By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

A neutral arbitrator ruled on October 6, 2012, that the City of Springdale violated the rights of one of its firefighters and breached the terms of a collective bargaining agreement when it terminated that firefighter without just cause.

On February 20, 2012, Springdale terminated the Firefighter, a 19 year veteran of the City’s Fire Department, a member and officer of the Springdale Professional Firefighters, IAFF Local 4027, and in the words of one witness, one of the best paramedics in the Fire Department. The City allegedly terminated the Firefighter over three jokes and an alleged incident of insubordination at the scene of an accident. These four incidents supposedly occurred over an eight-week period. The Firefighter filed a grievance on his termination, and when that grievance was denied by the City, Local 4027 requested arbitration. The Firefighter and the Local were represented by Henry A. Arnett, from the law firm of Livorno and Arnett Co., LPA, at the arbitration.

The evidence presented at the hearing showed that the relationship between the Firefighter and then Fire Chief Daniel Shroyer was “tense.” A former firefighter testified that if you are on the Chief’s side, everything is good, but if you cross him he has no need for you. The Chief’s last evaluation noted he was resistive when confronted with situations where someone disagrees with him, and that at times he has trouble accepting the Union. After the Firefighter helped organize the Local and obtain recognition, his relationship with the Chief became adversarial.

The City contended that on three separate occasions the Firefighter created a sexually hostile work environment by telling jokes of a sexual nature. However, the arbitrator found that there was nothing in the record to suggest that the three jokes were offensive or unwelcome, and no employees had complained or reported the jokes despite a City policy that states all employees are responsible for reporting any discriminatory or harassing conduct. The Firefighter was never counseled about the jokes or told not to make them, and, in fact, jokes like the ones told by the Firefighter were common in the fire station culture. As one witness noted, the jokes told by the Firefighter were mild to very normal compared to jokes told by others in the fire station. The arbitrator ruled that the jokes could not serve as the basis for any discipline against the Firefighter.

As to the Firefighter’s conduct at the scene of an accident, the evidence showed that the Firefighter responded on a medic unit to an accident in Sharonville on the day before Thanksgiving, 2011. The accident occurred during rush hour, the roads were wet, and I-75 was bumper-to-bumper. When the Firefighter’s unit arrived on the scene, they were approached by a Sharonville Lieutenant who told them that a man leaning up against the wall holding his wrist wanted to go to University Hospital. With only a minor arm injury, there was no medical reason to take the patient to University Hospital, which would take at least 20 to 25 minutes, when there were other hospitals closer that could handle minor arm injuries. The Firefighter replied that they would instead take him to a much closer hospital; the Sharonville Lieutenant said that was fine and left. However, later the Firefighter learned that the man wanted to go to University Hospital so he would be close to other family members who were being transported. The Firefighter decided they would go ahead and transport him to University. The Firefighter called his Captain to let him know they were going to University, and upon returning to the station, explained to the Captain why they went to University instead of a closer hospital.

The Chief testified that the policy of the department is that it would honor a patient’s request as to which hospital the patient wanted to be transported to unless there was a medical reason not to. However, the actual written policy stated the transport to a hospital of the patient’s choosing would be made only if reasonable, and the final decision as to the receiving hospital and what was reasonable was the responsibility of the senior person at the scene representing the Springdale Fire Department. In this case, the final decision was the Firefighter’s and it was within his authority to decide whether the more distant transport was reasonable. The authority for the Springdale unit was the Firefighter’s and he never disobeyed an order from a superior officer. There was simply no insubordination as argued by the City.

Article 8 of the parties’ collective bargaining agreement required that no bargaining unit member may be removed except for “just cause.” The arbitrator noted that the City failed to satisfy its high burden of proof. Not only did the City fail to prove its allegations against the Firefighter, but it also failed to apply its rules consistently and evenly. In addition, the City failed to conduct a fair and objective investigation. In fact, the Firefighter was never even questioned or interviewed about any of the four incidents. The City also failed to offer the Firefighter adequate representation in the pre-disciplinary process. Further, as the arbitrator noted, the City “disciplined Grievant in part as discrimination/retaliation for the Grievant as a member of the Union raising safety concerns.” For all those reasons, the discipline of the Firefighter was without just cause.

The Firefighter was reinstated, with all benefits and seniority as if the discipline never occurred. He was awarded full backpay and lost benefits. The termination and related documents are to be expunged from his files and not used for any purposes in the future.