Sunday, August 17, 2014

Arbitrator upholds grievance of Miami police officer terminated for fatal shooting

Arbitrator Martin Soll has found that the termination of a Miami police officer was without just cause.

Grievant was dismissed following his involvement in a fatal shooting. He was part of a joint task force investigating suspected gang activity in Miami. As a result of a request from another officer to stop a car leaving a bar believed to be frequented by gang members, grievant and several other task force members stopped the vehicle. Grievant approached the car and directed the driver to "show your hands." The driver did not  comply, but according to grievant, appeared to reach for what grievant believed to be a weapon. Grievant yelled at the driver "don't do it"  and when the driver continued, grievant fired three shots, killing the driver and wounding the passenger. In fact, the driver had no weapon but what grievant perceived to be a weapon was actually a cell phone.

The shooting was investigated by the Department's Firearms Review Board, and the Board concluded that the firing was unjustified and in violation of the Department's Use of Force Policy. The Chief concurred and terminated the employment of the grievant. The Chief's reasons were summarized in four specific charges, including (i) an allegation that the evidence concerning the shooting was inconsistent with grievant's statement, (ii) a conclusion that neither grievant nor any other person was in imminent danger of death or serious injury, (iii) an allegation that the evidence was inconsistent with grievant's statement that he had seen a black object he believed to be a gun, and (iv) a charge that grievant should not have approached the vehicle but should have instead retreated.

The Union (FOP Lodge No. 20) was unable to resolve the dismissal in the grievance procedure, and submitted the dispute to arbitration before Arbitrator Martin Soll. Based primarily on his factual findings, Arbitrator Soll concluded that the City had failed to meet its burden of proof on the four charges. He concluded that in fact the evidence was consistent with grievant's statement concerning both the shooting and grievant's perception of a weapon. Regarding the second and third specifications, Arbitrator Soll found that the Firearms Review Board had concluded, and the evidence at the hearing supported a finding, that  grievant "reasonably believed he saw what appeared to be a weapon." The Arbitrator found further that there was no basis for the charge that grievant should have retreated,and there was no support for the allegation that grievant had violated the Deadly Force Policy. The Arbitrator found nothing in the Department's Policy requiring  retreat, but instead observed that it specifically provided "it must be remembered that by law, an officer need not retreat in his/her efforts to lawfully control a subject ...".

Arbitrator Soll also noted that, while not determinative, the Office of the Miami-Dade County State Attorney had investigated the shooting and deemed it justified.

Finding no support for the City's allegations the Arbitrator ordered the City to reinstate grievant with back pay

Arbitrator Soll's award can be found here.

Sunday, August 10, 2014

Introduction of "new" technology doesn't require increase in pay

The City of New Britain, CT employs a number of mechanics responsible for maintenance of its fleet of vehicles. As part of their job duties the mechanic are required to document repairs performed, parts needed and hours spent performing tasks and are responsible for ordering necessary parts. Records were kept on paper work orders.

In May of 2012 the City introduced a new software program and required the mechanics to enter into the computer the information previously entered onto the paper work orders. The mechanics attended a two day training program on the new system.

The Union representing the mechanics (AFSCME Council 4) processed a grievance on their behalf, claiming that the new requirements were more difficult and time consuming. It asserted that the job description for the mechanics did not require them to be proficient in the use of computers or computer software.

The dispute was unresolved in the grievance procedure and was submitted to arbitration before the Connecticut State Board of Mediation and Arbitration.  The Board rejected the grievance, concluding:

 The job description lists among the position's job duties the recording and requisitioning of tools, materials and supplies for the assigned tasks as necessary. ... Clearly, the information required is the same; it is only the method of recording that information which has changed. The computer is nothing more than a different tool to input the information. And while it may take more time to input that information (especially if one is unaccustomed to using a computer), the extra time does not make these duties outside the scope of the mechanics job description. Put another way, taking additional time to perform a task that is clearly within the scope of the job description does not entitle the mechanic to a higher rate of pay.

The Board also rejected the Union's claim that the computer work was actually the work of the manager. While the manager was responsible for overseeing software management programs, what the mechanics performed was, the Board concluded, essentially data entry.

The Board of Mediation and Arbitration's decision can be found here.

Sunday, August 3, 2014

Conduct unbecoming, use of force, drug tests and restraining orders- several police related awards

Conduct unbecoming

Arbitrator Harry G. Mason overturned the termination of a police Sergeant employed by the City of Lakeland, FL. The grievant was dismissed after acknowledging that he had had sex with a civilian employee of the City in his car in a park. Grievant was off duty at the time and his partner was on her lunch break. This issue was uncovered during an investigation of allegations of sexual activity and the exchange of sexually explicit pictures and texts between the civilian employee and several members of the police department. Arbitrator Mason concluded that the City had proved "by significant evidence" that grievant violated the Neglect of Duty and Conduct Unbecoming policies. He agreed with the City that grievant's conduct, and the ensuing publicity, brought the Department into disrepute.  However he found, in the circumstances of this case,and in view of the differing penalties imposed on other officers, that termination was too severe. He observed:

  If the [Grievant's] matter existed in isolation where there had not been so many other sexual activities by other officers that [the Chief] dealt with in the matter that she did, his termination likely would have been for just cause
The CBA requires consistent and appropriate discipline. I find that [grievant] was not disciplined consistent with the discipline imposed on others involved in this sex scandal. 

The Arbitrator ordered grievant's reinstatement as a police officer (not a Sergeant) and awarded back pay at the officer rate. reports on the decision here, and links to Arbitrator Mason's award here.

Use of Force

Arbitrator Janet Gaunt denied grievances filed on behalf of three Portland police officers who were disciplined as a result of their conduct in connection with the incident leading to the fatal shooting of Aaron Campbell. A grievance over the termination of the fourth officer, who fired the fatal shot, was previously sustained by Arbitrator Jane Wilkinson (discussed here).

 Arbitrator Gaunt upheld a two week suspension for an officer who fired a beanbag at Campbell. The Arbitrator found that the City established that the officer acted unreasonably and prematurely. She concluded that "[grievant's] impatience resulted not from a lack of time or an immediate threat, but from annoyance that Mr. Campbell was doing what he wanted to do rather than exactly what [Grievant] was telling him to do."   Arbitrator Gaunt also concluded that the Sergeant in charge of the scene failed to ensure sufficient communication and coordination, and that a second Sergeant also failed to communicate critical information and coordinate his activities.

The Oregonian reports on the case here, and links to Arbitrator Gaunt's award here.

Drug Test

Arbitrator James Reynolds sustained a grievance filed on behalf of a terminated Miami Beach police officer who had been dismissed after failing a drug test. Grievant had been selected for a random drug test, and the test proved positive for the presence of metabolites of cocaine. Grievant denied knowingly ingesting cocaine, but testing of the split sample confirmed the initial results. Subsequently grievant became suspicious of a topical "cream" which a friend had given him to enhance his sexual performance as a possible source. A sample of the cream was tested and was found to contain cocaine. The City found this explanation for grievant's  positive test results unbelievable and terminated his employment.

Arbitrator Reynolds overturned the termination on two separate grounds. Initially he concluded that the City failed to follow its normal investigative process. Contrary to the normal process, in this case the Chief had dismissed grievant prior to a review by a Disposition Review Panel of Command Officers. The Arbitrator noted:

  Clearly the review panel would likely be biased in its review of the [Internal Affairs] findings by knowing that the Grievant had already been terminated by the Chief of Police. The likelihood of that bias, whether intentional or not, is sufficient to find that the fairness standard of just cause was not met in this case.

In addition, and on the merits, the Arbitrator concluded that the City had failed to effectively challenge  the grievant's explanation for the positive test result.  He concluded that the record compelled a finding that Grievant had cocaine metabolites  in his system due to using a cream which he did not know contained cocaine. Arbitrator Reynolds ordered grievant's reinstatement with back pay but provided that grievant would be subject to a minimum of 6 unannounced tests over a 12 month period for up to five years as provided in the City's Drug and Alcohol Policy.

Arbitrator Reynolds' Award can be found here.

Restraining Order

Arbitrator Tim Hatfield denied a grievance filed on behalf of a Woburn, Mass. police officer who was subject to a restraining order arising out of claimed domestic violence. As part of that order, Grievant was prohibited from possessing or carrying a firearm. The order was renewed and not scheduled to expire until February 17, 2015. Grievant was also arraigned on charges of domestic assault and battery, and in May of 2012 entered an Admission to Sufficient Facts on the charges. His employment was terminated on July 11, 2012 based on the admitted to "sufficient facts" and the restraining order prohibition on possession of a firearm.

The Arbitrator concluded that:

The City is under no obligation to  leave a patrol officer's position open for [Grievant] in the hope that he might sometime in the future be eligible to possess and carry a firearm, a fundamental requirement for all Woburn Police Officers. Based solely on this fact alone, the City had just cause to terminate [Grievant]. (footnote omitted) 

Additionally, based on the Admission of Sufficient Facts, and substantially discrediting Grievant's denials and explanations of the incidents in question, the Arbitrator found these also supported a finding of just cause. He noted:

 I agree with the City's assertion that police officers must be held to a higher standard of conduct given their prominent position and responsibilities in  the community.

Arbitrator Hatfield's Award can be found here.