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Title: State of Oregon, Department of State Police and Oregon State Police Officers Association
Date: March, 1998
Arbitrator: Jack H. Calhoun
Citation: 1998 NAC 111

 

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

 

OREGON STATE POLICE OFFICERS’ ASSOCIATION, )

                                                                                    )                       OPINION

and                                                                               )                       AND

                                                                                    )                       AWARD

STATE OF OREGON, DEPARTMENT OF    )          

STATE POLICE. )

________________________________________________________________________________

 

 

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

 

 

 

HEARING HELD

December 18 and 19, 1997

Portland, Oregon

 

________________________________________________________________________________

 

REPRESENTATION

 

FOR THE ASSOCIATION:                                            FOR THE EMPLOYER:

 

Daryl S. Garrettson                                                        Stephen D. Krohn

James L. Maher Assistant Attorney General

Hoag, Garrettson, Goldberg, Fenrich & Makler         Labor Law Section

638 East 5th Street Oregon Department of Justice

Mc Minnville, OR 97128 100 Justice Building


                                                                                    Salem, OR 97310


BACKGROUND

 

            The Oregon State Police Officers’ Association and the State of Oregon are parties to a collective bargaining agreement that provides that discipline, including discharge, may only be imposed for just cause.  The grievant, Yvette Michele Shephard, was discharged from her position as a State Trooper on February 28, 1997.  The Association filed a grievance which ended in arbitration.  Post-hearing briefs were filed.

ISSUE

 

            The parties agreed that the issue in dispute is whether the grievant was discharged for just cause, and if not, what is the proper remedy.

RELEVANT CONTRACT PROVISIONS

ARTICLE 9 - EMPLOYEE RIGHTS

. . .

9.2 General procedures

Any employee who will be interviewed concerning an act, which, if proven, could reasonably result in disciplinary action against him or her will be afforded the following safeguards:

 

9.2.1 The employee will be informed prior to the interview if the employer believes the employee is a suspect in the investigation.  9.2.2 At least 24-hours prior to any PRO or other equivalent interview where the employer may impose an economic sanction upon the employee as a result of the underlying incident, the employee will be informed of the nature of the investigation and all allegations and informed of and afforded the opportunity to consult with an Association representative . . .

                        . . .

9.2.6 Interviews shall be done under circumstances devoid of intimidation, abuse or coercion.

 

ARTICLE II - DISCIPLINE AND DISCHARGE

 

            11.1 Discipline

Disciplinary action, including discharge shall be only for just cause.

 

 

STATEMENT OF FACTS

 

            The grievant began her employment with the Department of State Police on January 1, 1994, as a recruit.  She was promoted to Trooper on January 1, 1995.  Throughout her career with the employer she was considered a good employee, one who was intelligent, capable and motivated.  She received good performance appraisals and was thought to be an outstanding performer by her peers and superiors.  She had a reputation among her family members, friends, and fellow employees as a devoted mother, concerned family member, and ambitious police officer who was likely to succeed.

            In early October of 1996, the grievant met a man, James Davenport, during her off-duty hours.  They became friends and saw each other frequently over the next few weeks.  She introduced Davenport to her family. Some of her family members became suspicious of him and her mother urged her to try to find out more about him.  When she later asked Davenport if he was married, he replied that he was, but was in the process of getting a divorce, which should be forthcoming.  On October 13th, the grievant used the department’s Law Enforcement Data Systems (LEDS) computer to run a drivers license and wanted check on Davenport.

            The grievant maintained a cordial relationship with her former spouse, James Bass.  He at times took her 12-year old daughter to movies and shopping, and he communicated with the grievant on an infrequent basis.  Bass is an employee of the Oregon Department of Corrections who started his career as an employee of the state penitentiary.

            On October 16, 1996, Davenport called the grievant and said he was in the process of buying a car, but since he did not have a credit history, the automobile dealer required a cosigner.  He asked the grievant if she would cosign so he could get the vehicle.  She agreed to do so and went to the car dealer and signed papers.  While signing the papers, the grievant noticed that Davenport had signed his name as James C. Scott.  After leaving the car dealer, she asked him about the different name he had used.  He told her he could not tell her who he was because she was a police officer.  The grievant became suspicious and decide to try to figure out who he was.

            When she returned to work on October 20, 1996, the grievant ran a warrants check on James C. Scott after her shift ended at 6:00 a.m.  She ran the check using the LEDS system computer housed in the employer’s Portland offices.  Her first inquiry was a QW (query wants) check and it produced information on the screen of the computer showing James C. Scott’s date of birth, height, weight, race, state identification number and FBI number.  The grievant then used some of that information and entered it into the computer to run a criminal history (RR) check on Scott.  Before Scott’s criminal history appeared, the grievant had to leave the computer to answer a personal, non-police call.  She did not see the information on the screen that gave Scott’s extensive criminal record.

            On October 23, 1996, during the evening hours, the grievant and Scott were at her home.  The telephone rang a number of different times, but when she answered, the caller hung up.  Finally, when she answered the last time her former spouse, James Bass, responded and said he needed to talk with her. She explained that it was not a good time to talk.  She then told Scott that it was Bass who had called.  Scott suggested she tell Bass she did not want him to call anymore.  She replied by pointing out that Bass and her daughter were friends and she was not inclined to interfere with that friendship.  The discussion went on for several minutes when she said she wanted to go out for a drive.

            The grievant and Scott then drove around the neighborhood and ended up parked at a tavern.  Scott got out of the car, talked to a man, got back in the car where the grievant had been waiting and said he had just paid someone to go to Bass’ home and blast it.  She told Scott he was not doing anything to Bass and to do so would be contrary to everything she stood for.  Scott replied that it had already been done.  She said she did not believe in handling things in that manner and she could not deal with him if he did.  She got out of the car and began walking home.  After a few minutes, Scott pulled up beside her and asked her to get in his car. When she told him she did not condone his behavior, he told her that he had “called it off.”  She then got back in the car and they drove to her home.

            When the grievant and Scott returned to her home, she noticed James Bass’ vehicle parked in front and he was on her porch.  She got out of Scott’s car, approached Bass and asked him what he wanted.  Bass said he needed to talk to her, but since she had company, he would take care of the matter himself.  The grievant replied that it must have been important for him to come to her home at such a late hour.  Scott did not leave his car during the exchange between the grievant and Bass; however, he did yell a vulgar, imperative phrase at the grievant with the intention of expressing his dislike and lack of respect for Bass, which Bass heard.

            After the grievant and Scott were inside her home, they discussed Bass.  She told him Bass was a friend who needed to speak to her, as they sometimes did when problems occurred.  She then telephoned Bass and asked him what the problem was.  At that time, Scott grabbed the telephone from her and begin asking Bass why he was harassing the grievant.  Scott made several threatening derogatory remarks to Bass, including that he had planned to have someone go to Bass’ house and blast it, but that the grievant had stopped it.  The grievant then took the telephone and heard Bass say he would not call her again.  The grievant immediately berated Scott over his conduct toward Bass.  Scott calmed down and apologized for his outburst, explaining he thought he needed to protect her.

            The grievant believed that the threat Scott made to Bass had been adequately dealt with because she told Scott she would deal with Bass herself, that it was not Scott’s place to interfere in her relationship with Bass.  She believed the matter had been resolved.  She, being a black woman who grew up in a predominantly black culture in a predominately black neighborhood, believed that black men sometimes treat women as property and if another man is thought to be invading that property, they posture and make threats, or “mark their territory.”  That was how the grievant viewed Scott’s threats and how she dealt with the situation, by defusing it.

            The grievant continued to see James Scott, but on a less frequent basis because she stayed at her mother’s home from just after October 23rd until November 15th while the roof on her residence was being repaired.  Also, she was absent from November 5th to November 8th while she was away taking defensive tactics training.  Upon her return on November 8th, she was informed by her mother and other family members that James C. Scott had been convicted of numerous crimes and had just been released from prison and was married.

            Immediately after she found out about Scott from her family members, the grievant retrieved three messages from her home telephone.  The messages had been left by James Bass on November 6th while she was away taking training.  The messages said Bass had run a check on Scott and found out he had an extensive criminal background, had served time in the penitentiary at the same time Bass was an employee there, Bass knew him at the time he was a prisoner, and Bass knew of his reputation in the prison.  Bass also advised the grievant to leave Scott alone.  Bass did not state in the messages he left for the grievant that he was going to report anything about the situation to his employer.  The grievant attempted to return Bass’ calls, but he was not home.

            The grievant called her supervisor, Sergeant George, immediately after she found out from her family and former spouse about James Scott’s criminal record. She informed George about the fact she had been associating with a felon.  He asked her if she had run a criminal history on him on the LEDS computer because he wondered how she know the individual was a felon.  She replied that she had not.  The grievant’s mother was on the telephone with the grievant during the grievant’s conservation with Sergeant George and both the grievant and her mother assured him the grievant would have no contact with James Scott thereafter.  Sergeant George suggested the grievant read the part of the department manual related to association with a disreputable person.  The grievant did not divulge any confidential information to Scott during their relationship nor did she give him information that would have compromised an investigation.

            On November 8th, James Bass filed a written report with his employer, the Department of Corrections, about the October 23rd incident with James Scott and the grievant.  In it he described as threatening the words used by Scott toward him.  He said that while on the telephone, Scott used a racially derogatory word and said he, Scott, would kill him.  Scott said he knew who Bass was from the penitentiary and knew where Bass lived.  Bass went on to state in the report that he was concerned because Scott said he knew where Bass lived, and Bass said he was not sure the grievant knew of Scott’s status.

            An official of the Department of Corrections filed a verbal complaint with the Department of State Police, on November 6, 1996, stating that the grievant was associating with a convicted felon by the name of James Calvin Scott.  The complaint stated Bass saw Scott and the grievant together on October 23rd and that Scott later threatened to kill him.  The complaint was signed by Brad Halvorson and dated November 14, 1996.  The complaint report was written by Inspector Calvin Curths of the State Police and showed a date of November 7, 1996.  Sergeant George had not been informed of the complaint when the grievant called him on November 8th. 

            On November 10, 1996, the grievant again called Sergeant George and provided more details of the situation.  She said she had cosigned a loan for a vehicle with the person whom she knew as Davenport but came to find out was Scott.

            The grievant was notified on November 13, 1996, of an investigation and interview related to the stated allegation that she had been associating with a disreputable person. The interview was conduced by Inspector Kok on November 16, 1996.  The grievant asked Sergeant George to accompany her during the interview and he agreed, stressing the necessity for her to be truthful.  Lieutenant Billesbach also warned her that to lie could get her fired.  Senior Trooper Gallagher represented the Association at the interview.

            During the November 16th interview Kok asked the grievant a number of questions about her relationship with James Scott, including a question about whether she had ever run a LEDS check or a CCH (complete criminal history) on him.  Kok did not asked the grievant if she understood the question.  The grievant said she thought she tried to run a driving history or something on Davenport, but was not able to find out about it.  She said she did not do a QWHD, a check for criminal history, wants, and Oregon driving record. She said further on that she did not have to, her sister’s boyfriend worked at the Multumonah County Sheriffs Office and ran a check on him as did her former husband.  She said her former husband was the one who informed her of James’s extensive criminal record.

            The grievant did not run a QWHD on Scott.  It was her understanding, as of the time of the interview on November 16th, that a QWHD was a complete criminal history check.  She did not understand, on that date, that an RR was a criminal history check.  She was more accustomed to running QWHD’s for her cases that went to the district attorney’s office.  On November 16th, the terms “RR,” “CCH,” and “QWHD,” did not mean the same thing to the grievant.  She later came to know that an “RR” is a criminal history.

            Because he believed the grievant lied, at the conclusion of the interview on November 16th, Sergeant George called the grievant aside and asked her questions about her answers to the questions during the interview related to her use of the LEDS system, specifically whether she had run a CCH on Scott.  George told her he did not think she had been truthful in answering the CCH questions.  She said she got Scott’s SID number, put it in the computer, pushed ENTER, deleted it and did not read the screen.  George wanted to get the matter cleared up, therefore, he contacted the Inspector and arranged to reopen the interview.

            The reopened interview was held on the same day, November 16th.  Kok said the grievant received a number from her sister’s boyfriend and typed it in the computer.  The grievant affirmed the statement by Kok and went on to say she punched everything in the computer and ran the information, but while it was going through the computer, she “had a call” and cleared the machine.  She said she had done an RR.  When Kok suggested she never actually entered it into the machine, that she just lined it up, typed it in and then hit clear, the grievant said that was not what she meant.  She said she put everything in, hit enter, and before anything could start coming up, she hit clear because “they sent me on a call.”  No one, specifically, asked the grievant if she was sent on a police call.  Her log did not show that she went on a police call.  Later in the interview Kok asked her if she recalled where she was going when she was sent out on a call.  The grievant replied that she could not, that she could not even remember the day, at that time.

            Sergeant George felt comfortable after the reopened interview was completed.  He was told he would get a report from the Professional Standards Unit of the department.

            Inspector Curths reviewed the transcript of the November 16th interview of the grievant and used the information contained therein to pursue a further investigation of her.  Based on his investigation, he decided a second interview of the grievant was necessary.

            On November 23, 1996, the grievant received notice of a second interview over the allegations she has associated with a disreputable person and she had failed to be truthful during a personnel interview.  The second interview was held on November 25, 1996.  Inspectors Curths and Kok, Senior Trooper Gallagher and the grievant were present.  At the beginning of the interview the grievant was shown a copy of a letter from the Superintendent of the Department of State Police dated June 21, 1995.  The letter admonished employees to be truthful during interviews with investigators and warned them of the severe consequences that would be imposed if they were untruthful or dishonest.  The grievant read the letter and became nervous, thinking her answers during the interview might be misconstrued. She approached the interview with caution in answering the Inspectors’ questions.  Inspector Kok stated forthrightly at the beginning of the interview that she believed the grievant had been less than truthful.

            During the second interview the grievant was questioned about what the Inspectors believed to be the untruthful responses to questions asked of her during the first interview and about her relationship with James Scott.  The grievant maintained that she was truthful when she said she went out on a call and did not see Scott’s criminal record on the computer screen.  She believed that statement to be accurate because she had to get up and do something.  She did not recall the exact incident that caused her to have to get up, but she knew her daughter had, on occasion, called her because the grievant had forgotten to leave her lunch money.  She explained why she answered as she did during the first part of the first interview when she was asked if she had run a CCH on the LEDS.  She had been accustomed to running QWHD’s so she did not think of an RR as the same thing.  Curths insisted in a loud voice that the grievant tell him why she did not tell Kok in the first interview that she had run a criminal history on James.  She reiterated that she did not because she separated the two processes in her mind at first, but when she had time to contemplate she came back during the first interview.  The first thing that came to her mind when a criminal history was mentioned was a QWHD, not the RR. When Kok insisted that the grievant had tried to mislead her during the first interview, the grievant denied it was so.  The    grievant stated during the second interview that Scott stated on October 23rd he had put a hit out on Bass.  She also said she believed Scott as just talking big and that he was not going to do anything.  She said again she did not know on October 23rd about Scott’s criminal history.

            On November 26, 1996, Inspector Curths issued his personnel investigation report to Sergeant George related to the allegation that the grievant had been associating with a felon.  In the report Curths made it clear that he though the grievant was not truthful in answering questions put to her during the interviews.  He concluded the grievant changed her statements during the interviews, her statements were inconsistent with other witness’ accounts, and her statements were not corroborated by physical records.

            Sergeant George received Curth’s report on November 26th.  He read it and had a hard time understanding it.  He considered each allegation from each side, that is to say, to sustain or not sustain each allegation.  He wrestled with the pros and cons because most of the report made little sense to him.  He wanted to make sure he was interpreting the information correctly.  He had a difficult time finding in the report the necessary reasons to sustain the allegations.  He spoke with several others in the department because he was having difficulty with the report.  He took each allegation from the report and decided whether there was sufficient evidence to uphold it.  He sent drafts of his findings to the Professional Standards Unit for review so that he could be sure he had done it right.  At each step of the investigation process the grievant and the Association were provided copies of reports, as he received them, they got them.

            In his final finding of fact dated December 11, 1996, Sergeant George decided to sustain all nine allegations that had been made against the grievant.  In summary, they were as follows:

            1.  She associated with a disreputable person, James Scott.  She became aware of Scott’s criminal history on October 20, 1996, contacted George on November 8, 1996, but did not cease the association until November 10, 1996.

            2.  She used the LEDS system for personal use on October 20, 1996 to check on Scott.

            3.  She was untruthful when she told him on November 8, 1996 that she had not run a CCH on Scott.  She said she received information regarding Scott’s criminal history from her former spouse, which was untruthful.

            4.  She was untruthful on November 16, 1996, when she told Inspector Kok she had not run a CCH on Scott.  She ran the CCH on October 20, 1996.

            5.  She told Inspector Kok she became aware of Scott’s criminal background on November 7, 1996.  That was untrue because she found out about his record on October 20, 1996.

            6.  She told Inspector Kok on November 16, 1996, that she received Scott’s SID number from her sister, who got it from her boyfriend.  In fact, the grievant got it on October 20, 1996, through the use of LEDS.

            7.  She told Inspector Kok she did not look at the CCH she ran on Scott on October 20, 1996, because she had been dispatched to a call.  That was untrue because the records show she was not dispatched to a call, she was off duty at the time.

            8.  She failed to exercise her responsibility as a police officer by investigating or reporting the incident when Scott put out a “hit” on James Bass on October 23, 1996.

            9.  She failed to exercise her responsibility as a police officer by investigating or reporting the threat Scott made to James’s life by telephone on October 23, 1996.

            The grievant responded to Sergeant George’s findings four times.  He threw away her first response because, in his opinion, it did not address the issues.  He talked to her about her responses and she provided additional information.  George instructed the grievant to be very specific in her responses.  He wanted her to go into detail about her relationship with James Bass and to give details on her relationship with James Bass and to give details on her relationship with James Scott, to express how Scott portrayed himself to her.  George told her it was important that his superiors see what kind of person Scott was.  George told her, “I don’t want to fire you, but they are leading me around with a ring in my nose.”

            In her final response to George’s findings, the grievant went into considerable detail regarding her relationships with Scott and Bass.  She described in complimentary terms how Scott treated her, how he expressed a desire to have a long-term relationship with her, with her family and with her church. He wanted to marry her and adopt her daughter.

            Sergeant George later concluded from her description of Scott and Scott’s treatment of her that she did not sever her relationship with Scott sooner than November 8th, because she was too attached to him to do so.  George continued to maintain that the grievant did not address all the issues he had raised in his findings.

            In her response to his finding the grievant covered the essence of  all the issues raised in George’s findings.  They are summarized as follows:

            1.  During her first telephone call to Sergeant George on November 8, 1996, she acknowledged she had been keeping company with a felon, but she did not come to know about his criminal record until that same day.  She broke off the relationship immediately.

            2.  She acknowledged using the LEDS computer for personal use on October 20, 1996.

            3.  She stated she did not see the screen that had the criminal record of Scott because she left on a call or was called away on October 20, 1996.  She said she received Scott’s criminal history information from her family and her former spouse.

            4.  Her response to the allegation about her lying to Kok regarding the query on Scott on October 20, 1996, was the same as it was to George’s No. 3 allegation.

            5.  She said she did not see the screen on October 20, 1996, but found out about Scott’s record on November 7, 1996.

            6.  She said she believed she obtained the SID number from her sister’s boyfriend, but was mistaken.

            7.  She said she had a call on October 20, 1996, that detracted from her inquiry regarding Scott’s criminal history.  She believed she had been dispatched to a call or received a call because she was unable to read the CCH query.

            8.  She did not know at the time that Scott had an extensive criminal history.  She acted as she thought she should under the circumstances.

                        9.  See No. 8 above.

            After receiving the grievant’s December 18, 1996 final response to his findings, Sergeant George decided a follow-up investigation was necessary.  On January 27, 1997, a third interview with the grievant was held.  The notice of interview listed three allegations: (1) association with a disreputable person, (2) untruthfulness during a personnel investigation, and (3) unauthorized use of LEDS.

            During the third interview, Curths and Lieutenant Salle asked many of the same questions of the grievant that had been asked during the first two interviews.  Trooper Gallagher was again present and observed the questioning.  At one point Salle moved his chair to within 12 inches of the grievant, raised his voice, pointed his finger and said, “I’m ordering you to answer ‘yes’ or ‘no’ .”  The grievant began to cry and Salle calmed down.  The grievant maintained that she had not been untruthful during the previous interviews.

            Curths issued another report to Sergeant George on January 30, 1997.  On February 5, 1997, Sergeant George issued a notice of pre-dismissal proceedings to the grievant.  In it he restated much of what he had said in his finding of fact made earlier and he summarized the results of the third interview.  The grievant filed a written response on February 12, 1997, denying the allegations against her.

            On February 28, 1997, Sergeant George issued his notice of dismissal to the grievant.  He concluded after reviewing the record that she had been untruthful on several occasions.  He stated that her unauthorized use of the LEDS computer would not likely have led to termination, nor would her associating with a felon.  It was the untruthfulness during the personnel investigation that warranted her dismissal, according to George.

POSITION OF EMPLOYER, SUMMARIZED

            The employer contends that the dispute is whether the grievant was truthful.  The basis of her termination was her untruthfulness during the personnel investigation conducted by the department.

            Department employees were put on notice that the department expects truthfulness during personnel investigations.  It is policy and a letter was issued in 1995 advising employees that prior levels of discipline imposed could not be relied upon in the future.  The letter said untruthfulness would result in severe discipline.

            The grievant provided false information when she said she obtained an SID number from her sister’s boyfriend.  The grievant initiated the conversation concerning it to explain her actions, intending that the investigators rely on her statement.

            She volunteered false information when she said she did not know of Scott’s felony record until November 7th.  She admitted running a LEDS inquiry earlier but said she was sent on a call and did not view the information.

            When the grievant called Sergeant George on November 8, 1996, she was untruthful when she said she had not done a CCH on Scott.  Even if one accepts her version of what she did on October 20th, she knew she had used the system to get a criminal history.

            The grievant’s dishonesty centered principally around her use of the LEDS terminal. There was too much detail in her description for the problem to be simply a hazy memory.  She made voluntary statements of fact as opposed to responding to questions that may have misled her.  The information was repeated during interviews so that it was not just a matter of temporary confusion on her part. She knew she was being asked to describe her conduct and she offered specifics with the intent that they be accepted as a truthful explanation of what she did.

            The false information was offered by the grievant during interviews on November 16th concerning her relationship with Scott.  On November 25th, she was interviewed about untruthfulness during a personnel investigation.  It is uncontested that the reason for the first interview was based on information brought by a third party that had been initiated by the grievant’s former spouse.

            The deceptive nature on November 16th of the grievant’s denial of using LEDS was noted by Sergeant George.  He tried to help her.  The depth of her deception regarding the source of the SID number and being sent on a call only became clear during a follow-up investigation where they were shown to be false.  Inspector Curths showed that the SID number was not obtained from the sister or the sister’s boyfriend and that the grievant was not sent on a call, as demonstrated by her time record.

            Sergeant George described to the investigator the telephone conversation he had with the grievant when she first reported her relationship with Scott.  George asked her if she had run a CCH.  She said no.  In her written response to George’s findings she stated she did not recall being asked if she had run a CCH on Scott.

            While these discreet issues caused her termination, the employer offered evidence to prove all of the statements in the termination notice.  The purpose was to demonstrate the existence of just cause and the lack of racial motivation for the decision.

            The grievant was trained in the use of LEDS.  She used it in connection with traffic arrests, particulary in DUI cases. She was required to review the department’s manual on policies, rules and procedures. She acknowledged she had done so.  She was recertified in 1995 in the use of LEDS.

            During the first interview when asked if she ran a LEDS or CCH on Scott, the grievant said she did not do a QWHD.  She went on to say she did not need to, her sister’s boyfriend and her former spouse ran a check on him.  That statement shows the grievant clearly understood one would get a criminal history in response to the question about a LEDS check.  She did not ask what was meant by the phrase.  She volunteered the additional explanation of why she did not need to run a CCH.  She got the information from another source.  By answering with these specifics the claimed distinction between CCH and RR is not credible.

            When the grievant was asked if she knew that LEDS kept records of who used it, the grievant acknowledged she did but she provided no further details of her use of LEDS to check on Scott.  Clearly, no one was trying to set her up to be untruthful.

            With respect to events that occurred on October 23, 1996, the grievant said Scott told her “I got a hit.  I’m gonna go over to his house and blast his house.”  Her reaction was varied.  When asked what a “hit” meant, she said it meant Scott was going to do something to my ex-husband and she needed to protect him because he was still my friend, she needed to talk to him.

            After the first part of the first interview, Sergeant George took the grievant aside and asked her if she had run a CCH.  She said she had and had received the SID number from her sister’s boyfriend.  During the second part of the interview the grievant said she believed she obtained the number from her sister’s boyfriend.  In response to a statement that she had told them earlier, her sister’s boyfriend gave her the number, the grievant said, “Right and I’m to find out exactly who he (Scott) was.”  She went on to say she punched everything into the computer, but then had a call and cleared the machine.  Later on during the interview she said she put everything into the computer but before anything could come up, she hit clear because they sent me out to a call.

            Inspector Curths used the information given by the grievant during the first interview to investigate further.  He was unable to confirm what she had stated.  A second interview was scheduled.  It was an attempt to bring clarity to the false factual statements the grievant made during the first interview, but the grievant persisted in asserting false information and compounding the falsehoods rather than providing accurate responses.  Instead of providing clarity, the grievant simply back tracked on her comments.

            The grievant said she never heard Scott use the word kill on October 23rd.  Her statement during the second interview shows she did hear it.  At the first interview she said she was concerned about her former spouses’s well being after Scott said he was going to do something to him.  Later, during the second interview she said nothing was going to happen.

            When Sergeant George formulated his findings of fact, he based all nine of the factual allegations on information provided in the investigative report.  He made his finding before assessing discipline.

            The grievant ran a LEDS query on October 13, 1996.  In her response to George’s finding, while discussing her relationship with Scott on that date, she said she never had reason to believe he was being untruthful or that he had a criminal history.  Three days later on October 16,  she learned that Scott had not given his real name to her.  When she questioned him about it he said he could not because she was a police officer.  She also saw and heard the incidents on October 23rd. 

            In light of the information and the grievant’s response to the finding, it was necessary to  have a follow-up interview on January 27, 1997, to clarify whether LEDS had been accessed in relation to information she was receiving from relatives.  One important question was whether the grievant could honestly claim a distinction between a LEDS/CCH inquiry and the use of “RR” to gain criminal history information.  The process the grievant went through to find criminal histories was to run QWHD and followed by RR.  There was no example of her getting criminal histories by using the letters “LEDS” or “CCH” as a transaction code.

            Sergeant George’s decision was issued on February 28, 1997.  He concluded by saying that it was the grievant’s initial untruthful response, which she persisted in maintaining, that led to his decision to terminate her employment.  He said those charges of untruthfulness during the personnel investigation standing alone warranted dismissal.  The untruthfulness matters were:

                                    Denying she ran a CCH when asked by George on or about November 8, 1996.

                                    Telling Inspector Kok she had not run a CCH/LEDS and then describing an unacceptable distinction as the basis for her answer.

                                    Stating she only learned about Scott’s criminal history on November 7, 1996 when substantial data, including her access to the LEDS terminal, would provide notice well prior to that call.

                                    Stating on November 16, 1996, that she received an SID number from her sister’s boyfriend.

                                    Claiming that she did not complete the LEDS inquiry because “they sent me on a call” when she knew that to be a term of art in police work and was not true.

            The question of cultural differences that was raised was in the context of motivation for the grievant to act as she did, not for the actions of Sergeant George.  The cultural differences issue dealt with how she responded to the threats to kill and the “hit” that was put out.  It was not alleged that cultural differences would lead to her being untruthful.

            The appropriate burden of persuasion in this case is by a preponderance of the evidence.  Several arbitrators have recognized that absent a bargain for a different standard, the traditional standard is appropriate.  The contract between the parties does not call for a higher standard than preponderance.  The department had the burden of establishing a factual basis to support its action.

            Although the grievant’s judgment in associating with a disreputable person was questioned by the department, the decision to terminate was based on her untruthfulness.  The assertion by the Association that the Department’s rule is unconstitutional is inappropriate.  The department policy on associating with disreputable people was not a basis of the decision to terminate the grievant.

            There was no evidence that Sergeant George made his decision because of racial animus.  The president of the Association testified that he saw no basis to claim his decision was based on the grievant’s race or that George acted in a racist manner.  The Association provided several examples of Caucasian males who had not been fired under various factual situations. The department showed that Caucasian males had been terminated for untruthfulness.

            The parties are in general agreement about the relevant elements of just cause.  The grievant was on notice of the disciplinary consequences of being untruthful.  She had direct notice from a number of sources.  The rule requiring truthfulness during personnel investigations is reasonably necessary for the department.  Honesty from a police officer is absolutely essential.  There was no challenge to the policy requiring employees to be honest and truthful at all times and under all circumstances.  Honesty and truthfulness are not passive states of being, they require affirmation to see that the known facts are imparted in the context that makes them an accurate accounting of actual fact.  One can be untruthful without being an outright liar.

            The department investigated prior to taking corrective action.  The investigation was fair and objective.  Lieutenant Salle’s questioning of the grievant was not improper.  The Association representative did not object at the time.  Sergeant George’s role on the telephone call from the grievant did not invalidate the investigation.  If he had terminated her solely as a result of her statement to him, the question of objectively could be raised, however, that is not what happened.  The dishonest response was but one of five untruthful statements for which termination occurred.  The investigation was done by someone other than George.  The reports issued by the investigator were not biased.  They were not challenged as inaccurate.

            The appropriate standard for assessing procedural fairness under the just cause principle is not the same as those developed for criminal proceedings.  The essential question for an arbitrator is not whether the disciplinary action was totally free from procedural error, but rather whether the process was fundamentally fair.

            There was evidence that the grievant was untruthful during the personnel review.  She told Inspector Kok she had not used LEDS/CCH to make inquiries on Scott.  She provided information about receiving an SID number through her sister’s boyfriend.  She said she was unable to see Scott’s criminal history because she was sent on a call.

            The department has approached personnel matters even handedly and without discriminating.  The association offered several personnel letters to attack this element.  Superintendent Howland issued notice that discipline prior to his administration would not provide guidance.  The relevant standard was higher at the time of the grievant’s conduct.

            Termination was reasonably based upon the untruthfulness and the length of employment.  The grievant had not demonstrated a long-term, exemplary employment history.  The grievant’s conduct was to lie about the use of the LEDS system, specifically stating where she got an SID number and was not on a call.  Her history with the department establishes she understood the rules and can be held accountable to follow them.

POSITION OF THE ASSOCIATION, SUMMARIZED

            The Association contends that the lack of just cause and industrial due process invalidated the grievant’s right to fair process.  The first violation of just cause was having Sergeant George be a fact witness, the adjudicator of fact, and the determiner of penalty. During telephone conversations with the grievant, he asked her questions directly related to the matter under investigation without informing her of the nature of the allegations and her right to representation.  He used his recollection of the conversations to sustain allegations of untruthfulness.

            Sergeant George defended his own actions.  He testified the only acceptable response the grievant could have given him regrading the telephone conversation was to agree with him as to its contents.  What was allegedly said by her was relied upon by George to terminate her.  The investigator was the accuser.

            Sergeant George counseled the grievant on what to write to the internal affairs investigators, particularly about her feeling for Scott.  George unilaterally decided not to forward to the investigators written statements made by the grievant and given to George along with statements of exculpatory witnesses.

            Sergeant George wrote numerous drafts of the termination letter.  The first found every single allegation unsustained.  The final version sustained every allegation.  He testified the numerous drafts were the result of him being told by another sergeant that his first draft would not be accepted by superiors in the department.

            The grievant submitted to George’s guidance and as a result was fired by him.  He had a vested interest in the case.  He could not be impartial.  Her final appeal was to George who wore many hats during the investigation.  The grievant never had a fair and objective investigation.

            The grievant’s side of the story related to the telephone conversation with George was not heard by any investigator prior to the final interview on January 27, 1997, more than six weeks after the untruthfulness allegation was sustained on December 11, 1996.  George testified he never asked the grievant about the telephone conversation and never attempted to get her side of the story.  No one tried to interview the grievant’s mother regarding the telephone conversation she heard her daughter have with George.

            The department failed to listen to the tape on which James Bass’ three messages to the grievant were recorded.  Those messages prove that when the grievant heard them she was put on notice of Scott’s criminal history.  When the grievant heard the messages on November 8, 1996, and conferred with her family the same date, she called Sergeant George.

            James Bass testified that the grievant did not have knowledge that he was going to report his contact with Scott to Bass’ employer prior to him actually doing so.  The grievant also testified Bass never told her of his intent to report his contact with Scott.  She also testified she told George about the telephone messages being on tape. Failure to follow upon the grievant’s side of the case is another example of her being denied due process and the department’s failure to meet just cause.

            The department’s failure to provide notice of the nature of the investigation and allegations is a contract violation and a just cause violation.  The contract requires at least a 24-hour notice where the employer may impose an economic sanction.  George issued his findings on December 11, listing the nine allegations he sustained.  Allegations Nos. 1 and 3 would not have resulted in the grievant’s dismissal.  Allegations Nos. 8 and 9 were not used to justify the grievant’s termination.  Allegations Nos 3 through 7 all related to untruthfulness and the first notice the grievant was given of truthfulness being any part of the nature of the investigation and allegations against her was November 25, 1996.  This was a violation of the contract and denial of due process.

            Sergeant George’s dismissal letter dated February 28, 1997, stated that the charges of untruthfulness during the personnel investigation warranted dismissal.  He listed eight supporting facts, the first two of which were not terminable offenses.  The third fact was the same one he reached in his December 11th findings and was a due process violation.  The fourth fact contradicts his statement to Curths  as reported on November 25th.  The balance of the allegations in number four rise or fall based on whether the grievant looked at the screen on October 20th.  The fifth fact sets out circumstances derived from the November 16th interview, therefore, the due process/notice analysis applies.  Fact number six mentioned the grievant’s driving record check done on Davenport, which the grievant brought up on her own during the first interview.  Number seven relates to the grievant’s association with Scott and the allegations are non-terminable, unconstitutional and irrelevant because the grievant notified George on November 8 about Scott’s history.  Fact number eight relates the grievant’s statement she was not untruthful, her check on Davenport/Scott, and her statement, “I guess because I just didn’t.”, showing her exhaustion.

            At no time was the grievant put on notice of Sergeant Georges’s personal view of truthfulness, which considers both honest mistakes and non-responsiveness as untruthfulness.  The  grievant was never put on notice that an inaccuracy of any sort would be viewed as untruthfulness.  This is a violation of due process.

            The department violated the provision in the contract that requires interviews be done under circumstances devoid of intimidation, abuse, or coercion.  Intimidation, abuse and coercion were used during the interview of the grievant on January 27, 1997, as testified to by Trooper Gallagher.

            The department used a double standard in this case.  It terminated the grievant for untruthfulness, but did not investigate Kok or Curths for their actions during the investigation.  At the start of the interviews on November 16th, and 25th, they were asked if the grievant was going to be asked about anything that had been put to writing.  Each said no, but Kok had the Bass report and Curths the LEDS audit.  Both asked the grievant about them.  For the department to find the grievant was untruthful because she did not know a CCH was an RR and not a QWHD while tolerating deliberate misstatement of facts smells of the application of a double standard.

            There is no factual basis for the untruthfulness finding.  Even if there were, the grievant received disparate treatment. The grievant was denied due process when George sustained the untruthfulness charge before getting the grievant’s side of the story.  Under a totality of the circumstances termination, when the November 8 and 10 telephone conversation basis of termination fails, the grievant must be sustained.  The contract was violated when the department failed to inform the grievant of the nature of the allegations and in using intimidation, abuse and coercion.

OPINION

            The employer had the burden of proving that it had just cause to terminate the grievant’s employment.  It had the burden of persuading the arbitrator by clear and convincing evidence it had just cause to dismiss the grievant.  Simply put, the quantum of proof necessary was one that would go beyond a mere preponderance and show that the truth of the facts asserted by the employer was highly probable.  The collective bargaining agreement itself does not define the standard of proof to be used.  The evidence on the record compels the conclusion that the employer did not carry its burden.

            Both parties referred to Enterprise Wire 42 LA 555 (Daugherty, 1968) and the tests articulated therein.  The department’s Personnel Complaint Procedures and Guidelines for Investigations and Corrective Action set forth essentially the same criteria found in Daughtery’s seven tests.  A “no” answer to one or more of the questions means that just cause for the employer’s action did not exist or at least was seriously weakened in that some arbitrary, capricious, or discriminatory element was present.  Koven and Smith, Just Cause, the Seven Tests, Second Ed., BNA 1992.  Proof of the alleged misconduct and a fair and objective investigation are two important elements of just cause.  In the instant case, in addition to the essential elements of just cause, the parties’ collective bargaining agreement contains provisions that address certain employee procedural rights.

            There is insufficient evidence to clearly and convincingly establish that the grievant was untruthful during the personnel investigations, as Sergeant George concluded on February 28, 1997.  The focal point of the untruthfulness issue centers on the October 20, 1996, event when the grievant used the LEDS terminal to run a check on James Scott and whether she looked at the screen that would have shown his criminal history.

            The grievant testified during the first interview that she did not look at the screen because something, she could not remember what, caused her to leave the area.  During the first interview she first said, referring to the screen, “I had a call . . . ”  She later said, “. . .  they sent me on a call.”  On November 26, 1996, at the second interview, she said she could not recall exactly what caused her to leave.  Although she did not recall the exact incident that caused her to get up and leave, she knew that her daughter called her on occasion for lunch money.  On other occasions while in the office, something came up and she had to do something.  While the department urges that her not recalling why she left and stating she did not look at the screen was simply convenient and necessary given her later actions, her statements are not implausible.  Also, her later conduct is consistent with her story and renders it not only believable, but likely.

            Given her reputation as a protective mother, concerned family member, and enthusiastic employee whose existence centered around her family and job, as testified by several witnesses, it is likely she would have severed any relationship she had with Scott on October 20th, if she had come to know of his criminal background.  Her action on November 8th when she called George after learning from her family and former spouse that Scott was a felon is consistent with her assertion that she did not know of Scott’s reputation prior to that date.  Contrary to the department’s argument, it is not probable that the grievant knew of Scott’s background earlier than November 8th and chose to ignore it.  She would have been too concerned for her child, family members and job.  Her story is also consistent with the fact she broke off any contact with Scott immediately after finding out about his criminal record.

            Troopers Hansill and Forest testified the grievant was a very protective mother who was careful who she allowed around her daughter.  Trooper Duvall testified that if the grievant had seen the criminal history printout for Scott on October 20th, she would come forward at that time and reported it to Sergeant George.  Duvall said the grievant’s concerns for her family and her job would have compelled her to come forward at the time she learned of Scott’s criminal record.

            The grievant did not report to Sergeant George on November 8th, about Scott’s criminal background just because she thought Bass was going to report his contact with Scott to Bass’ supervisor.  Bass did not tell the grievant he was going to report the contact.

            At the first part of the first interview, the grievant was asked if she had run a LEDS check or a CCH on Scott.  She replied she thought she had run a driving history or something on Davenport, but she did not do a QWHD.  Sergeant George testified that her statement was not inaccurate.  The department contends that being a police officer who used the LEDS system in her work, she could not have been confused over the meaning of the question and her intentional obfuscation was nothing more than a lie.  A reading of the whole transcript leads to the opposite conclusion, however.

            Throughout the first interview, the investigator displayed an inarticulate approach toward framing questions.  It is more than likely that the grievant was confused at times and tried to be extra cautious.  By answering as she did, it is reasonable to assume the grievant thought the investigator meant did she find out whether Scott had a criminal record, which she did not know about at that time.  In any case, there are a sufficient number of acronyms and phrases used in the LEDS system, for a fairly new trooper, even though she had taken the LEDS course, to be confused.

            After the first part of the first interview, the grievant volunteered to Sergeant George that she had run an RR on Scott.  On November 16th, neither RR nor CCH was synonymous to her with a QWHD.  On November 16th, she did not understand an RR to be a criminal history check.

            Sergeant George ignored what the grievant actually said on November 16th in response to a question about where she obtained the SID number.  The grievant said she believed her sister’s boyfriend gave it to her, but she could not recall exactly.  In his finding, George disregarded the qualification.  Prefacing a remark with “I believe” is not the same as making an unequivocal assertion about a fact.

            When the Grievant called George on November 8th, and told him she believed she was involved in a relationship with a man who was a felon and George asked her if she had run a CCH on him, the grievant answered no.  Her answer was not untruthful if she meant she didn’t see his criminal history on the 20th of October.  George’s question implied that he wanted to know if the grievant came to know through use of the LEDS system what Scotts record was.  She did not. Therefore, her answer was not untruthful.  The criminal history she came to know was what her family and former spouse gave her on November 8th just before she called George to let him know.

            Proof of the untruthfulness charges found by Sergeant George in this case is simply lacking and falls far short of being clear and convincing.  The grievant was not untruthful to George or the inspectors during the course of events that occurred.  She may well have been inaccurate on occasion, or confused, exhausted, and intimidated by the questions that were asked, but she never intended to deceive.

            There were procedural flaws in the handling of this matter.  As the department points out, the essential questions for an arbitrator is not whether the disciplinary action was totally free from procedural error, but rather whether the process was fundamentally fair.  However, even fundamental fairness was lacking in some aspect of this case.

            The grievant was not interviewed regarding her two telephone conversations with Sergeant George until January 27, 1997, after George sustained the alleged untruthfulness on December 11, 1996.  It is fundamental fairness that a grievant be provided an opportunity to tell her side of the story before the employer makes up its mind that the misconduct occurred.

            If Sergeant George was the one solely responsible for the decision to terminate the grievant, as the department maintains, he could not have made his decision without partiality.  He had to defend his own conclusion regarding the telephone conversations he had with the grievant.  The only way he would have believed her was if she agreed with him.  The difficulty with not having someone further up the hierarchy make an independent and objective review of lower supervisors’ decisions to terminate, where just cause principles are involved, is that the supervisor often becomes the witness and the judge.  Under those circumstances any prejudice or animosity he might have, or any mistake he might make, victimizes the accused.  It is human not to be able to see another’s side of the story once our minds are made up.  It is basic to due process that an accused not have to defend a position in front of a closed mind.

            During the January 27th interview, Lieutenant Salle intimidated the grievant by his abhorrent conduct toward her.  He made her cry.  The context within which she made her statement “I guess because I just didn’t” makes it apparent she had succumbed to the pressure Salle applied.  She was exhausted, his heavy-handed tactics worked.  He persisted until she gave in.  His conduct not only violated the grievant’s due process or fundamental fairness rights, it violated the parties’ collective bargaining agreement.

            Based on the evidence on the record, and for the reasons stated herein, I conclude the department did not have just cause to discharge the grievant.  Clear and convincing proof of the allegations against her was lacking.  Moreover, the department’s investigation did not afford the grievant a fundamentally fair process.

AWARD

            The grievance is sustained.

            The department will offer the grievant reinstatement to the same position she held prior to being discharged.

            The department will reimburse the grievant for all wages and benefits to which she would have been entitled had she not been discharged, less interim earnings.

            The department is the nonprevailing party in this matter.

            Dated this ____day of March 1998.

 

 

 

                                                                                    ______________________________

                                                                                    Jack H. Calhoun

 

105-96OR

 

 

 

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