Title: Ravalli County, Montana and Montana District
Council of Laborers, Local 1334
IN THE MATTER OF
THE UNION: FOR THE EMPLOYER:
J. ENGLUND DON K. KLEPPER, COUNTY MANAGER
J. ENGLUND, P.C. RAVALLI COUNTY
O. BOX 8358 P.O. BOX 5022
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 23rd , 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,
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 23rd,
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 23rd,
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
Sheriff Johnson suspended the Grievant on Saturday, January 23rd
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
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 12th 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 12th 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
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
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
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
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
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.
SUMMARY OF THE
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
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
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
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
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
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.
The grievance is denied.
Dated this ____day of January 2000.