Experts say the main reason why cities, counties and townships are forced to rehire these employees is because of inconsistent enforcement of rules and discipline.
Most recently a former Hamilton electric troubleshooter David Schlueter, who was fired for allegedly bringing a firearm to work — something that is expressly forbidden — filed a lawsuit in federal court against the city. The arbitrator gave him his job back in January, but the city has refused to comply with the order.
The lawsuit, filed on Feb. 10, is seeking to get Schlueter reinstated and requests back wages, liquidated damages, interest and attorneys fees and costs under the federal Fair Labor Standards Act and Ohio’s prompt Pay Act. Human Resources Director Tim Werdmann said they cannot discuss the situation because it is in court, but personnel files obtained by the Journal-News tell the tale.
Director of Electric Kevin Maynard wrote a “determination of discipline” letter to Schlueter on Oct. 16, 2014.
“Despite your claimed ignorance of the rules, it is not reasonable for you to think that you could, under any circumstances, carry a gun on your person on city property,” Maynard wrote. “If your gun was loaded, employees could have been badly wounded or killed.”
Arbitration documents indicated guns are routinely swapped, sold and raffled, even by some supervisors, at the municipal garage on Erie Street where Schlueter allegedly had his gun. The arbitrator found the city doesn’t enforce it’s gun rules uniformly — others who have had guns haven’t be fired — and therefore the electric worker should not have been fired.
“It does not advance the cause of safety when provisions banning guns on employer property are not enforced,” Jerry Fullmer wrote in his decision. “The grievance is therefore granted and the grievants’ termination on Oct. 16, 2014 is set aside.”
Warren County has had its share of having to hire back fired workers, mainly in the sheriff’s office. The most notable case involved Deputy Troy Lauffer who was fired in May 2008 after he admitted driving drunk and routinely calling dispatch to find out where deputies were patrolling. He also was accused of shielding a friend from a domestic violence investigation.
The case so irked former Warren County Commissioner Mike Kilburn that he wanted then-Judge James Flannery to fire Magistrate Andrew Hasselbach, who ruled the arbitrator was correct in overruling Sheriff Larry Sims decision to fire Lauffer.
“Bottom line is we’ve got a drunk deputy driving around the county by his own admission, does it on a routine basis, calls dispatch to avoid being caught, interferes with a domestic violence …,” Sims said at the time. “Ask the public if Lauffer should be put back on the street to investigate DUIs and domestic violence.”
The arbitrator in that case found, like in the Schlueter case, the discipline was not being handed down uniformly. Lauffer went back to work but resigned the same day.
“There is a critical problem with the disparity of punishment being given in disciplinary actions,” Mollie Bowers wrote. “Awarding a minor suspension for a DUI conviction that included loss of license and another suspension when an individual was arrested for driving without a license speaks volumes about the department’s true desire to protect its image and reputation.”
Attorney Steve Lazarus, whose firm has represented many union workers in Butler and Warren counties and handled this case, said not only is consistency in discipline important, but progressive discipline is key. He said the sheriff’s office knew Lauffer had a habit of driving drunk and calling dispatch so he could avoid detection by his peers, but never before punished him.
Butler County FOP President Jeff Gebhart said his office is very good about correcting problem people.
“They do progressive discipline here because if you have a bad apple, he’s going to float himself or herself right to the top,” he said. “People make mistakes, they really do, every person makes a mistake. Of course when we make one, it’s glorified everywhere. The sheriff’s office, their discipline procedure now, for the past eight years has been pretty fair.”
When a union worker is fired, if the union feels the termination was unfair and or violates the terms of their collective bargaining agreement, they can take the matter to arbitration. If one of the parties disagrees with the arbitrator’s decision, they can appeal to county common pleas court. The matter can continue up to 12th District Court of Appeals and even the Ohio Supreme Court, and in the case of electric workers, federal court because federal laws are involved. Most jurisdictions in Butler County say they have not had an arbitrator undo any terminations.
Lazarus said unions are circumspect when deciding to arbitrate.
“Unions I work with are not going to take a case to arbitration unless they feel that there is a problem with what was done… There is also a significant cost in going to arbitration,” Lazarus said. “I’m not going to recommend going to arbitration in a case where it is very clear that the person did serious wrong and the employer has been consistent in how they’ve handled employees who have engaged in that conduct.”
Sims said the Lauffer case cost the county $24,000 in back pay and arbitrators cost between $5,000 and $7,000, which the two sides split. He said they do use outside counsel in these cases, but they are on retainer anyway. There have been five other sheriff’s employees fired and ordered rehired since he took over in 2009.
Butler County had another more recent fire/rehire situation with a corrections officer. Butler County Sheriff Richard Jones fired Joshua Bowling in June 2013 for allegedly associating with a known criminal. Bowling allowed his cousin to move in with him three months after the cousin was discharged from prison. The sheriff said his employees are not allowed to “associate” with known criminals, a provision that is spelled out in their contracts.
The arbitrator decided that since Bowling’s cousin wasn’t in the Butler County Jail, wasn’t a “notorious criminal” and would not “substantially impair the reputation” of the sheriff’s office, firing him wasn’t warranted. Supervisors also told the arbitrator Bowling has a history of insubordination. The arbitrator said supervisors cited 11 times Bowling was disciplined, the worst being when he allegedly provoked a physical altercation with inmates and was suspended for three days in 2006.
The case went before Judge Keith Spaeth, who agreed with the arbitrator. The sheriff said he planned to appeal to the 12th District but Chief Tony Dwyer said they settled the case instead. He said the settlement is confidential.
One case that did go up to the appellate court was out of the Trenton police department. Police Sergeant Mike Matala was fired in July 2011 for insubordination involving a traffic citation and a few other infractions involving his superior. The arbitrator said Matala deserved a 30-day suspension, but due to the toxic nature of his relationship with others in the small department, she said he should resign but all notations about the firing would be removed from his record.
Judge Patricia Oney ruled the arbitrator overstepped her bounds, but the 12th District said the arbitrator came up with a good solution. The court also noted that usually arbitration decision are inviolate.
“Arbitration is a favored method of dispute resolution due to its relatively speedy and inexpensive nature as well as its ability to unburden crowded court dockets,” Judge Robert Hendrickson wrote. “As a result, a strong presumption favors upholding arbitration awards. The purpose of giving lasting effect to an arbitration award is to honor the parties decision to circumvent the traditional court-based litigation process.”
Sims said he hasn’t had any more issues with the fired employees he had to rehire, and all but one who resigned have been doing their jobs.
“We can’t do anything about it, we had to put it behind us as an agency and then just make sure we’re holding everybody accountable for what they are supposed to be doing,” he said. “As long as they are doing all that, then we leave what happened in the past, we don’t treat them any differently unless their conduct calls for something different.”
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