Just cause for termination but grievant denied due process - Arbitrator awards back pay but no reinstatement

Grievant was employed as a corrections officer with the Trumball County Ohio Sheriff's Office. On August 24, 2017 an incident in the jail led to an investigation by the Sheriff's Office. Grievant (and several other officer) were involved in the movement of an inmate who was returning to the jail from treatment following a suicide attempt. During the course of the transfer, the inmate became belligerent and was dragged and carried to his cell. An investigation of this incident ensued during which grievant was interviewed and his incident report was reviewed. Other officers were also interviewed and one of the other officers interviewed stated that grievant had struck the prisoner with his knee in the ribs/kidney and then struck him three times in the same area with a closed fist. These events were not included in grievant's Incident Report. After further investigation grievant was again interviewed. He then acknowledged for the first that he had administered two strikes to the prisoner in an effort to control him but had not included this in his incident report because he had "simply overlooked it." After an additional interview with another officer the investigating Lieutenant prepared a report charging grievant with violation of policy. Grievant was then called to a meeting with  the Chief Deputy where he was given a Notice of Discipline indicating he was being discharged.

The Union (Ohio Patrolmen's Benevolent Association) grieved the dismissal and the case was presented to Arbitrator Nels Nelson. The Union claimed that Grievant had been denied the due process called for by both the cba and the Constitution, and that the termination was without just cause.

Arbitrator Nelson agreed with the Union's due process position. He rejected the position of the Sheriff's Office that the Internal Affairs  investigation satisfied the right to a pre-termination hearing and its claim that grievant had waived a pre-termination hearing. However he did conclude that there was just cause for discipline . He found that grievant had used excessive force against the inmate and rejected grievant's claim that his failure to mention his use of force in his incident report and his first interview was caused by a "lapse of memory."

Turning to the question of remedy, Arbitrator Nelson observed the this question was more difficult than in most cases. He noted:

In the instant case, the seriousness of the grievant's offenses makes it inappropriate to return him to work, which eliminates two of the usual remedies for due process shortcomings, i.e., reinstating the grievant with no back pay  or reduced back pay.
Page 217 of The Common Law of the Workplace  recognizes that there is a third option where there is just cause for discharge but the employer failed to provide procedural due process. In this situation, some Arbitrators award back pay without reinstatement. This alternative prevents the reinstatement of an employee who has committed a serious offense and at the same time, recognizes the employer's denial of due process. (footnote omitted)

Arbitrator Nelson's selected the third option. He declined to reinstate grievant. However, he awarded back pay from the date of termination until the final day of the arbitration hearing. By that day, the Arbitrator determined, "grievant had received all of the rights a pre-termination hearing would have provided."

Arbitrator Nelson's award can be found here.

Update: The propiety of this type of remedy is also addressed in  Quick Hits - Back pay but no reinstatement, Arbitrator's reliance on external law, and Social media, law enforcement officers and the First Amendment

Refusal to submit to fitness for duty exam deemed insubordination, termination upheld

Arbitrator Jerry Fullmer has upheld a grievance filed by the Ohio Fraternal Order of Police challenging the suspension of a police officer, but rejected a second grievance over the officer's termination. The grievance upheld involved a five day suspension, imposed because of grievant's alleged conduct in addressing his Chief. Grievant was upset about what he believed to be the improper discussion of his medical information with individuals who had no need to know. Arbitrator Fullmer did not reach the merits of the issue, however, finding that the City failed to give grievant proper notice of the charges against him and failure to provide him with copies of written statements as required by the parties' cba.

The termination grievance involved two separate incidents, both leading to the termination decision. The first involved grievant's refusal to submit to a fitness for duty exam. Separately, grievant was accused of engaging in use of "physical force and abusive and threatening language toward a supervisor" who was delivering a disciplinary notice at his residence.

Regarding the first incident, the Arbitrator rejected the Union's claim that grievant had been denied due process. Arbitrator Fullmer determined that grievant had voluntarily elected not to participate in the pre-termination hearing  required by Loudermill and the parties' cba. Grievant claimed he had refused to attend on the advice of his private attorney and because he had received calls from other officers claiming that he was being tricked and would be arrested if he appeared. The Arbitrator observed:

The Grievant of course had a perfect right not to attend the April 18, 2013 Loudermill/Section 11.3 hearing. His attorney may have had a perfectly good reason to render his unspecified advice that the Grievant not attend. The question her is whether the Grievant may complain now, seven months later, that he was not accorded such a hearing when he chose not to attend.

The fact that the hearing did not take place because of grievant's failure to attend was not deemed a violation of grievant's due process rights.

On the merits, the Arbitrator concluded that the principle of "obey now, grieve later" applied.  While grievant believed the order was improper, the contractual provision he relied on was not, in the opinion of the Arbitrator, so "direct" or "clear" as to privilege grievant's refusal. Accordingly the Arbitrator found the City's claim that grievant had been insubordinate was well founded and that the termination was for just cause. In light of this finding the Arbitrator found it unnecessary to consider the validity of the second ground cited in support of termination.

The Mount Vernon (Ohio) News links to Arbitrator Fullmer's Award here.

Failure to provide Loudermill hearing "fatal" to claim of just cause for dismissal

Grievant was employed by Mount Joy (PA) Borough. At approximately 4 a.m.on the morning of November 6, 2010, he and another officer were dispatched to respond to a complainant reporting that his bicycle had been stolen several hours earlier. During the course of their contact, the complainant began acting erratically and, according to both officers, came "charging out" of his front door toward the officers. Grievant used a taser in an attempt to subdue the complainant, and over the course of the next ten minutes used the taser a total of fifteen times against the complainant, who died as he was being transported to the hospital.

Grievant's conduct was investigated by  the  Pennsylvania State Police and the Attorney General's office. The investigations concluded there was no basis for any criminal charges against grievant. The Mount Joy Police Department conducted its own internal investigation and the Detective conducting that investigation concluded that grievant had not used excessive force. Nevertheless, the Chief recommended to the Borough that grievant be dismissed for use of excessive force, and his employment with the Borough was terminated.

After a hearing, Arbitrator William Lowe rejected the allegation of excessive force. Arbitrator Lowe concluded that, taking into account the totality of the circumstances as required by the Borough's Use of Force Policy, the evidence failed to establish that grievant's use of force was excessive.

Arbitrator Lowe also addressed the claim of the Police Association that grievant had been denied due process because he had not been provided with a Loudermill hearing prior to his dismissal. Arbitrator Lowe noted:

The Association provided a prior case decision by Arbitrator Scott Bucheit ... wherein he ruled the discharge was not properly effected in that no Loudermill hearing was extended, and hence, no showing of Just Cause and no due process although, in that case, he reduced the penalty from discharge to a thirty (30) day suspension because of some extenuating factors. In that decision, Burcheit cites several precedent decisions- among them, Arbitrator Walt De Treux's ... arbitration decision in Police Employees of Silver Springs Township and Silver Springs Township .... In that decision De Treux commented,
         

             In and  of itself, the failure to provide contractual due process is fatal to the Employer's       burden of proving just cause for discharge. It does not, however, negate the Employer's right to discipline....I find that the due process violation, while precluding discharge, does not negate the Employer's right to discipline (grievant) in this matter.

Agreeing with the analysis of Arbitrator's Bucheit and De Treux, Arbitrator Lowe found the failure to provide grievant a Loudermill hearing prior to his termination a "fatal error," resulting a in a lack of due process for the grievant.

Finding no due process, together with no just cause for discipline, Arbitrator Lowe ordered grievant reinstated with full seniority and back pay.

Lancasteronline reports on the decision and Arbitrator Lowe's award can be found here.