspects of performance are taken into consideration.
Individual infractions standing alone may not warrant action beyond the first,
but when cumulatively with warnings and other discipline actions, more extreme
action may be appropriate. No non-probationary employee may be removed or
discharged, or suspended, for a period of more than five (5) calendar days,
except for cause.
Section b. Departmental Discipline
Disciplinary action rendered by the Department may take any
one or more of the following forms:
a. Oral reprimand;
b. Written reprimand;
c. Suspension without pay;
d. Dismissal.
Suspension without pay and recommendations for dismissal
are to be levied by the Police Chief or his designee. * * *
On April 25, 2002, the Grievant, a police officer employed by the Elgin
Police Department for approximately 16 years, arrived at a restaurant known as
Quizno’s for his lunch break. At the time he arrived there, Police Officer
Piazza was already there and Police Officer Danner entered the restaurant a
short time later. Section 41.1.5(H), WORK
BREAKS, of the Elgin Police Department’s “SOP”(Standard Operating Procedures)
reads as follows:
“H. No more that [sic] two marked police units may be at any location while taking a work break. Exceptions may be granted by a supervisor under special circumstances. This section does not apply to plainclothes or unmarked units.”
According to Sergeant Troiola, Section 41.1.5(H) is known as the “two-car”
rule, which exists for reasons of public safety (officers must remain in the
vicinity of the citizens they protect) and public perception (the public should
not have to wonder why three polices cars are parked at one restaurant).
Troiola testified that when police officers desire a work break, they must
radio their requests to communications personnel who allow the breaks based on
manpower requirements and on the order in which the break requests are
received. When an officer’s break is allowed and he is cleared to go to lunch,
he is supposed to inform communications that he is en route to his lunch
destination. Once he arrives there, he should then “call out” his location. The
officers’ lunch breaks end 40 minutes after they “call out.” By “calling out”
their lunch break requests and eating locations over the radio, the officers
are aware of the schedules and whereabouts of their fellow officers.
Troiola testified that, on the
incident date, he and Police Officer Reardon were en route, in their separate
cars, to Quizno’s, a restaurant located on Elgin’s west side. Situated in a
strip mall, Quizno’s is just one of a few restaurants located there, Troiola
stated. When Officer Reardon entered the restaurant, Police Officer Piazza, who
was already there, told him be and Police Officer Danner had decided to eat
there and he, Piazza, was waiting for Danner. According to Troiola, he and
Reardon did not eat at Quizno’s because Officers Piazza and Danner had decided
to eat there first. If Troiola and Reardon had stayed, four cars would have
been parked at Quizno’s in violation of “SOP”41.1.5(H). As Troiola and Reardon
were exiting the mall parking lot, they saw the Grievant driving his marked
police car into the parking lot. Troiola testified that he knew the Grievant
had been cleared to take a lunch break, and because there were other eating
establishments located in the mall, he was not concerned about where the
Grievant would be eating lunch.
Troiola testified that he heard
Piazza and Danner call out that they were eating at Quizno’s, before hearing
the Grievant call out that he was going to eat there, too. In Troiola’s words, “I
heard Officer H__ call out that he would be eating at Quizno’s, so that made a
total of three marked police vehicles eating at that location.” Troiola
testified that shortly after the Grievant had finished eating, he informed the
Grievant that he had violated the “two-car” policy. According to Troiola, the
Grievant told him he thought that the policy allowed up to three police units
at a single restaurant, but that he had realized only two vehicles could be
parked at the same location.
According to the record, later
that day Troiola requested that the Grievant prepare a memorandum of what had
transpired. The memorandum, entered into evidence as City Exhibit 1, reads as
follows:
“04-25-02
TO: SGT.
FROM: OFC. H__ 147
RE: 10-7 POLICY
REFERENCE OUR CONVERSATION ABOUT THREE
SQUADS 10-7 AT THE SAME PLACE ON 04-25-02, AS I STATED I BELIEVED THE POLICY
ALLOWED THREE SQUADS TO BE AT THE SAME PLACE. I DID NOT ATTEMPT TO COVER UP THE
FACT THAT I WAS THE THIRD CAR, I CALLED OUT OF SERVICE ON THE RADIO GIVING MY
LOCATION, AND CALLED BACK IN ON THE RADIO.”
According to the testimony of Troiola, prior to the April 25, 2002
incident, the Claimant had not committed any violation similar to the “two-car”
policy. With respect to this incident involving the policy, Troiola
specifically recommended to his superiors that the Claimant serve a one-day
suspension, given his “shift-level” knowledge of the incident. According to the testimony of Assistant Chief of Police
Beeter, Troiola’s recommendation was subject to the approval of Beeter who, in
collaboration with the chief of police, reviewed Troiola’s memoranda concerning
the incident. Beeter testified that his function was to review any
recommendations concerning employee discipline in light of the employee’s
disciplinary history.
According to Beeter, he and
Acting Chief of Police Lamkin decided that the appropriate level of discipline
to be assessed against the Grievant as a result of the instant offense was a
four-day suspension based on, in Beeter’s words, the Grievant’s “extensive
history regarding disciplinary matters, specifically some relating to ... these
allegations.” According to Beeter, in late 1997, the Grievant had been assessed
discipline of a “three-day suspension for insubordination, neglect of duty.”
The testimony of Acting Police Chief Lamkin indicates that his decision
to assess discipline of not less than a three-day suspension was based, in
part, on the Grievant’s prior record, mainly the 1997 three-day suspension for
a “similar rule violation.” By letter dated
May 30, 2002, Lamkin informed the Grievant that he was being assessed a
three-day suspension as a result of his violation of Elgin Police Department
Rules & Regulations, Section 1.3, Obedience to Orders and Standard
Operating Procedure Section 41.1. According to Personnel Order 02 C 051, the
Grievant was scheduled to serve the three-day suspension on July 3, 17 and 30,
2002.
Contentions of the
Parties
A. The Employer
The Employer argues that based on “clear and unequivocal” evidence, the Claimant’s violation of the City of Elgin’s Standard Operating Procedures and Rules has been proven. According to the Employer, the Grievant was aware of the violation, admitted to it in writing and later admitted he lied about the matter in his report to Sergeant Troiola. The Grievant’s intentional violation of a known rule is clear given the testimony of Officer Piazza, which the Employer states confirmed that the Grievant had planned to go and eat there “anyway,” the “SOP” notwithstanding. The Employer stresses that the Grievant “has no credibility” given his testimony that, on the one hand he did not understand the rule, but on the other hand, he acknowledged the rule based on his statement to Piazza that he would eat there anyway.
Regarding the appropriateness of
discipline assessed in this case, the Employer asserts that both the nature of
the proven offense and the Grievant’s prior disciplinary record justified the
assessment of a three-day actual suspension. The Employer submits that on more than one occasion the
Grievant was informed about the “two-car” rule. The Grievant’s attempt at
creating an impression of disparate discipline was unsuccessful, given the fact
that he presented no evidence to substantiate such an assertion, the Employer
argues. Citing Elkouri & Elkouri, “How Arbitration Works,” Fifth
Edition, p. 935 (Genie Company, 97 LA (BNA) 542, 549 (1991)), the
Employer argues that the Grievant and the Union bore a burden of proving that
the Grievant was treated disparately or differently from any other officer. The
Grievant “has failed to provide any evidence to establish that the
circumstances surrounding his offense were substantively like those of any
individual who received a more moderate penalty,” the Employer stresses. In
closing, the Employer states, “The judgment of Deputy Chief Lamkin in this
instance is sound and reasonable, and has been uncontroverted by any credible
evidence.” Thus, the Employer submits that its imposition of the three-day
suspension should not be disturbed.
The Union disputes the City’s disciplinary action against the Grievant
for several reasons. Substantively, the Grievant did not violate the “SOP” regarding
work breaks and was not disobedient to orders, and the “SOP” concerning work breaks
was being selectively enforced. The Union argues, therefore, that a lack of
just cause warranting any discipline exists in this case, and that the City
failed to follow its disciplinary policy regarding the degree of discipline it
assessed against the Grievant. Finally, the Union asserts that in the event the
Arbitrator should find the Grievant guilty of the offense with which charged, “a
three-day suspension is more severe than warranted.”
Regarding the facts of this
case, the Union stresses that at the time of this incident the Grievant was in
this 16th year of service with the Employer and both of his performance
evaluations for the years 2001 and 2002 indicated a rating of “Meets
Expectations.” Moreover, according to the Grievant’s disciplinary record, the
most recent entry involving a suspension prior to the incident grieved here
dated back to 1997 (when he received a three-day suspension for failing to
perform the duties of evidence technician, and insubordination to the chief of
police). In the Union’s view, the Employer did not impose progressive
discipline upon the Grievant because the 1997 suspension occurred more than
five years before the instant infraction and therefore, should have been
dropped from his record.
According to the Union, on the
incident date, Police Officers Piazza, Danner and the Grievant had all been
cleared for lunch, and all three had informed communications they were at
Quizno’s. During questioning by Sergeant Troiola later that day, the Grievant
prepared a written statement in which he explained that he thought the policy
allowed as many as three squad cars at a location, and that he never tried to
cover up the fact that his was the third car there. The Grievant’s statement
reveals he was confused about the policy because there had been talk of
revising it, and in the Grievant’s view, there were different policies for
different shifts. The Union submits that the Grievant was the second officer,
not the third officer, to actually arrive at Quizno’s. The City chose to ignore
that fact, the Union argues, and made no effort to ascertain whether the
Grievant had actually violated any rule before taking disciplinary action.
Turning to the level of
discipline imposed, the Union avers that, according to the City, the Grievant
was disciplined for violating the “SOP” involving work breaks and for failing
to obey an order. Sergeant Troiola recommended a one-day suspension, which was
upgraded to a four-day suspension by Assistant Chief Beeter. The actual
discipline assessed was a three-day suspension, the Union notes. However, it
further emphasizes that before the discipline date of May, 2002, no other
police officer had ever been suspended for violating a work break “SOP.”
Officer B__ had received a written reprimand for violating a similar work break
“SOP” after the fact, the Union points out.
Based on all of the above, in
the Union’s view, the City failed to demonstrate just cause for issuing any
discipline whatsoever to the Grievant, arguing that a “just cause” standard has
been determined through seven questions to be addressed by arbitrators, as
spelled out in Grief Bros. Cooperage Corp., 42 LA (BNA) 555 (Daugherty
1964). The seven questions are as follows:
“1. Did the employer give
the employee forewarning or foreknowledge of the possible or probable
disciplinary consequences of the employee’s conduct?
2. Was the employer’s rule
or managerial order involved reasonably related to orderly, efficient and safe
operation of the employer’s business?
3. Did the employer, before
administering discipline to an employee, make an effort to discover whether the
employee violated or disobeyed a rule or order of management?
4. Was the employer’s
investigation conducted fairly and objectively?
5. In the investigation,
did the adjudicator obtain substantial evidence or proof that the employee was
guilty as charged?
6. Has the employer applied
its rules, orders and penalties evenhandedly and without discrimination to all
employees?
7. Was the degree of discipline administered by the employer reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee’s service?”
According to the Union, the City did not forewarn the Grievant of the
probable disciplinary consequences that could have resulted if he were found to
have violated the “two-car” policy. Additionally, the parties’ disciplinary
rule required the City to follow the progressive disciplinary path specified in
that rule, the Union argues.
It is the further position of
the PBPA that Sergeant Troiola testified that, before the date of the subject
offense, he had merely “talked” to the Grievant about the break policy and had
also mentioned it during roll call. In the Union’s view, this did not
constitute a bona-fide instance of counseling or proper notice to this
Grievant.
The Union also asserts that the
Employer’s witnesses could not agree as to whether the rule violation in
question required the imposition of major or minor discipline. Moreover, the Union
argues that the “two-car” rule was selectively enforced, even though, the Union
concedes, “The work break SOP is reasonably related to the orderly, efficient
and safe operation of the department.” The basis for this specific line of
argument is that in the one instance where similar discipline was imposed, that
discipline was a mere written reprimand. The Union thus notes that Officer B__
was disciplined in a much less severe manner than the Grievant for a supposed
violation of the same rule. Other officers were observed violating the “two-car”
rule, with no discipline whatsoever resulting from these activities, the Union
says. Thus, selective enforcement or unequal enforcement by management has been
observed, the Union avers.
In sum, the Union maintains that the punishment in this case resulted
from the Employer’s selective enforcement of the rules and that the Grievant
received no counseling before the date of the instant infraction. The Union
stresses that the City did not carry its burden of proof here because the
Grievant’s police car was the second one to arrive at Quizno’s. Finally, the Union emphasizes that the discipline
assessed in this matter was too severe, and inconsistent with progressive
disciplinary policies.
The respective positions of both
parties are clear, and summarized as follows:
The Employer argued that it
established by a preponderance of the evidence that the Grievant violated a
promulgated “SOP” that was reasonable and related to its effective delivery of
police protection services. The Employer’s issuance of a three-day suspension
for the Grievant’s proven violation of the “SOP” was based on the Grievant’s
proven guilt and his prior disciplinary record in view of the contractual
schedule of progressive discipline. Therefore, the Employer stressed that as a
result of the proven rule violation and the Grievant’s prior disciplinary
record, the level of discipline assessed should not be disturbed, and the
grievance should be denied in all respects.
According to the Union, on the
other hand, the City did not meet its burden of showing just cause to assess
the Grievant a three-day suspension. In the Union’s view, the City did not
submit substantial evidence of the Grievant’s guilt and therefore, failed to
prove its case. As a result, no discipline was warranted and the discipline
that was assessed was too steep and outside the negotiated progressive
disciplinary scheme.
Initially, I note that the stipulated issue contains the phrase “just cause.” The last sentence of paragraph two of Item 27. Employee Discipline, Section a. Standards of Discipline, of the Agreement between the parties states, “No no-probationary employee may be removed or discharged, or suspended, for a period of more that [sic] five (5) calendar days, except for cause.” (emphasis added)
As I recently held in an
unpublished award dated July 31, 2003, involving Illinois School Bus
Company, Inc. and United Steelworkers of America, Local Union 7234-05, at
p. 31, the stipulation that “cause” or “just cause” must be evident prior to
management’s imposition of serious disciplinary penalties, e.g., suspensions
without pay, protects employees from being disciplined unreasonably or
unfairly. See also, e.g. Worthington Corp., 24 LA (BNA) 1 (McGoldrick,
1955) at pp. 6-7. In order for an employer to prevail in an argument that the
discipline or discharge of an employee was for “just cause,” the employer must
proffer clear and convincing evidence of the employee’s guilt, I submit. Once “just
cause” has been established, the employer must then demonstrate that both its
decision to discipline and the degree of discipline to be imposed is justified,
and not arbitrary, capricious or unreasonable. See Elkouri & Elkouri, How
Arbitration Works (5th Ed. 1997), pp. 905-906. See also my discussion of just
cause in Keystone Steel &Wire Co., 114 LA (BNA) 1466 (2000) and in Maury
Manufacturing Co., 95 LA (BNA) 148, pp. 152-153 (1990).
From my review of the record, I find that the City met its burden of
proving that the Grievant violated the Elgin Police Department’s Standard
Operating Procedure Section 41.1.5(H) concerning work breaks, specifically,
what the parties have termed the “two-car” rule. According to the testimony of
Sergeant Troiola, he and Police Officer Reardon had made plans to eat at Quizno’s
and headed there. Police Officer Reardon entered the restaurant and a short
time later Officer Piazza arrived and told Reardon he had been cleared by
communications to go and eat, and that he and Officer Danner had planned to eat
at Quizno’s. So that they would not disrupt the plans of Piazza and Danner,
Reardon and Troiola decided to eat elsewhere and Reardon left Quizno’s.
Upon leaving the mall, Reardon and Sergeant Troiola saw the Grievant drive into the parking lot in his police car. Troiola credibly testified that despite the fact that the Grievant had actually arrived at Quizno’s before Danner, the record confirms that Troiola had heard Danner and Piazza call out before the Grievant that they were eating at Quizno’s.
Therefore, Sergeant Troiola’s testimony convinces me that the Grievant was actually the third officer to call out Quizno’s as his eating location, and therefore violated the “two-car” rule when he arrived at Quizno’s and ate there even though Piazza and Danner had made earlier plans to eat at Quizno’s and had announced that location over the radio. I do not recall any testimony to the effect that the Grievant did not hear Piazza and Danner “call out” Quizno’s as their lunch location. Furthermore, I find that the statement the Grievant submitted to Troiola constitutes an admission by the Grievant that he was, in fact, the third marked police vehicle to arrive at Quizno’s. The pertinent part of the Grievant’s statement is as follows:
“...AS I STATED I BELIEVED THE POLICY ALLOWED THREE SQUADS TO BE AT THE SAME PLACE. I DID NOT ATTEMPT TO COVER UP THE FACT THAT I WAS THE THIRD CAR...”
In response to the Union’s
arguments that the Grievant did not violate the “SOP” concerning work breaks,
that the Grievant was not disobedient and that the Employer enforced the “SOP”
in a selective manner, I find no evidence from the Union in support of those
arguments. When raising such arguments in an affirmative defense of a Grievant’s
innocence, the Union bears a burden of establishing the truth to those
arguments by submitting substantial evidence in support thereof. Indeed, under
direct examination, Sergeant Troiola recalled two occasions when he discussed
the “SOP” concerning work breaks with either the Grievant individually or with
all the police officers as a group.
Specifically, on January 20,
2002 the date of a fire under the Kimball Street Bridge, I find, the Grievant
and two other officers ate at a restaurant on the far southwest side of the
city. According to Troiola, the Grievant was assigned on the east side and had
crossed over to the southwest side to eat. In Troiola’s opinion, that
constituted a violation of the “two-car” policy. Troiola testified that “...he
and the other officers were spoken to about ... I advised them that the policy
dictated that he wasn’t to cross over the river for a work break and that there
were to be no more than two cars at a restaurant at that time.” (emphasis
added) Sergeant Troiola also credibly testified that the second time he
discussed the “two-car” policy with the officers was during a roll call.
From my review of the record I
find Sergeant Troiola’s testimony to be forthright and credible, and find no
evidence which indicates the Grievant was singled out regarding his duty to
comply with the “two-car” policy based on the facts of record in this case.
Therefore, at least to that extent, 1 further find no violation of the “Seven
Tests of Just Cause” in this instance, and so I hold.
Furthermore, I find that
according to the record, on the date of the instant grievance, “SOP”41.1.5 (H),
WORK BREAKS, was in force and effect. While the Grievant might have been
confused as to whether two cars or three cars could be parked at one lunch
location based on what seems to have been casual talk of changing the policy,
the Grievant’s statement that he was the “third car” leads me to believe that
his knowledge of the rule overshadowed any claim of confusion. Paragraph 1.1 of
Section 1 and Paragraph 2.12 of Section 2 of the ELGIN POLICE DEPARTMENT RULES
AND REGULATIONS requires that all department members follow all rules,
regulations, orders, policies and procedures of the Department.
In summary, I conclude that, based on the entire record, the Grievant
was knowledgeable of the provisions of “SOP” 41.1.5(H). The two occasions
during the months prior to the date of the grievance, when Troiola discussed
the work break “SOP” with the Grievant and the other police officers, served to
reinforce the Grievant’s awareness of the requirements of the “two-car” policy
and his duty to comply with it. Because “SOP”
41.1.5(H) was still “on the books” on the date of the aggrieved infraction, the
Grievant had a duty to know the rule and to comply with it pursuant to
Paragraphs 1.1 and 2.12, discussed above. Finally, there is no question that “SOP”
41.1.5(H) was reasonably related to the Employer’s operation and placed no
undue hardship upon the police officers under its jurisdiction, I conclude,
based on the totality of the evidence of record.
Accordingly, as explained above,
I find that the City had
just cause to discipline the Grievant for his proven violation of the “two-car”
policy, and that the City thus sustained its burden as articulated in Grief
Bros., cited by the Union. However, turning to the level of discipline assessed
in view of the negotiated ladder of progressive and corrective discipline, I
agree with the Union that the discipline assessed was inconsistent with the
progression of discipline as set forth in the Agreement.
The record reflects that at the
time the incident occurred, Sergeant Troiola interviewed the Grievant and
obtained a statement from him in which he essentially admitted that he did not
comply with the “two-car” policy. According to that statement, the Grievant did
not attempt to cover-up the fact that his police car was the third to arrive at
Quizno’s. In addition to being the Grievant’s supervisory officer, Troiola
possessed what he termed, “shift-level” knowledge of the incident, for example,
he had heard the radio communications of Piazza, Danner and the Grievant, and
actually saw the Grievant enter the parking lot. As discussed above, earlier in
the year Troiola had counseled both the Grievant and other police officers
about the “two-car” policy. Based on his experience with this Grievant, Troiola
determined that the appropriate level of discipline to be assessed for this
infraction was a one-day suspension.
From my review of the record, and in view of Troiola’s first-hand
knowledge of the facts surrounding the Grievant’s violation of the “two-car”
rule, I find that the decision of the Assistant Chief and Acting Chief to bump
the one-day suspension recommended by Troiola to a three-day suspension was
arbitrary and unsupported given the facts of record.
First, nothing in the testimony of either the Assistant Chief or
then-Acting Chief convinced me that the infraction in this case was so severe
as to warrant discipline outside the progression set forth in the parties’
Agreement. This is not a summary discipline case, I hold.
Second, I find that based on my
review of Joint Exhibit 4 (page 2), the suspension assessed against the
Grievant on October 2, 1997, the offenses which gave rise to that discipline
(stating he was not an evidence technician when training records indicated to
the contrary, and insubordination by failing to leave the building, as ordered)
were not sufficiently similar or related to the “two-car” policy addressed in
Section 41.1.5(H), as the City argues. This is so because, as I understand it,
the Employer is here suggesting that “insubordination” was at least tacitly
involved in both the 1997 and the current discipline. With regard to the instant
case, I believe direct insubordination including an intent to defy authority
has not been proved, and I so hold.
Moreover, as the Union pointed out, the 1997 three-day suspension
occurred almost five years prior to the date of the instant offense, and the
record confirms that, in the interim, the Grievant was assessed a reprimand on
January 28, 1999 for having responsibility in connection with a traffic
accident. That breaks the ladder of progression, as I interpret the facts of
this case.
I also find there is absolutely
no evidence that the Grievant tried to cover up his actions on the incident
date, and an aggravation component to this incident, therefore, is nonexistent.
Furthermore, the lack of proven intent to disobey an order to the magnitude of “insubordination”
was not shown, as I already have found. This is especially true since the
Sergeant who issued this current discipline, Sergeant Troiola, never stated he
interpreted the Grievant’s conduct in this case as any act of insubordination,
I note. To the contrary, as the Grievant’s statement to Sergeant Troiola
indicates, the Grievant’s candor in admitting his was the third car together
with his statement that he never tried to hide anything could serve as a basis
for mitigating the severity of any imposed discipline. Moreover, in January
2002, Officer B__ was assessed a written reprimand for his violation of the “two-car”
policy, based on B__’s apparent guilt and the negotiated progressive
disciplinary steps. B__ was placed on the first rung of the disciplinary ladder
as a result of his violation of Section 41.1.5(H), while the Grievant was
assessed discipline of a suspension involving multiple days after receiving a
reprimand for an unrelated offense in 1999.
Without regard to any of the
mitigating factors discussed above, that arguably are present in the instant
case, I stress that two objective factors form the basis of my opinion that the
level of discipline imposed upon the Grievant must be reduced. Specifically, I
find that Sergeant Troiola’s testimony that he had recommended a one-day
suspension based on his “shift-level” knowledge of the facts underlying the
incident, carries great weight. In addition, I find that the nature of the
instant offense was not so severe as to justify a departure from the normal
progression of corrective and discipline provided for in the Agreement, and
that the most recent disciplinary entry on the Grievant’s record at the time of
this incident was a reprimand in 1999.
Therefore, for purposes of correction,
and based on the levels of progressive discipline specified in the parties’
Agreement, I conclude that the three-day suspension grieved here should be
reduced to a one-day suspension. My award providing for same follows.
For the reasons set forth above
and incorporated herein as if fully rewritten, the subject grievance is hereby
sustained in part and denied in part, in accordance with the above
Findings.
1. There was cause to suspend the Grievant based on the Employer’s
proven violation of the “two-car” policy, but the imposition of three-day
suspension was excessive.
2. The suspension will be reduced to a one-day suspension, and the
Grievant will be granted back wages and benefits for the two days lost.
3. Based on the above
determinations, and in accordance with Item 14, Section b, Step 5 of the
parties’ Agreement, the Arbitrator’s expenses and fees are hereby apportioned
to this Employer and Union on an equal or 50%-50% basis. It is so ordered.