By Jim Cline and Geoff Kiernan
In Cuyahoga County Court, an arbitrator ruled that County did not meet its burden of proving just cause when it fired a detention officer for insubordination and excessive force. The arbitrator found that it was improper to fire the officer for insubordination because he did not explicitly understand the order, and he was not informed of the consequences of failing to follow the order. The arbitrator also ruled the court did not have just cause to discharge the officer for excessive force when he was only defending himself.
The detention officer worked at juvenile dentation center where there was a clear policy in place that officers could only use violence in self-defense and never as a punishment. However as result of over- crowding the detention center was forced to house several adult inmates aged 18-21. These inmates were typically violent and were separated from the other inmates. One of these inmates, MR, was especially violent and as result certain precautions were ordered to be taken when dealing with him. An email was sent out by prison supervisors laying out that MR should never be dealt with one- on-one. Detention Officer H didn’t read the email, and proceeded to take MR his food by himself. Then within a one minute period of H entering the cell, a fight ensued and the officer ended up hitting MR 6 times. As result of this altercation H was fired for failing to follow the orders laid out in the email and for using excessive force against an inmate.
It was the county’s position that the Officer was fired for disobeying a direct order from his supervisor and engaging in excessive force. The county argued that the Officer was the aggressor which means that his use of forces was necessarily unjustified and unreasonable.
The union argued that the Officer acted in self-defense. It also argued cannot be guilty of insubordination because the county could not prove that the officer had knowledge of the order he was disregarding.
As a preliminary matter the arbitrator explained that employer had to prove each charge with “clear and convincing evidence.” The arbitrator found that the video evidence clearly showed that the officer acted in self-defense. The entire incident took place in the span of a minute, and the tape showed that officer was simply reacting to the violent acts of MR. The tape showed the officer attempted to calm the inmate down, but ultimately was unable to. Any violence done by the officer was done purely in a defensive manner. The arbitrator suggests that the county cannot use its policies to forbid an officer from defending himself, he explained:
That theory ends in the cul de sac that employees must surrender the right to defend their person a condition of employment but the Arbitrator will not impugn the Employer with that right
As for the insubordination charge the Arbitrator ruled that the county failed to find the specific intent necessary for proving insubordination as the substantive cause for the termination. The arbitrator explained that it is very difficult to prove terminable insubordination as it requires a willful disregard for orders, not simply negligence. Furthermore an employee must understand the consequences for failing to follow the order. The arbitrator explained:
[the email] did not state the consequences of failing to comply. This factor is often the critical one in determining the difference between terminable insubordination and ordinary insubordination. If the employee is told of the consequences and persists, he knows that he subjecting himself to termination. If that specification is omitted, it more difficult to justify termination, if at all
So because the officer had no way of knowing the consequences of violating the new policy, it would be incredibly unfair to fire him for failing to follow the policy. Thus the grievance was sustained and the Officer returned to work.
This case directly involves at least two important issues: the burden of proof in arbitration and the standards for proving insubordination.
Arbitral case law is divided on use of the civil law preponderance standard versus the intermediate “clear and convincing proof” standard. The majority of Northwest arbitrators tend to use the later standard but nationwide the majority seem to follow the less “mere preponderance” standard. On a close call case, especially one involving credibility, which standard is applied can definitely impact the outcome.
