State of Ohio and Fraternal
Order of Police
OPINION AND AWARD
In the matter of Arbitration
Order of Police, Ohio Labor Council, Inc.
State of Ohio, Department of Public Safety
An arbitration hearing was conducted on May 25, 2006, in the offices of
the Fraternal Order of Police, Columbus, Ohio.
The parties stipulated the issue in this case
to be: “Was the Grievant
Debra Adkins given a three (3) day fine by the Employer for just cause?
If not, what shall the remedy be?”
Debra Adkins has
been an Enforcement Officer for approximately sixteen (16) years with the Ohio
Investigative Unit of the Ohio Department of Public Safety.
At the time of the incident giving rise to this matter, she was assigned
to the Columbus District and resided in Scioto County.
The incident occurred on February 3, 2005, when
Officer Adkins and her partner, Christopher Jones, were assigned to work in
Scioto County. One of their work
locations was the Silver Moon Bar in Portsmouth, Ohio.
The Silver Moon establishment had been the
subject of prior complaints and investigations.
OIU officers had observed drug deals on May 22, 2004, and December 3,
While working in Portsmouth, Agent Adkins was
contacted by the Portsmouth Drug Task Force.
This Task Force, which included the Portsmouth Police, had previously
requested assistance in dealing with this bar.
That request was made to the Assistant Agent in Charge, Wade Sagraves.
Agents Adkins and Jones met with Officer Todd Bryant and Patrolman Steve
Timberlake. During that meeting Adkins and Jones agreed to assist the officers.
The plan was for Agent Jones to enter the bar and attempt to make a drug
purchase. The Task Force provided
the funds for the purchase.
Agent Adkins drove Agent Jones to the bar and
waited outside while he made the drug purchase. The next day Agents Jones and
Adkins informed Assistant Agent in Charge Sagraves what had happened the night
An administrative investigation was conducted
to determine if Agents Adkins and Jones had violated any departmental policy.
At the conclusion of the investigation,
discipline was recommended. The
required pre-disciplinary meeting was held and Ohio Department of Public Safety
Director, Kenneth L. Morckel, informed the grievant that she would “be fined
for an amount equivalent to three (3) days’ pay for violation of the Ohio
Department of Public Safety Work Rule 501.02, (W) (1) Compliance to Orders,
…” (Joint Exhibit 2).
A grievance was filed April 26, 2005, contending the three day fine was
not for just cause.
CONTRACT PROVISIONS AND RULES:
19 – DISCIPLINARY PROCEDURE
bargaining unit member shall be reduced in pay or position, suspended
or removed except for just cause.
The Employer will follow the principles of
progressive discipline. Disciplinary action shall be commensurate with the
offense. Disciplinary action shall
Reprimand (with appropriate notation in employee's file);
However, more severe discipline may be imposed at any
point if the infraction or violation merits the more severe action.
The Employer, at its discretion, is also free to
impose less severe discipline in situations which so warrant.
The deduction of fines from an employee’s wages
shall not require the employee’s authorization for the withholding of fines
from an employee’s wages.
21 – WORK RULES
of Work Rules
The Employer agrees that existing work rules,
policies, procedures, and directives shall be reduced to writing and be made
available to affected employees at each work location.
To the extent possible, new work rules and directives shall be provided
to the Ohio Labor Council two (2) weeks in advance of their implementation.
In the event that the Labor Council wishes to present the views of the
bargaining unit regarding a new work rule or directive, a time will be set aside
at the regularly scheduled Labor/Management Committee meeting.
The issuance of work rules and directives is not grievable.
The application and availability of such rules and directives is subject
to the grievance procedure.
COMPLIANCE TO ORDERS
An employee shall
immediately and completely carry out the lawful orders of a supervisor, or
designated officer in charge, which pertain to the discharge of the employee’s
The case is straight forward in the minds of the Employer.
A directive was issued by Agent in Charge Cook and was violated by the
grievant. The Employer
believes a three day fine is appropriate.
The proper way for the enforcement action to
have taken place was for the agent to have obtained prior permission from the
Assistant Agent in Charge.
Because the agents had not properly
communicated with the members of the Task Force, Agent Jones was inside the
Silver Moon without any backup, thus putting himself in significant danger.
The Employer explained that there is a process
in place for obtaining the permission of the Director to conduct a long term
investigation. This process is
identified as a 61b order. There was an operating procedure in place.
The grievant violated this procedure and the three day fine is
Ms. Adkins was the senior officer, she had full
knowledge of what was going on, and she participated in the action.
The Employer notes that Agent Adkins admitted
that she was aware of the directive issued by Agent in Charge Cook.
Employer witnesses adamantly denied that this memo had any type of a
The Employer argues that there is no conflict
between Departmental Rule 200.06 and the operating procedure. The
employee was on state time doing her regular duties and thus was not covered by
the rules of the Task Force.
The Employer argues that this procedure was put
in place to ensure the safety of the agents involved.
The FOP argues that this case is
really about Chris Jones and the desire of the department to terminate him.
Rule 200.06 (2) c requires that agents be
cooperative with police agencies. The
FOP argues that there is a conflict between a departmental rule and the
direction of a supervisor and that the memorandum of 2003 is not timely and
should not trump the rule.
Because the grievant did not buy the drugs, FOP
argues that she did not commit the charged violation.
Even if there was a violation of the
memorandum, progressive discipline was not followed.
A three day fine is just too great a penalty.
The FOP also argues that the Employer is not
clear on what has been violated. Is
it a policy or a directive or a memo?
It argues that there is no clear evidence that the directive was ever
discussed with the agents. It notes that the Agent in Charge admitted she had
not submitted the memo to the FOP two weeks in advance.
FOP concludes that the memo was not submitted because it was not that
important to the Employer.
The FOP argues that the department had failed
in its response to the requests of the Portsmouth Police Department, and that
the actions of the supervisors are violations of Departmental Rule 200.06.
It notes that while the grievant was aware of
the 2003 Cook directive, she thought this directive was only in effect for
thirty (30) days. She stated that
she had been informed of the thirty (30) day sunset provision in training
provided by The Public Agency Training
Council (Instructor Jim Currey.)
The FOP comments on the quality of the
investigation conducted. No
transcripts were done nor were any recordings made.
In the testimony of the Agent in Charge SuAnn Cook, the issue was raised
that Agent Adkins was insolent in her responses during the investigation. FOP representative Jym Farmer, who had accompanied Agent
Adkins during the investigatory interview, testified that Agent Adkins was not
impolite or insolent during that meeting.
The FOP ascribes a motive to the Employer that
this case exists because of a desire to terminate Christ Jones.
While this is a plausible argument that case is not before this
arbitrator. I must judge this case on its own merits.
The FOP argues that the grievant did not
violate any of the three sections of the 2003 Cook memo.
While I do agree that this grievant did not violate Section B which deals
with funds for a drug purchase since the money came from the Task Force, I do
not agree that the grievant acted in total compliance of sections A and C.
While Agent Adkins did not go into the bar to
make the purchase, it is clear that the contact from the Task Force came to her
cell phone. When asked if they
would go into the bar the Grievant responded, “Chris can go in - I can’t.”
While the instant case was not before
Arbitrator Stein in the Chris Jones matter, he did conclude, “The
arbitrator recognizes that the Grievant, as a veteran employee, failed to take
the most appropriate course of action by failing to seek either Sagraves’ or
Cook’s approval before ultimately carrying out the plans for executing the
drug purchase. His colleague, Agent
Adkins, committed the same error and was given a three-day suspension.” 
This arbitrator concludes that the grievant did
make a decision to participate in a drug purchase operation without the prior
approval of either the Assistant Agent in Charge or the Agent in Charge.
The matter of backup (Section C) appears to be
an act of omission and based upon assumptions regarding the location of other
officers. Not withstanding this
conclusion, the lack of backup did potentially put Agent Jones in significant
danger and was an oversight shared by the grievant and Agent Jones.
Let us turn our attention to the existence and
the status of the 2003 Cook memo. There is no question the grievant knew of its existence.
The testimony that the grievant believed the memo only had a life of
thirty (30) days is either self serving at
worst or a misunderstanding at best.
Regardless of what a trainer might say, any
employee who believes that orders or directives are only in effect for thirty
days, has a responsibility to confirm their understanding rather than just
ignoring the directive.
The FOP rightfully notes that the Employer had
a responsibility to submit the memo in question to the FOP at least two weeks
prior to its implementation. Agent
in Charge Cook freely admits she did not do so.
Does that negate the memo? This
arbitrator must conclude it does not. A
grievance challenging the directive is not before this arbitrator.
The question still remains as to whether the
directive is reasonable according to the tests of just cause.
While the FOP would have me believe that this rule is not a big deal, it
appears on its face, to be aimed at protecting the safety of the employees.
Likewise I find no conflict between
Departmental Rule 200.06 and the 2003 directive. Employees are still expected to cooperate with local law
enforcement agencies but they are expected to gain supervisory permission before
While there was testimony regarding Agent
Adkins deportment in the investigatory meeting, I find that not to be an issue
in this case. A review of the
record fails to convince me that she was either impolite or insolent, but I also
do not find that to be a charge that has been made against her.
The FOP notes that this directive is not
utilized in other areas of the state and is limited to the region administered
by Agent in Charge Cook.
There is no contractual obligation to have
uniform directives across the state. Deputy
Director Pohlman testified that Agent in Charge Cook had the authority to run
her region as she determined best.
The directive, on its face, appears to be
intended to protect the safety of agents and therefore appears to be reasonable
and related to the mission of the Employer.
Absent any evidence of disparate treatment
wherein other agents in the Columbus region were permitted to participate in
drug purchases without prior approval, I must conclude that the directive was
violated. This finding
supports the charge that work rule 501.02 (W) was violated.
The only remaining question is the
appropriateness of a three day fine. Most
arbitrators are restrained in substituting their judgment for that of the
Employer. This concept is consistently noted by arbitrators and
forcefully restated in a decision by Arbitrator Charlotte Neigh when she states:
Company persuasively argues that an
should not be substituted for that of management when its decisions are made
without bias and in good faith. There is no evidence to support the Union's
suggestion that the Grievant was discriminated against because of his outspoken
Union activism. There is no basis for overturning management's decision. “ 
Having noted the inherent bias among most
arbitrators to give great deference to the reasoning of management in imposing
discipline, we are called upon to closely examine the exact wording of the
Collective Bargaining Agreement to be sure it has not been violated and that the
discipline imposed is not arbitrary or capricious.
Arbitrator Mitchell Goldberg reminds us in a 2002 case: “The arbitrator may only intercede if the agreement permits him to do so.” 
Article 19 begins with wording common in many
Collective Bargaining Agreements: “The
Employer will follow the principles of progressive discipline. Disciplinary
action shall be commensurate with the offense.”
This language requires the arbitrator to weigh
the competing claims in a balancing test to determine if the steps of progressive
discipline must be strictly followed or if there is a reason to determine
that a more severe penalty is commensurate
with the offense.
more instructive and specific language in this contract is found later in the
section which states: “However,
more severe discipline may be imposed at any point if the infraction or
violation merits the more severe action.”
arbitrator wrestled with similar language in a 2003 case.
In that matter I noted: “The
Attorney for the County points to the language in the contract which follows the
steps in the progressive discipline process and which states: “It is
recognized that some employee actions could require immediate suspension or
dismissal thereby eliminating some of the above steps.
type of language is common in many contracts. It is added to ensure the employer
has the ability to deal with those serious situations when progression is not
practical or appropriate. The employee who comes to work intoxicated, or engages
in the commerce of drugs, or steals, or a myriad of other infractions cannot
expect to move through the steps of the progressive discipline procedure. The
employee who is tardy can.” 
infraction is certainly more serious than tardiness but due to the language
cited, the burden clearly falls to management to show this arbitrator why it was
necessary to skip a verbal and written reprimand and move to the maximum fine
(three (3) days) that can be imposed under this contract.
the Employer advocate asked each witness about the seriousness of the offense,
and while each witness gave the expected affirmative answer, a major point
the Employer views this requirement as seriously as it says, why is it not a
procedure required throughout the department?
Assistant Agent in Charge Wade Sagraves gave all the expected answers, it was
apparent to this arbitrator by his answers and his demeanor that he viewed this
procedure as one of concern to Agent in Charge Cook but did not offer any
personal endorsement of its necessity.
Deputy Director Pohlman reiterated that Agent in Charge Cook could run her
region as she saw fit, but did not offer personal rationale regarding the
seriousness of the situation.
upon a review of all testimony and evidence, it is the judgment of this
arbitrator that the grievant was frustrated by the perceived lack of action on
the part of her supervisors. It
also appears that she wanted very badly to protect her good working relationship
with the Portsmouth Police Department and the Drug Task Force.
find that she did have knowledge of the Cook directive but did not consider it a
participated in a drug purchase which was in violation of the Cook directive and
she did not make a prior call to her supervisor.
Even though she was not the person making the drug purchase, she was a
actions and those of Agent Jones were viewed very positively by the Task Force,
but that does not excuse her failure to abide by the Cook directive.
must also consider that this is a seventeen (17) year employee with no
with the language of the contract I find that management did not assume its
burden to demonstrate the level of severity merited a three day fine.
do find this violation to merit more discipline than a verbal warning or a
is every reason to believe that a minimum fine would serve as a adequate
reminder of the seriousness of observing all supervisory directives even if the
employee is not in total agreement with that instruction.
discipline is the imposition of a one day fine.
The grievance is granted in part and denied in
part. The three day fine is to be
reduced to a one day fine and the grievant shall receive the amount representing
two days’ lost wages.
Issued at London, Ohio, this 25th
day of June, 2006.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028