The Police Union pursued the matter to arbitration, and Arbitrator Sherwood Malamud sustained the grievance, overturning the termination. Initially, the Arbitrator rejected the City's argument that the Chief's decision should only be set aside if the Arbitrator found the decision was arbitrary, capricious or discriminatory. He noted that such a test was much lower than the just cause standard required by the parties cba. He noted that the City agreed that if the incident took place as described by the grievant in his testimony, the use of force was appropriate.Finding that the question of whether grievant used excessive force use of force was not the central focus of the award, Arbitrator Malamud noted:
The record is clear by any standard of proof that Grievant omitted mention of the second set of strikes. The issue is what inferences may be drawn from that omission. Was the omission deliberate and intentionally misleading? If so, then such a dishonest report may serve as the basis for termination of employment.
After reviewing the evidence, Arbitrator Malamud concluded that, while grievant’s report writing was “sloppy”, there was nothing to suggest that the report was written with the intent to deceive. Accordingly, he reduced the termination to a written reprimand.
A similar analysis was performed by Arbitrator Harley Ogata in an award addressing a grievance filed on behalf of a St. Paul, MN police officer. In this case, grievant was dismissed for the alleged "intentional, willful and malicious" spraying of Aerosol Subject Restraint directly into the ear canal of an individual he was attempting to place into a police cruiser. He was also alleged to have pulled the individual into the vehicle by the hair.In addition, cited as a basis for his termination was grievant's claimed failure to timely submit an accurate report of the incident.
After an extensive review of a video of the incident taken by the in-car camera, and the other evidence of record, Arbitrator Ogata concluded that the City failed to prove that grievant had intentionally sprayed ASR into the individual's ear, but he did agree that grievant had failed to file "a complete and documented report." Accordingly he ordered the grievant reinstated with back pay less a one day suspension.
The Omaha Police Officer's Association has the award of Arbitrator Malamud here. Arbitrator Ogata's award can be found here.