By: Jim Cline and Clive Pontusson
In The Geo Group, Arbitrator Samuel Nicholas found that a detention center had just cause to terminate five corrections officers who had engaged in misconduct and then sought to cover the misconduct up. After one officer left his post in violation of detention center rules, four others amended statements about the incident. The Arbitrator found that the employer had conducted a thorough and fair investigation that produced clear and convincing evidence of misconduct. As a result, the termination of these four employees was upheld.
A corrections officer at a detention center in Texas managed by the GEO Group had been tasked with supervising an inmate on outside hospital watch. A regulation required that two officers were required to be on duty in this situation. According to the finding of the Arbitrator, the officer left his post. When an investigation was launched into this alleged misconduct, three other officers who were nearby were asked to give statements. As the investigation progressed, it was determined that the other four officers had given false statements to protect the first officer. On this basis, all four officers were terminated, and the Union filed five grievances that were consolidated into one issue for the Arbitrator to decide.
The union began by stating that the decision to terminate must be made on the basis of clear and convincing evidence: because statements of the fired officers and statements of others were in direct contradiction of each other, the evidence of misconduct was not clear. But the union also argued that the statements made by the officers were absolutely true, and since no one else was present, any other statements were “hearsay” that the Arbitrator should not consider.
The employer argued that their investigation had been thorough and fair. The employer argued that the testimony of the employees was necessarily self-serving, and so the Arbitrator should not trust it. The Employer pointed to the fact that once an officer revised his statement so it matched the others to show all five officers had conspired to make false statements. The employer also argued that the officers had made initial statements that contradicted one another.
The Arbitrator was convinced by the employer’s argument and upheld the termination of all four officers. He acknowledged the union’s point that any termination or adverse employment action must be supported by clear and convincing evidence. Here, the Arbitrator found the evidence clear and convincing. He drew particular attention to the fact that one of the officers had written an initial statement that proved the first officer had left his post. That officer then amended his statement to remove this fact. The arbitrator also found some written statements convincing even though the person who made them was not present at the hearing, because these statements were carefully corroborated by investigators. As a result, the arbitrator concluded that,
The Company has unequivocally satisfied its burden of proof via a preponderance of the evidence submitted during the arbitration hearing… Furthermore, the acts of abandoning a post and falsifying or lying during an investigation are terminable offenses. The Company went through great lengths to secure a fair and impartial investigator… who in no way was associated with [the Detention Center].
The Arbitrator ended his decision with a note on the importance of trust in correctional officers:
In light of the fact that the Grievants were clearly willing to conspire and falsify facts during the investigation process, Management’s ability to trust the Grievants in the future was placed in doubt… I find that the Company had just cause to terminate the Grievants.
Apart from the application of the mere “preponderance” standard (more arbitrators would apply a higher standard such as “clear and convincing”), the result here was entirely predictable. It was a really stupid idea to lie and an even stupider idea to lie for the sake of a coworker. The general rule that applies here is “you lie, you die.” We’ve argued successfully in certain special contexts that dishonesty can be mitigated to a lesser penalty but not on the facts here of deliberately falsified reports.
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