The Grievant is a patrolman who was terminated following an incident when he was found asleep in his patrol vehicle during the night shift. Prior to the termination, the Grievant had accumulated multiple disciplinary actions for discourteous treatment of the public and excessive use of force, all classified as Group 2 offenses under the City’s progressive discipline policy. Just prior to the incident that resulted in his termination, he received a two-day suspension for discourteous treatment of the public and was directed to undergo a fitness-for-duty psychiatric evaluation. A mental health assessment was conducted by a psychiatric mental health nurse practitioner who did not expressly determine whether he was fit for duty. The Grievant returned to work and during the night shift, pulled off the road into the parking lot of a church where a supervisor discovered him asleep in his patrol car. After a pre-disciplinary hearing, the City terminated his employment and the Union filed a grievance.
The first issue before the Arbitrator involved the City’s progressive discipline policy. The Arbitrator stated that the policy could be interpreted to permit termination once an employee had committed three Group 2 Offenses and, since the Grievant had committed nine Group 2 Offenses, he might have been properly discharged under that interpretation. However, the Arbitrator found that the policy could also be interpreted to require that the steps of discipline be followed which the City had not done as outlined in its policy. Although the Grievant had several prior offenses, he had only recently received discipline equivalent to a first-step offense (2-day suspension) and had not progressed through all prescribed steps before being terminated. As a result, the Arbitrator concluded that even if the sleeping incident was properly characterized as a Group 2 offense, discharge was not the appropriate penalty.
The second issue concerned whether the Grievant’s conduct constituted “sleeping on the job” sufficient to establish just cause for termination. The Arbitrator emphasized the distinction between intentionally deciding to sleep while on duty and unintentionally nodding off. While the evidence showed that the Grievant fell asleep, the City failed to present evidence demonstrating that he intentionally chose to sleep. The patrol vehicle was parked in an open and visible location, and there was no evidence that he attempted to conceal himself or deliberately create conditions for sleeping. Consequently, the Arbitrator determined that the City had not established just cause for discharge based on the sleeping incident.
A third issue involved the “fitness for duty psychiatric evaluation.” The Arbitrator recognized the City’s right to require such an examination. However, the Arbitrator found that the interaction that the Grievant had with the nurse practitioner did not constitute a true fitness-for-duty psychiatric evaluation. The evaluator was not a psychiatrist, had not been provided relevant disciplinary information, and did not address whether the Grievant was fit for duty. Accordingly, the Arbitrator concluded that the Grievant had never actually been certified fit for duty and that the City could require a proper fitness-for-duty psychiatric examination before returning him to active service.
The Arbitrator sustained the grievance and found that the Grievant’s termination was not supported by just cause. However, he was not awarded back pay and was not entitled to reinstatement unless he either successfully passed a new fitness-for-duty psychiatric examination or the City chose not to require one. The period from his discharge to his reinstatement shall be treated as a medical leave of absence. If the Grievant fails the examination, he shall be permitted to resign.
Employer: City of Salem Date: January 2025
