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

26

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

30

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).

32

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.