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Title: City of Yakima and Yakima Police Patrolmen's Association
Date: June, 1995
Arbitrator: Jack Calhoun
Citation: 1995 NAC 111

BEFORE THE ARBITRATOR

 

IN THE MATTER OF THE GRIEVANCE                 )

ARBITRATION                                                          )

                                                                                    )

YAKIMA POLICE PATROLMEN'S                         )

ASSOCIATION,                                                        )            OPINION

                                                                                    )             AND

                                                Union,                          )           AWARD

                                                                                    )

CITY OF YAKIMA,                                                   )

                                                Employer.                    )

--------------------------------

 

Jack H. Calhoun

Arbitrator

 

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Hearing Held

May 4 and 5, 1995

Yakima, Washington

 

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REPRESENTATION

 

 

FOR THE UNION:                                                             FOR THE EMPLOYER:

 

James M. Cline                                                               Paul T. McMurray

Cline & Emmal                                                            Assistant City Attorney

444 N.E. Ravenna Blvd.                                        424 E. Yakima Ave.

Suite 401                                                                               Suite 100

Seattle, WA  98115                                                 Yakima, WA  98901

 

                                                                                                Anthony F. Menke

                                                                                                Menke, Jackson & Beyer

                                                                                                1400 Summitview

                                                                                                Suite 100

                                                                                                Yakima, WA  98902


BACKGROUND

            The Yakima Police Patrolmen's Association (the Association) and the City of Yakima (the City) are parties to a collective bargaining agreement that, among other things, provides that discipline be based on just cause.  It also sets forth certain procedural rights for employees who are subjects of complaints, and it describes personnel record keeping requirements.  The grievant, Officer William H. Guyer, II, was disciplined on November 16, 1994, of violating the Yakima Police Department's policy regarding courtesy to the public.  The Association filed a grievance and later requested discovery of certain personnel files from the City.  The City refused to comply fully.  A hearing was held on May 4 and 5, 1995.  Post-hearing briefs were filed on June 7, 1995.

ISSUES

            There are two issues in dispute.  The first is whether the City had just cause to discipline the grievant and, if not, what is the proper remedy.  The second is whether the City improperly refused to comply with the Association's discovery request for disciplinary records.

RELEVANT CONTRACT PROVISIONS

            The following provisions of the parties' collective bargaining agreement are relevant to the issue in dispute:


            ARTICLE II - EMPLOYEE RIGHTS

 

. . .

 

Section 1 - Discipline and Discharge.  All discipline must be based upon just cause.  Any discipline shall be imposed in a manner least likely to embarrass the employee before the public or other employees.  Any disciplinary action imposed upon an employee may be the basis for a grievance through the regular grievance procedure.

 

Disciplinary actions or measures shall include the following:  oral admonitions and warnings; written reprimand or written letters of warning; suspension; demotion; or discharge.  Discipline shall be progressive in nature where appropriate.

 

. . .

 

(a)            Whenever the Chief of Police or the designated alternate of the Chief of Police decides to conduct a formal internal affairs investigation, any employee who is the subject of the complaint shall be informed in writing of the nature of the investigation, and advised of the rights of the employee before any interview of the employee begins.  Written notice shall include sufficient information necessary to reasonably apprise the employee of the allegations of such complaint.

. . .

 

(j)            Personnel Records  . . . Annual employee evaluations and records of disciplinary action resulting in demotion or the loss of time or pay in the amount of ten days or more may be retained permanently.  All other records of disciplinary action may be retained in an employee's department personnel file for a period of not more than two years, provided that if an employee's personnel record indicates a pattern of similar types of disciplines, all such records may be retained until a period of two years has elapsed, during which there has been no further disciplinary action for the same or similar behavior.  Records retained in an employee's department personnel file longer than provided in this section shall be inadmissible in any proceedings concerning disciplinary action.

 

Upon receiving a request for all or part of a personnel file, the affected employee shall be notified of the request, and the information shall not be released for a period of three business days from the time of said notification, except upon service of a court order or subpoena properly recorded and signed by a judge or magistrate demanding immediate release.  The City Attorney will advise the department in all matters pertaining to the release of information contained in a personnel file.  No information which has been retained in a personnel file beyond the time limits established by this contract will be released.

 


            STATEMENT OF FACTS

            The Yakima Police Department has a rule that requires its officers to be courteous to the public at all times and that they be orderly, attentive, and exercise patience and discretion in dealing with the public.  It is cause for discipline when an officer is discourteous to the public.

            Officer Guyer has worked for the Yakima Police Department since 1985.  Prior to the incident that gave rise to this dispute, he had never been the subject of a citizen complain regarding his conduct as a police officer.  His reputation as a public-relations conscious officer among his fellow workers was good.  All his annual performance evaluations showed that he rated satisfactory or above under the vast majority of the factors considered.  He was considered by his evaluators as being above average in his efforts to improve public relations.  On two occasions Officer Guyer was disciplined when he was found to be at fault in vehicle accidents.

            In September of 1994 Guyer was selected to be an instructor at one of the local schools in the Drug Awareness and Rehabilitation Education (DARE) program.  Although he had not begun teaching the class of fifth graders, as the program called for, he had received special instructor training at the DARE school in Seattle.  When he returned from the school he met with teachers at the school to which he had been assigned and arranged teaching schedules that were convenient for them and their students.

            On October 17, 1994, near the end of a busy shift, Officer Guyer was dispatched to the scene of an automobile accident.  One car had failed to yield the right of way and had been broadsided by another car.  The collision was violent and both vehicles were damaged.  One of the passengers in the car that was broadsided was Candice Chalma, the 14-year-old daughter of Laura Miller.

            Officer Guyer arrived at the scene and attempted to determine if anyone was injured.  At first, no one responded to his inquiry, but after another attempt, one of the passengers in the car that was broadsided said his neck hurt.  Guyer then had an ambulance and fire truck dispatched.

            At first, the individuals who were in the car that had failed to yield the right of way refused to tell Guyer who was driving the car.  When he told them he was going to have it towed away, Joaquin Moctezuma admitted he was the driver and he did not have a driver's license or any identification.  Officer Guyer arrested him and put him in the back of his patrol car.

            After he placed Moctezuma in the patrol car, Guyer proceeded to have the damaged cars moved out of the intersection.  At that point, Candice Chalma came up to him and asked if she could talk to Joaquin.  He allowed her to do so.

            Officer Guyer transported Moctezuma to the police station.  In the meantime, Candice Chalma walked two blocks to her home, where her mother, Ms. Miller, noticed she was crying and visibly shaken.  Candice explained that she had been in an automobile accident.  Ms. Miller was concerned about her daughter's well-being and did not understand why the police officer had not given her daughter a ride home.  She immediately called the police to find out why.

            At the police station, Officer Guyer put Moctezuma into a holding cell.  He was on his way back to his patrol car to check to see if Moctezuma had dumped weapons or drugs in the back of the car when a clerk came to him and said there is a woman on the telephone who is "really hot" and wants to know why you did not give her daughter a ride home.  Guyer told the clerk he was busy and did not have time to talk at that moment.  The clerk asked him to please take the call and to be prepared to have his "ears chewed off."

            Officer Guyer took the call despite his misgivings about doing so at a time when he was busy with the prisoner, the patrol car, and getting reports written on time.  He picked up the telephone, identified himself, and was asked by Ms. Miller why he had not given her daughter a ride home.  He responded, "Because I'm not a taxi, thank you, good-bye."  He then hung up.

            After he hung up the telephone, Guyer went to the report room and told Sergeant Peck what he had done and informed him further that he was probably going to get a complaint about it.  Guyer then went about calling Moctezuma's family, filling out reports and making the tickets out that he was going to give Moctezuma.  He later released Moctezuma, finished his other paperwork, and went off duty for three days. 

            After Officer Guyer hung up on Ms. Miller, she called the police department again and asked to speak with Guyer's supervisor, Sergeant Peck.  Peck told her Guyer was wrong in hanging up on her, but the police department did not provide transportation for persons involved in minor accidents.  Ms. Miller did not believe Sergeant Peck and became concerned that somehow the matter might be racially motivated.  Ms. Miller and her husband are a racially mixed couple; Ms. Miller is white, and her daughter is half black.  Peck attempted to assure Ms. Miller that Officer Guyer was not prejudiced against her daughter.  Ms. Miller said she was not getting anywhere and that she would call the chief of police, Pleas Green.

            Sergeant Peck spoke with Officer Guyer immediately after he talked to Ms. Miller.  He discussed with Guyer the accident and the circumstances that led to Candice having to walk home.  Peck did not believe Guyer was remiss in not providing her transportation when it was not warranted or requested.  He told Guyer that hanging up on Ms. Miller was going to cause him problems and he should know better.  Officer Guyer acknowledged that fact, but said he was tired of people calling to complain when there was no basis for it.  Sergeant Peck believed Ms. Miller's contention that transportation should have been provided her daughter was unfounded; therefore, he did not prepare a formalized complaint.  He further believed that his discussion with Guyer was sufficient to address Guyer's admitted lack of courtesy.

            Ms. Miller took her daughter to the hospital, after she spoke with Sergeant Peck, where she was found to have bruises and a muscle strain in her back.  That evening she and her husband attended a meeting that addressed racial concerns at their church.  At the meeting, Ms. Miller encountered Captain Blesio of the Yakima Police and City Manager Dick Zais.  She expressed her concern over what had transpired earlier that day and complained that the mistreatment of her daughter had possible racial and sexist implications.  Captain Blesio assure her that the matter would be investigated to find out what happened and he would get back to her.

            Captain Blesio assigned the investigation to Lieutenant Vowell on October 18, 1994.  He spent the next 20 days interviewing witnesses and others, including Ms. Miller and her daughter.  Sergeant Belles talked to Officer Guyer about his telephone conversation with Ms. Miller.  Guyer said he used a poor choice of words but that Ms. Miller had been rude and out of line.

            On November 6, 1994, Lieutenant Vowell interviewed Officer Guyer about the complaint Ms. Miller had made.  At the time of the interview, Vowell orally advised Guyer of the nature of Ms. Miller's complaints and he gave Guyer a document entitled Advisement of Rights for his signature.  Vowell told Guyer that the racism, sexism, and failure-to-perform issues had been found to be without substance, but the rudeness question needed to be addressed.  The Advisement of Rights document did not state the allegations of the complaint, but rather informed Guyer of his rights as either a witness or as an accused employee.

            During the interview, Officer Guyer said he responded to Ms. Miller the way he did because she had been rude to the clerk, her tone of voice sounded rude to him, and he was busy.  He believed he did not have to talk to her because she was not involved in the accident.  He did not believe he broke any policies or rules.  During the time that Lieutenant Vowell has conducted internal civil investigations of officers and interviewed them concerning the investigations, he has never provided written notification of the nature of the complaint to an officer prior to the interview.  No one ever objected.  He has conducted "more than five" interviews over a period of time.

            After Ms. Miller talked to Captain Blesio at the church meeting, and after Lieutenant Vowell had contacted her during his investigation, she attended a city council meeting.  The council meeting was approximately one week after the automobile accident.  She informed the council about the incident and her telephone conversations with Guyer and Peck.  She also expressed a concern that the matter was motivated by racism and sexism.

            Ms. Miller's allegations were picked up by the local news media and broadcast by television, newspapers, and radio throughout the area.  As a result, several school administrators and teachers came to know about the complaint against Officer Guyer and they relayed their concern to Chief Green.  Although the charges had not been investigated, according to the testimony of Chief Green, Officer Guyer's credibility had been called into question and the department did not attempt to "go back and retract" that the subsequent investigation showed that the racist/sexist complaint and failure-to-perform charges were unfounded.  Chief Green further testified that it was a "hard to unring a bell," but that if the investigation had completely exonerated Guyer he would not have been removed from the DARE program.

            On November 8, 1994, a pre-disciplinary hearing notice was issued by Chief Green to Officer Guyer.  It advised him that his treatment of Ms. Miller during the telephone call was discourteous and in violation of department policies.  It informed him that it was the intent of the department to suspend 10 hours of his compensation time, remove him from the DARE program, and to make an appropriate notation on his annual performance evaluation.  The notice also advised him he would have an opportunity at the hearing to present matters of refutation, explanation, and mitigation.

            At the pre-disciplinary hearing on November 9, 1994, before Chief Green, were Officer Guyer, his union representative, his attorney, and Captain Blesio.  Guyer stated that he agreed what he did was wrong and he explained what the circumstances were surrounding the incident.  He said he saw no connection between his mishandling of the telephone inquiry from Ms. Miller and his proposed removal from the DARE program.

            On November 16, 1994, a notice of disciplinary action was issued to Officer Guyer informing him that he had been relieved of 10 hours of time, removed from the DARE program, and a negative notation would be made on his evaluation.  The notice stated that his removal from the DARE program would be re-evaluated before the 1995-96 school year.  The notice specifically found that he was not guilty of failing to recognize that Ms. Miller's daughter needed medical attention or of racist or sexist behavior.  He was found to be rude and unprofessional when Ms. Miller questioned him.  The Association filed a formal grievance on December 8.

            Four or five years before the incident in question here, Officer Dizmang, who has been with the Yakima Police Department for over 27 years, was having a conversation with the mother of two burglars who had been arrested numerous times by Officer Dizmang.  The mother wanted to know what was being done with one of the burglaries.  Officer Dizmang put his hand over the telephone and said to another person, "She's a lying bitch."  The mother heard what he said and asked to speak to his supervisor.  He gave her the name of his supervisor, Lieutenant Welton, and hung up.  Within a few minutes he was called into Lieutenant Welton's office and was asked if he called the woman a lying bitch.  Dizmang said he did and Welton suggested that he call her back and apologize.  Dizmang did so and nothing further was done; no investigation was launched.  At the time of the incident, the captain of the division was Blesio.

            Approximately 20 years ago, Officer Dizmang was involved in another incident involving rudeness.  During the time he was arresting a man, a woman came running at him screaming and yelling.  Dizmang turned around and said to her, "Bitch, stay the hell away from me or I will knock you on your ass."  His watch commander, a lieutenant, later called him in and asked for an explanation.  After hearing the explanation, the lieutenant said Dizmang's choice of words were not the best.  Officer Dizmang agreed and said he would watch it.  The matter ended with that; no investigation was instigated.

            On October 5, 1993, Officer Voline was disciplined for violating certain department rules.  He was relieved of 40 hours of vacation or compensatory time, had a negative comment in his evaluation, and was required to participate in an employee assistance program, including an assessment of his interpersonal skills.

            Sometime later, Officer Voline was acting as back up to another officer who had stopped a car that was suspected of being involved in a gang-related shooting.  As it turned out, the juveniles in the car were not involved in the shooting, but they were patted down while placing their hands on the car.  It was a cold night and one of the individuals complained to Officer Voline about having to have his hands against the car in the cold air.  Voline responded, "Ain't life a bitch?"

            The parent of one of the juveniles was also the driver of the car that had been stopped.  He approached the officers involved in the stop and complained about the handling of his child and his child's friends.  When he approached Officer Voline and asked for his badge number and name, Voline turned and walked away.  The parent turned to another officer and asked what Voline's problem was.  Voline then returned, walked up to the parent, and said, "I don't have to talk to you."  He then walked away again. 

            A civil complaint investigation was conducted and, as a result, Voline was relieved of 10 hours compensatory time and required to take certain courses dealing with conflict resolution, interpersonal skills, and communications.  He was given the option of successfully completing the courses and not have future rule violations over the next 12 months, in which case the 10 hours would be restored.  They were in fact later restored.

            Lieutenant Vowell could recall no instances over the last two years, outside the Voline case, where a rudeness complaint resulted in a penalty more severe than a verbal reprimand or verbal counseling.  He was aware of no case since he became a lieutenant in 1989 where any officer received a disciplinary transfer or reassignment because of a courtesy complaint.  Courtesy complaints about officers being rude, discourteous, or overbearing are common in the police department.  They come in often and are usually handled by a first-line supervisor.

            On April 17, 1995, the Association sent a discovery request to the City asking for all records of disciplinary proceedings over the last 11 years.  The City objected to the request based primarily on the grounds that to furnish such records would violate the collective bargaining agreement.  The City did, however, offer to provide all disciplinary records for the past two years and all disciplinary records involving demotions or the loss of time or pay in the amount of 10 days or more for the previous five years.  The Association indicated that production of all disciplinary records for the last five years would be satisfactory, but it insisted on its right to discovery of disciplinary records of a less serious nature.  The City reiterated its previous position.

            The parties negotiated new language into the current agreement that deals with the retention of personnel records in discipline cases.  They intended that records of disciplinary measures against an employee that resulted in demotion or pay loss of 10 days or more may be retained permanently.  All other records may only be retained for two years, with certain exceptions for chronic offenders.  No record retained longer than what the contract specifies is admissible in any disciplinary proceeding.  The City negotiator made clear during negotiations that the provision would prevent either party from using any disciplinary records in any proceeding concerning disciplinary action.

POSITION OF THE CITY

            The City contends that Officer Guyer committed a flagrant violation of a rule requiring officers to be courteous to the public.  Since he offered no justification or mitigating circumstances, the discipline imposed was just.  Public trust is eroded when an officer is rude.

            Officer Guyer was adequately notified of the nature of Ms. Miller's complaint prior to the time he was interviewed by Lieutenant Vowell.  He received at least three oral notifications of her complaint prior to the interview and Lieutenant Vowell provided him with a written Advisement of rights document that informed him of the purpose of the investigation.

            Lieutenant Vowell's oral notification to Officer Guyer was consistent with past practice.  The practice had been to provide oral notice for civil or administrative proceedings and written notification for criminal proceedings.  No objections were received from the Association over past oral notices.  There is no substantive difference between an oral notification and a written notification.

            The discipline imposed in this case was appropriate based on the facts and circumstances.  Officer Guyer's conduct was flagrant and unjustified, and he expressed no remorse about it or justification for it.  Being under stress is no excuse.  Police officers are constantly involved in stressful situations.

            It is critical that officers in the DARE program be able to be courteous to children and others.  Officer Guyer was taken off the program because of concerns that he would not deal with the public in the DARE setting on a courteous basis.  He did not demonstrate the personal skills required to deal with young children.

            The examples brought up by the Association to show disparate treatment are distinguishable from the present case.  Officer Voline was checking out potentially armed and dangerous people.  His rude remark was to a person suspected of being involved in a serious crime.  He was not in an office environment dealing with the mother of a young daughter.  Voline was disciplined, but the factors of his case indicated that he needed a different kind of treatment.  His discipline was imposed after negotiations with the Association were held.

            The examples of rudeness recited by Officer Dizmang are different from Officer Guyer's incident.  The mother of the burglars had been calling Dizmang over a period.  She could not be satisfied.  Ms. Miller had never spoken with Officer Guyer.  Officer Guyer's comment was made directly to Ms. Miller; Officer Dizmang's comment was not directly to the complainant.

            The other case involving Officer Dizmang happened 20 years ago.  He was concerned for his personal safety.  Officer Guyer was at the police station and was not faced with a potentially life-threatening situation.

            Neither of the cases recited by Officer Dizmang should be considered at all because they both happened over two years ago.  The collective bargaining agreement provides that records retained in the personnel file longer than the agreement specifies may not be admitted in any disciplinary proceeding.

            The City property responded to the Association's discovery request.  Under the provision of the contract, the City cannot retain most records for more than two years.  Records retained beyond that time are inadmissible in any disciplinary proceeding.  There is no provision in the agreement that states the restriction does not apply when the Association wants to review disciplinary records or use them to attempt to show disparate treatment.  The Association sought, and the City agreed to, the new language regarding records during the most recent negotiations.  The Association now wants to ignore the clear and unambiguous language that was negotiated.

 


POSITION OF THE ASSOCIATION

            The Association argued in its pre-hearing brief that it requested relevant material from the City to show disparate treatment.  The material was not furnished; therefore, the arbitrator should take one of two approaches.  He should direct a result in favor of the Association or he should conclude that an irrebuttable presumption is created that the records sought demonstrate that the penalty imposed was disproportionate.

            The Association also argues that the penalty imposed on Officer Guyer is excessive in light of the relevant factors, including the nature of the offenses and other mitigating factors.  The City did not consider other relevant mitigating factors.  It did not consider his overall work record.  It failed to consider all the circumstances giving rise to the incident in question.  Officer Guyer was having a stressful day and Ms. Miller was angry when she called.

            The City misapprehended Officer Guyer's attitude toward the offense.  The weight of the evidence supports the conclusion that he acknowledged his wrongdoing.  The City misunderstood the evidence offered by the Association at the pre-disciplinary hearing.  While the Association and Officer Guyer indicated the call was not handled properly, they put evidence forward showing the totality of the circumstances of the call, which are in and of themselves mitigating factors.  The City believed they were offered as an excuse to attempt to justify the conduct as being proper in and of itself.

            The penalty imposed was not for just cause because it was disproportionate to the previous handling by the City of similar situations.  An essential element of just cause is that penalties be consistent with past practice for similar misconduct.  Employees are entitled to know what penalty is likely to be imposed for a particular rule violation.

            The evidence presented by the Association showed that the offense at issue was not considered a serous one that warranted a loss of time or disciplinary transfer.  The City's managers did not consider the offense to be major.

            Even if the offense is considered to be as egregious as the City argues, the City failed to rebut the compelling case that offenses of this sort are handled by means of a verbal reprimand.  The failure to rebut this claim is significant inasmuch as it is the City that had the burden of proving proportionality.

            Even in cases of repeated offenses, courtesy complaint penalties have not equalled or exceeded that imposed on Officer Guyer.  The only one that came close involved Officer Voline, who had a history of difficulty in dealing with the public and fellow workers.  In Voline's case, a negotiated settlement was had which resulted not in time off, but rather training and a written reprimand, which has since been removed.

            The City failed to conform with basis principles of progressive disciplines.  It is a basic element of just cause that discipline be progressive in nature.  Corrective steps should be considered prior to punitive steps when possible.  Officer Guyer has no discipline record for the sort of conduct at issue.  His record is a strong one of relating to the public and his fellow employees.  The City admitted he has strong skills in this area and conceded that training was not necessary, whereas it was with Officer Voline.

            The penalty imposed violates just cause standards in that it constitutes double jeopardy.  Discipline had already been imposed on Officer Guyer by Sergeant Peck on the day in question.  He verbally admonished Officer Guyer when he told Officer Guyer he did not handle the matter properly.  While additional allegations arose later, they were not sustained and could not become a basis for imposing a more severe form of discipline.  Sergeant Peck handled the matter at his level because that is how such matters were routinely handled.

            The removal of Officer Guyer from the DARE program is an inappropriate penalty.  Disciplinary transfers or demotions are highly disfavored, especially when they are open-ended.  They are generally overturned where the basis is misconduct or negligence.  Only incompetence in the position justifies such discipline.  There is no apparent nexus between Officer Guyer's conduct and the penalty imposed.  While the City contended he indicated a lack of courtesy and tact in dealing with the public, it conceded he did not need training of the sort Officer Voline received.

            It would be unfair and in violation of due process were Officer Guyer disciplined based on the unsubstantiated racial charges that teachers had heard and reported to Chief Green indicating apprehension about Officer Guyer's suitability as a DARE instructor.  The City came to the conclusion that the charges were baseless.  To nonetheless discipline him, when he had already been falsely accused and publicly defamed, compounds a bad situation.

            The discipline imposed should be overturned because the City violated the procedural rules for conducting investigations as set forth in the contact, which requires that notification of an interview be in writing.  The fact that the City had breached the contract in the past does not make it excusable.  Precedent holds that setting aside discipline imposed is the only appropriate remedy for a violation of contractual procedural rights.

OPINION

            The language of the collective bargaining agreement governing personnel records, how long disciplinary records may be retained, and their admissibility in a disciplinary proceeding favors the City's position on the discovery issue.  While the language is not without ambiguity inasmuch as it could be interpreted as the Association reads it, the intent of the parties as expressed during negotiations for the provision is clear.  No disciplinary records, except those noted in the provision, may be retained for longer than two years.  If they are retained longer than permitted, they cannot be admitted in any disciplinary proceeding.

            The City properly refused to furnish the Association copies of disciplinary records older than two years, except those involving demotion or the loss of time or pay in the amount of 10 days or more.  The City would have been in violation of the agreement had it furnished the records as requested by the Association.  Moreover, if the older records had been furnished to the Association, the City could have barred their admission in the record at the time of hearing under the terms of the agreement.

            The agreement also provides that any employee who is the subject of a complaint shall be informed in writing of the nature of the investigation and his rights before any interview of the employee begins.  The written notice must contain enough information to apprise the employee of the allegations in the complaint.

            In civil complaint cases, the City has not given written notice to officers who are the subject of complaints.  The notice has always been verbal despite the clear and unambiguous language in the agreement requiring written notice.  The Association has not previously challenged the City's practice of giving verbal rather than written notice.  The question then is whether the past practice may be used to reform that provision in the agreement related to written notice.

            The clear majority rule, as stated in Labor and Employment Arbitration, Bornstein and Gosline general editors, Matthew Bender, Vol. 1, 18.03(3), is that where there is a conflict between clear and unambiguous language in a collective bargaining agreement and past practice, the language of the agreement must govern because it represents the most direct and best evidence of the parties' intention.  Although Lieutenant Vowell ignored the clear language of the agreement on "more than five" occasions and the Association let it go unchallenged until now, those facts are not so compelling as to allow them to amend the clear language of the agreement.  This case, however, does not turn on the procedural error committed by the City's investigator.  The error was minimal, and there is sufficient evidence to show that Officer Guyer had adequate notice of the complaint against him.

            The Association argues that the City imposed penalties on Officer Guyer on two separate occasions: a verbal admonishment by Sergeant Peck and the ultimate penalty imposed by Chief Green.  Industrial double jeopardy depends in large part on whether the first discipline imposed was meant to be unconditional and final.  Sergeant Peck's words to Officer Guyer cannot be reasonably interpreted to mean that was the end of the matter.  Ms. Miller's assertion that she was not getting anywhere at Sergeant Peck's level and was going to talk to Chief Green indicated the matter was going to be considered at a higher level.  Sergeant Peck was not able to deal with her charges of racism and possible sexist behavior.  Those matters had to be handled at a higher level than a first line supervisor.

            The City had the burden of proving by a preponderance of the evidence that it had just cause to impose the disciplinary penalty of loss of time, removal from the DARE program, and a "needs improvement" notation on Officer Guyer.  There is no dispute that Officer Guyer committed the offense with which he was ultimately charged.  He readily admitted it during the City's investigation process and during hearing.

            The essential question raised in this case is whether the penalty imposed by the City is just in light of all the circumstances.  In other words, was the penalty imposed on Officer Guyer consistent with penalties imposed on other officers for the same or similar offenses.  Employer rules and regulations must be consistently enforced, unless a reasonable basis can be shown for a variation in imposing punishment.  The evidence on the record here compels the conclusion that the City did not consistently enforce its rule that prohibited discourteous treatment of the public.  The penalty imposed on Officer Guyer was altogether inconsistent with penalties imposed on other officers for the same or similar offenses.

            The discourteous behavior exhibited by Officer Voline toward the public in two incidents on the same occasion were at least as egregious as the behavior Officer Guyer showed when he spoke rudely to Ms. Miller.  Moreover, Voline had a history of problems in dealing with employees and the public.  Contrary to the City's argument, the two cases are not distinguishable.  That Officer Voline was in the field checking out potential criminals is only half the story.  When he walked away and refused to identify himself, the individuals had been found not to be suspects.  It should be noted also that none of the individuals, either the youngsters or the parent, was under arrest at the time of the insults.

            Officer Dizmang's examples of how his flagrant discourtesy to members of the public on two separate occasions were handled by a simple verbal reprimand is further proof that the City chose to impose a far greater penalty on Officer Guyer than it had on anyone else for the same offense.  The City's reasoning in attempting to distinguish the Dizmang incidents from the Guyer incident is not persuasive.  Saying, "She's a bitch," whether directly to the woman to whom he was speaking or to another person, is fully as insulting and offensive as what Officer Guyer did.  That Officer Dizmang had an ongoing debate with the woman he offended is of no moment.

            Officer Dizmang testified regarding the two incidents of discourtesy to the public in which he was the offender.  No personnel records were offered or admitted into evidence related to those incidents; therefore, the provision in the agreement prohibiting the admission of certain records was not violated.

            Just cause principles, and in this case the collective bargaining agreement itself, require that discipline be progressive in nature.  Corrective measures are preferable to punitive measures whenever possible.  The City violated those principles and the agreement in Officer Guyer's case.  His only previous violations were for unrelated driving incidents.  He had never had a citizen complaint filed against him.  He was reputed to be especially skilled in public relations.

            Employees are entitled to receive notice from the employer regarding work place expectations, including the likely penalty for violating rules.  In the instant case, the City failed to give such notice.  In fact, it did the exact opposite.  The City led officers to believe that discourtesy of the magnitude exhibited by Officers Voline and Dizmang was hardly a serious offense.  At most, it was an offense to be corrected by a written reprimand or, in the case of Officer Dizmang, a verbal admonition.

            Having concluded that the City violated basic principles of just cause by failing to follow progressive discipline requirements and in imposing a greater penalty on Officer Guyer than it previously imposed on other officers for like violations, thereby treating Officer Guyer in a disparate fashion, the question of the proper remedy must be addressed.

            Normally when an employer imposes discipline without just cause, the normal make-whole remedy is to the effect that the employee is to be placed in the same position he would have occupied had the imposed penalty not been effected.  Officer Guyer was removed from the DARE program as a party of the penalty imposed for his discourteous conduct.  He missed a 17-week opportunity to instruct young students in an area he was trained for.  There is no evidence he lost wages as a result of being removed from the program; therefore, monetary considerations are not in order.  Rather, reinstatement to the DARE program is appropriate as part of the remedy.  Accordingly, I will enter an award to reflect the proper remedy.

AWARD

            The grievance is sustained.  The City did not have just cause to impose the discipline that it imposed on Officer Guyer.  The City is ordered to (1) reinstate Officer Guyer to the DARE program, (2) restore the 10 hours of time that was taken from him, and (3) remove the "needs improvement" notation from his evaluation.  The verbal admonishment given by Sergeant Peck will stand as the proper penalty in this case.

            Dated this _____ day of June 1995.

 

                                                                                                                  

                                                                                    Jack H. Calhoun

 

104-95WA

 

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