By Jim Cline and Jordan L. Jones
In Seneca County Sheriff’s Office, 133 LA 1113 (Harlan, 2014) the arbitrator held that there was just cause to discharge a corrections officer (officer) for falsifying records relating to his job duties. The arbitrator found that the Officer had falsified records to hide the fact that he did not actually perform walkthroughs of jail cells.
The Employer argued that the Officer had falsified records when he (1) “made watch sheet entries for 2300 hours for booking cells J-125 through J-128 though he was not in the booking area”; (2) “made watch sheet entries for 2210, 2220, 2230, 2240, 2250, and 2300 hours for booking cell J-125 when he had not conducted the suicide prevention checks”; and (3) “made watch sheet entries for 2120 and 2130 hours for booking cell J-125 when he was out of the building on a break.” The Employer contended that the falsification of records was a “Group III” offense which warranted discharge under the CBA.
The Union argued that the Officer’s actions are mitigated by (1) practice and custom; (2) disparate treatment; and (3) progressive and corrective discipline.
The arbitrator acknowledged that practice and custom was an important consideration and also concluded that “[o]ver time, for whatever the reason, Management was lax in the enforcement of procedures.” But he concluded that “[t]here is simply no custom and practice here, not even a tacit understanding. There is no evidence that . . . [the Employer] agreed employees could devise their own interpretations of procedures . . . .”
The arbitrator also stated that generally accepted enforcement of rules and assessment of discipline must be exercised in a consistent manner . . . . ‘Absolute consistence in the handling of rule violations is . . . an impossibility . . . but that fact should not excuse random and completely inconsistent disciplinary practice.’” The arbitrator determined that there was no other “employee with three (3) other disciplinary actions within the past two (2) years. There is no evidence management gave a ‘pass’ to any employee who committed a Group III offense.”
The arbitrator also found that the CBA provided that “[e]xcept in instances where the employee is found guilty of serious misconduct, discipline will be applied in a corrective and progressive manner in accordance with the employer’s policy.” He agreed that the CBA generally called for summary discharge, without progressive discipline, for those offenses defined in the CBA as “Group III” offenses, concluding that when the employer shows by credible evidence that the Grievant [c]omitted a Group III [o]ffense the arbitrator does not have the authority to amend the discharge. The Parties agreed to such limiting language in Article 12.
Not conducting walkthroughs and then lying about it will predictably result in a firing and few arbitrators would have reached a different result here, at least as the facts are reported.
This case involved a situation in which the parties had agreed in their CBA to treat certain types of infractions in certain ways. Where a CBA has such language, the role of the arbitrator in assessing progressive discipline and proportionality, normally important aspects of just cause, is greatly reduced. Under such language, once the arbitrator determines which category the offense falls under, the presumptive discipline for that offense applies.
Such offense “schedules” are not common in public safety labor agreements, but are not unheard of. Sometimes unions, especially in larger organizations, favor schedules because it makes it easier to evaluate and determine discipline grievances. Employers often will favor such schedules as it reduces the likelihood of discipline being overturned. We recommend against them because they restrict the ability of an arbitrator to weigh all relevant just cause factors, including mitigation. An arbitrator should be able to consider all relevant factors in assessing discipline.
In our view, rigid discipline schedules often work against the interest of employees because they restrict opportunities to present mitigation. Proportionality is a starting point for assessing the fairness of discipline but, as this arbitrator acknowledged, that factor cannot be applied with precision. Each discipline case contains its own set of circumstances.
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