By: Jim Cline and Geoff Kiernan
In City of Ada, Arbitrator Zane Lumley ruled that there was just cause for the termination of an Ada, Oklahoma firefighter who engaged in a tirade of angry and offensive Facebook posts in response to a police officer arresting his wife for public intoxication. Ultimately, the Arbitrator ruled that termination was proper because the firefighter showed a clear disregard for the City’s anti-harassment policy and his actions had made it very difficult for him to work with the Ada police department in the future.
The Grievant’s issue with the Ada Police Department could be traced back to the night of April 24th, 2013, when a police officer pulled over a car, in which the Grievant’s wife was a passenger, for an illegal turn. The Grievant’s wife called and informed him of the stop. The Grievant arrived onto the scene and attempted to convince the officer to let his wife go home with him. The officer refused and instructed the Grievant to return to his car, and after much difficulty and profanity, the firefighter did return to his car. The officer then arrested the driver and the Grievant’s wife for public intoxication. Grievant followed the officer to the booking center and demanded to speak to the officer’s supervisor. He proceeded to make several threats to the supervising officer and expressed his “dissatisfaction” with both the arresting officer and the APD.
Grievant then promised to “smear this shit all over the place” a promise he later kept by launching a tirade of offensive Facebook posts disparaging the arresting officer, the APD and the City of Ada itself. The list of Facebook posts includes things like “you take my wife and I’ll take your head” and “Ada PD…I don’t want to be associated with your corruption. Stay away or I’ll push you down the street.” The posts go on and only became more and more profane. Grievant’s supervisor notified him that this was unacceptable and advised him to get counsel because his termination was being considered. Ultimately, the Grievant was terminated on May 13th, 2013
It was the position of the City that they had just cause for the termination of the Grievant. They hold that the Grievant interfered with an officer’s traffic stop and then undertook an extensive campaign of harassment, against both the individual officer and the APD, which irreparably damaged the relationship between the Fire Department and the City. They argued that the city’s policy manual clearly states that harassment, even after the first incident, is a fireable offense. Even if the officer’s conduct was inappropriate, there were clearly better avenues that the Grievant could have pursued to express his dissatisfaction. The union held there was no just cause for termination as the principles of progressive discipline were not followed. Since the Grievant was terminated after such a brief period, he never had any chance to correct his actions. Furthermore, the City policy manual had never been authoritative as to discipline and has largely been used as guidepost.
The Arbitrator ultimately determined that the City’s termination of the Grievant did not violate the contract. He empathized with the Grievant noting the difficulty in viewing his spouse being arrested for public intoxication, especially if she was not usually a drinker. Yet, the Arbitrator reasoned that the Grievant acted in an unreasonable way by preventing the police officer from doing his job. Furthermore, the Grievant escalated the situation by following the officer to the booking center and threatening several police officers.
The Arbitrator concluded that this event in and of itself could merit discipline. However, the Grievant then crossed another line when he posted angry threats on Facebook. The Arbitrator explained:
I see no way, the Grievant could have believed the majority of his posts were appropriate and should not have jeopardized his job.
It was not simply the content of the posts which worried the Arbitrator, it was how the Grievant realized that this would affect his job performance, but he continued his tirade anyway. The Arbitrator explained:
That tells me that he understood not only that he was prohibited by City policy from harassing fellow city employees, .… but that he also understood that a firefighter is required to interact frequently on the job with other City employees such as officers of the APD and that, if he were to continue to be a firefighter it would be important not to upset that relationship.
The Arbitrator wanted to make it clear that it was not necessarily the content of the Facebook posts per se which made the termination appropriate, it was the fact that the posts jeopardized the relationship between the police department and fire department. If the Grievant was allowed to continue working at the fire department, every time he went on a call and an officer showed up there would be a potential for conflict. In dealing with emergency circumstances, the Arbitrator explained that such a risk of unnecessary conflict is unacceptable and thus there was just cause for the termination of the Grievant.
It is sometimes a voiced myth that you cannot be disciplined for off duty conduct. Clearly, as indicated by this case, you can. The Arbitrator here applied the commonly adopted test of determining whether a “nexus” exists between the off duty conduct and work. Given the need for cooperation between these two city public safety departments, this Arbitrator’s ruling on this set of facts was unsurprising.
Your members should realize that they can be discharged for off duty problems involving alcohol. And in this day and age, Facebook is providing another occasion for fireable misconduct. But the combination of alcohol and Facebook can prove particularly fatal to job security.
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