By Jordan Jones
In City of Farmington, the arbitrator found that a firefighter’s termination that included an allegation of failure to report his off duty DUI was without just cause because (1) the employer’s investigation was not conducted fairly and objectively, (2) the employer did not obtain substantial evidence that the employee was guilty, and (3) the discipline was not reasonably related to the incident.
In 2006, the City issued a policy which stated that employees must report “receiving a citation or any other notification which could lead to the loss of a driver license.” In August 2010, the firefighter was arrested for violating a protection order. The Fire Chief learned about the arrest by a third party and told the firefighter to “forward any changes in your pending legal process to me or your Battalion Chief as they occur.” The firefighter then told the department of his sentence for the protection order violation and his attorney promised to keep the Fire Chief informed of other criminal matters.
In December 2010, the firefighter was arrested for a DUI in Colorado and had his driving privileges revoked in that state. The firefighter did not report the arrest, or that the arrest caused him to violate probation for the protection order. The firefighter believed that his attorney would advise the employer of the incident. The firefighter was then issued a termination letter.
The arbitrator used the “Seven Tests” developed by Arbitrator Daugherty to determine whether just cause existed for the termination. The arbitrator found that the City failed to uphold part four (“Was the employer’s investigation conducted fairly and objectively”), part five (“At the investigation, did the judge obtain substantial evidence or proof that the employee was guilty as charged?”) and part seven (“Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his service with the employer?”).
IAFF argued that the firefighter had a 14 year satisfactory work history and that he had acted in good faith and did not intentionally violate work rules. The City contended that the firefighter’s actions breached trust with the employer.
The arbitrator found that the City did not comply with City of Farmington procedure AR-99-10 regarding Pre-Termination Meetings by failing to explain the specific reasons for the proposed termination and thus denied the firefighter his due process rights. The arbitrator also noted that the City did not obtain substantial evidence or proof that the employee was guilty as charged. The arbitrator discovered that the “City Manager Mayes did not interview the Grievant and relied solely upon information provided by Chief Page.”
The arbitrator also discussed the firefighter’s 14 year work history and held that:
The evidence does not support a finding that the Grievant’s motive for his actions was to be dishonest, understandably his actions created a heightened level of mistrust with Chief Page. Unfortunately the grievant willfully became the beneficiary of his poor judgment. The City had not met its burden to show that the grievant was in fact dishonest.
The arbitrator ordered that the firefighter be reinstated and that the time from termination to reinstatement will be considered as unpaid disciplinary suspension.
Editor’s Note (Jim Cline): This firefighter caught a break. He must have made a favorable impression upon the arbitrator during his testimony. The ordered remedy that he was to be reinstated, but without any back pay is a recognition that his misconduct was at least serious, even if was not all the City had alleged. The arbitrator in fact issued a warning to the reinstated grievant, indicating that “he should not view this decision as approved of continued failure to fulfill his job responsibilities” and that future misconduct might result in sustained discharge
