The Grievant, a Police Officer with five (5) years’ service with the Department, was a Detective and on the DEA Task Force. Grievant attended a party that was hosted by an EMT for members of the City’s Fire Department. The Grievant accompanied his former girlfriend who was friends with the hostess. After drinking alcohol and possibly being intoxicated, the hostess and Grievant engaged in a discussion regarding police control techniques. Grievant offered to demonstrate and showed her how to spin a suspect and they both fell to the floor. As he got up, he swatted her buttocks and stated “good game.” The incident was not reported initially.
Approximately three (3) months later, the hostess attended a city training session at which the Grievant was in attendance. Upon seeing the Grievant, the hostess immediately left the training. When questioned by the Fire Chief as to why she left the training, she relayed what had occurred at the party three (3) months prior. She provided a written statement which was presented to the Police Chief who initiated a criminal investigation (outside agency), an internal investigation and placed the Grievant on administrative leave. The criminal investigation resulted in the Grievant being charged with three (3) counts of assault and one (1) count of sexual imposition. Although the City initially indicated that it would wait for the conclusion of the criminal case before deciding what action would be taken regarding Grievant’s employment, it decided to move forward with discipline, citing ten (10) policy violations in its notice of termination. After the termination, the criminal case was resolved when the Grievant pled guilty to attempted assault, was placed on probation for two (2) years and prohibited from possessing a firearm or contacting the hostess.
At arbitration, the Employer argued that the Grievant brought discredit to himself and the Police Department. He assaulted the hostess multiple times: he tackled her to the floor and fell on top of her injuring her shoulder in the kitchen; he placed her in a chokehold, threw her to the floor, dragged her across the room and smacked her on the buttocks in the basement; he grabbed her and tackled her on the stairs. The Employer argued that it applied progressive discipline in that the Grievant had an active discipline of 160-hour suspension for an OVI conviction. In defending its decision not to conduct an interview of the Grievant during the internal investigation, the City argued that the criminal investigation which was done by an outside agency included an interview of the Grievant. The Employer further asserted that no police officer had ever been charged twice and convicted and still employed by the City. This was a second serious incident involving the grievant and alcohol. Further, the firearm disqualification imposed as a condition of his probation barred reinstatement.
The Union argued that Grievant was a good employee, had excellent performance evaluations, was Officer of the Year three (3) years earlier, was appointed as a Detective and placed on the DEA Task Force, all within only five (5) years with the department. The Union argued that the Grievant and hostess had discussed police control techniques and that the Grievant had offered to demonstrate, that the hostess was a willing participant and there was no intention to cause harm to the hostess. The Union criticized the Employer’s failure to obtain a signed “Complaint Against Employee” form from the hostess, its failure to record the interviews, and its failure to provide the Union with the written statement from the hostess until just prior to the pre-disciplinary hearing. Relevant materials were not provided to the Union prior to the pre-disciplinary hearing but were provided to the Grievant’s criminal attorney. The Union also pointed out multiple inconsistencies in witness statements. The Union also argued that termination was not reasonably related to the alleged offense and that termination was excessive, not corrective and not in accordance with the principle of progressive discipline.
The Arbitrator found the hostess to be a credible witness, and her testimony was generally uncontroverted and was supported by the one person who witnessed one of the incidents. The Arbitrator rejected the Union’s argument that the hostess failed to immediately report the incident, noting that it is fairly common for victims of physical and sexual assault to allow fear and embarrassment to delay the reporting of incidents. The use of an outside agency to conduct the investigation and interviews is not unusual and was not in violation of the Collective Bargaining Agreement (CBA). The Union was provided with “sufficient documentation” prior to the pre-disciplinary hearing, which was in conformance with the CBA. While the Arbitrator commented that the City should review its procedures in recording interviews, the written summaries and statements were sufficient proof. The Arbitrator found the inconsistencies in the statements to be de minimis.
The Arbitrator allowed the guilty plea in the criminal case and the terms of probation to be admitted at the arbitration. The Arbitrator reasoned that the evidence was allowed in support only of the original reason for termination, as opposed to additional grounds which would not be admissible. Finally, the Arbitrator noted that the Grievant had only been an employee for five (5) years and already had two (2) incidents involving serious violations, therefore there was no violation of the progressive discipline standard.
Grievance denied.
Employer: Tipp City Date: January 2025
