Sunday, June 22, 2014

Disciplinary Demotions- Two Recent Cases

Two recent cases discuss the use of demotion as a disciplinary vehicle for misconduct.

Arbitrator Anthony Vivenzio has issued an award overturning the demotion of a Portland, OR police Captain to the rank of Lieutenant. The demotion had been imposed because of grievant's conduct during a "road rage" incident in which grievant displayed his weapon, two incidents of alleged inappropriate touching of   employees, and his conduct during a Weingarten meeting in which he allegedly lost control of his temper. The initial proposed discipline had been termination, but following a "mitigation" hearing the Chief and Mayor decided to demote grievant rather than terminate his employment.

While finding that the grievant had committed the acts and exhibited the behaviors with which he had been charged, Arbitrator Vivenzio found the discipline imposed, which he described as an "indeterminate sentence" of demotion, to be without just cause. In rejecting the demotion the Arbitrator noted:

*** I, like many arbitrators, am interested in discipline that, while holding an employee accountable, promotes their future functioning in the workplace. Here, the Grievant has already experienced the personal embarrassment of working among his fellows for a significant period of time while openly downgraded to a lower rank. Further, several of the events at issue took place approximately 4 years ago, prompting a frustrated staffer to state that the (investigatory) file was “growing mold.” The most recent event took place more than 30 months ago.

A number of arbitrators have held that demotion for an indeterminate term is not discipline, but merely punishment, and have reversed such actions. Elkouri and Elkouri, Seventh Edition. Discipline, a concept to which just cause is allied, and to which the PPB subscribes, seeks the betterment and development of an employee which the employer hired, and promoted upon his satisfaction of rigorous standards, and in whom it has made significant investment. Cases for mere punishment do exist, but only in those cases where such a damaged relationship exists between employer and employee that its imposition is worth the damage to both the employer and employee. This is not that case. The record reflects that, following the Idaho incident, Grievant was retained by the Employer in positions requiring significant judgment and responsibility and performed successfully.

Instead, the Arbitrator concluded that a sixty day suspension was more appropriate.

Demotion was also an issue in an award issued by Arbitrator Nels Nelson. Arbitrator Nelson's award resolved grievances filed by three members of the Cleveland Police Department. The discipline arose out of the officers' conduct in connection with a police chase that ended with the fatal shooting of two individuals.

The City demoted a police Captain and a police Lieutenant, and terminated the employment of a police Sergeant. The FOP pursued each of these matters to arbitration. Arbitrator Nelson noted initially that while contracts typically give an employer the ability to suspend or discharge for just cause, the cba here explicitly provided that the City could also demote for just cause. 

With regard to the Captain and Lieutenant, the Arbitrator observed that the demotion resulted in a base pay reduction of 16.1%, equivalent to a 36 day suspension. He further noted that "[i]n each subsequent year, [they] faced the same penalty." Arbitrator Nelson found this penalty unduly severe. In both cases he determined that the demotion should remain in effect only until July 11, 2014, at which time the grievants would be restored to their former positions.

Regarding the dismissed Sergeant, Arbitrator Nelson found an absence of just cause for termination. However, finding that he had failed to meet his supervisory responsibility and "chose to sit idle for a number of minutes as the pursuit continued," the Arbitrator found "[t]he proper remedy is clear." He ordered the dismissed Sergeant reinstated as a patrolman until July 11, 2015, at which time he should be restored to his former position. 

In a footnote, Arbitrator Nelson acknowledged that reinstating grievant to a position in a different bargaining unit, represented by a different union, could cause "concern," but felt that "in the interest of fairness" the two unions should be able to resolve any issues that might arise. 

Oregon Live reports on the dispute addressed by Arbitrator Vivenzio here, and links to his award here.
WKYC reports on the dispute addressed by Arbitrator Nelson here, and links to his award here.

Update: A Cuyahoga County Common Pleas Court Judge has rejected Cleveland's efforts to have the award of Arbitrator Nelson set aside.  Judge OKs arbitrator's ruling to rehire fired Cleveland police officer, reverse 2 demotions


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