Title: City of Las Vegas and Las Vegas Police
IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES
Las Vegas Police Protective Association
- and -
OPINION AND AWARD
City of Las Vegas
January 13, 1997
Involving Discharge of William Fisher
This Arbitration arises pursuant to Agreement between the Las Vegas
Police Protective Association, hereinafter referred to as the "Union"
and the City of Las Vegas, hereinafter referred to as the "City",
under which C. ALLEN POOL was selected to serve as Arbitrator through procedures
of the FEDERAL MEDIATION AND CONCILIATION SERVICE.
The parties agreed that the matter was properly before the Arbitrator and
that his decision would be final and binding upon the parties.
The Hearing was held in the City of Las Vegas, Nevada on September 25 and
November 7, 1996 at which time the parties were afforded the opportunity, of
which they availed themselves, to examine and cross-examine witnesses and to
introduce relevant evidence, exhibits, and arguments. The witnesses were duly
sworn and a written transcript was made of the Hearing.
Posthearing briefs were timely filed with the Arbitrator and exchanged
between the parties through the office of the Arbitrator.
By the Union
By the City
Lawrence McCullough, Esq.
Morgan Davis, Esq.
Deputy City Attorney
Las Vegas Police Protective Association
City of Las Vegas
1250 South Burnham, Suite 212
400 East Stewart Avenue
Las Vegas, Nevada 89104
Las Vegas, Nevada 89101
Was the Grievant, William Fisher, terminated for just cause? If not what
shall be the remedy?
RELEVANT PROVISIONS OF THE CITY'S
CIVIL SERVICE RULES
Chapter VI: Work Rules & Discipline
Section 4 Discipline:
Grounds for Discipline Action
Any of the activities listed below shall be considered valid grounds for
disciplinary action. These grounds
for disciplinary action are not deemed inclusive but merely descriptive, and any
other acts of substance relating to character, fitness, or the work performance
of an employee may be considered grounds for disciplinary action.
(2) Violation of the Civil
Service Rules of the City of Las Vegas or of rules and regulations as are
prescribed by the City Manager or a department director.
(10) Commission of an act which gives an indication of the existence of
any good reason, personal to the employee, which the law or sound public
opinion, or both, recognizes as good reason for disciplinary action.
Such acts, referred to as "cause" herein, include, but are not
6) Conduct unbecoming an
An employee whose conduct or performance is considered unsatisfactory
shall be subject to the City's progressive discipline program.
The progressive discipline program shall be developed and monitored by
the Human Resources Department and shall include, depending on the nature and
severity of the offense or performance problem, any one of, or combination of,
3) Decision-Making Leave
Types of Discipline
who do not correct unsatisfactory conduct or performance; or who commit offenses
of such a serious nature that require immediate expulsion from work, are subject
to the following:
Withholding of Merit Increase
RELEVANT RULES AND REGULATIONS:
THE DEPARTMENT OF DETENTION & ENFORCEMENT
ADMINISTRATION OF DISCIPLINE
One of the primary tasks of a supervisor is the administration of
discipline. Discipline can be positive or negative; it may involve
encouragement, inspiration, training, or imposition of negative sanctions.
It has as its immediate purpose the channeling of individual effort into
effective and productive action.
The exercise of positive discipline requires foresight and planning
rather than merely reaction. It
involves an evaluation of the human factor which, when combined with proper
training, motivation, and recognition of individual and group effort, results in
Disciplinary means may range from a warning, where the immediate effect
is on the individual, to termination, where the positive result derived is in
the reassurance of other employees as to unacceptable limits of
misconduct. In each case,
care must be exercised to make the proper choice in obtaining a desired and just
The city's positive discipline program emphasizes correcting the problem
rather than punishing the offender. It requires the department to establish policies, procedures,
work rules and performance standards that are easy to understand, easy to
enforce, make sense, and that are accurately and consistently enforced.
The department shall, to the greatest extent possible, utilize a positive
approach to remedial training and discipline.
Prior to initiating any step
in the positive discipline program, it is essential that the employee be made
fully aware of what is expected of him or her............
The following is a step-by-step outline of the positive discipline
An oral reminder is to correct a minor performance or discipline
LETTER OF EMPLOYMENT DEVELOPMENT
A letter of employment is a
written instrument designed to correct or train.
It is non-disciplinary in nature.
The counseling session is used to correct a performance or disciplinary
problem, usually initiated after an oral reminder and/or letter or professional
development has failed to correct.
The counseling session is one of the most critical steps of the positive
discipline process. It is used to
correct a disciplinary or performance problem.....
Supervisors must insure that the employee is fully aware of the
supervisor's expectation. Desired
changes should be discussed and documented during the counseling session, along
with the consequences if the problem continues.
Explain to the employee why a change is needed and the consequences of
the continued behavior.
This is the first formal step of the positive discipline process.
It is intended for employees who do
not correct unsatisfactory performance/conduct or commit offenses of such
a serious nature that require immediate action, the problem has been
investigated, and the results indicate the need for disciplinary action.
Disciplinary action may result in suspension, demotion, withholding merit
increase, day of decision making leave, or termination.
DECISION MAKING LEAVE
This is the most serious step of the positive discipline process as
further infractions by the employee could result in suspension, demotion,
termination, or other disciplinary action.
At this point, the employee is fully aware of the rules, regulations, and
performance standards, as well as what is expected by the supervisor, and the
employee has failed to make desired changes.
The employee is also aware of the consequences for further
infractions.......... Upon return from decision making leave, the supervisor
will meet with the employee to discuss the employee's future plans.
If the employee wishes to remain with the city, the supervisor must
explain in writing the changes that must be made in order for the employee to
remain employed. The employee
must be fully aware of the possible consequences of any further problems at the
end of this meeting.......
A formal disciplinary action step of the positive disciplinary process.
Normally, the administration of discipline will begin at lowest level
which is commensurate with the infraction. Steps in the process may be bypassed,
however, if warranted by the severity of the offense.
The director may decide such measures are necessary and impose
disciplinary sanctions without referring the matter to the supervisor.
relevant Provisions of the
Article 14 - Grievance Procedure
employee may appeal any written
reprimand, demotion, suspension, or other
form of discipline through this grievance procedure, which shall be the
exclusive remedy for the appeal of disciplinary action. Oral warnings may not be
grieved. Written reprimands may
grieved up to and through the step three - City Manager level of the grievance
procedure. Serious disciplinary offenses may result in the disciplinary
procedure starting at some level
other than an oral warning.
Oral Warning - This disciplinary step puts an employee on notice that the
employee's behavior or performance
is not acceptable and that further unacceptable behavior or performance may
result in more severe disciplinary action.
The interview should be documented in writing with the employee being
given the opportunity to make comments. This
documentation should be maintained
by the supervisor and employee only.
Written Reprimand - This level of discipline is documented on an employee
interview form and placed in the employee's personnel file. The employee will be
given a copy of the employee interview form at the time of the interview and may
prepare a response to the allegations contained therein.
Suspension -Suspension may be used after a written reprimand has not
corrected the unacceptable performance or behavior or rule violations, or the
violation require more severe disciplinary action. Documentation is done on an
employee interview form.
Other disciplinary actions - The
employee may be subject to more
serious discipline, as listed below, of the unacceptable performance, behavior,
or rule violation continues, or if the employee's actions require more severe
Reduction in Classification
Reduction in Salary Step
Termination - Termination is used when other efforts to correct a
disciplinary situation have failed or when the offense
committed by the employee is of a severe enough nature so as to warrant
immediate separation from employment.
Purging Files and Records
The record of any disciplinary action resulting in a written reprimand
shall be removed form an employee's personnel file after a period of eighteen
(18) months has elapsed. Any
subsequent disciplinary action of a similar nature shall extend the period of
retention of the original offense
for twelve (12) months.
Provided that the above conditions are met, an employee may submit a
written request to the Director of Human Resources to have an action removed
from his/his personnel file.
These guidelines regarding the purging of records shall not apply in case
of termination or resignation of the employee.
The Grievant in this matter was a six-year employee with City's
Department of Detention and Enforcement He
had been in law enforcement for a total of 27 years, the last six of which were
with the City of Las Vegas. His
date of hire was June 26, 1989. At
the time of the incident on August 19, 1995 which led to his termination, he was
serving as a corrections officer at
the City's detention center, the jail, the site of the incident.
On August 24 or 25, 1995 a call was received at the detention center from
a former inmate complaining that she had been physically assaulted by the
Grievant while she was an inmate on the day of August 19th.
Officer David R. Shattler, the Department's investigator interviewed the
former inmate on August 20th. Her
complaint, as briefly described by Investigator Shattler, was:
"The complainant alleged that when she suffered a seizure while an
inmate in the City Hall Jail you (the Grievant) cursed at her, called her a
'bitch', grabbed her by the hair lifting her from the floor and then slamming
her back on the floor, slapped her across the face 4 or 5 times with an open
hand, grabbed her by the hair again and lifted her from the floor, slammed her
against the wall and onto a bench, pulling hair from her head.
This done without provocation from the complainant"
(Joint Exhibit No. 10).
Investigator Shattler checked the Department files and could
find no record of the
incident. Through an Inter-Office
Memorandum August 30, 1995, he notified the Grievant that a complaint alleging
"Excessive Force and Conduct Unbecoming an Officer" had been made
against him and that the complaint would be investigated.
The notification included the above described complaint made by the
former female inmate. Investigator Shattler interviewed the Grievant on the same
day he gave the Grievant the notice (Joint Exhibit No. 10).
In the interview, the Grievant remembered the female inmate sitting on a
bench in the hallway just outside the nurse's examining room, along with three
other inmates, waiting to see the nurse. He
recalled walking the few steps from the Intake Desk to the hallway area just
outside the examining room and having a conversation with the nurse about the
female inmate. The Grievant also
recalled the nurse telling him that the female inmate's vital signs were all
normal and that she could not possibly be having a seizure
(Joint Ex. 11).
Another Corrections Officer, Treva Johnston, was present at the time of
the incident. She was positioned at
the doorway to the Nurse's examining room in such a manner that she could
observe both the inside of the examining room and the hallway where the female
inmate and the other three inmates were waiting on the bench to see the nurse.
The Grievant told Investigator Shattler that following the conversation
with the Nurse, he walked away to return to the Intake Desk.
As he turned away, he looked
back and saw the female inmate sliding from the bench, feet first, to the floor. He said he stepped back and picked her up underneath
her arms and sat her back on the
bench. As he sat her on the bench,
he told her that the nurse had already said there was nothing wrong her and that
she should behave herself. The
Grievant told Investigator Shattler that the female inmate said nothing at the
time but that her eyes were fluttering (Joint Ex. 11).
The Grievant turned to walk away and the female inmate, again, slid down
to floor. He said that, for
the second time, he picked her up and sat her on the bench.
This time, however, he said she stood up, called him a
"mother-fucker", and said she was going to have his ass.
When asked by Investigator Shattler if he called the nurse out, he said
he did not "Cause that's when
she got up, started screaming and acting normal".
When questioned, he told Investigator Shattler he did not document the
matter because there was nothing unusual about it and there was nothing to
document, "I mean in reality I tried helping her up.
I mean there was nothing to document".
The Grievant told Investigator Shattler that at this point he walked away
and had no further contact with the female inmate, that she would have probably
been taken back to either Female Holding or A tank by Officer Johnston.
Investigator Shattler asked the Grievant if he had, as alleged, pulled
her hair, slammed her on the floor, slammed her against the wall, pulled hair
from her head, and slapped her across the face four or five times.
The Grievant said he had not (Joint Exhibit No. 11).
A short time later and just following the interview, the Grievant
encountered Officer Treva Johnston whereupon he asked her if he had hit the
female inmate four or five times and slammed her head down.
Officer Johnston told him no, he had not (Trans. p. 187-188).
The Grievant then left town that same day or the next morning on a
scheduled vacation trip to the
East. His date of return was not
part of the record. After his
return, the Grievant came again to Officer Johnston and asked her, "Well,
did I hit her?" Officer told
him yes, that he had hit the inmate once. She
also testified that she heard the Grievant say, at
this time, "I don't remember" (Trans. p. 189-190).
The investigation continued with Investigator Shattler focusing on four
potential witnesses. Three were the
other inmates sitting on the bench along with the female inmate at the time and
the fourth was Officer Treva Johnston. Investigator
Shattler was able to locate only one the three inmates who had witnessed the
incident. That person corroborated
the Grievant's story. He told
Investigator Shattler that he only saw the Grievant pick up the female inmate by
the armpits and place her on the bench. He
said he did not see the Grievant
slap the female inmate, grab her hair, nor slam her head against the wall.
Shattler's investigation therefore could find no support for the specific
allegations made against the Grievant by the inmate.
What his investigation did uncover was that Officer Johnston said she saw
the Grievant hit the inmate (Joint Ex. 4 and Trans. p. 187-190).
Following the Grievant's return from his trip to the East, Investigator
Shattler interviewed him a second time on September 27, 1995.
He told the Grievant that he had a witness, Officer Johnston, who saw him
slap the female inmate. The
Grievant said he had talked with a few people and was told he had slapped the
inmate but that he could not honestly remember doing it.
He told Investigator Shattler, "... I am going to say I did do it
for the simple reason that I have been told that I did do it.
Then, I don't know why I did it except other than to get a response of
being, uh, semi-unconscious or whatever she was supposed to be done at that
time" (Joint Exhibit No. 4). During
this interview, Investigator reminded the Grievant that the notification of
charges (Joint Ex. 4) included a sentence at the bottom the page ordering him
not to talk with anyone during the investigation "so that the investigation
doesn't get tainted". The
Grievant told Investigator Shattler that on the first occasion he asked Officer
Johnston one question, "Did I hit this person?"
On the second occasion, he asked Officer Johnston "What I, if I,
what I did? Absolutely?" Investigator Shattler told him "you are not supposed to
do that" (Joint Ex. 4).
The following day, on September 28, 1995, Investigator Shattler gave the
Grievant a Notification of Disposition. The
Notification informed the Grievant that three
(3) charges against him had been sustained:
(1) Inappropriate method (a slap) of reviving a person from a possible
seizure, (2) Neglect of duties, and (3) Interference with the investigation
(Joint Exhibit No. 3). Investigator
Shattler's findings were forwarded, without
recommendations, to the Director of
the Department of Detention and Enforcement, Michael Sheldon.
Director Sheldon issued the Grievant a Notice of Proposed Disciplinary
Action dated October 13, 1995. The
City cited violation of Civil
Service Rules as grounds for the action:
"Chapter VI., Section 4, a (2) - Violation of Department Rules and
Section 4 a. (10) - 'Cause,' said cause being conduct unbecoming an
The action stems from one or more of the following:
That on August 19, 1995, you used unnecessary, excessive force on an
That you failed to submit proper reports regarding the above incident
accordance with Department policy.
That you failed to secure proper medical attention for the inmate
involved in the
That you interfered with the investigation of the above incident by
witness to the incident.
addition to the above-stated grounds, the City will relay on your overall
employment history with the City of Las Vegas to arrive at a decision in
The notice informed the Grievant that an informal meeting had been
scheduled for October 19 where he would
have an opportunity to provide whatever information desired regarding the
grounds for the disciplinary action. The
notice also informed him that following the informal meeting a decision
regarding the appropriate disciplinary action would be made (Joint Exhibit
The day following the informal meeting on October 20, Director Sheldon
issued the Grievant a Notice of Termination effective the close of the business
day, October 19, 1995. The notice
stated, "As a result of this meeting, it has been determined that there is
no justifiable reason to preclude termination; therefore, you are being
terminated" (Joint Exhibit No. 6). The
grounds for the termination and what they stemmed from were the same as those
expressed in the Notice of Proposed Disciplinary Action: Violation of Civil
Service Rules (Joint Ex. 6).
A grievance was filed on November 3, 1995.
This was followed by a City Manager Level Hearing on November 29th.
The hearing was conducted before Deputy City Manager Lynn Macy.
Following the hearing, the termination action was sustained by Deputy
City Manager Macy. The grievance then proceeded to this Arbitration.
POSITION OF THE CITY
The City had just cause to terminate the Grievant.
He violated the City's Civil Service Rules.
His conduct was unbecoming an employee and he was insubordinate.
He (1) used unnecessary, excessive force on an inmate of the correction
facility: (2) failed to submit proper reports regarding the use of force; (3)
failed to secure proper medical attention for the inmate; and (4) interfered
with the investigation by confronting a witness to the incident.
Considering these violations, along with his overall employment history,
the only appropriate and the only prudent decision the City could arrive at was
the Grievance should be denied.
POSITION OF THE UNION
The City did not have just cause to terminate the Grievant's employment. The charges levied against him by the City were not supported
by the evidence record: (1) His
conduct was reasonable & necessary or otherwise excusable under the
circumstances; (2) His failure to report the incident was in good-faith; (3) The
inmate received immediate medical attention; and (4) He was not insubordinate
because he did not interfere with the investigation.
The City acted overzealously in terminating the Grievant and in doing so
abrogated its own declared policy of progressive discipline.
The City is also estopped from taking action against the Grievant because
the City violated his rights under
Nevada state law. Therefore,
the Grievance should be sustained.
It was a matter of record
that the Grievant slapped the inmate, that he did not file the proper reports,
and that he violated the directive not to talk with anyone during the
investigation. However, it was
clear to me that the decision to discharge the Grievant was not based on the
charges cited in the Notice of Termination (Joint Ex. 6).
Instead, the City based its decision to terminate on the Grievant's
alleged untruthfulness plus a prior discipline for a similar matter.
The transcript of the City Manager Level Hearing illustrated this point
quite clearly (City Ex. 1). In the
transcript, Deputy City Manager, Lynn Macy, made it known that the Grievant's
slapping the inmate and the other cited grounds, in combination or alone, were
not serious enough to warrant termination, but that the critical factors were
the Grievant's alleged untruthfulness and a prior discipline.
Pertinent statements made by Deputy Macy to the Grievant were:
"... Our main problem here, I think from our City Management
position, and the main problem because apparently there's been problems with
this in the past, is that we cannot get one answer out of you that is
consistent. And in your chosen field, and you know how I feel about this, and
I've made it crystal clear to the union, that failure to be truthful is one of,
you know, we may not fire you for what you
did, slapping somebody, but we're sure as hell going to fire you for not telling
the truth. And the truth in
this matter has been all over the place. No,
you didn't slap her, well maybe you did slap her, well if somebody said you
slapped her, well then you must have slapped her, now today, your representative
said you did slap her and right now you're telling me I can't remember if I
slapped her. You're being
terminated for this, and you can't seem to recall what happened...... (Emphasis
added) (City Ex. 1, p. 8)"
"I just, you know, this is our
main concern, or my main concern, I won't speak for Mike and Morgan but what
we're going to have to wrestle with here is whether or to uphold Mike's
(decision for) termination. One of
the issues is, we can't seem to get a
straight answer out of you and in law enforcement, if we keep on people who
have shown to be not truthful, if they should be brought up in a court of law
and it's found that they, you know the community finds that they have not been
truthful in the past, our goose is cooked.
This is a huge liability for us. If somebody is, if something terrible
serious happens to somebody and you're involved in it and we have shown that in
the past we cannot show that you were truthful, you put the City in terrible
jeopardy" (Emphasis added) (City Ex. 1, p. 8).
"Well, I'm not real sure how we're supposed to sort it out when we
can't rely on the information we've been given from you" (City Ex. 1, p. 9)
"..... I'd like to take his (the Grievant's) word for the version of
the incident but that aside, my main problem, if we said everything that the
witnesses, including the inmate said were true, now my main problem that I'm
faced with is I have a law enforcement
officer who can't tell the truth"
(Emphasis added) (City Ex. 1, p. 9).
"Well ... I'll tell you the other problem I'm having here, I think we
don't mind giving you a second chance ...... but we have given you a second
chance. You had a similar incident
like this a year ago, so if you don't think that we've followed progressive
discipline, we don't think you are showing any kind of understanding.
We showed understanding a year ago, something similar where we had the
same problem getting a straight answer out of (the Grievant)" (City Ex. 1,
"I can tell you that everyone who has gotten to this level while I
have been getting grievances, who was not truthful, is not here anymore, .....
" (City Ex. 1, p. 16).
The evidence record was also clear that the truthfulness issue was a
significant factor that the Director of the Department of Detention and
Enforcement, Michael Sheldon, wrestled with in arriving at his decision to
terminate the Grievant (City Ex. 1, p. 11 and Trans. p. 151).
It should also be noted that
the evidence record did not support the charge that the inmate was not provided
with proper medical attention. The
inmate was just outside the nurse's examining room and the nurse came out of the
room within a minute of the incident. The
nurse had already checked the inmate's vital signs and found them to be normal
and, after the incident, the inmate refused the offer to
be examined. Therefore,
two critical questions in this arbitration came down to whether the
Grievant lied and, if not, whether
the City followed the required progressive discipline procedures.
My review of the evidence record convinced me
that the Grievant's version of what
occurred was consistent throughout the proceedings and that he did not lie.
Throughout the proceedings, he maintained that he could not recall,
remember slapping the inmate but acknowledged that he must have done so if
Officer Johnston saw him do it. After Officer Johnston told him he had slapped the inmate, he
never denied slapping the inmate. He
was consistent, however, in saying he could not remember the actual act itself,
but readily acknowledged that he must have slapped her.
The Grievant maintained that when he
saw the inmate sliding the floor, he returned to render assistance believing she
was experiencing a seizure. Finding
her on the floor and with her body stiffened, he slapped her bring to her out of
the seizure. His contention was
that after the slap was when he realized she was faking the seizure.
The City's contention was that the Grievant lied, that he knew the inmate
was faking when he slapped her and that the slap was punitive in
purpose. Did the Grievant
know at the time of the slap that the inmate was faking?
This was a pivotal question.
The City based its belief the Grievant was lying on the assertion that
the Grievant admitted knowing the
inmate was faking when he slapped her (Emphasis added).
The Grievant, however, maintained that he never made such an admission.
According to the City, the alleged admission by the Grievant was "on
record" and had been made by him at the informal hearing before the
Director of the Department of Corrections and Detention, Michael Sheldon ( Macy
& Sheldon; City Ex. 1, pages 1, 7, 11 & 17).
The City was not persuasive. No record of the alleged admission made at
the Director's informal hearing was offered into evidence at the arbitration. It was significant, in my review and analysis of the evidence
record, that a copy of the transcript of the informal hearing conducted before
Director Sheldon on October 19, 1995 was not put into evidence (Fraser, trans.
This was in contrast to the submission into the evidence record of a
copy of the transcript of the two interviews conducted by Investigator Shattler
and of the hearing before Deputy City Manager Lynn Macy, at the City Manager
Level Hearing. Therefore, there was
nothing "on record" to support the City's contention that the Grievant
admitted knowing the inmate was faking at the time of the slap.
Given that the Grievant did, in fact, slap the inmate, and acknowledged
the act, the next question was whether the City followed the required
progressive discipline procedures? According
to Bill Fraser, Operations Commander, who consulted with the Director of the
Department, Michael Sheldon, as to the appropriate penalty to be given, the
Grievant's overall employment history and his prior discipline were considered
in arriving on termination as the
appropriate penalty (Trans. p.223, 237-239, & 11).
Relying on these two elements, Director
Sheldon, according to Commander Fraser, made the decision to terminate
because "We felt (the Grievant had) exhibited behavior he was going to keep
on repeating, and the department and the City wasn't willing to accept the fact
that he may do this again" (Trans. p. 238). Deputy City Manager Macy told the Grievant at the City
Manager Level hearing that the City had followed progressive discipline, that
the City had already given him a second chance, and that the City had shown
understanding the previous year when there was similar problem (City Ex. 1, p.
The Grievant's performance evaluations for the 1989 through 1995 all
reflected an employee of satisfactory or better evaluations.
There were no negative citations in the evaluations (Grievant Exhibits
C-1 through C-8). Obviously, these
favorable evaluations had not been given any real weight by Director Sheldon in arriving at the decision to
terminate the Grievant. It was
clear, though, that when his overall employment record was considered, it was
the prior discipline for a similar problem that the City gave weight to in
deciding to terminate his employment. The
prior discipline the City referred to was given to the Grievant on November 24,
1993. The original discipline was a
two-day suspension without pay. Following
a hearing on the matter, the suspension was reduced by Director Sheldon to a
Written Reprimand (Joint Ex. 13).
Article 14 of the Collective
Bargaining Agreement enumerated five (5) steps in the progressive discipline
procedure for violations or misbehavior
of a similar nature. They were: (1)
Oral Warning, (2) Written Reprimand, (3) Suspension, (4) Other disciplinary
actions, and (5) Termination. Contrary
to its assertion, the City did not follow progressive discipline. For a similar problem in the Fall of 1993,
the Grievant was given a Written Reprimand.
In the instant case, the City by-passed steps in the progression and went
directly to the last step, Termination.
This was a clear violation, by the City, of the Collective Bargaining
Agreement and their own Positive Discipline Policy.
The evidence record was conclusive.
The Grievant did slap the inmate, he did not file the proper reports, and
he violated a directive not to talk with others during the investigations.
He was not, however, untruthful and the City did not follow progressive
discipline as required by the Collective Bargaining Agreement.
Therefore, the City did not
have just cause to terminate the Grievant.
However, his misbehavior did warrant a lessor penalty.
The question then turned to what should be an appropriate lessor penalty,
a suspension or a written reprimand?
Since the Grievant had been given a Written Reprimand for the prior
misconduct, the next step in the progression would normally be a suspension. Not so in this instance, though.
Article 14 (J) (1.) of the
Collective Bargaining Agreement was very specific where it stated:
"The record any disciplinary action resulting in a written reprimand shall
be removed from an employee's personnel file after a period of eighteen (18)
months has elapsed..... " (Emphasis added).
The Written Reprimand for the prior misconduct was issued on November 23,
1993. The Notice of Termination in
the instant case was issued to the Grievant on October 20, 1995. Since the Written Reprimand was required to have been purged
from his personnel file after eighteen (18) months, which would have been after
May 23, 1995, the Written Reprimand no longer existed and could not be an item
for consideraton. Therefore, my
decision in this instance is that
the appropriate lessor penalty shall be a Written Reprimand
Therefore, for the reasons above, the grievance is sustained.
Grievance is sustained. The City
did not have just cause to terminate the Grievant, William Fisher. However, the City did have just cause to discipline the
Grievant. Therefore, in accordance
with the Collective Bargaining Agreement, the penalty is reduced to a Written
City is directed to immediately restore the Grievant to his former position and
to make him whole for all lost wages (less other income earned), and all
benefits, which shall include his time in service toward retirement.
of the remedy is remanded to the parties with the Arbitrator retaining
jurisdiction in the event the parties cannot agree.
C. ALLEN POOL
It was interesting that Officer Johnston, when she testified at the
arbitration hearing, did not use the the word "slap".
She testified that the Grievant "smacked" the inmate.