By Jim Cline and Geoff Kiernan
In the City of Piqua, an Ohio Arbitrator found just cause for the discipline of an off-duty police officer who violated several departmental policies in an attempt to “catch” the teens who toilet papered his house. The arbitrator held that while the officer was within his rights to chase after the perpetrator, he nevertheless went beyond his legal authority and disobeyed the orders of on-duty police officers on the scene.
On April 28, 2013, Piqua Officers were dispatched to the Grievant’s residence when a neighbor called and reported that youths were toilet papering the house. An on-duty officer called the Grievant and told him to stay inside and be a witness to the event. Disregarding that direction, he immediately ran out of the house and began chasing the individuals.
He grabbed one of the individuals, who happened to be a family friend, and shoved and punched her to the groundholding her down until the on-duty officer arrived. When this happened the on-duty officer suggested that the Grievant return home and calm down. But after returning home to take a shower, the Grievant returned to the scene and began yelling and cussing at the TP perpetrator. The officer on scene again asked the Grievant to return home. Then another youth who had been involved in the incident returned to the scene. Grievant immediately confronted him, yelling profanities and waving his arms wildly. The on-duty officer stated that he was worried that he would have to charge the Grievant with disorderly conduct.
A commanding then arrived. Grievant asked if he was on camera, when he heard the answer was no, he stated to the commanding officer that he hoped the TP suspects leg or ankle was broken. The commanding officer at this point felt that Grievant’s anger was escalating rather than de-escalating.
Grievant was ultimately disciplined for violating the city’s policies pertaining to off-duty conduct and insubordination. The Chief imposed a 28 day suspension and a “last chance agreement.”
It was the union’s position that City violated the CBA because it issued excessive discipline and ignored the principles of progressive discipline. Furthermore the Union contends that the City unilaterally changed the Grievant’s terms of employment when it implemented a last chance agreement. The city held that since the Grievant’s conduct violated several departmental policies its level of discipline was reasonable given the nature of the offenses committed.
The arbitrator was unconvinced by the union’s arguments. He stated that while the contract did clearly provide that the Employer shall follow principles of progressive discipline, the provision also stated that progressive discipline may begin at any step. The Arbitrator found that the Chief issued several citations for separate issues occurring during the same incident, and then compounded them. Thus, it was determined that he did use the principles of progressive discipline.
Furthermore the Arbitrator explained that once it is determined that officer committed violations of City policy, which was largely undisputed here, it is within the scope of managerial discretion to determine the appropriate penalty. The arbitrator wrote:
The evidence on the record indicates that the Chief gave considerable thought to the level of discipline to impose in this situation…this arbitrator generally follows the principle that the determination of the appropriate discipline is a function that lies within the discretion of management and should not be disturbed absent an abuse of that discretion
Here the arbitrator found no evidence to suggest the City abused its discretion when determining the appropriate penalty. Thus, the arbitrator found the City’s position was reasonable and found just cause for the discipline.
This case involves a series of mistakes. First, the officers described conduct is unacceptable by almost any norms and would likely warrant the 28 day suspension imposed.
Second, the Chief imposition of an “agreement” makes no sense. Agreements involve consent. And even if the individual officer was willing to enter these terms, any “last chance agreement” is invalid without the specific written consent of the union. Bypassing the union to enter a last chance agreement (LCA) is normally viewed as an unfair labor practice.
Third, the arbitrator here woefully failed by not acknowledging these well established principles concerning LCAs. While the City would have been within its authority to impose a last chance or final “warning” of some type, such a warning does not have the impact of a last chance “agreement.” Such an agreement waives the ability to the employee to grieve a decision to discharge him, other than on the basis that the sustained charge was unproven. In other words, a last chance agreement waives any requirement that the discipline be progressive, proportionate or otherwise reasonable.
Notwithstanding the arbitrator’s ruling, it is doubtful that his conclusion sustained the last chance “agreement” has validity or effect. A future arbitrator or court would likely find that no specific contract was formed waiving the employee’s right to grieve. On the other hand, the record of this discipline and event would stand and would constitute progressive discipline, possibly permitting a later termination based on what otherwise might be a less significant rule violation.
