Title: City of Sumner and Sumner Police Guild
THE MATTER OF THE GRIEVANCE
FOR THE CITY:
Goldberg, Fenrich & Makler
1104 Maple Street
Sumner, WA 98390
City of Sumner and the Sumner Police Guild are parties to a collective
bargaining agreement that provides that disciplinary action may be imposed
upon employees only for just cause. On
October 14, 1999, Officer Nikolao refused to report for duty when called by
Sergeant Bateman. On November 14, 1999, Officer Nikolao and Officer Dorr did
not provide backup assistance to Officer Engle.
The City issued a letter of reprimand to Officer Nikolao for his
refusal to report for duty and a two-day suspension without pay for his
failure to backup Officer Engle. Officer
Dorr was given a four-day suspension without pay for his failure to provide
backup to Officer Engle. The
parties agreed that the issues in dispute were properly before the arbitrator
for a decision on the merits.
parties agreed these are the issues: (1) Was there just cause to issue a
letter of reprimand to Officer Nikolao over his refusal to report to work, (2)
was there just cause to suspend Officer Nikolao without pay for two days for
failing to provide backup to Officer Engle, and (3) was there just cause to
suspend Officer Dorr without pay for four days for failure to provide backup
to Officer Engle? If there was
not just cause for the discipline imposed, what is the proper remedy.
parties were unable to agree upon which collective bargaining agreement
applies. The City contends the
agreement that was in effect on the date the events leading to discipline
occurred, October and November of 1999, should be used.
The Guild contends the agreement that was in effect when the discipline
was imposed, after January 1, 2000, should be used.
RELEVANT CONTRACT PROVISIONS
The following provisions of the parties’ collective bargaining
agreement are relevant to the issues in dispute:
The Guild recognizes the prerogative of the Employer to direct the
workforce and to operate and manage its affairs in all respects in accordance
with its responsibilities and authority.
Provided, nothing in this Article shall be deemed to waive the
Guild’s right to bargain any decision or change in any condition that
constitutes a mandatory subject of bargaining as defined by Washington law.
to the terms of this Agreement, it is understood and agreed that the Employer
possesses the sole right to operate the Police Department, regardless of the
frequency or infrequency of such exercise.
It is also negotiated that such rights include, but are not limited to
. . .
To suspend, demote, discharge, or take other appropriate disciplinary
action against employees, when warranted.
and discharge shall be only for just cause.
. . .
. . . The Arbitrator’s fee shall be shared equally by the parties.
1. Discipline and Discharge.
All discipline must be based upon just cause. Any discipline shall be imposed in a manner least likely to
embarrass the employee before the public or other employees.
Any disciplinary action imposed upon any employee may be the basis for
a grievance through the regular grievance procedure.
actions or measures shall include the following: verbal reprimands; written
reprimand or written letters of warning; suspension; demotion; or discharge.
Discipline shall be progressive in nature where appropriate.
October 14, 1999, incident.
Nikolao was off duty at his home on October 14, 1999.
He received a telephone call from Sergeant Bateman, who was the on-duty
shift supervisor at that time, about 4:00 p.m.
Sergeant Bateman told Officer Nikolao he wanted him to come in and work
the midnight shift starting at 11:00 p.m.
The midnight shift was Nikolao’s regular shift and it was the
practice of the Police Department to first go to an off-duty officer who
worked the shift that was short-handed when filling and unexpected vacancy.
The alternative to that procedure was to hold over on an extended-shift
basis one of the officers currently on shift or to call an officer in early
from the shift following the short-handed shift.
All three procedures had been used by the Department and Officer
Nikolao had filled in on a call-in basis in response to all of them in the
Nikolao had a part-time job working at an automobile dealership during his
off-duty hours. When he received Sergeant Bateman’s call, he told Bateman
he could not come to work at 11:00 p.m., because he had a commitment to his
job at the dealership. Bateman
told him he needed to make other arrangements for his secondary job and report
to work at 11:00 p.m.
Nikolao told Bateman he had responsibilities on his days off and asked if
Bateman could make other arrangements. Sergeant
Bateman told him the to-be-absent officer was sick and another officer was on
vacation, therefore, Nikolao was it and he needed him to come in at 11:00 p.m.
Officer Nikolao said he could not do it. Bateman said he was going to have to write it up.
Nikolao said okay.
his brief conversation with Sergeant Bateman, Officer Nikolao called a Guild
representative who told him that if Bateman was giving him an order, he had
better report for duty as told. Nikolao
then called Bateman about 5:00 p.m. and asked if Bateman was giving him an
order when they talked during their first conversation.
Bateman said he was but he did not believe it was necessary for him to
tell Nikolao it was an order. Nikolao
said he would report to work. Bateman
said he had already made other arrangements, therefore, it would not be
necessary for Nikolao to come in.
Sergeant Bateman’s first conversation with Officer Nikolao, another police
officer, Officer Strader, was present and could hear Bateman’s side of the
conversation. Officer Strader did
not think Sergeant Bateman was ordering Officer Nikolao to come in to work.
Officer Strader was waiting for Sergeant Bateman to do so, but he never
did. Officer Strader was confused
as to whether Sergeant Bateman had ordered Officer Nikolao to come in.
Officer Strader would have called
Bateman back to determine if he had given an order, had he been Officer Nikolao.
Strader believed there was a problem of communication.
Sergeant Batmen should have been clear in his conversation with Officer
Nikolao. At no time was there
hostility expressed during the conversation.
At no time did Bateman say, “This is an order.”
to the incident that occurred between Sergeant Bateman and Officer Nikolao,
there was no written policy regarding off-duty employment by police officers.
Since the incident, the parties have bargained such a policy.
Nikolao believed that, since he was off duty and not performing duties as a
police officer, he was entitled to more than Sergeant Bateman’s words, “I
need you to come in.” If he had been on duty he would not, and has not during
his six years as a police officer, expected a superior to preface a direction
with “This is an order.” Police
supervisory personnel do not preface their on-duty directions with words such
as, “This is an order.”
the initial investigation of Officer Nikolao’s at-first refusal to report to
work, the City failed to interview him. Chief
of Police Reisz remanded the investigation to Lieutenant Tucker, who had
performed the first investigation. Officer Strader was not interviewed during
the investigation. Lieutenant
Tucker interviewed Officer Nikolao and wrote a report to the Chief recommending
discipline be imposed on Officer Nikolao over the October 14, 1999 incident.
November 14, 1999 incident.
Sumner Police Department is organized, for patrol purposes, into three squads,
A, B and C. Each squad has a
supervisor, usually a sergeant, and up to three officers.
Sergeant Backus, Officers Dorr, Nikolao and Engle comprise the B Squad
and normally work from 11:00 p.m. until 7:00 a.m.
November 14, 1999, Sergeant Backus was not on duty.
He was working his part-time job at a local automobile dealership.
Several of the Sumner police officers had worked part-time at the
dealership at one time or another. It
was a common practice for on-duty officers to visit off-duty officers who were
working at the dealership. The
visits were social in nature and not related to police work for the most part.
On occasion, however, an on-duty officer left the dealership to respond
to his police duties when he received a call on his portable radio.
of Police Reisz has held his position with the City for five and one-half years.
When he came to the City as Chief of Police, there were no policies or
procedures, or disciplinary records kept. He
began setting policies and procedures. Prior
to the November 14, 1999 incident, he had been hearing reports of sloth and
laziness on the midnight shift, the B Squad’s shift. He had heard that the officers on that shift had not been
performing up to standard. They
were not doing their job. Sometimes
be believed members of Squad B spent an entire shift engaged in activities that
were not related to their work. He
and Lieutenant Tucker had reviewed radio logs and concluded there was little
activity on the midnight shift, except for Officer Engle.
There is no evidence that Chief Reisz had done anything to relate his
concerns to members of Squad B or to its supervisor, Sergeant Backus.
Dorr, who has 15 years of service, was the senior officer on duty on November
14, 1999. He and Officer Nikolao
spent approximately one hour, from approximately 12:30 a.m. until 1:30 a.m.
visiting with Sergeant Backus at the automobile dealership.
Officer Engle was engaged in patrol duties.
Officers Dorr, Engle and Nikolao were the only officers on duty at the
time. Officer Dorr was the shift
12:31 a.m., Officer Engle saw suspicious activity at Weber Meats, a local
slaughter house, and called it in on the radio to the dispatcher who repeated
it. The activity involved three men
in a pickup truck with a trailer in an unlit area.
Officer Engle provided dispatch with the license number of the truck and
trailer before he left his car. A
record check of the three men was run and it showed one was on active probation,
one had a suspended driver’s license and one was clean.
Engle was at Weber Meats for 14 minutes. Based
on his training and experience, he expected Officer Dorr or Officer Nikolao to
drive by the location to see if he needed assistance.
He expected them to do so because he had called in and reported a
suspicious situation during the early morning hours with three men involved, one
of whom was on active probation. When
neither officer came by, he cut his call short and left, but he probably would
not have done more than what he did even if one of the other officers had come
Engle did not ask for backup when he called in from Weber Meats, but he could
have done so at any time. He was in
communication with dispatch several times, and he could have waited for backup. The dispatcher could have sent one of the other officers to
backup Officer Engle, or Officer Engle could have asked dispatch to send someone
to his location. Both Officers Dorr
and Nikolao have always covered him when he asked them to do so.
Engle did not ask for backup because he believed it to be basic police work to
have fellow officers back him up in situations like the one he was in.
Not all officers handled their calls the same way.
Not all officers ask for backup the same way. It is discretionary with the individual officer how he acts.
Officer Engle would have backed up any other officer who had been where
is no written policy in the Police Department regarding officers backing each
other up. It is a long practice that domestic violence calls are responded to by
two officers. There have been officers who went to Weber Meats who did not
ask for backup. There was no
policy, written or verbal, that said calls to Weber Meats required two officers.
There is no such policy for any place in the city. Since he became Chief
of Police, Reisz has had the understanding that officers not otherwise engaged
would roll by any other officer who had pulled someone over, however, he had not
issued such a policy.
Tucker is second in command of the Police Department.
He has held a part-time job at the local automobile dealership for two
years and works there three or four times each week.
When he is at this part-time job, other officers come by and visit with
him on a regular basis. He has
never told any of them not to visit with him. There existed no rule or policy
that prohibited such visits. When
visiting him, officers leave on their own when they think it necessary to
respond to police business. He has
never had to tell them to go. At
times, visits lasted for over half an hour.
Officer Engle made his call to dispatch that he was at Weber Meats looking into
suspicious activity, Officers Dorr and Nikolao were visiting with Sergeant
Backus at the automobile dealership. Officer Dorr did not hear the radio
transmission, but Officer Nikolao did hear it.
Sergeant Backus did not recall anything about the incident.
Officer Nikolao heard Officer Engle call from Weber Meats he did not go to the
location because he did not believe Officer Engle was in any danger.
Officer Nikolao had been to Weber Meats on suspicious vehicles in the
past himself. He had been there on
routine patrol and did not call for backup. When he heard the call from Officer
Engle, it did not indicate that Engle was in danger.
Based on his own experience at Weber Meats, Officer Nikolao believed that
Officer Engle had contacted people who were dropping off livestock, which he
knew happened because he had seen it. He
was even more convinced people were dropping off livestock when Officer Engle
ran a check on the trailer plate.
Officer Nikolao did not hear any tension in Officer Engle’s voice, he was
satisfied no potential danger was present.
Officer Engle was at Weber Meats for 14 minutes.
At no time during his communications, did Officer Nikolao hear any
indication of tension in his voice, or any indication he was in danger.
1:40 p.m. the same morning, Officer Nikolao drove by Officer Engle as a courtesy
and without a request by Officer Engle for backup.
He did another drive by of Officer Engle at 2:07 a.m.
Officer Engle has requested that Officer Nikolao back him up in the past
and Officer Nikolao has done so, and he has done roll-bys on traffic stops
Officer Engle has made.
Nikolao has never been instructed that two officers need to go on Weber Meats
calls. No red flags were raised in
Officer Nikolao’s mind when Officer Engle called in about the Weber Meats
activity. If there had been, he
would have responded.
Dorr said he did not remember hearing the call on his portable radio when he was
visiting at the automobile dealership with Sergeant Backus.
It worked when he went on shift and his radio was on.
If he had heard the call, he would have responded by backing Officer
Engle up. Officer Dorr knew of no
policy, however, that stated how cover was to be done on Weber Meats calls.
Had he heard the call, he would have directed Officer Nikolao to respond
or he could have gone himself. A
number of officers have had trouble with their portable radios.
At times the transmission does not come through.
Chief Reisz found out about the November 14th incident, he appointed
an outside police officer from the City of Puyallup, Commander Collyer, to
investigate the matter. In addition
to the November 14th incident, the Chief wanted Collyer to look in
into the command climate surrounding Squad B.
Collyer did his investigation and wrote a report to Chief Reisz concluding that
Officer Nikolao should be disciplined for failing to respond to Officer
Engle’s call because he violated office-safety protocol.
He determined that Officer Nikolao was standing close to Sergeant Backus
and Officer Dorr when he heard the transmission. Collyer stated that if Sergeant
Backus heard Officer Engle’s call and yet failed to order either Officer Dorr
or Officer Nikolao to assist Engle, Sergeant Backus would have been in violation
of police policy. He also concluded
that Officer Dorr would have violated policy if it could be proved he heard
Officer Engle’s transmission.
his recommendations to Chief Reisz, Collyer stated that discipline was warranted
for Sergeant Backus because he allowed Officers Dorr and Nikolao to spend an
inordinate amount of time away from their duties while visiting him at his
off-duty job. Collyer had no
recommendation for Officer Dorr. He
said he could not prove Dorr was aware of Engle’s situation at Weber Meats,
although he, Collyer, did not believe Officer Dorr was unaware of it.
Collyer also included in his observations, opinions and recommendations
regarding the general behavior of Squad B.
He concluded, based on extensive interviews with officers, sergeants and
dispatchers, that personnel in the Police Department had pronounced negative
feelings about the performance of Squad B.
The negative aspects of Squad B’s performance were carried out with
full knowledge of Squad B’s sergeant, Sergeant Backus, other employees
Collyer’s opinion, the perception of the performance of Squad B by other
employees was very negative and it had an impact on the morale of the
Department. Collyer cited examples
of unacceptable behavior by officers under Sergeant Backus’ supervision and
commented that such behavior occurred with Sergeant Backus’ knowledge.
In his concluding paragraph of his opinion of the command climate of
Squad B, Commander Collyer stated:
is my opinion that the members of Squad B are not purposefully refusing to
provide routine back-up and drive-bys of Officer Engle when he made
self-initiated contacts. I believe
that officers of Squad B do not provide the back-up because their supervisor
does not require it. The activity
of the squad negates the argument that they are too busy doing their own
activity to assist Officer Engle.
Collyer testified he recommended discipline for Sergeant Backus and Officer
Nikolao, but not for Officer Dorr. However,
he later came to realize Officer Dorr was in charge of the shift and
should have been patrolling rather than talking. Collyer went on to say the policy manual does not state when
officers are to backup each other, radios do not work all the time and at times
one radio will work and another will not. He
said Officer Dorr’s radio may not have picked up the transmission.
He said if Officers Dorr or Nikolao had been on calls at the time of the
Weber Meats incident, he would not have expected the dispatcher to break one of
them off his call to backup Officer Engle.
Officer Engle would have had to stand by and wait until a backup was
available, or solo on the call. Collyer
would not have expected the Sumner dispatcher to ask Puyallup Police to come
help Officer Engle at Weber Meats.
Reisz used Commander Collyer’s report and decided to impose discipline on
Officers Dorr and Nikolao. He suspended Dorr for four days.
He issued a written reprimand to Officer Nikolao over the October 14th
incident that had been investigated by Lieutenant Tucker, and suspended Officer
Nikolao for two days for the November 14th incident.
He did not talk to Officer Strader before he decided to punish Officer
Nikolao for the October 14th incident.
He did not believe Officer Dorr did not hear Officer Engle’s
SUMMARY OF THE CITY’S POSITION
City contends the discipline imposed on both Officer Nikolao and Officer Dorr
was justified and within reason, given the gravity of their offenses.
Both were on duty along with Officer Engle on November 14, 1999.
Officers Dorr and Nikolao were at the auto dealership for an hour
visiting with Sergeant Backus while Officer Engle was patrolling without
Officer Engle notified dispatch of his location and dispatch repeated it, both
Officers Dorr and Nikolao were listening to their portable radios.
The broadcasts were clearly audible to them.
Neither responded to a call that requested backup.
It is an officer’s duty to respond to radio transmissions.
Dorr’s and Nikolao’s conduct violated established ethical standards and it
deviated from the accepted practice of the Sumner Police Department to conduct
roll-bys or provide backup assistance to other officers.
Their conduct constitutes grounds for discipline.
is no evidence to support the argument that Officer Dorr’s radio was not
working. The radio log showed it
worked before and after the Weber Meats incident.
Nikolao made no effort to backup Officer Engle because he did not believe
Officer Engle was in danger. His
belief is contrary to every other witness’s testimony and should be considered
in that light. His testimony is
self-serving and does not represent appropriate conduct.
His conduct was contrary to accepted training and practices.
discipline imposed on Officer Nikolao was supported by the evidence and was
appropriate given the officer-safety issue that was raised.
Moreover, the level of discipline was appropriate because Officer Nikolao
has been disciplined previously for rules violations and failure to return to
respect to Officer Dorr, all witnesses, including Officer Nikolao, testified an
acting sergeant who did not monitor the radios or provide backup is derelict in
his duty and has deviated from the accepted practices of the Police Department.
The level of discipline given Officer Dorr was appropriate given the
officer-safety issue involved. Officer
Dorr had been disciplined previously over other incidents.
officers who testified said a superior officer expects his direction to be
followed without having to use the word “order.”
Officer Nikolao expected two standards: one while on duty, and another
when not on duty. His position
amounts to rationalization for his conduct in refusing to report as told by
Sergeant Bateman, and is contrary to known and accepted standards for all police
SUMMARY OF GUILD’S POSITION
Guild contends the City did not have just cause to discipline Officers Dorr and
Nikolao over the incidents in question. With
regard to the letter of reprimand issued to Officer Nikolao, the City failed to
sustain just cause and failed to meet the burden necessary in the areas of
notice, fair investigation, and proof that a violation of a rule occurred.
was no written policy that stated how off-duty employment and police duties were
The City bargained an off-duty employment policy after the incident
involving Officer Nikolao occurred as a remedial measure.
The policy now makes police duty primary to any other type of employment.
There was no notice that the likely consequence of not being available to
work an extra shift would result in discipline.
was not a full, fair and complete investigation into the October 14th
incident to determine if Officer Nikolao was guilty.
During the initial investigation he was not interviewed to get his side
of the story. Instead of throwing
the whole matter out, the Chief remanded it to the same person who had already
concluded Officer Nikolao was guilty. The
City also failed to interview an officer who was present and heard Sergeant
Bateman’s telephone call to Officer Nikolao.
City failed to establish that Sergeant Bateman gave an order and that Officer
Nikolao knew he had received an order to report for duty.
While Sergeant Bateman thought Officer Nikolao
should have known he was being ordered to report for duty, Officer
Nikolao did not know. In fact, he
called Sergeant Bateman back to determine if an order had been given.
the November 14th incident, Officers Dorr and Nikolao were visiting
Sergeant Backus at this off-duty employment site.
Sergeant Backus did not hear the call made by Officer Engle.
No discipline was meted out to Sergeant Backus as a result of not hearing
the call even though he was present at the same location and time for which
Officers Dorr and Nikolao were disciplined.
was no notice to either Officers Dorr or Nikolao that any officer who goes to
Weber Meats receives automatic backup. No
policy exists that states backup occurs for activity at Weber Meats.
Different officers would respond differently based on their training,
experience and knowledge, and/or the training, experience and knowledge of the
officer involved in the contact.
the City wanted to establish a policy that officers automatically backup other
officers who make contacts in places like Weber Meats, or in similar situations
such as those present in this case, it should have trained all police officers
and provided them a written policy upon which they could rely and operate.
In this case, the City tried to create a policy where none existed.
City did not conduct a full, fair, complete and objective investigation into the
incident prior to disciplining Officers Dorr and Nikolao.
Commander Collyer did nothing more than what he was directed to do by
Chief Reisz and Lieutenant Tucker. The
investigation was a witch hunt as evidenced by Collyer’s report on the command
climate in Squad B. The Chief had
become unenamored with the comradery of Officers Dorr and Nikolao and Sergeant
Backus, and used the Weber Meats incident as a catalyst to investigate Squad B
and to alter what he perceived to be behavioral problems and morale problems
was no proof that Officers Dorr and Nikolao committed the acts as alleged.
Officer Dorr did not hear Officer Engle’s radio call. That was the
conclusion Commander Collyer reached. Officer
Dorr stated that if he had heard the call, he would have responded to cover
Officer Engle. Yet, Chief Reisz
decided that Officer Dorr was at fault for not hearing the call and deserved to
be disciplined. Chief Reisz
replaced the investigator’s conclusions with his own in on effort to bolster
the discipline he decided was due Officer Dorr regardless of what the facts
regard to Officer Nikolao, although he heard Officer Engle’s call, the City
failed to establish that he violated any policy because there was no specific
policy that says an officer must automatically respond to cover another officer
at Weber Meats. There is not one
bit of evidence to show a history or practice of disciplining officers for
failing to cover another officer at Weber Meats.
There is no evidence to support that there is any policy that dictates
that an officer must cover another officer at Weber Meats.
the City concluded that Officer Dorr needed to be disciplined for not hearing
the call from Officer Engle, off-duty Sergeant Backus should have been
disciplined as well. Officers Dorr
and Nikolao and Sergeant Backus were all in the same area, but only Officer
Nikolao heard the call.
the Guild argues the City should have used progressive discipline on Officers
Dorr and Nikolao. At most, a letter of reprimand should have been given them.
reaction of Police Department management to the October 14, 1999, incident when
Officer Nikolao at first refused to report for an extra shift seven hours later
is perplexing in light of the fact Officer Nikolao called Sergeant Bateman back
a few minutes later and said he would come to work if he was ordered to do so.
The fact that Sergeant Bateman, during the first conversation, did not
make it unmistakenly clear to Officer Nikolao that he was to report for duty at
11:00 p.m., is evidenced by the testimony of both Sergeant Bateman and Officer
Nikolao. Sergeant Bateman
acknowledged he never used the word “order” in trying to persuade Officer
Nikolao to report for the extra shift.
was made of the absurdity of a supervisor having to precede each and every
direction to a subordinate with the term, “That’s an order.”
That absurdity disappears, however, when there is a genuine question in
the mind of the subordinate about the efficacy or necessity of the direction,
especially when the subordinate is not on duty in the quasi-military environment
of a law enforcement organization. It
behooved Sergeant Bateman to make certain Officer Nikolao understood in no
uncertain terms that he was being ordered to come in.
He failed to do so until Officer Nikolao called back after he had talked
to a Guild representative.
the time of the October 14th incident, no policy was in existence
that informed officers, who held secondary jobs, that they had to set aside all
commitments on their off-duty time and report for extra work in nonemergency
situations without questioning the need for the extra work or suggesting
alternatives. It was after the
incident in question here that a secondary employment policy was promulgated.
even more perplexing was the Department’s failure to interview Officer Nikolao
before the investigation report was made final concluding and recommending that
he be disciplined for failing to follow directives of a supervisor.
Also of importance was the failure to interview a witness who heard
Sergeant Bateman’s conversation with Officer Nikolao, Officer Strater. Officer Strader said he too would have been confused by the
ambiguous phrasing Sergeant Bateman engaged in when he was talking to Officer
was no notice to Officer Nikolao that the consequences of his not being
available would result in discipline. The
investigation following the incident was flawed.
There was no proof the officer was insubordinate because Sergeant
Bateman’s use of the language was ambiguous.
Officer Nikolao did not know he had received an order as evidenced by the
fact he checked with his Guild representative and then immediately called
to the November 14, 1999 incident there existed, according to the evidence on
the record, including the testimony of Chief Reisz, “a command climate”
problem in the Police Department among Squad B members.
He had heard officers were not performing their duties in the manner and
to the degree of attentiveness the
Chief expected of them. Officer
Engle was an exception in the Chief’s mind.
is no evidence that the Chief’s concern over Squad B’s performance was ever
communicated to the members of the squad. He
and Lieutenant Tucker had looked at radio logs and concluded that little
activity took place when Squad B was on duty, except for Officer Engle.
the November 14th incident, Officers Dorr and Nikolao were
disciplined. Officer Dorr testified
he did not remember hearing the radio transmission.
Officer Nikolao heard the transmission, but decided it was not necessary
to respond. Sergeant Backus,
according to the investigation report, remembered nothing about the incident.
Officers Dorr and Nikolao were disciplined for not responding to Officer
Engle’s contact, not for spending an hour visiting with Sergeant Backus.
The Department had condoned such visiting for a number of years.
based on elementary principles of just cause, it is difficult to understand the
Department’s reaction in disciplining Officers Dorr and Nikolao.
Sergeant Backus was present at the same location and in close proximity
to Officers Dorr and Nikolao when the radio call was made, yet he was not
disciplined. That fact calls into
question the reasonableness of the discipline to Officers Dorr and Nikolao.
was no notice to the officers in the form of a policy or rule, verbal or
written, that required all contacts at Weber Meats receive automatic backup and
cover. They did not know nor had
they been told that such a policy existed.
If the Department had wanted to establish a practice under which officers
cover each other under certain circumstances or at certain locations, it could
have done so in the form of a policy or rule.
have some discretion as to whether they will drive by another officer when he
has stopped someone. When Officer Nikolao heard the radio transmission, he
reasonably concluded there was no reason to respond.
There was no anxiety or stress in Officer Engle’s voice, nor did
Officer Engle once ask for backup.
Nikolao may well have been remiss in his duties, but not because he did not
respond to Officer Engel’s contact. It
was because he, along with Officer Dorr and Sergeant Backus, spent an hour
visiting. That behavior, however, was acceptable to the Department.
Lieutenant Tucker permitted
and condoned lengthy visits from officers when he was working at the dealership.
If discipline was to be imposed for prolonged visits, it should have been
imposed on all who participated in a nondiscriminatory fashion, however, the
discipline handed out to Officers Dorr and Nikolao was for not responding the
Officer Engle’s call, not for visiting with Sergeant Backus.
Collyer devoted a substantial part of his investigation report to the command
climate of Squad B. After quoting
numerous unidentified persons who had made disparaging comments about Squad B
and its members, he concluded by suggesting that Sergeant Backus was largely
responsible for the deficiencies he discovered.
He even suggested that Sergeant Backus be placed “on a period or
heightened supervision.” Yet,
with respect to the November 14th incident, he was treated
differently, which his being off-duty cannot be used as an excuse.
He was the squad’s sergeant. He
could have ordered either or both officers to go to Weber Meats.
If the Chief believed that Officer Dorr heard the call, he must have
concluded Sergeant Backus heard it because all three were in close proximity.
is a fundamental principal of the just cause standard that employees are made
aware of the kind of behavior that will lead to discipline.
No one can be expected to abide by rules that have not been communicated. If Chief Reisz had wanted and expected each and every call
made by an officer to be backed up by another officer, he should have made that
known to all the officers. As long
as officers have some discretion with respect to backing each other up, as was
the case here, they cannot be disciplined for exercising that discretion even if
all or most of their colleagues would have acted differently.
summary, I have concluded, based on the evidence on the record, that the City
did not have just cause to issue a letter of reprimand to Officer Nikolao over
his refusal to report to work; the City did not have just cause to suspend
Officer Nikolao without pay for two days for failing to provide backup to
Officer Engle; and, the City did not have just cause to suspend Officer Dorr
without pay for four days for failing to provide backup to Officer Engle.
2000-2001 agreement, which the Guild argues is applicable to this dispute was
not executed by the parties until May of 2000.
The grievance-prompting events, i.e., the notices to Officer Dorr and
Nikolao of the discipline to the imposed on them were dated April 14, 2000.
The 1997-1999 agreement, which was in effect at the time of the event for
which Officers Dorr and Nikolao were disciplined, expired after December 31,
1999. The facts and occurrences,
upon which the City’s decision to impose discipline was based, happened during
the 1997-1999 agreement and prior to its expiration. Since the facts or occurrences arose before the expiration of
the 1997-1999 agreement, and the action taken by the City that prompted the
grievances was after its expiration, but affected rights that were present under
the 1997-1999 agreement and which survived the expiration of the remainder of
the agreement, it is the 1997-1999 agreement that is applicable to the instant
grievances are sustained.
City of Sumner is hereby ordered to: (1) remove the letter of reprimand from
Officer Nikolao’s records and files; (2) make back pay to Officer Nikolao for
the amount he would have been paid had he not been suspended two days without
pay; (3) make back pay to Officer Dorr for the amount he would have been paid
had he not been suspended four days without pay; and (4) make Officers Dorr and
Nikolao whole for any lost fringe benefits they suffered as a result of their
Dated this the _____ day of January 2001.
Jack H. Calhoun
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028