2000 NAC 127 Ravalli County, Montana and Montana District Council of Laborers, Local 1334

Title: Ravalli County, Montana and Montana District Council of Laborers, Local 1334
Date: January, 2000
Arbitrator: Jack Calhoun
Citation: 2000 NAC 127

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN: )

MONTANA DISTRICT COUNCIL OF )

LABORERS, LOCAL 1334, )

Union, ) OPINION

and ) AND

RAVALLI COUNTY, MONTANA, ) AWARD

Employer. )

________________________________________________________________________________

FMCS NO. 99-12564

BEFORE

JACK H. CALHOUN

ARBITRATOR

HEARING HELD

OCTOBER 15, 1999

HAMILTON, MONTANA

________________________________________________________________________________

REPRESENTATION

FOR THE UNION: FOR THE EMPLOYER:

KARL J. ENGLUND DON K. KLEPPER, COUNTY MANAGER

KARL J. ENGLUND, P.C. RAVALLI COUNTY

P. O. BOX 8358 P.O. BOX 5022

MISSOULA, MT 59807 HAMILTON, MT 59840-5822

Montana District Council of Laborers, Local 1334 (the Union) and Ravalli County, Montana (the Employer), are parties to a collective bargaining agreement that provides that covered employees in the bargaining unit may not be discharged without just cause. The Grievant, James E. Theis, was discharged on February 25, 1999. The Union filed a grievance contending the discharge violated the agreement. At hearing the parties agreed there were no jurisdictional issues involved and the matter was properly before the arbitrator.

The issue is whether the Grievant was discharged for just cause, and if not, what is the proper remedy. The agreement specifically provides that the employer may not discharge an employee who has attained regular status without just cause.

The Grievant was a volunteer reserve deputy in the Ravalli County Sheriff’s office from 1990 to 1995. He was appointed to a regular deputy sheriff position on April 21, 1995. As a reserve deputy he was suspended in 1991 because of his involvement in an aggravated assault case. He was reinstated the following year. He received a written reprimand in July of 1997 over unacceptable behavior as a deputy, including lack of judgment, failure to respect fellow officers and inability to provide a truthful account of events. In June of 1998, he as promoted to sergeant.

The Grievant worked the night of January 22, 1999, and the early morning of January 23, 1999, from 2:00 a.m. until 8:00 a.m. on the 23^rd , he was the ranking deputy of the shift and was the field training officer for trainee Deputy Kuepfer. As sergeant, he was the supervisor of all the employees on his shift. Early on during the shift, while on coffee break with other deputies, the Grievant discussed practical jokes which had taken place. Later during the shift while in the staff room, with two other deputies, he decided to play a joke on his friend and fellow deputy, Detective Potter.

The Grievant went into a locked storage room, got a container holding a detection powder called “Jensen Violet,” and returned to the staff room. He told deputies McConnell and Kuepfer what he intended to do. Deputy Kuepfer declined to observe what the Grievant was up to because of his probationary status. Deputy McConnell, however, followed the Grievant as he proceeded to pull the joke. McConnell had never been around Jensen Violet before, but he thought the Grievant knew what he was doing.

Jensen Violet is a brand of visible stain detection powder that is used by law enforcement personnel to catch thieves. When the thief touches a treated object, traces of the stain material cling to his hand or person. Speckles of the stain color will appear upon contact with the perspiration exuded by the sweat pores. Trying to wash it off only causes the stain to spread. On most articles, visible stain detection powders cannot be removed without destroying the color or surface of the article. A technical manual published by a distributor of theft detection materials contained this warning: Do not attempt field test without prior testing in a controlled situation.

There were no directions on the container and the Grievant had never used Jensen Violet before. He had seen Detective Maus use it once, but it did not work. He assumed it was safe. Together with McConnell, the Grievant entered the detectives’ offices. At Potter’s desk, he dipped a brush into the bottle and painted Potter’s telephone receiver and key pad and his computer mouse. He did not think he was getting enough of the substance on the objects so he applied some more. The Grievant then went on and painted another detective’s telephone, a door handle and a light switch. As it turned out, he used far too much of the powder. Deputy McConnell was present during the Grievant’s painting of the objects, but he did not apply any himself. The Grievant then returned the Jensen Violet to the storage room and later helped Deputy Kuepfer with paper work. The Grievant had Deputy Kuepfer write a false report that was to be read at the morning meeting. He dictated to Kuepfer what was in the report, namely an alleged charge against a man for having sexual contact with a chicken. The Grievant thought it would be funny when read.

Detective Potter came to work at 7:55 a.m. on the 23^rd, flipped the light on, went to his office, turned his computer on and checked the telephone for messages. He then joined the morning briefing and talked to other deputies including the Grievant. The Grievant went home shortly thereafter.

After the briefing and talk with fellow deputies, Detective Potter returned to his office, turned on his computer and used his telephone. He noticed his computer mouse was purple. He wiped his telephone number pad off and it turned purple. He attempted to clean objects, but could not. He noticed the floors were contaminated with the coloring and it was spreading throughout the entire office because of pedestrian traffic. The more he tried to clean it up, the farther the substance spread.

Potter eventually was able to contact Detective Maus who told him to stop trying to clean up the mess. Together, Detectives Potter and Maus placed various pieces of office equipment into plastic bags. Still, the purple stain spread throughout the staff room, and hallway and outside to the sidewalk.

After Sheriff Johnson arrived at the office and made inquiries regarding who was responsible for putting the stain powder on various objects, he had Deputy McConnell and the Grievant report to his office. McConnell arrived first and told the Sheriff that he and the Grievant went into the detectives’ offices and the Grievant applied the powder to several objects. McConnell said he was present, but he did not apply any powder. The Sheriff immediately suspended Deputy McConnell. The Grievant arrived soon after the Sheriff ended his meeting with McConnell. The Sheriff testified that he asked the Grievant who was involved in the incident and the Grievant said he acted alone. The Sheriff asked him who else was in the room when he applied the powder and the Grievant told him he was alone in the room. The Sheriff asked again who was in the room and the Grievant again said he was alone. The Sheriff told the Grievant he had one last chance to tell the truth. The Grievant then said McConnell was in the room during the time the Grievant applied the powder, but McConnell did not apply any of the powder. The Grievant said it was meant to be a joke. The Sheriff said the incident itself was serious and the Grievant had compounded it by lying to him not once but twice. The Sheriff wrote a detailed report of the events of January 23^rd, including his interview with the Grievant.

According to the Grievant, the Sheriff asked him who else was involved and he said that he acted alone because he alone spread the powder. When the Sheriff asked him who else was in the room, he said McConnell was.

Sheriff Johnson suspended the Grievant on Saturday, January 23^rd and told him the incident would be re-examined on Monday. He told the Grievant to have a written report about the incident on his desk when he reported on Monday. The Grievant did so.

On January 27,1999, the Sheriff wrote a letter to the Grievant to confirm the suspension of the Grievant. The suspension was for the purpose of giving the Sheriff an opportunity to conduct an investigation.

The Sheriff’s department spent considerable time investigating the incident and arranging for the ensuing clean up. In monetary terms, the clean up cost $1,421.76 for labor and materials.

On February 12, 1999, the Sheriff sent a notice of discipline letter to the Grievant detailing the policy and procedure violations he had committed. He offered the Grievant an opportunity to again present his account of the incident and any evidence he had related to the incident.

The Grievant responded to the Sheriff’s February 12^th letter by writing that he only had one dispute with the letter. The Grievant said he did not ever deny his involvement in the incident, but he did at first deny McConnell’s involvement in it.

On February 25, 1999, the Sheriff sent a letter of termination to the Grievant. He acknowledged the Grievant did not deny his own involvement in the incident. He reiterated that the Grievant lied regarding the involvement of McConnell. The letter stated that the termination was because of the nature of the Grievant’s actions, his subsequent lack of truthfulness and his past performance. The letter referred to the February 12^th letter he had sent the Grievant in which the Sheriff had delineated the acts of the Grievant that amounted to offenses — spreading the substance, involving McConnell, lying about it and the July 1997 letter of reprimand.

The Employer has published comprehensive polices and procedures that prohibit the kind of conduct that the Grievant engaged in. The Grievant was aware of the Employer’s policies and procedures.

The employer contends its discharge of the Grievant was for just cause. The Grievant not only deliberately contaminated the Employer’s office equipment and property, he recruited two subordinate deputies to accompany him. The tangible damage he did was significant, but the intangible damage was devastating. His act disrupted the normal duties of the office, it polarized the environment in the department and caused an internal investigation within the department thereby reducing the manpower available to protect the county’s citizens. Had any citizen deliberately caused damage to the extent that the Grievant did, he would have been charged with a felony.

The Grievant was the ranking officer on the shift and as such was expected to set an example for those under his commend. His claim that he did not know the substance’s potential for damage is no defense. He was grossly inefficient in the performance of his official duties. No reasonable person would think that the officers upon whom he played out his ill-conceived plan would think his actions were morale building and non-invasive.

Truth, veracity and moral character are the backbone of the law enforcement system. The Sheriff must be able to rely on the honesty of his deputies. The Grievant was, at a minimum, less than truthful with the Sheriff when he answered the Sheriff’s questions. His interaction with the Sheriff on the day in question bordered on insubordination. His lack of truthfulness is willful disobedience of the order that the Sheriff gave him when the Sheriff told him to tell him about the incident.

The Grievant deliberately chose to lie about something he contended was a joke. If he did that, he would lie about serious matters. His veracity when responding to questions from the public or in court would be doubted. The Grievant’s conduct since the incident shows he lies.

While on duty, the Grievant failed to fulfill his duties and responsibilities as an officer of the department. He frivolously wasted resources while engaging in his destructive act. He failed to be responsible for executing his duties, maintaining discipline, adhering to rules and properly caring for and using equipment, supplies and facilities. He chose to set an example that bordered on criminal activity and he now calls it a practical joke.

The punishment the Grievant received was not too harsh. He committed a willful and malicious act that was indefensible and that caused great damage to the department.

As a sergeant, the Grievant was expected to supervise all officers on the shift. All officers looked to him for guidance and leadership. He was the ranking officer on duty. Rather than carry out his supervisory responsibilities, he engaged in reprehensible, irresponsible behavior and involved a subordinate in the behavior. He, as field training officer to one of the deputies, invited that deputy to accompany him on his mission.

The Grievant’s act went far beyond the bounds of a practical joke. His entry into the detectives’ offices was for the purpose of maliciously destroying property. He committed an act that could never be considered within the realm of his professional duties.

The Grievant used his supervisory status to enter the secured detective area. One of the responsibilities of his position as supervisor was to be sure that area was not improperly entered. The fact that the person who should have guarded against this kind of act committed the act serves to justify the Grievant’s discharge. Not only did the Grievant behave in an unsatisfactory manner, he demonstrated to the officers present the standard he expected them to follow. He spent considerable time perpetrating this malicious prank when he should have been attending to his duties as a sergeant. The deputies in the office at the time of the incident represented the entire base of officers available to respond to law enforcement demands in the county. Because the Grievant preplanned his activity, the entire shift was in the office at the time.

The monetary costs to the Employer caused by the Grievant’s act are important but they are secondary. His act brought discredit and disrepute upon the department. His act evidenced a disregard for effective law enforcement and its responsibility to protect people. He placed county residents in jeopardy. They would not have been so placed if the officers under the Grievant’s command were on the street in their assigned patrol areas as they were supposed to be. Instead, every on-duty officer at the time of the incident was in the office to take part in or observe the prank done by the on-duty sergeant. An audience was more important to the Grievant than his duty to protect county residents.

The Grievant violated several provisions of the Employer’s personnel policies. He was grossly inefficient in the performance of his official duties and there was just cause for his dismissal

The Employer cannot reinstate the Grievant to his position because he cannot carry a firearm. Subsequent to his termination, a court issued an order restraining the Grievant from engaging in certain conduct toward his wife or child. It is, therefore, illegal for him to possess a firearm. He is constructively barred from returning to his former position.

The Employer had reasonable rules prohibiting the kind of conduct in which the Grievant engaged. The Grievant knew about the rules, which were reasonably related to the orderly and efficient operation of the office. The Employer conducted a fair investigation and determined the Grievant violated the rules before discharging the Grievant. There is substantial evidence of the Grievant’s guilt. The Employer has applied its rules without discrimination. Discharge was reasonable based on the seriousness of the offense and the Grievant’s record with the Employer.

The Union contends the Employer did not have just cause to discharge the Grievant. The Employer had to prove by clear and convincing evidence that the Grievant engaged in the misconduct specifically charged when he was terminated and that a fair and just penalty is discharge.

A quantum of proof less than beyond a reasonable doubt, but more than just the preponderance of the evidence is required when the allegations against the discharged employee are serious or potentially damaging to the reputation of the accused. It is generally accepted that the clear and convincing standard of proof is necessary in cases involving allegations of wrong doing, and accordingly the Employer must prove by clear and convincing evidence that the employee engaged in the misconduct and that discharge is the proper penalty.

The clear and convincing standard of proof is based, in part, on the stigma attached to a discharge for misconduct as opposed to a discharge for performance deficiencies . Reasonable doubt raised by the proofs should be resolved in favor of the accused. Clear and convincing evidence is evidence in which there is no serious doubt about the correctness of the conclusion drawn from the evidence.

It is firmly established that a discharge must stand or fall upon the reasons given at the time of the discharge. Attempts to expand the reasons given for the discharge should be rejected.

After terminating the Grievant, the Employer put forth new allegations and new justifications for its actions that were not mentioned in the letter of termination. When Sheriff Johnson replied to the Grievant, he mentioned for the first time that a reason for the termination was that the Grievant and members of the shift were in the office and not on the street.

During the hearing, the Employer asserted for the first time that the Grievant’s meal breaks were too long and that the decision to terminate him was, in part, based on allegations about his off-duty conduct in 1992, before he was a deputy sheriff.

Arguments in support of a discharge based on matters not asserted at the time of the discharge suggest the employer itself has doubts that the original grounds for discipline have been proven or are sufficient to justify the discipline. New evidence or argument should not be admitted at hearing unless some special reason is shown for this not having been brought out before.

There is no dispute about the Grievant’s misconduct, he admitted it and is willing to accept an appropriate penalty including paying for the clean up. It is important, however, to specify what the Grievant did not do. He did not hurt anyone, he did not strike or threaten anyone, he was not malicious, he did not abuse the public, he was not charged with any crime, and he did not resist any orders.

There is no clear and convincing proof that the Grievant lied to the Sheriff. He answered accurately when he said he was the only one involved because he alone spread the powder. He denies he said he acted alone when he was asked who else was in the room. It was common knowledge that Deputy McConnell was in the room. To deny common knowledge would be foolish. It should be noted the Sheriff could have, but did not tape the interview.

The critical issue is whether termination was the fair and reasonable response to the Grievant’s actions. There are several reasons why termination was neither fair nor reasonable.

The primary purpose of discipline is to rehabilitate where possible. Discharge is appropriate only when the offense is extremely serious and rehabilitation is not possible. There is no evidence that the Grievant cannot be rehabilitated or that he cannot continue to be a satisfactory employee.

The discipline imposed was far outside the norm imposed in similar cases. When horseplay does not result in injury or serious threat of injury, termination has not been customary.

There is no evidence the Grievant’s actions created an environment where other deputies lost their trust in him or in his ability to supervise. There is no evidence that other deputies will hesitate to work with him or to respect his authority.

Although there is no history of a mess quite as large as the one created in this instance, there is a history of practical jokes in the office and a history of the use of detection powder in practical jokes. While there are rules against practical jokes, there is no history that they have been enforced. Lax enforcement of rules may lead employees to believe the conduct in question is sanctioned by management.

There was no requirement that the Grievant have officers on his shift on patrol rather than in the office. Officers are on patrol except when they need to do paperwork. Paperwork should be completed when activity is slow. There was no rule requiring a certain number of officers to be on patrol. Just cause requires that employees be informed of a rule, the infraction of which may result in suspension as discharge, unless the conduct is so clearly wrong that specific reference is not necessary.

The Grievant was wrong and is prepared to accept a reasonable punishment, but he does not deserve to be fired. The Employer contends he cannot be reinstated because of a protection order issued by the justice of the peace. However, there has not been a reported case of a police officer being prosecuted for illegal possession of a firearm under the federal statute cited by the Employer. Interpretations of federal criminal law are outside the scope of the arbitrator’s authority.OPINION

The Employer had the burden to prove by clear and convincing evidence that it had just cause to discharge the Grievant. Such evidence leaves no serious doubt about the correctness of conclusions drawn therefrom. Simply put, the quantum of proof necessary was one that goes beyond a mere preponderance.

Most of the essential facts in this case are not in dispute. The Grievant admitted he used the detection powder to play a joke or prank on fellow officers. He also admitted he used too much and it caused considerable damage to the offices and equipment. He denied he lied to the Sheriff when he was first interviewed by him. In a subsequent letter to the Sheriff, however, he acknowledged he had been untruthful. The facts describing the events are straightforward. The focus of the controversy is on the degree of penalty imposed by the Employer. The Union argues that discharge was too severe.

Contrary to the Union’s argument, the Employer did not add new allegations to the reasons the Grievant was discharged after he was notified of the reasons for disciplinary action on February 12, 1999. In his letter to the Grievant on February 25, 1999, the Sheriff stated the reasons for discharge: (1) his conduct on January 23, 1999, (2) his untruthfulness, and (3) his past performance. It is true that the Sheriff explained in great detail in other letters the consequences of the Grievant’s behavior and he set forth specifics with respect to policy and procedure violations he violated, however, no new charges were added.

When the Sheriff replied to the grievance on March 11,1999, he did not give as a reason for the discharge the Grievant’s and others presence in the office when they should have been on patrol. He stated a consequence of the Grievant’s conduct. The Grievant’s engagement in planning and carrying out the prank caused members of the unit to be in the office rather than on the street where the Sheriff thought they should be. As to the Grievant’s allegedly taking long meal breaks and his off-duty conduct in 1992, no weight has been given here to those assertions. There is ample evidence on the record to support a conclusion regarding the matters asserted at the time of the Grievant’s discharge.

The Sheriff’s testimony regarding what was said during the Grievant’s interview on January 23, 1999, is more credible than the testimony of the Grievant. The Grievant’s undated letter to the Sheriff belies the Grievant’s testimony. In the letter he stated that he at first denied McConnell’s involvement. At the time the Grievant denied the presence of anyone else, he did not know that the Sheriff already had found out McConnell was present. While it may have been common knowledge among subordinates, there is no reason to believe nor evidence to support a conclusion that the Grievant was aware the Sheriff knew McConnell was present. The Grievant had just arrived and went in to see the Sheriff. There was no way for him to know what the Sheriff had found out.

Although the Grievant’s actions did not have the negative consequences enumerated in the Union’s arguments, they had numerous other severe effects. The monetary damage alone was substantial, however, it was secondary to the intangible damage it did in terms of its adverse impact on the office. There was lost productivity time of employees who were involved in the clean up and investigation. Moreover, it is reasonable to infer the reputation of the office as a law enforcement agency was discredited in the public’s eye. The Grievant’s standing as a responsible, duty-oriented supervisor undoubtedly was adversely affected. He was a sergeant, the shift leader. His duty was to supervise his subordinates in a serious manner and to set an example for them. Instead of conducting himself with dignity, he engaged in irresponsible pranks.

There may have been jokes and pranks played by others in the past. There is no evidence, however, that any such prank caused damage to property or disrupted office functions. It is the severity of the prank that distinguishes serious misconduct from practical jokes that have few, if any, harmful consequences.

In Broward County, 110 LA 581 (1998 Hoffman), the arbitrator articulated the difference between minor pranks that cause little harm to employees or the employer and incidents which by their very nature, are harmful. His review of recent cases led him to conclude there are degrees of pranks and when they become harmful to employees and/or the employer’s operation, they are serious and require serious discipline.

The Grievant’s conduct was extremely serious. Although he did not intend the consequences of his action, his use of the detection substance without knowing how much to use, without inquiring about its proper use and potential for extensive damage amounted to grossly negligent behavior. Using a substance that was kept under lock and key without knowing or finding out about its potential for damage calls into question the Grievant’s judgment.

The Grievant was a supervisor. He was in charge of the shift. He was expected to set an example for his subordinates. Instead, he engaged in conduct that caused his devotion to his duties and responsibilities to become suspect. While there is no direct evidence in the form of testimony from his subordinates, it is reasonable to conclude that the Grievant’s actions were belittling to his supervisory status and, therefore, subordinates would have less respect and trust for him than they had prior to the incident. He was the instigator of, and had total responsibility for the whole incident. It amounted to a serious breach of the Employer’s rules.

The conduct of the Grievant in applying the detection powder in excess and causing extensive damage to the Employer, both tangible and intangible, was a severe offense. That fact, coupled with the fact he was untruthful with the Sheriff during the interview and was not truthful in the 1997 incident, are sufficient to justify his termination and to conclude that any attempt to rehabilitate would not be successful. Discharge was a fair and reasonable response to his action. The Employer proved by clear and convincing evidence it had just cause to terminate the Grievant.

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.