Page 19 - FOP August 2019 Magazine

dark, sarcastic police humor, sometimes crude and not nec- essarily appropriate in another setting, but among the police officers, the comments, language or behavior were not taken seriously.
These exchanges happened at roll calls, over the phone and via text message, both on and off duty — and often would be encouraged by the sergeant, who would also engage in these exchanges with the police officers because he wanted to “foster camaraderie” among the people he supervised. Such conduct remained acceptable and funny, until the sergeant unilaterally decided it no longer was acceptable and funny to him.
In the early afternoon, the grievant called his sergeant and jokingly told him that the grievant and his father were going to go to his house and kick the sergeant’s *ss. At the hearing, the sergeant testified that he laughed and did not find this state- ment threatening.
About half an hour later, however, the grievant called his ser- geant again. This time, the grievant threatened the sergeant us- ing a serious tone. The following day, the sergeant reported the incident.
While testifying at the hearing, the sergeant readily acknowl- edged that he had fostered an atmosphere that included “gal- lows humor” and the exchange of crude or even profane mes- sages.
At the hearing, the Lodge further presented extensive testi- mony from the grievant, two officers and another sergeant con- cerning the inappropriate interactions that the grievant’s ser- geant had with other members of the district.
Nonetheless, the Lodge and grievant acknowledged that the statements were made, leading the arbitrator to find a clear vi- olation of department work rules and finding the department justified in issuing a short suspension. However, the City’s pun- ishment did not stop there.
The arbitrator went on to conclude that the City violated the parties’ contract when it detailed and then (nearly two years lat- er) permanently reassigned the grievant to another district.
The arbitrator found that the district commander, only seven days after the incident, before an informal investigation even took place and without speaking to either the sergeant or griev- ant, recommended that the grievant be detailed out to another district because there was a “flavor of violence.”
After only working a few days in the new district, the depart- ment placed the grievant on involuntary medical leave and forced him to undergo a mandatory fitness-for-duty evaluation.
Eventually, the department found him fit for duty and re- turned the grievant to work at a new district a few months later. By this time, the grievant’s sergeant had been transferred out of the old district. But the district commander made no effort to cancel the grievant’s detail.
In fact, at the hearing, the investigator stated that even though the grievant had acted unprofessionally at the time, he “was a dedicated officer and FTO, had been a mentor to pro- bationary officers, was a military veteran and had completed advanced studies.”
The grievant remained at his detail for two more years. After two years, the City performed a “cleanup” operation in which it permanently assigned the grievant to the new district (without any legitimate explanation).
Not surprisingly, the arbitrator found the department’s in- voluntary transfer to be disciplinary in nature and without just cause. The arbitrator noted that the commander “conducted literally no investigation” and afforded the grievant none of the due process protections required by the City before it can im- pose any such additional discipline (the grievant already had received a short suspension).
In fact, as the evidence established, no one told the com-
mander that the grievant posed a danger to the sergeant; the sergeant never requested the grievant to be transferred; the department transferred the sergeant a month later; the com- mander never spoke to the sergeant; and, most importantly, the commander never requested any information about the under- lying incident.
The arbitrator opined that:
1. If the grievant posed a risk, that risk was eliminated af-
ter the sergeant was transferred and the grievant’s detail
should have ended, and;
2. If the grievant was unfit for duty, he would have been un-
fit at any district.
In essence, she found the department’s actions to be unjus-
tified.
As a whole, the arbitrator found the grievant to be a fine,
well-respected officer who had engaged in some misconduct, for which he deserved a minor suspension.
However, the City had no basis to assess the grievant the ad- ditional sanction of a permanent reassignment, which signifi- cantly impacted his reputation, career and day-to-day work life.
The arbitrator properly rejected the City’s argument that its conduct had been a purely operational action, finding the City’s continued reassignment to be a “punitive one, that is, disci- plinary.”
As part of the remedy, the arbitrator ordered the City “to re- scind the grievant’s assignment” and to return him to the FTO position he had held prior to the January 2016 detail.
Additionally, the City is required to make the grievant whole from the date of the detail until he is returned to his position prior to the reassignment.
Overall, a great victory for the grievant.
A special shout-out to attorney Brian Hlavin for another job well done!
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