By Jim Cline and Jordan L. Jones
In City of Tampa, 133 LA 1128 (Smith, 2013) the arbitrator held that an officer who was discharged for violating excessive force should be reinstated. The arbitrator found that the City of Tampa (Employer) did not consider the officers lack of previous discipline and potential for retraining.
The officer had gotten into an argument with a newspaper vendor lacking proper identification and warned him “next time don’t be disrespectful to police.” A short time later he returned and the newspaper vendor was resuming sales. The City alleged that when he arrested the vendor the officer delivered five baton strikes “while the vendor acted with minimal resistance.” While striking the vendor, the officer asked “o do you want another?” The officer had captured the incident on his own surveillance camera but did not turn it over as evidence, even that that was required by policy.
The City also alleged that three days later the officer arrested another suspect using “an unauthorized technique of having her handcuffed arms extended past her mid back” to the point where her feet “barely touch[ed] the ground.” The officer was fired.
The Union contended that “progressive discipline does not give rise to just cause to terminate the Grievant.” The Union also asserted that the City had “failed to demonstrate that training for the Grievant, in lieu of discharge, would have been ineffective.”
The arbitrator noted that the CBA requires that no “employee shall be disciplined except for just cause. Progressive, consistent, and appropriate discipline will be administered according to the seriousness of the offense . . . .” Among the seven tests for determining just cause (as described by Arbitrator Carroll R. Daugherty in Enterprise Wire Co., 46 LA 359 (Daugherty, 1966)), the arbitrator found the following factors pertinent to the circumstances of this matter:
Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee with the company?
The arbitrator found that the officer had a 6 year record without discipline. The arbitrator determined that the officer had an “excellent work record.”
He observed that the Police Chief had “acknowledged that she did not review the Grievant’s performance evaluations because she concluded that the ‘violation necessitated termination.’”
The arbitrator stated that “discipline, sometimes referred to as ‘corrective action,’ is designed to correct the conduct of an employee” and he found that the Employer failed to show that “progressive discipline and retraining would be ineffective.” The arbitrator held that “the penalty of termination is this case is too severe.”
The offenses for which the officer was charged were serious ones. Many employers would discharge on these alleged facts and those discharges would often be upheld. The case demonstrates the potency of the progressive discipline requirement.
The concept that discipline be “corrective, to punitive” is captured by the progressive discipline concept. But also, as this arbitrator noted, the concept of correction also often contains a requirement that employees be provided retraining opportunities.
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