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Title: City of Newark and Fraternal Order of Police
Date: July 19, 2006
Arbitrator: N. Eugene Brundige
Citation: 2006 NAC 129

OPINION AND AWARD

In the matter of Arbitration

Between

 

Fraternal Order of Police, Lodge 127

And

The City of Newark, Ohio

Regarding

FMCS Case Number 061026-00360-8
(Jon Bell)

 

APPEARANCES:
FOR THE STATE: 
Kathleen Madden, Employer Counsel   
Donna Sears, HR Director  
H. Darrell Pennington, Chief  
Kathleen Barch, Safety Director
FOR THE FOP/OLC:
Paul Cox, Chief Counsel
Jon Bell, Grievant
Frank Arnold. Staff Representative
Renee Engelbach, Paralegal
Darrin Logan, Associate

            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?”

BACKGROUND:

          Officer 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.

          Upon 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.

          The 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.

          The City Safety Director suspended the Grievant for twenty (20) hours which is the equivalent of two ten (10) hour shifts.

          The Grievant filed a grievance on July 28, 2005.  The grievance proceeded to arbitration pursuant to the collective bargaining agreement between the parties.

          At the arbitration hearing the parties agreed that the matter was properly before the arbitrator for a decision and award.

POSITION OF THE EMPLOYER:

          The 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. [1]

          The 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.

          On 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.

          Mr. 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.

          The 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.

          A few days later Chief Pennington learned about these incidents and initiated an investigation which led to the current arbitration.

          The 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.

          The 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.

POSITION OF THE FRATERNAL ORDER OF POLICE:

          Grievant Jon Bell has a clean department record with the exception of a written reprimand for missing a court date.

          The 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.

          The 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 legitimate fear.

          If 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.

          The 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.

          The FOP notes that the burden of proof rests with Management and argues that it has failed to meet that burden.

          The Grievant was off duty when the incident(s) occurred.

          The 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.” [2]

          The FOP notes that the Grievant did not identify himself as a police officer during the two incidents involved.

          The 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.

          The FOP reminds the Arbitrator that both Energy Cooperative employees testified the Grievant did not point the gun at them.

          The 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 plain sight.

          No 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.

          In conclusion the FOP argues the incident has been blown out of proportion by the Employer and that the FOP has proven seven points:

          (1)  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.

DISCUSSION:

          The 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:

1.     Code of Conduct 3.1.4 Employees 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.

2.     Code of Conduct 3.1.9.14 Employees 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.

The 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?

Most 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.

The employees testify that the Grievant was rude and angry.  The Grievant denies that allegation.

One 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 wrong. [3]

          In this case I find the testimony of the Grievant not to be credible on several points.

          Observing 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.

Throughout 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.

The FOP offered several defenses to the actions of Officer Bell.  Let us consider each of those defenses:

1.              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 of Conduct.

2.              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.

3.              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.

4.              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.

5.              The 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.

6.              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.

In 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 property. 

The 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.

Likewise I find that Grievant violated Code of Conduct 3.1.9.14 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. 

Arbitrator 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.” [4]

Officer 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. 

In a 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 USA.” [5]

No law 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.

Having 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 imposed.

Arbitrator Whitney McCoy stated the prevailing view of the role of the arbitrator in reviewing penalties back in 1945 when he wrote:

Where an 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.” [6]

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 situated cases.

          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.

_________________________ 
N. Eugene Brundige, Arbitrator

 
[1] These incidents are not before this arbitrator for determination but are offered by the employer as a record of prior discipline and counseling.

[2] FOP Post Hearing Brief, Page 4.

[3]  General Cable Co., 28 LA 97, 99 (Fleming, 1957).

[4] 107 LA 779 State of Ohio and FOP/ OLC

[5] 116 LA 545 City of Cuyahoga Falls and the Fraternal Order of Police.

[6] Stockholm Pipe Fitting Company, 1 LA 160 (1945)

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