Quick Hits: A "toxic" employee, a teacher and a traffic stop, and correcting a mistake

Termination of "toxic" employee upheld

Arbitrator Craig Allen denied the grievance filed on behalf of an employee of the Ohio Department of Natural Resources contesting her termination. The grievant was terminated for two alleged offenses. The first was a time sheet violation. It was alleged that she had left 15 minutes early for lunch but had falsely recorded the departure time on her time sheet. This occured two weeks after she had received a three day suspension, apparently also related to time and attendance policies. The second related to a statement she made when she was being placed on administrative leave for investigation of the time sheet incident. It was essentially undisputed that grievant said during her departure "Don't worry, I'm not going to shoot up the place." The Union contended that management had "dramatically taken out of context" this incident while the employer argued that it was the action of a "defiant employee with disdain for her work place or her co-workers."

Denying the grievance, Arbitrator Craig concluded that the evidence supported the Employer's position. While noting that grievant was upset about a merger of departments that had taken place, he found "the Grievant was a toxic force in the work place." Concerning grievant's comment that "she would not shoot up the place," the Arbitrator found that, while the police officer who was present to escort grievant from the workplace did not find the statement serious enough to file a report, "others viewed it as a threat." Finding the discipline progressive and for just cause, the Arbitrator denied the grievance. His award can be found here.


Tenure charge against teacher who drove away from traffic stop rejected

Arbitrator Ruth Moscovitch rejected the efforts of the Bernards Township School District to terminate a teacher for driving off from a traffic stop before being released by the police.

The teacher had briefly left her mother in law in her house while she went to the store. The mother in law had Parkinson's and some dementia. The teacher was in the process of cooking and had gone to the store to pick ups missing ingredient and expected to be home before the timer went off on food she was cooking. On her way home form the store, the teacher was stopped by the local police for speeding. She became agitated and explained that she needed to get home to check on her mother in law. Although the police officer told her she was not free to leave, she sped off and drove toward her home. The police pursued her and forced her to stop. She was handcuffed and placed in the back of the police car. A search of the vehicle turned up a small "one hitter" pipe of the type that could be used to smoke marijuana. The teacher admitted having the pipe but claimed she had found it in the truck her husband used for work and had intended to dispose of it. She was arrested and and charged with eluding, possession of drug paraphernalia and several traffic offenses. After the superintendent saw the video taken by the police of the incident he filed tenure charges against her and sought her termination. Arbitrator Moskovitch found that while the teacher's conduct demonstrated poor judgment and warranted a two month suspension, termination was too severe. She concluded:

There is no dispute about what happened on March 22, 2017: Respondent admits, and the arresting officers’ testimony and videos confirm, that she drove away from police during a traffic stop after being ordered not to do so, and that a metal pipe – of a type the officers identified as used for smoking marijuana – was found in her purse. There is also no dispute that this conduct showed very bad judgment on her part. This was conduct unbecoming a teacher. The issue before me then is whether the District has sustained each and every part of the ten charges brought against Respondent, and whether the proven misconduct warrants the ultimate penalty of loss of Respondent’s tenure as a teaching professional. I find that it does not.

Arbitrator Moscovitch's award can be found here.


Correction of an over 25 year old error not barred by recognition clause

Arbitrator Robert Grey resolved a dispute between the City of Scranton and the Fraternal Order of Police, Lodge No. 2 concerning the question of pension eligibility for hires after July 1, 1998. The precise issue was whether the "new" hires were required to reach the age of 55 before becoming eligible to receive a pension. The factual background of the dispute is lengthy, but, in sum, the issue before the arbitrator was whether the City's effort in 2015 to correct what it claimed was a typographical error in a 1987 Ordinance creating the new plan improperly deprived the Union of the opportunity to bargain a change in benefits. The Union asserted that it had never given final agreement to the 1987 change, and that, in any case, the 1987 ordinance did not contain the age 55 requirement. The City claimed both that the Union had in fact agreed to the change in the plan, and that the omission of the language from the 1987 ordinance was a typographical error.

Arbitrator Grey concluded that the evidence did not support the contention the the Union had finally agree upon the change. However, he found further that, because of legislation passed by the state in 1986, the Ciy was privileged to make a one time change in the pension plan without securing the Union's agreement. The case then turned on whether, as the City maintained, the omission of the age 55 requirement was simply a typographical error or, as the Union argued, the omission of the age 55 requirement had been intentional and the City's recent effort to modify the plan was a unilateral effort to modify the existing plan.

Reviewing the facts, Arbitrator Grey concluded that the omission of the language from the 1987 Ordinance was an inadvertent error, and that the 2015 Ordinance simply corrected the language to reflect the original proposal. Regarding the Union's claim that its members had been prejudiced by the City's actions and its long delay in making a correction he noted:

The Union's arguments of prejudice, for which it had the burden of proof, are not persuasive on the record presented. The Union and its counsel were admittedly aware, ab initio in 1987, that the 1987 Ordinance did not contain the conditionally agreed to minimum age eligibility requirements, nor years of service eligibility requirements. ... It is undisputed that they did not bring this to the attention of the City until 2015. Moreover, there is no record evidence that any bargaining unit unit member detrimentally relied upon the lack of a minimum age eligibility requirement, or years of service eligibility requirement, when applying for, accepting, leaving or remaining in employment the City's Bureau of Police.

Denying the grievance, he concluded:

The City established an Act 205 Revised police pension by enacting the 1987 Ordinance. The record does not support the Union's position that the City intentionally omitted Section 2 from the 1987 Ordinance. ... Because the 2015 Ordinance related back to the ambiguous 1987 Ordinance establishing the revised pension plan, pursuant to Act 205 the 2015 Ordinance was also not subject to bargaining.

Arbitrator Grey's award can be found here.

Termination of police officer for dishonesty overturned, disparate treatment renders discipline excessive

Arbitrator Bruce McIntosh reduced a termination to a six month suspension for a police officer who was alleged to have intentionally defaced a newly painted locker room wall.

Another officer in the locker room heard someone enter and then the sound of someone swiping and scraping at the wall. He walked toward the sound and claimed he saw grievant facing the wall with an object in his hand. The officer claimed he then saw grievant scrape the object across the wall two more times and then state "it's a shame that this new paint is already scratched up."

The officer reported his observations to the Lieutenant who confronted grievant and asked if he knew anything about the marks in the locker room. Grievant denied responsibility but went and wiped the marks off.

A Departmental investigation ensued that included polygraphs of both officers. The polygraph examiner concluded that grievant was found to be deceptive while the other officer was found to be truthful.

Grievant was terminated for violation of Department Orders and Policies for defacing Department property, failing to admit wrongdoing and lying.

Sustaining the grievance in part, Arbitrator McIntosh found that the Department had improperly deprived grievant of certain procedural rights under the cba. However, the arbitrator did find that the Department had established both that grievant had scratched the wall and had falsely denied doing so.  While the department argued that grievant's dishonest denial raised Brady issues warranting his termination, the Arbitrator found that the department had not treated claimed dishonesty in the past as a basis for immediate termination. Arbitrator McIntosh concluded:

Although the Department sustained its burden of proving that Grievant did scratch and mark the locker room wall, the union's evidence of disparate treatment for "dishonesty" was, similarly, persuasive. In September of 2013, an officer was given a written reprimand when it was discovered by a lieutenant that, what  the officer had written could not have been possible since he had not witnessed what he had written. In  July of 2011 another officer was found to have provided a report for a uniform allowance that was not "truthful" and again, in July of 2011, another officer became involved in off-duty conduct but did not truthfully disclose his situation and received an oral reprimand. Reprimands were given to another officer for lying about a domestic situation and, another, for lying because he was embarrassed about a check that was returned for insufficient funds.  Overwhelming evidence of ignoring termination for dishonest conduct was illustrated by one employee who used sick leave formats avoid reporting toward for over a year resulting in forty-eight (48) hours being deducted from his Leave Bank. This conduct was found to be so egregious that it was taken to the Athens County Prosecutor who determined that this conduct was essentially theft in office.  This employee was subsequently given a Last Chance Agreement in December of 2012 and, thereafter, terminated for being in violation of the LCA.
     As previously discussed, the Department has sustained its burden of proof that Grievant defaced the property and denied doing so. As such it was certainly appropriate for the Department to move beyond mere reprimands of progressive discipline. However the disparate treatment given others renders termination excessive. 

The Arbitrator did not specifically address further the Department's Brady claim. Arbitrator McIntosh's award can be found here.

Update: According to a recent article in the AthensNews, grievant testified in a rape prosecution and was questioned about the arbitrator's findings. Alleged victim testifies during continuing rape trial

Teacher improperly allowed "teachable moment" to include discussion of student's discipline with other students

During Thanksgiving week 2016, students at Stoughton, MA High School were engaged in a school project decorating a Spirit Wall. While this activity was underway, one if the students, "F," made a swastika out of masking tape and placed it on a recycling bin. Several students, including one who said she was Jewish, objected. F was reported to have said "Well just burn it like they did to the Jews."

The incident was reported to the Principal and the Dean of Discipline, and F was ultimately suspended.

 On December 1, during F's suspension, grievant was teaching a Senior  Honors English class. At the beginning of the class, the students were discussing the incident involving F. Grievant was not aware of what had taken place or the nature or extent of any discipline imposed on F. F was not in her class, nor were any of the students who had been present during the incident. According to grievant, her knowledge of the dispute came from her students. Given the student's discussion grievant decided to try to turn the discussion to a "teachable moment." She testified she told students that the swastika was a symbol of evil and hate. One of the students informed grievant that F had been suspended for six days. Grievant admittedly participated in the discussion about the length of the discipline, and acknowledged saying that it seemed light. The discussion continued for 10-15 minutes. Realizing that the discussion was not going in the direction she had intended, and that it had become too personal, grievant redirected the class to the day's lesson.

Upon his return from suspension, F informed the principal that he had been told by other students that grievant had made comments about him. On December 13, grievant's mothers filed an Incident Form concerning treatment of her son and complaining about comments she alleged grievant had made to her class. The School Superintendent engaged an outside investigator and, after the conclusion of the investigation, issued a Letter of Reprimand to grievant. The letter stated that grievant had violated a provision of the School's Employee Handbook which provided "As leaders and educators in the Stoughton Public School, we are committed to providing an educational climate that is conducive to student engagement and learning." The Letter was grieved and the dispute was submitted to Arbitrator Beth Anne Wolfson.

Arbitrator Wolfson upheld denied the grievance. She noted:

Grievant's own testimony at the arbitration hearing demonstrated that she engaged in the behavior for which she was disciplined. First, she admitted that when she arrived in her classroom her students were talking about the swastika incident, F's behavior, and his discipline. Second, although she attempted to redirect the discussion into one concerning universal concepts about the swastika she admittedly failed to accomplish this as the student's discussion continued in the context of what F did and what discipline he purportedly received. Third, Grievant admitted she participated in the discussion concerning the length of F's suspension. Accepting as true Grievants statements that she said the discipline seemed light in terms of what had happened to students in other schools does not change then fact that  her comment was made during discussion of a specific student and not in a broader or more general context. Finally, Grievant allowed the discussion F to continue for 10 or 15 minutes when she admittedly should have stopped it sooner.

Arbitrator Wolfson also rejected the arguments of the Teacher's Association that grievant's in-class speech was protected by the First Amendment and that grievant had not violated F's privacy rights, observing:

...the Employer did not discipline Grievant for violating F's privacy rights. It disciplined her for failing to provide the appropriate educational climate, for failing to perform her roles and responsibilities as a teacher, and form failing to exercise sound judgment, all based on her not failing to stop the conversation her class specific to F, but also for joining in.


  Arbitrator Wolfson's award in Stoughton Teachers Association and Stoughton School Committee can be found here.