Monday, September 3, 2018

Recent Awards - Insubordination, out-of-title work, protected activities, and untruthfulness

Police officer's insubordinate action didn't justify termination

Arbitrator Don B. Hays modified the discipline imposed on a San Antonio police officer who had been accused of insubordination. Grievant was schedule to retire in July of 2017. He planned to utilize his accrued time of to carry him through that date, and to work full time at another job until his retirement became effective. Outside employment required the approval of the Chief. He began his outside employment in September of 2016 with the permission if the department. However, his request to continue that outside employment during 2017 was denied. Believing he had  "constitutional right" to continue to engage in the outside employment grievant "defiantly continued" his outside work despite the denial of permission from the department. Ultimately the Chief placed grievant on "indefinite suspension", effectively terminating his employment.

Finding grievant's conduct insubordinate, Arbitrator Hays concluded that termination was too severe. Arbitrator Hays explained:

Although appellant's reason for his refusal appears to be resourceful, it cannot be realistically
compared to a subordinate's justifiable refusal to strictly obey a supervisory directive based on legitimate safety concerns and/or the risk of irreparable harm. Appellant's potential loss of the USAA job and associated essential outside (second) income does not qualify as a legitimate excuse for such insubordinate actions.

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On this occasion [Grievant]  was proven to have acted in a patently and punishable insubordinate fashion. However such clearly uncharacteristic behavior appears from the credible and preponderant evidence to have been an “isolated act," mistakenly undertaken in good faith by an experienced, long serviced highly qualified and devoted SAPD police captain; one who had absolutely no proven personality tendencies or disciplinary history which legitimately questions this loyal officer's allegiance to SAPD authority or Chief McManus. While we in no way find [grievant's] isolated insubordinate behavior, to be forgivable, as discussed hereinabove when trying to determine an appropriate disciplinary response, we find Chief McManus' imposition of "summary termination" to be deficient of what we deemed to be essential evidentiary support.

Arbitrator Hay's award can be found here.


Compensation for out-of title-pay

Arbitrator Richard Curreri has upheld a grievance filed by the Warertown(NY) Professional Firefighters Association seeking compensation for demoted Captains. The Union claimed that the former Captains were still expected to perform their former duties but were not being compensated appropriately for performing what was now out-of-title work. Arbitrator Curreri found "an explicit or implicit assignment of the demoted Captains to the work they previously performed ...."He rejected the argument of the City that any informal expectations were not the same as an "assignment" His award can be found here.

Discrimination because of union activities 

  Two recent awards involve discipline claimed to be because of the grievants' union activities.

 In IAFF, Local 1693 and City of Holyoke, Arbitrator Mary Ellen Shea sustained a grievance challenging the suspension and demotion of a Fire Department Captain, and Local Union President, after an investigation into his actions at the scene of a fatal fire.  Arbitrator Shea rejected the City's claim that the investigation was part of a "routine" post incident analysis, and found that "the evidence demonstrates that the investigative procedures and the investigative report ... were not adequate or sufficiently complete to prove the allegations" against the grievant. Concluding that the investigation was a pretext, she found that the City had violated the cba's prohibition on discrimination because of Union activities (in this case grievant's comments in the press critical of the Mayor's and Chief's decisions concerning decisions concerning staffing, see e.g. Questions of response to Holyoke fire arise following brownout of engine)


In Wilkes-Barre Police Benevolent Association and City of Wilkes-Barre, Arbitrator Thomas Leonard sustained a grievance, overturning the discipline of the President and Vice President of the local PBA. The discipline arose because of comments on the PBA's Facebook page critical of certain decisions of the Mayor and police management. Rejecting the City's claim that he postings "violated numerous sections of the department's general orders, Arbitrator Leonard concluded:

This is a case where the City has taken disciplinary action against [grievants] for their exercise of protected rights. While the City does have a managerial interest in maintaining the appropriate access to police reports and having its orders followed, the PBA also has rights. The PBA postings, whoever made them, stated a sincere employee interest in safety of officers. The postings may have been harshly worded, but the law gives leeway to union officials in such instances. The City has not proven that the Facebook postings violated its General Order 1.11 on Social Media and
Networking. The policy itself allows the PBA to use Facebook to engage in “legitimate labor endeavors and/or business." Therefore, even though the Facebook postings were critical of Chief Lendacky and Commander Foy, sometimes in forceful terms, the postings were done with the interests of the officers' safety in mind, which is certainly a legitimate labor endeavor of the PBA in its role as the exclusive representative of the police officers of the City of Wilkes-Barre


Officer's "Untruthfulness" proved just cause for termination

Arbitrator John Barnard denied a grievance filed on behalf of a San Antonio police officer. Grievant had been placed on "indefinite suspension "(i.e dismissed) for allegedly being untruthful during an investigation of his activities in connection with performing inspections of commercial vehicles during his off duty time. Finding merit to some, but not all, of the charges, Arbitrator Barnard noted:

The cornerstone of any sworn police officer is that such officer is to be truthful at all times. That didn't happen here, and as such, there is no alternative but to uphold the indefinite suspension of an officer such as [grievant] who betrays the trust of both the department and the general; public, for whom he is trusted to serve. 

Arbitrator Barnard's award can be found here.

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