At last week’s MPELRA Summer Conference, we heard from five arbitrators about their arbitration style and tendencies for hearing grievance arbitrations.  The panel enlightened the audience on things they look for from representatives, and things that might save an employee who is in danger of being terminated for proven misconduct.  As usual, when talking to ex-lawyers, we heard, “It Depends,” a lot.  That included a question about whether a long-term employee’s good work history is taken into account when determining the appropriate level of discipline.  In Mower County and LELS, the grievant’s unblemished career saved him from termination.

The facts behind the discipline are pretty basic.  In 2023, the grievant was involved in a high-speed pursuit involving a vehicle being operated by a new driver.  The chase initially involved an Austin police sergeant who lost sight of the suspect vehicle.  However, the grievant was informed of the vehicle, and began pursuit after seeing the suspect’s taillights in the distance, reaching speeds over 120 miles per hour.  However, the grievant failed to activate his squad car emergency lights.  The chase ended with the juvenile’s vehicle crashing, and both the driver and passenger were thrown from the vehicle and hospitalized.

During investigation of the incident, the grievant admitted that he should have disengaged from the pursuit earlier rather than pursuing the suspects at such high rate of speed.  During his testimony, the grievant admitted he failed to turn on his emergency lights until well into the pursuit.  He also admitted his report also included several misstatements about his actions, and distance that he was engaged in pursuit.

However, the Sheriff’s Office also noted several inconsistencies during the grievant’s internal affairs interview, which led them to believe he was either lying, over at the very least, being misleading.  As the Sheriff found both conflicting statements as well as acceptance of responsibility, he terminated the grievant’s employment.

In his award, Arbitrator Jeffrey Hassan found that the employer “carried its burden of proof and established just cause to impose discipline…”  The arbitrator found that the grievant violated both pursuit policies as well as the report writing policy, for providing misleading and inaccurate information.  However, the arbitrator found that the termination “was out of proportion to [the grievant’s] service record, and the employer’s treatment of other officers in like circumstances.”  In a unique turn of events, the arbitrator announced, at the hearing, that termination was too severe of discipline for the grievant, and asked the parties to focus on the appropriate level of discipline in their post-hearing briefs.

However, the arbitrator disregarded the levels of discipline proffered by both parties, and issued a six-month suspension.  He based this off of the grievant’s “seniority, positive standing among his fellow officers, exemplary conduct and absence of past misconduct.”  For most public employers, a five year career is not what we would consider long term.  However, in this situation, because the grievant’s tenure was completely free of disciplinary action or negative performance reviews, the arbitrator found his record to warrant his reinstatement.

When pursuing termination, an employer’s ducks all need to be in a row.  Any weakness in a case could be grounds for a sustained grievance.  If you, or your organization, need assistance in applying the appropriate level of discipline for employee misconduct, or having that discipline upheld in arbitration, contact Wiley Reber Law, for arbitration advice that works.