Sunday, January 12, 2014

Refusal to submit to fitness for duty exam deemed insubordination, termination upheld

Arbitrator Jerry Fullmer has upheld a grievance filed by the Ohio Fraternal Order of Police challenging the suspension of a police officer, but rejected a second grievance over the officer's termination. The grievance upheld involved a five day suspension, imposed because of grievant's alleged conduct in addressing his Chief. Grievant was upset about what he believed to be the improper discussion of his medical information with individuals who had no need to know. Arbitrator Fullmer did not reach the merits of the issue, however, finding that the City failed to give grievant proper notice of the charges against him and failure to provide him with copies of written statements as required by the parties' cba.

The termination grievance involved two separate incidents, both leading to the termination decision. The first involved grievant's refusal to submit to a fitness for duty exam. Separately, grievant was accused of engaging in use of "physical force and abusive and threatening language toward a supervisor" who was delivering a disciplinary notice at his residence.

Regarding the first incident, the Arbitrator rejected the Union's claim that grievant had been denied due process. Arbitrator Fullmer determined that grievant had voluntarily elected not to participate in the pre-termination hearing  required by Loudermill and the parties' cba. Grievant claimed he had refused to attend on the advice of his private attorney and because he had received calls from other officers claiming that he was being tricked and would be arrested if he appeared. The Arbitrator observed:

The Grievant of course had a perfect right not to attend the April 18, 2013 Loudermill/Section 11.3 hearing. His attorney may have had a perfectly good reason to render his unspecified advice that the Grievant not attend. The question her is whether the Grievant may complain now, seven months later, that he was not accorded such a hearing when he chose not to attend.

The fact that the hearing did not take place because of grievant's failure to attend was not deemed a violation of grievant's due process rights.

On the merits, the Arbitrator concluded that the principle of "obey now, grieve later" applied.  While grievant believed the order was improper, the contractual provision he relied on was not, in the opinion of the Arbitrator, so "direct" or "clear" as to privilege grievant's refusal. Accordingly the Arbitrator found the City's claim that grievant had been insubordinate was well founded and that the termination was for just cause. In light of this finding the Arbitrator found it unnecessary to consider the validity of the second ground cited in support of termination.

The Mount Vernon (Ohio) News links to Arbitrator Fullmer's Award here.

1 comment:

  1. Congratulations for making it successfully! you are now savoring the fruit of your hard works and labors of your focus and dedications.