By Jim Cline and Kim Lowe
In King County, Arbitrator Latsch upheld the discharge of Deputy Fire Marshall, Mr. A, who was fired after a citizen complained that he drove aggressively in his work vehicle and harassed her. Latsch found that King County had just cause to terminate A, in large part because of A’s “evasive and false statements” about the incident and repeatedly changing his story while it was investigated.
Mr. A had 30 years of fire safety experience when he joined the County’s Permitting Division as a Deputy Fire Marshall in 2015. The incident that led to A’s termination occurred in September 2020. A citizen complained to the County that A, while driving his work vehicle, tailgated her, flashed his lights, honked his horn and flipped her off while on the road. She also alleges he verbally harassed her, using profanity. The complaining citizen took videos and photos during the interaction in which A could be seen wearing a gold badge. A later admitted to having the badge made for himself since he liked wearing it during his official duties for King County. The County had already considered getting Fire Marshalls badges but rejected the proposal. When the incident was investigated, A was found to have changed his story and lied about particular details repeatedly. The County discharged A in January 2021.
The Union argued there was no just cause to terminate A in part because the County’s allegations of dishonesty were too vague to provide the basis of a termination. While A recognized he made a mistake in his interaction with the citizen, his actions were not so reckless or serious that he should be discharged. The Union also argued that the County’s case against A rested “solely on unreliable hearsay,” noting that the complaining citizen did not appear at the arbitration.
King County argued that it conducted a fair and complete investigation which yielded several kinds of misconduct that form an appropriate basis to fire A. He was not only untruthful, but the investigation found A altered his work uniform without permission and against orders from the Department’s Director. When the County asked specifically about the discrepancies, A was evasive again. The County stated that it made every attempt to have the citizen present at arbitration but she had safety concerns and refused to comply with their requests. Even so, the County argued that its evidence was sufficient to support A’s discharge.
Arbitrator Latsch determined that King County had just cause to terminate A. Despite A’s claims that no one ever told him he could not wear a badge, Arbitrator Latsch found that:
“Mr. A__ took his work seriously, but he believed that his appearance did not support his position of authority. He created a fake badge and wore a fire helmet that were not authorized. In fact, the Employer made it clear that Mr. A__ should wear civilian clothing to emphasize the customer service aspect of his work. He chose not to follow those directions.”
Though the Union had a valid concern regarding the citizen complainant refusing to appear at arbitration, Arbitrator Latsch accepted the County’s evidence of her statements to investigators and the videos and photos she took during the incident. This provided sufficient proof of A’s fake badge and alteration to his uniform.
“During the course of the incident, Mr. A__’s use of an unauthorized badge came to light, and he made obvious attempts to hide the badge when the citizen recorded events with her telephone. When confronted about the use of a badge, Mr. A__ gave vague answers that did not specifically address the issue. The Employer was able to determine that Mr. A__ followed a general course of deception that could not be tolerated for the position he held.”
Doing something stupid can get you fired. Lying about doing something stupid increases the likelihood that you’ll be fired. Notwithstanding his 30 career, the seriousness of these events caused the arbitrator to bypass the normal progressive discipline requirement.
That said, the outcome of this decision is suspect. As noted, the complaint did not appear and was not subject to cross examination. The normal arbitration principle when it comes to hearsay evidence is that it is admissible and it may be used to corroborate parts of the employer case, but it cannot be used as the sole proof on the key allegations that form the basis of the discipline. While the County argued successfully to bypass that requirement when it offered photos taken by the citizen, many arbitrators would not have sustained this case relying so much on hearsay.
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© 2022 Cline & Associates. Any and all text apart from the headnotes belongs entirely to the Washington State Public Employment Relations Commission. Cline & Associates disclaims any authorship or rights to said text.
