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In re
City of Hialeah, Florida
and
Dade County Police Benevolent Association
121 LA (BNA) 745
AAA Case No. 32-390-00076-05
June 24, 2005
Robert B. Hoffman, Arbitrator
A. Facts
On December 10, 2004 the City of Hialeah, Florida (“the City”) suspended E__(“the grievant”), an officer in the City’s Police Department (“the Department”) with 22 years seniority. Mayor Martinez informed him of the following:
Be advised that after meeting with you to discuss the recommendation for a forty (40) hour suspension by Police Chief, Rolando Bolanos, that I have taken the circumstances into consideration and have decided to reduce the recommended penalty to a ten (10) hour suspension.
You have violated Civil Service Rule X, Sec. 2(f), insubordination, Hialeah Police Department Manual, Sec. 2.240.60, Cause for Dismissal, Suspension, or Demotion, and directive from Chief of Police, Mandatory Response to City Issued Pagers.
To wit: On Saturday, September 25, 2004, a Department-wide mobilization was launched as a result of hurricane Jeanne. The Communications Center attempted to contact you several times by paging you with the established “999” emergency code. However, you failed to respond in a timely manner....
Dade County Police Benevolent Association, (“the Union”) maintains that the grievant did not violate these rules inasmuch as he had a defective pager. At issue is whether there is just cause under the parties’ collective bargaining agreement for this suspension and if not, what shall be the proper remedy.
The City has issued Directives to all of its employees concerning hurricanes and adverse weather situations. On July 7, 2004, Mayor Martinez issued an Administrative Directive to all employees regarding an “Employee Hurricane Procedure Plan.”
... Off-duty personnel will be personally available at their residence or they will be available by departmental paging device, or be physically available at an alternate telephone number. ...Employees violating this policy may subject to disciplinary action.
In a July 8, 2004 Directive to all City employees concerning “Emergency Incidents/Adverse Weather Event Policy,” the Mayor directed:
The City shall provide a method of notification to the employees, either via emergency access channels, public service announcements, telephones or other means, for instructions on reporting to work, during or after an emergency event. It shall be the responsibility of the Department/Division Heads or their designees to maintain accurate emergency contact numbers of all employees in their respective departments.
Previously, in an April 3, 2003 memorandum to all Police personnel, entitled “Mandatory Response to City Issued Pagers,” Chief Bolanos stated that employees are responsible for monitoring their assigned pager. “While off duty, the employees’ assigned digital pager will be used as the Department’s primary point of contact for the employee.” In a section called “General Guidelines,” he stated:
1. When an emergency situation dictates, employees will be contacted via Department issued pager. The employee will be paged with the appropriate contact number and an emergency code of #999. Only emergency coded pages require a mandatory response by employees.
2. Employees shall respond to emergency coded Department pages within sixty (60) minutes. ...
Hurricane Conditions: It shall be the sole responsibility of any employee, whom the Department failed to contact to contact within six (6) hours of the National Hurricane Center’s issuance of a Hurricane Warning, to contact and receive reporting instructions from the Communications Supervisor.
In August and September 2004 most of Florida experienced an unprecedented number of hurricanes. The last of the four, Jeanne, was upgraded from a Watch to a Warning by the National Hurricane Center in Miami at 5:00 p.m. on Friday, September 24, 2004. At 6:08 p.m. the Department was notified by e-mail of the Hurricane Warning from EmergencyEmail.org [the Emergency Email Network].
Usually when a storm is two or three days out the Department deploys its employees into platoons. The actual numbers of employees needed and hours worked depend on the severity of the storm. A scheduling sheet was complied on Monday September 26 showing the grievant assigned to Platoon 1. Usually the notification occurs though a mass page prompted by a computer program.
According to Department records, it first sent a page on Saturday, September 25 at 7:56 p.m. and another page at 8:33 p.m. to the grievant. The following day it sent a page at 5:09 a.m. All pages had the “999” code when sent. The equipment and software were not capable of producing a record showing that the pages were received. The grievant’s pager also had a beep or a vibration, if turned on, accompanying the message. When not answered, and if working properly, the beep or vibration would continue intermittently. A display screen shows any message.
The grievant testified that he never received the two pages on Saturday. He heard no beeping and did not see a display. On Sunday, he awoke at about 10:30 a.m. and noticed that his beeper, which he kept next to his bed, had some numbers that he could not make out. They were not fully formed but he did recognize parts of two number “9s” that appeared after a seven-digit telephone number. Knowing that the code for emergency was “999” he immediately called the Department and spoke to the Communications Center. He advised that he could not read his display because the numbers were garbled. He asked if he had been paged. He was told that Communications paged him but the code was now cancelled. He did not have to report. (Hurricane Jeanne moved up the coast and came inland at Palm Beach.)
The grievant then called his supervisor, Sergeant Dieppa, and advised him that he first noticed his pager had some illegible numbers on it when he woke Sunday morning and he immediately called communications. Dieppa was then called to a traffic homicide call. The next morning at 7:56 a.m. Lieutenant Perez e-mailed Dieppa and asked him to investigate the grievant’s situation and make a recommendation. The grievant reported to Dieppa and showed him the display with the unreadable numbers. Dieppa testified that he believed the pager was defective and he had the grievant to report to Sergeant Fernandez, who was in charge of equipment control. Fernandez observed the same problem with the pager and issued the grievant a new pager, which had to be replaced a few weeks later for a similar defect.
On Wednesday, September 29, 2004 Sergeant Dieppa e-mailed Lieutenant Perez with his findings and recommendation. He related the grievant’s account. He then wrote:
Off. E__ responded to equipment control when he reported to work and checked his pager. The pager was deemed defective and needed to be replaced with a new pager.... Sgt. Fernandez ...explained to me that they are having trouble with these particular pagers. He said that these pagers are very sensitive to moisture and sometimes fail to go off during a massive page call out ... they sometimes work intermittent. For example, during Hurricane Francis Sgt. Boucher was paged and she said she never received the call out on her pager ...
Officer E__ is routinely on call for Traffic Homicide call outs. He has never missed a page and he is always available when needed by pager. Based on Sgt. Fernandez’ comments and the fact that these pagers are not always reliable, I am not recommending any disciplinary action. I do recommend that when an officer fails to answer a page, that the communications section make an attempt to contact that officer at home or by cell phone if possible.
Sergeant Fernandez followed up with his own e-mail to Captain Somohano on October 7, 2004. He had investigated the mass paging program “and the possible problem of some pages being dropped.” He also consulted with two outside experts. He discovered that the pagers were better suited for text rather than numbers. He learned that once a mass page is sent, “there is no safeguard that all of the pages will go through. An overloaded frequency can cause drop offs.” He noted that the pagers in use did not have any capability to verify receipt of the page. Another type of pager was recommended (which the Department now utilizes). He concluded:
As it stands it would appear that our current system is reliable, however the possibility of experiencing pages being dropped is a real factor, as we believe has been the case. If we are to continue to use the current system, I recommend that we incorporate certain redundancies. For example, if we perform a mass page of 30 to 40 officers we should perform a back-to-back page ... in case the first page does not go through to all of the officers. Additionally, if after a certain amount of time if the 30 or 40 officers, 3 or 4 do not call back, then the communications supervisor should use an alternate form of contact, i.e., home number.
Sometime thereafter Sergeant Dieppa was told by one of the Captains to recommend suspension based on the six-hour policy of contacting the communications after a hurricane warning is issued. He now recommended a 40 hour suspension. Deputy Chief Aguilera met with the grievant in a pre-disciplinary meeting and heard his account. He agreed with the recommendation. As seen, Mayor Martinez, after meeting with the grievant reduced the suspension to ten hours.
B. Positions of the Parties
1. The City
It is hard to believe that after three hurricanes the grievant would not check his TV or radio for a hurricane warning. Clearly he failed to follow this order. There is no dispute that he received the mandatory pager and hurricane warning memo. Forgetting about the six hour policy is not a valid defense. There is no question that the pages were sent on three occasions. The grievant’s excuse that he did not receive them is not credible. He rarely checked his pager to see if it worked, even though he is responsible for making certain it stays in working order. But even if the beeper was defective, there is no dispute that he failed to call as per the six hour warning issuance policy, and for this there must be some form of discipline. It should be noted, however, that he has already received a reduction in his suspension from 40 to ten hours. This was reasonable and should be upheld.
2. The Union
There is no proof that the grievant violated any policy. As to the six hour rule, the only evidence is that there was a warning at a certain time and date but there is no evidence as to how long it remained in effect. This was a hurricane that did not hit South Florida. There is no proof that the three sent pages were ever received, and no investigation was ever made as to whether the sound was working or not on the beeper. There was no way for the grievant to tell the time or date when the page was received and there is no evidence that any sound ever went off to alert him. Most important are the two e-mails from Sergeants Dieppa and Fernandez. Both of them saw a defective pager. Fernandez issued the grievant a new one and then wrote a lengthy e-mail to his Captain about the need to replace these pagers because of “drop off” problems occurring during these very mass paging efforts.
C. Discussion and Opinion
There is no question that it is vital for this or any Police Department to make certain it can contact employees for duty during emergencies and hurricane situations. Both the Mayor of Hialeah and the Police Chief have directives and polices that provide employees with information about how and when they are to be contacted. This grievant knew the policies. The breakdown here, however, is not with the grievant but with a pager system that has some history of problems and then with a contact policy that has due process concerns.
Implicit in any matter where electronic equipment is involved is the necessity to be certain that the equipment is working properly. And that responsibility falls on both the grievant and the City for whatever equipment they are using. This means not only the actual pager issued to the grievant, which he certainly must keep track of, but also the software and the type of equipment used to transmit the signals. The reception of a mass sent page requires all of this to work properly, not just the grievant’s device. And that is the concern here.
But first there must be concern with the grievant’s credibility. After all it is in his self-interest to deny that he received these pages. For all of a sudden an officer with 22 years seniority to not answer a page timely, when as a backup for traffic homicide he answered several a month on a timely basis, is clearly out of character. Still, it does not mean that he would always remain in character. What is credible is what he did after discovering that the Department tried to contact him. He immediately called his supervisor and explained the circumstances, including the faulty pager screen.
His trustworthiness is then helped considerably by showing the device to his sergeant, and then to the technical expert in the Department, Sergeant Fernandez, who declared it defective, likely from moisture as had happened to another officer before. He issued the grievant a new pager. Then Fernandez carried the matter even farther and broadened the scope of the investigation. His ultimate findings and conclusions added to the grievant’s account that he likely did not receive the pages.
Sergeant Fernandez believed there was an overall Department problem with these pagers. He proceeded to investigate the entire issue of these drop out messages, and if the fault lay with the equipment itself. He consulted with two experts in the field and then wrote a report criticizing the use of these pagers. They were not built for numeric pages and most significantly, when a mass paging occurred, they had a tendency to drop off some pages. He discovered that these mass pages could produce overloads in the software and the transmission hardware of the provider. He suggested resending of the mass page process to reduce the risk of drop offs and even phone calls to the home or cell. He then recommended an upgraded pager, one that would allow for a confirmation of receipt. The Department must have agreed with him for it is undisputed that the grievant is now outfitted with this updated version.
The telephone suggestion, which Sergeant Dieppa also made, is in line with the Mayor’s Directives. He directed that employees could be available at an alternate phone number; telephones could be used as a method of notification during adverse weather events. And the suggestion is not only reasonable and covered by the Mayor’s directive to all City Departments, but recognizing that the objective of the mass page is to deploy police for an emergency event, not calling those who failed to answer a page, is at best puzzling. If the drop off only affects a few pages, the effort needed to do this must be minimal. The grievant was reachable by home or cell phones that the Department kept.
Much was made of whether the grievant should have also heard a vibration or beep. If the page did not go through, as with the example cited by Sergeant Fernandez when Officer Boucher did not receive her page, it is reasonable to conclude that the sound was also faulty. In any event the Department did not check the sound system.
The City argues that grievant should have checked his pager regularly to detect any defect. If he had it would be more likely he would have discovered this defect before the Warning issued, the City maintains. However, it is undisputed that he only received one or two pages a month. The need to check it more than weekly is not reasonable in those circumstances. And his last check it worked properly.
In sum, if the grievant is to be suspended because of his failure to respond timely to the pages, the evidence at his hearing is insufficient to show that the three pages were received with sound and a legible display of numbers so he could decipher and respond timely. He called the department as soon as he discovered the readout contained two of the three numbers for the code. By that time there was no need for the platoon inasmuch as the hurricane warning apparently no longer existed. Credit is given to the testimony of Sergeant Dieppa and reliance on the Fernandez e-mail. They establish that there is too much uncertainty about the reliability of the grievant’s device during a mass paging, that moisture damage also caused readout problems, and the Department’s software in this mass paging can drop pages due to software problems and frequency overloads.
The City contends that even if the pager was defective, the grievant still violated the policy to contact the Department when he received no “contact”from the Communications Center within six hours of the Hurricane Warning issuance. It is noteworthy that the policy does not refer to a page but more generally to “contact.” Paging is the “primary” way to contact. But “primary” does not mean the Department is so limited. As seen above, a secondary contact by phone would be reasonable, as well as in line with this broader “contacts” language of the Chief’s Guidelines in the six-hour rule and the Mayor’s Directives.
There are concerns with enforcing this six-hour policy against the grievant. Hurricane warnings are downgraded to Watches or less, especially if the storm makes a turn away or goes in a direction not predicted. And that is what happened here. The storm proceeded up the coast to Palm Beach. The platooning was called off sometime prior to the grievant’s call, suggesting that a downgrade had occurred at an earlier point in time. Thus, the first concern with enforcing this policy against the grievant is the lack of evidence as to how long the warning was in effect. If less than six hours the policy did not apply.
Most significant is that the policy was not equally enforced. The grievant’s supervisor, Sergeant Dieppa, who was also subject to platooning, admitted he never was contacted within six hours of the Warning. The paging did not start until some 24 hours after this issuance. Dieppa failed to call in during this interim as did the grievant. Due process under just cause requires that employees be treated equally if the same rule is violated under like circumstances. And that is clearly the case here. To impose discipline on this grievant, when at least one other employee did the same and did not receive any discipline, is treating him disparately.
Finally, Mayor Martinez’ suspension notice to the grievant does not mention the six hour policy. This notice refers only to the grievant failing to respond in a timely manner to the 999 page, a separate policy under the Chief’s April 4, 2005 “Guidelines.” To allege and attempt to prove a violation at arbitration not covered in the notification is violative of an inherent due process right under just cause principles—an employee is entitled to full and proper notification of the charges. Although mentioned in the pre-determination memo from the Deputy Chief, this memo was not provided to the grievant.
Given all of these concerns, it is found that the City has not proven just cause to warrant the discipline imposed on this grievant. There is no other basis for discipline.
Award
Based on the above and the entire record, the grievance is sustained. The grievant shall be made whole. Any records of his suspension shall be expunged from his personnel file and any other file or record kept by the Department that includes this suspension.