ARBITRATION		CASE:  GLENDON #1
Parties:
Employer 
and
Union
		
SUBJECT
Demotion; alleged multiple violations of Manual of Conduct and Administrative Policy.
ISSUE
Was grievant Tom Table demoted for just cause?
CHRONOLOGY
Demotion: April 11, 2005
Grievance filed: April 18, 2005 Hearing: November 3, 2005
Briefs received: December 12, 2005 Decision issued: February 6, 2006
APPEARANCES
For the Employer: KB, Labor Relations Specialist 
For the Union: MG, Attorney

SUMMARY OF FINDINGS
The Employer substantiated only one of the charges against grievant with clear and convincing evidence, and even though it was said to constitute two separate offenses, it was cause for no more than a warning, so his demotion was not for just cause and must be set aside with a full back pay award.

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BACKGROUND
Grievant Tom Table has worked for the City Police Department for sixteen-plus years, more than six as a sergeant, and all but the first several months of that time as day shift Vice Unit Sergeant. He was demoted to police officer rank in April 2005 as a result of investigation into a complaint dated October 4, 2004. The Complaint Action Report, dated November 23, 2004 but not finalized until signed by the City Manager on April 11, 2005, summarized the charges that ultimately were the basis for demotion as follows:
Sergeant Tom Table failed to perform his duties in a competent manner by failing to conform to the work standards established for the Rank of Police Sergeant. Sergeant Table also failed to perform his duties in a diligent manner by conducting personal business while on duty. Lastly, Sergeant Table's conduct was unbecoming an officer, as it impaired the operation and efficiency of the Vice Unit and its personnel.
The Complaint Disposition Report, bearing the same dates, included citations to Department Manual of Conduct rules and an Administrative Policy associated with the charges: namely Rules 3.1, 3.3, 12.1(d), 13.3 and 18.1(d) and Administrative Policy 7507. The first two rules merely say employees shall comply with all Departmental rules, orders and procedures and Federal, State and local laws and regulations; Lt. Chair, who conducted the investigation and formulated the final charges, characterized those as "catch-all" rules incorporating other specific rule violations. Rule 12.1(d) covers "unsatisfactory performance . . . demonstrated by . . . Failure to conform to work standards established for a rank, grade or position." Rule 13.3 forbids employees to "devote any of their duty time to any activity which does not relate to a police function [or] conduct personal business while on duty or upon City property except with proper authorization or in accordance with Departmental Procedures." Rule 18.1(d) forbids conduct which "Impairs the operation or efficiency of the Department or any employee." Policy 75-07, as relevant to this case, says a lunch period "is normally one-half or one hour," which "is intended to be the maximum time away from the performance of one's duty."
Lt. Chair notified grievant on October 4, 2004 that he had been "ordered off duty" on paid administrative leave "pending further investigation of an Internal Affairs complaint alleging Sexual Harassment and Unbecoming Conduct." But the Complaint Disposition Report concluded his actions did not constitute sexual harassment and "allegations of dis‑

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courtesy, competence, absence from duty, neglect of duty, and unbecoming conduct" were "NOT SUSTAINED for violations" of more than a dozen other rules and two other Administrative Policies.
What precipitated the investigation, indirectly, were comments from a female officer in grievant's unit, Mary Sofa, to day shift Vice Unit Sergeant Cathy Pole about grievant allegedly singling her out for negative comments and slapping her buttocks on two occasions. As stated in the Disposition Report, Sofa "did not believe that either of the slaps were harassing or assaultive in nature [but] they troubled her and made her feel extremely uncomfortable." She repeated that in arbitration, but also said plenty of horseplay occurred in the Vice Unit and she probably had slapped grievant's buttocks on multiple occasions. He gave similar testimony, and said he and Sofa worked closely together for a long time: so closely, in fact, that Vice Unit Commander Lt. Mike Desk once cautioned him that other officers suspected they were having an affair (which they were not). He also said Sofa often initiated and participated in off-color conversations with him and other Vice Unit officers, including self-initiated conversations about her desire to have breast enhancement surgery; according to the Disposition Report, she admitted that.
Lt. Desk said another concern behind the internal investigation originated with Sofa's comments to Sgt. Pole about grievant spending time with the Vice Unit office assistant, Kay Bike. Pole told Desk about that, and before the formal investigation began Desk followed grievant by car a few times to see where he went and how long he was gone on his lunch break. He said he saw grievant's assigned department vehicle at Bike's residence three times, and on September 30, 2004 it was there almost two hours. Grievant admitted he was there that day longer than his the normal one-hour unpaid lunch break; he also admitted being at her house the two other times when Desk said he saw his vehicle there, but only briefly on those occasions.
The Employer also was deeply concerned about the nature of grievant's relationship with Bike, and in the investigation both of them were questioned at length about it, with special emphasis on a single kiss they both admitted they had shared. Grievant explained that he (and others in the unit) had made special efforts to include Bike in lunch outings and lunchtime exercise and to help her with household repairs after her husband died, but

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he and Bike denied they were romantically involved, even though they also acknowledged, somewhat ambiguously, being attracted to each other.
Despite the investigative emphasis on the nature of their relationship, Desk said it was not that grievant was at Bike's home, or what he was doing there, that concerned him. The problem, he said, was simply that grievant was gone from the office too long. But he acknowledged that officers' time is more flexible in Vice than other units and they often work late (without overtime pay) and come in late. He also conceded there was a perception in the department, which he shares, that some captains and lieutenants abused lunch break privileges. He also conceded horseplay, gallows humor and unsavory language are common in Vice and more prevalent there than in other units, due to the unique nature of crimes investigated in the Vice Unit.
In that vein, under questioning by Lt. Chair grievant said another captain (Lamp) once remarked to all then present in the Vice Unit office that he knew the crude behavior there was work-related and did not bother them (or him), but they should be careful because it might give offense to a newcomer to the unit. But grievant said Capt. Lamp did not relate that to any deficiency in supervision or tell them such behavior had to cease.
It is undisputed that grievant had consistently good performance evaluations; Desk said he gave him two such evaluations, but did not look at his earlier ones. Chief Pat Shade, who recommended grievants demotion based on Lt. Chair's investigation report, said he did not review any of them and did not know whether Chair did. Lt. Chair did not address that in his testimony.
Chair said he concluded grievant violated Rule 12.1(d) in that he failed to supervise the Vice Unit by permitting conversations (such as about Sofa's desire for a "boob job") that might be offensive. But he named only one officer who told him those conversations made him uncomfortable, and conceded that officer never complained about them when they occurred.
Chair said grievant violated Rule 13.3 by taking too long for lunch at Bike' house on September 30 and spending that time on non-duty related activities. Regarding Rule 18.1(d), Chair merely referred to conclusions in his written Disposition Report, which generally indicate that although there was no proof of sexual harassment or other unbecoming conduct, grievant "reasonably should have known" the time he spent with Bike and

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other officers' perceptions of his relationship with her (and earlier with Sofa) "constitute[d] unbecoming conduct."
In that report, Lt. Chair also wrote that other officers "claimed . . . lack of supervision" related to the time grievant spent with Bike "affected the efficiency of the Day Team." But he provided no specific information to substantiate those claims, either in the report or his testimony, and Lt. Desk testified nobody on that shift ever complained to him about not getting appropriate supervision from grievant.
Chief Shade said he recommended demotion because of grievant's "inappropriate touching" of Sofa, his kiss with Bike, and his having tolerated and contributed to an environment in the Vice Unit that was detrimental to its work and made his supervision ineffective. He said he recommended demotion instead of dismissal because of grievant's record and forthcoming cooperation in the investigation, although he could not recall actually reviewing grievant's record.
The chief made that recommendation on December 3, 2004; the same day City Manager Kim Cake notified grievant (still on administrative leave) that he would hold a hearing on December 8 and if grievant did not appear or "information presented fails to provide a basis to overturn the recommended actions, you will be subsequently notified of the effective dates of your demotion, reduction in pay, and evaluation period." About that same time, grievant testified, he was returned to work but reassigned (still at sergeant rank) to "case management" duties in the detective unit.
The "evaluation period," as stated in the Complaint Action Report, was to be one year "to evaluate progress in the interactions with female employees and civilians, with a six-month interim review," and grievant was to "contact the Training Unit for scheduling of remedial training on sexual harassment in the workplace and, if necessary, counseling on appropriate interaction with female employees and civilians." It is unknown to the arbitrator whether such training actually occurred, or why more than four months elapsed between the City Manager's hearing and final disposition.
The Employer contends most of the charges against grievant are essentially uncontested and his demotion was for just cause because of his inappropriate relationships with Sofa and Bike, his participation in and failure to put a stop to inappropriate conversations in the Vice Unit (in particular, about Sofa' desire for a "boob job"), and dete‑

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rioration in his effectiveness as a supervisor due to the time he spent with Bike. In sum, it contends he no longer was able to effectively supervise the Vice Unit, so demotion to a lower rank and transfer to another unit were reasonable and just. It also emphasizes that, as Chief Shade testified, the demotion is not necessarily permanent, because he might be able to apply for promotion again two years after it took effect.
The Union argues that even though grievant acknowledged taking an extended lunch break and making other mistakes, including slapping Sofa' buttocks and not trying to establish a more businesslike atmosphere in the Vice Unit, the Employer did not specifically prove he committed any of the charged offenses other than taking too long a lunch break on one occasion. It argues there is no evidence that he conducted personal business while on duty, since the crux of the long-lunch-break charge is that he was not on duty for part of the time when he should have been; that his work performance did not conform to established standards for sergeants; or that his conduct impaired department operations or the efficiency of any other employee.
It also contends demotion was unjust because it was punitive in nature, there being no evidence that problems in his performance could not be solved by less severe discipline aimed at correction rather than punishment. It sees further indications of its punitive nature in the long delay before disposition of the charges, the fact that for the last four months before demotion grievant continued to work as a sergeant, Lt. Desk's admission that nobody in the Vice Unit complained about ineffective supervision by grievant, and his long service and good evaluations both with the Department generally and as a sergeant.
DISCUSSION AND FINDINGS
The Employer's position suffers from a fundamental defect. After long investigation, it concluded grievant was not guilty of the most serious offense under consideration, sexual harassment. But its arguments to justify his demotion still implicitly assume he was guilty of that offense. Chief Shade focused on his "inappropriate touching" of Sofa and his kiss with Bike, both of which the Employer now characterizes not as sexual harassment but "unbecoming conduct." But it only charged him with violating Rule 18.1.d.,

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not other forms of "unbecoming conduct," so to sustain that charge it must prove his conduct actually impaired the operation or efficiency of the Department or an employee.
It produced no specific evidence substantiating that charge. The closest thing to such evidence is a general statement in Lt. Chair's Investigative Findings in the Complaint Disposition Report that "most witnesses interviewed indicated" grievant's time spent with Bike detracted from his time "usually spent supervising the Vice Unit" and "this lack of supervision affected the efficiency of the Day Team." But the Report cites no specific evidence to support that "indication" and not one Vice Unit officer testified that his or her performance was impaired by grievant slapping Sofa on the buttock, kissing Bike (indeed there is no proof anybody else even knew about that), spending time with her on his lunch break (extended or not), or tolerating or participating in gallows humor or raunchy language on the day shift.
Not even Sofa made such a claim. She merely said the slap(s) made her "uncomfortable," and she did not formally report them and apparently told Sgt. Pole she did not want them reported. Equally important, she acknowledged she engaged in such behavior herself and also initiated raunchy conversations.
In arbitration, Sofa half-heartedly tried to shift blame for that to grievant, saying he did nothing to stop such conversations. To his credit, during the investigation and in arbitration grievant said he realized he probably should have refrained from such physical horseplay and done something to establish a more businesslike environment in the Vice Unit. But rather than making a case against him for "unbecoming conduct," those admissions reinforce the Union's point that his errors were correctable without the severe, permanent and punitive disciplinary response of demotion. Equally important, they do not make the case, which the Employer did not make with any other evidence, that his failure to achieve and act upon such a realization before October 2003 impaired operation of the Vice Unit or the efficiency of any officer in it.
The other angle from which the Employer approached the same argument is that by engaging in such conduct grievant failed to conform to established work standards for his rank, in violation of Rule 12.1.d. But this version of the argument is no more convincing than the unbecoming conduct version, for several reasons. First, the Employer presented no evidence as to what work standards are established for the rank of sergeant. Second, it

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did not prove the conduct in question affected or implicated grievant's job performance; except for a vague claim that time spent with Bike detracted from his time usually spent supervising the Vice Unit, it did not claim he did not get his work done or prove that he kept others from doing theirs efficiently. Third, it is undisputed that all his performance evaluations were strongly positive. Fourth, Lts. Desk and Lamp knew what the work environment was in the Vice Unit and neither did anything to change it nor ordered him to do so. Fifth, in another forum (Michigan Employment Relations Commission proceedings on a petition by another union seeking to represent the sergeants) the Employer strongly argued (and MERC so found) that The Employer’s sergeants are not supervisors.
It also is undisputed, of course, that on one occasion grievant took too long a lunch break. But again the Employer exaggerated the gravity of that indiscretion, making it the subject of two seemingly contradictory rule/policy violations, and ignoring a routine phenomenon of Vice Unit time flexibility reflecting the reality that vice officers often work past their regular quitting time without overtime compensation. Its reliance on that minor indiscretion as a basis for major discipline also was undercut by Desk's candid acknowledgment of a common perception in the Department (which he shared) that some command officers abuse lunch break privileges.
For these reasons, as the only clearly substantiated charge against grievant (whether as violation of Rule 13.3, Policy 75-07 or both), that long lunch break was not just cause for demotion or for any other disciplinary action more severe than a warning. Therefore the grievance must be granted with full make-whole remedy, as follows.
AWARD
Grievance No. 5-05 is granted, grievant Tom Table's demotion is set aside, he is reinstated to the rank of sergeant retroactive to April 11, 2005, and the Employer shall pay him the difference between his actual wages from then until reinstatement and wages he would have been paid during that period as a sergeant.
Paul E. Glendon, Arbitrator February 6, 2006