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IN THE MATTER OF ARBITRATION ) GRIEVANCE ARBITRATION
)
between )
) Robert Lambert Termination
City of Mendota Heights, ) Grievance
Minnesota )
)
-and- ) BMS Case No. 17-PA-0049
)
Minnesota Public Employees )
Association ) February 27, 2017
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APPEARANCES
For City of Mendota Heights
Kevin J. Rupp, Attorney, Rupp, Anderson, Squires & Waldspurger,
P.A., Minneapolis, Minnesota
John P. Edison, Attorney, Rupp, Anderson, Squires & Waldspurger,
P.A., Minneapolis, Minnesota
Mike Aschenbrenner, Police Chief
Andrew Ellickson, Commander, Washington County Sheriff’s
Department
Denis Urmann, Patrol Officer
Phillip Prokopowicz, Dakota County Chief Deputy Attorney
Tamara Schutta, Former Assistant to the City Administrator/Human
Resources Coordinator
Tanner Spicer, Sergeant
Michael Shepard, Patrol Officer
Chad Willson, Investigator
Eric Petersen, Sergeant
For Minnesota Public Employees Association
Joseph J. Ditsch, Attorney, Fowler Ditsch, Little Canada,
Minnesota
Robert Lambert, Grievant
JURISDICTION OF ARBITRATOR
Article VII, Employee Rights - Grievance Procedure, Section
7.4, Procedure, Step 4 of the 2016-2017 Collective Bargaining
Agreement (City Exhibit #4) between City of Mendota Heights
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(hereinafter “City” or "Employer") and Minnesota Public
Employees Association (hereinafter "Union") provides for an
appeal to arbitration of disputes that are properly processed
through the grievance procedure.
The Arbitrator, Richard J. Miller, was selected by the
Employer and Union (collectively referred to as the "Parties")
from a panel submitted by the Minnesota Bureau of Mediation
Services (“BMS”). A hearing in the matter convened on November
17 and December 5, 2016, at 9:00 a.m. at the BMS offices, 1380
Energy Lane, Suite 2, St. Paul, Minnesota. The hearing was
transcribed. The Parties were afforded full and ample
opportunity to present evidence and arguments in support
of their respective positions.
The Parties' counsel elected to file electronically post
hearing briefs with receipt by the Arbitrator no later than
January 9, 2017. The post hearing briefs were submitted in
accordance with that deadline date. The Arbitrator then
exchanged the briefs electronically to the Parties' counsel on
January 12, 2017. Thereafter, the Parties notified the
Arbitrator that they were attempting to resolve the grievance
without decision from him. On February 14 and 25, 2017, the
Parties announced that settlement discussions were unsuccessful,
and the Arbitrator should issue his decision, after which the
record was considered closed.
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ISSUES AS DETERMINED BY THE ARBITRATOR
1. Does Section 9.2 of the Collective Bargaining Agreement
preclude the grievance from being subject to the
grievance procedure and the Arbitrator’s jurisdiction?
2. If arbitrable, did the City have just cause to
terminate the Grievant’s employment?
3. If not, what is the appropriate remedy?
STATEMENT OF THE FACTS
For the most part, the City is quiet and peaceful with very
little criminal activity. In fact, very few “crime scene”
deaths have occurred in the City and witnessed by employees of
the City of Mendota Heights Police Department (“MHPD”). As a
result of low crime activity, the MHPD is relatively small in
comparison to surrounding communities. For example, there are
only four Sergeants supervising the Patrol Officers.
The Grievant, Robert Lambert, began working for the City as
a Patrol Officer in 1996. (City Exhibit #6). On December 10,
2014, the City offered him a Sergeant position effective June
13, 2015. (City Exhibit #5). The City’s offer letter
notified the Grievant that the new Sergeant position included a
one-year probationary period. Id. Until his promotion, it is
undisputed that the Grievant served the City with distinction,
earning his promotion to Sergeant through a competitive process.
There is no evidence that the Grievant was ever disciplined as a
Patrol Officer.
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The Grievant’s one-year probationary period as a Sergeant
was without major incident until the late evening of February 4,
2016 and into the early hours of February 5, 2016.
At approximately 11:56 p.m. on February 4, 2016, MHPD
Patrol Officers (“Officers”) were dispatched to respond to a
possible drug overdose at 736 Cheyenne Lane in Mendota Heights.
(City Exhibits #8-#10). Officer Denise Urmann was the first
Officer to arrive at the scene. (City Exhibit #8). Officer
Michael Shepard arrived very shortly after Officer Urmann and
Health East paramedics arrived. (City Exhibit #9). When the
Grievant arrived at the Cheyenne Lane residence at 12:05 a.m.,
Officers Urmann and Shepard, the City's Fire Chief, and three
paramedics were already on the scene. Brothers Michel and
Andrew Vashro and Anthony Rancone, who was unconscious, were
also present at the residence. ((City Exhibits #8-#10).
Officer Urmann initially assisted with efforts to
resuscitate Mr. Rancone. (City Exhibit #8). Mr. Rancone did
not regain consciousness and was pronounced dead at 12:28 a.m.,
on February 5, 2016, which was approximately 30 minutes after
Officer Urmann arrived on the scene. Id. When Officer Shepard
arrived at the residence at 11:58 p.m., he primarily attempted
to gather information from the Vashro brothers in an effort to
determine what may have caused Mr. Rancone's apparent drug
overdose. (City Exhibit #9). Andrew Vashro appeared calm,
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while Michel Vashro appeared to be "tweaking" and would not
comply with Officer Shepard's attempts to keep him in an area
where Officer Shepard could observe his movements. Id.
The Grievant also attempted to collect information from the
Vashro brothers upon his arrival at the residence. The Grievant
arrived on the scene at 12:05 a.m. on February 5, 2016. (City
Exhibit #10). Michel Vashro told the Grievant that he and Mr.
Rancone were at a bar earlier in the evening and were in a
bedroom in the residence before the overdose occurred. (City
Exhibit #10). Michel Vashro asked the Grievant if he wanted to
see the bedroom. Id. The Grievant said yes and followed Michel
Vashro into the bedroom. Id. Officer Urmann also went to the
bedroom area because she did not want the Grievant to go into an
unfamiliar area of the home by himself. (City Exhibit #8).
While in the bedroom area, Officer Urmann observed drugs
and drug paraphernalia in plain view on a nightstand and black
toiletry bag on a bed. (City Exhibit #8, #15 (photos 6-9)).
She eventually returned to the area near the entrance of the
home and discussed her observations with Officer Shepard and the
Grievant. At this point, the Officers discussed conducting a
search of the residence. The Grievant admits that Officer
Shepard questioned whether they should contact a MHPD
Investigator or the Dakota County Drug Task Force (“DTF”) for
assistance. MHPD Policy 312 provides that an Investigator is to
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be called to a scene involving any death which may be due, in
part or entirely, to any factor other than natural causes.
(City Exhibit #26, at Section 312.04). Policy 312 includes an
exception for deaths caused by automobile accidents or disease.
Id. The Grievant also admits that Officer Shepard asked him if
they should obtain a search warrant. The Grievant claimed a
warrant was unnecessary and stated the Officers were "golden"
to proceed with searching areas of the home that were in
"proximity" to the drugs and paraphernalia Officer Urmann
observed in plain view. (City Exhibit #6). He also stated he
did not believe the Officers needed to contact an Investigator
or the DTF because sometimes they have never been called upon
due to Police Chief Michael Aschenbrener’s order to “run with”
the crime scene due to the limited number of Investigators in
the MHPD. Id. The Grievant told Officer Shepard that the DTF
would “come pick up the evidence tomorrow, but we don’t need to
call them to the scene.” Id.
The Grievant then decided to conduct a more expansive
search of the residence without a warrant and directed Officer
Urmann to begin collecting evidence. Both Officers Urmann and
Shepard believed a warrant was needed based on their
understanding of the law, but they followed the Grievant's
direction because he was their supervisor and they thought he
might be aware of some legal authority they had not reviewed.
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After the initial discussion about conducting the search,
Officer Shepard transported Michel Vashro to the MHPD. (City
Exhibit #9). Officer Shepard placed Michel Vashro under arrest
because he was being insubordinate and was not complying with
Officer Shepard's directions. Id. The Grievant transported
Andrew Vashro to the MHPD at 12:57 a.m., which was shortly after
Officer Shepard left the residence. (City Exhibit #10). The
Grievant then notified Mr. Rancone's family of the drug overdose
at 1:35 a.m. Upon learning that his son had died that night,
Mr. Rancone’s responded, “Was it heroin?”
On his drive back to the residence, the Grievant started
feeling “weird” and “euphoric.” (City Exhibit #6). The
Grievant felt his legs tingling with a warm sensation, and had
“an out of body” feeling. Id. The Grievant initially
attributed this “high” feeling to his use of a newly-prescribed
testosterone gel that he had used earlier that night. Id. He
later believed that the “high” feeling was due to exposure from
heroin, but medical tests later revealed that his theory was
unfounded and inaccurate because his doctor concluded that it
was unlikely that he had been exposed through intact skin. The
doctor, however, confirmed that a heroin exposure could have
happened through the open wound on the Grievant’s hand because
he never wore latex gloves in his prior examination of drug
evidence.
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The Grievant returned to the Cheyenne Lane residence at
1:55 a.m., which was about an hour after he initially left the
residence with Andrew Vashro.
The Grievant testified that he made the decision to
conduct a search of the residence in an effort to look for
evidence beyond what Officer Urmann observed in plain view
before he transported Andrew Vashro to the MHPD.
At the Grievant's direction, Officer Urmann began
collecting the evidence she observed in plain view in Michel
Vashro's bedroom and taking photographs during the time the
Grievant transported Andrew Vashro to the MPDH and completed the
death notification. (City Exhibit #8). The "plain view"
evidence she collected consisted of two syringes with residue, a
teaspoon with a white substance on it, a tied off corner of a
baggie with residue on it, a white elastic tourniquet, and two
cell phones. Id. Medical examiner staff took the "plain view"
evidence from Officer Urmann before the Grievant arrived back on
the scene. Id.
When the Grievant returned to the residence, he and Officer
Urmann conducted an exhaustive search of the bedroom. Officer
Urmann again questioned whether they should obtain a warrant for
the expanded search. The Grievant again stated they were
"golden" and claimed a warrant was not necessary because the
areas he intended to search were in “proximity" to the "plain
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view" evidence initially observed by Officer Urmann. The scope
of their warrantless search covered everything in the bedroom,
including the contents of a night stand, a jewelry box, a
closet, several boxes contained in the night stand and closet,
and a toiletry bag on the bed. (City Exhibits #8, #10, #14).
Their expanded search uncovered additional evidence of drug-
related activity, including drugs, drug paraphernalia, and over
$7,000 in cash. Id. Neither the Grievant nor Officer Urmann
wore protective gloves during the expanded search. Id.
After the Grievant and Officer Urmann completed the
expanded search of Michel Vashro's bedroom, they returned to the
MHPD. Officer Urmann immediately began questioning the validity
of the expanded search. Back at the MHPD, she asked Officer
Shepard if he felt comfortable with the search of the bedroom.
(City Exhibit #6). Officer Shepard told her he did not. Id.
Officer Urmann also approached Sergeant Tanner Spicer, who first
arrived at the MHPD at 6 a.m. or 6:30 a.m. on February 5, 2016,
and told him she was told by the Grievant to conduct a search
that she believed required a warrant.
Meanwhile, the Grievant directed Officer Nick Gorgos to
research the scope of any "proximity" exceptions to the warrant
requirement. The Grievant also discussed his justification for
the expanded search with Sergeant Spicer, claiming the expanded
search was permitted due to "inevitable discovery." Sergeant
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Spicer told the Grievant that he did not believe the search was
valid without a warrant.
When the Grievant wrote his report regarding the Cheyenne
Lane incident, he stated he made the decision to conduct the
expanded search after he completed the death notification to Mr.
Rancone's family when he observed a "blue lighter" lying on the
floor near the bed in Michel Vashro's room and determined it was
likely that he would uncover additional evidence of drug-related
activity in proximity to the lighter and the plain view
evidence collected by Officer Urmann. (City Exhibit #10).
Despite the claim that the blue lighter was evidence of illegal
activity and it was critical to the Grievant's decision to
expand the search, neither he nor Officer Urmann collected the
lighter as potential evidence. (City Exhibit #20).
Sergeant Spicer worked the day shift on February 5, 2016.
He notified Chad Willson, a MHPD Investigator, of what
transpired at the Cheyenne Lane residence. Both Sergeant
Spicer and Investigator Willson believed that third degree
homicide charges were possible because Mr. Rancone died of a
drug overdose. Minnesota law provides that anyone who
proximately causes the death of another person by unlawfully
"selling, giving away, bartering, delivering, exchanging, or
administering" certain types of controlled substances is guilty
of third degree murder. Minn. Stat. § 609.195(b).
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After learning of what transpired at Cheyenne Lane,
Investigator Willson contacted Tim Fletcher, a DTF officer who
also works with the Federal Drug Enforcement Agency. (City
Exhibit #12). Investigator Willson stated he reviewed the
photos taken by Officer Urmann, as well as the evidence
collected by Officer Urmann and the Grievant, and knew
immediately that the evidence collected during the expanded
search of Mr. Rancone's bedroom was illegally obtained. Id.
After reviewing the case file, Investigator Willson determined
that search warrants should be written for the Cheyenne Lane
residence and two cell phones that were seized at the time of
the overdose incident. Id. In drafting the warrants,
Investigator Willson's statement of probable cause relied only
on the plain view evidence obtained by Officer Urmann and verbal
statements the Vashro brothers made during efforts to revive Mr.
Rancone. Id.
Investigator Willson and other law enforcement officers
were not able to execute the warrant at the Cheyenne Lane
residence until approximately 7:00 p.m. on February 5,
2016. (City Exhibit #12). When Investigator Willson arrived at
the residence, he observed a Ford Excursion sport utility
vehicle backed into the driveway and another smaller vehicle
parked near the home. Id. An individual named Domingo Reinaldo
Contreras was present at the residence and appeared to be
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removing items from the home. Id. Mr. Contreras told law
enforcement officers that Andrew Vashro had called him and asked
him to remove items from the home because Andrew Vashro was
afraid that law enforcement would return after the overdose
incident. Id.
While Investigator Willson believes that evidence of
illegal activity was removed from the Cheyenne Lane residence
before the search warrant was executed, he stated that law
enforcement officers did recover a significant amount of
evidence related to drug manufacturing and distribution,
including a large bag of cocaine, money counters, packing for
narcotics, unused wrappers for $1,000 in cash, ledgers
documenting transactions totaling approximately $100,000, and
edible items, such as candy, containing marijuana.
Based on the evidence uncovered during the legal search of
the Cheyenne Lane residence, Investigator Willson and Agent
Fletcher drafted a warrant for another Vashro family residence
in Eagan, Minnesota. (City Exhibit #12). The search of the
Eagan residence lead to the discovery of additional drug
trafficking evidence. Id. Shortly after the search of the
Eagan residence, the investigation was turned over to Federal
law enforcement authorities for additional investigation. Id.
On February 5, 2016, Sergeant Spicer also provided Phil
Prokopowicz, the Chief Deputy Dakota County Attorney, with a
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briefing of the events that occurred during the Cheyenne Lane
incident. Mr. Prokopowicz informed Sergeant Spicer that a
warrant should have been obtained prior to the search conducted
by the Grievant and Officer Urmann. The Dakota County
Attorney's Office ("DCAO") eventually declined to pursue charges
against either of the Vashro brothers due, in part, to the fact
that the Grievant illegally expanded the scope of the search in
Michel Vashro's bedroom. (City Exhibit #34).
On February 25, 2016, Investigator Willson received a call
from an attorney in the Civil Division of the DCAO regarding the
processing of cash that was seized by the Grievant for
forfeiture during the Cheyenne Lane incident. (City Exhibit
#13). The DCAO raised concerns that there appeared to be a
discrepancy between the amount of seized cash documented in the
Grievant's report and what was actually entered into evidence
and documented in forfeiture paperwork. Id. Specifically, the
Grievant's report seemed to document the seizure of $7,451 –
three $100 bills, $6,500 from a Gucci box, and $651 from Michel
Vashro's wallet. (City Exhibits #10, #13). The MHPD seized
evidence currency log showed that $7,151 was entered into
evidence. (City Exhibit #22).
Investigator Willson attempted to locate the missing $300
with assistance from Officer Steve Meyer, Sergeant Petersen, and
Sergeant Spicer. (City Exhibit #13). Investigator Willson was
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not able to locate the missing $300. Id. Investigator Willson
testified that he was later told the amount of cash seized
during the Cheyenne Lane incident was documented incorrectly.
The City immediately began the process of completing an
internal affairs investigation following the Cheyenne Lane
incident. On February 9, 2016, Sergeant (now Commander) Andrew
Ellickson of the Washington County Sheriff's Office was assigned
to conduct the investigation. (City Exhibit #6). Commander
Ellickson interviewed the Grievant, Officer Urmann, and Officer
Shepard in the course of his investigation. Id. On February
17, 2016, the City provided the Grievant with notice of the
allegations against him in accordance with the requirements of
Minnesota's Police Officer Discipline Procedures Act. (City
Exhibit #23). On February 26, 2016, the City provided the
Grievant with an updated letter that included allegations
related to the DCAO's concerns about missing cash. Id.
The letter indicated, in summary, the six allegations against
the Grievant:
1) As the supervisor in charge, you failed to properly
secure and direct the legal processing and handling of
a potential crime scene.
2) You violated Department policy, including but not
limited to Policy 106 (Conduct Unbecoming a Police
Officer, Principles One and Two), and legal
requirements by directing officers to illegally
the scope of a search beyond constitutional
expand limitations.
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3) You violated Department policy, including but not
limited to Policy 106 (Conduct Unbecoming a Police
Officer, Principles One and Two), and legal
requirements by assisting in the unconstitutional
expansion of the scope of a search without a warrant.
4) You violated Department policy, including but not
limited to Policy 312 (Death Investigations), by
failing to notify an Investigator of a suspicious
death.
5) You failed to complete all reports required for a
suspicious death in a timely manner.
6) You failed to properly handle and account for evidence
and property obtained from the scene, including $300
in cash.
Id. The Grievant made the following admissions when he was
interviewed by Commander Ellickson on March 3, 2016, after he
received the February 26, 2016 letter containing the six
allegations against him:
• The possibility of third degree murder charges never
crossed his mind during the Cheyenne Lane incident. He
claimed he would have "froze the scene" and called an
Investigator and the DTF if it would have crossed his
mind that third degree homicide was a possibility.
• He was aware of the requirements of Section 312.04 of
MHPD Policy 312, but chose not to call an Investigator
because he "ruled [the death] an accidental overdose."
• He directed Officer Urmann to expand the scope of the
search.
• Officer Urmann questioned whether a warrant was
necessary several times and he responded by telling her
"we're golden."
• When Officer Urmann questioned the basis for expanding
the search, he told her that they could legally conduct
a search of the areas in proximity to where the plain
view drug evidence was found.
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• Officer Shepard also raised concerns about the need for
a warrant.
• It is "absolutely" fair to say his decision to expand
the scope of the search was incorrect.
• He did not wear protective gloves at any point during
the Cheyenne Lane incident.
(City Exhibits #31-#33). Based on the information collected in
his investigation, Commander Ellickson recommended that
allegations #1, #2, #3, #4, and #6 (specifically not wearing
latex gloves and poor report documentation) against the Grievant
be sustained, with allegation #5 being exonerated. (City
Exhibit #6).
The City Council eventually voted to discharge the Grievant
during his one-year probationary period based on the results of
the investigation. (City Exhibit #1). The City Council first
considered the allegations against the Grievant during a meeting
on April 5, 2016. Thereafter, following an attempt to work out
a resolution with the Grievant and difficulties scheduling a
second meeting date to consider disciplinary action due to
scheduling conflicts with individual City Council members, the
City Council made its final decision on June 8, 2016, notifying
the Grievant that his employment with the City was being
terminated effective June 8, 2016, at 5:00 p.m. Id.
Ultimately, the City Council based its decision on the
following factors:
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• As the supervisor in charge of the scene, the Grievant
failed to properly secure and direct the legal
processing and handling of a crime scene during the
Cheyenne Lane incident.
• The Grievant violated Department policy, including but
not limited to MHDP Policy 106 (Conduct Unbecoming a
Police Officer, Principals One and Two), and legal
requirements by directing officers to illegally expand
the scope of a search beyond constitutional limitations
and assisting with the illegally expanded search.
• The Grievant violated Department policy, including but
not limited to MHPD Policy 312, when he failed to notify
an Investigator of a suspicious death.
• The Grievant failed to handle and account for evidence
and property obtained from the Cheyenne Lane residence
when he failed to wear protective gloves while handling
drugs and other evidence and when he failed to clearly
document how much money was seized from the residence in
his incident report.
Id. The Union filed a grievance on June 14, 2016, protesting
the Grievant’s termination. (City Exhibit #2). The grievance
was denied by the City on July 22, 2016. Id. The Union
appealed the grievance to final and binding arbitration, the
last step in the contractual grievance procedure on July 25,
2016. Id.
CITY POSITION
The City discharged the Grievant from his probationary
employment as a Sergeant in the MHPD following the Cheyenne Lane
incident in which he not only failed to follow elementary
procedures with respect to searching a private residence and
handling evidence, but he also summarily dismissed subordinate
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Officers' legitimate concerns related to his decision to conduct
a search without a warrant and without assistance from a MHPD
Investigator or the DTF.
The facts underlying the City's discipline decision are not
in dispute. There is no dispute that the Grievant illegally
expanded the scope of a search at the Cheyenne Lane residence
during a drug overdose incident. There is no dispute that
Officers Shepard and Urmann, who are both subordinate to the
Grievant, arrived at the Cheyenne Lane residence before the
Grievant, and questioned the Grievant multiple times on both the
need for a warrant and the need to contact a MHPD Investigator
or the DTF. There is also no dispute that the Grievant failed
to wear protective gloves when he handled drug paraphernalia and
other evidence.
The City's discharge decision must be upheld. The Parties
agree the Grievant had not completed his one-year probationary
period at the time of the City's discharge decision. As a
result, the City had sole discretion to decide whether to
discharge the Grievant and the Union's attempt to grieve the
decision should be rejected without any substantive
consideration of what transpired during the Cheyenne Lane
incident. In other words, the grievance is not arbitrable.
However, even if this Arbitrator determines that a just
cause standard applies in this situation, the City's discharge
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decision must be upheld because the Grievant's actions during
the Cheyenne Lane incident demonstrate that he is not fit to
serve as a Sergeant. The evidence adduced at the hearing, as
well as the Grievant's demeanor during the hearing, establish
that what transpired at Cheyenne Lane was not a result of simple
lapse in judgment. It was a result of the Grievant's arrogance
and failure to avail himself of the several resources that could
have prevented the illegal search and other mistakes the
Grievant made at the scene.
UNION POSITION
The Grievant was still within his one-year probationary
period as a Sergeant with the City when he responded to a call
of a possible drug overdose. The Grievant admits that he
applied an improper legal standard and directed his subordinates
to expand the scope of the search beyond that which was in plain
sight. The Grievant admits that his actions fell short of the
established standards expected in the MHPD.
Even though the City retained the exclusive right to demote
the Grievant while he was a probationary Sergeant, the City
terminated him instead. There are firmly held beliefs of the
Grievant and the Union that the City chose this specific course
of action based solely on a desire to engineer a way to get rid
of the Grievant. It does not make sense that the City would so
treat the similar errors of the Grievant and Officers Shepard,
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and Urmann so dissimilarly, as the Officers who responded to the
scene, were not disciplined at all.
The City argues that it retains the right to terminate a
newly promoted Sergeant without regard to just cause. This is a
farce. There is only one reasonable interpretation of the
Collective Bargaining Agreement, and the just cause standard
must be applied here. To hold otherwise would permit the MHPD
to lure underperforming Officers into the supervisory ranks,
only to terminate them. This would deter every other Officer
from ever taking a promotion. Aside from these public policy
concerns, the Contract does not support the City's
interpretation.
It does not make sense that the City, when gifted the
opportunity to severely punish the Grievant through a demotion,
at its sole discretion, would instead argue that it need not
show just cause for termination.
Most certainly, the Grievant’s termination is grossly
disproportionate to the policy violations committed by the
Grievant that were sustained by the City. Just cause requires,
at most, a short suspension for the admitted infractions.
However, the Union must concede that the City could have demoted
the Grievant and so can the Arbitrator.
Based on all of the testimony and evidence, the Union
respectfully requests the Arbitrator sustain the grievance.
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ANALYSIS OF THE EVIDENCE
The Parties are at odds over which Contract language
controls the outcome of this case. The City alleges that
the Contract language in Article IX, Seniority, Section 9.2
precludes the instant grievance from being subject to the
grievance procedure and the Arbitrator’s jurisdiction to decide
whether there was just cause to discharge the Grievant for his
Sergeant’s role in the Cheyenne Place incident. This language
states:
Article 9.2 During the one (1) year probationary period a
newly hired or rehired employee may be discharged at the
sole discretion of the EMPLOYER. During the one (1) year
probationary period, a promoted or reassigned employee may
be replaced in his previous position at the sole discretion
of the EMPLOYER.
The Union, on the other hand, avers that the Contract
language in Section 9.2 is inapplicable because the Grievant was
a promoted Patrol Officer to the Sergeant’s position and this
automatically triggers the Contract language in Article X,
Discipline, Section 10.1, mandating that the City must have just
cause to terminate his employment during his contractual one-
year Sergeant’s probationary period. The Contract language in
Section 10.1 reads as follows:
The EMPLOYER will discipline employees for just cause only.
Discipline will be in one or more of the following forms:
a. Oral reprimand
b. Written reprimand
c. Suspension
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d. Demotion; or
e. Discharge
Clear and unambiguous contract language is expected to be
applied as the reasonable and common usage of the terms would
dictate. National Can Corp., 77 LA 405 (1981); Selig Mfg. Co.,
Inc., 71 LA 86 (1978). A contract clause is not ambiguous if
the arbitrator can determine its meaning with no other guide
than knowledge of the simple facts on which, from the nature of
the language in general, its meaning depends. An arbitrator
cannot "ignore clear-cut contractual language," and he "may not
legislate new language, since to do so would usurp the role of
the labor organization and the employer." Clear Coverall Supply
Co., 47 LA 272, 277 (1966). Moreover, any attempt by the
Arbitrator to "legislate" or "usurp" the role of the Parties
would be in direct violation of Article VII, Employee Rights
Grievance Procedure, Section 7.5(A), Arbitrator Authority, of
the Collective Bargaining Agreement, wherein “[t]he arbitrator
shall have no right to amend, modify, nullify, ignore, add to,
or subtract from the terms and conditions of this AGREEMENT.”
A collective bargaining agreement is not ambiguous if the
arbitrator can determine its meaning without any other guide
than a knowledge of the facts of which, from the nature of
language in general, its meaning depends. 13 Corpus Juris,
Section 481, p. 520. When interpreting contract language,
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arbitrators have long held that parties to an agreement are
charged with full knowledge of its provisions and of the
significance of its language. McCabe-Powers Body Co., 76 LA
457, 461 (1981). If the language of an agreement is clear and
unequivocal, an arbitrator shall not give it meaning other than
that expressed. National Linen Service, 95 LA 829, 834 (1990);
Potlatch Corp., 95 LA 737, 742-743 (1990); Metro Transit
Authority, 94 LA 349, 352 (1990). Accordingly, clear and
unambiguous language must be enforced, even if the results are
contrary to the expectations of one of the parties, as it
represents, at the very least, what the parties should have
understood to be the obligations and the benefits arising out of
the agreement. Heublein Wines, 93 LA 400, 406-407 (1988); Texas
Utility Generating Division, 92 LA 1308, 1312 (1989); City of
Meriden, 87 LA 163, 164 (1986).
The Union argues that the Contract language in Section 9.2
creates two exceptions to the "just cause" standard for
discipline during the employee's one year probationary period.
First, "newly hired or rehired employee[s]" may be "discharged"
without regard to just cause. This exception applies to
Sergeants who are hired from outside the City or who have
separated employment with the City prior to instatement as a
Sergeant. Noteworthy is that this exception would still require
a "just cause" standard be applied to an oral reprimand, written
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reprimand, suspension, or demotion, but not the discharge of a
Sergeant. According to the Union, the City would still be
required to show just cause to suspend a newly-hired Sergeant,
but the City could terminate a newly-hired Sergeant without
cause.
The Union argues that the second Contract exception to the
just cause standard is that "[d]uring the one (1) year
probationary period, a promoted or reassigned employee may be
replaced in his previous position at the sole discretion of the
EMPLOYER." The Union claims that this clause applies to the
Grievant as a Patrol Officer "promoted" to the position of
Sergeant, and for a newly-promoted Sergeant to be "replaced in
his previous position" is to be "demoted" back to the position
of Patrol Officer, which is considered as a form of discipline
under Section 10.1. Therefore, according to the Union, the just
cause standard applies to the Grievant, except in the case of
demotion, and the City could have simply demoted the Grievant
back to a Patrol Officer position. Instead, the City skipped
all lower levels of progressive discipline and terminated the
Grievant's employment. As a result, the Union argues that to
terminate the Grievant, the City must show that the discipline
is for just cause, as specified by Section 10.1.
The City argues that there is no dispute that the City
maintains sole discretion to discharge a "newly hired" Sergeant
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during the one-year probationary period under the Contract
language in Section 9.2. However, the Parties disagree on what
it means to be a "newly hired" employee. According to the City,
the only logical interpretation of Section 9.2 is that (1) the
City may discharge any new Sergeant at its discretion during the
probationary period regardless of whether the new Sergeant was
internally promoted from the Patrol Officer ranks or hired
laterally and (2) the second sentence of Section 9.2 is reserved
for future situations in which a City employee is promoted or
reassigned from a Sergeant position to a new position within the
bargaining unit. The City avers that this conclusion is
supported by the language of the Sergeants' Contract itself and
the commonly understood meaning of the phrase "probationary
period."
Most certainly, both Parties have legitimate arguments as
to the meaning of the Contract language in Section 9.2, such
that the Arbitrator cannot determine conclusively that there
exists clear and unambiguous Contract language that would
support the positions of either Party.
Bargaining history and past practice between parties are
valuable and proper sources from which an arbitrator can
ascertain the meaning of ambiguous contract language. In this
case, there is no past practice with regard to Section 9.2, as
this is the first dispute to be interpreted under this Contract
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language. As a result, the Arbitrator is left with discovering
whether the intent manifested by the Parties to each other
during negotiations by their communications and their responsive
proposals sheds any clarity as to the meaning of the Contract
language in Section 9.2. The bargaining history is, to be sure,
an important factor shedding light on the Parties' intent with
regard to Section 9.2.
Approximately five years ago, the MHPD Sergeants decided
to unionize and chose the Union to be their exclusive
representative. According to Sergeant Eric Petersen, who was
promoted to Sergeant from the Patrol Officer ranks in 2010 and
has personal knowledge of the Sergeants' subsequent unionization
efforts, the Sergeants chose to unionize because they wanted to
memorialize the terms and conditions of their employment in a
collective bargaining agreement. Prior to that time, the
Sergeants had been informally receiving many of the same
benefits that the City's Patrol Officers received pursuant to a
contract between Law Enforcement Labor Services, Inc. ("LELS")
and the City. The Sergeants essentially sought to be treated
the same as the City's Patrol Officers.
When the Sergeants negotiated their first contract with the
City on or about November 8, 2012 for 2012-2013, Union Attorney
Robert Fowler made the first written proposal with regard to
Section 9.2. (City Exhibit #35).
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The Union's initial proposal contained the following
language with respect to the probationary period for Sergeants:
9.2. During the probationary period[,] a newly hired or
rehired employee may be discharged at the sole
discretion of EMPLOYER. During the probationary
period, a promoted or reassigned employee may be
replaced in his position at the sole discretion of
the EMPLOYER.
(City Exhibit #35). The language was identical to the contract
language in existence in the 2012-2013 LELS contract. (City
Exhibit #37).
The Union's initial proposal defined "employee" as "[a]
member of the exclusively recognized bargaining unit." (City
Exhibit #35, Section 3.3). The "exclusively recognized
bargaining unit" was identified as the Minnesota Public
Employees Association. Id. at Articles I and II. To this day,
the Union's initial proposed definitions of “employee” and
“exclusive bargaining unit” have remained the same and appear in
the current 2016-2017 Sergeant Contract. The only change in 9.2
from the Union’s initial proposal was the addition of Contract
language to clarify that the probationary period is for one
year.
The negotiated and unchanged definition of "employee"
supports the City's position. An "employee" is "[a] member of
the exclusively recognized bargaining unit." The bargaining
unit consists of all individuals employed by the City as a
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"Licensed Police Sergeant." (City Exhibit #4, Article II,
Recognition, Section 2.0). Based on this language, an
individual is not an "employee," as the term is used in Section
9.2, until he or she first becomes a Sergeant and a "newly
hired" employee is someone who is hired to work as a Sergeant
for the first time either through an internal promotion from
another position outside of the Sergeants' unit or a lateral
hire from a different law enforcement agency. Thus, a "newly
hired employee" is anyone who becomes a Sergeant for the first
time.
The City’s interpretation of the probationary period
language in Section 9.2 is also supported by the contractual
manner of seniority determination of an employee. The Parties
agree that a Patrol Officer who is internally promoted from an
Officer position to the different bargaining unit in the
Sergeant position gives up any seniority he or she enjoyed an
Officer. Seniority for Sergeants is determined by an employee's
"length of continuous employment as a sergeant for [the City]."
(City Exhibit #4, Section 9.1). The City notified the Grievant
that his seniority would be calculated by his employment as a
Sergeant when it offered him the Sergeant position. (City
Exhibit #5). In fact, the Grievant testified that he understood
he was the least senior Sergeant and that he would be the first
Sergeant laid off if a position was eliminated. Since seniority
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accrues from an employee's date of hire as a Sergeant, the
manner in which the Sergeants' Contract addresses seniority is
consistent with the City's position that "newly hired" Sergeants
include individuals promoted to a Sergeant position after
working for the City as a Patrol Officer.
While none of the negotiators of the Contract language in
9.2 testified at the hearing, there is the testimony of Sergeant
Petersen who was a Sergeant before the Sergeants unionized and
has personal knowledge of events leading up to the City's first
contract with the Union. Sergeant Petersen's testimony does not
support the Union's position.
Sergeant Peterson testified that the intended purpose to
negotiate a first time collective bargaining agreement was to
mimic the LELS contract applicable to Patrol Officers that they
supervise. Sergeant Petersen also testified that he interpreted
Section 9.2 of the Sergeants' Contract such that a newly hired
employee would include someone who was internally promoted from
the rank of Patrol Officer to Sergeant.
Sergeant Petersen and Sergeant Tanner Spicer are the only
current Sergeants who testified at the hearing other than the
Grievant. They testified that a Sergeant who was internally
promoted from the rank of Patrol Officer to Sergeant gave up the
job security he or she previously enjoyed as a Patrol Officer.
They both accepted the promotion to Sergeant even though they
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knew that they would be giving up job security and they
understood that they could be discharged at the City's
sole discretion while they served a Sergeant probationary
period.
The testimony of Sergeants Petersen and Spicer is
persuasive because the Sergeants' bargaining unit consisted of
only four individuals at the time of the Grievant's termination.
Thus, one-half of the bargaining unit testified in support of
the City's interpretation of the probationary period language
in Section 9.2. The Grievant is the only Sergeant who has
challenged their understanding of the Contract language in
Section 9.2.
It is clear from the reading of the Contract language in
9.2, in light of the bargaining history of that provision, that
the City does have the discretion to terminate the employment of
a Sergeant during the one-year probationary period without
regard to the just cause standard in Section 10.1. The City's
decision to discharge the Grievant must be upheld because he did
not successfully complete the one-year probationary period after
he became a Sergeant. The City had the authority to discharge
him at its sole discretion.
In fact, the City is not even contractually compelled to
return the Grievant to the LELS bargaining unit as a Patrol
Officer based on the clear Contract language in Section 9.2 that
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“a promoted or reassigned employee may be replaced in his
previous position at the sole discretion of the EMPLOYER.”
If the Arbitrator were to conclude that the Grievant retained
the right to systemically return to a Patrol Officer position
while he was a probationary Sergeant, the Arbitrator would be
granting the Grievant benefits that do not exist under the
Contract, which is prohibited by the Arbitrator Authority clause
in Section 7.5(A) of the Contract. The City chose to not return
the Grievant to the Patrol Officer ranks, which decision is at
their sole discretion.
Since the City has the sole discretion to terminate the
Grievant’s employment during his one-year probationary period,
the Arbitrator will reserve judgment as to whether there was
just cause under Section 10.1 to terminate him for his admitted
misconduct at the Cheyenne Lane incident. This is a significant
benefit to the Grievant because it is far better for future
employment opportunities as a Patrol Officer or even a Sergeant
to have not passed your probationary period rather than being
discharged for just cause for misconduct. This is illustrated
by the fact that the Grievant had an employment opportunity with
another law enforcement agency after being separated from
employment by the City for failing to pass his probationary
period, but this employment offer was rescinded for undisclosed
reason(s).
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AWARD
The City had the sole discretion under Section 9.2 of the
Contract to terminate the Grievant’s employment during his one-
year Sergeant’s probationary period. Accordingly, the grievance
is denied.
Richard John Miller
Dated February 27, 2017, at Maple Grove, Minnesota.