Sunday, November 6, 2016

Law enforcement officers pointing weapons at co-workers - two terminations upheld

Two recent arbitration awards address discipline imposed on law enforcement employees alleged to have pointed loaded weapons at other employees.

In State of Ohio Department of Rehabilitation and Correction Arbitrator Howard Silver upheld the termination of a Corrections Officer who was found to have pointed a loaded shotgun at another corrections officer.

 Grievant alleged that the other officer, on several occasions, including shortly before the incident in issue, had shouted "whore, whore whore" at grievant while both were working at the Lebanon Correctional Institution. On August 21, 2015, grievant was on her way to the bathroom. Pursuant to her usual practice she was carrying her weapons, both the shotgun and a handgun. She came upon  the other officer and a third corrections officer. While there was some dispute as to precisely what took place, grievant testified that she twice asked the other officer  "Do you have something you want [or need] to say to me?" The officers testified that while asking this question grievant pointed the shotgun at the officer alleged to have made the "whore" statements. The third officer attempted to place himself between the two but grievant gave "stern" instructions for him to step aside.  Grievant was dismissed as a result of this conduct.

The arbitrator found no evidence that the other office had made the taunts alleged, but even if she had  the grievant's actions were unwarranted. He noted:

Even if [Grievant] had suffered taunts from a co-worker, such misbehavior would not justify the threatened use of deadly force. The allegations of wrongdoing made by [Grievant]  ... are not supported by a preponderance of the evidence in the hearing record and these allegations ... have not been substantiated.
Without proof of the misconduct alleged by the grievant ... the question repeatedly put to Officer Kelly by [Grievant] about whether Officer Kelly had something to say to [Grievant] remains unexplained. It may be that [Grievant] believed that this harassment had occurred when in fact it had not occurred, or it may be that the harassment occurred and it has not been proven to have occurred. In either event, the threat of deadly force against a co-worker remains unjustified and is found to be egregious misconduct, opening a person who engages in such threatening behavior to a severe disciplinary response based on the seriousness of the misconduct and the serious physical harm such misconduct threatens. 

Because he found grievant's conduct " so dangerous, so reckless, so coercive and intimidating" Arbitrator Silver denied the grievance and found just cause for the termination notwithstanding grievant's nineteen year discipline free history.

In County of Faribault and Law Enforcement Labor Services, Inc., Arbitrator Stephen Befort similarly denied a grievance and upheld the termination of a Deputy Sheriff. Grievant was alleged to have pointed his loaded service weapon at other deputies on six occasions. Grievant did not deny the conduct but claimed that there was no intent to threaten or harm the other deputies and that the conduct was engaged in in a playful or joking manner.

The arbitrator rejected this defense. He noted that the lack of ill will did not exempt the "serious and dangerous" misconduct from appropriate remedial sanction. He also rejected the Union's argument that a lack of progressive discipline undermined any claim of just cause for the termination.  He concluded: is well established that warnings and a pattern of increasing discipline are not required in instances of severe misconduct. An employee is presumed to know without warning or lesser discipline that severe misconduct is not permissible. ... Thus, an employer need not use progressive discipline when an employee commits serious misconduct such as theft or violence. The same is rue with respect to a law enforcement officer who points a loaded weapon at a co-worker.

The arbitrator concluded that despite what he found to be grievant's genuine remorse the department had "lost all trust" in his rehabilitation and that the County had established just cause for the termination.

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