By: Jim Cline and Jordan L. Jones
In Chelan County, Arbitrator James A. Lundberg found that Chelan County did not have just cause to terminate a 19-year veteran Sergeant and ordered that he be reinstated with back pay as part of the decision’s “make whole” remedy. In a case handled by the Cline and Casillas firm, Lundberg rejected the County’s argument that Sergeant had “lied,” noting that the County overlooked many holes in its case.
A 19-year veteran Sergeant with zero discipline history with the Sheriff’s Office was placed under internal investigation for allegedly being untruthful. The investigation stemmed from the Sergeant working overtime into the next day he was to perform a regular shift.
The controversy stemmed from a CBA provision which requires eight hours in-between shifts The Sergeant, conscious of this clause, told the Employer that he would sign into service approximately eight hours after overtime was over but while he was already working with his partner in the next shift. The County subsequently terminated the Sergeant finding that he was untruthful during the internal investigation regarding various statements he made about the circumstances of his work.
The Deputy’s Association argued that the County did not show by sufficient evidence that the Sergeant was untruthful. The Association contended that the Sergeant never said the County approved of his plan, rather he explained how he presented his plan to his supervisor who did not disapprove. The supervisor repeatedly told him in one way or another to comply with the eight hour rule and thereby gave tacit approval. The union also argued that the County did not prove that the Sergeant’s recollection of what two other employees said about management being responsible for the eight hour rule was a “lie.” Association also argued that the evidence presented by the County did not support finding that the Sergeant lied about when he started his shift before signing into service.
The Arbitrator strongly criticized management’s lack of fairness. The Arbitrator found that “[f]rom the very start the Employer was looking for conduct that was untruthful, deceptive and serious enough to result in discipline, otherwise [the Sergeant] . . . would have been treated like all other department employees had always been treated” which was to be counseled to comply with the eight hour CBA rule. The Arbitrator noted that a “fact that can be established simply by looking at the time records in this case is that [the] Sergeant] . . . was not benefiting financially from the alleged misreporting.”
The Employer failed to establish a credible reason for initiating an internal investigation. No other Sheriff’s Department employee has ever been disciplined for the same or similar rule violations alleged by the Employer. The treatment of [the] Sergeant . . . was disparate, which violates the just cause standard.
The investigation was neither thorough nor was it unbiased. The investigation presumed statements made by [the] Sergeant . . . to be untruthful when the evidence would equally support findings that the statements were mistakes, conflations, and/or misunderstandings.
The Arbitrator also noted that the Sergeant did not lie when he claimed he had received permission from another Sergeant to sign into service at 11:00 AM nor that the Sergeant lied or was deceptive about his recollection of what other witnesses said to him about the eight hour rule.
The Arbitrator also found that the County failed to follow-up on new evidence presented at the Sergeant’s Loudermill hearing.
The Union’s analysis of the travel time to the Wanapum Dam launch site from Wenatchee was presented at a Loudermill hearing. When presented with a credible alternative explanation, the Employer did not evaluate the evidence by doing its own drive through. Hence, the factual investigation was not thorough. The Employer did not establish by a preponderance of the credible evidence that [the] Sergeant . . . lied about what time he got on the water.
The Arbitrator ordered that the Sergeant be reinstated in the same position he would have been but for his unjust termination. The decision’s “make-whole” remedy included back pay with interest.
This case demonstrates the seriousness with which arbitrator’s hold the just cause standard that the discipline process be “thorough and fair.” The Association was successful in this case not just because it undermined the employer’s evidence that the Sergeant was untruthful, a claim that had many holes in it. It also was successful because it directly attacked the County’s review process. Although the employee’s guilty of the charge is the issue of overriding importance, an attack on the employer’s bias can effectively undermine the entire charge.
