1. Which party has the burden of proof? 2. Which level of proof should be used by...

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Question:

1. Which party has the burden of proof?

2. Which level of proof should be used by the arbitrator?

3. Is this matter a contract administration case or a disciplinary case? Which party should go first at the hearing?

4. Should progressive discipline have been used in this matter? Why? Why not?

5. Which side has the best arguments? 6. How should the arbitrator decide? Give your reasons.

Case Study 13-1

In Anywhere, United States, an incident that received national attention occurred. In a gated neighborhood that had experienced recent frequent crimes, a neighborhood watch group was formed to provide night watch on traffic in the neighborhood. Late one night, two teenagers were walking through the neighborhood and Citizen A who was on watch that night and armed with a pistol observed two teenagers and stopped them. Citizen A asked the teenagers what they were doing in the neighborhood. One teenager who was quite large for his age answered: “It’s a free country; this is the direct path to my house; I will walk wherever I want to walk.” Citizen A responded: “This is a private property and you are not welcome here.” The larger teenager reached in his pocket. Citizen A later told police that he thought the teenager was reaching for a weapon and he fired his pistol. A neighbor who heard the shot called 911 and an emergency medic unit was dispatched. Upon arrival, the teenager was declared dead. Needless to say, the incident drew much attention locally, even national. Group leaders wanted Citizen A to be arrested and put in jail. The local police began to conduct their investigations. Citizen claimed self-defense and relied on the state’s law of “Stay Your Ground”.

The local media began writing articles for the newspapers and the television stations began interviews with interested parties. The incident became the topic of discussion within the community. Captain Firefighter, a 15-year veteran of the fire department, became interested in the subject and, during his off- hours, posted the following on his Facebook page:

I and my coworkers could rewrite an entire book on whether our urban youths are victims of profiling or products of their failed, pathetic, welfare dependent parents.

Once Captain Firefighter posted this message and the message went viral. Many group leaders called for Captain Firefighter’s termination. After an investigation into the matter, the Fire Chief concluded that Captain Firefighter had hurt the public’s trust in the fire department and decided to suspend Caption Firefighter for two weeks. When the mayor heard of the two-week suspension, he was upset. The mayor thought that a two-week suspension was an insufficient penalty for Captain Firefighter’s offense.

Instead of a suspension, the mayor decided to demote Captain Firefighter to a regular firefighter, two ranks below captain.

Upon being notified of his demotion, Captain Firefighter immediately filed a grievance Article IV (b) of the collective bargaining agreement that stated: The Fire Chief will make all disciplinary decisions.

The Union’s Position:

The Firefighters union argued that Captain Firefighter had the constitutional right to express himself even though the city administration did not like his message. Captain Firefighter testified at the hearing: “I am a private citizen and have the same right to freely express myself on any subject that anyone else does.” Importantly, Captain Firefighter did not violate the city’s social media policy and he did not identify himself as a city employee or a captain within the fire department. Moreover, the city is not in the business of regulating employee’s speech on an employee’s own time, even if others find it offensive.

The union argued that Captain Firefighter had an impeccable record with no discipline for 15 years.

The union also argued that even though the mayor held a higher officer than the fire chief the collective bargaining agreement authorizes only the fire chief to make disciplinary decisions. In addition, the union argued that the disciplinary action was excessive and not progressive.

The union claimed that the publicity given by the news media to this case has caused the city to overreact and the city administration has tried to appease the loudest voices. This matter is simply a case where internal labor relations principles should prevail and the city has not proven that disciplinary action should have been taken. Therefore, the grievance should be sustained, Captain Firefighter should be returned to his caption position, and he should be made whole for any loss of benefits, pay, or seniority.

The City’s Position:

The city argued that Captain Firefighter had embarrassed the city and had betrayed the public’s trust with the fire department. The city argued that, unless it took more serious action than a mere suspension, the citizens of the city would not have confidence in and support the city’s administration. With all the attention now focused on this matter, the city was forced to take more dramatic discipline than a mere two-week suspension. The city argued that there is an important principle here: “the penalty should fit the crime.” The two-week suspension does not fit the offense committed by Captain Firefighter.

The position of captain is second highest position in the fire department, just below the chief. Captain Firefighter has now lost the respect of this fellow firefighters and citizens. Allowing Captain Firefighter to remain in the captain position would essentially make him nonfunctional. Moreover, the city called it to the attention of the arbitrator that Captain Firefighter had never recanted his message and never apologized for his actions. Further, the city called to the attention of the arbitrator that the mayor is ultimately responsible for running the city, not the fire chief. Therefore, the mayor’s decision should prevail and the grievance should be denied.