"Clear and convincing" circumstantial evidence sufficient to support termination

Grievant was employed by the City of Lakeville, MN as a police officer, a position he held for approximately seventeen years. In addition grievant had extensive experience as a writer and reporter and owned and operated his own business publishing weekly newspapers in local communities.

During two high profile police investigations the media reported details of the investigations that the City claimed could only be known by someone involved in the investigations or someone having knowledge as a member of the police department.

The City conducted an internal investigation in an effort to determine the source of the leak. While grievant denied involvement, the investigation concluded that he had been the media's source. The City terminated his employment for releasing information on an active investigation to the media without authorization and for being dishonest when asked whether he had released the information.

The grievance over the termination was submitted to Arbitrator Rolland Toenges for resolution.

After a hearing, Arbitrator Toenges found that while grievant continued to deny being the source of the leak he acknowledged telling the press that "something big was going on." Grievant also acknowledged being social and professional friends with a reporter who had received unauthorized information. The Arbitrator also observed that grievant, unlike others involved in the investigations,  declined to release his phone records to the Department.

Reviewing all of the evidence, and despite the Union's claim that the investigation had been inadequate, Arbitrator Toenges concluded that grievant had in fact released confidential information without authorization. He noted:

The evidence supporting the Employers case is mostly circumstantial. The media, as is their practice, will not voluntarily disclose the source of their information. There is no witness testimony that actually saw or heard the Grievant communicating the unauthorized information to the media. However, there is clear and convincing evidence supporting the charges against the Grievant. The record provides sufficient proof that it is substantially more likely than not that it was the Grievant who leaked the information to the media. 

Finding that grievant's actions caused a breach of confidence between other agencies and the Lakewood Police Department and so "irreparably damaged" the trust and confidence of his coworkers the Arbitrator concluded that he could no longer function as a member of the Department.

Accordingly he found just cause for the termination of grievant's employment.

Arbitrator Toenges' award can be found here.

Zero tolerance doesn't support termination but arbitrator imposes a last chance agreement

The Greater Egg Harbor Regional High School District sought  to terminate the tenure of a computer operator/secretary. In doing so the District relied on its "zero tolerance" policy relating to alcohol.

The Respondent ('"grievant") had been employed for approximately twenty years. In March of 2015 she was found to have consumed alcohol during school hours while on school premises. This was the only incident of misconduct in the workplace.

An investigation was begun but was delayed somewhat when grievant entered an inpatient employee assistance program. Upon completion of that program grievant was cleared to return to work without restriction.

Arbitrator Ernest Weiss rejected the District's efforts to terminate grievant's tenure. He noted that there was no evidence supporting the Superintendent's belief that grievant had been under the influence, and that no fitness for duty exam had been requested. Arbitrator Weiss observed:

Given her twenty years of otherwise unblemished behavior, I was not persuade by Superintendent Keenan's testimony regarding the possibility of repeated future behavior. There is no showing that her rehabilitated status would not hold under a last chance agreement.

Accordingly he included as part of his award a last chance agreement which he directed the parties to enter into. Pursuant to the lca grievant agreed "never again to imbibe in the consumption of alcohol during school hours or on school property." The agreement also provided for testing, with immediate termination resulting from a blood alcohol content over .02% "without tenure charges and subject only to the Employee's right to see that the test was properly performed."

Arbitrator Weiss' award can be found here.  Issues arising under a last chance agreement imposed by the arbitrator are discussed in Reinstatement with Conditions-Last Chance Awards

Off duty misconduct, just cause, burden of proof and leniency

All of these topics are  addressed in a recent award by Arbitrator Howell Lankford in International Association of Firefighters, Local 27 and City of Seattle Fire Department. Arbitrator Lankford denies the grievance filed on behalf of a firefighter for actions relating to an alleged assault on homeless individuals in the City's Pioneer Square area.

While off duty, grievant and two friends attended a Seattle Sounders game. Before, during and after the game, grievant consumed a number of drinks. At some point grievant and his friends were walking to a local restaurant when they observed several homeless people on or near the Fallen Fireman's Memorial. A dispute ensued and became physical and the fighting continued for about eight minutes. The identity of the aggressor was disputed, but grievant and his friends were arrested for assault.

After an investigation, grievant's employment was terminated. The charges specified in the Notice of Termination included: 1. Aggressive Fighting with Homeless Victims, 2. Interference with Law Enforcement Investigation, 3. Misuse of Position, and 4 Negative Community Impact.

The termination was grieved and ultimately brought to arbitration before Arbitrator Lankford.

In deciding the issue, Arbitrator Lankford first reviewed the concept of "just cause." He observed:

Many learned volumes have been written on the notion of just cause in American labor arbitration. In the end, however, just cause is simply a distillation of our shared response to some of the common, occasional shortcomings of employee discipline. Most of the issues arising under the just cause standard divide into three classes: It is not just to discipline an employee for misbehavior that he or she did not actually commit. It is not just to exact a disciplinary penalty which the employee could not have known to be a possible consequence of such misbehavior. And it is not just to administer the disciplinary process in fundamentally unfair and irregular ways.5

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5The Department proposes arbitrator Daugherty’s “seven tests” from Enterprise Wire and other reported cases ... . The “seven tests” have generated a very substantial body of scholarly discussion, but that approach does not represent the view of a majority—or even a very substantial minority—of current main line American labor arbitrators.

Applying these standards, Arbitrator Lankford addressed the appropriate burden of proof. He rejected the Union's contention that the City should be held to a "beyond a reasonable doubt" standard, but also rejected the City's claim that it should be held only to a preponderance of the evidence test. He concluded:

The Union points out that NAA arbitrator Mike Beck wrote in 2005 in a case between SEIU 925 and King County that “...in discharge cases involving alleged...stigmatizing behavior a significant number of arbitrators impose a beyond a reasonable doubt standard.” (At 24.) But in that case arbitrator Beck honored the ‘beyond a reasonable doubt’ standard only in the breach. The cited case did involve stigmatizing misbehavior and what arbitrator Beck actually required was proof by clear and convincing evidence. In my first 30-odd years as a labor arbitrator, I have not yet heard or read a case in which it would have been appropriate to require proof beyond a reasonable doubt. On the other hand, I agree that a majority of main line labor arbitrators recognize that some discharge cases—those alleging misbehavior that would be criminal and would have catastrophic career implications—require proof by clear and convincing evidence. Because this is not such a factually close case that the measure of the City’s burden of proof matters to the outcome, I assume without deciding that the City must prove its case by clear and convincing evidence.

On the merits, and relying primarily on several recorded 911 calls made at the time of the incident, the Arbitrator concluded that the City had established that grievant had instigated, escalated and returned after having an opportunity to disengage. He rejected the Union's claim that grievant's acquittal on a misdemeanor charge of assault and malicious harassment of the homeless preluded a finding of just cause, noting the differing burden's of proof and evidentiary standards. He also found that the City had established that grievant interfered with the police investigation by actively misleading police officers on the scene. He also concluded that the evidence "clearly established" that grievant's conduct had a significant impact on the Department's relationship with the community, and in particular the homeless community. However he found unsupported the allegation grievant had requested special consideration because of his status as a firefighter. Based on these findings, he found the City had just cause for the termination.

Finally he declined the Union's request that grievant be given a "second chance" because he had  entered and successfully completed an alcohol rehabilitation program, noting:

In the past, as in the case of [], the Department has given some firefighters a second chance in light of such a voluntary submission to treatment. If I were the Department, I might extend that same discretion to [grievant], but that is the Department’s discretion, not an arbitrator’s.25 The Department established just cause for his discharge by clear and convincing evidence, and the Union’s grievance must be dismissed.

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25The Department quotes the renowned arbitrator Whitney McCoy, from the very first volune of BNA’s collection of labor arbitration awards: “The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved—in other words, where there has been an abuse of discretion.” Stoakham Pipe Fittings Co., 1 LA 160, 162 (1945). One part of arbitrator Daugherty’s Enterprise Wire discussion that remains valid almost 50 years after its publication is his observation that “lieniency is the prerogative of the employer rather than of the arbitrator; and the latter is not supposed to substitute his judgment in this area for that of the company unless there is compelling evidence that the company abused its discretion.” 46 LA 359, n4 (1966). In this instance, I cannot find a basis for concluding that the Department’s decision to discharge [grievant] was an abuse of its discretion.

The Seattle Times reports on this dispute, Seattle firefighter, acquitted in attack on homeless in park, fails to win his job back and links to the award here.

For another case discussing the impact of an acquittal on the just cause issue see Acquitted of criminal charges, but just cause for dismissal