In the wake of the George Floyd murder, tensions were high around the world, including in many prisons. The Stillwater State Correctional Facility in Stillwater, Minnesota is a high-security prison housing offenders found guilty of a variety of offenses, including violent crimes. In June 2020, many of those offenders were displaying signs of hostility based on the George Floyd murder and associated social unrest.
State of Minnesota, DOC and AFSCME involved an attack by two inmates of the facility against two correctional officers on June 12, 2020. One used a shiv to attack the other officer, while the grievant was punched repeatedly while on the ground. After other officers were able to subdue the attackers, the grievant took his can of pepper spray, walked up to one inmate who was held down, and sprayed him directly in the face. Following that, the grievant walked up to the other inmate, and started bragging to his attacker, agitating him into attempting to free himself of restraint. After being told repeatedly by his sergeant to leave the area, the grievant walked away from the incident, waving his arms, egging on other prisoners who were looking on as the incident occurred.
After the incident concluded, the Department of Corrections investigated the grievant’s actions, and found him to have violated several policies, including the use of force policy, which stated that staff are only to use the amount of force necessary to control a situation. The grievant was also found to have failed to properly document his use of chemical spray, as well as the DOC Code of Conduct for celebrating his use of force in front of other offenders. For his violations, the grievant was terminated.
At the arbitration hearing, Arbitrator Jacobs noted that the grievant was experienced and had a history of compliance with policies. However, the arbitrator also noted the culture within the prison facility that many offenders have little concern about engaging in violent behavior within the prison, and have long memories regarding actions taken against them by prison staff.
After his review of all evidence, the arbitrator determined that the offender who was sprayed with pepper spray “was not shown to be completely under control” at the moment he was sprayed. The arbitrator found that the grievant taunted the subjects under restraint, and ignored repeated orders from his sergeant to leave the area.
Of significance to the arbitrator’s decision was the fact that the warden of the prison, the one who issued the decision to terminate the grievant, never viewed the video of the assault until days before the hearing. The arbitrator stated that while that fact “was not enough to warrant sustain(ing) the grievance in its entirety, it was given considerable weight in making the overall determination.” Based on his own review, the arbitrator determined that the officer only used his chemical spray for about a second, and that the policy on use of force gave officers discretion in their use of force based on the totality of the circumstances. Because the offender who was sprayed was on his back, and not his stomach, and could have continued to resist, the officer’s use of force was not determined to be excessive.
While the arbitrator found that grievant’s celebratory fist pump and arm wave after the exchange to be a policy violation, he found that the officer had no intent to hide his actions in his report. There was no mention of the fact the officer ignored repeated directives from his sergeant to leave the area. Based on his findings, the arbitrator found that termination was too harsh of a punishment. Instead, the arbitrator returned the grievant to duty without any backpay, a de facto lengthy suspension.
This was a difficult award for the employer. It is clear that the employer tried to relay the severity of the grievant’s actions on the working environment of the prison, but was unable to prove the grievant’s actions were severe enough to warrant termination. This should serve as a warning to all employers – just because an employer, or society see some actions taken by peace officer as reprehensible, does not mean those actions will result in the employee’s termination being upheld. This case is also illustrative of law enforcement administrations’ frustrations with the arbitration process, that recently led to reforms in labor arbitration involving Minnesota licensed police officers (correctional officers are unlicensed). Arbitrators need the absolute full picture of a situation in order to be sure that termination is the proper decision.
If you, or your organization, need assistance in either the investigation of misconduct, or making sure the employer’s decisions are upheld in discipline grievances, contact the Wiley Law Office, for grievant arbitration experience that works.