By Jim Cline and Sam Hagshenas
In Washington State Department of Fish and Wildlife v. Fish and Wildlife Officers Guild, an Arbitrator held that the decision to retire an officer’s K-9 was neither disciplinary nor retaliation for the officer’s prior union activity.
The Grievant in this case was a police officer employed by the Washington State Department of Fish and Wildlife, where he worked as a K-9 handler and game warden. His K-9 was a Karelian Bear Dog named Jax, who the Department used to assist with the management of dangerous wildlife, such as bears. The Grievant was responsible for Jax’s care during off-duty hours and received additional dog handler pay of $7,000–$8,000 per year.
The Department was undergoing a cost-benefit analysis regarding the K-9 program and encouraged handlers to make a lot of use” of their dogs in responding to dangerous wildlife and in outreach/educational events. The Grievant told a supervisor that he did not want to take his dog to bear calls if he thought the bear would be lethally removed but was told that was not a realistic expectation. However, in a November 2022 incident in which the Grievant was asked to bring Jax to help deal with a bear in a residential area, the Grievant chose not to deploy Jax.
The Department made the decision to retire “Jax” given his low utilization and invited the Grievant to a meeting to discuss “the K-9 Program policy.” The supervisors did not inform the Grievant beforehand that they intended to retire Jax. This meeting became contentious when the Grievant was asked about Jax’s utilization, and it devolved into a heated exchange. The Grievant was accosted by his Captain for not deploying Jax in response to the November incident. The Grievant was then given a letter retiring Jax at the end of the meeting.
The Grievant alleged that this meeting was disciplinary, as he was pressed on why he didn’t deploy Jax in response to the November incident, and was punished for it by losing his K-9 status and corresponding pay. He also argued that the decision to retire his dog was in retaliation for his advocacy in a prior internal investigation against him, which he had grieved through the Guild.
The Department argued that the retirement of Jax fell within their management rights, as the K-9 program was underutilized and not self-funded. They argued that in making the decision to retire Jax, they did not consider the Grievant’s performance as an officer but only considered facts relating to his utilization, which was the lowest in the program.
The Arbitrator ruled in favor of the Department, finding that the Guild failed to establish that the purpose of retiring Jax was disciplinary or in retaliation for Grievant’s prior Guild activity. They found this decision was within the Department’s management rights, and that the Grievant should have been aware that a failure to increase the use of the dog would lead to termination of the K-9 program in his region. The Arbitrator also noted that past practice favored the Department, as the Guild had not previously grieved removals from special assignments.
The Arbitrator’s ruling is best summed up by the quote below:
“Although Grievant was understandably upset about a decision about his dog made over his head and without his input, the decision involved the retirement of a Department asset. Analytically, this is no different than a decision regarding other state property, which the Department owns and disposes of at will.”
The Arbitrator thus denied the grievance.
Transfers with a disciplinary purpose are generally grievable but their outcome is often unpredictable. In this case management had argued that the transfer was not even a grievable event, noting that the CBA language didn’t specifically identify “transfers” as grievable discipline. But the arbitrator rejected that claim, noting that CBA extended discipline grievance rights to any “reduction in pay.”
Nonetheless, on the merits, he concluded that the “true purpose” of the reassignment was not “discipline” but management’s decision to wind down the canine program. That claim was hotly contested at the hearing as the announcement to end the program coincided with management’s expressed anger at the grievant.
This result demonstrates that an arbitrator in a disciplinary transfer grievance will generally closely review the facts, often making credibility determinations, to determine the “real” reason for the action. If a transfer has a genuine operational purpose, by definition it isn’t “discipline.” Where there are mixed motives, as here, where management is peeved with the employee, yet they articulate an operational reason for the action, the potential success of the grievance may be hard to gauge.
Another lesson from this case is to evaluate your “just cause” language and ensure that all discipline actions, including disciplinary transfers are actually grievable. In this case transfers were not specifically identified as grievable, but the arbitrator agreed that the “reduction in pay” element covered it. We’ve reviewed many contracts where management tries to bar disciplinary transfer grievances either by expressly prohibiting such grievances or omitting “transfers” from the identified list of grievable forms of discipline. Whenever your members’ special pay may be at stake, it’s predictable that they’ll want the ability to challenge an arbitrary transfer.
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