of Newark and Fraternal
Order of Police
OPINION AND AWARD
In the matter of Arbitration
Order of Police, Lodge 127
City of Newark, Ohio
Case Number 061026-00360-8
An arbitration hearing was conducted on April 19, 2006, at the Newark,
Ohio City Building.
The parties stipulated the issue in this case to be:
“Was the Grievant disciplined for just cause?
If not, what shall the remedy be?”
Jon Bell is employed as a police officer in Newark, Ohio.
He has served as a police officer for approximately seven years.
On three occasions during 2004 employees of The Energy Cooperative, an
electric company serving the home of the Grievant, went to the Grievant’s
home in response to assignments given them regarding disconnecting and
reconnecting his electric power for non payment.
On each occasion the Grievant appeared at his door with a firearm in
his hand. The Grievant is alleged
to have ordered the employees to leave his property.
being made aware of these incidents, the Chief of Police ordered an
investigation into the matter.
Based upon the findings of that investigation, the Chief approached the
City Safety Director and the Prosecutor about possible criminal charges
against the Grievant. The
Prosecutor declined to prosecute and no charges were filed.
Chief then proceeded to levy administrative charges against the Grievant for
violation of two City of Newark Departmental Rules (1) Contact with the Public
and (2) Conduct On Duty/ Off Duty.
City Safety Director suspended the Grievant for twenty (20) hours which is the
equivalent of two ten (10) hour shifts.
Grievant filed a grievance on July 28, 2005.
The grievance proceeded to arbitration pursuant to the collective
bargaining agreement between the parties.
the arbitration hearing the parties agreed that the matter was properly before
the arbitrator for a decision and award.
OF THE EMPLOYER:
Employer notes that the Grievant received a counseling in April 2004 for an
incident in which he allegedly failed to deal with the public in a
professional manner. In July 2004
the Grievant received an oral reprimand for his conduct wherein a citizen felt
threatened by the conduct of the Grievant.
In November 2004 the Grievant received a written reprimand for neglect
of duty for failing to appear at a court proceeding. 
Employer notes that the incidents with Energy Cooperative employees began in
March 2004. On March 18 an
employee was dispatched to disconnect the electric service at the Grievant’s
home. The employee, Greg Hayden,
testified that when he arrived at the residence of the Grievant, he answered
the door with a gun in his hand held behind his leg.
The Employer says that the Grievant told Mr. Hayden that he had mailed
the check a week earlier. Hayden
left the property at that time.
November 16, 2004, Hayden was dispatched again to collect the past due
electric bill. Mr. Hayden
testified that he rang the doorbell and got no answer.
He went to the side of the house to disconnect the electric service.
The Grievant came to the door with a pistol in his hand.
Mr. Hayden testified that the Grievant informed him that a partial
payment had been made the day before. Hayden
indicated that he informed the Grievant that if the matter was not resolved by
the next day he would return to disconnect the service.
Hayden was then informed that the check was
returned for insufficient funds. His
supervisor asked Randy Van Winkle, another employee, to accompany
Hayden because of the Grievant’s actions the previous day.
two employees testified that no one answered the door and they proceeded to
disconnect the service. Grievant
came to the door with gun in hand and asked Hayden what he was doing.
An exchange followed regarding the status of the check. The Energy Cooperative employees testified that the Grievant
became angry and told them to “get the fuck off his property.”
As the employees were leaving, the Grievant wanted to know how soon the
power could be reconnected. The
Energy Cooperative employees responded that they could not reconnect the
service if they were not allowed on the property.
few days later Chief Pennington learned about these incidents and initiated an
investigation which led to the current arbitration.
Employer argues that the Energy Cooperative employees
wore uniforms that identified them as employees of the company and their truck
also had the company logo on the side.
Employer further argues that the behavior of
the Grievant violated the rules of the Department and that the discipline
imposed was reasonable for this offense.
While noting the existence of prior counseling and discipline, the
Employer Representative argues that the two day suspension is consistent with
just cause and progressive discipline even if the Arbitrator does not view the
prior discipline as relevant.
OF THE FRATERNAL ORDER OF POLICE:
Jon Bell has a clean department record with the exception of a written
reprimand for missing a court date.
FOP argues that the actions of the Grievant are reasonable, occurred when he
was not on duty, and are not a violation of the departmental rules.
Grievant had previously contacted local law enforcement about intruders on his
property and that the Grievant had received threats. The FOP believes that these concerns explain the actions of
the Grievant and argue that those actions are understandable due to his
any violation occurred, FOP argues that it could only be a minor offense and
that the principles of progressive discipline, which
begin with an oral reprimand, must be followed.
FOP notes that Chief Pennington testified that he received a complaint per
week about Officer Bell, but that the Grievant denied this was true.
Since the Grievant has not received discipline for such complaints, it
appears to the FOP that this unsupported claim is offered only to bolster the
City’s case regarding this grievance.
FOP notes that the burden of proof rests with Management and argues that it
has failed to meet that burden.
Grievant was off duty when the incident(s) occurred.
FOP notes that the Chief believed the conduct was criminal in nature but both
the Prosecutor and the Safety Director did not press charges.
Safety Director Barch says she could not find that the grievant had
violated the Criminal Conduct Section of the rules.
The FOP believes that this Criminal Conduct was “the crux of the
Employer’s case during the arbitration of this matter.” 
FOP notes that the Grievant did not identify himself as a police officer
during the two incidents involved.
FOP states that the Chief testified that he did not have a problem with an
officer displaying a weapon in his own home in a lawful manner.
Because no criminal charges were brought, the FOP argues that the
Grievant was displaying his weapon in a lawful manner.
FOP reminds the Arbitrator that both Energy
Cooperative employees testified the Grievant did not point the gun at them.
FOP points to the testimony by Captain Phillips
of the Newark Police Department regarding a visit to the Grievant’s home. The
Grievant went to the door with his gun in hand.
The officers entered the house and the gun was laid on the table in
action was taken by Captain Phillips regarding this behavior.
The FOP argues that Energy Cooperative employee Van Winkle testified
that the action was “kinda intimidating” and employee
Hayden said he was not intimidated.
conclusion the FOP argues the incident has been blown out of proportion by the
Employer and that the FOP has proven seven points:
The Grievant’s off duty conduct was not so egregious as to warrant
the discipline invoked; (2) The Grievant did not identify himself as a Police
Officer during these incidents; (3) The Grievant was not discourteous to the
Energy Cooperative employees; (4) The Grievant had received threats to his
life and property prior to the visit of the Cooperative employees; (5) The
Grievant was not guilty of any criminal misconduct; (6) The Grievant has a
clean department record; and (7) The Employer failed to follow the principles
of progressive discipline.
question of criminal misconduct is clearly not before this Arbitrator.
Many issues have been discussed in the course of this case but the
central charges before this Arbitrator are the two Department Rules which the
Grievant is alleged to have violated:
Code of Conduct
will, at all times, be courteous to the public. They will be orderly, attentive, and will exercise patience
and discretion in dealing with the public.
Code of Conduct
will conduct themselves both on duty and off duty in such a manner as to
reflect favorable on the police department.
Conduct which is unbecoming includes that which tends to bring the
department into disrepute or reflects discredit upon the employee as a
representative of the department; or that which tends to impair the operation
of efficiency of the department or employee.
only questions before this Arbitrator are: (1) Did the Employer prove the
Grievant violated one or both of these sections of the Code of Conduct and (2)
If so, is a two day (20 hour) suspension an appropriate penalty?
of the facts in this matter are not in dispute.
The Grievant did carry a loaded weapon to the door on several occasions
and did encounter employees of the Energy Cooperative at those times.
employees testify that the Grievant was rude and angry.
The Grievant denies that allegation.
of the major tasks of an arbitrator is to determine the credibility of
witnesses in cases where there is a conflict in the facts presented.
The arbitrator sits as the sole judge of credibility and quite often an
entire case will turn upon who the arbitrator believes.
Arbitrator Fleming noted this role in a case in 1957:
Arbitrators are not equipped
with any special divining rod which enables them to know who is telling the
truth and who is not where a conflict in testimony develops. They can only do
what the Courts have done in similar circumstances for centuries. A judgment
must finally be made, and there is a possibility that judgment when made is
In this case I find the testimony of the Grievant not to be credible on
the demeanor of the witnesses, I must believe the Grievant displayed anger and
ordered Energy Cooperative employees off his property in a rude and profane
manner. Both Mr. Van Winkle and
Mr. Hayden appeared very uncomfortable and apprehensive about offering
testimony in this manner. The
statement by Mr. Van Winkle that the actions of
the Grievant were “kinda” intimidating and the denial by Mr. Hayden that
he was intimidated, must be examined against the fact that the supervisor at Energy
Cooperative had enough concern about the safety of his meter reader, that he
sent a second employee with him.
The testimony of the Grievant contained many references to the fact he
did not recall a specific incident or happening.
This raises serious concerns in the mind of this Arbitrator.
A trained police officer who is so convinced of his innocence in this
matter and who has specific and detailed recall of those facts that are
helpful to his case, would be unlikely to have forgotten other facts that are
not as helpful.
the record, the testimony of the Grievant reflects that the Grievant has no
recollection of many events. I
find this testimony not to be credible.
offered several defenses to the actions of Officer Bell.
Let us consider each of those defenses:
Mr. Bell did not identify himself
as a police officer. I do not
find this to be a persuasive defense. In
a small town the occupation of persons is often common knowledge.
In addition, there can be no doubt that following the incident all
involved became aware that Mr. Bell was a
police officer. Self
identification is not necessary in order to violate that section of the Code
The Grievant had received threats
to his life and property prior to the visit of the Cooperative employees.
We know the Grievant filed at least one police report.
According to the testimony of the Grievant, the incidents giving rise
to the report(s) occurred at night and part of the concern is when the wife of
the Grievant was home alone. Even
giving the Grievant the total benefit of the doubt, when he arrived at the
door and determined that the persons outside his house were Energy Cooperative
employees, then he had a duty to either put his gun away or explain its
presence to the employees rather than risk frightening or intimidating them.
The Grievant was not guilty of
any criminal misconduct. As stated earlier, that issue has not been given any
consideration in this case. I
reject the argument of the FOP that just because the Grievant was not charged
criminally or found to be guilty of a crime, that his behavior is acceptable.
The Grievant has a clean
department record. In the
mind of this arbitrator this case stands alone.
While there was a written reprimand for failing to appear in court, I
do not find that event or reprimand to be reasonably
related to this offense.
Grievant was not discourteous to the Energy Cooperative employees.
I find the testimony of Mr. Hayden regarding the order to “get the
fuck off my property” and the collaborative evidence when Mr. Hayden
repeated this remark to another Cooperative employee, Ms. Taylor, to be
believable. This is clearly rude
and discourteous treatment.
The last two arguments put
forward by FOP are closely related: (a) The Grievant’s off duty conduct was not so egregious as to warrant the
discipline invoked: and (b) The Employer failed to follow the principles of
progressive discipline. The
concepts of progressive discipline do not require the implementation of every
step in each case. The
determination of the proper level of discipline is a balancing act between
establishing the lowest level of discipline necessary to correct the problem
and the level that is commensurate with the offense committed.
this case I find that Grievant Jon Bell violated Code of Conduct section 3.1.4
by carrying a gun while talking to Energy Cooperative employees on more than
one occasion and by profanely and angrily ordering the employees off his
Code section clearly states the required behavior is “at
all times.” There is no
specific exemption because the Grievant was on his own property.
Arbitrators and Courts have long held Law Enforcement Officials to a
higher standard of conduct than other employees.
find that Grievant violated Code
of Conduct 184.108.40.206 where it states: Employees will conduct themselves both on duty and off
duty in such a manner as to reflect favorable on the police department.
Marvin Feldman clearly articulated the view held by many arbitrators when he
said: “There is no doubt that
off duty activity on the part of a bargaining unit member that may be
embarrassing to the employer is subject to discipline by the employer.” 
Bell did not conduct himself in such a manner as to reflect favorable on the
police department. The Energy
Cooperative employees were merely doing their jobs and the behavior of Officer
Bell was rude and intimidating.
Cuyahoga Falls case Arbitrator Thomas Coyne expressed his strong feeling about
police officer intimidation when he commented on the testimony of a nineteen
(19) year old girl who had been pursued and intimidated by a police officer:
“Once the officer arrived at the nineteen year old girl's private residence,
she let him in as she was afraid not to do so. Imagine that! She could not
call the police for help, she said. Imagine that: Afraid of the police, in the
abiding citizen should ever be afraid of a police officer while that citizen
is properly performing his or her duties. The actions of Officer Bell were intimidating and had the
potential to instill fear in the Energy Cooperative employees.
found the grievant did violate both of the cited sections of the Code of
Conduct, the only remaining question is the reasonableness of the penalty
Whitney McCoy stated the prevailing view of the role of the arbitrator in
reviewing penalties back in 1945 when he wrote:
employee has violated a rule or engaged in conduct meriting disciplinary
action, it is primarily the function of management to decide upon the proper
penalty. If management acts in
good faith upon a fair investigation and fixes a penalty not inconsistent with
that imposed in other like cases, an arbitrator should not disturb it.” 
I find the
investigation was fair and that management did act in goof faith. No evidence
was presented that would indicate the penalty was different from similarly
It is not my
task to second guess the Employer in this case and determine that a lesser or
greater penalty should be imposed.
DECISION AND AWARD:
For the reasons
herein stated, the grievance is denied.
Issued at London, Ohio this
nineteenth day of July, 2006.
 These incidents are not before this arbitrator for determination but are offered by the employer as a record of prior discipline and counseling.
 FOP Post Hearing Brief, Page 4.
General Cable Co., 28
LA 97, 99 (Fleming, 1957).
 107 LA 779 State of Ohio and FOP/ OLC
 116 LA 545 City of Cuyahoga Falls and the Fraternal Order of Police.
 Stockholm Pipe Fitting Company, 1 LA 160 (1945)