By Jordan L. Jones
In County of Yuba, 133 LA 361 Arbitrator William Riker held that there was just cause to discharge a corrections Deputy Sheriff for his interactions with female inmates, which included inappropriate touching and searches.
Allegations of the Deputy’s misconduct were reported by both female inmates and other jail staff. The County determined that the Deputy violated twenty-two provisions of the California Penal Code, The Yuba County Sheriff’s Manual, the Yuba County Jail Manual, and the Memorandum of Understanding (MOU). The allegations consisted of the Deputy making inappropriate contact with female inmates and even toward one of his fellow female Deputies. The Deputy was reported to have inappropriately touched various female inmates and to have entered cells alone with female inmates (e.g., Directing a female inmate to “a holding cell ostensibly to examine the extent of her burn . . . [and then subsequently raising] her shirt to the bra line and [lowering] . . . her pants to see the extent of the burn on the back of her leg, including allegedly touching her by raising her panty line.”).
Normal procedure at the jail was that only a Deputy of the same sex as the inmate could conduct a strip search and areas such as the breasts, buttocks, or genitalia were not to be touched. In addition, under the Sheriff Department Rules, it was unlawful for a Deputy to enter the cell of an inmate of the opposite sex unless in the company of another employee of the same sex as the inmate.
The County contended that the “misconduct committed by the [Deputy] . . . were . . . gross violations of law and policy that contradicted the Department’s standards for the humane treatment of its inmates, respect for those incarcerated, and basic respect for subordinates and co-workers.” The County also stated that the Deputy’s misconduct “seriously breached the public’s trust in the Department’s role as a professional law enforcement agency and exposed it to potential liability . . . .”
The Deputy Sheriff’s Association contended that the County “failed to prove by a preponderance of the evidence that the allegations contained within the Order for Termination of Employment occurred and that these would warrant a penalty of such severity.” Specifically, the Association challenged that the termination letter itself for failing to provide evidence as to which violations were applicable to each incident. It also objected to the employer’s reliance on hearsay evidence.
The Arbitrator acknowledged that the Employer’s termination letter did not link each of the cited violations to the relevant policies/procedures, but found that defect was insufficient to set aside the discharge.
The Arbitrator also noted that hearsay evidence was properly allowed to be considered.
As Arbitrator Clarence Updegraff noted, “hearsay testimony is very freely received in labor/management arbitration proceedings . . . . However, there is no dispute that in discharge or discipline cases the burden of proof falls squarely on the Employer and a decision to rely solely on hearsay evidence is deemed insufficient in determining where the just cause standard has been met . . . . The rationale for allowing hearsay evidence in this case is that it is a part of a composite of similar misconduct allegations that were provided by witnesses first hand.
The Arbitrator concluded that the deputy’s discharge was with just cause.
Editor’s note (Jim Cline): This case is an example of the underlying facts leading an Arbitrator to stretch in his application of normal arbitration just cause principles. The right to proper notice of the charges and proof corroborated by nonhearsay evidence are core elements of just cause. In this case, it appears that the Employer’s discharge letter was poorly drafted in that it did not delineate its allegations clearly. Moreover, the Employer was apparently unable to produce the female inmates as witnesses and, instead, relied primarily upon the observations of the correction Deputy’s suspicious behaviors by coworkers and others.
Labor contracts which require that discipline only be for “just cause,” without more specific guidelines, do not mandate that an Arbitrator apply any particular factors or tests. Although, there is strong arbitration precedent for certain factors, ultimately, an Arbitrator has broad discretion to determine what constitutes just cause in any particular context. It appears in this case the Arbitrator concluded that the corrections Deputy was, in fact, guilty of egregious misconduct and was not inclined to allow due process considerations to stand in the way of his discharge.
